Allahabad High Court
Shiv Ram Singh And Another vs State Of U.P. on 27 May, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:96297 Reserved on : 01.03.2024 Delivered on : 27.05.2024 Court No. - 74 Case :- CRIMINAL APPEAL No. - 7746 of 2019 Appellant :- Shiv Ram Singh And Another Respondent :- State of U.P. Counsel for Appellant :- Mohd. Samiuzzaman Khan,Anand Kumar Mishra,Arun Kumar Singh,Ashwini Kumar Ojha,Awadhesh Prasad,Jai Singh Parihar,Rajiv Kumar Mishra,Rudra Pratap Pandey Counsel for Respondent :- G.A.,Arun Kumar Singh,Prem Shankar with Case :- CRIMINAL APPEAL No. - 6225 of 2019 Appellant :- Kavindra Singh And Another Respondent :- State of U.P. Counsel for Appellant :- Raghav Ram,Ashwini Kumar Ojha Counsel for Respondent :- G.A.,Ajay Sengar with Case :- CRIMINAL REVISION No. - 3567 of 2019 Revisionist :- Narayan Das Richhariya Opposite Party :- State Of U.P. And 4 Others Counsel for Revisionist :- Ajay Sengar,Anurag Sharma Counsel for Opposite Party :- G.A.,Ashwini Kumar Ojha,Mohd. Samiuzzaman Khan Hon'ble Samit Gopal, J.
1. Criminal Appeal No. 7746 of 2019 (Shiv Ram Singh and another Vs. State of U.P.) is connected with Criminal Appeal No. 6225 of 2019 (Kavindra Singh and another Vs. State of U.P.) and one revision is also connected being Criminal Revision No. 3567 of 2019 (Narayan Das Richhariya Vs. State of U.P. and 4 others). The above mentioned three cases are arsing out of the same case crime number. Criminal Appeal No. 7746 of 2019 has been preferred by two accused persons namely Shiv Ram Singh son of Bal Bahadur Singh and Sanjay Singh son of Bal Bahadur Singh and the connected Criminal Appeal No. 6225 of 2019 has been preferred by Kavindra Singh son of Bal Bahadur Singh and Deepu Singh son of Bal Bahadur Singh. The said two appeals have been preferred against the judgment and order dated 31.08.2019 passed by Special Judge/Gangsters Act/Additional Sessions Judge, Court No. 6, Jhansi in GST No. 120/2007 (State of U.P. Vs. Shiv Ram and others) arising out of Case Crime No. 214/2007, under Sections 387, 506 IPC and Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station Gursarai, District Jhansi whereby the appellants have been convicted and sentenced under Section 387 IPC to four year rigorous imprisonment, fine of Rs. 5,000/- each and in default of payment of fine to one month rigorous imprisonment, under Section 506 IPC to four year rigorous imprisonment and under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 to four year rigorous imprisonment, fine of Rs. 20,000/- each and in default of payment of fine to four months rigorous imprisonment. The sentences have been ordered to run concurrently. The benefit of set off under Section 428 Cr.P.C. has been given to the accused persons.
2. The criminal revision has been preferred by the first informant Narayan Das Richhariya for enhancement of the sentence as awarded to the accused persons by the trial court wherein the accused persons have been arrayed as respondents no. 2 to 5. The prayer in the revision is as follows:-
"It is therefore, most respectfully prayed that this Hon'ble court may graciously be pleased to- A. Call for the record of present case from the Hon'ble Court below.
B. Allow the revision, enhancing the sentences up to the maximum extent as provided u/Ss. 387, 506 Indian Penal Code, 1860 and 2/3 of The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. Otherwise, the Revisionist/Informant shall suffer irreparable loss and injury."
3. The facts of the case are that an application dated 29.06.2007 Exb: Ka-1, was given by Narayan Das Richhariya addressed to the SHO, P.S. Gursarai, District Jhansi alleging therein that on 15.06.2007 at about 06:15 am he had gone to visit temple situated at Asta Link Road where Sanjay Singh, Shiv Ram Singh, Kavindra Singh and Deepu Singh came wherein Shiv Ram was having a pistol, Sanjay Singh was having a rifle, Kavindra Singh was having a DBBL gun and Deepu was having a country made pistol and a lathi with them and all the accused persons together abused him and while pointing the weapons told him that he had made a complaint against them about the ploughing of government pond in which they have spent Rs. 20,000/- in pairvi and they want the said money to be given by him within 15 days or else he would be murdered. Sanjay Singh stated that the informant was earlier beaten but he could not do anything about it. The application further states that even previously on 20.12.2004 while using the water of the canal and not giving Gunda Tax, the accused persons had beaten him and on the pressure of Samajwadi Party despite an order dated 21.12.2004 of the Senior Superintendent of Police, Jhansi, his case was not registered. He states that the accused persons are high handed persons and are professionally criminals and indulged in activities in the village quite often along with their illegal arms. He prays that a report be lodged and legal action be taken and his property be protected.
4. On the basis of the said application, an FIR was lodged on 01.07.2007 at 03:15 pm as Case Crime No. 214 of 2007, under Sections 387, 506 IPC, P.S. Gursarai, District Jhansi against the accused appellants Sanjay Singh, Shiv Ram Singh, Kavindra Singh and Deepu Singh. The Chik FIR is Exb: Ka-4 to the records.
