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2004 DIGILAW 172 (UTT)

Gopal v. State of U. P.

2004-08-20

B.C.KANDPAL, M.M.GHILDIYAL

body2004
JUDGMENT B.C. Kandpal, J. 1. The aforesaid criminal appeals arise out against the judgment and order dated 18th October 1996 passed by Addl. District and Sessions Judge, Roorkee, District Handwar In Sessions Trial no. 203 of 1992 State vs. Gopal and Sunil u/s 147,302 I.P.C. 2. As both the appeals arise out against the same judgment and order hence are being decided by common judgment. 3. Brief facts of the prosecution case, as emerged out from the record, are that on 11-03-1990 at about 1:45 p.m. Ajay Singh, Dinesh, Ajay Kumar, Sunil and Gopal all residents of Old Tehsil, Harijan Basti, came in front of the house of Raj Kumar and started roaming here and there. Kartar Singh 5/0 complainant Nertu as well as another person Hargyan asked the aforesaid assailants not to hurl filthy remarks against the girls of the locality. On hearing this, Dinesh @ Poii and Ajay Sin9-h startep abusing Kartar and Hargyan. Upon hearing the hot exchanges between the parties, Anil Kumar @ Banu, Sunil Kumar, Ram Singh, Champat Ram and Vijendra Kumar arrived at the spot and tried to intervene in the matter. Dinesh @ Poli and Ajay Singh took out their country made pistois and Ajay Kumar @ Bittu, Sunil and Gopal asked their companion to assault at the complainant's party. On this, Dinesh @ Poli and Ajay Singh fired shot at complainant' side and on account of the aforesaid firing, Kartar Singh and Hargyan fell on earth after sustaining injuries on their persons. Kartar Singh succumbed to the injuries on the spot and one of the shooter Dinesh @ Poli could be captured by the persons assembled over there and they started beating Dinesh @ Poll. The people assembled at the spot also captured Sunil and Gopal, the accused persons (hereinafter called as the appellants) as well as Ajay Kumar @ Bittu but the assailant Ajay Singh could make his escape good. Assailant Dinesh @ Poli also died at the spot on account of the severe beating given by the public. 4. Injured Hargyan was taken to Govt. hospital, Roorkee but he also succumbed to the injuries subsequently. 5. The first information report of the aforesaid occurrence was lodged by complainant Nertu at police station Gang Nahar Roorkee, Haridwar on 11-03-1990 at 15:25 p.m. The assailants captured by the public were also given in the custody of the police. 6. 4. Injured Hargyan was taken to Govt. hospital, Roorkee but he also succumbed to the injuries subsequently. 5. The first information report of the aforesaid occurrence was lodged by complainant Nertu at police station Gang Nahar Roorkee, Haridwar on 11-03-1990 at 15:25 p.m. The assailants captured by the public were also given in the custody of the police. 6. Postmortem on the body of Kartar Singh was conducted on 12-03-1990 at 12.40 p.m. and the doctor found one firearm wound of entry, one firearm wound of exit one contusion and one abrasion on the person of deceased Kartar Singh. 7. Autopsy on the body of Hargyan was also conducted by the doctor on 12-03-1990 at 3:15 p.m. and the doctor found two surgical wounds on the person of deceased Hargyan. The doctor also recovered one metallic bullet from left side of brain of deceased Hargyan. 8. The assailant Dinesh who was beaten by the public at the spot was also sent for autopsy and the doctor on 12-03-1990 at 11:30 a.m. conducted the postmortem on his body and found number of lacerated wounds as well as certain abrasions on the person of deceased Dinesh @ Poll. 9. The investigation of the case was conducted by S.I. V.K. Sharma who, after the conclusion of the investigation, submitted charge sheet against the appellants u/s 147,148,149,504 and 302 I.P.C. on 31.03.1990. 10. After the charge sheet was submitted against the appellants before the Court, they were committed to the Court of Sessions for their trial. 11. The learned Trial Court on 04-11-1992 framed charges u/s 147, 302/ 149 I.P.C. against the appellants. The appellants denied of the charges leveled against them and claimed their trial. 12. The prosecution, in order to support its case, produced P. W.1 Sunil Kumar, P.W.2 Nertu (informant), P.W.3 Brijendra Kumar, P.WA Dr. D.P. Sharma, P.W.s S.1. Ramesh Chandra Chaudhary, P.W.6 S.1. V.K. Sharma (investigating officer). 13. After the evidence of prosecution was over, the statements-of the appellants were recorded u/s 313 Cr.P.C. The appellants did not adduce any evidence in their defence. 14. D.P. Sharma, P.W.s S.1. Ramesh Chandra Chaudhary, P.W.6 S.1. V.K. Sharma (investigating officer). 13. After the evidence of prosecution was over, the statements-of the appellants were recorded u/s 313 Cr.P.C. The appellants did not adduce any evidence in their defence. 14. The learned Trial Court, after having perused the evidence on record and hearing learned counsel for the parties was pleased to convict the appellants u/s 147 and 302/149 I.P.C. The learned Trial Court accordingly, sentenced the appellants for one year rigorous imprisonment u/s 147 I.P.C. and life imprisonment u/s 302 read with Section 149 I.P.C. The appellants were also sentenced for Rs. 1,000/- fine each, and in default of payment of fine further rigorous imprisonment for one year, vide judgment and order dated 18-10-1996. 