Allahabad High Court
Purshottam & 2 Ors. vs State Of U.P. on 12 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 415
Bench: Ritu Raj Awasthi, Ghandikota Sri Devi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 30.11.2018 Delivered on 12.02.2019 Court No. - 2 Case :- CRIMINAL APPEAL No. - 1486 of 2008 Appellant :- Purshottam & 2 Ors. Respondent :- State Of U.P. Counsel for Appellant :- H.K. Bhatt,U P Singh Counsel for Respondent :- G.A. AND Case :- CRIMINAL APPEAL No. - 1945 of 2008 Appellant :- Ram Kumar Respondent :- State Of U.P. Counsel for Appellant :- H.K. Bhatt, Chandra Bhusan Pandey, Rajeev K. Bajpai, Rohit Tripathi,Udai Pratap Singh Counsel for Respondent :- Govt. Advocate Hon'ble Ritu Raj Awasthi, J.
Hon'ble Ghandikota Sri Devi, J.
Dictated by Hon'ble Ghandikota Sri Devi, J.
1. These two criminal appeals have been filed by the appellants, challenging the order dated 18.6.2008, passed by the learned Additional Sessions Judge/Fast Track Court No.1, Sitapur in Sessions Trial No.611 of 2005 (State vs. Ram Kumar and others) under Sections 147, 148, 302 IPC read with Section 149 IPC and Sessions Trial No.612 of 2005 (State vs. Ram Kumar) under Section 25 (1-b) of the Arms Act, whereby the accused-appellants, namely, Purshottam, Surya Pal and Arjun Lal in Criminal Appeal No.1486 of 2008 were convicted under Section 302 IPC read with Section 34 IPC and sentenced to undergo imprisonment for life and fine of Rs. 10,000/-each, P.S. Laharpur, District Sitapur. In default of payment of fine, they were ordered to undergo imprisonment for a further period of six months, each. The accused-appellant, Ramkumar in Crl. Appeal No. 1945 of 2008 was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and fine of Rs.10,000/-. He was also sentenced to undergo one year rigorous imprisonment and fine of Rs.500/- under Section 25(1-b) of the Arms Act. The sentences awarded to the appellants were directed to run concurrently. Since, both the appeals have arisen against a common judgment and order dated 18.6.2018, passed by the learned Additional Sessions Judge, Fast Track Court No.1, Sitapur, the same are being disposed of by this common judgment in both the connected appeals.
2. Briefly stated the facts of the prosecution case was that on 7.3.2005 at about 7:00 a.m., the informant and his cousin (brother) Rajendra (since deceased) were standing outside the house of Rajendra. Then being inimical in regard to the dispute with respect to the land and the premises, the accused-appellants namely, Ram Kumar, Purshottam, Surya Pal, Arjun Lal and Sardar Baljeet Singh came to the place of occurrence with lathi-danda, bhala and fire-arms and saying the cousin of the informant that 'yahi sala Rajendra hai, maar do,' to which the accused Ram Kumar fired at Rajendra with the fire-arm in his hand, which hit on the face of Rajendra and he died instantaneously. The incident was witnessed by Roopan s/o Dwarka and Shiv Kumar s/o Baburam R/o Village-Bhatthapurwa, P.S. Laharpur, District Sitapur. The informant was standing along with his cousin, Rajendra, who had witnessed the occurrence. The accused de-camped in the western direction after firing at the deceased. The dead-body was lying at the place of occurrence.
3. The informant, Ram Pratap lodged the report of that incident (Ex.ka1) at Police Station Laharpur, District Sitapur, immediately after the occurrence at 9:40 a.m. on the same day, i.e., on 7.3.2005. The distance of the said police station from the place of occurrence is 27km. On the written report of the informant- Ram Pratap, Head Constable Sohan Lal (PW3) prepared the check report of the incident (Ex.ka2) registered the case as Case Crime No.126 of 2005 under Sections 147, 148, 149 and 302 IPC and also made the relevant G.D. Entries (Ex.ka3).
4. The postmortem on the dead body of the deceased-Rajendra was conducted by Dr. R.P. Gautam (PW4) on 8.3.2005 at 3:15 p.m. at District Hospital, Sitapur. The age of the deceased was 28 years. He (PW4) also prepared the postmortem report (Ex.ka4). In the opinion of the doctor, cause of death was due to coma as a result of the ante mortem fire-arm injury. The following ante mortem injuries were found on the body of the deceased:
a) Fire-arm wound of entry 1.5cm x 1.5cm x brain deep on Rt. Upper part of face just below Rt. Lower Eye-lid. Margins are inverted lacerated and blackened.
b) Fire-arm wound of exit 2.0cm x 1.5cm x communicating to injury No.1, 5cm behind Rt. Ear on back of skull. Margins everted, lacerated. Brain matter coming out of wound.
