Court No. - 4
Case :- CRIMINAL APPEAL No. - 2230 of 1986 Appellant :- Vijendra Singh Respondent :- State Counsel for Appellant :- P.N. Mishra,Dharmendra Pratap Singh,S.P. Srivastava Counsel for Respondent :- A.G.A.,Adesh Kumar Dixit,Babita Upadhyay,Sanjeev Kumar Gaur
Hon' ble Bala Krishna Narayana, J. Hon' ble Ghandikota Sri Devi, J.
(By the Court)
Heard Sri Gajendra Pratap Singh, Senior Advocate assisted by Sri Dharmendra Pratap Singh, Sri S.P. Srivastava, learned counsel for the appellant and Sri Adesh Kumar Dixit, learned counsel for the informant and Smt. Manju Thakur, learned A.G.A.-I for the State.
Vijendra Singh (A1), Sahab Singh (A2) and Rajendra Singh alias Rajji (A3) have filed this criminal appeal against the judgement and order dated 18.08.1986 passed by IVth Additional District & Sessions Judge, Aligarh in S.T. No. 6 of 1985, State Versus Vijendra Singh and others, convicting the appellants and sentencing each of them to imprisonment for life and a fine of Rs. 500/- each and in case of default in payment of fine, six months additional rigorous imprisonment u/s 302/34 I.P.C. Vijendra Singh (A1) was further convicted and sentenced to four years additional rigorous imprisonment and a fine of Rs. 500/- and in case of default in payment of fine, six months additional rigorous imprisonment u/s 394 I.P.C.
The appellants upon being charge-sheeted were committed for trial to the Court of Sessions Judge, Aligarh by Chief Judicial Magistrate, Aligarh by his committal order dated 03.01.1986 where their case was registered as S.T. No. 6 of 1985, State Versus Vijendra Singh and two others, from where it was made over for trial to the Court of IVth Additional District & Sessions Judge, Aligarh who on the basis of material on record and after hearing the prosecution as well as the accused on the point of charge, framed charge against the appellants u/s 302/34 and 394 I.P.C. who abjured the charge and claimed trial.
The prosecution in order to prove the charge framed against the appellants examined as many as six witnesses out of whom P.W.1 Harendra Singh, informant and father of the deceased, P.W.2 Maihar Singh and P.W.3 Satya Prakash were examined as witnesses of fact while P.W.4 S.I. Virendra Pal Singh, P.W.5 S.H.O. Harswaroop Singh Yadav, P.S.- Vijaygarh, District- Aligarh and P.W.6 Constable Shiv Mangal Singh, P.S.- Fatehgarh, were produced as formal witnesses.
The accused in their statements recorded u/s 313 Cr.P.C. denied the charge framed against them. They denied having committed the murder of Netrapal Singh. They further stated that the witnesses had given false evidence against them. Rajendra Singh alias Rajji (A3) further stated that he had been implicated as accused due to partibandi and on account of his being a friend of Sahab Singh (A2). In addition, he stated that Maihar Singh (A2) and Shyam Babu were facing trial u/s 396 I.P.C. in which P.W.1 Harendra Singh had given evidence against them. Since Shyam Babu was the real brother of P.W.3 Satya Prakash, he had given false evidence against him. The accused did not examine any witness in defence.
Learned IVth Additional District & Sessions Judge, Aligarh after considering the submissions advanced by the learned counsel for the parties before him and scrutinizing the evidence available on record, both oral as well as documentary, convicted the appellants Vijendra Singh (A1), Sahab Singh (A2) and Rajendra Singh alias Rajji (A3) under Section 302/34 I.P.C. and awarded aforesaid sentences to them while Rajendra Singh alias Rajji (A3) who had also been convicted and sentenced u/s 394 I.P.C., died during the pendency of this appeal and this appeal qua Rajendra Singh alias Rajji (A3) was dismissed as abated.
Hence, this appeal.
