Allahabad High Court
Vijay vs State Of U.P. on 9 March, 2017
Bench: Ramesh Sinha, Krishna Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 30.01.2017 Delivered on 09.03.2017 Court No. - 36 Case :- CRIMINAL APPEAL No. - 1078 of 2014 Appellant :- Vijay Respondent :- State Of U.P. Counsel for Appellant :- Irshad Ahmad,Ashutosh,Awadhesh Kumar Srivastava Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 1735 of 2014 Appellant :- Beshesh Respondent :- State Of U.P. Counsel for Appellant :- Irshad Ahmad,Awadhesh Kumar Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Krishna Pratap Singh,J.
(Delivered by Hon'ble Ramesh Sinha,J.)
1. The present appeals have been preferred by the two appellants against the judgment and order dated 19.2.2014 passed by the Additional District & Sessions Judge, Court No.4, Moradabad in S.T. No.85 of 2006 (State Vs. Anand Singh Others), arising out of Case Crime No.815 of 2005, under Section 302 I.P.C., Police Station-Munda Pandey, District Moradabad, whereby both the appellants have been convicted and sentenced under Section 302 I.P.C. for life imprisonment and further a fine of Rs.30,000/- was imposed on them and in default of payment of fine, six months additional imprisonment.
2. Since, both the appeals arise out of a common judgment, hence, they are being decided by this common judgment.
3. The prosecution case as emerges out from the FIR lodged by the informant, namely, Bandu Singh who is father of the deceased is that; the son of of the informant, namely, Vijay Pal Singh was employed as Security Guard in District Moradabad. One Anand Singh, son of Hori Singh was a fair price shop dealer and he was not distributing the kerosene oil and sugar in proper manner to the villagers, hence, his son Vijay Pal Singh had made a complaint against Anand Singh and thereafter his fair price shop licence was suspended, due to which Anand Singh bore enmity with him. In the same year, Anand Singh was contesting the election of Gram Pradhan. The son of the informant was also contesting for the same and there was every likelihood that his son, namely, Vijay Pal Singh would win the said election. On 28.7.2005 at 7.30 p.m. when the son of the informant was going to Moradabad on duty, then near the Madasana turning, Anand Singh, son of Hori Singh, shot dead the deceased and his dead body was lying on the spot. Thereafter, the informant was going to lodge the FIR of the said incident but Anand Singh had stopped him on the way, hence, he could not go to the police station to lodge the FIR and the same was got registered on 29.7.2005. While the informant was going to lodge the FIR, he was accompanied by several persons of the village who had also gone along with him to the police station and he prayed that the FIR be registered and action be taken against Anand Singh. In the FIR, it has been further stated that one Raghuveer Singh, son of of Bandu Singh and Nanki Singh son of Baldev Singh of his village were also going along with the deceased and had seen the incident.
4. The FIR of the incident was lodged by Bandu Singh on 29.7.2005 at 9.00 a.m. which was registered as Case Crime No.815 of 2005, under Section 302 I.P.C., Police Station-Munda Pandey, District Moradabad and the scribe of the FIR was one Satyapal Singh. A copy of the written report has been marked as Ex.Ka.-6.
5. The investigation of the case was carried out and the accused Anand Singh was arrested by the police on 30.7.2005 and his confessional statement was recorded on 31.7.2005 and thereafter the names of Vijay and Beshesh, who are two real brothers, came into light, hence, police tried to arrest them but could not do so and both the appellants surrendered on 9.9.2005 before the Court below.
6. The Investigating Officer on the said date, i.e., 9.9.2005 took both the appellants on police remand and on their pointing out, a country-made pistol of 315 bore was recovered from their house. A copy of the fard recovery memo of country-made pistol and cartridge has been marked as Ex. Ka.-1 & Ka.2.
