Allahabad High Court
Prempal And Others vs State Of U.P. on 17 September, 2019
Author: Umesh Kumar
Bench: Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 47 Reserved on 05.08.2019 Delivered on 17.09.2019 Case :- CRIMINAL APPEAL No. - 7177 of 2011 Appellant :- Prempal And Others Respondent :- State Of U.P. Counsel for Appellant :-K.D. Tiwari, Akhilanand Mishra, Arvind Singh, Ashwini Kumar Awasthi, B.K. Singh Raghuvanshi, I.K. Chaturvedi, Manish Tiwary Counsel for Respondent :-Government Advocate, Amit Singh Chauhan Connected with Case :- CRIMINAL APPEAL No. - 7272 of 2011 Appellant :- Anand Sharma Respondent :- State Of U.P. Counsel for Appellant :-Ashwani Kumar Yadav, Ashwini Kumar Awasthi, Manish Tiwary, R.R. Singh, Satya Priya Srivastava, V.S. Pandey Counsel for Respondent :-Government Advocate, Amit Singh Chauhan Hon'ble Ram Surat Ram (Maurya), J.
Hon'ble Umesh Kumar, J.
[Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Sri Manish Tiwary, Senior Advocate, assisted by Sri Atharv Dixit, for the appellants and Sri Om Prakash, A.G.A., for State of U.P.
2. Prempal, Jagpal, Raj Kumar and Krishna Kumar Sharma have filed Criminal Appeal No. 7177 of 2011 and Anand Sharma has filed Criminal Appeal No. 7272 of 2011 from their conviction and sentence passed by Additional Session's Judge, Court No. 13, Moradabad, dated 05.12.2011, in S.T. No. 593 of 2001, State vs. Prempal and others, [arising out of Case Crime No. 278 of 2001], under Section 147, 148, 149, 302 of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC'), Case Crime No. 337 of 2001, against Raj Kumar, under Section 25 of Arms Act, 1959, Case Crime No. 338 of 2001, against Anand Sharma, under Section 25 of Arms Act, 1959, Case Crime No. 428 of 2001, against Jagpal, under Section 25 of Arms Act, 1959 and Case Crime No. 429 of 2001, against Prempal, under Section 25 of Arms Act, 1959, police station Katghar, district Moradabad, convicting and sentencing them, for two years rigorous imprisonment under Section 148 IPC, imprisonment for life and fine of Rs. 10000/- each, under Section 302 read with Section 149 IPC and two years imprisonment and fine of Rs. 2000/- each, under Section 25 of Arms Act, 1959, to Prempal, Jagpal, Anand Sharma and Raj Kumar, with default stipulation.
3. On the written complaint (Ex-Ka-1) of Brijpal Singh (PW-1), FIR (Ex-Ka-27) of Case Crime No. 278 of 2001 was registered under Section 147, 148, 149, 302 IPC, at P.S. Katghar, district Moradabad on 14.03.2001 at 12:15 hours, by Head Constable Kiran Pal (PW-5), against Satyapal Singh, Jagpal, Prempal, Raj Kumar, Anand Sharma and Krishna Kumar Sharma. On the basis of recovery memo (Ex-Ka-21), Case Crime No. 337 of 2001, against Raj Kumar and Case Crime No. 338 of 2001, against Anand Sharma, under Section 25 of Arms Act, 1959, were registered on 30.03.2001 at 12:45 PM. On the basis of recovery memo (Ex-Ka-22), Case Crime No. 428 of 2001, against Jagpal and Case Crime No. 429 of 2001, against Prempal, under Section 25 of Arms Act, 1959, were registered on 14.04.2001 at 13:45 PM, by HC Rajbali Singh (PW-5) at police station Katghar. It has been stated in the FIR that Rampal Singh, the elder brother of the informant had been Pradhan of village Beejna, for last 20 years. In last election, Satyapal Singh son of Mardan Singh was elected as Pradhan, committing malpractice. He always used to threaten to kill his brother. Anand Sharma and Krishna Kumar Sharma of his village used to take side of Satyapal Singh, due to old enmity with his brother. On 14.03.2001 at about 11:00 AM, his brother Rampal Singh was going towards village Beejna from his house at Govind Nagar, on his motorcycle along with the informant. Shiv Kumar Singh son of Yadram Singh, resident of Shivpuri and Narayan Singh son of Kadde Singh, resident of Govind Nagar, were coming on their motorcycle behind them from the city side. His brother alighted him from the motorcycle, to cross the railway line. As soon as his brother crossed the railway line, then Satyapal Singh, Jagpal Singh and Prempal Singh, sons of Mardan Singh, who were riding on a motorcycle, alighted in his front and Raj Kumar son of Mardan Singh, Anand Sharma son of Shiv Charan Lal Sharma and Krishna Kumar Sharma son of Janki Prasad, who were standing nearby, did firing from the pistols in their hands, due to which, his brother died on the spot. All the accused were resident of his village Beejna. This incident was seen by the witnesses Shiv Kumar and Narayan Singh and many other persons, who had come on the spot listening the sound of fire and his shouts. After committing murder of his brother, the accused fled away by the side of railway line, towards west, along with the motorcycle. The dead body of his brother was lying on the spot. After lodging report, legal action be taken against the accused.
