Ram Pal Alias Ram Phal And Others vs State Of U.P. on 30 July, 2024

[Cites 11, Cited by 0]

Allahabad High Court

Ram Pal Alias Ram Phal And Others vs State Of U.P. on 30 July, 2024

1. Both the above stated criminal appeals have arisen out of same judgement and order dated 1.8.1983, passed by Sessions Judge, Moradabad, in Sessions Trial No.18 of 1981, arising out of Case Crime No.304 of 1980, under Sections 302, 302/34 I.P.C., Police Station Hazrat Nagar, District Moradabad. Therefore, these two appeals are being disposed off by this common judgement and order.

2. By the impugned judgement and order the appellants have been convicted and sentenced for life imprisonment under Section 302/34 IPC and 302 IPC, respectively.

3. Heard Sri G.S. Chaturvedi, Senior Counsel assisted by Sri Anurag Shukla, learned counsel for the appellant Ram Pal @ Ram Phal, Sri Junaid Alam and Sri Anurag Shukla (Amicus Curiae), learned counsels for the appellant Suresh, Sri Arvind Kumar, learned AGA for the State and perused the record.

4. Appellants Shahjad and Wahid in Criminal Appeal No.1800 of 1983 have reportedly died and the instant appeal qua deceased appellants have been directed to be abated by orders of this Court. Therefore, Criminal Appeal No.1800 of 1983 survives in respect of appellant namely, Ram Pal alias Ram Phal and Criminal Appeal No.1801 of 1983 is also surviving qua sole appellant Suresh. Therefore, the appeals were heard in respect of surviving appellants only.

5. The factual matrix of the prosecution case in brief are that the informant/defacto complainant Veerpal Singh filed written report bearing date 9.9.1980, at Police Station Hazrat Nagar, District Moradabad alleging therein that there is a land of Gram Samaj at his village Chhichera, in which his co-villager Suresh and his father Bhukhand Saran have erected a wall in an illegal manner, which was objected to by his brother Netrapal Singh and a litigation is pending in the Court in this regard. A proceeding under Section 107/116 Cr.P.C. was also undertaken in this regard against Netrapal Singh and others and for that reason, Suresh and his family members were bearing a grudge against his brother Netrapal Singh. On 8.9.1980, the informant and his brother Netrapal Singh were returning to their native village on a tractor from the place of the in-laws of their elder brother namely, Atar Singh. The tractor was being driven by Ramveer Singh, the brother-in-law of his elder brother. Netrapal Singh was also sitting on right mudguard and the informant was sitting on left mudguard of the tractor. When they reached by tractor on western trisection of village Adaula Mafi, which is in the vicinity of their village abadi at around 9:00 PM, they saw in the light of the tractor that Suresh, Wahid, Shahjad, who are his co-villagers and Ram Pal alias Ram Phal were standing on said trisection. Suresh was armed with a single barrel gun whereas Ram Pal was armed with a tamancha (countrymade pistol) and other two miscreants were armed with lathi. They stopped the tractor of informant's side. Suresh threatened and challenged Netrapal Singh that as he obstructed the erection of his wall and instituted a case in that regard, he would not be spared and will be eliminated on that date. The informant, his brother and relative pleaded their stand and tried to pacify the accused persons but with no result. In the meantime, Gajendra Singh, Khooba Pasi and Sompal Singh came from the side of village Ahraula. Gajendra Singh and Khooba were holding torches and were flashing them. Sompal resides in the village of the complainant while remaining two other witnesses namely Gajendra Singh and Khooba Pasi resided in village Kasimpur. They also tried to pacify the accused persons. Accused Wahid, Shahjad and Ram Pal alias Ram Phal exhorted accused Suresh to kill and thereupon, Suresh fired a shot from his gun which hit Netrapal Singh, who died on the spot. After being hit by the fire, Netrapal Singh fell down on the tractor itself and thereafter the accused persons ran away towards the fields. These accused persons were identified clearly in the light of the tractor and also by the flashes of the torches of the witnesses. Due to fear, these persons brought the dead body of the Netrapal Singh to village Chhichera on that very tractor to the house of the village Pradhan. It was only in the morning that a written report was lodged in the police station at 6:30 AM by Veerpal Singh. In this FIR, four persons were named and requisite details of the incident and nature of arm wielded by accused persons was mentioned together with the names of the witnesses and source of light at the time of incident. The inquest on dead body of the deceased was conducted on 9.9.1980, at 9:00 AM and postmortem examination was carried out on 11.9.1980, at 5 ¼ PM.

6. Police undertook the investigation of the case and filed chargesheet against all the four named accused persons with prayer to prosecute them for charge under Section 302 IPC as at the time of filing of chargesheet, only accused Suresh could be apprehended, the chargehseet was filed against remaining three accused persons by placing their name in the list of absconded accused. However, the absconded accused persons were subsequently brought on book and trial commenced against them on their appearance.

7. After committal of case to Court of Session by learned Chief Judicial Magistrate vide order dated 5.1.1981, the trial judge summoned the accused persons and framed charge under Section 302 IPC (simplicitor) against accused Suresh and charge under Section 302 read with Section 34 IPC against remaining accused namely, Ram Pal alias Ram Phal, Wahid and Shahjad. The charges were read over to them and explained. The accused persons pleaded not guilty to the charge and claimed to be tried.

