Allahabad High Court
Lokendra vs State Of U.P. on 10 September, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No.2024:AHC:147080-DB Reserved on 12.08.2024 Delivered on 10.09.2024 Reserved Case :- Criminal Appeal No.1190 of 2013 Appellant :- Lokendra Respondent :- State of U.P. Counsel for Appellant :- Ankit Pathak,Anuj Chaudhary,Kailash Prakash Pathak,Nazrul Islam Jafri(Senior Adv.),Rahul Kakran,Raja Ullah Khan,Rajeev Sawhney,Ranjeet K Yadav,Sanjeev Kumar,Saurabh Yadav,Tej Bhan Singh Counsel for Respondent :- Bhuvanesh Kr.Singh,Bhuvnesh Kumar Singh,Dileep Kumar(Senior Adv.),Rajrshi Gupta Hon'ble Siddharth, J.
Hon'ble Brij Raj Singh, J.
( Delivered by Brij Raj Singh, J.)
1. Heard Sri Saurabh Yadav, learned counsel for the appellant, Sri Prem Shankar Prasad, learned AGA and Sri Bhuvnesh Kumar Singh, learned counsel for the complainant and perused the material and the evidence on record.
2. Th present criminal appeal has been filed against the judgement and order dated 16.02.2013 passed by the learned Additional Sessions Judge, Court No.3, Bijnor in Session Trial No.475 of 2011, arising out of Case Crime No.395-A of 2010, State Vs. Lokendra and others, thereby convicting and sentencing the appellant under Section 302 IPC for life imprisonment with fine of Rs.20,000/- and in default of payment of fine to further undergo three months additional imprisonment and further in Session Trial No.476 of 2011, arising out of Case Crime No.465 of 2010, State Vs. Lokendra, thereby convicting and sentencing the appellant under Section 25 Arms Act for two years rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine to further undergo one month additional imprisonment. However, both the sentences shall run concurrently.
3. As per the prosecution case, Gambhir Singh, brother of the deceased, lodged report by giving written Tehrir in Police Station mentioning therein that on 17.07.2010 at 5.30 PM he and his brother Mukendra were coming to their village and when they reached to the Village Saidpur, Sukhvir S/o Sri Ram, Kamal Singh S/o Pritam Singh, Lokendra S/o Kamal Singh and Virendra S/o Ram Kunwar were standing on the path and as soon as they reached to their house, they started abusing them, on which Mukendra, brother of the complainant, asked them not to use abusive language. The accused started beating the complainant and his brother and accused Sukhvir and Kamal caught hold of his brother Mukendra and Lokendra fired at his brother by country-made pistol, on which Mukendra received fire arm injury in his abdomen. Virendra had beaten the complainant. After hearing the sound of fire, family members Mast Ram, Satish and others reached to the place of occurrence and saved them. They had taken the injured Mukendra to the District Hospital, Bijnor, where the doctor examined him and referred him for medical treatment at Meerut. Injured Mukendra was admitted in Divya Jyoti Hospital, Meerut and after admitting him, the report was lodged on 18.07.2010 at 12.20 PM at Case Crime No.395-A of 2010, under Sections 307, 323 and 504 IPC. Chik FIR No.266 of 2011 was entered in the General Diary and the investigation was handed over to Sub-Inspector Deshpal Singh. The injured Mukendra was medically examined in Divya Jyoti Hospital, Meerut on 17.07.2010 and the following injuries were found on his body:-
1. "1. Entry wound about 2-1/2 cm x 1-1/2 cm below the right subcostal margin tatooing, charing present.
2. 2. Exit wound below the left subcostal margin (below the tip of 12th rib) about 3 cm x 2 cm, small bowels protruding out, mild charing present all around, bleeding coming out.
3. Advised X-Ray of abdomen."
4. In the opinion of doctor, injury was dangerous. According to supplementary report of injured, doctor gave a finding that post wall of stomach injured; jejunal injury about 2" from DJ; transverse colon injured; descending colon injured; Jejunal segment is about 8"-10" injured with mesenteum injury; the stomach, Tr colon discending colon injury repaired; the jejunal injury repaired. The shattered jejunal segment resected with end to end amastomosis done. Two drains placed in right lesser sac in left pelvis. Wound closed.
5. The injured was operated in Divya Jyoti Hospital, Meerut and thereafter he was admitted in Artemis Health Institute, Gurgaon. The injured developed intra abdominal collection, for which peritoneal lavage was done and he was kept in Intensive Care Unit because of sepsis and high grade fever. Thereafter, the injured was admitted in Sir Ganga Ram Hospital, New Delhi on 03.09.2010, where CT angio was conducted on 19.08.2010 and he underwent laparotomy, lavage, adehesiolysis and bouble bowel ileortomy. The injured was also examined by way of Ultrasound. His condition deteriorated and thereafter he was suffered from cardio respiratory arrest on 16.09.2010 at 1.50 PM and in spite of all best medical treatment, he was declared dead on the same day at 2.20 PM.
6. The inquest of the deceased Mukendra was conducted in Sir Ganga Ram Hospital, New Delhi by Sub-Inspector Ranbir Singh on 16.09.2010 and the post-mortem of the deceased was conducted on the same day at 12.30 PM in Lok Nayak Hospital, New Delhi, which was identified by the complainant, Gambhir Singh and Sanjiv Kumar. According to the post-mortem report of the deceased, the following general and external examination was found:-
"According to post-mortem report- in external appearance, dead body was found 165 cm in height, 52 kg in weight, average built, eyes closed, swelling present, yellowish discharge coming out from nose and mouth, surgical bondages present over the lower chest wall and abdominal wall present. No sign of decomposition.