It is contended by the learned counsel for the appellant that it is proved from the recitals contained in the F.I.R. that no one had seen the occurrence and rightly the F.I.R. of the occurrence was lodged by P.W.1 Harendra Singh against unknown persons. He next submitted that from the perusal of the recitals contained in the F.I.R. of the incident, it is apparent that the information recording the facts mentioned in the written report were communicated to P.W.1 Harendra Singh by one Umvar Singh Kaachi who himself had reached the place of occurrence after the incident and there is no mention in the F.I.R. that P.W.2 Maihar Singh and P.W.3 Satya Prakash had also witnessed the incident and hence, the conviction of the appellants recorded by the trial court on the basis of testimonies of P.W.2 Maihar Singh and P.W.3 Satya Prakash who are obviously planted witnesses, cannot be sustained and is liable to be set-aside. He also submitted that the prosecution having deliberately withheld Umvar Singh Kaachi, the first person who had any knowledge of the incident, without assigning any reason during the trial, adverse inference ought to have been drawn by the learned trial Judge against the prosecution, that in case, he was examined, he would not have supported the prosecution version. The medical evidence on record supports the prosecution theory regarding the manner of assault. The medical evidence on record does not corroborate the ocular version. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set-aside.
Per contra Smt. Manju Thakur, learned A.G.A.-I appearing for the State submitted that it is proved from the evidence on record that the deceased was murdered by the appellants. There is no material contradiction between the medical evidence and the ocular version. It is incorrect to argue that P.W.2 Maihar Singh and P.W.3 Satya Prakash are planted witnesses. They were introduced as eye witnesses by P.W.1 Harendra Singh on the basis of information given to them by one Devi Singh. From the evidence of P.W.2 Maihar Singh and P.W.3 Satya Prakash, the complicity of the appellants in committing the murder of the deceased is fully established. This appeal lacks merit and is liable to be dismissed.
We have heard learned counsel for the parties and carefully scrutinized the entire lower court record.
Record shows that one Netrapal Singh, resident of village- Katra Malai, P.S.- Akrabad, District- Aligarh, was shot dead by some unknown persons on 20.05.1982 at about 6 p.m. while he was returning to his village by his bicycle from Vijaygarh near the well of one Devi Ram Baghel, resident of the same village, the accused pushed him and he fell on the ground from his bicycle. On noise made by Netrapal Singh after being shot by the accused, Umvar Singh reached the place of occurrence to save him but he was stopped by the miscreants who fired in the air and threatened him. Umvar Singh narrated the incident to his son P.W.1 Harendra Singh on which he along with the other villagers ran to the place of occurrence and on reaching there, he saw his father lying dead in “dagre” with firearm injuries. The miscreants had taken away the deceased's licensed revolver with them which the deceased was carrying at the time of the incident. The belt of cartridges and the empty holster of the gun was hanging around the deceased's neck. P.W.1 Harendra Singh took the dead body of his father to his house. Narrating the aforesaid fact, the written report of the incident was given by P.W.1 Harendra Singh at P.S.- Akrabad, District- Aligarh on 20.05.1982 on 21.15 hours. On the basis of the written report, Case Crime No. 77A u/s 302/394 I.P.C. was registered against the three unknown persons. Check F.I.R. (Ext.Ka.13) and relevant G.D. Entry (Ext.Ka.15) vide rapat no. 32 dt. 20.05.1982 at time 21.15 hours were prepared by P.W.6 Constable Shiv Mangal Singh.
The investigation of the case was entrusted to P.W.4 S.I. Virendra Pal Singh, who after the registration of the case, reached the place of occurrence on 21.05.1982 and after inspecting the same, prepared its site plan (Ext.Ka.2). Thereafter, he held inquest on the body of the deceased and prepared the inquest report (Ext.Ka.5) and other related documents. He seized the holster of the revolver and prepared its seizure memo (Ext.Ka.4). He also collected blood-stained and simple earth from the place of occurrence, sealed the same and prepared the recovery memo (Ext.Ka.2). He then got the dead body of Netrapal Singh sealed and sent to the District Hospital for postmortem examination.
The postmortem on the body of deceased Netrapal Singh was conducted on 21.05.1982 at 4.30 p.m. by Dr. V. P. Kulshreshtha who also prepared his postmortem report (Ext.Ka.12). The postmortem report of the deceased shows following ante-mortem injuries :-
(1) Gunshot wound of entry 2 cm x 2 cm x bone fractured deep on left side chest middle; one big conital brass bullet recovered from rt. chest.
(2) Gunshot wound of entry 2 cm x 2 cm x cavity deep on rt. hypochondriac region; one brass bullet recovered from left side back middle.