8. The prosecution examined PW-1 Veer Pal Singh, PW-2 Head Constable Chandra Kiran Tyagi, PW-3 Dr. Rakesh Khare, PW-4 Gajendra Singh, PW-5 Constable Pramod Kumar, PW-6 S.I. Yagpal Singh Solanki, PW-7 Constable Muharrir Toley Ram, PW-8 Khooba, son of Ram Pal, PW-9 Sompal. After conclusion of prosecution evidence, the statement of accused persons was recorded under Section 313 Cr.P.C., in which they stated that the witnesses have deposed against them falsely and feigned ignorance regarding prosecution papers. They stated they were prosecuted due to enmity inasmuch as accused Suresh, who is projected as main accused in the case stated that he was on duty in a private firm namely, M/s C.L. Gupta and Sons, in Moradabad in the night of incident.

9. Accused persons entered in defence and they examined DW-1 Jagat Narain Gupta, the Manager of M/s CL Gupta and Sons. They also examined DW-2 Raghunath Singh Tomar, former Secretary of Sadhan Sahkari Samiti, Kasimpur, who deposed against prosecution witness Gajendra Singh. DW-3 Atar Singh, stated that in the morning of 9.9.1980, at 6:00 AM, Veer Pal Singh, the informant, had borrowed his motorcycle from him to visit the place of Gajendra Singh and told him that his brother Netrapal was done away by miscreants in the night. He returned the motorcycle in the evening of that day. DW-4 Mahendra Prashad Gupta, the then Managing Director of Kisan Sewa Samiti, Kasimpur and DW-5 Narottan Singh, Assistant Record Keeper of Teshil Sambhal (then District Moradabad), who produced record of Case No.25/2017 of 1989.

10. At the fag end of trial, learned trial court heard the submissions of learned counsel for the parties and after perusing the evidence on record, gave the verdict of guilt against all the four accused persons, who were subjected to trial and convicted accused Suresh for charge under Section 302 IPC and remaining accused namely, Wahid, Shahjad and Ram Pal alias Ram Phal for charge under Section 302/34 IPC. They were sentenced to imprisonment for life vide order dated 1.8.1983.

11. Feeling aggrieved by the impugned judgement and order, the present appeals have been filed by the convicts.

12. Prosecution in all relied on 11 material exhibits, 24 documentary exhibits and 9 witnesses. Defence also relied on five witnesses and 9 documentary exhibits. Two documents filed by them were inadmissible in evidence.

13. Exhibits 1 to 6 are baniyan, bush-shirt, underwear, pant, ring and kardhani of deceased Netrapal Singh, which he was wearing at the time of the incident and was taken into possess ion by the police.

14. Exts. 7 and 8 are tins containing blood stained and simple earth, which was taken from the place of incident by the Investigating Officer and were sealed on the spot.

15. Exts. 9 and 10 are tins containing blood stained and simple earth which was taken by the Investigating Officer from the place where the tractor was standing in the village, after it was brought in village Chhichera from the place of occurrence with the dead body of Netrapal Singh. The Investigating Officer found blood stains on the tractor and on the earth at that place.

16. Exhibit-11 is the blood stained pillow which was taken into possession by the police which was kept on the driving seat of the tractor.

17. Exhibit Ka.1 is the written F.I.R. which was scribed by Veerpal Singh about the occurrence on 9.9. 1980. In his F.I.R. all the four accused persons are named and an explanation has been given as to why the F.I.R. has been lodged in the morning and not in the night. Exts.Ka. 2 and Ka.3 are the chick F.I.R. and copy of the general diary through which a case was registered on the basis of the F.I.R., Ext,Ka.1.

18. Exhibit Ka.4 is the copy of general diary of 9.9.1980 showing that the special report of this case was sent at 9:10 AM thorugh Constable Amar Singh.

19. Ext.Ka-5 is the post mortem report of the deceased Netrapal Singh. This shows that the postmortem was conducted on 11.9.1980, at 5:00 PM and the deceased had received following antemortem injuries:-

i. Lacerated wound 6 cm X 6 cm on the front and right side of upper part of neck with blackening, charring and tattooing around the wound, right mandible, lower jaws fractured and 14 metallic shots, one cap and two wadings were recovered from the site of trachea and long vessels of the neck.

ii. Contusion 6 cm X 6 cm on outer medial aspect of right thigh.

iii. Abrasion 8 cm X 3 cm with contusion on the upper part of the right skin present.

iv. Lacerated wound 3 cm X 3 cm with surrounding blackening, charring and tattooing present on the outer aspect of right forearm, 4 cms above the wrist.

20. Exhibits Ka.7, Ka.8, Ka.9, Ka10, Ka.11 and Ka.12 are Panchayatnama, photo lash, challan lash, letter to Chief Medical Officer for postmortem of the dead body of Netrapal Singh, letter to Chief Medical Officer to send the reprot of the postmortem and the sample of seal with which the dead body was sealed.

21. Exhibits Ka.6 and Ka.9 are the fards of torches showing that the Investigating Officer inspected the torches of Gajendra Singh and Khooba and found them in working order.

22. Exhibit Ka.13 is the site plan of the place where the tractor was standing after it came to village Chhichera with the dead body of Netrapal Singh and was prepared by the Investigating Officer during Investigation.

23. Exhibit Ka.14 is the site plan showing the place of occurrence. It contains index also showing the precise places of the tractor, the accused and the witnesses.

24. Exhibits Ka. 15 to Ka. 18 are the fards showing that the investigating officer had taken blood stained and simple earth from the place of incident, from the place where the tractor was standing in the village, from the tractor and taking into possession the tractor itself.

