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2014 DIGILAW 436 (ALL)

RAKESH KUMAR GUPTA v. STATE OF U. P.

2014-02-10

AMAR SARAN, SUNITA AGARWAL

body2014
JUDGMENT Hon’ble Amar Saran, J.—The appellants have preferred these two criminal appeals against the judgement and order of the Additional District and Sessions Judge/ Fast Track Court No. 2, Azamgarh dated 23.1.2006, whereby the appellant Rakesh Kumar Gupta alias Rajesh Kumar Gupta has been convicted and sentenced to imprisonment for life, under Section 302 IPC together with a fine of Rs. 5000/ . The appellant Rudal Chauhan has been convicted and sentenced to imprisonment for life under Section 302/120B I.P.C and a fine of Rs. 5000/. In default of payment of the aforesaid fines, three months simple imprisonment was also awarded. 2. We have heard Sri Ashok Nath Tripathi, learned counsel for the appellants and Sri Akhilesh Singh, learned Government Advocate, assisted by Sri Danish Iqbal Faridi, learned A.G.A for the State. The prosecution version as disclosed in the First Information Report lodged by Smt. Chandrawati Devi wife of deceased Ram Bachan Chauhan was that the deceased and the informant had gone to sleep at their tube-well after consuming food in the night of 17.11.2003. As it was cold, the informant had gone to light a fire on the western side of the tube-well. At about 9.00 p.m., two persons arrived there and fired on the deceased with a country made pistol and on the cry of the informant, the two accused persons, one of whom was a stocky person and the other who was a thin person ran away towards the south. The informant claims to have seen the two miscreants whilst they were running away by flashing her torch on them. On hearing the alarm, the villagers had arrived, who chased the accused and caught hold of one of the miscreants. When the informant Smt. Chandrawati Devi reached there, she identified him as the person, who had fired the shot that killed her husband. On enquiry, the miscreants gave out his name as Rakesh Kumar Gupta son of Ram Lal Gupta. Her husband was rushed to the Hospital by her sons and other co-villagers, but he expired on the way. As the miscreant had received injuries, when he was apprehended by the villagers, hence he had been admitted in District Hospital, Azamgarh. It was further mentioned by Smt. Chandrawati in her FIR that if the apprehended person was interrogated he would reveal the identity of the other miscreant who had run away. As the miscreant had received injuries, when he was apprehended by the villagers, hence he had been admitted in District Hospital, Azamgarh. It was further mentioned by Smt. Chandrawati in her FIR that if the apprehended person was interrogated he would reveal the identity of the other miscreant who had run away. Smt. Chandrawati Devi got the report scribed by her son Indal Chauhan and handed it over at the police station Kotwali on 17.11.2003 , where a report was registered at 10.30 p.m. 3. The prosecution has examined PW-1 Indal Chauhan, PW-2 Smt. Chandrawati Devi and PW-3 Sant Lal Chauhan as witnesses of fact. PW-4 Dr. J.N. Singh, PW-5 SI Suresh Kumar Mishra and PW-6 HM, Kashi Nath are the formal witnesses. Chandrika Prasad Rai was examined as DW-1. PW-1 Indal Chauhan was the son of the deceased Ram Bachan Chauhan. He deposed that he had a shop at the Roadways Bus stand in Azamgarh. After closing his shop at 7.30 p.m., he had reached his home and after taking food, he was going to the tube-well to be with his parents. He used to sleep there alongwith his parents. When he reached near the tube-well, he heard the shot of a fire and saw that one person was running away and was being chased by the villagers. He also chased the miscreants. When the miscreant was arrested, his mother identified him to be the person, who had shot at her husband. Ten days prior to this incident, when he was present alongwith his brother Sant Lal at a shop at the Hafijpur Chauraha for drinking tea at 8.00 p.m, he saw the appellant Rudal Chauhan talking to two persons, who were also drinking tea. Rudal was telling them that if a Panchayat would be held, then they would not get the land and that the deceased Ram Bachan was an obstacle on their way. If he was removed, the problem would be solved. Rudal’s two accompanying companions had stated that this was not a difficult job. He also claims to have scribed the report dictated by his mother. He was also a witness of the recovery of the blood stained and plain earth and a pair of slippers from the spot. 4. If he was removed, the problem would be solved. Rudal’s two accompanying companions had stated that this was not a difficult job. He also claims to have scribed the report dictated by his mother. He was also a witness of the recovery of the blood stained and