Uttarakhand High Court
Rajveer Singh vs State Of Uttarakhand on 24 July, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
Judgment reserved on:-20.06.2024
Judgment delivered on:-24.07.2024
HIGH COURT OF UTTARAKHAND AT NAINITAL
Crimial Appeal No. 145 of 2014
Rajveer Singh ........Appellant
Vs.
State of Uttarakhand ........Respondent
With
Crimial Appeal No. 683 of 2019
Rambeer Singh & another ........Appellants
Vs.
State of Uttarakhand ........Respondent
Present:-
Mr. S.R.S. Gill, learned counsel for the appellants.
Mr. J.S. Virk, learned Deputy Advocate General for the State.
Coram : Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Per: Hon'ble Pankaj Purohit, J.
Criminal Appeal No.145 of 2014, Rajveer (Rajbeer) Singh Vs. State is directed against the judgment and order dated 06.02.2014, passed by learned IVth Additional Sessions Judge, Haridwar in Sessions Trial No.98 of 2010 (old number) 991 of 2013 (new number), State Vs. Rajbeer Singh and others, whereby appellant- Rajbeer Singh was convicted under Section 302/34 of IPC and sentenced for life imprisonment with a fine of ₹10,000/-, and in default stipulation further three months additional simple imprisonment.
2. Criminal Appeal No.683 of 2019 is directed against the judgment and order dated 23.10.2019, passed by learned IInd Additional Sessions Judge, Haridwar in Sessions Trial No.274 of 2014 2 (Case Crime No.249 of 2005), State Vs. Rajbeer Singh and others, whereby the appellants Rambeer and Rambhajan were convicted under Sections 302/34 and 307/34 of IPC and were sentenced for life imprisonment under Section 302/34 of IPC with a fine of ₹10,000/- with default stipulation of six months additional simple imprisonment and ten years imprisonment and a fine of ₹5,000/- with default stipulation of three months each and simple imprisonment under Section 307/34 of IPC.
3. Both the sentences were directed to run concurrently and it is also directed that the period spent in jail by the appellants shall be set-off with the sentence imposed upon them.
4. Since both the trials have arisen out of one and the same FIR, therefore both the appeals are being decided together by this common judgment.
5. Case of the prosecution was set into motion, when an FIR (Ex.Ka-3) was lodged by PW2-Ramveer Singh in Police Station Jwalapur, Haridwar on 28.06.2005, wherein it has been stated that on 28.06.2005 informant left the house of Narendra Kumar for going to their home with his Uncle-Mahipal Singh and Nephew-Anil Kumar. As soon as they reached near Yaseen ka Bagh at about 08:15 hours, appellants came out of the garden and opened fire on them; Mahipal sustained one bullet and died on the spot, on the other hand informant and Anil had a narrow escape and on raising alarm they ran-away while the appellants also fled away from there. In the FIR, it was further averred that on 14.10.2003 appellants murdered six persons in the village and Mahipal Singh was a witness in that case; Ishwar Singh and his sons were accused in that case, which was pending in the court; Ishwar Singh was pressing upon them to withdraw the said criminal case and not to give evidence and threatened them wife life. The report of which was lodged by Sukhpal Singh in Police Station 3 Babri, on 17.05.2005. It was stated in the FIR that after releasing on bail Ishwar Singh was conspiring to kill them.
6. On the basis of the aforesaid report, a chick FIR was lodged in Police Station Jwalapur, Haridwar on 28.06.2005 against the appellants and a Case Crime/FIR No. 249 of 2005 under Sections 302, 307 and 120-B IPC was registered at Police Station Jwalapur, Haridwar.
7. After lodging of the FIR, the investigation ensued and inquest was drawn. On 28.06.2005 at 10:15 A.M. body of Mahipal Singh was sent for post-mortem; plain earth and blood stained earth were recovered from the spot and a memo (Ex. Ka-10) was prepared; from the spot two empty cartridges of 315 bore and one live cartridge were recovered and a memo to that effect was also prepared (Ex. Ka-
11). A memo of taking possession of shoes and slippers (Ex. Ka-12) on the spot was also prepared. The site plan was drawn and finally after recording statement of the witnesses under Section 161 CrPC and after completion of investigation a charge-sheet was submitted against the appellants and one Ishwar Singh under Sections 302/34, 307/34 and 120-B IPC.
