Court No. - 40
Reserved Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 3330 of 2015 Appellant :- Chhotey Respondent :- State Of U.P. And 4 Others Counsel for Appellant :- Ravindra Sharma Counsel for Respondent :- Govt.Advocate,Amit Kumar Singh,Mukhtar Alam
Hon'ble Bala Krishna Narayana, J. Hon'ble Arvind Kumar Mishra- I, J.
Delivered by Hon'ble B. K. Narayana, J.
Heard Sri Ravindra Sharma, learned counsel for the appellant, Sri Akhilesh Singh, learned G.A. assisted by Sri Saghir Ahmad, learned A.G.A. for the State, Sri Amit Kumar Singh and Sri N.D. Rai, learned counsel for the informant.
This appeal has been preferred by the appellant, Chhotey against the judgement and order dated 06.12.2014 passed by Additional Sessions Judge/Special Judge, S.C. & S.T. (P.A.) Act, Budaun in S.S.T. No. 41 of 2009, State Vs. Madhav Ram & another, u/s 148, 307/149 I.P.C. & S.S.T. No. 40 of 2009, State Vs. Ravindra Pratap Singh & another u/s 148, 307/149 I.P.C. & 3 (2) 5 S.C. & S.T. (P.A.) Act, P.S.- Alapur, District- Budaun, acquitting the accused- respondent nos. 2 to 5 of the charges framed against them u/s 148, 307/149 I.P.C. & 3 (2) 5 S.C. & S.T. (P.A.) Act.
Briefly stated the facts of this case are that P.W.1 informant Patanjali Bhardwaj, son of Shyam Sundar Bhardwaj, Block Pramukh- Myau, Tehsil- Dataganj, District- Budaun gave a written report (Ext.Ka.1) at P.S.- Alapur, District- Budaun on 08.01.2005 at about 4.50 p.m. stating therein that on 08.01.2005 at about 1 p.m. when the informant had gone to the headquarter of the Block- Myau in connection with holding of election for the office of Director of Cooperative Society along with his servants, Babloo, son of Kalyan and Chhotey, son of Ajuddi, suddenly, the accused-respondents namely Omendra Pratap Singh, Ravindra Singh son of Vrijmohan Singh, resident of Myau, Pravendra Singh and Arvendra Singh, sons of Madhav Ram, Ashok residents of Kora Gujjar along with 8-10 other persons who were armed with rifles and guns, reached there and after surrounding P.W.1 informant Patanjali Bhardwaj and his companions, announced that their candidate alone shall be elected to the office of Director of Cooperative Society, Block- Myau and the informant and his supporters will not be allowed to contest the elections and thereafter, they started firing at them with the intention of causing their death. P.W.1 informant Patanjali Bhardwaj and Vashistha Bhardwaj, informant's elder brother ran inside the room of the block office to save their lives. In the firing that ensued, not only the informant's servants but Arvendra, Ashok and Omendra Pratap Singh, belonging to the assailant's side also received gunshot injuries of whom Arvendra and Ashok died while Omendra Pratap Singh got injured. The incident was witnessed by Subedar son of Niranjan, Ram Singh son of Mitthu, residents of Alapur and Sneh son of Santosh Kumar, resident of Chittaura. In the written report (Ext.Ka.1), it was further mentioned that after getting the injured persons admitted to the hospital, they had come to the P.S.- Alapur to lodge the F.I.R. Omendra Pratap Singh had fielded his cousin brother in the election for the office of Director of Cooperative Society, Block- Myau opposite P.W.1 informant Patanjali Bhardwaj which his cousin had lost and ever since then, he had been conspiring to commit the murder of P.W.1 informant Patanjali Bhardwaj.
On the basis of the written report (Ext.Ka.1) given by P.W.1 informant Patanjali Bhardwaj at P.S.- Alapur, District- Budaun, Case Crime No. 10A/2005 u/s 147, 148, 149, 307 I.P.C. was registered against the accused-respondents namely Omendra Pratap Singh, Ravindra Singh, Pravendra, Arvendra, Madhav Ram and Ashok. Check F.I.R. (Ext.Ka.2) and the corresponding G.D. Entry (Ext.Ka.3) vide rapat no. 30 at 14.30 hours on 08.01.2005, carbon copy whereof was brought on record and proved as (Ext.Ka.4) were prepared by P.W.3 Head Moharrir Niranjan Singh.
