Allahabad High Court
Tej Pal Singh Alias Teja vs State Of U.P. on 8 August, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 Case :- CRIMINAL APPEAL No. - 7567 of 2017 Appellant :- Tej Pal Singh Alias Teja Respondent :- State of U.P. Counsel for Appellant :- Sarvesh, Hemendra Pratap Singh, Noor Mohammad, S.K. Verma Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Delivered by Dr. K.J. Thaker, J.)
1. Heard Shri Hemendra Pratap Singh, learned counsel for the appellant and Shri Patanjali Mishra, learned counsel for the State. Perused the record.
2. This appeal challenges the judgment and order dated 22.11.2017 passed by Additional District and Sessions Judge, Court No.2, Aligarh in Sessions Trial No.958 of 2013 (State vs. Tej Pal Singh Alias Teja) convicting and sentencing the accused-appellant for the offence under Section 302 Indian Penal Code (in short IPC) for life imprisonment and also fine of Rs.20,000/- and in case of default of payment of fine, further to undergo rigorous imprisonment for a period of two years additional imprisonment.
3. The first Information report was lodged by Badan Singh son of Leeladhar on 16.07.2013 is to this effect that on 15.07.2013, in his village Mirzapur, Barat of the daughter of Raju was coming with D.J. His brother, namely, Rajendra Singh and Digambar Singh had gone to welcome the Barat. When the Barat came near the house of Subhash Chandra, one Tej Pal Singh Alias Teja of his village, fired at his brother Rajendra Singh with country-made pistol by putting the same on the right side of his stomach, due to which, Rajendra Singh received serious injuries and fell down. His brother Digambar Singh was also present on the spot along with other villagers. Rajendra Singh was brought to the police station, from where he was taken to the District Hospital where he was declared dead.
4. The information culminated into FIR and investigation was put to motion. The statements of witnesses were recorded by investigating officer and after completing the investigation, the police filed the charge sheet which culminated into case being committed to the court of session as it was sessions triable case.
5. The accused on being summoned appeared before the learned Sessions Judge. The learned Judge framed the charge on 07.02.2014. The accused pleaded not guilty and wanted to be tried.
6. The prosecution examined 7 witnesses who are as follows:
1Badan Singh PW1 2 Digambar Singh PW2 3 H.C.P. Jai Veer Singh PW3 4 Inspector I/c Anil Kumar Sharma PW4 5 Inspector I/c Sansar Singh Rathi PW5 6 S.I. Dhaniram PW6 7 Dr. Manoj Kumar Srivastava PW7
7. In support of ocular version following documents were filed:
1First Information Report Ex.Ka.2 2 Written Report Ex.Ka.1 3 Recovery Memo of Poniya, Empty Cartridges Ex. Ka. 6 4 Post mortem report Ex. Ka. 13 5 Panchayatnama Ex.Ka.8 6 Charge-sheet Mool Ex.Ka.8 7 Site Plan with Index Ex. Ka.5 & 7
8. On the witnesses being examined and the prosecution having concluded its evidence, the accused were put to questions under Section 313 Cr.P.C. Three witnesses were examined by the accused in defence.
9. While going through the judgment of the court below, it is required to be mentioned that the court below has considered the fact that two brothers of the deceased have been examined and they are natural eye-witnesses as they were there in the marriage function and they stood the cross-examination and on that basis, learned trial court has convicted the accused under Section 302 IPC but acquitted the accused for commission of offence under Section 25 of the Arms Act.
10. In his eight pages of the judgment, the learned judge has considered the fact that quality of witnesses and their testimony is more important rather than the quantity for which he has relied on the judgment in the case of Ramesh Manjrekar Vs. State of Maharashtra (1997 CLJ 7965 SC) and has considered the fact that P.W.-1 and 2 are the natural witnesses as they are brothers of the deceased and were in the procession. While considering the testimony of P.W.-1 and 2, namely, Badan Singh and Digambar Singh and on that evidence, the conviction is based. P.W.-1 and 2 had seen the accused-appellant, namely, Tejpal with a single barrel country-made pistol. Further, P.W.-2 has also been discussed by the learned trial court.
11. Learned counsel for the appellant has submitted that the tamancha with which the incident had occurred was recovered at his instance and there was an empty cartridge also in the barrel of the same country-made pistol (tamancha). It is no doubt proved by P.W.-7 Dr. Manoj Kumar Srivastava that there was blackening and it was because of metallic part. There were 12 small pellets found and according to him, firing was from the close range and was in the stomach and the injuries could be possible with 12 bore country-made pistol known as tamancha.
12. On scrutiny of the evidence, the following aspects will arise:-
(i) That it was a marriage procession which was going on. Even from the FIR, it is mentioned that the FIR was lodged first and thereafter, the brother took the injured to the hospital. The submission of learned counsel for the appellant is that the FIR was ante-time, hence cannot be accepted.
