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2009 DIGILAW 3748 (ALL)

JASWANT @ RAJAN v. STATE OF U. P.

2009-12-15

A.K.ROOPANWAL, RAKESH TIWARI

body2009
JUDGMENT Honble A.K. Roopanwal, J.—This criminal appeal has been filed by the appellants Jaspal alias Rajan and Sanni alias Hardeep Singh against the judgment and order of conviction and sentence dated 4.11.08 passed by the Additional District & Sessions Judge/Special Judge (S.C./S.T. Act), FTC No. 4, Aligarh in S.T. No. 792/04, State v. Jaspal @ Rajan and another and in S.T. No. 886/04, State v. Jaspal Singh @ Rajan whereby appellants were found guilty and convicted for the offences punishable under Sections 302/34, IPC and 3(2)(v) SC/ST Act and each of them was sentenced to undergo life imprisonment with a fine of Rs. 50,000/- and in default of payment of fine further simple imprisonment for two years for the offence punishable under Section 302/34, IPC and life imprisonment with a fine of Rs. 50,000/- for the offence punishable under Section 3(2)(v), SC/ST Act and in default of payment of fine further simple imprisonment for two years. Accused-appellant Jaspal alias Rajan was further convicted and sentenced to six months’ simple imprisonment with a fine of Rs. 2,000/- and in default of payment of fine additional imprisonment for one year for the offence punishable under Section 30 of the Arms Act. 2. The prosecution case as disclosed in the FIR by the first informant Ganga Saran Diwakar, r/o Bima Nagar, Soot Mill, P.S. Banna Devi, District Aligarh is that on 4.6.04 at about 12.00 in the night his brother Amar Singh was returning to his house after getting his vehicle repaired. When he reached near the house of the appellants, he was stopped by them and was abused. They also used language derogatory to his caste. Amar Singh cried and called the complainant at which he and his another brother Udai Veer Singh reached at the spot. Sufficient light was there. The appellant Sanni alias Hardeep Singh exhorted to kill at which Jaspal alias Rajan fired at Udai Veer Singh due to which he received injury and fell down on the ground. The complainant and others took him to Malkhan Singh Hospital and later on to the Medical College, Aligarh where he was declared dead. The occurrence was committed as there was business rivalry between the parties as both were engaged in transport business. 3. The complainant and others took him to Malkhan Singh Hospital and later on to the Medical College, Aligarh where he was declared dead. The occurrence was committed as there was business rivalry between the parties as both were engaged in transport business. 3. Leaving the dead body in the Medical College the informant Ganga Saran Diwakar got the report of the incident written from Satveer Singh S/o Mahendra of village Baraula, Zafrabad, P.S. Banna Devi and went to P.S. Banna Devi where on the basis of the written report Chik FIR was written on 5.6.04 at 1.10 A.M. 4. The investigation of the case was taken up by Dr. Krishna Gopal, Circle Officer, Police. He inspected the place of occurrence and prepared the site plan, exhibit Ka-5. He recorded the statements of the Constable-Clerk Megh Singh, the scribe of the FIR. He also recorded the statement of the first informant Ganga Saran Diwakar. During investigation he obtained the police custody of accused-appellant Jaspal alias Rajan and interrogated him. He wished to get that pistol recovered by which the murder was committed. Later on, the pistol was recovered and its memo was prepared. Regarding this recovery a case under Section 27/30 of the Arms Act at Crime No. 221/04 was lodged by Dr. Krishna Gopal. After concluding the investigation he submitted the charge sheet. The investigation of the case under Arms Act was conducted by PW-8 S.I. Dharmbeer Singh, who recorded the statements of the witnesses, prepared the site plan of the place of recovery and later on, submitted the charge sheet. 5. The inquest report and other connected papers concerning the deceased were prepared by S.I. Shiv Charan Verma and the dead body was sent for postmortem. 6. The accused were committed to the Court of Sessions by the then CJM, Aligarh. The accused were charged under Section 302/34, IPC and 3(2)(5), SC/ST Act and accused Jaspal alias Rajan was further charged under Section 27/30 of the Arms Act by the Sessions Court. The accused pleaded not guilty to the charges and claimed to be tried. 7. The prosecution, in order to prove the aforesaid charges, examined the so called two eye witnesses PW-1, informant Ganga Saran Diwakar and PW-2 Amar Singh. Besides these witnesses PW-3 Constable Megh Singh, PW-4 S.I., Dafadar Singh, PW-5 Constable Rajpal Gautam, PW-6 Dr. D.D. Bhardwaj, PW-7 Dr. The accused pleaded not guilty to the charges and claimed to be tried. 