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2014 DIGILAW 471 (ALL)

DALVEER SINGH v. STATE OF U. P.

2014-02-12

AMAR SARAN, VIRENDRA VIKRAM SINGH

body2014
JUDGMENT Hon’ble Virendra Vikram Singh, J.—All the appellants have been convicted by the judgement of the trial Court dated 20.4.2006 combinedly passed in S.T. No. 363 of 2004 under Sections 147, 148, 302 read with Section 149 I.P.C. and S.T. No. 364 to 367 of 2004 against the appellants Kashmir Singh, Lakhvir Singh @ Lakvinder Singh, Malkhan Singh and Dalvir Singh for offence under Section 4/25 Arms Act. Each of the appellant has been sentenced to undergo R.I. for one year for the offence under Section 147 I.P.C. The appellants were convicted and sentenced to undergo R.I. for two years for the offence of Section 148 I.P.C.. The appellants were convicted with life imprisonment alongwith stipulation of fine and sentence in default for each count. For the offence under Section 4/25 Arms Act each of the appellant has been convicted and sentenced to undergo R.I for two years alongwith the stipulation of fine and sentence in default of the payment of fine. 2. In the present case, three persons were murdered who were the mother and two brothers of Smt. Kuldeep Kaur who lodged the F.I.R. claiming herself to be the eye-witness, on 24.5.2004 with the facts that she was married on 5.4.2004 after the death of her father. Pyara Singh (non-appellant) and his four sons (the appellants before this Court) were pressurising Sohan Singh, the father of the complainant to settle the landed property dispute outside the Court which Sohan Singh did not agree whereupon the appellants and Pyara Singh are said to have felt offended and they threatened to finish the family as a whole. On 23.5.2004, at about 4.00 p.m., the complainant alongwith her husband visited the ‘’Dera of her parental house.’ and slept over the roof. Her mother and both brothers slept in the verandah of the house. At about 2.30 or 3.00 a.m. in the night, Pyara Singh alongwith his four sons in the company of three-four unknown persons being armed with ‘’Tamancha’, knife and sword arrived at and mercilessly murdered Beant Kaur, the mother of the complainant and Balbinder Singh, the brother of the complainant. The other brother of the complainant namely Neetu @ Narendra Singh was alive though he received numerous injuries to his person. He was sent to Rampur for treatment. The other brother of the complainant namely Neetu @ Narendra Singh was alive though he received numerous injuries to his person. He was sent to Rampur for treatment. The complainant lodged written report scribed by Ranjit Singh at 7.50 in the morning of 24.5.2004.The injured Neetu @ Narendra Singh while he was taken to Rampur District Hospital, was found dead. After the inquest of the three dead bodies, they were sent for postmortem. 3. During investigation, the Investigating Officer recorded the statement of the witnesses. On 25.5.2004 in the afternoon, the Investigating Officer is said to have arrested four accused persons who are appellants before this Court and on their confession and pointing out, the weapon of assault to wit three knives and one sword were recovered from the field of Bharat Singh in the village. Memo was prepared and separate offences under Section 4/25 Arms Act were registered against all the appellants. After investigation, charge-sheet was submitted against all the nominated accused persons under Sections 147,148.302/149 I.P.C and separate charge-sheets were also filed under Section 4/25 Arms Act against the four appellants before this Court. Accused Pyara Singh died and did not face the trial. The remaining accused persons who are the appellants before this Court faced trial and were convicted as mentioned earlier. 4. The trial against the appellants commenced by framing charge under Sections 147,148,302 read with 149 I.P.C..Each of the appellants were separately charged for offence under Section 4/25 Arms Act in S.T. No 364 to 367 of 2004. Since the occurrence in question in all the Sessions trials emerged in the course of the same occurrence and were connected with each other, the trials were consolidated making S.T. No 363 of 2004 as the leading case in which the entire prosecution evidence has been recorded. 5. During trial, the prosecution has examined only four witnesses to prove its case who were PW-1 Kuldeep Kaur, the complainant eye-witness, PW-2 Harpal Singh as eye-witness, PW-3 Dr. Raj Kumar who conducted the post-mortem examination over the three dead bodies. S.I. Umesh Chand Kakri as Investigating Officer of the case and closed the prosecution evidence as the genuineness of the left over prosecution documents was admitted by the learned counsel for the defence. 6. Raj Kumar who conducted the post-mortem examination over the three dead bodies. S.I. Umesh Chand Kakri as Investigating Officer of the case and closed the prosecution evidence as the genuineness of the left over prosecution documents was admitted by the learned counsel for the defence. 6. After closure of the prosecution evidence, all the appellants were examined under Section 313 Cr.P.C. The appellants opted to adduced evidence in defence and examined DW-1 Hari Om Agarwal, DW-2 Waseem Akhtar, DW-3 Wajjan and DW-4 Phool Chand in their defence. After the evidence of the parties, learned trial Court after hearing the arguments pronounced the judgement. The appellants were convicted for all all the charges levelled against them and were sentenced in the manner referred to above. 