The Investigating Officer of the case reached the place of incident and after inspecting the same, prepared its site plan (Ext.Ka.10). He also collected plain and blood-stained earth from the place of occurrence and prepared its recovery memo and arrested Pravendra and Madhav Ram and recovered a licensed revolver from Pravendra along with cartridges and prepared the recovery memo thereof on the spot. He recorded the statements of the accused- respondents. Pursuant to the order passed by Superintendent of Police, Budaun on 29.02.2005 transferring the investigation from local police to CB-C.I.D., the matter was investigated by the Investigating Officer of the CB-C.I.D., Bareilly from 02.02.2005 to 20.06.2005. Later, the investigation was again transferred to K.B. Singh, C.O., Dataganj by an order passed by the Uttar Pradesh administration on 17.02.2005. Thereafter, the investigation was transferred to Ram Murat Yadav, C.O., Baheri, District- Bareilly on 24.08.2005 who investigated the matter from 26.08.2005 to 22.11.2005 and thereafter, the investigation was transferred to C.O., Ranvir Singh and from him to Raj Narayana Shukla, Deputy Superintendent of Police, CB-C.I.D. Lucknow on 27.10.2006 who after completing the investigation, filed charge-sheet against the accused-respondent nos.
2 and 3 namely Madhav Ram and Pravendra respectively. Further investigation of the matter against the other accused-respondents was thereafter, entrusted to P.W.7 Shiv Ram Yadav, Deputy Superintendent of Police who submitted charge-sheet against the accused-respondent nos. 4 and 5 namely Ravindra Pratap Singh and Omendra Pratap Singh respectively. Thereafter, pursuant to the order passed by the Uttar Pradesh administration on 01.10.2007, the investigation of the case was entrusted to P.W.8 Satyasen Yadav, Deputy S.P., CB-C.I.D., Lucknow who after recording the statements of the witnesses, endorsed the earlier charge-sheet.
Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, the accused-respondents were committed for trial to the Court of Sessions Judge, Budaun where their case was registered as S.S.T. No. 41 of 2009, State Vs. Madhav Ram & another, u/s 148, 307/149 I.P.C. & S.S.T. No. 40 of 2009, State Vs. Ravindra Pratap Singh & another u/s 148, 307/149 I.P.C. & 3 (2) 5 S.C. & S.T. (P.A.) Act from where the special trial was made over to the Court of Additional Sessions Judge/Special Judge, S.C. & S.T. (P.A.) Act, Budaun who on the basis of material collected during the investigation and after hearing the prosecution as well as the accused on the point of charge, framed charge u/s 148, 307/149 I.P.C. against accused-respondent nos. 2 and 3 namely Madhav Ram and Pravendra respectively and u/s 148, 307/149 I.P.C. & 3 (2) 5 S.C. & S.T. (P.A.) Act against the accused-respondent nos. 4 and 5 namely Ravindra Pratap Singh and Omendra Pratap Singh respectively. The accused- respondents abjured the charges and claimed trial.
The prosecution in order to prove its case examined as many as nine witnesses of whom P.W.1 informant Patanjali Bhardwaj, P.W.2 Chhotey and P.W.4 Vinod @ Bablu were examined as witnesses of fact while P.W.3 Head Constable Niranjan Singh, P.W.5 Dr. R.K. Verma, P.W.6 Deputy S.P. Ranvir Singh, P.W.7 Deputy S.P. Shivram Yadav, P.W.8 C.O. Satyasen Yadav and P.W.9 Head Moharrir Heera Lal, were produced as formal witnesses.
The accused-respondents in their statements recorded u/s 313 Cr.P.C. denied the prosecution case and alleged false implication due to political rivalry. The accused-respondents further stated that the son of Madhav Ram who was a member of B.D.C, had cast his vote in favour of Udayvir Singh in the election held to the office of Block Pramukh- Myau in the year 2001 which was also contested by P.W.1 informant Patanjali Bhardwaj and ever since then, he had been harbouring ill-will towards them and their family. P.W.1 informant Patanjali Bhardwaj, Vikas and his son Vashishtha, Rahul and Varun had committed the murder of Arvendra and Ashok and caused gunshot injuries to Omendra Pratap Singh and as a counterblast, P.W.1 informant Patanjali Bhardwaj, after causing superficial gunshot injuries to his servants Babloo and Chhotey, had lodged a false report against them.
The accused-respondents apart from examining D.W.1 Heera Lal also filed documentary evidence.
Learned Additional Sessions Judge/Special Judge, S.C. & S.T. (P.A.) Act, Budaun after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, acquitted the accused-respondents of all the charges framed against them.
Hence, this appeal.
