Allahabad High Court
Raj Singh Alias Jagta And Others vs State Of U.P. on 1 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 328
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 46/In chamber Case :- CRIMINAL APPEAL No. - 940 of 2010 Appellant :- Raj Singh Alias Jagta And Others Respondent :- State of U.P. Counsel for Appellant :- Ramesh Pundir, Anurag Pathak, Arun Kumar Singh, C.K.Mishra, D.S.Mishra, Diwakar Singh, I.M.Khan, J.K.Sisdodia, Mahesh Prasad Yadav, Narendra Deo Rai, Narendra Singh Chahar, Ravi Sinha, S.N. Singh, Santosh Kumar Dubey, Smt. Rekha Pundir Counsel for Respondent :- Govt. Advocate Hon'ble Naheed Ara Moonis,J.
Hon'ble Vivek Varma,J.
(Delivered by Hon'ble Naheed Ara Moonis, J) The instant criminal appeal has been preferred on behalf of the appellants against the consolidated judgement and order dated 08.2.2010 passed by the learned Additional Sessions Judge/Fast Track Court No. 3, Saharanpur in S.T. No. 360 of 2006 (Raj Singh alias Jagta and others Vs. State of U.P.) arising out of Case Crime No. 49 of 2006, under Section 147, 148, 302/149, 307/149 IPC, PS Nagal, district Saharanpur, ST No. 361 of 2006 arising out of Case Crime No. 50 of 2006, under Section 25 of the Arms Act, PS Nagal district Saharanpur, ST No. 362 of 2006 arising out of case crime No. 56 of 2006, under Section 25 of the Arms Act, PS Nagal, district Saharanpur and ST No. 367 of 2006, arising out of case crime No. 57 of 2006, under Section 25 of the Arms Act, PS Nagal, district Saharanpur convicting and and sentencing the appellants Raj Singh alias Jagta, Vikram, Kushal Pal Singh and Jasveer to life imprisonment under Section 302/149 IPC and a fine of Rs. 20,000/- each and in case of default they were further directed to undergo imprisonment of one and a half year; ten years rigorous imprisonment and a fine of Rs. 5,000/- each under Section 307/149 IPC and in case of default, the appellants were directed to further undergo one and a half years imprisonment; two years rigorous imprisonment and a fine of Rs. 2,000/- each under Section 147 IPC and in default the appellants were directed to further undergo six month imprisonment and two years rigorous imprisonment and a fine of Rs. 3,000/- each under Section 148 IPC and in default the appellants were further directed to undergo six months imprisonment. Appellants Vikram Singh and Kushalpal were also convicted and sentenced to three years' rigorous imprisonment and a fine of Rs. 3,000/- each under Section 25 of the Arms Act and in case of default, they were further directed to undergo imprisonment of six months. However, all the sentences were directed to run concurrently.
Accused Omveer died during the pendency of trial, hence trial stood abated against him on 13.6.2007.
Since, appellant No. 1, Raj Singh alias Jagta left for his heavenly abode on 30/31.5.2012, the appeal filed on his behalf abated vide order dated 09.12.2019 and now this appeal survives only on behalf of remaining appellants namely Vikram, Kushal Pal and Jasveer.
The emanation of facts giving rise to the case of the prosecution are that a written report was handed over by the first informant Saleem Ahmad son of Maqsood Ahmad, resident of Sohan Chida at the police station Nagal, district Saharanpur to the effect that the land of the complainant and his family members is situated at the bank of river Hindon, which used to shift in the rainy season by the edge of river. Today (12.3.2006) at about 9.00 AM, when he was removing grass from his mustard field along with his nephew Fayyaz son of Mohammad Riyaz, Raghveer alias Veera son of Jawahar Garediya, Sikandar son of Irfan and Inam son of Latif, at that time Raj Singh alias Jagta son of Bharat along with his nephew Vikram Singh son of Kishan Pal, Uday's son, Jasveer and Rajveer sons of Hardeva, resident of Tapri armed with illegal weapons came there and started hurling abusive and vituperative words to the informant and others and said that the edge of river has shifted his land to this side and exhorted that they should be killed. With common intention to kill, all of them fired with their respective firearms, which hit the chest of Fayyaz, neck of Ragveer, chest of Inam and hand of Sikandar due to which all of them have been seriously injured. On hearing the sound of fire, Yakoob, Sajid, Mahboob, Nisar and Ayyub all resident of Sohan Chida, who were working in the field, rushed to the spot and witnessed the incident. On arrival of the witnesses, all the accused persons fled away by unleashing reign of terror towards their village crossing the river. Fayyaz and Ragveer, who were seriously injured were brought to the Government Hospital, Saharanpur where Fayyaz was referred to PGI, Chandigarh. On the way to the PGI, Chandigarh, Fayyaz succumbed to the injuries whose dead body is lying in the mortuary.
On the basis of the aforesaid report scribed by Irfan, a case was registered on the same day at 1.15 PM against all the accused persons as Case Crime No. 49 of 2006, under Sections 147,148,149, 307 and 302 IPC, police station Nagal, sub-district Deoband, district Saharanpur. After the registration of the case, the criminal law was set into motion and investigation of the case was entrusted to PW-10, SHO Vijendra Singh Yadav. As he was on election duty at Mandi Samiti, Deoband, the FIR was registered in his absence and information thereof had been given to him on RT set, who rushed to the spot where he received copy of the FIR and copy of GD for investigation from SI Balbir Singh. The investigating officer swung into action and first of all, he recorded the statement of first informant Saleem Ahmad and witnesses. On the pointing out of the complainant, he inspected the place of occurrence and prepared site plan (Ext. Ka-10). He also collected bloodstained and plain earth and also recovered two empty cartridges 315 bore and three empty cartridges 12 bore in the presence of witnesses Shamshad Ali and Taiyyab and got them sealed and memos thereof were prepared separately (Exts. Ka- 11 and 12). Bloodstained, plain earth and cartridges were recovered from the field of deceased-Fayyaz of which separate memos were prepared in the presence of the witnesses and entered in CD. Thereafter, the investigating officer rushed to Sadar Hospital, Saharanpur where inquest on the body of the deceased Fayyaz was being carried out by SI Rajendra Kumar. He also recorded the statements of witnesses Sikandar and Inam and after completing the inquest, he put his signature on the inquest report. While giving their statements, the witnesses Sikandar and Inam have assigned the role to Raj Singh alias Jagta son of Bharat, his nephew Vikram son of Uday, Kushal Pal son of Kishan, resident of Bhagwanpur and Jasveer and Omveer son of Harvansh. Informant-Saleem Ahmad in his statement under Section 161 Cr.P.C has also nominated the aforesaid accused persons. He further stated that due to trepidation, at the time of lodging of the FIR the father's name of Vikram was mentioned as Kishan and name of Rajveer was written instead of Omveer. On 13.3.2006, accused Raj Singh alias Jagta was arrested at 6.30 AM near Badgaon Power House. On interrogation, he confessed to have committed the crime and got the weapon of assault ( country made pistol 12 bore ) recovered from the bushes near the field of Yakoob in the presence of witnesses Sharafat Ali and Tufail Ahmad and divulged that he along with co-accused committed the crime with this weapon by committing the murder of Fayyaz and causing injuries to others. Recovery memo of country made pistol was prepared, which was marked as Ext. Ka-13. On the basis of the information given by the informer, the investigating officer arrested the named co-accused Vikram and Kushal Pal at 6.00 AM on 22.3.2006 and from the possession of the accused-Vikram one pistol 315 bore and three live cartridges and from the possession of the accused Kushal Pal one country made pistol 12 bore and two live cartridges were recovered. On interrogation, they confessed to have killed the deceased-Fayyaz and caused injuries to the injured on 12.3.2006 from their respective weapons. The recovered weapons were sealed and recovery memos were prepared, which were signed by SI Mahfooz Ali and other witnesses as well as both the accused (Ext. Ka-16). On 05.5.2006, the investigating officer arrested the accused Omveer and Jasveer and recorded their statements. On the basis of recovery of firearm weapon, cases under Section 25 of the Arms Act were separately registered vide case crime No. 50 of 2006, 56 of 2006 and 57 of 2006 against Raj Singh alias Jagta, Vikram Singh and Kushal Pal Singh respectively.
