Judgment reserved on 9.08.2018 Judgment delivered on 23.08.2018
Court No. 47
Case :- CRIMINAL APPEAL No. - 5102 of 2003 Appellant :- Jitendra & Others Respondent :- State Of U.P.
Counsel for Appellant :- Samit Gopal,Arvind Kumar Srivastava,G.S. Chaturvedi,Kapil Rathore,L.K.Pandey,P.C.Pandey,Praveen Kumar Srivastava,S.S. Rathore,Shashibind Kumar Srivasat,Sufia Saba,Umesh Vats Counsel for Respondent :- A.G.A.,S.R. Verma
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Chandra Tripathi,J.
(Delivered by Umesh Chandra Tripathi,J)
1. Heard Sri Arvind Kumar Srivastava along with Sri Praveen Kumar Srivastava for Jitendra and Upendra alias Takdeer, appellant nos. 1 and 4 and Sri Gopal Swaroop Chaturvedi, Senior Advocate assisted by Sri Samit Gopal for Kallu and Chhotey, appellant nos. 2 and 3 and Sri Anil Kumar Kushwaha, AGA for State of U.P. .
2. This appeal is directed against the judgment and order dated 1.10.2003/7.10.2003 passed by learned Addl. Sessions Judge, Court No. 5, Kanpur Dehat in S.T. No. 535 of 2002 (State Vs. Jitendra and others) and S.T. No. 259 of 2003 (State Vs. Upendra @ Takdeer) arising out of Case Crime No. 105 of 2000, whereby the accused- appellants Jitendra, Kallu, Chhotey and Upendra @ Takdeer were convicted and sentenced as follows: (a) Life imprisonment alongwith fine of Rs. 5000/- each under Section 302/34 Indian Penal Code (In short 'IPC') and in case of default in payment of fine, to undergo six months additional imprisonment and (b) Four years rigorous imprisonment alongwith fine of Rs. 1000/- each under Section 307/34 IPC and in case of default in payment of fine, to undergo two months additional imprisonment.
3. All these sentences were directed to run concurrently.
4. The brief facts of the prosecution case are that informant Shankar s/o Mitthu r/o Hathuma, Police Station Derapur, District Kanpur Dehat was ill. Due to illness, on 20.9.2000 at about 3:00 PM, he went to Rashdhan for treatment with his grand son Kailash and Rakesh and another person Dallan r/o Antapur by tractor trolley belonging to one Sarnam Singh. Sri Indal s/o Shiv Kumar r/o village Hathuma was driving the tractor. After being treated by doctor Ram Kishan, they departed to Hathuma from Rashdhan by the same tractor. At about 7:00 PM in the way, when they reached in Jarauli, in front of residence of Ramesh ex-Pradhan, accused-appellants Upendra @ Takdeer, Jitendra, Kallu and Chhotey having blunt object lathi and danda stopped their tractor and assaulted on informant Shankar and his grand-sons Kailash and Rakesh. Villagers of Jarauli intervened, rescued and asked them to go to their village Hathuma. Again, in village Amauli in front of residence of Jangbahadur, aforesaid accused-appellants stopped the tractor and exhorted them to kill. In between, accused Upendra @ Takdeer and Chhotey have dragged Kailash at ground from the tractor. Accused-appellant Chhotey caught hold Kailash and accused-appellant Upendra @ Takdeer made two fire on the head of Kailash by a country-made pistol (tamancha). Accused-appellants Jitendra and Kallu have also fired on Rakesh to kill him. Rakesh jumped from the tractor and fled away towards field. On hearing alarm and sound of fire Nathu Ram, Lalji and Chhotey Lal, all resident of village Hathuma and many other villagers of Village Amauli arrived on the spot, saw the occurrence and rescued the informant Shankar. Accused-appellants were identified in the light of tractor. Kailash died on the spot.
