Allahabad High Court
Rajeshwar vs State Of U.P. on 14 May, 2018
Bench: Bala Krishna Narayana, Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 4 Case :- CRIMINAL APPEAL No. - 2225 of 2013 Appellant :- Rajeshwar and another Respondent :- State Of U.P. Counsel for Appellant :- Govind Saran Hajela,Bharat Singh Counsel for Respondent :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Hon'ble Rajiv Gupta,J.
(By the Court)
1. Heard Sri H.C. Tiwari Advocate assisted by Sri Bharat Singh, learned counsel for the appellants and Sri J.K. Upadhyay, learned AGA for the State.
2. This appeal is directed against the judgment and order dated 24.4.2013 passed by Additional Session Judge, Court No. 5, Shahjahanpur in S.T No. 355/2008 (State Vs. Rajeshwar and another) by which the appellant no. 1, Rajeshwar (A1) has been convicted and sentenced to imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine, six months additional rigorous imprisonment under Section 302 IPC while appellant no. 2, Lala Ram has been convicted and sentenced to six months imprisonment under Section 30 of the Arms Act.
3. Briefly stated the facts of this case are that P. W. 1 (informant) Madan Pal Singh gave a written report Ext. Ka1 at P. S. Madnapur, District Shahjahanpur on 25.11.2006 at about 2 P.M. alleging therein that on the same day at about 2 P.M. a quarrel had taken place between his elder brother, Ram Kripal Yadav who is blind and the accused-appellants, (A1) Rajeshwar and (A2) Lala Ram when they had come to the house of Ram Kripal Yadav and demanded their share in his land which was under the cultivation of the informant and his son for the last more than 10-12 years. Upon hearing the noise, informant's son, Rakesh (deceased) went to the house of Rajeshwar and inquired from them why he was quarreling with his uncle on which (A1) Rajeshwar and his father A2 (Lala Ram) started fighting with Rakesh which attracted the informant, his son Ram Kishan and his daughter Sita Devi to the place where the altercation was taking place and tried to pacify (A1) Rajeshwar and his father (A2) Lal Ram. In the meantime, (A1) Rajeshwar brought his father's licensed gun and on reaching in front of the main door of the informant's house, he fired twice at his son Rakesh inflicting gun shot injuries on his neck and face. In the incident, Km. Sita Devi who was standing nearby had also received firearm injuries on her cheek and ear. He took his son Ram Kishan to the hospital but Rakesh died on the way. Thereafter, he went to the police station along with the dead body of the deceased-Rakesh for lodging the FIR of the incident.
4. On the basis of the written report Ext. Ka1, case was registered at Crime No. 317 of 2006, under Sections 302, 307, 504, 506 and Section 30 of the Arms Act against both the accused-appellants. The investigation of the case was entrusted to P. W. 4 S. I. Jai Singh who held the inquest on the dead body of the deceased within the premises of the police station at about 3:45 P.M. and after preparing the inquest report Ext. Ka 3 and other related documents namely challan lash Ext. Ka4 photo nash Ext. Ka5, specimen seal Ext. Ka6, letter addressed to C.M.O. Ext. Ka7, he got the dead body sealed and dispatched to the mortuary through Constables Gajraj Singh and Jagat Singh for conducting the postmortem. He also collected bloodstained earth and two empty cartridges of 12 bore from the place of occurrence and prepared the recovery memos of the aforesaid articles Ext. Ka9 and Ext. Ka12. The postmortem on the dead body of Rakesh was conducted by P. W. 3 Dr. Himanshu Shekhar on 26.11.2006 who prepared his postmortem report as Ext. Ka2. He noted following ante-mortem injuries on the dead body of Rakesh :
Multiple firearm wound of entry over forehead in area of 13 cm x 10 cm of varying sizes, 0.5 cm x 0.5 cm, smallest 0.4 cm x 0.3 cm x bone to muscle deep.
