Allahabad High Court
Ramakant & Another vs State Of U.P. on 21 July, 2010
Author: Yogendra Kumar Sangal
Bench: Yogendra Kumar Sangal
- -
Reserved
A.F.R.
Court No. 10
Case :- CRIMINAL APPEAL No. - 230 of 1996
Petitioner :- Balwant Singh & Another
Respondent :- State Of U.P.
Petitioner Counsel :- A.K.Tripathi,Amar Nath Dubey,Jyotindra
Misra,Pramod Kumar Pandey
Respondent Counsel :- Govt. Advocate
And
Case :- CRIMINAL APPEAL No. - 264 of 1996
Petitioner :- Ramakant & Another
Respondent :- State Of U.P.
Petitioner Counsel :- A.K.Tripathi
Respondent Counsel :- Govt. Advocate
Hon'ble Yogendra Kumar Sangal,J.
Both these appeals were filed by the accused persons of S.T. No. 334/1989 under Sections 307, 307/34, P.S. Kuriwar, District Sultanpur against the judgment and order dated 21.06.1996 passed by IVth Additional Session Judge, Sultanpur convicting the accused appellants Balwant Singh and Lal Bahadur under Section 307 IPC and Ramakant and Shiv Kumar under Section 307/34 IPC. They were sentenced seven years R.I. (Balwant Singh and Lal Bahadur) and two years R.I. (Ramakant and Shiv Kumar) respectively.
As per prosecution case, informant Brahamdeen Shukla submitted a written report at P.S. concerned with the averments that he had purchased land from Jagannath Pandey situated at Haroda Bazar and he is constructing house on the same. Accused Balwant Singh and Lal Bahadur got executed a fake sale-deed in their favour of the same land. His house exit their from last eight years. On 25.05.1986 Balwant Singh, Lal Bahadur, Ramakant and Shiv Kumar at 1:00 P.M. in the day came at his house and tried to take forcibly possession. He and his brother Ramroop
- -
obstructed them. Balwant Singh and Lal Bahadur with an intention to kill them fired shot causing injuries to Ramroop. On their hue and cry, Rampal, Laxmi Narayan, Jagannath reached there and they rebuked the accused persons. By jeep he brought his brother Ramroop injured and unconscious position at P.S. On this report, a case was registered against all the four named accused under Section 307 IPC. Police started investigation in the matter. Injuries of the injured Ramroop were examined by the doctor. He prepared the injury report. Site plan of place of occurrence was prepared. Blood stain and Sadamitti and blood stain cloths of injured were collected by the investigating officer and memo were prepared. Statement of witnesses were recorded. After concluding the investigation, charge-sheet was submitted against all the four accused.
As the case was under Section 307 IPC was exclusively triable by the Court of Session so after taking cognizance in the matter, learned Magistrate has committed the case to the Court of Session. Trial of the accused persons was started. Both the accused persons Balwant Singh and Lal Bahadur were charged for the offence under Section 307 IPC and Ramakant and Shiv Kumar were charged for the offence under Section 307/34 IPC but they have pleaded not guilty and claimed their trial.
On behalf of the prosecution, statement of six witnesses were recorded. PW-1 Brahamdeen informant of the case; PW-2 Ramroop injured of the case and PW-3 alleged independent witness of the case Laxmi Narayan have tried to support the prosecution case. PW-1 has also proved the written report Exhibit-Ka-1. PW-4 A.S.I. Brijesh Shanker Pandey. On the written report Exhibit-Ka-1 entered the case in G.D. and prepared the chik report and he proved the same Exhibit-Ka-3 Chik report and entry of G.D. Exhibit-Ka-4. In his cross-examination, he has stated that a report of cross case was also lodged on the same day and on the
- -
basis of the written report he prepared the chik report Exhibit-Kha-1 and entered the case in G.D., copy of Exhibit-Kha-2. PW-5 is the investigating officer of the case, he had given details of the investigation in his oath statement and proved the documents prepared by him during the course of investigation. PW-6 Doctor Rajnikant Gupta stated that he has not examined the injuries of the victim. Another witness Doctor Ashok Mohan again numbered as PW-6 stated that on 25.05.1986 he examined the injuries of Ramroop and he had given details of injuries in his oath statement and proved the injury report Exhibit-Ka-9.