25. Exhibit Ka.20 is the copy of general diary showing that the fards of Panchayatnama etc. were brought to the police station on:10.9.1980 at 8:00 AM by constable Pramod Kumar and others.

26. Exhibit Ka.21 is the copy of the statement of Sompal Singh PW-9, who had turned hostile, and has been filed to contradict Sompal Singh with his previous statement.

27. Exhibits Ka.22 and Ka. 23 are the fards of attachment of the property of accused Shahzada and Ramphal showing that these two accused had absconded and their attendance could be procured only after the proceedings under sections 82 and 83 Cr.P.C. against them.

28. Exhibit Ka.24 is the charge-sheet which was submitted by the investigating officer after completing investigation against these accused persons.

29. Out of nine witnesses of fact produced by the prosecution P.W.-1 Veerpal Singh, the complainant, P.W.-4 Gajendra Singh, P.W.-8 Khooba and P.W.-9 Sompal Singh are the witnesses of fact and the remaining witnesses are formal witnesses and they include the doctor, who conducted the post mortem on the dead body of Netrpal Singh, Head- Constable Chandra Kiran, who scribed the chik. F.I.R. and entries of general diaries in this case and Constables who took the dead body of Netrapal Singh for post mortem and S.I. Yagya Pal Singh, who, had investigated the case.

30. Exhibits Kha.1 and Kha. 2 are the application and affidavits of Khooba which he has filed in the Court of the Chief Judicial Magistrate, Moradabad on 3.10.1980 stating therein that he has not seen any thing.

31. Exhibit Kha.3 is the entry in the attendance register showing that accused Suresh Chandra Sharma was present on duty from 9 PM to 5 AM on 8.9.1980 in the karkhana of M/s C.L. Gupta & sons at Moradabad. This paper has been filed to show that Suresh Chandra could not have been present on the spot.

32. Exhibit Kha.4 is the copy of the order passed by the Deputy Registrar, Cooperative Societies, Bareilly. This paper has been filed to impeach the character of P.W.- 4 Gajendra Singh.

33. Exhibits Kha.5 ad Kha.6 are two photostat copies filed from the file of Tehsildar showing that it was Kirath Singh Pradhan, who filed a case against Bhukan Saran and Suresh Chandra about the construction of a house on the land of Gram Samaj.

34. Exhibits Kha.7, Kha.8 and Kha.9 are papers regarding Sahkari Sadhan Samiti, Kasimpur and have been filed to impeach the credibility of P.W.-l Veerpal Singh.

35. Out of 5 witnesses of fact produced by the prosecution, P.W.-1 is the complainant Veer Pal Singh- real brother of deceased Netrapal Singh. PW-4 is Gajendra Singh. PW--8 is Khooba and PW-9 is Sompal Singh. The witness Khooba (PW-8) has earlier filed an application and an affidavit that he had not seen any incident with his own eyes and there after moved an application in the Court when the Session Court was going on that as he has not seen anything, he may be discharged. However, when produced, he supported the prosecution case in its entirety except that he stated that he could not see as to who fired on Netrapal Singh. He also pointed towards accused persons during his evidence in the Court. PW-9 is Sompal. He completely turned hostile though he is relative of the complainant.

36. PW-1 Veerapal Singh, the informant, while supporting prosecution case submitted that in the morning he went to the village Sendari, Police Station Asmouli to bring the tractor from the in-law's house of his elder brother namely, Atar Singh. After evening, they were returning back with the tractor, which was being driven by Ramveer Singh, brother-in-law of Atar Singh. Deceased Netrapal Sing was sitting on the right mudguard and Veerpal Singh was sitting on the left mudguard. When the tractor reached on the Tiraha, which is situated in the west of village Adaula at around 9:00 PM, all the four accused persons namely, Suresh, Wahid, Shahjad and Ram Pal alias Ram Phal came there. Suresh was holding a gun and Ram Pal was holding a tamancha (countryamde pistol) while the remaining two accused persons were holding lathies. All these four persons were known to the witnesses before hand. They recognized them in the light of the tractor of which both lights were lit. These persons got the tractor stopped and started abusing Netrapal Singh that it is he, who had got the construction of wall of their house stopped. The complainant's side were trying to pacify the accused persons. In the meantime, Gajendra Singh and Khooba of village Kasimpur, Police Station Garhi Hazrat Nagar, together with Sompal resident of village Chhichera came from the side of village Adaula. Gejendra Singh and Khooba were holding torches and had lighted them. These persons also tried to pacify the accused persons. Three accused namely Ram Pal, Shahjad and Wahid exhorted Suresh to kill and thereupon Suresh fired from his gun, which hit Netrapal Singh, who died on the spot and fell down in the tractor itself. The accused persons thereafter went away from there. They were also seen by the witnesses. After sometime, these persons also went away and Ramveer Singh and Veerpal Singh brought the dead body of the Netrapal Singh to village Chhichera on the same tractor itself. The dead body was lying in the tractor in same condition. Nobody hit the deceased by lathis. His head fell on driver's seat and leg remained on same place where he was sitting. Suresh fired on deceased from close range. The barrel was of .1, .1 ½ feet distance. It was rainy season. He got the tractor parked in front of the house of Gram Pradhan and family members surrounded the same. He scribed the written report there and went to police station in the morning. He reached there at 6:00 AM.