(3) Gunshot wound of entry 7 cm x 2 cm x communicated to the wound of exit on dorsal aspect of left hand in the web of thumb and index finger.
(4) Gunshot wound of exit 3 cm x 3 cm x communicated to injury no. 3 on palmer aspect of left hand in the web between thumb and index.
According to Dr. V. P. Kulshreshtha, the cause of death of Netrapal Singh was shock and haemorrhage as a result of ante-mortem injuries.
Four pieces of bullets were recovered from the right chest, four vertical vertebrate, left and left side each intestines respectively which were handed over by the doctor along with the clothes of the deceased to police constable on the same day. On 16.06.1982, the investigation of the case was transferred to P.W.5 S.O. Harswaroop Singh Yadav, P.S.- Vijaygarh, District- Aligarh. During the course of investigation, he recorded the statements of Devi Ram, Ram Narain and Murli, Pradhan of Gaganpur. He also recorded the statements of P.W.2 Maihar Singh and P.W.3 Satya Prakash. Since the names of the accused-appellants surfaced as accused in their statements, he after completing the investigation, filed charge-sheet (Ext.Ka.11) against all the three accused.
We have already referred to the charges framed against the appellants by the learned trial Judge and also to the evidence adduced by the prosecution during the trial.
The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not ?
We proceed to analyze the evidence of formal witnesses. P.W.4 S.I. Virendra Pal Singh, the first Investigating Officer of the case deposed before the trial court that he was posted as S.O. on 20.05.1982 at P.S.- Akrabad, District- Aligarh. The case in question was registered in his presence and he had taken over its investigation. After the registration of the case, he took up the investigation himself. He reached the village- Katra Malai and recorded the statements of the witnesses and searched for the accused till 12 in the midnight. Next morning, he reached the place of occurrence and after inspecting the same, prepared the site plan (Ext.Ka.2), collected plain and blood-stained earth from the place of occurrence and seized empty holster of the revolver of the deceased. He then held inquest on the body of the deceased and prepared the inquest report in his own hand-writing (Ext.Ka.5) and other related documents namely naksha lash (Ext.Ka.6), challan lash (Ext.Ka.7), letter addressed to C.M.O. with the request of postmortem (Ext.Ka.8), letter addressed to C.M.O. for returning the clothes of the deceased (Ext.Ka.9), specimen seal (Ext.Ka.10). Thereafter, he got the dead body of the deceased sealed and dispatched to the District Hospital for postmortem examination. He proved the recovery memo of the plain and simple earth and the seizure memo of empty holster of deceased's revolver as (Ext.Ka.3 and Ka.4 respectively). In his cross-examination, he deposed that the names of the so-called eye witnesses of the occurrence, P.W.2 Maihar Singh and P.W.3 Satya Prakash were disclosed to him by one Devi Ram Baghel, in front of whose house the incident had taken place but he denied himself to be the eye witness of the occurrence. He also very candidly deposed that he had not been able to find out who had committed the murder of Netrapal Singh as neither Umvar Singh nor the informant of the case in their statements had nominated anyone as accused.
P.W.5 S.H.O. Harswaroop Singh Yadav who had taken over the investigation of the case on 16.06.1982 in his evidence tendered before the trial court stated that during the course of investigation, he had recorded the statements of one Devi Ram Baghel in front of whose house the occurrence had taken place who had denied having witnessed the same. The aforesaid Devi Ram Baghel had told him that P.W.2 Maihar Singh and P.W.3 Satya Prakash had seen the occurrence. Pursuant to the information tendered to him by Devi Ram Baghel, he recorded the statements of P.W.2 Maihar Singh and P.W.3 Satya Prakash. The names of the appellants surfaced as accused in statements of P.W.2 Maihar Singh and P.W.3 Satya Prakash. He after completing the investigation, filed charge-sheet against all the accused before the Chief Judicial Magistrate, Aligarh (Ext.Ka.11). He denied the suggestion given to him by the defence counsel in his cross-examination that he had planted P.W.2 Maihar Singh and P.W.3 Satya Prakash as eye witnesses of the occurrence.
P.W.6 Constable Shiv Mangal Singh proved the check F.I.R. which was prepared on the basis of the written report (Ext.Ka.1) as (Ext.Ka.13) and relevant G.D. Entry vide rapat no. 32 of the same day at 21.59 hours as (Ext.Ka.15).
