Allahabad High Court
Pappu Yadav And Another vs State Of U.P. on 10 February, 2023
Bench: Anjani Kumar Mishra, Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 RESERVED Case :- CRIMINAL APPEAL No. - 7184 of 2006 Appellant :- Pappu Yadav And Another Respondent :- State of U.P. Counsel for Appellant :- Pankaj Kumar Shukla,Dharmendra Kumar Chaubey Counsel for Respondent :- Govt. Advocate,Ramanuj Tripathi WITH Case :- CRIMINAL APPEAL No. - 7558 of 2006 Appellant :- Naresh Yadav Respondent :- State of U.P. Counsel for Appellant :- Pankaj Kumar Shukla,Amit Daga,B.P. Verma,D.K. Dewan,Mayank,Prem Prakash,Ramanuj Tripathi,Suresh Chandra Pandey,V.K.Maheshwari,Yogesh Srivastava Counsel for Respondent :- Govt. Advocate,Ramanuj Tripathi Hon'ble Anjani Kumar Mishra,J.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
The appellant, Pappu Yadav in Criminal Appeal No. 7184 of 2006 Pappu Yadav and another Vs. State of U.P. had already expired on 16.12.2017 as such his appeal has been abated vide order dated 10.2.2022. Now the instant appeal survives only on behalf of appellant Kare .
The connected Criminal Appeals has been filed against the judgment and order dated 18.11.2006 passed by Additional Sessions Judge, Court No. 8, Mathura in S.T. NO. 363 of 1996, State Vs. Naresh Yadav and others arising out of case crime no. 222 of 1996, P.S. Kotwali, District Mathura, whereby the accused appellant, Naresh Yadav has been convicted only under section 302 IPC, whereas the other appellant Kare Yadav has been convicted under section 302/34 I.P.C. Both the appellants have been sentenced to undergo life imprisonment and a fine of Rs. 5,000/-each. In default of payment of fine both the appellants shall undergo one year additional rigorous imprisonment whereas the other appellant Kare in the connected appeal has further been convicted under sections 307/34 I.P.C. and awarded sentence of ten years rigorous imprisonment and a fine of Rs. 5,000/-each . In default of payment of fine to undergo one year additional imprisonment, while acquitting both the accused-appellants under section 25 Arms Act.
As per the allegations unfolded in the F.I.R., it is alleged that the first informant, Dhannu son of Pooranchandra, is a resident of Hanuman Gali. A few days prior to the incident, his elder brother, Govind had serious altercation with Naresh Yadav consequent thereto on 2.3.1996 at about 11.15 a.m, he alongwith his elder brother Govinda had reached Holigate crossing for some work and were standing near Agrawal Dharmashala where suddenly from the second gate of Agrawal Market, Naresh Yadav, Pappu Yadav and Kare all sons of Giriraj Yadav armed with country made pistol reached there and started hurling abuses. Appellant Naresh Yadav and Pappu with an intention to kill them opened fire. The shot fired by Naresh Yadav hit Govinda and he fell down, however, the shot fired by Pappu, missed the target. It is further alleged that no sooner the co-accused Kare could open fire, an alarm was raised to apprehend him. On the alarm being raised his cousin Mohan Lal son of Kailash Chandra, and Raju son of Mahendra Singh reached at the place of incident. The assailants by putting them under fear of death by country made pistols made their escape good through the lane. The victim Govinda was thereafter taken to hospital where he died. It is further alleged that near the place of incident, Ramesh Jogi son of Shyam Lal was also standing who was on inimical terms with Govinda. It is suspected that Ramesh Jogi hatched the conspiracy in killing Govinda. On the basis of a written report (Exbt Ka 1) a F.I.R. has been lodged at P.S. Kotwali, Mathura vide case crime No. 222/96 under section 302/120-B I.P.C. marked as Exbt.Ka.2. The corresponding G.D. for lodging the F.I.R. has also been drawn vide G.D. Report No. 37 at 12.10 p.m., carbon copy whereof has been marked as Exbt. Ka 3.
After registration of the F.I.R., the investigation of the case was handed over to Pooran Singh Pathak (Inspector), P.W.9 who recorded the statements of Head Constable, Sajjan Singh, first informant, Dhannu Yadav and witnesses Mohan Lal and Raju. On the pointing out of first informant, Dhannu, the Investigating Officer prepared the site plan which has been marked Exbt. Ka 18. On the same day, i.e. 2.3.1996, Sub Inspector, G.S. Chaturvedi, P.W.7 was sent to Mortuary to conduct the inquest on the person of the deceased which has been marked as Exbt. Ka 6 alongwith the said inquest, the Sub-Inspector also prepared Photo Nash and Challan Nash, police form no. 13, form no. 33, report C.M.O which have been marked as Exbt. Ka 7 to Ka 9 alongwith said papers one G.D. Report No. 40 dated 2.3.1996 being the death memo sent from the hospital through ward boy and proved by P.W. 4 Dr. C.C Sharma who conducted the post mortem marked as Exbt. Ka 12 have also been annexed.
After the inquest the body of the deceased was sealed and dispatched for autopsy. An autopsy was conducted by P.W.4 at about 9.30 p.m. on 2.3.1996. The said autopsy report has been proved by P.W.4 and marked Exbt. Ka 4.
The Doctor conducting the autopsy had noted the following injuries on the person of the deceased:
Firearm wound of entry 01 x 01 cm thoracic cavity deep on the right side back of the chest middle part 04.5 cm below the interior angle of scapula 6 cm lateral to the midline with blackening and tatooing around the wound, wound is directed anteriorly and superiorly.
Fire wound of exit 0.2. X 0.2 cm thoracic cavity deep communicating with injury no.1 on the right side front of the chest, 0.4 cm from nipple at 11' O clock position. No blackening and tatooing seen. Margins are everted.
The cause of death has been noted to be shock and haemorrhage as a result of anti mortem injuries.
The victim is said to have died at District Hospital, Mathura at 11.15 a.m. on 2.3.1996.
