Allahabad High Court
Narsingh @ Baba Nai vs State Of U.P. on 5 March, 2020
Bench: Harsh Kumar, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 79 Reserved on : 17.02.2020 Delivered on: 05.03.2020 CRIMINAL APPEAL No. - 351 of 2012 Appellant :- Narsingh @ Baba Nai Respondent :- State of U.P. Counsel for Appellant :- B.R. Sharma,D.R.Chaudhary,K.M. Gupta,Sunil Kumar Counsel for Respondent :- Govt. Advocate Connected with CRIMINAL APPEAL No. - 6882 of 2011 Appellant :- Mukesh And Others Respondent :- State of U.P. Counsel for Appellant :- Sunil Kumar Counsel for Respondent :- Govt. Advocate,J.P.Mishra, Santosh Kumar Hon'ble Harsh Kumar, J Hon'ble Umesh Kumar,J.
(Delivered by Umesh Kumar, J) These two appeals arising out of common/same judgment and order have been preferred assailing the judgment and order dated 30.11.2011 passed by Special Judge (S.C/S.T.) Act, Mirzapur in Sessions Trial No. 169 of 2007 ( State Vs. Nar Singh @ Baba Nai), S.T. No. 170/07 (State Vs. Ganesh Nai), and S.T. No. 171/07 ( State Vs. Ganesh Nai) convicting the appellants under Section 147, 148, 323/149/302/149 IPC, Police Station Kotwali Shahar district Mirzapur convicting and sentencing the accused Nar Singh @ Babi Nai under Section 147 IPC to undergo one year rigorous imprisonment with a fine of Rs. 500/-, to undergo 3 months imprisonment under Section 148 IPC with a fine of Rs. 500/-, to undergo 6 months imprisonment under Sections 323/149 IPC with a fine of Rs. 500/- with default stipulation; this accused has further been sentenced to undergo life imprisonment under Section 302/149 IPC with a fine of Rs. 2000/- with default stipulation. All the sentences were ordered to run concurrently.
In Criminal Appeal No. 6882 of 2011 preferred by accused- Mukesh, Durgesh, Ganesh and Dhahati @ Sanu Babu against the same judgment, learned Trial Judge has convicted and sentenced the accused to undergo one year rigorous imprisonment with a fine of Rs. 500/-, under Section 148 IPC to undergo two years rigorous imprisonment with a fine of Rs. 500/-, under Section 323/149 IPC to undergo six months rigorous imprisonment with a fine of Rs. 500/- and further to undergo life imprisonment under Section 302/149 IPC with a fine of Rs. 2,000/- each with default stipulation.
The accused-appellants have been acquitted of the charges under Sections 307/149 and Section 4/25 Arms Act by learned Judge.
The prosecution case, in brief is that informant-Kamlesh Kumar Panda son of Parmanand Panda resident of Mohalla Badi Mata Mandi, Dhundhi Kata, Police Station Kotwali, Mirzapur gave a written tahrir at Kotwali Shahar alleging therein that today i.e. on 8.4.2006 at about 9.30 in the night, he along with his brother Dinesh @ Babloo and one Mukeel Ahmad son of Munawwar Ali resident of Station Road, P.S. Katra Mirzapur were returning to their house after reminding collection of money and when they reached Dhundhi Katra ( near Bhairoji ka Mandir), then Nar Singh @ Baba, Gurgesh, Mukesh sons of Lalloo @ Mohan, Chandan and Ganesh sons of Radhey Shyam, Lalloo @ Mohan son of Satya Narayan and Dehati @ Shanu Babu son of Asghar met them and they by abusing his brother Dinesh @ Babloo using filthy language exhorted each other by saying " ab kya dekhte ho sale to pakad lo, ab jinda jane na pave " ( what you are seeing, catch him and see that he did not escape alive), upon which all the accused persons caught hold the brother of the informant and accused Nar Singh h@ Baba with the intention to kill, inflicted knife injuries in the chest, neck and other parts of the body of Dinesh @ Babloo, due to the injuries sustained, Dinesh @ Babloo, the brother of informant died; that when Mukeel Ahmad and the informant tried to save Dinesh @ Babloo, then the accused persons also inflicted injuries on the body of Mukeel Ahmad by knife and other weapons; that the incident has been witnessed by Komal and several other persons. The said information was registered and tahrir is (Ex.Ka.1) chick FIR ( Ex.Ka.4) and a case at Crime No. 242 of 2007 under Sections 147, 148, 149, 307, 302, 504 IPC was registered against the accused-appellants. The injured-Mukeel was examined on 8.4.2007 at 9.45 PM in District Hospital, Mirzapur. The police prepared inquest report (Ex.Ka.6) and sent the dead body of deceased for post mortem along with necessary police papers and letters to CMO, Medical Officer, Mirzapur and R.I. Police Lines; that the Investigating Officer- Anjani Kumar Upadhyaya (P.W.6) visited the place of occurrence, prepared site plan, collected blood stained and plain earth, recovery memo was prepared and statements of witnesses were recorded; that after completion of investigation, the I.O. submitted charge sheet against the accused-appellants in Case Crime No. 242 of 2007 under Sections 147,148,149,307,302, 504 IPC. The case was committed to the Court of Sessions and Sessions Trial No. 169 of 2007 ( State Vs. Nar Singh @ Baba and others) commenced.
