Allahabad High Court
Kalyan @ Kallu @ Netrapal Singh vs State Of U.P. on 9 September, 2021
Equivalent citations: AIRONLINE 2021 ALL 2668
Author: Ajai Tyagi
Bench: Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 76 Case :- CRIMINAL APPEAL No. - 1351 of 2018 Appellant :- Kalyan @ Kallu @ Netrapal Singh Respondent :- State of U.P. Counsel for Appellant :- Veerendra Kumar Shukla,Ramendra Pal Singh Counsel for Respondent :- G.A. Hon'ble Ajai Tyagi,J.
1. This appeal has been preferred by the appellant-Kalyan @ Kallu @ Netrapal Singh against the judgment and order dated 22.11.2017, passed by learned Additional Sessions Judge, Court No.3, Shahjahanpur, in Session Trial No.1087 of 2003 (State vs. Kalyan @ Kallu @ Netrapal Singh) in Case Crime No.91 of 2003 under Section 304 IPC, Police Station-Katra, District-Shahjahanpur, whereby the appellant was convicted under Section 304 (2) and sentenced for 10 years' R.I. and also Rs.10,000/- fine and in default of fine two years simple imprisonment. The appellant has also been convicted under Section 27 Arms Act, 1959, and sentenced for three years imprisonment and Rs.2,000/- fine and in default of fine, six months simple imprisonment. All sentences were directed to run concurrently.
2. The brief facts of the case are that a written-report (Ex.ka1) was submitted in the police station by the informant Ramvir Sharma. It was stated in written-report that on 27.4.2003, there was marriage of a girl in the family of Rajendra Singh in Village-Chavarkhas, P.S.-Katra, where his father went for Erudition (Panditai). Accused-appellant Kalyan was also there from the side of bride. At the time of dwarchar, appellant was making fires from his licencee-gun, out of which one fire hit the shoulder of his father and he died on the spot. The occurrence took place at about 9:00 p.m. It is also stated that informant was on duty as Home-Guard in Bareilly and on getting the information of his father's death, he went to the police station on the next day and submitted the written-report. It is also stated that the occurrence was seen by many people of village, who were present in marriage.
3. On the basis of above written-report, Case Crime No.91 of 2003 was registered under Section 308 IPC against appellant-Kalyan s/o Gajraj Singh. The inquest report of deceased (Ex.ka3) was prepared on 28.4.2003 and injury on his right shoulder was found. Subsequently, dead-body was sent for postmortem, which was conducted in District Hospital Shahjahanpur on 29.4.2003 and antemortem injury of entry wound of fire-arm measuring 8cm x 7cm on the right side of chest below the shoulder was found. Antemortem injury was said to be the cause of death of the deceased-Rati Ram.
4. After completion of investigation, Investigating Officer submitted charge-sheet against appellant under Section 304 IPC and under Section 27 Arms Act, 1959. Learned Chief Judicial Magistrate, Shahjahanpur, committed the case to the court of session under Section 304 IPC and charge was also framed under Section 304 IPC by trial court. After completion of trial, the trial court convicted and sentenced the appellant under Section 304 (2) IPC and Section 27 Arms Act, 1959. Hence, this appeal.
5. Heard Shri Veerendra Kumar Shukla, learned counsel for the appellant, Shri B.A.Khan, learned AGA for the State and perused the record.
6. Learned counsel for the appellant argued that appellant has been falsely implicated in this case; there was no motive for the appellant to commit the crime as alleged by prosecution. He submits that appellant had no enmity with the deceased, therefore, there was no reason with him to commit such crime. Submission of counsel for the appellant is that three witnesses of fact are produced by prosecution. Ramvir Sharma (PW1) is the son of the deceased, but he was only informant and it was admitted case of prosecution that PW1 was not present on the spot at the time of occurrence. He was doing his duty as Home-Guard at Bareilly and on getting information of death of his father, he came from Bareilly on the next day and lodged the first information report. Therefore, PW1 has not seen any occurrence. Hence, his testimony cannot be believed on the point that appellant killed his father. It is next submitted that Smt.Neelu Singh (PW3) is another witness of fact, who has been produced by prosecution as eye-witness, but she has not supported the prosecution version in her statement and said that there was so many people, who were making 'Hersh-firing' and there were 40-50 fires in all. She does not know whose fire hit the deceased. Learned counsel submitted that PW3 was declared hostile by prosecution and in her cross-examination, she denied her statement under Section 161 Cr.P.C. also. Hence, prosecution does not get any support from the statement of PW3 also.
