Allahabad High Court
Pappu @ Avanish vs State Of U.P. on 7 November, 2012
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Court No. - 35
CRIMINAL APPEAL U/S 374 CR.P.C. No. - 938 of 2010
Pappu @ Avanish ......................Appellant
Versus
State Of U.P. ..................Respondent
Appellants' Counsel :- Sarva Sri Mangla Prasad Rai, Tripathi B.G. Bhai, Anubhav Trivedi, Deepak Dubey, S.D. Kautilya
Respondent Counsel : S. A. Murtaza, AGA
and
CRIMINAL APPEAL U/S 374 CR.P.C. No. - 2677 of 2004
1. Santosh Kumar
2. Ram Kishore ...............Appellants
Versus
State Of U.P. ...............Respondent
Petitioner Counsel :- Sri P. N. Misra, Sr. Adv. assisted by Sri Apul Misra, Tripathi B.G. Bhai
Respondent Counsel :- Sri S. A. Murtaza, AGA
Hon'ble Rakesh Tiwari,J.
Hon'ble Anil Kumar Sharma,J.
(Delivered by Hon. Anil Kumar Sharma, J.) Since these two appeals are inter-connected and subject matter is the common judgment of the trial Court, so they have been heard and being disposed of together by this judgment.
2. Appellants along with one Manoj @ Kakka were put to trial in S.T. No. 128/2002, State vs. Pappu @ Avanish and others, under section 302 and 120-B IPC and 7 Criminal Law Amendment Act (Crime No. 83/2002, P.S. Achhalda, District Auraiya). Accused Pappu @ Avanish was also prosecuted u/s 25 Arms Act. The Additional Sessions Judge, Auraiya vide judgment and order dated 15.05.2004 had convicted the three appellants under section 302 IPC and sentenced to imprisonment for life and fine of Rs. 30,000/- with default stipulation. Accused Pappu @ Avanish has further been found guilty under section 25 of the Arms Act and has been sentenced to undergo imprisonment for three years along with fine of Rs. 10,000/- and in default of payment of fine to further undergo additional imprisonment of one year. The trial court has however acquitted accused Manoj @ Kakka under section 120-B IPC. In the aforesaid appeals the appellants have challenged their conviction and sentence imposed upon each of them.
3. Facts germane to the appeals are that on 28.01.2002 at about 9.30 A.M. Ram Prakash @ Mangli s/o Badri Prasad, r/o village Mohammadabad, P.S. Achhalda, District Auraiya submitted a written report scribed by Ram Bahadur Singh in P.S. Achhalda stating therein that today at 8.30 A.M. for going to Achhalda Amar Singh @ Munnu s/o Ram Sanehi (deceased), Sanjeev Kumar s/o Ganga Ram (PW-1), Mukesh @ Pinku s/o Shyam Babu Dixit (deceased), Santosh Kumar s/o Suraj Narayan (accused-appellant), Pappu s/o Krishna Babu, Manoj Kumar @ Kakka s/o Padam Bahadur and Ram Kishore Pathak s/o Anokhey Lal boarded Jugar from the shop of Santosh Kumar, situated in Mohammadabad. Manoj Kumar @ Kakka s/o Padam Bahadur had called Amar Singh @ Munnu from his home. At about 8.40 A.M. when Jugar reached at Tehrajpur culvert Pappu s/o Krishna Babu who was sitting in Jugar took out Adhiya (Tamancha) and fired shot at Amar Singh @ Munnu. Mukesh @ Pinku s/o Shyam Babu Dixit protested whereupon he was also shot by him with the aforesaid firearm. Both the persons succumbed to the injuries on the spot. Assaulting both of them Pappu s/o Krishna Babu and his companion Santosh Kumar and Ram Kishore hurling abuses said that they have been finished today now they would see their family members, they would also not be spared and would see who depose against them? After the incident fear and terror was created in the area and the people started running hither and thither. The incident was witnessed by Sanjeev Kumar and Birbal residents of Mohammadabad and they informed at the residence of both the deceased. On the basis of this report case under section 302 IPC and 7 Criminal Law Amendment Act was registered at crime no. 83/2002, investigation whereof was taken up by S.O. Shiv Raj Singh PW-6. He interrogated the writer of check report and the complainant in the police station and reached at the spot. He dictated the inquest reports of both the deceased to S.I. Ram Veer Singh and sent the dead bodies for post mortem examination in a sealed cover along with usual papers. Dr. Shailendra Tiwari conducted autopsy on the corpse of the deceased Mukesh Kumar @ Pinku on 29.01.2002 at 10.00 A.M. He found that the deceased was young man of average body built. Rigor mortis was present in both the extremities. Abdomen was slightly distended. He found the following ante mortem injury on the person of 23-years old deceased:
"Fire arm wound of entry 2 cm x 2 cm x chest cavity deep over left part chest wall 4 cm lateral from mid-line at level of T vertebra. Margins inverted with surrounding black skin of ½ cm."