(ii) That the deceased was shot in the marriage ceremony of the appellant's niece and the appellant was not there because he was busy in preparation of welcoming the barat along with Raju. This has been made clear by DW-2 Bhura as he has stated that Tej Pal and Rajendra were with him. The witness DW-3 Sanjay Singh had stated that Tej Pal was preparing for welcoming the barat.
(iii) That Raju's daughter was to be married on the said date and all his six brothers were present there.
(iv) Had the incident occurred by tamancha of the accused, he could have been arrested from the spot as he was also in the marriage procession.
13. The defence version brings out certain facts namely that the post-mortem report shows that the accused could not have fired and injured the deceased. The finding of fact by the court below is only on the basis of oral testimony of P.W.-1 and 2, who are the real brothers of the deceased. Even in the evidence of P.W.-2, it is mentioned that several fires were being made in the air during the marriage procession. The testimony of P.W.-2 shows firing of two or three rounds, the person has to load the country-made pistol again. In his oral testimony, accepted the fact that the country-made pistol from which the fire was made, could load only one cartridge. The statement of P.W.-2 is quoted below:-
"...tks cjkr es cUnwdsa py jgh Fkh og ckjg cksj ds Fks rFkk 315 cksj ds Hkh FksA esjs HkkbZ ds ikl ykblsUlh cUnwd gSa] tks ckjg cksj dh gSaA ftl reUps ls xksyh ekjh Fkh og Hkh ckjg cksj dk FkkA vfHk;qDr reUpk lfgr Hkkx x;k FkkA reUps esa ,d ckj esa ,d gh dkjrwl pyrk gS vyx bl vlygs dks nqckjk pyk;k tk;s rks LislfQd :i ls fdruk Vkbe yxsxk eS ugh tkurkA eS bl lUnHkZ esa dqN ugh tkurkA ysfdu ;g ckr lgh gS nqckjk vlygk rHkh pysxk tc nqckjk yksM gks tk;sxk] nqckjk yksM djus esa fdruk le; yxsxk eS ugh crk ldrkA..."
14. The evidence of P.W.-2 itself goes to show that had the appellant tried to load the gun for the second time, it would have taken time. That itself belied the theory that it was the accused and the accused alone who had committed the said offence. The evidence of no other witnesses who were there in the procession nor their statements were recorded by the police authorities.
15. The factual scenario as it goes, will not permit us to concur with the judgment of learned trial court. The brothers of the deceased did not even catch hold the accused who are also in the procession. There is a delay in the FIR. No independent witness who was present in the marriage procession, has been examined.
16. One more glaring aspect is that from the evidence itself, it is borne out that firing if any was more than once, he had to reload the gun during which he could have been caught. All these raise suspicion. There is no motive alleged in the entire evidence to commit the offence. There was no prior enmity for invoking the provisions of Section 300 IPC, namely, murder or culpable homicide amounting to murder. Even if we go by the theory propounded by the witnesses, it is nowhere shown that there was any intention of the accused to commit the crime. Bodily injuries caused cannot be attributed to the accused.
17. For invoking the provisions of Section 300 or 299 IPC, the witnesses should have deposed and it should point out the accused and the accused alone. No barrel gun was recovered from the possession of the accused. There is no even premeditation. The nature of injuries also is such that it cannot be believed that it would be due to the close range firing by the accused and the accused alone. The eye-witnesses are unworthy of credit in view of the serious inconsistencies in their evidence as explained in the judgment of the Apex Court in case of Ram Gopal Yadav Vs. State of Chhattisgarh [(2020) 19 SCC 570].
18. This would fall within the purview of death at the marriage procession. Evidence produced by the prosecution is so thin that it would not permit us to concur with learned trial judge who has not given any reason as to why he is of the firm belief that it was the accused and the accused alone who had committed the crime. The evidence is so thin and there are major lacuna in reasoning of the trial court which warrants interference by this Court. Even if, the prosecution version of P.W.-1 and 2 is believed as far as the version of P.W.-3, 4 and 5 are concerned, there are serious inconsistencies. Even if, the occurrence of the incident is accepted, the evidence with which were left with, would show that there would have been two persons would have committed the crime. Thus, we are of the considered view that the reliability of the witnesses and the material contradictions will not permit us to accept the judgment of the court below. We are supported by the view as expressed in the judgment of the Apex Court in the case of State of Maharashtra Vs. Bhimrao [AIR 2018 (SC) suppl. 1632].
19. The conduct and testimony as alleged of eye-witnesses do not inspire confidence. Even in the absence of medical evidence, it could not be said that the accused was the sole person. The conduct of the deceased's brothers in not making even slightest attempt to save the deceased, is also a mitigating factor against the brothers who have deposed. Section 8 of the Indian Evidence Act and the fact that the accused has been acquitted under the Arms Act, will also fortify our view.
20. In view of the aforesaid observations, the appeal is allowed and the impugned judgement and order dated 22.11.2017 is set aside. The accused-appellant who is in jail, be released forthwith, if not required in any other offence.
21. Record and proceedings be sent back to the court below concerned.
(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)
Order Date :- 8.8.2022
Vivek Kr.