Court No. - 40
Case :- CRIMINAL APPEAL No. - 5646 of 2016 Appellant :- Tabrej Alias Nirhu Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh Maruya Counsel for Respondent :- G.A.
And Case :- CRIMINAL APPEAL No. - 5645 of 2016 Appellant :- Ashad Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh Maruya,Rajiv Lochan Shukla Counsel for Respondent :- G.A.
And Case :- CRIMINAL APPEAL No. - 2720 of 2017 Appellant :- Mohammad Haroon Alias Pappu Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh Maruya,Rajiv Lochan Shukla Counsel for Respondent :- G.A.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Bachchoo Lal,J.
The three appellants before us Mohammad Haroon alias Pappu, Tabrej @ Nirhu and Ashad were charged for the offences under Sections 382, 411, 302/34 IPC read with Section 3/4 Prevention of Damage to Public Property Act along with Section 4/10 Forest Conservation Act, and Sections 25/27 as well as Section 3/25 of the Arms Act. Convicted and sentenced by the trial Court in S.T. No.441/2011 under the substantive provisions of IPC, Prevention of Damage to Public Property Act and U.P. Forest Conservation Act and the appellant Haroon also convicted and sentenced in S.T. No.442/2011 under Section 25 and 27 of the Arms Act, the appellants are before us in these appeals.
The allegation against them was principally of having felled trees belonging to the State and committing theft thereof and while being chased for being apprehended, they shot the deceased Nityanand Singh, a police constable. For the said offences they have been awarded life imprisonment coupled with Rs.5,000/- fine each and in default thereof to undergo six months imprisonment, for the offence under Section 382 IPC, they have been awarded three years imprisonment with Rs.1000/- fine and in default thereof to undergo one month imprisonment, for the offence under Section 394, they have been awarded a sentence of ten years with Rs.2000/- fine and in default thereof to undergo two months imprisonment, similarly for the offence under Section 397 IPC, they have been awarded seven years imprisonment. For the offence under Section 411 IPC, they have been awarded two years imprisonment and for the offence under Section 3/4 of the Prevention of Damage to Public Property Act, they have been awarded six month's imprisonment and Rs.1000/- fine in default thereof, they are to undergo one month's further imprisonment. For the offence under Section 4/10 of the Indian Forest Conservation Act, they have been awarded two month's imprisonment each. For the offence under Section 27 Arms Act, the appellant Haroon @ Pappu has been awarded three years imprisonment with fine of Rs.500/- and in default thereof, to undergo one month's further imprisonment. For the offence under Section 25 Arms Act, he has been awarded three years imprisonment with Rs.500/- fine and in default thereof, to undergo one month's imprisonment.
The appellants having been so convicted and sentenced have come up before this court questioning the correctness of the impugned judgment dated 06.10.2016 rendered by the learned Sessions Judge Azamgarh in Session Trial No.441 of 2011 arising out of Case Crime No.110 of 2011.
The incident as narrated in the FIR is that the first informant Pankaj Kumar Singh, who was the then Station House Officer of Police Station Gambheerpur District Azamgarh, received information that the appellants who are armed with unlicensed weapons, have logged some trees belonging to the State and the same is sought to be transported on a vehicle. If they are apprehended there is every likelihood of their being caught and accordingly on such information, the first informant Pankaj Kumar Singh immediately dispatched two constables Ashwini Kumar Rai and Bans Narain Singh deputed on Apache Mobile Police Services to Tekmalpur village with instructions to barricade passage at a strategic point on the road so that the miscreants may not flee away as they are likely to head towards Bindra Bazaar and Kotila.
Simultaneously the informant along with constables Kamruddin and Rajesh Kumar as well as the deceased Nityanand Singh also departed from the police station on their official police jeep with one Ramayan Yadav as constable driver thereon. They departed at about 1:35 a.m. on 18th February, 2011. The incident is of the night of 17/18th February, 2011. It is narrated in the FIR that when they proceeded via Bindra Bazar to the place of incident where the logging had taken place, the informant saw that the three persons near a white pickup van who were closing the rear lid (Dala) of the vehicle that was loaded with wood. It is further narrated that all the police personnel saw these three appellants and also recognized them by name who were all residents of village Mohammadpur within the same police station. It is further narrated that upon seeing the police party, the appellants immediately boarded the vehicle and driving it rashly and hastly fled away towards Mehnagar. The informant as well as the other police personnel with the aid of head lamps of their official police vehicle, saw the said vehicle fleeing away from behind and also noted the registration number of the vehicle as UP-50-T-2352. They chased the vehicle but the vehicle moved faster and turned towards Visaham. While chasing when the police party reached Visaham village, then they were informed by constable Ashwani Kumar Rai through the wireless handset that a white coloured pickup van on which three people were sitting in front, has moved very fast and has taken a U-turn, the registration number whereof was the same as referred to above. On this information having been received by, the police party headed by the informant stationed his official jeep besides the road and then they saw the vehicle of the appellants approaching fast towards them. They made an effort to stop the vehicle on which the driver of the said vehicle slowed down its speed and with the aid of a torch light the informant and the other police personnel clearly saw that the driving seat was occupied by the appellant Ashad, the appellant Haroon alias Pappu was sitting in the middle and Tabrez @ Nirhu was sitting on the other end of the cabin. The police party approached the said offending vehicle in order to apprehend them, but the vehicle moved out very fast towards Visaham trying to flee way. At this, constable Nityanand Singh showing extreme courage and valour and putting his life into danger, rushed towards the said fleeing vehicle, and catching hold of the steering and the door of the cabin of the vehicle, hung himself in his effort to stop the same. On this, Mohammad Haroon who was sitting in between the two other miscreants, drew out his firearm on the exhortation of the other two, and fired two shots at constable Nityanand. Nityanand was injured and he fell down. Thereupon the miscreants fled away on the vehicle. Since Nityanand was in a serious injured state, the informant loaded him on the official jeep at about 2:10 a.m. and took him to a hospital named Lifeline on the out skirts of Azamgarh and reached there at about 3:00 a.m. The attending doctor at the hospital declared Nityanand to be dead whereupon the information was given to the higher officials and the FIR was lodged thereafter, the timing whereof is mentioned as 5:20 a.m.