In internal examination doctor found 4th rib of left side fractured. Pleura and left lungs were lacerated. About 800 ml clotted blood was present in left pleura cavity. One deformed metallic piece and one piece of wadding was recovered from left lung. The heart was empty. 200 grams of pasty food was found in the stomach.
4. On the same day at about 10.15 A.M. Dr. Tiwari examined the cadaver of the deceased Amar Singh @ Munnu. He found that 35-years' old deceased was having average built body. Rigor mortis was present in both the extremities. Abdomen was slightly extended. He found the following ante mortem injures on the person of the deceased:
1. Fire arm wound of entry 2 cm x 2 cm x through 'n' through over right interior chest wall 6 cm medial and 2½ O' Clock from nipple. Margin inverted surrounded ½ cm black skin present.
2. Fire arm wound of exit 3 cm x 3 cm over right post chest wall over 7th 1 CS. 1 cm lateral to line. Margin everted and lacerated.
On internal examination the doctor found that 3rd rib interior and 7th posterior right side were fractured, pleura and right lung were lacerated. Heart was empty. One litre clotted blood was found in right pleural cavity. In stomach 200 gram pasty food was found. In the opinion of the doctor both the deceased suffered death about one day before due to shock and hemorrhage as a result of fire arm injury. The Investigating Officer inspected the place of occurrence and prepared the site plan. The sample of plain and blood stained earth and 12 bore empty cartridges was recovered from the spot through memo Ex. Ka-17 and Ex. Ka-18. Thereafter witnesses Asha Ram and Avdhesh Kumar were interrogated. Efforts were made to nab the accused persons and coercive process was obtained from the court for their appearance. On the basis of the statement of Smt. Munni Devi, section 120-B was added in the investigation against accused Manoj Kumar @ Kakka. On 26.03.2002 the Investigating Officer with the permission of the court interrogated accused Pappu in the prison and in his statement confessing his guilt he offered to get the country made pistol used in the crime recovered. On the request of the investigating officer police custody remand of accused Pappu was granted by the court on 01.04.2002 and on 02.04.2002 his custody was obtained from the jail and was lodged in the lock-up of police station at 12.10 P.M. On further interrogation accused Pappu again assured to get the country made pistol recovered. The Investigating Officer along with other police personnel and accused reached at Tehrajpur culvert and procured witnesses Sanjeev Kumar and Ramesh. Thereafter the accused took them to the orchard of Shyam s/o Shiv Dayal Dixit, r/o Nalluhpur and took out a country made pistol at about 1.30 P.M. from bushes of Lemon tree etc. The country made pistol contained an empty cartridge. Recovery memo was prepared at the spot. On the basis of recovery of illicit fire arm a case under section 25 Arms Act at crime no. 170/2002 was registered on 02.04.2002. The investigation in both the cases culminated in charge sheets against the accused persons.
5. After committal of the cases to the court of Session charge for the offence punishable under section 302 and 120-B IPC were framed against all the accused appellants including acquitted accused Manoj @ Kakka. Charge under section 25 Arms Act was also framed against accused Pappu @ Avnish. The accused appellants abjured their guilt and claimed trial.
6. In order to prove its case the prosecution has examined eye witnesses Sanjeev Kumar PW-1, Birbal PW-2, complainant Ram Prakash PW-3, Head Constable Raghu Nandan Pal PW-4, Dr. Shailendra Tiwari PW-5, S.I. Shiv Raj Singh PW-6 and S.I. Radhey Shyam Verma PW-7.
