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2013 DIGILAW 847 (ALL)

SOVRAN PRASAD v. STATE OF U. P.

2013-03-15

RAMESH SINHA

body2013
Ramesh Sinha, J. 1. This appeal has been filed against the judgment and order dated 1.4.1982 passed by Additional Sessions Judge, Mainpuri in S.T.No.388 of 1979 connected with S.T.No.509 of 1980 and S.T.No.578 of 1980 u/s 148, 307 read with 149 IPC and 25 Arms Act. The accused appellants Sovran Singh @ Soran, Gaya Prasad @ Netta Ji, Phool Singh and Dambar @ Ramveer have been convicted u/s 148 IPC for one year R.I and u/s 307 readwith 149 IPC for 4 years R.I. The accused Sovran Singh @ Soran further convicted and sentenced u/s 25 Arms Act for 6 months R.I. 2. The facts of the prosecution case briefly stated are that Phool Singh of Qasba Eka used to do money lending business. Panna Lal, S/o Tara Chandra, Gaya Prasad, S/o Shital Prasad and Hodal, S/o Ekaka Ram R/o Dharmpur, H/o Eka were indebted to Phool Singh. Phool Singh came in Nagla Dharmpur to demand his money from the above said persons about 15-20 days before the incident in question. Panna Lal and others were prepared to repay the loan with interest @ 2% whereas Phool Singh was demanding interest @ 4%. Five-six days before the incident in question, Phool Singh again came to Nagla Dharmpur along with Gaya Prasad @ Netta Ji of Nagla Akela, who came on a mare. Gaya Prasad asked Panna Lal and others to pay interest @ 4% meanwhile Lila Dhar S/o Bholey Singh, complainant of this case, also reached there. He too suggested to pay interest @ 2% Phool Singh and Gaya Prasad both were annoyed on this suggestion of Liladhar and threatened Liladhar to teach him a lesson as he did not allow the realisation of the loan. 3. On 18.10.1978 Liladhar went to ease in the jungle and at about 5.30 a.m., when he was coming back, Harvansh, S/o Mitthu Lal of his village informed him that Gaya Prasad of Nagla Akela has come along with his colleagues. He is on a mare and is searching you. On receipt of this information Liladhar went to his house, took his licenced gun and also collected Harvansh, Durga Prasad, Panna Lal, Gaya Prasad, Mori Lal, Kishan Lal and Ram Swarup with him and reached at the Gher of Harvansh. After some time Gaya Prasad armed with a rifle passed from there on his mare. On receipt of this information Liladhar went to his house, took his licenced gun and also collected Harvansh, Durga Prasad, Panna Lal, Gaya Prasad, Mori Lal, Kishan Lal and Ram Swarup with him and reached at the Gher of Harvansh. After some time Gaya Prasad armed with a rifle passed from there on his mare. He was accompanied by Phool Singh of Eka, Dambar, S/o Yadram of Nagla Akola, Sovran S/o Mahraj Singh of Nagla Pharenda, Asharfi and Sahukar of Luxmanpur, P.S. Eka and two unknown persons who were also seen by the above named persons. They all were armed with illegal guns and pistols. Gaya Prasad exhorted and called out Liladhar to see the result of coming in his way and they all started firing towards Liladhar and other persons with the intention to kill them to death. Liladhar and Ram Swarup also fired shots with their licenced guns in their self defence and other members of the village raised alarm on which the licence holders of nearby villages also started firing shots. The miscreants were taken to their heals and they started running towards Shyampur. Liladhar and other chased them meanwhile three constables, on petrol duty, came from the side of Shyampur. The miscreants also fired on those constables with the intention to kill them to death. The constables also fired towards the miscreants in their defence on which the miscreants ran while firing towards village Pharenda. Liladhar and others and police constables chased the miscreants and caught hold of Sovran in between village Shyampur and Pharenda in the vacant field of Bharamal r/o Pharenda whereas the rest of the miscreants ran away raking advantage of the standing crop. 4. Further case of the prosecution is that the police constables took personal search of Sovran at the spot and from his possession one country-made pistol having an empty cartridge in its barrel and 3 live cartridges of no.1 of 12 bore were recovered. Constable Mohar Singh prepared fard recovery at the spot and sealed the same at the spot. Thereafter the police constables, complainant Liladhar along with accused Sovran Singh and the arms recovered from him, came to police station where Liladhar lodged written report of the incident. 5. Head Moharrir Mahavir Prasad prepared chick report of the incident. Constable Mohar Singh prepared fard recovery at the spot and sealed the same at the spot. Thereafter the police constables, complainant Liladhar along with accused Sovran Singh and the arms recovered from him, came to police station where Liladhar lodged written report of the incident. 