Allahabad High Court
Rajendra And Another vs State Of U.P. on 12 July, 2019
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 06.05.2019 Delivered on 12.07.2019 Court No. 47 Case :- CRIMINAL APPEAL No. - 5558 of 2010 Appellant :- Rajendra And Another Respondent :- State Of U.P. Counsel for Appellant :-Lav Srivastava, V.P. Srivastava, M.J. Akhtar, Mahipal Singh, Pankaj Mishra, Vivek K. Singh, Yogesh Srivastava Counsel for Respondent :-Government Advocate, Amit Daga Connected with Case :- CRIMINAL APPEAL No. - 5538 of 2010 Appellant :- Suraj Respondent :- State Of U.P. Counsel for Appellant :-Satendra Narayan Singh, Ajatshatru Pandey, Anuj Chaudhary, Jagdish Prasad Mishra Counsel for Respondent :-Government Advocate, Amit Daga Connected with Case :- CRIMINAL APPEAL No. - 5612 of 2010 Appellant :- Manu Pal Respondent :- State Of U.P. Counsel for Appellant :-Sudhir Kumar Agrawal, Mayank Yadav, Nitin Srivastava, Vivek Kumar Singh Counsel for Respondent :-Government Advocate, Amit Daga Connected with Case :- CRIMINAL APPEAL No. - 6031 of 2010 Appellant :- Ranvir Respondent :- State Of U.P. Counsel for Appellant :-Satendra Narayan Singh, Ajatshatru Pandey, Anuj Chaudhary, Jagdish Prasad Mishra Counsel for Respondent :-Government Advocate, Amit Daga Connected with Case :- CRIMINAL REVISION No. - 3936 of 2010 Appellant :- Satya Pal Singh Respondent :- State Of U.P. And Others Counsel for Appellant :- Amit Daga Counsel for Respondent :-Government Advocate, Hon'ble Ram Surat Ram (Maurya) ,J.
Hon'ble Rajiv Gupta, J.
[Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Sri V.M. Zaidi, Senior Advocate, assisted by Sri M.J. Akhtar, Sri Vivek Kumar Singh and Sri Sajjad Alam, for the accused-appellants, Sri Amit Daga and Sri Anoop Kumar Rawat, for the informant, Sri Anil Kumar Kushwaha, A.G.A. and Sri Nafees Ahmad, A.G.A., for State of U.P.
2. Rajendra, Anuj, Suraj, Manu Pal and Ranvir have filed aforementioned appeals from the judgment of Additional Session's Judge/ Special Judge, Muzaffarnagar, dated 19.07.2010/20.07.2010, passed in S.T. No. 407 of 2006, State vs. Ranvir and others, [arising out of Case Crime No. 363 of 2005, under Section 147, 148, 149, 302 of Indian Penal Code, 1860 (hereinafter referred to as the IPC)], S.T. No. 408 of 2006, State vs. Ranvir (arising out of Case Crime No. 370 of 2005, under Section 25/27 Arms Act, 1959), S.T. No. 409 of 2006, State vs. Ranvir (arising out of Case Crime No. 371 of 2005, under Section 25/27 Arms Act, 1959), S.T. No. 410 of 2006, State vs. Suraj (arising out of Case Crime No. 390 of 2005, under Section 25/27 Arms Act, 1959), S.T. No. 411 of 2006, State vs. Anuj (arising out of Case Crime No. 383 of 2005, under Section 25/27 Arms Act, 1959) and S.T. No. 412 of 2006, State vs. Manupal (arising out of Case Crime No. 389 of 2005, under Section 25/27 Arms Act, 1959), Police Station Babari, district Muzaffarnagar, convicting the accused-appellants, under Section 302 read with Section 149 IPC and sentencing for imprisonment for life and under Section 148 IPC and sentencing for three years rigorous imprisonment to them. All the accused were acquitted from the charges under Section 25/27 Arms Act, 1959. The informant has filed Criminal Revision No. 3936 of 2010, for enhancement of the sentence to the accused. Anuj (appellant-2) has died during pendency of the appeal and the appeal has been abated for him.