37. PW-4 Gajendra Singh has also supported the prosecution case, who stated that he together with Khooba and Sompal had gone to vilalge Ahrola to have a harrow from Surat Singh. In the cross-examination, he stated that the harrow, which he had gone to ask for was to be used in plough and not in tractor and that he does not possess any tractor. At about 9:00 PM, he was returning back with these persons from village Ahrola and when he reached near the Tiraha, he saw the tractor standing with its light on and on which Ramvir Singh was sitting on the driving seat, Veerpal Singh was sitting on the left mudguard and Netrapal Singh was sitting on the right mudguard. All these four accused persons were also there. Suresh was towards the right side of the tractor and was holding a gun. Ram Phal was holding a pistol and the remaining two Shahjad and Wahid were wielding lathies. He also supported the prosecution case that the accused Suresh challenged Netrapal Singh that as he stopped construction of his wall and initiated litigation, he would kill him on that day and later the remaining three accused persons namely, Shahzad, Wahid and Ram Pal alias Ram Phal exhorted Suresh to kill and it was thereafter that Suresh fired upon Netrapal Singh. Netrapal Singh was hit by the firearm and he fell down on the tractor itself and died on the spot and the accused persons went away from there towards south and east. The deceased received firearm injuries on neck and right hand. He identified all accused persons in the Court.

38. PW-8 Khooba is a witness, who previously filed an affidavit and an application, which are exhibited as Ext.Kha-1 and Kha-2 on record, in which he stated that he had not seen anything at all. He also moved an application with prayer to discharge him from appearing as a witness during trial, as he had not seen anything. However, his statement was recorded on 14.3.1983 before the Court. In the Examination-in-Chief, this witness supported the case of the prosecution and stated that he alongwith Chaudhari Gajendra Singh (PW-4) and Sompal (PW-9) had gone to village Ahrola because Gajendra Singh wanted a harrow tube installed in plough. He further stated that when all these persons were returning from Ahrola at 9:00 PM and reached near the Tiraha in the west, he found that a tractor was standing facing east with its light on and on the tractor Ramvir Singh, Netrapal Singh and Veerpal Singh were sitting while the four accused persons who were present in the Court at the time of his evidence were standing around it. Suresh was holding a gun, Ram Pal was holding a pistol and the remaining two persons were holding lathies. Someone of the accused persons opened fire which hit Netrapal Singh, who died on the spot and fell down on the tractor itself and thereafter the accused persons went away. The witness deviated from the prosecution case to the extent that he did not name Suresh as assailant, who allegedly shot a fire resulting the death of Netrapal Singh. He stated that he could not say as to who fired at Netrapal Singh. He gave an explanation of filing an affidavit before the Court together with an application to the effect that he did not see the incident. He stated that Chaudharies of Ahrola had come to his house and had threatened him that if he would give evidence, then he will also be murdered like Netrapal Singh and due to this fear, he filed the affidavit. He further stated that now the police had assured him that they will help him if some accused or his helpers would harass him. It is for this reason that now he is giving his statement out of his free will. He also stated that at the time of incident, the light of the tractor was on and he and Chaudhari Gajendra Singh were holding torches and lighted them. They recognized the persons sitting on the tractor as well as all these four accused persons on the spot together with their arms. He denied the defence suggestion that the accused persons were concealing their faces by 'dhada' (mask). In the cross-examination, he gave out the name of Faquir Chand as a person who had pressurized him to file the affidavit in favour of the accused persons. He stated that together with Faquir Chand, there were 3-4 other persons also. He also stated that during the hearing of the case, the accused persons forced him to file a false application that he did not want to give evidence because he had not seen anything. He clarified that he had simply put his thumb impression on this application and it was never read over to him. He also supported the prosecution case that only one fire was made on the spot which caused death of Netrapal Singh. His torch was seen by the Investigating Officer, who found it in working condition. However, he stated that he could not state with precision that out of Ram Pal and Suresh, who fired a shot at Netrapal Singh. The firearm shot hit Netrapal in his neck. Blood was oozed from the injuries of deceased which spread on the tractor and also fell on the ground.

39. PW-9, Sompal is relative of the deceased but he had not supported the prosecution case and was declared as hostile and was cross-examined by the prosecution. This witness stated that he had not seen the incident but had gone on the spot after hearing that Netrapal Singh had been murdered in the night at about 9:00 PM. Thus, this witness had supported the time and place of the occurrence. In cross-examination by A.P.P., he stated that Bhure Singh was his brother-in-law (sadhu) and deceased was his son. He denied the prosecution suggestion that during the period of murder of Netrapal, his relation with Bhure Singh were sour and it continued so at the time of his evidence also. He admitted that there was partibandi in the village. He also denied the prosecution suggestion that he was testifying falsely as he had taken side of accused persons. He admitted that there was dispute of a plot between Jorawar Singh, his uncle and Netrapal Singh, the deceased, who had installed a chakki in said plot. However, he denied the suggestion that due to enmity of that plot, the witness and his relative Bhure Singh were not on talking terms. He acknowledged that he had filed an application with affidavit before the Court that he had not seen anything.

40. Accused persons in their statement under Section 313 Cr.P.C. admitted their place of residence as stated in prosecution evidence. They denied that they belong to any gang. They admitted that they had erected a wall on their own land, which was stopped by village pradhan Kirat Singh. Deceased was not a social worker. No proceeding under Section 107/116 Cr.P.C. were carried on against accused Suresh. They denied the prosecution case, which the witnesses of fact had tried to prove by their sworn testimony. They feigned ignorance about the contents of prosecution papers.

