Allahabad High Court
Jasveer Singh & Another vs State Of U.P. on 8 May, 2017
Bench: Shashi Kant Gupta, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 45 Case :- CRIMINAL APPEAL No. - 7200 of 2009 Appellant :- Jasveer Singh & Another Respondent :- State Of U.P. Counsel for Appellant :- Abhitab Kumar Tiwari,Amit Raghav,Anil Raghav,Indra Kumar Chaturvedi,P.K.Singh,Pavan Kumar Mishra,R.K.Tiwari,Saurabh Gour Counsel for Respondent :- Govt. Advocate,Brij Lal Shukla Connected with Case :- CRIMINAL APPEAL No. - 7199 of 2009 Appellant :- Raj Kumar Singh Respondent :- State Of U.P. Counsel for Appellant :- Abhitab Kumar Tiwari,Anil Raghav,Indra Kumar Chaturvedi Counsel for Respondent :- Govt. Advocate Hon'ble Shashi Kant Gupta, J.
Hon'ble Mrs. Rekha Dikshit, J.
(Delivered by Hon'ble Shashi Kant Gupta,J)
1. Both the aforementioned appeals assail the correctness of the common judgment and order dated 23.11.2009 passed by Additional Session Judge, Court No.6, Meerut State of U.P. Vs. Jasveer Singh and others in S.T. No. 214 of 1996, State Vs. Jasvir Singh and others,arising out of case crime no. 421 of 1995, wherein the accused Jasveer Singh, Rajkumar and Satish Singh were convicted under Section 302 I.P.C. to undergo life imprisonment and also pay a fine of Rs.5,000/- and in default thereof one year's additional imprisonment. The appellants have also been convicted under Section 201 I.P.C. to undergo rigorous imprisonment for two years R.I. and to pay a fine of Rs.3,000/-, and in default awarded further, six months imprisonment to each.
2. Since both the aforementioned criminal appeals arise out of the common judgement and order dated 16.11.2009, whereby the appellants of both the appeals have been awarded life imprisonment, they are being heard and decided by a common judgement.
3. Narrated concisely, the prosecution case against the appellants is that in the evening of 25.09.1995, Jasveer in inebriated state abused the complainant Omkar Singh and his real brother Ompal (deceased), who warned him from doing so. Jasveer went away threatening them with dire consequences. Thereafter, when the complainant along with his brother was coming back towards his house from his gher, appellant accused Jasveer, Rajkumar and Satish armed with rifle, farsa and country-made pistol arrived near the gher of Jaipal. Jasveer and Satish fired gun shots causing instantaneous death of the deceased. Complainant fled away from the scene of occurrence. When he returned alongwith Rajaram and Billu at the place of occurrence, he found a lot of blood on the spot and the body of the deceased missing .
4. The written report of the incident (Exhibit ka-1) was lodged at the police station at 05:15 am on 26.09.1995 by Omkar. On the basis of report, chik/F.I.R. (Exhibit ka-4) was drawn, necessary entries were made in GD (Exhibit ka-5), panchayatnama (Exhibit ka-6), recovery memo (Exhibit ka-12), site plan (Exhibit ka-13) were prepared, after investigation, the charge-sheet (Exhibit ka-14) was filed in the court against the appellants accused.
5. To bring home the guilt of the appellants, prosecution has examined seven witnesses. The documents as per list 222-kha relating to the criminal history of the deceased, have been adduced in defence.
6. P.W. 1 Omkar, the real brother of deceased stated that in the evening of 25.09.1995, the accused Jasveer abused both of them. His brother warned Jasveer, and he went home giving them life threats. On the very same night, at about 09.30 pm when both the brothers were returning home from their Gher, the accused Jasveer, Rajkumar and Satish arrived at the spot and fired gun shots at the deceased with a rifle and the country-made pistol in front of Jaipal's Gher. The gun shots were fired by Jasveer and Satish while Rajkumar held Ompal. His brother died on the spot due to gun shot injuries. He fled away from the scene of occurrence but soon returned with Rajaram and Billu who met him on the way. But on reaching the spot found the body of the deceased missing. The body was recovered by the police at 8 O'clock from Rajbaha (at point 'D' as per the site plan) situated about 1 km. away from the place (point C as per site plan) from where the body was thrown in the Rajbaha. Point 'C' in the site plan has been shown to be about 100 steps away from the place of occurrence (point X as per site plan). He has also proved the recovery memo of torch (Exhibit ka-2), i.e. the only source of light at the time of incident.
