Allahabad High Court
Salek Alias Seelak And 2 Others vs State Of U.P. on 19 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 4794
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 30.10.2018 Judgment delivered on 19.11.2018 Court No. - 1 Case :- CRIMINAL APPEAL No. - 3795 of 2015 Appellant :- Salek Alias Seelak And 2 Others Respondent :- State Of U.P. Counsel for Appellant :- Dileep Kumar,Rajrshi Gupta Counsel for Respondent :- Govt.Advocate,Arun Kumar Shukla,R.B. Singh Connected with Case :- CRIMINAL APPEAL No. - 3796 of 2015 Appellant :- Rakambir Respondent :- State Of U.P. Counsel for Appellant :- Dileep Kumar,Rajrshi Gupta Counsel for Respondent :- Govt.Advocate,R.B. Singh Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
1. Heard Sri Dileep Kumar, learned counsel for the appellant, Sri R.B. Singh, learned counsel for the complainant and Sri Irshad Husain, learned Brief Holder of the State.
2. These criminal appeals have been preferred against judgment and order dated 09/07/2015 passed by the Special Judge (EC Act)/Additional Sessions Judge, Ghaziabad in ST No. 1299 of 2004, State vs Rakambeer and 3 others under sections 147, 148, 302/149, 307/149, PS Vijan Nagar arising out of case crime no. 608 of 2002, by which accused Rakambeer, Seelak alias Salek, Dhiraj and Ajay have been held guilty under sections 302 read with sections 149 IPC and have been convicted with life presentment and a fine of Rs. 50,000 each and in default of payment of fine 2 years simple imprisonment; they have also been convicted under sections 307 read with sections 149 IPC and have been awarded punishment of 10 years rigorous imprisonment and a fine Rs. 25,000/- and in default of payment of fine one year additional simple imprisonment; they have also been convicted under sections 147 IPC and have been convicted with 2 years simple imprisonment and they have also been convicted under sections 148 IPC and have been awarded punishment of 3 years simple imprisonment. It is further and when directed that all the sentences shall run concurrently and the period spent in jail would be adjusted and their period of sentence.
3. According to the prosecution version the informant Satpal lodged an F.I.R. on 20/11/2002 at 9 9:30 AM stating therein that on the said date at about 8 AM he along with his brother-in-law (bahnoi) Indar Pahalwan , nephew (bhanja) Badal, driver Ballu, Mausa Rambal and Jagdish Gupta had gone for raising boundary wall of their plot, right then the nephew (bhatija) Jitendra son of Shyam Singh of D.P. Yadav and 2 others reached near them on a Maruti Zen car as well as one motorcycle and before they could realise what was it all about, Jitendra and Rakambeer had also reached there with another person and Jitendra stated that here were Satpal and Indar who had picked up row with his uncle D P Yadav and had got his relative Parmanand Yadav killed, therefore both of them should be done to death, at this they all took out weapons which were concealed in their clothes and started firing. Seeing the firing taking place the informant and his companions started fleeing from there, then these three persons made fire upon Indar Pahalwan and driver Ballu. On their raising alarm his Bhanja Badal, Mausa Rambal and Jagdish Prasad reached the spot and saw that both Indar Pahalwan and Ballu were lying injured. The informant along with the help of these persons took both the injured to Yashoda nursing home for being treated. While leaving the spot Jitendra and Rakambeer kept raining bullets upon them saying that he escaped this time but he and his family would not be left alive as they had picked up row with D.P. Yadav. This attack on him and killing of his Bahnoi Indar Pahalwan was given effect by nephew of D.P. Yadav, Jitendra and one Rakambeer along with one another person in conspiracy with D.P. Yadav, Member Parliament. The unknown person could be identified by him. This occurrence took place as a result of enmity being harboured by D.P. Yadav.
4. On the aforesaid written report, Exhibit Ka 1 of the first informant Satpal (PW 1) crime no. 608 of 2002 under sections 307, 302, 120 B IPC was registered against Jitendra, Rakambeer, D.P. Yadav and one unknown person on 20/11/2002 at 9:30 AM, chick F.I.R. of which was Exhibit Ka 13. An entry of the case was made in GD no. 14 at 9:30 AM dated 20/12/2002 and investigation was assigned to sub inspector Anil Samania at whose instance the panchayatnama of the deceased was conducted and all the papers related to it were prepared by SI Tej Vir Singh, i.e., photo Nash, report CMO, Challan Nash, RI report, sample seal which are Exhibit Ka 6 to Exhibit Ka 11 and the dead body was sent for post-mortem. The panchayatnama of the deceased was held on 20/11/2002 at Yashoda nursing hospital at about 1130 a.m. which was witnessed by Mukesh, Udaivir, Sundar, Om Prakash and Girish Chand and it was opined by them that his death occurred due to the injuries received on his person although it was thought proper by them that to know the exact cause of death post-mortem should be held. During panchayatnama, an injury smeared with blood on the backside of head, blood smeared injury on the left eye, blood smeared injury on the back, blood smeared injury on abdomen above the navel, blood smeared injury in right-hand, blood smeared injury between elbow and shoulder and some signs of injuries smeared with blood above penis were found. Thereafter the dead body of the deceased was sealed and was sent for post-mortem with the help of constable Brahm Pal Singh and constable Santosh Kumar Singh. The post-mortem was conducted on 20/11/2003 by Dr. Ajay Agrawal, who found following injuries on his person: -
1. Inlet - 0.5 × 0.5 Cm. epigestric region, blackening present and outlet 1 Cm. ×1 Cm. right side back, D 12 rib
2. Inlet - 0.5 Cm. × 0.5 Cm. and right hip, blackening present; outlet 0.5 Cm. × 0.5 Cm. on left supra pubic region.
3. The Inlet - lacerated wound 2 Cm. × 2 Cm. on right ear, blackening present; outlet - 0.5 Cm. ×0.5 Cm. below left eye
4. Inlet 0.5 Cm. × 0.5 Cm. in back upper right fore arm, blackening present; outlet - 0.5 Cm. ×0.5 Cm. in middle of the right arm; fracture of ulna bone
5. Two lacerated linear wound 2.5 Cm. × 1 Cm. in chest, right auxiliary region, skin deep, blackening present.
The temporal bone was bound fractured; brain was lacerated and the death was found to have been caused due to ante - mortem injuries.
5. The investigating officer had recorded the statement of the first informant Sat Pal Singh in Parcha No. 1 besides copying memos of recovery of empty cartridge, revolver and bloodstained and plain soil. In Parcha No. 3 on 23/01/2002 he made an entry of panchayatnama of the deceased Indar Pahalwan as well as that of the post-mortem report and also made inspection of the place of occurrence and prepared site plan. The memo was prepared of recovered pistol, empty cartridges, and shirt and undergarments of the deceased as well as plain and bloodstained soil which were sent for being examined by the Forensic Science Lab.
6. The medico-legal examination of the other injured Ballu was done on 20/11/2002 at 8:55 AM by Dr. Amar Jyoti Kumar and the same day at 9:30 AM the injured was admitted for being given treatment and the Dr. found one firearm injury of entry in left thigh as the bullet piercing the left thigh had also went grazing the right thigh causing abrasion on the right thigh as well. The signs of explosive powder substance were also found by the Doctor.
7. On 29/11/2002, the investigating officer had received affidavits of witnesses Rambal, Badal Yadav and Jagdish to the effect that the name of Jitendra son of Shyam Singh was wrongly entered in FIR because he was not present on the spot nor was their hand in the occurrence of D.P. Yadav as well. The investigating officer had found that on the date of occurrence, Jitendra along with his family members had gone on a trip to Shirdi, Karnataka and Goa and he had made a raid to arrest the other named accused namely, Rakambeer and others. He entered the said affidavits in Parcha 7 and found other accused i.e. Seelak alias Salek, Dhiraj, Ajay and Rakesh to be involved in causing this occurrence. Thereafter he also recorded the statements of witnesses named in the FIR namely, Badal, Rambal, injured Ballu on 13/12/2002 and also recorded statement of witness of the occurrence, Jagadish Gupta on 14/12/2002. Accused Rakambeer had gone to jail in some other cases in the meantime, therefore his warrant was also prepared in the present case after summoning him from the prison, he had confessed to have committed this offence and also told that he could help recover the pistol and the Maruti Zen car which were used in commission of this offence for which Police custody remand was taken and at his instance Maruti Zen car bearing registration No. U.P. 16 C 1424 was recovered and thereafter police custody remand was also obtained of other accused Ajay, Seelak alias Salek and Dhiraj and at the instance of Ajay, motorcycle Yamaha bearing registration No. DL 15 G6966 was recovered. The recovery memos of all these vehicles and weapon were made and the name of D.P. Yadav and Jitendra Yadav were expunged, while against accused Rakambeer, Seelak alias Salek, Dhiraj and Ajay, charge- sheet was submitted under sections 147, 148, 149, 307, 302/34 IPC on 31/12/2002, while one accused, who was absconding namely Rakesh, against him the investigation was kept pending.