4. After lodging of FIR, SI Sunil Kumar Sharma started investigation. He copied the check FIR, G.D. entry in case diary. He came on the spot and recorded statement of Brijpal. He conducted Inquest (Ex-Ka-8) of the dead body on 14.03.2001 in between 13:30 hours to 14:35 hours. He prepared photo lash, challan lash, letters to the authorities etc. (Ex-Ka-9 to Ex-Ka-11) for postmortem and dispatched the dead body through constables Rajendra Singh and Raj Kumar. Dr. Sudhir Kumar Rastogi (PW-3) conducted autopsy of the dead body on 14.03.2001 at 6:30 PM and prepared Postmortem Report (Ex-Ka-2), in which following ante-mortem injuries were noted:-
(i) Gunshot wound of entry, 3 cm x 2-1/2 cm x oral cavity over left side face with blackening and charring around the wound. 4 cm lateral to left side angle of mouth. Bleeding from mouth, ears and nostril present.
(ii) Lacerated wound 2 cm x 1-1/2 cm x muscle deep over root of nose.
(iii) Abrasion 1cm x 1cm over tip of nose.
(iv) Lacerated wound 3 cm x 1 cm x muscle deep over left side chin.
(v) Gunshot wound of entry 3 cm x 1 cm x chest cavity deep over right side chest, 8 cm above right nipple. No blackening, no charring.
(vi) Gunshot wound of entry 1 cm x 1 cm x chest cavity deep over lateral part of left side chest, 13 cm away from left nipple.
(vii) Gunshot wound of entry 2 cm x 1 cm x abdomen cavity deep over left upper part of abdomen.
(viii) Lacerated wound 8 cm x 4 cm x bone deep over back of left forearm, 6 cm below left elbow.
(ix) Gunshot wound of entry 2 cm x 1 cm x through and through, over back of left shoulder.
(x) Gunshot wound of exit 3 cm x 2 cm over top of left shoulder.
(xi) Gunshot wound of entry 1 cm x 1 cm x muscle deep, bullet is coming out from the wound at right side lateral of the chest, 13 cm below axilla.
In the internal examination, both lungs, stomach and liver were lacerated. Heart was lacerated and cavity contained 3 litres fresh blood. Spleen and both kidneys were lacerated. Urinary Bladder was empty. Small and large Intestines contained faecal and gaseous matter.
In the opinion of the Doctor, cause of death was shock and haemorrhage due to ante-mortem injuries."
5. SI Sunil Kumar Sharma made spot inspection on the pointing out of the informant and prepared site-plan (Ex-Ka-12). He recovered 4 used cartridges of 315 bore, 3 used cartridges of 12 bore and one bullet from the spot and prepared its recovery memo. He took into possession the blood stained and plain earth from the spot and prepared its recovery memo (Ex-Ka-6). On 15.03.2001, he recorded statements of Kiran Pal Singh, Shiv Kumar, Narayan Singh, Partosh Kumar, Arun Kumar Sharma, Rajvir Singh, Sanjay Kumar and copied the Inquest in case diary. In the meantime, the accused Anand Sharma, Krishna Kumar Sharma and Raj Kumar surrendered before the Court. He recorded their statements in jail, on 24.03.2001, in which they confessed their guilt and became ready to recover the weapons used in commission of crime.