15. Feeling aggrieved by the aforesaid impugned judgment and order, both the convicts preferred separate appeals before the Allahabad High Court which have been transferred to this Court after creation of State of Uttaranchal, for disposal. 16. We have heard learned counsel for the parties and perused the record. 17. At the very outset it would be important to mention here that in the instant case two persons from the side of the prosecution died, while one of the assailant, namely, Dinesh @ Poli was also beaten to death at the spot during the course of the occurrence. The role assigned to the appellants is that of exhortation. It is, therefore, to be assessed on the basis of the evidence on record whether the prosecution has established the guilt of the appellants beyond reasonable doubt. 18. The prosecution case is that the appellants along with their associates were roaming at the place of the Occurrence and the deceased asked them not to hurl filthy remarks upon the girls of the locality. This is the sole motive which has been assigned by the prosecution, as the version advanced by the witnesses in this regard is that when Kartar Singh and Hargyan tried to restrain the appellants from hurling filthy remarks against the girls, the same enaraved the and the appellants on retaliation, asked their associates to kill the persons belonging to complainant's side and on exhortation of the appellants Dinesh and Ajay Singh, their companions, picked out their pistols and fired shots at Kartar Singh and Hargyan resulting their death. 19. 19. It is important to mention here that as per the prosecution case the appellants were intending to outrage the modesty of girls before the house of one Raj Kumar as P.W.1 Sunil Kumar has stated that the appellants and their associates were roaming in front of the house of Raj Kumar and started outraging the modesty of the girls. Kartar Singh and Hargyan asked the appellants and their associates not to do so, which engraved the appellants and they exharted their associates to kill them. This witness, in his cross examil1atian has also stated that the appellants intended to outrage the modesty of girl in his presence but subsequently he has stated that he did not see the appellants hurling filthy remarks or outraging the modesty of the girls as he heard about the same from the public. 20. In order to establish this aspect Raj Kumar, in front of whose house the appellant intended to outrage the modesty of the girls, could be the best witness but this important witness has not been produced by the prosecution. Therefore absence of this witness could not help the prosecution in order to establish the aspect of outraging the modesty of girls which is the Prime factor pertaining to the motive available to the appellant at the time of the occurrence. 21. Again P.W. 2 Nertu has also stated in his deposition that he does not know as to who was the girl, whose modesty was outraged. He has also specifically stated that it was Dinesh who .outraged the modesty of the girls. It is important to mention here that Dinesh was beaten to death by the public an the spat, therefare, deposition of this witness also does not provide any help to the prosecution pertaining to the fact of outraging the modesty of the girls by the appellants which subsequently created motive far committing the double murders. 22. Again the deposition of P. W. 3 Brijendra Kumar, who has been produced by the prosecution as an eye witness, reveals that he has deposed therein that he saw the appellants intending to outrage the modesty of the girls, This witness has stated that all the assailants were outraging the modesty of the girls. He has further stated that he can not tell as it a modesty of which of the girl was outraged. He has further stated that he can not tell as it a modesty of which of the girl was outraged. This witness has further stated that the modesty of the girls was outraged in front of the house of Raj Kumar. As we have already observed that Raj Kumar would have been the best witness in order to establish this aspect that the modesty of which of the girls was outraged by the appellants but this witness has not been produced by the prosecution. Therefore, the basis of the prosecution case, that the occurrence actually took place an account of the outraging the modesty of the girls by the appellants, is not established. Therefore, we are of the view that the prosecution has suffered a serious jolt on the point of the motive. 23 The second important paint in this case to be considered is; whether the prosecution has successfully established the genesis of the prosecution case. It is the case of the prosecution that one of the assailants Dinesh @ Pall was captured by the public at the spat, while he was reloading his pistol. It is an admitted fact that Dinesh @ Poli was also beaten to death at the place of Occurrence. It is also an admitted fact that Dinesh @ Poli was caught by the public at the spot and he did not have any occasion to make his escape good from the place of the Occurrence. This assailant was given such a severe beating by the public that he succumbed to the injuries at the spot. The prosecution has not produced any evidence as to whether the country made pistol, which Dinesh @ Poli was carrying with him at the time of occurrence, was actually recovered from the place of the occurrence. It is also an admitted fact that the police immediately after the occurrence reached at the place of the occurrence. In case, if Dinesh @ Poli, one of the assailants, was carrying a country made pistol with him at the time of the occurrence and he was captured by the public at the spot and beaten to death, hence the important question arises as to what happened with the country made pistol, which was in the possession of Dinesh @ Poll. Absence of the recovery of the country made pistol from the place of the Occurrence clearly puts a cloud of doubt on the prosecution case and it certainly affects the genesis of the Occurrence. 