General examination:-
On removing the surgical bondages an exploratory luparotomy wound measuring 43 cm in length with intact stitches present in the midline. The wound is infected with yellowish pus and inducated margins The lower part of the wound shows gaping with loops of intestine exposed. Surrounding shin blacking and crepitatious felt. Swelling and occpitation present over the chest and abdominal walls. Surgical drainage tube present over the left lower abdomen. Chest tube drainage present in the 5th inteustal space on the left side.
External Examination:-
1. An open infected wound measuring 3 cm x 2 cm x abdominal cavity deep present over the right lower outer abdomen 29 cm below right nipple and 16 cm lateral to the midline. A part of bowel loop is found to be exterionised through the wound surgically The margin of the wound are irregular The edge is heaped up Swollen and protruded due to issue edema. The base of the wound is found by lumps of intestine which show fibrous deposits and yellowish grey exudates.
2. An open infected wound measuring 8 cm x 6 cm x cavity deep is present over the left lower abdomen 2 cm below the left nipple, 17 cm lateral to midline The margin of the wound is irregular with showing and demdation of shin and tissues. There is unhealthy gramlation tissue with fibrous deposits and yellow grey exudates at the wound edge. Blueuish discoloration with crepitation present over the surrounding skin.
In the opinion of the doctor, the cause of death was shock due to peritoritis and septicemia as a result of gunshot injury in the abdomen."
7. After the death of the deceased, the Investigating Officer had altered the charge from Section 307 IPC to Section 302 IPC. After recording the statements of the witnesses; making recovery of country-made pistol; conducting the investigation and on the basis of the evidence collected, firstly chare-sheet was filed by the Investigating Officer against accused Lokendra and thereafter against accused Kamal, Virendra and Sukhvir under Sections 302, 323 and 504 IPC. The investigating Officer also investigated the case under Section 25 Arms Act against accused Lokendra and filed charge-sheet against him under the aforesaid section in Session Trial No.476 of 2011.
8. The learned Magistrate committed the case to the court of sessions and thereafter charges were framed in the aforesaid sections. The accused denied the charges and pleaded for trial. Since both the session trials relate to one and the same incident, they were consolidated together treating Session Trial No.475 of 2011 as leading case and all evidences have been recorded in the aforesaid session trial.
9. The prosecution to prove its case, produced the following eleven witnesses:-
P.W.-1 Gambhir Singh P.W.-2 Satish Kumar P.W.-3 S.I. Ranvir Singh P.W.-4 Dr. Rajiv Singh P.W.-5 S.I. D.R. Meena P.W.-6 S.H.O. Dhanpal Singh P.W.-7 S.I. Uma Shankar P.W.-8 Dr. Shriniwas P.W.-9 S.I. Deshpal Singh P.W.-10 S.I. Krishanpal Singh P.W.-11 Constable Ravinder Singh
10. 23 Exhibits were also produced by the prosecution to proved its case.
11. The accused-appellant was confronted under Section 313 Cr.P.C. He denied the charges and pleaded before the court that he was falsely implicated in the case due to enmity.
12. P.W.-1, Gambhir Singh deposed before the court that the accused were known to him and he narrated the same facts in examination-in-chief as has been narrated in the FIR. In cross-examination, he proved the written report (Ext.Ka-1) and thereafter he deposed that he reached to Meerut to see his brother, from where he took his brother to Artemis Hospital, Gurgaon and thereafter he was admitted in Sri Ganga Ram Hospital, New Delhi on 16.09.2010, where he died. He further deposed that on his application to the Superintendent of Police, Bijnor, necessary order was passed to convert the case under Section 302 IPC. He assigned the motive before the court that accused Kamal had taken Rs.30,000/- from Sovendra as loan and his brother Mukendra was the mediator of the said transaction. Sovendra died after two days and Mukendra asked accused Kamal to return the money, which was refused by him and he threatened to kill him.
13. In cross-examination, the complainant deposed that Bhupendra was nephew of the accused Sukhvir. His father Shiv Charan, Teekam Singh and Shyam Singh were real brothers and Virendra was the son of Teekam. He also deposed that he had no knowledge that whether Bhupendra was kidnapped by Virendra or whether there was a case registered against him. After sustaining injuries, Mukendra firstly was taken to the Bijnor Hospital by him, where doctor attended him, but no paper was available on record in this regard. He further deposed that he took his brother Mukendra on the same day to Meerut, but medical examination of injured was not conducted in any Government Hospital at Meerut. On the next day, he took the injured to Artemis Hospital, Gurgaon where injured remained admitted upto 03.09.2010 and thereafter he admitted the injured Mukendra in Sir Ganga Ram Hospital, New Delhi. He further deposed that it is wrong to say that they were negligent in the treatment of the injured. He further deposed that proceedings under Section 107/116 Cr.P.C. were going on between the parties, but he had no knowledge as to who made complaint for the aforesaid proceedings. There was no written agreement regarding loan of Rs.30,000/- and no complaint was lodged to that effect. Pavitra, wife of Sovendra was pressuring his brother Mukendra to get the money returned from accused Kamal. They were annoyed with Kamal because he dd not return the money. However, the factum regarding loan has been narrated for the first time before the trial court.
