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Allahabad High Court · body

2016 DIGILAW 383 (ALL)

HARI SHANKAR SINGH v. STATE OF U. P.

2016-02-01

ARVIND KUMAR MISHRA I, ARVIND KUMAR TRIPATHI

body2016
JUDGMENT By the Court.—Present criminal appeal has been preferred by appellant Hari Shakar Singh against judgment and order of conviction and sentence dated 19.8.1988 passed by VI Additional Sessions Judge, Allahabad in Sessions Trial No. 384 of 1986, under Sections 302, 307 IPC, Police Station - Handia, District Allahabad arising out of Case Crime No. 152 of 1986, whereby the appellant has been sentenced with life imprisonment for offence under Section 302 IPC. However, he has been acquitted for the offences under Section 307 IPC. 2. Facts giving rise to this appeal are that complainant Dharam Pal Singh lodged written report at Police Station -Handia, District Allahabad on 11.6.1986 around 2.40 a.m. regarding the incident having taken place in the same intervening night with averments that complainant alongwith his elder brother Ram Dutt Singh, Hari Ram Singh, younger brother and brother-in-law Gopi Nath Singh were sleeping near the cattle-shed after taking meal. One illuminated lantern was hanging on a bamboo-peg. At around 12.30 p.m. in the night sound of fire was heard by them and when they woke up and flash the torch, whereupon, they saw Hari Shanker Singh of the same village was having countrymade pistol in his hand and was accompanied by one unknown person, but he can identify him as and when he comes before him. The complainant side tried to catch Hari Shanker Singh, whereupon the another person asked Hari Shanker Singh that in case they would have given any pursuit they should also be fired upon. Due to this the complainant side were scared and both the persons made their escape good. It has been made clear in the First Information Report that some land in dispute was the cause of the offence and the complainant side had won the case. Deceased Ram Dutt Singh used to conduct and take care of litigation, due to aforesaid reason complainant’s elder brother was killed out of envy and the fire hit complainant’s son on his left chest. While the complainant alongwith others was carrying the injured on way to police station on cot, he died. Report be lodged and action be taken. This written report is Exhibit Ka-1, entries were made chik FIR No. 124 at crime No. 152/1986 under Section 302/307 IPC, P.S. Handia, District Allahabad. While the complainant alongwith others was carrying the injured on way to police station on cot, he died. Report be lodged and action be taken. This written report is Exhibit Ka-1, entries were made chik FIR No. 124 at crime No. 152/1986 under Section 302/307 IPC, P.S. Handia, District Allahabad. Relevant entries were also made in the G.D. It is reflected from the record that as soon as the report was lodged at the police station inquest report was prepared. It commenced around 3.00 a.m. and was completed around 4.00 a.m. on 11.6.1986. The Investigating Officer recorded statement of the complainant and other persons present over there in the police station itself, besides preparing the inquest report, he thereafter proceeded to the spot around 10.30 a.m. in the morning on 11.6.1986, where he prepared the site plan. The Investigating Officer also prepared memo of torch, which is exhibit ka-2, besides preparing memo of clothes and cot etc, exhibit ka-3. The Kathari and cot was handed over in the custody of complainant side and a memo of the same was prepared. The Investigating Officer collected sample of plain earth and blood stained earth from the place of occurrence and prepared memo of the same which is exhibit ka-9. The Investigating Officer also prepared memo of lantern which is exhibit ka-21 on record. It is also reflected from the record that after inquest report various papers were prepared and the dead-body of Ram Dutt was sent for post-mortem examination at the mortuary Allahabad. Post-mortem examination of the dead-body of Ram Dutt was conducted on 12.6.1986 around 12.00 noon by P.W.-4 Dr. Arjun Kumar. The cause of death was stated to be shock and hammehrage due to ante-mortem injuries/gun shot. This post-mortem report has been proved as exhibit ka-6. Besides the Investigating Officer also prepared the site plan exhibit ka-8. 3. After completing investigation the Investigating Officer P.W.