Thus, upon a careful scrutiny of the statements of P.W.4 S.I. Virendra Pal Singh, P.W.5 S.H.O. Harswaroop Singh Yadav and P.W.6 Constable Shiv Mangal Singh, it transpires that although the F.I.R. of the incident was registered on 20.05.1982 at 21.15 hours but the inquest on the body of the deceased was held on the next day at 6 a.m. Till 16.06.1982, the names of the appellants had not surfaced as accused. However, P.W.5 S.H.O. Harswaroop Singh Yadav, the second Investigating Officer of the case claims that he recorded the statement of Devi Ram Baghel on 16.06.1982 after an inordinate and unexplained delay of 26 days in which he stated that P.W.2 Maihar Singh and P.W.3 Satya Prakash had seen the occurrence and they knew the names of the accused. P.W.5 S.H.O. Harswaroop Singh Yadav also deposed that P.W.2 Maihar Singh and P.W.3 Satya Prakash in their statements had nominated the appellants as accused for the first time almost 2½ months after the occurrence.
We now proceed to appraise and scrutinze the evidence of P.W.2 Maihar Singh and P.W.3 Satya Prakash with the object of ascertaining the veracity of the facts deposed by them before the trial court. Nothing turns upon the evidence of P.W.1 informant Harendra Singh who undisputedly is not the eye witness of the occurrence but had given the written report of the incident. P.W.2 Maihar Singh deposed in his examination-in-chief that on the date of the incident at about 6 p.m., he was returning from his village to Aligarh with P.W.3 Satya Prakash. They had stopped at Vijaygarh Bus Stand to have tea. He saw there deceased Netrapal, Vasdev Panchayat Secretary and Ram Narayana. Netrapal Singh was on his bicycle and he was carrying his revolver. They were all known to him from before. He also saw Vijendra Singh (A1), Sahab Singh (A2) and Rajendra Singh alias Rajji (A3) at the bus stand who started walking towards Katra Malai. At about 6 p.m., when they reached near Devi Singh's house “Rahat”, they saw the accused-appellants standing there. Vijendra Singh (A1) asked them to shoot Netrapal Singh on which Sahab Singh (A2) shot him immediately. After being hit by the gunshot, Netrapal Singh fell on the ground. When he tried to get up, Rajendra Singh alias Rajji alias Rajji (A3) caught his hands and Vijendra Singh (A1) snatched his revolver from him and fired thrice at the deceased from deceased's own revolver. Thereafter, Sahab Singh (A2) fired at Netrapal from his own revolver and when P.W.2 Maihar Singh tried to save Netrapal, the accused threatened him with dire consequences. Umvar Singh had also reached the place of occurrence. When he was contradicted with his statement u/s 161 Cr.P.C. in which he had not stated that Umvar Singh had also reached the place of incident, he deposed that he had stated the aforesaid fact to the Investigating Officer and he was not aware of the reason why he had not recorded the aforesaid fact. After committing the murder of Netrapal, the accused fled towards the north and he and P.W.3 Satya Prakash returned to their village. On account of fear, they had not told anyone about the incident. They had narrated the occurrence for the first time to the police officer who had come to their house.
P.W.3 Satya Prakash in his examination-in-chief corroborated the statement of P.W.2 Maihar Singh substantially in all material particulars. However, in his cross-examination, he stated that he had seen the occurrence from a place which was about 20 ft. away from the crime scene and he had heard Vijendra Singh (A1) shouting that he had taken revenge of his father's murder. He also deposed that he had not talked about the occurrence to anyone. He in his cross-examination further admitted that Shyam Babu was his elder brother against whom a case u/s 395 I.P.C. was pending but he denied that Sahab Singh (A2) had given evidence against Shyam Babu.
In his cross-examination, he further stated that the Investigating Officer had recorded his statement after about one month of the occurrence. Although P.W.5 S.H.O. Harswaroop Singh Yadav, the second Investigating Officer of the case stated that he had recorded the statement of Devi Ram Baghel on 16.06.1982 after 26 days of the incident in whose statement the names of P.W.2 Maihar Singh and P.W.3 Satya Prakash as eye witnesses of the occurrence had surfaced for the first time while he had recorded the statement of P.W.2 Maihar Singh and P.W.3 Satya Prakash after a lapse of about 1½ months of recording the statement of Devi Ram Baghel. He had further deposed that he had neither gone to the police station to get his statement recorded nor he had given any information against the accused-appellants. He in his cross-examination also admitted that Harendra Pal Singh, brother of Sahab Singh (A2) had given evidence against him in a case of dacoity.
