Allahabad High Court
Sunil vs State Of U.P. on 17 September, 2019
Author: Umesh Kumar
Bench: Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 47 Reserved on 08.08.2019 Delivered on 17.09.2019 Case :- CRIMINAL APPEAL No. - 2380 of 2012 Appellant :- Sunil Respondent :- State Of U.P. Counsel for Appellant :-L.M. Singh, Dinesh Mishra, M.P. Yadav, P.K. Singh, R.N. Yadav, Sanjay Srivastava, Amit Tripathi Counsel for Respondent :-Government Advocate Connected with Case :- CRIMINAL APPEAL No. - 2107 of 2012 Appellant :- Raju And Another Respondent :- State Of U.P. Counsel for Appellant :-R.N. Yadav Counsel for Respondent :-Government Advocate Hon'ble Ram Surat Ram (Maurya),J.
Hon'ble Umesh Kumar,J.
[Delivered by Ram Surat Ram (Maurya),J.]
1. Heard Sri Amit Tripathi and Sri P.K. Singh in Criminal Appeal No. 2380 of 2012, for the appellant and Sri Anil Kumar Kushwaha, A.G.A. and Sri Om Prakash, A.G.A., for State of U.P. Although the case was taken up in revised list but no one appeared in Criminal Appeal No. 2107 of 2012, for the appellants. Both these appeals arise from the same judgment. As such we propose to decide both the appeals on merit, in view of law laid down by Apex Court in Bani Singh v. State of U.P., (1996) 4 SCC 720, in which it has been held that it is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the court shall adjourn the case if both the appellant and his lawyer are absent. It can dispose of the appeal after perusing the record and the judgment of the trial court.
2. Sunil has filed Criminal Appeal No. 2380 of 2012 and Raju and Baburam have filed Criminal Appeal No. 2107 of 2012, from the judgment of Additional Session's Judge, Court No. 7, Kanpur Nagar, dated 25.05.2012/26.05.2012, passed in S.T. No. 179 of 2010, State of U.P. Vs. Raju and others, [arising out of Case Crime No. 307 of 2009, under Section 460 of Indian Penal Code, 1860 (hereinafter referred to as the IPC) P.S. Bidhnu, district Kanpur Nagar, convicting them under Section 460 IPC and sentencing for imprisonment for life and fine of Rs. 5000/- each, with default stipulation.
3. On the written complaint (Ex-Ka-1) of Chunni Singh (PW-1), FIR (Ex-Ka-8) of Case Crime No. 307 of 2009, under Section 460 IPC was lodged on 26.05.2009 at 4:45 hours, at police station Bidhnu, district Kanpur Nagar, by Head Moharrir Jag Mohan Singh (PW-6) against three unnamed accused. Moti Singh (PW-2) gave a written application on 29.05.2009 to the police station, in which he had disclosed the names of Sunil son of Purshottam, Raju son of Shriram and Baburam son of Ram Gopal as the accused of the aforesaid case. It has been stated in the FIR that the informant Chunni Singh son of Late Ramu Singh was resident of village Kalyanpur, police station Bidhnu, Kanpur Nagar. Moti Singh, his elder brother, was residing in a house by the side of the house of the informant, along with his son and daughter-in-law. Today in the night of 25/26.05.2009, his elder brother and nephew were sleeping outside of their house and daughter-in-law Mamta was sleeping on the roof of the house along with her two children. At about 2:00 AM, his daughter-in-law awoke on the noise, coming from the house. Then she found that three miscreants were going on the roof along with a suitcase, stealing the valuables, from the house. Then, she caught the leg of one miscreant and started shouting. On which, out of them, one of the miscreants fired upon his daughter-in-law with an intention to kill. On the sound of fire and shouts of the daughter-in-law, the informant, his sons Sonu and Rakesh, his elder brother Moti Singh and nephew Raju rushed towards back portion of the house to catch the miscreants. Then one of the miscreant shot fire upon his nephew Raju and all the three miscreants fled away in south side towards fields. Those miscreants have stolen a wooden ladder from the house of Jagdish son of Narain Pasi and set that ladder at the back portion of the house of his brother and climbed of the roof of the house of his brother by it. The ladder was recognized by Jagdish, when he came on the spot along with the other villager. The details of the stolen goods will be given after recovery of health of his daughter-in-law. The almirah kept inside the house was lying open. There was power supply at the time of the incident. In the electricity light, the informant and various villagers had seen the faces of the miscreants and they can identify them, on coming before them. His brother and the villagers have taken his daughter-in-law and nephew to Ursala Hospital, where Raju, his nephew, has died during treatment. After lodging FIR, legal action be taken.
