Allahabad High Court
Shiv Pal Singh & Others vs State Of U.P. on 13 August, 2012
Author: Arun Tandon
Bench: Arun Tandon, Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 53 Case :- CRIMINAL APPEAL U/S 374 Cr.P.C. No. - 5064 of 2005 Petitioner :- Shiv Pal Singh & Others. Respondent :- State Of U.P. Petitioner Counsel :- Apul Misra,G.P. Dixit,G.S.Hajela,Kunwar Digvijay Singh,N.K. Singh,P.N. Misra,R.K. Tripathi Respondent Counsel :- Govt. Advocate Hon'ble Arun Tandon, J.
Hon'ble Ramesh Sinha, J.
This criminal appeal arises out of the judgment and order of the learned Additional Sessions Judge, Court No. 3, Farrukhabad dated 3.10.2005 passed in S.T. No. 275 of 1985.
The appeal was originally preferred by four appellants. The appellant No.1 Shiv Pal Singh, S/o Shiv Mangal Singh has since expired as per report of the Chief Judicial Magistrate dated 4.1.2012 as noticed in the office report dated 9.7.2012. Therefore, appeal preferred by him had been abated.
Under the impugned judgment, each of the appellants have been convicted of the offences under Sections 302 read with Section 149 and under section 148 IPC. They have been sentenced to life imprisonment under section 302 IPC read with Section 149 IPC and for the offence 148 IPC they have been sentenced with three years rigorous imprisonment each by the trial Court. It was further ordered that all the sentences shall run concurrently.
The prosecution story as reflected from the records is as follows:-
A First information report was registered on 19.11.1980 at 9:15 a.m. by one Chail Bihari with the Chowki In-charge Police Station Rajepur, District Farrukhabad. In the F.I.R it was mentioned that on 19.11.1980 at about 7:30 a.m Babu Ram (deceased) brother of the informant had gone to the chak situated in front of the house of the informant for watering the fields. The chak was situated straight in front of the baithak of informant. At the relevant time, informant along with his brother Kunwar Bahadur, nephews Jagdish Chand & one Kuldeep Kumar was sitting in the Chaupal. After a short while they heard scream of Babu Ram and the sound of a gun shot. The informant and others ran towards the field and found that residents of the same village namely Dafedar and Nirbhay armed with single barrel gun, Dhandhu @ Shishu Pal Singh, Jagpal @ Jaggu armed with double barrell and single barrel gun respectively, and Shiv Ratan Singh and Shiv Pal Singh armed with single barrel gun and rifle were openly firing on the informant's brother Babu Ram. In order to save himself Babu Ram ran towards the orchard of Ram Prasad Nai but the accused surrounded Babu Ram and killed him. Because of gun shots injuries Babu Ram fell down on North East corner of the orchard of Ram Prasad Nai. The victim expired on the spot. On hearing the alarm and gun shots the other residents of the village namely Nanku Pandit and Jagdish Singh and others also came to the spot. The informant, his brother, nephew and the cousin had seen the assailants fired upon Babu Ram. Along with the persons mentioned above, there were two unknown assailants who were also armed with single barrel gun but their names are not known and could be identified after seeing them. In the FIR it was also stated that one month earlier to the present incident the accused Dafedar and Dhandhu had fired upon Babu Ram qua which a case had been registered at Police Station Mijapur district Shahjahanpur. The accused Dhandhu and Dafedar proclaimed themselves to be the relatives of Station House Officer, Shiv Chander Singh, Police Station Rajepur and often visited the Police Station Rajepur. It was also mentioned that the deceased had given several applications in writing against the Station House Officer to higher authorities seeking protection of his life and property. It was further stated that the accused persons were openly claiming in the village that the S.O. Shiv Chander Singh has asked them to kill Babu Ram and the killers shall be saved. In conspiracy with the Station House Officer, Rajepur the accused persons have killed the brother of the informant in a pre-planned manner.
The FIR was registered as Case Crime No. 248 of 1980 under Sections 147 148, 149, 302 IPC at police station Rajepur, district Farrukhabad. The inquest report of the dead body of Babu Ram was prepared on 19.11.1980. The Investigating Officer visited the site and the statement of the witness was also recorded.