14. In cross-examination, the complainant further deposed that he took the injured to Meerut and thereafter him to Artemis Hospital, Gurgaon and during this period, he remained with the inured and did not inform the police in Meerut. Witnesses Satish and Mast Ram are belonging to his family. He denied the suggestion that he was not present with the injured and had not seen any incident. He did not remember whether the place of incident was reiterated by him in the written Tehrir or not. He further deposed that the incident of firing did not occur in front of the gate of the house or boundary wall of the accused, but marpeet was started there. Accused were standing on the gate of their boundary wall and as soon as they reached there, marpeet and abuse started by the accused. He was not beaten by all the four accused, rather was beaten by one accused.
15. P.W.-2 Satish Kumar was examined before the court and he deposed that on 17.07.2010, the accused were abusing Mukendra and Gambhir Singh for the loan of Rs.30,000/- which was taken by accused Kamal from Sovendra and the same was not returned by accused Kamal. When Mukendra and Gambhir Singh objected the accused persons, marpeet was started by them. The complainant and the deceased tried to run away. However, Sukhvir and Kamal caught hold of Mukendra and Lokendra fired at Mukendra by country-made pistol, which hit his abdomen. After receiving injury, Mukendra fell down on the ground. He further deposed that the incident took place at 5.30 PM in front of his house near Transformer. After hearing sound of fire, Mast Ram, Kripal and others came to the spot. Thereafter, injured Mukendra was brought to Bijnor Hospital, from where he was referred to Meerut. Thereafter, the injured was taken to Gurgaon and New Delhi and during treatment, he succumbed to injuries. He deposed that he had witnessed the incident.
16. In cross-examination, P.W.-2 Satish Kumar deposed that his grandfather Dhyan Singh, Teekam and Shiv Charan were real brothers and the complainant is the son of Shiv Charan and the deceased Mukendra is the brother of the complainant. Virendra is son of Teekam and witness Mast Ram is the son of uncle Dharamvir. He had also no knowledge to the fact that Sukhvir's nephew Bhupendra was kidnapped and report was lodged against Virendra and in that case Sukhvir was doing Pairvi. His statement was recorded by the Investigating Officer after 20-22 days.
17. P.W.-2 Satish Kumar further deposed before the court that two persons fired and one person committed marpeet and except Virendra, other three persons committed no marpeet. The firing was done where accused persons surrounded Mukendra and Gambhir Singh. Virendra committed marpeet with Gambhir Singh. After firing, blood was coming out, but blood was not present on his hand and cloth. He did not see any injury on the body of Gambhir Singh. The altercation took place between both paries on the motive of Rs.30,000/-. However, this transaction was not done in his presence, but he was heard about this fact. On 17.07.2010 at 10.30 PM, accused Kamal lodged the cross case against him, his brother Mast Ram, Mukendra and Jagdish. He had no knowledge whether Premwati is the wife of accused Kamal Singh. he did not see any injury on person of Premwati and Kamal. He did not know that any bone of Kamal was fractured. Injured Mukendra was admitted in Artemis Hospital, Gurgaon, but he did not accompany him there.
18. P.W.-3 S.I. Ranvir Singh was examined before the court and he deposed that on 16.09.2010, he was posted at Police Station Rajendra Nagar, District Center, Delhi and on that day, information was received from Sir Ganga Ram Hospital, New Delhi that Mukendra, who was admitted in the hospital on 03.09.2010, had died at 2.20 PM and he was identified by his brother Gambhir Singh and his brother-in-law Sanjiv Kumar. He had prepared the inquest report of deceased Mukendra and he brought the dead body of deceased to Maulana Azad Medical College, New Delhi for conducting post-mortem. He proved the death report Paper No.5/9 as Ext.Ka-3. He had also prepared an application for post-mortem, which he proved as Ext.Ka-4. In cross-examination, he has stated that death of the deceased had occurred at Delhi, but he cannot say the reason of death or it was caused by negligence.
19. P.W.-4 Dr. Rajiv Singh was examined by the trial court and he deposed that on 17.07.2010 at 10.20 PM, he medically examined the injured Mukendra, who was brought by Satish Kumar (P.W.-2). He found two fire arm injuries in his abdomen. The intestines were coming out from the abdomen. The injuries were dangerous and X-ray and operation was advised by him. He proved the medical report (Ext.Ka-5). Operation of abdomen of the injured Mukendra was conducted by him on the same day and found that blood was in heavy quantity there. Stomach and small intestines were fractured and intestine was repaired. Abdomen was stitched. He also prepared supplementary report on the next day i.e 18.07.2010 on the back of the medical report. He also proved the supplementary report (Ext.Ka-6).
20. In cross-examination, P.W.-4 Dr. Rajiv Singh deposed that he did not mention the medical report and the duration of injuries. The injuries were not old of more than 2-3 hours because heavy blood was coming out. He has authorised to conduct the medico legal cases and also informed the police. However, there is no paper regarding the fact that the police was informed about the incident. He found no gun powder in the abdomen of the injured.
21. P.W.-5 Sub-Inspector D.R. Meena has deposed before the trial court that on 18.07.2010, he was posted as Head Constable at Police Station Chandpur and on that day, he had prepared the Chik FIR No.267 of 2010 at Crime No.395-A of 2010, under Sections 307, 323 and 504 IPC against Sukhvir and others on the basis of written report of the complainant, Gambhir Singh and entry of which, was made in the General Diary. He proved the chik FIR as Ext.Ka-7 and its GD as Ext.Ka-8.