7. P.W. 2 Raja Ram has stated in his oral testimony that the deceased was his nephew and the said incident took place on 25.09.1995. At around 10 P.M., the complainant told him that the accused persons had shot Ompal dead in front of Jaipal's gher. A day before when Jasveer abused Ompal he had warned him from doing so. After this, Jasveer went home and came back with Raj Kumar and Satish and murdered the deceased. He soon thereafter accompanied with P.W.1 Ballu, and other villagers reached the place of occurrence where body of deceased was found missing and only blood was seen at the spot. They all tried to search the body but could not trace it . They did not go to the police station in the night for lodging an F.I.R. due to fear. Later on, the police recovered the dead body in the morning.
8. P.W. 3, Dr. N.P. Singh, has stated that on 26.09.1995 he conducted the post mortem of dead body of Ompal. The post-mortem report is Exhibit Ka-3 which described the injuries of the deceased as follows:
(i) Wound of entry 0.75 X 0.75cm., exit wound, on front of abdomen mid line 5 cm below epigestive notch . Wound direction backward and slightly upward. No Blackening and tatooing present . Inverted margin.
(ii) Fire Arm Wound of exit 1 cm. X 1 cm. on left side back. 2 cm outer to mid line at the level of T-6&7 vertebrae. Everted Margin.
(iii) Fire arm Wound of entry 1.4 X 1.2 cm. X cavity deep on left side back 2 cm outer to mid line at the level of T-6 and T-1 vertebrae directed to right forward and downward and 2 cm. Bleeding in an area of 6 cm X 3 cm around the injuries. Inverted margin.
9. P.W. 4, Chhatrapal, Head Constable has proved chik/F.I.R. (Exhibit ka-4) in Case Crime No. 421/95, under Section 302/201 of I.P.C. He has also proved G.D (Exhibit ka-5) in his testimony.
10. P.W. 5, Kartar Singh, Constable has stated that on 26.09.1995, he had taken the dead body of the deceased for post-mortem alongwith constable Ram Kishan.
11. P.W. 6, Man Singh Yadav, S.I. has proved inquest-report (Exhibit ka-6), photo-laash (Exhibit ka-8), documents related to post-mortem (Exhibit ka-10) and (Exhibit. ka-11).
12. P.W. 7, Vimal Kumar, Constable has proved the signature of S.I. R. P. Yadav on recovery memo, site plan and charge-sheet which are Exhibits ka-12, ka-13 and ka-14 respectively.
13. Incriminating evidence and circumstances were put to the appellants under Section 313 Cr.P.C. who denied the allegations of the prosecution. The appellants have categorically stated that since the deceased had enmity with a lot of people he might have been killed by any one of his enemies and after the recovery of the body they have been falsely implicated. It has also been stated that non have witnessed the alleged murder of the deceased.
14. The trial court held the appellants guilty of committing the murder of deceased Ompal and therefore convicted them under Sections 302 and 201 I.P.C. and sentenced them to undergo life imprisonment and also pay a fine of Rs.5,000/- and in default awarded further one year imprisonment to each and were also convicted under Section 201 I.P.C. to undergo rigorous imprisonment for two years and to pay a fine of Rs.3,000/-, in default six months imprisonment each. Aggrieved by the impugned judgment, the appellants preferred this appeal.
15. Learned counsel for the appellants submitted as under:-
(a) The entire prosecution case is totally based on the testimony of sole eye-witness P.W. 1, Om Pal Singh (informant). His testimony is highly contradictory and unreliable and is not corroborated by the medical and other evidence. P.W.1 (informant) and P.W. 2, Rajaram are interested witnesses as they are closely related to the deceased.
(b) The prosecution has not been able to establish sufficient motive for the crime and the motive suggested is exceedingly weak, meager and inadequate.
(c)The incident is alleged to have taken place during the night at 9:30 P.M. of 25.9.1995 but the F.I.R. was lodged the next morning i.e. on 26.9.1995 at 5.15 A.M. and no plausible and cogent explanation has been offered with regard to such inordinate delay thereby leading to an inference that the F.I.R. was lodged after much deliberations and consultations at the instance of the Gram Pradhan in whose house the informant remained for more than three hours after the incident.
(d)According to P.W. 1, the F.I.R. was written by the scribe on the dictation of the informant at around 12 O' clock in the intervening night of 25/26.9.1995 at the house of the Gram Pradhan. However, according to Raja Ram ( P.W. 2), the F.I.R. was scribed at the police station by Jasveer at around 5' clock in the morning.