5. During investigation, the Investigating Agency prepared a gang chart of four accused persons and recommended proceedings under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 which after being forwarded by the concerned officials was subsequently approved by the District Magistrate concerned on 13.07.2007. The accused Shiv Ram Singh was shown to be involved in five cases including the present case. The cases are as follows:
(i) Case Crime No. 15 of 1994, under Sections 324, 323, 504 IPC and Section 3(i)(x) SC/ST Act, P.S. Gursarai, District Jhansi.
(ii) Case Crime No. 252 of 1998, under Sections 307, 504 IPC, P.S. Gursarai, District Jhansi.
(iii) Case Crime No. 215 of 2007, under Sections 387, 504, 506 IPC, P.S. Gursarai, District Jhansi.
(iv) NCR No. 30 of 2007, under Section 506 IPC, P.S. Gursarai, District Jhansi.
(v) Case Crime No. 214 of 2007, under Sections 387, 506 IPC and Section 2/3 Gangsters Act, P.S. Gursarai, District Jhansi.
The accused Sanjay Singh was shown to be involved in four cases including the present case which are as follows:
(i) Case Crime No. 15 of 1994, under Sections 324, 323, 504 IPC and Section 3(i)(x) SC/ST Act, P.S. Gursarai, District Jhansi.
(ii) Case Crime No. 252 of 1998, under Sections 307, 504 IPC, P.S. Gursarai, District Jhansi.
(iii) Case Crime No. 215 of 2007, under Sections 387, 504, 506 IPC, P.S. Gursarai, District Jhansi.
(iv) Case Crime No. 214 of 2007, under Sections 387, 506 IPC and Section 2/3 Gangsters Act, P.S. Gursarai, District Jhansi.
The accused Kavindra Singh and Deepu Singh are shown to be involved in two cases including the present case. The same are as follows:
(i) Case Crime No. 215 of 2007, under Sections 387, 504, 506 IPC, P.S. Gursarai, District Jhansi.
(ii) Case Crime No. 214 of 2007, under Sections 387, 506 IPC and Section 2/3 Gangsters Act, P.S. Gursarai, District Jhansi.
6. Out of the cases mentioned against the accused persons, Case Crime No. 214 of 2007, Police Station Gursarai, District Jhansi is the present case in which the present appeals and criminal revision have been filed. The said gang chart is Exb: Ka-3 to the records.
7. The investigation concluded and a charge sheet No. 71 of 2007 dated 18.08.2007, under Sections 387/506 IPC and 2/3 of the Gangsters Act was filed against the said four accused persons. The said charge sheet is Exb: Ka-2 to the records.
8. The Investigating Officer prepared a site plan of the place of occurrence on 06.07.2007, the same is Exb: Ka-4 to the records.
9. Vide order dated 30.11.2010 passed by the Special Judge, Gangsters Act, Jhansi charges under Sections 387, 506 IPC and Section 3 of the Gangsters Act were framed against the accused appellants. They pleaded not guilty and claimed to be tried.
10. The trial in the matter started in which ten prosecution witnesses were produced and examined. Narayan Das Richhariya the first informant was examined as PW-1, Hari Shankar Richhariya the son of the first informant was examined as PW-2, Malkhan Singh resident of the same village as that of the first informant was examined as PW-3, Panna Lal also a resident of the same village of the first informant was examined as PW-4, Nitendra Bahadur also a resident of the same village of the first informant was examined as PW-5, Om Prakash a resident of the same village of the first informant was examined as PW-6, Jai Prakash the Investigating Officer of the matter was examined as PW-7, Ashok Kumar a resident of the same village of the first informant was examined as PW-8, Jagram Singh also a resident of the same village of the first informant was examined as PW-9 and Ram Jeevan the Head Constable who transcribed the Chik FIR was examined as PW-10.
11. The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and claimed to have been falsely implicated in the present case and stated that the witnesses are giving false evidence. They further stated that they are not members or leader of any gang and have not committed any offence under the Gangsters Act, they have been falsely implicated due to enmity of village pradhani. They further stated that since an FIR was lodged against Pushpendra Richhariya under Section 302 IPC they have been falsely implicated in the present matter due to the said enmity.
12. The informant filed documents along with an index which was numbered as 72-D of the records. The accused filed documents on their behalf along with an index which was numbered as 108-B to the records.
13. The trial court finding the evidence to be truthful came to the conclusion that the prosecution has proved its case beyond reasonable doubt and convicted and sentenced the accused appellants as above. The convicted accused have thus preferred the above appeals against the said conviction and sentence. The above mentioned criminal revision has been filed by the first informant on the ground of inadequacy of sentence for enhancing it to the maximum.
14. Narayan Das Richhariya PW-1 is the first informant of the case. He states that on 15.06.2007 he went to Hanuman Ji Temple at about 06:15 am for Darshan. He met the accused persons there in which Shiv Ram Singh was with a pistol, Sanjay with a rifle, Manju with a DBBL and Deepu with a country made pistol and lathi. All the four accused persons said to me that he had made a complaint against them regarding a pond in which they had spent Rs. 20,000/- and started abusing him. Sanjay told him that previously he was beaten by him but he could not do anything then. They would again beat him after 15 days if he does not return the said money. He states that the accused persons had beaten him on 20.12.2004 in which his clothes got blood stained. He gave a report at police station but his report was not lodged after which he had sent a report to the SSP/DIG, Jhansi. He signed the same at paper No. 44-B. An objection was raised at this stage on behalf of the defence, the original copy of the said document not being available, the same was marked as Exb: Ka-1 to the records.