8. The report from Forensic Science Lab, in respect of the recovered empty cartridge and bullets, was received subsequently which was entered in supplementary Parcha dated 03/08/2004, later on the other wanted accused namely Rakesh, who was detained in some other place in prison, was summoned in court and his warrant was also prepared in the present case and thereafter his statement was also recorded by the investigating officer and supplementary charge- sheet was submitted against him also under sections 147, 148, 149, 307 and 302/34 IPC on 21/02/2003.
9. On both the charge sheets, the Judicial Magistrate, Ghaziabad had taken cognizance and after having provided copies of the incriminating documents to the accused, the case of accused Rakambeer Seelak alias Salek, Dhiraj and Ajay was committed to the court of Sessions on 28/08/2004 while that of other accused Rajesh was committed to the court of Sessions on 26/06/2009, which were numbered as ST No. 1299 of 2004 and ST No. 894 of 2009 respectively and both the Sessions trials were heard jointly.
10. The charges were framed against the accused persons under sections 147, 148, 302/149, 307/149 IPC to which they pleaded not guilty and claimed to be tried.
11. From the side of prosecution Satpal Yadav, the first informant (PW 1), Injured Ballu (PW 2) and Badal Yadav son of the deceased (PW 3) have been examined as witnesses of fact while Circle Officer Praveen Saxena (PW 4), Doctor Ajay Agrawal (PW 5), Inspector Tejvir Singh (retired) (PW 6), Doctor Amar Jyoti Kumar (DW 7), Incharge Inspector Anil Samania (PW 8) and inspector SKS Pratap (PW 9) have been examined as formal witnesses.
12. From the side of prosecution the documents produced are written report (Exhibit Ka 1), recovery memo of weapon of offence (Exhibit Ka 2), recovery memo of car (Exhibit Ka 3), recovery memo of motorcycle Yamaha (Exhibit Ka 4, post-mortem report of deceased Indar Pahalwan (Exhibit Ka 5), panchayatnama of deceased (Exhibit Ka 6), photo lash (Exhibit Ka 7), letter sent to CMO (Exhibit Ka 8), Police Prapatra No. 13 (Exhibit Ka 9), sample seal (Exhibit Ka 10), letter to RI (Exhibit Ka 11), medico-legal report of injured Ballu (Exhibit Ka 12), chick F.I.R. (Exhibit Ka 13), carbon copy of GD dated 20/11/2002 in respect of lodging the case (Exhibit Ka 14), injury memo of deceased Indar Pahalwan (Exhibit Ka 15), injury memo of Injured Ballu (Exhibit Ka 16), site plan (Exhibit Ka 17), recovery memo of empty cartridge (Exhibit Ka 18), recovery memo of revolver (Exhibit Ka 19), recovery memo of bloodstained soil as well as plain soil (Exhibit Ka 20), carbon copy of GD report No. 24 time 12.05 hours (Exhibit Ka 21), site plan of the place of recovery of car (Exhibit Ka 22), site plan of the place of recovery of pistol (Exhibit Ka 23), site plan of the place of recovery of motorcycle (Exhibit Ka 24), charge- sheet against Rakambeer and others (Exhibit Ka 24), report of Forensic Science Lab (Exhibit Ka 26), report of Forensic Science Lab (Exhibit Ka 27), charge sheet against accused Rakesh (Exhibit Ka 28).
13. After conclusion of the evidence of the prosecution the statement of accused were recorded under sections 313 Cr. P.C. in which all the accused have stated to have been falsely implicated and have also stated that the first informant Satpal is a history sheeter. All the recovery memo which have been prepared were false. Accused Rakambeer stated individually that he has been made accused in this case because he was an eye witness in the case of murder of Parmanand against accused Satpal Yadav and Indar Pahalwan had given statement against them in the said case. The Maruti Zen car which is being shown to have been recovered at his instance in fact belongs to him he being its registered owner. He denied recovery of any pistol at his instance and further stated that in the year 2001 he had contested election of Pradhan of village Vajeedpur against the father-in-law of the witness of this case namely Badal, in which he had won the election and because of that enmity he has been falsely implicated. Similarly accused Dhiraj pleaded innocence stating that he had helped in adducing evidence in Parmanand's murder case being with his cousin Rakambeer, because of this he has been falsely implicated. Similarly accused Ajai Yadav also pleaded innocence and has further stated that because they had done pairavi in the Parmanand's murder case with accused Rakambeer, apart from the election rivalry, he has been falsely implicated. The deceased Parmanand was his real uncle and he also denied any recovery of motorcycle to have been made at his instance. Accused Seelak alias Salek has also pleaded innocence stating that he was never known by alias name Jitendra and that PW 1 has given false statement only with a view to implicating him in this case that his name was Jitendra alias Salek and also due to election rivalry. Few documents were also filed in defence from the side of the accused although no oral evidence was adduced.
14. We find it pertinent to refer here as to what was argued before the trial court from the side of the accused as well as from the prosecution and in the light of the evidence how the said arguments were appreciated by the trial court and whether this court is in agreement with the view taken by the trial court.
15. We find that it was argued before the trial court that the first informant had got the F.I.R. registered naming therein D.P. Yadav as conspirator and Jitendra Yadav as main accused, but no charge- sheet was filed against them, while the motive behind this incident was referred to be prior enmity with D.P. Yadav and Jitendra Yadav of the complainant's side. It was further argued that the first informant in his statement given to police under sections 161 Cr. P.C. as well as in FIR had not named Jitendra Yadav by his alias name Salek and the alleged eye-witness Badal Yadav's statement was recorded by the investigating officer 23 days after the occurrence without giving any proper explanation for the same. It was also argued that the investigating officer had not shown any evidence of construction material etc. being on the place of occurrence by which the work of construction of a wall might have been carried on. It was also argued that it was not proved that the vehicle in which the injured was being carried after the occurrence and the clothes which the injured were wearing were bloodstained and that there was discrepancy in the statement of witnesses in respect of the No. of accused involved in this occurrence as at one place it was stated that there were four accused while at another place it was stated that there were five accused. PW 1, the first informant Satpal has admitted in his statement that he knew the accused from before and had stated at page 9 of his cross-examination that he recognised Jitendra very well from before the occurrence and that was the reason why he had mentioned his named in F.I.R. as Jitendra son of Shyam Singh. Besides that it was also argued that the name of the First informant was nowhere mentioned in any document as the person who had got the injured Ballu admitted in hospital. This witness admitted in cross-examination on page 5 that he had not gone for the purposes of construction of the boundary wall which would suggest that he was not an eye-witness and was not present on the spot when the occurrence took place. It was also argued that PW 2 in fact could not identify any accused because the assailants were unknown persons otherwise he would certainly have revealed the names of accused at the time when he was being taken to hospital. It was also argued that police had not held any identification parade for identification of accused by PW 2 and that PW 2 had only ordinary injuries. It was also argued that PW 7 Dr. Rajiv Kumar himself has stated that there was no discharge summary on file and that the statement of PW 2 in respect of identification of the accused persons is found to be suspicious. With respect to the statement of PW 3, Badal Yadav it was stated that his statement was taken by the investigating officer 23 days after the occurrence and that this witness had made various statements which differed from the statement of PW 1 and at times he made improvement upon the statement of PW 1. Further it was argued that witness PW 3, Badal Yadav is real son of deceased in Indar Pahalwan who, in his cross-examination has admitted to have given an affidavit to police after registration of the case to the effect that he did not know facts about the occurrence. Similarly it was also argued that witness PW 4, S I Pravin Saxena though had stated that accused Rakambeer had got the Maruti Zen recovered which was used in commission of offence, but he did not give any statement/evidence in respect of recovery of pistol. It was also argued that PW 8, investigating officer has not given any statement/evidence that at the instance of Ajay the motorcycle which was used in commission of offence was recovered; hence the facts which have been brought on record with respect to recovery of motorcycle and pistol are totally false. It was also argued that it was very unnatural and unbelievable to recover pistol from an open place about one and a half months after the occurrence and besides that in recovery memo there were shown recovery of seven units of empty cartridges while in statement of PW 8 in cross-examination the said No. was reported to be ten empty cartridges. Further it was argued from the side of accused Rakesh that about 23 days after the occurrence, the names of new accused were generated by police, which would violate the chastity of the FIR and would make it unbelievable. The police has invented a new story on the basis of statement of one Shripal Raghav and Than Singh in respect of making new accused in this case although these witnesses have not been examined in court. The name of accused Rakesh has not been taken by PW 1 in examination -in-chief and similarly PW 2, injured witness Ballu, has refused to recognise Rakesh during his testimony, later on after re-examination, the first informant, as an afterthought, identified the unknown accused to be Rakesh, which has been done only due to enmity and partybandi. The accused Rakesh has not been got identified by witnesses nor any article has been recovered at his instance and even PW 3 Badal Yadav has refused to recognise him as being involved in the occurrence. The crux of the argument made by the learned counsel for the defence has been that the occurrence did not take place in the manner as alleged in the FIR rather the deceased Indar Pahalwan and injured Ballu had received injuries in some other manner at some other place by some unknown persons, and were got admitted in hospital subsequently and as per concocted version FIR has been lodged pursuant to which after investigation the police found the accused D.P. Yadav and Jitendra Yadav to be wrongly named and hence their names were expunged, therefore the very basis of the FIR has been untrue. It was also argued that during investigation under pressure from complainant side, the police in arbitrary manner, on the basis of the statements of Santram and Rakesh has given new twist to the occurrence by adding names of brother of accused Rakambeer namely, Seelak alias Salek and Dhiraj sons of Budhpal and two others. Thereafter, after taking police custody remand of accused during investigation, false confessional statement has been recorded of the accused Rakambeer Seelak alias Salek, Dhiraj and the name of 2 other accused Ajay and Rakesh have been brought in. It was also argued that the said eye witnesses namely, Santram and Rakesh were not examined in court. It was also argued that the deceased Indar Pahalwan was a notorious criminal having dozens of criminal cases registered against him at various police stations, who used to grab land and due to that had enmity with various people, because of which he might have been attacked by unknown assailants at some other place and on the basis of suspicion and in pursuance of the enmity mentioned above the present accused have been made accused in this case falsely.
