Allahabad High Court
Om Veer Singh And Others vs State on 31 August, 2022
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 89 Case :- CRIMINAL APPEAL No. - 846 of 1987 Appellant :- Om Veer Singh And Others Respondent :- State Counsel for Appellant :- S. Goswami,Rajeev Goswami Counsel for Respondent :- A.G.A. Hon'ble Krishan Pahal,J.
1. Heard Sri Rajeev Goswami, learned counsel for the appellants, Sri V.K. Singh Parmar, learned A.G.A. for the State and perused the material available on record.
2. The appeal regarding appellant no.3- Onkar Singh and appellant no.4- Khachchey Singh has been dismissed as abated by this Court vide order dated 22.07.2013. The appeal is surviving with respect to appellant no.1- Omvir and appellant no.2- Jagdish Singh.
3. This criminal appeal under Section 374 Cr.P.C. has been filed by the appellants against the judgment and order dated 24.03.1987 passed by Ist Additional Sessions Judge, Mathura, in Sessions Trial No.191 of 1985 (State vs. Khachche Singh and others) and Sessions Trial No.47 of 1985 (State vs. Onkar and others) convicting the appellants to undergo three years rigorous imprisonment under Section 307/34 I.P.C.
PROSECUTION STORY
4. As per prosecution story, the first informant Mohan Singh s/o Ramchandra Jat is stated to have lodged an F.I.R. at P.S. Sadabad, District Mathura on 22.11.1984 at 8:15 pm stating that accused persons, namely, Omvir s/o Onkar, Jagdish s/o Onkar along with Khachchey Singh s/o Joti Ram, Onkar Singh s/o Joti Ram and Phal Singh s/o Vipti Singh are stated to have tried to illegally take water from a Government Minor of a canal on the date of incident. After being intervened by the informant, they are stated to have left the said place at about 4:00 pm on 22.11.1984. Due to the said altercation, the same day at about 5:00 pm, the aforesaid named assailants, including the appellants, are stated to have come to the house of the informant, amongst whom the accused person Onkar Singh and appellant Jagdish were carrying lathis and the co-accused person Khachche Singh was carrying his licensee gun and the other co-accused persons, including the appellant Omvir, were carrying CMPs. On the exhortation of Onkar Singh and appellant Jagdish, Khachche Singh, Omvir and Phal Singh are stated to have fired at the family members of the informant injuring four persons in all, namely, Mohan Singh, Girraj, Babu and Smt. Prem Wati. The injured persons were examined at District Hospital, Mathura.
5. The investigation was taken up by S.I. Hukum Singh, who after recording the statements of independent witnesses, injured witnesses, taking the injury reports on record, preparing the site plan and other documents pertaining to recovery of empty cartridge etc., filed a charge-sheet against Khachche Singh, Omvir Singh and Phal Singh on 27.01.1985 and against accused Onkar and Jagdish on 31.01.1985 under Sections 399 and 402 IPC. Both the sessions trial were committed to the Court of Sessions Judge as S.T. No.191/1985 and S.T. No.47/1986 and were tried together.
TRIAL
6. The Trial Judge vide order dated 04.03.1986, from perusal of the record, took cognizance under Sections 148 and 307/149 IPC against accused persons, namely, Khachche Singh, Omvir and Phal Singh, and under Sections 147 and 307/149 IPC against other two accused persons, namely, Onkar Singh and Jagdish. After hearing the public prosecutor and the parties, the charge was framed on the same day against the accused persons, including the appellants, under the said sections referred above.
7. The prosecution in order to prove its case had produced five witnesses, namely, PW-1 Mohan Singh, PW-2 Raghu Nath Singh, PW-3 Girraj, PW-4 S.I. Hukum Singh and PW-5 Dr. M.K. Gupta, proving documents Ex.Ka.1 to Ex.Ka.12 thereon.
8. PW-1 Mohan Singh is the informant, who in his statement recorded in the court has categorically supported the prosecution story and narrated it on the lines of the F.I.R. He has proved the written report as Ex.Ka.1. He was cross-examined at length by the counsel for the appellants.
9. PW-2 Raghu Nath Singh is the real brother of the informant and has given ocular evidence of the offence.
10. Both these witnesses have stated that the appellant Jagdish and accused Onkar were branding lathis and rest were carrying firearms as narrated in the F.I.R.
11. PW-3 Girraj is the injured who had sustained multiple firearm injuries on his left thigh. He has also supported the prosecution story and narrated the prosecution version as per the F.I.R.
12. PW-4 S.I. Hukum Singh was the Investigating Officer and has proved the F.I.R. Ex.Ka.2, the copy of institution of the case in the general diary as Ex.Ka.3 which was written by H.M. Iblaq.
13. Ex.Ka.4 and Ex.Ka.5 are the recovery memo and Ex.Ka.6 is the site plan. He has proved the charge-sheets as Ex.Ka.7 and Ex.Ka.12.
