Allahabad High Court
Shiv Raj Singh & Others vs State Of U.P on 24 April, 2020
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1. Heard Shri Sushil Kumar Singh, learned counsel for the appellants as well as Shri Aniruddh Kumar Singh, learned A.G.A. and perused the record.
2. The present appeal has been filed under Section 374(ii) Cr.P.C. against the judgment and order dated 09.12.1996 passed by the Additional Sessions Judge-VI, Sitapur in Sessions Trial No.11 of 1993 arising out of Case Crime No.152 of 1991, under Sections 147, 148, 149, 307 I.P.C., P.S. Kotwali, District Sitapur, whereby the appellants are convicted under Sections 147, 148, 307/149 I.P.C. and sentencing them to undergo 6 months R.I., 9 months R.I., 10 years R.I. respectively and a fine of Rs.1,000/- each, in default of payment of fine, further 3 months R.I.
3. As the appeal was admitted on 17.12.1996 and the appellants namely Shiv Raj Singh S/o Hazari Singh, Chhotkannu Singh S/o Bharat Singh, Pratap Singh S/o Bharat Singh & Veer Pal Singh S/o Mathura Singh were released on bail and during the pendency of appeal, the appellant No.1 Shiv Raj Singh died, therefore, the appeal stood abated in relation to the appellant No.1.
4. The factual matrix of the prosecution case is that on 16.12.1991 at about 09:00 p.m., the borther of the informant namely Vijay Pal Singh was at the fire place outside the house, at the same time, the appellants namely Veer Pal Singh, Chhotkannu Singh, Pratap Singh and Shiv Raj Singh armed with the country made gun appeared on the place and on the exhortation of Shiv Raj Singh, Chhotkannu Singh & Pratap Singh opened fire, which hit the left side of abdomen and in the both hands of Vijay Pal Singh. As there was enmity between the informant side and the assailants in relation to the land dispute, therefore, the appellants attacked with the intention to kill Vijay Pal Singh and the informant also mentioned that this incident was seen by him and Sant Bux Singh (his father), Suresh Pal Singh (his brother), co-villagers Man Singh, Madaari Lal and others, on their alarm, the appellants ran away. Thereafter, the F.I.R. was scribed by one Shiv Kumar Singh S/o Bindra Singh R/o 192 Arya Nagar, Sitapur. As the jurisdiction lies at Police Station Imaliya Sultanpur, District Sitapur, but the informant went to the Police Station Kotwali, District Sitapur in place of Police Station Imaliya Sultanpur, District Sitapur, thereafter, the F.I.R. was lodged as Case Crime No. Nil of 1991, under Sections 147, 148, 149, 307 I.P.C., P.S. Kotwali, District Sitapur on 17.12.1991 at 2:05 a.m. and the injured Vijay Pal Singh was sent for his medical examination. The injured was medically examined by Dr. A.K. Nigam in the District Hospital, Sitapur on 17.12.1991 at 2:45 a.m. Thereafter, investigation was conducted by the Investigating Officer and he filed charge sheet on 24.12.1991 against Veer Pal Singh, Chhotkannu Singh & Pratap Singh under Sections 147 148 149 307 I.P.C. and the supplementary charge sheet dated 06.01.1992 was filed against Shiv Raj Singh under Secitons 147, 148, 149, 307 I.P.C., the cognizance was taken by the court below and after committal, the case was registered as S.T. No. 11 of 1993. Thereafter, charge was framed on 31.03.1994 against the appellants but the appellants denied the guilt and prayed for trial.