16. The learned trial court has analysed the evidence on record with respect to motive, the presence of the accused at the place of occurrence on the date and time of alleged occurrence, presence of the witnesses, truthful of the FIR, truthfulness of the place of occurrence, recovery memo and other relevant facts to reach the truth.
17. It is recorded in the judgment by the trial court that the first information report was lodged by the first informant, Satpal on 20/11/2002 at 9:30 AM giving a written complaint addressed to police station Vijay Nagar which has been proved by PW 1, Satpal himself who has proved his written report as Exhibit ka 1, in which the date of occurrence is recorded as 20/11/2002 and time is recorded as 8 AM and the same was given at police station at 9:30 AM, which fact has also been corroborated by PW 8, the inspector Anil Samania; Chik F.I.R. is proved by him which is Exhibit Ka 13 and a copy of GD entry of this case is Exhibit Ka 14, which has been proved by PW 8 as he knew the handwriting of Head Mohorrir Virendra Singh, who had actually written those documents, therefore there was no denying on behalf of the accused side in regard to lodging the F.I.R. as above. Next the learned trial court has analysed as to whether the facts mentioned in the said F.I.R. were actually correct and in this regard has mentioned that it was on record that the said written complaint was prepared at Yashoda nursing home. It is further mentioned that PW 1 Satpal and PW 3 Badal Yadav were closely related to each other while PW 2, injured Ballu was driver of the vehicle of the deceased and thus it was apparent that all the three witnesses were interested witnesses, which required meticulous scrutiny of their statements. Further it is mentioned that PW 1 Satpal has stated in cross-examination in respect of his presence on the spot that at the time of occurrence he was present at the plot of Indar Pahalwan and that when Indar Pahalwan had reached his plot, immediately thereafter within 5 minutes he had also reached there and at that time Indar Pahalwan was getting the plotting work and the work of construction of boundary wall done, which statement also gets support from the statement of PW 2 Ballu who has proved the presence of first informant Satpal at the time of occurrence. PW 3 Badal Yadav has also stated in examination-in-chief as well as cross-examination that both the first informant as well as Ballu were present on the spot, therefore from these statements nothing such could be elicited which would disprove that all the three witnesses were not present on the spot at 8 AM and thus it was concluded by the trial court that all the three witnesses had conclusively beyond doubt proved that they were present on the spot and soon after the occurrence Satpal and Badal Yadav had taken the injured Indar Pahalwan to Yashoda hospital, where doctors declared him dead and thereafter Badal Yadav got Ballu admitted, while first informant Satpal had given the written report of the occurrence at police station. All this occurrence happened within one of hour, meaning thereby that they reached hospital at 8:55 AM, while the time of lodging the written report the same day is 9:30 AM. If the witness PW 1 informant Satpal and PW 3 Badal Yadav had not been present on the place of occurrence, it would not have been possible to take the injured persons to hospital so briskly and that delay would certainly would have been there in lodging the FIR and that the trial court did not find any discrepancy in the statements of PW 1, PW 2 and PW 3 in respect of the place of occurrence. It is further recorded that the presence of the witnesses is found to be natural also because the deceased Indar Pahalwan was getting plotting work as well as construction of boundary wall done and that there were also several masons and other persons present. Further it is mentioned that the presence of PW 2, injured Ballu, on the place of occurrence, who was driver of the deceased was also natural nor the presence of PW 1 and PW 3 could be taken to be unnatural because they were all related to the deceased. It is further mentioned in the judgment that although in site plan, Exhibit Ka 17, the investigating officer has not shown any construction material, but the trial court found that the half finished boundary wall on the said piece of land itself would show that the said boundary wall was under construction, hence merely because no bricks or sand etc. were shown collected nearby the place of construction would not mean that the said construction was not going on. Further it is mentioned that three accused persons are stated to have entered from the door of southern side although there is no gate installed there and there is only half feet high boundary wall in the South, therefore it is found by the trial court that the testimony of the witnesses was in sync with the site plan and also has given finding that the above mentioned witnesses were present on the plot of Indar Pahalwan, who were standing slightly away from there as the work of plotting and construction of the boundary wall was about to begin.
18. Further the trial court has considered as to how many accused were there on the spot and from out of them how many had actually made an assault by fire arm and to what extent the statements of witness in this regard were trustworthy and for this the learned trial court has relied upon the principles of law laid down by Hon'ble Supreme Court that the statement of the witness may fall in three categories that is, firstly - wholly reliable, secondly wholly unreliable, thirdly neither wholly reliable nor wholly unreliable.
19. On the touchstone of above principle of law the trial court has tried to judge the category of reliability of the statements of these witnesses; it has proceeded to state that PW 1, Satpal Yadav stating himself to be eye-witness of the occurrence has deposed that on the place of occurrence at about 8 AM accused Rakambeer, Jitendra alias Salek, Ajai, Dhiraj and one more had come in a Maruti Zen car and a Yamaha motorcycle and with a common object of killing Indar Pahalwan and Ballu opened fire upon them from their pistols/firearms and this witness has identified the three accused namely Rakambeer, Ajai and Dhiraj and in respect of Jitendra alias Salek he revealed that he had come in court on the earlier date. PW 2, Ballu, who is injured eye-witness of the occurrence, has stated in support of the prosecution version that on 20/11/2002 at 8 AM five accused had appeared on the place of occurrence, out of whom three accused namely, Rakambeer, Dhiraj and Salek entered inside the place of occurrence wielding pistols in their hands and they fired upon Indar Pahalwan. The other two accused who were standing out side, one of them was Ajai Yadav and the other he did not recognise, they also had made fire from country made pistol. After getting hit Indar Pahalwan fell down at some distance and thereafter Rakambeer again made fire upon him and while coming forward to save him, this witness also had received the firearm injury in his leg and shoulder. The accused who were standing outside, were issuing threats that whoever would come forward to defend Indar Pahalwan, would also be killed. During the testimony being recorded before court, this witness had identified Seelak alias Salek and Dhiraj and with regard to Ajai it was stated that he knew him by face but did not know him by name. It cross-examination this witness had proved that till the time he went to save Indar Pahalwan, he had already received 8 to 10 bullets and that he had reached the spot when accused was firing upon Indar Pahalwan from very close range and that at that time Satpal, Rambal, Jagadish Gupta and Badal were standing at a distance of about 15 gaj. From these statements it was concluded by the trial court that the fire was made indiscriminately upon Indar Pahalwan from a close range because of which blackening was found in the wounds as was mentioned in the post-mortem report, Exhibit Ka 5 and the same was also proved by Doctor, PW 5 that there was blackening found on the injury nos. 1, 2, 3 and 4. It is also recorded in the judgment that from the statement of PW 2, the position of witnesses Satpal, Badal Yadav, Rambal, Jagadish Gupta and deceased Indar Pahalwan becomes substantiated, which has also been shown in site plan, Exhibit Ka 17, in which it is shown that the accused had came from western side to the said place of occurrence where there was no gate for entry and that from the place shown by letter ''B', the assailants had started firing upon the deceased and injured, where-after Indar Pahalwan had fled towards East direction and fell down at the place shown by letter "C" and rest of the witnesses namely Satpal, Badal, Rambal and Jagadish Gupta had run towards North from the place shown by letter "A". The driver Ballu had run after Indar Pahalwan and even he was fired upon from the place shown by letter "C", where Indar Pahalwan had fallen down, from close range. It is further recorded in the judgment that in a situation of indiscriminate firing, it becomes meaningless as to which assailant had made fire. It was proved from the statements of witnesses that Indar Pahalwan had been opened fire on from a close range after he fell down, which is also proved from the statement of PW 2 which is wholly reliable. As regards truthfulness of the statement of PW 3, Badal Yadav, it is recorded that this witness has stated to have seen five accused at the place of occurrence, but he could identify only 4 accused , that is, Rakambeer , Seelak alias Salek, Dhiraj and Ajai, while the 5th accused he could not identify who was stated by him to be unknown. This witness has also corroborated in examination in chief as well as in cross examination the statements of PW 1 and PW 2 and there does not appear to be any discrepancy and that this witness in his statement has proved the occurrence right from the beginning of occurrence till the deceased and the injured were taken to hospital and that the statement of PW 3, Badal Yadav, despite being son of the deceased, falls in the category of wholly reliable.
