Allahabad High Court
Gambhir Singh vs State Of U.P. And Others on 10 September, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No.2024:AHC:147080-DB Reserved on 12.08.2024 Delivered on 10.09.2024 Reserved Case :- Criminal Misc. Application U/s 372 Cr.P.C. (Leave to Appeal) No.112 of 2013 Applicant :- Gambhir Singh Opposite Party :- State of U.P. and others Counsel for Applicant :- Bhuvnesh Kumar Singh Counsel for Opposite Party :- Govt. Advocate connected with Case :- Government Appeal No.2916 of 2013 Appellant :- State of U.P. Respondent :- Lokendra and 3 others Counsel for Appellant :- G.A. Counsel for Respondents :- Saurabh Yadav Hon'ble Siddharth, J.
Hon'ble Brij Raj Singh, J.
( Delivered by Brij Raj Singh, J.)
1. Heard Sri Bhuvnesh Kumar Singh, learned counsel for the appellant, Sri Prem Shankar Prasad, learned AGA and Sri Saurabh Yadav, learned counsel for the respondents and the evidence on record.
2. Criminal Misc. Application U/s 372 Cr.P.C. (Leave to Appeal) No.112 of 2013 has been filed by the complainant against the judgement and order dated 16.02.2013 passed by the learned Additional Sessions Judge, Court No.3, Bijnor in Sessions Trial No.475 of 2011, arising out of Case Crime No.395A of 2010, State Vs. Lokendra and others, thereby the trial court had acquitted respondent nos.2 to 4, namely, Sukhvir, Kamal Singh and Virendra of the offences under Sections 302/34, 323/34 and 504 IPC.
3. Government Appeal No.2916 of 2013 has been filed by the State of Uttar Pradesh against the judgement and order dated 16.02.2013 passed by the learned Additional Sessions Judge, Court No.3, Bijnor in Sessions Trial No.475 of 2011, arising out of Case Crime No.395A of 2010, State Vs. Lokendra and others, thereby the trial court had acquitted respondent nos.2 to 4, namely, Sukhvir, Kamal Singh and Virendra of the offences under Sections 302/34, 323/34 and 504 IPC and respondent no.1, Lokendra under Sections 323/34 and 504 IPC.
4. As per the prosecution case, Gambhir Singh, brother of the deceased, lodged report by giving written Tehrir in Police Station mentioning therein that on 17.07.2010 at 5.30 PM he and his brother Mukendra were coming to their village and when they reached to the Village Saidpur, Sukhvir S/o Sri Ram, Kamal Singh S/o Pritam Singh, Lokendra S/o Kamal Singh and Virendra S/o Ram Kunwar were standing on the path and as soon as they reached to their house, they started abusing them, on which Mukendra, brother of the complainant, asked them not to use abusive language. The accused started beating the complainant and his brother and accused Sukhvir and Kamal caught hold of his brother Mukendra and Lokendra fired at his brother by country-made pistol, on which Mukendra received fire arm injury in his abdomen. Virendra had beaten the complainant. After hearing the sound of fire, family members Mast Ram, Satish and others reached to the place of occurrence and saved them. They had taken the injured Mukendra to the District Hospital, Bijnor, where the doctor examined him and referred him for medical treatment at Meerut. Injured Mukendra was admitted in Divya Jyoti Hospital, Meerut and after admitting him, the report was lodged on 18.07.2010 at 12.20 PM at Case Crime No.395-A of 2010, under Sections 307, 323 and 504 IPC. Chik FIR No.266 of 2011 was entered in the General Diary and the investigation was handed over to Sub-Inspector Deshpal Singh. The injured Mukendra was medically examined in Divya Jyoti Hospital, Meerut on 17.07.2010 and the following injuries were found on his body:-
1. "1. Entry wound about 2-1/2 cm x 1-1/2 cm below the right subcostal margin tatooing, charing present.
2. 2. Exit wound below the left subcostal margin (below the tip of 12th rib) about 3 cm x 2 cm, small bowels protruding out, mild charing present all around, bleeding coming out.