14. PW-5 Dr. M.K. Gupta was the Medical Officer at District Hospital, Mathura, who had examined the injury of the injured persons.
15. The injuries sustained by the injured Balbir are as follows:
(i) Multiple firearm wounds in an area of 45 cm x 30 cm x depth and abdomen. Margins inserted. No charring, no tattooing, no blackening present. Kept under observation and advised x-ray. Size varying from 0.25 cm x 0.25 cm to 0.2 cm x 0.2 cm.
(ii) Multiple firearm wounds in an area of 21 cm x 20 cm on the left buttock. Margins inserted. Charring, blackening, tattooing absent. Shots not palpable. Adv. X-ray. Size varying from 0.2 cm x 0.2 cm.
(iii) Multiple firearm wounds in an area of 45 cm x 10 cm on the back and medial aspect of left forearm. Margins inserted. Charring, blackening, tattooing and signing absent. Size varying from 0.2 cm x 0.2 cm. Adv. X-ray. Patient is in shock and admitted in MSW.
16. The injury sustained by the injured Girraj is as follows:
(i) Multiple firearm wounds in an area of 20 cm x 6 cm on the upper most of outer and front of left thigh. Margins inserted. Charring, blackening, tattooing and singing absent. Size varying from 0.25 cm x 0.25 cm to 0.2 cm x 0.2 cm. Adv. x-ray.
17. The injury sustained by the injured Smt. Premwati is as follows:
(i) Multiple firearm wounds in an area of 32 cm x 25 cm x deep under observation on the back of neck, back of both sides of chest. Margins inserted. Charring, blackening, tattooing and singing absent. Shots not palpable. Size varying from 0.25 cm x 0.25 cm x depth under observation to 0.2 cm x 0.2 cm and Adv. x-ray.
18. The injuries sustained by the injured Mohan Singh are as follows:
(i) A gun shot wound 0.2 cm x 0.2 cm x depth under observation on the left side of chin just below the left lower lip. Margins inserted, charring, blackening tattooing absent. Adv. X-ray. Shots not palpable.
(ii) A gun shot wound 0.25 cm x 0.25 cm x depth under observation on the lower part of right side of chest. Margins inserted, charring, blackening tattooing absent. Shots not palpable. Kept under observation. Adv. X-ray.
(iii) A gun shot wound 0.25 cm x 0.25 cm x depth under observation on the back of abdomen 1 cm away and lateral to mid line margins inserted, charring, blackening tattooing absent. Shots not palpable. Kept under observation. Adv. X-ray.
(iv) Two gun shot wounds 8 cm away from ear other on the upper part of left buttock. Size 0.25 cm x 0.25 cm x depth under observation. Margins inserted. Charring, blackening tattooing absent. Adv. X-ray.
(v) A gun shot wound 0.2 cm x 0.2 cm on the front of left knee. Margins inserted. Charring, blackening tattooing absent. Shots not palpable. Adv. X-ray.
19. The accused persons were examined under Section 313 Cr.P.C. by the trial court and they all denied the said prosecution allegations and the evidence adduced thereto and has also stated that they have been falsely implicated due to enmity and party bandi in the village.
20. DW-1 Mahendra Singh was examined by the appellants in their defence, who has stated that he is the person who is the resident of the same village and his house is adjacent to the house of the informant Mohan Singh and has stated that the occurrence is of about 9:00 pm and some 6-7 unknown persons, with their muffled face, had attacked the informant and his family members and he could identify only one person as Sharaj, who is involved in several criminal case and is a proclaimed offender. He has also stated that the appellants and their family members have been falsely implicated in the case out of vengeance. The trial court vide its order dated 24.03.1987 convicted the four accused persons, namely, Omvir Singh, Jagdish Singh, Onkar Singh and Khachchey Singh.
RIVAL CONTENTIONS
21. Learned counsel for the appellants has stated that the occurrence is of the year 1984 and they were convicted on 24.03.1987. Much water has flown down the river and the appellants are senior citizens and have nothing to do with the case. The appellant no.1- Omvir Singh had served a sentence of about 11 months in total and the appellant no.2- Jagdish is stated to have served a sentence of about 5 months in total. Learned counsel has further stated that there are several contradictions in the statements of witnesses. Learned counsel has further indicated the inconsistency in the statements of PW-1 Mohan Singh, PW-2 Raghu Nath Singh, and PW-3 Girraj regarding the direction and firing by the assailants. Learned counsel has also stated that as per the prosecution story, all the accused persons, who were carrying firearm weapons, had fired from the arms but only one empty cartridge has been recovered from the place of occurrence by the Investigating Officer. Learned counsel has also indicated that PW-1 Mohan Singh has categorically stated in his statement that all the injured persons were taken by the police in their jeep from the village to the hospital which has not been corroborated by PW-2 Raghu Nath Sing and PW-3 Girraj. The said inconsistency is fatal to the prosecution case. Learned counsel has further stated that the F.I.R. itself is delayed by about 3 hours 15 minutes as the distance from the occurrence to the police station is only six kilometers in the North. There is no explanation to the said delay in lodging the F.I.R.