The investigation was conducted by P.W.9 who visited the spot, prepared site plan at the pointing out of P.W.1 and recorded the statements of the witnesses and thereafter investigation was transferred on 11.3.1996 to P.W.6 who vide order dated 26.3.1996 had taken the accused Pappu and Kare on police remand and on 27.3.1996 on their pointing out got recovered country made pistols and catridges, on their pointing out, and drawn its recovery memo which has been marked as Exbt. Ka-13 and subsequently on 3.4.1996 had got recovered 315 bore country made pistol alongwith 315 bore cartridges on the pointing out of the appellant Naresh Yadav and drawn its recovery memo which has been marked as Exbt. Ka. 15 and thereafter after concluding the investigation had submitted the charge sheet against three appellants on 22.4.1996 which has been marked as Exbt. Ka 17. Learned Magistrate after taking cognizance on the charge sheet committed the case to the court of sessions for trial. The court of sessions, vide order dated 30.11.2000 framed the charges against the appellant, Naresh Yadav under section 302 I.P.C. and the appellant Kare under section 302/34 and section 307/34. The appellants abjured the charges and claimed to be tried.
Prosecution evidence:
During course of trial, the prosecution has examined as many as nine witnesses. Their testimony is noticed below:
P.W. 1, Dhannu Yadav, is the first informant: He has stated that the incident is dated 2.3.1996. Prior to the said incident, there was some altercation between his brother Govinda on one hand and Naresh Yadav, Pappu Yadav and Kare, on the other. Consequent thereto on 2.3.1996 at about 11-11.15 a.m, he alongwith his elder brother Govinda had reached at Holigate for some work, while they were standing at Agrawal Dharmashala, Naresh, Pappu and Kare all sons of Giriraj came there from the second gate of Agrawal Market hurling abuses. All of them were armed with country made pistols and they with an intention to kill, opened fire upon them. The shot fired by Naresh hit Govinda whereas the shot fired by Pappu missed the target. It is further stated that no sooner co-accused Kare could open fire he raised an alarm and consequent thereto his cousin Mohan Lal alongwith Raju reached there, however, the assailants made their escape good by extending death threats to them and hurling abuses. On account of shot which hit Govinda, he fell down and was taken to the hospital where he was declared dead. At the time of incident, Ramesh Jogi was also present at the place of incident who instigated others to fire shot and that he is certain that Govinda was killed, in conspiracy with him.
After Govinda was declared dead at the hospital, he reached the police station to lodge the report which was scribed by Murari Lal and has been marked Exbt. Ka. 2. During course of examination he has stated that he alongwith Murari Lal had gone to lodge F.I.R and reached there at about 11.45 a.m. and gave the report at about 12.15 p.m. During cross examination, he has categorically denied to have dictated in the F.I.R., that at the place of incident, Ramesh Jogi was also standing who was on inimical terms with Govinda and in his conspiracy Govinda had been killed. From the police station he came back to hospital and thereafter again came to the police station and thereafter reached at the place of incident. During his cross examination he has categorically stated that when he alongwith his brother reached there. The police personnel had already reached the hospital and the police personnel interrogated him as to how the incident occurred and he disclosed entire facts to them who thereafter asked him to get the F.I.R. registered. Consequent thereto he had gone to lodge the F.I.R. To quote "जब मैं अपने भाई के साथ अस्पताल पहुंचा था तब पुलिस अस्पताल में आ चुकी थी। पुलिस ने मुझसे उसी वक्त पूछताछ की थी कि यह कैसे हुआ। मैंने पुलिस को सारी बातें बता दी। पुलिस ने कहा कि रिपोर्ट लिखा आओ। तब मैं रिपोर्ट लिखाने चला गया।"
He has further stated that earlier altercation between his brother and assailants occured about 20-25 days back over possession of 'Bagichi" which was claimed by both the parties, however, no report in respect of the said incident was lodged. He has further stated that on the date of incident he alongwith his brother had left their house at about 11.00 a.m. and were standing near the Agrawal Dharmashala for drinking juice and while juice was being prepared, the assailants reached there and opened fire, however, he does not know the juice shop nor name of its owner. The said juice shop is in the Agrawal Market. The juice shop is not towards the Holigate in Agrawal Market but on the other side where they were standing. By the time, shots were fired, they could not drink the juice. He has categorically stated that the police was informed, the place of incident, to be the juice shop. The shot was fired from a distance of 1-1/2 paces by extending their hands. It is further stated that only one shot was fired at the place of incident which hit his brother and thereafter the assailants made their escape good. The said witness at this stage states that infact at the time of incident they were heading towards Antapada where their uncle (Tau) used to reside. However, on the way they had stopped for drinking juice at the juice shop. On further cross examination he has stated that in his statement on 11.7.2002 he has wrongly stated that at the time of incident they were heading towards Holigate for some work. The said witness has further stated that within ten minutes of the incident he had reached the hospital by Rickshaw and had taken his brother in the emergency where the treatment started and he was directed to leave the emergency Within 4-5 minutes of their reaching the hospital his brother was declared dead, Murari Lal met him on the way when he was going to the police station. He has further stated that his cousin Mohan Lal used to live in Antapada and had reached the place of incident within 1-2 minutes of his raising alarm. Mohan Lal had come after leaving his buffaloes at Yamuna. The said witness, however, categorically denied the suggestion that he had not seen the incident and some other person had taken his brother to the hospital and he has lodged false case on account of land dispute. He further denied the fact that on the information sent by the hospital, the police reached at the hospital.
P.W.2, Mohan Lal, is the cousin of the deceased. He stated that the incident is dated 2.3.1996 at about 11.15 a.m. After leaving his buffaloes at Yamuna, he reached Holigate near Agrawal Market and was purchasing fruits. The assailants, Naresh, Pappu and Kare reached there through the second gate of Agrawal Market while Dhannu Yadav and Govinda were standing at the juice shop. Naresh, Pappu and Kare were armed with country made pistols and started hurling abuses. Naresh with an intention to kill Govinda opened fire, which hit him. Pappu also fired. Dhannu Yadav ran to apprehend Kare, however, all of them left the place of incident after hurling abuses. On being shot, Govinda fell down and was taken to the hospital by Dhannu Yadav. Ramesh Jogi was also standing at a distance of 10-15 paces away from the place of incident.