3. On the written complaint (Ex-Ka-1) of Satya Pal Singh (PW-1), FIR (Ex-Ka-3) of Case Crime No. 363 of 2005 was registered under Section 147, 148, 149, 302 IPC at P.S. Babari, district Muzaffarnagar on 18.12.2005 at 11:30 hours, by Constable Clerk Krishna Pal Singh (PW-3), against Ranvir, Manu Pal, Suraj, Rajendra and Anuj. It has been stated in the FIR that on the date of incident the informant alongwith his uncle Jawahar Singh were returning to the village from their tube-well. When they reached near the field of Karan Singh son of Dilip then his wife Kaushalya and Smt. Santosh wife of Jasveer reached there fetching meal from the village. At about 10:30 hours, Ranvir son of Mula, Manu Pal son of Ranvir, Suraj son of Ranvir and Anuj son of Rajendra, armed with pistol and Rajendra son of Mula armed with tabal also reached there. Ranvir stated that long drawn litigation was going on between them and they do not abide by the judgment. Ranvir, Manu Pal, Suraj and Anuj opened fire from their pistols upon Karan Singh, Jasveer and Gajendra with an intention to kill them. Rajendra started assaulting Jasveer by his tabal. Seeing the incident, the informant, Jawahar Singh, Kaushalya and Santosh fled towards their village. On account of indiscriminate firing and brutal murders, the farmers and labourers, peeling the outer layer of sugarcane in fields, fled away towards the jungle, leaving their work and a panic was created. When the incident was narrated to the villages grief struck all over and large number of men and women reached at the field showing their resentment. The mutilated bodies of Karan Singh, Jasveer and Gajendra, were lying on the spot. In broad day light Five accused persons had committed brutal murder of three persons. On the basis of said written report, FIR was lodged.
4. After lodging of FIR, SI Bijendra Singh (PW-5), started the process of investigation. He copied the check FIR and G.D. entry in case diary. He along with other police personnels came on the spot and recorded statement of Satya Pal Singh. On the pointing out of Satya Pal Singh, he prepared site-plan (Ex-Ka-18). Two empty cartridges of 315 bore were found lying near the dead body of Jasveer whereas one empty cartridge of 315 bore and one empty cartridge of 12 bore were found lying near the dead body of Rajendra. The Investigating Officer prepared recovery memo of empty cartridges marked as Ex. Ka-2. Blood stained and plain earth was collected from the place where the dead bodies of Karan, Jasveer and Rajendra were lying and its recovery memo were prepared and marked as Ex-19, 20 and 21 respectively. Accused Rajendra and Anuj surrendered before the Court on 20.12.2005. The Investigating Officer recorded their statements on 21.12.2005 in jail, in which they confessed their guilt. Accused Ranvir was arrested on 21.12.2005 and the Investigating Officer recorded his statement, who also confessed his guilt. On the pointing out of Ranvir one pistol and 10 live cartridges of 12 bore were recovered on 21.12.2005 at 18:45 hours. The I.O. Prepared its recovery memo marked as Ex-Ka-22. On the pointing out of Ranvir, three pistols of 315 bore, one pistol of 12 bore, 10 live cartridges of 12 bore, 4 live cartridges of 315 bore and one DBBL gun were recovered on 21.12.2005 at 20:30 hours, recovery memo of which was prepared and marked as Ex-Ka-23. Anuj and Rajendra were taken in police custody remand on 25.12.2005 and on the pointing out of Rajendra one tabal was recovered on 25.12.2005 at 14:40 hours, recovery memo of which was prepared and marked as Ex-Ka-24. On the pointing out of Anuj one pistol and two live cartridges of 315 bore were recovered on 25.12.2005 at 16:00 hours recovery memo of which was prepared and marked as Ex-Ka-25. The accused Manu Pal and Suraj were arrested on 26.12.2006. From the pant of Manu Pal one pistol and four live cartridges of 12 bore were recovered, recovery memo of which was prepared and marked as Ex-Ka-26. From the pant of Suraj one pistol and five live cartridges of 315 bore were recovered, recovery memo of which was prepared and marked as Ex-Ka-26. It may be mentioned that on the basis of recovery memos (Ex-Ka-20 to Ex-Ka-26), Case Crime Nos. 370, 371, 383, 389 and 390 of 2005) were registered, under Section 25/27 Arms Act, 1959. The accused were acquitted in these cases by the Trial Court, which has not been challenged as such details of these cases are not given in this judgment.