(e) Investigating Officer was not produced before the trial court causing serious prejudice to the accused persons and no plausible explanation has been offered for his non-examination. His signatures on the documents were identified by the police pairokar . The place of occurrence as well as the presence of the sole eye witness (P.W.1) and the subsequent arrival of P.W. 2 at the place of the occurrence is highly doubtful.
(f) In the site plan neither the presence of the blood stains nor dragging mark/traces of blood trail was shown either at the place of the occurrence or on the pathway. No independent witness of fact has been produced in support of the prosecution story. The deceased Ompal had a long criminal history and it was quite possible that he might have been killed by one of his enemies at some unknown place. No recovery of any incriminating weapon allegedly used by the appellants has been made. Appellant Raj Kumar, who happens to be the father of other two appellants namely Jasveer and Satish Singh, was an old, aged persons and was assigned the role of carrying Farsa but neither any injury caused by Farsa was found by the Doctor nor any specific role was assigned to him in the F.I.R. In the inquest report the distance of police station has been shown to be 8 kms. from the place of the occurrence whereas in the chick report it was shown to be 6 kms. However, later on by overwriting the figure 6 kms. was changed to 8 kms.
(g)The incident is alleged to have taken place on 25.9.1995 at 9.30 P.M. and the F.I.R. was lodged next morning i.e. on 26.9.1995 at 5.30 A.M. Only one torch was mentioned as source of light in the F.I.R. as well as in the statement of P.W.1. and Fard Supurdaginama of the torch in favour of P.W. 1 was prepared on 30.9.1995 i.e. after nearly five days of the incident. Neither the I.O. ,who prepared the recovery memo nor any of the witnesses of the said recovery memo was produced before the trial court .
(h) The manner of assault as described by P.W. 1 in his statement is unnatural and not probable and is not corroborated by the medical evidence. The post mortem report with regard to rigor mortis, does not support the prosecution story. The incident had occurred at 9.30 PM on 25.9.1995. According to P.W. 1, the dead body was dragged by the appellants upto Rajbaha. Neither any mark of injury was found on the body of the deceased to show that it was dragged from the place of occurrence (marked as 'X' in the site plan) upto Rajbaha nor any trail of blood was found on the pathway. It is also improbable that the appellants would allow P.W. 1 to go scot-free as they had an altercation with them in the evening. It is highly unnatural and unbelievable that the dead body allegedly thrown into the Rajbaha, would have floated upto 1 Km.
(i) According to the prosecution story, the dead body was recovered from the Rajbaha by the police. The prosecution story with regard to meeting of P.W. 1 with Rajaram, Balloo and Billoo immediately after the incident is contradictory and is not corroborated by other evidence. Sukhbir and Yashpal, witnesses of recovery of alleged blood stained soil from the spot, were not produced before the trial court.
16. Per contra, Mr. Rajeev Gupta, learned A.G.A. For the State while supporting the impugned judgement and order of the trial court submitted that the prosecution has been able to prove its case to the hilt. The presence of blood on the place of the occurrence as well as near Rajbaha has been fully proved by the informant P.W. 1. Mere non production of the Investigating Officer before the trial court can not be a ground for acquittal of the accused persons because P.W. 7, Vinay kumar (pairokar of the case), who had worked with the I.O. at varius police stations,was acquainted with his signatures and handwriting had proved his signatures, as such the recovery memo of blood stains, site plan and charge and forensic report clearly proved the recovery of human blood from the place of the incident. No opinion can be formed on the basis of the rigor mortis because the duration of rigor mortis is very variable and depends upon a number of factor. Here in the present case since the rigor mortis passed off from the upper limb and was present in lower limb, therefore, the incident must have happened around 9.30 P.M. Since the I.O. was not available and the matter was pending since long, the pairokar, who was well acquainted with the signatures of the I.O., was produced. Therefore, no inference can be drawn that it had caused any prejudice to the accused. The F.I.R. was lodged promptly and no adverse inference can be drawn in this regard.
17. Heard Mr. I.K. Chaturvedi,learned counsel for the appellants and Mr. Rajeev Gupta, learned A.G.A. For the State and perused the record.