4. After lodging the FIR, SHO Arvind Mohan Jaisawal (PW-7), started investigation. He copied the check FIR and G.D. entry in case diary and recorded statements of Jag Mohan Singh, scribe of the FIR and the informant. Thereafter, he came on the spot along with the police force. Below the almirah, which was inside the house of Moti Singh, he found an iron chisel of the miscreants and prepared its recovery memo (Ex-Ka-2). He collected blood stained earth and plain earth from the place, where Mamta was fallen down after receiving gunshot injury and prepared its recovery memo (Ex-Ka-3). He collected blood stained earth and plain earth from the place, where Raju was fallen down after receiving gunshot injury and prepared its recovery memo (Ex-Ka-4). He found one used cartridge from the field of Amar Singh and prepared its recovery memo (Ex-Ka-5). He inspected the spot on the pointing out of the informant and prepared site-plan (Ex-Ka-10). Then he came to Ursala District Hospital, where dead body of Raju Singh son of Moti Singh was kept in mortuary. On his direction, SI Chhedi Lal conducted Inquest (Ex-Ka-11) of the dead body on 26.05.2009, during 11:00 hours to 13:00 hours. He prepared letters to authorities, photo lash, challan lash etc. (Ex-Ka-12 to Ka-15) for postmortem of the dead body and dispatched the dead body for postmortem through the constable Mohd. Mustafa and home guard Uday Singh. On 27.05.2009, he recorded statements of eyewitnesses Smt. Lalita and Rakesh, who in their statements have named Raju son of Shriram and Sunil son of Parsuram as the accused. On 29.05.2009, Moti Singh gave a written application to him in which, he had named Raju son of Shriram, Sunil son of Parsuram and Baburam son of Ram Gopal as the accused. Then he recorded statement of Moti Singh, in which he had informed that the miscreants had left the stolen suitcase and a three cell Eveready torch in the bushes at the outskirt of the village. He came to the place, where suitcase and torch was lying. He recovered it and prepared its recovery memo (Ex-Ka-7) and handed over these things to Moti Singh. On 30.05.2009, he copied postmortem report and Inquest in case diary and recorded statement of Sughar Singh, Panch of the Inquest. On 08.06.2009, he recorded statements of Gulab Singh, Phool Singh and Charan Singh, other Panches of the Inquest. On 13.06.2009, he recorded statement of Mamta. Mamta also gave a list of stolen properties, which was copied in case diary. On that day he recorded statements of Rajendra Singh. On 23.06.2009, Mamta gave her affidavit, which was taken on case diary. On 24.06.2009, he arrested Raju and Sunil and recorded their statements. On 26.06.2009, he took X-ray Report and Medical Report of Smt. Mamta on the case diary. On 28.06.2009, he recorded statement of Manoj. On 05.07.2009, he recorded additional statement of the informant and statements of Rakesh, Rajendra and Sonu. Baburam surrendered in Court on 15.07.2009. He recorded his statement in jail on 23.07.2009. Thereafter, he was transferred.
5. SHO Shiv Mohan Prasad (PW-8) started investigation from 28.07.2009. He recorded statements of HCP Chhedilal, HG Uday Singh, previous SHO Arvind Mohan Jaiswal on 08.08.2009. On 12.08.2009 he copied the Parcha No. 20 of sending the material for examination to State Forensic Laboratory in the case diary and submitted charge sheet (Ex-Ka-16) against all the accused, on which cognizance was taken.
6. Dr. Ishtiyaq Ahmad (PW-5) conducted autopsy of the dead body of Raju son of Moti Singh on 26.05.2009 at 2:20 PM and prepared Postmortem Report (Ex-Ka-9), in which following ante-mortem injuries were noted:-
(i) Multiple firearm wounds of entry, 8 in number, in an area of 19 cm x 10 cm, present on the lateral part of left thigh, left to the crest oval shaped wound of size 0.5 x 0.5 cm.
(ii) Multiple fire arm wound of entry on right side of abdomen 15 cm below from right nipple, 5 in numbers.
(iii) Multiple firearm wound of entry on middle of chest 5 in numbers, 5 cm below from inner part of left collar bone.
(iv) Firearm wound of entry on left side of chest, oval shaped, 0.5 cm x 0.5 cm, 4 cm below left nipple.
(v) Firearm wound of entry, oval shaped, 0.5 cm x 0.5 cm, on left side of chest, 2 cm below from lateral of left collar bone.
In internal examination, brain and its membranes were pale. Pleura and right lung were pale. Left lung was pale and lacerated. Chest cavity contained about 1-1/2 litre blood. Pericardium was lacerated. Left chamber of heart was empty and lacerated. About 1 litre blood was found in abdomen cavity. Stomach contained 150 ml. semi digested food. Small intestine was half filled with gases and large intestine contained faecal matters and gases. Liver was lacerated and pale. Gall bladder was half full. Spleen was pale. Both kidneys were pale. Urinary bladder was empty. As per doctor's opinion, duration of death was about 1/2 day and cause of death was shock and haemorrhage as a result of ante-mortem firearm injuries.
7. Dr. Ratan Kumar Jaisawal (PW-4) examined Smt. Mamta on 26.05.2009 at 3:50 AM and prepared her Injury Report (Ex-Ka-8) in which following injuries were noted:-
(i) Lacerated wound 3 cm x 1 cm, depth not probed, present on upper part of back, aspect of right chest, 12 cm above the interior angle of right scapulae, blackening present around the wound, bleeding present.
Nature of injury - Injury No. 1 caused by firearm, fresh in duration and is kept under observation. Advised X-Ray and referred to the Radiologist/ Surgeon for expert opinion.