7. In their statements under section 313 Cr.P.C. the accused persons have again denied the entire prosecution story. Accused Pappu has stated that witnesses Sanjeev and Birbal are family members of the deceased and they have falsely deposed against them. Accused Ram Kishore has further stated that at the time of the incident Urmila Devi, sister-in-law of the deceased was Pradhan and thereafter his wife was elected as Pradhan. There was dispute regarding construction of the school for which he has filed a case. He also objected to her misdeeds so he has been falsely implicated. The accused persons did not adduce any evidence defence.
8. Learned trial court after considering the evidence on record and hearing the arguments of the parties' counsel has found the accused appellants guilty and sentenced them, as noted in para-2 of the judgment.
9. Castigating the impugned judgment and order of the trial court the counsel for the appellants have argued following points before us:
1.that the FIR is ante-timed and scribe has not been examined;
2.that there was no motive for the accused to eliminate both the deceased;
3.that pre and post-incident conduct of PW-1 and PW-2 show that they are not eye-witnesses of the incident;
4.that the driver of the jugar has not been interrogated by the investigating officer and the investigation is not fair rather it is tainted;
5.that accused Santosh Kumar and Ram Kishore had no knowledge that accused Pappu was carrying country-made pistol and role of hurling abuses had been assigned to them in the FIR while the prosecution has improved its case considerably by stating that these accused have exhorted co-accused to kill the deceased before the incident;
6.that exhortation or instigation is very weak type of evidence;
On the basis of aforesaid grounds, the learned counsel for the appellants in both the appeals have argued that the prosecution has miserably failed to prove its case beyond all reasonable doubt and the appellants are liable to be acquitted.
10. Refuting the above arguments and supporting the impugned judgment of the trial Court, the learned AGA has submitted that the it is broad-day light double murder case based on the testimony of eye witnesses, who have no animus with any of the accused-appellants; that motive is not relevant when the prosecution relies upon the evidence of eye-witnesses of the incident; that the FIR is very prompt; that accused Santosh Kumar and Ram Kishore have exhorted the main accused Pappu and if their pre-incident role has not been described in the written report of complainant PW-3, it would not make any difference because FIR is not the encyclopedia of the prosecution case, the appeals have no force and are liable to be dismissed.
11. The alleged incident took place at about 8.40 a.m. on 28.1.2002 and its written report was submitted by Ram Prakash @ Mangali PW-3 at police station Achhalda situated at a distance of about 4.5 Kilometers from the place of incident. PW-3 is not the eye witness of the incident. According to him, wife of deceased Amar Singh narrated the incident to him and details of the incident were told to her by eye-witnesses Birbal and Sanjiv Kumar. It has come in his cross-examination that he is uncle of deceased Amar Singh and resides at a distance of 20-yards from him. He has been cross-examined at length, but nothing could be elicited therefrom to discredit his testimony about lodging of written report with the police. Both the eye witnesses namely PW-1 and PW-2 have stated in unison that after the incident they informed the wife of Amar Singh deceased. PW-3 has further stated that after getting information about the incident he left for place of occurrence at about 9 a.m. on the motor-cycle of Om Pal of his village, stayed there for about 5-minutes. He has further stated that scribe Ram Bahadur is resident of Dibiapur and is known to him from before. Ram Bahadur was also on motor-cycle. He told him for getting the report lodged with the police then he told him to take the written report. Ram Bahadur did not accompany him to police station and he went with Om Pal. The copy of GD Ex. Ka-3 regarding registration of the case as also statement of HC Raghunadan Pal PW-4, who prepared check report Ex. Ka-2 and GD (copy Ex. Ka-3) prove the presence of Om Pal with the informant at the police station apart from few others at the time of registration of the case.
12. Learned counsel for the appellants has criticized the prosecution story on the ground that scribe of the written report has not been examined, so the defence could not get the opportunity to unfold the mystery why the report of the crime was not made to the police by the widow or close family member of any of the deceased. Countering this argument, the learned AGA has submitted that any body can inform the police about commission of an offence. He further submitted that since scribe was not the eye witness of the incident, so it was not necessary to examine him and the defence has not been prejudiced at all for his non-examination. We do find substance in the submission of the learned State counsel. In the case of Anil Kumar vs. State of U.P., (2003) 3 SCC 569, the Apex Court has observed that non-examination of scribe of FIR is not fatal to prosecution and no adverse inference can be drawn against prosecution if the scribe was not an eye-witness to the incident. The complainant/informant had proved the execution of the FIR by examining himself as PW-3. Thus, we find that there is no inordinate delay in reporting the crime to the police and it does not suffer from any infirmity.
