Court No. - 1
Judgment Reserved on 14.11.2018 Judgment Delivered on 20.12.2018
Case :- CRIMINAL APPEAL No. - 2285 of 2014 Appellant :- Manveer And 2 Others Respondent :- State Of U.P.
Counsel for Appellant :- Sushil Kumar Counsel for Respondent :- Govt. Advocate with Case :- CRIMINAL APPEAL No. - 2214 of 2014 Appellant :- Ompal Respondent :- State Of U.P.
Counsel for Appellant :- A.P. Tewari,R.S. Tripathi,Ram Babu Sharma,Sushil Kumar Counsel for Respondent :- Govt. Advocate
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
1. Heard Sri Ram Babu Sharma, learned counsel for the appellant appearing in the present appeal and Sri Sushil Kumar, learned counsel for the appellants appearing in the present appeal as well as in the connected appeal and Sri Jai Narain, learned A.G.A. for the State.
2. This Criminal Appeal No. 2285 of 2014 has been preferred against the judgment and order dated 29.04.2014 passed by Additional District and Session Judge, Court No.1, Badaun in Session Trial No. 1082 of 2011 (State Vs. Manveer and others) arising out of Crime No. 548 of 2011, under Sections 302 r/w 34 I.P.C. and 307 r/w 34 I.P.C., Police Station Rajpura, District Badaun, by which the appellants namely, Manveer, Veerpal and Amlesh have been held guilty and under Sections 302 r/w 34 I.P.C. have been awarded life imprisonment, fine of Rs. 10000/- and in default of payment of fine one year additional imprisonment each and under Sections 307 r/w 34 I.P.C., 7 years rigorous imprisonment, fine of Rs. 10000/-, each and in default of fine each of them shall further undergo one year additional imprisonment and both the sentences were directed to run concurrently.
3. The other Appeal No. 2214 of 2014 has been preferred against the same judgment by co-accused/appellant Ompal and has been held guilty under the same sections and has been awarded with the same punishments.
4. Since both the appeals arise out of same common judgment, they have been decided together.
5. According to the first information report, the prosecution case is that the brother of the first informant Naresh was surrounded by the appellants Manveer son of Niranjan, Ompal son of Shankar, Veerpal son of Kishanlal and Amlesh son of Puran armed with illegal weapons on account of quarrel between them for taking water from a tap and had started abusing him and in the meantime, informant's father also reached there who told them not to abuse and at this Manveer fired upon his father Satyaram Singh by his pistol which hit the chest of his father and the other fire was made by co-accused/appellant Ompal which hit the head of his brother Naresh. The father of the informant died on the spot. This incident was witnessed by Prempal son of Bhimsen and Dangali son of Lakhpati.
6. The first informant had prepared written report of this occurrence on 16.06.2011 and had taken the same to the Police Station Rajpura, District Badaun, on the same day i.e. 16.06.2011 and lodged a report at 21:15 hours which was registered as Case Crime No. 548 of 2011, under Sections 307 and 302 I.P.C. against all the appellants named above.
7. On the basis of the said written report chick F.I.R. (Ext. Ka-12) was prepared and the case was entered in G.D. report no. 33, at 21:15 hours, dated 16.06.2011 (Ext.Ka-13) and investigation was assigned to S.H.O. Rajpura, Amarnath Verma (PW-10), who got the inquest report (Ext. Ka-6) prepared by S.I. Sambhu Saran and thereafter at the instance of informant Mahendra Pal Singh made inspection of the place of incident, and prepared the site plan (Ext. Ka-16). He also prepared the recovery memo of plain soil as well as blood stained soil which is (Ext. Ka-17) and also recorded statements of witnesses of panchayatnama, namely, Rohtash, Prempal, Rambabu, Vijay Singh and Vidyaram. He also received on 17.07.2011, the medical report of the injured Naresh and thereafter, he made raids at various places for arresting of the appellants who could not be found. Later on, 21.06.2011, he alongwith other teammates arrested the accused/appellant Manveer son of Niranjan at 19:30 hours when they were going in search of wanted criminals from Rajpura to T.C.L., near Diuramod Tiraha and recovered from him a countrymade pistol of 12 bore as well as 2 cartridges of 12 bores. The other accused arrested was Ompal, from whom aldo one countrymade pistol of 12 bore and 2 cartridges of 12 bores were also recovered. Both the accused confessed that they have used the said weapons in committing the murder of deceased Satyaram. The third person arrested was accused Veerpal while fourth one was Amlesh who did not have any weapon. All the co-accused were arrested, who were wanted in Crime No. 548 of 2011, under Sections 302, 307 I.P.C. Accused Manveer and Ompal were also arrested u/s 25 of Arms Act and the with respect to the recovery of the aforesaid used weapons (Ext. Ka-18) which was also prepared and the other site plan (Ext. Ka- 19) was also prepared with respect to the place where recovery of the weapons was made. After having completed the investigation charge sheet (Ext. Ka-20) was submitted against all the accused/appellants on 02.08.2011 and a supplementary report was also given which related to x-ray plates. The another site plan relating to Crime No. 562 of 2011 and Crime No. 563 of 2011 both pertaining to Section 25 of Arms Act, which related to accused Manveer and Ompal respectively were also prepared, which is Ext. Ka-21. The prosecution sanctions from District Magistrate were also taken which are Ext. Ka-24 and Ext. Ka-25 resepectively. The countrymade pistol which was recovered from accused Ompal was material Ext. Ka-2 and the cartridges were material Ext. 3 and Ext.4, similarly the countrymade pistol recovered from accused Manveer was material Ext. 6 while the cartridges recovered were material Ext. 7 and 8. The other S.I. Shambhu Dayal who also partly conducted the investigation in this case (PW-7), after having prepared the inquest report, further prepared photonash, sample seal, challan nash and Form No. 33, letter sent to C.M.O., letter sent to R.I. which are Ext. Ka-5, 6, 7, 8, 9 and 10 respectively.