6. Thereafter, investigation was transferred to SSI Ajit Singh (PW-6), who copied the postmortem report in case diary on 28.03.2001. On 29.03.2001, he took steps under Section 82 and 83 Cr.P.C. in order to procure attendance of Satyapal, Jagpal and Prempal. He took the accused Anand Sharma, Krishna Kumar Sharma and Raj Kumar in police custody remand on 30.03.2001 and on the pointing out of Raj Kumar, one pistol of 12 bore, on the pointing out of Anand Sharma, one pistol of 12 bore and on the pointing out of Krishna Kumar Sharma one iron rod were recovered. He prepared its recovery memo (Ex-Ka-21). On its basis Case Crime No. 337 of 2001, against Raj Kumar and Case Crime No. 338 of 2001, against Anand Sharma, under Section 25 of Arms Act, 1959, were registered on 30.03.2001 at 12:45 PM, by Constable Rajbali Singh (PW-5). On 07.04.2001, the accused Prempal and Jagpal surrendered and sent to jail. SSI Ajit Singh (PW-6) recorded statements of Prempal and Jagpal, in which they confessed their guilt and became ready to recover the weapons used in commission of crime. They were taken in police custody remand on 14.04.2001 and on their pointing out, one pistol of 315 bore each were recovered. He prepared its recovery memo (Ex-Ka-22). On its basis Case Crime No. 428 of 2001, against Jagpal and Case Crime No. 429 of 2001, against Prempal, under Section 25 of Arms Act, 1959, were registered on 14.04.2001 at 13:45 PM, by Constable Rajbali Singh (PW-5). He attached the properties of Satyapal on 24.04.2001. He recorded the statements of Virendra Singh, Gulab Singh and Prithvi Singh on 13.06.2001. On the pointing out of SI Netrapal Singh, he prepared site-plan (Ex-Ka-23) of the place of recovery of the weapons from Raj Kumar and Anand Sharma. On 14.06.2001, he prepared site-plans (Ex-Ka-24 and Ka-25) of the places of recovery of the weapons from Prempal and Jagpal. He submitted charge sheet (Ex-Ka-16) on 14.06.2001, against Raj Kumar, Satyapal, Prempal, Jagpal, Anand Sharma and Krishna Kumar Sharma. Satyapal died later on, in police encounter.
7. SI Satyapal Singh (PW-4) investigated Case Crime No. 428 of 2001, against Jagpal and Case Crime No. 429 of 2001, against Prempal, under Section 25 of Arms Act, 1959 and submitted charge sheet (Ex-Ka-14 and Ka-15) against them, after obtaining sanctions for prosecution (Ex-Ka-16 and Ka-17), from District Magistrate.
8. On committal, the case was registered as S.T. No. 593 of 2001, State Vs. Prempal and others. Additional Session's Judge framed charges on 07.11.2001, against the accused. The accused pleaded "not guilty" and claimed for trial. In order to prove the charges, the prosecution examined Brijpal Singh (PW-1), the informant, Shiv Kumar (PW-2), an eye witness, Dr. Sudhir Kumar Rastogi (PW-3), to prove Postmortem Report (Ex-Ka-2), SI Satyapal (PW-4), Investigation Officer, Constable Rajbali Singh (PW-5), to prove check FIR, SSI Ajit Singh (PW-6), Investigation Officer, Constable Kiran Pal (PW-7), to prove check FIR, SI Netrapal Singh (PW-8) to prove recovery memo of the weapons and filed documentary evidence.
9. All the incriminatory materials and facts were put to the accused, under Section 313 Cr.P.C. They denied the evidence and materials and claimed false implication, due to enmity. The witnesses of facts were near relatives of the deceased. The recoveries were planted. Anand Sharma stated that his uncle Janki Prasad was murdered by Rampal Singh and others. Same plea has been taken by Krishna Kumar Sharma son of Janki Prasad and they stated that they were falsely implicated due to aforesaid murder case. They examined Nripendra Kumar (DW-1), the lekhpal of village Beejna, to prove that there was dispute between the brothers of Rampal Singh (the deceased) in respect of partition of their properties, Anand Pal Singh (DW-2) and Syed Ali Nazim Zaidi (DW-3) to prove alibi of the accused Prempal, HC Yashpal Singh (DW-4) to prove that Rampal Singh (the deceased) and his brother Brijpal Singh (the informant) were history sheeter of the police station and Ram Singh (DW-5), to prove that attendance register of the year 2001 was weeded out.
10. Additional Session's Judge, after hearing the parties, by the impugned judgment held that there was election rivalry between the parties as such the motive is proved. The place, where Prempal was on duty, was at a distance of one kilometer from the place of incident as such his plea of alibi was not relevant. This was a day light incident and has been proved from the statements of Brijpal Singh and Shiv Kumar (PWs-1 and 2). On these findings, he convicted the appellants and sentenced as mentioned above. Hence, these appeals have been filed.