18. According to the F.I.R, the incident had taken place on 25.9.1995 at 9.30 P.M. and the F.I.R. was lodged on 26.9.1995 at 5.15 A.M. According to the F.I.R, the prosecution case against the appellants is that in the evening of 25.09.1995, Jasveer in intoxicated state abused the complainant Omkar Singh and his real brother Ompal (deceased), who warned him from doing so. Accused Jasveer left away threatening them with their life. Thereafter, when the complainant along with his brother was coming towards his house from the gher, Jasveer, Rajkumar and Satish armed with rifle, farsa and country-made pistol arrived near the gher of Jaipal. Jasveer and Satish fired at the deceased who died on the spot. The complainant fled away from the place of occurrence but returned later on with Rajaram and Billu but could not find the body of the deceased, though according to him a lot of blood was spread over the alleged place of occurrence.
19. As per prosecution story, the incident is alleged to have taken place on 25.9.1995 at 9.30 P.M. The entire prosecution story is based on the testimony of the sole eye witness (P.W.1), Onkar Singh, real brother of the deceased. Rajaram, uncle of the deceased was produced before the court as P.W. 2.He is alleged to have arrived on the spot after the incident. No independent witness has been produced before the court below although, according to the prosecution, a number of villagers namely Jasveer, Billoo and Balloo, reached the place of the occurrence after the incident on 25.9.1995. According to the prosecution,when the deceased along with the informant was heading from west to east direction, the accused persons arrived at the spot 'X' as shown in the site plan from the east side and fired at the deceased , as a result, he dropped down there and died. Since the case is entirely based on the testimony of the alleged sole eye witness (P.W.1) Omkar Singh, his testimony has to be examined very closely as to ascertain the truth.
20. According to the prosecution story, in the evening of 25.09.1995, Jasveer in inebriated state abused the complainant Omkar Singh and his real brother Ompal (deceased), who had warned him from doing so. Jasveer went away giving them life threats. Thereafter, when the complainant along with his brother was heading towards his house from the gher, Jasveer, Rajkumar and Satish armed with rifle, farsa and country-made pistol arrived near the gher of Jaipal. Jasveer and Satish fired at the deceased who died on the spot. It does not appeal to reason as to why P.W. 1 Omkar Singh, who had an altercation with the appellants in the evening, was spared by the appellants and was not even chased by the accused persons although the appellants allegedly had the similar motive against him also. This fact itself creates suspicion in the prosecution story with regard to the presence of the informant at the place of the incident.
21. It may further be noted that according to the prosecution story neither the accused persons nor the deceased was carrying any torch with them. Only P.W. 1 Omkar Singh is alleged to have been carrying one torch. The incident is alleged to have occurred in the pitch dark night at 9.30 P.M. in the month of September. No other source of light except the torch allegedly being carried by the P.W.1. has been shown. The record reveals that the Fard Supurdaginama with regard to the alleged torch, which was being carried by the P.W. 1, was prepared on 30.9.1995 i.e. after nearly five days of the incident. The record further reveals that the said torch was neither produced nor handed over by the P.W. 1 to the I.O. prior to 30.9.1995.
22. Upon further perusal of the testimony of the P.W.1 , it is apparent that in his statement recorded under section 161 Cr.P.C. he has stated that he had not carried the torch with him while going to the police station for lodging the F.I.R. as he had left the torch in his house. The said torch, according to the Fard Supurdginama, was produced after five days of the incident before the I.O. No reason has been given as to why the said torch was not delivered by the P.W. 1 to the I.O. immediately after lodging the F.I.R. and why the Fard Supurdaginama was prepared after five days of the incident. This fact also creates deep suspicion about the presence of the P.W.1 at the place of the incident and also about the truthfulness of his statement that he was carrying a torch with him.
23.There is yet another significant cause for consideration. According to P.W. 1 the alleged eye witness of the incident , immediately after the occurrence, he ran to call P.W. 2, Rajaram and Billoo whom he met on the way. However, later on, he stated that he had met his uncle P.W. 2 Rajaram from his gher which was about 1000 paces away from the place of the occurrence. As such the statement of P.W.1 is itself contradictory. On one hand he had stated that he had met his uncle Rajaram at his gher and on the other hand had stated that he met him on the way. P.W. 2, Rajaram has deposed that when he was going from his house to his gher, he had met P.W. 1 on the way , as such there is material contradiction as to where in fact the P.W. 1 had met P.W. 2, Raja Ram and Billoo immediately after the incident.