During cross examination, this witness has categorically stated that Ramesh Jogi was not accompanying the assailants Naresh, Pappu and Kare and they had nominated Ramesh Jogi as witness, however, the police made him an accused. It is further stated that the said witness is engaged in the task of keeping buffaloes and owns 6-7 buffaloes. On the penultimate day at about 10.00 a.m. had taken them at Yamuna river for leaving them there. After leaving his buffaloes there he reached the place of incident for buying fruits. It is categorically stated by said witness that though there are number of fruit sellers on Arya Samaj Road which falls on the way to Holigate, however, he did not purchased fruits there and travelled all the way to Holigate to purchase fruits. He has further stated that he does not know the name of fruit seller, however, the said fruit seller was standing near Shankar Mithaiwala in Agrawal Market. He further stated that the assailants came from the gate near the hospital where juice shop is situated and not from the Holigate. He further stated that while he was buying fruits the incidentoccured. On being countered, if the fact of buying fruits at the time of incident was disclosed to the police, he states that he had disclosed this fact to the police, however, if the said fact, does not find mention in his statement, then he can not disclose its reason. He has further categorically stated that at the time of buying fruits, he has neither seen Dhannu Yadav nor Govinda nor the assailants. As soon as the shot was fired there was commotion and the people started running helter-skelter. To quote "मैं फल खरीद रहा था मैंने धन्नू को गोविन्दा को मुलजिमो को नहीं देखा। गोली चलते ही भगदड़ हुयी थी। सब लोग भागने लगे। भगदड़ में लोग चारो तरफ भागे थे।"
It is further stated that he reached at the hospital within ten minutes, however, did not inform the family members of Govinda nor went there. From the hospital he went to Kotwali alone and informed the police that Govinda has been shot at near Holigate and came to the hospital. He has further stated that Dhannu Yadav and Govinda are his cousins, however, he has not put Govinda on to a Rickshaw. To quote.
"धन्नू व गोविन्दा मेरे चाचा के लड़के है। मैंने गोविन्दा को रिक्शा में नहीं रखवाया।"
When the shot was fired Dhannu Yadav was facing the juice shop whereas Govinda was facing Dhannu Yadav. The said witness has denied the suggestion that he has not witnessed the incident and was not present at the scene of incident and on account of dispute over landed property or on account of being related with the victim he is falsely deposing in the case. However, he admitted the fact that at the time of incident, the market and all the shops had opened and hundreds of persons were coming and going. He has further categorically stated that he could not disclose as to how long Govinda remained lying at the place of incident after receiving gun shot injury.
"गोविन्दा गोली लगने के बाद कितनी देर वहा पड़ा रहा मैं नहीं बता सकता।"
P.W.3, Sajjan Singh, is the Head Constable of the police station concerned who has drawn the cheek F.I.R. on the basis of written report and corresponding G.D. Entry, carbon copy whereof has been marked Exbt. Ka 3. He has further stated that no information about the death of Govinda was communicated to him by any other mode nor any information was received from the District Hospital and the case was registered on the basis of F.I.R. He has further stated that the documents 4A/34 and G.D.No. 40 dated 2.3.1996 though available on record was not received by him. He has further stated that reference of this document G.D. No. 40 was not referred in the G.D. drawn by him. He denied the suggestion that F.I.R. was ante timed and that he has not drawn the G.D. at the police station relating to the incident as per G.D. Rules.
P.W.4, Dr. C.C. Sharma is the person who had conducted the autopsy. He has proved the autopsy report and contents thereof alongwith the other annexures annexed with the post mortem report which has been marked as Exbt Ka-5 to Ka-12 which are in his hand writing and duly signed by him. The cause of death has been noted to be shock and haemorrhage as result of ante mortem injuries. He has stated that the injuries found on the person of the deceased could be caused by fire arms on 2.3.1996 at 11.15 a.m. During cross examination he has categorically stated that the injury no.1 could be caused only when the shot is fired from behind the deceased and Injury nos. 1 and 2 could not be caused when the person making fire is either on the right side or on the left side of injured person (deceased).
P.W.5, Suneel Kumar Agrawal is the witness of inquest and had signed the inquest. He has stated that the name of the deceased was disclosed to him after he has already signed the inquest. In his cross examination he has stated that apart from him the police had got the inquest singed by 2-3 other persons and thereafter the dead body was sealed and taken away. He has denied not to have signed inquest at the hospital and further denied that the police got his signature at the police station.
P.W.6, is the IInd Investigating Officer who stated that he remained posted at Kotwali, Mathura between 17.3.1996 to 22.4.1996 and on 11.3.1996 the investigation of the said case was handed over to him. On 22.3.1996 he had recorded the disclosure statements of accused Pappu and Kare in District Jail, Mathura where they confessed the crime and on 26.3.1996 obtained their police custody remand and got recovered a 315 bore country made pistol and two live cartridges of 315 bore on the pointing of the appellant Pappu from the grove belonging to Parshuram whereas the appellant Kare remained seated in the jeep itself. Thereafter he got recovered a 303 bore country made pistol and a 303 live cartridge kept in green polythene at the pointing out of Kare and drawn its recovery memo which is marked as Exbt. Ka 13 and recorded the statements of witnesses Subhash and Lekhraj and got lodged a separate case No. 349 of 1996 and 350 of 1996 under section 25 Arms Act against Pappu and Kare. Again on 29.3.1996 he recorded the statement of other appellant Naresh who confessed the crime and made a disclosure statement to get recovered the country made pistol by which he killed Govinda. Thereafter on 2.4.1996 after obtaining his police custody remand got recovered a polythene bag after digging out the soil near electric crematorium situate near Yamuna river and from the said polythene a country made pistol of 315 bore and one 315 bore live cartridge was recovered and its recovery memo was drawn which has been marked Exbt. Ka. 15 and thereafter statements of witnesses Phoolchandra and Gopal was recorded and on 22.4.1996 the charge sheet was submitted which has been marked as Exbt. 17.