After completion of investigation and fulfilling necessary formalities, the investigating officer submitted charge sheet against accused Raj Singh alias Jagta, Vikram, Kushal Pal, Jasveer and Omveer under sections 147, 148, 149, 307, 302 IPC vide Charge Sheet No. 80 of 2006 (Ext. Ka-20) on 08.5.2006.
On 08.6.2006, the investigating officer sent the recovered items for examination to the Forensic Science Laboratory, Agra and after receiving the report dated 24.8.2006 from the Forensic Science Laboratory, Agra (Ext. Ka 10) made necessary entries in the GD.
As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions and the learned Additional Sessions Judge, Saharanpur vide order dated 12.10.2006 framed the charges against the accused persons under Sections 147, 148, 302/149 and 307/149 IPC, to which they pleaded not guilty and claimed to be tried.
To bring home guilt of the appellants beyond the hilt, the prosecution has examined as many as 12 witnesses. Out of whom first informant, PW-1, Saleem Ahmad, PW-2 Ayyub and PW-3, Ragveer were the witnesses of facts and remaining witnesses namely PW-4, Dr. Pankaj Kumar, PW-5, Dr. A.K. Verma, PW-6, Niranjan Singh, PW-7, Dr. Surendra Singh, PW-8, Arjun Singh, PW-9, Rohtash Singh, PW-10, Vijendra Singh, PW-11 Satish Kumar and PW-12 Mahfooz Ali were formal witnesses.
PW-1, Saleem Ahmad is the first informant of the case and uncle of the deceased Fayyaz. He deposed in his examination-in-chief that he knew the accused Vikram, Raj Singh, Kushal Pal, Jasveer and Omveer since before the occurrence. Accused Raj Singh, Vikram and Kushal Pal are the resident of village Bhagwanpur, whereas accused Jasveer and Omveer are the resident of village Tapri. Vikram and Kushal Pal are nephew of Raj Singh whereas Jasveer and Omveer are relatives of Raj Singh. He further deposed that the land of the complainant and his family members are situated at the bank of river Hindon, which used to shift in the rainy season from the edge of river. Deceased Fayyaz was his nephew. He also knows injured Ragveer alias Veera, Sikandar and Inam. On the date of incident at about 9.00 AM, when he was removing grass from his mustard field along with Fayyaz, Sikandar, Inam and Ragbeer, at that time accused Raj Singh, Vikram, Kushal Pal, Jasveer and Omveer came there armed with pistol. They claimed that the land and field belonged to them and started abusing the informant and exhorted to kill them. Thereupon, they started firing with an intention to kill, which hit Sikandar, Fayyaz, Inam and Ragveer. On an alarm being raised, Ayyub, Yakoob, Sajid, Nisar and Mahboob rushed to the spot and witnessed the occurrence. Thereafter, the accused persons left the place by extending threat of dire consequences to his life if they would see him again in the field. After the departure of all the accused persons, he (the informant) took the injured Fayyaz and Ragveer to the District Hospital, Saharanpur where Fayyaz was referred to Chandigarh while injured Raghveer was medically examined at the District Hospital Saharanpur. On the way to Chandigarh, Fayyaz succumbed to the injuries. Thereafter, he (the informant) lodged the report, which was proved as Ext. Ka-1.
PW-1, Saleem Ahmad also deposed that he got the report scribed by Irfan and as a result of death of his nephew, due to trepidation, there was slight changes in the name of the accused persons. He also deposed that Jasveer and Omveer are the sons of Hardeva. Baru is the brother of Hardeva. Pitambar's brother is accused Raj Singh. Baru and Pitamber's wife are real sisters. The land in question belongs to the complainant and he is in possession of the same and the accused persons do not have at all any concern whatsoever with the land. PW-1, Saleem Ahmad was subjected to lengthy cross examination, but nothing adverse could be elicited from his evidence so as to make the prosecution case doubtful.
PW-2, Ayyub, an eyewitness of the occurrence, in his examination-in-chief has deposed that he knew the deceased Fayyaz. In the incident, Inam, Sikandar, Fayyaz and Ragveer to whom he knew from before, received injuries. He also knew the informant Saleem Ahmad and the accused Vikram, Raj Singh, Kushal Pal, Omveer and Jasveer. On the date of occurrence, at about 9.00 AM, when he was present at his field, on hearing the sound of fire, he reached at the field of Saleem. Nisar, Mahboob, Yakoob and Sajid also reached to the field at the same time. Saleem was present at the spot where Raj Singh, Vikram, Kushal Pal, Omveer and Jasveer were firing from pistol on Fayyaz, Ragveer, Inam and Sikandar. In the occurrence, Fayyaz, Inam, Sikandar and Ragveer received injuries. Fayyaz fell down after being hit by the bullet. All the accused persons fled away from the spot after firing. Fayyaz succumbed to the injuries received in the incident. On being cross-examined at length by the defence, nothing could be elicited to disbelieve his presence at the time of incident.
PW-3, Ragveer, an eyewitness, in his examination-in-chief has deposed that he knew the accused Raj Singh, Vikram, Kushal Pal, Jasveer and Omveer since before the occurrence. On the date of occurrence, at about 9.00 AM, he along with deceased-Fayyaz, Sikandar, Inam and Saleem were removing grass from the mustard field of Saleem. The field is situated at the bank of river. At the crucial moment Jagta, Omveer, Jasbeer, Kaushal and Vikram arrived there. Jasbeer and Omveer are the resident of Tapri, whereas Raj Singh, Vikram and Kaushal are the resident of Bhagwan Pur. Jasbeer and Omveer used to visit Raj Singh alias Jagta. On arriving at the place of occurrence, accused persons asked as to why they are removing grass from the field and threatened them to leave the field as the field belonged to them. At this Saleem asked that the land belongs to him. Thereafter, all the five accused fired with their respective firearms. The bullet fired by the accused persons hit Fayyaz, Sikandar, Inam and to him (Ragbeer-PW-3). Nisar, Ayyub, Yakoob, Sajid and Mahboob rushed to the spot and witnessed the occurrence. On the arrival of the witnesses, accused left for their village by crossing river. Thereafter he along with other injured were brought to the village on bullock cart and he (PW-3) and Fayyaz were taken to Saharanpur by Saleem, from where Fayyaz was referred to Chandigarh and on the way to Chandigarh, Fayyaz succumbed to his injuries. He (PW-3) remained in Saharanpur Hospital for treatment. PW-3 had also faced scarching cross examination, but nothing could be elicited to doubt about the prosecution case.