The prosecution relied on 7 witnesses namely Vijay Pal Singh - PW-1 (injured), Nand Kishore - PW-2 (informant), Madari Lal - PW-3 (hostile) [PW-1, PW-2 and PW-3 are the witnesses of fact], Constable 484 Suresh Chandra Pandey - PW-4, Dr. O.P. Pandey - PW-5, Dr. A.K. Nigam - PW-6 & Constable 318 Ram Nath - PW-7 and the prosecution relied on 7 documentary evidences i.e. written complaint (Ex. Ka.1) proved by PW-2 , GD rapat no.4 dated 17.12.1991 at 02:05 hours (Ex. Ka.2), F.I.R. (Ex. Ka.3) proved by PW-4, X-ray report (Ex. Ka.4) proved by PW-5, medcial report of Vijay Pal (Ex. Ka.5) proved by PW-6, recovery memo of blood sustained pellet (Ex. Ka.6), site plan (Ex. Ka.7) & charge sheet (Ex. Ka.8), supplementary charge sheet (Ex. Ka.9). The statement of the appellants were recorded under Seciton 313 Cr.P.C and all the appellants categorically denied the allegations and the appellant Shiv Raj Singh stated that false charge sheet was submitted by the police official and witnesses has given false statement, as the informant and appellants belongs to the same family and no such incident was taken place at the place of incident and there was no fire place and he also stated that Dirgaj Singh was also the family member of the appellant, as his land was purchased by Kadhile Pasi through imposter. Thereafter, the case was filed for cancellation of sale deed by minor son of Dirgaj Singh namely Sanval Singh (minor) through the father of the informant and later on he entered into the compromise with the Kadhile Pasi by taking some money and withdrew the case. As, Sanwal Singh felt cheated, therefore, he started living with the appellant Shiv Raj Singh and the appellants had helped him, therefore, the appellants have been intricated in the case. As Vijay Pal Singh (injured) was having enmical relation with the washermans of the village and in between them, criminal case was going on and also stated that Vijay Pal Singh (injured) is a notorious and womenizer and also stated that under the political pressure of Smt. Geeta Singh, who is the leader of Samajwadi Party, the false F.I.R. was lodged in P.S. Kotwali, District Sitapur in place of P.S. Imaliya, District Sultanpur, as the place of incident comes into the jurisdiction of P.S. Imaliya, District Sultanpur and also stated that Shiv Kumar Singh, who has written the F.I.R., is the husband of Smt. Geeta Singh and on the date of incident, some dacoits had entered into the house of vijay pal and while chasing them, some scuffle taken place between them and in the said incident, Vijay Pal Singh received injuries but the appellants have been falsely implicated due to enmity. After considering the evidence laid by the prosection and the statements under Section 313 Cr.P.C., the learned court below convicted the appellants vide judgment and order dated 09.12.1996.
5. Learned counsel for the appellants submitted that as per the F.I.R., on 16.12.1991, the injured Vijay Pal Singh (PW-1) was sitting at the fire place outside his house, at the same time appellants armed with the country made pistols appeared on the place and on the exhortation of Shiv Raj Singh, appellants Chhotkannu Singh & Pratap Singh opened fire. The aforesaid incident was caused due to land dispute and the said incident was seen by the informant, Sant Bux Singh (father of informant), Suresh Pal Singh (brother of informant), co-villagers Man Singh, Madaari Lal and others. As the appellants ran away from the place of incident then the injured was brought to the Police Station Sitapur.
6. Learned counsel for the appellants further submitted that the incident was caused within the jurisdiction of P.S. Imaliya Sultanpur, District Sitapur but the informant has not given any information to the aforesaid police station and false F.I.R. was lodged under the pressure of Ms. Geeta Singh, General Secretary of Samajwadi Party (the then ruling party) and the husband of Ms. Geeta Singh namely Shiv Kumar Singh scribed the F.I.R. and the F.I.R. was lodged as Case Crime No. Nil, under Sections 147, 148, 149, 307 I.P.C., P.S. Kotwali, District Sitapur on 17.12.1991 at 2:05 a.m. Thereafter, the injured was sent for medical examination at 2.45 a.m. by Home Guard 2306 Pramod Kumar.
7. Learned counsel for the appellants further relied on the statement of Vijay Pal Singh (PW-1), who deposed before the court below that on the date of incident i.e. around four and half years ago in the night at 8:45 p.m., he was at the fire place outside his door and informant (his brother) was also sitting near him and the informant Nand kishore was talking with his younger brother Suresh Pal and his father, at the same time appellants appeared along with 10 unkonwn persons and on the exhortation of Shiv Raj Singh, appellants Chhotkannu Singh & Pratap Singh opened fire, which hit left side of the stomach and in both hands of the injred, as a result, he fell down and became unconscious. Thereafter, the injured became conscious in the Disrict Hospital Sitapur and he further deposed that the appellants belongs to his family and at the time of incident he was in the north east corner of his thatch and all the appellants along with others (unkonwn) armed with the country made guns surrounded him and firing happened before he was able to stood up but later on he told that he stood up before firing, as the appellants Chhotkannu Singh and Pratap Singh opened fire by touching the guns with his body and they did only two fires.