Further, prosecution case is that on 9.4.2007 at about 13.05 hours, the police recovered on the pointing of accused- Ganesh Nai one country made 12 bore pistol and two cartridges of 12 bore (Ex.Ka.18) and on his pointing the knife used in commission of offence by accused-Nar Singh @ Baba given to him after the occurrence was also recovered, site plans of both places and recovery memo (Ex.Ka. 19) was prepared and a case under Section 4/15 Arms Act at Case Crime No. 244/07 was registered against accused Ganesh Nai. After completion two separate charge sheets were submitted against this accused-appellant, upon which two separate Sessions Trial ( S.T.No. 170 of 2007 and S.T.No. 171 of 2007)-State Vs. Ganesh Nai commenced.
The prosecution in support of its case exhibited following documents;
Ex.Ka.1 written application Ex.Ka.2 Post mortem report Ex.Ka.3 Chick FIR Ex.Ka.4 G.D. Ex. Ka.5 injury report (Mukeel Ahmad) Ex.Ka.6 Inquest report Ex.Ka.7 letter to R.I. Ex. Ka.8 letter to CMS Ex. Ka.9 letter to CMO Ex.Ka. 10 carbon copy Chick FIR Ex.Ka. 11 carbon copy GD Ex. Ka. 12 letter to EMO Ex.Ka. 13 police papers Ex.Ka. 14 photo naash Ex. Ka. 15 Specimen seal Ex. Ka. 16 site plan Ex. Ka. 17 recovery memo of blood stained and plain earth Ex. Ka. 18 recovery memo of country made pistol and two cartridges Ex. Ka. 19 Recovery memo of knife(weapon of assault) Ex. Ka. 20 letter to R.I. Ex. Ka. 21 site plan regarding recovery of knife.
Ex. Ka. 22 charge sheet in Case Crime No. 242 of 2007 Ex. Ka. 23 Site plan of recovery in Case Crime No. 244/07 Ex. Ka. 24 Charge sheet u/s 4/25 Arms Act Ex. Ka. 24/1 Site plan in Case Crime No. 243/07 u/s 3/25 Arms Act.
Ex. Ka. 25 Charge sheet against accused Ganesh Nai u/s 3/25 Arms Act.
Ex. Ka. 26 Chick FIR in Case Crime No. 3/25 Arms Act in Case Crime No. 244/07 Ex. Ka. 27 Chick FIR case Crime No. 243/07, Ex. Ka. 28 G.D carbon copy and Ex. Ka. 29 Forensic Laboratory examination report.