41. Accused persons in defence evidence had produced DW-3, Atar Singh to show that the complainant Veerpal Singh had gone to meet him in the morning of 9.9.1980 to borrow the motorcycle of the witness. By the evidence of this defence witness, the defence intends to show that the lodging of the FIR at 6:30 AM is incorrect and the FIR was ante time. The witness stated that he belongs to village Kasimpur. He was Sarpanch of Nyaypanchayat Kasimpur. Veerpal had stated him when he came to meet him for borrowing the motorcycle that his brother Netrapal Singh had been killed by miscreants in the night. He asked for the motorcycle to visit Gajendra Singh, who resided in the village Bahjoi and wanted to take him back due to the incident with a view to lodge the report. The witness stated that Veerpal had returned the motorcycle in the evening of that date.

42. DW-4 Mahendra Prasad Gupta, the Managing Director of Kisan Sewa Samiti Kasimpur, was produced to prove that Bhure Singh, son of Lekhraj, i.e. father of the complainant Veerpal Singh had taken a loan of Rs.1600/- from the society and had not repaid the loan. He was produced to contradict Veerpal Singh as he had stated in his evidence that his father has not taken any loan from the Sahkari Sadhan Samiti and there is no decree of Sahkari Sadhan Samiti against his father.

43. DW-1 Jagat Narain Gupta, Son of Hargovind Prasad testified that he is manager of M/s C.L. Gupta & sons. He produced the register of watchman employed in the firm during his evidence. The register covered duration from June, 1980 to September 1980, in which appellant Suresh Chandra Sharma is shown as watchman. According to this witness, his duty was in the night. He was emplyed in June, 1980. He was on duty on 9.9.1980. He was not present on duty from 10.9.1980 to 15.9.1980 and worked till 24.9.1980 and thereafter became absent. The witness stated that in the intervening night of 8.9.1980, the duty of accused appellant Suresh Chandra Sharma was from 9:00 PM to 5:00 AM next morning, which is revealed from the attendance register. In cross-examination, the witness admitted that in this attendance register parentage and residence of Suresh Chandra Sharma is not noted. The Register bears only his name and parentage in the month of July, 1980. The prosecution gave suggestion to the witness that his name was added in the register falsely on serial No.3 from June 1980 to September, 1980 only. The pages of register is not complete and most of its portion was empty. In his factory manufacturing and placing of brass articles was being carried out. Working hours in the factory were 4:00 AM to 5:00 PM. The witness identified appellant Suresh Chandra Sharma as an employee in his factory. The witness filed the attendance register in the Court on which Ext.Ka-3 was marked.

44. Learned counsel for the appellants submitted that appellant Suresh has been attributed the role of firing a shot at deceased Netrapal Singh in the fateful night on 8.9.1980, at around 9:00 PM and its FIR was lodged next date on 9.9.1980, at 8:30 PM. The distance of police station from place of occurrence is shown as 16 kms. in chik FIR (Ext.ka-2). Therefore, there is delay of around 12 hours in lodging of FIR and the explanation of delay given in FIR as due to dark night the informant could not visit the accused persons is neither sufficient nor plausible as in the statement of PW-1, it is stated that after homicidal death of deceased Netrapal Singh, while he was sitting on mudguard of the tractor, the dead body was transported by laying it in the same tractor and it was placed in front of the house of gram pradhan. The dead body was kept on tractor overnight and family members surrounded the same. Even Gram Pradhan failed to inform the police in the night regarding the incident and according to the informant (PW-1), he visited the police station at 6:00 AM for lodging the FIR. Thus, it can be inferred that no genuine effort was made to lodge the FIR promptly in the fateful night and delay in lodging of FIR suggests embellishment, concoction and afterthought.

45. Learned counsel for the appellants also submitted that apart from appellant Suresh, the other accused appellants are attributed role of exhortation. Even appellant Ram Pal, who is said to have been armed with tamancha has not been attributed specific role of firing on deceased. Thus, it is difficult to believe that the appellants were sharing common intention to kill the deceased. Two accused namely, Wahid and Shahzad (since deceased) are said to have been armed with lathi and no lathi blow was on person of the deceased as revealed from the evidence of eye-witnesses. He next submitted that there is inconsistency between ocular evidence and medical evidence. So-called eye-witnesses have stated in their evidence that it was Suresh, who opened a shot from his gun due to which the deceased suffered fatal injuries and died instantaneously on the spot and however, PW-3, Dr. Rakesh Khare, who conducted post mortem examination on the dead body of the deceased has stated that as many as four antemortem injuries were found on the person of the deceased. He stated in his evidence that injury No.1, which was lacerated wound of 6 cm X 6 cm on the right side of upper part of neck with blackening, charring and tattooing and lower jaw (mandible) of right side was fractured; was sufficient in the ordinary course of nature to cause death. He stated in his examination-in-chief that it was possible that all the four ante mortem injuries of the deceased were caused by one firearm yet in cross-examination he stated that the body was in decomposed condition. He has not stated regarding direction of injury in postmortem report. Injury No.1 to 4 could have been caused by two firearms, in case, hand of the deceased was hanging downwards, in that situation only both the injury nos.1+4 could be caused by one firearm when hand of the victim happened to come at the level of neck of the victim. Injury No.2 and 3 could have been caused by hard blow of blunt object like lathi. Whereas, PW-1 has categorically stated in cross-examination in paragraph No.48 of his evidence that nobody assaulted the deceased by lathi blow. He clarified that it would be wrong to say that the deceased suffered injuries by lathi blow on his person. Thus, there is apparent contradiction and inconsistency between ocular and medical evidence, due to which prosecution case becomes highly doubtful and it causes a dent on authenticity of prosecution version.