7. The prosecution, in order to prove the aforesaid charges, examined the so called two eye witnesses PW-1, informant Ganga Saran Diwakar and PW-2 Amar Singh. Besides these witnesses PW-3 Constable Megh Singh, PW-4 S.I., Dafadar Singh, PW-5 Constable Rajpal Gautam, PW-6 Dr. D.D. Bhardwaj, PW-7 Dr. Krishna Gopal, C.O., Police and PW-8 S.I Dharmbeer Singh were also produced as formal witnesses. PW-1 Ganga Saran Diwakar and PW-2 Amar Singh in their statements repeated the prosecution case as was disclosed in the first information report. PW-3 Megh Singh proved the Chik FIR of the case as Exhibit Ka-2 and the G.D. of the registration of the case, Exhibit Ka-3. He also said that at 1.10 A.M. he had informed the Inspector through R.T. Set that the murder had taken place in Sarsaul Area. At the same time he also flashed the news through Control Room to the Higher Authorities. Special report of the case was sent by him on 5.6.04 at 10.10 A.M. through post. PW-4 S.I. Dafadar Singh is the witness of recovery of the licensed pistol of Jaspal alias Rajan and stated that the recovery was effected before him and the recovery memo was prepared by him on the dictation of the Investigating Officer. This pistol was sealed and later on, a case under the Arms Act was registered. PW-5 Constable Rajpal Gautam proved the Chik FIR of the case crime No. 231/04, under Section 27/30, Arms Act and also proved the G.D. of the registration of the case. He also stated that the police remand of the appellant Jaspal alias Rajan was taken on 22.6.04 and the accused along with the recovered pistol was lodged in custody at the police station Banna Devi on the same day and the entry was made at G.D. No. 32 at 23.10 P.M. PW-6 Dr. D.D. Bhardwaj is the person who conducted the postmortem of the dead body of Udai Veer Singh on 5.6.04 at 1.45 P.M. at Mortuary District Hospital, Aligarh. During Postmortem he found that the dead body was of a man of average built. Rigor mortis was present over the whole body. Blood was present on left nostril and the left eye. Following ante mortem injury was found on the dead body. 8. Fire arm wound of entry ½ cm. x ½ cm. During Postmortem he found that the dead body was of a man of average built. Rigor mortis was present over the whole body. Blood was present on left nostril and the left eye. Following ante mortem injury was found on the dead body. 8. Fire arm wound of entry ½ cm. x ½ cm. on the eyebrow of the left eye. Direction was upward and backward. Left frontal bone had fractured and there was fracture of occipital bone also. Clotted blood was present below skin of skull. A metallic bullet was recovered from the occipital bone. Brain was lacerated and a big hematoma was present in brain cavity. Both the parts of the Heart were empty. 300 ML liquid food was present in the stomach. Smell of alcohol was coming. 9. Doctor opined that the death had occurred due to shock and haemorrhage as a result of ante mortem injury which could have come about half day before the time of postmortem. The postmortem report was proved by the doctor. PW-7 Dr. Krishna Gopal, C.O., Police is the Investigating police of murder case and PW-8 Dharmbeer Singh is the Investigating Officer of the case under the Arms Act and whatever actions were taken by them have been stated above. 10. The accused were examined under Section 313, Cr.P.C. in which they completely denied from the prosecution case and stated that they have been falsely implicated due to business rivalry. They examined DW-1 Suresh Chand in their defence. This witness was a Patrol Man on Electricity Sub-Station, Sarsaul. He stated that according to Log Book of the Department there was no Electricity supply to Soot Mill, Bima Nagar from 23.15 hours on 4.6.04 to 00.50 hours on 5.6.04. 11. The trial Court after perusal of the evidence on record and hearing the parties found all the charges proved against the accused persons and convicted and sentenced them in the manner as stated above. 12. We have heard Mr. P.N. Mishra, learned senior counsel assisted by Mr. Shishir Tandon, learned counsel for the appellants, Mr. Ramendra Tripathi for the complainant, Mr. Sher Singh, learned AGA and perused the record. 13. It has been argued by Mr. 12. We have heard Mr. P.N. Mishra, learned senior counsel assisted by Mr. Shishir Tandon, learned counsel for the appellants, Mr. Ramendra Tripathi for the complainant, Mr. Sher Singh, learned AGA and perused the record. 13. It has been argued by Mr. Mishra that there was no immediate motive for the appellants to commit the murder, that the FIR was not lodged at the time as shown by the prosecution, that the place of occurrence is also not that place which has been told by the prosecution, that no independent witness has been produced that PW-1 Ganga Saran Diwakar and PW-2 Amar Singh could not be present at the time of alleged occurrence, that the investigation is faulty and in view of all these facts PW-1 Ganga Saran Diwakar and PW-2 Amar Singh should not have been relied upon by the trial Court and by relying them the trial Court has committed illegality and passed a wrong judgment which is liable to be set aside. 14. To the above, it has been argued by the prosecution side that PW-1 Ganga Saran Diwakar and PW-2 Amar Singh were present at the spot and witnessed the occurrence. In such view of the matter, if there is some defect in the investigation, that cannot demolish the prosecution case. It was further argued that the place of occurrence has been proved at that place which is said in the FIR and that FIR of the case is a trustworthy document and it cannot be said that it was not written at 1.10 A.M. as is the case of the prosecution. 