In his cross examination he states that he knows the accused since before. In another case, he has given evidence in the same court around 6-7 months earlier. He states that the evidence was given against Sanjay Singh, Shiv Ram and others. In the said matter, A.K. Singh was the complainant. He states that he had not lodged any report against the accused in any court. He had not moved any application under Section 156(3) Cr.P.C. against Sanjay Singh, Kavindra Singh, Deepu Singh and Shiv Ram for offences under Sections 387, 147, 148, 149, 506 IPC. He states that it is incorrect to state that he has given any such application. He states that it is incorrect that the said application was rejected on 08.02.2005. He has three sons namely Rajendra, Pushpendra and Hari Shankar. Hari Shankar is a farmer, Rajendra is a student and Pushpendra is a lawyer. He has no licensed weapon. There is no case registered against his eldest son at Police Station Gursarai. There is no case registered against his youngest son Hari Shankar at Police Station Gursarai. He then states that there is a case against Hari Shankar but he does not know how many cases have been registered. In 1994 a case under Section 25 of the Arms Act was registered against Hari Shankar at Police Station Gursarai, which he knows. He does not know about Case Crime No. 159/97 under Sections 452, 325 IPC, P.S. Gursarai, Jhansi. He does not know about the case of the year 1992 being Case Crime No. 186/92, under Sections 324, 323, 504, 506 IPC, P.S. Gursarai, District Jhansi against Hari Shankar Richhariya. He states that Case Crime No. 282/2000 under Section 3 of the Gunda Act was not registered against his son Hari Shankar Richhariya. He states that it is incorrect to state that in the said case, his son was externed from the district. He states that he has difficulty in vision. He uses glass in his eyes. He does not remember since when he uses glass. Against his son Pushpendra Richhariya there are 1-2 cases registered at Police Station Gursarai, District Jhansi. He does not know about the Case Crime No. 10/99 under Section 3 of the U.P. Gunda Act, P.S. Baruva Sagar against Pushpendra Richhariya. He had given his sureties in cases of both his sons. His foot was burnt. He does not remember the year. It was around 15 years back. He was a teacher at that time and his right foot was burnt. He was treated for about 15 days. He got burnt in the house itself. He denies the suggestion that his foot was got burnt by people of the village. He states that he has not given any said statement that foot was burnt by villagers. He does not know about the Case Crime No. 17/98 under Section 364 IPC, P.S. Gursarai against his son Pushpendra Richhariya. He does not know about the scribe of the said case who is Shiv Ram Singh. He does not know whether his son is involved in criminal cases. He knows Krishna Bahadur Lochan. He had given an application about the incident of 20.12.2004 but his report was not lodged. He was alone in the incident in which he received injuries. No one was present at the time of incident. He got his medical examination done after which he gave an application to the SSP/DIG, annexed the medical examination along with the said application. He had given the application against four persons. The report was lodged on the directions of the DIG. He received a copy of the said report. He was interrogated by the Investigating Officer. No witness was examined before the court concerned. The matter is still pending. He knows the accused well. They are his villagers. There is a pond on all the sides of the village. The incident is of 20.12.2004 when he was taking water from the canal. The incident is of about 09:00-10:00 pm. Small pond had gone dry. The big pond was not dry. It was a government pond. Farming is being done from the water to the same. He did not make any complaint regarding farming done in the pond by the accused persons. He denies the suggestion that his son Hari Shankar was with him at the time of the incident on 20.12.2004 and the accused persons had assaulted him also. He further denies that in his application given to the SSP/DIG, Jhansi he did write that Hari Shankar was also assaulted by the accused persons. He states that he did not file any case regarding the said incident. He denies the fact that he filed a case about the incident in the Court of Special Judge/D.A.A., Jhansi. He does not keep interest in election of village pradhan. He has given vote in the election. From the year 2004-05 Smt. Suman Devi the wife of Shivram was the village pradhan at that time. Om Kumar Arivar is the village pradhan. Before the year 2000, Jagram Singh was the village pradhan. He denies the suggestion that he had supported Jagram Singh in the election in which Shivram Singh was defeated by 32 votes. He had been a witness in the present incident and in the case filed by A.K. Singh. Apart from the said cases, he had not been a witness. He knows Dhanraj Singh of the village and Smt. Rani who is his daughter. He states that it is incorrect that in the case filed by Dhanraj against Shivram under Section 364 IPC he, Dileep Rai, Anand Singh, Narendra Singh etc. had been witnesses. He states it is correct that at paper No. 46-B it is written as Narayan Das son of Ram Charan. In the same paper, Sanjay Singh, Kavindra Singh, Shivram Singh and Deepu Singh is also mentioned. His signature is not there. He states that he has not filed a case regarding paper No. 46-B. He states that he does not know that when the said case has been rejected. There is no other case filed except the present case. He knows Naresh Pal Singh and Mahendra Singh of village Asta. He does not know whether Narendra Pal had lodged any case against the accused persons. He denies that Narendra Pal and his case under Sections 387, 504, 506 IPC, P.S. Gursarai