13. Neither in the written report Ex.Ka-1 nor in the statements of eye witnesses motive for the accused persons to kill both the deceased had been mentioned. Sanjiv Kumar PW-1 has stated in cross-examination that in his knowledge there was no animosity between the deceased and the accused persons. Learned AGA has contended that since the case of the prosecution is based on direct evidence, so motive loses its importance. Undoubtedly, absence of motive cannot disprove a charge of murder. Though it is very much natural that every criminal act is done with some sort of motive, but it would be unsafe to hold that no such criminal act can be presumed unless motive is proved. Motive is locked in the mind of the accused and sometimes it becomes difficult for the prosecution to unlock the motive, which is primarily known to accused and sometimes to the deceased as well. Mere fact that the prosecution failed to lead conclusive evidence in this regard would not mean that no such mental condition existed in the mind of the accused. The motive assumes importance in the cases based on circumstantial evidence, however, it becomes meaningless when direct evidence of the crime is available and led by the prosecution to bring home the guilt to accused persons. It is not the law that if in any criminal trial particularly a heinous one, like the present case that the prosecution would fail if no motive is proved against the accused. Ultimately the success of the prosecution or otherwise would depend upon the testimony of eye-witnesses and other relevant material brought on record.
14. In the instant case, there are two eye witnesses of the occurrence and the prosecution has not withheld any material witness to prove the charge against the accused persons. It has come in evidence that there were seven persons in the Jugar at the time of incident. Out of them two have lost their lives, four were accused in the case and the remaining Sanjiv Kumar PW-1 had been examined by the prosecution. No doubt the investigating officer has not interrogated the driver of the Jugar namely Shiv Ratan for which he could not give any satisfactory explanation. SI Shiv Raj Singh PW-6 has stated in cross-examination that he had enquired about the owner and driver of the Jugar, but did not mention this fact in case-diary. However, the I.O. has emphatically denied the suggestion that he did not mention the name of the driver of Jugar for the reason that the incident had not taken place in the Jugar. This is certainly a negligence on the part of the investigating officer, but on this ground alone, the entire prosecution story cannot be thrown away. The defence could have examined Shiv Ratan before the trial Court to counter the prosecution story and say that no such incident ever took place in his Jugar. The consistent case of the prosecution is that Sanjiv Kumar PW-1 boarded the Jugar from village Mohammadabad, while Birbal PW-2 was waiting for the conveyance at Tehrajpur culvert and as the Jugar reached there the incident took place. Birbal PW-2 has stated that he reached at the culvert 2-3 minutes before the incident and he was going to get the pump of his engine repaired. Both the witnesses of fact have been cross-examined at length by the counsel for the defence, but their testimony could not be shaken in any manner. They have proved their presence on the spot at the time of incident. These witnesses have given unblemished evidence against accused Pappu @ Avanish regarding his crucial role in the incident. They have stated that accused Pappu fired shot from his country made pistol on Amar Singh @ Mannu while the later was sitting in the Jugar and when Mukesh @ Pinku protested while getting down from the Jugar, Pappu fired another shot at him and from which he sustained injury fell down on the ground towards west of the Jugar and died. Sanjiv Kumar PW-1 has stated in cross-examination that Amar Singh @ Munnu sustained fire-arm injury on his chest while the shot was fired on back of Mukesh @ Pinku. The seat of injuries described by this witness finds corroboration from the autopsy reports of both the deceased and the statement of Dr. Shailendra Tiwari PW-5.