20. The learned trial court has mentioned in the judgment that the argument of the defence side was extremely important to the effect that in FIR, the eye-witness of the occurrence Satpal had nominated Jitendra son of Shyam Singh as an accused and D.P. Yadav as hatcher of conspiracy, but subsequently all the witnesses turned hostile due to which the investigating officer added names of new accused namely Seelak alias Salek, Dhiraj, Ajai and Rakesh and because of this reason the very basis of FIR was undermined and even motive mentioned therein also got changed. The prosecution could not have put up a new case totally divergent from the prosecution case of FIR nor could make any improvement in the same particularly in a situation when FIR was lodged by an eye-witness of the occurrence himself. In this regard the trial court has recorded that after perusal of the entire documents and the evidence on record it becomes clear that during investigation, witnesses Ballu, Badal Yadav, Rambal and Jagadish Gupta had submitted affidavits before Senior Superintendent of Police to the effect that in the occurrence there was no involvement of Jitendra son of Shyam Singh nor was there any kind of conspiracy made by D.P. Yadav. There was no mention made in these affidavits that the witnesses were not present on the spot nor was it mentioned therein that the named accused Rakambeer and others had not given effect to the occurrence. It was noteworthy here that witness Satpal had not given any affidavit to police. Because F.I.R. was lodged by Satpal soon after the occurrence, after he reached hospital and lodged a written report at the PS, hence it was evident that there was no occasion for him to ask anything from any other witness about the occurrence or think over it, therefore whatever he could understand as per his intellect and understanding he lodged the report accordingly, therefore it was quite likely that he might have understood accused Seelak alias Salek to be nephew of D.P. Yadav Jitendra son of Shyam Singh and accordingly might have nominated Jitendra in the FIR, because if Seelak alias Salek was not actually on the spot, there was no reason why PW 1 would have identified Seelak alias Salek while deposing before court. This fact also gets support because the statement of Satpal was recorded on the date of occurrence itself under sections 161 Cr. P.C., in these circumstances the learned trial court has held that expunging the name of the named accused Jitendra son of Shyam Singh from the case and substituting in his place the name of Seelak alias Salek does not appear to reflect any discrepancy.
21. Next, it is mentioned in the judgment that the motive of the occurrence is recorded in FIR to be enmity with D.P. Yadav because of the murder of Parmanand Yadav and that witnesses have proved this fact that the accused were members of the gang of Parmanand Yadav and after the murder of Parmanand Yadav, they were out to take revenge of his murder. Among the accused, accused Ajai Yadav is real nephew of Parmanand. The accused Rakambeer and Seelak alias Salek are real brothers, who were witness in the case of murder of Parmanand who had deposed before court and accused Dhiraj is cousin brother of accused Rakambeer and Seelak alias Salek. All these facts were clear from the statements of the accused persons under sections 313 Cr. P.C.. Therefore the motive was also adequately proved.
22. As regards place of occurrence, the PW 1 Satpal, PW 2 Ballu and PW 3 Badal Yadav have all proved the site plan Exhibit Ka 17 adequately. In this regard the defence has made argument that the samples of the bloodstained and plane soil was not got proved and that the blood stained clothes of PW 1 Satpal and PW 2 Badal Yadav were not taken by police in its custody nor were they proved. In this regard the trial court has opined that when the occurrence has been proved on the basis of testimony of eye-witnesses, the errors mentioned above committed by the investigating officer would lose its significance as regards merit of the case. It was well proved that the place of occurrence was the plot of deceased Indar Pahalwan.
23. It was also raised by the defence side that the investigating officer in his statement is stated to have recovered 10 empty cartridges, while only 7 empty cartridges and bullets were sent to the Forensic Science Lab for being examined, which amounts to substantial discrepancy in prosecution's case. In this regard it is mentioned by the trial court that PW 8 had proved adequately that he had recovered 4 empty cartridge of 7.62 bore and 3 empty cartridge of 7.65 bore and one bullet, regarding which recovery memo was prepared which was Exhibit Ka 23 signed by him which was later on corrected as Exhibit Ka 18. This witness in cross-examination at page 24 stated that at the instance of accused Rakambeer pistol was recovered which was exhibited as material Exhibit - 2 and the bullet was marked material Exhibit - 3 and the empty cartridge were marked as material Exhibit 4 - 13. It was also clarified that material Exhibit 4 - 13 also included the cloth in which the empty cartridges were sealed, therefore the said objection of the defence was found unsubstantiated. It is also mentioned that at the instance of accused Rakambeer the pistol which was used in commission of offence was marked material Exhibit - 2 and was sent to the Forensic Science Lab, which sent its report (Exhibit Ka 26), from which it was evident that the three empty cartridges recovered from the spot of 7.65 MM were found to have been fired from the said pistol. In this regard the defence had objected to the said report on the ground that the seal was not identifiable but the same was not found to be justified objection as it was found that the seal was not found broken/open and it was mentioned in the judgment that it was quite possible that the seal might have become loose in the process of transportation and it was held that it was proved from Exhibit Ka 27 that human blood was found on the pant, shirt and undergarments of the deceased.
24. It is further held by the trial court that accused Rakambeer Seelak alias Salek, Dhiraj and Ajay have been identified by PW 1, PW 2 and PW 3, but they could not identify the fifth accused, hence the accused Rakesh could have been given benefit of doubt, but it was well proved that there were total five accused in causing murder of Indar Pahalwan and in causing injury to Ballu in prosecution of their common object and that no adverse inference could be drawn in respect of the statements of these witnesses because of their being close relatives or interested witnesses. Reliance is also placed by the learned trial court on the law laid down in a case, full citation of which is not mentioned, in which, in a case under section 302 IPC it was held in respect of the interested witnesses that the informant and the accused had deadly enmity between them and that many accused had chased the complainant side and caused injuries and in evidence the presence of the witnesses was not found in this case to be doubtful and their testimony was held to be believable. On the basis of the afore- mentioned facts and evidence on record the learned trial court has held the accused namely, Rakambeer, Seelak alias Salek, Dhiraj and Ajay guilty of offences under sections 147, 148, 302/149, 307/149 IPC and has acquitted Rakesh.
25. Now we would like to take up the arguments of the learned counsel for the appellant before us but it would be pertinent to mention here that the learned counsel for the appellants had taken us through the evidence of relevant witnesses word by word and at each relevant part, taking pause, has tried to explain why the said statements were wrong and tried to convey to the court that the appellants were falsely implicated and that the occurrence took place in some other manner and not in the manner as has been stated by the prosecution side.
26. In view of above, we would like to refer here to the parts of statements of these witnesses which were pointed out by the learned counsel for the appellants and the reason given for their being false.
Enmity:
27. The first informant Satpal Yadav (PW 1) has stated that in the year 2002 one Parmanand Yadav who was related to D.P. Yadav was assassinated, in that case PW 1 and his brother-in-law Indar Pahalwan (deceased) had been falsely implicated and that the accused Rakambeer, Jitendra alias Salek, Ajay and Dhiraj etc. are members of the gang of Parmanand. The accused were having enmity towards him and his brother-in-law and were out to take revenge. Regarding this statement learned counsel for the appellants has stated that this is stated for the first time in court by this witness. Further this witness has stated that after this occurrence in the year 2004, the accused wanted to destroy evidence of this case and with a view to doing that they had opened fire upon him and his house, regarding which he had lodged an F.I.R. and the case was still pending. After this incident the accused were issuing him and his witnesses threats not to give evidence in that case, on phone, failing which they would be killed and the information with regard to this was being passed on by him to the higher authorities, as a result of which he was provided police security. He further stated that he had no knowledge whether accused Rakambeer, Jitendra, Ajay and Dhiraj etc. were co-accused in any case with Parmanand or not or whether they had given evidence from the side of Parmanand. He further stated that Rakambeer was a witness in murder of Parmanand because of which he was harbouring enmity towards the complainant side. Further he stated that in case under sections 307 IPC of the year 2004 in crime No. 244 of 2004, the names were lodged which included Dhiraj, Rakambeer, Ajay and Salek. In that case he had not mentioned the name of accused Salek as Jitendra alias Salek. The said case was contested and was decided against him, in which accused were acquitted. In this case also the accused had pressurised him not to give his statement but even then he had deposed before court, probably this case was decided on 16/05/2009. Further he stated that in FIR the name of father of Jitendra was mentioned by him to be Shyam Singh , whom he knew to be real brother of D.P. Yadav . He does not recollect whether the address of Jitendra was told by him to the investigating officer. But he further stated that he does not recollect that he had given statement to investigating officer or not to the effect that ride then about 8 AM nephew of D.P. Yadav called Jitendra son of Shyam Singh resident of 4/17, Raj Nagar, PS Kavi Nagar and Rakambeer son of Bedu resident of Vajeedpur, 58 Gautambuddha Nagar came there by Maruti Zen and one person on motorcycle but then he again stated that it was right to say that he had given the said statement to the investigating officer . The learned counsel for the appellants stated in this regard that the parentage of Jitendra alias Salek is different because in the FIR parentage of Jitendra is mentioned as Shyam Singh while parentage of Jitendra alias Salek is Bedu. This witness further stated that in the murder case of Parmanand Yadav he and Indar Pahalwan were made accused under sections 120 B IPC. In a statement recorded before trial court on 14/09/2009 he had identified accused Ajay in court and one another person as the persons who were involved in commission of this offence and that other person revealed his name to be Rakesh son of Jayaprakash and stated that all of them had weapons in their hand and together they had fired upon the deceased and the injured.