15. It appears from the record that inspite of the presence of many witnesses at the time of alleged occurrence the prosecution has produced only PW-1 Ganga Saran Diwakar and PW-2 Amar Singh, who are the real brothers of the deceased. Therefore, it is necessary that their testimonies should be strictly scrutinised. 16. It is apparent from the record that there was business rivalry between the informant and the accused persons as both were engaged in the same type of business. It is not on the record that any serious incident had ever happened between the parties due to this business rivalry. Only this much was said by PW-1 Ganga Saran Diwakar that four to six months prior to the incident an altercation had taken place between the accused and the deceased. It is not on the record that any serious incident had ever happened between the parties due to this business rivalry. Only this much was said by PW-1 Ganga Saran Diwakar that four to six months prior to the incident an altercation had taken place between the accused and the deceased. After that nothing had happened. Thus, it is clear that there was no immediate motive for the accused persons to commit the murder of Udai Veer Singh. There is also nothing on the record to suggest that the rivalry was so deep which could prompt the accused persons to commit the murder. Thus, there appears no plausible reason on the record for which accused would have stopped Amar Singh and thereafter, committed the murder of Udai Veer Singh. 17. It is said by Mr. Mishra that the FIR was not lodged at the time at which it is shown to have been written. According to him, the evidence on record shows that the deceased was first taken to Malkhan Singh Hospital at about 12.15 A.M. The doctor on duty declared him dead within a minute and referred the patient to the Medical College. Later on, he was taken to the Medical College where they reached at 00.30 A.M. In the Medical College the name and address of the deceased were told by PW-2 Amar Singh. It was said by PW-2 Amar Singh that in the meantime first informant had gone to the police station for lodging the FIR. He had gone on a scooter. It does not appeal to reason that the first informant instead of saving the life of his brother, as he was taken to the Medical College, would go to the police station. The fact that the first informant had gone to the police station leaving the deceased in the Medical College is belied by the evidence on record. In the record of the Medical College it was written that the deceased Udai Veer Singh was brought dead at the Medical College by the first informant Ganga Saran Diwakar on 5.6.04 at 1.30 A.M. When it was so i.e. when Ganga Saran Diwakar was in the Medical College at 1.30 A.M, then how could he lodge the report at P.S. Banna Devi at 1.10 A.M. In this regard it would be pertinent to mention that the Investigating Officer PW-7 Dr. Krishna Gopal did not care to check the record of the Medical College or of the Malkhan Singh Hospital in order to verify as to whether the first informant was present in the Medical College at 1.30 A.M. on 5.6.04 or not. This lapse on the part of the Investigating Officer is deplorable and this possibility cannot be ruled out that in order to justify the presence of the first informant at 1.10 A.M. at P.S. Banna Devi the Investigating Officer purposely did not inspect the record of the Medical College or of the Malkhan Singh Hospital. 18. The credibility of FIR is also shaken in view of one most important fact. This FIR was written by one Satveer Singh, r/o village Baraula, Zafrabad, P.S. Banna Devi. It is not said by the prosecution witnesses that this witness had accompanied the deceased up to the Medical College and then to P.S. Banna Devi. There is nothing on the record to show as to how and why this person was present at the police station at such odd hours in the night. This fact shows that the FIR was lodged sometime after 1.10 A.M. with the consultation of the police and this person Satveer Singh was managed to write the FIR. 19. The credibility of the FIR is also shaken in view of the fact that in the information sent by the Police Personnel regarding the incident did not disclose the name either of the deceased or of the accused. If, the FIR would have come in existence by the time the information was sent, both these facts would have been mentioned. This shows that FIR was not in existence when the information was flashed through R.T. Set. 20. Thus, in view of the above, we are of the opinion that the FIR of the present case is not a trustworthy document and was not written at 1.10 A.M., as alleged by the prosecution. It was definitely written after 1.10 A.M. with the consultation of the police and others and on such FIR the reliance cannot be placed and the prosecution story, as set up in the FIR, cannot be believed beyond all the reasonable doubts. 21. It was definitely written after 1.10 A.M. with the consultation of the police and others and on such FIR the reliance cannot be placed and the prosecution story, as set up in the FIR, cannot be believed beyond all the reasonable doubts. 