Allahabad High Court
State Of U.P. vs Harveer Singh @ Harru & Others on 13 March, 2012
Author: Devendra Pratap Singh
Bench: Devendra Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 55 Case :- GOVERNMENT APPEAL No. - 6303 of 2011 Petitioner :- State Of U.P. Respondent :- Harveer Singh @ Harru & Others Petitioner Counsel :- Govt. Advocate Hon'ble Devendra Pratap Singh,J.
Hon'ble Anil Kumar Agarwal,J.
Heard learned A.G.A. for the State.
This application has been filed by the State of U.P. with the prayer that leave to appeal may be granted against the judgment and order dated 27.07.2011, passed by Sri Rajendra Babu Sharma, Additional Sessions / Special Judge (D.A.A.), Etah in Sessions Trial No. 492 of 2001, Case Crime No. 67 of 2001, whereby the respondents have been acquitted for the offence punishable under section 302/34 I.P.C.
We have perused the judgment of trial court and lower court's record.
The prosecution story in brief is that the complainant Dhirendra Singh, S/o Prem Singh lodged a report on 30.4.2001 at Police Station Patiyali, District Etah stating therein that on 29.4.2001 he had come to village Madsua along with his sister's husband Ravindra Singh, S/o Dev Singh, R/o Kanesar, Police Station Raja Ka Rampur and cousin Harvansh Singh, S/o Ajaan Singh, R/o Rampura, Police Station Patiyali, District Etah in connection of matrimonial talks of his younger sister. In the night, at about 10.15 P.M., while they were having dinner in the Veranda (Aangan) of Benchey Singh under a lantern where his uncle Benchey Singh was also lying on bed inside a mosquito net and was talking to him, suddenly accused Harru alias Harveer Singh, armed with a country made pistol and Net Singh, armed with lathi entered the house of Benchey Singh and on instigation of Net Singh accused Harru fired towards Benchey Singh, which hit him on the back. After firing, both the accused fled away from back door of house and he chased the accused persons when he saw one more accused, namely, Ram Saran, S/o Jai Singh was also there, who asked the accused persons whether work had been done and he also fled with them. The whole incident was witnessed by the complainant's side and other villagers also who saw the accused persons while they were running away. A criminal case between Satish and Ram Saran for attempt to fire was pending in which accused Harru and Net Singh wanted a compromise but Benchey Singh was against any compromise and due to this reason the accused persons had killed Benchey Singh. On the basis of written report Case Crime No. 67 of 2001, under section 302/34 I.P.C. had been registered against all the accused persons at Police Station Patiyali, District Etah. After completing investigation, police submitted charge sheet under section 302 I.P.C. against all the three accused respondents.
The trial court analyzed the entire prosecution evidence, including the conduct of the alleged eye witnesses and the fact that no blood stained Dari or Bed Sheet was recovered and thus returned a finding of acquittal.
Learned AGA has urged that the finding of trial court is perverse. In the present case, on the instigation of accused Net Singh the other accused Harru alias Harveer Singh fired single shot towards deceased Benchey Singh, who was lying on cot and the shot hit him on his back and he died on the spot. This incident happened in presence of three witnesses i.e. PW-1, PW-2 and PW-3, who were present on the spot and when they went behind the accused persons they saw that another accused Ram Saran was present outside the door and he also ran away with other two accused persons. They had seen the incident in the light of Dibia and gave reason for their presence on the spot, hence the prosecution had proved its case beyond the shadow of doubt. The finding of trial court is based against the evidence on record and it had committed gross illegality in acquitting the accused respondents, hence the order of trial court is liable to be set aside. In such circumstances, leave to appeal may be granted.