5. The investigation at this stage was taken over by SHO Arvind Singh Pundir (PW-8), who copied the Inquests and Postmortem Reports in case diary on 25.01.2006 and recorded the statements of eye witnesses Jawahar Singh, Kaushal @ Kaushalya, Smt. Santosh and the witnesses of recovery namely Sheoraj and Pramod. Additional statement of Satya Pal Singh was also recorded. Papers relating to litigation between the parties were also collected by him. He recorded statements of Panches of the Inquests. On 29.01.2006, he recorded statements of SI Bijendra Singh and HCP Ganga Saran, Jitendra, SI Ravindra Chandra Pant and Krishna Pal. On 31.01.2006, he recorded statements of witnesses of recovery and Panches of Inquest and after concluding the investigation, he submitted charge sheet (Ex-Ka-57), on which cognizance was taken.
6. SI Ravindra Chandra Pant (PW-6) conducted Inquest (Ex-Ka-27) on the person of deceased Gajendra, on 18.12.2005 between 11:55 to 13:00 hours and prepared photo lash, challan lash and letters to the authorities for conducting postmortem (Ex-Ka-28 to Ka-31). Inquest (Ex-Ka-32) on person of the deceased Karan was done on 18.12.2005 between 13:05 to 14:05 hours and he also prepared photo lash, challan lash and letters to the authorities for conducting the postmortem marked as Ex-Ka-33 to Ka-36. Inquest (Ex-Ka-37) on the dead body of Jasveer was conducted on 18.12.2005 between 14:10 to 15:05 hours and he also prepared photo lash, challan lash and letters to the authorities for conducting postmortem marked as Ex-Ka-38 to Ka-41. The dead bodies were thereafter dispatched for postmortem through Constables Ram Kishan and Devendra Sharma.
7. Dr. Sudhir Kumar (PW-4) and Dr. Ajay Kumar Singhal conducted autopsy on the person of deceased Gajendra on 18.12.2005 at 9:00 PM and prepared the Postmortem Report (Ex-Ka-15) in which following ante-mortem injuries were noted:-
(i) Fire arm wound of entry 4 cm x 3 cm x cavity deep on left side back of chest upper part.
(ii) Fire arm wound of entry 3 cm x 3 cm x cavity deep on right side front of chest lateral to right nipple.
On internal examination, 4th and 5th rib of right side and 5th and 6th rib of left side were fractured; both lungs were lacerated and contained about 1 liter blood ; pleura was lacerated; pericardium was lacerated; heart was lacerated; stomach contained 300 gm semi-digested food; small as well as large intestine were half full; gallblader was half full; spleen and kidneys were pale; bladder was empty. Accordingly to doctor's opinion cause of death was due to hemorrhage and shock as a result of ante-mortem fire arm injuries.
Dr. Sudhir Kumar (PW-4) and Dr. Ajay Kumar Singhal conducted autopsy on the person of the deceased Karan on 18.12.2005 at 9:30 PM and prepared Postmortem Report marked as Ex-Ka-16 in which following ante-mortem injuries were noted:-
(i) Fire arm wound of entry 1.5 cm x 1.5cm on left side upper part of neck through and through to injury no. (ii), blackening present around the wound.
(ii) Fire arm wound of exit 12 cm x 10 cm x through and through injury no. (i) all bones of scalp except occipital are fractured.
(iii) Fire arm wound of entry 2 cm x 2 cm through and through injury no. (i) on left side back of chest upper part just behind right axilla measuring 2 cm x 2 cm.
On internal examination, all bones of scalp except occipital bone were fractured; brain and its membranes were lacerated; base of head was fractured; 10th and 11th rib of left side and 3rd and 4th rib of right side were fractured; both lungs were lacerated and contained about 1-1/2 liter blood ; pleura was lacerated; both chambers of heart were empty; stomach contained 01 onz. fluid; small as well as large intestine were half full; gallblader was pale and half full; spleen and kidneys were pale; bladder was empty. Accordingly to doctor's opinion cause of death was due to hemorrhage and shock as a result of ante-mortem fire arm injuries.
Dr. Sudhir Kumar (PW-4) and Dr. Ajay Kumar Singhal conducted autopsy on the person of deceased Jasveer on 18.12.2005 at 10:30 PM and prepared the Postmortem Report marked as Ex-Ka-17 in which following ante-mortem injuries were noted:-
(i) Fire arm wound of entry cavity deep 4 cm x 3 cm on right side front of chest just medial to right nipple. One card board and seven pallets recovered from right side lung.
(ii) Turnel (Gutter) shaped wound 6 cm x 2 cm on right angle of mouth lower jaw fractured.
