[RESERVED]
Court No. - 48
Case :- CRIMINAL APPEAL No. - 7237 of 2006 Appellant :- Lal Singh And Another Respondent :- State of U.P.
Counsel for Appellant :- Anil Srivastava,Akhilesh Kumar Pandey,Devesh Vikram,F. Mishra,Gaurav Kakkar,Pankaj Kumar Asthana Amicus,Pushpendra Singh,Sameer Garg,Santosh Kumar Tripathi,Sikandar Khan,U.C. Misra Counsel for Respondent :- Govt. Advocate
Hon'ble Anjani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.
Heard Shri Pankaj Kumar Asthana Amicus, for the appellant and learned AGA for the State.
This appeal has been filed against the judgment and order dated 01.11.2006 passed in Sessions Trial No. 526/1998, under section 302 IPC and Sessions Trial No. 665/1998, under section 25 of the Arms Act convicting and sentencing the appellants. Appellant No. 1, Lal Singh has been convicted under section 302 IPC read with section 34 IPC while, appellant no. 2, Kaluwa has been convicted under section 302 IPC. Both have been sentenced to life imprisonment with a fine of Rs. 5,000/- each and further three months imprisonment in default of payment of fine.
In so far as, appellant no. 1 is concerned, he is reported to be dead. The appeal on his behalf is therefore, dismissed as abated.
A first information report was lodged on 23.02.1998 at 20.50 pm at Police station- Aurangabad, District Bulandshahar, giving rise to Case Crime No. 526 of 1998, under section 302 IPC.
According to this first information report, lodged by Rajveer Singh, he along with his two sons Ganga Das and Ganga Charan was proceeding from Septan Gari to the house of Ganga Das in Nai Basti, when they come across Lal Singh and his son Kaluwa at Nai Basti turning. Lal Singh and Kaluwa shot Ganga Das stating that a lot of dispute over land was being raised. Ganga Das fell down. On hearing the shouts of the informant and the sound of the gun shot a number of people arrived on the spot and two accused fled into the fields. He was coming to the police station along with his injured son, who died enroute.
Subsequently, on 08.04.1998, after taking police remand of accused Kaluwa a country made pistol of 315 bore with an empty cartridge inside, was recovered on his pointing out. On account of this recovery, a case under section 25 Arms Act was also registered.
The prosecution has examined as many as five witnesses during trial.
PW-1 Rajveer Singh, the first informant and father of the deceased Ganga Das, has stated that there was a dispute with Lal Singh, his brother, regarding land. The accused had occupied the land of the first informant and had failed to vacate it despite repeated exhortation. On 23.03.1998, the first informant, along with his son Ganga Das and Ganga Charan, was proceeding from the ancestral house to the house in Nai Basti. When, they reached Nai Basti turning on Aurangabad Kaushr Road at about 8:00 pm, they found the accused standing there with tamancha's in hand. On seeing them the accused mentioning the land dispute between them, fired at Ganga Das, who was walking in front Ganga Das was hit by the shot fired by the Kaluwa and fell down. On his shouts a large number of people gathered on the spot. The injured was lifted and placed on a cot to be taken to the police station but on the way he died.
During his cross- examination he stated that Lal Singh is his real elder brother and Kaluwa is his nephew. The dispute between them is regarding ancestral land. The distance between Septan Gadi and Nai Basti is about 500 steps. The scribe of the report, Lala Narayn, is a shop keeper and known to him before. He lifted his injured son but neither his hands nor his clothes or the clothes of any other person were stained with blood. The injured was being taken to the police station on a cot, which had a wooden frame. This cot had blood stains on it. He has normal eye sight. The deceased was walking four steps in front of him and that he had clearly seen the accused. He was able to state that the shot fired by Kalua hit the deceased because as it was fired from a distance of only about ten steps. Lal Singh had fired after Kalua had shot the deceased. The other son Ganga Das was following him and was about 10 paces behind him. Sundar Lal and Tiarachar arrived on the spot. The site of occurrence is about 100 steps from Nayi Basti. The accused never fired on him. The cot was obtained from a saw mill situated at a distance of 50 steps from the site of occurrence and is owned by a Muslim, whose name he does not know.
When he lifted his son, he was still breathing. Vinod and another boy whose, name he does not know helped him put his injured son on the cot and at that very moment, he died. The site of occurrence is situated at a distance of one furlong from the Police station. He does not know the length of a furlong. The distance from the site of occurrence to the police station was covered on foot and took about 45 minutes. The accused had emerged from the adjoining fields and were about ten steps away from him when they fired. The fields adjoining the site of occurrence belong to Ramji Lal and Ahsaan. He denied the suggestion that his son was killed by other persons and that he falsely implicated his brother and nephew on account of the existing land dispute between them.
PW-2 Ganga Charan, the other son of the first informant and brother of the deceased in his examination in chief stated that he is unaware as to how long ago his brother was killed. He is also unaware as to whether the accused had shot his brother. He has admitted that a land dispute exists between the parties.
This witness was declared was hostile and was cross-examined by the prosecution. He has denied that he, in collusion with the accused, was giving a false statement. He lastly, stated that his father had told him that in case, the accused were named in the murder case, the land dispute between them would get solved.
PW-3 Constable 616, Brahm Singh, has proved the chik FIR and the G.D. entries. In cross -examination, he has expressed ignorance as to the manner in which the deceased was brought to the police station.