It is submitted by Sri Ravindra Sharma, learned counsel for the appellant that the prosecution having succeeded in proving the guilt of the accused-respondents by leading cogent and reliable evidence, the judgement of acquittal recorded by the learned trial Judge is per se illegal and against the weight of the evidence on record. He next submitted that it being proved from the evidence on record that the accused-respondents were the aggressors, the court below erred in disbelieving the prosecution story on the basis of surmises and conjectures. He lastly submitted that the impugned judgement and order cannot be sustained and are liable to be set-aside.
Per contra Sri N.D. Rai, learned counsel appearing for the informant submitted that the learned trial Judge, after rightly taking note of the fact that two persons had lost their lives from the side of the defence in the occurrence while one person had received serious firearm injuries whereas from the side of the prosecution, only two servants of P.W.1 informant Patanjali Bhardwaj namely Babloo and Chhotey had received pellet injuries on non-vital parts of their bodies which could have been caused with a view to fabricate a cross-case against the accused-respondents, proceeded to acquit the accused- respondent nos. 2 to 5. He next submitted that the cross-F.I.R. was lodged by P.W.1 informant Patanjali Bhardwaj against the accused- respondents as a counterblast to the F.I.R. lodged against him and his sons with regard to the same incident which had taken place within the premises of headquarters of Block- Myau in which they had shot dead two persons and caused firearm wounds to another with a view to put pressure. He further submitted that the F.I.R. in this case is ante-timed and the prosecution case spelt out therein is totally false and concocted which is apparent from the fact that although the F.I.R. in this case was registered on 08.01.2005 at about 04:50 p.m. referring to an incident which had taken place on 08.01.2005 within the premises of the headquarter of Block- Myau in which P.W.1 informant Patanjali Bhardwaj apart from stating that the accused- respondents along with 8-10 persons, armed with rifles and guns had entered into the premises where the informant along with his servants was present and threatened the informant and his companions with dire consequences and declared that their main objective was to occupy all offices of the Cooperative Society and that they would not leave them alive to contest the elections and thereafter, they started firing at P.W.1 informant Patanjali Bhardwaj and other persons present there and in the firing that ensued, the accused-respondents shot their own men namely Arvendra, Ashok, Omendra Pratap Singh out of whom Arvendra and Ashok had died on the spot while Omendra Pratap Singh was taken to the hospital whereas the correct fact is that Ashok had died during treatment at 04:10 p.m. in the hospital. The F.I.R. contains a clear recital that both Arvendra and Ashok had died on the spot. This clearly indicates that the F.I.R. was ante-timed otherwise in the check F.I.R (Ext.Ka.2), it would have been mentioned that the injured Ashok had died in the hospital and not on the spot.
He lastly submitted that the finding of acquittal recorded by the learned trial Judge does not suffer from any illegality or legal infirmity requiring any interference by this Court. This appeal lacks merit and is liable to be dismissed.
We have heard the submissions advanced by learned counsel for the appellant, learned A.G.A. and learned counsel for the informant and perused the entire lower court record.
Record shows that the incident had taken place on 08.01.2005 at about 1 p.m. in the headquarter of Block- Myau, District- Budaun. There are two versions of the incident. The first version of the occurrence saw the light of the day in the form of the F.I.R. of the incident lodged by accused-respondent no. 2, Madhav Ram which was registered at P.S.- Alapur, District- Budaun on 08.01.2005 at about 2:20 p.m. The cross version of the incident finds mention in the F.I.R. lodged by P.W.1 informant Patanjali Bhardwaj at the same police station on the same day at about 4:50 p.m. The prosecution case as spelt out in the F.I.R. lodged by P.W.1 informant Patanjali Bhardwaj has already been narrated hereinabove and need not be reproduced. Record further shows that in the instant case from the appellant's side, three persons namely Arshad Ali, Babloo and Chhotey had received gunshot injuries. Their injury reports and supplementary reports have been brought on record as (Exts.Ka.4 to Ka.9).
The injury report of Arshad Ali (Ext.Ka.4) indicates that he had received single firearm wound of entry size 0.7 cm x 0.5 cm x DNP on the front of left thigh. The doctor had advised x-ray of the firearm injury of Arshad Ali. The supplementary report of Arshad Ali (Ext.Ka.5) indicates that as per the opinion of the radiologist, the injury was grievous in nature.
The injury report of P.W.4 Vinod @ Babloo (Ext.Ka.6) shows that he had received single firearm wound of entry size 0.6 cm x 0.6 cm x DNP on the right thigh front aspect. His supplementary report (Ext.Ka.7) indicated that as per the opinion of the radiologist, the injury was simple in nature.