15. Learned counsel for the appellants has criticized th pre and post-incident conduct of PW-1 and PW-2 on the ground that PW-1 resides in Etawah, so his presence in the village on the date of incident is doubtful and secondly no one had informed the family members of deceased Mukesh @ Pinku after the incident. As regards presence of PW-1 is concerned he has admitted that he is a teacher in an educational institution, whose Principal is Sri Mahesh Chand Verma and his father Sri Dhani Ram Verma had been MLA and Speaker of Legislative Assembly. He has denied the suggestion that he got employment at the instance of deceased Amar singh and his brother Kunwar Singh. It has come in his cross-examination that on the date of incident it was Monday, his college was open, but he was on leave as his cousin (bua's daughter) was ill and he was to take her to Kanpur for treatment and he had gone with her there on 30.1.2002. The English calendar for the year-2002 shows that it was Monday on 28.1.2002, which substantiates the above statement of PW-1 regarding his presence in the village on the day of incident. This witness has stated in cross-examination that he did not inform the house of Pinku about the incident or his death, but he has not been asked the reason? Birbal PW-2 has stated that his house is situated at a distance of 50-meters from the residence of the deceased. After informing the wife of Amar Singh about the incident, he had gone to his house. The door of Pinku's house was closed, so he did not inform his family members. At other place in cross-examination, PW-2 has stated that he did not check the door of Mukesh's house to see whether it was closed from inside. He called from the road and did not wait whether any body inside the house has heard his call or not? Since Mukesh was also resident of the village of witnesses, so it was expected from them that they would inform his family members. It may be that Mukesh was of different caste than both the PWs, while Amar Singh @ Munnu and PW-1 and PW-2 belong to same caste. However, it is matter of common experience that the post-incident conduct of every person differs for variety of reasons. Both PW-1 and PW-2 were eye witnesses to a broad-day light double murder case and the killer was also their co-villager. They must be shocked and terrified with the incident. Simply because these witnesses have not informed the family members of one of the deceased, would not lead to this conclusion that they have not witnessed the incident.
16. The investigating officer in site-plan Ex.Ka-16 has shown the place of occurrence as 'Rajwaha Pulia in the vicinity of village Tehrajpur'. At the time of his visit the jugar was on the bridge of culvert and the dead body of Amar Singh @ Munnu was lying in the Jugar. The dead body of Mukesh @ Pinku has been shown to be found at point 'B' on the culvert in the west of the jugar. The direction of making their escape good from the spot by the accused had been shown towards eastern side through the southern patri of the Rajwaha. There are agricultural fields around the place of occurrence and a guava orchard of Ram Narain in western side of the north-south road. The investigating officer has collected simple and blood stained debris from the spot through memo Ex.Ka-17 and an empty cartridge 12 bore vide memo Ex.Ka-18 in presence of witnesses Awadhesh Kumar and Asha Ram. PW-6 has stated in his cross-examination that when he reached at the spot the Jugar was on the spot and he saw blood stains therein, but did not mention this fact in the case diary. The I.O. has not been asked in cross-examination as to why he did not collect sample of blood from the Jugar? Nevertheless, the place of incident has been fully established through the testimony of eye-witnesses and the investigating officer.
17. The medical evidence on record fully corroborates the eye-witness account of the incident. Dr. Shailendra Tiwari PW-5 has proved the post-mortem examination reports of both the deceased through his deposition. He has found one gun shot wound of entry each on both the deceased. The fire-arm injury of entry wound on the person of deceased Amar Singh @ Munnu had an exit wound on his back. The size of exit wound is bigger than the entry wound. Dr. Tiwari has categorically stated that both the deceased could have suffered the injuries from fire-arm on 28.1.2002 at about 8.40 a.m. and death was possible on account of gun shot injuries. Apart from it blackening had been found on entry wound of entry of both the deceased, which could be caused within a distance of 3 feet, the doctor has stated replying the question put to him by defence counsel in his cross-examination. Thus, we find that the medical evidence available on record fully corroborates the ocular account of the incident and there is no discrepancy therein.