During cross examination, he has stated that F.I.R. of the case was registered under section 302, 120-B I.P.C. whereas the charge sheet was submitted under section 302, 307, 120-B, 504, 506 I.P.C. He has admitted that the death memo of the deceased Govinda brought by Ward boy, Harswaroop of district hospital registered vide G.D. No. 40 dated 2.3.1996 was at police station, Kotwali, mentioning therein that one Krishna Bhagwan Yadav has brought the deceased Govinda in injured condition at the hospital was perused by him. However, he has not recorded the statement of Krishna Bhagwan Yadav and Ward Boy Harswaroop which has been marked Exbt. Ka 12. He has further stated that it is true that in Exbt. Ka 12 the factum of accidental fire arms injury to the deceased has been mentioned. To quote "जी०डी० संख्या 40 दि० 2.3.96 थाना कोतवाली मीमो सूचना मृतक गोविन्दा में उल्लिखित हर स्वरूप वार्ड बाय तथा चुटैल को अस्तपाल ले जाने वाले कृष्ण भगवान के ब्यान मैंने दर्ज नहीं किये थे लेकिन मैंने इक्ज क-12 का अवलोकन किया था यह सही है कि इक्ज क-12 में एक्सीडैटल फायर आर्म्स इन्जरी मृतक को आना दर्ज है। यह सही है कि इनका ब्यान पूर्व आई०ओ० द्वारा भी नहीं लिया गया था।"
He has further admitted that even earlier Investigating Officer has not recorded their statement. The said witness has further stated that the country made pistol recovered was not sent for ballistic examination. He has further admitted that only one shot was fired in the incident and other shot missed the target. He has denied suggestion that no investigation was made by him nor recoveries were made by him and further denied the factum that the statements of the accused persons were not recorded by him and false recoveries were shown.
P.W. 7, S.I. G.S. Chaturvedi has conducted the inquest proceeding on the instruction of the Presiding officer. The inquest has also been proved by him and has been marked as Exbt. Ka. 6. Alongwith inquest he has also prepared police form No. 13, report C.M.O, Photonash, Challan Nash which has marked as Exbt. Ka 7 to 9.
During cross examination he has stated that all the documents which he had stated above were made available to him by 12.30 p.m. and thereafter no paper was made available to him. He has further categorically stated that Exbt. Ka 12 was also sent by him alongwith inquest and the said Exbt. Ka 12 was furnished by the police station. He has further denied that at the time of conducting inquest, Check F.I.R. and G.D. was not available with him and without said documents he has conducted the inquest. He has further denied the fact that by the time, inquest was held, F.I.R. was not registered and the same is ante timed.
P.W.8 is constable who has taken dead body and handed over the same for autopsy. During cross examination he has stated that death memo sent by hospital was with the Investigating Officer and autopsy was conducted at 4.30 p.m. P.W.9 is the first Investigating Officer and he in his examination in chief has stated that on 2.3.1996 on the written report of first informant, Dhannu, F.I.R. was lodged against Naresh, Pappu, Kare and Ramesh Jogi under section 302, 120-B and the investigation of the case was handed over to him. He proved various stages of investigation. He has further stated that he visited the spot and recorded the statement of witnesses and prepared site plan which has been marked Exbt. Ka 18 and thereafter he was transferred. During cross examination, on his attention being drawn to Exbt. Ka 12 (death Memo) he has stated that he does not remember whether during course of investigation he had perused the said document. However, he has categorically stated that during investigation he has not recorded the statement of Krishna Bhagwan and was ignorant of the fact that the victim was taken to hospital by one Krishna Bhagwan. He admitted the fact that in Exbt. Ka 12, accidental fire arms injuries causing death of the deceased has been mentioned, however, he can not make any comment on it. He has further stated that site plan was prepared by him at the pointing out of first informant. He has further categorically stated that the place of incident, where the deceased was hit, is in front of the first gate of Agrawal Market. To quote "घटना स्थल जहॉ गोली लगी अग्रवाल सभा मार्केट के प्रथम गेट के सामने है।"
He has further admitted that the juice shop was not situated at the first gate. He has further admitted that near the juice shop he has neither shown the presence of the victim nor first informant nor he recorded the statement of any person running the juice shop nor juice shop was pointed out by the first informant or the witnesses. However, he has stated that he had recorded the statement of Shailendra Singh who was owner of the juice shop, however, his name was not disclosed either by the first informant or the witnesses nor said Shailendra Singh has given any eye witness account of the incident.
He has further admitted that the place of incident is main market and shops are situated on both the sides of the market but none of the shop keepers has given any eye witness account of the incident. No blood was found at the place of incident nor any pellets were recovered. To quote "प्रथम गेट के पास जूस की कोई दुकान नहीं थी। यह सही है कि मैने द्वितीय गेट में से अभियुक्तगण का निकल कर आना नक्शा नजरी में दर्शाया है। यह सही है कि जूस की दुकान के पास न तो मैने घायल का खड़ा होना दर्शाया और न वादी का और न ही किसी गवाह का खड़ा होना दर्शाया है। मैने किसी जूस वाले का ब्यान नहीं लिया था। और न किसी जूस वाले की दुकान वादी या गवाह ने बताई। फिर कहा मैने जूसी ड्रिंक वाले शैलेन्द्र सिंह का ब्यान लिखा है। शैलेन्द्र सिंह का नाम मुझे वादी या गवाह ने नहीं बताया था और न ही शैलेनद्र सिंह ने मुझे घटना की कोई चश्मदीद साक्ष्य दी थी।
घटना स्थल मुख्य बाजार है दोनो तरफ दुकान है किसी दुकानदार ने घटना के सम्बन्ध में चश्मदीद साक्ष्य नहीं दिया। मौके पर मुझे रक्त नहीं मिला था। न कोई टिकली गोली छर्रा मिला।"
He has further stated that on 2.3.1996 he recorded the statement of Mohan Lal, however, he in his statement has not stated that he had reached at the place of incident for buying fruits. To quote "मुझे मोहन लाल ने यह नहीं बताया था कि वह घटना स्थल पर फल खरीदने आया था। यह सही है कि मोहन लाल ने मुझे व्यान दिया था कि रमेश जोगी ने कहा था कि मार साले को।"
He has further denied to have taken in his custody the clothes of the deceased. He has further denied the fact that the deceased died on account of accidental fire arm injury, however, he in collusion with the first informant has falsely involved the accused person in the instant case and has accordingly recorded the statements.