PW-4, Dr. Pankaj Kumar had examined the deceased Fayyaz and injured Ragbeer initially. He deposed in his examination-in-chief that on 12.3.2006 he was posted as Senior Surgeon at District Hospital, Saharanpur. On that date at 11.43 AM he had examined Fayyaz, son of Riyaz Ahmad, aged about 30 years, who was brought by Saleem Ahmad and found the following injury:
"Firearm wound of entry 2.5 cm x 1.5 cm, (length of the injury could not be measured) 8.00 cm away from left nipple at 5 O" clock position. Blood was oozing from the wound. No blackening or tattooing present."
X-ray was advised."
In the opinion of the doctor, the injury was fresh and could have been caused by firearm at about 9.00 AM, which was kept under observation.
PW-4, Dr. Pankaj Kumar further deposed that on the same day at 11.55 AM, he further examined PW-3 Ragveer Singh, son of Jawahar, aged about 60 years, who was also brought by Saleem Ahmad and noted the following injury:-
"Firearm would of entry 0.5 cm x 0.5 cm skin deep on the right side on the front of neck 0.3 cm towards the middle of neck. No blackening or tattooing present. Blood was oozing X-ray was advised."
In the opinion of the doctor, the injury could have been caused by firearm on 12.3.2006 at about 9.00 AM, fresh and simple in nature.
PW-4, Dr. Pankaj Kumar had proved the injury report of Fayyaz as Ext. Ka-02 and injury report of Ragveer as Ext. Ka-3. PW-4, Dr. Pankaj Kumar was cross-examined, but could not be elicited to doubt his testimony.
PW-5, Dr. A.K. Verma had examined the injured Inam, son of Latif, aged about 50 years, who was brought by Constable C-456 Veersen of police station Nagal. He found the following injuries on the person of Inam:
"Firearm wound of 0.5 cm x 0.5 cm on the front right side of chest, 4 cm below collarbone"
The injury was kept under observation and x-ray was advised.
In the opinion of the doctor, the injury was fresh and was caused by firearm.
On the same day, at 5.10 PM, PW-5, Dr. A.K. Verma examined injured Sikandar, son of Irfan, who was also brought by Constable 456 Veersen of police station Nagal and found the following injury on his person:
"Scratch wound 0.5 cm x 0.5 cm on the left arm 12 cm below shoulder."
In the opinion of the doctor the injury was fresh and simple and was caused by friction. Medical reports of injured Inam and Sikandar were proved by PW-5, Dr. Pankaj Kumar exhibited as Exts. Ka-4 and Ka-5 respectively.
PW-6, Niranjan Singh, in his examination-in-chief deposed that on 12.3.2006, he was posted at police station Nagal as Constable. On that day after lodging the FIR at case crime No. 49 of 2006, under Sections 147, 148, 149, 307, 302 IPC against Raj Singh, he along with SI Rajendra Kumar and Constable Surendra Singh went to Government Hospital, Saharanpur where inquest report of the deceased Fayyaz Ali, son of Riyaz Ahmad was prepared by SI Rajendra Kumar and after getting the body sealed, the dead body was handed over to him and Constable Surendra along with necessary papers for the port mortem of the deceased. He further deposed that the dead body was in his custody and it was handed over to the doctor, who conducted the autopsy. After the autopsy, the body was handed over to the family members of the deceased. In his cross-examination, he had given explicit elucidation about the corpus.
PW-7, Dr. Surendra Singh in his examination-in-chief deposed that on 13.3.2006, he was posted as Senior Radiologist, SBD Hospital, Saharanpur. On that date, x-ray of injured Ragveer, aged about 60 years was conducted in his supervision vide x-ray plate No. 488 dated 13.3.2006. In the x-ray a small radio opaque shadow was found at the right side of neck. He proved the x-ray report as Ext. Ka-06 and x-ray plate as Exts. 01 and 02 duly signed by him.
PW-8, Dr. Arjun Singh has conducted the post-mortem examination on the body of the deceased Fayyaz. He has deposed in his examination-in-chief that on 12.3.2006, he was posted at District Hospital, Saharanpur in ENT Department. On that date at 08.20 PM, he had conducted the post-mortem examination on the body of the deceased, who was brought by Constable 682 Niranjan Singh and Constable Surendra Singh of police station Nagal. He further deposed that the age of the deceased was 30 years. He was of average built. Rigor mortis was present. Eyes and mouth were closed. Doctor found the following anti-mortem injury:
"Three stitched wound 4 cm of size at 5 O'clock position on the front of left side of chest, 8 cm away from left nipple. Chest cavity showing 2-1/2 litres of free and clotted blood. Mid and lower of left lung was badly damaged. One metallic bullet was recovered from left side of back chest from muscle just away from mid line, mid back 4 cm away from inferior angle of scapula. Direction of bullet was from front to back on left side chest. "
In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injury on 12.3.2006 between 9-10 AM. One metallic bullet recovered from the corpus was sent to S.S.P. in sealed cover through constable. He also proved the recovered bullet before the court, which was marked as Ext. Ka-03. In his cross-examination the post-mortem report of the deceased remain stood uncontroverted.
PW-9, Rohtash Singh is the writer of Chik FIR. In his examination-in-chief, he deposed that on 12.3.2006, he was posted as Head Constable at police station Nagal. On that date, on the basis of the written report of Saleem Ahmad, he prepared Chik FIR at case crime No. 49 of 2006, under Sections 147, 148, 149, 307, 302 IPC, which he proved as Ext. Ka-8 and the same was entered into GD vide Report No. 21 at 1.15 PM.
The evidence of PW-10, SSI Vijendra Singh, the investigating officer has already been discussed above. In his lengthy cross-examination, he recanted that he had made false entries in the GD and prepared fake charge sheet on the basis of investigation against the accused persons.
PW-11, Satish Kumar in his examination-in-chief has deposed that on 13.3.2006, he was posted as Constable Clerk at police station Nagal. After the recovery of firearm from the accused Raj Singh alias Jagta he prepared chik FIR at case crime No. 50 of 2006, which he proved as Ext. Ka-22, and the same was entered into GD vide Report No. 10 at 10.15 AM.