Upon a careful appraisal of the evidence of P.W.2 Maihar Singh and P.W.3 Satya Prakash who were not named as witnesses in the F.I.R. and whose names as witnesses surfaced after an inordinate and unexplained delay of almost three months from the date of the occurrence without any satisfactory explanation for the delay in this regard, we find that no reliance can be placed on their evidence as they appear to have been planted by the second Investigating Officer of the case to suit the prosecution case.
Umvar Singh who admittedly was the first person to reach the place of occurrence and who would have been the best witness to prove the presence of the two so-called eye witnesses at the place and time of the occurrence was strangely withheld by the prosecution, without assigning any reasons.
The failure of the prosecution to examine Devi Ram Baghel, in front of whose house “Rahat” the incident had taken place and who would have been the witness to prove that he had disclosed to P.W.5 S.H.O. Harswaroop Singh Yadav that P.W.2 Maihar Singh and P.W.3 Satya Prakash had seen the occurrence and knew the names of the accused as admittedly P.W.5 S.H.O. Harswaroop Singh Yadav was led to P.W.2 Maihar Singh and P.W.3 Satya Prakash by Devi Ram Baghel. Under the peculiar facts and circumstances of the case, we cannot help but draw an adverse inference against the prosecution for non-production of Umvar Singh and Devi Ram Baghel as witnesses during the trial that in case they were examined, they would not have supported the prosecution's claim of P.W.2 Maihar Singh and P.W.3 Satya Prakash being they eye witnesses of the occurrence. It is not the case of the prosecution that Umvar Singh and Devi Ram were won over by the accused.
The failure of P.W.2 Maihar Singh and P.W.3 Satya Prakash to disclose the incident either to the police or even to P.W.1 Harendra Singh for almost 2½ months after the occurrence, appears to be highly unnatural and not at all in consonance with the normal human conduct. Recording of their statements u/s 161 Cr.P.C. after almost 1½ months from the date their names as being the eye witnesses of the occurrence were divulged to P.W.5 S.H.O. Harswaroop Singh Yadav by Devi Ram Baghel whose statement itself was recorded after 26 days of the incident, is another circumstance which indicates that the two so-called witnesses were planted by the Investigating Officer and the statements given by them before the trial court are tutored.
The evidence on record indicates previous enmity between P.W.2 Maihar Singh and Sahab Singh (A2) on account of his having given evidence against P.W.2 Maihar Singh in a case u/s 396 I.P.C. which can be a very strong reason for his false implication by P.W.2 Maihar Singh.
Thus, in view of the foregoing discussion, we have no hesitation in holding that it would not be at all safe to maintain the recorded conviction of the appellants on the basis of the evidence of P.W.2 Maihar Singh and P.W.3 Satya Prakash whose evidence saw the light of the day after almost 2½ months of the occurrence and the failure of the prosecution to produce Umvar Singh and Devi Ram as witnesses during the trial who would have been the best persons to corroborate the claim of P.W.2 Maihar Singh and P.W.3 Satya Prakash that they were the eye witnesses of the occurrence.
P.W.2 Maihar Singh and P.W.3 Satya Prakash, in our opinion, are not at all reliable and trustworthy.
Upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we find that the learned trial Judge committed a patent illegality in convicting the appellants for committing the murder of Netrapal Singh and snatching his licensed revolver. No incriminating articles including the crime weapon and the deceased's revolver were recovered from the possession of the appellants or on their pointing out. There is nothing on record which may indicate that the blood-stained and plain earth recovered from the place of occurrence by the Investigating Officer was sent for forensic examination.
This appeal succeeds and is accordingly, allowed. The impugned judgement and order is hereby set-aside. Vijendra Singh (A1) and Sahab Singh (A2) are acquitted of all the charges.
Vijendra Singh (A1) and Sahab Singh (A2) are on bail. They need not surrender. Their bail bonds are cancelled and their sureties discharged. However, they shall comply with the provisions of Section 437-A Cr.P.C.
There shall however, be no order as to costs.
Order Date :- 30.1.2019 KS