Court No. - 53
Reserved on: 03.05.2019 Delivered on: 29.05.2019
CRIMINAL APPEAL No. - 6353 of 2004
Appellant :- Gulab Singh Respondent :- State Of U.P.
Counsel for Appellant :- Gyanendra Kumar Singh,Ashutosh Tiwari,Brijesh Sahai,Jitendra Singh,Mangla Prasad Rai,Praveen Kumar Srivastava A/C,Raghubans Sahai Counsel for Respondent :- Govt. Advocate,M.D. Mishra,P.C.Srivastava
Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
(Delivered by Umesh Kumar, J)
1- This appeal has been preferred against the judgment and order dated 27.11.2004 passed by Additional Sessions Judge, Fatehpur in S.T. No. 694 of 2002 convicting the appellant under Section 302 IPC and sentencing him life imprisonment with a fine of Rs. 20,000/-, in default of payment of fine, to undergo three months further rigorous imprisonment.
2- In brief, prosecution case is that P.W.2-informant Devendra Singh submitted a written report alleging therein that on 13.2.2002, he along with his father Jawahar Lal Singh (deceased) and younger brother Satyendra Singh (PW-1) were returning to their house from Dhata Bazar; at about 5.30 p.m. when they reached near the field of Veer Bhan, accused-Gulab Singh hiding himself in the wheat field, armed with DBBL gun exhorted and fired which hit his father on the shoulder; raising alarm, he ran to the house of Bhaiya Lal Khatik; accused-Gulab chased him, entered into the house and fired several shots; deceased-Jawahar Lal Singh after receiving injuries, died. Thereafter, on raising alarm by the informant, accused-Gulab Singh also chased them and in the meantime, accused fired several shots in the village, fear and chaos ensued the village;
the informant in written report also has alleged that father of accused-Gulab Singh was murdered in the year 1996 in which father of the informant was also an accused in the said case and for this reason, accused was inimical to his father and murdered him to average the death of his father. The informant also mentioned in the written report that dead body of his father is lying in the house of Bhaiya Lal Khatik; the incident was seen by them and several other persons of the village. On the said information, check FIR(Ex.Ka-3) was prepared at the police station and disclosure of the said information was entered as G.D. entry No.26 (Ex. Ka. 4) at about 19.10 hours on 13.3.2002. Thereafter, the I.O. reached on the spot, prepared inquest (Ex.Ka.5) along with other relevant police papers ( Ex.Ka-6 to Ex.Ka.8). During investigation, blood stained and plain earth and recovery memo of cartridges (Ex.Ka.10) prepared. He also prepared the recovery memo of pant, shirt, red langot, empty cartridges, tikli and pellet as (material Exhibits 1 to 10). The dead body was sent for post mortem which was done by Dr. B.D. Verma (Ex.Ka.2) and following injuries were found on the body of deceased-Jawahar Lal Singh;
1- Deep abrasion on nose on left side at lower part 2 cm x 1 cm x skin deep.
2- Wound of entry 6 cm x 4 cm x cavity deep at mid line and inferior part of chest just above epigastrium. Wadding lodged in the wound 8 cm below and lateral to right nipple.
3- Wound of entry 2 cm x 2 cm x cavity deep on left part of abdomen 6 cm left to the umblicus associated with wound of exit 2 cm x 2 cm on left buttock at upper most and medial part just lateral to the spinal column.
4- Wound of entry 3 cm x bone deep on ant. Of right arm 8 cm below shoulder joint associated with wound of exit 4 cm x 3 cm on post part of right arm 11 cm below shoulder joint. Arm bone fractured.
5- Wound of entry 7 cm x 4 cm x bone deep on post and upper part of right forearm just below elbow joint associated with wound of exit 12 cm x 8 cm on anterior aspect of fore arm(right) just below elbow joint. Fore arm bone fractured completely across.
3- During investigation, statements of witnesses were recorded. The I.O. prepared site plan (Ex.Ka-9) and dispatched the recovered articles for FSL report (Ex.Ka-12). After completion of investigation, charge sheet (Ex.Ka.11) under Section 302 IPC was submitted by the Investigating Officer.
4- Accused was charged under Section 302 IPC. The charges were read over and explained to the accused in Hindi, who pleaded not guilty and claimed to be tried.
5- In support of his case, prosecution examined as many as 6 witnesses. P.W.1 Satyendra, P.W.2 Devendra Singh are real brothers and sons of deceased-Jawahar Lal Singh are said to be the eye witnesses of the occurrence. P.W.3 Dr. B.D. Verma conducted autopsy, P.W.4 Head Constable Anil Kumar Singh prepared check FIR and G.D. entry. P.W.5 Bhagwant Ram Singh is the witness of inquest, whereas P.W.6 Shambhu Dayal Singh is the Investigating Officer.