46. Learned counsel for the appellants next submitted that in FIR itself it is stated by PW-1 that after suffering firearm injury, the deceased fell down in the tractor and died immediately and thereafter, left the dead body on the tractor in the same condition in his Village Chhichera and came to police station whereas in evidence, the witness stated that the tractor was escort of '335 Marka'. His village was half kilometre away from the place of incident. He came to the village leaving the dead body on the tractor due to fear of the accused persons and subsequently tractor was brought from the place of incident and was placed in front of the house of Gram Pradhan. Thus, there is contradiction on this count also in statement of PW-1 from his version in FIR, which is akin to previous statement as envisaged in Section 145 Evidence Act.

47. He further submitted that PW-1 has stated that he scribed the written report (Ext.Ka-1) in his house and visited the police station in the morning by cycle at around 5:00 AM and submitted the written report at police station. This is consistent case of defence that the written report (Ext.Ka-1) was prepared at police station. He also submitted that in FIR and statement of witnesses, this fact emerged that at the time of incident, deceased and informant who were real brothers were coming from place of in-laws of their elder brother namely Atar Singh alongwith tractor of latter for ploughing their field and it was bieng driven by Ramvir Singh, son of Atar Singh but Ramvir Singh was not produced in evidence, who could give independent and reliable version of sequence of events leading to death of the deceased. No report of Serologist about the plain earth and blood stained earth has been brought on record. Weapon of offence i.e. the gun allegedly used by appellant Suresh in causing death of the deceased could not be recovered or taken into possession. From perusal of Ext.Ka-7, inquest report, it is apparent that the inquest proceeding commenced on 9.9.1980 at 9:00 AM by PW-6 S.I. Yagya Pal Singh Solanki in front of the house of Gram Pradhan and concluded at 10:30 AM on the same date, thereafter the dead body was moved for postmortem in sealed position but dead body was received in police line, Moradabad on 10.9.1980 at 8:00 AM as per GD Entry No.10 of Police Line, which is proved as Ext.Ka-20 by PW-7, Constable Muharrir Toley Ram. There is no specific explaination on record as to under what circumstances, the dead body was received at Headquarter from place of inquest after lapse of 10:30 hours, when it was handed over to police constables for transportation to headquarter just after the conclusion of inquest. It also indicates that FIR in the case was lodged ante time and not at the time which is shown in chik report. Out of four convicts, two already died during pendency of appeal and appeal survives only in respect of two convicts namely Suresh and Ram Pal alias Ram Phal are surviving. The incident occurred in the year 1980 and the appeal is pending since 1983 i.e. for more than 41 years and in fact prosecution failed to prove the guilt of the convicts beyond reasonable doubt and prosecution evidence is not of such sterling quality, which would justify the conviction and sentencing of the appellants. Lastly submitted that PW-9 Sompal, who is a relative of the deceased has not supported prosecution case. Learned trial court has misappreciated the evidence on record while recording verdict of guilt against the appellants.

48. Per contra, learned AGA contended that the prosecution case is duly proved by eye witnesses account of PW-1, antiformant and brother of the deceased namely Veerpal Singh and Khooba. Even PW-9, Sompal, who has been declared hostile by prosecution, has proved place and time of incident as well as seat of fatal injury of the deceased and manner of causing death. The witness deliberately concealed the name of the accused persons due to fear. The medical evidence is in consonance with the ocular evidence and in view of the answer given by the medical witness in reply to hypothetical questions posed by defence, the ocular testimony cannot be brushed aside. The deceased received fatal injuries on his neck and as per the medical evidence as well as ocular evidence, which was caused by one firearm shot. The defence failed to produce a reliable version of innocence of convicts even by leading of defence evidence of five witnesses, who proved certain documents also during their evidence, which are marked as Kha-1 to Kha-6.

49. We gave a thoughtful consideration on submissions made by learned counsel appearing for the parties and perused the judgement under appeal and evidence on record for the purpose of deciding the present appeal, we re-appreciated the entire evidence available on record.