8. Dr. S. P. Singh (PW-5) had examined injuries of Naresh son of Satyaram on 16.06.2011 at 9:55 P.M. and found following injuries on his person;
“ 1. lacerated entry (size 1.2 cm x 0.8 cm) gun shot wound, at the middle of forehead just 1.5 cm above root of nose. Slight black tatooing present. Slight bleeding present. No exit wound seen. Injury is kept under observation (K.U.O.).
2. Lacerated injury gun shot wound 1.0 cm x 0.3 cm at the root of nose, midway between both eye-brows. Blackening tatooing present, fresh bleeding present. This injury also kept under observation KUO.
3. A lacerated injury gun shot entry wound 0.45 cm x 0.3 cm on the lateral (left side) of nose just 1.5 cm below injury no.2, slight blackening tattooing present. Very mild fresh bleeding present. No exit wound present, this injury also kept under observation.”
9. All these injuries were caused by gun shot and were referred for x- ray of skull with nose and they were found to be grievous in nature and duration was fresh.
10. Dr. Harpal Singh, radiologist (PW-6) had conducted x-ray of the said injured and found fracture of nasal bone (This report is Ext. Ka-3). This witness has also stated that Dr. R.K. Singh had conducted postmortem of the deceased Satyaram Singh on 17.06.2011 at 3:30 P.M., who had already died. The said doctor had found following anti-mortem injuries on the person of deceased during postmortem;
1. lacerated wound 1 cm x 1 cm on the left side of the forehead, 6 cm above left eye-brow.
2. fire wound of entry 1 cm x 1 cm through and through on the left side of the chest 3 cm away from left nipple medially surrounded by blackening and pin pointed by multiple abrasions in an area of 9 cm x 9 cm.
3. fire arm wound of exit 1 cm x1 cm into through and through on the back of left side chest 12 cm below from left scapula.
4. Contused Traumatic Swelling 16 cm x 5 cm on the back of right forearm just above right wrist.
11. The cause of death has been mentioned to be shock and hemorrhage as a result of anti-mortem gun shot (fire arm) injuries (Ext. Ka-4).
12. After the submission of charge sheet the Learned Sessions Judge framed charges under Section 302 r/w 34 I.P.C. and 307 r/w 34 I.P.C. on 05.01.2012 against all the four appellants, on account of which they pleaded not guilty and claimed to be tried. In order to prove the case, the prosecution had examined the informant Mahendra Pal as PW-1, injured Naresh as PW-2, eye-witness Prempal as PW-3, witness Dangali as PW-4, Dr. S.P. Singh as PW- 5, Dr. Harpal Singh as PW-06, S.I. Sambhu Dayal as PW-7, Dr. Sandeep Kumar Gautam as PW-8, Constable Ramveer Singh as PW-09, S.H.O. Amarnath Verma as PW-10.
13. Thereafter, the prosecution closed its evidence and the statement of accused/appellants were recorded u/s 313 Cr.P.C. in which all the appellants have denied the truthfulness of the evidence produced by the prosecution side and have further stated that because of the Gram Pradhan this false case has been registered against them. Although, no witness has been examined in defence nor any documentary evidence has been filed in support of their defence.
14. After having considered the entire evidence on record, the trial court has convicted the accused/appellants under the aforementioned sections and has awarded them punishment mentioned above.