On internal examination, brain was pale; 04th 05th and 06th rib of right side were fractured; left lung was lacerated and contained about 01 liter blood; pleura was lacerated; both chambers of heart were empty; stomach contained fluid only; small as well as large intestine were half full; gallblader was pale and full; spleen and kidneys were pale; bladder was empty. Accordingly to doctor's opinion cause of death was due to hemorrhage and shock as a result of ante-mortem fire arm injuries.
8. On committal, the case was registered as S.T. No. 407 of 2006. Session's Judge framed charges on 18.08.2006, against the accused. The accused pleaded "not guilty" and claimed for trial. In order to prove the charges, the prosecution examined Satya Pal Singh (PW-1), the informant and an eye witness, Jawahar Singh (PW-2), an eye witness, Constable Krishna Pal Singh (PW-3), to prove check FIR, Dr. Sudhir Kumar (PW-4), to prove Postmortem Reports (Ex-Ka-15 to Ka-17), SI Bijendra Singh (PW-5), First Investigating Officer, SI Ravindra Chandra Pant (PW-6) to prove Inquest and other papers (Ex-Ka-27 to Ka-41), SI Amar Kumar Bagla (PW-7), Investigating Officer in cases under Section 25/27 Arms Act, 1959 and SI Arvind Kumar Pundir (PW-8), second Investigating Officer and documentary evidence, details of which have been given in the judgment of Trial Court.
9. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. They denied the evidence and materials and claimed false implication due to enmity with Ranvir. Anuj (now dead) took plea of alibi and stated that on 18.12.2005, engagement ceremony of Manisha, daughter of Dr. Vikram Singh (his phupha), was scheduled in which he was the mediator and went to the house of Dr. Vikram Singh situate in mohalla Dakshin Krishnapur, Muzaffarnagar on 18.12.2005 in between 8:00 to 9:00 AM and attended various ceremonies of which he had photographs. Rajendra stated that he was peeling sugarcane in the jungle of Jhaut at the time of the incident. The appellants stated that Kalu (brother of Jawahar Singh and uncle of Satya Pal Singh) was unmarried. He gave his property to the deceased Jasveer and Gajendra. On account of which Satya Pal and Jawahar started bearing enmity with the deceased. Even Satya Pal and Ran Kumar son of Jawahar were not having good relation and litigation were going on between them. Allegation that they went together for irrigating the field on 18.12.2005 was false and concocted. They examined Vikram Singh as (DW-1) to prove that Anuj was at Muzaffarnagar on 18.12.2005, Dr Shashi Kumar Agnihotri (DW-2), who has stated that he was on emergency duty as Hospital In-charge, of District Hospital Muzaffarnagar on 18.12.2005 from 2:00 PM to 19.12.2005 at 8:00 AM. Chief Medical Officer has directed to conduct the postmortem in artificial light. Radhey Shyam Sharma (DW-3), Chief Pharmacist, who stated that on 18.12.2005, no Duty Register relating to postmortem was maintained in the hospital. Mohd. Mustkeem (DW-4), Senior Clerk posted in the office of Chief Medical Officer, who stated that on 18.12.2005, Dr. O.P. Singh and Dr. Ajay Kumar Singhal were on postmortem duty.
10. Additional Session's Judge, after hearing the parties, by the impugned judgment held that prior litigation between the parties was admitted as such the motive as alleged was proved. The written complaint (Ex-Ka-1), on the basis of which FIR was lodged, was in handwriting of Satya Pal Singh and it bears his signatures and there is no interpolation in it. Due to wrong placement of carbon, one page of G.D. remained blank, which was pasted with previous page, this fact has been explained by Krishna Pal Singh (PW-3). In Inquests, in the opinion of Panches, it has been written that the death was caused due to bullet injuries. FIR is not ante-timed. FIR contained all the necessary details. The witnesses are not chance witnesses. Due to transfer of investigation, delay was caused in recording statement of Jawahar Singh (PW-2) under Section 161 Cr.P.C. There is nothing to show that postmortem were conducted during night hours to strengthen the prosecution case. Occular testimonies corroborate the medical evidence in all material particulars. Plea of alibi of Rajendra and Anuj were not proved. On these findings, he convicted the appellants and sentenced as mentioned above. Hence, these appeals have been filed.