A perusal of the record shows that the alleged incident occurred at 10:15 in the night on 29.4.2001 but the FIR was lodged by Dhirendra Singh, the nephew of the deceased, on 30.4.2001 at 10 a.m. The explanation given by him that due to fear and since it was night he could not lodge the FIR earlier, does not inspire confidence. He himself has stated that after the incident, he went to his village and thus it is in total contrast to the explanation given for delay in lodging the FIR. Further, in April, generally dawn breaks before five in the morning but he has given no explanation why he waited till 8 a.m. to proceed to lodge the FIR. He has been examined as PW-1 and it is admitted that he was the nephew of the deceased and employed in the Army and posted at Srinagar while his family was residing in Bareilly. The trial court, rightly observed that chances of his coming from Bareilly on the next day were great. It is also evident that all the three eye witnesses are related to the deceased. The informant, PW-1 is the nephew Harvansh Singh, PW-2 is the cousin brother of Dhirendra Singh and resides at village Rampura where he has his agricultural fields and also at Bareilly. The third eye witness Ravindra singh, PW-3 is the son in law of the deceased and resides at village Kaneshar which his about 14 kms. away from the village where the incident took place. Only interested and related witnesses have been produced by the prosecution and they appeared to be mere chance witness which does not inspire confidence of the court, especially when their statements are perused. PW-1 has deposed that the shot hit the deceased on his back but PW-2 has stated that the shot hit the deceased on his belly while PW-3 has stated at one place that the shot hit him on the back side while at another place he states that the shot hit the deceased on the belly. The postmortem examination revealed that there was one gun shot wound on the back side of the deceased. Though the Dr. B.V. Verma, PW-5 has stated that the deceased had died due to excessive bleeding and haemorrhage, PW-1 has stated that some blood was oozing out of the wound while PW-2 has testified that he did not see any blood oozing out from the wound and also did not see any blood spot on the cot or bed sheet , Dari or earth. PW-3 has stated that he also did not see any blood on the cot, Dari etc. Even though all have stated that the deceased was lying on a Dari on the cot but the Investigation Officer PW-6 did not find any Dari on the cot on which the deceased was killed. Further, though these witnesses have stated that two ladies were also present in the deceased's house, his wife and his brother's wife who were also present but neither of the two has been put up as witness by prosecution, even though, they were the most natural and probable witness of the incident. Further with regard to the source of light, the witnesses have stated that a lamp was burning on the wall of the kitchen in the courtyard of the deceased but they have given different directions of the kitchen and the burning lamp. The Investigating Officer has stated that in the map he had shown the place of the lamp as 'H' as stated by the witnesses but he did not find any wall on which it was hanging. Further, the informant has stated that the kitchen was on northern side of the cot of the deceased and there was a wall outside the kitchen on which the lamp was burning. However, PW-2 has stated that the kitchen was on the western side where they were having their dinner and the lamp was burning outside the kitchen. The PW-3 in his statement has stated that they were having the dinner on the southern side from the deceased cot while the kitchen was on the western side. He has denied that the burning lamp was situated on the northern side from the deceased's cot. There are lot of discrepancies in the statement of the said witnesses which creates a doubt about their very presence on the spot. They have further stated that they were about 12 to 13 feet from the cot of the deceased and about 16 feet from the burning lamp and that the accused Harveer came from the northern side of the deceased's cot and the lamp was burning behind the accused persons. Thus, the trial court was justified in holding that in such a situation it was difficult to identify the assailants and they had not seen from which direction the assailants had entered. Further, PW-2 and PW-3 have testified that Netram exhorted Harveer who was only 4 to 5 feet away from them and his face was towards the deceased's cot hence it was not possible for them to identify Netram as they were towards his back as he was facing away from the witnesses, when confronted the PW-1 and PW-2 could not explain how they identified the assailants but PW-3 has stated that he recognized him by his voice. Further he admits that he did not know all the villagers of Madsua but only those who were either inimical or friendly to him and goes on to say that Netram was neither friendly nor inimical to them. According to the witness accused Ram Saran was outside the house and according to PW-3 he identified him while he was running away, which is highly improbable. The prosecution did not even hold any identification of the accused persons and considering the background of admitted enemy between the parties, probability of false implication was very high. The conduct of the eye witnesses also does not inspire confidence as to why they went away to their village after the incident leaving two ladies with the dead body and in all probability they were informed about the incident only in the morning. After considering all the aforesaid evidence, the trial court has rightly rendered the judgment of acquittal.
In our opinion the view taken by the learned Sessions Judge is based upon proper appreciation of evidence on record. The findings recorded by the Trial Judge do not require any reconsideration. There is no illegality or perversity in the impugned order.
Accordingly, leave to appeal is refused and the application is rejected.
Order Date :- 13.3.2012 NS Court No. - 55 Case :- GOVERNMENT APPEAL No. - 6303 of 2011 Petitioner :- State Of U.P. Respondent :- Harveer Singh @ Harru & Others Petitioner Counsel :- Govt. Advocate Hon'ble Devendra Pratap Singh,J.
Hon'ble Anil Kumar Agarwal,J.
Since leave to appeal has been refused, the appeal is also dismissed.
Order Date :- 13.3.2012 NS