5. Constable Gyandutt Kanaujiya (PW5) registered the FIR (Ex.ka5) under Section 25/27 of Arms Act and also proved the entries made in G.D. by Constable Mohan Lal vide report No.19 dated 19.3.2005 (Ex.ka6).
6. Daya Ram (PW6) is the witness of recovery of the weapon of offence. He has stated before the Court that the weapon of offence i.e. .315 bore tamancha was recovered from the possession of the accused-appellant Ram Kumar in his presence. He has also deposed that the Investigating Officer prepared the recovery memo (Ex.ka7) and got his signatures. He also identified the .315 bore tamancha and one live cartridge (material Exs.1&2) and stated that the accused-appellant Ramkumar was arrested in his presence.
7. Roshan Lal (PW7) was the witness to the inquest and also the witness to the recovery of blood-stained, simple soil so also empty cartridge and bullet. He also stated that the recovery memos of the same were prepared by the Investigating Officer and in his presence (Ex.ka8-11).
8. Inquest on the dead-body of the deceased was conducted by S.I. Rajendra Singh (PW8) on the same day between 11:30 a.m. to 12:30 p.m. and the dead-body was sent for postmortem along with the constables. He prepared the inquest report (Ex.ka8), photo-lash, challan-lash, report to R.I., report to CMO, sample seal etc. (Ex.ka12 to 16).
9. S.I. Lal Mani (PW9) was the Investigating Officer of Case Crime No.157 of 2005 under Section 25/27 Arms Act, P.S. Laharpur, District Sitapur. He had taken up the investigation on 19.3.2005, prepared site-plan (Ex.ka17) obtained prosecution sanction from the D.M., Sitapur (Ex.ka18) and after completion of the formalities, submitted charge-sheet (Ex.ka19) against the accused-appellant, Ram Kumar under Section 25 (1-b) of the Arms Act before the court.
10. The investigation of the case was taken up and conducted by S.O. Devi Ram Gautam, P.S. Laharpur (PW10), who after recording the statements of the informant and the Head Constable Sohan Lal (PW3), who registered the case, left for the place of occurrence along with police force and directed S.I. Rajendra Singh (PW8) to conduct inquest over the dead-body. The I.O. collected the blood-stained and simple soil so also empty cartridge and bullet from the place of occurrence, prepared the recovery memos in presence of the witnesses (Ex.ka 9 to 11) and recorded the statement of the eye-witnesses. He arrested the accused-appellant Ram Kumar on 19.3.2005 and recovered one country-made pistol of .315 bore and one live cartridge from his possession and got prepared the recovery memo (Ex.ka7) through S.I. Rajendra Singh (PW8). The Investigating Officer has also completed the other formalities of investigation and submitted charge-sheet (Ex.ka22) before the court on 7.4.2005 against all the accused-appellants.
11. The learned C.J.M. Committed the case to the court of Sessions for trial and the learned Additional Sessions Judge framed charges against all the accused persons in Case Crime No.611 of 2005 under Sections 147, 148, 302 IPC read with Section 149 IPC. He also framed charges in Sessions Trial No.612 of 2005 against the accused-appellant Ram Kumar under Section 25 (1-b) of the Arms Act. All the accused-appellants have denied to the charges levelled against them and claimed for trial.
12. After closure of the evidence of the prosecution, the accused-appellants were examined under Section 313 Cr.P.C. and they denied their presence at the scene of occurrence as also their participation in the crime. The accused further stated that the deceased, Rajendra was a criminal against whom number of cases including murder, dacoity and under the Arms Act, 1959, were pending and he was keeping illegal fire-arms in his possession. Due to enmity, some unknown persons have murdered Rajendra during night with respect the land dispute and they have been falsely named in the First Information Report. The accused-appellant, Ram Kumar stated that the recovery of country-made pistol was falsely shown from his possession and he was falsely implicated in this case due to enmity.
13. The accused-appellants in order to support their case had examined DW1-Hemnath s/o Bhoop Chandra r/o same village, namely, Bhattapurwa.
