Reserved on 11.10.2018 Delivered on 29.10.2018
Court No. 47
Case :- CRIMINAL APPEAL No. - 2885 of 2009 Appellant :- Bhagmal Tyagi Respondent :- State of U.P.
Counsel for Appellant :- Amit Mishra, Viresh Mishra, Neeraj Dubey, Onkar Srivastava, Rajendra Prasad Dubey, Rajesh Kumar Sharma, V.P. Srivastava Counsel for Respondent :- Govt. Advocate, A.K.Singh,Vivek Kumar Singh Connected with Case :- GOVERNMENT APPEAL No. - 7487 of 2009 Appellant :- State of U.P.
Respondent :- Bhagmal Tyagi And Others Counsel for Appellant :- Govt. Advocate Counsel for Respondent :- Rajesh Kumar Sharma, Abhas Sharma
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Chandra Tripathi,J.
[Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Sri V.P. Srivastava, Senior Advocate, assisted by Sri Rajesh Kumar Sharma and Sri Abhas Sharma, for Bhagmal Tyagi and others, Sri Rajesh Kumar Mishra, Brief Holder, for State of U.P. and Sri Vivek Kumar Singh, for the informant.
2. Bhagmal Tyagi (the appellant) has filed Criminal Appeal No. 2885 of 2009, from his conviction and sentence passed by Session's Judge, Ghaziabad, dated 04.04.2009/06.04.2009, in S.T. No. 780 of 2006 [arising out of Case Crime No. 588 of 2005, under Section 302, 120-B, 504, 506 and 34 Indian Penal Code, 1860 (hereinafter referred to as the IPC) P.S. Kavinagar, district Ghaziabad] and S.T. No. 781 of 2006 (arising out of Case Crime No. 617 of 2005, under Section 25 of Arms Act, 1959, P.S. Kavinagar, district Ghaziabad), convicting Bhagmal Tyagi under Section 302, 504, 506 IPC and Section 25 of Arms Act, 1959 and awarding sentence of (i) imprisonment for life with fine of Rs. 5/- lakhs under Section 302 IPC, (ii) Two years rigorous imprisonment with fine of Rs. 5000/- under Section 504 IPC, (iii) Two years rigorous imprisonment with fine of Rs. 10000/- under Section 506 IPC and (iv) Three years rigorous imprisonment with fine of Rs. 10,000/- under Section 25 Arms Act, 1959. All the sentences were directed to run concurrently. Fines were directed to be realized from the person or the property of Bhagmal Tyagi. Out of the aforementioned fines, Rs. 4/- lakhs was directed to be paid to the kith and kin of the deceased Anil Chaudhary. The co-accused Hemant @ Babloo, Dimpal @ Kapil Tyagi and Nikhil Tyagi were acquitted from all the charges and Bhagmal Tyagi was acquitted under Section 120-B IPC. State of U.P. has filed Govt. Appeal No. 7487 of 2009, from acquittal of Bhagmal Tyagi, Hemant @ Babloo, Dimpal @ Kapil Tyagi and Nikhil Tyagi. Both these appeals arise out of same judgment as such were consolidated and heard together.