7. The inquest of the deceased was conducted on 29.7.2005 and thereafter the dead body of the deceased was sent for post mortem which was conducted on the same day by PW5-Dr. A.P. Gupta, which has been marked as Ex. Ka-3.
8. The investigating Officer interrogated the witnesses and recorded their statements under Section 161 Cr.P.C. and of the accused, prepared the site plan of the place from where the recovery of country-made pistol was made at the pointing out of the appellants, which has been marked as Ex. Ka.-7, Ka.-10 & Ka-11 respectively.
9. The charge sheet was submitted against the accused Anand Singh and two appellants before the competent court and the case was committed to the Court of Sessions, which framed the charges against the appellants on 18.3.2006 for the offence under Section 302 read with Section 34 I.P.C.
10. The accused denied the prosecution case and claimed their trial.
11. The prosecution in support of its case examined ten witnesses, i.e., PW1-Raghubir Singh and PW2-Nanki (eye witnesses of the occurrence), PW3-Raj Pal, witnesses of recovery of country-made pistol at the pointing out of appellants, PW4-Nanak Chand, the then Sub Inspector of the concerned police station who took both the accused on remand and recovered country-made pistol of 315 bore at their pointing out, PW5-Dr. A.P.Gupta who conducted the post mortem of the deceased and recovered the bullet from the chest of the deceased, PW6-Sompal Singh, S.I. who conducted the panchayatnama of the deceased, PW7-Vinod Kumar, Head Moharrir, PW8-Satyapal Singh, the scribe of the FIR, PW9- Chatrapati Singh, the Investigating Officer of the case & PW10-Dr. Dharampal Singh who conducted the inquest of the deceased.
12. The prosecution in support of its case has produced the documentary evidence such as recovery memo of country-made pistol and cartridge from both the appellants as Ex. Ka.-1 & Ka.-2, post mortem of the deceased Ex. Ka.-3, FIR Ex.Ka.-4, written report Ex. Ka.-6, site plan of the incident as well as recovery of weapon from the place of occurrence as Ex. Ka.7 & Ka-11, inquest report etc.
13. The informant of the case, namely, Bandu Singh died during the course of trial, hence, he was not examined by the trial Court.
14. The accused appellants in their statement under Section 313 Cr.P.C. have denied the prosecution case and have stated that they have neither committed the murder of the deceased nor any country-made pistol of 315 bore was recovered at their pointing out. The recovery which has been made is false one and false case has registered against them and they have been falsely implicated due to village party bandi and enmity.
15. PW1-Raghubir Singh, who is an eye witness of the occurrence, was examined by the trial Court and it has been stated by him that he is the real brother of the deceased and on the date of incident he along with his uncle, namely, Nanki was going for some personal work to Madasana and while they were going, the deceased had also come on his bicycle as he was going to his duty as usual. He further stated that when the deceased reached the Madasana turning near the field of one Rajendra Singh, he along with his uncle who were following him from the back, saw that the accused appellants, namely, Beshesh and Vijay who had surrounded his brother, namely, Vijay Pal and stated that they would destroy him, uttered to kill him and both of them fired shot from their respective country-made pistols who received injuries and had fallen from his bicycle and fell into pit. They saw the said incident in the torch light which was being carried by them. He further stated that on the alarm raised by them and due to fire shot, several persons of the nearby village had gathered and his father had also arrived there. On seeing them, the accused persons threatened them and managed their escape good. He further stated that all the three accused were known to him as they belong to his village and thereafter his father had lodged the FIR of the incident and got it written by one Satya Pal. He further stated that prior to the seven years ago, there was some dispute between the two families but the matter was compromised between them. His family had no ill will against the family of the appellants but they kept some malice in their mind, hence, the accused due to the said malice and enmity have shot dead the deceased. He further stated that his family did not have any enmity with Anand Singh. He denied the presence of the accused Anand Singh at the spot and further stated that he has not disclosed to any one about participation of Anand Singh in the crime in question. On the day of incident due to fear of the accused, they did not go to police station to lodge the FIR and on the next day his father along with other villagers had gone to lodge the FIR and he remained present the whole night near the dead body of the deceased. As the said witness has not supported the prosecution with respect to accused Anand Singh, hence, he was declared hostile, but he only deposed against the two appellants.