The distance of the place of incident to the Police Station Gambheerpur is eight kilometers. It may also be noted at this juncture that the place where the Sheesham Tree is alleged to have been felled is within the circle of Police Station Gambheerpur but the place where the deceased was shot and the vehicle was chased is within the precincts of Police Station Mehnagar. In his statement, the first informant Pankaj Kumar Singh P.W.-4 has stated that the FIR was lodged at Police Station Gambheerpur as the incident had initiated near Vishaham which is within Police Station Gambheerpur.
The investigation proceeded whereafter on receiving information on 18.2.2011 at about 2:00 P.M. Ashad is said to have been arrested from a way side restaurant (Dhaba) at Amaura Mohiddinpur. The said arrest is said to have been made in the presence of Rajesh Rai and Subedar Yadav. It may be mentioned that none of these witnesses have been examined. Upon the arrest it is alleged that Ashad confessed to have participated in the incident in which he also named the other two appellants as accomplices involved in the illegal logging of the green Sheesham tree owned by the State at Bhangrawa on the roadside. He is also alleged to have confessed of being attempted to be apprehended by the police and Nityanand having caught hold of the steering while he was trying to flee away with the offending vehicle. The vehicle was also taken into custody and was searched whereupon two empty cartridges are alleged to have been found from beneath the driving seat. The same were of .32 bore calibre and the base whereof indicated the alphabets KF and the digits 7.65. The vehicle was the same one bearing the same registration number that was mentioned in the FIR, namely UP 50 T 2352.
Upon this confessional statement of Ashad and his disclosure, the police party further proceeded towards the timber stall of the appellant Haroon in village Lahbariya where they arrived at about 3.30 p.m. On their arrival the appellant Haroon and another person tried to flee away but they were overpowered and were recognized namely Mohammad Haroon @ Pappu and Tabrez @ Nirahoo the two other appellants. It is stated in the recovery memo that they also confessed to have participated in the reported incident of the felling of the tree and then having shot Nityanand while trying to flee away. The confession is of Mohammad Haroon that he had shot the deceased. The recovery memo further recites that at their pointing out the timber was recovered from a pond in village Chewtahi.
While proceeding for the recovery of the logs the appellant Haroon also confessed having hidden his fire arm namely the pistol which was utilized for the commission of the offence that was recovered from beneath a pillow on a cot inside his timber stall. The same was bearing the marks Made in Eataly of the bore 7.65 mm with certain other gun marks thereon. The pistol also had a magazine and on opening the same two live cartridges were also recovered that was sealed along with the weapon.
The police party along with all the three appellants in custody reached the pond situate on the northern side of the residence of Wakeel Ahmad and with the help of the villagers 7 logs of green wood were recovered of different sizes out of which the thickest log was 15 inches in width and was 6 feet in length. The other logs were smaller in size and lesser in width.
The recovery memo records the entire status of recovery of all the items referred to above in the presence of the accused.
After the FIR was lodged the inquest of the deceased Nityanand was carried out at Lifeline Hospital between 10:00 A.M. and 11:30 A.M.
After the inquest had been carried out the body of the deceased was also sent for autopsy that was carried out at 2.05 p.m. on 18.2.2011. The postmortem report indicates an ante mortem wound of firearm injury puncturing the parietal bone in the occipetal region where a bullet was lodged that was extracted. The same was about 1 cm. in length. The postmortem indicates that death had occurred within 12 hours of the autopsy and was caused due to ante mortem firearm injury as well as shock and coma. There is another ante mortem injury which is an abrasion on the right elbow prominent and measuring about 2.5 cm. by 2 cm. The postmortem report also mentions all the items that were given into custody to the police constable who had brought the dead body.