PW-12, SI Mahfooz Ali, in his examination-in-chief has deposed that on 12.3.2006, he was posted at police station Nagal. SI Rajendra Kumar and SI K.P. Singh were also posted with him. He further deposed that on 12.3.2006 on the basis of written report of the informant Saleem Ahmad, a case was registered at police station Nagal at case crime No. 49 of 2006. After the oath, departure of Shri SI Rajendra Kumar has been entered into GD, who prepared inquest report after nominating the (Panch) witnesses. SI Rajendra Kumar had also prepared Challan Lash, Photo Lash, letter to RI and letter to Chief Medical Officer, which this witness has proved as Ext. Ka-20 to 31. He further deposed that since SI Rajendra Kumar has been badly injured in road accident and investigating officer SI K.P. Singh was seriously ill, they could not come to Court to depose and in their place, he (PW-12 SI, Mahfooz Ali) has been examined to prove the papers prepared by SI Rajendra Kumar and SI K.P. Singh and the investigation conducted by both of them.
PW-12 also deposed that on 13.3.2006 after lodging of the FIR at case crime No. 50 of 2006 against Raj Singh, under Section 25/27 of the Arms Act, the investigation was conducted by SI K.P. Singh. As per the entries of case diary, SI K.P. Singh copied the FIR in GD on the basis of report lodged by SO Vijendra Singh and recorded the statement of Chik writer Clerk-Constable 141 Satish Kumar and accused Raj Singh. On 21.3.2006, SI K.P. Singh after recording the statement of SI Vijendra Singh, SI Balveer Singh, Constable Wasiuddin, Constable Surendra Saini, Constable Jasveer and Constable Veersen, also made arrest and inspected the spot from where the recovery was made and prepared site plan.
He deposed that on 12.5.2006, SI K.P. Singh produced the articles related to the case under the Arms Act before the District Magistrate and obtained permission of the District Magistrate to proceed against the accused persons. PW-12 SI Mahfooz Ali further deposed that on 22.3.2006, he was posted at police station Nagal. On that day, a case was registered against accused Vikram and Kushal Pal as case crime Nos. 56 of 2006 and 57 of 2006, under Sections 25/27 of the Arms Act, the investigation thereof was carried out by SI K.P. Singh, who copied the chik and recorded the statement of FIR writer Constable Satish Kumar, complainant SO Vijendra Singh, accused persons Vikram and Kushal Pal. On 24.3.2006, SI K.P. Singh also recorded the statements of other witnesses and prepared site plan on the pointing out of SO Vijendra Singh, Paper No. 6, which he proved as Ext. Ka-35. On the same day, SI K.P. Singh had submitted the charge sheet against the accused Vikram and Kushal Pal (Exts. Ka-36 and 37).
In this case injured Sikander has been examined as CW-1. In his examination-in-chief, CW-1 Sikandar has deposed that the incident was of 2006. on the date of incident he had gone to work in the field of Fayyaz. As soon as he plucked grass, five persons namely Jasveer, Omveer, Raj Singh alias Jagta, Kushal Pal and Vikram arrived there hurling abusive and vituperative words and said the land belonged to them and due to the edge of the river their land has been shifted and exhorted that they would be done to death, thereafter all the accused persons started firing, which hit him. Faiyyaz, Ragveer and Inam had also sustained injuries. Yakoob, Ayyub, Nisar, Mahboob and Sajid, who were also working in the field, rushed to the spot and they took him to the village. Fayyaz and Ragveer were later taken to the hospital by Saleem Ahmad. He further deposed that he along with Inam went to hospital. Thereafter his medical examination was done. His statement was recorded by the police in the hospital. He came to know about the death of Fayyaz in the hospital.
After the closure of prosecution evidence, the statement of the accused-appellants were recorded under Section 313 Cr.P.C, who denied the charges and claimed that they have been falsely implicated and that the prosecution witnesses have given false and tutored statement. The prosecution has set up a false and fabricated case on the basis of which the prosecution witnesses have given false and twisted statement.
Appellant Raj Singh has further stated that he is too old to walk and he has been falsely implicated in the present case at the behest of Sharafat, with whom litigation of appellant Raj Singh was pending.
Accused-appellant Vikram has stated that he has been falsely implicated in this case due to enmity.
Accused-appellant Jasveer has stated that prior to this occurrence, his father had been murdered and the accused in the murder case was closely related to the first informant Saleem and Sharafat, who have falsely implicated him with the help of the police.
Accused-appellant Kushal Pal has stated that as he is the nephew of Raj Singh, he has been falsely implicated in this case. All the accused above named filed their respective written statement after their examination under Section 313 Cr.P.C.
Learned Additional Sessions Judge, Saharanpur after hearing the learned counsel for the parties, evaluating and assessing the evidence on record, found that the incident had taken place with prior concert and preplanned manner; the testimony of the prosecution witnesses is fully corroborated with medical evidence, hence convicted and sentenced the accused-appellants as indicated herein above in the opening paragraph of the judgement.
Hence, this appeal.
Heard Shri Mahesh Prasad Yadav, learned counsel for the appellants and Shri Ashwani Prakash Tripathi, Learned Additional Government Advocate representing the State and perused the record.
Shri Mahesh Prasad Yadav, learned counsel for the appellants has made the following submissions:
1. The appellants have been falsely implicated in the present case due to previous enmity of the appellants with one Sharafat, who had close proximity with the informant and other prosecution witnesses.
2. No independent witnesses were examined although they were present at the time of incident.
3. Since, there is general role of firing against all the accused persons of causing death of Fayyaz as well as causing injuries to other persons, in such circumstances all of them cannot be made responsible for causing death of Fayyaz, who had sustained one firearm injury, hence the appellants are entitled to acquittal.
4. It is a case of mis-identification of the accused persons as in the FIR Vikram, son of Kishan has been mentioned, but later on, he was excluded by the prosecution and in his place Vikram, son of Udai has been dragged in. In the FIR the name of accused Rajveer son of Hardeva was mentioned, but subsequently this identity was disclosed as Omveer son of Hardeva, who had died during trial. There is great discrepancy in the statement of the prosecution witnesses. Further appellant Kushal Pal was not named in the FIR, but his name has been deliberately included in the array of the accused by the witnesses. Thus, the first informant was not sure about the participation of Vikram, Kushal Pal and Jasveer, which makes the entire prosecution story doubtful. The learned trial court ought to have discarded the prosecution case in toto.
5. Statement of the witness PW-2 Ayyub had been recorded under Section 161 Cr.P.C. after an inordinate delay on 10.4.2006 whereas the incident is said to have taken place on 12.3.2006 which is fatal to the prosecution as he has made veiled attempt to be an eyewitness of the incident. The testimony of the prosecution witnesses are fully unreliable and untrustworthy, yet the learned Trial Court erred in believing their testimony as cogent and trustful.
6. Report of the Forensic Science Laboratory dated 10.1.2007 belied the prosecution case as the empty cartridges recovered from the spot were not fired from the pistol recovered from the accused persons after their arrest.
7. SI K.P. Singh, who has investigated the case under Section 25 of the Arms Act against the accused-appellants was not competent to investigate the case being subordinate to PW-10, Vijendra Singh, who after recovery of firearm from the accused persons, lodged the report.