22. In cross-examination, P.W.-5 Sub-Inspector D.R. Meena deposed that original GD is not available on record and he cannot say that except this case, another case was registered or not. Case Crime No.395 of 2010, under Sections 323, 324, 504 and 506 IPC was also registered at Police Station Chandpur and this case was investigated by Sub-Inspector Deshpal Singh. He further deposed that it is wrong to say that Case Crime No.395 of 2010 was registered ante-time. He further deposed that on 05.08.2010, he was posted at Police Station Chandpur and on that day, on the basis of recovery memo, he had prepared the chik FIR No.291 of 2010 at Crime No.465 of 2010, under Section 25 Arms Act against accused Lokendra. He proved the chik FIR as Ext.Ka-13 and its GD No.17 dated 05.08.2010 as Ext.Ka-14. In cross-examination, he further deposed that original GD is not available and he denied the suggestion that FIR was lodged ante-time.
23. P.W.-6 Dhanpal Singh, Investigating Officer has deposed before the trial court that on 01.10.2010, he was posted as Station House Officer at Police Station Chandpur and on that day, he had received investigation of Case Crime No.395-A of 2010, under Sections 307, 323 and 504 IPC, in which Section 302 IPC was added on 27.09.2010. Prior to him, Sub-Inspector Uma Shanker was the Investigating Officer. Before he took over the investigation, accused Sukhvir, Kamal and Virendra were bailed out under Section 307 IPC and he had submitted the report in court for obtaining arrest warrants of these accused. Accused Lokendra was detained in jail and after collecting all evidence against him, he had submitted Charge-sheet No.309 of 2010 against accused Lokendra, under Sections 302, 323 and 504 IPC. On 18.01.2011, he also submitted Charge-sheet No.309-A of 2010, under Sections 302, 323 and 504 IPC against accused Sukhvir, Kamal and Virendra. He proved both the charge sheets as Ext.Ka-9 and Ext.Ka-10 respectively.
24. In cross-examination, P.W.-6 Dhanpal Singh deposed that he had made no interrogation from any eye witness of this case nor he recorded their statements after adding Section 302 IPC. His predecessor had written the case diary. He did not see the place of incident. He also did not record the statements of doctors, who medically treated the injured and conducted the post-mortem of the deceased. He further deposed that he had not investigated the case thoroughly on merit.
25. P.W.-7 Sub-Inspector Uma Shanker, Investigating Officer has deposed before the trial court that on 09.08.2010 he was posted at Police Station Chandpur and on that day, he had received investigation of Case Crime No.395-A of 2010, under Sections 307, 323 and 504 IPC by order of Station House Officer, Chandpur. On 25.10.2010, he had received the medical summary of injured Mukendra from Gurgaon and he copied it in case diary. On 04.09.2010, he received the statements of witnesses Mast Ram, Satish. On 27.09.2010, he obtained medial reports, CT Scan report of Mukendra and death report and the case was altered under Sections 302, 323 and 504 IPC. Carbon copy of GD is available on record, which he proved as Ext.Ka-11. Thereafter, investigation of this case was transferred to Dhanpal Singh, Station House Officer. In cross-examination, he deposed that he had converted the case only on the basis of report and no other proceeding was done by him.
26. PW-8 Dr. Sriniwas was examined before the trial court and he deposed that on 16.09.2010, he was posted as Associate Professor at Maulana Azad Medical College, Delhi. On that day, he and Dr. Monisha Pradhan, Senior Resident, conducted post-mortem on the dead body of deceased Mukendra S/o Shivcharan R/o Village Saidhpur at 12:30 PM in Lok Nayak Hospital, New Delhi. The dead body was brought by Sub-Inspector Raghuvir Singh Ahalwat and it was identified by Gambhir Singh and Sanjiv Kumar. They had prepared the brief history, which is available on record as Paper Nos.20/1 and 20/2. He proved the post-mortem report (Ext.Ka-12).
27. In cross examination, PW-8 Dr. Sriniwas deposed that at the time of post-mortem, no bullet or pellet was recovered. He had mentioned that death of the deceased was caused by firearm injury as informed by police, but no such proof was found by them that death was caused by firearm. In Delhi, at the time of post-mortem, X-ray was conducted in the cases of firearm injury, but no X-ray was conducted in this case.
28. P.W.-9 Sub-Inspector Deshpal Singh, who is Investigating Officer in this case, has deposed that on 18.07.2010, he was posted at Police Chowki Basta, Chandpur. On that day, he had received investigation of Case Crime No.395-A of 2010, under Sections 307, 323 and 504 IPC. He had copied the chick FIR, GD in Case Diary and recorded the statements of Constable Daulat Ram. On 22.07.2010, he recorded the statement of complainant, Gambhir Singh and on his pointing out, he inspected the spot and prepared the site plan, which he proved as Ext.Ka-13-A. He also recorded the statements of witnesses Mahendra Singh, Teekam Singh, Arpit, Dr. Anuj Kumar. On 28.07.2010, he also recorded the statements of accused Lokendra, Virendra and Kamal Singh in jail. On 29.07.2010, he had gone to Artemis Hospital, Gurgaon, where he recorded the statement of injured Mukendra, who was admitted in Intensive Care Unit. On 01.08.2010, he obtained the medical report of injured Mukendra. On 05.08.2010, he had recovered country-made pistol on pointing out of accused Lokendra and prepared the site plan of the place of recovery (Ext.Ka-14-A). On that day, he left from Police Station vide GD No.8 at 6.15 AM along with accused Lokendra and recovered the country-made pistol from the bushes near grove of Atiq Ahmad on Basta Road at 10.20 AM and sealed the country-made pistol on the spot. No public witness was ready to be witnessed the said recovery. He prepared the recovery memo and obtained the signatures of police personnel on it. When the sealed bundle was opened in court, he has identified the country-made pistol and proved its cloth as Material Ext.-1, Country-made pistol as material Ext.-2. He also proved the recovery memo (Ext.Ka-15).