24. The relevant portion of the testimony of P.W. 1 Omkar in this regard is extracted below:
**jktdqekj us vkseiky dks idM+k FkkA xksyh yxus ls esjs HkkbZ dh e`R;q gks xbZ fQj eS t;iky o jkepUnz ds ?ksj ds ihNs ls tkdj jktkjke o fcYyw dks cqykdj yk;kA ;s jkLrs esa vkrs gq;s feys FksA rhuksa vfHk;qDrx.k ml le; vkseiky dks [khapdj ys tk jgs FksA eS xksyh ekjus ds ckn Hkkxk FkkA xksyh ekjrs gh Hkkx fy;k FkkA eqyfteku eq>s idM+us ds fy;s esjs ihNs ugh Hkkxs FksA Hkkx dj jktkjke o cyyw ds ikl x;kA ;s ?ksj ds xsV ij fey x;s FksA fcYyw jkLrs esa feyk FkkA jktkjke o cyyw dks ?ksj ls cqykdj yk;k Fkk o fcYyw jkLrs esa feyk FkkA eSus igys ,slk c;ku ugh fn;k Fkk fd jktkjke jkLrs esa vkrs gq;s feys FksA**
25. The relevant portion of the testimony of P.W. 2 Rajaram in this regard is extracted below:
**tc eS vius ?kj ls ?ksj ds fy;s pyk Fkk rks jkLrs esa 50&60 dne igys jkLrs esa feyk FkkA eaS [kkuk [kkus ds ckn ?ksj esa tk jgk FkkA ?kj ls ?ksj ds fy;s eSa vdsyk pyk FkkA tgkW ij vksadkj eq>s feyk Fkk ogkW ij eaS vdsyk FkkA vksadkj ljiap 'kh'kiky ds ?ksj ds ikl feyk FkkA 'kh'kiky ds ?ksj ds ikl gh crkbZ FkhA eSus njksxk th dks ;g c;ku ugh fn;k Fkk fd **chrh jkr djhc 10 cts gekjk Hkrhtk vkasdkj flag ?kj ij Hkkxrk gqvk vk;k vkSj crk;k fd xkao ds gh tlohj lrh'k o jkedqekj us ?kj vkrs le; t;iky flag ds ?ksj ds lkeus vkseiky flag dks idM+ dj xksyh ekj dj gR;k dj nhA** njksxk th us ;g c;ku dSls fy[k fn;k gSA eS bldh dksbZ otg ugh crk ldrkA cfYd eSaus mUgsa crk;k Fkk fd vksadkj eq>s tc eSa ?kj ls ?ksj dh rjQ dks tk jgk Fkk rc jkLrs eas vksadkj us eq>s crk;k FkkA**
26. Apart from the above, it is also pertinent to note that no trail of blood was found on the pathway between the place of occurrence marked as place 'A' and the place marked as 'C' in the site plan. The distance between the place of occurrence 'A' and Place 'C' i.e. Rajbaha has been shown to be 100 steps. This apart, the post mortem report also does not show that the deceased had suffered any injury because of dragging. No mark of dragging was found on the body of the deceased. The Doctor, who conducted the post mortem, specifically stated that no dragging mark was found on the person of the deceased.
27. The P.W. 1 in his testimony stated that he had seen the appellants dragging the dead body of the deceased from about 50-60 steps away from the scene of the occurrence and has also stated that he had seen them dragging the dead body when he came back after informing about the incident to his uncle Balloo. For ready reference, his statement in this regard is quoted below:-
**rhuksa eqyfteku }kjk esjs HkkbZ dks [khpus dh ?kVuk iwjc esa 50@60 dne dh nwjh ls ns[kh FkhA iqy dh rjQ [khap dj ys tk jgs FksA esjs rkÅ o fcYyw us ns[kk ;k ugh] eS ugh crk ldrkA 5&7 dne [khprs gq;s ns[kk FkkA rkÅ dks dg dj tc ykSVk rc [khprs gq;s ns[kk FkkA**
28. It is pertinent to mention here that in the F.I.R. there is no whisper at all about having witnessed the alleged dragging of the body by the convicts from the place of the occurrence upto Rajbaha . The story of dragging the body was introduced later on. The record further reveals that there are material contradictions in the statement of P.W.1 Omkar as to when he saw the accused dragging the body from the place of the occurrence to Rajbaha. At one place, P.W.1 stated that while running away from the place of occurrence, he saw the body being dragged. However subsequently at another place he stated that he saw the accused persons dragging the body when he returned alongwith P.W. 2 Raja Ram, Billoo and other villagers. However, none of the witnesses including P.W. 2 Raja Ram stated that they had seen the accused appellants dragging the body from the place of the occurrence when they reached the place of occurrence alongwith P.W.1, the alleged eye witness. Now the question arises that if P.W. 1 had seen the accused dragging the body from the place of occurrence, then, why was the body not traceable. No explanation on behalf of that was given by the prosecution witnesses. Therefore, the version of P.W. 1 that he had seen the appellants dragging the dead body of the deceased from the place of the occurrence upto Rajbaha which was around 100 paces is not worthy of credence and is liable to be discarded.