28. It is proved from the above evidence that there was deep enmity between the two sides as is evident that Rakambeer was a witness in the case of murder of Parmanand in which deceased and the informant (PW 1) were accused, therefore it was argued by the learned counsel for the appellants that Rakambeer and all other accused who were being alleged to be belonging to the gang of Parmanand by the complainant side have been falsely implicated in the present case. We are not inclined to accept this argument wholly because enmity is double-edged weapon because of which offences are committed also. In the case in hand Rakambeer, who has been named in the FIR as well as by the PW 1, PW 2 and PW 3 to have remained involved in giving effect to the present occurrence and whose identity also cannot be disputed as he was a witness in a case against informant and the deceased, therefore his implication does not appear to be wrong, although proof of involvement of other accused whose name emerged after 23 days of the occurrence during investigation may be found lacking and benefit may go to them.
Occurrence:
29. PW 1 has stated that on the date of occurrence, that is, on 20/11/2002 at about 8 AM accused Rakambeer, Jitendra alias Salek, Ajay, Dhiraj and one another person had come on the spot in a Zen car and motorcycle having pistols in their hands and all of them together in prosecution of common object to kill, opened fire upon the complainant side which included Indar Pahalwan (deceased, brother-in-law of the informant, PW 1), Badal (son of the deceased), Rambal (father of deceased), Ballu (Injured, driver of deceased) and 20 - 25 labourers who were involved in construction of raising boundary wall on the plot of the deceased in village Dogari. Having seen firing being done the complainant side started running away from there. In this occurrence Indar Pahalwan and Ballu received serious injuries. At the time of incident witness Santram son of Bedan resident of Behlolpur and others reached there who had seen the occurrence and the accused fled from there firing continuously. Today in court Rakambeer, Ajay and Dhiraj were present, Jitendra alias Salek was not present who had appeared in court on the earlier date. In respect of the said statement the learned counsel for the appellants stated that this witness has made improvement from the F.I.R. version because here he has stated that five persons had come there who fired upon the complainant side while according to the FIR there were only three persons who were stated to be involved in firing, moreover one name mentioned in F.I.R. of Jitendra son of Shyam Singh, who was also said to have fired, his name has been modified by him by naming him as Jitendra alias Salek and also added two other persons namely Ajay and Dhiraj. The accused had entered from the side of the gate. There lies the wall near which is located the tube well. He had seen the accused entering the gate but had not seen behind the wall, they had been seen entering from the gate which was near tube well. As soon as they entered, he had seen Jitendra alias Salek, Rakambeer, Ajay. Jitendra alias Salek son of Bedu, resident of Bagirpur, who were recognised by him. He could know about person by the name Jitendra on the spot, which was written by him in his report but he had not mentioned therein that he was also called Salek , although he had not stated so before police. He had not seen any paper in which Jitendra alias Salek was written. It was wrong to say that he wanted to exculpate Jitendra son of Shyam Singh from the present case because of which he has stated Salek as alias name of Jitendra. He had no knowledge as to who had made fire from the other side of the wall but it was wrong to say that accused appellants had not made fire. Fire was made upon Indar Pahalwan from a distance of 5 - 6 steps when he was fleeing, he was about 8 - 7 steps away from Indar Pahalwan
30. Ballu, PW 2 who had joined as a driver with the Indar Pahalwan about 4-5 years prior to the occurrence and was still continuing there belonged to Ghaziabad, has stated that on 20/11/2002 he was working as driver with the Indar Pahalwan who used to do work of property dealing. He had 3 acres of land in village Dogari and on the date of occurrence he was in Dogari. On that day Badal, Rambal, Jagadish Gupta and Indar Pahalwan were present along with 20 - 25 labourers on the spot. At about 8 AM, five persons came there in a white Maruti Zen and one black coloured Yamaha motorcycle from the western direction. Rakambeer, Dhiraj and Salek entered inside, wielding pistols in their hands and soon after entering, fired upon Indar Pahalwan, who was standing out. The persons who were standing out included one Ajai Yadav, the other person was not recognised by him even they had fired by country made pistol. When he went forward to rescue Indar Pahalwan, Indar Pahalwan after having travelled some distance fell down and thereafter in his fallen condition he was again fired and because he had come to save him even he received firearm injury in his leg and shoulder (shoulder appears to have been mentioned by mistake) . The persons who were staying outside were saying that if anyone came forward to rescue them even he would be killed and thereafter the accused persons fled towards North. Indar Pahalwan and PW 2 were taken to Yashoda hospital by Badal and Satpal, where Indar Pahalwan was declared dead and he was admitted in hospital. He stated that he recognised Salek and Dhiraj who were present in court and had given effect to this occurrence and that he also knew accused Ajay by name but not by face. The learned counsel for the appellants argued that this witness has stated that only three accused named above had entered inside while according to PW 1 all the five had entered inside which is material contradiction. Further PW 2 stated that for the first time when he saw the accused, he was standing at the boring. Indar Pahalwan was standing 2 steps towards East of him. Satpal, Badal, Rambal and Jagadish Prasad Gupta were standing towards South 20 to 24 steps ahead of Indar Pahalwan where construction was going on. The work of demarcation for the purposes of sale of plots was going on. The first shot was made from a distance of about 4 - 5 steps, which was made from inside the boundary wall. Ajay and one unknown person were outside the boundary and were standing adjoining to it. He further stated that at the time of occurrence Jagadish Prasad Gupta had a revolver with him, but he was not told by him or any other person from his side to make fire upon the accused side. By the time he reached near Indar Pahalwan to rescue him, he had already received 8 - 9 fire arm injuries. When the fire was made from very close range upon Indar Pahalwan, the said fire also hit him and at that time he was hardly one step away from him and Satpal, Rambal, Jagadish Gupta and Badal were about 15 gaj away from him. He further stated that in the statement given to police he did not tell that the person who was standing out was Ajai Yadav. He had told IO that there were two unknown persons standing out and that he recognised Ajay by face but not by name, name could be known subsequently and this was stated by him to police that he recognised the two persons standing out by face, if the same was not written in his statement by police he could not tell its reason. He had found out the name of Ajai 20 days after the incident and had apprised it to the investigating officer.
31. The PW 2 has further stated that the police had taken his statement 23 days after the occurrence that is on 13/12/2002. It has been stated by him that his statement was recorded at the house of Indar Pahalwan. He further stated that he had been discharged 7 - 8 days after admission, from the hospital and remained thereafter at the house of the deceased. In this regard the learned counsel for the appellants argued that he did not suffer any serious injury and did not remain confined to hospital in a condition in which he could not give a statement, hence reliance has also been placed by him upon Shahid Khan vs State of Rajasthan, 2016 AIR (SC) 1178 in which attention was drawn towards paragraph 11 of the judgment which is quoted herein below for the sake of convenience and it was argued that in this case the Hon'ble Apex court found the delay of three days only in the recording the statement of witness to be fatal for the case:
"11. The statement of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciating evidence thereby resulting in miscarriage of justice. In our opinion the case against the appellants has not been proved beyond reasonable doubt."