The investigation of the case was transferred to CBCID. After investigation, CBCID submitted a charge sheet against the accused Nos. 1 to 6 for the offences under Sections 148, 149, 302 IPC. Cognizance of the offence was taken by the Chief Judicial Magistrate on 22.6.1984. Since the case was trial-able by the Court of Sessions, the Magistrate committed the case to Sessions Court on 15.6.1985. Charges under Sections 147, 148, 149, 302 IPC were framed against Jagpal, Shiv Pal Singh, Shiv Ratan Singh, Nirbhay, Dhandhu, Dafedar. On an application of the prosecution under section 319 Cr.P.C Shiv Chander Singh was also summoned by the Court and charges were framed against Shiv Chander for the offences under sections 302, 120-B IPC for conspiring murder of Babu Ram.
The accused pleaded not guilty and claimed trial.
The prosecution in support of its case produced Chail Bihari as PW1, Kunwar Bahadur as PW2, Dr. B.P. Bhatnagar as PW3, Ram Chandra Singh as PW4, retired Deputy S.P., Vishwa Pal as PW5, Mohd. Wasim Constable CBCID as PW6 and Rajendra Prasad Constable CBCID as PW7.
Documentary evidence was filed on behalf of the prosecution. FIR was marked as Exhibit Ka-1. Inland letters were marked as Exh-Ka-2, application of informant Chail Bihari Lal dated 19.11.1980 was marked as Exh-Ka-3, post mortem report of the deceased Babu Ram was marked as Ka-4. Inquest report of deceased Babu Ram was marked as Exh.Ka-5 and Exh.Ka-8 was a site plan, Exh-Ka-7 recovery memo of gun cartridges, Exh-Ka-9 charge sheet, Exhibit No. Ka-10 letter to CBCID, Exh-Ka-12 and Exh.Ka-13 were marked as Copies of GD, Exh.-Ka-14 and Exh.Ka-15 are the registers of police, Exhibit Ka-16 is letter to R.I., Exh.Ka-13 letter of CMO, Exh-Ka-18 letter to CMO Exh.Ka-19 is sketch map of the deceased body, Exh.Ka-20 is form 13 of the R.I. Police.
The statements of the accused were recorded under Section 313 Cr.P.C. Accused Jaggu @ Jagpal stated that he was been falsely implicated due to enmity, false charge sheet has been submitted witnesses have deposed incorrect facts. He also stated that his real brother son Raghuveer Singh had married the daughter of brother in law of the informant out of love, prior to this incident, the informant has grievance and has falsely implicated the accused. The other accused Jaggu alias Jagpal and Dhandhu alias Shishu Pal Singh alleged that they have been falsely implicated and their real brother son Raghuveer had married the daughter of brother-in-law of informant without the consent of her parents because of this they have been falsely implicated. Shiv Pal Singh also stated that he has been falsely implicated and witnesses have falsely deposed against him. He also stated that Badshah and Ram Bhajan are persons of informant party. Police had challand these persons along with guns. Accused Shiv Pal was witness of the police. Deceased Ram Babu was also involved he however, ran away. Informant has falsely lodged the First Information Report only by way of revenge. Accused Shiv Ratan Singh also stated that he has been falsely implicated and took a similar stand as was taken by Shiv Pal Singh. Accused Shiv Chander Singh stated that he has been falsely implicated due to enmity. It was submitted by him that his presence was not deposed by any witness. The statement of the witnesses were not true. At the time of incident one Hari Swaroop Sharma was in-charge of the out post police station Amratpur and Shiv Chander Singh was in-charge of Police Station Rajepur. A conspiracy has been hatched for falsely implicating him.
The accused did not led any oral evidence, and filed only documentary evidence. Copy of the judgment in the case of State Vs. Shiv Pal Singh & others under sections 307, 149 IPC was marked as Paper No.277A, First Information Report in case crime no. 201 and 202 under Section 25 of Arms Act was produced as marked as Paper No. 278A. Copy of judgment of Munsif Court of Babu Ram Vs. Dafedar was produced and marked as Paper No.280., Copy of the judgment of ST. No. 319 of 71 State Vs. Veer Pal Singh & others were produced and marked as Paper No. 281-A. The post mortem was performed by Dr. B.P. Bhatnagar on 24.11.1980 at District Hospital, Fatehgarh. The post mortem report disclosed 11 ante-mortem injuries on the body of deceased Babu Ram which are as follows:
1.Gun shot wound of entry 1" x 1.4" x 1" bone deep on the outer angle of left eye. Margins inverted, lacerated, ecchymosis wound directed backward to downward.