18. As regards recovery of country made pistol at the instance of accused Pappu @ Avanish we find that the same has been duly proved by the testimony of police officials examined in S.T no. 205/02. Out of the four witnesses examined to prove the charge u/s 25 Arms Act against the accused SI Ram Vir Singh PW-2 and SI Shiv Raj Singh PW-3 are witnesses of recovery. There are no material contradictions in the testimony of these witnesses. It is true that there is no public witness of this recovery and evidence of only police personnel is available but on this ground alone their testimony cannot be rejected. Why the testimony of a police officer/official be taken to be suspicious? Their duty is to collect evidence during investigation to the best of their capacity and capability. Unless specific case is taken by the defence to create doubt on the statement of a police witness, the testimony of police personnel should be treated in the same manner as testimony of any other witness. There appears to be no principle of law that without corroboration by independent witnesses, the testimony of a police personnel cannot be relied on. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good and cogent reasons. If any miscreant is arrested by a police officer or a thing or weapons etc. are recovered from his possession or at his instance may be u/s. 27 Evidence Act or otherwise only in the presence of police party and there is no public witness to such recovery or recovery memo, the testimony of the police personnel proving the arrest, recovery and the recovery memo cannot be disbelieved merely because there was no witness to the recovery proceedings or recovery memo from the public. Seizure memo need not be attested by any independent witness and the evidence of police officer regarding recovery from the person of the accused or at his instance should ordinarily be believed unless specifically challenged for cogent and sufficient reasons by the defence. The ground realities cannot be lost sight of that even in normal circumstances, members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. We find that the learned trial Court has correctly appreciated the evidence regarding recovery of country made pistol at the instance of accused Pappu.
19. In view of our reassessment of evidence above, led before the trial Court, we find that the prosecution has successfully proved its case beyond all reasonable doubt against accused Pappu @ Avanish for committing murders of Amar Singh @ Munnu and Mukesh @ Pinku on 28.1.2002 at about 8.40 a.m. near the culvert of village Tehrajpur as also the recovery of illicit weapon at his instance. His appeal sans merits and is liable to be dismissed.
CRIMINAL APPEAL No. - 2677 of 2004
20. Learned senior counsel for appellants has vehemently argued that that there is no evidence on record to show that any of the accused Santosh Kumar or Ram Kishore had any knowledge that the deceased was carrying country-made pistol prior to the incident or they have pre-planned to commit murder of any of the deceased, so it cannot be inferred that they have shared any common intention with accused Pappu @ Avanish to kill the deceased or any of them. He has further contended that only role of hurling abuses after the incident was assigned to them in the FIR while for the first time in the trial Court, the prosecution has improved its case considerably by stating that these accused have exhorted co-accused Pappu @ Avanish to kill deceased Amar Singh @ Munnu before the incident. He has concluded that exhortation or instigation is very weak type of evidence, so the accused appellants Santosh Kumar and Ram Kishore cannot be held guilty for the charge of double murder. Learned AGA countering these arguments has reiterated that both the accused-appellants were sitting in the Jugar at the time of incident and they have not only exhorted co-accused Pappu to kill the deceased, but after the incident they left the place of occurrence by abusively saying that they (the deceased) have been finished today, now they will see their family and will not be spared and would see how they depose against them? He has also drawn our attention to the deposition of PW-1 and PW-2 where they have stated that they exhorted Pappu to kill Amar Singh @ Munnu and then he fired shot on him. Another deceased Mukesh @ Pinku when protested, Manoj @ Kakka (acquitted accused) asked Pappu to kill him as well and then he fired shot on him.