3. Advised X-Ray of abdomen."
5. In the opinion of doctor, injury was dangerous. According to supplementary report of injured, doctor gave a finding that post wall of stomach injured; jejunal injury about 2" from DJ; transverse colon injured; descending colon injured; Jejunal segment is about 8"-10" injured with mesenteum injury; the stomach, Tr colon discending colon injury repaired; the jejunal injury repaired. The shattered jejunal segment resected with end to end amastomosis done. Two drains placed in right lesser sac in left pelvis. Wound closed.
6. The injured was operated in Divya Jyoti Hospital, Meerut and thereafter he was admitted in Artemis Health Institute, Gurgaon. The injured developed intra abdominal collection, for which peritoneal lavage was done and he was kept in Intensive Care Unit because of sepsis and high grade fever. Thereafter, the injured was admitted in Sir Ganga Ram Hospital, New Delhi on 03.09.2010, where CT angio was conducted on 19.08.2010 and he underwent laparotomy, lavage, adehesiolysis and bouble bowel ileortomy. The injured was also examined by way of Ultrasound. His condition deteriorated and thereafter he was suffered from cardio respiratory arrest on 16.09.2010 at 1.50 PM and in spite of all best medical treatment, he was declared dead on the same day at 2.20 PM.
7. The inquest of the deceased Mukendra was conducted in Sir Ganga Ram Hospital, New Delhi by Sub-Inspector Ranbir Singh on 16.09.2010 and the post-mortem of the deceased was conducted on the same day at 12.30 PM in Lok Nayak Hospital, New Delhi, which was identified by the complainant, Gambhir Singh and Sanjiv Kumar. According to the post-mortem report of the deceased, the following general and external examination was found:-
"According to post-mortem report- in external appearance, dead body was found 165 cm in height, 52 kg in weight, average built, eyes closed, swelling present, yellowish discharge coming out rom nose and mouth, surgical bondages present over the lower chest wall and abdominal wall present. No sign of decomposition. General examination:-
On removing the surgical bondages an exploratory luparotomy wound measuring 43 cm in length with intact stitches present in the midline. The wound is infected with yellowish pus and inducated margins The lower part of the wound shows gaping with loops of intestine exposed. Surrounding shin blacking and crepitatious felt. Swelling and occpitation present over the chest and abdominal walls. Surgical drainage tube present over the left lower abdomen. Chest tube drainage present in the 5th inteustal space on the left side.
External Examination:-
1. An open infected wound measuring 3 cm x 2 cm x abdominal cavity deep present over the right lower outer abdomen 29 cm below right nipple and 16 cm lateral to the midline. A part of bowel loop is found to be exterionised through the wound surgically The margin of the wound are irregular The edge is heaped up Swollen and protruded due to issue edema. The base of the wound is found by lumps of intestine which show fibrous deposits and yellowish grey exudates.
2. An open infected wound measuring 8 cm x 6 cm x cavity deep is present over the left lower abdomen 2 cm below the left nipple, 17 cm lateral to midline The margin of the wound is irregular with showing and demdation of shin and tissues. There is unhealthy gramlation tissue with fibrous deposits and yellow grey exudates at the wound edge. Blueuish discoloration with crepitation present over the surrounding skin.
In the opinion of the doctor, the cause of death was shock due to peritoritis and septicemia as a result of gunshot injury in the abdomen."
8. After the death of the deceased, the Investigating Officer had altered the charge from Section 307 IPC to Section 302 IPC. After recording the statements of the witnesses; making recovery of country-made pistol; conducting the investigation and on the basis of the evidence collected, firstly chare-sheet was filed by the Investigating Officer against accused Lokendra and thereafter against accused Kamal, Virendra and Sukhvir under Sections 302, 323 and 504 IPC. The investigating Officer also investigated the case under Section 25 Arms Act against accused Lokendra and filed charge-sheet against him under the aforesaid section in Session Trial No.476 of 2011.
9. The learned Magistrate committed the case to the court of sessions and thereafter charges were framed in the aforesaid sections. The accused denied the charges and pleaded for trial. Since both the session trials relate to one and the same incident, they were consolidated together treating Session Trial No.475 of 2011 as leading case and all evidences have been recorded in the aforesaid session trial.