8. Last contention of Shri Mahesh Prasad Yadav, learned counsel for the appellants is that even if the prosecution case is taken to be true in its entirety, but keeping in view the single shot received by the deceased-Fayyaz and the injured Inam, Sikandar and Ragveer as allegedly fired by the appellants, who received simple injuries, the case will not traverse beyond the purview of Section 304 Part-II IPC as it is a case of sudden provocation without pre-concerted plan, hence their conviction under Section 302 read with Section 149 IPC is not proper.
There is no evidence to demonstrate that any of the appellant deliberately aimed at the deceased Fayyaz. The surviving appellants are languishing in jail since last more than ten years from the date of conviction though they were on bail during trial. Hence their conviction and sentence may be converted under Section 304-II and be reduced to the period already undergone.
Per contra, Shri Ashwani Prakash Tripathi, learned Additional Government Advocate supported the findings of the learned Trial Court and vehemently opposed the contentions of the learned counsel for the appellants by stating that the prosecution has discharged its burden by establishing the guilt of the appellants beyond the hilt. He further submitted that the judgement is well reasoned and calls for no interference by this Court.
Learned AGA also submits that there is no embellishment in the prosecution as the witnesses of fact have given vivid description of the genesis of occurrence in a very natural and articulative manner. The victim Fayyaz has died an unnatural death on account of injury caused by firing showing the intention of the appellants leading to the commission of the criminal act in furtherance of common object. The existence of common object can be inferred from the attending circumstances of the case and conduct of all the appellants. In the present case, the accused persons were present at the same time and at the same place and all of them shall be held to have shared common intention with common object to commit the crime. The determinative factor in this case is that crucial circumstance must precede the act constituting the offence.
The medical evidence is also compatible with the prosecution version, more so the testimony of injured witnesses is highly trustworthy and convincing to prove their presence at the time of occurrence. The appellants do not deserve any leniency and complacency .
The investigating officers have done investigation in a very fair and impartial manner and had collected clinching evidence showing the active role of the appellants in the commission of crime on a trivial issue.
The learned Trial Judge has dealt with all the circumstances mooted before him and has tested its consistency and probability at the judicial anvil. Hence, the conviction and sentence awarded to the appellants deserve to be upheld.
We have considered the rival submission advanced by the learned counsel for the parties and have perused the original record summoned for the disposal of the appeal.
So far as the first contention of the learned counsel for the appellants that they have been falsely implicated in the present case due to previous enmity of the appellants with one Sharafat, who has close proximity with the informant and the witnesses is concerned, it is to be noted that enmity between the accused-appellants and one Sharafat is admitted as is evident from the statement of the accused-appellants Raj Singh, Vikram and Jasveer recorded under Section 313 Cr.P.C, in which they have stated that they have been roped in the present case due to enmity with Sharafat over property dispute. No specific enmity of the accused-appellants with the informant PW-1 Saleem Ahmad has been alleged. However, to a suggestion put to the informant in the cross-examination, he stated that in the year 1993, accused Raj Singh has lodged a false case against as many as eleven persons including the informant and Sharafat, in which he has been granted bail. He further stated that in the year 1994 a case was also registered against the accused Raj Singh, Uday Singh and one Krishan. However, he stated that at present no litigation between him and accused-appellants is pending. In this case, there is eyewitness account coupled with injury report. To a specific suggestion, the informant PW-1, Saleem Ahmad has denied that Sharafat is related to him. Evidence of eye-witnesses PW-1, Saleem Ahmad, the informant of the case, PW-2, Ayyub and PW-3, Ragbeer is consistent that accused-appellants fired at the deceased and the injured persons.
We are not convinced with the contention of learned counsel for the appellants that on account of enmity the witnesses are not deposing the correct facts and framed a false case against the appellants leaving the real culprits to go scot free. Moreover, the witnesses were put to lengthy cross-examination, but nothing adverse could be elicited from their evidence to discard the prosecution case.
In Arjun and others Vs. State of Rajasthan, 1994 Suppl (1) SCR 616, it was argued before the Hon'ble Supreme Court that as the parties were on inimical terms and some criminal proceedings were pending between them even at that time when the occurrence took place. Further PW-1 in that case was the brother of the deceased and informant in that case was son of the deceased.
The Hon'ble Supreme Court brushed aside the argument of the learned counsel for the appellants therein and has held as under:
"We are not convinced by the aforesaid argument that either on account of animosity or on account of relationship, the witnesses did not divulge the truth but fabricated a false case against the appellants. It is needless to say that enmity is a double edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or on inimical terms with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the deceased."
In Hari Obula Reddy and others Vs. State of Andhra Pradesh, (1981) 3 SCC 675, a three Judge Bench of the Supreme court has observed thus:
" It is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony, nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence."
The Supreme Court in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, has held that the requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out at the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.
So far as the second contention of the learned counsel for the appellants that no independent witnesses were examined and only family members and relatives of the deceased have been examined in this case, is concerned, it has no leg to stand. In the instant case two categories of witnesses have been examined by the prosecution, one consisting of person closely related to the victim and the other consisting of witnesses, who have no such relation. Three witnesses of facts have been examined in this case, namely PW-1, Saleem Ahmad, PW-2, Ayyub and PW-3 Ragbeer. In addition to the aforesaid three eyewitnesses, injured Sikandar has also been examined as CW-I. PW-1, Saleem Ahmad, who is the first informant of the case, is the uncle of the deceased. Except, the first informant all the witnesses are not related to the deceased. All the eyewitnesses in their evidence have fully supported the prosecution version. Therefore, it cannot be said that only family members and relatives of the deceased have been examined in this case. Even otherwise the evidence of the eye witnesses cannot be discarded only on the ground of relation.
In State of Rajasthan Vs. Hanuman, AIR 2001, SC 282 held as under:
"The position is well settled that evidence of eye-witnesses cannot be discarded merely on the ground that they are relatives of the deceased. Normally close relatives of the deceased are not likely to falsely implicate a person in the incident leading to the death of the relative unless there are very strong and cogent reasons to accept such criticism."
In Shiv Ram Vs. State of U.P. 1998(1) SCC 149, Hon'ble Supreme Court has observed that nowadays it is a common tendency that no outsider would like to get involve in a criminal case much less in the crime of present magnitude. Therefore, it is quite natural that no independent witness will come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons but what is required in such a situation is that the Court must scrutinize the evidence of such witnesses with utmost care and caution.
Moreover, it is admitted that the incident took place in the mustard field of the informant, where the deceased was done to death and PW-3, Ragveer, CW-1 Sikander and one Inam have been injured in the firing and PW-2 Ayyub, who was working in his field came there after hearing the sound of fire and witnessed the occurrence. PW-3, Ragveer is the injured and an independent witness and his evidence cannot be discarded as tutored one. Interested-ness and relationship of the witnesses is not a factor to effect their credibility and over shadow the prosecution version. It is more often that a relation would not conceal and make allegation against an innocent person.
In Kartik Malhar Vs. State of Bihar, (1996)1 SCC 614, Hon'ble Supreme Court has held that ''a relative who is a natural witness cannot be regarded as an interested witness. The term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason.