7. Learned counsel for the appellant also submitted that next witness of fact is Sanjeev Kumar (PW5), who is son of the deceased. He was not present at the place of occurrence. If he would have been present there and would have seen the occurrence, he must have been made witness in first information report because it was lodged by the elder brother, namely, Sanjeev Kumar (PW5). It was very natural to mention his name in the FIR, but it was not there in the FIR. Moreover, Investigating Officer did not record his statement under Section 161 Cr.P.C. and he was not made witness in charge-sheet also. Learned counsel for the appellant further submits that even if PW5 was produced as eye-witness, but he is not at all supported the prosecution case because his statement is contradictory. In examination-in-chief, PW5 has stated the case of 'Hersh-Firing' at about 9:00 pm at the time of Dwarpooja, but in his cross-examination, he has stated that at the time of occurrence Pooja was complete. Bride-side guests have gone from there. His father was sitting on chabootra. At that time, appellant came there and exhorted the deceased and pointing out the barrel of gun towards the chest of his father, he shoot him. Hence, he altogether changed the colour of prosecution case in his cross-examination, but trial court believed his testimony and on his sole testimony, convicted the appellant. It was grave error on the part of the trial court. Learned trial court failed to appreciate the evidence correctly and legally and unlawfully convicted the accused-appellant.
8. Learned counsel for the appellant emphasized that during trial, no charge under Section 27 Arms Act, 1959, was farmed, but trial court also convicted the appellant under Section 27 of Act, 1959, and sentenced for three years. He argued that if no charge is framed for any offence then conviction cannot be made for that offence. Lastly, it was contended by counsel for the appellant that maximum it can be the case of negligence under Section 304-A IPC, if court comes to the conclusion it to be an accidental firing.
9. No other argument was placed from the side of appellant and it was prayed to allow the appeal and quashing the conviction of sentence.
10. Learned AGA opposed the submissions made by learned counsel for the appellant and argued that appellant was named in first information report. Admittedly, firing was made at the time of occurrence by the appellant. Appellant had knowledge of the fact that by making such type of firing, somebody may get injured and injury could be proved fatal. There was injury to the deceased on his vital part. Learned AGA also submitted that although PW1-informant was not eye-witness and PW3 turned hostile, but PW5-Sanjeev Kumar has supported the prosecution case. He is eye-witness and present at the place of occurrence with his father-deceased. He has fully supported the prosecution version and named only appellant in his statement. Learned AGA said that appellant is the sole accused in this case, hence, there was no false implication and moreover, there was no reason for his false implication. It is also submitted by learned AGA that after the arrest of the appellant by the Investigating Officer, the gun used in commission of the crime was recovered from the appellant, which was his licencee-gun. The case is fully proved against the appellant and trial court rightly convicted him. Hence, appeal is liable to be dismissed.
11. First of all, this Court would like to consider the legal issue of conviction under Section 27 Arms Act, 1959. Perusal of record shows that factual position is that the case under Section 27 Arms Act was never committed to the court of sessions and no charge for that offence was framed by trial court. When there was no charge under Section 27 of the Act, 1959, it means that there was no trial of accused for the aforesaid offence. Even then trial court held the appellant guilty and convicted him under Section 27 of the Act, 1959. In this regard, trial court has stated in judgment that in charge-sheet, Investigating Officer has mentioned that offence under Section 304 IPC and Section 27 Arms Act, 1959, are fully proved against the accused-Kalyan. Hence, charge-sheet is being submitted against him. Trial Court has also stated that in spite of charge-sheet submitted against the appellant under Section 27 Arms Act along with Section 304 IPC, Chief Judicial Magistrate, Shahjahanpur, did not mention the offence under Section 27 Arms Act, 1959 in committal order dated 4.8.2003, which seems clerical error. It has further stated that trial court framed charge under Section 304 IPC only and not under Section 27 of Arms Act, 1959. It is also a clerical error. Trial court further mentioned in the judgment that accused was well aware of the fact that he was facing trial for killing the deceased by making fire with his licencee-gun, therefore, he was not prejudiced for not framing charge under the Act, 1959. Further, trial court took the recourse of Section 215 of Cr.P.C. and held that if there is error in charge or omission, it will not be material unless it has mislead the accused and consequently failure of justice is there. In this case, accused knew that it was a case for making fire by his licencee-gun, therefore, he was not mislead by omission as provided under Section 215 Cr.P.C. Trial court also took the recourse of sub section 2 of Section 221 Cr.P.C., which says that if it is proved that accused has committed other offence different from the charge framed against him, accused can be held guilty for that offence, athough the charge was not framed for that offence. For ready reference, Section 215 Cr.P.C. is quoted herein as under:
"Section 215 in the Code of Criminal Procedure, 1973
215. Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