Statement of accused under section 313 Cr.P.C.
The incriminating circumstances appearing in the prosecution evidence was then put to the appellants for recording the statements under section 313 Cr.P.C. The appellant Naresh denied the incriminating circumstances appearing in the prosecution evidence and claimed that he is disabled man and can not move without support. On the date of incident had infact gone for treatment and has been falsely implicated. The appellant Kare also denied the incriminating circumstances against him and stated that on account of inimical terms he has been falsely implicated.
In defence of the appellant, the statement of Dr. Hoti Lal Rtd. NHML Hospital has been recorded as D.W.1. In his statement he has stated that at the time of incident he was posted as Medical Officer/Lecturer in NHMC hospital at ENCT Delhi. On his attention being drawn to the paper no. 192/1,2,3,4 he stated that the said papers are medical papers relating to patient Naresh Yadav and on 2.3.1996, patient Naresh Yadav having O.P.D. Parcha and hospital No. 5871 had appeared before him for treatment. He was having fracture injury in his right leg and was given medical treatment by him. The relevant medical papers relating to the treatment of appellant Naresh Yadav was in his own hand writing and signature and he had advised him for admission which are marked Exbt. Kha 1. The said Naresh Yadav again came for medical treatment on 2.3.1996 on O.P.D. Parcha No. 5871 and he also had undergone treatment on 25.3.1996 which has been proved by him and marked as Exbt. Kha 2 and Kha 3. He has further categorically stated that the date on which medical treatment was given to him, the patient was not in a position to move independently nor was in a position to stand and was in fact suffering from fracture and permanent disability. During course of cross examination he has stated that the distance between Delhi and Mathura can be covered within two hours, however, has categorically denied the fact that false treatment papers of the patient has been prepared by him.
Trial Court finding:
The trial court has found that the prosecution has been able to establish its case beyond reasonable doubt and held that the F.I.R. is not ante time and the testimony of P.W. 1 and P.W. 2 who are brother and cousin of the deceased can not be held to be that of partisan witnesses, rather they are natural eye witnesses of the incident as such their testimony can not be disbelieved. The explanation tendered by the appellant was inadequate and false as such they are liable to be convicted. However, the factum of recovery of country made pistol and cartridges at the pointing out of two appellants has not been found to be proved and both the appellants have been acquitted under section 25 of Arms Act.
Submission on behalf of the appellants:
Learned counsel for the appellants has submitted that the prosecution has miserably failed to prove the case against the appellants. However, the trial court without appreciating the evidence in right perspective has illegally recorded the finding of conviction against the appellants. It has been further submitted by learned counsel for the appellants that the two prosecution witnesses P.W.1 Dhannu is the real brother of the deceased whereas P.W.2 is his cousin and they are most related/interested and partisan witnesses, however, trial court by placing implicit reliance upon their testimony has illegally recorded the finding of conviction against the appellants, though their presence at the time of incident is highly doubtful.
Learned counsel for the appellant has further submitted that even according to the prosecution own case, the incident is said to have taken place in broad day light at about 11.15 a.m. in the main market where number of shops are situated, yet not a single independent witness of the said market has been produced. Even the testimony of juice shop owner where the deceased alongwith P.W.1 is said to have been standing for drinking juice has not been produced which renders the prosecution story highly doubtful. The recovery shown to be made at the pointing of both the appellants have itself been doubted by the trial court and as such both the appellants have been acquitted by trial court for the offence under section 25 of Arms Act.
Learned counsel for the appellants has also drawn attention of the court to the document which has been exhibited as Ka 12 and its corresponding G.D. No. 40 dated 2.3.1996 whereby the information has been sent to the police station Kotwali, Mathura regarding death of Govinda. In the said document, it has been clearly mentioned that the said victim/deceasesd was in fact brought to the hospital in an injured condition by one Krishna Bhagwan Yadav son of Kailash Chandra, resident of 961, Antapada, P.S. Kotwali, District Mathura at 11.40 a.m who died at 11.50 a.m. as a result of accidental fire arm injury. Conspicuously, the said memo does not mentions the fact that the victim was brought by first informant P.W.1, Dhannu Yadav as alleged by P.W.1. However, the trial court has not appreciated the said document in right perspective and by illegal placing implicit reliance upon the testimony of P.W.1 and P.W.2 has recorded the conviction of the the appellants which is bad in the eyes of law and is liable to be set-aside.
Submission on behalf of State:
Learned A.G.A. appearing for the State has submitted that the prosecution has proved its case beyond reasonable doubt against the appellants and the testimony adduced by P.W.1 and 2 inspires confidence and has rightly been relied by the trial court in recording the finding of conviction against the appellants. In the absence of cogent explanation from the appellants, the trial court is justified in convicting the accused appellants and sentencing them as above.
Having considered rival submissions made by both the parties as also entire evidence on record, we are of the view that the case is based on direct evidence. In the instant case the incriminating circumstances on which the prosecution has placed reliance are that on the date of incident the deceased alongwith his brother has reached at Holigate crossing near Agrawal Dharmashala for some work which has subsequently been developed in their testimony, that they in fact, were going to their uncle's place at Antapada and on the way at the Holigate, stopped to drink juice at the shop near Agrawal Market where the incident occurred. P.W.2 is the other cousin of the deceased, who is said to have reached at the place of incident for the purpose of buying fruits and is said to have witnessed the incident, however, has not accompanied the victim to the hospital nor has helped Dhannu to take him to hospital by Rickshaw, nor could disclose as to how long Govinda remained lying at the place of incident after being shot at by the accused appellant.