10. The prosecution to prove its case, produced the following eleven witnesses:-
P.W.-1 Gambhir Singh P.W.-2 Satish Kumar P.W.-3 S.I. Ranvir Singh P.W.-4 Dr. Rajiv Singh P.W.-5 S.I. D.R. Meena P.W.-6 S.H.O. Dhanpal Singh P.W.-7 S.I. Uma Shankar P.W.-8 Dr. Shriniwas P.W.-9 S.I. Deshpal Singh P.W.-10 S.I. Krishanpal Singh P.W.-11 Constable Ravinder Singh
11. 23 Exhibits were also produced by the prosecution to proved its case.
12. The accused-appellant was confronted under Section 313 Cr.P.C. He denied the charges and pleaded before the court that he was falsely implicated in the case due to enmity.
13. P.W.-1, Gambhir Singh deposed before the court that the accused were known to him and he narrated the same facts in examination-in-chief as has been narrated in the FIR. In cross-examination, he proved the written report (Ext.Ka-1) and thereafter he deposed that he reached to Meerut to see his brother, from where he took his brother to Artemis Hospital, Gurgaon and thereafter he was admitted in Sri Ganga Ram Hospital, New Delhi on 16.09.2010, where he died. He further deposed that on his application to the Superintendent of Police, Bijnor, necessary order was passed to convert the case under Section 302 IPC. He assigned the motive before the court that accused Kamal had taken Rs.30,000/- from Sovendra as loan and his brother Mukendra was the mediator of the said transaction. Sovendra died after two days and Mukendra asked accused Kamal to return the money, which was refused by him and he threatened to kill him.
14. In cross-examination, the complainant deposed that Bhupendra was nephew of the accused Sukhvir. His father Shiv Charan, Teekam Singh and Shyam Singh were real brothers and Virendra was the son of Teekam. He also deposed that he had no knowledge that whether Bhupendra was kidnapped by Virendra or whether there was a case registered against him. After sustaining injuries, Mukendra firstly was taken to the Bijnor Hospital by him, where doctor attended him, but no paper was available on record in this regard. He further deposed that he took his brother Mukendra on the same day to Meerut, but medical examination of injured was not conducted in any Government Hospital at Meerut. On the next day, he took the injured to Artemis Hospital, Gurgaon where injured remained admitted upto 03.09.2010 and thereafter he admitted the injured Mukendra in Sir Ganga Ram Hospital, New Delhi. He further deposed that it is wrong to say that they were negligent in the treatment of the injured. He further deposed that proceedings under Section 107/116 Cr.P.C. were going on between the parties, but he had no knowledge as to who made complaint for the aforesaid proceedings. There was no written agreement regarding loan of Rs.30,000/- and no complaint was lodged to that effect. Pavitra, wife of Sovendra was pressuring his brother Mukendra to get the money returned from accused Kamal. They were annoyed with Kamal because he dd not return the money. However, the factum regarding loan has been narrated for the first time before the trial court.
15. In cross-examination, the complainant further deposed that he took the injured to Meerut and thereafter him to Artemis Hospital, Gurgaon and during this period, he remained with the inured and did not inform the police in Meerut. Witnesses Satish and Mast Ram are belonging to his family. He denied the suggestion that he was not present with the injured and had not seen any incident. He did not remember whether the place of incident was reiterated by him in the written Tehrir or not. He further deposed that the incident of firing did not occur in front of the gate of the house or boundary wall of the accused, but marpeet was started there. Accused were standing on the gate of their boundary wall and as soon as they reached there, marpeet and abuse started by the accused. He was not beaten by all the four accused, rather was beaten by one accused.