In the case of Rana Pratap and others Vs. State of Haryana, AIR 1983 SC 680, Hon'ble Apex Court observed as under:
" Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."
The third contention of learned counsel for the appellants is that since, there are general allegations against all the accused of causing death of Fayyaz and as well as causing injuries to other injured and no overt act has been assigned to any of the appellants, the appellants are entitled to acquittal under Section 302 IPC.
It is to be noted that the appellants have been convicted under Section 302 IPC with the aid of section 149 IPC. For better appreciation Section 149 IPC is quoted below:
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence."
Unlawful assembly is defined and detailed in Section 141 of the Code of Criminal Procedure, which is quoted herein below:
" 141. Unlawful assembly- An assembly of five or more persons is designated an "unlawful assembly' if the common object of the persons composing that assembly is--
First-- To overawe by criminal force, or show of criminal force, (the Central or any State Government or Parliament or the Legislature of any State) or any public servant in the exercise of the lawful power of such public servant; or Second-- To resist the execution of any law, or of any legal process; or Third-- To commit any mischief or criminal trespass, or other offence; or Fourth-- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to endorce any right or supposed right; or Fifth-- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
This section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence. Under this Section a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly.
The first part of section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a pre-concert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149 Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part."
In Mizaji v. State of U.P., (1959) AIR SC 572, Hon'ble Supreme Court considered the scope of Section 149 IPC in the following words:
"The first part of section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149 Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part."
In Masalti Vs. State of U.P., AIR 1965 SC 202, a Constitution Bench of Hon'ble Supreme Court had observed that as under:
"Section 149 IPC makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."
In Yunis alias Kariya Vs. State of Madhya Pradesh, 2002(1) SCC 351, it was argued that no overt act is imputed to the appellant-Liyaquat and he was implicated only on the basis of Section 149 IPC. Hon'ble Supreme Court brushed aside the contention of appellant by holding that even if no overt act is imputed to a particular person, when the charge is under Section 149 IPC, the presence of the accused as part of unlawful assembly is sufficient for conviction.
On going through the above aforesaid decisions, it is clear that the important ingredients of an unlawful assembly are the number of persons involved and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. In the instant case there was clear cut allegations that on the date and time of incident when the informant was present in the mustard field along with his nephew Fayyaz-deceased, Raghveer alias Veera, Sikandar and Inam, at that time all the appellants, who were five in numbers reached at the spot armed with illegal weapons and started abusing the informant and others and thereafter with common intention to kill, all the appellants fired with their respective firearms which hit Fayyaz, Ragveer and Sikandar. PW-3, Ragbeer and CW-1, Sikandar in their evidence have also stated that when they were working in the field, all the accused came there and after abusing them, with common intention to kill them, they started firing at them. The investigating officer has also recovered 2 empty cartridges 315 bore and 3 empty cartridges 12 bore from the spot. In the incident three persons have received injuries, out of whom Fayyaz died due to serious injuries caused on his vital part. In the circumstances, it can very safely be hold that even if no overt act is assigned to a particular person, when the appellants have been charged under Section 149 IPC, the presence of the accused personsat the spot as part of unlawful assembly is sufficient for their conviction. Therefore, the contention of the learned counsel for the appellants that in the absence of any overt act, the appellants cannot be convicted under Section 149 IPC, has no merit.
Now coming to the next contention of learned counsel for the appellants that it is a case of mis-identification of the accused as in the FIR Vikram, son of Kishan has been named, but later on, he was excluded by the prosecution and in his place Vikram, son of Udai has been dragged in. To advance his submission, learned counsel for the appellants further submitted that Kushal Pal was also not named in the FIR, but his name has been deliberately included in the array of the accused by the witnesses. Learned counsel for the appellants also submitted that in the FIR Rajveer, son of Hardeva was mentioned, but subsequently in place of Rajveer, Omveer has been brought in as an accused, which makes the entire prosecution story doubtful.
We are not impressed by the submissions of the learned counsel for the appellants. The law is fairly well settled that first information report is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. It is only to set the criminal law in motion. It need not elaborate but should contain necessary allegations to constitute cognizable offences. When essential material facts are disclosed in the FIR that is sufficient. FIR is not a substantive piece of evidence and cannot be used for contradicting testimony of the eyewitnesses except that it can be used for the purpose of contradicting the maker of the report. Though the importance of naming the accused persons in the FIR cannot be ignored, but names of the accused persons have to be disclosed at the earliest possible opportunity. The question is whether a person was arrayed as accused by way of afterthought or not must be judged having regard to the entire factual scenario in each case. Therefore, non-naming one or few of the accused persons in the FIR is no reason to disbelieve the testimony of crucial witnesses.
In the FIR, the first informant, PW-1 Saleem Ahmad has nominated Raj Singh alias Jagta, son of Bharat, Vikram Singh, son of Kishan Pal, Uday's son, Jasveer and Rajveer, sons of Hardeva as accused. So far as identity of accused Raj Singh alias Jagta and Jasveer is concerned, there is no dispute. So far as accused Vikram is concerned, in the FIR Vikram, son of Kishan has been nominated, whose identity was later on changed as Vikram, son of Uday. To a specific suggestion, PW-1, Saleem Ahmad in his cross-examination has stated that Uday Singh has 2-3 sons, out of whom one is Vikram. He knows the name of Vikram. He does not know the names of other son of Uday. He knows the name of Vikram for the last about 4-5 years. In his statement he has specifically mentioned the parentage of Vikram as Uday, but in the FIR, he did not mention the parentage of Vikram. He further deposed in his cross-examination that Vikram, son of Kishan was not involved in the crime and his name has wrongly been mentioned in the FIR due to trepidation. In his first statement given to the police, he told the investigating officer that Vikram, son of Uday was involved in the crime. The first informant, Saleem Ahmad has further clarified that Vikram, son of Kishan was not involved in the crime as mentioned in the first information report. In the FIR Uday's son has been mentioned and the present accused Vikram is the son of Uday and therefore, it cannot be said that he has been dragged in the present case in place of Vikram, son of Kishan Pal.
So far as accused Kushal Pal is concerned, it is stated by the first informant, PW-1, Saleem Ahmad in his cross-examination that he has got the name of Kushal Pal written in the first information report. However, when he was confronted with the contents of the FIR, he stated that due to trepidation, his name might have been omitted. He further stated that in his statement recorded by the investigating officer under Section 161 Cr.P.C., he has mentioned the name of accused Kushal Pal. So far as accused Omveer is concerned, in the first information report Rajveer, son of Hardeva has been mentioned. In his cross-examination, PW-1, Saleem Ahmad has specifically mentioned that both the accused Jasveer and Rajveer are the sons of Hardeva.. To a specific suggestion, PW-1, Saleem Ahmad deposed that Rajveer is also known with the name of Omveer. He further deposed that his first statement was recorded by the investigating officer on the date of occurrence, whereas his second statement was recorded 3-4 days after the occurrence. PW-1, Saleem Ahmad also deposed in his evidence that in his second statement, which was recorded 3-4 days after the occurrence, he told the investigating officer that Rajveer is also known with the name of Omveer.