14. The learned Additional Sessions Judge, Fast Track Court No.1, after considering the evidence on record, recorded the findings that the FIR of this case was lodged by the eye-witness of the occurrence without there being any inordinate delay. The court had also held that the prosecution successfully brought home the guilt that Ram Kumar fired one shot at the deceased, Rajendra on the exhortation of other co-accused. The injuries of the deceased-Rajendra were sufficient to cause the death. The learned trial court further held that prosecution has successfully proved that all the accused have reached the place of occurrence with deadly weapons in pre-planned manner to commit the murder of Rajendra, and the defence could not prove the plea of self-defence and accordingly, convicted the appellants as aforesaid.
15. Hence, this appeal.
16. We have heard Shri Udai Pratap Singh, learned counsel for the appellants and also Shri Pankaj Kumar Tiwari, learned A.G.A. for the State-respondent.
17. Learned counsel for the appellants canvassed inter alia that the incident did not take place in the manner suggested by the witnesses but the deceased was attacked and murdered by some unknown assailants during night-time of the previous day; that there was conflict between direct evidence and medical evidence; that appellants had no motive to commit the offence. Learned counsel for the appellant next submitted that according to the prosecution case, the deceased was fired from a considerable distance hence no offence under Section 302 IPC is made out against the appellant-Ram Kumar as alleged by the prosecution. With regard to the other accused-appellants, he has further contended that there was no specific role assigned to any of the appellants by the alleged eye-witnesses. Hence the alleged exhortation cannot be made the basis for conviction of these appellants under Section 302 IPC with the aid of Section 34 IPC.
18. Per contra, Shri Pankaj Kumar Tiwari, learned A.G.A. appearing for the State-respondent, contended that it was a broad day-light murder. There is direct evidence and eye-witness count against the appellants. Both PW1 and PW2, namely, Rampratap and Shiv Kumar, have fully supported the prosecution version. The prosecution had proved its case beyond all reasonable doubts; the ocular testimonies are reliable and found corroboration from the postmortem examination report. Thus, the learned Additional Sessions Judge, Fast Track Court No.1, Sitapur, had rightly convicted all the accused-appellants, hence, the appeals are devoid of any merit and liable to be dismissed.
19. In order to appreciate the rival submissions of the learned counsel for the respective parties, it is necessary to traverse upon the evidence on record.
20. As pointed out by learned A.G.A., in order to prove its case, the prosecution apart from the aforesaid formal witnesses had examined the eye-witnesses, namely, Rampratap (PW1) and Shiv Kumar (PW2). Rampratap (PW1), had deposed as under:
"the accused-appellants-Ram Kumar, Surya Pal, Purshottam, Arjun and Baljeet of my village have come from the western direction and all have exhorted that 'yahi sala Rajendra hai, ise maar do' to which Ram Kumar fired with the weapon in his hand, which hit on the face of Rajendra, and he had fallen then and there; there was no second fire and nobody had assaulted with lathi-danda at the time of firing; Roopan and Shiv Kumar of my village were also present and have witnessed the occurrence, so also all my family members were present. My brother Rajendra died instantaneously on the spot. I, along with my brother Dayaram, have gone to the Police Station to lodge the report and sent another brother Gokul to inform at Bhadbhar Police Chawki. I got the report written at Laharpur Petrol Pump, heard the contents and thereafter put my signature. I have also narrated these facts to the Police Inspector."
Being cross-examined by the counsel for the defence, he stated as under:
"when I have seen the accused, they were armed with weapons like, katta, bhala, lathi etc. the accused were known to me and my brother Rajendra, hence there was no necessity of identifying them. The accused Ram Kumar alone fired, the other accused exhorted that 'yahi sala Rajendra hai ise maar do.' Because Rajendra was my brother, hence, they had enemity with him also. I did not run away from the spot. The accused did not assault me, nor they have exhorted nor chased. When the accused exhorted to kill Rajendra, at that time, Rajendra was standing at a distance of 8-10 paces away from the hand pump towards north. The lane which leads from east to west, he was standing towards the south of the said lane, where he was fired by the accused. At that time, I was standing at the southern side of Rajendra and northern side of the hand pump. My brother Rajendra received fire-arm injury on the right side and his right eye was ruptured. His teeth were not fallen on the ground at the place of occurrence."