In their statement under Section 313 CrPC, accused persons have denied the correctness of the prosecution case and evidence and accused Balwant has stated in his written statement submitted later on that he and Lal Bahadur have purchased the house in dispute eight months before from Jagannath through sale-deed. At that time, the house was in dilapidated conditions. He had demolished the same and new constructions of house were raised. He had rented out the same to Ramroop for Rs. 60/- per month for five months. After expiry of the period of 5 months when he asked to Ramroop to vacate the house, he on one pretext or the other has not vacated the house. Some altercation took place between them on this account. On 25.05.1986 at about 2'O clock in the day when he was returning to his village in the company of Gyan Pratap, when they reached near the house in dispute, Ramroop came out and stated that he will not vacate the house. His brother Brahamdeen, Pramod, Kaushal Kishore also came there and started abusing to him and Gyan Pratap and beaten them with kicks and fists. Brahamdeen fired shot with country made pistol causing injury to Gyan Pratap. Ramroop has also fired shot with country made pistol inflicting injuries to him. Again Brahamdeen tried to fire but he has taken him his grip. The country made
- -
pistol fell down on the earth. He picked up the same. Ramroop was also firing shots so in his defence shot was fired by him causing injuries to Ramroop. Ramawtar, Ram Kalap Singh, Surendra Pratap Singh of the locality are eye-witnesses of the occurrence. Hiding himself on foot, he came at police station and lodged the FIR. His injuries and also injuries of Gyan Pratap were examined by the doctor and he prepared the report. With an intention to usurp the house and to save their skin from his case, this false case has been lodged against him. After the occurrence, Ramroop has filed a civil suit to give colour to this case, Ramroop has changed the spot position. In defence one witness DW-1 Jagannath Prasad was examined who tried to support the case of the defence upto this extent that he executed sale-deed of the land and dilapidated kotha in it favour of Balwant Singh and Lal Bahadur for a consideration of Rs. 12,000/- and handed over the possession of the same to Balwant Singh and Lal Bahadur. After demolishing the kotha both of them have raised the constructions there. He has not executed any deed in favour of Ramroop and Brahamdeen regarding the land in dispute and never handed over the possession of the land to them. No other witness was examined in defence. Documentary evidence were filed on behalf of both the parties to support their respective cases which shall be discussed later on as and when required.
After going through the evidence available on record and hearing parties counsel and State counsel and after going through the record, learned trial court hold guilty and sentenced appellants as above. Aggrieved by this judgment and order aforesaid two appeals have been filed. Both the appeals were consolidated for hearing as these arisen out of the same judgment and order.
Heard Sri C.B. Pandey learned counsel for the appellants in both the
- -
appeals and learned AGA for the State and perused the record.
Undisputedly cross cases of S.T. No. 334/89 State vs. Balwant and S.T. No. 333/89 State vs. Pramod were pending in the same court i.e. IVth Additional Session Judge, Sultanpur and decided by the court concerned on the same date. It is also undisputed between the parties that accused persons of Case No. 333/89 were acquitted by the trial court. When it was enquired from the learned AGA as well as counsel for the appellants whether any appeal against the acquittal order in S.T. No. 333/89 was filed or not, they both have stated that no such appeal has been filed.
Undisputed facts are that incident has taken place on 25.05.1986 in the noon near the house in which admittedly Ramroop and Brahamdeen were in possession on the date and time of the occurrence. Both the parties have lodged the FIR regarding the occurrence placing their respective cases before the police of P.S. concerned. On the FIR lodged by Balwant (Copy of the same is available on the record as Exhibit-Ka-1 and proved by PW-4), a case under Section 307 IPC and 323 IPC of S.T. No. 158A/86 was registered againt Ramroop and Brahamdeen and sons of Ramroop and Brahamdeen (not named). After investigation in this case Crime No. 158A/86, a charge-sheet was submitted by the police and Ramroop and etc. have faced the trial for the offence under Section 307 IPC in the Court of IVth Additional Session Judge, Sultanpur in S.T. No. 333/89 but all the accused were acquitted by the Court concerned. Neither from the appellants side nor from the State side copy of the judgment in cross case in S.T. No. 333/89 was brought on the record. No appeal has been filed against the acquittal order in S.T. No. 333/89, it is also undisputed fact. From the record of S.T. No. 334/89 and after going through the FIR lodged by Balwant Exhibit-Kha-1 and also from his written statement Balwant under Section 313 CrPC, it is clear that it is not disputed to the
- -
accused appellants that shot was fired by Balwant Singh on the spot causing injuries to Ramroop. From the report of injuries of Ramroop prepared by the doctor Exhibit-Ka-9 and also detailed by him in his oath statement (examined as PW-6 Doctor Ashok Kumar), it reveals that he received two firearm injuries. Injury No. 1 multiple plates 0.3 cm. x 0.3 cm. spread in 26 cm. x 37 cm. area on the left side of the chest and stomach having blackness and blood was oozing from this injury. Another injury was also on the forearm which was also caused by firearm. One more injury was found on the body of this victim i.e. lacerated wound 0.5 cm. x 0.2 cm. skin deep on the right side of chin and blood was oozing from this injury. Doctor had opined that injury No. 1 and 2 may be result of one fire. This shows that firearm injuries were found on the body of the victim Ramroop involving his chest and abdomen which are vital parts of the body. This injury on the body of Ramroop was inflicted as stated by the prosecution witnesses or as by defence story as told by Balwant in his written statement, it is to be seen in the matter. Learned AGA argued that defence story was not believed by the trial court in S.T. No. 333/34 and the accused persons of that case Ramroop and Brahamdeen etc. were acquitted by the Court. The acquittal of Brahamdeen and Ramroop etc. in cross case and also not filing appeal strengthened the prosecution story of the present case. This argument of learned AGA cannot be said without force in the facts and circumstances of the case.