29.P.W. 1. in his testimony has also stated that Jaipal whose house was in the vicinity of the place of the occurrence was also present at that time, but neither he was produced before the court nor his statement was recorded under section 161 Cr.P.C. Thus, there is no evidence available on record that he was present on the spot.
30.There is one more important aspect which has not been taken note of by the trial court. P.W. 1 claims to be an eye witness of the alleged incident. Even if it is presumed that the P.W. 1 was present on the spot along with a torch, it would have not been possible for him to see the dead body being dragged from a distance of 50-60 steps in the pitch dark night. It also does not appeal to reason that P.W. 1, who was all alone and unarmed would even dare to stand in the vicinity of the place of the incident when the dead body was being dragged allegedly by the convicts, particularly when they (convicts) were allegedly carrying deadly weapons viz. Rifle and country made pistol and could have fired shots at P.W.1.
31.The manner of assault as described by the P.W. 1 also does not appeal to reason and appears to be highly improbable and unnatural. As per prosecution story, accused Raj Kumar, who was carrying a farsa, caught hold of the deceased from the front but as per medical report gun shot wound of entry was found on the front as well as at the back of shoulder and there was no blackening or tattooing. It shows that the shot was fired from a distance and not from a close range. It is highly unbelievable that an accused would catch hold of the deceased while the deceased being fired from a distance. Therefore, the manner of assault as alleged by the prosecution is unnatural , highly improbable and contrary to the medical evidence.
32.The P.W. 1 in his testimony has also stated that after the incident he ran towards the back side of the gher of Jaipal and Ramchandra which was to the north of the place of incident, to call Raja Ram and Balloo whom he met on the way. However, later on, in his testimony he stated that he ran towards the east to call his uncle Rajaram (P.W.2) from his gher. According to him, the said gher was around 100 steps away from the place of the occurrence . Therefore, on one hand he stated that he ran towards the north to call his uncle and on the other hand he stated that he ran towards the east. For ready reference, the testimony of the P.W. 1 in this regard is quoted below:
**?kVukLFky ls iqy dh rjQ nxM+k iwjc if'pe gSA t; iky dk ?ksj nxM+s ds mRrj esa gSA t;iky dk ?kj nxM+s ls feyk gqvk gSA blds cjkcj jkepUnz dk edku gS mlh ls feyk gqvk c`tiky dk vk/kk edku FkkA nxMs ds nf{k.k esa jkeohj dk ?ksj gSA blls feyk gqvk /keZiky dk edku gSA ?kVuk ds le; bu esa ls dkSu dkSu ?kj ij Fkk] eSus ugh ns[kkA esjs pkpk jktkjke ogh gS ftudk uke eSus viuh fjiksVZ esa fy[kk;k gSA ;g vius nwljs ?ksj esa gqDdk ih jgs FksA t;iky us Hkh ?kVuk ns[kh FkhA ?kVukLFky ls pkpk dk vk/kk ?ksj 40 dne dh nwjh ij gSA budks eSa cqykdj yk;k FkkA pkpk jktkjke dks nwljs okys ?ksj ls cqykdj yk;k Fkk og ?ksj iwjo fn'kk esa ,d gtkj dne dh nwjh ij gSA nxM+k 5] 5&1@2 ehVj pkSM+k gSA eS cqykus ds fy;s iwjo dh fn'kk esa nkSM+rk gqvk x;k FkkA fQj dgk fd mRrj dh rjQ Hkkx dj x;k FkkA ekSds ij [kwu fxjk FkkA eS ugh crk ldrk fd iqy rd [kwu fxjrk x;k Fkk fd ughA njksxk th us uD'kk cuk;k FkkA [khpus okyh txg njksxk th dks fn[kk nh FkhA iqy rd [khpus ds fu'kku Hkh fn[kk fn;s FksA jkLrs esa [kwu ugh FkkA esjh igyh ckr lgh gS fd jkLrs esa [kwu fxjk Fkk fd ugh] eS ugh crk ldrkA iqy ij [kwu lqcg ns[kk FkkA**
33. It is also worthwhile to mention that according to the prosecution story at the time of the incident the P.W. 1 along with the deceased was heading towards east and appellants were heading from opposite side i.e. from east to west side. However, in the F.I.R., it has been mentioned that after seeing the incident he immediately turned around and ran away but later on in his testimony he has stated that he ran away towards east in order to call the other witnesses namely Raja Ram, Balloo, Billoo and others. As per prosecution story, the alleged assailants were standing east of the place of occurrence. Therefore, it was most improbable that P.W. 1 would have dared to run towards the same direction where the assailants were standing. Therefore, the story set up by the prosecution that the P.W.1 after seeing the incident immediately ran away towards the east for calling his uncle Ramraj and other villagers does not appeal to reason on this Count also.