24. P. W. 2 Nertu in his cross examination, has admitted that assailant Dinesh was beaten to death. at the spot. This part of the statement of this witness certainly creates ii" doubt about the-genesis of the prosecution case which runs as follows: "YAH SAHI HAI KI DINESH KA WAHAN KATAL HIJATHA". This part of statement 'of Nertu clearly gives an impression that it must be a case of free fight. between both the parties and during Course of that free fight, persons from both the sides were murdered. It also appears that both the parties I.e. prosecution as well as the defence side have not come with clean hands before the Court, therefore, it is very difficult, under the circumstances of the present case, as to which of the party was aggressor at the time of the Occurrence. 25. The next point in this case, to be considered, is the presence of the eye witnesses at the place of the Occurrence. The evidence adduced by the prosecution certainly creates a doubt with regard to the presence of the eye witnesses at the spot when the occurrence took place. It would be, thus, important to pen down some extracts from the deposition of the eye witnesses produced by the prosecution. 26. P. W.1 Sunil has stated in his deposition that the appellant Gopal was confined in some house after he was captured by the public. He has further stated that he cannot tell as to in whose house the appellant Gopal was confined. This part of the statement of this witness appears to be completely untrustworthy. It is not humanly possible or does not appeal to reason as to why the assailant would be confined in some room after he was captured by the public. It is also worth to mention here that one of the assailant who was captured by the public at the place of occurrence was beaten to death. Certainly under the aforesaid circumstances it appears to be quite unnatural as to why the appellant who was also captured at the spot would be confined in a room by the public. It is also worth to mention here that one of the assailant who was captured by the public at the place of occurrence was beaten to death. Certainly under the aforesaid circumstances it appears to be quite unnatural as to why the appellant who was also captured at the spot would be confined in a room by the public. This witness has further stated that he had also left the place of occurrence before Gopal was captured by the public as he took his father Hargyan (deceased) to hospital. This witness further, in his deposition, has stated, that ho present at the place of the occurrence when the quarrel started he has specifically stated that he reached at the place of Occurrence after the quarrel. Again, this witness has stated that he reached at the place of occurrence as soon as the quarrel started. Therefore, in view of the aforesaid discrepancies in the statement of this witness, his testimony does not inspire credence and his presence at the place of the occurrence at the alleged time, appears to be doubtful. 27. Again, if the statement of P.W.2 Nertu who is the informant of the prosecution case, is perused, then it appears that this witness has also stated that the police personnel reached at the spot before he lodged the first information report. This witness has also stated that three assailants (including the appellants) were captured at the place of the occurrence by the police. This witness has further deposed that when the fires were shot by the appellants, Gopal (appellant) was not there and he was brought by the police subsequently at the police station. This witness has further stated that "YAH SAHI HAI KI POLICE KE AANE KE BAD GOPAL AAYA THA". This witness further, in his deposition, has clearly deposed that "YAH SAHI HAI KI MAIN GHATNA KE BAD AAYA THA". This witness has also deposed that Gopal was not present at the place of occurrence when the incident started. Therefore, the testimony of this witness also does not inspire confidence and it, is also c1earpn the basis of his testimony that his presence at the place and the time -of the occurrence, appears to be doubtful. 28. This witness has also deposed that Gopal was not present at the place of occurrence when the incident started. Therefore, the testimony of this witness also does not inspire confidence and it, is also c1earpn the basis of his testimony that his presence at the place and the time -of the occurrence, appears to be doubtful. 28. further, perusal of the deposition of P.W.3 Brijendra (another eye witness) indicates that he has deposed therein as follows:- "GOPAL HAZIR ADALAT KE BARE MAIN, MAIN I(UCHH NAHIN JANTA, YAH THA YA NAHIN THA". 