plain earth and a pair of slippers from the spot. 4. PW-2 Smt. Chandrawati Devi, who was the wife of the deceased Ram Bachan Chauhan and the informant of this case has deposed that she alongwith her husband had gone to sleep at the tube-well in the night for its safety. She was lighting some weeds etc. (Khar-patwar) for warming themselves and whilst the deceased was urinating nearby, then two persons, one of whom was fat and the other was thin arrived there and both fired. Then the fat man fired from nearby which struck the deceased in his stomach. She claims to have seen the miscreant in the torch light and identified one of them to be the appellant Rakesh Kumar Gupta who was present in the Court, and who had fired on the deceased. As the deceased appeared to be alive, he was admitted in the Hospital. The public had also apprehended the appellant Rakesh Kumar Gupta, whom she had identified at the spot to be the assailant of her husband. She then lodged the report at the police station (Ext. Ka-1). 5. PW-3 Sant Lal is another son of the deceased. He deposed that his grant-father had two brothers. Jagdish Chauhan was his grand-father and his brother was Bhagdish Chauhan. His father Ram Bachan was the son of Jagdish Chauhan. The appellant Rudal was one of the sons of Bhagdish. Although the land had been partitioned, but still some dispute was persisting between the deceased and Rudal and some marpeet had taken place earlier between them. The deceased, this witness and Smt. Chandrawati, mother of this witness had gone to sleep at the tube-well which was 200-300 meters from their house for its safety on the date of incident. At about 9.00 p.m., he had heard the sound of firing, and had rushed towards the tube-well where he found that his father had been shot dead and was lying on the ground. His father was about one pace from a drain and two paces from the tube-well. The villagers had gathered and apprehended the appellant Rakesh Kumar Gupta. At about 9.00 p.m., he had heard the sound of firing, and had rushed towards the tube-well where he found that his father had been shot dead and was lying on the ground. His father was about one pace from a drain and two paces from the tube-well. The villagers had gathered and apprehended the appellant Rakesh Kumar Gupta. His mother identified Rakesh Kumar Gupta to be the assailant, who had fired on her husband. Three days prior to this incident, at a shop at the Hafijpur Chauraha, he was sitting alongwith his brother Indal and drinking tea. At that time, his uncle Rudal arrived there alongwith two persons. Rudal said that there would be a panchayat because of the land dispute between Rudal and the deceased. The deceased had to be removed as he was an obstacle. Two persons had said that the work would be done. The I.O has examined him under Section 161 Cr.P.C ten days after the incident. 6. PW-4 Dr. J.N. Singh conducted the post-mortem on the body of the deceased in District Hospital on 18.11.2003 at 9.40 p.m. The deceased was about 60 years in age and of average built. Rigor mortis was present in both extremities. He had the following ante-mortem injuries. 1. Gun shot wound of entry 1 cm x .75 cm x chest cavity deep on left side chest 8 cms below left nipple. Tatooing present around the wound. Margins inverted. Edge of injury blackened. 2. Fire-arm wound of exit 1.5. cm x 1 cm over right side back of chest. Through and through. 20 cms below rt. Inferior angle of scapula. Injury communicating with injury No. 1. The cause of death was due to shock and haemorrhage as a result of ante-mortem injuries. 7. PW-5 SI Suresh Kumar Mishra has deposed that he was posted as Sub-Inspector at P.S. Kotwali on 17.11.2003. After registration of the FIR by Smt. Chandrawati Devi, he had commenced investigation of this case. After completing necessary formalities, he recorded the statement of Smt. Chandrawati Devi under Section 161 Cr.P.C on 18.11.2003. He had visited the mortuary in District Hospital, Azamgarh and also recorded the statement of the appellant Rakesh Kumar Gupta. He also visited the place of occurrence in village Shekhpura, where he recorded the statement of Indal and on his pointing out inspected the spot. He prepared the site plan (Ext. Ka-5). He had visited the mortuary in District Hospital, Azamgarh and also recorded the statement of the appellant Rakesh Kumar Gupta. He also visited the place of occurrence in village Shekhpura, where he recorded the statement of Indal and on his pointing out inspected the spot. He prepared the site plan (Ext. Ka-5). He also recorded the statement of witnesses, who were present. He also collected the plain and blood stained mud from the spot. A pair of slippers were also found which the villagers were denying to be theirs and were said to be those of the appellant Rakesh Kumar Gupta. The inquest was conducted on the body of the deceased Ram Bachan on 18.11.2003 at the mortuary in the District Hospital, Azamgarh. He also prepared the challan lash, photo lash (Ex. Ka-7 and 8) and prepared letter for RI for post-mortem. On 27.11.2003, he recorded the 161 Cr.P.C statement of Indal Chauhan and Sant Lal Chauhan. On 2.12.2003, he arrested the appellant Rudal and sent him to jail after recording his statement. He had also collected the Kurta and blood stained underwear of the deceased. 