8. On committal, the case was registered as S.T. No. l79 of 2010. Additional Session's Judge framed charges on 22.02.2010. The accused pleaded not guilty and claimed for trial. In order to prove the charges, the prosecution examined Chunni Singh (PW-1), the first informant; Moti Singh (PW-2), father of the deceased Raju Singh, an eye witness, Smt. Mamta (PW-3), injured witness and Dr. Ratan Kumar Jaiswal (PW-4), to prove the injury report (Ex-Ka-8), Dr. Ishtiyaq (PW-5) to prove postmortem report (Ex-Ka-9), HC Jagmohan Singh (PW-6) to prove check F.I.R., SI Arvind Mohan Jaiswal (PW-7), first Investigating Officer and SI Shiv Mohan Prasad (PW-8), second Investigating Officer and filed documentary evidence.
9. All the incriminatory materials were put to the accused under Section 313 Cr.P.C. The accused denied the facts and materials and claimed false implication, due to previous enmity. Baburam has stated that due to party-fraction as well as uprooting the trees from the field of the informant and his brother and throwing it, he has been falsely implicated. Raju son of Shriram has stated that he was resident of village Sachendi. He used to go to this village Kalyanpur as his bua was married there. He used to sit with Sunil, the co-accused due to which he has been falsely implicated. Sunil stated that due to a dispute in relation to the land with the family of the informant, which he has been falsely implicated. The accused did not adduce any evidence.
10. Additional Session's Judge after hearing the parties, by the impugned judgment, has found that the F.I.R. was not ante-timed. The fact that in the F.I.R. nobody was named and after three days of the incident, the accused were named, does not matter, inasmuch as, son of Moti Singh (PW-2) had died and his daughter-in-law was in unconscious position in the incident and due to nervousness, he could not disclose the names of the accused at the time of lodging of F.I.R and subsequently, he disclosed the names of the accused. Non production of independent witness is not fatal. The incident was fully proved from the statements of Chunni Singh, Moti Singh and Smt. Mamta (PWs-1, 2 and 3) who were eye witnesses of the incident. On these findings, he convicted the appellants and sentenced them as mentioned above. Hence, these appeals have been filed.
11. In order to prove the charges, the prosecution has examined Chunni Singh, Moti Singh and Smt. Mamta (PWs-1, 2 and 3) as the witnesses of the facts. Chunni Singh (PW-1) has stated that the deceased Raju was his real nephew and Mamta was his wife. Raju, Sunil and Baburam (the accused present in the Court) were residents of his village. The house of Moti Singh (his elder brother) was beside his house. Raju (the deceased) son of his brother Moti Singh, as well as his daughter-in-law Mamta (the injured) reside with Chunni Singh in his house. The incident took place on 25/26.05.2009 at about 2:00 AM in the night. In the night of the incident, his brother Moti Singh and nephew Raju were sleeping outside the house and Mamta (the injured), his daughter-in-law, was sleeping on the roof with her two young children. At 2:00 AM in the night, on hearing some noise and sound of screaming, he woke up. Three miscreants were going on the roof of his brother Moti Singh after stealing a suitcase. His daughter-in-law caught hold the legs of one of the miscreants and the sound of screaming came. Then, Sunil, one of the three miscreants, fired upon his daughter-in-law Mamta, with an intention to kill. On hearing the sound of firing, he, his elder son Rakesh, his second son Sonu, his elder brother Moti Singh and nephew Raju rushed towards south on the backside of the house to catch the thieves. Suddenly, one of those miscreants fired upon his nephew Raju and all the three miscreants fled away towards the empty fields in the south. These miscreants brought a ladder from the house of one Jagdish (resident of his village), son of Narain Pasi, in order to commit theft and climbed up on the roof of his brother's house, with the help of that ladder. Jagdish recognized his ladder in the morning. His daughter-in-law Mamta could tell about the articles which were stolen. On entering the house of Moti Singh, he found the almirah containing clothes was opened and a chisel was lying there. Power supply was there at the time of the incident. He had seen the faces and get-ups of the miscreants. On coming in front of them, he could recognize them. On recognizing the accused Sunil, Raju and Baburam, who were standing in front of him in the prisoners box, he said that they were the same miscreants who were involved in the incident. His nephew Raju was seriously injured and was alive at that time. He fell down in the fields of Amar Singh after receiving gunshot injury and his daughter-in-law was in the house of Moti Singh, in an injured condition. His brother Moti Singh, as well as other villagers, admitted both the injured in Ursala Hospital for their treatment. His nephew Raju died on the day during treatment and treatment of his daughter-in-law Mamta was done in the hospital and she has survived. His daughter-in-law Mamta also informed him about the incident. He got the report of this incident scribed by Amar Singh and gave at the police station Vidhnu, where it was lodged. On seeing the report, he has identified his signatures on it and said that it was the same report, which got scribed by him and was marked as Ex-Ka-1. Daroga ji had recorded his statement. Daroga ji had recovered one iron chisel on 26.05.2009, lying near the almirah in the house of Moti Singh and took it into his possession, in presence of him and Sudhar Singh, sealed and his signature was taken on the recovery memo. The signature on the exhibit was proved by him and it was marked as Ex-Ka-2. Daroga ji collected blood stained earth and plain earth from the place, where Mamta Yadav had fallen down after receiving gunshot injury and prepared its recovery memo Ex-Ka-3. Daroga ji collected blood stained earth and plain earth from the place, where Raju had fallen down after receiving gunshot injury and prepared its recovery memo Ex-Ka-4. During inspection, Daroga ji found one used cartridge from the field of Amar Singh and prepared its recovery memo Ex-Ka-5.
