Reserved on 14.12.2018 Delivered on 29.1.2019
Court No. - 50
Case :- CRIMINAL APPEAL No. - 3398 of 2013 Appellant :- Heera Respondent :- State Of U.P.
Counsel for Appellant :- M.C. Singh,Dushyant Singh,Noor Mohammad,Puneet Srivastava,Ulajhan Singh Bind Counsel for Respondent :- Govt. Advocate,Arvind Gupta,S.K. Yadav With Case :- CRIMINAL APPEAL No. - 3301 of 2013 Appellant :- Sheetu Respondent :- State Of U.P.
Counsel for Appellant :- Sushil Kumar Counsel for Respondent :- Govt. Advocate,Arvind Gupta,S.K. Yadav With Case :- CRIMINAL APPEAL No. - 3423 of 2013 Appellant :- Yogesh And Anr.
Respondent :- State Of U.P.
Counsel for Appellant :- Nasiruzzaman,Vijay Shantam Counsel for Respondent :- Govt. Advocate,Arvind Sen Gupta,S.K. Yadav With Case :- CRIMINAL APPEAL No. - 3475 of 2013 Appellant :- Rajendra Pal @ Rajendra Singh Respondent :- State Of U.P.
Counsel for Appellant :- Syed Wajid Ali,Bhupendra Pal Singh,Devesh Kumar Shukla,Ulajhan Singh Bind,Vijay Shantam Counsel for Respondent :- Govt. Advocate,Arvind Sen Gupta,S.K. Yadav
Hon'ble Aniruddha Singh,J.
1. All Criminal Appeals are arising out of the same judgment and order, hence they were heard together and are being decided by common judgment.
2. All above criminal appeals have been filed by the appellants Heera, Sheetu, Yogesh, Jagan Pal Shashtri and Rajendra Pal @ Rajendra Singh under Section 374(2) Cr.P.C. against judgment and order dated 10.7.2013 passed by Additional Sessions Judge, Court No. 16 Aligarh in Sessions Trial No. 533 of 2011 (State of U.P. Vs. Heera and others) arising out of Case Crime No. 352 of 2010, Under Sections 307 & 120-B IPC and Session Trial No. 534 of 2011 State Vs. Heera) arising out of Case Crime No. 476 of 2010, under Section 25 Arms Act, Police Station Atrauli, District Aligarh, whereby appellants Heera and Sheetu were convicted under Section 307/34 IPC and sentenced to ten years' rigorous imprisonment with fine of Rs. 20,000/- each; in default of payment of fine one year's additional rigorous imprisonment and appellants Jaganpal Shashtri, Yogesh and Rajendra Pal were convicted under Section 307/120-B IPC and sentenced to ten years' rigorous imprisonment with fine of Rs. 20,000/- each; in default of payment of fine one year's additional rigorous imprisonment. Appellant Heera was also convicted under Section 25 Arms Act with sentenced to one year's rigorous imprisonment and fine of Rs. 10,000/-; in default of payment of fine one month's additional rigorous imprisonment. All sentences shall run concurrently.
3. Appellant No. 2 Jagan Pal Shashtri in Criminal Appeal No. 3423 of 2013 has been died during pendency of the appeal, hence appeal filed in his respect was dismissed as abated vide order dated 14.12.2018 passed by this Court.
4. According to Prosecution case, FIR was lodged by Mukesh Kumar Sharma son of injured Keshav Dev Sharma against three unknown persons alleging that on 30.6.2010, his father was standing on the gate of his college and Mukesh Kumar Sharma (complainant) was discussing some matter with peon of Maharshi Dayanand Inter college, Atrauli, Aligarh, three persons reached on motorcycle and they shot fire at Keshav Dev Sharma (father of complainant), he received three injuries. According to injury report, following injuries were found on the body of injured Keshav Dev Sharma:
I. Lacerated wound 0.4 c.m. X 0.2 c.m. on nose and face caused by hard and blunt object and simple in nature.
II. Entry wound 0.1 c.m. x 0.1 c.m. on head, grievous in nature and caused by fire arm.
III. Entry wound 0.2 c. x 0.1 c.m. on left side of chest, grievous in nature and caused by fire-arm.
5. On the basis of written report (Ext. Ka-1) & chik FIR (Ext. Ka-2), entry was made in GD (Ext. Ka-3), injury report of injured (Ext. Ka-4), recovery of blood stained & plain earth (Ext. Ka-14), recovery of cartridge (Ex. Ka-13), recovery memo diary (Ext. Ka-15), site plan (Ext. Ka-9) and after investigation charge sheet (Ext.-Ka-5 & 6) was submitted under Sections 307, 120-B IPC & 25 Arms Act.