All the appellants were charge-sheeted and after the framing of charges the prosecution introduced 6 witnesses of fact other than the police witnesses with regard to the incident of felling of the tree near village Visahan. Vinod Kumar Yadav, Subhash Yadav and Vinod Yadav were all examined as P.W. 1, P.W. 2 and P.W. 3. All three turned hostile and denied having witnessed any such incident. In the statement under 161 Cr.P.C. also they have referred to the happening on the basis of information received by them which can only be termed as hearsay evidence.
Thereafter Pankaj Kumar Singh, Station House Officer Ghambhirpur was examined as P.W. 4.
Then again a set of 3 witnesses were examined who were also witnesses of the recovery namely Ashok Kumar, Mohammad Saud and Ram Bachan Yadav who also happened to be the village Pradhan. These three witnesses also turned hostile and denied the incident in its entirety.
Thus six witnesses of fact P.W. 1, P.W. 2, P.W. 3, P.W. 5, P.W. 6 and P.W. 7 had all turned hostile and in their deposition they have not uttered even a single sentence or word about the incident having been witnessed by them.
Preetam Singh was examined as P.W. 8 who is the constable who proved the registering of the check FIR. Ashwani Kumr Rai, P.W. 9 is the constable who had gone on a motorcycle being part of the Apache mobile unit to block the passage of the miscreants at Tekmalpur village. It may be mentioned here that the other constable who had accompanied him namely Bans Narain Singh has not been examined.
Kamruddin and Rajesh Kumar who were the two other constables apart from the deceased Nityanand and had accompanied P.W. 4 Pankaj Kumr Singh were examined as P.W. 10 and P.W. 11 who are police witnesses but they were witnesses of fact who have deposed before the trial court about the entire incident covering the felling of the trees upto the commission of the murder of the deceased Nityanand and the fleeing away of miscreants.
The autopsy was carried out by Dr. Gayasuddin who proved the postmortem report while deposing as P.W. 12. Ram Kripal Bharti is the Circle Officer who carried out the investigation and was examined as P.W.
13. Ramagya Mishra is the constable clerk who registered the FIR of the recovery under the Arms Act. Gulab Chadra and Durga Dutt Bharti are forest officials, the former a forest inspector and the latter being a conservator who deposed as P.W. 15 and 16 respectively in order to prove the felling and stealing of the logs of wood of Sheesham tree.
The accused got themselves examined under 313 Cr.P.C. whose statements were recorded and all of them took an omnibus plea to the effect that since the deceased constable Nityanand had illicit relations with the wife of the first informant Pankaj Kumar Singh, therefore, they have been falsely implicated to cover a probable misdeed of the informant.
After having assessed the entire evidence on record the trial court accepted the prosecution story and sentenced the appellants accordingly as mentioned above whereupon the appellants were taken into custody out of whom the appellant Haroon is still in jail. The other two appellants were granted bail by this court and at present they are on bail.
Sri Shiv Ram Singh learned counsel for the appellants has proceeded to advance his submissions on behalf of all the three appellants contending that the entire investigation is full of fatal flaws and six of the witnesses have turned hostile as such the evidence on record that remains is uncorroborated and uncreditworthy, and therefore, the trial court committed an error in proceeding to convict the appellants on the basis of such evidence. Elaborating his submissions, he has submitted that the First Information Report was lodged at 5:20 am which is almost more than three and a half hours of the incident, the delay whereof has not been explained when the named witnesses are the police witnesses and the FIR has been lodged than no one else than the Station House Officer himself. He then submits that the FIR was lodged by the Station House Officer on the basis of an information received that illegal felling of a tree was being attempted by the appellants who were armed with unlawfully acquired weapons and inspite of this information it is not understood as to why the deceased constable Nityanand Singh accompanied the police party without bearing any arms. He submits that if all the other members of the police party had weapons with them, then there was no reason for the deceased constable to have carried a weapon with him.
As a corollary to this argument, he has also invited the attention of the Court to the fact that this was a police party raid against the appellants in the dark hours of the night, and in such circumstances, all the appellants are stated to have fled away scot free without any weaponry having been used by the police party who did not even fire a single shot when the allegation is that one of the appellant had shot a police constable. He submits the total inaction on the part of the police by not resorting to use of their weaponry also creates and cast a serious doubt about their presence at the time of the occurrence when the appellants are alleged to have fled away in a vehicle.
He then submits that no attempt appears to have been made to apprehend the appellants, and even otherwise, if it is assumed that all the three appellants had been recognized when they had been seen by the police party while departing in the pick up van with the stolen wood then in what manner had the police personnel recognized the appellants particularly the firing of a shot by the appellant Haroon from behind when they were standing stationary at the place where Nityanand Singh was shot. He submits that since the police party was behind the appellants as alleged and the appellants were seated in a cabin in the front of the vehicle then there was no way in which the appellants could have been recognized or identified in any way in having fired the shot at Nityanand Singh. If the allegation of the prosecution that it was the appellant Haroon who had fired the shot then that was absolutely impossible to have been witnessed from behind when he is said to have been seated in the middle between two of the other appellants and who could not have been seen firing the shot when the vehicle in which they were seated had already fled away and was far ahead of the police party. This incident is in the dark hours of the night, and therefore, the allegation of having seen the appellant Haroon having fired the shot is absolutely incorrect. Secondly, the firing of the shot is alleged to have been seen with the aid of a torch light when no torch was either produced to establish the source of light nor any other source of light was established.