8. After committal of the case by the learned Chief Judicial Magistrate, Haridwar to learned Sessions Judge, Haridwar charges were framed against the appellant-Rajbeer Singh under Sections 302/34, 307/34 and 120-B IPC. Similar charges were framed against the appellant-Rambeer Singh and Ram Bhajan Singh under the same sections. All the appellants pleaded guilty and claimed to be tried.
9. Sessions Trial No.401 of 2005 (old number) and No 737 of 2013 (new number), State Vs. Ishwar Singh and Sessions Trial No.98 of 2010 (old number) and No.991 of 2013 (new number), State Vs. Rajbeer Singh were consolidated vide order dated 31.05.2012, passed by learned IIIrd Additional Sessions Judge/F.T.C., Haridwar and 4 Sessions Trial No.401 of 2005, State Vs. Ishwar Singh was made leading file. Before consolidation of the aforesaid two criminal appeals, the prosecution produced PW1-Head Constable Vinod Kumar, PW2-Ramveer Singh, PW3-Anil Kumar in Sessions Trial No.401 of 2005 State Vs. Ishwar Singh, in Sessions Trial No.98 of 2010 State Vs. Rajbeer Singh, PW1-Constable Vinod Kumar, PW2- Ramveer Singh (informant), PW3-Anil Kumar had already been examined.
10. After consolidation of Sessions Trial No.401 of 2005 and No. 98 of 2010, the prosecution examined PW4-Surendra Kumar Kaushik, PW5-Ret. S.I. K.V.N. Tyagi, PW6-Dr. Ardhendu Day, PW7- Inspector Avval Singh Rawat, PW8-Retd. H.C.P. Ompal Sharma, PW9-Parmender and PW10-Manoj. After recording of the prosecution evidence the statement of appellant-Rajbeer Singh and accused-Ishwar Singh were recorded on 27.11.2013, in which appellant-Rajbeer Singh and accused-Ishwar Singh denied case of the prosecution and submitted that prosecution was launched against them by fabricating documents, and the witnesses are telling lie against them.
11. In defence one DW1-Naushad and DW2-Rohtash were examined by appellant-Rajbeer Singh and accused-Ishwar Singh.
12. The trial court after meticulous examination of the prosecution evidence found that the prosecution proved its case beyond all reasonable doubt against the appellant-Rajbeer Singh under Section 302/34 of IPC while the accused-Ishwar Singh was acquitted of the charges under Sections 302/34, 307/34 and 120-B IPC. Accordingly Rajveer Singh was convicted under Section 302/34 of IPC while co-accused Ishwar Singh was acquitted.
13. The trial of the appellant-Rambeer Singh and Ram Bhajan Singh was decided by a separate judgment and order dated 23.10.2019, passed by learned IInd Additional Sessions Judge, Hardiwar and 5 appellant-Rambeer Singh and Ram Bhajan Singh have been convicted under Sections 302/34 and 307/34 IPC as stated in para no.2 of this judgment.
14. The delay in trial of Rambeer Singh and Ram Bhajan Singh is due to absence of Rambeer Singh and Rambhajan Singh. File of Rambeer Singh and Rambhajan Singh was separated by learned Chief Judicial Magistrate, Haridwar vide order dated 01.10.2009. Accordingly Rajbeer Singh was convicted on 06.02.2014 by learned IVth Additional Sessions Judge, Haridwar while the appellant-Rambeer Singh and Rambhajan Singh were convicted vide subsequent judgment and order dated 23.10.2019, passed by learned IInd Additional Sessions Judge, Haridwar.