2.Gun shot wound of exit 3 cm x 2.5 cm communicated to injury No. 1 at the back and below left ear.
3.Gun shot wound of entry 1" x 1" diameter chest cavity deep. Margins inverted, lacerated and blackened on the front of right side chest 3 cm away from nipple.
4.Gun shot wound of exit 5.5" x 3" communicated with injury No. 3 at the left side of the chest around nipple chest wall rib around the wound missing. Margins averted.
5.Gun shot wound of entry ½" x 1/4" muscle deep on the outer aspect of middle left arm. Wound is directed towards right side.
6.Gun shot wound of exit 1.5" x 1" communicated to wound of entry on inner aspect of left arm.
7.Gun shot wound of entry 1/4" x 1/4" bone deep at middle of left eye. Margins inverted, lacerated, ecchymosis and directed upward to forward.
8.Gun shot wound of entry 2.5" x 2" communicated to injury No. 7 at the outer end of left wrist.
9.Gun shot wound of entry 1/4" x 1/4" muscle deep on the fronto medial aspect of middle of 1/3rd right leg.
10.Abrasion 1.5" x 1/4" on the anterior surface of left knee joint.
11.Abrasion 3.4" x 1.5" on the lower part of left knee joint at tibial tube region.
Doctor has also noted the internal condition of internal organs. Stomach was empty small intestine and large intestine was containing gases. Right lungs was lacerated. Heart was lacerated.
Doctor performing the post mortem also recorded that the internal condition of the vital organs. Stomach was found empty, small and large intestine were containing gases, right lungs and heart were lacerated.
During post mortem the doctor also found four big shots and two ticklies which were handed over to Constable for being sent to police station, Fatehgarh.
PW3 Dr. B.P. Bhatnagar proved the post mortem report. He was cross examined by the learned counsel for the accused. Doctor specifically denied that the injuries to the deceased were possible in the night of 18/19-11-1980. He stated that injuries have possibly been caused on 18/19 at about 3 to 4 a.m. PW-5 Ram Chandra Singh aged about 90 years deposed that at the time of inquest proceedings he was present on the spot.
PW-1 Chail Bihari in his statement stated that his brother Babu Ram was killed by accused persons because of firing upon him by the accused.
PW2 Kunwar Bahadur who is also one of the real brothers of the deceased deposed identically.
The incident as narrated in the FIR which was prompt was specifically corroborated by the statement of the two eye witness and the medical report. The Trial Court after considering the evidence brought on record found that the death has been caused to Ram Babu because of gun shot injuries inflicted upon him by the accused. The eye witness account was corroborated by the medical evidence. The post mortem report and the motive for such assault was also established.
The Trial Court accordingly proceeded to hold the accused guilty of an offence under Sections 147, 149, 302 r/w Sec. 120-B IPC. The accused have been sentenced to life imprisonment for the offences under section 302 read with section 149 IPC and for the offences under Section 148, they have been sentenced to 3 years rigorous imprisonment. The sentences were directed to run concurrently.
Challenging the finding so recorded learned counsel for the appellants submitted before us that the place of incident is not fixed. Presence of the eye witnesses is highly doubtful inasmuch as
(i) PW-1 Chail Bihari informant was a government servant and he claimed that he had obtained leave on the relevant date but no other material evidence in support thereof was produced.
(ii) PW-2 in his statement has submitted that the incident had occurred 15 to 16 years earlier. Such statement was made in the year 1986 when the incident was disclosed in the F.I.R to have taken place on 19.11.1980.
(iii) PW-4 Ram Chandra Singh, was one of the witness mentioned in the Panchayatnama. He, however, in his statement specifically stated that he had never visited the village where the incident had taken place.
(iv) The parentage of the deceased was wrongly mentioned in the inquest report as well as in the postmortem report.
(v) There was no source for irrigation at the Chak. Therefore, the entire story as reflected in the First Information Report was doubtful.