16. In his cross-examination, he has admitted the fact that his father had lodged the written report but the said report was not written in his presence and further whose name has been mentioned in the FIR was not known to him. According to him, the name of Anand Singh was not mentioned in the written report. In the G.D. of lodging the FIR, his name has been mentioned as he had accompanied the informant at the time of lodging of the FIR and he could not state that as to how it has been mentioned. He admitted in his cross-examination that the co-accused along with the appellants had remained in jail together.
17. He further admitted that the Investigating Officer recorded his statement under Section 161 Cr.P.C. and in his statement the name of Anand Singh has been mentioned, but how the same has been mentioned, he could not say anything about the same. He further stated that he has only seen the appellants at the place of occurrence who fired shot at the deceased and denied the suggestion that he has colluded with accused Anand Singh and has not given evidence in order to shield him.
18. The said witness in his cross-examination has further admitted that there was a criminal case going on between his family and the family of the appellants for the offence under Sections 307, 326 I.P.C. in which the hand of one Pappu who was brother of appellant-Beshesh was cut and his parents also received injuries. In the said case, his father-Bandu Singh, uncle-Nanki and his brother-Lallu @ Rajendra were the accused. The deceased Vijay Pal was not an accused in the said case. In the said case the said witness remained in jail.
19. He further stated that torch of which light he had seen the incident has been shown to the Investigating Officer and the said torch is not with him as he has handed over the same to the Investigating Officer. The whole night he was present along with his father, uncle and other persons of the village near the dead body and were safeguarding it. He further stated that at the place of incident his father had made query about the incident from him and he told him that the two appellants had shot the deceased. He denied the suggestion that he has not seen the incident and further he was falsely deposing against the accused appellants.
20. Similarly, PW2-Nanki who is uncle of the deceased and eye witness of the occurrence has reiterated the statement given by PW1 who is brother of the deceased regarding the appellants and further denied the prosecution case against the accused Anand Singh.
21. The said witness admitted the fact that he along with his son, namely, Lallu Singh @ Rajendra and his brother Bandu Singh, the informant of the case, were accused in a case under Section 307/326 I.P.C. and in the said case his son Lallu Singh @ Rajendra remained in jail for about four months.
22. He further admitted in his cross-examination that the police had arrived in the morning at the place of occurrence and he informed the police about the incident. He stated that Vijay and Bishesh had shot dead the deceased, namely, Vijay Pal. He further stated in his cross-examination that he does not know that how the name of Anand Singh has been written by the Investigating Officer in his 161 Cr.P.C. statement as it was the accused appellants who shot dead the deceased.
23. He further stated that he was also going to village Madasana due to some personal work to Pradhan of the village. He further stated that he also saw the incident in the torch light. He stated that he has not brought the torch in which he has seen the incident. He also denied the suggestion that he has not seen the incident. He further denied the suggestion that due to the enmity, he is falsely deposing against the appellants.
24. PW3-Rajpal Singh is an independent person of the village and he has been produced by the prosecution to prove the recovery of weapons which were recovered at the pointing out of the appellants from their house but he has not supported the recovery made from the two appellants and has been declared hostile by the prosecution.
25. PW4-Nanak Chandra, Sub Inspector of the concerned police station Munda Pandey at the time of incident. He stated that on 9.9.2005 he had taken the appellants to police custody remand and at their pointing out 315 bore country-made pistol along with cartridge, which was hidden by them, were recovered from their house and he has proved the recovery memo as Ex. Ka.-1 & Ka.-2 respectively. He further denied the suggestion that no such recovery was made at the pointing out of the two appellants.