7. Heard learned counsel for the appellants, learned AGA and carefully perused the record of the case. The entire prosecution case hinges on the testimony of two eye-witnesses namely Smt. Kuldeep Kaur and Harpal Singh alongwith the evidence of recovery of blood stain knives from the possession of the appellants. Out of the two witnesses of fact, PW-2 Harpal Singh, the husband of the complainant Kuldeep Kaur, PW-1 has disowned the prosecution version as a whole and has stated that he alongwith his wife, the complainant were at their residence in village Rampur Police Station Khujiriya. That on 24.5.2004 they received information about the tragic murder of his in-laws. He immediately rushed to his in law’s house alongwith his wife. He has denied to have witnessed the occurrence at all. The witness was declared hostile. During cross-examination, on behalf of the State, nothing material could be elicited from the statement of this witness which may be said to have corroborated the prosecution version. On the contrary if the statement of the witness be taken into account, it demolishes the presence of the other witness, his wife the complainant of the case PW1. This witness has deposed against his statement under Section 161 Cr.P.C., hence no importance could be attached to the testimony of this witness. Even in the impugned judgement, no weightage at all has been given to the testimony of this witness. 8. This witness has deposed against his statement under Section 161 Cr.P.C., hence no importance could be attached to the testimony of this witness. Even in the impugned judgement, no weightage at all has been given to the testimony of this witness. 8. PW-1 Smt. Kuldeep Kaur has supported the prosecution version, in her statement in Chief, but during cross-examination, she also turned hostile and stated that whatever she deposed in her statement under Section 164 Cr.P.C. and in her examination-in-chief was under the pressure of the police and after removal of the pressure, she is telling the truth in her cross-examination. Learned trial Court has relied upon the statement of these witnesses so far as it supported the prosecution version. While deciding the present appeal, the question of vital importance is the testimony of PW-1 Kuldeep Kaur and to decide whether the testimony is worth reliance or not. 9. By a number of decisions pronounced by this Court and by the Apex Court as well, it has been held that the conviction can be based on the testimony of a hostile witness and in such case, part of the statement of such witness which favours the prosecution may be relied upon but what shall be the criteria for appreciation of evidence for such witnesses has been discussed by the Hon’ble Apex Court in the case of Mrinal Das v. State of Tripura, (2011) 9 SCC 479 . In paragraph 67 of the judgement, the Apex Court has observed as follows : “It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile furnishes no justification for rejecting en block the evidence of the witness. However, the Court has to be very careful, as prima facie the witness who makes different statements at different times has no regard for the truth as deposition must be examined more causesly to find out as to what extent he has supported the case of the prosecution.” 10. In view of the mandate of the Apex Court, the testimony of PW-1 Smt.Kuldeep Kaur has to be examined. It appears that the witness did not know all the appellants by name while the F.I.R. was lodged. In view of the mandate of the Apex Court, the testimony of PW-1 Smt.Kuldeep Kaur has to be examined. It appears that the witness did not know all the appellants by name while the F.I.R. was lodged. One of the appellant namely Dalvir Singh has not been nominated in the F.I.R. In the earlier part, however, before concluding the F.I.R., there is a mention that the fourth son of Pyara Singh, who participated was named as Jaggu. In her examination-in-chief, the witness has stated that Dalvir Singh is known as Jaggu but in her cross-examination, the witness has again stated that Jaggu was the other son of Pyara Singh who died eight or nine years back. How the names of the appellants were known to the witness, an attempt has been made in the F.I.R. that Pyara Singh alongwith his four sons frequently used to visit at the ‘’Dera’ of her father but this version in the F.I.R. has not been owned by the witness PW-1 whereby she has stated that the accused persons only once extended threats at her ‘’Dera’ and they did not repeat their visit. This statement has been made by the witness in her examination-in-chief whereunder the prosecution version has been supported. The witness has nowhere stated that she was present at the place where the accused persons extended threats to her father. Thus, the fact that the accused persons were known to the complainant PW-1 Kuldeep Kaur by their names and faces, appears to be doubtful even though she correctly recognized all the appellants separately in the Court. 