He has at this juncture invited the attention of the Court to the site plan of the place where the deceased was shot at namely at Pg 195 of the paper book to demonstrate that the manner in which the appellants have been shown to have fled away from the scene of occurrence, there was no possibility of the police party including the police witnesses to have seen the appellant Haroon having fired the shot.
He then contends that the recovery which is alleged to have been made on the very same day in the evening is also a pantomine recovery. For this, he has invited the attention of the Court to the statement of PW- 16 Durga Dutt Bharti who has stated that he went to the Police Station at 10:00 am and stayed there till 11:00 am on 18th February, 2011 and while he was at the police station he had seen the logs of wood that had been stolen. Sri Singh submits that this was impossible as the recovery was made on the same day at about 4:00 pm, and consequently, there was no occasion for the stolen goods to have been seen at the police station at 10:00 am in the morning. He, therefore, submits that this testimony of PW-16 is absolutely uncreditworthy. To support his submission with regard to the recovery of the stolen wooden logs he contends that the same has been shown to have been recovered from a pond in village Chewtahi. The place from which the logs are said to have been recovered is remotely situated in the said village and no signs of any vehicle coming and going have been shown to indicate that the logs had been thrown in the pond. He then submits that the logs which have been recovered and which are shown to be seven in number of various lengths and widths indicates that the longest and the widest log was six feet in length and 15 inches in width. The other logs were lesser in size than the same. He contends that these sizes do not match with the logs which are said to have been part of the tree which had been felled down and had been stolen, inasmuch as, the breadth and girth of the tree which was stolen was 1.85 mtrs which is about 5 feet. None of the logs recovered are of that size, and consequently, the recovery does not match with the stolen articles. To substantiate his plea, he submits that the document filed on behalf of the prosecution, namely, Exhibit Ka-21 is the report of the Forest department which was sent on the next day i.e. 19th February, 2011 mentions the size of the logs which reportedly was in accordance with the logs said to have arrived at the police station. He submits that the said document even though exhibited was never put to any of the accused as an incriminating circumstance in the statements under Section 313 Cr.P.C. He, therefore, submits that if such a circumstance was not specifically put to any of the accused then this was a serious lapse during trial and the said evidence cannot be read against any of the accused. Even otherwise the size and shape of the logs mentioned therein again do not match with the size and shape of the logs as mentioned in the recovery memo that was proved by the Investigating Officer. The same contradict each other and nowhere are even nearer to the size and shape of the stolen articles. He, therefore, submits that the recovery of the stolen woods, namely, the logs of timber is clearly a false recovery and appears to be the mentioning of some logs the variety whereof may have been picked up from some imaginative source.
Sri Singh then contends that the vehicle which is said to have been used by the appellants for the carrying of the logs and for fleeing away is a white coloured pick up van, the Registration Number whereof is UP-50-T- 2352. He submits that on a specific question being put to the Investigating Officer, namely, PW-13 as to why he did not choose to establish the identity of the vehicle and its ownership, the said witness has categorically stated that he did not find it necessary to do so. At this stage, we may mention that we have ourselves gone through the records of the court below and we find that one Gayasuddin son of Haji Shakil Ahmad who is a resident of a different village claimed ownership of the said vehicle and moved an application for its release on which an order was passed by the Chief Judicial Magistrate releasing the same vide order dated 7th April, 2011. It is therefore contended that the Investigating Officer who tendered his deposition on 19th May, 2015 did not even care to look at the aforesaid document that was on record and not only this the trial court has also completely omitted to consider this aspect of the matter about the ownership of the vehicle. In such circumstances, the registration number of the vehicle which is said to have been seen is only a mention made for implicating the vehicle which neither belongs to the appellants nor was in their use. This lapse in investigation about not establishing the ownership of the vehicle by the prosecution or even mentioning it clearly casts a doubt about the manner in which the evidence has been led.
Sri Singh has then invited the attention of the Court to the evidence of the doctor who carried out the autopsy, namely, Dr. Gyasuddin PW-12 who while submitting his post mortem report has mentioned all the clothes and the items as also deposed about the same before the court below. The contention is that no attempts was made by the prosecution to substantiate the aforesaid material which had been collected and apart from this the very recovery of the cartridges, namely, two blank cartridges from the vehicle and two live catridges from the fire arm recovered from Haroon as well as the bullet embedded in the head of the deceased that had been sent to the forensic science laboratory, were not sought to be proved by any production of a report from the forensic laboratory. He submits that this lapse on the part of the investigation therefore casts a serious doubt about the recovery of the weapons and the bullets which also appears to be a planted recovery. He then submits that the recovery alleged to have been made at the pointing out of the appellants does not in any way establish any co-relation with the incident and the offence alleged to have been committed. In such circumstances the recovery does not conform to the provisions of Section 27 of the Indian Evidence Act, 1872.