34.According to P.W. 1, the F.I.R. was lodged at around 12 O' clock in the intervening night of 25/26.9.95 and the F.I.R. was written by the scribe Jasveer Singh at the house of the village Pradan, however, according to P.W. 2, the F.I.R. was scribed at the police station at around 5 O' clock in the morning.Thus there are material contradictions with regard to the place and time where the F.I.R. was written.
35.According to the testimony of the P.W. 1, on the same day during evening hours some heated arguments took place between the accused Jasveer and informant and the deceased on the other hand, but still only the deceased was killed and not even a single scratch was caused to P.W. 1, who was stated to be present at the place of the incident and had seen the incident from a very close distance. Had P.W. 1 been near the spot at the time of incident, we see no reason as to why P.W. 1, with whom too the accused Jasvir had a heated quarrel in the evening, was spared while the deceased was brutally murdered. This fact also creates a serious dent in the prosecution story.
36.According to the prosecution story, the dead body was recovered from Rajbaha (marked as 'D' in the site plan) which was about 1 k.m. away from the place 'C' as marked in the site plan from where the body was allegedly thrown into Rajbaha and it allegedly had floated down the canal drainage (Rajbaha - a narrow tributary of a canal) to a distance of 1 km. When, P.W.1 had already witnessed the incident of murder then what was the need for the accused to conceal the body by dragging and throwing in the Rajbaha in pitch dark night from place " X" to place "C" (as marked in the site plan). Since Rajbaha is merely an artificial shallow and a narrow tributary to a canal with hardly any water current, it is difficult to presume that the dead body, if thrown into it, would float down to a distance of 1 k.m. from place 'C' to place 'D' .
37.According to the prosecution story, the proceedings of the inquest had commenced at 7.30 A.M. in the morning but according to the P.W. 1, the dead body was recovered at 8 O'clock. It was quite impossible that the inquest proceedings could have commenced before the recovery of the dead body.
38.It is also important to note that after the gun shot injuries by deadly weapon viz. Rifle and country-made pistol, the dead body must have been lying in a pool of blood, and in case if it was dragged till the Rajbaha, which was about 100 paces from the alleged place of the incident, Investigating Officer would have found a trail of blood but according to the evidence on record especially the site plan, neither there is any dragging mark on the body nor any trail of blood found from the place of incident 'X' right till the Rajbaha at place 'C'. Therefore, the prosecution story that the deceased was killed at place "X" and dragged from there to Rajbaha at mark 'C' does not inspire confidence and stands disbelieved.
39. According to the P.W. 2, the quarrel had taken place on the previous day of the incident i. e. on 24.9.1995 whereas , according to the P.W.1, the quarrel had taken place in the evening of 25.9.1995. It is also alleged that the incident of murder was witnessed by the P.W.1,but there is no evidence on record to show that he made any resistance or effort to save the life of his brother or he himself suffered any injury. The record further shows that the accused did not cause any injury or even a scratch to P.W.1 but allowed him to witness the incident just to create evidence against themselves. If the accused persons had murdered the deceased in the manner as alleged by the prosecution, there was no need for him to drag the dead body till the Rajbaha and throwing into it, for the purpose of concealing.