5. Head Moharrir Mahavir Prasad prepared chick report of the incident. The investigation, of this case, was handed over to S.I. Ravindra Singh Bhadauria, who submitted charge sheet against accused Sovran. During the pendency of the investigation, S.I. Ravindra Singh Bhadauria was transferred, therefore, the investigation was completed by S.I. Tek Chandra who submitted charge sheet against rest of the accused persons after investigation. 6. The case was committed to the Court of Sessions and thereafter charges were framed against the appellants by the trial Court on 3.1.1981 u/s 147, 148, 149 IPC and against Sovran Singh @ Soran, u/s 25 of Arms Act on 3.1.1981 separately. 7. The prosecution in support of its case has examined five prosecution witnesses out of them P.W.1 Leeladhar, P.W.2 Gaya Prasad and P.W.3 Durga Prasad are alleged eye-witnesses of the incident. P.W.4 Ravindra Singh Bhadoriya is the Investigating Officer and P.W.5 constable Motilal is the police constable. The accused Sovran Singh @ Soran had examined in his defence one Hakim Lal Pandey as D.W.1 and Jiledhar Singh as D.W.2. P.W.1 Leeladhar who is the informant of the present case has supported the prosecution story and has stated before the trial court that at about 15-20 days before the incident, Phool Singh came in Nagla Dharmpur to demand his money from the above said persons. Panna Lal and others were prepared to repay the loan with interest @ 2% whereas Phool Singh was demanding interest @ 4%. Five-six days before the incident in question, Phool Singh again came to Nagla Dharmpur along with Gaya Prasad @ Netta Ji of Nagla Akela, who came on a mare. Gaya Prasad asked Panna Lal and others to pay interest @ 4% meanwhile Lila Dhar S/o Bholey Singh, complainant of this case, also reached there. He too suggested to pay interest @ 2% Phool Singh and Gaya Prasad both were annoyed on this suggestion of Liladhar and asked Liladhar to teach him a lesson as he did not allow the realisation of the loan. He too suggested to pay interest @ 2% Phool Singh and Gaya Prasad both were annoyed on this suggestion of Liladhar and asked Liladhar to teach him a lesson as he did not allow the realisation of the loan. It was stated by the said witness that on the date of incident, at about 5.30 a.m. when he was going back from attending the call of nature, one Harvansh of his village met him and informed that Phool Singh and Gaya Prasad along with his companions are in search of him. He went to his house and took his licensed gun and also took Harvansh, Durga Prasad, Panna Lal, Gaya Prasad, Motii Lal, Kishal Lal and Ram Swaroop and came at the gher of Harvansh. Accused Gaya Prasad and Fool Singh along with other colleagues Asharfi Lal, Sahukar, Dambar, Sovran Singh @ Soran and two unknown persons came there. They were armed with rifles, guns and pistols. Gaya Prasad @ Netta Ji exhorted and started firing fat Leeladhar. He took the position by the side of wall. He and Ram Swaroop fired at the licensed weapon to save themselves and other persons with him raised alarm. The license-holders of village Nakalpur, Nagaria and Shyampur fired from the villagers on which miscreants ran towards village Shyampur. They chased the miscreants. Meanwhile three constables came from the side of Shyampur. The miscreants fired at them with the intention to kill them to death. The constables also fired in their self defence. Thereafter the miscreants ran towards village Farenda. The constables and the witnesses also chased them and arrested accused Sovran Singh @ Soran in vacant field of Bharmal. Accused Sovran was arrested at 6.30 p.m. and from his possession, country-made pistol having an empty cartridges and three live cartridges were recovered. The constables prepared Fard recovery Ext. Ka-1 at the spot and sealed the same in a bundle. Thereafter came along with accused and the arms recovery at Police Station where he lodged a written report Ext. Ka-2 of the incident. He further deposed that in the village, he handed over empty cartridges to Darogaji which was fired by him and Ram Swaroop. Darogaji prepared Fard of the same. 8. P.W.2 Gaya Prasad and P.W.3 Durga Prasad have also corroborated the prosecution story and has reiterated what P.W.1 Leeladhar has stated. 9. Ka-2 of the incident. He further deposed that in the village, he handed over empty cartridges to Darogaji which was fired by him and Ram Swaroop. Darogaji prepared Fard of the same. 8. P.W.2 Gaya Prasad and P.W.3 Durga Prasad have also corroborated the prosecution story and has reiterated what P.W.1 Leeladhar has stated. 