8. Learned counsel for the appellants fruther submitted that as the appellant received 10 injuries and Dr. A.K. Nigam - PW-6 conducted medico-legal examination and he deposed that injury Nos. 1 to 5 may be caused by firing from the front side of injured, injury Nos. 7, 8 & 10 may be caused by firing from the back side of injured, injury Nos. 7, 9 & 10 may be caused by different fires & injury Nos. 1 to 6 may be caused by minimum two fires, as no blackening and tattooing is present, meaning thereby, all the injuries are caused away from the six feet of the injured. He further submitted that the deposition of injured i.e. PW-1 and medical evidence does not corroborate and the learned court below has wrongly passed the impugned judgment of conviction merely on the basis of presumption which is not permissible under law.
9. Learned counsel for the appellants relied on the decision of Hon'ble Supreme court in the case of Ram Narain Singh vs. State of Punjab reported in 1975 4 SCC 497 and also relied on the decision of this Court in the case of Satish and Others vs. State of U.P. reported in 2019 SCC OnLine All 3339.
10. Learned counsel for the appellants also relied on the deposition of Nand Kishore - PW-2 (informant), who stated that on the date of incident, Vijay Pal was at the fire place and informant, his father & his brother Suresh Pal were sitting nearby under the thatch and talking among themselves, at the same time, appellants appeared along with others, armed with the country made gun but the other persons were unarmed and on the exhortation of Shiv Raj Singh, appellants Pratap Singh and Chhotkannu Singh opened fire, which hit the Vijay Pal, as a result, he fell down and on alarm, Man Singh, Suresh Pal Singh, Madari and other villagers reached on the spot and he also stated that the complaint was scribed in the village by Shiv Kumar Singh, who is residing in Sitapur and then by the tractor, Vijay Pal was brought to the Kotwali Sitapur and written complaint was given, then Vijay Pal was brought to the hospital by police.
11. Learned counsel for the appellants also submitted that the statment of Nand Kishore - PW-2 is also not corroborating with the medical evidence and the depostion of PW-1, as PW-2 stated in his statement that Madari Lal was the eye witness and he was produced as PW-3 before the trial court, where he denied the incident, then he was declared hostile and he was cross-examined and he categorically stated that his statement was not recorded by the investigation officer and he never made any statement before him and he also stated that he is a home guard and on the date of incident he was on duty in the Police Station Maholi.
12. Learned counsel for the appellants also drew attention of court on the statement of Constable 484 Suresh Chandra Pandey - PW-4, who prepared the GD Entry and also stated that he inspected the injuries of the injured but in the GD he had not mentioned that the injured was unconscious as the injured PW-1 deposed before the court below that he was unconscious after the incident and he bacame conscious in the District Hospital. Therefore, in such circumstances, the testimony of PW-1 is contradictory.
13. Learned counsel for the appellants also drew attention of the Court on the site plan prepared by the Investigation Officer and submitted that at D Place, PW-1 was sitting at the fire place and at A Place, informant, his brother and father were sitting and the place marked with arrow shows the way of coming of the appellants and opening of the fire, as he submitted that A Place is just behind the B and not a single injury was caused to the informant, his father and brother which is very close to the Place B, therefore, the occular evidence and medical evidence does not corroborate and the Investigating Officer never tried to recover any weapon, in such circumstances, merely on the basis of presumption, the conviction is liable to be set aside.
14. Learned A.G.A. relied on the decision of Hon'ble Supreme Court in the case of Paras Yadav vs. State of Bihar (1999) 2 SCC 126 and submitted that if the lapse or ommission is committed and is found in the prosecution case, it does not affects the credibility of the prosecution version.