Dr. Anup Kumar Srivastava (P.W.3) has conducted the post mortem examination on the body of deceased- Dinesh @ Babloo Panda and found the following injuries;
1- iqjkuk flyk gqvk ?kko 1-5 ls0 eh0 ck;ha rjQ ekFks ij ck;ha Hko ds 2 lseh0 Åij ekStwn FkkA ?kko ij lw[kh iiMh ekStwn FkhA 2- dVk gqvk ?kko 1-5 lseh0 x 1 lseh0 x 1 lseh0 cksu rd xgjk xnZu dh nkfguh vksj nk;sa dku ls 3 lseh0 uhps fLFkr FkkA 3- dVk gqvk ?kko 1 lseh0 x 0-5 lseh x ekalis'kh rd xgjk xnZu ds nkfgus vksj nkfgus Dysfody ds ihfM;y bUM ls 3 lseh0 Åij fLFkr FkkA 4- dVk gqvk ?kko 3 lseh0 x 1 lseh0 x dSfoVh Mhi cka;h vksj Nkrh ij ck;ha fuiy ls 9 lseh0 uhps o vUnj dh vksj fLFkr FkkA 5- dVk gqvk ?kko 3 lseh0 x 3 lseh0 gM~Mh rd xgjk cka;h rjQ Nkrh ij cka;h fufiy ls 12 lseh0 uhps fLFkr FkkA 6- dVk gqvk ?kko 3 lseh0 x 1 lseh0 x dSfoVh Mhi isV ds nkfgus vksj ukfHk ls 9 lseh0 Åij o ckgj dh vksj fLFkr FkkA 7- dVk gqvk ?kko 2 lseh0 x 1-5 lseh0 dSfoVh Mhi isV ds nkfgus vksj ukHkh ls 10 lseh0 Åij 10 O'clock dh fLFkfr es FkkA 8- dVk gqvk ?kko 2 lseh0 x 1 lseh0 x dSfoVh Mhi ukHkh ls 9 lseh0 nwjh ij nkfgus rjQ isV ij fLFkr FkkA 9- dVk gqvk ?kko 3 lseh0 x 1 lseh0 x dSfoVh Mhi isV ds nkfgus vksj ukfHk ls 7 lseh0 dh nwjh ij 9 O'clock dh ikasth'ku ij FkkA 10- dVk gqvk ?kko 3 lseh0 x 1-5 lseh0 x cksu Mhi Nkrh ds ck;ha vksj ck;ha fufiy ds 14 lseh0 uhps 5 O'clock dh iksth'ku esa FkkA 11- dVk gqvk ?kko 1 lseh0 x 1 lseh0 x ely Mhi] cka;h esUMscqy ds 1 lseh0 uhps fLFkr FkkA 12- dVk gqvk ?kko 3 lseh0 x 1-1@2 lseh0 x cksu Mhi nkfgus Hkqtk ds fiNys fgLls esa dksguh ls 3 lseh0 Åij fLFkr FkkA vUR; ijh{k.k es fuEu pksV ikbZ Fkh & 1- jkbV QsQMs dh f>Yyh ij ?kko dk I;wjy dSfoVh esa [kwu ekStwn FkkA 2- g`n; dh f>Yyh QVh gqbZ FkhA g`n; ds Åij 1 lseh0 x 1@2 lseh0 dk dVk gqvk g`n; ds Hkhrj dSfoVh rd xgjk ?kko FkkA 3- isV dh isjhVksfu;e f>Yyh QVh gqbZ Fkh o isjhVksfu;y dSfoVh esa [kwu ekStwn FkkA NksVh o cMh vkar QVh gqbZ FkhA isV es lseh Mk;tsLVsM QwM ekStwn FkkA e`R;q dk dkj.k e`R;q iwoZ vk;h pksVksa ls lnes o jDrJko ds dkj.k gqbZ FkhA e`rd fnus'k mQZ ccyw dh e`R;q vUR;ijh{k.k fd;s tkus ls yxHkx 3@4 fnu iwoZ gksuk laHkkfor gSA e`rd dh mez 28 Ok"kZ dh jgh gksxhA The injured-Mukeel was examined by Dr. S.K. Upadhyaya (P.W.5) and after medical examination, he found following injuries on the body of injured;
1- nkfguh rjQ lj ij 2 lseh0 x 1 lseh0 dk [kwu fj'rk gqvk fNyk gqvk fuyxw fu'kku 2- nkfgus vaxwBk ij yky jax dk 5 lseh0 x 4 lseh0 dk fuyxw fu'kkuA 3- nkfgus vxzckgq esa yky jax dk 4 lseh0 x 4 lseh0 dk fuyxw fu'kkuA 4- nkfgus gkFk esa ihNs dh rjQ 1 x 1 lseh0 dk fNyk gqvk fu'kkuA esjh jk; es PkksV 1]2 ,oa 3 tsjs fuxjkuh j[kk x;k vkSj x-ray dh lykg nh x;hA ua0 4 dh pksV lk/kkj.k izd`fr dh Fkh lHkh pksVsa l[r vkSj dqUnky; ls igqapk;k tkuk laHkkfor jgh gSA Duration dk fresh gksuk ik;kA After submission of charge sheets, learned Trial Judge framed charges on 8.1.2018 and 11.2.2008 respectively. The appellants denied the charges and claimed trial.