11. The counsel for the appellants submitted that some unknown assailants committed murder of six farmers in the jungle of Butrana. Those assailants suspected that the deceased Karan, Jasveer and Rajendra were acting as the police informer against them. They committed murder of Karan, Jasveer and Rajendra, in the sugarcane field, which is situate at the outskirt of the village Salha Khedi. The witnesses were not present on the spot. Later on, when the incident came to knowledge of the villagers, then the information was given at the police outpost Lalu Kheda and the local police and other higher officers came on the spot. Satya Pal Singh was called from the village on the spot and the FIR was lodged after due deliberation with the police. Neither Satya Pal Singh (PW-1) nor Jawahar Singh (PW-2) were present on the spot. They, being family members, gave statements as tutored by the police. There was a dispute between the appellants and the deceased in respect of rasta, since 1997. The appellants were contesting the matter in the Court. Their Criminal Revision No. 360 of 1997 was dismissed on 09.03.2004. They challenged that order before High Court. The orders were against the appellants as such there was no occasion for the deceased not to abide with the order. Alleged exhortation that the deceased were not abiding with the order, was false. There was no motive, in any case, immediate motive for the appellants to commit three murders on 18.12.2005. Kalu (brother of Jawahar Singh and uncle of Satya Pal Singh) was unmarried. He gave the property of his share to the deceased Jasveer and Gajendra. On account of which Satya Pal Singh and Jawahar Singh started bearing enmity with the deceased. Their families were separate, having separate cultivation. It was rather improbable for Satya Pal Singh and Jawahar Singh to go to the field of Karan, which is situate on a longer route. Satya Pal Singh and Jawahar Singh deliberately concealed the correct fact and gave false statements. Satya Pal Singh and Jawahar Singh were not having good relation between them and litigation between Satya Pal Singh and Ran Kumar son of Jawahar Singh was going on. Their going together for irrigating the field on 18.12.2005 was highly improbable. Jawahar Singh was aged about 78 years and was suffering from acute asthma as such it was improbable for him to go to irrigate the field in cold season at 5:00 AM, particularly when his young son Ram Kumar was at the house. There are material improvement in the statements of the witnesses in the Court, which proves that the witnesses were not present on the spot. Jawahar Singh (PW-2) had retired from police service. He knew the importance of recording prompt statements under Section 161 Cr.P.C. Even then his statement under Section 161 Cr.P.C. was recorded on 27.01.2006. It is admitted to the witnesses that there was a direct pitch road in the south side of the place of incident for going to their house from pumping set as such it was not probable that they would prefer a brick-paved road of longer route as such their presence on the spot was highly improbable. The conduct of the witnesses was also unnatural inasmuch as they fled away from the spot to their village instead of attending the injured persons although it is alleged that the assailants had fled away towards west immediately after the incident. Although it is alleged that Smt. Santosh wife of Jasveer was present on the spot but she has not been produced in witness box. The prosecution has thus withheld material evidence and adverse inference is liable to be drawn. The ocular evidence is not corroborated by medical evidence, which creates serious doubt in the respect of presence of the witnesses on the spot. The Court below has disbelieved the recovery of the weapons from the appellants and acquitted them under Section 25/27 of Arms Act, 1959. The conviction of the appellants is illegal and liable to be set aside.
12. We have considered the arguments of the counsel for the parties and examined the record. The motive of the incident as alleged by the prosecution was that there was a dispute between Ranvir and Karan in respect of rasta and Karan was not abiding the decision in respect of that rasta. The fact relating to this litigation was that Ranvir had filed an application before Sub-Divisional Magistrate under Section 133 Cr.P.C., alleging encroachment by Karan over public rasta, which was rejected on 16.09.1997. Ranvir filed Criminal Revision No. 360 of 1997 against the aforesaid order, which was dismissed on 09.03.2004. It was alleged that Ranvir had challenged the aforesaid order before the High Court and the matter was pending on the date of incident. Satya Pal Singh (PW-1) has stated that during pendency of this case, no fight had ever taken place between the accused and the deceased. About two-three months prior to the incident some talks through relatives had taken place. No relative of Ranvir or common relative of the parties participated in the talks. His relative Pitam Singh talked to him for entering into a compromise, which was turned down by him. Ranvir and he did not have any conversation between them in this respect. Pitam Singh was not produced before the Court. From the aforementioned evidence it is proved that the orders of the Court were against the accused and in favour of the deceased as such there was no occasion for the deceased not to abide by the order. Allegation that the accused exhorted that the deceased were not abiding by the order, was false. Alleged talks for entering into a compromise as proposed by Pitam Singh, a relative of the informant, was not accepted by the informant. The prosecution has failed to prove that there was an immediate motive for the accused to commit three murders.