50. The appellants are enlarged on bail in their respective criminal appeal by orders of this Court. The role assigned to appellant Suresh is that of sole assailant and appellant Rampal @ Ram Phal is that of extending exhortation to the perpetrator of the crime namely, Suresh together with deceased appellants Wahid and Shahzad. Learned trial court dispelled the doubt sought to be created on veracity of prosecution evidence by learned counsel for the defence at the stage of final arguments and concluded that all the witnesses produced by the prosecution have fully supported the prosecution case that these accused persons were present on the spot. There is no reason in this case to think that accused Suresh might have been falsely implicated due to enmity. The evidence on record is sufficient to show that he was present on the spot and he fired upon Netrapal Singh by which he died. Rampal @ Ram Phal was holding a pistol whereas Shahzad and Wahid were holding lathies. It is also clear that it was at their exhortation that Suresh fired upon Netrapal Singh due to which Netrapal died on the spot. If any false implication was to be made by the informant, then he should have been in respect of Bhukhan Saran, the father of Suresh and not of Suresh as according to the defence case (though not substantiated) it is Bhukhan Saran, who made allegations or was a witness against the misdeeds of Chaudhari Gajendra Singh. Only on behalf of Wahid it was asked from Virpal Singh that Ismail is uncle of Wahid. Kirath Singh Pradhan is elder brother of Sompal witness (who has turned hostile). Sompal is the witness, who is 'Mausa' of Virpal Singh. Virpal Singh admitted that this Ismail and others have put a no confidence motion against Kirath Singh Pradhan. He expressed his ignorance whether Shahzad's brother Majid had also a hand in the no confidence motion against Kirath Singh. On this premise the learned counsel for the accused argued that Wahid and Shahzad had been falsely implicated in this case because their relations helped in putting a no confidence motion against the Pradhan Kirath Singh. It may be pointed out that it has surfaced in evidence that this Pradhan Kirath Singh is elder brother of witness Sompal, who is Mausa of the complainant Virpal Singh. It is clear that this Sompal was produced as PW-9 and he turned hostile and did not support the prosecution case. In these circumstances, it cannot be accepted that the above mentioned reason could have been cause of falsely implicating these two accused persons. On behalf of Rampal, it is alleged that PW-4 Gajendra Singh has contested election against Bahoran Singh of Bahadurpur. The witness has shown his ignorance about this fact. It was suggested that this Ramphal is Mausera Bhai of Bahoran Singh and was with Bahoran Singh in election and, therefore, has been falsely implicated in this case on the instance of Gajendra Singh. No one has been produced to substantiate this fact. In these circumstances it can not be said that there is any cause for the complainant side to have falsely implicated even this accused namely, Rampal.

51. Learned trial court concluded that from the entire discussion, it is clear that the prosecution has been successful in proving the guilt of Suresh under Section 302 IPC committing the murder of Netrapal Singh and against Wahid, Shahzad and Rampal @ Ram Phal under Section 302/34 IPC for the same offence beyond reasonable doubt.

52. According to the Chik FIR (Ext.Ka-2), the incident occurred on 8.9.1980, at around 9:00 PM (20:00 hours) in the limit of village Jungle Andaula. The distance of place of incident from police station is 16 kms. eastwards. The FIR was lodged on 9.9.1980, at around 6:30 AM thus, there is a gap of 9.30 hours between the occurrence and lodging of FIR. The informant tried to explain the delay in his written report (Ext.Ka-1), in which he stated that his brother Netrapal Singh was received fatal firearm injury while the witness and deceased was sitting on different mudguards of the tractor on way to their village. It was accused Suresh, who fired single shot from his SBBL gun resulting in instantaneous death of deceased Netrapal Singh, who fell in the tractor itself and breathed his last. The informant and others had seen the assailants/accused in the light of tractor as well as in the light of torch held by the witnesses. He stated in his evidence as PW-1 that he did not leave the tractor in which dead body was lying on the spot and brought the same alongwith tractor driver Ramvir Singh in the village and parked the same in front of the houe of the Gram Pradhan. His family members and co-villagers surrounded the tractor. He brought the tractor in which dead body was lying, from the place of incident, being scared by the incident. Blood oozed out from the injuries of deceased which was found on his clothes and on the cushion on which he was sitting. His blood also fell down in the tractor and on earth also. The occurrence took place on Adaula Trisection, which is half kilometre away from his village. He scribed the written report on the place where tractor was parked and visited the police station alongwith written report and reached there at 6:00 AM. The police station situated 15 to 16 kilometres away from his village. Darogaji recorded his statement after lodging of FIR and thereafter police visited the village. The name of father of accused Suresh is Bhukhan Saran Sharma. The informant has neither stated in FIR nor in his sworn testimony before the Court that he could not visit the police station for lodging the FIR in the night due to fear of accused persons inasmuch as the Gram Pradhan was supposed to have taken initiative in lodging the FIR. A suggestion has been given to the witness (PW-1) by counsel for the accused persons in cross-examination that on 26.4.1980 Bhukhan Saran, the father of accused appellant Suresh, had lodged a report against witnesses Sompal and Kirat Singh, the then Gram Pradhan. Another suggestion has also been given by defence during cross-examination to this witness that Gram Pradhan Kirat Singh had moved an application on 10.4.1979 at police station, on which Darogaji had restrained erection of wall at the instance of accused Suresh side. Thus, the explanation offered by prosecution for delayed lodging of FIR does not hold good and indeed opens scope of external influence in FIR version.