The prosecution in support of its case has examined as many as 9 witnesses. P.W. Kamlesh Kumar, P.W.2 injured Mokeel Ahmad, P.W.3 Dr. Anup Kumar Srivastava who conducted post mortem examination, P.W.4 Constable Santosh Mishra, P.W.5 Dr. S.K. Upadhyaya who medical examined injured Mokeel Ahmad, P.W.6 Anjani Kumar Upadhyaya, P.W.7 Vasudeo Pandey, P.W.8 S.I. Surendra Rai and P.W.9 Constable Heera Lal.
It will not be out of place to mention that during trial, accused- Laloo @ Mohan and Chandan died.
We have heard Sri K.M. Gupta and Sri Sunil Kumar, learned Counsel for the appellants, and Sri Raj Kamal, learned AGA for the State.
Learned Counsel for the accused-appellants that in the present case, FIR has been lodged within 50 minutes of the occurrence though the distance of the place of occurrence and police station is about two furlongs; that no motive is mentioned in the FIR; that the incident is a night incident without any source of light mentioned in the FIR; that there is no evidence as to how and in what manner the deceased was taken to the hospital from the place of occurrence; no public and independent witness is there; that the injured Mokeel Ahmad was not brought to the hospital by the police for medical examination as there is no chitthi mazroobi available; that the FIR speaks about causing injuries to the injured- Mokeel by knife, but the injury report does not indicate that any injury with sharp edged weapon was caused; the important witness namely Komal Chandra Yadav and scriber of the FIR has not been examined; that the deceased was having criminal incident; that the prosecution has improved its case during trial by bringing new facts; that place of occurrence is not established and it is doubtful; that there are material contradiction amongst the oral and documentary evidence and that the learned Trial Judge has not appreciated the evidence in its true perspective and thus, the impugned judgment and order is liable to be set aside.
On the contrary, learned AGA has opposed the arguments of learned Counsel for the appellants and supported the impugned judgment and order by submitting that the FIR in the present case has been lodged promptly; that the accused are named; that there is no reason for false implication of the accused and that the learned Trial Judge after considering all the aspects of the matter and keeping in mind the gravity of offence, has rightly convicted and sentenced the appellants.
In the FIR, it has been stated that on 8.4.2007 at about 9.30 in the night, the informant- Kamlesh Kumar Panda- brother of deceased) along with Dinesh @ Babloo and Mukeel Ahmad(P.W.1) were returning and when they reached near house in Badi Mata, Mohalla Dhundhi Katra ( Bhairoji ka Mandir), there the accused persons Nar Singh @ Baba, Durgesh, Mukesh, Lalloo @ Mohan, Chandan, Ganesh and Lalloo @ Mohan were sitting there from before, they started abusing his brother Dinesh @ Babloo and exhorted " ab kya dekhte ho sale to pakad lo, ab jinda jane na pave " ( what you are seeing, catch him and see that he did not escape alive). In the said FIR, it is further alleged that other accused caught hold his brother Dinesh @ Babloo, and the accused Nar Singh @ Baba inflicted injuries from knife in the stomach and neck, due to which Dinesh @ Babloo died. Thereafter, Mukeel Ahmad was also caused grievous injuries with knife and the informant(brother of deceased) ran away from the place of occurrence raising noise. The entire FIR speaks about one place of incident, whereas, subsequently when the witnesses were examined in the Court, P.W.1 Kamlesh Kumar narrated same fact that near Bhairo Baba Mandir, all the accused persons caught hold the deceased Dinesh @ Babloo, on exhortation, accused Lalloo and others, accused- Nar Singh @ Baba inflicted injuries with knife on the neck and stomach and did not caused any injury on any other part of the body; when the accused ran away, he took his brother to the District Hospital and in the way, he expired and the doctor declared his brother(deceased) dead. This is the statement of P.W.1 that Dinesh @ Babloo expired in the way to hospital, whereas, there is specific mention in the FIR itself that the decceased Dinesh @ Babloo died on the spot. This improvement in no way can be termed as minor contradiction, specially when there is no source of light mentioned in the FIR and there is no mention of conveyance/vehicle by which, the deceased Dinesh @ Babloowas brought to the hospital by P.W.1. P.W.1 has further deposed that his father Parmanand took away injured-Mukeel Ahmad to the hospital.