PW-4, Doctor Omkar Singh Tomar has proved the post-mortem report, according to which there was a gun shot wound on the body of the deceased being 1cm x 2cm x cavity deep, 6cm above the left nipple. An area of 5cm had numerous scratches. A metallic bullet was found towards the inside, under the left scapula. The stomach and small intestine of the deceased was found empty. He opined that the deceased could have died between 8 and 8:30 pm on 23.03.1998 and that the anti-mortem injury was enough to cause death.
During cross - examination he stated that none of bones of the deceased were broken. His lungs and blood vessels were ruptured.
PW-5 Sub-Inspector, D.P. Sharma is the Investigating Officer. The first information report were lodged in his presence and he started investigation the same day. He has also identified the signatures on the panchanama and other documents like chalan nash etc and sample seals. He has also proved the site plan and the memos prepared regarding the blood stained soil and plain soil removed from the site of occurrence. He arrested the accused on 25.03.1998. He also recorded the statement of the various witnesses. He recorded the statement of Kaluwa in District Jail, Bulandsahar on 05.04.1998 and on his information and after taking him on police remand, the country made pistol was recovered on 08.04.1998 on his pointing out.
During cross-examination he stated that the case under section 25 of the Arms Act was investigated by S.I. Ram Vilas Verma. He had not seen any blood stains on the hands of either the first informant Rajveer or Ganga Charan. The dead body was brought to the police station on a cot. He is unaware about the presence of any blood stains on the cot.
He has also stated that the first informant Rajveer was not made a witness in the Panchnama as he was weeping. He denied the suggestion that the first information was lodged of his advice. The site of occurrence is situated at a distance of 1km from the police station. There is no abadi present for a distance on 1/2 a furlong from the site of occurrence. A graveyard and agricultural fields adjoin the site of occurrence. He never met any person who claimed to be an eye witness, apart from Ganga Charan and Rajveer.
PW-6 S.I. Ram Vilas, is the Investigating Officer of the case, under section 25 of the Arms Act. His testimony is not relevant for the purpose of this appeal as the appellants were acquitted of the charges under this section.
The only other witness produced in CW1 Rakesh Kumar who has identified the signature and hand writing of the moharir, Constable Dharveer Singh, who prepared the chik FIR of Crime No. 27 of 1998 , under section 25 of the Arms Act. He was required to identify this signature as constable Dharveer Singh is dead.
The statement of the accused were recorded under section 313 Cr.P.C. They have denied the charges against them and stated that they had no occasion or motive to commit the crime. Ganga Das was killed by some anti social elements and they have been falsely implicated for the same.
The contention of learned counsel, the amicus curie, appearing for appellant no. 2 (the appellant no. 1 being dead) is that the conviction has been recorded on the sole testimony of the first informant, the father of the deceased,and a highly interested witness.
He has next submitted that the incident, as per the first information report, took place at 8:00 pm at night in a remote place, far removed from abadi. There is absolutely no source of light disclosed by the prosecution. Under the circumstances, the charges against the accused have not been proved beyond reasonable doubt. The order of conviction deserves to be set-aside.
In rebuttal, contention of learned AGA is that the incident took place at 8:00 pm and a very prompt FIR has been lodged at 8:50 pm. Therefore, there is no chance of any planning to falsely implicate anyone. Moreover, the weapon of assault has been recovered on the pointing out of the appellant.
However, on a query of the court, it has been admitted that the recovered weapon was never sent for forensic examination.
Upon careful appreciation of the entire evidence on record, we find that there is only the sole testimony of first informant, the father of the deceased against the appellant. The other eye witness, the brother of the deceased has denied having seen the appellant shooting his brother and has been declared hostile.
We also find substance in the argument of counsel for the appellant that the prosecution case is one of enmity between the accused and the first informant and yet the first informant in his cross examination admits that no shot was fired at him. The enmity being with the first informant, Rajveer and yet appellants made no attempt on his life, renders the alleged motive extremely doubtful. Although the prosecution case is one of direct evidence and the question of motive is not very relevant but the same may be relevant insofar as the alleged false implication of the accused is concerned. Admittedly, the incident took place at about 8:00 pm in the month of March at which time darkness must have set-in completely. The prosecution has not set up any case of any source of light on the site of occurrence. Besides in his cross-examination, PW-1 stated that the accused emerged from the fields and after shooting the deceased, they fled through the fields. In these circumstances and in total absence of any source of light, the chances of the shooter having been identified, are slim. In any case the circumstances are enough to cast a serious doubt upon the prosecution version.
Moreover, the only evidence against the appellant is that of Rajveer who is a highly interested witness. Although Rajveer has stated that a number of people had gathered on the spot on hearing his cries and the sound of the shot, no such independent witness has been produced by the prosecution. The site of occurrence is a desolate spot, at a substantial distance from any abadi. More importantly, the brother of the deceased and the son of the first informant, the second alleged eye witness, has turned hostile and has not supported the prosecution case. The statement made by him during his cross-examination also supports the defense version of false implication by Rajveer in order to settle the land dispute between him and his brother Lal Singh, appellant No. 1 (since deceased) In view of the foregoing we are of the considered opinion that the prosecution has failed to prove the case against Kalwa, appellant No. 2 beyond reasonable doubt. Therefore, giving him the benefit of doubt, we allow the appeal and acquit him. He is entitled to be released forthwith.
Let a copy of the judgment be sent to the Court below along with the lower Court record, forthwith, for necessary compliance.
Order Date :- 29.10.2021 Neetu/Priyanka