12. The above provision states regarding error or omission in charge. Section 215 Cr.P.C. provides that if there is any error in stating the charge or particulars required and also provides if there is omission to state the offence or those particulars, then it would not be deemed material unless the accused was mislead by such omission or error or there was failure of justice due to that reason. But, in the case in hand, there is absolute absence of charge under Section 27 Arms Act, 1959, and total absence of charge is not omission. When there is complete absence of charge, question does not arise of any error or omission in charge. Furthermore, it is very pertinent to note that in this case, even the case under Arms Act, 1959, was not committed to the court of sessions, therefore, there was no committal and no charge was framed under Section 27 of the Act, 1959, yet the trial court convicted and sentenced the appellant for the offence, the accused was not charged with. It is very strange that trial court opined that total absence of charge is clerical error. Hence, this situation of total absence of charge cannot be said to be the omission in framing of charge.
13. Further, trial court has taken the recourse of Section 221 (2) Cr.P.C., which reads as under:
"Section 221 (1)....
(2) in the Code Of Criminal Procedure, 1973 (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub- section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
14. Sub-clause 2 of Section 221 Cr.P.C. provides for a different offence emerged from the evidence other than the offence for which charge is framed. Accused may be convicted of the offence, which he is proved to have committed, although he was not charged with it. This provision does not apply in this case as it is not the case in which after evidence any other offence is emerged apart from the offence for which charge was framed against the appellant. Hence, Section 221 (2) Cr.P.C. does not cover the opinion of trial court. Trial court has made wrong interpretation of Section 215 Cr.P.C. and Section 221 (2) Cr.P.C. in this regard.
15. Hence, conviction of appellant in total absence of charge under Section 27 of the Act, 1959, cannot sustain.
16. Now it comes the offence under Section 304 (2) IPC. Prosecution story is that on 27.4.2003, there was marriage of a girl in the family of Rajendra Singh in Village-Chavarkhas, P.S.-Katra, where his father went for Erudition (Panditai). 'Harsh-firings' were made there and out of which one fire by appellant hit the shoulder of informants' father-Ratiram, due to which he died. It is admitted case of prosecution that informant-Ramvir Sharma (PW1) was not there at the place of occurrence. He was on his duty as Home-Guard at Bareilly. On getting the information of death of his father, he came to the police station and lodged the FIR. So, PW1 is not the eye-witness of the occurrence. Prosecution has produced Neelu Singh (PW3) as eye-witness where she said in her statement that Ratiram Pandit came in the marriage. There was crowd of 400-500 people. In harsh-firing, somebody's fire hit the deceased and whose fire hit the deceased, she does not know because at that time, she was inside the house and there was 40-50 fires in all. This witness was declared hostile and nothing was extracted from her cross-examination by prosecution even she denied her statement under Section 161 Cr.P.C. So, this witness did not support the prosecution case. Sanjeev Kumar (PW5), who is son of the deceased has also produced as eye-witness. Perusal of record shows that his name is not mentioned in the first information report as eye-witness while FIR was lodged by his elder brother. Investigating Officer did not record his statement under Section 161 Cr.P.C. nor he was made witness in charge-sheet. Legal position is that if Investigating Officer has not recorded any statement under Section 161 Cr.P.C., it means his first version comes before the trial court only and there is no previous statement of the occurrence to contradict or corroborate, therefore, there is no occasion to believe the testimony of such witness. Moreover, in this case, the testimony of Sanjeev Kumar (PW5) is not at all reliable. Trial court based its finding of conviction only on the basis of testimony of PW5. It is not denied that conviction cannot be based on sole testimony, but if conviction is made on the sole testimony of the witness then his testimony should be wholly reliable. There should not be any scope of suspicion in his testimony. This is not the position in the present case. PW5 has stated in his examination-in-chief that he had gone in the marriage with his father and at 9:00 p.m. at the time of 'dwarchar', accused started harsh-firing and out of which, one fire hit his father, who died on the spot. But, in his cross-examination, PW5 changed the entire prosecution story and stated that at the time of occurrence, pooja was over, the bride-side guests had gone from there, his father was sitting on chabootra of Rajendra Singh, accused came there and said "pandit hosh mein aao, tumko goli maar denge". Subsequently, the accused turned the barrel of gun towards the chest of his father and shoot him. This was not at all the case of prosecution. Trial court committed gross-error in holding that it was only exaggeration. It is very important to note that further in his cross-examination, PW5 specifically denied the case of 'harsh-firing. He has stated, "mukhya pariksha mein harsh-firing ki baat galat hai. Kallu ne seedhe goli mari thi". In this way, PW5 absolutely resiles from the prosecution case and make contradictory statement in his examination-in-chief and in cross-examination. Such type of sole testimony of any witness cannot be relied at all. It is very strange that trial court has opined regarding the statement of PW5 that there was no material contradiction in his statement and his presence at the place of occurrence is not doubtful. It is very perverse appreciation on evidence of PW5. Trial court has miserably failed to appreciate the evidence of PW5 in right persepective.