In view of the above, it cannot be said that some of the accused, who were not named in the FIR, have been dragged in later on.
The next contention of learned counsel for the appellant is that the statement of the witness PW-2 Ayyub has been recorded after an inordinate delay. In support of his contention, learned counsel for the appellants has relied upon the decision of Hon'ble Supreme Court in Badri Vs. State of Rajasthan, AIR 1976 SC 560.
The incident in question took place on 12.3.2006, whereas the statement of the witness PW-2, Ayyub was recorded on 10.4.2006. In his cross-examination, PW-10, SSI Vijendra Singh, the investigating officer of the case in his cross-examination has deposed that he tried to record the statement of the witness, PW-2, Ayyub, but he could not meet him. PW-2, Ayyub in his cross-examination has specifically deposed that the investigating officer met him about a month after the occurrence and recorded his statement. He further deposed that after two days of the occurrence, he went in Jamaat, where he stayed for about 25 days and after coming from Jamaat his statement was recorded on 10.4.2006. Therefore, it cannot be said that there was lapse on the part of the investigating officer in recording the statement of the witness , PW-2, Ayyub.
Badri Vs. State of Rajasthan (Supra) relied upon by the learned counsel for the appellants was a case in which there was difference of opinion between the two medical officer examined in that case. The trial court refused to accept the evidence of the first doctor and summoned as a court witness another doctor, who disagreed with the previous one and gave evidence before the Court after perusing the postmortem report. The Trial Court in his judgement has noted that the sole witness Patram was compelled to change his version a little because of doctor's opinion after the postmortem examination was held and in that background, it was held by Hon'ble Supreme Court as under:
"If a witness, who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction, such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony."
In the instant case as many as three eyewitnesses as well as one Court witness have been examined by the learned trial court. PW-3 Ragbeer and CW-1, Sikandar were injured witness. The evidence of all the witnesses was consistent in this case. Although they were subjected to long and lengthy cross-examination, but nothing could be elicited from them so as to make the prosecution story doubtful. Therefore, the case relied upon by the learned counsel for the appellants is not applicable to the facts and circumstances of the present case.
It is well settled that it is the quality of the evidence and not the quantity of the evidence, which is required to be judged by the court to place credence on the statement of the witnesses.
Now coming to the next contention of learned counsel for the appellant that the report of the Forensic Science Laboratory dated 10.1.2007 belied the prosecution case as the empty cartridges recovered from the spot were not fired from the pistol recovered from the accused after their arrest.
In the instant case, having regard to the ocular evidence adduced by the prosecution, there is no reason to discard the prosecution case that the injury as a result whereof Fayyaz was done to death and PW-3, Ragveer, C-W-1 Sikandar and Inam have been injured were caused by a firearm weapon. We are therefore, of the view that on the facts of the present case merely because as per the Serologist report dated 10.1.2007, the empty cartridges recovered from the spot were not fired from the pistol recovered from the accused after their arrest, is not fatal to the case of the prosecution. At the most, it can only said to be only an investigational lapse and the benefit thereof cannot be given to the appellants. It is a case of direct evidence which was committed by the appellants in a broad day light in the presence of the witnesses, who witnessed the occurrence with their naked eyes and deposed against the appellants and their testimonies were remain unshaken during the trial. Further the statement of the witnesses find full corroboration from the medical report of the injured persons as well as the post-mortem report of the deceased Fayyaz.
In Gurcharan Singh Vs. State of Punjab, AIR 1963 SC 340, Hon'ble Supreme Court held as under:
" It cannot be laid down as a general proposition that in every case where a firearm is allegedly used by an accused person, the prosecution must lead the evidence of a ballistic expert to prove the charge, irrespective of the quality of the direct evidence available on record. It needs little emphasis that where direct evidence is of such an unimpeachable character, and the nature of injuries, disclosed by the post-mortem notes is consistent with the direct evidence, the examination of ballistic expert may not be regarded as essential. However, where direct evidence is not available or that there is some doubt as to whether the injuries could or could not have been caused by a particular weapon, examination of an expert would be desirable to cure an apparent inconsistency or for the purpose of corroboration of oral evidence."
The aforesaid view was reiterated by Hon'ble Supreme Court in Vineet Kumar Chauhan Vs. State of Uttar Pradesh, (2007) 14 SCC 660.
The next contention of learned counsel for the appellants is that SI K.P. Singh, who has investigated the case under Section 25 of the Arms Act against the accused-appellants was not competent to investigate the case being the subordinate to PW-10, Vijendra Singh, who after recovery of firearm from the accused, lodged the report.
An investigation is an important segment of criminal procedure. The first step after a crime is committed or information received by a police officer about the commission of an offence is investigation. The purpose of investigation is to identify the offender and bring him for trial so as to punish him as per the provisions of the Code. The term "investigation" has been defined in section 2(h) of the Code of Criminal Procedure. Investigation includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate), who is authorized by a Magistrate in this behalf. Section 156 of the Code of Criminal Procedure confers powers on police officers to investigate cognizable cases. Section 156(1) of the Code provides that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII, whereas sub-section (2) of Section 156 of the Code specifically provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. In the Code of Criminal Procedure, any police officer posted at the police station has the competence to investigate the case within the limits of such police station and there is no bar for the police officer to investigate a case in which the first information has been lodged by his superior officer. Therefore, submission of learned counsel for the appellants that SI K.P. Singh, who has investigated the case under Section 25 of the Arms Act against the accused-appellants was not competent to investigate the case being subordinate to PW-10, Vijendra Singh, who after recovery of firearm from the accused lodged the report has no substance.
Last contention of Shri Mahesh Prasad Yadav, learned counsel for the appellants is that keeping in view the injuries received by the deceased-Fayyaz and the injured Inam, Sikandar and Ragveer caused by the appellants, the case shall not traverse beyond the purview of Section 304 Part-II IPC. It was argued that the incident in question took place on a sudden fight without any premeditation and the act of the appellants hitting the deceased was committed in the heat of passion upon a sudden quarrel without the appellants having taken undue advantage or acting in a cruel or unusual manner.
For better appreciation of the contention of learned counsel for the appellants, we would like to refer certain pronouncement of Hon'ble Supreme Court on the point insofar as the appellants are concerned.
In Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444, the Hon'ble Court held thus:
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality.
At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: :
i. nature of the weapon used;
ii. whether the weapon was carried by the accused or was picked up from the spot;
iii. whether the blow is aimed at a vital part of the body;
iv. the amount of force employed in causing injury;
v. whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
vi. whether the incident occurs by chance or whether there was any pre- meditation;
vii. whether there was any prior enmity or whether the deceased was a stranger;
viii. whether there was any grave and sudden provocation, and if so, the cause for such provocation;
ix. whether it was in the heat of passion;
x. whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
xi. whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."