16. P.W.-2 Satish Kumar was examined before the court and he deposed that on 17.07.2010, the accused were abusing Mukendra and Gambhir Singh for the loan of Rs.30,000/- which was taken by accused Kamal from Sovendra and the same was not returned by accused Kamal. When Mukendra and Gambhir Singh objected the accused persons, marpeet was started by them. The complainant and the deceased tried to run away. However, Sukhvir and Kamal caught hold of Mukendra and Lokendra fired at Mukendra by country-made pistol, which hit his abdomen. After receiving injury, Mukendra fell down on the ground. He further deposed that the incident took place at 5.30 PM in front of his house near Transformer. After hearing sound of fire, Mast Ram, Kripal and others came to the spot. Thereafter, injured Mukendra was brought to Bijnor Hospital, from where he was referred to Meerut. Thereafter, the injured was taken to Gurgaon and New Delhi and during treatment, he succumbed to injuries. He deposed that he had witnessed the incident.
17. In cross-examination, P.W.-2 Satish Kumar deposed that his grandfather Dhyan Singh, Teekam and Shiv Charan were real brothers and the complainant is the son of Shiv Charan and the deceased Mukendra is the brother of the complainant. Virendra is son of Teekam and witness Mast Ram is the son of uncle Dharamvir. He had also no knowledge to the fact that Sukhvir's nephew Bhupendra was kidnapped and report was lodged against Virendra and in that case Sukhvir was doing Pairvi. His statement was recorded by the Investigating Officer after 20-22 days.
18. P.W.-2 Satish Kumar further deposed before the court that two persons fired and one person committed marpeet and except Virendra, other three persons committed no marpeet. The firing was done where accused persons surrounded Mukendra and Gambhir Singh. Virendra committed marpeet with Gambhir Singh. After firing, blood was coming out, but blood was not present on his hand and cloth. He did not see any injury on the body of Gambhir Singh. The altercation took place between both paries on the motive of Rs.30,000/-. However, this transaction was not done in his presence, but he was heard about this fact. On 17.07.2010 at 10.30 PM, accused Kamal lodged the cross case against him, his brother Mast Ram, Mukendra and Jagdish. He had no knowledge whether Premwati is the wife of accused Kamal Singh. he did not see any injury on person of Premwati and Kamal. He did not know that any bone of Kamal was fractured. Injured Mukendra was admitted in Artemis Hospital, Gurgaon, but he did not accompany him there.
19. P.Ws.-3 to 11 are formal witnesses.
20. The trial court after examining the witnesses and adducing the evidence on record, acquitted the respondents as mentioned above. Hence, these two appeals have been filed.
21. Sri Bhuvnesh Kumar Singh, learned counsel for the complainant has submitted that the prosecution case is established beyond reasonable doubt as the P.W.-1 Gambhir Singh and P.W.-2, Satish Kumar are consistent in their statements before the trial court. They have deposed that due to money transaction, the accused were annoyed with the deceased and on the date of incident, the accused-appellant intercepted the complainant and the deceased while there were coming to their house and fired at the deceased with intention to kill him. Therefore, there is strong motive to commit the crime as accused Kamal did not want to return the money borrowed from Sovendra, who died after few days and the wife of Sovendra was pressuring the deceased Mukendra, who was mediator of the said money transaction, to get the money returned. He has further submitted that the post-mortem report is corroborating with the prosecution case as narrated by P.Ws.1 and 2 and 3 before the trial court. The deceased sustained fire arm injury, due to which he died and the cause of death was shock due to peritonitis and septicemia as a result of gun shot injury in the abdomen. P.W.-1, Gambhir Singh and P.W.-2 Satish Kumar, who are ocular witnesses, have fully supported the prosecution case.
22. Learned counsel for the complainant has further argued that from the statements of P.Ws.1 and 2, who are ocular witnesses, and from the version of the FIR, it is amply clear that accused Sukhvir and Kamal Singh caught hold of the deceased and accused Virendra was beating the complainant. The fact witnesses have also deposed before the trial court regarding use of abusive language and exhortation made by the accused Virendra, Kamla Singh and Sukhvir, though in not clear terms, and on their exhortation, accused Lokendra fired at the deceased with country-made pistol from close range, which resulted into the death of the deceased. Apart from it, accused Kamal had registered a cross case against the deceased and others, so his presence at the place of occurrence is well established. He has, therefore, submitted that common intention, premeditation and meeting of mind of all the accused to commit the crime, is fully established from the evidence adduced on record; thus the presence of the accused Virendra, Kamal Singh and Sukhvir at the pace of occurrence cannot be doubted in any manner.