was ordered to be registered. He was present at the time of lodging of his report. He states that it is incorrect to state that the case of Narendra Pal was also lodged when his case was lodged. He knows Kamlapat who is a farmer. He knows Dhirendra Singh. He states that the Ibarat which is Exb: Ka-1 is not his writing. He states that the writing at paper No. 44-B is his writing. He had gone for medical examination of the injuries in government hospital in the morning. After which he went to the police station and reached there at about 04:00 pm. He gave his application to the DIG after some days. There is no pujari in the temple where he had gone for Darshan. He had not forcibly got any land registered in his favour in village Asta belonging to the accused Shiv Ram Singh and his brothers. He did not sell land to them and did not make any complaint against the accused persons. He had even earlier seen the accused roaming with weapons. All the weapons were without license. He did not make any complaint about the accused ploughing the land of pond. The complaint was done by the Lekhpal and other villagers. He does not remember when the complaint was done. He did not sign on the application of complaint. He cannot tell the name of Lekhpal and the villagers who had filed the complaint. He had not made any complaint regarding weapons. He was shown paper No. 46-B on which Narayan Das retired teacher is written and in para No. 4 at page 2 there is mentioned that the incident is of 20.12.2004 on which he states that he does not know who gave paper No. 46-B. He states that he does not know about the complaint given by Narendra Pal Singh, village Asta, Police Station Gursarai regarding the pond and weapons. A fine of Rs. 50,000/- was imposed on the accused persons regarding complaint of the pond. He does not know Krishna Pal Rajpoot. He does not know that the letter pad of BSP was used regarding the complaint of pond against the accused persons. He does not remember that the fine is stayed by Hon'ble High Court. After the incident of 21.12.2004 he gave an application to the Senior Superintendent of Police on which an order was passed but the police did not take any action. He went to the SSP, Jhansi and he had got his medical examination done. He first got his medical examination done and then came to the SSP. His medical examination was done in the civil hospital at about 12:00-1:00 pm. He had given his medical examination report along with the application to the SSP. Order was passed on the same when he met the SSP. There is no medical examination report enclosed with the said application. He then went to the DIG, Jhansi at about 12:00 pm and gave an application to him. After orders of the DIG, he went at Police Station Gursarai next day with the order of DIG. Narendra Pal Singh also went with him. He went to the SSP/DIG with Narendra Pal. Both had given different applications for their cases. He did not go to the police station for lodging his report with Narendra Pal. He had signed at police station. The Investigating Officer came on the next day and interrogated him. Temple is situated about ½ kilometre from his house. He went to the temple walking. He stayed at the temple for 10-15 minutes. Many people came there after the incident wherein Narendra Pal Singh also came and even Hari Shankar came there. He does not know that the complaint against the accused persons about their arms was done by Dr. A.K. Singh. He is a professor in Jhansi. There is a tap and hand-pump near the temple. In his statement he had stated that he got his medical examination done in Civil Hospital, Jhansi but he did not remember the date. He had got his medical examination done on the same day when he gave application to the SSP. The Investigating Officer had got his medical examination done, if the said fact is not mentioned, he cannot tell the reason about it. After 15 days of the incident, the accused did not come. He told the Investigating Officer of his application given to the SSP/DIG. People come for taking bath at the hand-pump. He cannot tell the names who were taking bath. He denies the suggestion that he did not come to the temple on 15.06.2007. He further denies that the accused persons did not abuse him. He further denies that the accused persons did not plough the government pond in village Asta. He denies that the accused persons did not raise an illegal demand of Rs. 20,000/-. He denies that the accused Sanjay Singh did not assault. He further denies that the incident is of 20.12.2004. He states that it is incorrect that on 15.06.2007 the accused persons did not assault. He denies that on 20.12.2004 he and his son Hari Shankar were not assaulted by the accused persons. He further denies that regarding the incident of 20.12.2004 he did not give any application to the SSP/DIG and he gave the application and the incident was found to be false and due to the said reason, the police did not register the case. He denies that paper No. 46-B was given in court by him. He states that he does not know that the said application was rejected. He further denies that paper No. 44-B was given on the direction of Dr. A.K. Singh. He denies that he had not given any statement before the Investigating Officer and the paper No. 10-A was prepared on his direction. He states that it is incorrect that he has enmity with accused Shivram as his son Pushpendra Richhariya is the scribe in a case under Section 364 IPC and due to the said enmity, he has lodged the present false case. He further states that it is incorrect that due to party bandi on account of election of village pradhani, the present case has been lodged falsely against the accused persons. He further denies that it is incorrect that he has not lodged the present FIR against the accused persons and has given false testimony in the said matter.