26. PW5- Dr.A.P.Gupta, who was the then Senior P.N.T.,Surgeon in District Hospital at the time of incident, has stated that he conduced the post mortem of the deceased on 29.7.2005 at 3.15 p.m. whose dead body was brought in sealed cover by Constable No.480 Vinod Kumar and Constable Tulsi Prasad of police station Munda Pandey and who have identified and sealed. The following injuries were found on the person of the deceased:
1. "One gunshot wound of entry of size 2.5 cmx 2 cm. skull cavity deep blackening and tatooing over face and nose in area of 6.5 cm. x 5.5 cm. located on right side of nose and medial angle of right eye ball with inverted margin right eye ball lacerated.
2. Gunshot wound of exit of size 3.5. cm x 3 cm.x skull cavity deep with inverted margin located on right external ear upper part.
3. Gunshot wound entry of size 3cmx 2.5 cm. with inverted margin located on right side chest 5.5. cm. above nipple of breast with inverted margin.
On post-mortem examination continuity between injury no.1 and 2 present.
27. It was stated by him that on the internal examination of the head of the deceased, right parietal bone was found to be fractured. The 3rd, 4th & 5th ribs of the chest were also cut and lacerated. He recovered yellow bullet from the 4th & 5th rib of the deceased which was sealed by him and was given to the custody of Constable to be handed over to the S.S.P., Moradabad.
28. In the opinion of the doctor, the deceased died on account of ante-mortem injuries and duration of death was one day old. He opined that the possibility of the death of the deceased could be on 28.7.2005 at about 7 p.m. and he proved the post mortem report as Ex. Ka.-3.
29. In his cross-examination, he has further stated that possibility of death could be taken place on 28.7.2005 at about 9.10. p.m. and the deceased had taken his food 2-3 hours prior to the incident.
30. PW6-Sompal Singh, the then Sub Inspector, has stated that he had accompanied the S.O. Nanak Chandra (PW4) and taken the appellants to the police custody remand and at their pointing out, a country-made pistol was recovered from their house. He also denied the suggestion that statements of the appellants were not taken in his presence prior to the recovery made from them. He has further denied the suggestion that no recovery was made from the pointing out of the accused.
31. PW7-Vinod Kumar, the then Head Moharrir of the concerned police station. This witness before the trial Court has proved the Chick FIR, G.D., Ex. Ka.-4 & Ka-5, written report Ex. Ka.6 on the basis of which the FIR was lodged by the informant who died.
32. He has also denied the suggestion that FIR was anti-time and further denied the suggestion that written report Ex.-Ka-6 was written at the dictation of the police.
33. PW8-Satyapal Singh, son of Nanki Singh, is the scribe of the FIR and he has proved the written report Ex. Ka.-6. He stated before the trial Court that what the informant Bandu Singh had dictated him, he had written the same and thereafter read over the same to the informant and after hearing the same he put his thumb impression on the same.
34. This witness in his cross-examination has stated that written report was lodged at the police station and police personnel were also present there. He returned back to his house at 9 a.m. and informant was his uncle/tau who had taken him to the police station.
35. PW9-Chhatrapati Singh, who was the then Station Officer of the concerned police station, has stated that the investigation of the FIR was entrusted to him. He recorded the statements of the witnesses, prepared the site plan of the place of incident, made spot inspection, prepared recovery memos of blood stained cycle. He further stated that he recorded the statements of Rabhubir Singh and Nanki on 30.7.2005 under Section 161 Cr.P.C. and arrested the accused Anand Singh on 31.7.2005 and recorded his statement. On 4.8.2005 he also recorded the statements of witnesses of panchayatnama.