Now we shall examine whether the testimony of P.W.1 and P.W. 2 on which implicit reliance has been placed by trial court, inspires confidence in the light of statement of the Investigating Officer who has made the investigation and prepared site plan and other documents at the pointing of P.W.1.
In the instant case, it is to be noted that great weight has been attached to the testimonies of two witnesses P.W.1 and P.W. 2 by the trial court in recording the finding of conviction against the appellants. In the backdrop of the said circumstances this Court has to examine the credibility of the witnesses to rule out any tainted evidence given in the court of law. It has been strongly contended by learned counsel for the appellants that the prosecution has failed to examine any independent witness in the present case and both the witnesses P.W.1 and P.W.2 are closely related to the deceased and may be highly interested and partisan witnesses.
This Court is conscious of well settled principle of law that just because the witnesses are related/interested/partisan their testimonies can not be thrown over board and discredited. However, on the other hand, it is settled principle of law as laid down by Hon'ble Apex Court in enumerable decisions that where witness are related/interested/partisan, their testimonies have to be scrutinized with greater care and circumspection. In the case of Gangadhar Behera and others Vs. State of Orissa (2002) 8 SCC 38, it was held that the testimony of such related witnesses should be analysed with caution for its credibility. In the case of Raju alias Balachandran and others Vs. State of Tamil Nadu (2012) 12 SCC 701, this Court observed.
"29. Thus sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369.p. 376 para 10).
"10... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration"
Further delving on the same issue, it is noted that in the case of Ganapathi and another Vs. State of Tamil Nadu (2018) 5 SCC 549, this Court held that in several cases when only family members are present at the time of the incident and the case of the prosecution is based only on their evidence, Courts have to be cautious and meticulously evaluate the evidence in the process of trial.
Recently in Criminal Appeal No. 1105 of 2010, Mohd. Jabbar Ali Vs. State of Asam, the Apex Court has held that the evidence of interested witnesses does not suffer from any infirmity.
It is well settled that the evidence of the related witnesses have to be considered by applying discerning scrutiny. In the instant case, it is seen from the testimonies of prosecution witnesses that all the witnesses are related to the deceased Govinda. P.W.1 Dhannu Yadav, is real brother of the deceased whereas P.W.2 Mohan Lal is cousin of the deceased and are thus are closely related to the deceased.
The incident in question has admittedly taken place in broad day light and in a densely located market area where number of shops are situate but none of the independent witness from the said market area has been examined. It is well settled principle of law that the evidence of related witnesses can be rejected if there are material contradictions and inconsistencies found in the testimony particularly when the witnesses have some enemity with the appellant as evident from their testimonies wherein P.W.1 has categorically stated that a criminal case under section 307 I.P.C. was initiated against P.W.1 at the instance of the appellant Naresh, however, he was acquitted in the said case. Apart from the said case, the said witness was also involved in a case under section 302 I.P.C. which is still pending disposal and in the said case the deceased Govinda was also an accused. In another loot case his brother Govinda had been acquitted.
Thus, we find that P.W.1 and the appellant were on inimical terms and as such in the backdrop of the said circumstances and being the related inimical witness, his testimony is to be scrutinized with great caution and circumspection. Now analysing the testimony of P.W. 1 on the anvil of truthfulness and being an inimical witness, he can not be said to a wholly reliable witness particularly in view of the fact that he is real brother of the deceased and highly partisan and interested and inimical witness. P.W.1 in his examination in chief has categorically stated that on the date and time of incident he alongwith his brother Govinda had gone to Holigate for 'some work' and was standing at Agrawal Dharmashala and the appellant reached there from second gate of Agrawal Market hurling abuses and with an intention to kill his brother opened fire upon them. It is further stated that the shot fired by Naresh Yadav hit the victim Govinda whereas the shot fired by the appellant Pappu missed the target. However, in cross examination the said witness has improved upon his testimony and has stated that on the date and time of incident he alongwith his brother was in fact going to visit his uncles' house at Antapada and when he reached at Holigate his brother stopped there to drink juice and had stayed at the juice shop where the incident took place. To quote "हम ताऊ जी के अन्ता पाडा जा रहे थे रास्ते में होली गेट पड़ता है भइया ने कहा जूस पी लेते है इसलिए जूस की दुकान पर रूके थे। भाई जूस पीने के लिए नहीं कहते तो शायद ताऊ जी के यहा सीधे पहुंच जाते। किसी काम से होली गेट नहीं गये थे। पिछले बयान 11.7.02 में अदालत में यह कहा होगा कि मैं और मेरे बड़े भाई गोविन्दा अपने घर से होली गेट काम से गये थे। मैंने गलत कह दिया होगा जाना तो हमें ताऊ के यहा ही था।"
Further more, as per the testimony of P.W.1 the incident of shooting the victim by the assailants is at the juice shop where the deceased alongwith his brother had stopped to drink juice but from careful perusal of the site plan which admittedly has been prepared at the pointing out of P.W.1, the place of incident is shown to be place which has been marked as "X" and is situate just infront of first gate of Agrawal Market and not at the juice shop which as per the site plan has been shown at extreme south adjacent to the second gate of Agrawal Market. As per the site plan, the accused appellants are said to have entered and reached the place of incident from the second gate of Agrawal market and turned towards north and reached at the first gate of Agrawal market where the deceased is said to have been shot at and from where the assailants are said to have made their escape good which has been marked by double arrow (ꜜꜜ) in the site plan. Thus, there is material contradiction in the statement of P.W.1 regarding the actual place of incident. As per testimony of P.W.1, Dhannu, the incident is categorically said to have taken place just in front of juice shop where they have been standing for drinking juice whereas from the site plan it is evident that the incident of shooting the deceased has infact taken place at point 'X' which is just in front of the first gate of Agrawal Market and not infront of juice shop. Thus, the place of incident as per the testimony of P.W.1 does not reconcile with the place of incident as pointed out in the site plan which raises a big question mark so far as the reliability of the testimony of P.W.1 is concerned and his eye witness account. The said circumstances regarding the place of incident becomes more material in the backdrop of the circumstances that juice shop owner before whose shop the incident is said to have taken place has not been produced by the prosecution to corroborate the incident though he has been a witness in the charge sheet.