11. In order to prove the charges, the prosecution has examined Brijpal Singh and Shiv Kumar (PWs-1 and 2) as the eye witnesses of the incident. Brijpal Singh (PW-1) has stated that Rampal Singh, his elder brother was elected as the Pradhan of village Beejna, 21 years ago. Since then he was continuously elected as the Pradhan. In last election, Rampal Singh contested the election but Satyapal Singh was elected as the Pradhan, committing malpractice. He always used to threaten to kill his brother. Anand Sharma and Krishna Kumar Sharma of his village used to take side of Satyapal Singh, due to old enmity with his brother. On 14.03.2001 at about 11:00 AM, his brother Rampal Singh was going towards his village Beejna from his house at Govind Nagar, on his motorcycle along with him. Shiv Kumar Singh son of Yadram Singh, resident of Shivpuri, police station Katghar and Narayan Singh son of Kadde Singh, resident of Govind Nagar, police station Katghar, were coming on their motorcycle behind them from the side of Moradabad city. His brother alighted him from the motorcycle, before crossing the railway line. As soon as his brother crossed the railway line, then Satyapal Singh, Jagpal Singh and Prempal Singh sons of Mardan Singh, who were riding on a motorcycle, alighted from it and Raj Kumar, Anand Sharma and Krishna Kumar Sharma, who were standing nearby, did firing from the pistols in their hands. Krishna Kumar Sharma also armed with an iron rod, apart from pistol. He did fire from pistol and caused injury through iron rod. Due to which, his brother Rampal Singh died on the spot. All the accused were resident of his village Beejna, police station Bhojpur and they were known to him since before the incident. This incident was seen by the witnesses Shiv Kumar and Narayan Singh and many other persons, who had come on the spot listening the sound of fire and his shouts. After committing murder of his brother, the accused fled away by the side of railway line, towards west. On his written complaint (Ex-Ka-1), FIR was lodged at the police station. Satyapal Singh son of Mardan Singh was encountered by the police. Apart from Anand Sharma all the accused were present in the Court.
In cross-examination, he has stated that Rampal Singh was riding the motorcycle and he was alighted from motorcycle. He saw the accused while firing. They fired from a distance of 3-4 paces. First shot was made from a distance of 3-4 feet. The accused Prempal was armed with a pistol of 315 bore. None of them fired upon him. The witness Shiv Kumar and Narayan, were behind his back and coming on motorcycle. After causing gunshot injuries, the accused fled away towards west, by the side of railway line. His brother fell down at a distance of 8 paces from railway line, after receiving gunshot injuries and not on railway line. He saw six-seven injuries on the body of his brother and large quantity of blood were oozing from it. The accused Prempal was bearing pant and shirt. He did not know that Prempal was doing service. Satyapal, the brother of the accused Prempal had won the election by committing malpractice, remaining in jail. He did not know that Satyapal had enmity with any other person in the village. It is incorrect to say that he had named the accused due to election rivalry of the village Pradhan. He did not have enmity with Krishna Kumar Sharma and Anand Sharma of the village. He was falsely made as an accused in the murder of the father of Krishna Kumar Sharma, in which he had been acquitted. Beejna House, situated at Govind Nagar, was in the names of Rampal and his wife. Apart from the ancestral property, Rampal had 65 bighas land in his name. He and his brother Jagdish also had approximately same area of the land in their names. He denied that there was any dispute between his brothers and Rampal in respect of Beejna House due to which they had no talking terms. He owned a shop of Pump-set at Sirsawa crossing. Rampal had a shop of Pump-set at Got Crossing. Distance between the two shops were about 5 kilometer and not 15 kilometer. His shop used to be opened at about 10:00 AM by his servant Harpal Singh. He admitted that in the murder case of Janki Prasad, he his brother Rampal and other brothers were accused. He also admitted that the accused Jagpal was also an accused in the murder case of Janki Prasad. He admitted that he and his brother Rampal were accused in the murder case of Malkhan Jatav of village Milak but stated that Malkhan was a harden criminal and he had tried to loot them on which he was caught by the villagers and murdered. He did not give answer in respect of other criminal and revenue cases against him and his brothers. He avoided to answer as to whether he was challaned on various occasions under Section 107/116 Cr.P. C. He admitted that Surya Prakash Mathur had lodged an FIR under Section 394 IPC against him but stated that he was acquitted in that case. He stated that he was acquitted in the case under Section 3/7 of E.C. Act. He admitted that Narayan Singh, the witness was his mother's sister's son. Narayan Singh was living at Govind Nagar. He had not seen the house of Narayan Singh. He remained at place of incident for about one hour after the incident. He did not give any information to his house but the persons known to him had informed to his house as well as his relations. Later on they had come on the spot. He went to the police station Katghar on foot from the place of incident and met with In-charge police station there. After lodging the FIR, a copy was given to him. He came back on the spot along with copy of the FIR. The In-charge police station came on the spot in his vehicle and he came on foot. On coming to the spot, the police has recorded his statement. Thereafter the police made spot inspection and sealed the dead body. As he was nervous, he could not get the weapon of iron rod scribed in the FIR. Krishna Kumar was armed with iron rod and pistol both. He could not state as to how in his statement under Section 161 Cr.P.C. all the accused were shown as armed with iron rods and pistols. The accused were