5. On the written information of informant Shankar, first information report at Case Crime No. 102 of 2000 at Police Station Derapur, District Kanpur Dehat was lodged on 21.9.2000 at 3:30 AM. Thereafter investigation of the case commenced and the Investigating Officer Sub Inspector Rana Pratap Singh went on the spot and prepared site plan, recovered blood stained, simple earth and one empty cartridge from the spot and prepared recovery memos of the same. On the instruction of Investigating Officer, inquest of the dead body of deceased Kailash was conducted and inquest report (panchayatnama) and related papers were prepared in the presence of inquest witnesses. Dead body of deceased Kailash was sent for post mortem examination to ascertain the real cause of death. Meanwhile on 21.9.2000 injured Rakesh presented an application before the District Magistrate, Kanpur Dehat praying for his security and to get his medical examination. It is mentioned in the application that his brother Kailash has been murdered on 20.9.2000 and he also sustained injuries. He was medically examined on 21.9.2000 at 2:45 PM at UHM Hospital, Kanpur by Dr. P.C. Gupta who noted the following injuries on his person:-
“(i) lacerated wound of 7 cm x . 5 cm x scalp deep on the top of skull. Clotted blood present.
(ii) Traumatic swelling of 2 cm x 2 cm on the front of right shoulder, just below the upper margin.”
All injuries were of simple in nature caused by blunt object and about one day old. According to Dr. P.C. Gupta injured Rakesh might have sustained injuries on 20.9.2000 at about 8:30 PM by hard and blunt object lathi and danda.
6. Post mortem of dead body of deceased Kailash was conducted by Dr R.K. Agarwal on 22.9.2000 at 1:20 PM who noted the following ante-mortem injuries on his person:-
“(i) Fire-arm wound of entry 1cm x 1 cm x brain cavity deep on right side of head, 1 cm lateral to right eye brow, margin inverted, charring and blackening present around the wound.
(ii) Wound of exit, 2 cm x 2 cm x brain cavity deep 5 cm above left ear margin everted, communicative to injury No. (i).
(iii) Fire arm wound of entry 1 cm x 1 cm x chest cavity deep, left side of chest 6 cm below to left nipple. Margin inverted, blackening, tattooing and charring present around the wound.
(iv) wound of exit 2 cm x 2 cm x chest cavity deep, margin everted left side of back, 3 cm below left scapula, communicating the injury No. (iii). ”
In the opinion of doctor, death of deceased Kailash was caused due to shock and hemorrhage as a result of fire-arm injury. Duration of death was about 1 ½ days.
7. After investigation, chargesheet has been submitted against appellants Jitendra, Kallu, Chhotey and Upendra @ Takdeer under Sections 307 and 302 IPC.
8. Learned Trial Court has framed charges under Sections 302/34 and 307 IPC against appellants Jitendra, Kallu, Chhotey and Upendra @ Takdeer and explained charges to them. They pleaded not guilty and claimed to be tried.
9. To substantiate charges against accused persons, prosecution has examined PW-1 Shankar, PW-2 Dr R.K. Agarwal, PW-3 Head Constable Chandra Babu Kamal, PW-4 Sub Inspector R.P. Sagar, PW-5 Rakesh, PW-6 Dr P.C. Gupta and PW-7 Sub Inspector Rana Pratap Singh.
10. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statements of the accused were recorded under Section 313 Code of Criminal Procedure, wherein, they claimed their innocence and pleaded that they have been falsely implicated in this case due to enmity. They further stated that witnesses are deposing against them due to enmity.
11. In defence DW-1 Ramesh and DW-2 Uma Shankar Katiyar were examined.
12. Upon detailed consideration of evidence on record, learned Trial Court found that the guilt of the accused/appellants for the offences punishable under Sections 302/34 and 307/34 IPC is proved beyond reasonable doubt and passed aforesaid order of conviction and sentence.
13. Learned counsel for the appellants contended that FIR has been lodged with inordinate delay without any plausible explanation. Presence of both the witnesses of fact on the spot is doubtful and they are not trustworthy. No independent witness, belonging to locality of the place of occurrence has been examined. Learned Trial Court has passed the impugned order of conviction without properly appreciating the evidence on record, which is not sustainable and liable to be set-aside.