15. The prosecution of the case is based on the eye-witness account of PW2-Ramveer Singh s/o Ram Niwas and PW3-Anil Kumar. PW2-Ramveer Singh supported the prosecution case by narrating the incident as stated in the FIR by him. PW2-Ramveer Singh implicated Rajbeer Singh, Rambhajan Singh and Rambeer Singh by saying that around 08:00 to 08:05 hours in the morning when PW2- Ramveer Singh and PW3-Anil Kumar along with Mahipal Singh reached near a garden, yashin ka bagh, from where Rajbeer Singh, Ram Bhajan and Ramveer came out and opened fire on them. The shot hit Mahipal Singh and he fell on the spot and PW2-Ramveer Singh and PW3-Anil Kumar ran-away from the place of incident to save their life. PW2-Ramveer Singh further stated in his evidence that on 14.10.2003, the appellants killed six persons. In that case brother and uncle Mahi Pal of PW2-Ramveer Singh were witnesses. The appellants threatened them that if they give evidence in the murder trial, they will be killed. PW2-Ramveer Singh deposed that he did not inform the police station about threatening but only communicated to the S.O. In murder case of the village Ishwar Singh was on bail and PW2-Ramveer Singh had no talks with Ishwar Singh. PW2-Ramveer 6 Singh deposed that Ishwar Singh was instrumental in giving threats that if they give evidence in the trial, they would be killed. He further deposed that all the appellants planned to kill all of them and this was known to all the relatives of PW2- Ramveer Singh. PW9-Permender knew that Ishwar Singh and others were hatching a plan to kill them. PW2-Ramveer Singh further proved (Ex.Ka-3) the FIR. Though PW2- Ramveer Singh was subjected to lengthy cross-examination by the appellants, but he could not be discredited.
16. PW3-Anil Kumar is also eye-witness of the incident in which Mahipal Singh lost his life. He also categorically supported the case of the prosecution and stated on oath before the trial court that on 28.06.2005 at about 08:00 to 08:15 when they started from Mangalam Vihar to Butrara, as soon as they reached gulal road near Yaseen ka bagh Rambeer, Rambhajan and Rajbeer came out of the garden with tamancha in their hands and opened fire on them hurling abuses. One bullet hit Mahipal Singh; they raised alarm and ran-away towards gulal gate. PW2-Ramveer Singh and PW3-Anil Kumar went to police station and lodged report. PW3-Anil Kumar also deposed that on 14.10.2003 these persons killed some of his family members by firing bullets at them in his village Butrara, in which incident Sukhpal Singh escaped. PW3-Anil Kumar further deposed that his grandfather- Mahipal Singh was a witness and that case is pending against Ishwar Singh. PW3-Anil Kumar submits that co-accused Ishwar Singh also threatened them to turn hostile, lest they would be killed. PW3-Anil Kumar categorically stated that his uncle Sukhpal Singh has reported the matter regarding the threat in Police Station Babri. Co-accused Ishwar Singh was released on bail in the year 2003 and after getting out on bail he hatched a plan of murdering Mahipal Singh.
17. This witness PW3-Anil Kumar was also subjected to lengthy cross-examination, but he could not be discredited. PW1-Head Constable Vinod Kumar is a Police witness, who lodged a chick FIR.
718. PW4-Surendra Kumar Kaushik is a witness of inquest, the recovery memo of plain earth and blood stained earth, the recovery of two empty cartridges and one live cartridge and is also of recovery of shoes and slippers found strewn on the place of occurrence. He supported and proved the memo before the court and the documents prepared during investigation were proved and exhibited during the trial. PW5-K.V.N. Tyagi is also a police witness. PW6-Dr. Ardhendu Day is Medical Officer, who had drawn autopsy on Mahipal Singh (deceased) and proved and supported the post-mortem report. From the post-mortem report, two ante-mortem gun-shot injuries were found on the person of the Mahipal Singh.
19. According to PW6-Dr. Ardhendu Day the cause of death is due to shock and haemorrhage on account of ante-mortem injuries caused by fire arms. PW6-Dr. Ardhendu Day further recovered bullet from body of the deceased and the same was kept in an envelope and sealed and after handed over to the police officials. He proved the post-mortem report (Ex. Ka-15) and the bullet (material Ex. Ka.6).
20. PW7-Inspector Avval Singh Rawat, who is Investigating Officer. He also proved the entire police investigation and narrated the manner in which investigation proceeded and finally charge-sheet was submitted.