9. P.W.4 S.I. Ravindra Singh Bhadoria who is the Investigating Officer of the case has stated that the case was registered in his presence and entrusted investigation. He recorded the statement of Mahi Prasad constable and thereafter of accused Sovran Singh. He went to the place of incident where he recorded the statement of Leeladhar, Harvansh, Ram Swaroop, Panna Lal, Hodal and others and also statement of Moti Lal on the same day. He made spot inspection of the place of incident and prepared site-plan Ext. Ka-4. He further prapared Fard Ext.Ka-3 of empty cartridges and handed over to Leeladhar. On 19.10.1978, he recorded the statement of Ram Das and Mohar Singh and made a search but they could not be traced. On 3.11.1978, he received the copy of the complaint of accused for inquiry and after inquiry, he submitted his report. On 17.11.1978, he submitted charge sheet Ext. Ka-5 u/s 148, 307/49 IPC and Section 25Arms Act, Ext. Ka-6 against accused Sovran Singh. Thereafter he was transferred and charge sheet Ext. Ka-7 against Gaya Prasad, Dambar, Phool Singh and Sharfi Lal was submitted by Sub-Inspector Tek Chandra. He further deposed that on 3.5.1979, S.O. Suresh Chandra submitted charge sheet Ext.Ka-8 against accused Ranveer. He also proved check-report Ext.Ka-9, Fard of deposed, empty cartridges Ext. Ka-10 and carbon copy of his report on the complaint of Ziledar Ext. Ka-11 and the copy of the complaint Ext. Ka-12. He also p roved Fard Supurdagi of Ziledar and Ram Swaroop Ext. Ka-13. Copy of the abstract G.D. Rapat no.8 Ext. Ka-14. 10. P.W.5 constable Moti Lal deposed that in October, 1978, he was posted at Police Station Eka. On 17.10.1978, he proceeded from the concerned police station at about 4.40 p.m. for petrol duty and stayed in the village Nagaria. On the next date in the morning, he was going to Nagla Kamley to make service of summons. At about 5.30 a.m., when they reached near village Shyampur, they heard cries and rushed towards the place of incident and saw 7-8 miscreants coming from the side of Dharampur. On the next date in the morning, he was going to Nagla Kamley to make service of summons. At about 5.30 a.m., when they reached near village Shyampur, they heard cries and rushed towards the place of incident and saw 7-8 miscreants coming from the side of Dharampur. Gaya Prasad was on mare. They challenged them on which the miscreants started firing towards them with the intention to kill them. They also fired in self defence on which the miscreants ran towards village Pharenda. They chased them and arrested accused Sovran Singh in the vacant field of Bharamal. From his possession, one country-made pistol having an empty cartridges, three live cartridges were recovered. They were taken into custody and Fard Ext. Ka-1 was prepared and the arms were sealed at the spot. He further deposed that they handed over the empty cartridges at the police station which they have fired and stated that Sovran Singh was arrested on the spot. The accused Sovran in his defence produced D.W.1 Hakim Lal Pandey who deposed that on 17.10.1978 he was District Magistrate, Mainpuri. L.R. Singh was the then District Magistrate. He admitted his signatures and sealed on the carbon application on 17.10.1978 moved by Ziledar. He admitted that he made an instrument received copy and sent to Superintendent of Police in his hand. He further submitted that the receipt was given by him on the carbon copy. 11. D.W.2 Ziledar Singh who is the brother of accused Sovran Singh deposed that on 17.10.1978 at about 8 a.m., he went to his field along with breakfast with his brother. Police came there and arrested him along with his brother and subsequently he was released and his brother was taken to the police station. Thereafter application was given to the District Magistrate. The Magistrate gave the said application of his reader. He proved the said application as Ext. Ka-1 original was moved before the District Magistrate subsequently he came to know that his brother was implicated in a case u/s 307 IPC. 12. The accused have denied the allegations of the prosecution and alleged that they have been falsely implicated in the case. Accused Ranveer claimed that he knew the witnesses from before. Again Dambar and Gaya Prasad claimed that Sub-Inspector R.S. Bhadoria is in relation of Surajpal. Leeladhar ( informant) belongs to the party of Surajpal. 12. The accused have denied the allegations of the prosecution and alleged that they have been falsely implicated in the case. Accused Ranveer claimed that he knew the witnesses from before. Again Dambar and Gaya Prasad claimed that Sub-Inspector R.S. Bhadoria is in relation of Surajpal. Leeladhar ( informant) belongs to the party of Surajpal. Surajpal was an accused in the murder case of his brother as and has falsely implicated them on account of that enmity. 13. Heard Sri Kuldeep Singh Yadav, learned counsel for the appellants, Sri R.D. Yadav, learned AGA for the State. 