In the FIR, it has been stated that injured-Mukeel Ahmad was also beaten and was assaulted with knife, he received grievous injuries, whereas, in his examination-in-chief, he stated that when Mukeel Ahmad reached to rescue, the accused persons beaten him by iron rod and danda and this suggests that he did not see the incident. In his further examination, he stated that he showed place of occurrence to the Investigating Officer; that he saw the occurrence in the electric light, although in the FIR, no source of light finds place. Contrary to that P.W.2- Mukeel Ahmad in his examination-in-chief has stated that on 8.4.2007 at about 9.30 PM in the night, he along with Dinesh @ Babloo were returning from the side of Padri, near the well situated at Dhundha Katra- Bhairo Nath Mandir, then at the betel shop, accused-Chandan was sitting; apart from accused-Chandan, one Ganesh was also near him and Durgesh and Mukesh were in lane (gali), total 4-5-6 persons were there; that in the meantime, Chandan stgarted abusing Dinesh @ Babloo and dragged him in (gali) lane of Bhaironath, where 5-6 persons were present from before amongst themselves were, Durgesh, Mukesh and Ganesh; then all of them beaten Dinesh @ Babloo with rod and danda. In this reference, the post mortem report is very relevant, wherein, no abrasion or contusion had been found by the doctor on the body of deceased- Dinesh @ Babloo, hence this assertion/deposition of the P.W.2 that all accused started beating Dinesh @ Babloo with road and danda is altogether contradictory with the medical evidence. To us, it appears that altercation took place near betel shop and thereafter, Chandan dragged the deceased in the lane(gali). It shows that place of occurrence has been tried to be shifted from road to lane (gali). In the cross examination, he stated that when the event took place, although Kamlesh was there, but he went to purchase curd, but where he went to purchase curd, he could not disclose the name, but shop of milk and curd is near Dwarika Palance which at 100 steps away from well situated near betel shop. He further stated that he along with Dinesh @ Babloo entered in lane (gali) first i.e. about 100-150 steps near the temple; while covering this distance, the accused were assaulting Dinesh @ Babloo and P.W.2 also This also shows that during entire commission of offence, P.W.1 was not present on the place of occurrence. The use of knife in the assault, is stated in the FIR, in the statement of P.W.2 in that reference as discussed above and non explanation of any source of light clearly establishes the fact that at the time of commission of offence, P.W.1 did not receive any injury and who alleges himself to be the eye witness was not present and thus, this witness is not a reliable and trustworthy.
P.W.2 has also stated that he tried to rescue the deceased Dinesh @ Babloo, the accused Chandan, Ganesh and Mukesh assaulted him by danda and rod. He received injuries on head and he became unconscious on the spot and therefore, testimony of such a witness who became unconscious cannot be safely relied upon. The injuries on the body of P.W.2 also creates serious doubt, as stated by P.W.2 himself to be an injured eye witness, but in the medical examination, he has received 4 injuries and one injury on the right side of head, one on right thumb and forearm and one on back of right hand found; meaning thereby that the injuries were caused from one angel, though he has accepted that he was beaten by 3 persons namely accused Chandan, Ganesh and Mukesh by road and danda, and this contradiction creates substantial doubt about the participation of all accused in the commission of offence.