3. On the complaint (Ex-Ka-1) of Baldan Singh (PW-1), FIR (Ex-Ka-22) of Case Crime No. 588 of 2005, under Section 307, 504, 506 IPC was registered at Police Station Kavinagar, Ghaziabad on 24.11.2005 at 21:30 hours against Bhagmal Tyagi and two unnamed persons by Head Moharrir Vinod Kumar. It has been stated in the FIR that the informant Baldan Singh son of Kabool Singh had come to the house of his son Anil Chaudhary, situated at Jagriti Vihar, on Free-hold plot, at about 7:00 PM. Virendra Singh son of Malkhan Singh, resident of Sadarpur was also with him. On coming to the house of his son, he came to know that his son had gone to attend a party of his friend on the motorcycle along with Ravindra son of Lakshmi (his elder brother's son). He had told to come back soon. After taking tea and water at the house of his son, they both were going to take beedi towards main road, through lane. He saw his son coming on motorcycle along with Ravindra on the turn of the lane. As soon as he entered the lane, in front of house of Pushpa Yadav then a car dashed the motorcycle of his son from back side. His son and Ravindra fell down from motorcycle. Then Bhagmal Tyagi son of Ved Prakash Tyagi, resident of village Morta, PS Sihani Gate, who was known to him from before the incident and two unknown persons came out from the car. Bhagmal Tyagi opened fire from the pistol in his hand, with an intention to kill his son, saying while abusing that Anil I would kill you. His son fled away for 30-35 paces and thereafter, he fell down in front of house of Jagdish Sharma. Bhagmal Tyagi caught hold his son there and shot fire on the chest of his son. They run towards his son while shouting then Bhagmal Tyagi threaten to kill them showing his pistol and warned not to come there. Thereafter they sat in car and fled away. This incident had occurred at 7:30 PM. They had seen entire incident in the light of electricity. He got his son admitted at Shivam Hospital, Rajnagar, Ghaziabad with the help of the residents of mohalla, where his treatment was going on.
4. After lodging of FIR, investigation was started by S.H.O. Arun Kumar Verma (PW-5). He copied check FIR and G.D. entry in case diary and recorded the statement of the informant. He came on the spot and on the pointing out of the informant prepared site-plan (Ex-Ka-4). He found three empty cartridges of 315 bore on the spot and prepared its recovery memo (Ex-Ka-5). He found a leather purse on the spot, in which Credit Card of Bhagmal Tyagi, issued from Punjab National Bank, two photos of Bhagmal Tyagi, one photo of a lady, three photos of gents, PAN card of Bhagmal Tyagi, ATM card of Bhagmal Tyagi issued from HDFC Bank, one visiting card of Arun Tyagi, one receipt of Pooja Dry Cleaner and Rs. 302/- cash were found. Its recovery memo (Ex-Ka-6) was prepared. He took plain and blood stained bricks and earth from the spot and prepared its recovery memo (Ex-Ka-
7). He prepared recovery memo (Ex-Ka-8) of broken head light, bumfer, number plate of the car and motorcycle of Anil Chaudhary. He recorded statements of the witnesses of spot Sanjeev Kumar and Virendra Singh. On 25.11.2005, he recorded statements of Bijendra Singh, Ravindra Singh and Injured Anil Chaudhary. He recovered blood stained clothes of Anil Chaudhary and prepared its recovery memo (Ex-Ka-9). Anil Chaudhary died in Yashoda Hospital on 27.11.2005 at 11:00 AM. Thereafter, he conducted Inquest (Ex-Ka-10) of the dead body and prepared photo lash, challan lash and letters (Ex-Ka-11 to Ka-14) to the authorities for postmortem and dispatched dead body for postmortem. The case was converted under Section 302 IPC vide G.D. entry no.27 on 27.11.2005 at 12:05 hours. On 04.12.2005, he copied Inquest, postmortem report and injury report in case diary.
5. Bhagmal Tyagi surrendered and sent to jail. He recorded statements of Bhagmal Tyagi on 06.12.2005. He confessed his guilt and also informed the place where he had concealed the pistol, used for commission of the offence. The pistol was searched at the place, where it was concealed but could not be found. Bhagmal Tyagi was taken on police remand on 10.12.2005. Then on his pointing out the pistol of 315 bore along with empty cartridges fasten in its barrel used for commission of crime was recovered and its recovery memo (Ex-Ka-2) was prepared. On 11.12.2005, he arrested the accused Hemant @ Babloo Tyagi. On 13.12.2005, he recorded statement of witnesses of recovery of pistol namely Dharmaveer Singh Jaipal Singh. He prepared site-plan (Ex-Ka-15) of the place of recovery of pistol. In the meantime Dimpal @ Anil Tyagi surrendered and send to jail. He recorded statements of Dimpal @ Anil Tyagi in jail on 23.12.2005. He also confessed his guilty and assured to recover pistol used by him in commission of crime. Dimpal @ Anil Tyagi was taken on police remand on 25.12.2005 and on his pointing out a pistol along with an empty cartridge fasten in its barrel of 12 bore was recovered. Photostat copy of recovery memo Paper No. Ka-6/3 was on record. On 25.12.2005, he recorded statements of Nikhil Tyagi.