40.The I.O., who had allegedly recovered the blood from Kharanja after breaking the bricks was not produced before the court, as such the appellants were deprived of cross examining him with regard to exact place of the occurrence and also with regard to the absence of trail of blood on the pathway. Had the I.O. been produced before the court then , definitely, he would have disclosed that as to how and at what point of time did he trace out the dead body from the place marked as "D" in the site plan and whether the water current was sufficient to allow the dead body to float upto 1 km. in the Rajbaha. The manner of assault as disclosed by the prosecution is wholly unreliable and improbable. There are material contradictions in the prosecution story with regard to P.W. 1 meeting Rajaram and Balloo(Tau of the informant) immediately after the incident. It was further submitted that neither any bullet, cartridge, tickle or any weapon was found on the spot to show that the incident had occurred at place "X" as marked in the site plan. It has been stated by P.W. 1 that due to fear also he did not go to the police station at night but, in the same breath he also stated that he proceeded for the police station at about 3/4 O' clock in the morning whereas, according to P.W. 2 , he arrived at the police station at 5-5:30 A.M. According to P.W. 2, the F.I.R. was scribed at police station in morning by Jasbir, however, according to the P.W. 1, the F.I.R. was scribed at around 12'o clock in the night at the residence of Gram Pradhan by Jasbir. Thus, there are material contradictions with regard to scribing the F.I.R. and time of arrival of the P.W. 1 and P.W. 2 at the police station. This fact also creates a dent in the prosecution story.
41. According to P.W. 1, same day in the evening of the incident a quarrel had taken place hurling abuses loudly at each other lasting for nearly 15-20 minutes but there is nothing on record to show that any such incident had taken place in the evening of the fateful day. There is no independent witness of the locality to prove the said fact though the said quarrel is alleged to have taken place in the heart of the village. The story of quarrel between the parties appears to have been concocted just to attribute false motive to the accused persons of committing murder of the deceased. According to the P.W. 1, the I.O. had recorded his statement at the police station at around 5 O' clock in the morning immediately after registering the F.I.R. but according to the police, his statement was recorded on the next day. The story set up by the prosecution that after the incident PW. 1 remained busy in arranging fuel and in repairing tractor does not inspire the confidence as the police station was hardly around 6 km. from the village. A lame excuse appears to have been invented to explain the delay in lodging the F.I.R.
42. According to the prosecution story after the incident P.W. 1 remained at the house of the Gram Pradhan for about three hours and no plausible explanation has been offered by the prosecution that as to why he stayed for such a long time at the house of gram pradhan instead of going to police station for lodging the F.I.R. promptly or to make efforts of tracing the body of the deceased.
43. Since the record reveals that the deceased had a criminal history having enmity with a number of persons, therefore, the possibility of his being murdered by some unknown persons at some unknown place in the dark hours of the night can not be ruled out and just to give a colour to the case, the present prosecution story has been set up due to village party bandi.
44. Thus, after a close scrutiny of the evidence and weighing the testimony of the witnesses we find force in the contention of the learned counsel for the appellant that the presence of P.W. 1, the alleged eye witness, on the spot of murder was doubtful. The presence of the P.W. 1 appears to have been set up on spot just to work out the case against the accused.
45. From the discussions made in the foregoing paragraphs of this judgement, it is amply clear that there exists no reliable, cogent and credible evidence against the appellant. The findings recorded by the trial court in this regard suffers from legal infirmity.
46. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the appellants is wrong and the findings recorded by the Court below are perverse, erroneous and can not stand the scrutiny of law. The judgment passed by the trial court is based on a complete misreading of the case and misconception of the legal position relevant to the matter and has not considered the evidence on record in the right perspective. The prosecution has not been able to prove the case beyond doubt. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellant.
47. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the appellants are entitled to the benefit of doubt .
48. Consequently, both the aforementioned criminal appeals No. 7200 of 2009 and 7199 of 2009 are allowed.
49. The impugned judgment and order dated 23.11.2009 passed by the Additional Session Judge, Court No.6, Meerut State of U.P. Vs. Jasveer Singh and others in S.T. No. 214 of 1996, State Vs. Jasvir Singh and others convicting the accused appellants under section 302 and 201 I.P.C., is hereby set aside and the appellants namely Jasveer Singh, Rajkumar and Satish Singh are acquitted of the charges levelled against them. The appellants are on bail. They need not surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability.
50. Let a copy of this judgement along with the trial court record be sent to the court concerned for compliance.
51. Let a copy of this Judgement be kept on the record of the connected Criminal Appeal No.7199 of 2009, Raj Kumar Singh Vs. State Of U.P. Order Date:8.5.2017 MLK