15. PW-2 Hari Shankar Richhariya is the son of PW-1/Narayan Das Richhariya. He states that on 15.06.2007 at about 06:00-06:30 am at the time of the present incident of the case he had gone to Asta Ji Temple on Asta Link Road for Darshan along with Narayan Das Richhariya. When he reached the temple, his father was coming out from it, he heard the noise of his father where some persons abused him. He immediately went to him and saw the accused Sanjay Singh, Shivram Singh, Kavindra Singh and Deepu Singh abusing his father and they stated that in the complaint regarding ploughing the pond and arms given against them they had spent Rs. 20,000/- and if in 15 days he does not give the said money they would murder him. He states that prior to the present incident, the accused persons had assaulted his father. Shivram Singh was having a pistol, Sanjay Singh was having a rifle, Kavindra Singh was having a DBBL and Deepu was having a country made pistol with lathi. They have terror in the village. People of the village do not give testimony against them and do not lodge reports against them. His father had got a case registered which is going on in Garautha. The Investigating Officer had interrogated in his cross examination. He states that he received summons for the court. He is three brothers. The eldest brother is Rajendra, then Pushpendra Richhariya and then he is the third. His father is a teacher in the government school who retired in the year 2001. His elder brother Rajendra gives tuition to the children at the house and the other brother who is a lawyer in District Jhansi. He is a farmer. He does not know about the case which is pending in Garautha. His father had lodged a case against the accused in Gursarai which is pending in the court at Garautha. He is giving statement against the accused for the first time. He does not know that there are criminal cases against his brother Pushpendra Richhariya in Police Station Gursarai. He knows that against his brother Pushpendra Richhariya a case under Section 364, 302 IPC was lodged at Police Station Gursarai by the son of Jugal. He knows that the said application was scribed by Shivram Singh. There are 1-2 cases against him at Police Station Gursarai. He states that it is incorrect that there are five cases registered against him at P.S. Gursarai. 2-3 years back an incident was committed by the accused during winters. There is no licensed weapons in his house. Regarding earlier incident, his father had given an application to the higher authority but the case was not registered. He identifies the writing and signature of his father. He identifies the writing on paper No. 46-B/4 as that of his father. He states that his father used to go to the court often. Regarding the said incident, an application under Section 156(3) Cr.P.C. was given before the court. He states that he does not know that the said application was rejected. His father had made a complaint regarding arms of the accused. After the registration of the case, he had made a complaint regarding the recovery of DBBL and pistol. The complaint is not before him. He does not know as to whom the complaint was done. Only one case is going on against him in Garautha court. The other cases against him have finished. He knows A.K. Singh who lives in his village and is a teacher. He does not know that he has also made a complaint against the accused persons. A.K. Singh is Ashok Kumar Singh. The accused persons had even previously committed an incident with his father as such his father had made a complaint at police station after which he also made a complaint to the SSP, Jhansi but his report was not registered. No case is going on at Garautha court. In previous case, his father received injuries. To a suggestion that in previous case, his father has not received injuries but he has received injuries, he denies it. He does not remember the date and year. He states that around 2-3 years back he did not make any complaint about the said case. He states that it is incorrect that he gave a typed application to the SSP, Jhansi and Police Station Gursarai. He states that it is correct that one application was given by him to the SSP, Jhansi on which the SSP, Jhansi passed an order and it was given by him at the police station. He did not receive any copy from Police Station Gursaria. He does not remember whether he was interrogated in the said matter. His father was a teacher in village Dhanaura. Legs of his father were not burnt in the school but were burnt in the house from lamp. He denies the suggestion that his father was assaulted and his legs were burnt in the school when he was teasing girls. The place of occurrence is at one kilometre from the house. He states that he and his father did not go together for Darshan to the temple on the day of the incident. He did not reach the temple prior to the incident but reached there after it. The incident took place before him. He did not go with his father for treatment. His father did not receive any injury. His father was not medically examined. He further states that it is incorrect that the accused persons do not have terror in the area. He further states that it is incorrect that the accused persons did not demand Rs. 20,000/- from his father. He states that it is incorrect that no case about the incident is going on in the court of Garautha. He further states that it is incorrect that he was not interrogated by the Investigating Officer. He further states that it is incorrect that due to the village party bandi and due to election of village pradhani with Pushpendra Richhariya. He states that it is incorrect that it is a false testimony given by him.
16. Malkhan Singh PW-3 is a resident of the same village as that of the first informant. He states of knowing all the accused who are from his village. He states that around 17 years back he and his son Preetpal Singh were irrigating the fields from canal, the accused persons came at the place of occurrence and they were armed with guns and farsa. They started hurling abuses and told them that first they will irrigate the field and then anyone else will irrigate it. He did not agree to it after which they fired upon his son Preetpal and abused him. The shot hit the hand and waist of Preetpal. The incident was seen by Ravindra and others. He then lodged a report at Police Station Gursarai about it. Due to fear of the accused, he compromised the said matter. Papers regarding the said case is paper No. 12-B/2. The accused persons have terror in the village. No one can raise any voice against them. There are many cases pending against them.