13. Supreme Court in Anil Rai v. State of Bihar, (2001) 7 SCC 318, has held that the enmity is a double-edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity, held to be a double-edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime.
14. In this case, the prosecution examined Satya Pal Singh (PW-1), who was real nephew of the deceased Karan and Jawahar Singh (PW-2) who was real brother of Karan to prove the case. Both the witnesses are highly interested witnesses. Constitution Bench of Supreme Court in State of Bihar v. Basawan Singh, AIR 1958 SC 500, has held that it is thus clear there is no universal or inflexible Rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such Rule can be laid down; for the value of the testimony of a witness depends on diverse factors, such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases, where the court will as a matter of prudence look for independent corroboration. It is wrong, however, to deduce from that decision any universal or inflexible Rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available.
Same view has been taken in Jarnail Singh Vs. State of Haryana, 1993 SCC (Cri) 869 and State of U.P. Vs. Kishan Chand 2004 SCC (Cri) 2013.
15. The incident had taken place at a distance of about 4 furlong from the house of the parties at the outskirt of village Salha Khedi. The deceased were peeling the outer layer of sugarcane in their field at that time. According to prosecution case, the witnesses were returning from their tube-well to their village Butrana, situated at a distance of 12 furlong from their house at village Salha Khedi. As soon as they reached near the field of Karan, the incident had taken place. According to the appellants Satya Pal Singh and Ran Kumar son of Jawahar Singh had strained relation between them as such their going together for irrigating the field in morning was highly improbable. The appellants have filed copy of plaint of O.S. No. 892 of 1997, Satya Pal Vs. Bhoj Singh and Ran Kumar. Satya Pal Singh (PW-1) admitted that this suit was pending. He also admitted of filing of a suit under Section 229-B of U.P. Act No. 1 of 1951, in respect of that land. Jawahar Singh (PW-2) stated that connection of the Tube-well, from which Satya Pal Singh was allegedly irrigating his field in morning, was in the name of Ran Kumar. Jawahar Singh (PW-2) stated that his son Ran Kumar was 40 years old and was present at the house on the date of incident. He did not ask Ran Kumar to go to irrigate the field on the date of incident as he was not following his instructions. From which it is proved that Satya Pal Singh and Ran Kumar son of Jawahar Singh were having strained relations and litigation was going on between them. Jawahar Singh was aged about 78 years and was suffering from acute asthma. It was rather improbable for him to go and irrigate the field in cold season of December in the early morning at 5:00 AM, particularly when his young son Ran Kumar was at the house. The factum of witnesses going together for irrigating the the field on 18.12.2005, in morning at 05:00 AM was highly doubtful which creates a doubt in respect of presence of these witnesses on the spot at the time of incident.
16. The appellants argued that Kalu (brother of Jawahar Singh and uncle of Satya Pal Singh) was unmarried. He gave his property to Jasveer and Gajendra (the deceased). Due to which Satya Pal Singh and Jawahar Singh was bearing enmity with the deceased. Their families were separate, having their separate cultivation. Satya Pal Singh and Jawahar Singh (PWs-1 and 2) have admitted that 10 bigha land was in the share of Kalu, which was given by him to Jasveer and Gajendra. It is also admitted by Satya Pal Singh (PW-1) that their land were partitioned. The field where incident had taken place belonged to Karan exclusively. In the backdrop of said circumstances, it was not probable for Satya Pal Singh and Jawahar Singh to go to the field of Karan, which was situate on another route although there was a pitch road, by which they could have gone to their field in morning, particularly when they had strained relations between them. The presence of the witnesses on the spot therefore appears to be doubtful.
17. Neither in the FIR nor in statement under Section 161 Cr.P.C., purpose for going of the witnesses by the side of the field of Karan (the deceased) was given, particularly, when they had gone to pumping set from the other route, which was a pitch road situated in the southern side of the place of incident as admitted to Satya Pal Singh (PW-1) in his cross-examination. In cross-examination for the first time, he had stated that he had gone to the field of Karan for peeling the outer layer of sugarcane and for asking as to when the cart is to be brought. In site-plan (Ex-Ka-18) presence of Satya Pal Singh and other witnesses were shown at the middle of the field of Karan on road, where the incident had taken place. If Satya Pal Singh (PW-1) had to go to the field of Karan for peeling the sugarcane, then he would have not gone up to middle of the field on road rather from western corner itself he would have entered the field. His statement that he and his wife had to peel sugarcane of Karan do not inspire confidence. In fact this was a material improvement in the statement of the witness has been made just to justify his going on brick-pave road instead of going through pitch road. Satya Pal Singh (PW-1) stated that he was Block Coordinator at Baghara Block and at the time of incident, he was posted at Titabi. He was very punctual in discharging his duties and used to go to his office in time, which was between 10:00 AM to 4:00 PM.