6. Thereafter, investigation was transferred to SHO Rakesh Kumar Paliwal (PW-7). On 30.12.2005, he recorded statements of Panches of Inquest and SI Arun Kumar Verma. After completion of investigation, he submitted charge sheet (Ex-Ka-21) against all the accused on 30.01.2006. On the basis of recovery memo (Ex- Ka-2) FIR (Ex-Ka-18) of Case Crime No. 617 of 2005, under Section 25 of Arms Act, 1959 was registered on 10.12.2005 at 14:00 hours against Bhagmal Tyagi. SI Jag Roshan Singh (PW-6) conducted its investigation. He recorded statements of Head Moharrir Jai Pal Singh and Bhagmal Tyagi. On 17.12.2005, he recorded statements of Arun Kumar Verma, Kubher Singh, Baijraj Singh and Dharmaveer. He inspected the place of recovery and prepared a site-plan (Ex-Ka-16). He took sanction for prosecution (Ex-Ka-20) from District Magistrate and submitted charge sheet (Ex-Ka-17) against Bhagmal Tyagi on 22.12.2008.
7. The injured Anil Chaudhary was admitted to Shivam Hospital, Rajnagar, Ghaziabad on 24.11.2005 at 8:15 PM, where he was examined by Dr. Atul Kumar Agrawal (PW-4). He prepared his injury report (Ex-Ka-3), in which 3 injuries (i) Wound of entry, right side chest, (ii) Left posterior chest wall, wound of entry and (iii) Tattooing on interior part of neck with small abrasion, were noted. It was also noted that at the time of admission in hospital, his general condition was very poor. Wounds were bleeding. Blood Pressure was not recordable. Breath sounds were not in both side. Anil Chaudhary was shifted to Yashoda Hospital on 26.11.2005 at 5:00 PM, where he died on 27.11.2005 at 11:00 AM. His postmortem was done by Dr. A.K. Chaudhary (PW-8), on 27.11.2005 at 3:30 PM who prepared postmortem report (Ex-Ka-
24), in which, following ante-mortem injuries were noted:-
(i) Lacerated wound 3 cm x 2 cm on right side of chest, 7.5 cm above right nipple and 16 cm below the top of right shoulder. Direction was downward and partly.
(ii) Contusion on right side of back post axillary line and 13 cm below the top of right shoulder.
(iii) Stitched wound 3 cm on the back of mid line 23 cm below the back of root of neck.
(iv) Contusion 11 cm x 6 cm on the back of left side just below scapula.
In internal examination, Haematoma present on 1st, 2nd, 3rd and 4th ribs. Stomach was empty. Liver was pale. Cause of death was noted as shock and hemorrhage as a result of ante- mortem injuries.
8. Dr. Reena Singh (PW-9), Additional City Magistrate, conducted identification parade of the accused Dimpal @ Kapil Tyagi, who was identified by Baldan Singh (PW-1). She prepared its report (Ex-Ka-25). In cross-examination, she admitted that before identification parade, she did not make any inquiry from jail authority as to whether, the accused Dimpal was kept with covered face or not, before coming for identification parade.
9. On committal, the cases were registered as S.T. No. 780 of 2006 State Vs. Bhagmal Tyagi and others, under Section 302, 504, 506, 120-B, 34 IPC and S.T. No. 781 of 2006 State Vs.