32. PW 3, Badal Yadav, who is son of the deceased and according to prosecution is an eye witness has repeated the same version which has been made by PW 2 in the exemption in chief with respect to the occurrence supporting the prosecution version in almost all respect. In cross-examination he has stated that he had told the investigating officer that among the assailants there was one unknown person and the same has not been recorded, he would not know its reason. Further he stated that it was right to say that he had told investigating officer that his maternal uncle/informant (PW 1) because of feeling nervous and baffled had written the name of Jitendra son of Shyam Singh resident of Raj Nagar, Ghaziabad as an accused falsely, although the said person was not present at the place of occurrence and that there was no conspiracy hatched by D.P. Yadav, Member Parliament in respect of murder of his father Indar Pahalwan. He further stated that all the five accused had parked their car and motorcycle outside the boundary and came inside the boundary wall on foot through gate No. 1 from the western side and proceeded towards North and thereafter stated that entered from gate No. 1 which was in South which was about 3 - 4 steps away from boring by the side of the boundary wall. Indar Pahalwan had already received 10 - 15 fire arm injuries before he fell down and thereafter he again received 5 to 7 fire arm injuries but he could not tell where these injuries were received. This statement does not appear to be in consonance with the injuries which are recorded in the post-mortem report as there were only two gunshot wounds of entry and exit and 2 lacerated wounds while only one injury in thigh is received by Ballu. Further this witness stated that he did not go with Rambal, Jagadish Gupta and Satpal to rescue Indar Pahalwan which also appears to be little unusual behaviour. Further he stated that on the place of occurrence only Jagadish Gupta had a licensee revolver but no fire was made by it from their side and the said revolver fell down on the ground while he was fleeing from the place of occurrence. It is also unusual conduct that the complainant side was being fired upon yet no fire was made from their side in defence. This witness has also stated that he had also given a statement to the investigating officer about 15 to 20 days after the occurrence, and no justification has been given by prosecution as to why so much delay was made. He further stated that when he reached near Indar Pahalwan, by that time accused had already fled from there. He has no knowledge whether the revolver which had fallen on the ground of Jagadish Gupta, was lifted by him after returning or not. Ballu had not fallen down after having been hit by a bullet, rather he stood up taking support of the boundary wall. The learned counsel for the appellant had argued that it was not feasible to take support of a boundary wall which was hardly one and a half feet at that place.
33. PW 8, investigating officer has stated that PW 1 had stated under 161 Cr. P.C. that nephew of D.P. Yadav, Jitendra son of Shyam Singh resident of 4/17, Raj Nagar PS Ghaziabad and Rakambeer son of Bedu resident of Vajeedpur PS sector 58 Gautambuddha Nagar had come on Maruti Zen and one motorcycle and according to his statement only three persons had caused occurrence . He had also stated to him that Jitendra son of Salek was not written by him and he had also not stated that name of father of Jitendra was Bedu. He had not stated the name of village of Jitendra to be Vajeedpur nor had he stated that the nephew of D.P. Yadav, Jitendra was also known as son of Seelak.. PW 1 has also not written in FIR that accused Rakambeer, Jitendra alias Salek, Ajai and Rakesh were members of the gang of Parmanand and since then they were on the lookout to take revenge, nor was so stated by him in statement under 161 Cr. P.C.. PW 1 did not write names of accused Salek son of Bedu, Rakesh son of Jaipal resident of Vajeedpur, Noida or Ajai son of Jai Narain resident of Vijay Nagar Ghaziabad. He did not tell him the names of Salek, Dhiraj and Ajai in anyway as an accused. This witness has further stated that accused Jitendra in his statement had told him that his maternal uncle Parmanand Yadav was murdered 6 months ago, in which he had made efforts to get the accused of that case to be lodged in jail and since then only Satpal (PW 1) and Indar Pahalwan (deceased) were after him. He further stated that he did not arrest D.P. Yadav or Jitendra son of Shyam Singh in this case although there was no stay from any court. PW 1 had stated to him that here were Satyapal and Indar who had picked up row with his uncle D.P. Yadav, both of them should be finished. PW 1 never told him that alias name of Jitendra Yadav son of Shyam Singh was Salek or Seelak. Till the submission of charge- sheet PW 1 had not identified any unknown person, although during investigation he had not conducted any identification proceedings.
34. PW 8 further stated that he had recorded the statement of PW 2 on 13/12/2002 because he was seriously injured. He had gone to Yashoda hospital but he was not in a condition to give a statement because Doctor treating him had stated that he was not in such a condition. He had no knowledge as to when Ballu was discharged. PW 3, Badal had stated to him that his maternal uncle Satya Pal had falsely implicated name of Jitendra son of Shyam Singh because of nervousness. PW 2 had stated to him that two unknown persons who were standing at a distance, started firing by country made pistols here and there and stated that whoever will come would be killed and he had not stated that he would recognise them by face.
35. After having gone through the above evidence with respect to the occurrence, we find that the aforesaid three eye-witnesses do appear to be there on the spot and have seen the incident in which Indar Pahalwan died and Ballu received injury, to that extent their testimony inspires confidence despite the fact that there were several minor discrepancies regarding other facts except the fact there was major discrepancy with respect to involvement of three accused as per FIR while as per the eye-witnesses there were five accused.
FIR:
36. PW 1 has stated that he had lodged written report (Exhibit Ka 1 ) at PS Vijayanagar after the occurrence in his handwriting. He further stated that he had not mentioned the names of Ajay and Dhiraj in FIR, but had stated their name before police and if the same was not mentioned by police he could not tell its reason. He had not written in the report that all the 4 accused were member of gang of Parmanand, but had stated so before police. It was not mentioned in the F.I.R. that witness Santram had also come on the spot although he had stated so before the police. He had not made any complaint to any higher authorities of police when the police did not write in his statement what was mentioned by him. He had mentioned it correct in report that by the time they could understand anything, Jitendra son of Shyam Singh and Rakambeer son of Bedu and one other person had reached there and that D.P. Yadav's nephew Jitendra son of Shyam Singh had reached near them and that Jitendra had stated that here were Satpal and Indar, who had picked up row with his uncle D.P. Yadav and that he had got their relative Parmanand Yadav murdered. It was also mentioned correct in report that all these three while they were running had opened fire upon his brother-in-law, Indar Pahalwan and driver Ballu and that this assault was made by Jitendra (nephew of D.P. Yadav ) , Rakambeer and one another person in pursuance of conspiracy made by D.P. Yadav, MP. For identifying the said other person he had gone to Vajeedpur where he had recognised him about one week after the occurrence although he had not given any application for the same before any officer. The learned counsel for the appellants argued that this statement about identification was not given by this witness to the investigating officer. He had gone to lodge FIR alone, which was written by him at Yashoda hospital. At that time Rambal was not there. He further stated that it was wrong to say that he was not present on the place of occurrence and that he had not taken the injured to hospital. Badal was not his real Bhanja. He has written parentage of Jitendra as Shyam Singh and it was wrong to say that the alias name of Jitendra was added by him at the instance of Rambal and Badal. It was right to say that he had written in his report that on 20/11/2002 at 8 AM nephew of D.P. Yadav, Jitendra son of Shyam Singh and 2 others had come in Maruti Zen and a motorcycle near them. It was also right to say that he had mentioned in FIR that 3 persons had come on the spot which included Jitendra son of Shyam Singh, Rakambeer son of Bedu and one another. He had not asked about the assailants from Ballu, Rambal, Badal and Jagadish Gupta. He further stated that name of Rakesh as accused was not written by him in FIR nor had he given any affidavit in support of Jitendra and D.P. Yadav before police. In a statement dated 23/04/2008 before court he had taken names of Rakambeer, Jitendra, Dhiraj, who are Ajay and one another. The name of Rakesh was disclosed to him by Santram who was resident of Behlolpur.
37. PW 2 has stated that the information of the occurrence was given at police station by PW 1.PW 2 had never gone anywhere to identify Ajay and Dhiraj.
38. From the above evidence we find that there is certainly discrepancy with regard to the number of assailants named in the FIR and the number of assailants as narrated by the eye-witnesses. But the FIR stands proved.
Defence of the accused side:
39. The PW 1 has stated that he does not know that her distant sister Smt. Vimlesh was married to deceased Indar Pahalwan, and that his father and other family members had refused to marry Vimlesh with Indar Pahalwan, but later on by chance the said marriage was performed but the relations between him and his family on the one hand and Indar Pahalwan on the other had worsened, he denied any worsening of relationship. He also denied that he and Indar Pahalwan were criminal minded persons as he was having a large No. of criminal cases pending against him which have been mentioned at page 43 and 44 of the paper book and Indar Pahalwan had large No. of criminal cases pending against him which have been mentioned at page 45 and 46. He had no knowledge about the history sheet of Indar Pahalwan.
40. Reading out the statement of PW 3, the learned counsel the appellant stated that he has admitted that his father was a property dealer and used to sell plots. It was argued that he was a bhumafia and some unknown assailants murdered him by indiscriminate firing.
41. From above evidence to us the version of difference that some unknown assailants had murdered does not inspire confidence Place of occurrence :
42. PW 1 has stated that though he has no knowledge about the directions East to West North and South , but he had seen all the four walls . The gate in the wall is existing which lies towards the bypass road . The wall near the tube well and the door was about 1 ¼ feet high. The wall which is in front of the gate is 4 feet high. The walls on the 2 sides of the plot are also about 4 feet high. The site plan was prepared by police in his presence.
43. PW 2 has stated that in Dogari the deceased had taken land which was 300 metre long and 200 metre wide, upon which at the time of occurrence construction of two rooms was going on. After coming inside the boundary wall by about two steps, towards West was boring. The under construction rooms were about 50 feet away from the boring. The boundary wall of this land was about 4 feet high on all the 4 sides and in this boundary wall there was one gate towards West which was about 20 feet high, one gate towards East which was about 4 feet high. On gates there were no doors. Construction material was lying over there such as sand and cement etc.. The deceased was not doing any plotting.