23. Learned counsel for the complainant has also argued that though the exact words of exhortation were not mentioned in the FIR, but P.Ws.1 and 2 in their examination-in-chief has deposed the words used by accused Sukhvir, Kamal and Virendra exhorting the accused Lokendra and on their exhortation, accused Lokendra fired at the deceased with intention to kill him and due to the fire arm injuries sustained, the deceased died. This fact has also been stated by the deceased in his dying declaration.
24. Learned counsel for the complainant has also argued that both Dr. Rajiv Singh (P.W.-4) and Dr. Shriniwas (P.W.-8) deposed before the trial court that injuries were caused by fire arm. So far timing of the incident is concerned, Dr. Rajiv Singh deposed that the injuries were not 2-3 hours old. Doctors opinion cannot be conclusive evidence while analysing the prosecution case on the given facts and circumstances of the case. It is settled principle that in case there is conflict between the medical evidence and ocular testimony, normally the ocular testimony should not be disbelieved unless the entire case is highly doubtful. In the present case, P.Ws.-1 and 2, who are ocular witnesses, have fully supported the prosecution case and deposed that accused Lokendra fired at the deceased by using country-mad pistol. The nature of injury is corresponding with the prosecution case. Therefore, it cannot be said that the injuries were not caused by fire arm and the occurrence of the incident, as alleged in the FIR, is doubtful.
25. Learned counsel for the complainant has also argued that the trial court had acquitted the accused persons on the ground of some technicalities viz. contradiction in the statements of P.Ws.1 and 2, lapse committed by the Investigating Officer etc. He has submitted that from the over all facts and the evidence on record, it can be said that the prosecution case cannot be demolished on account of any shortcomings in the investigation and omissions of any material facts and evidence by the Investigating Officer during the course of investigation if the prosecution case is proved otherwise. It is settled law that a defective investigation cannot be fatal to prosecution case if ocular testimony is found cogent and credible. If any mistake committed by the Investigating Officer during the course of investigation i.e. seizing of blood, blood stained earth, clothes from the spot and omission of material facts in the site plan, that will not lead to demolish the prosecution case if the same is proved by cogent and credible evidence of the eye witnesses and the fact witnesses. He has, therefore, submitted that the trial court has erred in acquitting the accused-respondents, hence the impugned judgement and order is liable to be set aside.
26. In support of his contention, learned counsel for the complainant has relied upon the following case:-
Amar Singh Vs. Balvender Singh, (2003) 2 SCC 518; Ram Bihari Yadav Vs. State of Bihar, (1998) 4 SCC 517; Paras Yadav and others Vs. State of Bihar, (1999) 2 SCC 126; Karnel Singh Vs. State of M.P., (1995) 5 SCC 518; and Dhanaj Singh alias Shera Vs. State of Punjab, (2004) 3 SCC 654.
27. Learned AGA while adopting the arguments advanced by the learned counsel for the complainant has submitted that all the three accused were present with accused-Lokendra at the place of occurrence having common intention to kill the deceased, which is evident from the statements of P.Ws.1 and 2 and the version of the FIR. Therefore, the findings recorded by the trial court in acquitting the accused-respondents are perverse and the leave to appeal deserves to be granted.
28. The appeal filed by the accused-Lokendra against his conviction is connected with these appeals, therefore, the lower court has been summoned and the same has been perused by us while deciding the present appeals.
29. Since these appeals have been filed against the acquittal of respondents, we have to see the reasoning recorded by the trial court, whether the trial court was justified in acquitting the accused-respondents or not.
30. The accused-respondents have been acquitted by the trial court on the ground that there is no premeditation to commit the crime by the respondents and the ingredients of Section 34 IPC are not meted out in the present case after going through the record.