In V. Sreedharan Vs. State of Kerala, AIR 1992 SC 754, the accused, as a result of provocation caused in the heat of passion upon a sudden quarrel, chased the deceased to some distance and then gave the single fatal blow, it was held that the whole incident was a continuous sequence. Hence the conviction of the accused was shifted from Section 302 to Section 304 Part-I IPC.
In Shanmugam Vs. State of Tamil Nadu, AIR 2003 SC 200, the accused stabbed the deceased over a petty quarrel with a spear in the abdomen and chest. The victim died after a week of septicaemia. The accused was punished under Part-I of Section 304 IPC.
In K. Ramakoteswara Rao Vs. State of A.P., 1986 Cr.L.J. 680, a sudden quarrel arose between the accused and the deceased and the deceased threatened the accused with dire consequences. The accused stabbed the deceased with knife. The Court convicted the accused under Section 304 Part-I IPC.
In Surinder Kumar Vs. Union Territory, Chandigarh, (1989)2 SCC 217, Hon'ble Apex Court held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. Hon'ble Supreme Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300, Hon'ble Supreme Court held thus:
"..... To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly." (emphasis supplied) In Ghapoo Yadav Vs. State of M.P. (2003) 3 SCC 528, Hon'ble Supreme Court held that in a heat of passion there must be no time for the passions to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case.
In Sukbhir Singh v. State of Haryana (2002) 3 SCC 327, the appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court, Hon'ble Supreme Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 of Section 300 IPC. In cases where after the injured had fallen down, the appellant did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. The Court observed:
"...All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 IPC. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner."
In Mahesh v. State of MP (1996) 10 SCC 668, where the appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by Hon'ble Supreme Court to be sufficient to bring the case under Exception 4 to Section 300 IPC.
In the light of the above pronouncements of Hon'ble Apex Court, we shall now proceed to consider whether case against the accused-appellants falls within the ambit of Section 302 IPC or Section 304 IPC.
In the instant case, general role of causing injuries to the deceased and the injured was assigned to all the appellants. The appellants were convicted under Section 302 IPC with the aid of Section 149 IPC.
The injury caused to the deceased-Fayyaz was firearm wound of entry 2.5 cm x 1.5 cm, 8.00 cm away from left nipple at 5 O" clock position. No blackening or tattooing was present. However, in the post mortem examination one metallic bullet was recovered from left side of back chest. Further, the autopsy report shows that no blackening and charring existed, which clearly goes to show that shot was fired from some distance. Therefore, it can be said to be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. Also as per the evidence of PW-1, Saleem Ahmad after arrival of the accused, some altercation took place between the accused and informant's side over the disputed land and thereafter all the accused with common intention fired at him. Surprisingly, the first informant Saleem Ahmad did not receive any injury in the incident. In his cross-examination, he has stated that the accused were firing from a distance of about 10-15 paces. PW-3, Ragveer in his cross-examination has also stated that there was distance of about 10-12 paces between the appellants and the injured. PW-4, Dr. Pankaj Kumar, who has examined the injury of deceased-Fayyaz in his cross-examination has stated that the injury was caused from a distance of about 6 feet as no blackening or charring was present around the injury. PW-8, Dr. Arjun Singh, who conducted autopsy, in his cross-examination has stated that the bullet recovered from the body of the deceased does not have any mark or sign of the company. To a Suggestion from the defence, Dr. Arjun Singh has specifically stated that the bullet recovered from the body of the deceased cannot said to be a bullet. The place of injury is also important. The deceased has received a firearm wound of entry 2.05 cm x 1.5 cm, 8 cm below the left nipple at 5 O' clock position. Since the fire was made from a distance, it does not suggest that the appellants want to eliminate the deceased and the injured. Moreover, the appellants have not repeated the shot. It is not the case of the prosecution that the accused after arriving at the spot started firing at the deceased and injured, but as stated by PW-3, Ragveer that some altercation ensued between the accused and the informant's side and thereafter, in a heat of passion, all the accused persons fired at the deceased and the injured persons. In the instant case as many as five persons have been nominated in the FIR. The investigating officer has recovered 2 empty cartridges 315 bore and 3 empty cartridges 12 bore and all the accused persons were assigned the role of firing on the deceased and the injured, which goes to show that all the appellants have fired only one shot and they did not repeat the shot. If their intention was to eliminate the informant's side, they must have fired more shot. Further, after the deceased fell down, any of the accused did not repeat any shot. In view of the above, it cannot be said that the appellants had acted in a cruel and unusual manner.
In addition to the deceased-Fayyaz, PW-3 Ragveer, CW-1 Sikandar and one Inam had also received injuries. PW-4, Dr. Pankaj Kumar, who had examined the injury of PW-3, Ragveer, in his cross-examination has admitted that he has not prepared supplementary report as the injury received by the injured Ragveer was simple in nature. PW-5, Dr. A.K. Verma, who has examined the injured Inam, in his cross-examination has stated that the injury received by Inam was superficial in nature. Moreover, the injury received by CW-1, Sikandar was scratch wound 0.5 cm x 0.5 cm on the left arm 12 cm below shoulder, which is also simple in nature. The cumulative effect of all these circumstances, in our opinion, should entitle the appellants to the benefit of Exception 4 to Section 300 IPC.
In view of the aforesaid legal proposition enunciated by Hon'ble Supreme Court and looking at the nature of injuries sustained by the deceased and the injured persons and the circumstances as enumerated above, the conclusion is irresistible that the death was caused by the acts of all the accused appellants done with the intention of causing such bodily injury as would likely to cause death and therefore the offence would squarely come within the ambit of Section 304 part-I I.P.C instead of Section 302 IPC for an offence of culpable homicide not amounting to murder.
In view of the above conspectus, the conviction of the surviving appellants Vikram, Kushal Pal Singh and Jasbir under Section 302 IPC cannot be sustained. This Court is reluctant in endorsing the life imprisonment. Accordingly, the conviction of the appellants under Section 302 IPC is set aside, instead, they are convicted under Section 304 Part-I IPC and sentenced to rigorous imprisonment of ten years and a fine of Rs. 25,000/- each. Out of the total amount of fine, Rs. 60,000/- (rupees sixty thousand only) shall be paid to the deceased family as reparation. In case of default in payment of fine, the appellants shall further undergo simple imprisonment of six month. The remaining part of the conviction and sentence of the appellants awarded by the learned trial court is affirmed.
Since, the appellants Vikram, Kushal Pal Singh and Jasbeer are in judicial custody for last more than ten years and have already completed the modified sentence of ten years, as such they shall be released forthwith unless wanted in any other case.
As, the conviction and sentence of the appellants Vikram and Kushal Pal Singh under Section 25 of the Arms Act as awarded by the learned trial court has not been challenged in the present appeal, hence do not call any any interference. Their conviction and sentence under Section 25 of the Arms Act is accordingly affirmed.
Resultantly the appeal is partly allowed with the aforesaid modification in the impugned judgement and order dated 08.2.2010 passed by the learned Additional Sessions Judge/Fast Track Court No. 3, Saharanpur.
Office is directed to transmit the lower court record with a copy of this order to the court concerned for compliance.
Dated: 01.3.2021 ishrat