8. PW-6 Constable Kashi Nath deposed that he was the pairokar of P.S. Kotwali, Azamgarh. The check report and G.D entry registering the case were prepared by Ashok Kumar Rai, whose writing he had identified. The charge-sheet in this case has been submitted by S.H.O Vijay Shankar Tiwari (Ex. Ka-13), whose writing he has also identified. 9. The appellant Rudal was examined under Section 313 Cr.P.C, where he denied the allegations against him and submitted that he had been falsely implicated by the informant because of a land dispute. He stated that many years prior to the incident, there was a family settlement/ partition. He used to tie some animals on some land to the west of his house which he claimed to be his own. As he refused to part with this land, he had been falsely implicated in this case. The appellant Rakesh Kumar Gupta has also denied the allegations against him and stated that he had been falsely implicated on the illegal pressure of the informant. He had moved an application for being identified by this witness but his test identification was not conducted. His name was not Rakesh but was actually Rajesh. He was studying in in ITI, Azamgarh. He had moved an application for being identified by this witness but his test identification was not conducted. His name was not Rakesh but was actually Rajesh. He was studying in in ITI, Azamgarh. His scooter had met with an accident because of which, he had received injuries. He was not arrested by anyone and nothing was recovered from him. 10. DW-1 Chandrika Prasad Rai has stated that the house of the appellant Rakesh Kumar Gupta was adjoining his house. He affirmed that Rakesh Kumar Gupta had met with an accident on the date of incident because of which, he had received injuries. He had been admitted by the villagers in the District Hospital. 11. Learned counsel for the appellants submitted that there was no reliable evidence against the appellant Rakesh Kumar Gupta as the house of the informant Smt. Chandrawati Devi was only 400 meters from the tube-well. There was no reason for the informant PW-2 to sleep at the tube well with her husband, and not in her own house. The harvesting season was over and there were no crops in the field, hence there was no need for the informant to sleep in the night at the tube-well. Also no quilt etc. were found at the tube-well and there was only a single cot there. 12. So far as the evidence of burning of weeds (Kharpatwar) on the spot are concerned, two persons have been involved for a single firearm injury on the deceased. The so called torch which was the source of light for identifying the appellant Rakesh Kumar Gupta was not produced. It has not been stated any where in the evidence as to where the appellant Rakesh Kumar Gupta was caught by the villagers and even PW-2 Smt. Chandrawati Devi could not even say whether he was caught in the village. Two accused persons are said to have run away from the spot, but when the appellant Rakesh Kumar Gupta was arrested allegedly by the villagers neither was any country made pistol nor were any cartridges recovered from him. The name of the appellant Rakesh Kumar Gupta was Rajesh and not Rakesh and he was a student of ITI in Azamgarh. He had no motive for committing this crime and was not a resident of the village. He claimed test identification but it was not carried out. The name of the appellant Rakesh Kumar Gupta was Rajesh and not Rakesh and he was a student of ITI in Azamgarh. He had no motive for committing this crime and was not a resident of the village. He claimed test identification but it was not carried out. The slippers found on the spot were not shown to be that of the appellant Rakesh Kumar Gupta. Although the deceased was said to be wearing a kurta and the fire had been made on his chest, but no hole was seen on the Kurta. Only two sons of the informant and deceased have been produced and no other witness from the village has come forward to support the prosecution case although it is stated that a large number of villagers had gathered and had even apprehended the appellant Rakesh Kumar Gupta. The 161 Cr.P.C statements of PW-1 Indal and PW-3 Sant Lal, sons of the deceased were recorded by the I.O. after ten days. So far as the involvement of appellant Rudal Chauhan is concerned, there was settlement of the dispute between the parties 10 years earlier and there was no subsisting dispute. 