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Allahabad High Court · body

2010 DIGILAW 1131 (ALL)

Tejpal and Another (In Jail) v. State of U. P.

2010-04-06

POONAM SRIVASTAVA, SUBHASH CHANDRA AGARWAL

body2010
S.C. Agarwal, J.:- These two appeals arise from Session Trial No. 566 of 2004-State Vs. Tejpal and others. The connected Session Trials under Section 25 Arms Act were also tried together which ended in an acquittal. Four appellants namely Tejpal son of Khajan Singh, Jagannath son of Shanwaliya, Darshan Pal son of Ram Lal and Harisankar Pal son of Ram Lal are convicted under Sections 302/34 I.P.C. and sentenced to undergo life imprisonment and fine of Rs. 5,000/- each. In default of payment of fine, six months further imprisonment. Under Sections 307/34 I.P.C. sentence is 10 years R.I. and fine of Rs. 5000/- each. In default of payment of fine, six months further imprisonment. Charges were also framed against all the accused under Sections 336, 504, 506 I.P.C. but the appellants have been acquitted in respect of these offences. 2. The incident is alleged to have taken place on 10.4.2004 at 6.30 P.M. in front the house of Hakim Singh in village Tehra. F.I.R. was registered at case crime No. 120 of 2004, under Sections 307, 336, 504, 506 I.P.C. on the same day i.e. 10.4.2004 at 19.50 hours. The report was lodged by Ramesh Chandra PW-1 at Police Station Raya, District Mathura situated at a distance of 8 kilometres east. 3. According to the F.I.R., the assertion of the first informant was that ten days prior to the date of occurrence, accused Tejpal and some other unknown persons used to pelt stones on their house. On account of this grudge on the date and time of occurrence, accused Tejpal conspired with his associates Jagannath son of Samaliya, Darshan Pal son of Ram Lal and Hari Shankar son of Dharshan Pal, all resident of Behra, arrived on the Marshal Jeep No. UP-86-4108 with their unlicensed country made Tamanchas, started using vituperative language and indulged in indiscriminate firing and also started pelting stones which resulted in injuries to the two deceased and other five inmates of the house. The names of the witnesses mentioned in the F.I.R. besides the first informant were Jagdish son of Mohan Singh and Dharmvir (PW-5) son of Netrapal and other villagers. Fire arm attributed to the accused Tejpal is.03154 bore country made Katta. Jagannath, Darshan Pal and Hari Shankar are alleged to be armed with 12 bore katta. 4. The prosecution examined 8 witnesses. Fire arm attributed to the accused Tejpal is.03154 bore country made Katta. Jagannath, Darshan Pal and Hari Shankar are alleged to be armed with 12 bore katta. 4. The prosecution examined 8 witnesses. Ramesh Chandra first informant was examined as PW-1, Mahipal as PW-2, Smt. Gauma Devi as PW-3, Smt. Mukhiya Devi PW-4, Dharmvir PW-5, Sri Udaivir Singh Station Officer PW-6 who has proved recovery of the weapons and is also the Investigating Officer. Satyavir Singh was examined as PW-7 who is also a witness of recovery, constable Sri Kishan Lal PW-8 who has also supported recovery of the weapons. 5. Two persons died in the incident; Vinod Kumar son of Jogendra Singh and Netrapal son of Kundan Singh. A number of witnesses are also alleged to have received injuries in the incident; Smt. Mukhiya Devi wife of Ramesh Chandra, Smt. Gauma wife of Netrapal, Mahipal son of Netrapal and Smt. Gaura Devi wife of Mohan Singh and Anoop Kumar son of Jwala Prasad. 6. Injuries of Smt. Mukhiya Devi 55 years, W/o Ramesh Chand, R/o Tehra, P.S. Raya, District Mathura was examined on 10.4.2004 at 10.00 P.M. Her injuries are detailed herein below. 7. M.I. Two black moles in front of Rt. side neck 4 cm. apart from each other. Injuries: (1) Multiple fire arm wound of entry in area of 22 cm. x 11 cm. on Rt. upper arm. Size varying 0.4 cm. x 0.4 cm. x depth not probed to 0.3 cm. x 0.3 cm. x depth not probed. K.U.O. Adv. X-Ray. (2)Multiple fire arm wound of entry back of Rt. side chest upper part in area 22 cm. x 15 cm. and Lt. side back chest. Size varying 0.5 cm. x 0.5 cm. x lower part. Depth not probed to 0.4 cm x 0.4 cm. x depth not probed. K.U.O. Adv. X-ray. (3) Multiple fire arm wound of entry in area 6 cm. x 4 cm. on front of Lt foot with fingers size each 0.3 cm. x 3 cm. x depth not probed. K.U.O. Adv. X-ray. (4)Fire arm wound of entry multiple on both hips buttocks size varying 0.5 cm. x 0.5 cm. x depth not probed to 0.3 cm. x 0.3 cm. x depth not probed. 