Furthermore, from the careful perusal of the site plan prepared by the Investigating Officer which has been marked as Ka 18, it is evident that the said incident is said to have taken place in broad day light, in a market area, where number of shops are situate and on both sides of the road where the incident is alleged to have taken place, however, none of the said witness from the shop owners have been produced by the prosecution to corroborate prosecution story which creates serious dent in the prosecution story and makes testimony of P.W.1 doubtful particularly in respect of actual place of incident.
The testimony of P.W.1 becomes further doubtful from one more glaring circumstance. As per the testimony of P.W.1 when he alongwith the injured/deceased reached at the hospital for his medical treatment, the police had already reached there though admittedly by the said time, the F.I.R. in question, was not lodged and P.W.1 was interrogated by the police regarding manner of incident which was disclosed by him and thereafter police personnel asked him to go and lodge the report and only then he had gone to lodge the report. To quote "जब मैं अपने भाई के साथ अस्पताल पहुंचा था तब पुलिस अस्पताल में आ चुकी थी। पुलिस ने मुझसे उसी वक्त पूछताछ की थी कि यह कैसे हुआ। मैंने पुलिस को सारी बातें बता दी। पुलिस ने कहा कि रिपोर्ट लिखा आओ। तब मैं रिपोर्ट लिखाने चला गया।"
Thus, from the said circumstances, it is evident that the F.I.R. of the present case has been lodged after due deliberation and consultation with the police personnel and the appellants who admittedly were on inimical terms with the said witness has been falsely nominated as an accused in the said case.
The testimony of P.W. 1, Dhannu is further falsified from a very clinching circumstances which renders his entire testimony doubtful. As per the statement of P.W.1, it is alleged that he was accompanying the victim/deceased at the time of incident and incident of shooting has been witnessed by him and thereafter he is said to have taken the victim to the hospital where he was given medical treatment and he is said to have brought the victim to the hospital. However, from careful perusal of death memo which has been exhibited as Ka-12 , the factum of P.W.1 taking the victim to the hospital stands falsified as in the said memo which has been sent by the Doctor to the police station informing the death of the victim, it has been categorically mentioned that the said injured/deceased was in fact brought at the hospital by one Krishna Bhagwan and not his brother P.W.1 Dhannu as is evident from Exhibit Ka-12. This particular circumstance further clinchingly establishes the fact that infact P.W.1 Dhannu was not accompanying the victim at the time of incident and in fact reached at the place of incident subsequently. Had he, as per his testimony taken the victim to the hospital his name would have certainly been mentioned in the column 'Brought by' and not that of Krishna Bhagwan. This particular circumstance further renders the presence of P.W.1 Dhannu at the time, place of incident highly doubtful and creates serious dent in the prosecution story and makes his testimony doubtful. However, the trial court has completely overlooked this vital aspect of the matter and illegally recorded the finding of conviction against the appellant which, in our opinion is wholly illegal and liable to set-aside.
In the backdrop of the aforesaid circumstances, the said witness can not be said to be wholly reliable witness, however, the trial court by placing implicit reliance upon his testimony has recorded the finding of conviction against the appellants, which in our opinion, can not be sustained in the eyes of law and is therefore liable to be set-aside.
Now coming to the testimony of P.W.2 who is also cousin of the deceased and P.W.1, they being his uncle's son and as such is highly interested, related and partisan witness and therefore his testimony is also to be scrutinised with greater care and circumspection. Even according to the prosecution own case the said witness is purely a chance witness and is said to have reached at the place of incident for the purpose of buying fruits when he is said to have witnessed the incident. As per his testimony, the said witness is engaged in the task of keeping buffaloes and on the date of incident had gone to leave his buffaloes near river Jamuna where he is said to have reached at 10.00 a.m. and thereafter he is said to have reached at the place of incident for the purpose of buying fruits and it is stated that while he was purchasing fruits at Holigate market present incident occurred. Infact from his testimony, the presence of the said witness at the time and place of incident is highly doubtful. He in his testimony has categorically stated that on his way to Holigate number of fruit sellers are available at Arya Samaj Road, however, he did not purchase fruits from the said sellers and went further ahead to reach Holigate, the place of incident, to purchase fruits, which in the backdrop of the circumstances appears to be highly doubtful. The presence of P.W.2 at the scene of incident for the purpose of buying fruits is further falsified from the circumstance that he in his statement recorded under section 161 Cr.P.C. has not at all disclosed this fact to the Investigating Officer. The Investigating Officer on being confronted on this point has categorically stated that this witness Mohan Lal, P.W.2 in his statement recorded under section 161 Cr.P.C. has not at all disclosed this to him. It is thus evident that only for the first time while deposing before the trial court, it has been disclosed by the said witness that he reached the place of incident to buy fruits and witnessed the incident. This particular circumstances clinchingly establishes that the said witness in fact was not present at the place of incident and only to show his presence at the place of incident a story has been cooked up by him, that he reached at the place of incident for buying fruits. Had the said fact been true then certainly he would have disclosed this fact to the Investigating Officer while recording his statement under section 161 Cr.P.C. Absence of which makes his presence at the place of incident highly doubtful. On being confronted, this witness had stated that he had disclosed the fact of buying fruits at the place of incident to the Investigating Officer, however, if he has not recorded the same then he could not state its reason. Thus, from the said circumstances, the presence of P.W. 2 at the time of place of incident becomes highly doubtful.