The counsel than contended that the postmortem report did not corroborate the prosecution case. The informant being an employee of the revenue department along with his brothers was actually involved in grabbing the land of various persons which fact was established from the various cases initiated against them, therefore, there is a likelihood that the deceased may have been done to death by some other persons. The site plan as prepared by V.K.Sharma, the Investigating Officer but it was sought to be proved by the secondary evidence of PW-7 Mohd. Waseem, Constable of CBCID.
According to the counsel for the appellants in absence of any suggestion to the effect that the primary evidence was not available, the Trial Court was not justified in accepting the secondary evidence.
Learned A.G.A. in reply points out that the incident had taken place during broad day light. The First Information Report is prompt. The facts as narrated in the F.I.R. stand corroborated by the statement of eye witness of PW-1 and PW-2. He further submits that three other persons who were present at the site at the time of incident as per the statement of PW-1 namely Nanku, Pandit and Jagdish Singh could not be produced in evidence inasmuch as Nanku and Pandit had expired while Jagdish had left the village. He further points out that there is a typographical mistake in recording of the statement of PW-2 insofar as it refers to the date of incident as 15 to 16 years earlier. He submits that the period was only 5 to 6 years and such mistake in recording of the statement will not dislodge the story of the prosecution.
The A.G.A. further points out that the incident was of the year 1980 but the trial remain suspended between 1986 to 2000 i.e. for nearly 14 years.
Learned A.G.A. explains that the trial had taken more than 25 years. Initially there was delay because of involvement of a police officer. Shiv Chander Singh who was summoned under Section 319 Cr.P.C. on 08.12.1989. This order was challenged by means of an application under section 482 before the High Court. The High Court vide order dated 26.7.1990 set aside the summoning order and remanded the matter.
Shiv Chander Singh was summoned under Section 319 Cr.P.C. vide order dated 16.12.1991. This order was again challenged before the High Court wherein an interim order was granted on 05.04.1994. This Criminal Revision was finally dismissed on 05.08.1994, and the interim order was vacated.
We have heard learned counsel for the parties and have examined the records of the present appeal.
At the very outset, we may record that the incident had taken place at 7:30 a.m. on 19.11.1980 as per the F.I.R. The F.I.R. was lodged within a period of less than 2 hours on the same day. The F.I.R. is prompt and specifically refers to the persons who shot at the deceased. The Hon'ble Supreme Court of India in the case of Jai Prakash Singh vs. State of Bihar and another reported in (2012) 4 SCC, 379 in paragraph 12 has specifically held that FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account of concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. The Apex Court followed the earlier judgment in the case of Thulia Kali v. State of T.N. reported in (1972) 3 SCC 393, on the point.
In the instance case the F.I.R. is prompt, the names of the accused finds place in it disclosing their participation in the incident. The ocular evidence is fully supported by medical evidence.
Now coming to the grounds raised by the appellants point wise :
The place of occurrence is near the agricultural field of Wasim as has been specifically mentioned in the FIR. The deceased was running towards the grove of Ram Prasad, Nai. He was surrounded by the accused and fired. After suffering the gun shot injury he felt towards the north west corner of the grove of Ram Prasad, Nai. In view of the aforesaid we find that the place of incident has been fixed. The plea in that regard must fail.
Now coming to the issue of presence of the eyewitnesses being doubtful, the first reason disclosed by the counsel for the appellant is that, PW-2 in his Examination-in-Chief on 14.08.1986 had stated that the incident had occurred 15 to 16 years earlier at around 7:00 a.m. when according to the F.I.R. the incident took place on 19.11.1980. This in our opinion is an apparent mistake in recording of the statement inasmuch as it is nobody's case that the deceased Babu Ram had expired 15-16 years ago with reference to the year 1986. The learned AGA appears to be correct in contending that in place of 5 to 6 years the figure 15 to 16 years has been recorded. Even otherwise in our opinion such contradiction cannot in any way be the basis for disbelieving the eyewitness account or the prosecution story.
So far as the informant having not produced any document in respect of the leave applied by him is concerned, suffice is to refer to the statement of the said witness wherein it has been disclosed that he had informed his superior officers for leaving the station which fact was not disputed/questioned by the accused.
The plea that PW-1 and PW-2 were unarmed and had reached the place of incident is not natural inasmuch as normally an assailant will not permit the eye-witness of the scene to leave the place so easily so as to narrate the incident to others and face the threat of conviction appears to be an imagination of the counsel for the appellant inasmuch as the PW-1 and PW-2 were not alone but were accompanied by other member of the village also. It is, therefore, but natural that the victim was done to death, the accused left without any further threat being extended to PW-1 and PW-2 or they being harmed.