Undisputedly the occurrence has taken place on 25.05.1986 in the noon. As per prosecution case, this occurrence taken place at 1.00 PM. On the other hand, as per accused person's case occurrence took place at 2.00 PM. There is no material difference in the time of the occurrence. As regard the place of occurrence also there is no material difference in the given story of both the parties. As per the present case, when the
- -
informant and injured Ramroop were on the roof of the house, accused persons fired shots from the ground floor which caused injuries to the Ramroop. On the other hand, as per case of the accused side when Balwant and Gyan Pratap were going on the way nearby the house in dispute Ramroop and other came out from the house in dispute and they fired short causing injuries to the Balwant and Gyan Pratap. Presence of the accued persons of the present cases in both the matters is stated at the same place i.e. in front of the house in dispute. Blood was oozing from the injuries of the Ramroop, it is clear from the injury report prepared by the doctor which is exhibit-Ka-9 on the record. Certified copy of the injury report of accused side i.e. Balwant Singh and Gyan Pratap are also available on the record and genuineness of the same were not disputed on behalf of the prosecution side but contents of the report were denied. In cross case two doctors were examined who proved the injuries reports of Balwant and Gyan Pratap as PW-3 and PW-6. Certified copy of their statements were also filed on behalf of the accused. By perusal of these injuries report and copy of the statements of doctors, it reveals that from the injuries of both these injured i.e. Balwant and Gyan Pratap doctor has not reported that blood was oozing. Investigating officer had collected the blood stain and Sada Mitti from the spot and that place was shown by him the roof of the house in dispute not the ground and in land in front of the house in dispute. No witness of the fact was examined on behalf of the accused persons to support the case of the defence, although from the statement of Balwant under Section 313 CrPC, it reveals that independent witness of the occurrence were present on the spot. Balwant Singh or any other accused has also not dared to come forward in the Court to state on oath after seeking permission under Section 315 CrPC to say that occurrence did not take place in the same way as stated by the prosecution
- -
witnesses and place of occurrence is not roof of the house but the same was the land in front of the house. Any blood strain were found at the place of occurrence stated by the Balwant in his statement under Section 313 CrPC, no such evidence either oral or documentary is made available by the accused on the record.
Gyan Pratap as per own case of the accused also received injuries in the occurrence. He was not made accused in the present case. He was the safest or best witness who can very well be produced and examined on their behalf and who can tell how the occurrence took place. Moreover, as earlier said accused Balwant has named three other independent persons of the locality who saw the occurrence but to the reasons best known to the accused, neither the Gyan Pratap nor any one out of three persons present on the spot were examined and they were withhold on behalf of the accused. In cross cases where there are two different stories how the occurrence taken place if accused persons failed to produce any witness of the occurrence in support of their case, learned AGA argued that this suggests that they are not coming with clean hands and they are withholding the evidence and presumption can be raised against them that either they were not present on the spot and have not seen the occurrence or occurrence did not take place in the same manner as stated on behalf of the accused side so they did not come forward to support the case of the accused. In the facts and circumstances of the case, this argument of learned AGA also cannot be said without force.