29. In cross examination, P.W.-9 Deshpal Singh deposed that he did not know when disclosure statement is recorded. No such statement was recorded by him before said recovery. The place of recovery was an open place and public persons met them in the way, but there was no public witness of the said recovery. He further deposed that it is correct to say that when he started investigation, the case was registered under Section 307 IPC. It is also correct to say that the Investigating Officer of a case cannot be complainant or witness in another case. After recovery of country-made pistol, he made him witness. It is also correct to say that on the date of recovery, he also prepared site plan of the place of recovery. He deposed that after recovery, investigation was taken over by the Station House Officer. It is wrong to say that false recovery was shown. Witness Gambhir Singh had not given his statement that all other accused had told to Lokendra to make fire. Only Virendra had told to Lokendra to make fire. During his investigation, witness Satish Kumar did not meet him, so he could not record his statement. It is wrong to say that he himself had written the statement of the injured Mukendra. No cloth of injured was shown to him nor was given to him during investigation. If there was hole on cloth at the time of injury, it was important proof. No witness of incident was available to him. He denied the suggestion that he wrongly prepared the case diary during his investigation.
30. P.W.-10 Sub-Inspector Krishanpal Singh was examined before the trial court and he deposed that on 05.08.2010, he was posted at Police Station Chandpur. On that day, he received investigation of Case Crime No.465 of 2010, under Section 25 Arms Act against accused Lokendra. He copied the chick FIR, GD and recorded the statements of Head Moharrir Daulat Ram and accused Lokendra in case diary. On 17.08.2010, he inspected the place of recovery and prepared site plan on pointing out of Constable Ravinder. He proved the site plan as Ext.Ka-16. He also recorded the statements of Constable Ravinder Kumar and Sub-inspector Deshpal Singh and after completing investigation, he submitted the charge-sheet against accused Lokendra under Section 25 Arms Act in court, which he proved as Ext Ka-17. He also stated that during investigation, he obtained permission of the District Magistrate on 04.10.2010, which he proved as Ext.Ka-18.
31. In cross examination, P.W.-10 Krishanpal Singh deposed that he had not sent the recovered country-made pistol for ballistic report to know that country-made pistol was operative or not. He had obtained the permission from the District Magistrate after submission of charge-sheet. It is wrong to say that when he went to obtain permission of the District Magistrate, charge-sheet was not with him. There was no public witness of the recovery. He denied the suggestion that he has wrongly submitted the charge-sheet against the accused.
32. P.W.11 Constable Ravinder Singh was examined before the trial court and deposed that on 05.08.2010, he was posted at Police Chowki, Basta, Police Station Chandpur. On that day, he was with Sub-Inspector Deshpal Singh vide GD No.8 at 6.15 PM and they had come to District Jail, Bijnor at 8.45 AM and they took accused Lokendra in their custody and came on Basta Road near Baratghar and on pointing out of accused Lokendra, a country-made pistol of 315 Bore was recovered at 10.20 AM from bushes and grass near grove of Atiq Ahmad. Accused confessed that he had fired on Mukendra by this country-made pistol. Country-made pistol was sealed on the spot and prepared sample of seal. Nobody was ready to be witness of the said recovery. Sub-Inspector Deshpal Singh had prepared recovery memo on the spot and obtained his signature on it. He identified his signature on recovery memo (Ext.Ka-15).
33. In cross examination, P.W.11 Constable Ravinder Singh deposed that before pointing out of accused, his statement was not recorded. No public witness was present at the time of recovery and nobody was prepared to be witness. He did not know that it is an offence if anybody deny to give evidence. The distance of abadi is 20-25 meters from the spot, where Village Pradhan and Village Chowkidar reside, but they did not call them. The place of recovery is an open place. In recovery memo, place and time were not mentioned. It is wrong to say that proceeding was completed at Police Station. He denied the suggestion that no recovery was made and false proceeding was done.
34. The trial court after examining the witnesses and adducing the evidence on record, convicted the accused-appellant as mentioned above. Hence, the present appeal has been filed.
35. Learned counsel for the accused-appellant has submitted that there is inordinate delay in lodging the FIR and there is no plausible explanation from the side of the complainant as to why such delay took place in lodging the FIR. He has further submitted that version of the FIR and statement of P.W.-1 indicates that the incident took place on 17.07.2010 at 5.30 PM, whereas the FIR was lodged on 18..07.2010 at 12.20 PM i.e. after almost 18 hours. He has also submitted that the FIR is an after thought and the complainant received information about the incident much belatedly and he lodged the report after consultation. Learned counsel for the appellant has argued that as per the medical report on record, the injured (since deceased) was admitted in Divya Jyoti Hospital, Meerut on 17.07.2010 at 10.20 PM and he was brought by P.W.-2 Satish Kumar and not by the complainant.
