Allahabad High Court
State Of Uttar Pradesh vs Rajpal Singh, Birpal Singh Sons Of ... on 14 May, 2007
Author: Vijay Kumar Verma
Bench: Vijay Kumar Verma
JUDGMENT Vijay Kumar Verma, J.
1. State of U.P. has preferred this Appeal against the Judgment and order dated 16.09.2002 passed in Session Trial No. 471 of 1996 State v. Rajpal Singh and Ors. by Shri Arun Kumar Singh, the then Additional Sessions Judge, Court No. 2, Etah, who acquitted the accused-respondents of the charge under Section 302 read with Section 34 I.P.C.
2. The accused-respondents along with co-accused Mahipal Singh were put on trial for committing the murder of Rampal Singh. The accused Mahipal Singh died during trial and hence the case was abated against him.
3. First Information Report regarding murder of Rampal Singh was lodged by his elder brother Sone Lal S/o Puran Sinigh R/o Village Nibaua, P.S. Sidhpura, District Etah. The case of the prosecution in brief is that Rampal Singh was going to Etah Courts via Dhumri by bus. When after crossing the Village Sarawal, the bus reached near the Pulia of bamba (rajwaha), Mahipal, Rajpal, Birpal sons of Chatrapal Singh and Amar Pal son of Rajpal got the bus halted. At that time, Mahipal and Rajpal were armed with rifles, Birpal was having gun of his father and Amarpal was having revolver of his elder uncle (Tau) Mahipal Singh. They dragged Rampal Singh from the bus and saying 'aaj sara mamla samapt kar do' began to fire on him from their respective weapons. After sustaining injuries, Rampal Singh fell down there. This incident was witnessed by Ram Babu, son of the deceased and Raghunath Singh son of Badshah Singh resident of Village Lakhnipur, P.S. Kotwali Dehat, Etah and Vijaypal Singh son of Malkhan Singh resident of Village Morcha, P.S. Jaithra, District Etah. After the occurrence, Raghunath Singh came to Village Nibaua and informed the complainant regarding the incident, on which the complainant and other persons reached the place of occurrence. When Rampal Singh in injured condition was being carried in Bus No. UPT 4652 to Police Station Sidhpura, he succumbed to injuries in the way. After keeping the dead body on road near Police Station, the complainant Sone Lal handed over the written report (Ext. Ka-1) at P.S. Sidhpura, where chik FIR (Ext. Ka 8) was prepared by the then Head Moharrir Jagdish Singh, who registered a case under Section 302 IPC at crime No. 85/92 against Mahipal, Rajpal, Birpal and Amarpal on 18.06.1992 at 7.45 a.m., entry of which was made in G.D. No. 16 vide Ext. Ka-9.
4. On the FIR being lodged at P.S. Sidhpura, the inquest proceeding on the dead body of Rampal Singh was conducted by S.I. Angad Ram Sharma (P.W.5) on 18.06.1992, during which inquest report (Ext. Ka-4) and connected papers (Ext. Ka-5 to Ext. Ka-7) were prepared and thereafter the dead body in sealed condition was sent for post-mortem examination, which was conducted by Dr. Satya Mitra (P.W.-3) on 18.06.1992 at 2.00 p.m. According to the post-mortem report (Ext. Ka-2), following ante-mortem injuries were found on the person of deceased.
a) Firearm wound of entry, 2cm x 2cm x abdominal cavity deep on the Right side back of abdomen just below subcostal margins (R), 6 cm away from midline. Margins are inverted & lacerated. No Blackening found around the wound.
b) Firearm wound of exit, 3.5 cm x 3.5 cm x communicating with Inj. (1), on the (R) side of front of abdomen, just below subcostal margin, 7 cm away from naval, margins everted. Loops of intestine coming out of the wound, one gatta & two tiklies recovered from the wound.
On dissection, haematoma present in layer underneath the both wounds, peritoneal flaps, large intestine, small intestine, liver badly lacerated. Free and clotted blood mixed with intestinal food material & faecal matter present in abdominal cavity. Thirteen (13) small metallic pellets recovered from abdominal cavity. Direction posterior to anteriorly.
Death was caused due to shock and haemorrhage as a lit of ante-mortem injuries.