having enmity with him but he did not realize danger of life from them. At the time of incident, there was telephone connection at Beejna House. From the idol of Hanuman Ji a bypass road goes towards Sambhal and from that bypass road distance of Beejna House was two furlong. The distance of Beejna House from railway crossing, where they were crossing the railway, was one furlong and Prabhat market situated at a distance of one furlong from railway crossing. Yadram Singh had three sons namely Shiv Kumar Singh, the witness, Sanjay Kumar and Sushil Kumar Singh. Shiv Kumar Singh was present on the spot at the time of the incident while Sanjay and Sushil came on the spot after 45 minutes of the incident. They did not lodge any FIR of the incident relating to threat of life given by the accused. The police station situates in west of the place of incident in the west corner. He reached to the house of Rampal Singh at about 09:30 AM where his son had dropped him on the motorcycle. At that time his son was a student of G.I.C. Moradabad and after dropping him at the house of Rampal Singh, he went to his college. Neither he nor the deceased Rampal Singh ate the meal as they had to go to his village. He alighted 6-7 paces before the railway line and his brother crossed the railway line riding on the motorcycle. He saw the accused from a distance of 8-10 paces. They were at a distance of 6-7 paces in the north from the railway line. When they opened fire, he raised alarm and backed off from the railway line. There was double railway line on the spot. Total seven shots were fired by the accused in 2-3 minutes. After receiving gunshot injury, his brother immediately fell down and the motorcycle also fell down separately. Neither he, nor any person had lifted his brother. They did not try to take him to the doctor, as he had already died. He did not immediately go to the police station and remained there for a period of one hour. When his family members came on the spot, then he went to the police station. He remained for 15-20 minutes at the police station. When he returned back to the spot, the Investigating Officer recorded his statement after 10 minutes. He denied that no one was present at the time of murder of Rampal Singh on the spot and he was called from his village.
12. Shiv Kumar (PW-2) in his examination-in-chief has supported the prosecution version and stated that on 14.03.2001, he along with Narayan Singh, were going to Moradabad Bazar from mohalla Govind Nagar on motorcycle (Rajdoot No. UP-21 D 6653). When they reached near the railway line, then the accused Prempal, Satyapal and Jagpal were coming from Prabhat Market towards the railway line on the front side on a Hero Honda Motorcycle. Rampal Singh of village Beejna was ahead of them on his motorcycle. Rampal Singh alighted Brijpal Singh from his motorcycle and he was crossing the railway line on foot along with his motorcycle. He also alighted Narayan Singh from his motorcycle before crossing the railway line. He stated that the incident took place at 11:00 hrs. when Satyapal, Jagpal and Prempal after getting down from the motorcycle, surrounded Rampal Singh. All the three accused were armed with country made pistols and suddenly opened fire with their respective pistols, with intention to kill Rampal Singh. Raj Kumar, the brother of Satyapal, Anand Sharma and Krishna Kumar Sharma, armed with country made pistols, came from behind the bricks rack and had also opened fire upon Rampal Singh, with the intention to kill him. Rampal Singh was hit by the fire made by the accused. Along with his country made pistol, Krishna Kumar also had a pointed iron rod. Krishna Kumar had also hit Rampal Singh with an iron rod. Rampal Singh fell down at a distance of 5-6 steps from the railway line, by pressing his injury. He knew all the accused from before. He had recognized them at the time of causing the incident. The accused fled away on their motorcycles towards the west. The accused while running away, threatened the people, waving their country made pistols. When he, Narayan Singh and Brijpal Singh reached near Raj Pal Singh, then they found that he was dead. Thereafter, he along with Brijpal Singh, came to the police station and lodged the F.I.R.
In cross-examination, he has stated that the deceased was his maternal uncle. On the date of incident, he had gone to Govind Nagar at the house of Narayan Singh (his maternal uncle) at 9:00 hrs. as he called him to purchase some building materials for construction of his house. The house of Narayan Singh was at a distance of 200-300 paces from the railway line. It was incorrect to say that all the directions and distances stated by him were false; that Narayan Singh had no house; that there was a by-pass road at a distance of 100-150 steps from the house of Narayan Singh; that Moradabad - Sambhal Road was situated 100-150 yards from Street No. 2; that Street No. 1 was situated before Moradabad - Sambhal Road in the Bhadora side; that Street No. 1 was not near the Over Bridge; that while going from his house, Shivpuri was situated before the railway line. From the house of Narayan Singh, through the road leading to Shivpuri, the railway line is at a distance of 200-300 steps. The railway line is at a straight distance of 100 steps from his house. Prabhat Market is at a distance of 1-1/2 k.m. in case of going a long way. There is a road in front of his house. While going to the railway line by the road in a straight line, three houses fall in between. Thereafter, there is a nalla and then the railway line. Three houses, situated beside the road, were in an area measuring 100-100 yards. The railway line could not be crossed either on foot or on motorcycle, from the place of crossing the nalla. It was incorrect to say that there was a bridge constructed over this nalla near his house. He did not know whether the nalla led to the place of incident or not. There is a road all along the nalla. They used to go on foot or on motorcycle. He stated that it is incorrect to say that he was intentionally concealing the real facts. He stated