In his cross examination, he states that the incident is of about 17-18 years back. In a case under Section 307 IPC his testimony was recorded around 1-2 years ago. His son was also examined with him. He did not give any application regarding the accused threatening him. He did not give any application to the SSP/DIG regarding the accused threatening him and his son. He has compromised the said matter. The accused persons have been acquitted in it. He has not filed any appeal against the judgment and order of acquittal. At the time of the incident, wheat was sown. He does not know Ashok Kumar Singh of his village. He does not know Ashok Kumar Singh has lodged a report against the accused persons. He does not know that there is a case lodged between the accused and Narayan Das Richhariya. He does not know that there is a case of kidnapping lodged at Police Station Gursarai against Pushpendra Richhariya of his village. He states that it is incorrect to state that in the case against Pushpendra Richhariya, Shivram Singh is the scribe. After the case of Section 307 IPC, the accused persons did not commit any offence against him and his son. He denies the suggestion that he is giving testimony in the present matter on the saying of Ashok Singh, Pushpendra and Narayan Das Richhariya. He further states that it is incorrect that the Investigating Officer did not interrogate him.
17. PW-4 Panna Lal is also a resident of the same village of the first informant. He states that he knows Shripat, Narendra Singh, Shivram Singh and Sanjay Singh of his village. They do farming and are labours. Around 20-21 years back, the accused persons had assaulted his family members with farsa and kulhari. They are upper caste of society. His caste is schedule caste and the accused Shripat is of his caste. He was present at the place of occurrence but did not lodge any report. His family members got a report lodged. He was declared hostile on the request of government counsel.
In his cross examination, he states that village Asta has an abadi of around 500 people. The accused persons live at a distance of ½ kilometre from his house. He does not know about the character of the accused persons since he is living outside since last 20 years. He does not know what the accused do in the evening and in the morning. Around 20-21 years back, the accused had injured his family members with farsa and kulhari. He had got a report lodged on the saying of his family members. He states that in examination-in-chief he stated that he was not present at the time of the incident and had not lodged the report but his family members lodged a report, is correct. FIR No. 15/94 under Section 394 IPC and Section 3(1)(x) SC/ST Act was converted into under Sections 324, 323, 504 IPC and Section 3(1)(x) SC/ST Act in which the injured/informant was Panna Lal and against accused which was not got registered by him. He was called after three days at police station and then the police got his signature on the paper. He does not know from the year 1994 to 2007 how many cases are registered against the accused persons. He states that he does not know that the accused Sanjay, Kavindra and Deepu have a gang or not. He further states that he does not know whether the accused have made a gang and are indulged in criminal activities. He further states that it is incorrect to state that the accused have a gang and they have terror in the area. He states that it is incorrect that due to the terror and fear of the accused, he is not telling correct facts of the court.
Further in his cross examination, he states that he knows Narayan Das Richhariya and Pushpendra Richhariya of his village. Pushpendra Richhariya is a lawyer by profession. He does not know whether there is any case registered against Pushpendra Richhariya. He also does not know about any case being registered against Narayan Das Richhariya. He only knows the fact that Ashok Kumar Singh of his village is a professor in Jhansi by profession but does not know any more. The accused Shivram Singh had retired from Army. He does not know about the elections of village pradhani in his village. He was told about the incident by his father and then lodged the report regarding it. He states that it is incorrect to state that no such incident happened as he is stating with his family members. He further states that it is incorrect that he is giving a false statement. He further states that it is incorrect that he did not sign on the application. He states that he knows good and bad things. He states that he is away from the house since 2003. He lives happily with his family members since 2003 and used to visit his village and to the house of relatives. He although lives away but keeps information about the facilities of the family. He except for his family, is not interested in any other thing in the village and has no concern with any other thing. He lives on rent at the place where he works. Ram Babu is his landlord who also lives in the same house. 5-6 persons live in the house of landlord. There are other students living in the said house. He does not know the name of Principal. He does not know the house of the Principal and other persons working with them, he knows about them. He states that when they get together they talked about others which is a natural talk. In the office also, they talk about the social practicality. He states that it is correct that he takes well being of other villagers when he goes to the village. He has no concern about the village but still he knows something about it by hearing it from others. Except for his incident, he does not know about any other incident committed by the accused.
18. PW-5 Nitendra Bahadur is also a resident of the same village as that of the first informant. He states that he knows the accused. He is also a resident of the same village. On 15.06.2007 at about 06:15 am he was taking bath at hand-pump situated at Asta Link Road where the accused persons came. Sanjay Singh was having a rifle, Shiv Ram Singh with a pistol, Kavindra with DBBL gun and Deepu with a country made pistol and lathi. They threatened Narayan Das and stated that he has made a complaint against them for ploughing land of pond and for guns in which they have spent around Rs. 20,000/-. They stated that if the said money is not returned within 15 days they would murder him. He tried to intervene and stop them on which they stated that he is an old person and he may not interfere in between. Sanjay Singh told Narayan Das that he has assaulted him even before. The dispute is with regards to irrigating land from the water of canal. The accused persons are of bad character. People feel terrified from them. There are cases against them. They are of criminal nature. Tehsildar Garautha had levied a fine of Rs. 50,000/- on Shiv Ram Singh and Sanjay Singh for occupying land of pond. Previously Rs. 50,000/- fine was levied on Sanjay Singh. The accused have terror in the area and village. People have fear from them. They have made a gang and are indulged in criminal activity.
19. Om Prakash PW-6 is the nephew of the first informant. He states that on 15.06.2007 at about 06:15 am Narayan Das were standing near the temple where the accused persons had demanded Rs. 20,000/-. His statement is also the same as that of PW-5/Nitendra Bahadur with regards to the incident. He further states that the accused persons are having terror and no one dares to say anything against them and give any statement against them. They often do controversial acts with people. They have terror in the village and are involved in illegal work.