5. Investigation was taken up by S.I. Rambir Singh (P.W. 6), who after recording the statements of scribe of the FIR Head Moharrir Jagdish Singh, complainant Sone Lal and witness Ram Babu went to the place of occurrence and after making spot inspection, site plan (Ext. Ka-10) was prepared. Blood stained and plain earth were collected from the place of occurrence and memo (Ext. Ka-11) was prepared. After transfer of S.I. Rambir Singh, further investigation was conducted by S.I. Mehtab Singh (P.W. 4), who after completing the investigation submitted chargesheet (Ext. Ka-3).
6. On the case being committed to the Court of Session, the accused persons were charged under Section 302 read with Section 34 I.P.C. Since the accused persons pleaded not guilty and claimed to be tried, the prosecution in order to prove its case examined Ram Babu (P.W. 1) Raghunath Singh (P.W. 2), Dr. Satya Mitra (P.W. 3), S.I. Mehtab Singh (P.W. 4), S.I. Angad Ram Sharma (P.W. 5) and S.I. Rambir Singh (P.W. 6). The witnesses Ram Babu and Raghunath Singh are said to be the eyewitnesses of the incident.
7. In their statements recorded under Section 313 Cr. P.C, the accused persons denied their participation in the alleged incident and they have stated that due to enmity and village party bandhi, they have falsely been implicated in this case. In defence, the accused persons have examined Rajesh Kumar Tiwari as D.W. 1.
8. After hearing the parties counsel and appraisal of the evidence, the learned Trial Court acquitted the respondents-accused vide impugned judgement, which has been challenged in this Appeal by State of U.P. after seeking leave of the Court.
9. We have heard Mrs. N.A. Monis, learned A.G.A. for the appellant-State and Sri P.N. Mishra, learned senior counsel appearing for the respondents-accused, assisted by Sri S.K. Pandey, Advocate. Impugned Judgment as well as the entire evidence on record have also been perused carefully.
10. It was vehemently contended by Mrs. Monis, learned A.G.A. that there is convincing evidence in the form of statements of two eyewitnesses namely Ram Babu and Raghunath Singh to establish the complicity of the accused persons in the incident of committing murder of Rampal Singh on the alleged date, time and place, but the learned Trial Judge on surmises and conjectures has acquitted the accused-respondents without sufficient reasons and hence the impugned Judgment being illegal is liable to be set-aside. It was also submitted by the learned A.G.A. that this Court is quite competent to re-appreciate the evidence. Next submission made by learned A.G.A. was that the ocular evidence of the witnesses Ram Babu and Raghunath Singh is corroborated by medical evidence, but the learned Trial Judge committed gross illegality in not placing reliance on the testimony of the these witnesses.
11. On the contrary, Sri P.N. Mishra, learned senior counsel appearing for the respondents-accused submitted that in appeal against acquittal scope for interference by the appellate Court is not as wide as in the appeal against conviction and even if two views on the evidence are possible, then the view, which is favourable to the accused should be accepted by the appellate Court. In this regard, it was also submitted by Shri Mishra that interference by the appellate Court in the Judgment of acquittal is possible only if the findings recorded by the Trial Judge are either perverse or against the evidence. It was further submitted by learned Counsel for the accused-respondents that very cogent reasons have been given by the learned Trial Judge while recording the findings of acquittal in favour of the respondents-accused and hence, this Court will not be justified in making interference in the impugned judgement. Various other arguments on merit were also made by the learned Counsel for the parties.
12. Having heard the learned Counsel for the parties and after going through the impugned judgment as well as the oral and documentary evidence on record carefully, we entirely agree with the aforesaid submissions made by the learned Counsel for the accused-respondents. Although we agree with the learned A.G.A. that this Court is competent to re-appreciate the evidence notwithstanding that this is appeal against acquittal, but it is almost well settled principle of law that in the appeal against acquittal, the appellate Court can reverse the findings of Trial Judge only if the findings are either perverse or against the evidence. It will be useful to reproduce the following observations made by Hon'ble Apex Court in the case of Harijana Thirupala and Ors. v. Public Prosecutors. High Court of A.P. Hyderabad 2002 S.C.C. (Cri) 1370 in para 11 of the judgment:
In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused, the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence place before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.
13. The following observations made by Hon'ble Apex Court in para 8 of the case of Kalvan and Ors. v. State of U.P. 2002 S.C.C. (Cri) 78 are also relevant.
The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, the principle of presumption of innocence of the accused persons is also equally will settled. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witnesses and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court.
Keeping in view the aforesaid observations made by Hon'ble Apex Court, let us now see whether there is any scope for interference in the impugned Judgment by this Court.