14. Learned A.G.A., has contended that there is no any error or infirmity in the order of conviction passed by the learned Trial Court and as such the appeal is liable to be dismissed.
15. PW-1 informant Shankar stated in his examination-
in-chief before the court that on the day of occurrence, when they were returning to their home, at about 7:00 PM in village Jarauli in front of residence of ex-pradhan Ramesh, accused Upendra @ Takdeer, Jitendra, Kallua and Chhotey having blunt object lathi and danda in their hands dragged his grand-sons Kailash and Rakesh from the tractor and assaulted them. He attempted to rescue them, then accused slapped him also for 2-4 times. From this statement, it reveals that accused assaulted Kailash and Rakesh with blunt object lathi and danda. From the perusal of the post-mortem report of Kailash, it reveals that there was no any ante-mortem injury to deceased Kailash by blunt and hard object. Deceased has sustained only two fire arm injuries. Later on, in his cross- examination, he stated that accused assaulted to Kailash with kicks and fists. He further stated that accused were blowing lathi, accordingly, he stated that accused have assaulted his grand-sons Rakesh and Kailash with lathi and danda. In first information report, it is narrated that in front of residence of Ramesh, accused-appellants have assaulted to informant and his grand-sons Kailash and Rakesh. At that time, they were armed with blunt object lathi and danda. But informant Shankar had sustained no visible injury. Accordingly, he changed his statement before the court and stated that accused had slapped him for 3-4 times.
16. In the first information report and examination-in- chief, informant Shankar has not specifically narrated the disease suffered by him. Later on, in his cross- examination he stated that he was suffering from abdomen pain. From perusal of first information report and statement of examination-in-chief of informant Shankar, it reveals that he departed at about 3:00 PM from his residence to the doctor and reached there at about 4:00 PM. In his cross-examination, he stated that he stayed about three hours in the dispensary and departed from dispensary at sunset. He could not explained, whether there was any other patient present. PW-5 Rakesh has admitted in his cross-examination that when they reached to the doctor, there was no other patient. In their presence, patients were coming and going from the dispensary. Prosecution has not produced any evidence to show that doctor was busy and he could not attend the informant Shankar. Doctor has not prescribed any medicine to informant. Stay of informant and his companion for three hours at dispensary is not explained. Even if, it presumed that informant and other companion left dispensary at sunset, they might have reached at their residence in one hour much before 8:30 PM i.e the time of occurrence.
17. In the first information report, it is mentioned that at the time of second incident at 8:30 PM, on hearing alarm and sound of fire, witnesses Nathu Ram, Lalji and Chhotey Lal, all resident of village Hathuma came on the spot and saw the occurrence. PW-1 Shankar has admitted in his statement that his village Hathuma is about 2 mile away from the place of occurrence. As such, it was not possible for resident of Hathuma to hear the alarm or sound of fire and in no time, they reached on the spot and saw the occurrence. When this fact came into notice of PW-1 Shankar, in his cross-examination he made contrary statement with improvement that Nathu Ram, Lalji and Chhotey Lal were coming from the same path by which, he and his grandsons came. In the first information report, it is mentioned that accused Upendra @ Takdeer had made two fire on the head of deceased Kailash, due to which he sustained injuries and died on the spot. From the perusal of the post mortem report of deceased Kailash, it reveals that the deceased had sustained two fire-arm injury but not on head. He had received one fire arm injury on the head and second fire- arm injury on the chest. If informant Shankar was present on the spot, he must have seen the body and seats of injuries received by deceased Kailash. In such a situation, he would not have narrated in the first information report that Upendra @ Takdeer had made two fire on the head of deceased Kailash due to which he sustained injuries. It is not mentioned in the first information report that Dallan and Lahore fled away from Jarauli and Indal driver of tractor also fled away from Amauli. From this statement, it infers that Dallan, Lahore and Indal were not ready to depose in the court in favour of prosecution and accordingly, PW-1 Shankar had made false statement that Dallan, Lahore and Indal fled away from Jarauli and Amauli.