53. In evidence of witnesses from both sides prosecution as well as defence, name of then Gram Pradhan Kirat Singh has surfaced frequently but he was not examined as a witness in the case. Inasmuch as Ramvir Singh, resident of village Sendauri, a relative of the informant and deceased, who was driving the tractor at the time of incident in which deceased was sitting was not produced as a witness. Accused Suresh has stated in his statement under Section 313 Cr.P.C. that it was Kirat Singh, who had created obstruction in raising of wall by accused side and according to the prosecution version, it was deceased who acted as a social worker and created obstruction in raising of wall on public land by main accused Suresh. Thus, in this manner also, then Gram Pradhan Kirat Singh's evidence could have been material to throw light on the aspect of motive of commission of offence. Out of three accused persons namely, Wahid, Shahzad and Rampal @ Ram Phal, who are attributed role of exhortation to main accused Suresh to commit murder of deceased Netrapal only Rampal is surviving. In FIR as well as in evidence of witnesses, this fact is reiterated that Rampal was armed with a tamancha (countrymade pistol) but this is consistent case of prosecution that it was accused Suresh who fired the fatal shot at deceased and none of the witnesses have stated that Rampal had used his countrymade pistol in the offence. Other two deceased accused namely, Wahid and Shahzad are said to have been armed with lathis but none of them are stated to have used their respective weapon during the incident. It does not look natural. According to the PW-3, Dr. Rakesh Khare, who carried out postmortem examination on the dead body of Netrapal Singh have opined on the basis of postmortem in his evidence before the Court that deceased had suffered two firearm injuries i.e. injury Nos.1 and 4 and injuries were suffered by hard and blunt object. The injury Nos.2 and 3 could have been caused by falling on any hard surface or due to friction and if the deceased would have been sitting on a tractor and had fallen down, he could have suffered such injuries. Injury Nos.1 and 4 which are firearm injuries were caused within proximate distance i.e. within 1 and half 2-3 feet of deceased. Four metallic shots, one cap plus two waddings were recovered from injury no.1. The Doctor proved the postmortem examination report by his evidence as Ext.Ka-5 and stated that the deceased might have been taken meal within 3-4 hours of his death. He clarified that injury Nos.1 and 4 might have been caused by two firearms, if hand of the victim was hanging downwards then both the injuries could have been caused by one firearm. The injury Nos.1 and 4 could only have been caused by one firearm when hand of the victim had come at the level of his neck when the shot was fired. Injury Nos.2 and 3 could have been caused by some hard and blunt object also when the victim could have been hit hardly. He admitted that he had not stated regarding directions of the injuries because body was in decomposed position. Trachea and larynx both were cut, which dispels more possibility of oblique fire. There was more possibility that shot was fired at the neck horizontally. If victim was sitting on mudguard of the tractor and the assailant was standing on the earth and in that case, if a fire is shot by gun then directions of wound could be upward or to some extent oblique but nothing can be said with exactitude. In that condition, there is possibility of entry of pellets in brain region. No pellet was found in brain cavity. Trachea was around 4 cm in neck region. He found pellets in trachea and long vessels of neck.

54. PW-3 further stated in paragraph No.23 that if victim was sitting on tractor keeping legs inside and on being hit by firearm shot his legs were on same place and head hung towards driver's seat, in that situation injury Nos.2 and 3 could not have occurred. However, if some box or hard substance was lying downwards to the leg in that situation such injuries could be caused on collision with such object.

55. From perusal of sworn testimony of the Dr. Rakesh Khare (PW-3), it is quite obvious that in normal situation the firearm injuries suffered by the deceased could not have been caused by single shot and this is specific case of prosecution witnesses who have given eye-witness account of the incident that the appellant Suresh had shot one fire by his gun at deceased on his neck which proved fatal and he died on the spot. This is nowhere the case of the prosecution that the assailant fired any other shot at the deceased or some other appellant had fired a shot at deceased. The witnesses of the fact have not stated in their evidence that the deceased also received firearm injury on his hand. Therefore, simultaneous sufferance of firearm injuries by the deceased at same time by single firearm shot on lower arm and neck has not been explained properly by the evidence of prosecution witnesses and this inconsistency between eye-witness account and medical evidence creates a dent on veracity of sworn testimony of eye-witnesses and it appears doubtful that they actually had seen the occurrence. This is consistent case of the defence that the deceased suffered fatal injuries by firearm shot fired by some unknown person and accused appellants were robed in due to enmity. The witnesses have clar that none of the accused assailed the deceased by lathis and injury Nos.2 and 3 were caused to the deceased when he fall on driving seat having received firearm shot.

56. There is undue delay between conclusion of inquest and receiving of dead body at P.M. house which is of two days and seven hours, which is bereft of plausible explanation and it creates doubts on sequence of events put forth by presentation witnesses.

57. No report of serologist from FSL has been brought on record with regard to plain earth and blood stained earth collected from place of incident to fix the identity of place of incident in scientific manner. Enmity between appellants and deceased side has been admitted, which give rise the probability of commission of crime on one hand and false implication on the other hand as in absence of a cogent and reliable prosecution evidence, the probability of false implication of the appellants due to previous enmity cannot be ruled out. Therefore, on giving a thoughtful consideration of submissions of learned counsel for the parties, a meticulous perusal of judgement and re-appreciation of evidence on record, we are of considered opinion that prosecution has failed to prove its case against the surviving appellants beyond reasonable doubt and learned trial court has committed factual and legal error while recording the conviction and sentence of appellants. The surviving appellants deserve to be acquitted of respective charges levelled against them in present appeal and impugned judgement and order passed by learned trial court dated 1.8.1983 in Sessions Trial No.18 of 1981, arising out of Case Crime No.304 of 1980, under Section 302 I.P.C., Police Station Hazrat Nagar, District Moradabad cannot be affirmed and is liable to be set aside.

58. Accordingly, both the aforementioned criminal appeals are hereby allowed and impugned order dated 1.8.1983 is set aside. The surviving appellants namely, Ram Pal Alias Ram Phal and Suresh are acquitted of charge under Sections 302/34 and Section 302 IPC. They were admitted to bail in present appeal by orders of this Court and they need not surrender.

59. Appellants Ram Pal alias Ram Phal and Suresh are directed to furnish a personal bond, each and two sureties each in the likeamount to the satisfaction of the trial court concerned, in compliance of Section 437-A of Cr.P.C. within ten days of uploading of this judgement and order on official website of this Court.

60. Let a certified copy of this judgement and lower court record be sent back forthwith to Sessions Judge, Ghazipur for compliance.

61. Learned Amicus Curiae is entitled to get his professional fee of Rs.25,000/- (Fifteen Thousands), within a period of one month.

Order Date :- 30.7.2024 Kamarjahan

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