Sri Singh then contends that PW-11 Rajesh Kumar is said to have caught hold of the deceased Nityanand upon being hit and carried him to the Hospital as a result whereof his clothes were smeared with the blood of the deceased but in his deposition he says that nobody collected his clothes and therefore he washed it. Learned counsel submits that this was a vital evidence if at all and if the prosecution has failed to preserve it then such a lapse should extend a benefit of doubt as coupled with this is the fact that there is no recovery of any blood from the place of the incident of the shooting of Nityanand.
The next contention of Sri Singh is that Ramanand Yadav was the driver of the official jeep of the police party. He was neither interrogated nor his statement was recorded nor was he produced as a witness. The contention is that he was one of the prime witnesses of the entire operation right from the departure of the police party from the police station till their return and lodging of the FIR at 5:20 am. The contention is that Ramanand Yadav was the best evidence to have traversed the facts relating to the vehicle having travelled while on raid carrying the police party and also having carried the deceased to the Hospital. The entire chase of the appellants was also made by the same vehicle driven by Ramanand Yadav. In such circumstances such an important witness having been deliberately withheld by the prosecution also casts a serious doubt as to what had impelled the prosecution not to produce him as a witness. It is therefore urged that the absence of the testimony of such a prime witness weakens the story of the prosecution and casts a doubt on the links of the entire story.
He has then urged that there is no public witness and as a matter of fact six of the witnesses of fact have turned hostile. For this he has invited the attention of the Court to the statement of PW-1, PW-2, PW-3, PW-5, PW-6 and PW-7. Sri Singh is right in his submission that all these six witnesses have clearly denied having witnessed any such incident and even otherwise a couple of them have made a statement that they had heard about it while giving the statement under Section 161 Cr.P.C. This therefore was also a hear say material before the Investigating Authority but while deposing before the Court they have clearly denied having been associated with or witnessing any part of the incident. Consequently on the strength of this learned counsel submits that the prosecution has failed to establish the incident on the strength of any independent public witness which deserves to be taken into account to disbelieve the prosecution story.
He has then urged that the manner in which PW-4, PW-10 and PW-11 who are the witnesses of fact and are police witnesses have given a parroted narration. The same does not inspire confidence, inasmuch as, there is no occasion for them to have recognized or at least identified the appellant Haroon in having fired the shot at the dead hour of night that too even without the source of light of a torch having been established in Court. Apart from this, he has invited the attention of the Court to the cross examination of PW-4 Pankaj Kumar Singh and the statement of PW-10 and PW-11 to contend that on being asked about the identity of the appellants, it has been stated that the appellants were known to the police personnel as they were involved in the trade of timber selling and that they were visitors to the police station. He contends that this omnibus declaration of recognition is false, inasmuch as, firstly, it was only Haroon @ Pappu who was involved in the trade of timber and had a timber stall. The appellant Ashad is only a driver of a vehicle and is nowhere involved in timber selling as such there was no occasion for him to have visited any police station. Similarly, the other accused Tabrej is said to be an absolute stranger to any such business, and consequently, his recognition by the police that too even at the dead hour of night was also an absolutely false deposition. Consequently, the police witnesses who were deposing before the Court had made an incorrect statement about the recognition, on the strength of they being a regular visitor to the police station.
The submission is that even otherwise they had no criminal history nor were they required in any criminal case in the said police station as such there was no occasion for the appellants to be regular visitors of the police station or any presumption being raised in this regard.
He has then submitted that the Station House Officer, namely Pankaj Kumar Singh PW-4 after 15 days of the incident had been suspended, and a disciplinary enquiry was initiated against him. The appellants had moved an application for summoning the records of the said disciplinary enquiry, but no evidence was produced by the prosecution and such a lapse clearly supported the defence set up by the appellants who had pleaded in their 313 Cr.P.C. statement that Pankaj Kumar Singh was responsible for the murder of Nityanand Singh as his wife had some illicit relation with the deceased constable. He submits that had the prosecution come forward with any such explanation, the same would have been relevant for having considered the said controversy, but total absence of investigation on this issue and withholding of evidence on the part of the prosecution, the trial court committed an error in discarding this defence on the part of the appellants. He submits that this hypothesis did require a further examination and probe which the prosecution could have easily furnished proof of, but withholding of the same clearly casts a doubt, and therefore, the appellants deserve benefit of doubt on account of this lapse on the part of the prosecution.
He then contends that the manner of narration of the incident by all the three prosecution witnesses namely PW-4, PW-10 and PW-11 that the deceased constable had jumped on the vehicle, in which the appellants were seated and had caught the steering wheel and the door of the cabin was also an incorrect statement of fact, inasmuch as, Nityanand Singh was totally unarmed, and even otherwise the distance which has been shown in the site plan does not inspire any such confidence of any such attempt having been made. He submits that as a matter of fact, none of the police party did ever witness the said incident and this fact is further corroborated by the hostility of the six independent witnesses referred to above.