Multiple firearm wound of entry over left side of face in area of 8.0 cm x 4.0 cm of varying sizes 0.5 cm x 0.4 cm to 0.3 cm x 0.2 cm x bone to muscle deep.
Firearm wound of entry 0.5 cm x 0.5 cm over upper eyelid of left eye x cavity deep.
Multiple firearm wound of entry in the area of 3.0 cm x 4.0 cm over front of neck of varying sizes 0.5 cm x 0.3 cm to 0.3 cm x 0.2 cm x muscle deep.
Firearm wound of entry 0.6 cm x 0.5 cm x muscle deep over top of right shoulder.
Firearm wound of entry 0.7 cm x 0.5 cm x muscle deep over top of the left shoulder.
According to P. W. 3 Dr. Himanshu Shekhar, the cause of death was coma due to ante mortem firearm head injuries. The estimated time of death was about one day. He also examined the injuries of P. W. 2 Sita Devi on the next day i.e. 26.11.2006 at about 11:45 A.M. and prepared her injury report Ext. Ka3. He noted following injuries on the person of Sita Devi :
Lacerated wound 1.0 cm x 0.5 cm over lateral aspect of the left side of face over the malar prominence whole of eye skin is blackened around the wound. Adv- x ray.
Multiple laceration over left pinna biggest being 1.0 cm x 0.2 cm. Smallest being 0.5 cm x 0.1 cm.
5. The prosecution also claims that the the double barrel gun used in the commission of the murder of Rakesh was also seized on 15.1.2007 from the M/s Tiwari Gun House and it's recovery memo Ext. Ka12 was prepared. The Investigating Officer sent the double barrel gun belonging to (A2) Lala Ram and two empty cartridges recovered from the place of occurrence to the ballistic expert. After completing the investigation, the I.O. submitted charge sheet against both the accused-appellants before C.J.M. Shahjahanpur. Since the offences mentioned in the charge sheet were triable exclusively by the Court of Sessions. C.J.M. Shahjahanpur committed the case for trial of the accused to the Court of Sessions Judge, Shahjahanpur where it was registered as S.T No. 355 of 2008 and made over for trial from there to the Court of Additional Sessions Judge, Court No. 5, Shahjahanpur who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused-appellants, framed charge against Rajeshwar (A1) under Section 302, 307 and 506 IPC whereas charge under Section 302 read with Section 34 IPC and Section 30 of Arms Act was framed against Lala Ram (A2). The accused-appellants pleaded not guilty and claimed trial.
6. The prosecution in order to prove it's case against the accused-appellants examined as many as four witnesses of whom P. W. 1 (informant) Madan Pal Singh, father of the deceased and P. W. 2 Sita Devi, sister of the deceased were examined as witnesses of fact while P. W. 3 Dr. Himanshu Shekhar who had conducted postmortem on the dead body of Rakesh and P. W. 4 S. I. Jai Singh who had investigated the matter and submitted charge-sheet were produced as formal witnesses during the trial.
7. The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as false. The accused-appellants also filed their written statements before the trial court in which they stated that on the date of the incident, they had gone to the house of informant Madan Pal Singh and Ram Kripal Yadav and demanded their share in their ancestral property on which an altercation had taken place between them and a dispute ensued between the parties during which the door of the house of P. W. 1 Madan Pal Singh was broken. In the afternooon Rakesh came to their house and started abusing them on which Amar Singh and Achal Pandit, residents of the same village as the appellants, also reached their house on which Rakesh fired at them with the intention of causing their death and thereafter there was a stampede and someone from the crowd fired a shot which hit Rakesh who died as a result of the injuries so received by him. The defence also examined Piyush Tiwari and Guddi as D. W. 1 and D. W. 2.
8. Learned Additional Sessions Judge, Court No. 5, Shahjahanpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted (A1) Rajeshwar under Section 302 IPC and sentenced him to life imprisonment while (A2) Lala Ram was acquitted of all the charge framed against him under Section 302/34 I.P.C. but he was convicted under Section 30 of the Arms Act and awarded six months imprisonment. Both the accused-appellants were acquitted of the charge framed against them under Sections 307/34 and 506 IPC.