The injury report of P.W.3 Chhotey (Ext.Ka.8) indicates single firearm wound of size 0.6 cm x 0.6 cm x DNP on the left buttock middle part. His supplementary report (Ext.Ka.9) indicated that the injury was grievous in nature.
P.W.1 informant Patanjali Bhardwaj in his examination-in-chief recorded before the trial court did not support the prosecution case as spelt out in the F.I.R. in its entirety and deposed that accused Arvendra, Pravendra, Madhav Ram, Ashok and 7-8 persons armed with rifles, guns and revolvers had come to the block office and after encircling him, they had exhorted not to leave the informant alive and thereafter, with the intention of causing his death, they had started firing and in the firing so ensued, the informant's servants, Babloo and Chhotey had received injuries while Arvendra and Ashok belonging to the accused's side had died on the spot while Omendra Pratap Singh had received gunshot injuries.
It is noteworthy that although P.W.1 informant Patanjali Bhardwaj has nominated Omendra Pratap Singh and Ravindra Pratap Singh, both sons of Vrijmohan as accused in the written complaint of the incident (Ext.Ka.1) as well as in his statement recorded u/s 161 Cr.P.C. However, P.W.1 informant Patanjali Bhardwaj in his evidence tendered before the trial court has not attributed any overt act of any kind to Omendra Pratap Singh and Ravindra Pratap Singh. He had merely deposed that in the firing, Omendra Pratap Singh had received firearm injuries.
Similarly, P.W.2 Chhotey, injured witness in his evidence recorded before the trial court has neither attributed any overt act of any kind to accused Omendra Pratap Singh and accused Ravindra Pratap Singh nor has he deposed that they were present at the place of incident at the time of the occurrence. On the contrary, he in his examination-in-chief deposed that while P.W.1 informant Patanjali Bhardwaj and his brother Guddu who is also known as Vashishtha Bhardwaj were sitting under the Paakar tree in the block office and he and Vinod @ Babloo were standing there, accused Madhav Ram, his two sons and his nephew Ashok Singh armed with rifles and guns came there and thereafter the son of Madhav Ram fired at him in which he and P.W.4 Vinod @ Babloo had received gunshot injuries. He had fallen under the Paakar tree and become unconscious and he was not aware who else had received gunshot injuries in the incident.
Likewise, P.W.4 Vinod @ Babloo, the other injured witness also in the occurrence has not disclosed the role of accused Omendra Pratap Singh and Ravindra Pratap Singh in the incident. He in his examination-in-chief deposed that while P.W.1 informant Patanjali Bhardwaj was sitting under the Paakar tree in the Block Office and he and P.W.2 Chhotey were standing near him at about 1 p.m., Pravendra Singh, Madhav Ram and Ashok entered the Block Office firing in the air and hurling abuses. On noticing them, P.W.1 informant Patanjali Bhardwaj ran inside the Block Office and saved his life by locking himself inside the room. He and P.W.2 Chhotey had received gunshot injuries after which he had become unconscious. He regained consciousness in the hospital. He was not aware what had happened in between. P.W.4 Vinod @ Babloo also has not testified before the trial court about the presence of informant's brother Vashishtha Bhardwaj and Arvendra (deceased) at the place of incident.
Record further shows that P.W.1 informant Patanjali Bhardwaj in the written report of the occurrence (Ext.Ka.1) which was lodged by him at P.S.- Alapur, District- Budaun had nominated accused Omendra Pratap Singh and Ravindra Pratap Singh also as accused along with Arvendra, Madhav Ram and Ashok but he in his statement recorded before the trial court, as already noted, has not attributed any overt act to accused Omendra Pratap Singh. As regards accused Ravindra Pratap Singh, he has not even mentioned in his evidence that he was present at the place of occurrence. Upon being contradicted by the defence counsel with his statement recorded u/s 161 Cr.P.C. in which he had nominated Omendra Pratap Singh and Ravindra Pratap Singh as accused and attributed the act of firing to them, P.W.1 informant Patanjali Bhardwaj denied having attributed any role of firing to Omendra Pratap Singh and Ravindra Pratap Singh in his statement recorded by the Investigating Officer and further deposed that he had no inkling why the aforesaid fact was recorded by the Investigating Officer in his statement recorded u/s 161 Cr.P.C. although P.W.1 informant Patanjali Bhardwaj has deposed against the accused Madhav Ram and Pravendra but he on page 13 of his cross- examination has deposed that the facts stated by him in his written report are correct but there was no enmity between him, Madhav Ram and Pravendra. The facts deposed by P.W.1 informant Patanjali Bhardwaj in his cross-examination are contradictory to those stated by him in his written complaint (Ext.Ka.1) in which he had nominated Omendra Pratap Singh and Ravindra Pratap Singh also as persons who had fired at him and his companions along with other co-accused and to whom alone he had attributed the motive for commission of the crime in question.