8. Opinion: Injuries are fresh caused by fire arm. K.U.O. Adv. X-ray. Ref. to SNMC Agra. 9. x 3 cm. x depth not probed. K.U.O. Adv. X-ray. (4)Fire arm wound of entry multiple on both hips buttocks size varying 0.5 cm. x 0.5 cm. x depth not probed to 0.3 cm. x 0.3 cm. x depth not probed. 8. Opinion: Injuries are fresh caused by fire arm. K.U.O. Adv. X-ray. Ref. to SNMC Agra. 9. Injuries of Smt. Gauma 55 years, W/o Mohan Singh, R/o Tehra, P.S. Raya, District Mathura was examined on 11.4.2004 at 11.50 A.M. Her injuries are detailed herein below. 10. M.I. Black mole Lt. side mandible. Injuries: (1) Scabbed fire arm wound of entry 0.5 cm. x 0.2 cm. x depth not probed on outer side of Lt. leg lower part. K.U.O. Adv. X-ray Opinion: Injury is about half day old caused by fire arm. K.U.O. Adv. X-ray. Injuries of Mahipal 30 years, S/o Netrapal, R/o Tehra, P.S. Raya, District Mathura was examined on 10.4.2004 at 9.45 P.M. His injuries are detailed herein below. M.I. Black mole Lt. side Nostril. Injuries: (1) Multiple fire arm wound of entry in area of 55 cm. x 14 cm. both sides Lt. thigh to leg. Size varying 0.6 cm. x 0.6 cm. x depth not probed to 0.4 cm. x 0.4 cm. x depth not probed. Bleeding present. K.U.O. Adv. X-ray. (2) Fire arm wound of entry (multiple) in area 52 cm. x 12 cm. both sides of Rt. thigh and leg. Size varying 0.5 cm x 0.5 cm x depth not probed to 0.4 cm. x 0.4 cm. x depth not probed. K.U.O. Adv. X-ray. Opinion: Injuries are fresh caused by fire arm caused by fire arm. K.U.O. Adv. X-ray. Ref. to SNMC Agra. Injuries of Smt. Gaura Devi 35 years, W/o Netrapal, R/o Tehra, P.S. Raya, District Mathura was examined on 10.4.2004 at 9.30 P.M. Her injuries are detailed herein below. M.I. Two black moles in front of Lt. side chest lower part 6 cm. apart from each other. Injuries: (1) Multiple fire arm wound of entry on front of whole face. Size each 0.3 cm. x 0.5 cm. x depth not probed. K.U.O. Adv. X-ray. (2) Fire arm wound of entry 0.5 cm x 0.5 cm. x depth not probed on front of Lt. side stomach upper part. Bleeding present. K.U.O. Adv. X-ray. Opinion: Injuries are fresh caused by fire arm. K.U.O. Adv. X-ray. Ref. to SNMC Agra for better management. Size each 0.3 cm. x 0.5 cm. x depth not probed. K.U.O. Adv. X-ray. (2) Fire arm wound of entry 0.5 cm x 0.5 cm. x depth not probed on front of Lt. side stomach upper part. Bleeding present. K.U.O. Adv. X-ray. Opinion: Injuries are fresh caused by fire arm. K.U.O. Adv. X-ray. Ref. to SNMC Agra for better management. Injuries of Anoop Kumar 12 years, S/o Jwala Prasad Sharma, R/o Tehra, P.S. Raya, District Mathura was examined on 10.4.2004 at 9.20 P.M. His injuries are detailed herein below. M.I. Black mole on Rt. side neck. Injuries: (1) Fire arm wound of entry 0.3 cm. x 0.3 cm. x depth not probed on front and middle of neck lower part. K.U.O. Adv. X-ray Neck. No tattooing or blackening. Opinion: Injury is fresh caused by fire arm. K.U.O. Adv. X-ray. Pt. is hospitalized. Autopsy was performed on the body of two deceased namely Vinod and Netrapal on 11.4.2004 at 4.15 P.M. and 3.20 P.M. which are Ex. Ka-24 and Ex. 32 respectively. Following ante-mortem injuries were found on their body. Ante-mortem injuries on the body of the deceased Vinod. (1)Fire arm wounds of entry four in number on the front of Rt. shoulder 0.3 cm. x 0.3 cm. x 0.3 cm. No blackening and tattooing. (2) Fire arm wound of entry five in number on the front of Rt. side of chest 0.3 cm. x 0.3 cm. x 0.4 cm. to 0.3 cm. x 0.3 cm. x chest cavity deep. No blackening and tattooing. (3) Fire arm wound of entry three in number 0.3 cm. x 0.3 cm. x 0.4 cm to 0.3 cm. x 0.3 cm. x abdominal cavity deep. No blackening and tattooing. (4) Fire arm wound of entry four in number on front of upper part of Rt. thigh size 0.3 cm. x 0.3 cm. x 0.4 cm. No blackening and tattooing. (5) Abrasion 3 cm. x 2 cm. on the back of left elbow. (6) Abrasion 1.0 cm. x 0.5 cm. on left side of malor area. Ante-mortem injuries on the body of the deceased Netrapal. (1) Fire arm wound of entry six in number on outer & post aspect of left shoulder 0.3 cm. x 0.3 