15. Learned counsel for the appellants has argued that the presence of the informant on the place of the incident is doubtful, therefore, he has been erroneously treated to be an eye-witness by the trial court, he further argued that the motive to cause the such incident has not been established by the prosecution side. The statements of PW-1 and PW-2 do not corroborate the version given in the F.I.R. The version of prosecution has been improved subsequently by introducing injuries caused by lathi as well. It was further argued that in case under Section 25 of the Arms Act, both the accused Manveer and Ompal have been acquitted.
16. On the other hand, learned A.G.A. has vehemently argued that there is no infirmity in the impugned judgment as the same has been passed on the basis of sufficient incriminating and credible evidence found by the trial Court on record, although the other eye- witnesses have turned hostile but PW-1 has fully supported the prosecution case and his statement is also in consonance with the injuries memo and the injuries shown in the postmortem report.
17. Before proceeding to examine the veracity of the statements of PW-1 and other witness and also as to whether the learned trial court has rightly believed the version of the prosecution particularly, the statement of PW-1 and other witnesses and has arrived at the right conclusion or not, it would be essential to reproduce here the relevant portions of the statement given by the said witnesses.
18. PW-1 in examination-in-chief has stated in support of the F.I.R. version that all the appellants had enmity with the complainant side because due to taking water from a tap. About one year and a month back at about 6 P.M. his brother Naresh was gheraoud in front of the house of the Ompal being armed with illegal weapons and started abusing him. In the meantime, his father arrived there and told them not to abuse, at this Manveer had fired by his pistol upon his father with intention to kill which hit his father's chest and the second fire was made by the appellant Ompal upon his brother Naresh with intention to kill him which also hit his head and in this incident his father died on the spot. At the time of incident, he had come on the spot and had seen the entire occurrence, besides him Prempal (PW-3) and Dangali (PW-4) had also come on the spot who had also seen the entire incident. He had written a report about this incident in his own hand writing which is Ext. Ka-1 and had given the same at Police Station concerned. His brother was sent to Government Hospital, Rajpura for treatment where looking to his serious condition, he was referred to Badaun where he remained under treatment for 7 and 8 days and after getting him admitted, the next day he reached his village where his father and brother had received fire arm injury, he had shown that place to Investigating Officer who had prepared the site plan.
19. In cross-examination this witness has stated that the tap regarding which there used to be quarrel between the two sides was belonging to the State, which was installed in front of the house of Naresh who was brother of the informant, he could not tell as to how long back the said tap was installed there, his house is not in front of the house of Naresh rather the house of Naresh was situated by the side of the house of his brother Mahesh and there is one kharanja road lying between the house of Naresh and Mahesh. The said tap was installed in the chowk of his brother Naresh. The house of accused/appellant Ompal is adjacent to the house of Naresh. The house of accused/appellant Manveer is situated about half kilometers away from the said tap, the house of appellant Veerpal is about 7 to 8 steps away from the said tap, the house of appellant Amlesh is situated towards South of the said tap, the door of which opens on kharanja and the house of appellant Amlesh is situated about 20 steps away from the said tap. The quarrel which had happened between the two sides took place 8 days prior to the present occurrence. Further, he has stated that he does not know as to when the police had come in the village, when the police came in the village he had gone to the Police Station with his injured brother Naresh and thereafter two policemen had taken his injured brother to the hospital. Before the police reached at the place of the occurrence he had already gone to police station. The medical examination of his injured brother was conducted in Rajpura but because his condition was very serious, therefore, he was referred to Badaun where he was taken in a private vehicle. Till 12 P.M. in the night on 17.06.2011, his brother remained hospitalized in District Hospital, Badaun and he himself had returned to his village leaving his uncle Chandrakesh with his brother Naresh. Further he has stated that the Investigating Officer had met him who had asked him as to who had made fire upon his father then he had narrated the entire facts. The report was written by him at his own house and the same was given at the police station 1:00 after the injury was caused to his father. After getting hit by the said fire arm his father was standing by his side taking the support of the wall of Mahesh and Veerpal. He has denied that he was not present at the time of incident and that after having consulted others, he was for the first time saying that he was present at the place of occurrence when the incident happened. He had seen the entire incident when he was standing in front of the house of Naresh and besides him Prempal, Dangali, Raidas and Kalyan were also there. Further he has stated that he had reached at the place of incident, after hearing the noise as he had come out of his house after hearing hurls of abuse, at that time his father was going to the house of his brother Mahesh and he had hardly reached by the side of wall of Mahesh and Veerpal and Naresh was little ahead of him, that Manveer made fire upon his father who was standing towards the house of Ompal. At that time, his father was only 3-4 steps away from appellant Manveer who was having a pistol, he had made fire from his house. Ompal had also a countrymade pistol but the specification of the same, he could not tell. He stated that in his presence only two fires were made, one hit his brother and the other hit is father. Further he had stated that appellants Amlesh and Veerpal had beaten his father with danda by which he meant lathi although he had not written about this fact in his report but he does recollect that he had stated about this fact to the Investigating Officer and if the same was not written in the statement he could not tell its reason and he had denied that it was wrong to say that after having seen the injuries of the deceased he was stating that the deceased was beaten by lathi and danda as well for the first time.
