Allahabad High Court
Tilak Singh And 4 Others vs State Of U.P. on 29 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 413
Bench: Pankaj Naqvi, Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 17.12.2020 Delivered on 29.1.2021 Court No. - 29 Case :- CRIMINAL APPEAL No. - 3527 of 2014 Appellant :- Tilak Singh And 4 Others Respondent :- State of U.P. Counsel for Appellant :- P.S. Chauhan,Ashfaq Ahmed Ansari,Atul Kumar,Brijesh Sahai,Gaurav Singh,Jitendra Kumar,Vikrant Rana Counsel for Respondent :- Govt. Advocate, Akhilesh Chandra Shukla ::With:: Case :- GOVERNMENT APPEAL No. - 4553 of 2014 Appellant :- State of U.P. Respondent :- Shish Pal Alias Baddan And Another Counsel for Appellant :- Govt.Advocate Counsel for Respondent :- P.S. Chauhan Hon'ble Pankaj Naqvi,J.
Hon'ble Vivek Agarwal,J.
(Delivered by Pankaj Naqvi, J.) The criminal appeal has been preferred for quashing the judgment and order dated 23.8.2014 passed by Additional Sessions Judge, Meerut in Sessions Trial no. 578 of 2010, State Vs. Tilak Singh and others, (arising out of Case Crime no. 22 of 1988, under Sections 147, 149, 302/149, 323/149 IPC, P.S. Sardhana, District Meerut), whereby appellants have been convicted and sentenced under Section 302/149 IPC for life along with other anciliary convictions/ sentences.
The Government Appeal has been preferred against the judgment/ order dated 23.8.2014, passed by Sessions Judge (E.C. Act), Meerut in Sessions Trial no. 578 of 2010, State Vs. Tilak Singh and others, whereby the opposite parties - Shish Pal @ Baddan and Rakaspal @ Bona have been acquitted.
These two appeals arise out of common judgment / order dated 23.8.2014, hence are being decided by a common judgment/ order.
1. The prosecution case:-
(A). PW-1 / informant alleged that there was previous animosity between his father Jagdish (D-1) and his uncle Taras Pal (D-2) over property litigations with accused Jagmal and others. About 6 years ago, grandmother of PW-1 had executed a sale deed in respect of her share in favour of Jagdish and Taras Pal and after her death, Jagpal and others had initiated litigation before Consolidation Courts. The Deputy Director of Consolidation on 3.6.1988 had decided in favour of father and uncle.
(B). On 11.6.1988 at about 8 A.M, while PW-1 along with father (D-1), uncle (D-2) and his son Narendra (PW-2/ injured) had gone to their fields to sprinkle fertilizers near the tubewell, accused Tilak Singh, Rukan Pal, Richhpal and Yaqub, all armed with countrymade pistols, Jagmal and Kunwar Pal with lathi, Baddal and Rakaspal with farsa arrived, started indiscriminately assaulting D-1, D-2 and Narendra (PW-2) with their weapons. PW-1 fearing for his life climbed on the terrace of the tubewell. On hearing cries for help made by father (D-1) and uncle (D-2), Gajraj (not examined), Chandra Pal (PW-4), Mahipal (PW-3) and Sripal (not examined) arrived from nearby fields, but accused managed good their escape. D-1 and D-2 died at the spot while PW-2 sustained injuries.
(C). PW-1 submitted a written report of the above occurrence, which became the basis for lodging an FIR dated 11.6.1988 as Case Crime No. 22 of 1988, under Sections 147, 148, 149, 323 and 302 IPC at 9:30 A.M, at P.S. Sardhana, at a distance of 7 kms against the above 8 named accused, the contents of the written report were incorporated in the G.D, by PW-5/ Constable Clerk.
(D) PW-9, the constable accompanying Shishupal Singh, the officer in-charge along with R.C. Verma/ C.O, reached scene of occurrence, wherein Shishu Pal Singh carried out the inquests of both the deceased at the instructions of R.C. Verma, thereafter the cadavers were sealed and handed over in the custody of PW-9 and constable Barjor Singh to be carried in a tractor for autopsy at medical college. PW-9 identified the signatures of Shisu Pal Singh and R.C. Verma. PW-2, injured was medically examined by PW-8, a medico at PHC, Sardhana on 11.6.1988 at 6:30 P.M, also corroborated with the testimony of PW-7, a pharmacist. The autopsies on the 2 cadavers were carried out on 12.6.1988 around 12 noon, by Dr. M.K. Arya as was stated by PW-6, the pharmacist, who proved the autopsies by identifying his signatures as he was no more.