that the incident took place in front of gali of Beejna House. He saw the accused from the distance of 10-12 paces. When Rampal was hit by the accused, he (Rampal) had crossed the railway line and on proceeding one-two paces, he fell down. He could not recall whether Rampal was fired by the accused after falling down and iron rod was used as a lathi. Two three blows would have caused. He informed daroga ji that the persons having country made pistols had iron rod also. He did not inform that except one accused, who was having iron rod, all were having pistols but why daroga ji had not written this thing, was not known to him. The accused surrounded Rampal Singh from the distance of four -five steps. On first fire, Rampal did not fall and all the bullets hit simultaneously due to which he fell down. He denied the suggestion that motorcycle of Rampal fell upon him and stated that his (Rampal) motorcycle fell down one-two paces away from him. He could not recall whether the blood stain was present on the motorcycle or not. When Rampal was fallen down, then he (Shiv Kumar) was before the railway line. He did not try to save him and stated that as firing was going on, they made alarm from the place where they were. On their alarm, his maternal aunt, her younger son and other people came there from Beejna House and before reaching the people from Beejna House, he (Shiv Kumar) had reached near Rampal. They did not try to take Rampal to the doctor as they had realized that Rampal had died as he received grievous bullet injury. On reaching his maternal aunt, he had gone to police station on foot. His maternal uncle had scribed the report in front of him. About 15-20 minutes, they reached at the police station where daroga ji was not available. Thereafter he went to Beejna and from Beejna to Budh Vihar for giving information of the incident. Daroga ji had called him at Beejna House on the next day at about 10-11 o'clock. After interrogation, daroga ji did not meet him. It was incorrect to say that daroga ji had not recorded his statement. He suddenly came before Rampal. It was incorrect to say that this incident was not caused before him. It was incorrect to say that murder of Rampal was caused during dark hours of early morning. It was incorrect to say that with due deliberations, they made a false report and also made a false statement before the court. It was incorrect to say that report was not scribed on the spot and it was scribed after consultation with daroga ji at the police station. It was also incorrect to say that Brijpal had not sent him for giving information of the incident and he was (Shiv Kumar) called from Jat gaon and the information was given at the police station.
13. We have considered the arguments of counsel for the parties and perused the record. In order to prove the prosecution case, the prosecution has examined Brijpal Singh (PW-1), the real brother of the deceased and Shiv Kumar (PW-2), the real sister's son of the deceased. Brijpal Singh (PW-1) was resident of village Beejna, police station Bhojpur, which was at a distance of about 5 kilometer from the place of incident. According to him, he had gone to Beejna House situated at Govind Nagar, police station Katghar on the date of incident at 9:30 AM and was coming back to the village Beejna along with the deceased on his motorcycle at the time of occurrence. Shiv Kumar (PW-2) was resident of village Jat gaon, which was at a distance of 40 kilometer from the place of occurrence. But according to him, he was residing at Shivpuri, at the time of incident. On 14.03.2001, he had gone to Govind Nagar at the house of Narayan Singh, (his maternal uncle) at 9:00 AM as he had called him to purchase building materials for construction of his house. At the time of incident, he was going to Moradabad for purchasing building material on his motorcycle along with Narain Singh. Both of them are chance witnesses and their testimonies have to be scrutinized strictly.
14. Supreme Court in Satbir v. Surat Singh, (1997) 4 SCC 192, Harjinder Singh v. State of Punjab, (2004) 11 SCC 253, Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360) and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 has held that the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence. In Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 has held that deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded.
15. So far as the motive is concerned, according to prosecution, due to election rivalry, the accused Satyapal Singh, Jagpal Singh, Prempal Singh and Raj Kumar (all sons of Mardan Singh) and Anand Sharma and Krishna Kumar Sharma who used to take favour of Satyapal Singh, had committed murder of Rampal Singh on 14.03.2001 at 11:00 AM at the railway crossing, Govind Nagar, Moradabad. The accused admitted that Satyapal Singh had won the election of Pradhan in last election, defeating the deceased but they stated that due to suspicion, they were falsely implicated. They had already won the election and there was no necessity for them to cause the murder of Rampal Singh. Anand Sharma and Krishna Kumar Sharma stated that Janki Prasad (uncle of Anand Sharma and father of Krishna Kumar Sharma) was murdered by Rampal Singh and others. As such they were falsely implicated due to suspicion. The fact that in the murder case of Janki Prasad, Ram Pal Singh (the deceased), Brijpal Singh (PW-1) were cited as the accused, has been admitted to Brijpal Singh (PW-1). Brijpal Singh was allegedly present at a distance of 8-10 paces. But none of the accused had targeted or fired upon him although he was also having equal enmity. Brijpal Singh (PW-1) has admitted that Jagpal (the appellant) was also an accused along with them in the murder case of Janki Prasad. As such his statements that Anand Sharma and Krishna Kumar Sharma were used to take side of other accused is not liable to be believed. In the fact of the case, there may be motive for Krishna Kumar Sharma but the motive as alleged for other accused was very week. However in the case of eye witness account, the motive has no importance.