cm. x 0.4 cm. No blackening and tattooing. (2) Fire arm wound of entry five in number on front of left side of chest 0.3 cm. x 0.3 cm. Ante-mortem injuries on the body of the deceased Netrapal. (1) Fire arm wound of entry six in number on outer & post aspect of left shoulder 0.3 cm. x 0.3 cm. x 0.4 cm. No blackening and tattooing. (2) Fire arm wound of entry five in number on front of left side of chest 0.3 cm. x 0.3 cm. x 0.4 cm. to 0.3 cm. x 0.3 cm. x chest cavity deep. No blackening and tattooing. (3) Fire arm wound of entry four in number on outer and back part of left elbow 0.3 cm. x 0.3 cm. x 0.4 cm. No blackening and tattooing. (4) Fire arm wound of entry one on back of left hand 0.3 cm. x 0.3 cm. x 0.4 cm. No blackening and tattooing. One pellet recovered. 11. Sri Dileep Kumar Advocate appearing on behalf of the appellants at the very outset, intimated the Court that all the witnesses of fact including injured witnesses have been declared hostile. PW-1 and PW-2 did support the prosecution case initially but after the injured witnesses were declared hostile during the trial, the two witnesses PW-1 and PW-2 were recalled on 29.7.2005 and they also resiled from their earlier statements and were declared hostile. They were cross examined by the prosecution and they had completely a different story to tell at the subsequent stage. 12. The submission of the learned counsel for the defence is that the judgment of conviction can not be upheld by this Court since there is no evidence whatsoever. None of the witnesses are completely reliable and implicit faith can not be placed on any of the witnesses including the injured witnesses. Learned counsel has demonstrated a family tree which shows that the accused, deceased and the witnesses belong to a common ancestor Chiranji. Chiranji had four sons; Ram Lal, Ram Babu, Ram Kumar and Ramesh Chandra first informant (PW-1). Ram Babu and Ram Kumar died issue less. Ramesh Chandra had one son Jogendra and deceased Vinod is son of Jogendra. Ram Lal had one son Darshan Pal who is the present accused appellant and the appellant Hari Shankar is son of Darshan Pal. 13. The first statement of PW-1 during the trial was recorded on 14.1.2005. Ram Babu and Ram Kumar died issue less. Ramesh Chandra had one son Jogendra and deceased Vinod is son of Jogendra. Ram Lal had one son Darshan Pal who is the present accused appellant and the appellant Hari Shankar is son of Darshan Pal. 13. The first statement of PW-1 during the trial was recorded on 14.1.2005. The facts given out at that stage was similar as set out in the F.I.R. but it was admitted that son of PW-1 namely Jogendra (father of the deceased Vinod) was involved in gambling (Satta) and was challaned under the Gambling Act as well as Gangster Act. Subsequently when he was recalled on 29.7.2005, he took a complete somersault and resiled from his earlier deposition. He completely denied his presence at the place of incident. He claimed to have arrived only after receiving information about the incident. He has also refuted any source of light. He claims that the F.I.R. was written out on the dictation and direction of Darogaji. His eyes are weak. He is not able to see without his spectacle. The facts narrated in the F.I.R. was not on the basis of an eye witness account. He has also disowned his earlier statement that he had any enmity with the accused Tejpal or he ever indulged in stone pelting. Thus the entire base of the prosecution case cracked and his subsequent statement was wholeheartedly supported by all the injured witnesses namely PW-3 Smt. Gauma Devi, wife of deceased Netrapal, Smt. Mukhiya Devi wife of first informant and PW-5 Dharmvir son of Netrapal. The fact that PW-1 Ramesh Chandra has not received any injury also fits in the theory of him being out on the fields and not present at the place of occurrence since all the inmates of the house were injured and their injuries were also examined. No doubt their presence can not be negated in view of their injuries yet they have not named the appellants. 14. We are also unable to accept the theory of the prosecution that Tejpal who is the next door neighbour had come on his Marshal Jeep to commit the offence and, thus the prosecution story to this extent is also not very convincing. 