44. PW 8 has stated that in the site plan from letter ''B' the accused had started firing. Between ''A' and ''B' the distance has not been mentioned by him nor has he mentioned the distance between ''B' and ''C', but according to the site plan informant, Injured and witnesses had fled towards North together from the tube well, which point is shown by letter "O"
45. We find from the above evidence that the place of occurrence is proved despite there being few minor discrepancies.
As regards affidavit:
46. PW 1 has stated that he had no knowledge whether Rambal or Badal had given any affidavit before police.
47. PW 2 has stated that he had told investigating officer that he had given one affidavit in respect of the occurrence to SSP Ghaziabad, which is paper no. 4 kha/6 on the file and bears the date 28/11/2002. In paragraph 4 of this it has been mentioned that he was saying on oath that Jitendra son of Shyam Singh was known to him very well and that at the time of incident he was not present at the place of occurrence and that he had not murdered Indar Pahalwan. The murderers were unknown persons. When enquired about this he stated that he knew Jitendra and that he was not involved in the occurrence. The paragraph 5 of the said affidavit was also read out to him and he admitted that it was written correct and that the same was signed by him in his full consciousness and all the statements made therein were correct to his knowledge. The said affidavit was given to SSP by him on 28/11/2002 in which it was also read out to him that the fact of the matter was that about this occurrence he had no information and for certain vested interest his name was mentioned in the array of witnesses deliberately. Thereafter this witness stated that the said affidavit was given by him only with respect to accused Jitendra and not with respect to other accused persons who were present in court. He has denied to have received the injury at any other place rather reiterated that he was present on the place of occurrence and received injuries there only.
48. PW 3 has also admitted that on 28/11/2002 he had given an affidavit to SSP along with his grandfather Rambal and driver Ballu which are on record, but he had put his signature on the same without having gone through it because his grandfather had asked him to do so.
49. PW 8 has stated that he had received affidavits submitted by Rambal, Ballu, Badal, Jagadish Prasad to SSP Ghaziabad and also an application moved from the side of accused Jitendra Yadav before District and Sessions judge along with verified taxi bill, registration and hotel bill were received. Further he stated that on 13/12/2002 on the basis of statement of Shri Pal and Than Singh, who were also eye-witnesses of the occurrence it came to light that Rakambeer, Seelak alias Salek, Dhiraj, Rakesh and Ajay were involved in this occurrence and accordingly offences under sections 147, 149 and 34 IPC were also added. Learned counsel for the appellants has argued that these 2 witnesses Shri Pal and Than Singh were not named in the FIR but have been made eye-witnesses by the prosecution which is an improvement of prosecution version. Further it is stated by this witness that on 13/12/2002 the statement of Badal and Ballu (injured) were recorded. On 14/12/2002 the statement of Jagadish (whose pistol had fallen on the place of occurrence) was recorded. On 15/12/2002 the information was received that Rakambeer had got his bail broken in another case and went to jail, his warrant was got prepared. On 17/12/2002 NBW and 82 Cr. P.C. proceedings were initiated against co-accused Rakesh, Seelak alias Salek, and Ajay. PW 8 has stated that Rambal, Badal , Ballu, and Jagdish Prasad had given an application dated 28/11/2002 to SSP Ghaziabad which was received by him after order of SSP and the same was made part of charge- sheet and along with that the affidavits of above witnesses were also given which were copied by him in CD and were made part of the charge- sheet. PW 2 and PW 3 had never stated to him that the said application dated 28/11/2002 and the affidavits were signed by them without having read them at the direction of his grandfather Rambal. After the receipt of those affidavits, for their verification, the statement of Rambal and PW 2 were recorded under sections 161 Cr. P.C., in which both of them had stated that they had taken the names of the accused, being eye-witnesses. Due to being busy in official work he could record statement of PW 3 on 13/12/2002. On the date of occurrence, PW 3 was not found in Yashoda hospital by him.
50. From the above evidence we find it is well proved that the four witnesses named in the FIR except the first informant had given affidavits expunging the names of Jitendra and D.P. Yadav.
Recovery of weapon of offence and vehicles:
51. Anil Samania (PW 8) has stated that on 20/09/2002 he was posted at Vijay Nagar police station; on the said date PW 1 had given a written report on the basis of which crime No. 608 of 2002 was registered under sections 302, 307, 120 B IPC against Jitendra son of Shyam Singh, Rakambeer son of Bedu and one unknown person, entry of which was made in GD by Head Mohorrir Jitendra the same day and recorded the statement of PW 1 the same day. Thereafter he reached Yashoda nursing home with the SI Tejvir Singh and S I Praveen Saxena and the panchayatnama was directed to be prepared by S I Tejvir Singh and thereafter he went to Dogari where he prepared the site plan. From the place of occurrence in presence of witness Suresh Yadav and Balraj recovery memo (Exhibit Ka 23) was prepared of 4 empty cartridges of 7.62 bore and three cartridges of 7.65 bore and one fresh bullet apart from that one revolver and 32 bore and five live cartridges were also found, memo of recovery (Exhibit Ka 24) of it was prepared and on the same day the statement of above mentioned witnesses Suresh the Balraj Yadav were recorded.
52. PW 8 further stated that Rakambeer's statement was recorded on 30/12/2002 in which he confessed and gave a statement that he could get the pistol and the car which were used in commission of the offence recovered, hence his police custody remand was taken on 24/12/2002 and at his pointing out Maruti Zen U.P. 16 C1424 was recovered from Anubhav Motors A.D. Sector 4 Noida, recovery memo (Exhibit Ka 3) of which was prepared and thereafter he got the pistol recovered in presence of 2 witnesses, Sundar and Virendra from the jungle of village Dogari, recovery memo of which is (Exhibit Ka 2). The site plan of recovery of the pistol is Exhibit Ka 23 and site plan of recovery of Maruti Zen is Exhibit Ka 22. On the basis of recovery memo of pistol from Rakambeer crime No. 653 of 2002 under sections 25 A of Arms Act was also registered at PS Vijai Nagar. This witness has also stated that the report of FSL in respect of the pistol recovered from Rakambeer is Exhibit Ka 31 but it also bears Exhibit Ka 26 at page 19 and 20 of the paper book. In this report it is mentioned that three empty cartridges of 7.65 MM and 4 empty cartridges of 7.62 MM and one pistol, which were received in Forensic Science Lab, were tested and it was found that the disputed three cartridges of 7.65 MM were found to have been fired from the said pistol. Therefore, according to Forensic Science Lab report which is also admissible under sections 294 of Cr. P.C. it has come on record that the pistol which was recovered at the pointing out of Rakambeer was found to have been used in firing the 3 empty cartridges which were collected from the place of occurrence, where the deceased Indar Pahalwan had received fatal injuries.
53. It is further stated by PW 8 that the co-accused Salek and Ajay who had gone to jail and also confessed and Ajay had stated that he would get 315 bore pistol and Yamaha motorcycle recovered and accused Salek @ Seelak also stated that he would get the pistol recovered which were used in commission of offence. On 25/12/2002 police custody remand was taken of Ajay, Dhiraj and Salek, independent witness of public was also taken but no pistol could be recovered which was used in offence. Accused Ajay stated that he could get motorcycle No. DLI9G6966 recovered from Praveen mechanic, Mata colony where the same was concealed, the site plan of recovery of motorcycle was Exhibit Ka 29. This witness has further stated that the pistol which was recovered from Rakambeer was not present before him in court. The motorcycle which was recovered from the pointing out of Ajay, who was its owner he could not know nor could he find evidence that the same belonged to Ajay. Further he stated that the pistol was recovered from the place which was 21 kilometres away from the place of incident. This witness has further stated that at the pointing out of Rakambeer pistol (material Exhibit 2), bullet (material Exhibit 3) and empty cartridges (material Exhibit 4 to 13) was recovered. Further he stated that pistol which was presented in court had written on it ''made in Italy' and even that was not very legible, while the pistol which was recovered at the pointing out of Rakambeer was of a different make. The learned counsel for the appellants has argued that this would make the recovery not proved. He further stated that the deceased and the first informant both were recorded as the history sheeters at PS Vijay Nagar.
54. From the above evidence we find that recovery of pistol is well proved at the pointing out of Rakambeer and the cartridges which were recovered from the place of occurrence were found to have been filed by the pistol as per FSL report.
55. From the side of accused Rakambeer it is stated under sections 313 Cr. P.C. that in the case of murder of Parmanand Yadav, he had given statement against Satpal Yadav (informant of this case) and Indar Pahalwan, in court and in year 2001 he had contested, in his village Vajeedpur, election of Pradhan against Soni father-in-law of Badal Yadav (PW 3) in which he had won the election, therefore Satpal Yadav and Badal Yadav have got him as well as family implicated by asking their driver Ballu to give false statement against them. Accused Dhiraj has stated that Rakambeer is his cousin brother. In case of murder of Parmanand, Rakambeer had given statement against Satpal and Indar Pahalwan and he used to accompany Rakambeer and was doing pairavi in the case in court, besides that when in the year 2001 Rakambeer contested election of Pradhan against Soni, father-in-law of Badal,, in which Rakambeer had won the election, because of this enmity he has been falsely implicated. Accused Ajai Yadav has stated that Parmanand Yadav was his real uncle, in whose murder Satpal Yadav and Indar Pahalwan where accused. In that case he was doing pairavi and also due to election rivalry, he has been falsely implicated. Accused Salek Chand that he is real brother Rakambeer, who was an accused in Parmanand's murder case with Satpal Yadav and he had given statement against them in court, besides election rivalry he has been falsely implicated.