36. He further stated that he interrogated the accused Vijay and Beshesh who were in jail and further recorded their statements after taking permission. Further, on 9.9.2005 taken the two appellants on police custody remand and on their pointing out recovered two country-made pistols of 315 bore and further proved the recovery memo Ex. Ka.-1 and Ka.-2 and stated that recovery memos were written by PW4-Nanak Chandra, Sub Inspector, and after concluding the investigation he submitted charge sheet on 2.10.2009 which was marked as Ex. Ka.-12.
37. He further proved the material exhibit as Ex. Ka.-2 and Ka.-3 and further 63 cartridges and one bullet which was sealed in another bundle and identified the said bullet to be the same which was recovered from the place of occurrence and proved the same as material Ex. Ka.4 and Ka.11.
38. He further in his cross-examination has admitted that he has arrested the accused Anand Singh and recorded his statement and in his confessional statement the name of appellants, namely, Vijay and Beshesh came into light. He admitted the fact that he did not make recovery memos of the torch as he had not taken the same in his custody nor were given. He further admitted the fact that he recorded the statements of witness Rabhubir Singh under Section 161 Cr.P.C. in which he stated that accused Anand Singh had murdered the deceased. He further stated that it is correct that the eye witness Raghubir had given him the statement that his father had made query at the place of occurrence to what he has witnessed and he had told his father that it was the appellants who have murdered the deceased.
39. He further admitted the fact that he did not record the statements of the two appellants regarding disclosure of the recovery of the country-made pistols. He further admitted the fact that no signature or thumb impression of the appellants was taken on the seal of the country-made pistols, but he denied the suggestion that no recovery was made at the pointing out of the appellants and recovery is fictitious one and further the false charge sheet has been submitted against them.
40. PW10-Dharam Pal, Sub Inspector who was posted at the concerned police station at the time of incident. He has stated that the FIR of the incident was registered at the concerned police station and he also accompanied the Chhatrapati Singh, the then S.O. at the place of occurrence and prepared the inquest and proved the inquest report Ex. Ka.-13 which was under his hand writing and signature.
41. In his cross-examination, this witness has admitted that Nanki is one of the witness of panchayatnama and at time of preparation of panchayanana he did not disclose the name of any of the accused except Anand Singh. He also stated that he was not the Investigating Officer of the case, hence, he did not record the statements of any of the witnesses and he was not aware that Nanki was witness in the FIR or not. He further denied the suggestion that the FIR was not present before him at the time of inquest.
42. Heard Sri Awadhesh Kumar Srivastava and Sri Ashutosh, learned counsel for the appellants, Sri Ashish Pandey, learned AGA for the State.
43. It has been argued by learned counsel for the appellants that the FIR of the incident was lodged by the father of the deceased, namely, Bandu Singh against the accused Anand Singh only and when the said accused was arrested by the police on 30.7.2005, in his confessional statement the name of the present two appellants, who are real brothers, have come into light. He further argued that the informant of the case though is not an eye witness of the occurrence but the FIR which was lodged by him against the accused Anand Singh on the ground that he was having enmity with the deceased and had strong motive to commit the murder of the deceased. He further contended that the informant died during the pendency of trial and the two eye witnesses, namely, Rabhubir and Nanki, who are real brother and uncle of the deceased respectively, were having enmity with the appellants, they colluded with accused Anand Singh and during the course of trial they for the first time before the trial Court disclosed the participation of the two appellants in the incident and stated that it was the two appellants who have shot dead the deceased on the date and time of the incident with their country-made pistols, who died on account of firearm injuries.
44. He further contended that though the two eye witnesses, i.e., PW1 and PW2 remained with the dead body of the deceased the whole night along with the informant of the case, namely Bandu Singh and PW1 also accompanied the informant to the police station for lodging of the FIR but he did not disclose the participation of the two appellants and further PW2 who was witness of panchayatnama/inquest of the deceased also did not disclose the involvement of the two appellants and they subsequently deposed against the appellants before the trial Court.