In cross-examination, he has stated that house of Moti Singh was at a distance of 10 meter from his house, which was in west of his house. The house of Shiv Prasad, his third brother was at a distance of 30 meter from his house, which was in west of his house. On the date of incident, he was sleeping outside of his house. His two sons Rakesh and Sonu were sleeping beside him. Incident took place at about 2:00 PM. He was sleeping at that time but awoke listening the screaming of Mamta. She was alone inside the house, along with her two children. After awaking, he went near the cot of his brother Moti Singh, who was sleeping out side of his house. At that time, he his brother Moti and Raju were there. Remaining persons came later on. His sons Rakesh and Sonu had also come. Listening screaming of Mamta, they also started shouting. His son Rakesh was married. His wife and daughter-in-law were sleeping on the roof of his house. They were also shouting from the roof. Later on, his wife also came below. His field situated at a distance of 4-5 fields from the field of Baburam. They have not planted any tree in his field. It is incorrect to say that the accused had uprooted the trees planted by him at that place. He, his two sons, his brother Moti and nephew Raju came towards backside of the house. About 50 persons had come on the spot. He saw the accused on the roof climbing on his boundary wall, from a distance of 10-15 yards. He, his two sons, Rakesh and Sonu, his brother Moti and nephew Raju saw the accused. Other villagers have also saw the accused but he could not tell their names. He reached at the police station at 4:30 AM, after the incident, along with his nephew Sughar Singh and Roshan Lal. He proceeded for the police station after 45 minutes to one hour of the incident. They went up to Naubasta on cycle and thereafter on the truck. Naubasta was at a distance of 18 kilometer from his village and they covered this distance within one hour. He got the written complaint scribed from Amar Singh after half an hour of the incident, which also took about half an hour. At that time, he did not have any talk with his daughter-in-law. When his daughter-in-law came in conscience in the hospital, then she informed his brother Moti Singh. Due to nervousness, he could not recognize the faces of the accused at that time. As such he had not named the accused in the FIR. Daroga ji recorded his statement, at his house at about 9:30 to 10:00 AM. He did not inform to Daroga ji that his some nephew had called on "100" number to the police. Mamta was shot fire in inner courtyard of the house. He could not seen as to which of the miscreants get down from the ladder. He recognized Sunil, while fleeing away after jumping. Raju son of Shriram caused gunshot injury to Raju son of Moti. He came to know about these facts later on. He saw from a distance of 5 yards, while opening fire. He went in inner courtyard after 2:00 AM, on the date of incident. His daughter-in-law and nephew were unconscious. The daughter-in-law informed, after gaining consciousness, that Baburam was running, taking briefcase in his hand. He left briefcase, at some distance from the house. Rakesh, his son, brought that briefcase. When the miscreants were stepping down from the ladder, their faces were open.
12. Moti Singh (PW-2) has stated that the deceased Raju was his son and the injured Mamta was his daughter-in-law. He knew and recognized the accused Raju son of Shriram, Sunil and Baburam, who were residents of his village. The incident took place in the night of 25/26.05.2009 at 2:00 AM, by the miscreants in his house. They were going with the valuable goods and ornament of the house. At that time his daughter-in-law Mamta awoke and tried to apprehend them, then one of the miscreants fired upon Mamta. On hearing the shrieks of Mamta and sound of fire, he, his son Raju, his brother Chunni Singh and his elder son Rakesh and other family members, who were sleeping in nearby, awoke and rushed towards backside of the house taking torch and lathi. At that time, the miscreants, after stepping down from the roof of his house, were running. At that time, his son Raju rushed towards the miscreants to catch them. Then, the three miscreants fired upon him, which caused injury in the body of his son. His son fell down due to injuries and the miscreants fled away towards the empty fields in south. His brother Chunni Singh lodged FIR of the incident at police station Bidhnu on 26.05.2009. He had become nervous as his son and daughter-in-law were in serious condition. He took his son and daughter-in-law to Ursala Hospital Kanpur, for treatment. His son died in the hospital. Mamta was referred for Hallet Hospital on that day, where she remained admitted for one month. There was power supply at the time of incident. When, the miscreants were fleeing away in flurried condition, then their clothes were removed from their mouth. At that time, he and his daughter-in-law Mamta saw their faces and recognized them. One of them was Baburam son Ram Gopal, the other was Sunil son of Parshuram and third was Raju son of Shriram, who were residents of his village. On coming to know that his brother has lodged FIR against three unknown miscreants, he gave a written application (Ex-Ka-6), scribed by Rajendra Singh to the Daroga ji at the police station, on 29.05.2009, giving the names of Baburam, Sunil and Raju as the accused. Daroga ji came to his house on 29.05.2009. The miscreants threw suitcase of gray colour and one Eveready torch of three cell, in the bushes, which situated near the place, where the miscreants had shot Raju. Daroga ji recovered suitcase and torch from the bushes and prepared its recovery memo (Ex-Ka-7), which was signed by Rakesh and Manoj as the witnesses. There were 8 saries, 8 petticoats and blouses, in the suitcase, which were seen by Daroga ji, in presence of the witnesses, after opening the suit case. The suitcase, the clothes and the torch were given to him, which were brought by him in the Court and were marked as the Material Exhibits-1 to 26.