It is vehemently argued by learned Counsel for the appellants that there was no source of light on the place of occurrence as per F.I.|R. Version. Subsequently, in the statement of P.W.1, source of light has been for the first time introduced that they have seen the occurrence in the electric rod light. It is very relevant to note that there is no electric pole etc. reflecting source of light, nor mentioned in the site plan ( Ex.Ka.24). The event is of the year 2007 and that days, in the villages, mobile etc. were not popularly kept by the villagers and it cannot be presumed that from the light of that was seen. Moreover, it is not be prosecution case that any other source like torch was there in the hand of any one.
The other major contradiction creating serious doubt is that injury no.1 and 2 of Mukeel Ahmed (P.W.2) were kept under observation, but neither there is any supplementary report nor x-ray report available on record so as to ascertain nature of injury.
Komal Yadav said to have been present at the place of occurrence, as mentioned in the FIR, has not been put to witness box by the prosecution.
Remaining prosecution witnesses are the formal witnesses as has been discussed above and need not to be discussed in detail, for the purpose of the case in hand.
The Apex Court in Ankur Maruti Shinde & others Vs. State of Maharashtra ( Criminal Appeal No. 881-882 of 2019) decided on 5.3.2019 has observed that nothing is allowed by the law which is contrary to the truth. In the Indian criminal jurisprudence, the accused is placed in a somewhat advantageous position than under different laws of some of the countries in the world. Our criminal justice administration system places human rights and dignity for human rights at a much higher pedestal and the accused is presumed to be innocent till proven guilty. The alleged accused is entitled to a fair and true investigation and fair trial and the prosecution is expected to play a balanced role in the trial of a crime. These are the fundamental canons of out criminal jurisdiction and they are quire in conformity with the Constitutional mandate contained in Articles 20 and 21 of the Constitution of India. It has also been observed that it is no doubt open to the prosecutor not to examine all the eye witnesses, who in his opinion, have not witnessed the incident, but, normally, he ought to have examined witnesses, in support of his case. It may be that if a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness box and if it is shown that person who had actually witnessed the incident has been deliberately kept back, the Court may draw an inference against the accused and may, in a proper case, record the failure of the prosecution to examine the said witnesses as constituting serious infirmity in the proof of the prosecution case.
In the case in hand, the incident took place in the night, but the source of light is mentioned in the FIR, subsequently in the deposition that has been tried to be introduced, but there is no mention of electric pole etc. in the site plan prepared by the Investigating Officer, there is no independent witness, there is no chitthi mazroobi or supplementary medical report or x-ray etc. of injured- P.W.(2) available on record, from the close scrutiny of deposition of P.W.1 and P.W.2, serious doubt arose about their presence at the place of incident during commission of offence, normal witnesses namely Komal Chandra Yadav have not been put to witness box, place of occurrence is doubtful, manner of occurrence is doubtful besides material contradictions amongst oral and documentary evidence and thus, we can safely say that the prosecution has not been able to establish the guilt of the appellants beyond reasonable doubt.
From discussion made above, considering entire deposition of P.W.1 and P.W.2, we are of the opinion that P.W.1 & 2 who claims to be an eye witness is not a reliable and trustworthy witness. Their entire testimonies in the Court is full of material omission/ contradiction/ improvement and therefore, it is unsafe to rely upon the deposition of P.W.1 and P.W.2 to convict the accused appellants.
Accordingly, these appeals are allowed. The conviction and sentences awarded to the appellants by impugned judgment and order passed in S.T. No. 169 of 2011 ( State Vs. Nar Singh @ Baba and others) S.T. No. 170/07 (State Vs. Ganesh Nai), and S.T. No. 171/07 ( State Vs. Ganesh Nai) dated 30.11.2011 is set aside. The appellants be set at liberty forthwith.
The appellants Mukesh, Durgesh and Ganesh are on bail. Their bail bonds and sureties are discharged. They need not to surrender. However, the appellants are directed to make compliance of the provisions of Section 437-A, Cr.P.C. in the concerned Court.
The appellant-Nar Singh @ Baba is in jail. He is directed to make compliance of the provisions of Section 437-A, Cr.P.C. in the concerned Court.
Registry is directed to transmit the Trial Court's record for compliance of the judgment, in accordance with law. Compliance report be submitted within a month.
( Umesh Kumar J) (Harsh Kumar, J)
Order Date:05.03.2020
Shahid