45. He next argued that PW2 who is uncle of the deceased and father of PW1 was accused in a case under Section 307/326 I.P.C. lodged by the family members of the appellants, in which brother of the appellants received injuries and in the said case son of PW2, namely, Lallu Singh @ Rajendra had also remained in jail for about four months and due to the said inimical relationship with the family of the appellants they have been falsely implicated in the present case.
46. He next submitted that the appellants on coming to know about the involvement in the present case have surrendered before the court concerned on 9.9.2005 and recovery of country-made pistol at their pointing out and live cartridges from their house is absolutely false, frivolous and baseless as no such recovery was made from them.
47. Moreover, an independent person of the recovery, i.e., PW3 Rajpal Singh did not support the recovery made from the appellants and stated that the police got his thumb impression/ signature on some blank papers and other witnesses of recovery are police personnel, hence,the recovery is not reliable piece of evidence and conviction of the appellants by the trial Court stating that there was evidence against them under Section 25/27 of the Evidence Act is not in accordance with law.
48. He has further pointed out that the Investigating Officer of the case in his cross-examination before the trial Court has admitted that no disclosure statement of the recovery was recorded by the Investigating Officer, hence, the said recovery is liable to be disbelieved on this ground alone.
49. He further argued that presence of the two eye witnesses, namely, Rabhubir and Nanki at the place of occurrence is highly doubtful as there was no occasion for them to be present at the place of occurrence and witnessed the incident as it was the deceased who was going on his duty at Moradabad in the evening and he was murdered. Though the FIR was registered against the accused Anand Singh by the informant, who was father of the deceased and after his death the said two eye witnesses in collusion with the accused Anand Singh, who had strong motive to commit the murder of the deceased, turned hostile against him and falsely implicated the two appellants and the trial Court also only on their testimony has convicted the appellants which is liable to be set aside and the appellants be acquitted.
50. Learned AGA on the other hand, has vehemently opposed the arguments advanced by learned counsel for the appellants and has stated that there there are two eye witnesses, i.e., PW1 and PW2 who have supported the prosecution case against the appellants coupled with the recovery made of the country-made pistol at their pointing out in the police custody shows their participation in the incident and finding recorded by the trial Court in convicting and sentencing the appellants does not suffer from any illegality or infirmity, hence, the appeal of the appellants is liable to be dismissed by this Court.
51. Considered the rival submissions advanced by learned counsel for the parties and perused the record.
52. It is an admitted fact that in the FIR which was lodged by the informant, namely, Bandu Singh, only accused Anand Singh was named for committing the murder of the deceased, namely, Vijay Pal Singh. It is true that the informant was not the eye witness of the occurrence but PW1 and PW2, who were the alleged eye witnesses of the occurrence, in their statements recorded under Section 161 Cr.P.C. only named the accused Anand Singh for committing murder of the deceased, but as the informant Bandu Singh died during the course of trial, the alleged eye witnesses who were named in the FIR by the informant to have witnessed the incident, for the first time before the trial Court disclosed the participation of the two appellants in the crime and for murdering the deceased with country-made pistol.
53. The name of the two appellants came into light in the confessional statement of accused Anand Singh who was arrested by the police on 30.7.2005 and after coming to know about their involvement in the present case the present two appellants, who are real brothers, surrendered before the Court concerned on 9.9.2005 and were sent to jail.
54. From the evidence of PW9-Chhatrapati Singh who was the Investigating Officer of the case, has stated that he interrogated the appellants, namely, Vijay and Beshesh in jail and recorded their statements under Sections 161 Cr.P.C. and took them on police remand on 9.9.2005, got the recovery of two country-made pistols of 315 bore at their pointing out from their house. Besides the police personnel who are the witnesses of recovery of country-made pistol, there appears to be one independent witness, namely, Rajpal Singh-PW3 in whose presence recovery was made has not supported the recovery made from the appellants of country-made pistol and has turned hostile.