18. Subsequent conduct of the witnesses also does not stand to reason. Satya Pal Singh (PW-1) stated that all the four accused persons made simultaneous firing upon the three deceased. Total six fires are said to have been made. On the spot 6 empty cartridges were recovered. Thereafter, the accused fled away towards west. At that time Salya Pal Singh, Jawahar Singh, Smt. Kaushalya and Smt. Santosh were present on brick-paved road. After seeing the incident, they ran away towards the village. When the accused flee away from the place of incident, after second round of firing then at least it was rather improbable for Smt. Santosh wife of Jasveer for not going to the place, where dead body of Jasveer was lying. Inquest of the dead bodies were done on 18.12.2005 from 11:55 hours to 15:05 hours. Satya Pal Singh (PW-1) in paragraph-58 of his statement has stated that at the time, when the police came on the spot for Inquest, Jawahar Singh, Smt. Kaushalya and Smt. Santosh were not there. These facts again raise suspicion in respect of the presence of the witnesses on the spot.
19. According to Satya Pal Singh and Jawahar Singh (PWs-1 and 2), the accused came from the sugarcane field of Vishan, on the eastern side. Manu Pal and Ranvir opened fire upon Gajendra. Gajendra was shot while he was standing and when he had fallen down again he was shot at. Manu Pal and Ranvir did not fire upon Karan. The dead body of Gajendra was found in eastern side of the field of Karan and near his dead body two empty cartridges were found. On the body of Gajendra two gunshot entry wounds were found. In between the dead bodies of Jasveer and Karan four empty cartridges were found. On the body of Karan Singh also two gunshot entry wounds were found. On the body of Jasveer one gunshot entry wound was found and second wound was Tunnel (gutter) shaped wound 6 cm x 2 cm on right angle of mouth. Lower jaw was found fractured. Second injury was also a gunshot injury. According to the witnesses, Rajendra assaulted Jasveer by his tabal (a sharp edged weapon) but on the body of Jasveer no injury of tabal was found. The ocular evidence is not corroborated with medical evidence, which again creates doubt in respect of presence of the witnesses on the spot.
20. Supreme Court in Satbir v. Surat Singh, (1997) 4 SCC 192, Harjinder Singh v. State of Punjab, (2004) 11 SCC 253, Acharaparambath Pradeepan v. State of Kerala, (2006) 13 SCC 643, Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360) and Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 has held that the evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence. In Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 has held that deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded.
21. Smt. Santosh was widow of Jasveer (deceased). It is alleged that at the time of incident, she was going at the place of incident fetching the meal of the deceased and had seen the incident. Smt. Santosh was the best witness to corroborate the prosecution story however she was not produced in evidence nor any reason had been assigned for her not being examined as such adverse inference is liable to be drawn under Section 114 Illustration (g) of Evidence Act, 1872.
22. In view of the aforesaid discussions, Criminal Appeal Nos. 5558, 5538, 5612, and 6031 of 2010 succeed and are allowed. The judgment of Additional Session's Judge/ Special Judge, Muzaffarnagar, dated 19.07.2010/ 20.07.2010, passed in S.T. No. 407 of 2006, State vs. Ranvir and others, (arising out of Case Crime No. 363 of 2005, under Section 147, 148, 149, 302 of IPC), Police Station Babari, district Muzaffarnagar, convicting the accused-appellants, under Section 302 read with Section 149 IPC and sentencing for imprisonment for life and under Section 148 IPC and sentencing for three years rigorous imprisonment to them is set aside. The appellants are discharged from the charges. Their bail bonds are canceled and sureties are discharged. The appellants will comply the provisions of Section 437-A Cr.P.C., within period of one months from their release. Criminal Revision No. 3936 of 2010 is dismissed.
Order Date :- 12.7.2019 Rahul Dwivedi/-
[Rajiv Gupta,J.] [ Ram Surat Ram (Maurya),J.]