31. So far the common intention as envisaged under Section 34 IPC is concerned, we see that Virendra, Kamal and Sukhvir were present with accused Lokendra, which has been mentioned in the FIR and as per version of the FIR, marpeet has been done by all the three accused by using abusive language. In the FIR, it is stated that accused Sukhvir and Kamal caught hold of Mukendra and accused Virendra was committed marpeet with the complainant Gambhir Singh.
32. After going through the record, we find that S.I. Deshpal Singh, Investigating Officer, recorded the statement under Section 161 Cr.P.C. on 19.08.2010. In the dying declaration, the deceased stated that all the three accused abused him and marpeet was committed by them. Accused Virendra made exhortation to accused-Lokendra and on his exhortation, accused Lokendra fired at him by country-made pistol with common intention to kill him.
33. So far use of abusive language is concerned, we do not find any word mentioned in the FIR. In the written Tehrir (Ext.ka-1), it is mentioned that on objection of Mukendra, all the accused persons committed marpeet with complainant Gambhir Singh and Mukendra. In cross-examination, P.W.-1 Gambhir Singh deposed that all accused persons committed marpeet with him. Again he said that one accused committed marpeet with him and when they tried to run away from the spot, two accused committed marpeet with him and his brother Mukendra. He further stated that two accused had taken away his brother Mekendra to other place of occurrence committing marpeet with him. Thus, he mentioned that at two places marpeet was done. On the other hand, P.W.-2 Satish Kumar deposed that all the accused committed marpeet with Mukendra and Gambhir Singh and again in cross-examination he said that except accused Virendra, other three accused did not commit any marpeet. He further deposed in Paragraph-5 of the cross-examination that the incident took place at only one place where Mukendra was caught hold, whereas P.W.-1 Gambhir Singh deposed that he was not medically examined and Satish Kumar also deposed that he did not see any injury on the body of Gambhir Singh, complainant.
34. One glaring fact has come on record that all the persons are said to have committed crime with preplan, but only accused-Lokendra was armed with country-made pistol and the other three accused were not armed with any weapon. Once there is common intention is to be established, then prosecution has to prove that all the three accused were having preplan with common intention to commit crime. There is also no medical report of the complainant on record to show that he had received injuries during the course of alleged marpeet. The gun shot injuries were caused to the deceased Mukendra, but no injury is caused to other persons.
35. Deceased Mukendra was caught hold by accused Kamal and Sukhvir and there is no injury on the part of the body of any accused as no medical report is available on record. This fact cast doubt on the prosecution case regarding the presence of the accused-respondents.
36. So far the exhortation by other accused is concerned, there is no word pertaining to exhortation mentioned in the report while Tehrir was given in the police station. P.Ws.1 and 2 deposed in examination-in-chief that all the three accused Sukhvir, Kamal and Virendra exhorted accused-appellant Lokendra to commit crime and on their exhortation, accused-appellant Lokendra fired at Mukendra, but they did not state the fact of exhortation when they were examined by the Investigating Officer under Section 161 Cr.P.C., rather they developed the story of exhortation first time during trial when they were examined by the trial court. P.W.-1 Gambhir Singh deposed in paragraph-2 at Page 2 that all the three accused persons made exhortation to accused-appellant Lokendra to kill the deceased, whereas P.W.-2 Satish Kumar deposed that except Virendra, all other accused made exhortation to accused-appellant Lokendra; thus there is contradiction in the statements of P.Ws.1 and 2.
37. It is settled law that if two views are possible, then the benefit of doubt certainly goes in favour of the accused and we do not any infirmity in the finding recorded by the trial court while passing the order of acquittal as the same is based on evidence on record. Therefore, no interference is required in it.
38. Accordingly, Criminal Misc. Application No.112 of 2023 filed under Section 372 Cr.P.C. by the complainant is rejected and consequently the appeal is also dismissed..
39. Since the Criminal Misc. Application filed by the complainant under Section 372 Cr.P.C. against acquittal is rejected, leave to appeal filed by the State is refused. Consequently Government Appeal No.2916 of 2013 is also dismissed.
.
(Brij Raj Singh, J.) (Siddharth, J.) Order Date :- 10th September, 2024 Rao/-