6- The statement of accused under Section 313 Cr.P.C. recorded . He denied the prosecution allegation and stated that he has been falsely implicated due to enmity. He further stated that deceased was a man of bad character and due to that reason, he was murdered by some unknown person and the incident was not seen by any one.
7- We have heard Sri Mangla Prasad Rai, Advocate, who has filed his parcha on 15.4.2019 and also Sri Praveen Kumar Srivastava, learned Amicus for appellant and Sri A.N. Mulla, learned AGA assisted by Sri J.K. Jaiswal for the State and perused the record.
8- Submission of learned Counsel for the appellant is that (i) no independent witness has been examined; (ii) even Bhaiya Lal Khatik who may be the best witness has not been examined; (iii) the examined witnesses are highly interested and related to the deceased; (iv) there are major contradictions in their inter-se statements; (v) the witness of inquest Bhagwant Rai Singh denied the fact that inquest was conducted on the spot; (vi) FIR is ante timed and an after thought; there is clear enmity between the deceased and the appellant; (vii) the charge framed against the accused-appellant is not happily worded, because it reveals about the first incident which took place in the field but subsequent incident has not been narrated in the charge; (viii) the trial Judge has not considered the evidence in true perspective and the prosecution has not been able to prove its case beyond reasonable doubt.
9- On the other hand, learned AGA submitted that there was strong enmity between the deceased and the appellant; it is clear that deceased was an accused of murder of Chandra Bhan Singh,father of appellant in the year 1996; it is quite natural that the appellant-Gulab Singh having strong motive committed the murder; he replied to the argument of learned Counsel for the appellant about the charge which is not happily worded, by submitting that there is mention of the entire incident in the FIR and also there is specific question in the statement of accused recorded under Section 313 Cr.P.C as Question No.4 which has been denied by the accused. Learned AGA further submitted that although enmity is a double edged weapon but in the present case false implication is not established and the learned Trial Judge has rightly convicted the appellant.
10- The prosecution witness (P.W.1) is the son of the deceased aged about 16 years at the time of occurrence. He stated that accused was known to him prior to the incident because his tube well and the tube well of accused Gulab Singh was adjacent. Supporting the prosecution version, he stated that he along with his younger brother and father Jawahar Lal Singh were returning from Dhata Bazar at about 5.00 p.m., when they reached western side of the field of Veer Bhan, accused Gulab Singh stood, exhorted his father and fired fom his DBBL gun at his father. His father ran to save himself and entered in the house of Bhaiya Lal Khatik; chasing his father, accused-Gulab also entered the house; they raised alarm to rescue his father, but they heard sound of firing from the house of Bhaiya Lal Khatik; thereafter, accused came out armed with gun and chased them also; they ran towards their village; thereafter, when they reached the spot along with other family members, they saw father dead. The report was lodged by his elder brother Devendra Singh at the police station; the police prepared inquest on the spot. This witness fairly admitted that at the time of occurrence, he was student of Class-X; his board examination was to be start 5-6 days later; he was on preparation leave; science practicals had commenced. He stated that he cannot say with certainty that on the said date, his school was opened or not. He narrated that I.O. met him at the place where his father lay dead at about 8.30 p.m. He along with his family members namely Bhagwant Rai Singh, Narendra Singh, Prem Singh, Kallu Singh and Rampal Singh were also present there. He stated that when he saw for the first time, the dead body of his father, lying on earth in tail position, he was wearing pant-shirt and blood stains were present. The I.O. took the dead body of his father by Tempo, but he cannot say that dead body was sent to the police station or else where. The witness stated that report was prepared by him on the institution of the Investigating Officer and that was scribed by Vivekanand. This assertion of witness cannot be relied upon because the information report was written by Vivekanand, but as the application is signed by 'Devendra Singh', which is apparent from perusal of Ex.Ka-1, hence, this statement cannot be accepted that first information report was lodged later and inquest conducted prior to the FIR. Though, there are some minor contradictions available in the statement of this witness, but it can be taken into account that this witness at the time of deposition was aged about 16 years and minor contradictions can never be of such importance so as to vitiate the prosecution case. In the present case, learned Counsel for the appellant could not point out any material contradiction or inconsistency in the evidence of this witness. It is well settled principle of criminal law that minor contradictions or inconsistencies cannot affect the material evidence. The Apex Court in Gorusu Nagarju Vs. State of A.P. 2018 SCC online SC 266 has held that minor contradiction cannot be made a basis to discard the whole evidence as unreliable.