14. We are also unable to accept the theory of the prosecution that Tejpal who is the next door neighbour had come on his Marshal Jeep to commit the offence and, thus the prosecution story to this extent is also not very convincing. Some bad blood admittedly existed between the two parties as it was already disclosed that the accused and the deceased as well as the injured witnesses are descendent of one and same common ancestor. The accused Tejpal in his statement under Section 313 Cr.P.C. has given out the reason for his false implication as land of Shiv Charan and Ratan Singh, uncle of the deceased Netrapal, was purchased by brother of the accused Tejpal. This was not appreciated by Netrapal and, therefore, his family members did not approve this. Mausa of accused Tejpal namely Khubi Ram was instrumental in getting the marriage performed of witness Mahipal. However, his wife left him and Mahipal suspected that his wife eloped at the instigation and with help of Khubi Ram. Thus taking into consideration all these aspects, facts and circumstances, we agree with the submission of the defence counsel that testimony of PW-1 is not completely reliable and no implicit faith can be placed, specially after his assertion that he was not present at the scene of occurrence also finds support from the evidence of other injured witness, they claim that PW-1 was called from the field after the incident had taken place. The report was lodged at the direction of police. We have noticed that even the wife and son of deceased Netrapal have declined to support the prosecution case and participation of the present appellants unequivocally. In their statements wife and son of the deceased Netrapal, as well as wife of the first informant who are injured, have stated that some unknown assailants fired with their respective Tamanchas. 15. We are unable to uphold the judgment of conviction on the earlier statement of PW-1 supporting the prosecution case as there is no corroboration by any of the witnesses whatsoever. We are conscious of the judgment of the Apex Court that evidentiary value of a hostile witness can not be treated completely efaced but the same can be accepted to the extent his version is found dependable on a careful scrutiny as held in the case of Radha Mohan Singh @ Lal Saheb and others Vs. We are conscious of the judgment of the Apex Court that evidentiary value of a hostile witness can not be treated completely efaced but the same can be accepted to the extent his version is found dependable on a careful scrutiny as held in the case of Radha Mohan Singh @ Lal Saheb and others Vs. State of U.P., J.T. 2006 (1) S.C., 428. The Apex Court had taken into consideration the evidence on record and the testimony of three eye witnesses to be completely corroborated by medical evidence on record and, therefore, declined to take a contra view. 16. In the instant case, situation is completely different. PW-1 is the first informant and PW-2 Mahipal is an injured witness. All the injured witnesses have not supported the prosecution case. The first informant has disowned his presence at the scene of incident. There is not a single testimony which can be said to be completely reliable. Since there is no corroborative evidence on which implicit reliance could be placed, we are unable to uphold the conviction. The wife and son of one of the deceased has completely recoiled from the prosecution case set out in the F.I.R. There is no support coming forth from a single witness. The recovery of weapon is disbelieved. There is no evidence of the doctor who performed autopsy or examined the injured. Apparently it is a case of no evidence. We are of the considered view that the verdict of conviction by the court below has no legs to stand and, therefore, we are constrained to uphold the judgment of the court below. 17. In view of what has been stated above, the judgment and order dated 25.4.2006 passed by the Additional Session Judge, Court No. 11, (FTC-II), Mathura in Session Trial No. 566 of 2004-State Vs. Tejpal and another is set at naught. The appeals are accordingly allowed. The appellants shall be set at liberty forthwith. 18. Let a copy of this judgment along with lower court record be sent to the Sessions Judge, Mathura for compliance.