(E) The investigation culminated in a charge-sheet against 7 accused under above sections and Section 25 Arms Act, as accused Yaqub had expired by then, cognizance was taken on the said charge-sheet.
(F) The case being exclusively triable by Sessions was committed to it, charges framed under the above provision, which the accused denied and claimed to be tried.
(G) The prosecution examined PW-1 to 4 as eye-witnesses with PW-2, as an injured witness. PW-5 is the constable at the PS concerned, who prepared relevant GD entry as regards lodging of the FIR. PW-6 is the pharmacist, who proved the signatures and hand-writing of the doctor, who conducted the autopsies. PW-7 is the pharmacist, who authenticated the time of arrival of the injured/ PW-2 at the PHC. PW-8 is the doctor, who examined the injuries of PW-2. PW-9 is the constable, who authenticated the signatures of the I.O.
(H) The defence did not lead any evidence, but claimed false implication on the premise that Tulsa was made to execute sham sale deed in favour of both the deceased with a view to deny legitimate claim of accused persons.
(I) The trial court after analyzing the evidence while convicting / sentencing the appellants as above acquitted accused Baddal and Rakaspal @ Bona.
2. During pendency of appeal, appellant nos. 1 and 4, i.e, Tilak Singh and Jagmal died, their appeals stand abated. Thus the present criminal appeal survives against appellant nos. 2, 3 and 5, i.e, Kunwar Pal, Richhpal and Rukanpal.
3. Heard Sri Jitendra Kumar, learned counsel for the appellants in Criminal Appeal No.3527 of 2014, Ms. Manju Thakur and Sri P.S. Chauhan learned counsel's for the State-appellant's in respective appeals.
4. Learned counsel for the appellants in criminal appeal submitted the following arguments:-
(i) The prosecution miserably failed to prove its case beyond a shadow of doubt, strongly suggesting that the deceased were eliminated by unknown assailants at the night and the appellants in view of previous enmity have been falsely implicated.
(ii) Presence of eye-witnesses is extremely doubtful as nature of injuries sustained by the victims is not compatible with oral account. Appellants Kunwar Pal and Rukan Pal are alleged to have inflicted fire-arm injuries but absence thereof renders the prosecution story highly doubtful.
(iii) Once accused Shish Pal @ Baddal and Rakaspal were acquitted on the premise that there was no injury of farsa on any victim, same parity is also liable to extended to appellants Richh Pal and Rukan Pal, who are alleged to have used a firearm, but there are no firearm injuries.
5. The learned A.G.A, opposed the submission.
6. We before evaluating the evidence would observe that as the testimony was recorded after 24 years of the occurrence, certain leeway should be granted in appreciating their testimony as ordinarily one has a tendency to forget the sequence and manner of occurrence after such a long interval. We also place on record that one reason for delayed examination of witnesses was that the original documents had gone missing, trial could commence only when missing documents were reconstructed.
7. The informant and accused are closely related as they form a branch of same family tree. The prosecution has come up with a motive that the trigger for the occurrence was generated on 3.6.1988, when the informant side obtained a judgement in their favour from the Deputy Director of Consolidations to the prejudice of the accused relating to title over a property. Law is fairly settled that in a case involving direct evidence, motive is not of much consequence as eventually fate of a criminal trial is decided by reliability and credibility of a witness.
8. PW-2 is an injured. Ordinarily testimony of an injured is accorded prime importance, as presence of injuries prima facie establishes the presence of the injured unless there are strong grounds for rejection on the basis of major contradictions and discrepancies. We place reliance on a judgment of the Apex Court in Abdul Sayeed vs. State of M.P, (2010) 10 SCC 259, wherein the Apex Court after dealing with catena of decisions on the point of testimony of an injured witness held as under: -
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
9. PW-2 was at his tubewell at the time of occurence. He noticed accused persons, variously armed coming silently from a distance of 100 meters. He fearing for his life along with PW-1 went on the rooftop of the tubewell with the help of a cot. PW-2 recounts that witnessing the assault at his father and uncle at the hands of accused, he fainted on the rooftop subsequently came down to rescue the deceased, but was then assaulted with several lathi blows. He is candid enough to admit that no other accused, but for the persons armed with lathis assaulted him. The assault continued for 10-15 minutes. Witnesses who arrived at the scene were not assaulted rather seeing them, accused fled from the scene. He regained consciousness a day after the occurrence and does not remember as to who and when the report was lodged. PW-2 remembers that accused persons fired shots at them as also in air. He also remembers that the farsa was used from both sides, i.e, sharp/ blunt side, while assaulting his uncle, i.e, Jagdish (D-1).