6. During investigation, accused Heera was arrested by the police on 19.8.2010 with one country-made pistol 315 bore with two cartridges 315 bore and diazepam. He confessed the offence and stated that this incident was done with the help of Sheetu, Yogesh in conspiracy of Jagan Pal Shashtri and Rajendra Pal @ Rajendra Singh.
7. After investigation, charge sheet was submitted against the accused/appellants. Charges were framed under Section 307/34 IPC againt Heera, Yogesh, Rajesh, Jaganpal and Sheetu and also under Section 25 Arms Act against Heera. They are not pleaded guilty and claimed for trial.
8. In order to prove its case, prosecution examined nine witnesses in all i.e. P.W. 1 Mukesh Kumar Sharma (complainant), P.W.2 Arvind Kumar Sharma, P.W.3 Keshav Dev Sharma (injured), P.W.4 constable Mahesh Singh, P.W.5 Dr. Naseem Alam, P.W.6 S.I. Chandra Shekhar Singh, P.W. 7 S.I. Rajendra Prasad, P.W.8 S.I. Jasbeer Singh, P.W.9 Dr. Mohd. Aslam.
9. After closure of the prosecution evidence statements of the accused/appellants under Section 313 Cr.P.C. were recorded. They specifically stated that they are innocent and have not committed the present offence. Some documents were produced in defence showing that there was a civil dispute between injured and accused-appellants and F.I.R. was also lodged against Meera and others.
10. After hearing learned counsel for the appellants as well as learned D.G.C. (criminal), the impugned judgement and order was passed. Hence this appeal.
11. Heard Sri Puneet Srivastava, learned counsel on behalf of appellant-Heera, Sri Vijay Shantam, learned counsel on behalf of appellants-Sheetu, Yogesh, Rajendra Pal @ Rajendra Singh and Sri P.K. Srivastava, learned A.G.A. for the State.
12. Learned counsel for the appellants submitted that appellants are not named in the FIR. No bullet was found on the body of injured. After one and half months of incident, the name of the appellants were disclosed after thought with due legal consultation. The main evidence against accused/appellants' according to prosecution case is extra judicial confession of accused Heera and Yogesh before one Viresh but Viresh was not examined.
13. Learned A.G.A. submitted that there is sufficient evidence against accused-appellants to convict them.
14. I have considered rival submissions made by the learned counsel for the appellants and learned A.G.A. for the State and gone through entire record.
15. P.W.1 Mukesh Kumar Sharma (complainant) is not the eye witness. The evidence about the name of accused is here-say stated by his father. He supported the prosecution case and stated that he had seen the incident. His father (injured) informed the first informant that Heera Sheetu and Chaman shot fire at him in conspiracy with Yogesh, Jagan Pal Shashtri, Rajendra Pal @ Rajendra Singh and Dr. Raju. Injured Keshav Dev Sharma (father of complainant) was the principal of Adarsh Sanshkrit Uchchtar Madhyamik Vidhylaya. Land of said school was intended to grab by accused Yogesh, Jagan Pal Shashtri and Rajendra Pal @ Rajendra Singh, his father objected hence they shot fire at him to kill.
16. P.W. 2 Arvind Kumar Sharma who was the assistant teacher on the said school and brother-in-law of injured Keshav Dev Sharma is also not the eye witness, he stated that on 30.6.2010 one person came at the shop of one Viresh who introduced his name as Heera, resident of village Bhawahan and stated before Viresh that he shot fire to Keshav Dev Sharma with the help of Chaman Khan and Sheetu @ Shatendra in conspiracy with Yogesh, Jagan Pal Shashtri and Rajendra Pal @ Rajendra Singh. He further stated that Yogesh, Jagan Pal Shashtri, Rajendra Pal @ Rajendra Singh and Dr. Raju had given rapacity of money to him due to which he had done this incident with the help of Sheetu and Chaman. Subsequently, after 15-16 days when accused Heera and Yogesh came before Viresh. He was present there, they requested that unfortunately, they have done this incident and wanted to get compromise.
17. P.W.3 injured Keshav Dev Sharma stated that Heera, Sheetu shot fire in conspiracy with other accused persons as also stated by P.W. 1.
18. P.W.4 Dr. Naseem Alam has proved the injury report and stated that on 30.6.2010 at 9.15, he has examined Deshav Dev Sharma and found three injuries as mentioned above.