9. Hence this appeal.
10. Sri H.C. Tiwari, learned counsel for the appellants has submitted that the FIR in this case is ante-timed. He next submitted that the trial court committed a patent error of law in convicting the appellants on the basis of the testimony of P. W. 1 Madan Pal Singh, father of the deceased and P. W. 2 Sita Devi, sister of the deceased whose evidence does not inspire any confidence and who had a very strong motive to falsely implicate the appellants for the murder of Rakesh. He next submitted that from the facts deposed by P. W. 1 Madan Pal Singh in his cross-examination, it is fully established that not only the FIR in this case is ante-timed but also the other documents prepared after the occurrence including the inquest report are ante-timed. Moreover, no reliance can be placed on the testimony of P. W. 2, Sita Devi who according to the prosecution had also received injuries in the incident and hence her presence at the time and place of occurrence cannot be doubted even for a moment, for the simple reason that her injuries were examined not only after an inordinate delay of almost 18 hours but also for the reason that the same were found by P. W. 3 Dr. Himanshu Shekhar to have been received by her after one day of incident and hence her presence at the place of occurrence becomes wholly doubtful. He next submitted that the medical evidence on record does not corroborate the prosecution version qua the manner of attack as according to P. W. 1 Madan Pal Singh, (A1) Rajeshwar had shot Rakesh twice but according to the evidence of P. W. 3 Dr. Himanshu Shekhar, six firearm wounds of entry were found on the dead body of the deceased which could have been caused by dispersal of a single shot. The prosecution has miserably failed to prove that the double barrel gun belonging to (A2) Lala Ram was used in the commission of the crime by leading any cogent evidence, as report of the forensic expert qua the double barrel gun and two empty cartridges seized from the place of occurrence was never proved. He lastly submitted that neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set aside.
11. Per contra Sri J.K. Upadhyay, learned A.G.A. has made his submissions in support of the impugned judgment and order and submitted that it is fully proved from the evidence of P. W. 1 Madan Pal Singh that the incident had taken place at the time, place and in the manner described in the FIR. He further submitted that the FIR in this case is not ante-timed and P. W. 1 Madan Pal Singh having fully supported the prosecution case as spelt out in the FIR in his examination-in-chief, the facts deposed by him in his cross examination which give a faint suggestion that FIR and the inquest were prepared on the next day are liable to be ignored. Moreover, his evidence stands fully corroborated from the testimony of P. W. 2 Sita Devi. The finding of conviction recorded by the trial Judge is based upon cogent evidence and merits no interference by this Court.
12. We have heard the learned counsel for the parties and perused the entire record.
13. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove it's case against the accused-appellants beyond all reasonable doubts or not.
14. From the perusal of the record, it transpires that the prosecution alleged that the incident had taken place at about 2 P.M. on 25.11.2006 in front of the house of the deceased. The written report of the incident was scribed by Raj Kumar on the dictation of P. W. 1 Madan Pal Singh and registered at P. S. Madnapur on the same day at 15:40 hours. The prosecution further alleged that the inquest on the dead body of the deceased Rakesh commenced at 15:45 hours and was completed at 17:30 hours and thereafter, the dead body of the deceased Rakesh was sealed and dispatched to the mortuary through Constables Gajraj Singh and Jagat Singh for conducting the postmortem.
15. Record further shows that the prosecution in order to prove it's case had examined P. W. 1 (informant) Madan Pal Singh, father of the deceased and P. W. 2 Sita Devi, sister of the deceased as eye-witnesses of the occurrence. The prosecution also claims that P. W. 2 Sita Devi had also received injuries in the incident and as such her presence at the time and place of occurrence cannot be doubted.