In the said circumstances and the distance from which the incident is said to have been witnessed does not inspire confidence at all and the testimony of all these three witnesses is uncreditworthy.
It has also come in the cross examination that the defence has cast a doubt about the FIR being lodged at a different police station from that where the actual shooting incident took place. The felling of the trees took place within the area of police station Gambhirpur whereas the shooting incident took place within the jurisdiction of police station Mehnagar. He contends that it is not understood as to why, the investigation was sought to be launched with the FIR at Gambhirpur where Pankaj Kumar Singh PW-4 himself was posted as the Station House Officer. He submits that this further casts a spell of doubt on the conduct of Pankaj Kumar Singh who could have lodged the FIR at police station Mehnagar and which police station was not even informed about the incident by him.
Thus right from the delay caused in the FIR, the recovery being false, the presence of the witnesses PW- 4, PW-10 and PW-11 being doubtful, and that of the other witnesses having turned hostile and added to it the non availability of any forensic report, the oral testimony of PW-4, PW-10 and PW-11 is nowhere corroborated by any material exhibit, and in such circumstances, the appellants deserve acquittal.
He has then invited the attention of the Court to the testimony of the two other witnesses of the Forest Department, Gulab Chandra and Durga Dutt Bharti PW- 15 and PW-16 to urge that they were unable to support the prosecution story, particularly the recovery of the stolen items as there is a clear variation in the articles alleged to have been stolen and its recovery. In such circumstances, the entire prosecution story has not been able to prove the case beyond reasonable doubt, and consequently, the appellants are entitled to the benefit of doubt.
Replying to the said submissions Sri Jai Narain, learned AGA has urged that the delay which is sought to be alleged in the lodging of the FIR is unwarranted, inasmuch as, immediately after the incident, the deceased was rushed to the hospital near Azamgarh almost 20 kilometers away. The deceased was declared dead at the hospital and this period which lapsed in between has been explained by the Investigating Officer as well as the testimony of PW-4 Pankaj Kumar Singh and supported by PW-9 and PW-10 that it was at about 03:00 pm that the deceased had reached the hospital and declared to be dead. It is thereafter all the formalities took sometime when the informant had to travel the distance to his police station at Gambhirpur and then lodge the FIR. The FIR having been lodged at 05:20 am is therefore quite prompt, and there is no deliberate delay in the lodging of the FIR.
He has then invited the attention of the Court to the site plan to contend that the testimony of PW-4, PW-10 and PW-11 clearly establishes that after having received the information of illegal felling and logging of the tree, the police party had left the police station at about 01:35 am on 18th Feb 2011. They reached the spot at about 02:00 am where the tree was being felled, and they saw a pick up van loaded with logs moving forward which van was chased by them. They read the number of the vehicle which is the same as mentioned in the FIR and identified the vehicle as a white coloured vehicle. At the same time, while departing from the police station a couple of constables namely Ashwani Kumar Rai and Bansh Narain Singh had been despatched to block the passage near village Tekmalpur so that the miscreants may not flee. He submits that the said trap was laid when the miscreants along with the laden goods had arrived at Tekmalpur and saw that they had been surrounded, they immediately turned back coming face to face with the police party of PW-4 at Visahan crossing. It is at this crossing that the miscreants had slowed down their vehicle and they were identified in a torch light to be the same persons who had been seen while fleeing away towards Kotila. Consequently, the appellants had been recognized even prior to the shooting incident as being the three appellants who were the accused. Thus there was no dispute with regard to their identity. When they arrived at the crossing they slowed down and it is at that moment that Nityanand Singh rushed to that vehicle and the other members of the police party including the P.W.-4, P.W.-10 and P.W.-11 saw all the three appellants seated in the front of the vehicle, and the one seated in the middle, namely Haroon, fired the shot while Nityanand was clinging to the door and the steering wheel of the fleeing vehicle. It is urged that this was clearly witnessed by all the three witnesses who have shown consistency in their statements without any flaw. Not only this after the vehicle carrying the accused had fled away, the deceased was picked up and brought to the hospital which fact has also been proved by testimony. His contention is that in that dead hour of night if no weaponry was used by the police party this may have been on account of the police personnel being in a state of shock due to the serious injury of the deceased and therefore, they concentrated more on taking him to the hospital than in pursuing the fleeing criminals.
It has further been submitted that the trap had been laid which is established by the presence of the two other constables by whose intervention the vehicle had to take a compulsory U turn and then arrive on the spot where the shooting incident took place. It is urged that this evidence cannot be treated to be an exaggerated evidence inasmuch as the trajectory of the vehicle from the place where the trees had been felled and then returning back to the crossing at Visahana was only possible because of the wireless message given by the two constables from Tekmalpur that it is the same vehicle which has been seen rushing towards the said crossing. He therefore, contends that this part of the evidence remains unimpeached. They have been seen by all the three witnesses namely P.W.-4 P.W.-10 and P.W.-11. and there is nothing which may render this testimony uncreditworthy.