Bhagmal Tyagi, under Section 25 of Arms Act, 1959. IXth Additional Sessions Judge framed charges against the appellants on 26.09.2006. The appellants pleaded “not guilty” and claimed trial. In order to prove the charges, the prosecution examined Baldan Singh (PW-1), the informant and an eye witness, Virendra Singh (PW-2), an eye witness, Jaipal Singh (PW-3), the witness of recovery of pistol on the pointing out of Bhagmal Tyagi, Dr. Atul Kumar Agrawal (PW-4), to prove the Injury Report (Ex-Ka-3), SI Arun Kumar Verma (PW-5), first Investigating Officer, SI Jag Roshan Singh (PW-6), Investigating Officer of the case under Arms Act, 1959, SI Rakesh Kumar Paliwal (PW-7) Second Investigating Officer, Dr. A.K. Chaudhary (PW-8), to prove the postmortem report (Ex-Ka-24), Dr. Reena Singh (PW-9), to prove Test Identification of Dimpal.
10. All the incriminatory materials and evidence were put to the accused under Section 313 Cr.P.C. They denied the facts and evidence and stated that they were falsely implicated. Bhagmal Tyagi stated that he was falsely implicated due to election rivalry. The deceased Anil Chaudhary was doing business of money lending. In relation to the dispute of money transaction, unknown persons had caused the incident. 4-5 months prior to this incident, Rakesh Tyagi, a friend of Anil Chaudhary attacked upon him with an intention to kill him. He was falsely implicated at the instance of Rakesh Tyagi. The police has falsely shown recovery of pistol on his pointing out. Dimpal @ Kapil Tyagi stated that on the date of incident, there was engagement of his nephew Nishant Tyagi at his village Morta. He was attending the engagement ceremony there and had not gone to Jagriti Vihar nor had caused the incident. Due to friendship with Bhagmal Tyagi, he was falsely implicated. Hemant denied his involvement in the incident and had stated that due to friendship with Bhagmal Tyagi, he was falsely implicated. Nikhil also denied his involvement in the incident and has stated that due to relationship with Bhagmal Tyagi, he was falsely implicated. He was a student of B.B.A. of I.M.R. Institute. At the time of incident, he was at Shahdara.
11. The accused examined Ravindra Kumar (DW-1) the cousin of the deceased Anil Chaudhary and who was alleged to be a pillion rider on his motorcycle at the time of incident, to prove that he, Baldan Singh and Virendra Singh were at village Sadarpur, at the time of the incident. They received information that Anil Chaudhary sustained injuries then they came to Jagriti Vihar.
Constable Narendra Singh (DW-2) to prove that information of the incident was given by Neeraj on phone no. 100 on 24.11.2005 at 20:26 hours to District Police Control Room, which was noted at Serial No. 336 and thereafter information was given to police station Kavinagar. Ashok Kumar (DW-3) to prove that Dimpal @ Kapil Tyagi was attending the engagement ceremony of his nephew Nishant Tyagi on the date of incident, at his village Morta, where he was working as photographer.
12. Session's Judge, by the impugned judgment, found that Baldan Singh and Virendra Singh (PWs-1 and 2) are trustworthy, reliable and truthful witnesses. Non-production of Neeraj, who had informed District Police Control Room on phone 100 of the incident on 24.11.2005 at 20:26 hours, does not affect the prosecution case. The place of occurrence is proved from statements of Baldan Singh, Virendra Singh and Arun Kumar Verma (PWs-1, 2 and 3). Statement of Anil Chaudhary as recorded by Investigating Officer cannot be read as his “dying declaration”. Although motive of the incident is not proved but as the case is based upon direct evidence as such the motive has no importance. Recovery of pistol on the pointing out of Bhagmal was proved by Jaipal Singh (PW-3), who is an independent witness. There is no discrepancy in oral and medical evidence. Some latches have been committed by Investigating Officer but it will not affect the prosecution case. The defence evidence does not help the accused. The prosecution failed to prove charges against Hemant @ Babloo, Dimpal @ Kapil Tyagi and Nikhil Tyagi. On these findings, he convicted Bhagmal Tyagi under Section 302, 504, 506 IPC and Section 25 of Arms Act, 1959 and acquitted him under Section 120-B IPC and sentence as mentioned above. He acquitted Hemant @ Babloo, Dimpal @ Kapil Tyagi and Nikhil Tyagi. Hence these appeals are filed.