As per own case of appellant Balwant Singh has snatched or picked up the country made pistol used by Balwant in the occurrence and he fired shot from the same causing injuries to Ramroop. Where is this country made pistol and why he has not deposited the same at police station when he went there only on the same day for lodging the report, it is also not
- -
sufficiently explained on behalf of the accused.
Admittedly PW-1 and PW-2 Brahamdeen and Ramroop were in possession of the house in dispute. As per prosecution case they were in possession as owner of the same and it is their claim that they have raised the construction there after taking the land from Jagnanath under agreement to sale. DW-1 admits that there is custom in the area that on the basis of agreement to sell possession is delivered and construction are raised later on sale-deeds are executed. He admits that he entered in such transaction in other cases. On the other hand as per accused case Ramroop was in possession of the house as a tenant on behalf of Balwant and Lal Bahadur @ Rs. 60/- per month, only for 5 months the house was rented out to him and when he was asked to vacate the same on one pretext or the other he has not vacated the same. As per case of the accused they have purchased the land of the house from Jagannath and raised the construction there. DW-1 Jagannath was examined. He has tried to support the case of accused side saying that he sold the land of the house along with dilapidate kotha in it for a consideration of Rs. 12,000/- and executed the sale-deed in this regard. Certified copy of the sale-deed was also filed on behalf of the accused. If we go through the contents of the sale-deed we find that in the name of consideration of Rs. 12,000/- at the time of execution of the sale-deed nothing was paid to the seller. Rs. 4,000/- were adjusted towards the loan earlier borrowed by the seller from the purchaser and rest Rs. 8,000/- were also not paid at that time and two months time was allowed to the purchaser to pay this rest amount. Later on, this 8,000/- paid, but no receipt filed. It is also mentioned in the sale-deed that after execution of the sale-deed if any dispute arose regarding the ownership etc. of the sold property the purchaser shall be responsible for the consequences of the same not the
- -
seller. Both these statements in the sale-deed are unusual. Learned AGA argued that both seller and purchasers were knowing at the time of the execution of the sale-deed that already this land has been handed over to Ramroop and Brahamdeen by the seller Jagannath and without paying a single penny as consideration, the sale-deed was executed by Jagannath as both were taking that purchaser will forcibly take the possession of the land and on the date of occurrence they tried to take the possession but they did not succeeded so they committed this offence. No sufficient explanation was given by Jagannath DW-1 in his oath statement why such facts were mentioned by him in the sale-deed which are unusual. Neither any rent note nor any rent receipt for letting the house in dispute to Ramroop by Balwant was filed. No independent witness was examined on behalf of the accused to support their this case. Again for the sake of repetition, Balwant had not dared to examine himself and to face the cross-examination on the point of letting out the house in dispute to Ramroop. Record shows that civil suit No. 763/87 was filed by Balwant Singh in the competent court of Munsif-III, Sultanpur regarding the house in dispute and an application was also moved for issuing temporary injunction during the pendency of the suit. Copy of the order passed by the civil court rejecting this application is available on the record where the learned Munsif had observed as follows :-
"Wadigan Ne Jan Bujh Kar Vivadgrast Bhumi Va Makan Ko Kraya Karke Ek Vivad Ko Janam Diya Hai. Pratiwadigan Ka Nirman Kariya Moke Par Jari Hai Yadi Uprokth Nirman Kariya Band Kar Diya Gaya To Isse Wadigan Ko Nahi Appitu Pratiwadigan Ko Hi Apurtaniya Kshti Hogi"
- -
Record also shows that an appeal against that order was also filed by the Balwant and the same was dismissed. This all prima-facie shows that story of letting out the house to Ramroop by Balwant does not find support from the evidence available on the record. DW-1 Jagannath had also admitted that from last five to six years Ramroop and Brahamdeen are in possession of the house in dispute. In his statement under Section 313 CrPC Balwant had also admitted that material changes in the constructions of the house are made by Ramroop. Copy of report of commissioner filed in the civil suit is also available on the record supporting the case of the prosecution about independent possession of Ramroop and Brahamdeen on the house in dispute. From the copy of plaint of civil suit or also of report of commissioner available on record also shows that now material changes are there in construction on the spot. In these circumstances if defence story of telling house to Ramroop was not relied upon by the trial court, there is no illegality, invalidity and impropriety in it.