In cross-examination, he has stated that Sunil son of Parsuram was known to him, as he was born and nourished at his village Kalyanpur Narbal. Raju was not born at his village but he was living at the house of his bua in this village from the age of 24 years. The incident occurred at about 2:00 AM in the night. He was sleeping at that time. On the noise and sound of fire, he awoke. He and his son Raju went in the south side, towards back of his house and saw that three miscreants were stepping down from the roof. Their faces were unclothed. He saw the accused Raju firing upon his son Raju from a distance of 10 paces. His village is in two parts. The part in which he lived, some peoples had come there. He recognized the accused there. He made a hue and cry. He did not say that Baburam, Sunil and Raju had run away after firing upon his son Raju. He took care of his son and with the help of the villagers, he brought him to Ursala Hospital. The suitcase which was recovered after three days, was not found where the fire was made upon his son. The suitcase was for the first time seen by Rakesh and Manoj and they had brought it to Daroga ji, who was sitting at that time outside the house of his younger brother Chunni Singh. The suitcase was got opened by Daroga ji before him. He did not know whether the suitcase was lying open or not. Rakesh and Manoj brought it by holding both sides. In the suitcase, there were 8 saris, 8 petticoats, 8 blouses and one Eveready Torch, which were kept in the suitcase before him at the time of deposition before the court. In the night of incident, he had another torch. He did not bring that torch on that day and he did not show it to Daroga ji. He did not go to that place where the suitcase was lying. The distance between the bush and the place where Daroga ji was sitting was 20-22 meters. Thereafter, Daroga ji took the suitcase in his possession and handed over its custody to Rakesh and Manoj. He also signed the recovery memo. The saris were colourful. He did not know the specific colours of the saris. Nothing except saris, petticoats and blouses were found in the suitcase. No ornaments were kept in the suitcase. Daroga ji had recorded his statement at that time. Daroga ji had left our place after one hour and he did not record any other statement, expect his statement. It is incorrect to say that the suitcase recovered on the third day, was false. Daroga ji had recorded his statement on 29.05.2009 at 03:30 PM, at the time when he came there to make inquiry in the village. He did not see the person firing as the fire was shot from the roof. He saw the person firing for the first time when he was stepping down from the ladder. As no clothe was there on his face, as such, he could identify the person as Sunil. All the three accused were stepping down from the ladder together. After that Raju came down from behind Sunil, who fired upon Raju (Moti Singh's son). Baburam was coming down from behind Raju. As he was nervous due to his son, he could not see where Baburam threw the suitcase. He had given statement to Daroga ji that Baburam had thrown the suitcase towards the bushes. On 29.05.2009, Daroga ji, went to the house of the accused for search along with my other family members, except me. Mamta was unconscious due to gunshot injury and he had a talk with Mamta after two days of the incident. At the time of incident, he did not make any conversation with his family members, due to the injuries sustained by his son Raju and daughter-in-law Mamta. Within 20-30 minutes of the incident, he, with the help of other villagers, took both the injured to Ursala Hospital at about 02:30 AM in the night. It is incorrect to say that the trees planted by them were uprooted by the accused, due to which he had falsely implicated the accused. The accused Sunil was resident of his village and he and his family knew him very well. Chunni Singh, his brother also knew Sunil, the accused. After firing, when he saw the accused, then his brother Chunni Singh, his son Raju and his nephew Rakesh and Sonu were also with him. When he first time saw the accused, then the accused were at a distance of 10 paces from him in south. The police came to the hospital on the next day of the incident, i.e. 26.05.2009 at 07:00 AM in the morning. At that time, he did not disclose the names of the miscreants, namely Sunil, Raju and Baburam, as he was perplexed. After the incident, he met Chunni Singh at the hospital. When he came back to the house, Chunni Singh told him that he had already lodged the F.I.R. As Mamta was his daughter in law, as such, he did not see whether blood was oozing from her injuries or not. He had seen the injuries of Raju. He could not say that there were five gunshot injuries on the body of Raju. He was not witness of Inquest, but he was present on the spot. Daroga ji came to the hospital to record his statement. On that day he recorded his statement alone. On the very day, i.e. 29.05.2009, he had also given an application to Daroga ji in which he had mentioned the names of the accused. He had dictated the application to his nephew Rajendra. It is incorrect to say that Daroga ji had got the application dictated and he signed it. Mamta remained admitted in the hospital for a period of 20 days and she regained her consciousness in the evening of 28.05.2009. It is incorrect to say that some other miscreants had committed the incident and due to darkness in the night, he could not recognize them. It is also incorrect to say that Sunil was not involved in this incident. He did not know whether the family members of Sunil had dialed on "100", due to which the police came on the spot. It is also incorrect to say that with due deliberations, as well as party-fraction, he falsely has implicated Sunil in this case.