21. After the statement recorded under Section 313 of CrPC in Sessions Trial No.401 of 2005 two defence witnesses DW1- Naushad Khan and DW2-Rohtash were examined by the accused persons. These defence witnesses were examined in order to prove the fact that at the time of the said incident PW2-Ramveer Singh and PW3-Anil Kumar were in their Village Butrara at the time of occurrence and they went Haridwar along with DW1-Naushad Khan, but in cross examination these two DWs' could not sustain to their examination in chief and nothing could be elicited from them which 8 would go in favour of the defence. After conclusion of the trial the appellants were convicted and sentenced accordingly.
22. Heard learned counsel for the parties.
23. Learned counsel for the appellants argued that the eye- witness PW2-Ramveer Singh and PW3-Anil Kumar were not eye- witness and were not present at the time of murder at the place of incident. He further argued that as per the case of the prosecution all the appellants open fired upon them and surprisingly none of the eye- witness PW2-Ramveer Singh and PW3-Anil Kumar got injuries and only Mahipal Singh was shot and succumbed to those fire arm injuries.
24. Learned counsel for the appellant therefore submitted that presence of these two eye-witnesses PW2-Ramveer Singh and PW3- Anil Kumar is highly doubtful and they appears to be procured witness in order to substantiate prosecution version.
25. It is further argued by learned counsel for the appellant that there are various contradictions and development in the evidence of prosecution witnesses and as such the same cannot be believed and it would not be safe to convict the appellant on the testimony of PW2- Ramveer Singh and PW3-Anil Kumar. He further argued that none of the eye-witness is a witness to any of the police papers like inquest and recovery memos. If is further argued by learned counsel for the appellant that due to enmity and rivalry between the parties, the appellants have been falsely implicated with the aforesaid crime and they are innocent and cannot be convicted and sentenced.
26. In order to substantiate his argument, learned counsel for the appellants relied upon the following case laws, which are as follows:-
91. Vikram @ Virma Vs. State of Madhya Pradesh reported in (2022) 1 SCC 341.
2. State of Uttarakhand Vs. Darshan Singh (SC) Law Finder Doc. Id:-1618808
27. On the basis of the aforesaid judgment, it is vehemently argued by learned counsel for the appellant that there is inconsistency in the evidence of the prosecution witness and where there is inconsistency in the evidence of prosecution witnesses even in case of direct evidence no conviction can be recorded.
28. It is further argued by learned counsel for the appellant on the strength of Vikram @ Virma (supra) that three persons have been alleged to have opened fire upon Mahipal Singh and only one bullet injury was there on the person of the deceased and in that event it would not be safe to convict all the three persons.
29. It is also submitted by learned counsel for the appellants that the position of bullet in the body and its entry and exit wound do not suggest the manner prosecution eye-witnesses are portraying the incident. The bullet travelled in the body of the deceased from back and came out from the neck and this would not suggest the manner the incident alleged to have taken place by the eye-witnesses. This action of entry and exit wound in the body of the deceased reflects that the bullet was fired from a lower trajectory.
30. It is also submitted by learned counsel for the appellant that there is fault in investigation, even the blood stained clothes were not recovered and sent for forensic examination by the Investigating Officer.
31. It is also submitted that two empty cartridges and one live cartridge were recovered from the place of incident, which is against 10 the ocular version of the prosecution, wherein as per the statement of eye-witnesses PW2-Ramveer Singh and PW3-Anil Kumar multiple round of firing was done by the appellants-assailants. In that situation there should be recovery of more empty cartridges from the place of occurrence. The Investigating Officer never sent empty cartridges or live cartridges for Forensic Science Examination, which makes the presence of eye-witness doubtful on the place of occurrence.
32. On the basis of the aforesaid submissions, it was argued by learned counsel for the appellants that Investigating Officer conducted the faulty and defective investigation and for that reason the entire prosecution case crumbled down and the appellants are entitled to be given benefit of doubt.