16. However, it is noteworthy that the learned Trial Judge had found that the injuries found on the person of Sita Devi were not received by her on the date of incident. P. W. 3 Dr. Himanshu Shekhar who had examined her injuries and proved her injury report as Ext. Ka3 had also stated in his cross-examination that the injuries found on the person of Sita Devi could not have been received by her on the date of occurrence and had been received by her on the day on which her injuries were examined.
17. For the aforesaid reasons, we are of the considered view that P. W. 2 Sita Devi is not a reliable witness and her testimony is liable to be discarded while examining the complicity of the appellants in the commission of the alleged offence.
18. Now we are left only with the evidence of P. W. 1 Madan Pal Singh. Although Madan Pal Singh in his examination-in-chief has substantially supported the prosecution case as spelt out in the FIR but from the perusal of the facts deposed by him in his cross-examination on page 25 of the paper book, it transpires that not only the inquest on the dead body of Rakesh was conducted in the morning of 26.11.2006 but also the FIR of the incident which the prosecution claims to have been lodged on 25.11.2006 at about 13:45 hours was signed by the informant on 26.11.2006.
19. Thus, in view of the foregoing discussion, it follows that not only the FIR in this case is ante-timed but also the documents including the inquest report, photo lash and letter addressed to CMO were not prepared on the date and time as alleged by the prosecution. It is noteworthy that the prosecution did not bother to recall P. W. 1 Madan Pal Singh for seeking clarification with regard to the facts deposed by him on page 25 of the paper book in his cross-examination. The reliability of the FIR itself also stands totally shattered in view of his aforesaid testimony. The possibility of the prosecution case as spelt out in the FIR being concocted after due deliberations and consultations with the police with the object of falsely implicating the appellants after the incident so that they may be deprived of of their right of claiming any share in the property of Ram Kripal yadav, the elder brother of P. W. 1 Madan Pal Singh and uncle of (A1) Rajeshwar measuring about 50 bigha which was admittedly being cultivated by the informant and his son for the last more than 10-12 years preceding the date of incident cannot be ruled out.
20. The medical evidence on record also does not corroborate the prosecution version qua the manner of attack. The prosecution case as spelt out in the FIR and later deposed by the two prosecution witnesses is that (A1) Rajeshwar had shot at the deceased twice. Although the postmortem report of the deceased indicates as many as six firearm wounds of entry. P. W. 3 Dr. Himanshu Shekhar who had conducted the postmortem on the dead body of the deceased and proved his postmortem report Ext. Ka2 has in his cross-examination on page 35 of the paper book deposed as here under :
^^ e`rd dh lHkh pksVsa 8&10 fQV nwj ls vkuk lEHko gSA e`rd dh lHkh pksVs ,d Qk;j ls vkuk lEHko gSA ^^
21. Thus in view of the foregoing discussion, we find that the prosecution has not been able to bring home the charge framed against the appellants beyond all reasonable doubts. Hence, neither the recorded conviction of the appellant no. 1, Rajeshwar nor the sentence of life imprisonment awarded to him can be sustained and are liable to be set aside. As far as appellant no. 2, Lala Ram is concerned, his conviction under Section 30 of the Arms Act is also not warranted by any legally admissible evidence on record and also in view of the fact that the prosecution has failed to prove that his licensed gun was used in the commission of the crime. The appeal accordingly succeeds and is allowed. The appellants are acquitted of all the charges framed against them. The impugned judgement and order dated 24.4.2013 passed by Additional Session Judge, Court No. 5, Shahjahanpur in S.T No. 355/2008 (State Vs. Rajeshwar and another) are hereby set aside. The appellant no. 1, Rajeshwar is in jail. He shall be released forthwith unless he is wanted in any other case while appellant no. 2, Lal Ram is on bail. He need not surrender. His bail bonds are cancelled and his sureties discharged. Both the appellants shall comply with the mandatory provisions of Section 437-A of the Cr.P.C.
Order Date:- 14.5.2018 SA