14. The appellant Gaya Prasad @ Netaji died during the pendency of the appeal. Hence his appeal was abated vide order dated 4.1.2013. 15. It is contended by learned counsel for the appellants that admittedly the present case is of no injury. The appellants are said to have fired with fire-arm weapons and the informant when came to know from one Harvansh that the accused were in search of him then the informant P.W.1 along with other persons of the village also took their licensee weapon and reached at the gher of Harvansh where they found the appellants. On seeing them accused Gaya Prasad ( now dead) exhorted and all the accused persons started firing at the informant and other persons who were with him on which the informant and other persons who were also armed with their licensee weapons fired at the accused persons to save themselves but none of the parties received any injuries of fire-arm. Moreover while the accused persons were running away, then three police constables who were on petrol duty also arrived at the place of occurrence and they tried to challenge the accused persons, the accused fired on them also and in retaliation, three constables also fired with their rifle on the accused persons. It was submitted that the manner in which the incident has been narrated by the prosecution appears to be highly doubtful and the origin of the incident has been concealed by the prosecution. It is quite unnatural that when an indiscriminate firing is being made from the either sides, and no person receives any injury on their person appears to be very strange. It is quite unnatural that when an indiscriminate firing is being made from the either sides, and no person receives any injury on their person appears to be very strange. Hence, it is submitted that the conviction of the appellants by the trial court on the basis of the evidence of P.W.1, the informant and the P.W.2 and 3 is against the evidence on record and their conviction is liable to be set-aside by this Court. 16. It is further pointed out that so far as the arrest of the accused Sovran Singh on the spot is concerned that too is also highly doubtful as his false implication in the present case is apparent from the fact that he was arrested by the police and taken away to the police station while he was ploughing his field along with his brother Ziledar on 17.10.1978 and when brother of Sovran suspected some foul play, he immediately gave an application to the District Magistrate on 17.10.1978 which was proved by the defence evidence of D.W.1 Hakim Lal Pandey who has proved the said application of the brother of Sovran Singh namely Ziledar who was also examined as D.W.2 before the trial court and has deposed that he had made an application on 1710.1978 regarding forcibly taking away of his brother from his field by the Police to the District Magistrate. Hence, the false implication of the Sovran is proved by the defence. 17. Learned counsel for the appellants submitted that the manner in which the arrest of appellant Sovran Singh has been shown by the prosecution and further the recovery of country-made pistol with empty cartridges found in it along with three other live cartridges and seizure memo being made by the constables who have arrested him at the spot shows the said recovery on the face of it is absolutely false. 18. He lastly submits that the incident is of the year 1978 and the appellant no.1 is at present aged about 60 years, appellant no.3 is 74 years and appellant no.4 is aged about 63 years. The incident is 36 years old and the appeal has come up for hearing after 30 years. 18. He lastly submits that the incident is of the year 1978 and the appellant no.1 is at present aged about 60 years, appellant no.3 is 74 years and appellant no.4 is aged about 63 years. The incident is 36 years old and the appeal has come up for hearing after 30 years. The appellant no.3 Phool Singh is already at the fag end of his life and the appellant no.1 Sovran Singh and appellant no.4 Dambar have settled with their families and too harsh if the appellants are sent to jail after so many years. The appellants have already undergone for about four months in jail in all during the course of the trial and after their conviction by the trial court after which they filed appeal before this Court and were released on bail during the pendency of appeal. Hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as an enhancement of sentence. 19. On the other hand learned AGA has submitted that trial Court has rightly convicted the appellant and the evidence of the injured witness was sufficient against the appellants for their conviction. 20. Considered the submissions advanced by learned counsel for the parties. 