13. Smt. Mamta (PW-3) has stated that she knew the accused Raju, Sunil and Baburam and they belonged to her village. The deceased Raju son of Moti Singh was her husband. The incident took place on 26.05.2009 at 2:00 AM in the night. Marriage of Anant Pal, her cousin was held on 07.05.2009 at village Shitalpur. She went in that marriage and came back on 12.05.2009. When she came back from marriage her clothes i.e. sari, blouse and petticoat (08 pairs each) were kept in gray coloured suitcase. She, with her two children namely Sheelu and Shalu, was sleeping on the roof in the night of the incident. The children are young. Raju her husband and her father-in-law were sleeping outside the house and other villagers were also sleeping outside their doors. At 2:00 AM in the night, she heard some noise from her room and after awaking up when she heard it carefully then she saw that three persons were going towards the roof from the staircase. Two persons had crossed her and the third one was on the staircase, whose name was Baburam. The bulbs were lightening in her house and the light of sodium bulbs affixed on the electricity poles were coming on the staircase and the roof. She entangled with the legs of Baburam, the third person. Her gray coloured suitcase was in the hand of Baburam. During scuffling, the scarf on the mouth of the accused was opened and she recognized Baburam. She was shouting loudly then Baburam screamed to Sunil for help as he was caught. Thereafter Sunil and Raju came there running and Sunil fired on her right shoulder from behind. Sunil and Raju also ran in hurry due to which the clothes tied on their faces were opened, on which she recognized Sunil and Raju also. The miscreants opened fire and fled away with the suitcase. When Sunil fired upon her on the staircase then she fell down from the staircase in the courtyard. At that time, she heard another gunshot sound, Thereafter, she became unconscious. She regained her consciousness on the third day of incident in Hellet Hospital. When she regained her consciousness on the third day then she told the whole incident to her father-in-law Moti Singh. She remained in the hospital for about 18 days from where the bullet was brought out from her injury, by surgery. She went to her father's house from the hospital. From the father's house, she went to her in-law's house after 5-6 days. Daroga ji recorded her statement in her house after 20-22 days after the incident. The miscreants had stolen her one pair of gold jhumki, one gold necklace, one gold ladies chain, one gold mala, one silver half belt, one silver bunch of key, two pairs of silver payal, three pairs silver bichhiya. These ornaments were not received back to her.
In cross-examination, she has stated that she had gone to her father's house on 07.05.2009 to attend the marriage and came back on 12.05.2009. 13-14 years has expired after her marriage. She had two children Sheelu, aged about 10 years and Shalu aged about 6-7 years. She used to live inside her in-laws house only. She never went out to the house, in connection with domestic work. She never went to the house of Sunil nor she knew how far his house was. She did not know the parents, brother and sister of Sunil. She never met with Sunil before this incident. She knew Sunil by face. She has seen him in the way while coming and going and the villagers used to tell his name as such she knew him. 4-6 days prior to this incident, she had seen Sunil. She had locked her room in the night of the incident and went to the roof along with her children to sleep. Two sodium bulbs were lightening on both sides of exit of her house, at a distance of 20 to 25 meter from the place where she was sleeping. Two bulbs were lightening in the courtyard of her house. On the date of incident, electricity supply was continued during whole night. She became unconscious on the spot and regained her consciousness on the third day of the incident, then she told the name of the accused persons namely Sunil, Baburam and Raju to her father-in-law. It is incorrect to say that on tutoring, she had given statement. It is also incorrect to say that some unknown miscreants had caused the incident and my father-in-law had falsely implicated Sunil due to previous enmity. The staircase, from where she was fallen down was of total 14 stairs. She was fallen down from tenth stair. At the time of falling in courtyard, she was conscious. She heard sound of other fire. She opened the bolt of the doors and at that time she fell down. Then she had become unconscious. When she entangled with the legs of the accused at the staircase, she received gunshot injury. When the miscreants came, she was sleeping. She awoke on the sound of the miscreants. All the accused belonged to her village. She could not tell the village of Raju. Prior to the incident, she saw Raju 2-4 times, who used to come to the village. Her family members used to introduce the names of the persons passing from her house. She had seen Baburam about ten times prior to the incident. She had caught Baburam on the staircase. All the three miscreants were coming towards the roof through staircase. Raju came on the roof first, thereafter Sunil came. She did not catch them and remained watching them standing by the side of staircase. It is incorrect to say that Baburam and Raju had enmity with my family. Daroga ji recorded her statements after 20-25 days of the incident. She regained conscience after three days. Thereafter, she had become unconscious for about 10 days again. She knew residents living in nearby the locality of his house. In front of her house, there was a brick-paved road. It is incorrect to say that the accused had not caused any incident in her house and she had falsely implicated them on tutoring of Daroga ji.