11. PW-1 Kuldeep Kaur is a chance witness. She has stated that she chanced to visit the place of occurrence in terms that just a day before she alongwith her husband, Harpal Singh in order to meet her family men visited the ‘Dera’(residence) of her parents. It is proper to mention it here that the witness was married just about one and a half month prior to the occurrence in question and admittedly, she was living at her in-laws place. Except the general ground of visiting her family members, no good reason to visit the place of occurrence has comeforth. It is proper to mention it here that the witness was married just about one and a half month prior to the occurrence in question and admittedly, she was living at her in-laws place. Except the general ground of visiting her family members, no good reason to visit the place of occurrence has comeforth. The complainant is a married lady and whose marriage took place just a few weeks back and the married ladies are at this juncture of time not likely to visit their parental house unless there is a strong reason for the same or some occasion or ceremony at her parental house. No such chance has been explained by the prosecution. It is admitted to PW-1 that she visited her parental house alongwith her husband. PW-2 Harpal Singh, the husband of PW-1 Kuldeep Kaur has categorically stated that he alongwith his wife visited the place of occurrence next day in the morning after receiving the news about the murder of three family men. Thus the chance of the witness or his presence at the scene of occurrence in the relevant night is not explained which casts a doubt about the trustworthiness of this witness. 12. According to the statement of this witness, the occurrence took place at 2.30 or 3.00 a.m. in the morning but she alongwith her husband came down from the roof where they were sleeping and witnessed the occurrence in the morning. This aspect makes the credibility of this witness highly doubtful. Any person who has witnessed the fatal assault over his near and dears none less than the two brothers and the mother shall never wait for the sunrise and shall immediately come down at least after the retreat of the miscreants from the scene of occurrence to ensure whether any of the three injured is still alive and to give them the earliest medical assistance for their survival. 13. According to the statement of Smt. Kuldeep Kaur, she alongwith her husband were sleeping over two different beddings. There was no staircase in the house, hence, they went to the roof while using a laddar. According to the witness, the ladder and the bedding were present even when the investigating officer visited the spot. In the site plan, Ex Ka-23 neither the ladder nor the beddings where the two witnesses were sleeping has been shown. There was no staircase in the house, hence, they went to the roof while using a laddar. According to the witness, the ladder and the bedding were present even when the investigating officer visited the spot. In the site plan, Ex Ka-23 neither the ladder nor the beddings where the two witnesses were sleeping has been shown. Even the place where from the witnesses Pw1 and Pw2 saw the occurrence has also not been shown, which definitely casts adverse reflections on the prosecution case. 14. Smt. Kuldeep Kaur is thus a witness who has been declared hostile by the prosecution. She has changed her statement from time to time. In her cross-examination she supported the prosecution version but in her cross-examination she deposed that whatever she stated was under the pressure of the police. She has also stated that it was dark in the night that the assailants could not be identified as no source of light was available. She has denied the presence of Petromax at the time of occurrence. 15. Having considered the different aspects and the lacunas in the statement of P.W.-1, whose testimony has not been owned by the prosecution itself, does not appear to be trust worthy at all and the statement of PW-1 Kuldeep Kaur does not fulfil the test of a reliable witness at all. The discussions made above goes to show that even if the statement of this witness made in the examination in chief be taken into account she ceases to be a reliable witness at all. She can never be treated to be a witness so reliable that her sole testimony be considered good enough for the conviction of the appellants. The trial Court has wrongly held the witness PW-1 Kuldeep Kaur as reliable. 16. It has been argued by the learned AGA that the F.I.R. of the case has been lodged promptly and all the accused persons except Dalvir Singh were nominated in the F.I.R.. On behalf of the appellants, the genuineness of the F.I.R. has also been challenged. It has been argued that nobody in fact witnessed the occurrence in question. After the occurrence in the next day morning, the complainant Kuldeep Kaur was informed and was made to lodge the report on the dictation by the police. On behalf of the appellants, the genuineness of the F.I.R. has also been challenged. It has been argued that nobody in fact witnessed the occurrence in question. After the occurrence in the next day morning, the complainant Kuldeep Kaur was informed and was made to lodge the report on the dictation by the police. In the F.I.R. there is a mention to the effect that before the complainant left for lodging the report that Neetu @ Narendra Singh was alive and he was immediately sent to Rampur Hospital for treatment. It appears highly improbable that the complainant who has lost her mother and one brother shall not join her younger brother while he was being taken to Rampur hospital for treatment and shall prefer to lodge the report first. Since the report was registered at the police station at 7.50 am obviously Neetu @ Narendra Singh, since deceased, must have been transported for his treatment much before lodging of the report. The prosecution document marked at Exhibit ka -34 is the letter of the Medical Officer, Rampur to Inspector Kotwali Rampur with the information that Neetu @ Narendra Singh was brought to his hospital at 11.30 a.m. as dead. Rampur is situated only at a distance of 17 kms from the place of occurrence and to travel this distance, it must not have taken more than half an hour. Thus, it is evident that Neetu @ Narendra Singh was infact removed from the place of occurrence for his treatment at about 11.00 a.m. in the morning and it was only after this time that the F.I.R. was lodged and thus the F.I.R. appears to be ante-timed and the defence version that nobody saw the occurrence and the complainant Smt. Kuldeep Kaur was called from her in law’s house next day morning and she was made to be the complainant claiming herself to be the eye-witness. Thus the very edifice of the prosecution version to wit the F.I.R. becomes highly doubtful. 