State vs Shyam Singh And Others on 2 August, 2019

[Cites 11, Cited by 15]

Allahabad High Court

State vs Shyam Singh And Others on 2 August, 2019

(Delivered by Rajiv Gupta, J) The present Government Appeal has been filed against the judgment and order dated 22.7.1983 passed by the Special Judge, Ghaziabad in S.T. No. 162 of 1980, by which all the accused respondents have been acquitted for the offence punishable under Sections 147 and 302/149 IPC.

Briefly the prosecution case as unfolded in the first information report is that one Shyam Singh, who is distantly related to the first informant being his nephew, had involved him in the murder case of a young girl on account of enmity and since then there has been daggers drawn enmity between two.

It is further alleged that on 16.6.1979 at about 7 p.m, the informant's grand son Yashpal after delivering food at the tube-well was returning back sitting in a buggi belonging to one Satyapal and the first informant is also alleged to have been following him on foot and when the said buggi reached near the field of Mansha Ram, the accused respondents Shyam Singh, Ghoomi and Brahm Singh all sons of Dhara Singh, Yashpal and Iqbal sons of Shyam Singh and two unknown persons exhorted to take revenge and accused respondents Yashpal and Iqbal fired from their country made pistol upon his grand son Yashpal. After receiving gun-shot injuries, victim- Yashpal ran towards tube-well of Asha Ram where he was encircled by them and fired upon by country made pistol and daranti. The said incident is alleged to have been witnessed by Mansha Ram, Satyapal and Kiran Pal and number of other persons.

It is further alleged in the FIR that after the said persons left the scene of incident, the first informant brought the victim in a injured and unconscious state in his gher, however by the time he reached the gher, the victim expired and his dead body is lying in his gher. On the basis of said written report, Exbt. Ka-1, the first information report was lodged at the police station- Modi Nagar, District- Ghaziabad vide Case Crime No. 335 of 1979, under Sections 147, 148, 149, 302 IPC against five nominated accused persons and two unknown persons. The said case was registered vide G.D. Report No. 45, carbon copy whereof is marked as Exbt. Ka-3. After lodging of the first information report, the investigation was taken over by Veer Sain Yadav (P.W.-5) in whose presence the case was registered and he recorded the statement of the first informant at the police station and thereafter he alongwith first informant reached at his gher where the dead body was lying, however, the panchayatnama was not conducted on the same night but on the next day at 7 a.m., the panchayatnama was prepared, which has been marked as Exbt.Ka-5 and the statement of witnesses Mansha Ram, Satyapal and Kiran Pal were recorded and spot inspection was made at the pointing out of first informant. Site plan was prepared which has been marked as Exbt. Ka-7. The Investigating Officer had also collected blood stained, leaf of sugarcane and prepared its fard and in the said field a country made pistol and a daranti alongwith missed cartridge and empty cartridge was found and its fard recovery memo was prepared. Blood stained and plain earth was also collected from the adjoining maize field and recovery memo was prepared, which is marked as Exbt. Ka-11.

The accused respondents surrendered on 22.6.1979 and 2.7.1979 respectively and their statement were recorded. The Investigating Officer after completing the panchayatnama, handed over the dead body to the constable, who had taken it to the mortuary and the autopsy was conducted on the person of the deceased by Dr. Farid Uddin on 17.6.1979 at 4 p.m. As per the post-mortem report, following ante-mortem injuries were found on the person of the deceased:-

1. Multiple circular lacerated wound 1 c.m. x 5 c.m. x skin deep on outer and front part of left upper arm and shoulder. No blackening or burning present in an area of 15 c.m. x 11 c.m.

2. Multiple circular lacerated wound 1 c.m. x 0.5 c.m. x skin deep of right side chest in an area of 6 c.m. x 2 c.m., upper part, pellet are not felt. No burning or blackening present.

3. Multiple circular lacerated wound in an area of 15 c.m. x 14 c.m. of both side face. Size of each wound is 1 c.m. x 0.5 c.m. x skin deep. Pallet present in some of the wound. No blackening or burning present.

4. Multiple circular lacerated wound on left side of neck in an area of 7 c.m. x 3 c.m. size 1 c.m. x 0.5 c.m. x skin deep. Pallets present in some of wound. No blackening or burning present.

5. Incised wound 2.5 c.m. x 1 c.m. x bone deep on left side on head 2 c.m. above left eye brow

6. Lacerated wound 11 c.m. x 3 c.m. x bone deep on back of right side head with T. swelling 2 c.m. x 8 c.m. above right ear. No blackening or burning. No sign of wound of entry present.