14. The complicity of the accused persons in the incident of committing murder of Rampal Singh on the alleged date, time and place is sought to be established on the basis of the evidence of two alleged eyewitnesses namely Ram Babu (P.W. 1) and Raghunath Singh (P.W. 2). The witness Ram Babu is the son of deceased, where as Raghunath Singh is deceased's brother-in-law (sala). Although the testimony of any witness cannot be discarded on the ground that he is related to the victim or the deceased, but testimony of such witnesses is to be scrutinized with care and caution. The learned Trial Judge has disbelieved the evidence of aforesaid witnesses on various grounds which are mentioned in the impugned judgement, which we have perused carefully. The learned Trial Judge has recorded the finding that both these witnesses were not present at the place of occurrence and they did not see the incident of committing murder of deceased Rampal Singh. Having carefully gone through the statements of aforesaid witnesses, we too are of the view that these witnesses were not present at the time of committing the murder of deceased and their testimony has been rightly disbelieved by the learned Trial Judge.
15. First we are taking up the testimony of Ram Babu (P.W. 1), whose statement in Trial Court was recorded on 30.03.2000, in which he has stated that on 18.06.1992 his father Rampal Singh was going to Etah Court and he, Raghunath Singh and Vijay Singh also were going with him and they all had boarded in bus from Nibaua. Ram Babu has told his age as 22 years on 30.03.2000 meaning thereby that on the date of incident, he was child of about 14 years of age. It has come in the statement of Ram Babu that when murder of his father was committed, the court hours in Etah Courts were from 6.00 a.m. to 12.00 noon. In cross-examination, it is stated by Ram Babu that he was not the accused in the murder case in which his father was going to Court(Kutchery). It is also stated by this witness that he had not to attend any case in Etah Court on that day. When the witness Ram Babu was neither accused in the murder case in which his father was going to attend nor he had to attend any other case on that day, then there was no occasion for this witness to accompany his father to Etah on that date. On this ground, the presence of this witness Ram Babu at the place of occurrence becomes doubtful. There are other reasons also to make his presence at the place of incident doubtful.
16. The second eyewitness is Raghunath Singh who has been examined as P.W. 2. In his statement, the witness Raghunath Singh has stated that one day before the incident of murder of Rampal Singh, Bhagwat was organized by Rampal Singh and he(Raghunath Singh) had corner to participate in the Baghwat and after closure of the Baghwat programme, he was going to his house on the day of occurrence by bus in which Rampal Singh was going to Etah. From the statement of this eyewitness, it becomes evident that the only purpose of his coming to Village Nibaua was to attend Bhagwat programme in the house of his brother-in-law Rampal Singh (deceased). The following statement of the witness is relevant:
Main Rampal Singh ke Bhagwat mein gaya tha. Agar us din Rampal ke ghar bhagwat na hoti to main unke ghar na jata. Maine Darogaji ko apne bayan mein nahin bataya Ki main Rampal Singh ke yahan bhagwat mein gaya tha. Yeh bhagwat mein jane wali bat main aaj pehli bar keh raha hun.
From the aforesaid statement of the witness Raghunath Singh, it is clear that the only purpose of his coming to the house of deceased Rampal Singh was to attend the Bhagwat, but the story of organizing Bhagwat on 17.06.1992 by Rampal Singh is proved false by the statement of Rajesh Kumar Tiwari (D.W. 1), who is family purohit of deceased Rampal Singh. The witness Ram Babu has stated in his statement that Bhagwat was read over by his family (Khandam) Pandit Rajesh son of Ram Swarup, but D.W. 1, Rajesh Kumar Tiwari, who is the son of Ram Swamp, has specifically stated in his statement that there was no Bhagwat programme in the home of Rampal Singh within a week prior to this murder and he did not read over any Bhagwat in his house. There is no reason to disbelieve the statement of D.W. 1, Rajesh Kumar Tiwari and on the basis of his statement, the story of organizing Bhagwat on 17.06.1992 in the house of Rampal Singh is totally proved false. That being so, there was no occasion for the witness Raghunath Singh to be present in the Village Nibaua on 17.06.1992 or 18.06.1992 and as such, the statement of this witness also has been rightly disbelieved by the learned Trial Judge, because his presence at the place of occurrence is doubtful. There are some other reasons also to make the presence of this witness at the place of occurrence doubtful.