With regard to the discrepancy in the parentage of the deceased as recorded in the inquest and the postmortem report, we may mention that in the F.I.R. itself the informant had expressed his knowledge qua the Station House Officer being in collusion with the assailants. It is in this background that the possibility of incorrect parentage of the deceased being mentioned in the inquest prepared by the police cannot be ruled out. This plea even otherwise is too trivial inasmuch as the identity of the deceased victim is not in doubt. Mere wrong mention of the name of the father of the victim by the police officer preparing the inquest and the doctor preparing the postmortem report will not prove fatal.
We may record that the investigation up to the stage it was done by the police authorities of the concerned police station was not as expected and it is in this background that the investigation was transferred to CBCID. The trial court took note of the fact that in the First Information Report itself there was an allegation that the SHO of Police Station Rajepur was colluding with the assailants and that the deceased had written letters to the higher authorities prior to his death about the conspiracy between SHO and the assailants. The investigation had been transferred to CBCID because of a charge being framed against the SHO himself, and for other reasons. The trial court has considered the discrepancy which was pointed out in the matter of name of the father of the accused in the inquest report and the postmortem report and also to the fact pertaining to the blood being not found on the spot.
We may also mention that because certain villagers had initiated proceedings against the informant and the deceased in respect of their agricultural holding it will not mean that the version of the eyewitness in respect of incident supported by the medical report is to be disbelieved. The plea of false implication has not been established.
The plea raised on behalf of the accused qua the FIR and site plan being proved by the secondary evidence also does not appeal to us. The Trial Court has specifically recorded that the incident took place in the year 1980. Nearly 25 years had elapsed in between before the trial could be completed. Further since the investigation was transferred to the CBCID, we find no error in GD and the FIR being proved through the evidence of the officers of the CBCID.
It may be noticed that there were nine gun shot injuries on the body of the deceased near the dead body five empty cartridges were found in which two empty cartridges are of rifle with marking T.W.-42 whereas three cartridges are of 12 bore gun with marking of T.W-12. Police had taken in its possession five cartridges and also blood stained soil.
Any lapses in recording of the material facts in the inquest report resulting in the wrong recording of the parentage of the postmortem report. PW-1 and PW-2 had given a true account of the incident and had seen the incident from close quarter. They had identified the assailants. It was specifically stated by them that the accused had surrounded the victim and had fired upon him by their firearms. The medical report clearly supports the ocular evidence of PW-1 and PW-2 namely that the deceased was killed by the gun shot fired upon him by the appellants. The motive has also been established on the basis of material brought on record namely pendency of a registration of a criminal case under Section 307 by the deceased against the accused namely Dhandu @ Shiv Pal Singh, Jaggu @ Jagpal Singh, Dafeydar, Shiv Ratan and Shiv Pal respectively.
The Apex Court in the case of Sayed Darain Ahsan alias Darain vs. State of West Bengal and another reported in (2012) 4 SCC, 352 has held that if the medical evidence in the facts of the case only supports the ocular evidence, the prosecution story cannot be disbelieved on minor discrepancies.
Consequently the conviction of the accused by the Trial Court on the basis of the evidence of the eyewitnesses corroborated by the medical report has to be sustained.
The Apex Court in the case of Sampath Kumar vs. Inspector of Police, Krishnagiri reported in (2012) 4 SCC, 124 has laid down that minor contradictions are bound to appear in statements of truthful witnesses as memory sometimes plays false and sense of observations differs from person to person.
Having considered the material available on record, we see no reason to take a different view but to affirm the finding of guilt as returned by the Trial Court. The findings recorded by the Trial Court are based on true and correct appreciation of evidence on record.
The conviction and sentence of the appellants by the Trial Court is upheld. The appellant Dhandhu @ Shishu Pal Singh is already in jail whereas appellant Shiv Ratan Singh and Jaggu @ Jagpal Singh are on bail. Their bail bonds are cancelled and sureties are discharged. They shall be taken into custody and confined to prison to serve out the sentence as awarded by the Trial Court.
The Appeal is dismissed.
Dated :13.08.2012 VR/Pk/Crl. Appl. 5064 of 2005