13. PW-1 informant Baldan Singh and PW-2 Virendra Singh stated before the Court that on 24.11.2005, they had gone at the residence of informant's son Anil Chaudhary situated at Sector 23, Jagriti Vihar, Ghaziabad. At that time, Anil Chaudhary had gone to attend a party alongwith his friend Ravindra. After taking tea, PW-
1 Baldan Singh and PW-2 Virendra Singh were going to take beedi towards main road. At about 7:30 PM a car dashed the motorcycle of Anil Chaudhary from back side in front of house of Phuspa Yadav. Anil Chaudhary and Ravindra fell down from the motorcycle. Appellant Bhagmal Tyagi fired on Anil Chaudhary by abusing him. Anil Chaudhary sustained fire arm injuries. After that he tried to escape but fell down at distance of 10-15 paces in front of house of Jagdish Sharma and thereafter accused/appellant Bhagmal Tyagi again fired on chest of Anil Chaudhary due to which he sustained injuries on his chest. There is no material contradiction in statement of PW-1 Baldan Singh and PW-2 Virendra Singh due to which their statements may be discarded.
14. Learned counsel for the appellant contended that PW-1 Baldan Singh and PW-2 Virendra Singh are chance witnesses. Their presence on the spot is doubtful. Although PW-1 Baldan Singh is resident of village Sadarpur but Anil Chaudhary was his son who was residing at Jagriti Vihar, Ghaziabad. Therefore, it was natural for PW-1 Baldan Singh to go at residence of his son Anil Chaudhary with his friend PW-2 Virendra Singh. PW-1 Baldan Singh and PW-2 Virendra Singh have admitted in their cross- examination that there was beedi shop closer to residence of Anil Chaudhary. On this basis, learned counsel for the applicant contended that it was not natural for PW-1 Baldan Singh and PW- 2 Virendra Singh to go in city for purchasing beedi. PW-1 Baldan Singh admitted this fact that from the place of occurrence, residence of his son Anil Chaudhary is situated at 60-70 paces. As Anil Chaudhary was not at his residence, in such circumstance, conduct of PW-1 Baldan Singh and PW-2 Virendra Singh to go in city at distance of 60-70 paces from his residence is natural and probable. As per medical report, deceased Anil Chaudhary sustained two fire arm injuries but PW-1 Baldan Singh and PW-2 Virendra Singh stated that accused Bhagmal Tyagi had made three fire. PW-1 Baldan Singh had not stated that Anil Chaudhary have received injuries from all the three fire. PW-2 Virendra Singh stated that deceased Anil Chaudhary had sustained three fire arm injuries. PW-1 Baldan Singh admitted this fact that when Anil Chaudhary fell down in front of residence of Jagdish Sharma, two other accused alighted from the car, due to fear, he could not go on spot in order to save his son. Consistent version of PW-1 Baldan Singh and PW-2 Virendra Singh is that accused Bhagmal Tyagi had made three fire. There is no contradiction on this fact. On the basis of imagination, PW-2 Virendra Singh might have stated that deceased Anil Chaudhary had sustained three fire- arm injury. On the basis of this minor contradiction, statement of PW-1 Baldan Singh and PW-2 Virendra Singh cannot be discarded. Hon'ble Apex Court in Kamaljit Singh v. State of Punjab, (2003) 12 SCC 155, held that it is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out.