21. In the First Information Report the only overt act attributed to appellants Santosh Kumar and Ram Kishore Pathak is that after accused Pappu @ Avanish killed both the deceased, he and these appellants hurling abuses said they have been finished today and now their family members would be seen, they will also be not spared and would see who depose? To quote the words used in the FIR -
^^-------- ekjus okys iIiw iq= Jh d`".k ckcw rFkk muds lkFkh Jh lUrks"k dqekj o Jh jke fd'kksj ikBd mDr xkfy;ka nsrs gq, fd lkyks dk vkt vUr dj fn;kA vc muds ?kj okyksa dks ns[ksxsA mUgsa Hkh ugha NksM+sxsA ns[krs gSa fd dkSu lkys xokgh nsrs gSaA^^ However, during trial PW-1 and PW-2 have stated that -
Sanjiv Kumar PW-1 ^^------- tSls gh tqxkM+ xkM+h rgjkt iqj cEcs ds iqfy;k ij :dh oSlh gh lUrks"k dqekj 'kqDyk o jke fd'kksj ikBd us dgk iIiw ns[krk D;k gS ekj lkys vej flag mQZ equqvk dks rHkh iIiw us vf/k;k reUpk fudkyk vkSj vej flag mQZ eqUuw dks xksyh ekj nhA bldk fojks/k eqds'k mQZ fiadw us fd;k rks eukst mQZ dDdk us dgk fd iIiw bldks ekjks lkys dkA rks iIiw us bldks Hkh xksyh ekj nhA xksyh yxus ls nksuks dh e`R;q gks x;hA^^ Birbal PW-2 ^^------- xkM+h :drs gh lUrks"k dqekj 'kqDyk o jke fd'kksj ikBd us iIiw ls dgk fd ns[krs D;k gks ekj lkys equqvk dksA iIiw us vf/k;k ¼reUpk½ fudky dj eqUuw ds xksyh ekj nhA eqds'k mQZ fiadw us fojks/k fd;k rks iIiw us reUpk ls fiUdw ds Hkh xksyh ekj nhA eqUuw o fiadw ?kVuk LFky ij gh ej x;sA blds ckn iIiw] lUrks"k dqekj 'kqDyk] jke fd'kksj ikBd o dDdk xkfy;ka nsrs gq;s iwjc dh vksj xkfy;ka o /kedh nssrs gq;s iwjc dh rjQ cEck iVjh ij Hkkx x;sA^^ In cross-examination PW-1 has stated that village Mohammadabad and Tehrajpur had one Gram Panchyat, Ram Kishore Pathak was earlier Pradhan and at that time both these villages have separate Gram Sabha and since 1982 to 1995 Ram Kishore Pathak had been Pradhan. After his tenure both the Panchyats were consolidated and then wife of Kunwar Singh became Pradhan. He has admitted in cross-examination that in his knowledge there was no enmity between the deceased and accused Ram Kishore Pathak and Santosh Kumar Shukla. However, the facts borne out from the statement of witnesses it appears that there was election rivalry between the parties. Both these witnesses have stated that on alleged exhortation of accused Ram Kishore Pathak and Santosh Kumar Shukla, accused Pappu @ Avanish took out country made pistol and fired shot on Amar Singh @ Munnu. It means that the country made pistol possessed by accused Pappu was not visible and there is nothing on record to suggest that accused Ram Kishore Pathak and Santosh Kumar have come with accused Pappu @ Avanish to board the Jugad. Evidence was led by the prosecution against acquitted accused Manoj @ Kakka that he called Amar Singh @ Munnu in connivance with other accused to go in Jugar, but this part of the prosecution story has been disbelieved by the trial Court while acquitting accused Manoj @ Kakka for the charge of hatching conspiracy to kill Amar Singh @ Munnu. No State appeal against the acquittal of co-accused Manoj @ Kakka is pending. Here it is important to note that the trial Court has incorrectly noted on page-15 of its judgment that in the FIR Ex. Ka-1 it is mentioned that when the deceased and the accused were going in Jugar and as it reached near culvert of Tehrajpur, accused Ram Kishore Pathak and Santosh Kumar hurling abuses to the deceased exhorted accused Pappu @ Avanish to fire shot. This fact does not find place in the written report of PW-3. In fact almost similar nature of evidence is available against accused Ram Kishore and Santosh Kumar as was led for accused Manoj @ Kakka, who had been acquitted by the trial court although there was additional evidence against this accused that he had called deceased Amar Singh @ Munnu from his house.
22. The statements of the PW-1 and PW-2, as noticed hereinbefore, vis-a`-vis the allegations made in the First Information Report are contradictory and/or inconsistent with each other. The statements made in the First Information Report in a case of this nature must be given due importance. Such exhortation by itself may not give rise to an inference of sharing a common intention to cause death of both the deceased. Such exhortation as alleged in the F.I.R. took place only after accused Pappu had killed both the deceased. No injury was inflicted on any of the deceased after the alleged exhortation. The prosecution has also failed to bring any materials on records to show that there had been any pre-concert or pre-arranged plan so as to hold that these appellants had any common intention to commit the alleged offence. It is, therefore, not a case where a common intention amongst the accused persons can be said to have been existing either from the beginning or was formed at the spur of the moment. Exhortation, furthermore, by itself is not enough to prove common intention on the part of an accused.