7. M. contusions in an area of 40 c.m. x 12 c.m. on right side of back, upper and middle part.

8. Incised wound 6 c.m. x 1.5 c.m. x muscle deep

9. Abrasion 1 c.m. x 0.5 c.m. on left lumber region Internal examination revealed partly digested food in the stomach. Bladder was empty. Fractures of occipital and right parietal bones were noticed. According to Dr. Farid Uddin, cause of death was shock and haemorrhage as a result of injury in internal organs and brain.

Counsel for the accused respondents had admitted the genuineness of the post-mortem report and as such its formal proof was dispensed with and the said document was marked as Exbt. Ka-15. After collecting the entire evidence and recording the statement of the witnesses, charge -sheet was filed by S.I. K.P. Sharma on 10.9.1979. On the basis of said charge-sheet cognizance was taken by the Magistrate and thereafter the case was committed to the Court of Sessions and registered as S.T. No. 162 of 1980 (State Vs. Shyam Singh & others), who made over the case to the court of 2nd Addl. Sessions Judge, Ghaziabad for trial of the case. The trial court on the basis of material on record and after affording opportunity of hearing to the prosecution as well as accused framed charges under Sections 147 and 302/149 IPC. The accused respondents abjured the charges and claimed trial.

The prosecution in order to bring home the guilt against the accused respondents produced as many as five witnesses. Harkesh (P.W.-1) is the first informant, Mansha Ram (P.W.-2) and Kiran Singh (P.W.-3) being the eye witnesses, Ram Autar (P.W.-4), who prepared the check FIR and registered the case and Veer Sain Yadav (P.W.-5), the Investigating Officer.

After completion of the prosecution evidence, all incriminating facts and material were put to the accused under Section 313 Cr.P.C., the accused respondents denied the facts and material and claimed false implication due to enmity and tutored witnesses Mansha Ram and Kiran Singh, who are interse related. The defence did not produce any evidence.

Learned Special Judge, Ghaziabad after hearing the submissions of learned counsel for the parties and scrutinising the evidence on record, acquitted the appellant under Section 147 and 302/149 IPC. Hence this appeal.

Heard Sri I.P. Srivastava, learned AGA-I for the State. Although the case was taken up in the revised list but none appeared on behalf of the accused respondents.

Learned counsel for the appellant on behalf of the State has submitted that prosecution witnesses have supported the prosecution case in all the material particulars and the defence has not able to point out any material contradiction in the statements, which goes to the root of the case. The medical completely corroborates prosecution story, yet the trial court without appreciating the entire evidence on record in the right perspective has illegally recorded the finding of acquittal, therefore, the impugned order of acquittal be set aside and the appellants be convicted.

On the perusal of the entire evidence brought on record by the prosecution and considering the statement of the witnesses, it is evident that the prosecution has not been able to bring home the guilt against the accused respondents beyond reasonable doubt, particularly in respect of the presence of witnesses at the time of incident and the material contradictions in their statements. When we consider the statement of Harkesh (P.W.-1), we find that his presence at the time of incident is highly doubtful. As per his testimony, Yashpal, his grand son, on the date of incident had gone to deliver food at the tube-well and at the relevant time, the first informant was also present there. When Satyapal passed on the chak road in his buggi, Yashpal also sat in the said buggi and left, the first informant states that when his buggi had reached 30-40 metres then he also left the field for his house on foot and followed the victim to the place of incident where he was done to death and the said incident is alleged to have been witnessed by him, however, the said conduct of the first informant does not stand reason at all.

It is specific prosecution that the first informant also left the field almost immediately after the victim Yashpal had left on a buggi driven by one Satyapal, however the said witness instead of sitting in the buggi followed him on foot and the reason assigned for not accompanying the victim also in the buggi is that the pathway from the field to his house was uneven and on account of his old age he used to feel uneasy travelling in a buggi. On being questioned in this respect he has categorically stated in his statement that usually he comes from his house to field in his buggi and only sometimes on foot and he used to travel on the same route, thus the explanation given by P.W.-1 for not accompanying the victim in the buggi do not inspire any confidence and creates a serious doubt about his presence. The testimony of the said witness is further falsified by the circumstance that he in his first information report had categorically stated that after the assailants had left the scene of incident he brought his grand son in an injured and unconscious state in his gher and by the time he reached at his gher the victim had died whereas in examination in chief he has categorically stated that when he reached near the victim Yashpal he was breathing and thereafter after bringing a buggi from his house was going to a village doctor, however on the way he died. The said statement is completely inconsistent to that of version given in the FIR and makes his testimony unreliable.

Further, it is notable that in the first information report, the first informant has categorically stated that five nominated persons and two unknown persons were continuously assaulting the victim, however in his testimony before the trial court, he has stated that only five persons were assaulting him while two unknown persons remained inactive throughout the incident, even the said factum of seven persons assaulting the victim has not been corroborated either by P.W.-2 or by P.W.-3 and they in their statement have categorically stated that the victim was assaulted only by five persons and there is no whisper about the presence of these two witnesses, who are mentioned in the statement of P.W.-1 Harkesh.