21. From the evidence of P.W.1 Leeladhar who is the informant of the case, it is evident that in his cross-examination, he admitted that the incident which had taken place 15 days prior to the present incident when Phool Singh had come to realize his loan it did not take place in his presence. He did not named Ramveer in the FIR nor before the I.O. not identified him. He also admitted that the country-made and the cartridges recovered from Sovran are not before him. Hence he could not tell the colour and size of the same. P.W. 2 Gaya Prasad has admitted the in his cross-examination that Phool Singh had enmity with Leeladhar but denied enmity of other accused with Leeladhar. So far as P.W.3 Durga Prasad is concerned who too admitted in his cross examination that he saw the accused persons on the date of incident. 22. P.W. 2 Gaya Prasad has admitted the in his cross-examination that Phool Singh had enmity with Leeladhar but denied enmity of other accused with Leeladhar. So far as P.W.3 Durga Prasad is concerned who too admitted in his cross examination that he saw the accused persons on the date of incident. 22. The contention of the learned counsel for the appellants is that though there was indiscriminate firing from either sides at the time of the incident, but none of the persons received injuries on their person, has substance as the origin of the incident appears to have been concealed by the prosecution. The manner in which the incident has taken place as has been stated by the eyewitness P.W.1, P.W.2 and P.W.3 appears to be suspicious. The accused Sovran Singh has categorically in his statement u/s 313 Cr.P.C. has stated that he was taken away by the police a day before the incident along with his brother and P.W.1. Leeladhar is an influential person of the village was having good relations with the Police of the village. The application moved by the brother of Sovran Singh to the District Magistrate informing his false implication in the present case which has been duly proved by the D.W.1 shows that he has been falsely implicated in the present case by the Police at the instance of Leeladhar. Moreover Leeladhar was also having enmical relationship with accused Phool Singh as has been stated by the P.W.2 Gaya Prasad. Accused Dambhar has also stated u/s 313 Cr.P.C that the Sub-Inspector R.S. Bhadoria is relative of Surajpal and Surajpal belongs to the party of the informant Leeladhar and in the murder of the brother of accused Gaya Prasad ( now dead) one Surajpal was an accused. The appellant Dambar is nephew of accused Gaya Prasad and Surajpal had committed the murder of father of accused Dambhar. So far as accused Phool Singh is concerned, he too has stated in his statement u/s 313 Cr.P.C that he was money lender and given money to P.W.2 Gaya Prasad, Panna Lal and other persons of the village, hence the said persons in collusion with Leeladhar have falsely implicated him in the present case so that the amount of money which was due on them be not paid to him. 23. 23. The finding recorded by the trial court in convicting the appellants in a no injury case is based on surmises and conjectures. The findings of the trial court that the two witnesses P.W.2 and P.W.3 did not have any enmity with the accused have given evidence against them which was found to be sufficient for their conviction appears to be against the evidence on record as the trial court failed to appreciate that Leeladhar P.W.1 was a Panch of the village and having close relationship with the Police and he in collusion with the Police have falsely implicated the accused persons with whom he had ill-will and further the Investigating Officer R.S. Bhadoria who was also related to Surajpal who was an accused in the murder case of the brother of the accused Gaya Prasad and father of accused Dambhar had falsely implicated the accused persons for their ulterior motives. Moreover the finding of the trial court that there was no direct enmity of the complainant that the accused persons cannot be a reason for disbelieving the said witness is far fetched from truth as from the evidence of P.W.1 recorded by the trial court his testimony appears to be unworthy of credence because of his influential position in the village. Hence, his testimony cannot be relied upon. 24. After considering the material available on record and the evidence of the alleged eye-witnesses as well as of the formal eye-witnesses especially P.W.4 R.S. Bhadoria, I.O the false implication of the appellants cannot be ruled out. The prosecution has failed to prove its case beyond reasonable doubt against the appellants. Hence the conviction and sentence passed by the trial court is hereby set-aside and the appellants are acquitted. 25. The three appellants Sovran Singh, Phool Singh and Dambar @ Ramveer are stated to be on bail. They need not surrender. Their bail bonds and sureties are discharged. 26.The appeal is allowed.