36. Learned counsel for the appellant has further argued that the deceased was admitted in injured condition in Divya Jyoti Hospital, Meerut. It appears that the complainant was not present at the place of occurrence, otherwise the FIR could have ben promptly lodged. The FIR indicates that the complainant, Satish Kumar, Mast Ram, Kripal and other villagers were present at the place of occurrence, but no information was given to the police by anyone. Therefore, presence of the complainant at the place of occurrence is highly doubtful in the facts and circumstances of the case.
37. It has been further argued by the learned counsel for the appellant that accused Virendra, Sukhvir and Kamal have been acquitted by the trial court though the role of exhortation as well as catching hold has been assigned to them. He has further been argued that the role of catching hold has been discarded by the trial court and the record reveals that all the three accused, who have been acquitted, were not armed with any weapon. Had they planned to commit murder of the deceased, all of them would have been armed with weapon. In the FIR, allegation has been levelled that accused Kamal and Sukhvir caught hold of the deceased and the accused-appellant Lokendra fired at him, but no injury was received by any of the accused, which also shows doubt about the alleged incident.
38. Learned counsel for the appellant has also argued that Dr. Rajiv Singh (P.W.-4) deposed in the cross-examination that the injuries were not old of more than 2-3 hours and he had examined the injured on 17.07.2010 at 10.20 PM, whereas the incident, as per the FIR, took place on 17.07.2010 at 5.30 PM. It is submitted that duration of the injuries is not matching with the time of incident and the FIR appears to be ante-timed.
39. Learned counsel for the appellant has further argued that recovery of country-made pistol is false and the appellant has been implicated on the basis of false recovery. He has further argued that no ballistic report of the country-made pistol was obtained to show that the country-made pistol was being used in commission of crime. There is also no independent witness to prove the said recovery. Thus, the ingredients provided in the Arms Act for recovery of the weapon allegedly used in commission of crime are not fulfilled in the present case.
40. In support of his contention, learned counsel for the accused-appellant has relied upon the following judgements:-
1. Sekaran Vs. State of Tamilnadu, (2024) 2 SCC 176;
2. State of U.P. Vs. Punati Ramulu and others, (1994) Supp(1) SCC 590;
3. Dilawar Singh Vs. State of Delhi, (2007) 12 SCC 641;
4. Thulia Kali Vs. The State of Tamilnadu, (1972) 3 SCC 393;
5. Ishwar Singh Vs. State of U.P., (1976) 4 SCC 355;
6. Balakrushna Swain Vs. State of Orissa, (1971) 3 SCC 192;
7. Jagir Singh Vs. State of Delhi, (1975) 3 SCC 562;
8. State of Orissa Vs. Brahmananda Nanda, (1976) 4 SCC 288;
9. Maruti Rama Naik Vs. State of Maharashtra, (2003) 10 SCC 670;
10. Shahid Khan Vs. State of Rajasthan, (2016) 4 SCC 96; and
11. Harbeer Singh Vs. Sheeshpal and others, (2016) 16 SCC 418.
41. Learned AGA while rebutting the arguments of learned counsel for the appellant has submitted that the prosecution case is established beyond reasonable doubt as the P.W.-1 Gambhir Singh and P.W.-2, Satish Kumar are consistent in their statements before the trial court. They have deposed that due to money transaction, the accused were annoyed with the deceased and on the date of incident, the accused-appellant intercepted the complainant and the deceased while there were coming to their house and fired at the deceased with intention to kill him. He has further submitted that the post-mortem report is corroborating with the prosecution case as narrated by P.Ws.1 and 2 and 3 before the trial court. The deceased sustained fire arm injury, due to which he died and the cause of death was shock due to peritonitis and septicemia as a result of gun shot injury in the abdomen. P.W.-1, Gambhir Singh and P.W.-2 Satish Kumar, who are ocular witnesses, have fully supported the prosecution case. He has further submitted that the prosecution is able to prove the case beyond reasonable doubt and, therefore, the conviction and sentence awarded by the trial court needs no interference and all the appeal deserve to be dismissed.
42. Sri Bhuvnesh Kumar Singh, learned counsel for the complainant has adopted the arguments advanced by the learned AGA and has submitted that since the accused-appellant Lokendra is the main accused, who had fired at the deceased by country-made pistol and the deceased died due to the injures sustained by him, the rial court has rightly convicted and sentenced the accused-appellant, which requires no interference by this Court.
Analysis of the arguments of learned counsel for the appellant:-
43. The FIR indicates that the incident took place on 17.07.2010 at 5.30 PM, whereas the complainant lodged the report on 18.07.2010 at 12.20 PM. P.W.-1 Gambhir Singh deposed in his cross-examination that he had taken the injured first to the District Government Hospital, Bijnor and the doctor had made endorsement to that effect. The relevant portion of the cross-examination of the P.W.-1 Gambhir Singh is quoted below:-
"चोट लगने के बाद चुटैल को हम सबसे पहले बिजनौर सरकारी अस्पताल में लाये थे वहां इसे डाक्टर ने देखा था व इसकी चोटो के बाबत लिखा पढी की थी।"
44. Medical report dated 17.07.2010 of Dr. Rajiv Singh (P.W.-4) of Divya Jyoti Hospital, Meerut indicates that the injured was brought by Satish Kumar at 10.20 PM and not by the complainant. It is strange to note that out of three persons, who were present at the place of occurrence along with many villagers, did not lodge the report in the police station. For the first time, it appears that the injured has been examined by Dr. Rajiv Singh (P.W.-4) of Divya Jyoti Hospital, Meerut at 10.20 PM. Thus, the statement of P.W.-1 is not trust worthy, wherein he has mentioned that he had taken the injured to the District Government Hospital, Bijnor and necessary endorsement was made by the doctor, but no medical report of any doctor of the District Government Hospital, Bijnor is available on record nor produced by the prosecution side at any stage. It appears that it is a serious lapse on the part of the prosecution side as well as other witnesses, who did not lodge the report for more than 18 hours.