23. In the case of Jainul Haque vs State Of Bihar AIR 1974 SC 45, the Apex Court has observed that exhortation is very weak type of evidence, in the following words -
"The evidence of exhortation is, in the very nature of things, as weak piece of evidence. There is quite often a tendency to implicate some person in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."
In the decision reported in (2001) 3 SCC 673 Suresh Vs. State of U.P., the Hon'ble Supreme Court has observed:
23.Thus to attract Section 34 IPC two postulates are indispensable: (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.
24.Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.
25. There may be other provisions in the IPC like Section 120-B or Section 109 which could then be invoked to catch such non-participating accused. Thus participation in the crime in furtherance of the common intention is a sine qua non for Section 34 IPC. Exhortation to other accused, even guarding the scene etc. would amount to participation. Of course, when the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the court has to evaluate the evidence very carefully for deciding whether that person had really done any such act." (Emphasis Supplied) In the case of State of Orissa Vs. Arjun Das Agarwal and another [AIR 1999 SC 3229], the Apex Court has stated :
"Regarding accused-respondent Arjuna Das Agarwal we find from the evidence on record that this accused neither went inside the house of the deceased nor took any part in the commission of the murder. He only instigated by shouting the other accused persons. There is nothing in evidence to show that due to his instigation more blows were given by the accused persons.
Therefore, no inference can be drawn that this accused- respondent had common intention of causing death of the deceased or that he actually participated in the criminal act. Therefore, High Court rightly acquitted this accused."
In Ramashish Yadav and others Vs. State of Bihar AIR 1999 SC 3830], it was held by the Hon'ble Supreme Court:
"It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert."
[See also Badruddin vs. State of U.P. (1998) 7 SCC 300, Idrish Bhai Daudbhai Vs State of Gujarat [2005 (27) AIC 624 (SC) and Balram Singh and Another vs. State of Punjab (2003) 11 SCC 286,] .
24. In the case of Satya Deo Rao Vs. State of U. P. 1992 A.Cr.R. 232, a division bench of this Court has also held that 'in the nature of things exhortation is weak evidence.' What would form a common intention is now well-settled. It implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. In the instant case it is not the case of the prosecution that any of the accused namely - Santosh Kumar and Ram Kishore were having any arm or they knew that accused Pappu was having a country made pistol before he fired shot on Amar Singh. As stated earlier the prosecution has considerably improved its version during trial regarding role of these accused to implicate them in the crime. There was no enmity of these accused with any of the deceased prior to the incident. The sequence of events as contained in the First Information Report, thus, materially differs from the statements made by the prosecution witnesses during trial so far it relate to accused Santosh Kumar and Ram Kishore. Thus, it was not safe to convict any of them with the aid of Section 34 IPC. Even Section 109 IPC would not be of any help to the prosecution so far as these accused are concerned. Thus, from our close scrutiny of the facts of the case and re-assessment of evidence led by the prosecution as also the law on the point, we are convinced that the prosecution has not been able to make out any case against accused Santosh Kumar and Ram Kishore Pathak. Their involvement in the crime is doubtful.
25. The net result of our afore-stated discussion is that the prosecution evidence against accused Ram Kishore Pathak and Santosh Kumar is shaky and does not inspire confidence. In the facts and circumstances of the case as also the nature and quality of evidence available we find that both these accused deserve benefit of doubt. The learned Addl. Sessions Judge fell in error in convicting appellants Santosh Kumar and Ram Kishore u/s 302/34 IPC, and as such their appeal succeeds.
26. In view of our preceding analysis, Criminal Appeal no. 938 of 2010 filed by accused-appellant Pappu @ Avanish is hereby dismissed. The conviction and sentence passed against accused-appellant Pappu @ Avanish are affirmed. He is in jail and would serve out the remaining part of his sentence. However, Criminal Appeal no. 2677 of 2004 is allowed. Accused Santosh Kumar and Ram Kishore are acquitted of the charge punishable u/s 302/34 IPC. The impugned judgment with regard to conviction and sentence of accused-appellants Santosh Kumar and Ram Kishore is set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.
27. Let a certified copy of the judgment be sent to Court concerned and to Chief Judicial Magistrate, Auraiya for compliance, which should be reported to the Court within 6-weeks.
..........................Rakesh Tiwari, J ................Anil Kumar Sharma, J Dated: November 7, 2012 Imroz