18. PW-1 Informant Shankar stated that his grand- son/PW-5 Rakesh had fled away from the spot at the time of occurrence. After that he met him after 2-3 days of the occurrence. PW-5 Rakesh also stated that accused have dragged his brother Kailash from the trolley and accused Upendra @ Takdeer had made two fire on him. He fled from the spot to save his life. In his examination-in-chief, he has not stated that from the spot, he went to Kanpur but in his cross-examination, he stated that he went at residence of Bacchan Lal resident of village Firozpur in the night of occurrence and reached there at about 9:30- 10:00 PM in the night. Thereafter, he stayed there and on the next day, he went to Kanpur with Bacchan Lal. He reached to Kanpur at about 12:00 Noon and submitted a report to District Magistrate, Kanpur about the occurrence. Later on, he was medically examined. From perusal of injury report, it reveals that he sustained two visible injury of simple and trifling in nature, which can be easily manufactured to show him witness of the fact. If PW-5 Rakesh was present on the spot at the time of occurrence, then his normal conduct would be that he should return at the place of occurrence, where his brother was lying in injured position. It is very natural that miscreants flee away from spot after committing the crime. In such a situation, normal conduct of Rakesh would be that he should return on the spot after some gap. In the report submitted by him to District Magistrate, he has not narrated the name of accused, who has committed the offence. In the first information report and statement of PW-1 Shankar and PW-5 Rakesh, it is narrated that accused Jitendra and Kallu had fired on Rakesh to kill him but he could not sustain any fire-arm injury. PW-5 Rakesh further stated that in the second incident which occurred in village Amauli in front of residence of Jang Bahadur. No villagers belonging to village Amauli came on the spot. In written information, on the basis of which, first information report was lodged, the time of second incident at village Jarauli is not mentioned. After the signature of informant Shankar, later on, it is mentioned that this occurrence has also taken place at 8:30 PM. This fact also creates doubt about the time of occurrence. Occurrence has taken place at 8:30 PM even though, the Investigating Officer had not interrogated any independent witness belonging to the locality of the place of occurrence.
19. From the above facts and circumstances of the case, we are of the considered view that not only the presence of these two witnesses i.e. PW-1 Shankar and PW-5 Rakesh on the spot is highly doubtful but they are also not reliable witnesses.
20. As per prosecution version, incident has taken place at 8:30 PM. FIR has been lodged after 7 hours of the occurrence. PW-1 Shankar has admitted in his cross- examination that he had scribe written information on the spot in front of residence of Jang Bahadur and went to the police station on a bicycle. He reached at the police station in about two hours. Accordingly, first information report was lodged with delay. From the statement of PW-
1 Shankar and PW-5 Rakesh, it appears that PW-1 Shankar was not in good condition due to illness, he was lying on cot in trolley. Even though, he had gone to the police station on a bicycle not by tractor trolley. This statement does not appear to be true. PW-1 Shankar has admitted this fact that he was in inimical terms with accused persons. There was civil dispute between him and Babu Ram, father of accused Chhotey, who had also lodged a case under Section 307 IPC against PW-1 Shanker and his grand-sons Kailash and Rakesh before this occurrence. Accordingly, there was enmity between informant and family members from one side and accused from other side. In such circumstances, the FIR might have been lodged by informant Shankar on the basis of suspicion, but only on the basis of suspicion, how the strong may be, no one could be convicted without evidence.
21. Learned Trial Court has passed the impugned order of conviction without considering all these facts and without properly appreciating the evidence on record, which is not sustainable.
22. Consequently, the appeal is allowed. Conviction and sentences of appellant Upendra @ Takdeer, Jitendra, Kallu and Chhotey under Sections 302/34 and 307/34 IPC are set aside and they are acquitted. Appellant Upendra @ Takdeer is in jail and he shall be released forthwith, if not detained in any other case.
Other appellants Jitendra, Kallu and Chhotey are are on bail, they need not surrender. Their bail bonds stand cancelled.
23. Let a certified copy of this judgment and order along with Lower Court record be sent back to the trial court for its intimation and necessary compliance.
Order Date :- 23.08.2018 Jaswant (U.C. Tripathi,J.) (R.S.R. (Maurya), J)