Thus, according to the F.I.R. recitals and the facts stated by P.W.1 informant Patanjali Bhardwaj in his examination-in-chief, accused Madhav Ram had no motive to commit the crime but P.W.1 informant Patanjali Bhardwaj in his examination-in-chief has neither stated anything against accused Omendra Pratap Singh and accused Ravindra Pratap Singh nor he has attributed any overt act to them although he had ascribed the motive to commit the crime in question exclusively to them.
Thus, in view of the above contradictions, the testimony of P.W.1 informant Patanjali Bhardwaj, P.W.2 Chhotey, P.W.3 Niranjan Singh and P.W.4 Vinod @ Babloo does not appear to be truthful and does not inspire confidence.
The F.I.R. in this case also appears to be ante-timed.
Record shows that the F.I.R. of the case was registered on 08.01.2005 at about 14.50 hours as is evident from the check F.I.R. (Ext.Ka.2). In the written report of the incident as well as in the check F.I.R. (Exts.Ka.1 & Ka.2 respectively), it has been mentioned that accused Ashok had died on the spot. However, from (Ext.Kha.5) which has been filed by the defence side i.e. certified copy of the postmortem report of Ashok, it transpires that Ashok had died on 08.01.2005 at 04.10 p.m. If Ashok had died on 04.10 p.m. then the fact stated by the P.W.1 informant Patanjali Bhardwaj in the written report of the incident which was lodged at 2.50 p.m. that Ashok had died on the spot, clinchingly proves that the F.I.R. is ante-timed. It is further evident from the facts deposed by P.W.1 informant Patanjali Bhardwaj in his cross-examination that he had remained present at the place of occurrence for about two hours after the occurrence and hence he would have been fully aware of the fact that injured Ashok had been taken to the hospital for treatment where he had died at 04.10 p.m. as is evident from his postmortem report (Ext.Kha.5) but despite that P.W.1 informant Patanjali Bhardwaj in the written report of the incident lodged by him on 08.01.2005 at about 14.50 hours, he had stated that Ashok had died on the spot. The aforesaid discrepancy totally shatters the credibility of the F.I.R. in this case as well as the veracity of the prosecution case. The possibility of the F.I.R. of this case being lodged after due deliberations, consultations and with the interference of the police with the object of falsely implicating the accused, cannot be ruled out.
Moreover, another aspect of the matter which falsifies the prosecution case is that although the informant has alleged that the accused were the aggressors but admittedly in the occurrence, two persons Arvendra and Ashok had died while one Omendra Pratap Singh had received gunshot wounds. All the aforesaid three persons were as per the prosecution case, aggressors and although they had come armed with rifles, guns and revolvers to eliminate P.W.1 informant Patanjali Bhardwaj but they did not cause any injury to him although it is the own case of the prosecution that after entering the premises of the Block Office, they had surrounded P.W.1 informant Patanjali Bhardwaj, his brother and his other companions present there. Although the prosecution claims that three persons had received injuries in the incident namely Arshad Ali, Babloo and Chhotey but their injuries were at the most, grievous and on their non-vital parts. Out of the three injured witnesses, Arshad Ali was not produced during the trial. The glaring contradictions in the testimonies of the remaining two injured witnesses, Babloo and Chhotey to which we have already referred to hereinabove, create a very strong doubt about their presence at the time and place of the occurrence and the genuineness of their claim that they had received injuries in the occurrence at the hands of the accused-respondents. The explanation given by the appellants with regard to the number of casualties caused on the side of the alleged aggressors appears to be totally childish and perfunctory.
Thus, considering the number of casualties suffered by the accused's side, we find it difficult to hold that the accused were the aggressors.
In view of the foregoing discussions, we do not find that the learned trial Judge committed any illegality or legal infirmity in acquitting the accused-respondents. We further do not find any compelling reason to disagree with the finding of the acquittal recorded by the trial court. Learned counsel for the appellant has failed to demonstrate that the finding of guilt recorded by the trial court suffers from non-consideration of any material evidence or the same is perverse.
This appeal lacks merit and is accordingly dismissed.
Order Date :- 18/12/2018 KS