Moreover, the presence of P.W. 2 at the place of incident is further falsified from the circumstances that he in is testimony has clearly stated that after being shot by the assailants his brother Govinda fell down and was taken to the hospital by his brother Dhannu in a Rickshaw. However, he despite being present there did not help him to place the victim on to the Rickshaw for being taken to the hospital. To quote "धन्नू व गोविन्द मेरे चाचा के लड़के है। मैंने गोविन्द को रिक्शे में नहीं रखवाया।"
This conduct of the witness further raises serious doubt about his presence at the place of incident. Moreover, in his testimony he has further revealed that in fact he had not seen the assailants firing upon the deceased as he was buying fruits and immediately after the incident there was commotion and the people present there started running helter-skelter. To quote "मेरी तरफ गोविन्दा का मुह था। धन्नू का मुह अग्रवाल मार्केट की तरफ था। मैं फल खरीद रहा था मैंने धन्नू को गोविन्दा को मुलजिमों को नहीं देखा। गोली चलते ही भगदड़ हुयी थी। सब लोग भागने लगे। भगदड़ के लोग चारो तरफ भागे थे।"
The presence of the said witness at the time and place of incident further becomes doubtful from the circumstances that he in his statement has categorically stated that he could not disclose as to how long the victim remained lying at the place of incident after receiving gun shot injury. To quote "गोली लगने के बाद कितने देर वहां पड़ा रहा, मैं नहीं बता सकता।"
This conduct of P.W.2 being the brother of the deceased is highly unnatural and indicative of the fact that in fact he was not present at the time and place of incident.
Furthermore, P.W.2 in his testimony has categorically stated the place of incident to be the juice shop where the deceased and P.W.1 had stopped for taking juice , however, from perusal of site plan, it is evident that infact the incident of shooting had taken place in front of first gate of Agrawal Market and not at the juice shop as alleged. To quote "जब गोली चली धन्नू का मुंह जूस वाले की तरफ था और गोविन्दा का मुह धन्नू की तरफ था। जूस वाले की दुकान पर गोविन्दा था इसी स्थिति में खड़े थे तो गोली मार दी मैं किसी मुल्जिम के पीछे नहीं भागा।"
Thus, in the backdrop of the aforesaid discussions, the presence of P.W.2 who is purely a chance witness also do not inspire much confidence. However, trial court by placing implicit reliance upon testimony of P.W.2 has recorded the finding of conviction against the appellant which is bad in the eyes of law and is liable to be set-aside.
It is further germane to point out here that the manner of incident as narrated by P.W. 1 and P.W.2 also do not find support from the testimony of P.W. 4 Dr. C.C. Sharma who in his testimony has categorically stated that the injury no. 1 on the person of the deceased could be caused only when the shot has been fired upon him by accused from the back of the deceased and further that the injury nos. 1 and 2 found on the person of the deceased could not have been caused to the deceased if the assailants where either on his left side or on his right. However, no where in the statements of P.W. 1 and P.W.2, it has been stated that the appellant Naresh Yadav fired right from the back of the deceased which hit him and he fell down. Thus, from the said circumstances also it is evident that medical report also does not support the prosecution story and renders prosecution story highly doubtful. However, trial court has not appreciated the material evidence in this regard in right perspective and has illegally recorded the finding of conviction against the appellant which in our opinion can not be sustained in the eyes of law and therefore liable to be set-aside.
It is further germane to point out here that as per the testimony of D.W.1, Dr Moti Lal on 2.2.1996, appellant Naresh Yadav had undergone medical treatment at NHML Hospital, Delhi vide OPD Parcha marked as 192A and hospital registration no. 5871. The patient was having a fracture in his right leg which was swollen and was examined by him and relevant treatment papers were prepared and signed by him which has been proved by him and marked as Exhibit Kha-1 and Kha-2 and was advised for admission in the hospital. Again on 2.3.1996, the date of incident, he had examined Naresh Yadav who was complaining of pain due to fracture injury and fever and again on 25.3.1996 he had examined Naresh Yadav and provided medical treatment noted on the back of the paper proved and marked as Exhibit Kha-2. D.W.1, Dr. Moti Lal in his statement has categorically stated that the dates on which patient Naresh Yadav was provided medical treatment, he was not in a position to move independently nor in a position to stand and was in fact suffering from permanent disability. To quote "जिन तिथियों में मैंने निरीक्षण इलाज उपचार किया था वह स्वतन्त्र रूप से चलने फिरने व खडे होने की हालत में नहीं था। मरीज को उपरोक्त फैक्चर के कारण स्थाई विकलांगता थी।"
Thus, from the said testimony of D.W.1, it appears that on the date of incident the appellant Naresh Yadav was suffering from fracture in his right leg and was not in a position to move independently, as such his presence at the time and place of incident causing death of the deceased by opening firearm and thereafter running away from the place of incident further becomes doubtful particularly in the light of the shaky and impeachable testimony of P.W.1 and P.W.2 whose presence at the time and place of incident has not been clinchingly and unerringly established by the prosecution, though the trial court has brushed aside the testimony of D.W.1 only on the ground that the exact time when the said appellant was medically examined by him has not been mentioned and further that the distance between Delhi and Mathura could be covered within two hours. Therefore, the presence of appellant Naresh at the place and time of incident after the treatment and committing the crime can not be completely ruled out, however, the trial court while recording the said finding has completely lost sight of the relevant testimony of D.W.1 wherein he has categorically stated that the dates on which the appellant was provided medical treatment including on 2.3.1996 the date of incident, the appellant was not in a position to independently stand and move and was in fact suffering from permanent disability, as such was not in a position to runaway after committing the incident as alleged by the prosecution.
Thus, in the light of testimony of D.W.1 coupled with the doubtful testimony of P.W.1 and P.W.2 , the view taken by trial court in recording the finding of conviction is unsustainable in the eyes of law being too far fetched to be believed.
Thus, total sum of our analysis is that the prosecution evidence does not inspire our confidence and in view of analysis and discussions above, we are of the view that the prosecution has failed to prove the charge against the appellant beyond pale of doubt. Therefore, we are of view that in the instant case, the accused appellants are entitled to the benefit of doubt.
Consequently, the appeal stands allowed.
The judgment and order of trial court convicting and sentencing the appellant is set-aside. The accused appellants are acquitted of the charges for which they have been tried and convicted.
It is reported that the appellants are in jail. They be set at liberty forthwith unless warranted in other case subject to the compliance of section 437-A Cr.P.C. to the satisfaction of trial court.
Let a copy of this order be furnished to the court below alongwith record for information and compliance.
Order Date :-10.02.2023 R