17. Moreover, trial court has stated that PW5 has proved his presence on the spot and accused has not produced any evidence in rebuttal. In my opinion, this was the burden on prosecution to prove the presence of PW5 at the place of occurrence and it was not the burden on accused to make its rebuttal. There must be close scrutiny of the sole testimony of a witness if court is going to believe his testimony and holding the accused guilty on the basis of sole testimony, but trial court has not scrutinized the testimony of PW5 meticulously. The contradiction of statement of PW5 in his examination-in-chief and cross-examination is so grave and material that it goes to the route of the case and shatters the prosecution case. It is in the opinion of trial court that Ramvir Sharma (PW1) has told in his examination-in-chief that accused was making fire and his fire hit his father. Trial court has believed this statement of PW1. It is very shocking because it is admitted case of prosecution that PW1 was not present at the place of occurrence.
18. Hence, PW1-informant is not eye-witness, PW3 alleged eye-witness has turned hostile and has not supported the prosecution case and testimony of PW5 does not inspire the confidence at all. Therefore, trial court has erred in placing reliance on the testimony of PW5. Moreover, prosecution has failed to prove that the fire of appellant hit the deceased because it is the statement of Investigating Officer-Krishna Pal Mishra (PW4) that there were many people in the marriage and several persons were making fire there. Many empty cartridges were lying on the ground. Hence, as per the statement of Investigating Officer there were many empty cartridges at the place of occurrence, but only a single empty cartridge was picked up by the I.O. because the recovery memo of empty cartridges (Ex.ka7) shows that from the place of occurrence, one empty cartridges of .12 bore was recovered. This cartridge was fired from the licencee-gun of the accused. Prosecution has failed to establish how the above opinion was given by Sub-Inspector while preparing the recovery memo. I.O. (PW4) recovered the licencee-gun of the appellant at the time of his arrest. It proves that I.O. had recovered the gun, alleged to be used in the crime and empty cartridge from the place of occurrence, yet these were not sent to Forensic Science Laboratory for seeking ballistic report as there is no ballistic report on the record nor there is any document on record to show that gun and empty cartridge were sent for ballistic examination. Hence, prosecution has failed to establish that the recovered empty cartridge from the place of occurrence was fired from the gun, recovered from the appellant. In this way also, prosecution has failed to establish that the fire of appellant hit the deceased and caused his death.
19. Keeping in view the above discussion, this Court finds that the finding recorded by trial court on the basis of sole testimony of PW5 is erroneous and perverse. Trial court has committed gross-error in believing the sole testimony of PW5 and conviction should not have been based on such type of testimony, which could not support the prosecution case at all. Hence, the conviction and sentence of appellant cannot be sustained and the appeal is liable to be allowed.
20. Accordingly, the appeal is allowed.
20. Conviction and sentence of appellant under Section 304 (Part-II) of IPC and under Section 27 of Arms Act, 1959, is hereby set aside. He is acquitted of charges framed against him. Appellant's personal bond is cancelled and sureties stand discharged.
(Ajai Tyagi, J.) Order Date :- 9.9.2021 LN Tripathi