He submits that this is coupled by the fact that two shots have been fired one of which directly hit the deceased. He submits that it is quite possible that one of the shots may have either missed or may have been fired later on to threaten the police party. This is fortified by the recovery of two empty cartridges of the same bore of which the weapon was recovered and also matches the bullet which is 1.00 c.m. in length and has been found embedded in the head of the deceased as indicated in the postmortem report.
In the wake of direct medico-legal evidence of a bullet injury having caused the death of the deceased there is no discrepancy in this evidence to establish the shooting of the deceased by a weapon at the time and place where the occurrence is said to have taken place. He submits that the entire evidence cannot be said to be a pantomine investigation and the entire incriminating material which is on record including the clothes etc. of the deceased establish that he had been shot dead at the dark hour of the night when he was trying to apprehend the appellants who were indulging in an unlawful activity of theft and loot of public property. He therefore, submits that not only the ingredients of murder but also of theft and loot are clearly established.
On recovery the learned A.G.A. submits that there is a variation in the description as indicated, but the logs of wood are of Sheesham tree and have been identified and they were stolen article. He submits that the size and shape do not appear to have matched exactly with that which have been recovered, but that by itself cannot be a ground to disbelieve the recovery and also the fact of the appellants having indulged in loot of such public property during night hours. Such an activity itself being carried out at night hours is sufficient to presume that the appellants had indulged in an unlawful activity of felling government owned green trees.
He then contends that the argument that no information had been given to the higher authorities or to other police station is incorrect and has Invited the attention of the court to the statement of P.W.-4 as well as P.W.- 13 to contend that their testimony clearly indicates that the higher authorities had intimated the police officials of police station Sidhari and police station Nizamabad as well as the S.O.G. Incharge by a wireless set. He therefore contends that it was clearly established by their testimony that the timing and the place of incident have been informed to all concerned and there is nothing in the cross examination so as to dislodge the said testimony of the police officials. At this juncture he has also clarified that P.W.-4 in his cross examination has clarified as to why the F.I.R. was lodged at police station Gambheerpur and not at police station Mehnagar where the incident of shooting had taken place. The reason given is clearly explained that since felling of the tree had taken place within the circle of police station Gambheerpur therefore, the information was lodged at the police station where the incident had commenced.
Learned counsel for the appellants submits that it is true that there is a lapse on the part of the prosecution by not producing the Forensic Laboratory report but the same is not fatal to the prosecution keeping in view of the ocular and medical testimony which is on record and which is sufficient to establish that the incident had taken place and that the deceased died as a result of the said shooting incident involving the accused. Non recovery of blood from the spot has been explained that since the deceased was in an injured state and was immediately lifted and carried in an official jeep therefore, there was no reason to find any blood spot at the scene of occurrence. Even otherwise the crossing was a busy crossing but nonetheless the clothes worn by the deceased were handed over by the doctor to the constable concerned which finds mention in the postmortem report that has been proved by P.W.-12, the doctor who carried out the autopsy.
He then urged that even if the torch which was used for having witnessed the shooting incident was not exhibited, the same has not remained a point of challenge before the trial court by the defence. The source of light therefore, remains undisputed and consequently no capital can be gained out of it by the appellants.
He has then urged that the hostility of the six witnesses in no way dislodges the case of the prosecution, inasmuch as it is correct that the six witnesses have turned hostile but the prime witnesses namely P.W.-4, P.W.10 and P.W.-11 have proved the entire incident.
Sri Singh learned counsel for the appellants has urged that such witnesses being police witnesses their testimony should not be taken to be creditworthy as they were trying to defend the department on the basis of a shaky story having been constructed on the basis of very weak evidence. Sri Jai Narayan learned A.G.A. for the State has urged that merely because P.W.-4, P.W.-10 and P.W.-11 happen to be police witnesses therefore, their testimony cannot be discarded and they have to be placed on the same scales as any other witness. He contends that the basic genesis of the prosecution story of a police constable having been murdered by fleeing appellants with a shot having been fired by the appellant Haroon, all the three appellants are equally liable keeping in view of the provisions of Section 34 I.P.C. They were all involved in loot together and they being clear accomplices they do not deserve any benefit, inasmuch as there is no doubt much less a reasonable doubt so as to record acquittal in favour of the appellants.
Having considered the submissions raised and having gone through the records of the case, we may at the very outset clarify the law relating to police witnesses. The Apex Court in the case of Karanjit Singh Vs. State 2003 (5) SCC 291 para-8 of the judgment has observed that the testimony of police personnel should be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good ground. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down.
The aforesaid view has been followed by the Apex Court in two other decisions reported in the case of Pramod Kumar Vs. State (GNCT) of Delhi 2013 (6) SCC 588 in paragraph nos. 12 and 13 and in Kashmirilal Vs. State of Haryana 2013 (6) SCC 595 in paragraph no. 9 of the judgment. In the said decision the same issue was raised namely that the police witness are not trustworthy more particularly where they are witnesses of fact.