45. Hon'ble Supreme Court in the Case of Rajeevan and another Vs. State of Kerala; (2203) 3 SCC, 355 has enunciated the principle of delay in lodging the report in Paragraph Nos.12 and 24, which are quoted below:-
"12. Another doubtful factor is the delayed lodging of FIR. The learned counsel for the appellants highlights this factor. Here it is worthwhile to refer Thulika Kali Vs. State of Tamilnadu (1972) 3 SCC 393, wherein the delayed filing of FIR and its consequences are discussed. At Para 12 this Court says-
"...First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eye-witness present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after- thought. On account of delay, the report not only gets benefit of the advantage of spontaneity danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained."
14. As feared by the learned counsel for the appellants, the possibility of subsequent implication of the appellants as a result of afterthought, may be due to political bitterness, cannot be ruled out. This fact is further buttressed by the delayed placing of FIR before the Magistrate, non-satisfactory explanation given by the Police Officer regarding the blank sheets in the Ex. P30 counter foil of the FIR and also by the closely written bottom part of Ex.P1 statement by PW 1.All these factual circumstances read with the aforementioned decisions of this Court lead to the conclusion that it is not safe to rely upon the FIR in the instant case. The delay of 12 hours in filing FIR in the instant case irrespective of the fact the Police Station is situated only at a distance of 100 meters from the spot of incident is another factor sufficient to doubt the genuineness of FIR. Moreover, the Prosecution did not satisfactorily explain the delayed lodging of FIR with the Magistrate."
46. Similar view has been expressed by the Hon'ble Supreme Court in the case of Shankar Lal Vs. State of Rajasthan; (2004) 10 SCC 632 in Paragraph No.5, which is quoted below:-
"Even according to the prosecution the only witness to the incident in question is PW-6 therefore as contended by learned counsel for the appellant we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to a village Upli for some work. From there he came back by bus at about 11'O clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and PW-6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him therefore he came near the village square where he met PW-2 Khyali Ram. From the above evidence of PW-6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he reached the village and met Ram Rakh's wife he did not inform her about the incident and it is for the first time he informs about this incident to PW-2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination in chief that he saw only one assault on the deceased, in the cross examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross examination that when he met PW-2 Khyali Ram and told him about the incident in question but PW-2 supposedly told him that he had already come to know of the incident from PW-14. The prosecution has not found how PW-14 came to know of the incident. In this background if we appreciate the evidence of PW-6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5.4.1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the Police Station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW-6 then there is no other material to base a conviction on the appellant hence we are of the opinion that the appellant is entitled to the benefit of doubt therefore this appeal succeeds and is allowed. The judgment and order of conviction of the 2 courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so his bail bonds shall stand discharged."
47. On the strength of the aforesaid judgements of the Hon'ble Supreme Court, we see that in the present case also the prosecution is unable to give plausible explanation as to why huge delay of 18 hours took place in lodging the FIR though there were witnesses along with villagers present at the place of occurrence. The incident took place on 17.07.2010 at 5.30 PM and the injured was taken by P.W.-2 Satish Kumar to the Divya Jyoti Hospital, Meerut for treatment as the medical report dated 17.07.2010 indicates that the injured was brought by Satish Kumar. There is no reason as to why the report was not lodged by the complainant, who is brother of the deceased in between 5.30 PM to 10.20 PM on 17.07.2010. The record further indicates that facts narrated by P.W.-1 Gambhir Singh that he had taken the injured to the District Government Hospital, Bijnor is bereft of record for the reason that there is no medical endorsement of admission in District Government Hospital, Bijnor by any doctor, whereas P.W.-1 Gambhir Singh has deposed that in the District Government Hospital, Bijnor, necessary endorsement was made by the Government doctor.
48. So far the argument of presence of the complainant at the place of occurrence is concerned, we see that as per the version of the complainant, the incident took place on 17.07.2010 at 5.30 PM and it is stated by P.W.-1 that he had taken the injured firstly to the District Government Hospital, Bijnor, but no record of the District Government Hospital, Bijnor pertaining to admission of the injured is available nor produced by the prosecution side at any stage. There is only medical report pertaining to Divya Jyoti Hospital, Meerut on 17.07.2010 at 10.20 PM, which indicates that the injured was brought by Satish Kumar to the said hospital. The time duration between 5.30 PM to 10.20 PM is near about 5 hours. It appears that the injured was shot by some one and later on the complainant came to know about the incident and thereafter injured was taken to Divya Jyoti Hospital, Meerut for medical treatment at 10.20 PM. Therefore, the presence of P.Ws.1 and 2 is highly doubtful.
49. The presence of other accused i.e. Virendra, Sukhvir and Kamal has to be seen in the present scenario of the case.
50. After going through the record, we find that Deshpal Singh, Investigating Officer recorded the statements under Section 161 Cr.P.C. on 19.08.2010. In the dying declaration, the deceased stated that all the three accused abused him and marpeet was committed by them. Accused Virendra made exhortation to accused Lokendra and on his exhortation, accused Lokendra fired at him by country-made pistol with common intention to kill him.