-5 Ramesh Chandra Pandey submitted charge-sheet which is exhibit ka-10. Thereafter, the case of the appellant was committed to the Court of sessions where the case was made over for trial to the Court of Additional Sessions Judge-VI, Allahabad, who after hearing the appellant and the prosecution on the point of charge found prima facie ground existing for framing charge under Section 302/307. Charge was read over in Hindi and accused denied the charge and opted for trial. Charge was read over in Hindi and accused denied the charge and opted for trial. Thereafter, the prosecution was directed to adduce its evidence. The prosecution examined as many as six eye-witnesses. P.W.-1 Dharam Pal Singh and P.W.-2 Hari Ram Singh are the witnesses of fact and they have described the fact of presence of appellant at the spot possessing country made pistol in his hand at the relevant time of incident. P.W.-3 Gulab Singh who is stated to have arrived at the place of occurrence after the incident had taken place. P.W.-4 Dr. Arjun Kumar, who conducted post-mortem examination of the deceased, P.W.-5 Ramesh Chandra Pandey is the Investigating Officer who has detailed the various steps for completing the investigation. He has also proved filing of charge-sheet against the appellant. P.W.-6 Jhallar Prasad Mishra Head Constable, he has proved relevant G.D. as rapat No. 2 the real G.D. whereby a case was registered against the appellant and the same has been proved as exhibit ka-15. Thereafter, evidence for the prosecution has been closed and statement of accused was recorded under Section 313 Cr.P.C. The appellant denied his complicity in the case and stated that Ram Dutt (deceased) might have been killed by some other person at some other place. All the prosecution witnesses Dharam Pal Singh, Hari Ram Singh and Gulab Singh belonged to the same family and they are giving false testimony against him. The defence did not lead any evidence. The learned lower Court after considering the evidence and circumstances of the case acquitted the appellant under Section 307 IPC and recorded conviction under Section 302 IPC and thereby sentenced for life imprisonment vide judgment and order dated 19.8.1988 consequently this appeal. 4. Heard Sri R.B. Sahai, appeared on behalf of the appellant, Sri Prateek J. Nagar, learned counsel for the complainant and Km. Meena, learned A.G.A. appeared on behalf of the State. 5. Learned counsel for the appellant challenged the judgment of conviction on the ground that the FIR is anti-time. He contended that it is a dark night incident of hit and run away case and no one has seen the incident and the appellant was wrongly implicated. There is a contradiction in the statement of witnesses whether deceased Ram Dutt was wearing vest or not. He contended that it is a dark night incident of hit and run away case and no one has seen the incident and the appellant was wrongly implicated. There is a contradiction in the statement of witnesses whether deceased Ram Dutt was wearing vest or not. It was unnatural that all of them were sleeping near the cattle shed and not in their houses, though they had Pakka houses. He also contended that the statement of P.W.-6 Jhallar Prasad Mishra proceeded to the place of incident. The entry was made in the G.D. regarding departure at 3.00 a.m. on 11.1.1988 the FIR was shown to have been lodged and registered at 2.40 a.m. on the same day i.e. 11.1.1988. There is also contradiction whether the lantern was inside the cattle shed or outside. It appears that incident occurred at some other place and not at the place mentioned in the FIR and no one has seen the incident. But due to enmity, the appellant has falsely been implicated in this case with the allegation that he shot fire. Since the prosecution has failed to prove its case beyond reasonable doubt as such the appellant is entitled to get the benefit of doubt and hence the conviction is liable to be set aside. 6. Learned A.G.A. vehemently opposed the prayer and submitted that there is no contradiction in the statement of witnesses i.e. P.W.-1 Dharam Pal Singh, P.W.-2 Hari Ram Singh and P.W.-3 Gulab Singh- say i.e. the witnesses of fact. They have fully supported the prosecution case. The witnesses woke up after hearing the fire and they saw the appellant with country made pistol near deceased Ram Dutt. There was no reason to falsely implicate the appellant. There was motive to commit offence as there was dispute between the families of the appellant and deceased regarding the land in which a case was decided in favour of the deceased. There is no material contradiction and there is no contradiction in the statement of witnesses, which is corroborated by the medical reports, hence the appeal is liable to be dismissed. 7. Considered the above rival submissions and perused the record of this appeal. 8. According to the prosecution case, incident took place in the night of 9/10.11.1996 when informant Dharam Pal Singh alongwith his brother, deceased Ram Dutt, Hari Ram Singh (P.W.