15. After considering the arguments of the learned counsel for the appellants and learned A.G.A., it is appropriate to deal the injury of the injured Vijay Pal - PW-1. The injury report (Ex. Ka.5) was proved by Dr. A.K. Nigam, as he deposed that no blackening & charring was present on the injury and he also explained that injury Nos.1 to 6 would be caused by a minimum two fires and injury Nos.1 to 5 would be caused from the front side of the injured and injury Nos.7, 8 & 10 would be caused when the fire is opened behind the injured and he also deposed that injury Nos. 7, 9 & 10 may be caused by the different fires, meaning thereby, minimum 5 fires were opened by the assailants but PW-2 categorically stated that only two fires were made by the appellant Chhotkannu Singh & Pratap Singh, as he also stated that 10 to 14 accused persons opened the fire but he received injuries of the fire of Chhotkannu Singh & Pratap Singh. PW-2 (eye witness) stated that on the date of incident, appellants along with other persons appeared on the spot and only Chhotkannu Singh & Pratap Singh were having country made guns and rest of the persons did not have any weapon and on the exhortation of Shiv Raj Singh, Chhotkannu Singh & Pratap Singh opened fire on Vijay Pal, as a result, he fell down then the accused persons ran away as the injury received on the body of the injured Vijay Pal do not corroborate with the statement of alleged eye witnesses i.e. Vijay Pal and Nand Kishore and also the deposition of Dr. A.K. Nigam PW-6, PW-3 also claimed as an eye witness by the prosecution but he became hostile and he categorically stated that on the date of incident he was deployed on the duty in the Police Station Maholi. As the Hon'ble Supreme Court in the case of Ram Narain Singh vs. State of Punjab (supra) held that when the ocular evidence is incosistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. Paragraph 14 of the aforesaid case is reproduced as under :-
"In a case where death is due to injuries or wound caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle."
The case of Satish and Others vs. State of U.P. (supra) passed by this Court in the light of the decision of Ram Narin Singh (supra), the relevant para Nos.45 & 47 of the aforesaid decision are reproduced as under :-
"45. In the case of Ram Narain Singh (supra), it was held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. Further, it was observed that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. From the above discussion of the evidence of the eye-witnesses including injured witnesses, their evidence does not at all inspire confidence and their evidence is running in conflict and contradiction with the medical evidence and ballistic expert's report in regard to weapon of offence, which was different from the one sealed in the Police Station. The High Court has, in our opinion, disregarded the rule of judicial prudence in converting the order of acquittal to conviction. The same has been considered in the Mahendra Pratap Singh (supra) by the Supreme Court.
47. To sum up, in the present case, the ocular evidence do not correspond with the medical evidence and ocular testimony do not inspire as much confidence to prevail over the medical evidence. The prosecution has failed to link the firearm, used cartridge and the bullet recovered from the fatal injury of the deceased. Though expert opinion or ballistic report may not have conclusive effect, but in this case, the link or connecting evidence goes to the root of the matter, as such, it needed to be clarified by the prosecution, which has not been done. The ocular evidence do not correspond with the prosecution case also, as the prosecution has not come up with the case of bomb explosion, whereas ocular evidence do mention it. The aforesaid appreciation of evidence lead to only one conclusion that the case has not been proved beyond reasonable doubt by the prosecution and the benefit has to go to the accused-appellants."
It is also evident from the statement of PW-1 and PW-2 that no role of Veer Pal is assigned, as PW-2 is the informant (eye witness) and he deposed in the cross-examination that all the unkonwn 10 persons were near the bamboo tree, therefore, he could not identify them, meaning thereby, the unkonwn persons were not peresent at the place of incident and he also deposed that all the persons except Pratap Singh and Chhotkannu Singh rest were unarmed but the PW-1 stated that all the persons were armed with the coutnry made guns and opened fire and he received injuries from the fire of Chhotkannu Singh & Pratap Singh. As the Investigating Officer submitted charge sheet only against the four persons but this fact was not considered by the learned trial court as there was no any unlawful assembly, as there was no any allegations against the Veer Pal Singh.
16. Accordingly, this court is of the view that the trial court holding guilty to the accused appellants namely Shiv Raj Singh, Veer Pal Singh, Chhotkannu Singh & Pratap Singh under Sections 147, 148, 307/149 I.P.C. is not in accordance with the law and the same is not sustainable, the appeal filed by the appelants is liable to be allowed and the appellants are entitled to get the benefit of doubt, accordingly, they are entitled for acuqittal.
17. In view of the above, the appeal is allowed and the judgment and order dated 09.12.1996 is hereby set aside, the appellants Shiv Raj Singh, Veer Pal Singh, Chhotkannu Singh & Pratap Singh are acquitted as prosecution failed to prove its case beyond doubt.
18. As it is evident form the record that the appelants are on bail, thus, they are discharged from the liability of bail bonds furnished by them.
19. Office is directed to forward the certified copy of this order to the court concerned and also send back the lower court record.