51. So far use of abusive language is concerned, we do not find any word mentioned in the FIR. In the written Tehrir (Ext.ka-1), it is mentioned that on objection of Mukendra, all the accused persons committed marpeet with complainant, Gambhir Singh and Mukendra. In cross-examination, P.W.-1 Gambhir Singh deposed that all accused persons committed marpeet with him. Again he said that one accused committed marpeet with him and when they tried to run away from the spot, two accused committed marpeet with him and his brother Mukendra. He further stated that two accused had taken away his brother Mekendra to other place of occurrence committing marpeet with him. Thus, he mentioned that at two places marpeet was done. On the other hand, P.W.-2 Satish Kumar deposed that all the accused committed marpeet with Mukendra and Gambhir Singh and again in cross-examination, he said that except accused Virendra, other three accused did not commit any marpeet. He further deposed in paragraph 5 of the cross-examination that the incident took place at only one place where Mukendra was caught hold. P.W.-1 Gambhir Singh deposed that he was not medically examined, whereas P.W.-2 Satish Kumar deposed that he did not see any injury on the body of th complainant.
52. One glaring fact has come on record that all the persons are said to have committed the crime with preplan, but only accused-appellant Lokendra was armed with country-made pistol and the other three accused were not armed with any weapon. Once the common intention is to be established, then prosecution has to prove that all the three accused were having preplan with common intention to commit crime. There is also no medical report of the complainant on record to show that he had received injuries during the course of alleged marpeet. The gun shot injuries were caused to the deceased Mukendra, but no injury is caused to other persons.
53. Deceased Mukendra was caught hold by accused Kamal and Sukhvir and there is no injury on the part of the body of any accused as no medical report is available on record. This fact casts doubt on the prosecution case regarding the presence of the other accused at the place of occurrence.
54. So far the exhortation by other accused is concerned, there is no word pertaining to exhortation mentioned in the report while Tehrir was given in the police station. P.Ws.1 and 2 deposed in examination-in-chief that all the three accused Sukhvir, Kamal and Virendra exhorted accused-appellant Lokendra to commit crime and on their exhortation, accused-appellant Lokendra fired at Mukendra, but they did not state the fact of exhortation when they were examined by the Investigating Officer under Section 161 Cr.P.C., rather they developed the story of exhortation first time during trial when they were examined by the trial court. P.W.-1 Gambhir Singh deposed in paragraph-2 at Page 2 that all the three accused persons made exhortation to accused-appellant Lokendra to kill the deceased, whereas P.W.-2 Satish Kumar deposed that except Virendra, all other accused made exhortation to accused-appellant Lokendra; thus there is contradiction in the statements of P.Ws.1 and 2.
55. The record further reveals that P.Ws.1 and 2 are the blood relation of the deceased and they have claimed to be the ocular witnesses. Their presence has become highly doubtful for the reason that presence of other accused have already been discarded by the trial court because we see that as per the prosecution case, it is a case of preplan murder, but the other three accused were not armed with any weapon. Had there been any premeditation and meeting of mind to commit the crime, certainly they would have also brought weapons in their hand. It is further to note that as per version of the FIR, Sukhvir and Kamal caught hold of the deceased and the accused-appellant Lokendra fired at the deceased, but no injury was received by these two accused. The place of occurrence is also highly doubtful after looking to the statements of P.Ws.1 and 2.
56. So far the argument of recovery of country-made pistol, it is evident that on pointing of the accused Lokendra, country-made pistol of 315 Bore was recovered from the grove of Atiq. The country-made pistol was sealed and it was not sent for ballistic report. If it is not sent for ballistic report, then how it could be ascertained that the said country-made pistol was used in commission of crime particularly when there was no independent witness of the said recovery. There was also no recovery of empty cartridge at the place of occurrence. The recovery is shown to have been made from the open place. Thus, the recovery is highly doubtful. The other very important fact to be noted is that except P.W.-9 S.I. Deshpal Singh and P.W.-11 Constable Ravinder Singh, no other independent witness is there to prove the recovery. In absence of any independent witness to support the prosecution case and in absence of any ballistic report, it cannot be construed that the said country-made pistol was used by the accused-appellant Lokendra in commission of crime.
57. After perusing the record and adducing the evidence on record, we find that the prosecution is not able to prove the case beyond reasonable doubt. Apart from it, the presence of P.Ws.1 and 2 is highly doubtful at the place of occurrence. The FIR lodged by the complainant is also highly belated that too without giving any plausible explanation, therefore, the findings recorded by the trial court in convicting and sentencing the accused-appellant are not sustainable as the same are perverse and against the record.
58. It is further to be noted that as per the custody report sent by the Senior Superintendent, Central jail Bareilly dated 14.07.2023, accused-appellant has already undergone actual custody of more than 12 years and custody with remission for more than 15 years.
59. Accordingly, the appeal is allowed and the impugned judgement and order dated 16.02.2013 passed by the learned Additional Sessions Judge, Court No.3, Bijnor in Sessions Trial No.475 of 2011, arising out of Case Crime No.395A of 2010 and further in Sessions Trial No.476 of 2011, arising out of Case Crime No.465 of 2010, so fat it relates to the accused-appellant, is hereby set aside.
60. Accused-appellant is in jail. He shall be released forthwith unless wanted in any case.
61. Let lower court record be sent back forthwith along with a copy of this judgement and order for compliance.
.
(Brij Raj Singh, J.) (Siddharth, J.) Order Date :- 10th September, 2024 Rao/-