20. Jai Prakash PW-7 is the Investigating Officer of the matter. He took up the investigation and on 02.07.2007 added Section 2/3 of the Gangsters Act in it. He then sent a warrant under the Gangsters Act to the Court against Shiv Ram Sigh on 06.07.2007. He added the Gangsters Act against Kavindra, Deepu and Sanjay Singh. He prepared the site plan of the case. He concluded the investigation and filed a charge sheet No. 71 of 2007 in court which is paper No. 3-A and Exb: Ka-2 to the records. He identified the handwriting of Sub-Inspector Ram Das who was posted with him and prepared the gang chart and site plan which is Exb: Ka-3 and 4 respectively to the records. He also encloses the sanction given by the SSP, Jhansi on 13.09.2007. He prepared the gang chart and forwarded for its approval. The gang chart was prepared by S.I. Ram Das who was the first Investigating Officer. He states that it is incorrect that the investigation is wrong and false charge sheet has been submitted. He further states that it is correct that there is fear and terror of the accused in the area.
21. Ashok Kumar Singh PW-8 is also a resident of the same village as that of the first informant. He states that on 23.04.2007 at about 04:42 pm he received a phone call on his mobile on which the voice was of Shiv Ram Singh who asked him that he had made a complaint to the police about his weapons and threatened him that if he comes to village he would murder him. He then switched off his phone and gave an information about it at Police Station Gursarai. He also gave the mobile number in his complaint. He states that Shiv Ram Singh, Sanjay Singh, Kavindra Singh @ Manju and Deepu Singh have terror in the village. Due to their fear, no one from the public lodges any report against them. Two and half dozens cases are against them. He files a list of cases and the judgments being list No. 72-B. He states that the accused persons have accumulated a lot of wealth. He states that they stop water of the canal and then sell it to common people.
In his cross examination he states that he is an Assistant Professor in degree college since last 20 years. He states that he does not know that in a case of dacoity against accused Shiv Ram, Narayan Das is a witness and his statement has been recorded. He states that Narayan Das had seen the incident and had then given his testimony. He states that the accused persons are criminals and involved in anti-social activities. He had made a complaint against Shiv Ram in the year 2006 and even later on regarding his guns. Three cases were lodged against Shiv Ram Singh. He states that he had heard in the village that a complaint was made regarding guns and illegal license against the accused.
22. Jagram Singh PW-9 is also a resident of the same village. He gives a hearsay version of the incident of the present matter which was told to him by Nitendra Bahadur Singh/PW-5, Om Prakash/PW-6 and Hari Shankar/PW-2. He is not a witness of the incident. He states that the accused have a gang and all are history sheeters. He states that there is a case going on against the accused for keeping illegal arms. There is a case going on against them for ploughing government land in which fine of Rs. 50,000/- was levied on them. They have terror and fear in the area due to which no one gives evidence against them.
In his cross examination he states that he has no previous enmity with the accused. They live in the same village. His father Sultan Singh was a village pradhan for 19 years. He had contested the elections of village pradhan in the year 2005 against accused Shiv Ram. He won the elections from Shiv Ram by 32 votes and became village pradhan.
23. Police Constable Ram Jeevan PW-10 was posted as Constable Clerk at Police Station Gursarai on 01.07.2007. He transcribed the chik FIR on the basis of a typed application given against the accused persons by Narayan Das Richhariya. He transcribed the GD corresponding to the same. The Chik FIR and the GD have been proved by him.
24. The accused in their defence filed certain documents with a list numbered as paper No. 109-B and the documents in it numbered as paper No. 109-B/1 to 129-B/14. The trial court finding the case to be beyond reasonable doubt convicted the accused-appellants as stated above vide its judgment and order dated 30.08.2019. The appeals have been thus filed challenging the said order and a revision has been filed for enhancement of sentence as awarded to them.
25. Heard Sri Ashwini Kumar Ojha learned counsel for the convicted accused-appellants, Sri Anurag Sharma learned counsel for the first informant and Sri Ajay Singh learned AGA-I for the State of U.P. in the appeals and Sri Anurag Sharma, learned counsel for the revisionist, Sri Ashwini Kumar Ojha, learned counsel for the accused-respondent Nos. 2 to 5 and Sri Ajay Singh learned AGA-I for the State of U.P./respondent No.1 and perused the records of the present matters and also the trial court records.
26. Learned counsel for the appellants submitted that the appellants have been falsely implicated in the present case. It is submitted that there is an enmity between Shiv Ram Singh and Narayan Das Richhariya which is duly proved, all the witnesses are related and interested persons, the enmity is due to the election of village pradhani. It is further argued that the appellant-Shiv Ram Singh is shown to be involved in five criminal cases but in the first two cases he has been acquitted by the trial courts concerned, the third case has been closed after investigation, the fourth case is a Non Cognizable Report and the fifth case is the present case, the appellant-Sanjay Singh is shown to be involved in four cases in which in the first two cases he has been acquitted by the trial court, the third case has been closed after investigation and the fourth case is the present case and further the accused Kavindra Singh and Deepu Singh are shown to be involved in two criminal cases in which the first case has been closed after investigation and the second case is the present case. It is submitted that addition of the Gangsters Act in the present case was during investigation. It is submitted that the basis on which the Gangsters Act was added in the present case is not available now and as such the accused are entitled to benefit of the same. It is submitted that as such the implication in the Gangsters Act is illegal and the accused-appellants deserve to be acquitted under the Gangsters Act.