The prosecution story as narrated in the statement of P.W.-1 that the victim accompanied Satyapal in his buggi to the place of incident also become doubtful from the circumstance that when the assailants had left the scene of incident, P.W.-1 is said to have reached near the victim and found him in an injured and unconscious state and then he had gone to his house to bring a buggi and had brought him in the said buggi at his village. Had Satyapal being present in the buggi at the time of incident, then certainly he would have brought the victim to his village in his buggi and there was no occasion to get his buggi from his house for bringing the victim in his village. This particular circumstance further creates a serious doubt about the veracity of the prosecution story and the presence of the witnesses at the time of incident.

Moreover, the prosecution story becomes further doubtful from the circumstance that though the victim is said to have accompanied Satyapal in his buggi and was present at the time of incident and has also been shown as a witness but the prosecution has failed to produce him as a witness and the best evidence has thus been withheld by the prosecution which makes the prosecution story further doubtful.

Now coming to the prosecution case so far as the other two witnesses, namely Mansha Ram and Kiran Singh are concerned, it is evident from the testimony that they are not independent witnesses rather highly partisan and a chance witnesses as field of Mansha Ram is situate just adjacent to that of P.W.-1 and he used to draw water from his tube-well. Moreover both the said witnesses in their testimony has clearly stated that they reached at the place of incident at 7 P.M. in the late evening just to drink water from tube-well of Asha Ram where the incident is said to have taken place though it has come in evidence that there is a tube-well in the chak belonging to the brother of Mansharam and even there is a tube-well in the chak belonging to Harkesh and the chak of P.W.-2- Mansha Ram is also situate there.

From the evidence it is also clear that the tube-well of Asha Ram is situate at a distance of two furlongs from the chak of Harkesh and there is absolutely no reason for him to cover this distance of two furlongs just to drink water from the tube-well of Asha Ram. The reason assigned for the presence of P.W.-2 at the place of incident thus become highly doubtful and his testimony does not inspire confidence.

Now analysing the testimony of P.W.-3 on the anvil of truthfulness we find that he too is not an independent witness but a chance witness as he too in order to show his presence at the place of incident states that he too had come to drink water from the tube-well of Asharam though it has come in evidence that Kiran's tube-well existed at a short distance. It is too much of a coincidence that both P.W.-2 and P.W.-3 had reached the place of incident just for the purpose of drinking water from the tube-well of Asharam particularly when others tube-well existed near their field. Even P.W.-3 could not deny the fact that his father in-law is maternal uncle of Yashpal's mother and P.W.-3- Kiran Singh for the first time has directly come before the Court to depose against the accused-respondents and even his statement under Section 161 Cr.P.C. has not been recorded and being a chance witness his testimony also does not inspire confidenc, therefore, his testimony has rightly not been relied upon by the trial court.

The Apex Court in Satbir v. Surat Singh, (1997) 4 SCC 192, Harjinder Singh vs. State of Punjab, (2004) 11 SCC 253, Acharaparambath Pradeepan vs. State of Kerala, (2006) 13 SCC 643, Sarvesh Narain Shukla vs. Daroga Singh, (2007) 13 SCC 360 and Jarnail Singh vs. State of Punjab, (2009) 9 SCC 719 has held that the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence. In Shankarlal vs. State of Rjastha, (2004) 10 SCC 632 has held that deposition of a chance witness whose presence at the place of incident remains doubtful, should be discarded.

It is further germane to point out that even according to prosecution own case there was daggers drawn enmity between the accused respondents, who are members of the same family being real brothers, father and son as the deceased alongwith his brother Vedpal who was involved in the murder case of the sister of accused respondent's Yashpal after committing rape and subsequently in the said case the other co-accused Vedpal was convicted. In the back drop of this daggers drawn enmity between the two, the possibility of the accused respondents being falsely implicated in the present case cannot be ruled out.

The trial court while recording the finding of acquittal against the accused respondents has considered each and every aspect of the said matter and in the backdrop of the reason assigned above has rightly taken a view acquitting the appellants and the view taken by the trial court cannot be said to be perverse and illegal and is a possible view. The Apex Court in catena of decision has held that if the view taken by the trial court is a possible view then it could not be reversed in an appeal against acquittal.

In view of the facts and circumstances of the case, the view taken by the trial court is just, proper and legal and do not call for any interference by this Court.

The appeal is devoid of merit and is, accordingly, dismissed.

Order Date :- 2.8.2019 KU

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Allahabad High Court