Presence of accused persons near the house in dispute where admittedly PW-1 and PW-2 were residing with their family, having firearm with them shows that they came there with preparation to commit offence. It is not probable and believable that when PW-1 and PW-2 were in possession of the house, they will unnecessarily check Balwant and Gyan Pratap when they were passing on the road which goes in front of the house in dispute and they will go upto this extent that they will make attack on them unnecessarily and will use deadly weapon to inflict injuries to them. PW-1 and PW-2 Brahamdeen and Ramroop in their oath statement have given detail that how occurrence taken place. PW-3 Laxmi Narayan has supported their on oath version giving details of the occurrence. Why this Laxmi Narayan has stated against them, it is not
- -
sufficiently explained on behalf of the accused. After the occurrence immediately matter was reported to the police by the Balwant naming all the accused and witnesses. Case of the prosecution finds support from the facts detailed in the FIR and also injury report of Ramroop. It is correct that some facts are missing in the FIR but it is established law that all details of occurrence are not to be given in FIR. Brother of the informant received injuries on vital part of body. Blood was oozing from the injuries. We can see what will be in mental condition of informant. All relevant and important facts are there in the FIR which is prompt one. It is established law that if incident is reported promptly possibility of cooking false story ruled out. PW-1 Brahamdeen had explained how and in what manner he got saved himself from the shot fired by the accused persons. As per case of the accused Balwant has also received firearm injury in the occurrence but the statement of Balwant and this story of the defence does not find support from the medical evidence filed on behalf of the accused. Statement of Doctor (certified copy filed on behalf of the accused in cross case) shows that he admits that no firearm injury was found on the body of the Balwant at the time of his examination. It is said that some injuries were also found in the body of Gyan Pratan by the another doctor. If he had also received injuries in the occurrence, why he has not got medically examined himself from the same doctor who had examined injuries of Balwant, it is something un-natural in the story of the defence. The time when both the injured of the defence side received injuries, there is difference in the statements of the doctors. Doctor had admitted in his oath statement that injuries found on the body of the Balwant were such a nature that these can be manipulated by the free hand. He was advised for X-ray, but he had not got X-rayed his injuries to the reasons best known to him. It is in the statement of the doctor (copy of the statement filed on
- -
behalf of the accused) that wife of one of the accused Ramakant was employed in the same hospital where Gyan Pratap was examined. Learned AGA argued that possibility cannot be ruled out that with the help of wife of the accused Ramakant, Gyan Pratap get prepared injury report, although he was not having such injuries on his body. Why this inordinate delay in examination of injuries of Gyan Pratap by the doctor, it is also not sufficiently explained on behalf of the accused. If he would have been present on the spot, he will not be named by the informant of present case in the FIR, it is also not believable. There is also delay in lodging the FIR on the part of the accused. Story of the defence side was not believed by the competent court in cross case and accused of that case were acquitted. No appeal has been filed on behalf of the accused against the acquittal order. Learned AGA argued that this also shows that defence case was not believable and rightly not accepted by the trial court. This is a case of indiscriminate firing on the spot from the side of the accused persons to create an atmosphere of terror there to press Balwant and Ramroop to vacate the house. Indiscriminate firing on behalf of the accused and causing injuries to Ramroop involving his vital part of the body shows their intention that they come prepared with an intention to kill. The learned trial court giving detailed and sufficient reasons and appreciating the evidence of parties available on the record, arrived at the conclusion that accused persons were aggressor in the offence. Marks of plates were found by the investigating officer on the wall and door house of the victims. He had also collected the plates spread on the spot and memo of the same was prepared. Role of all the accused in the occurrence is clear from the evidence available on the record. Learned trial court in the facts and circumstances of the case rightly held the accused Balwant and Lal Bahadur for the offence under Section 307 IPC and other accused
- -
Ramakant and Shiv Kumar for the offence under Section 307/34 IPC. After hearing the accused persons on the point of sentence, learned trial court awarded sentence to them. No interference in the findings of the conviction and sentence awarded to the appellants by the trial court is required by this Court. Both these appeals have no force and liable to be dismissed.
Appeal No. 230 of 1996 Balwant Singh and Lal Bahadur vs. State and Appeal No. 264 of 1996 Ramakant and Shiv Kumar vs. State are hereby dismissed. Sentence awarded to the accused persons by the trial court are hereby confirmed. Accused persons are not present today. Let a copy of the judgment and trial court record be sent to the trial court forthwith. Learned trial court will make all efforts to procure the attendance of the accused appellants and after their arrest or in case surrender after taking them into custody send them to jail to serve out the sentence awarded. Compliance report will be submitted by the trial court to this Court within two months.
Order Date :- 21.7.2010 Rakesh