17. On behalf of the defence, an attempt has been made to show that nobody witnessed the occurrence. Thus the very edifice of the prosecution version to wit the F.I.R. becomes highly doubtful. 17. On behalf of the defence, an attempt has been made to show that nobody witnessed the occurrence. DW-2 Waseem Akhtar a press reporter of ‘Dainik Jagran’ has proved the newspaper dated 25th May, 2004 which carries the description of the present occurrence with the reporting that the occurrence took place in mid of night and the occurrence could be noticed at 8.00 a.m. in the morning when the milkman saw the dead bodies. The reporting also mentions that the appellants have been arrested alongwith weapon of assault. If this press note be taken into consideration, it is evident that infact PW-1, the complainant did not witness the occurrence at all but the press note is not a good evidence to prove the fact mentioned therein as it has been held in the case of Ravindra Kumar Sharma v. State of Assam and others, (1999) 7 SCC 435 , which lays down that the newspaper reports are merely here-say and they do not prove the fact stated therein. In view of the decision of the Apex Court, the Court does not propose to disbelieve the testimony of PW-1 on this score but while examining the testimony of the witness, on different angles, known to law, the presence of the witness is highly doubtful and she ceases to be a reliable witness and the conviction based on the testimony of such a witness was bad in law. 18. The discussions made so far makes it clear that both the alleged eye-witnesses are not reliable and worth basing the order of conviction. Now remains the other evidence to be examined as to whether the appellants were found in possession of the weapons of assault. This evidence has also been relied upon for basing conviction of each of the appellants for the offence under Section 4/25 Arms Act. 19. Now remains the other evidence to be examined as to whether the appellants were found in possession of the weapons of assault. This evidence has also been relied upon for basing conviction of each of the appellants for the offence under Section 4/25 Arms Act. 19. The evidence of recovery of weapon of assault from the appellants is that on 25.5.2004, the S.O. Ram Khilari Singh alongwith S.I. Ramesh Chand Kakri, P.W.4 having received information about the presence of the appellants proceeded and arrested all the four appellants at the culvert of the small canal at 2.00 p.m. All the appellants are said to have confessed their guilt of murdering three persons and on the pointing out of all the four appellants, one sword and three knifes were recovered from the field of Bharat Singh which were covered by the earth around it. Kashmir Singh, appellant owned up the possession of sword whereas the remaining three appellants owned up the possession of three respective knives recovered from the field of Bharat Singh. The recovery memo was prepared at the spot on the basis of which, separate cases under Section 4/25 Arms Act were registered against each of the appellant. All the weapons which the appellant described to be the weapons of assault were found to be blood stained but there is no report of chemical examiner that any of the weapon was found to be stained with human blood or that the human blood over the weapons was all the same group, the deceased had. There is evidence to the effect that the weapons were sent for chemical examination but there is no report of the chemical examiner on record, hence the prosecution utterly failed in proving that the weapons were stained with human blood. The appellants after they were taking into custody are said to have confessed their guilt before the police but such confession is not a relevant piece of evidence nor such confession is admissible in view of Section 25 of the Indian Evidence Act. 20. Now remains the only evidence to be examined whether the appellants were found in possession of the weapon of assault, which were contraband, on 25.5.2004 at 2.00 p.m.. Smt. Kuldeep Kaur, PW-1 in her cross-examination has categorically stated that while the police arrived at the scene of occurrence, took away two dead bodies. 20. Now remains the only evidence to be examined whether the appellants were found in possession of the weapon of assault, which were contraband, on 25.5.2004 at 2.00 p.m.. Smt. Kuldeep Kaur, PW-1 in her cross-examination has categorically stated that while the police arrived at the scene of occurrence, took away two dead bodies. The police also took away with them the sword and the knifes which were lying in the Courtyard. It is true that this statement has been given by Smt. Kuldeep Kaur in her cross-examination after she was declared hostile and was cross-examined by the learned State Counsel. Nowhere in the cross-examination any question has been asked on behalf of the State about the presence of weapon of assault in the Courtyard nor it has been suggested to the witness that she falsely deposed about the presence of weapon of assault in the Courtyard. Thus the statement of Smt.Kuldeep Kaur that the weapons were lying in the Courtyard and they were taken away by the police with them on 24.5.2004 carries weight and in view of the uncontroverted statement of the witness P.W.