55. From the evidence of PW1 who is real brother of the deceased, it is evident that he too in his statement recorded under Section 161 Cr.P.C. did not disclose the involvement of the two appellants for murdering the deceased except the accused Anand Singh and he before the trial Court stated that he has witnessed the incident along with PW2-Nanki who is his uncle as well as of the deceased in the torch light as they came behind the deceased while he was going to Moradabad on his duty on the date and time of the incident. It further appears from his evidence that his father, namely, Bandu Singh along with PW2-Nanki and Lallu Singh @ Rajendra who was the son of PW2 were also involved in a case under Section 307/326 I.P.C. with respect to an incident in which the hand of one Pappu who was brother of the appellant, namely,Beshesh was cut and his parents also received injuries, on account of which this witness was highly inimical to the family of the appellants and after the death of the informant, he colluded with the accused Anand Singh who was named in the FIR, turned hostile and did not support the prosecution case before the trial Court against the accused Anand Singh, who was acquitted on account of the said fact.
56. The reason given by the PW1 to be present at the place of occurrence, as it appears from his evidence that he had gone for some personal work to the village Madasana to meet the Pradhan of the said village, also appears to be doubtful.
57. Similarly, PW2-Nanki, who is uncle of the deceased and alleged eye witness of the occurrence, has also turned hostile against the accused Anand Singh and only supported the case against the appellants. From his evidence, it is also apparent that he too did not name the appellants in his statement recorded under Section 161 Cr.P.C. and for the time he disclosed the participation of the appellants in the present incident before the trial Court for shooting the deceased by the appellants with countrymade pistol and further stated that he had witnessed the incident while he was going with PW1 to meet the Pradhan of the village Madasana for some personal work.
58. This witness has also admitted the fact that a case under Section 307/326 I.P.C. was going on between the family of the appellants and his family in which he along with his son, namely, Lallu Singh @ Rajendra and his brother, namely, Bandu Singh were accused as in the said incident hand of one Pappu who was brother of the appellant-Beshesh was cut and his parents also received injuries and his son Lallu Singh @ Rajendra remained in jail for about four months.
59. From the evidence of this witness, it is admitted that he remained with the deceased at the house of the informant throughout night along with PW1 but when the informant lodged the FIR the name of accused Anand Singh was only mentioned though he has stated that he was not present when the FIR of the incident was lodged by the informant.
60. The contention of learned counsel for the appellants that though the FIR was lodged only against the accused Anand Singh by the informant Bandu Singh and PW1 and PW2 who are eye witnesses of the occurrence and their names have been mentioned by the informant to be an eye witness of the incident, but after the death of the informant who is father of the deceased, they colluded with the accused Anand Singh who had a strong motive to commit the murder of the deceased as has been mentioned in the FIR and falsely implicated the two appellants who are real brothers because of enmity with them as father of PW1, namely, Bandu Singh as well as son of PW2, namely Lallu Singh @ Rajendra were involved in a case under Section 307/326 I.P.C. in which the brother of the appellant-Beshesh received injuries at their hands appears to have substance.
61. Moreover, the presence of the said two eye witnesses at the place of occurrence also appears to be doubtful as the deceased was going on his bicycle on duty as he was employed as Security Guard at Moradabad and the two witnesses came from behind the deceased and witnessed the incident, does not appear to be true as they had only made bald statement that they were going to Madasana to meet the village Pradhan for some personal work.
62. The evidence of PW1 and PW2 is wholly unreliable for convicting and sentencing the appellants because of their inimical relationship with the family of the appellants. Moreover, they disclosed the involvement of the appellants for the first time in the Court and they kept mum during the course of investigation, though it has been stated by them that they had disclosed the involvement of the appellants for murdering the deceased to the informant but the explanation given by them that how the name of the accused Anand Singh has been mentioned in their 161 Cr.P.C. statements by the Investigating Officer they cannot state reason about the same.