16. The incident is alleged to have taken place on 14.03.2001 at 11:00 AM, while FIR was lodged on the same day at about 12:15 PM. According to Brijpal Singh, he remained on the spot for one hour and thereafter he went to the police station for lodging FIR on foot. His conduct is also not normal conduct, inasmuch as, his nephew was having motorcycle and police station was at a distance of 1 kilometer from the place of occurrence. Instead of going to the police station on motorcycle, he preferred to go on foot, from which it appears that he was not present on the spot. According to Brijpal Singh (PW-1), Beejna House belonging to the deceased situated at a distance of one furlong from the place of occurrence, at the end of the lane, which was running from the railway crossing. Shiv Kumar (PW-2) stated that on their alarm, his maternal aunt, her younger son and other people had come there from Beejna House. The family members of the deceased had come on the spot immediately after the incident. They did not make any effort to provide medical aid to the deceased as such waiting for one hour on the spot raises a doubt that the accused were not known at that time as such FIR was delayed.
17. Brijpal Singh (PW-1) has stated that on the date of incident, his son had dropped him at the house of the deceased Rampal Singh at about 9:30 AM. Thereafter, he remained there up to 11:00 AM. At about 11:00 AM, he along with the deceased Rampal Singh were going to village Beejna. Brijpal Singh did not state any reason for going to the house of Rampal Singh in morning and thereafter for going to village Beejna along with Rampal Singh. On behalf of the accused, Nripendra Kumar (DW-1), lekhpal of village Beejna was examined. He has stated that there was partition among the brothers of Rampal Singh of the ancestral holding. It does not appear probable that Brijpal Singh would go to the house of Satyapal Singh, which situated at a distance of about 5 kilometers in the morning, without any reason. On the other hand, he admitted that he owned a pumping set agency and his shop was at Sirsawa Crossing, while deceased Rampal Singh had another pumping set agency and his shop was at Got Crossing. Distance between these two shops was 5 kilometers although according to the accused, it might be about 15 kilometers. Shops of both of them used to be opened in the morning at about 10:00 AM, but he cleverly stated that his shop as well as his brother's shop used to be opened by the servants employed in the shops. Harpal Singh was employed in his shop, while Phool Singh was employed in the shop of Rampal Singh.
18. Brijpal Singh (PW-1) stated that after committing murder of Rampal Singh, which took about 2-3 minutes, the accused had run away towards west. It may be mentioned that there were total 6 accused, who made total 7 fires. Thus, while committing murder of Rampal Singh, less than a minute might have been taken. He stated that thereafter, he did not lift his brother Rampal Singh, nor tried to give any medical aid to him. He remained on the spot for one hour and did not try to give any information to the house of Rampal Singh, which was hardly at a distance of 1 furlong from the place of occurrence. The conduct of Brijpal Singh, who was a real brother of the deceased, was not natural, inasmuch as, his nephew Shiv Kumar, along with motorcycle and his cousin Narayan Singh (mother's sister's son), were present on the spot. In such circumstances, even if the deceased had sustained 7 gunshot injuries, they would have tried to take him at least to the nearest hospital and there is no reason for them for not giving any information to the house of the deceased Rampal Singh, which was at a distance of 1 furlong from the place of occurrence. These facts raises a serious suspicion regarding presence of the witnesses on the spot.
19. In the FIR, it has not been mentioned that any of the accused were armed with iron rod. In the statement under Section 161 Cr.P.C., Brijpal Singh had stated that apart from pistols, all the accused were armed with iron rods. In the statement in the Court, he has stated that only Krishna Kumar Sharma was armed with iron rod and pistol, while the other accused were armed with pistols. On the body of deceased, Rampal Singh, Injury No. 8 of postmortem report was lacerated wound of 8 cm x 4 cm x bone deep, 6 cm below the elbow of left hand. This injury does not appear to be caused by iron rod, inasmuch as, the size of other lacerated wounds of the postmortem report were 3 cm x 1 cm, 3 cm x 1 cm and 2 cm x 1.5 cm. There was material improvement in the statement of Brijpal Singh in this respect, which too is not corroborated with the medical evidence. On that ground also the presence of the witnesses on the spot appear to be suspicious. Supreme Court in Maniram vs. State of U.P., 1994 (Supp.2) SCC 289 and Kapildeo Mandal and others vs. State of Bihar 2008 (16) SCC 99, has been held that if medical evidence is not corroborated from ocular testimony then statement of witness is not reliable.