21. So far as this fact is concerned that the occurrence had taken place at that place or not, which is pointed out by the prosecution, in that regard only PW-1 Ganga Saran Diwakar and PW-2 Amar Singh have stated. No blood was collected from this place inspite of the fact that the I.O. had visited the alleged place of occurrence soon after the occurrence. The collection of blood was an important evidence and it cannot be believed that if it would have been present there, this would have been collected. To cover up this lapse it was said that the I.O. prepared the site plan after sometime of the occurrence. Our view is that as there was no blood at the spot, hence, it was not collected and thus, the place of occurrence has also not been proved to be at that place which is said by the prosecution. 22. It is said that on the call of PW-2 Amar Singh complainant and deceased Udai Veer Singh reached at the spot. It is also said that they were in the Workshop. It was in the statement of PW-2 Amar Singh that on the day of occurrence only one truck was repaired. Engine was being overhauled. This was the work of Mechanics. It can not be believed that all the three brothers would be present in the Workshop late in the night. There was no work for them to supervise, hence, their presence in the Workshop at the alleged time is doubtful. PW-2 Amar Singh has stated that he was also beaten but no medical examination of this witness is available which falsifies his version. The statements of PW-1 Ganga Saran Diwakar and PW-2 Amar Singh are also not consistent with the medical evidence. PW-2 Amar Singh stated that the deceased was shot from a very close distance. PW-1 Ganga Saran Diwakar stated that it was a close range fire but no blackening or scorching was found on the wound. The statements of PW-1 Ganga Saran Diwakar and PW-2 Amar Singh are also not consistent with the medical evidence. PW-2 Amar Singh stated that the deceased was shot from a very close distance. PW-1 Ganga Saran Diwakar stated that it was a close range fire but no blackening or scorching was found on the wound. If fire would have taken place in the manner as alleged by PW-1 Ganga Saran Diwakar and PW-2 Amar Singh, it was more probable that the bullet would have gone outside of the skull and would not have been found in the skull. This shows that the firing was not done in the manner as told by PW-1 Ganga Saran Diwakar and PW-2 Amar Singh and in such view, their witnessing the occurrence is doubtful. 23. It is a case where the most important evidence was not collected by the I.O. The pistol with which the fire is said to have been done was recovered. The bullet was also recovered from the dead body, but it is surprising that the I.O. did not care to confirm as to whether the bullet which caused the death was fired from the pistol of the accused or not. This is not the fault on the part of the I.O. It is a deliberate act. From the Officer of the rank of a C.O. it cannot be expected that he would not know that the bullet should be matched with the pistol which could bring the assailant to books. It appears that it was not done purposely as he knew it well that the pistol was not used in the crime. 24. It is the story of the prosecution that many persons had assembled at the spot, but none was produced. The reason is very apparent. This possibility cannot be ruled out that nobody was ready to come and depose falsely. 25. 24. It is the story of the prosecution that many persons had assembled at the spot, but none was produced. The reason is very apparent. This possibility cannot be ruled out that nobody was ready to come and depose falsely. 25. Thus, in view of the above, we are of the opinion that in a situation where the place of occurrence is doubtful, the veracity of the FIR is doubtful, that important evidence of matching the bullet with the pistol has not been collected, that there was no immediate motive for the accused persons to commit the offence, that it was a case of single injury which could have been caused by any person, who could not have been recognised, that the presence of PW-1 Ganga Saran Diwakar and PW-2 Amar Singh at the time of occurrence is doubtful, the inimical witnesses PW-1 Ganga Saran Diwakar and PW-2 Amar Singh, who are the real brothers of the deceased should not have been relied upon and the prosecution story should not have been believed beyond all the reasonable doubts. 26. In the facts and circumstances of the case, we have no hesitation to hold that it was a case where prosecution case was not proved beyond all the reasonable doubts and the benefit of doubt should have been given to the accused persons. Accordingly, we find the judgment liable to be quashed and the appeal liable to be allowed. 27. Appeal is, hereby, allowed. The judgment and order of conviction and sentence dated 4.11.08 are, hereby, set aside,. Accused-appellant Jaspal alias Rajan is in jail. He shall be set at liberty forthwith, if not wanted in any other case. Accused-appellant Sanni alias Hardeep Singh is on bail. He is not required to surrender. His bail bonds and personal bond are discharged. A copy of this judgment be transmitted to the CJM concerned immediately for compliance. ————