21. In this regard, Shiv Kumar (PW2) had deposed before the court as under:
"at the time of occurrence, I was standing at the door of my house and I have seen that from the western side five people, namely, Ram Kumar, Purshottam, Surya Pal, Arjun Lal and Baljeet, have come having bhala, lathi in their hands and Ram Kumar was possessing fire-arm. Rajendra, the deceased was standing near hand-pump, all have exhorted that 'yahi Rajendra hai, ise maar dalo', then Ram Kumar fired, which hit on the face of Rajendra, receiving the fire-arm injury he fallen down and he died instantaneously on the spot. There was no quarrel between Rajendra and the accused-appellants. The tube-well situates to the south west direction of the house of Ram Pratap. Towards the north of the house of Ram Pratap the vacant land of Ram Lakhan situates. The Police Inspector recorded my statement. I have stated to him that at the time of occurrence, I was standing outside my house to give fodder to my cattle. Prior to this incident, all the accused persons were very well known to the deceased Rajendra, because all of them belong to the same village. The other accused except Ram Kumar have only stated that 'yahi Rjendra hai, ise maar do'. They have neither chased nor threatended, nor abused. Thereafter, they have not stated anything. Rajendra, where he was standing, after getting the injury, turned around and fallen on the ground, about two paces away from that place. When the I.O. had come to the place of occurrence, I was present there and I have shown to the I.O. while preparing that spot map. Rajendra was standing about two paces away from the hand pump, towards the north, when he received the injury and I had witnessed the whole occurrence standing at my door. The distance between the place, where Rajendra received fire arm injury and the place where his dead-body was lying, is about 20-25 paces. When the accused came from western side with weapons, Rajndra did not move from the place, where he was standing. At the time, when Rajendra received injury, he was standing facing to the west. The person who fired at Rajendra, from a distance of 10-12 paces. It is false to say that Rajendra was murdered by some unknown enemies during night and his dead-body was dragged and kept in front of the door of Ram Pratap."
22. Thus, it is evident from the testimonies of the above two witnesses that the single shot fired by the accused-appellant Ram Kumar hit on the face of the deceased Rajendra resulting his instantaneous death. This evidence of the aforesaid two eye-witnesses was corroborated by the medical evidence. The doctor, who conducted the postmortem over the dead-body of the deceased Rajendra found only one entry wound and in the opinion of the doctor, the death of the deceased was due to coma as a result of the ante-mortem fire arm injury. The version of the aforesaid three witnesses were further supported by the evidence of PW6, who had deposed before the court that the accused-appellant Ram Kumar was arrested in his presence by the I.O. and also recovered the weapon of offence i.e. .315 bore pistol and one live cartridge from the possession of the accused-appellant at the time of arrest. Thus, the accused-appellant Ram Kumar having caused the death of the victim Rajendra by opening fire with the weapon of offence in his hand, he cannot escape the liability of conviction under Section 302 IPC levelled against him.
23. Learned counsel for the appellants has contended that the appellants had no motive for committing the crime. It is a case of direct evidence and the motive hardly plays any important role. If the lack of motive as contended by the learned counsel for the appellants is a factor, it cannot be lost sight of the fact that there is no reason as to why witnesses would falsely implicate the accused. The incident in question as projected by the prosecution clearly indicates that the accused appellant Ram Kumar on the exhortation of the other accused fired at the deceased resulting the death of the deceased immediately. Hence, the presence or absence of motive by itself will not make the prosecution case vulnerable.
24. In the case of State of Himachal Pradesh vs. Jeet Singh, reported in 1999 (4) SC 370, the Apex Court had observed:
"No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."
25. Thus, we find no force in the contention raised by the learned counsel for the appellants. It was further submitted by the learned counsel for the appellants Purshottam, Surya Pal and Arjun Lal that the conviction of these appellants under Section 302/34 IPC is unsustainable in law. The role assigned to these three appellants is only that of exhortation and they were shown to be equipped with lathi, danda and bhala but there were no injuries on the body of the deceased with the alleged weapons. It was further contended that these appellant were awarded conviction only on the dint of omnibus statement. They were attributed the role of exhortation "yahi sala Rajendra hai, ise maar do" and it is highly improbable that all the three persons would exhort the other accused and would blurt out the self same words and it is also highly improbable for the witnesses to hear the actual words uttered in exhortation when the accused were at a considerable distance and that too when the accused were coming with the deadly weapons in their hands.
26. In connection with the above submissions, we have gone through the observation made by the Hon'ble Supreme Court in the case of Jainul Haque vs. State of Bihar, (1974) 3 SCC 543. The relevant paragraph reads as under:
"The evidence of exhortation is, in the very nature of things, a week piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abatement can be recorded against the person alleged to have exhorted the actual assailant."