14. According to the prosecution, Sunil, Raju son of Shriram and Baburam (the appellants) trespassed the house of Moti Singh (PW-2), through roof, in the night of 25/26.05.2009, with an intention to commit theft, using a wooden ladder, from the backside of his house. When the accused were breaking the lock of almirah of Moti Singh, through an iron chisel, Smt. Mamta (PW-3), who was sleeping on the roof along with her two children, awoke on listening the sound. By the time, she could understand any thing, the three accused came on the roof through staircase, from the house. Two of them crossed Smt. Mamta on the roof. But she entangled with the legs of Baburam, who was carrying her suitcase in his hand at 2:00 AM at the staircase. During scuffling, the scarf on the mouth of Baburam was opened and she recognized Baburam, in the light of sodium bulbs coming on her roof from the electric poles of outside her house and two bulbs ligheting in her inner courtyard. She shouted loudly for help then Baburam screamed to Sunil for help as he was caught. Thereafter, Sunil and Raju came there running and Sunil fired upon her right shoulder. Sunil and Raju also ran in hurry due to which the clothes tied on their faces were opened, on which she recognized Sunil and Raju also. When Sunil fired upon her on the staircase then she fell down from tenth staircase in the courtyard. Thereafter, she stood up and opened the bolt of the main door of the house. At that time, she heard another gunshot sound. Thereafter, she became unconscious and fell down. She regained her consciousness on the third day of incident in Hellet Hospital. On her shouts and on sound of fire, Moti Singh, his son Raju and Chunni Singh and his sons, who were sleeping outside their houses, awoke. They immediately came to the backside of the house. At that time, the accused were stepping down from the ladder and their faces were opened. Chunni Singh and Moti Singh (PWs-1 and 2) recognized the accused in the light of torch and electricity. When Raju chased them to catch, they fired upon Raju, which hit him. The accused fled away towards the field in south. Moti Singh (PW-2) brought Raju and Smt. Mamta to Ursala District Hospital, where Raju was declared dead and Smt. Mamta was examined on 26.05.2009 at 3.50 AM. Chunni Singh lodged the FIR of the incident on 26.05.2009 at 4:45 hours. The suitcase was recovered on 29.05.2009 from the bushes at outskirt of the village. Therefore, the appellants have committed offence of lurking house-trespass by night and voluntarily caused death of Raju son Moti Singh and grievous hurt to Smt. Mamta wife of Raju.
According to the appellants, this was a dark night incident and no one had recognized the accused. Therefore, the FIR was lodged against three unnamed accused. During investigation, the police introduced two eye witnesses, namely Smt. Lalita and Rakesh on 27.05.2009, who had allegedly recognized them. Thereafter, the police obtained the alleged application from Moti Singh on 29.05.2009, in which their names had been disclosed. In fact, none of the witnesses have recognized the accused. Smt. Lalita and Rakesh were not produced in the Court. According to the witnesses Chunni Singh Moti Singh and Smt. Mamta (PWs-1, 2 and 3) single shot was made upon Raju son of Moti Singh by the accused Raju, while on the body of the deceased five gunshot wound of entry were found, which shows that these witnesses were not on the spot. Entangling with the legs of Baburam by Smt. Mamta (PW-3) does not appear to be probable as Mamta was on roof while the accused were coming from ground floor of the house. Smt. Mamta (PW-3) is a tutored witness as she being a bride at this village, did not go out of her house as such it was not possible for her to recognize the accused.
15. We have considered the arguments of counsel for the parties and examined the record. Incident allegedly took place on 26.05.2009 at 2:00 AM, in which, during house trespass of Moti Singh, one of the accused caused gunshot injury to Smt. Mamta (PW-3) on the staircase of her house and while running, they caused gunshot injuries to Raju son of Moti Singh, on the backside of the house. FIR of the incident was promptly lodged by Chunni Singh (PW-1) on 26.05.2009 at 4:45 hour at police station Bidhnu, which was at a distance of 22 kilometer from the place of incident, as proved by Jag Mohan Singh (PW-6), who has also stated that after lodging the FIR, he had sent information to superior officer on R.T. Set on 26.05.2009 at 4:50 hours. Moti Singh (PW-2) brought Raju and Smt. Mamta to Ursala District Hospital, where Raju was declared dead and Smt. Mamta was examined on 26.05.2009 at 3.50 AM and her Injury Report (Ex-Ka-8) was proved by Dr. Ratan Kumar Jaisawal (PW-3), in which it has been mentioned that she had received one gunshot injury on her right side of back of the body. The incident has not been denied by the accused.
16. Chunni Singh (PW-1) has narrated entire prosecution story in the FIR except the names of the accused. In the FIR he did not disclose as to how he came to know about the incident occurred on the roof. In the FIR, it has been stated that at the time of the incident, there was power supply and in the light of electricity, he and others had recognized the accused. On coming before his, he can identify the accused. Chunni Singh (PW-1), in his examination-in-chief, has stated that he had awaken at about 2:00 AM on hue and cry coming from the roof. After hearing the sound of fire, he, his brother Moti and their sons rushed towards backside of the house to apprehend the accused. Then one of the three accused shot fire upon his nephew Raju and they ran away towards field. In cross-examination, he has stated that due to nervousness, he could not recognize the faces of the accused at that time. As such he had not named the accused in the FIR. All the accused were residing in the same village and were well known to Chunni Singh. If Chunni Singh had seen the accused in the electricity light, then there was no reason for him for not disclosing their names in the FIR. Further according to Chunni Singh, only one accused fired upon Raju (the deceased), while on the body of Raju five gunshot wounds of entry were found as such his oral testimony is not corroborated with medical evidence. Presence of Chunni Singh (PW-1) on the place of occurrence at the time of incident appears to be doubtful. His statement is relevant for proving the lodging of FIR only.