56. After having perused the above evidence and having heard the arguments, were not inclined to accept the conclusion drawn by the learned trial court that because F.I.R. was lodged by Satpal soon after the occurrence, hence there was no occasion for him to ask anything from any other witness about the occurrence or to think it over, therefore whatever he could understand the road the same in FIR and therefore it was quite likely that he might have mistook Seelak alias Salek to be nephew of D.P. Yadav that is Jitendra son of Shyam Singh and might have nominated Jitendra. However we do agree with the trial court's finding that the place of occurrence and the happening of incident are well proved on the basis of PW 1, PW 2 and PW 3 who are eye-witnesses. There is no infirmity in the learned trial court believing the presence of these witnesses on the spot. But it cannot be ruled out that there are several discrepancies in the statements and at several places exaggerations as well with respect to the number of injuries caused to the deceased, which may be noticed from the details of the statements mentioned above. But in this regard we would like to rely upon Kameshwar Singh vs State of Bihar and others (2018) 6 Supreme Court Cases 433, in which regarding appreciation of evidence it has been held by the Hon'ble Apex court that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is duty of court, to scrutinise evidence carefully and, in terms of felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of prosecution case or material parts of evidence and reconstruct a story of its own out of rest. Effort should be made to find truth. It is the very object for which courts are created. To search it out, the court has to disperse suspicious cloud and dust out the smear of dust, as all such things clog the very truth. So long as chaff, cloud and dust remain, criminals are clothed with such protective layer to receive benefit of doubt. So, it is a solemn duty of courts, not to merely conclude and leave the case the moment suspicions are created. It is the onorous duty of court, within permissible limits, to find out the truth. It means, on one hand, that no innocent man should be punished, but on the other hand, to see no person committing an offence should go scot free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to accused. Evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of court to accept the evidence. Doctrines and maxims-Falsus in Uno, Falsus in Omnibus-is treated as neither a sound rule of law nor a rule of practice in India.
57. We would also like to rely upon B. Bhadriah and others vs State of A.P., 1995 Supp (1) Supreme Court Cases 262, in which in a case of murder the Hon'ble Apex Court appreciated evidence in a manner that in a case in which FIR contained natural version of occurrence, presence of eye-witnesses at the scene of occurrence was found natural and their evidence was found to be consistent on all material aspects. The medical evidence corroborated the same. The names of four accused out of nine accused were not mentioned in FIR though they were known to the informant, it was held that the courts below had rightly given benefit of doubt to four accused, and that as no overt acts were attributed to two out of the remaining five accused, therefore they were also held entitled to the benefit of doubt and the conviction of remaining three accused was upheld and altered from Section 302/149 to 302/34 IPC
58. After having gone through the above evidence and having heard the arguments of both the sides, we are of the opinion that it is evident that the occurrence took place on 20/11/2002 at 11 AM as per FIR version of PW 1 in Jungle of village Dogari under the jurisdiction of police station Vijay Nagar District Ghaziabad regarding which FIR was lodged the same day at 9:30 AM, which is quite prompt FIR as distance from the place of occurrence to the police station is 2 kilometres. This is named FIR against (1) Jitendra son of Shyam Singh resident of Vajeedpur (2) Rakambeer son of Bedu resident of Vajeedpur, (3) D.P. Yadav, MP and (4) one unknown person on a motorcycle. As per this FIR from among the eye-witnesses, the first informant himself, Satpal Singh has appeared as PW 1, Ballu, Injured who is driver of the deceased has been examined as PW 2 and Badal, PW 3 who is son of the deceased has been examined. We find that four witnesses named in the FIR including PW 2, PW 3 and two others namely, Rambal and Jagdish had given affidavits stating that there was no role of Jitendra son of Shyam Singh as well as of D.P. Yadav in the present offence, therefore virtually there was only one named accused namely Rakambeer, whose name is consistently appearing in the FIR as well as in the statements of PW 1, PW 2 and PW 3, being involved in commission of the present offence. It is also apparent that the statement of PW 1 is absolutely contradictory in respect of involvement of Jitendra son of Shyam Singh, who is alleged to be nephew of D.P. Yadav because his name has been referred by this witness as Jitendra alias Salek for the first time in his statement but he has admitted that he was son of Bedu and not as was mentioned in the FIR of Shyam Singh. The statement of PW 1 is found to be contradictory in this regard because he stated before PW 8 that the names which he had written in Tehrir were correct because in court he has stated that Rakambeer, Jitendra alias Salek, Dhiraj, Ajai and one another had come on the spot and had started firing while as per his Tehrir there were only 3 accused namely Rakambeer, Jitendra son of Shyam Singh and one unidentified person. It may be mentioned here that one unidentified person was identified as Rakesh who has been acquitted, therefore only four accused remained there who have been convicted, regarding whom we are making consideration here. It has also become clear from the statement of PW 2 and PW 3 that subsequently made accused namely Salek, Dhiraj and Ajay were known to the complainant side and when PW 1, PW 2 and PW 3 were on the spot on the date of occurrence, then why the names of these accused could not be mentioned in the FIR, is beyond comprehension. Therefore it is apparent that there being subsequent implication of these accused persons on the basis of statement of PW 2, whose statement has been recorded admittedly by the investigating officer PW 8 after delay of about 23 days after the occurrence, for which no justification has been given from the side of prosecution except that it is stated by PW 8 that he was seriously injured and was in ICU, doctor treating him had stated that he was not in a position to give a statement. The said version does not seem to be correct because PW 2 had received only over one injury in thigh which was not of serious nature, and it has also come on record that he had been discharged after 8 days. Therefore the investigating officer could have taken his statement at the earliest. Because of this delay in his statement, the possibility of false implication of the above-mentioned subsequently added accused could not be ruled out. It is also apparent that no weapon of offence has been recovered at their pointing out. The only weapon which has been recovered is recovered at the pointing out of the accused Rakambeer. The role of firing has been assigned by the prosecution to all the accused who had arrived on the place of occurrence and not solely to any particular accused. It has also come on record that the pistol which was recovered at the pointing out of Rakambeer and the cartridges which were recovered from the place of occurrence, were sent to Forensic Science Lab and it was found by the said lab that those cartridges had been fired by the said weapon, therefore there was strong evidence against only Rakambeer and not against other accused persons. The injuries which have been received by the deceased are only two fire arm injuries which comprise two entry wound and two exit wound and two lacerated wounds only, therefore it does not appear that so many accused might have fired upon the deceased but there could be certainly more than one accused. The injury is mentioned in the post-mortem report appeared to be corroborated by the oral testimony of PW 1, PW 2 and PW 3 as regards firing made from the side of the accused upon the complainant side. There is cogent evidence against other accused Rakambeer as his name was there right from the beginning that is given in FIR his name has been mentioned apart from his name appearing in the other three eye-witnesses' account but regarding other accused mentioned above , their names were not in the FIR and they came into light much later about 23 days after the occurrence in the statement of PW 2 and PW 3 , therefore the possibility of their false implication due to enmity could not be ruled out. Enmity no doubt has been shown on record, which may be the reason for the false implication of these accused. Therefore we are of the opinion that the rest of the accused need to be acquitted while only Rakambeer needs to be convicted. The F.I.R. is normally backbone of the prosecution case upon which the entire cases hinges and in the case at hand, in the FIR, participation of only three accused was mentioned, therefore offence under sections 147 and 148 IPC would not be made out, rather Rakambeer would be held guilty of offences under sections 302 read with Section 34 IPC and 307 read with sections 34 IPC only instead of Section 302 /149 and 307 /149 IPC because he would not be adversely affected by such modification in charge and would need to be acquitted for offence under sections 147 IPC and 148 IPC. The other accused are liable to be acquitted being given benefit of doubt because of their implication 23 days after the occurrence despite the fact that the first informant as well as the injured witness were on the spot, even then there names were not mentioned in the FIR.
59. Therefore we allow the appeal of the accused appellants Salek alias Seelak, Dhiraj and Ajay and acquit them of all the charges. They are already on bail and need not surrender hence their bonds and sureties stand discharged.
60. So far as the accused Rakambeer is concerned, his conviction is altered under sections 302 read with Section 34 IPC and Section 307 read with Section 34 IPC and under both the sections the punishment awarded by the trial court shall remain as such. Therefore, his appeal is, accordingly, partly allowed. He is already in jail.
61. Let a copy of this order be transmitted to the trial court forthwith for its necessary compliance and ensure that the accused Rakambeer serves out his sentence.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Dated: 19.11.2018 au/h