29. The deposition of all the eye witness produced by the prosecution clearly indicate that all these witness in their cross examination-in-chief have specifically deposed that it was appellants Gopal and Sunil who exhorted and after the appellants exhorted their associates the firing took place resulting the death, of Kartar Singh and Hargyan. All these-Witnesses could not show the presence of appellant Gopal at the scene of the occurrence. Moreover, the presence of all these witnesses at the place' and time of the occurrence comes within the ambit of doubt, therefore, we can hardly place reliance upon the testimony of the eye witnesses produced by the prosecution and the only conclusion which can be drawn 'iii' this matter could be that these witnesses had actually no occasion to witness the incident as has been alleged by the prosecution. 30. It would be further, pertinent to mention that none of the appellants i.e. Gopal and Sunil sustained injuries on their person during the course of the occurrence. All the three eye witnesses produced by the prosecution have not anywhere stated that the appellants Gopal and Sunil sustained injuries on their person. Moreover, when the appellants were lodged in police custody at police station none of the injuries on their person could be found by the police. The witnesses produced by the prosecution have rather, deposed that they did not see any injury on the person of the appellants, who were captured by the public, at the time of the occurrence. It would, thus, be quite unnatural and improbable that if two persons have died from the side of the complainant and the assailants who exhorted their associates for killing those persons died at the spot, would not suffer any injury on their persons specially when they were captured by the public at the spot. It would, thus, be quite unnatural and improbable that if two persons have died from the side of the complainant and the assailants who exhorted their associates for killing those persons died at the spot, would not suffer any injury on their persons specially when they were captured by the public at the spot. Moreover, one of the assailants, who was captured by the public on the spot, was beaten to death hence under these circumstances it does not appeal to reason as to why the public spared these two appellants and did not beat them. Therefore, absence of any injuries on the persons of these two appellants, who were captured by the public at the place of the occurrence, creates reasonable and strong doubt about the prosecution case and we are of the firm opinion that the prosecution could not establish the manner of incident as has been alleged by the prosecution. The presence of the appellants at the time and place of occurrence also becomes doubtful. 31. The statements of the appellants recorded u/s 313 of the Code of Criminal Procedure wherein they have stated that they were arrested by the police after being called from their respective house, reveals that the presence of the appellants at the spot is completely falsified. 32. Another important aspect in this case is that the ocular version advanced by the prosecution does not find any corroboration with the medical evidence. P.W.1 Sunil Kumar has stated In his deposition that when the assailants fired then Kartar Singh (deceased) was at a distance of 2 feet. This witness has also stated that when firing took place Hargyan and Kartar Singh (both the deceased) were standing together and there was no distance between them. P.W.2 Nertu has also stated that distance of Kartar was 3 feet from the assailant Ajay Singh who fired at Kartar Singh. Again P. W.3 Brijendra Kumar, an eye witness, has also stated that Kartar Singh (deceased) was fire shot from a distance of 2 to 3 feet. It would be, thus, pertinent to mention here that in case, if the deceased were fired from such a close range by the assailants, then there would have been blackening, tattoing and singing over the injuries caused on the persons of the deceased. It would be, thus, pertinent to mention here that in case, if the deceased were fired from such a close range by the assailants, then there would have been blackening, tattoing and singing over the injuries caused on the persons of the deceased. Absence of any blackening, tattoing and singing over the injuries on the persons of the deceased also indicates that the witnesses produced by the prosecution did not have any opportunity to see the actual occurrence and there is a clear cut contradiction between the ocular and medical version put forth by the prosecution. The prosecution case on account of the contradictions between the medical and ocular version, thus fails. 33. Keeping in view the above assessment of the evidence on record we come to the conclusion in the present case could not establish the guilt of the appellants beyond reasonable doubt. It cannot be concluded on the basis of the evidence adduced by the prosecution that the appellants had actually shared the common object of unlawful assembly in order to commit murder of Kartar Singh and Hargyan. 34. We are, thus, of the opinion that the judgment and order passed by the learned Trial Court cannot be sustained. Accordingly, we allow the appeal and set-aside the conviction and sentence imposed by the learned Trial Court by way of the judgment impugned. 35. Copy of this order be placed in the connected appeal.