15. PW-5 Arun Kumar Verma has recorded statement of injured Anil Chaudhary on 25.11.2005 under Section 161 Cr.P.C., and this statement certified by SI Arun Kumar Verma is on record. In statement under Section 161 Cr.P.C., injured Anil Chaudhary stated that accused Bhagmal Tyagi alighted from the car and after abusing, made fire on him, due to which he sustained injuries. He further stated that at the time of incident he was coming with Ravindra by motorcycle from the residence of his friend Golu situated in Sector 23, Ghaziabad. They have gone their to attend party. On further interrogation by the Investigating Officer, he stated that there was enmity between accused Bhagmal Tyagi and another person Rakesh Tyagi, who were resident of same village. Before some day, Rakesh Taygi came at his shop to take CD, due to which, Rakesh Tyagi and Anil Chaudhary became familiar to each other. Accused Bhagmal Tyagi asked injured Anil Chaudhary to inform whenever Rakesh Tyagi came at his shop. Anil Chaudhary refused to give information about whereabouts of Rakesh Tyagi due to which accused Bhagmal Tyagi assaulted him. In statement under Section 313 Cr.P.C., accused Bhagmal Tyagi also admitted this fact that Rakesh Tyagi and deceased Anil Chaudhary were friend. Before 4-5 months of the occurrence Rakesh Tyagi had attempted to kill him. From these facts, it infers that injured Anil Chaudhary had made this statement before the Investigating Officer otherwise, it was not possible for Investigating Officer to know about relationship of Rakesh Tyagi with injured/deceased Anil Chaudhary and accused Bhagmal Tyagi. PW-1 Baldan Singh admitted this fact that Anil Chaudhary was talking when he was conscious. In Shri Bhagwan Vs. State of U.P., 2013 Vol 12 SCC 137, the Hon'ble Apex Court held that a statement under section 161 Cr. P.C. of an injured recorded by the Investigating Officer during the course of investigation can be accepted as a “dying declaration” under Section 162 (2) Cr.P.C. read with Section 32 (1) of Evidence Act, 1872. Accordingly, prosecution version is supported by dying declaration made by injured/deceased Anil Chaudhary.
16. On the day of occurrence, in presence of public witness Vijendra and Sanjiv Kumar, Investigating Officer Arun Kumar Verma has recovered three empty cartridges from the spot. On 10.12.2005 at about 12:10 PM on information of accused Bhagmal Tyagi, 315 bore pistol was recovered by the Investigating Officer from the shrubs. The empty cartridges and pistol were sent to Forensic Science Laboratory, Agra for examination. As per report of Forensic Science Laboratory, Agra, the empty cartridges recovered from the spot were fired by 315 bore pistol which was recovered on information of accused Bhagmal Tyagi. This fact also corroborate the prosecution version. On the day of occurrence i.e. 24.11.2005, Investigating Officer Sub Inspector Arun Kumar Verma has also recovered purse belonging to accused Bhagmal Tyagi containing debit card of Punjab National Bank, PAN card, ATM card of HDFC bank of accused Bhagmal Tyagi with some photographs. Recoveries of these articles also corroborate the involvement of accused- appellant Bhagmal Tyagi in the crime.
17. Although DW-1 Ravindra was relative of the deceased but he had not supported the prosecution version. Ravindra had gone as a witness of fact of this case to identify accused Dimple in Jail at the time of test identification parade. This shows that he was a witness of the occurrence, but he had been won over by the defence. Accordingly, he had deposed falsely before the court. Accused-appellant Bhagmal Tyagi is named in the FIR. He was known to prosecution witnesses Baldan Singh and Virendra Singh and deceased Anil Chaudhary. From their statement, it is proved beyond reasonable doubt that Bhagmal had committed murder of deceased Anil Chaudhary.
18. Accused Hemant @ Babloo was not named in the FIR. He was not put up for test identification with these witnesses. Dimpal @ Kapil Tyagi and Nikhil Tyagi were also not named in the FIR. There is no evidence on record to show the involvement of Nikhil Tyagi. In identification parade PW-1 Baldan Singh had identified Dimpal @ Kapil Tyagi in third round. PW-1 Baldan Singh had admitted in his cross-examination that he could not see the face of unknown miscreants who are involved in the crime. Accordingly, learned trial court has rightly acquitted the co- accused Dimpal @ Kapil Tyagi, Hemant @ Babloo and Nikhil Tyagi from the charges levelled against them.
19. In view of the aforesaid discussions, the appeals have no merit and are dismissed. Appellant Bhagmal Tyagi is in jail. He shall serve the sentence as awarded by the court below.
20. Office shall communicate this order to Court concerned forthwith to take consequential action under intimation to this Court. Original records be also returned.
Order Date :- 29.10.2018 Rahul/-
[Umesh Chandra Tripathi,J.] [R.S.R. (Maurya),J.]