22. Learned counsel for the appellants has further stated that the witnesses are tutored one as they have narrated the story like a parrot in consonance with the F.I.R. Learned counsel has further stated that the injured persons have been examined later on in the morning of 23.11.1984 which itself is delayed by more than 8 hours, which indicates that the injuries were not serious or fatal to the injured persons. The appellants have been wrongly convicted by the trial judge vide its impugned order dated 24.03.1987 for three years.
23. Learned counsel for the appellants has further stated that there is no X-ray or supplementary report on record to suggest that the said injuries were dangerous to life as none of the injuries have been found on the vital organs of the injured persons. Learned counsel has further stated that the said injuries could have been caused between 8-9 pm of 22.11.1984 as stated by PW-5 Dr. M.K. Gupta in his cross-examination. The doctor has not expressed any opinion about the seriousness of the injuries as he has categorically stated in his cross-examination that no X-ray report or supplementary report was put up before him.
24. Learned counsel for the appellants has further stated that the witnesses are interested witnesses as they have admitted that there are enmity between the parties and no independent witness has supported the prosecution story. Only the family members have been produced as prosecution witnesses.
25. Learned counsel for the appellants has stated that had the Investigating Officer found evidence under Section 307 IPC, he would have filed the charge-sheet under the said sections, but he had filed charge-sheet under Sections 399/402 IPC only. Learned counsel has further stated that the co-accused Phal Singh has been acquitted by the trial court although he was also named as assailant in the said case, although, as per the F.I.R. and prosecution story, the acquitted accused Phal Singh has been indicated to be one of the assailants having fired with a country-made pistol. The prosecution story stands falsified on this count only.
26. Learned counsel has further argued that the burden of proof on the accused is to put up evidence on the basis of preponderance and probabilities, while the prosecution is required to prove their case beyond any reasonable doubt. The statement of DW-1 Mahendra Singh shakes the prosecution story and the unexplained delay caused in lodging the F.I.R. and examining injured persons at hospital further falsifies it. The appellants are entitled for acquittal.
27. Per contra, learned A.G.A. has vehemently opposed the criminal appeal on the ground that the statements of witnesses are in consonance with the the prosecution story as alleged in the F.I.R., and there are no material contradiction in the statements of the witnesses. Learned A.G.A. has further stated that the inconsistencies in the statements of PW-1 Mohan Singh, PW-2 Raghu Nath Singh, and PW-3 Girraj are but natural to creep up as no witness possesses a photographic memory.
CONCLUSION
28. It is true that four persons have sustained gun shot injuries although no blackening or tattooing has been found, which indicates that the distance of firing is of more than 6 feet. There are several inconsistencies in the statement of eye-witnesses, namely, PW-1 Mohan Singh, PW-2 Raghu Nath Singh, and PW-3 Girraj. The role of appellant no.2 Jagdish along with appellant no.3 Onkar is of exhortation and the appellants, namely, Omvir, Phal Singh and Khachchey Singh, are said to have fired from their weapons.
29. This Court has given a considerate view to the fact that the F.I.R. itself is delayed and the examination of the witnesses has further been delayed by about eight hours which weakens the prosecution story that too in the case of a gun shot injury.
30. Having regard to the totality of the facts and circumstances of the case and particularly the fact that no minimum sentence has been provided in the I.P.C. for the offence under Sections 307/149 I.P.C., the offence was committed in the year 1984 and the appeal is of the year 1987 and also the fact that the appellants have served out a substantial period of sentence imposed upon them and the learned A.G.A. has also not objected to it, I am of the considered view that the ends of the justice would meet if the sentence of imprisonment against the appellants for the offence under Sections 307/34 IPC is reduced to the period already undergone by both the appellants.
31. In the light of the forgoing discussions, this appeal is liable to be allowed in part and the conviction of the appellants under Sections 307/34 IPC is liable to be upheld modifying the sentence imposed upon them as above.
32. Accordingly, the appeal is allowed in part. Conviction of the appellants is upheld but the sentence of imprisonment awarded to the appellants by the trial court in the impugned judgment and order dated 24.03.1987 for the offence under Sections 307/34 shall stand reduced/altered to the period already undergone by the appellants. The appellants are on bail. They need not to surrender. The bail bonds are cancelled and sureties are discharged.
33. Let a copy of this judgment along with the trial court record be sent to the court concerned for necessary compliance.
Order Date :- 31.08.2022 Ravi Kant Krishan Pahal, J.