-1, the entire version of the prosecution that these weapons were recovered on 25.5.2004 by the police on the pointing out of the four accused persons becomes highly doubtful and the evidence of recovery which has come in the statement of only the witness PW-4 becomes highly doubtful. 21. The case of the defence is that all the accused persons were innocent and they did not made any attempt to abscond. It has also been stated that Pyara Singh, co-accused, the father of all the appellants, was so severely confined to bed that he was unable to move and even all the four appellants were arrested from their house when Pyara Singh was also present but Pyara Singh was not taken by the police with them because of his pathetic physical condition.DW3 Wajjan has given evidence to this effect. Thus, the case of the defence is that the appellants were infact arrested on 24.5.2004 and the recovery of sword and knifes have been planted on them after they were collected from the place of occurrence appears to be quite plausible from the statement of the sole witness PW1 Smt Kuldeep Kaur. 22. On behalf of the appellants, during trial DW-2 Waseem Akhtar has been examined. 22. On behalf of the appellants, during trial DW-2 Waseem Akhtar has been examined. This witness is a press correspondent for ‘Dainik Jagran’ who has proved the ‘Dainik Jagran’ news paper dated dated 25.5.2004 and has stated that he has given this news as press correspondent that all among the nominated accused persons, have been arrested after he saw all the accused persons at the police station in custody. The statement of this witness finds corroboration from the newspaper dated 25.5.2004 which carries news item on the front page about the occurrence in question and after that the four nominated accused persons have been arrested. The Court can easily take judicial notice of the fact that a newspaper is distributed early in the morning and thus on 25.5.2004 early in the morning, the news was flashed in the newspapers about the arrest of the appellants. The press report and the newspaper thus definitely goes to support the statement of D.W.-2 and in view of this evidence adduced by defence, the defence case that the appellants were arrested on 24.5.2004 becomes highly probable and the entire version of the prosecution about the recovery of contraband weapons following the joint confession of all the appellants on 25.4.2004 in the after noon becomes highly doubtful and unworthy of reliance. In view of the evidence available, the conviction of all the appellants for the offence under Section 4/25 Arms Act as also the use of this evidence as corroboration for the evidence to the statement of eye-witnesses is found to be erroneously recorded. Thus each of the appellant deserve to be acquitted of the charge under Section 4/25 Arms Act levelled against each of them. 23. The offence in question is definitely a grave offence whereby three persons of the same family were mercilessly murdered, but simply considering the gravity of the offence, the Courts are not supposed to swayed away to record conviction even though no sufficient reliable evidence could be adduced by the prosecution or the evidence produced was not reliable as in the present case. 24. Having considered the facts and circumstances of the case as also considering the different evidence recorded on behalf of the prosecution and the defence, the Court is of the opinion that the testimony of eye-witness is not reliable. 24. Having considered the facts and circumstances of the case as also considering the different evidence recorded on behalf of the prosecution and the defence, the Court is of the opinion that the testimony of eye-witness is not reliable. Corroborative evidence of the recovery of blood stained sword and knives from the possession of the appellants is again found to be doubtful and not free from embellishment. The recovery has been proved by the only witness who is the I.O. of the case and such witnesses are generally interested in the fruition of their version and the present case also appears to be of the same category where in order to give strength to the prosecution case, false recovery was concocted against the appellants. Thus, from the evidence adduced, the conviction of the appellants for the three murders as also for possession of contraband weapons was bad in law and the conviction recorded against each of the appellants for the offences charged and on proof by the trial Court cannot be sustained Each of the appellant deserves to be acquitted of the charges. The appeal filed by each of the appellant deserves to be allowed. The appeal filed by each of the appellant is allowed. The conviction recorded by the trial Court for each of the appellant for offences under Sections 147, 148, 302 read with 149 I.P.C. and further for offences under Section 4/25 Arms Act against each of the appellants is hereby set aside. Each of the appellant shall immediately be released forthwith for these offences, if not detained in any other case.