13. Learned Government Advocate on the other hand argued that the appellant Rakesh Kumar Gupta was caught at the spot and that there was no reason for his false implication. The assertion that he was going on a scooter which had met with an accident does not appear to be reliable. The defence witness DW-1 Chandrika Prasad Rai had deposed in favour of the appellant only because he was his neighbour. 14. Having given our thoughtful consideration to the contention of counsel for the parties and after analysing the evidence and judgement of the trial Court, we are of the view that on the basis of the evidence adduced, the prosecution has not succeeded in establishing a case against the appellants. 15. There was very little reason for the informant PW 2 Smt. Chandrawati to have left her house which was 200-300 meters from the tube-well and no crops etc. were standing at that time, only to keep watch of the tube well or the crops in the night alongwith the deceased. Also as only a single cot was found lying at the spot, this also rendered the presence of Smt. Chandrawati at the spot improbable. There was not even a quilt and other items. were standing at that time, only to keep watch of the tube well or the crops in the night alongwith the deceased. Also as only a single cot was found lying at the spot, this also rendered the presence of Smt. Chandrawati at the spot improbable. There was not even a quilt and other items. It was indeed quite possible that the deceased may have been done to death when he was alone at the tube well by someone late in the night as his stomach contained semi-digested and not undigested food. It has not come in the evidence as to where the appellant Rakesh Kumar Gupta was apprehended. Even if the version of defence that the appellant Rakesh Kumar Gupta had met with an accident when travelling by his scooter may not have been successfully established by the appellant and even if the appellant Rakesh Kumar Gupta was apprehended some where near the village after the incident by the villagers, who had taken him to the Hospital after belabouring him, but the prosecution is absolutely silent on the point as to where the appellant Rakesh Kumar Gupta was apprehended. The place of apprehension is not shown in the site plan (Ex. Ka-3). PW-2 Smt. Chandrrawati Devi has even admitted that she did not know the place, from where the appellant Rakesh Kumar Gupta was arrested by the villagers. Therefore, it is clear that the appellant Rakesh Kumar Gupta was not even arrested in the village of incident i.e. Mauja Shekhpura. No public witness of his arrest has been produced. In these circumstances, it was entirely possible that seeing the appellant Rakesh Kumar Gupta roaming around in that region, on sheer suspicion, the appellant could have been picked up by the public and given a beating and then handed over to the police and thus he was admitted in the Hospital. PW-2 Smt. Chandrawati Devi could then easily, out of suspicion and out of anger that her husband had been shot dead, nominate the appellant in this crime. No evidence has been produced for showing that the appellant had any criminal antecedents as he was an ITI student and his name was Rajesh and not Rakesh. PW-2 Smt. Chandrawati Devi could then easily, out of suspicion and out of anger that her husband had been shot dead, nominate the appellant in this crime. No evidence has been produced for showing that the appellant had any criminal antecedents as he was an ITI student and his name was Rajesh and not Rakesh. If the appellant had participated in this crime, then after his apprehension the appellant Rakesh Kumar Gupta would certainly have divulged the name of the other accused, as the prosecution case was that two persons had come, one of whom was fat and the other was thin, who had fired on the deceased and then run away from the spot. But that name was never revealed. There is no evidence to show that the appellant had any connection with Rudal or that he had disclosed his name as the person who had sent him to commit this crime. That is why we find that the names of the conspirators are not mentioned in the FIR. We also see that the appellant Rakesh Kumar Gupta had incurred a huge risk in claiming test identification by the witnesses including PW-2 Smt. Chandrawati Devi, but the said identification was not carried out, even though admittedly the appellant Rakesh was not known to PW 2 from before. The prosecution could have thought that the result of the test identification may be unfavourable, and thus an adverse inference could be drawn against the prosecution on this point. 