19. P.W.9 Dr. Mohd. Aslam stated that 30.6.2010, he operated injured Keshav Dev Sharma.
20. P.W.6 Chandrashekhar Singh has proved the recovery of country-made pistol, cartridges and diazepam.
21. Other formal witness have proved the relevant documents of prosecution.
22. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against accused appellants beyond reasonable doubt or not. Word 'proved' is defined under Section 3 of Evidence Act as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either
believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
23. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
24. From the perusal of record, it transpires that P.W.3 Keshav Dev Sharma is the injured witness, and P.W.1 Mukesh Kumar Sharma and P.W.2 Arvind Kumar Sharma are the interested and inimical witnesses and are not eye witnesses. According to prosecution case, accused Heera Sheetu and Chaman shot fire in conspiracy with other accused persons. Charges were framed under Sections 307/34 IPC and also under Section 25 of Arms Act against Heera only.
25. From the perusal of record, it also transpires that there was no expert opinion about the use of fire arm, which was used by accused Heera in this incident. Hence, there is no evidence which could prove that recovered fire arm has been used by accused Heera in this crime and injury found on the body of injured was caused by Heera.
26. It is very clear from the record that there is sufficient evidence to prove beyond reasonable doubt that incident took place at the time, date and place mentioned in the F.I.R. The question for deciding to this Court is that whether the incident was done by accused Heera, Sheetu, Chaman in conspiracy with other accused persons or not.
27. It is admitted that F.I.R. was lodged against unknown persons.
28. According to prosecution case, P.W.2 has stated that at the shop of one Viresh, accused Heera confessed the offence as extra judicial confession. He also confessed that he had committed the said offence in conspiracy with other accused persons for rapacity of money. After 15-16 days of the incident accused Heera and Yogesh came before Viresh and requested for compromise.
29. On this issue, it is very relevant that Viresh who was main witness of extra judicial confession has not been examined in the trial court by prosecution. P.W.2 Arvind Kumar Sharma, the witness of extra judicial confession is not only the relative of P.W.1 Mukesh Kumar Sharma but he is also brother-in- law(sala) of injured P.W.3 Keshav Dev Sharma and teacher in the same school. In theses circumstances, only on the basis of extra judicial confession before P.W.2, it will not be proper to convict the appellants under Section 307 IPC, when enmity between the parties is admitted and some dispute was also pending between the parties in the court of S.D.M. Hence, the evidence of P.W.2 is not reliable and trustworthy.
30. The question is whether there is any legal evidence against the appellants on record other than extra judicial confession.
31. At page 13 and 14 of statement of P.W.1, he admitted that one case was pending between the parties in the Court of S.D.M. Viresh is brother-in-law (sala) and Arvind is maternal uncle (mama) of P.W.1. Hence, they are relatives, then question is that why they were not produced before the court for examination to prove the extra judicial confession made by accused Heera and Yogesh.
32. At page 16 of statement of P.W. 1, he admitted that at the time of incident one diary of accused was found, that was given to Chhote Lal and Krishn Kant. Chhote Lal was the peon and Krishn Kant was the student of said college, why they were not produced before the court to prove, this fact in support of prosecution case.
33. At page 16 of the statement of P.W. 1, he also admitted that case under Section 145 Cr.P.C. was also registered between the parties and page 18, he admitted that on this issue several times quarrel had taken place, hence enmity between the parties is admitted.
34. P.W. 1 was neither the teacher nor the peon of said college. The question arises, how he was present there at the time of incident when that day, was not working day of college, but was holiday. Hence, he was a chance witness and son of injured P.W.3, his presence is unnatural. Hence the evidence of
P.W.1 has to be scrutinized with full care and cautious.
35. In the cross-examination of P.W. 1, there are several major contradictions on this issue. He stated in the court what he has heard by his father P.W.3. Hence, the evidence of P.W. 1 will come within the purview of hearsay evidence and has no value at all.
36. It is very important to mention here that no identification parade has been conducted and for the first time in the court, P.W.3 identified accused Yogesh. PW.2 was also not the eye witness and also relative of injured P.W.3. Hence, statement of
P.W.2 has also no value in the eye of law.
37. In theses circumstances, only one witness P.W.3 is material witness as well as injured. No-body has named in the F.I.R., later on, first time he stated that Heera shot fire in conspiracy with other accused. Sheetu has not identified in the court. For the first time, after 6-7 days of the incident, he disclosed the name of Heera.
38. At page 11 of statement of P.W.3, he clearly admitted that several times discussions were done among Heera, Shetu and Yogesh before him (P.W.3). It is very clear that P.W.3 was known to Heera Sheetu and Yogesh before the incident. The question arises, why the name of appellants were not mentioned in the F.I.R? This fact also creates doubt.