33. Per-contra, learned Deputy Advocate General for the State has stated that the judgment and order by which the appellants were convicted is well reasoned judgment that cannot be interfered with for the reason that the case of the prosecution is based on direct evidence. PW2-Ramveer Singh and PW3-Anil Kumar are the eye- witnesses, who supported the case of the prosecution in court also. The evidence of these two eye-witnesses could not be impeached or discredited despite lengthy cross-examination. It is further argued by him that co-accused Ishwar Singh and appellants are father and sons and they have killed six persons in their Village Butrarna in the family of the deceased Mahipal Singh and he was one of the witnesses in that criminal the trial and owing to that enmity after giving threats and when he did not succumbed to those threats extended by Ishwar Singh and his sons, he was finally killed by them.
34. According to learned State counsel the prosecution has been successful in proving its case beyond all reasonable doubt.
1135. Having heard learned counsel for the parties and meticulous examination of the material and evidence available on record, we do not find any force in the submission made by learned counsel for the appellant. Both the eye-witnesses, PW2-Ramveer Singh and PW3-Anil Kumar, supported the prosecution version right from the beginning till the end of the trial. Nothing substantial could have been elicited from their evidence despite lengthy cross- examination. The enmity is proved between the parties. The accused persons and appellants were on bail in a heinous murder of six persons of the family of deceased Mahipal Singh in Village Butrara, Police Station Babri, Uttar Pradesh and this murder has been committed by them while they were on bail.
36. An argument was advanced by learned counsel for the appellant that only one bullet injury was found upon the person of the deceased Mahipal Singh, this makes case of the prosecution doubtful and appellant cannot be convicted.
37. We do not find any merit in the said argument, inasmuch as, all the appellants with common intention attacked PW2-Ramveer Singh and PW3-Anil Kumar and deceased, but it is only the deceased who sustained injuries and succumbed to those injuries on the spot. PW2-Ramveer Singh and PW3-Anil Kumar ran-away from the spot to save their lives. The appellants have been convicted with the aid of Section 34 of IPC and therefore no separate roles are required to be proved by the prosecution.
38. The case laws cited by learned counsel for the appellant are of no help to them as on facts both the case laws are distinguishable.
39. So far as the submission of learned counsel for the appellants regarding the defective and faulty investigation is concerned 12 the Hon'ble Apex Court in various cases concluded that a defective investigation or irregularity in the investigation need not necessarily lead to the rejection of the case of the prosecution when it is otherwise proved; only the requirement is of taking extra caution by courts by evaluating the evidence in the case where defective investigation is alleged.
40. A reference may be drawn from Visveswaran Vs. State reported in (2003) 6 SCC 73 and Gajoo Vs. State of Uttarakhand a reported judgment of Hon'ble Supreme Court in the case of Criminal Appeal No.1856 of 2009 reported in 2012 (9) SCC 532.
41. Para no.12 of the Visveswaran Vs. State is quoted hereinbelow for ready reference:-
".....It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective instigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved."
42. Para nos.20 of Gajoo Vs. State of Uttarakhand is quoted hereinbelow for ready reference:-
"20. In regard to the defective investigation, this Court in the case of Dayal Singh and others Vs. State of Uttaranchal [2012 (7) SCALE 165] while dealing with the cases of omissions and commissions by the investigating officer, and duty of the Court in such cases held as under:-
"22. Now, we may advert to the duty of the Court in such cases. In the case of Sathi Prasad v. The State of U.P. [(1972) 3 SCC 613], this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective of investigation being designedly defective, this Court in the case of Dhanaj Singh @ Shera & Ors. v. State of Punjab [(2004) 3 SCC 654], held, "in the case of a 13 defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
43. Thus in the case in hand where the case of prosecution is proved by clinching and reliable evidence of eye-witnesses PW2- Ramveer Singh and PW3-Anil Kumar, no benefit could be extended to the appellants for some shortcomings in the investigation.
44. We hold that the prosecution has been successful to prove its case beyond all reasonable doubt. Thus no interference is warranted in the well reasoned detailed judgment and order of conviction and sentence of the appellants which is impugned in the present appeals.
45. The upshot of the aforesaid discussion leads to the only conclusion that the appeals deserve to be dismissed.
46. The appeals filed by the appellants are bereft of merits and are accordingly dismissed. The judgment and orders under challenge are accordingly affirmed. All the appellants are in jail.
47. Let a copy of this judgment and order alongwith TCR be transmitted to the Court concerned for compliance of the order forthwith.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) SK