27. Learned counsel for the appellants has relied upon the judgment of the Apex Court in the case of Farhana Vs. State of Uttar Pradesh : SLP (Criminal) No. 437 of 2023 decided on 19th February 2024 and has submitted that since the very foundation of the cases in the gang chart, have resulted in acquittal of the appellants, the appellants deserve to be acquitted under the Gangsters Act. It is further submitted that in so far as the evidence adduced by the prosecution against the appellants is concerned, PW-4/Panna Lal is also resident of the same village as that of PW-1 has not supported the prosecution case and has been declared hostile. It is submitted that as such the prosecution case also becomes untrustworthy. It is submitted that looking to the same, the appellants deserve to be acquitted.
28. Per contra, learned counsel for the State and learned counsel for the first informant submitted that the evidence with regards to the present incident is proved beyond reasonable doubt. It is submitted that merely one witness turning hostile is not sufficient to discard the entire prosecution case. It is further submitted that in so far as the proceedings under the Gangsters Act are concerned, the same were duly approved by the concerned officers. Learned counsels did not dispute the fact that in the cases shown in the gang chart in two cases, the appellants have been acquitted, one case has ended in its closure after investigation, the other case is a Non Cognizable Report against the appellant-Shiv Ram Singh and the 5th is the present case. It is submitted that the judgment of the trial court is meticulous and considering every aspect of the matter. It is further submitted that the appellant-Shiv Ram Singh is reported to be involved in 37 criminal cases, the appellant-Sanjay Singh is reported to be involved in 34 criminal cases and as such it cannot be said that they are persons of clean and clear antecedents. It is submitted that the prosecution has proved its case beyond reasonable doubt and the judgment and order of conviction does not deserve to be interfered.
29. Learned counsel for the informant-Narayan Das Richhariya the revisionist in the connected criminal revision submitted that the sentence awarded to the accused is inadequate inasmuch as since the prosecution has proved its case beyond reasonable doubt, the trial court should not have awarded a lesser sentence to the accused. It is submitted that there is sufficient evidence against the accused for awarding of the maximum sentence. It is submitted that as such the revision be allowed and the sentence awarded to the accused be extended upto the maximum extent.
30. After having heard learned counsels for the parties and perusing the records, it is evident that a First Information Report was lodged on 15.06.2007 by Narayan Das Richhariya under Sections 387, 506 IPC against the accused-appellants. During investigation, the police found that the accused were having a gang and were acting as members of gang and thus the SHO concerned prepared a gang chart dated 06.07.2007 and forwarded it for approval. The same was approved by the officers concerned which was subsequently approved on 13.07.2007 by the District Magistrate concerned. The gang chart shows that the accused-Shiv Ram Singh is involved in five cases including the present case, accused-Sanjay Singh is involved in four cases including the present case and the accused Kavindra and Deepu Singh are involved in two cases including the present case. The gang chart is Exb: Ka-3 to the records which has been proved by PW-7.
31. The trial court convicted and sentenced the accused-appellants under Section 2/3 of the Gangsters Act also. It is not disputed either by learned counsel for the complainant and learned counsel for the State that amongst five cases shown against Shiv Ram Singh, he has been acquitted in two cases, one case has been closed, one case is an NCR and the last case is the present case. In so far as the accused-Sanjay Singh is concerned, in two cases he has been acquitted, one case has been closed and the last case is the present case. In so far as the remaining two accused persons are concerned, amongst two cases shown against them, one case has been closed and the other case is the present case, thus the very basis of the addition and implication of Gangsters Act against them is knocked out. The accused are entitled to be given benefit with regards to their conviction and sentence under the provision of Gangsters Act in view of the the judgment of the Apex Court in the case of Farhana (supra).
32. In so far as the incident of the present case is concerned, the prosecution evidence against the appellants is clinching. Minor contradictions and variations amongst the version given by the witnesses cannot be the ground for recording an acquittal against them and holding the entire prosecution case to be false. Merely one witness not supporting the prosecution case and turning hostile also cannot be a ground to reject the testimony of the other witnesses of the prosecution. The judgment and order of the trial court is a well considered judgment and order which is based on the proper and correct reading of the evidence.
33. In so far as the conviction of the appellants under Section 2/3 of the Gangsters Act is concerned, the same is hereby set aside. The conviction and sentence of the appellants under the other sections is hereby upheld. The appellants are acquitted of the charges levelled against them under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
34. The appellant-Shiv Ram Singh is in jail. The appellants shall be taken into custody to serve remaining sentence as awarded by the trial court.
35. In so far as the criminal revision is concerned, this Court does not find any good ground to interfere in the same. The sentences as awarded by the trial court are just and proper. The revision is thus devoid of any merit and is dismissed.
Order Date :- 27.05.2024 M. ARIF (Samit Gopal, J.)