39. At page 20 of the statement of P.W. 3, he clearly stated that motorcycle was used in the said crime but that was not collected and identified by the police. Hence, this evidence has also not been collected and proved before the trial court.
40. The question is whether P.W. 3 was in a position to give statement immediately after the incident or not. P.W.5 Dr. Naseem Alam at page 6 in his examination clearly stated that patient was not in serious condition, he discussed with patient and patient was not in unconscious position and he was clearly speaking when he examined him. Hence, theory of prosecution on this issue is doubtful that he was not in a position to give statement. It appears that after six days of incident after thought and on the basis of suspicion the names of accused- appellants were disclosed to the Investigating Officer in the statement recorded under Section 161 Cr.P.C. by the P.W.3.
41. P.W. 6 Investigating Officer Chandra Shekhar Singh has clearly stated that the statement of P.W. 3 was recorded on 6.7.2010 and he stated that he identified accused Heera. Hence, it was natural that the name of accused Heera has to be mentioned in the F.I.R. If the name of accused Heera was already known.
42. It appears that on the basis of extra judicial confessional statement of Heera before the police personnels, all accused persons were roped in this case only on the basis of suspicion.
43. According to Sections 25 & 26 of Evidence Act, confessional statement before police personnels is inadmissible in evidence. For ready reference Section 25 & 26 of Evidence Act are quoted below:-
25. Confession to police officer not to be proved.—No confession made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him.—No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
44. For ready reference Section 27 of Evidence Act is also quoted below:-
27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
45. It is very relevant to mention here that the recovery of fire-arm from the possession of accused Heera is admissible in evidence but it was done after a long time on 19.8.2010 and it was not sent for expert's opinion to establish that recovered fire-arm was used in this crime.
46. It is also relevant to mention here that on 24.6.2010 in subsequent statement of Rajendra Pal, name of Jagan Pal was surfaced. Hence, it is very clear that offence under Section 307 IPC was not proved beyond reasonable doubt against the accused-appellants. This Court found that there is no legal evidence against accused-appellants except confessional statement before the police personnels which is not admissible in evidence.
47. At page 19 of the statement of P.W. 6, he clearly accepted in his statement that there is no independent evidence about conspiracy against the accused-appellants. At page 24, he clearly admitted that he was not sure whether injured P.W.3 received injury caused by same country-made pistol, recovered from the possession of Heera or not.
48. From the perusal of record it also transpires that there are major contradictions between statements of P.W.1 and P.W.3 and improvement was done in their statements before the court. P.W. 3 injured witness clearly accepted that due to darkness, he was unable to identify the appellants and he identified accused Heera only.
49. For the foregoing discussions and in the above backdrop, this Court finds that the evidence of P.W.1, P.W.2 & P.W.3 are not wholly reliable but wholly unreliable on the issue of offence under Section 307 IPC against the accused-appellants, hence the impugned order dated 10.7.2013 passed by the Additional Sessions Judge, Court No. 16, Aligarh is liable to be set aside.
50. So far as offence related under Section 25 Arms Act against Heera is concerned, the evidence, about recovery of country-made pistol and cartridges collected by Government Servant/Public Servant is believable and there is no major contradictions on the statements of witnesses, hence offence under Section 25 Arms Act is proved beyond reasonable doubt and view taken by the court concerned is plausible view. Hence no interference is called for in this appeal and conviction and sentence under Section 25 Arms Act against Heera is confirmed and appeal against accused Heera under Section 25 Arms Act is liable to be dismissed.
51. Criminal Appeal No. 3398 of 2013 filed by accused- appellant Heera is partly allowed. He is acquitted under Sections 307/34 IPC and for the offence under Section 25 of Arms Act is dismissed.
52. Criminal Appeal No. 3301 of 2013 filed by accused- appellant Sheetu is allowed. He is acquitted under Section 307/34 IPC.
53. Criminal Appeal No. 3423 of 2013 filed by accused- appellant Jagan Pal Shashtri is allowed. He is acquitted under Sections 307/120-B IPC.
54. Criminal Appeal No. 3475 of 2013 filed by accused- appellant Rajendra Pal @ Rajendra Singh is allowed. He is acquitted under Sections 307/120-B IPC.
55. The accused-appellant Heera is languishing in jail. He shall be released forthwith after serving of the sentence awarded under Section 25 Arms Act, if he is not wanted in any other case.
56. Appellants are directed to file the bail bonds in compliance of Section 437-A Cr.P.C.
57. A copy of this judgment be also kept in connected Criminal Appeal Nos. 3301 of 2013, 3423 of 2013 and 3475 of 2013.
58. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court within one month. Office is directed to keep the compliance report on record.
Order Date:- 29.1.2019 A. Singh