17. First Information Report of this case was lodged by Sone Lal, but the name of witness Raghunath Singh is not mentioned in the G.D. of registration of the case, which shows that the witness Raghunath Singh was not present on 18.06.1992 in Village Nibaua and he has not gone to P.S. Sidhpura with the complainant and deceased as alleged by him. The statement of the witness Raghunath Singh was recorded by the Investigating Officer S.I. Mehtab Singh, P.W. 4 on 25.06.1992. This fact indicates that the witness Raghunath Singh was not present at P.S. Sidhpura on 18.06.1992 at the time of lodging the F.I.R. Had this witness been present at P.S. Sidhpura on 18.06.1992 as stated by him, then his statement by the Investigating Officer would have been recorded on the same day, but as mentioned above, his statement was recorded on 25.06.1992, which is indicative of the fact that name of this witness was mentioned in the F.I.R. being the brother-in-law of the deceased and after a long gap, he was interrogated by Investigating Officer. This also makes the presence of the witness Raghunath Singh doubtful at the place of occurrence.
18. There are various material contradictions in the statements of the witnesses Ram Babu and Raghunath Singh. The learned Trial Judge has dealt with those material contradictions in detail in the impugned judgement. It is not necessary to narrate all those material contradictions in this judgement. It is suffice to say that due to the material contradictions in the statements of the witnesses Ram Babu and Raghunath Singh, no reliance can be placed on their testimony and the learned Trial Judge has rightly disbelieved their evidence.
19. The conduct of the witnesses Ram Babu and Raghunath Singh is against human nature. From the statements of these witnesses, this fact is borne out that they did not make any effort to save the life of deceased Rampal Singh. The witness Raghunath Singh instead of carrying Ram Pal Singh in injured condition to the hospital is said to have went away to Village Nibaua leaving Rampal Singh in serious condition at the place of occurrence. This is against human nature. The witness Ram Babu and Vijay Pal Singh also did not make any effort to carry Rampal Singh in injured condition for treatment to any hospital. This fact shows that neither the witnesses Raghunth Singh and Vijay Pal Singh nor the witness Ram Babu were going with deceased Rampal Singh and they did not see the occurrence. Had these witnesses been present at the time of occurrence, they would have carried the injured Rampal Singh for treatment to any hospital, but as mentioned above, they did not do so. Hence, on this ground also, the testimony of the witnesses Ram Babu and Raghunath Singh has been rightly disbelieved by learned Trial Judge.
20. According to the First Information Report and statements of the witnesses Ram Babu and Raghunath Singh, all the four accused persons are said to have fired on the deceased. The firing is said to have been made from close range, but the statements of these witnesses on this point does not find corroboration from post-mortem report, because only one entry and one exit wounds were found on the person of deceased Rampal Singh at the time of post-mortem examination. According to Dr. Satya Mitra, both the ante-mortem injuries were caused by one fire. This fact also shows that the aforesaid witnesses did not see any occurrence. Had all the four accused persons fired on the deceased from close range, then there was every possibility of sustaining more injuries by the deceased, but as mentioned above, only one entry and one exit wounds caused by one shot were found on the person of deceased at the time of post-mortem examination.
21. Lit was submitted by learned A.G.A. that dying declaration was made by the deceased Rampal Singh to his elder brother Sone Lal at the place of occurrence and on that basis written report (Ext. Ka-1) was prepared by Sone Lal and hence that report should be treated as dying declaration of the deceased. We find no force in this contention. It is nowhere mentioned in the written report (Ext. Ka-1) that the deceased Rampal Singh had told Sone Lal about the incident. Due to death of Sone Lal, he was not examined in Trial Court. Therefore, the written report(Ext. Ka-1) scribed by Sone Lal cannot be treated as dying declaration of the deceased Rampal Singh.
22. From the statement of Ram Babu (P.W. 1), this fact is borne out that the deceased Ram Pal Singh was himself a criminal and he was accused in a number of criminal cases. As mentioned above, the incident had not occurred in the manner as alleged by the prosecution witnesses, whose presence at the time of alleged incident is highly doubtful. While recording the findings of acquittal in favour of the accused persons, the learned Trial Judge properly appreciating the evidence has given very sound and cogent reasons in the impugned judgement. The findings recorded by learned Trial Judge are neither perverse nor against the evidence. Therefore, interference in the impugned Judgment by this Court is not warranted.
23. In the result, this Govt. Appeal is hereby dismissed. The personal bonds of the respondents-accused and surety bonds of the sureties are hereby cancelled and the sureties are discharged.
24. Office to return Trial Court record along with a copy of this judgement.