10. PW-1 / informant was stating that there were no stairs that led to the roof top of the tubewell, rather help was taken of a ladder ordinarily kept at the tubewell. He further stated that his father and uncle, i.e, both the deceased were working close to the tubewell. None of the accused indulged in any assault at him. All of them possessed spades, but none of them used spades in their defence. He being light in weight climbed the roof top. Accused fired firearm shot causing firearm injuries resulting in spilling of blood. PW-2 sustained only lathi injuries. The I.O, collected blood from the earth, a memo prepared in which he was a witness but the memo is not on record. Both the deceased were eliminated involving the use of heavy farsa (sharp edged weapon).
11. Cumulatively examining PW's-1 and 2, we find that on one hand PW-2 is stating that he along with PW-1 on seeing accused coming variously armed at the tubewell fearing for their lives both of them went on the rooftop, whereas PW-1 is confining his presence only at the rooftop. We ignore as to how both or one of them climbed rooftop, as testimony was being recorded after a long interval of 24 years. We on same parameter also ignore as to whether it were both PW's 1 and 2 or only PW-1 at the rooftop. PW-1 was stating that firearm injuries were caused to both the deceased. However, there was no evidence of firearm injuries on both the deceased. PW-2 alleged that firearms were shot in air, which becomes a vital and a material contradiction, as neither any firearm, nor any empties were recovered. Secondly, PW-2 was stating that farsa injury was caused to D-1 (Jagdish), while PW-1 was alleging that both the deceased died on account of farsa injuries. But surprisingly no farsa injuries are indicated on either of the deceased. We have our serious doubts on above evidence as to whether PW-2 was ever present at the scene as we find from page-36 of the paper-book that he was oscillating when he was stating that seeing a fatal attack on his father he went unconscious at the rooftop, but when he came down to rescue his father, he too was assaulted with lathi blows and lost his consciousness to be regained day after so much so that he does not remember as to when and who lodged the report.
12. Now, we come to the injuries of PW-2. He was medically examined on 11.6.1988 at about 6:30 P.M, by PW-8 at PHC Sardhana. His injuries are as under:-
"1. Contusion 11 cm x 2 cm on left scapular region of back.
2. Contusion 4 cm x 1 cm on upper part of left scapular region of back.
3. Abraded contusion 6 cm x 1.5 cm on medial part of right scapular region of back.
4. Contusion 4 cm x 2 cm on left lateral aspect of lower part of back.
5. Contusion 10 cm x 2cm on upper end of outer aspect of right upper arm.
6. Abraded contusion 6 cm x 2 cm on upper half of outer aspect of right upper arm.
7. Contusion 7 cm x 1 cm on outer aspect of upper part of right forearm.
8. Contusion 11 cm / 3 cm on outer aspect of upper half of right thigh.
9. Contusion 1 cm x 1 cm on tip of ring finger of left hand.
10. Contusion abraded 12 cm x 1.5 cm on upper part of left leg on its outer aspect.
11. Contusion 12 cm x 1.5 cm on post aspect of upper half of right thigh."
13. PW-8/ the doctor stated that all injuries were simple and possibility of same being occasioned on account of fall from a vehicle or a cart or from a tree cannot be ruled out.
14. We find that on the one hand prosecution came with a definite case that 8 accused out of whom 4 were armed with countrymade pistols, 2 with lathis and 2 with farsa assaulted 3 victims, but PW-2 injured gets away with simple injuries and in so far two deceased are concerned, they do not bear any injury attributable to the use of a firearm or a farsa, as is indicated in their autopsies.
The ante-mortem injuries of two deceased are as under: -
Ante-mortem injuries of deceased Jagdish:
1. L.W, 6 cm x 1.5 cm x bone deep on left side head 8 cm above left ear.
2. L.W, 3 cm x 1.5 cm left side head 1 cm above injury no.1
3. L.W, 5 cm x 1 cm x bone deep on top of head, 18 cm above left ear.
4. Multiple abrasion on an area of 7 cm x 4 cm of left side forehead 1 cm above left eyebrow.
5. Abrasion 1.5 cm x 1 cm on right side forehead 2 cm above right eyebrow.
6. Multiple abrasion on an area of 6 cm x 3 cm on right side face.
7. Contusion 10 cm x 3 cm on right side neck 3 cm below right ear
8. Punctured wound 1.5 cm x 0.5 cm on (sic) of abdomen 15 cm above umbilicus at 12'O Clock position.
9. Abrasion 1 cm x 0.5 cm on right side chest 4 cm inner to right nipple, 4'O Clock position
10. Abrasion 6 cm x 4 cm on back of right elbow
11. Abrasion 10 cm x 3 cm on back of right forearm.
12. L.W 1 cm x 0.5 cm x deep bone on front of middle of right leg.
13. L.W. 1.5 cm x 1 cm on posterior aspect of left upper arm 12 cm above wrist joint.
14. Abrasion 2 cm x 2 cm of outer aspect of upper part of left knee.
15. Abrasion 2.5 cm x 1 cm on inner aspect of right forearm 1.5 cm above wrist.
16. Abrasion 3 cm x 2 cm on outer aspect of left forearm 1.5 cm.
Anti-mortem injuries of Taras Pal:
1. L.W, 4 cm x 1 cm x bone deep on left side head 12 cm above left ear.
2. L.W. 5 cm x 1 cm x bonedeep on left side back of head 9 cm above and behind left ear.
3. L.W. 5 cm x 1 cm x bone deep right side of head 11 cm above right ear.
4. Contusion 12 cm x 6 cm on top of right shoulder.
5. Contusion 25 cm x 10 cm on back of left shoulder and upper arm.
6. Contusion 5 cm x 4 cm on back of right hand.
7. Abraded contusion 3 cm x (sic) cm on front of right knee.
8. Abraded contusion 2 cm x 1.5 cm front of left knee.
9. Contusion 10 cm x 7 cm on back of left elbow.
10. L.W. 0.5 cm x 0.5 cm x muscle deep on front of left thigh on upper part.
11. Abrasion 5 cm x 3.5 cm on back of left wrist.
12. Contusion 12 cm x 8 cm on back of neck
13. Contusion 6 cm x 8 cm on back of abdomen.
15. We find PW's 1 and 2 to be wholly unreliable, as it is also highly unlikely that 8 accused variously armed, out of whom some were armed with deadly weapons, and have all the intention to eliminate their enemies but surprisingly none of the 2 deceased bore any injury attributable to a deadly weapon, i.e, a firearm and a pharsa and the witness too is spared with a simple injury.
16. PW's-3 and 4 are distant relatives of PW-1, but for indicating previous enmity between the two factions, they could not depose as to which of the accused was armed with a particular weapon or who authored the injuries on the 3 victims. We hold them wholly unreliable.
17. The trial court records conviction on the premise that all accused were armed with lathis as it did not find any firearm injuries, but it commits perversity when it holds that all were armed with lathis which was not the case of prosecution.
18. Accused Sish Pal @ Baddal and Rakaspal @ Bona, who are alleged to have used farsa have already obtained acquittal from the court below. It is highly improbable that in a daylight occurrence when 3 sets of arms, i.e, countrymade pistol, farsa and lathi are possessed by accused then PW-2 would escape only with lathi injuries, which too were simple in nature and the two deceased also did not sustain any farsa or firearm injuries. Once substantive evidence comes under grave suspect then absence of recovery of empties only authenticates the probable defence that the victims were eliminated near the tubewell by unknown assailants and appellants falsely implicated in view of previous enmity over land disputes.
19. We have gone through the records of Government Appeal and find that acquittal has been granted to respondents therein on the ground that even though farsa is alleged to have been used at the victims but there are no farsa injuries. The learned A.G.A, also failed to point out as to which of the injuries could be an outcome of farsa. We after examining the injuries and the testimonies of the witnesses do not find any perversity in the judgment of acquittal.
We, in the ultimate analysis, are of the considered view that on the basis of evidence on record, prosecution has failed to prove its case beyond a reasonable doubt entitling the appellants in criminal appeal to acquittal, their appeal is liable to be allowed, whereas the Government Appeal lacks merit and is liable to be dismissed.
The Criminal Appeal is allowed. The judgment / order dated 23.8.2014 is set aside. Appellant nos. 3 and 5, i.e, Richhpal and Rukanpal are on bail. Their bail bonds stand cancelled. Sureties discharged. Appellant no.2 Kunwar Pal is in jail. He shall be released forthwith, if not detained in any other case.
The Government Appeal stands dismissed.
A copy of this order be supplied to the judgeship concerned for compliance.
Order Date :- 29.01.2021 N.S.Rathour