17. Moti Singh (PW-2) is the father of the deceased Raju. At the time of incident, he and Raju were sleeping outside his house. He stated that on hearing the shrieks of Mamta and sound of fire, he, his son Raju, his brother Chunni Singh and his elder son Rakesh and other family members, who were sleeping in nearby, had awaken and rushed towards backside of the house taking torch and lathi. At that time, the miscreants, after stepping down from the roof of his house, were running. At that time, his son Raju rushed towards the miscreants to catch them. Then, the three miscreants fired upon him, which caused injury in the body of his son. His son fell down due to injuries and the miscreants fled away towards the empty fields in south. He had become nervous as his son and daughter-in-law were in serious condition. He took his son and daughter-in-law to Ursala Hospital Kanpur, for treatment. His son died in the hospital. Mamta was referred for Hallet Hospital. When, the miscreants were fleeing away in flurried condition, then their clothes were removed from their mouth. At that time, he and his daughter-in-law Mamta saw their faces and recognized them. On coming to know that his brother has lodged FIR against three unknown miscreants, he gave a written application, scribed by Rajendra Singh to the Daroga ji at the police station, on 29.05.2009, giving the names of Baburam, Sunil and Raju as the accused.
18. Smt. Mamta (PW-3) is an injured witness. She has stated that at 2:00 AM in the night, she heard some noise, coming from her room and after awaking up when she heard it carefully then she saw that three persons were going towards the roof from the staircase. Two persons had crossed her and the third one was on the staircase, whose name was Baburam. The bulbs were lightening in her house and the light of sodium bulbs affixed on the electric poles were coming on the staircase and the roof. She entangled with the legs of Baburam, the third person. During scuffling, the scarf on the mouth of the accused was opened and she recognized Baburam. She was shouting loudly then Baburam screamed to Sunil for help as he was caught. Thereafter, Sunil and Raju came there running and Sunil fired on her right shoulder from behind. Sunil and Raju also ran in hurry due to which the clothes tied on their faces were opened, on which she recognized Sunil and Raju also. When Sunil fired upon her on the staircase then she fell down from the staircase in the courtyard. At that time, she heard another gunshot sound. Thereafter, she became unconscious. She regained her consciousness on the third day of incident in Hellet Hospital. In cross-examination, she has stated that he had fallen down from 10th stair.
19. Statements of Moti Singh (PW-2) and Smt. Mamta (PW-3) are fully corroborated with each other. Smt. Mamta is an injured witness who received gunshot injury. One bullet was recovered from her wounds, of which recovery memo (Material Exhibit-34) was prepared by SI Arvind Mohan Jaiswal (PW-7). Her presence on the spot cannot be doubted. 13 years had expired of her marriage. Although she was not going to the field for working, but she knew the villagers, who used to pass through her house. All the accused belonged to her village. As such, it was possible for her to recognize them in the light of electricity bulbs. According to her, she entangled with the legs of Baburam, the third person, when he had come on the roof. During scuffling, she might have stepped down four stair, on the staircase. Baburam also called Sunil, taking his name, for his help. Supplying the names of the accused, three days after lodging the FIR was also explained as Moti Singh remained with his son and daughter-in-law in hospital. He could not know that in FIR, no body was named by his brother Chunni Singh. As soon as he came to know this fact, he gave application on 29.05.2009, disclosing the names of the three accused.
20. So far as the arguments that 5 gunshot entry wounds were found on the body of the deceased Raju, while according to the witnesses, single shot was made upon him, is concerned, Moti Singh (PW-2) is an eye witness. According to him, all the three accused simultaneously shooted upon Raju. From three gunshot, five entry wounds are possible as some of the wounds may be caused due to disbursal of pellets. On this ground, statement of Moti Singh (PW-2) cannot be said to be not corroborated with medical evidence. So far as Smt. Mamta (PW-3) was concerned, at that time, she was in inner courtyard and tried to open door of her house. She listen the sound of fire and thereafter, had become unconscious and fell down.
21. So far as the arguments, that there was no recovery of stolen ornaments from any of the accused and recovery of suitcase was planted by the police and doubtful are concerned, for the offence under Section 460 IPC, stealing the goods is not an essential ingredient. Section 460 IPC provides that if, at the time of the committing of lurking house-trespass by night or housebreaking by night, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house-trespass by night or housebreaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
In the present case, house trespass by the accused, on 25/26.05.2009, in night has been fully proved from the statement of Smt. Mamta (PW-3). The accused have caused grievous gunshot injury to Smt. Mamta and fatal injury to her husband Raju, in connection with house trespass, which has been proved from statements of Moti Singh and Smt. Mamta. Thus they have committed offence under Section 460 IPC. Raju son of Moti Singh has died as such they were rightly awarded maximum punishment of life sentence.
22. In view of aforesaid discussions, aforementioned appeals have no merit and are dismissed.
23. Registry is directed to transmit the original record of the Trial Court and the judgment for immediate compliance to the Court concerned. The Trial Court is obliged to communicate compliance report to this Court forthwith.
Order date: 17.09.2019 Jaideep/-
[Umesh Kumar,J.] [ Ram Surat Ram (Maurya),J.]