27. In the light of the submissions made by learned counsel for the appellants and in regard to the observations of the Apex Court in the case of Jainul Haque (supra), it appears that the submissions advanced by learned counsel for the accused-appellants has some substance and we are of the considered opinion and it could not be ruled out that the appellants, namely, Purshottam, Surya Pal and Arjun Lal have been falsely implicated in the present case only because they are the sons of Hem Nath and Bhai Lal, who are also related to the complainant-pw1, who had developed certain animosity with the said Hemnath and Bhai Lal, due to the pendency of some dispute with respect to the land premises between the parties. It is also pertinent to mention here that on the basis of the written report of the complainant-PW1, the case was registered under Sections 147, 148, 302 read with Section 149 IPC, against five persons including one Sardar Baljit Singh. Accordingly, charges under the aforesaid sections were framed against all the accused. But during the course of his cross-examination, PW1 had categorically deposed that he had also implicated Sardar Baljit Singh, who belongs to the other village, due to enmity. On the basis of the statement of PW1, the learned trial court acquitted the said Baljit Singh and recorded conviction against the above three appellants under Section 302 read with Section 34 IPC. The depositions of the eye witnesses reveal that the accused-appellants had gone with the other accused-appellant, Ram Kumar to the place where the deceased was standing along with PW1 and on their exhortation, gun-shot was fired by the appellant-Ram Kumar. A bare reading of the evidence of the two eye-witnesses, it transpires that the appellants Purshottam, Arjunlal and Surya Pal were not conversant with the intention of their companion Ram Kumar, who committed murder of Rajendra. To constitute common intention, it is necessary that the intention of each one of them should be known to the rest of the accused. In the present case, there was no common intention to kill Rajendra, nor the aforesaid three appellants had participated in any manner in the act of murder of the deceased, Rajendra.
28. Thus, we are constrained to hold that there is no reliable evidence brought on record to prove that these three appellants, namely, Purshottam, Surya Pal and Arjun Lal also had common intention to murder the deceased and in absence of reliable evidence, these appellants are not liable for conviction punishable under Section 302 IPC read with section 34 IPC only on the basis of general allegation of exhortation but not any specific exhortation by any of the accused-appellants. The allegations that all the three persons exhorted at a time is beyond imagination and does not inspire confidence. Accordingly, Purshottam, Surya Pal and Arjun Lal, the appellants, in Crl. Appeal No. 1486 of 2008, deserve to be acquitted from the charges levelled against them.
29. So far as, the appellant-Ram Kumar is concerned, evidence on record is consistent about his role that he fired at the deceased, which resulted the instantaneous death of Rajendra. The prosecution has brought home the guilt of the murder of deceased-Rajendra through cogent and clinching evidence beyond all reasonable doubts and we must say that the trial court has rightly convicted Ram Kumar, the appellant in Crl. Appeal No.1945 of 2008, under Section 302 IPC. It is the case of the prosecution from the very inception that fire-arm injury hit the deceased-Rajendra on his face and he fallen down immediately and died instantaneously. Coming with the fire-arm and firing at the deceased-Rajendra shows the clear intention on the part of the appellant-Ram Kumar about killing the deceased.
30. With all the aforesaid facts and the evidence that has been brought on record, we are of the opinion that the prosecution has failed to lead clinching evidence so as to bring home about the conviction and guilt of Purshottam, Surya Pal and Arjun Lal, the appellants, in Criminal Appeal No.1486 of 2008, but on the other hand there is sufficient material corroborative evidence as discussed herein above to convince this Court to uphold the conviction and sentence of Ram Kumar, the appellant, in Criminal Appeal No.1945 of 2008, under Section 302 IPC and under Section 25 (1-b) of the Arms Act.
31. Accordingly, we allow the Criminal Appeal No.1486 of 2008 (Purshottam and 2 others vs. State of UP) and set aside the conviction and sentence of Purshottam, Surya Pal and Arjun Lal. They are on bail, their bail bonds are cancelled and the sureties stand discharged subject to compliance of Section 437-A Cr.P.C.
32. The Criminal Appeal No.1945 of 2008 (Ram Kumar vs. State of UP) is dismissed so far as the appellant-Ram Kumar is concerned. He shall serve out the sentence of life imprisonment and the other sentences awarded to him.
33. A copy of this judgment be dispatched forthwith to the court concerned for necessary compliance.
Order Date :- 12.02.2019 LN Tripathi