16. We also find that the police had not cared to even produce the medical report of the appellant Rakesh Kumar Gupta, which could have lent some support to the prosecution version that the appellant had been apprehended after the incident and was handed over to the police and brought to the Hospital after being given a beating by the villagers. It was entirely possible that the appellant may have been admitted to the Hospital even prior to lodging of the report by some constable which might have damaged the prosecution version that the appellant had been arrested pursuant to the FIR. As the said paper has not been proved, they cannot be taken into consideration. It was entirely possible that the appellant may have been admitted to the Hospital even prior to lodging of the report by some constable which might have damaged the prosecution version that the appellant had been arrested pursuant to the FIR. As the said paper has not been proved, they cannot be taken into consideration. But by the non-production of the said document by the prosecution, a presumption can be drawn against the prosecution under Section 114(g) of the Evidence Act that the evidence of medical documents if produced may have been unfavourable to the prosecution. 17. Significantly, the two other witnesses who have come forward PW-1 Indal Chauhan and PW-3 Sant Lal, are both sons of the deceased. Their arrival at the precise time of incident seems highly improbable and their presence has not even been mentioned in the FIR. Moreover, there was no reason for these witnesses, if they were present to have been examined by the investigating officer after ten days on 27.11.2003. 18. We also find some merit in the contention of the learned counsel for the appellants that if PW-2 Smt. Chandrawati was present at the spot and had set fire to the weeds, some ashes and pieces of burnt weeds would have been collected by the I.O. Also there was no hole in the kurta that the deceased was said to be wearing at that time. No effort was made to link the so called slippers found at the spot with the appellant. Also if the informant had flashed her torch on the appellant and un-identified accused, she might herself have been fired upon. If the appellant Rakesh Kumar Gupta was arrested on the spot, there was no explanation why neither any country made pistol, nor cartridges were recovered from him, or from the spot, and in case another miscreant associated with him had fled from the spot, alongwith the said weapon, why was he never named, nor apprehended, inspite of the appellant’s arrest and possible beating by his arrestors for which he was hospitalized. 19. Also we find that the allegation of PW-1 Smt. Chandrawati Devi that her sons PW-2 and PW-3 had seen the appellant Rakesh Kumar Gupta talking with two persons at the so called shop where they were drinking tea seems to be an unnatural and fabricated claim. 19. Also we find that the allegation of PW-1 Smt. Chandrawati Devi that her sons PW-2 and PW-3 had seen the appellant Rakesh Kumar Gupta talking with two persons at the so called shop where they were drinking tea seems to be an unnatural and fabricated claim. PW-1 has stated that this talk had taken place 10 days prior to the incident in which his father was fired upon, whereas PW-3 has stated that this talk had taken place three days earlier. If these two witnesses Indal and Sant Lal who are relations of Rudal were present, then Rudal would have carried out no such conversation at the tea shop regarding his intention to eliminate the deceased. It is further not stated by PW 1 Indal or PW 3 Sant Lal that any of the two persons with whom the said conversation of Rudal had taken place in their presence was the appellant Rakesh Kumar Gupta. Furthermore so far as the land dispute between Rudal Chauhan and the informant’s side was concerned, no mention of it was at all was made in the FIR. The I.O PW-5, S.K. Mishra has also admitted that in her 161 Cr.P.C statement, PW-2 Smt. Chandrawati had not stated anything about the land dispute with the appellant Rudal. 20. For all the aforesaid reasons we are of the opinion that there is no reliable evidence for establishing the case against the appellants beyond reasonable doubt. The judgement of the trial Court convicting and sentencing the appellants as above therefore deserves to be set aside. The appellants are acquitted of the charges for which they have been convicted. Appellant Rudal Chauhan is on bail. He need not surrender to his bail bonds. His bail bonds are cancelled and sureties are discharged. The appellant Rakesh Kumar Gupta @ Rajesh Kumar Gupta is in jail. He should be released forthwith unless wanted in connection with another case. Let this order and record of the case be transmitted to the lower Court for compliance.