20. Learned counsel for the appellant had pointed out towards these statements and stated that there were specific contradictions with respect to the site plan in which by letter "C" is shown the place from where the accused/appellants had fired upon Satyaram (deceased) who was standing at place shown by letter "A" and by letter "B" he had shown the place from where the accused had fired upon his brother Naresh and by letter "D" he had shown the place from where the witnesses had seen the occurrence. The distance between "C" to "A" has been shown to be 4 steps and distance between the "C" to "D" is shown to be 5 steps, therefore, as per the said site plan the appellants are shown to have fired upon deceased as well as at the injured from a very close range of hardly 4 to 5 steps distance, although the distance of the place from where the witnesses had seen the occurrence has not been mentioned in the said site plan but letter "D" where witnesses are said to be standing has been shown in front of the house of injured Naresh.
21. It is argued that the statement of PW-1 is contradictory to the said site plan because in site plan the place from where PW-1 is stated to have seen the incident is shown in front of the house of Naresh while he in his statement has stated that he was standing at the time of the incident at in front of the house of accused Ompal.
22. Further it was argued that only one fire each is stated to have been made upon the injured and deceased while injury memo and the postmortem report discloses that three injuries were caused to the injured while two injuries to the deceased which were not possible to have been caused by single fire.
23. Further it is contended that in F.I.R. the only weapon by which the assault is alleged to have been made, is countrymade pistols while in postmortem the injuries are found on the person of the deceased to be of lathi and danda as well and in order to meet the said injuries subsequently an improvement in his statement has been made by saying that the deceased was also beaten with the aid of lathi and danda, hence, the statement of this witness cannot be trusted and he does not appear to be present at the place of occurrence at the time of incident.
24. Further it is argued that the other eye-witnessses i.e. PW-2 Naresh, PW-3 Prempal, PW-4 Dangali have all turned hostile right from the beginning, hence the sole testimony of PW-1 has been relied upon by the learned trial court and has held the accused/appellants guilty erroneously.
25. We find considerable substance in the argument of learned counsel for the appellant because it is absolutely clear from the injury memo of the injured Naresh who has turned hostile as well as from the injuries found to have been caused to the deceased, the father of the informant that both these persons had received more than one injuries while as per the solitary prosecution witness PW-1 only one gun shot each was fired upon them, therefore, the corroboration is not found of the said version from the medical report as well as postmortem report, this creates serious doubt in our mind regarding the presence of the PW-1 at the place of occurrence when the incident happened. Although conviction is possible to be done on solitary statement if that is found to be trustworthy because it is not quantity which matters rather the quality matters but after having assessed the statement of PW-1, we find that his testimony is erroneous not only on account of injuries which are alleged to have been caused to the deceased and to the injured and the manner in which they have been caused and the number in which they are found to be there on the persons of the deceased and injured but also with respect to the place from where he is stated to have seen the incident because his statement is also not in consonance with the site plan made by the Investigating Officer. It is also found to be true that there is no version of the deceased and the injured having been beaten by lathi and danda but in the testimony he has improved his version also by adding lathi and danda to have been also used for the commission of this offence, hence we find that the trial has committed error in holding accused/appellants guilty on the basis of sole testimony of PW-1, despite the fact that the trial court itself has passed acquittal order in respect to the cases registered under 25 Arms Act against the two appellants, further because that proves that the weapon which were alleged to have been recovered from the two appellants were also disbelieved to have been recovered from them by the learned trial court.
26. In totality of the circumstances, we find that the impugned judgment deserves to be set aside and all the appellants need to be acquitted. Hence, the impugned judgment and order dated 29.04.2014 passed by Additional District and Session Judge, Court No.1, Badaun in the aforesaid case is hereby set aside. Both the appeal stand allowed.
27. The appellants are stated to be in jail, they shall be released forthwith, unless otherwise wanted in any other criminal case.
28. It is further directed that the accused appellants shall furnish bail bonds with sureties to the satisfaction of the Court concerned in terms of the provision of Section 437-A of Cr.P.C.
29. Let the lower court record be transmitted to the trial Court concerned for its information and compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order date: 20.12.2018 Ashok Gupta