11- P.W.1 further stated that when they were near the fields of wheat 5-6 steps ahead towards west-north corner, accused exhorted; his father was 8-10 steps south to them. His brother Devendra Singh was 1-2 steps ahead of them; they were going from north to south. To a specific query of defence whether shot was fired when accused exhorted or after some time? question was asked by the defence counsel; PW-1 replied that when his father was exhorted by the accused, his father saw towards the accused and then the shot was fired, meaning thereby that within 3-4 seconds the shot was fired. He stated that he heard sound of 4-5 shots during occurrence. All shots were fired from different places at different intervals. This assertion of P.W.1 is supported by site plan (Ex.Ka-9). The evidence adduced by P.W.1 regarding occurrence is totally reliable and supported by the site plan and medical evidence. Thus, it can safely be said that if there is some discrepancy or omission regarding post occurrence, that would not affect the trustworthiness and reliability of the witness.
12- P.W.2 Devendra Singh, elder son of deceased is the informant of the case. He supported FIR and elaborately narrated how the occurrence took place and also about the mode and manner of assault. He stated that father of accused-Gulab Singh was murdered in the year 1996 and his father was an accused in that case and due to this enmity, said occurrence took place. He stated that report (Ex.ka.1) was scribed by Vivekanand Singh on his dictation and after reading it, he signed it with address and parentage and submitted the same at the police station. In cross examination, he admitted that accused-Gulab Singh had falsely implicated his father and he was annoyed with him. This was the enmity between them but he categorically denied that due to this enmity, accused-Gulab Singh has been falsely implicated. He stated that when he went to the residence of Bhaiya Lal Khatik, he saw one injury on the body of his father and blood was on the earth. There were 15-20 people present on the spot. When he went to see the dead body of his father, his grand father and several other persons of his family were also there and at that time, police personnel were present. The dead body of his father was taken away by the police personnel on a Tempo around 8.30-9.00 p.m. and that none of his family member went with the dead body.
13- P.W.3, the doctor who conducted autopsy of the dead body proved injuries. He also proved material exhibits recovered from the body at the time of post mortem which were sealed and sent to the SSP though CMS District Hospital, Fatehpur. He opined that death might have been caused a day prior to the time of autopsy. He further stated that death of deceased might have been caused due to shock and hemorrhage as result of ante mortem injuries.
14- P.W.4 the Head Constable stated that on 13.3.2002, he was posted as Head Moharrir at police station, Bindki, Fatehpur. He proved check FIR (Ex.Ka-3) and G.D.entry (Ex.Ka-4).
15- P.W.5 Bhagwant Rai Singh is a witness to the inquest. He proved his signature on the inquest report (Ex.Ka.5). Although, in examination in chief, he stated that inquest was conducted on the spot and he also put his signature there, but In cross examination, he stated that his signature was obtained at the police station cannot be believed as the fact remains that he admitted his signature on the inquest report on the spot at the time of preparation of inquest.
16- P.W.6, the I.O. after completion of investigation submitted charge sheet( Ex.Ka.11). He proved all relevant police papers and supported the prosecution case. He stated that at the time of inquest no goods/materials alleged to have been purchased from market were recovered from the body of deceased, is quite natural for the reason that when father and sons went to market, the goods are naturally to be carried by the sons and not by the father. At one place, in cross examination, he stated that during investigation, he came to know that door was broken, but he did not take the broken pieces in his possession. There is no mention, in the site plan about the place from where the witnesses saw the occurrence. During investigation, no recovery of DBBL gun has been made. These are shortcomings which cannot be fatal to prosecution, as they are mere omission and laches on the part of investigating officer. Suffice to say that the Apex Court in Khem Ram Vs. State of Himachal Pradesh (2018) 1 SCC 202, as well as in Rahul Mishra Vs. State of Uttrakhand AIR 2015 SC 3043 has held that any irregularity or deficiency in investigation by the I.O. need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent.
17- Taking into consideration the effect of evidence of P.W.1 and P.W.2 corroborated by medical evidence, we find that there is ample evidence to establish that they have witnessed the occurrence, nothing material has been brought on record to discard their testimonies as they remained intact on the point what they had witnessed. The prosecution has established its case against the accused appellant beyond a reasonable doubt and thus, learned Trial Judge was justified in convicting the appellant.
18- The appeal is bereft of merit and is liable to be dismissed.
19- The appeal is dismissed. The appellant is on bail. His bail bonds are cancelled. He be taken in to custody forthwith to serve remaining sentence.
20. Office is directed to communicate a copy of this order to the Sessions Judge concerned for immediate compliance. Compliance report be submitted to this Court within a month.
21. Registrar General is directed to ensure payment of Rs.15,000/- to Sri Praveen Kumar Srivastava, learned Amicus within a month.
(Umesh Kumar,J.) (Pankaj Naqvi,J.) Order Date :- 29.5.2019 Shahid