20. There are material contradictions between the statements of Brijpal Singh (PW-1) and Shiv Kumar (PW-2), in respect of manner of assault, inasmuch as according to Brijpal Singh, when his brother crossed the railway line, then Satyapal Singh, Jagpal Singh and Prempal Singh alighted from motorcycle and Raj Kumar, Anand Sharma and Krishna Kumar Sharma started firing upon him, while according to Shiv Kumar, Satyapal Singh, Jagpal Singh and Prempal Singh alighted from motorcycle and besieged Rampal Singh and fired upon him. Raj Kumar, Anand Sharma and Krishna Kumar Sharma, who were standing by the side of rack of bricks, came out and also fired upon him. Thus, there was material contradictions between the statements of two witnesses, with regard to the manner of assault. Conduct of Shiv Kumar (PW-2) was also unnatural inasmuch as he was a real nephew of the deceased but he also remained on the spot as a stranger and did not make any effort to provide medical aid to the deceased. According to Brijpal (PW-1), Shiv Kumar and Narain Singh were coming on their motorcycle behind them from the side of Moradabad City. This does not appear to be probable as Beejna House situated in the same lane at the end which was infront of railway crossing.Shiv Kumar (PW-2) stated that Beejna House situated in lane no. 5 and house of Narain Singh was in lane no. 2. At the time of incident they were going to Moradbad city.
21. The incident had occurred on 14.03.2001 at 11:00 AM. According to Brijpal Singh, neither he, nor the deceased Rampal Singh had taken food by that time. In the small intestine, as well as in the large intestine of the deceased, faecal matters were found present. In the month of March 2001, not eating anything up to 11:00 AM., although they were present at their house, also appears to be unnatural, while the presence of faecal matter in the small intestine and large intestine at that time, also raises a doubt in respect of time of the incident. It is admitted to Brijpal Singh (PW-1) that various criminal cases were registered against the deceased. This fact was also proved from the statements of Head Constable Jaipal Singh (DW-4). Rampal Singh, the deceased, was a man of criminal antecedent as such the possibility that he might have been murdered by someone else cannot be ruled out. A strict scrutiny of the statements of eye witnesses show that they do not corroborate with the medical evidence, as well as there are contradictions, as such, the accused are entitled for benefit of doubt.
22. So far as conviction of the appellants Jagpal Singh, Prempal Singh, Raj Kumar and Anand Sharma under Section 25 of Arms Act, 1959 is concerned, in Case Crime No. 337 of 2001 and Case Crime No. 338 of 2001, neither any investigation was done, nor any witness was examined to prove the papers relating to investigation. There is nothing on record to show that any sanction was obtained from the District Magistrate for prosecuting Raj Kumar and Anand Sharma under Section 25 of Arms Act, 1959. No public witness of the recovery of the weapons were produced before the Court.
23. So far as Case Crime No. 428 of 2001 and Case Crime No. 429 of 2001 are concerned, no ballistic examination report was filed. The Investigating Officer S.I. Ajit Singh (PW-6) has admitted that he did not examine the weapon after firing, as to whether it was a weapon or a toy. No public witness of the recovery of the weapons were produced before the Court. Thus, conviction of the appellants Jagpal Singh, Prempal Singh, Raj Kumar and Anand Sharma u/s 25 of Arms Act is also liable to be set aside.
24. In view of the aforesaid discussions, the aforementioned appeals succeed and are allowed. Conviction and sentence of Prempal, Jagpal Singh, Raj Kumar, Anand Sharma and Krishna Kumar Sharma, passed by Additional District and Session's Judge, Court No. 13, Moradabad, dated 5.12.2011, in S.T. No. 593 of 2001, State vs. Prempal and others, [arising out of Case Crime No. 278 of 2001], under Section 147, 148, 149, 302 of Indian Penal Code, 1860 (hereinafter referred to as the IPC), Case Crime No. 337 of 2001, against Raj Kumar, under Section 25 of Arms Act, 1959, Case Crime No. 338 of 2001, against Anand Sharma, under Section 25 of Arms Act, 1959, Case Crime No. 428 of 2001, against Jagpal, under Section 25 of Arms Act, 1959 and Case Crime No. 429 of 2001, against Prempal, under Section 25 of Arms Act, 1959, police station Katghar, district Moradabad, are set aside. The appellants are acquitted from the charges and set free on their liberty.
The appellants shall furnish their bonds in terms of Section 437-A Cr.P.C. before the Magistrate concerned, within one month from their release.
Office is directed to remit the original records to the court below and send a copy of this judgment for its compliance.
Order Date :- 17.9.2019 Jaideep/-
[Umesh Kumar,J.] [ Ram Surat Ram (Maurya),J.].