We are therefore unable to accept the argument on behalf of the appellants that the testimony of police personnel is not supposed to be treated as creditworthy. In the instant case, it is a police constable who has been shot dead while performing his official duty and carrying out a raid on the directions of his superiors. The incident was theft and loot of public property. In trying to apprehend the miscreants the police constable lost his life and it is unfortunate that the independent witnesses who are six in number have completely turned hostile. It has been laid down in the aforesaid two cases referred to above that in such matters it is very difficult to get the members of the general public to support a police witness. Thus the law referred to hereinafter above has to be understood and applied accordingly on the facts of the present case.
Commencing with the evidence on departure of the police personnel from the police station, we do not find any infirmity in the evidence in their departure particularly when they were two police parties bifurcated namely one that of the Apache mobile combination of two constables who were sent in the advance to block the road toward Kotila at village Tekmalpur in order to confront the passage of the appellants in their vehicle. The accused with their vehicle were first identified by P.W.-4, P.W.-10 and P.W.-11 at the place where the pick up van was being loaded by them with the stolen logged tree. They were seen with the aid of the headlamps of the police vehicle while they were closing the rear lid of the pick up van, the registration number whereof was the same as the chased and recovered vehicle. The accused fled from there and they returned from the barricaded place where the trap was awaiting them.
This laying of the trap was therefore a bonafide exercise and which stands proved from the testimony of PW-9 Ashwani Kumar Rai who was one of the constables of the Apache Mobile Team. They also identified the accused in their testimony. This is further fortified by the fact that the offending vehicle namely the white pick up van did take a U-turn from village Tekmalpur and returned back where the police party led by PW-4 was waiting with their stationary jeep vehicle at the T-crossing of Visaham. On seeing the police party, the testimony of PW-4, PW-10 and PW-11 clearly establishes that the vehicle in which the appellants were seated slowed down and since it had slowed down considerably, those sitting inside could be identified easily with the help of a torch light. Not only this, the identity of these appellants were clearly established as the prosecution witnesses above named have clearly indicated that they were known as they had visited the police station on some occasions. It was also stated by them that keeping in view the nature of the activity in which they were involved, the police does keep a track about such businessmen. In these circumstances, there is no reason to disbelieve the testimony of PW-4, PW-10 and PW-11 about the identity of the appellants who had been seen when they went towards Kotila and were again identified on their return with the aid of a torch light.
This further establishes that when Nityanand jumped at the vehicle carrying the appellants and clinged on the door of the vehicle, he does appear to have received an injury indicative of such an exercise which is an abrasion on his right elbow as is mentioned in the postmortem report. This was clearly seen by all the three above named witnesses and it has been categorically stated that one of the appellants namely Mohammad Haroon who was sitting in the middle had fired the lethal shot. This is just not only possible but highly probable inasmuch as the driver who was driving the vehicle and was making attempts to flee away cannot be expected to be carrying a firearm and shooting a person and driving the vehicle at the same time. The third person sitting at the far end may not have been in a clear position to view and fire the shot and therefore, the person sitting in the middle was better placed who could have comfortably fired the shot hitting the deceased causing almost an instantaneous death. The shot which has been fired is on the head and the head of the deceased must have been at the same height as that of the window of the door of the vehicle. The bullet which has been recovered is a one cm bullet which is of almost the same gauge as that of the weaponry that was said to have been utilized and ultimately recovered from Haroon from his place of business. This recovery clearly matches with the manner of shooting and the status as well as the seat of the injury as explained in the postmortem report. The testimony of PW-12 the doctor, who carried out the autopsy also supports the same. Apart from this, the other two who were seated are also alleged to have exhorted the appellant Haroon to fire the shot. In such circumstances, these two persons were therefore equally liable for the murder of the deceased Nityanand. Their roles therefore cannot be diluted to any lessor level for the purpose of either conviction or sentencing. Their roles being similar and they having participated in the crime of loot as well as murder and having also aided the recovery which was carried out at their pointing out, we do not find any fatal error so as to disbelieve the prosecution story. The recovery of the cartridges and the weapon has been made which in our opinion is in conformity with Section 27 of the Indian Evidence Act except for the recovery of the logs where there is a variation.
Coming to the testimony of police personnel as already indicated above and keeping in view the law laid down by the Apex Court in the case of Karamjeet Singh (supra) and the background of this case where six of the independent witnesses have turned hostile, it would be a travesty of justice to disbelieve PW-4, PW-10 and PW-11 who have deposed before the Court narrating the incident in a systematic manner which does not indicate any flaw in the entire link of the incident right from the felling of the tree, the recognition of the vehicle and the identity of the assailants.
We therefore do not find any error in the judgment of the trial Court so as to extend any benefit of doubt muchless cause any reasonable doubt and accordingly the all appeals fails and are hereby dismissed. It is stated that the appellant Haroon is still in jail, he shall serve out the sentence. The other two appellants Ashad and Tabrej have been bailed out by this Court, their bail bonds shall stand cancelled and they shall surrender immediately before the concerned court for serving out the sentence as awarded by the trial Court.
All the appeals fails and are hereby dismissed.
Order date :- 13.09.2018 Saqlain/M/Gss/S.Chaurasia/M.Arif/-