63. In this regard, the evidence of PW-9 Chatrapati Singh, the Investigating Officer of the case, is to be taken note of as he in his cross-examination has stated that he arrested the accused Anand Singh and recorded his statement and in his confessional statement for the first time the name of the appellants came into light. He further stated that in 161 Cr.P.C. statements of PW1 and PW2, only the name of accused Anand Singh was disclosed by them for committing murder of the deceased.
64. In this regard, it is also to be noticed that PW2 is also an eye witness of the inquest of the deceased and remained present at the time of inquest proceedings but then too he did not disclose the involvement of the appellants in the crime.
65. Moreover, PW1 also accompanied the informant to lodge the FIR at the concerned police station along with the other villagers, as is evident from the G.D. of lodging of the FIR, in which it has been stated that he was accompanying the informant and to say that in his presence the FIR was not lodged also appears to be suspicious about his conduct as he in his statement has stated that he had disclosed the name of the appellants to the informant for their being involved in the murder of the deceased but how the name of accused Anand Singh was mentioned he is unaware of the same.
66. So far as recovery of country-made pistol at the pointing out of the appellants from their house are concerned, it has been argued that the said recovery is false one as the appellants themselves have surrendered on 9.9.2005 and were sent to jail. The recovery which was made by the police by taking the appellants on remand appears to be not in accordance with law as no disclosure statement was made by the accused while in police custody for getting the weapons recovered, which is also evident from the evidence of PW9 Chhatrapati Singh who has stated that he did not record the statements of the appellants regarding disclosure of the recovery of country-made pistol and independent witness of recovery PW3, namely, Rajpal Singh has also turned hostile and did not support the prosecution case as it has been stated by him that the police personnel has taken his signature on blank papers and thereafter prepared the recovery memo.
67. Moreover, the recovery which has been made at the pointing out of the appellants also appears to be not convincing one as the testimony of the said two eye witnesses, as has been held above, does not transpire confidence and the recovery which has been made also appears to be doubtful one as the independent witness of recovery, i.e., PW3 has also not supported the recovery and turned hostile and besides him there appears to be only the police witnesses and though the trial Court has given some reasons for believing PW3 who subsequently turned hostile further does not compel us to believe the recovery as the naming and involving the two appellants who are real brothers because of their inimical relationship with the family of the two eye witnesses is an afterthought, as has been argued by learned counsel for the appellants that after the death of the father of the deceased they have colluded with the accused Anand Singh.
68. The two eye witnesses PW1 and PW2 have stated that they have witnessed the incident from a torch light and further stated that they have handed over the torch to the Investigating Officer but the same has been denied by the Investigating Officer PW9 in his evidence who has stated that no such torch was given to him, hence, he did not made any recovery memo of the same.
69. The finding recorded by the trial Court in convicting and sentencing the appellants on the basis of evidence of PW1 and PW2 coupled with the recovery of weapons at the pointing out of the appellants is not correct as it is apparent from the foregoing discussions that the evidence of the said two eye witnesses of the occurrence is not worthy of credence, hence, it is unsafe to uphold the judgment and order of the trial Court for conviction and sentence of the appellants.
70. It further transpires that the trial Court has only convicted the appellants under Section 302 I.P.C. though the charge was framed under Section 302 read with Section 34 I.P.C., hence, on this count also the impugned judgment and order suffers from illegality and infirmity.
71. Thus, in view of the foregoing discussions the impugned judgment and order dated 19.2.2014 passed by the trial Court convicting and sentencing the appellants is hereby set aside. Both the appellants are acquitted of the charge. The appellants are stated to be in jail, they shall be released forthwith unless otherwise wanted in any other case.
72. Accordingly, the appeals stand allowed.
73. The Registrar General of this Court is directed to send a certified copy of the judgment to the Sessions Judge, concerned for necessary information and its compliance.
(Krishna Pratap Singh, J.) (Ramesh Sinha, J.)
Order Date :-09.03.2017
NS.