-2) were sleeping near the cattle-shed after taking meal. 7. Considered the above rival submissions and perused the record of this appeal. 8. According to the prosecution case, incident took place in the night of 9/10.11.1996 when informant Dharam Pal Singh alongwith his brother, deceased Ram Dutt, Hari Ram Singh (P.W.-2) were sleeping near the cattle-shed after taking meal. After hearing the sound of fire, P.W.-3 Gulab Singh reached on the spot alongwith other villagers. After the incident injured Ram Dutt was taken to the police station Handia, Allahabad, however, in the way just about 1 km before Handia police station he succumbed to his injuries. Other persons remain standing outside the police station with the dead-body and P.W. 1 Dharam Pal Singh went inside and he given the information for lodging of the FIR which was scribed by H.C. Gulab and on that basis FIR was registered at 2.40 a.m. at case crime No. 152 of 1986, under Section 302 IPC, P.S. Handia, District Allahabad. 9. According to the statement of witnesses P.W.-1 Dharam Pal Singh and P.W. 2 Hari Ram Singh they were sleeping on different cots and when they woke up on hearing the noise of fire they flashed the torch and saw Hari Shanker Singh having country made pistol in his hand alongwith one other person. When the complainant side tried to catch Hari Shanker Singh then on instigation of his companion Hari Shanker Singh fired on them hence they could not chase them due to fear. Subsequently injured was taken to the police station on the same cot. This version was supported by P.W.-1 and P.W.-2. There is no material contradiction except some minor discrepancies, which is natural, but there is no such contradiction which goes to falsify and disprove the prosecution case. According to the statement of P.W.-3 Gulab Singh, when he inquired then he was informed by P.W.-1 and P.W.-2 that Hari Shanker shot at deceased Ram Dutt. He supported that before they reached at police station Handia deceased Ram Dutt succumbed to his injuries. 10. After the lodging of FIR, panchayatnama was prepared in between 3.00 a.m. to 4.00 a.m. thereafter, according to Investigating Officer P.W.-5 Ramesh Chandra Pandey, the statement of all the witnesses were recorded at the police station. He supported that before they reached at police station Handia deceased Ram Dutt succumbed to his injuries. 10. After the lodging of FIR, panchayatnama was prepared in between 3.00 a.m. to 4.00 a.m. thereafter, according to Investigating Officer P.W.-5 Ramesh Chandra Pandey, the statement of all the witnesses were recorded at the police station. The blood stained pieces of Kathari, Lungi and bed sheet were taken by the Investigating Officer subsequently he proceeded at the place of incident and inspected the place of occurrence and prepared site plan. The Investigating Officer has taken plain and blood stained earth which shows that incident had taken place near the cattle shed. As disclosed by the informant and witnesses there is no evidence to create any doubt that the incident took place at any other place. The medical report has also supported the prosecution version and it cannot be said that injury was not caused by country made pistol. Death of the deceased was caused as a result of shock and hemorrhage due to ante-mortem injuries. 11. In direct evidence though motive is not relevant, however in the present case there was dispute regarding land in between the complainant and appellant side and the complainant side had won the case. There was no reason of false implication. Presence of witnesses was also not doubtful because in the villages during summer, villagers normally used to sleep outside their houses. Immediately after fire the appellant was seen with countrymade pistol, beside the cot of the deceased Ram Dutt. The unknown person has not shot fire, as there was no fire-arm in his hand. So it cannot be said that second person might have shot fire. Hence in view of the evidence and statements of witnesses, who are intact and the medical report also corroborated the prosecution case, as such trial Court has rightly believed the statements of witnesses and prosecution case. Hence, it is not a fit case for interference. Since minimum punishment is awarded, hence, on the point of sentence also no interference is required. 12. Hence present appeal is devoid of merit and is hereby dismissed. 13. The appellant is on bail. He shall be taken into custody in the present case to serve out the remaining period of sentence. 14. Office is directed to communicate this order to the concerned Court for compliance of the order.