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2017 DIGILAW 133 (ALL)

RAM KISHSORE v. STATE OF U. P.

2017-01-11

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 6.11.1995 passed by IV-Additional Sessions Judge, Fatehpur, in Sessions Trial No. 495 of 1993 State of U.P. v. Chhedu @ Jageshwar and others, arising out of Case Crime No. 197 of 1992, under Sections 302 read with Section 34 IPC, Police Station-Ghazipur, District-Fatehpur whereby the appellant Ram Kishore has been sentenced to life imprisonment coupled with fine Rs. 5,000/- under Section 302 read with Section 34 IPC. 2. Heard Sri R.B. Sahai, learned counsel for the appellant and Sri A.N. Mulla, Sri J.K. Upadhyay, Kumari Meena, Mrs. Manju Thakur, learned AGAs for the State and perused the record of this appeal. 3. Relevant to mention that appellant Chhedi Lal in connected Criminal Appeal No. 2108 of 1995 and appellant Chheddu @ Jageshwar in connected Criminal Appeal No. 2141 of 1995 have since expired during pendency of the aforesaid appeals, therefore, their appeals stood abated by this Court on 5.1.2017. 4. Facts germane as reflected from perusal of the record and particularly from the First Information Report lodged by Raj Karan Singh PW-1 on 5.8.1992 at 9:30 p.m. reveal that the named report was lodged against three accused persons Chheddu @ Jageshwar son of Prabhu Lodh, Chhedi Lal Lodh son of Mohan Lal and Ram Kishore Lodh son of Anand Swaroop Lodh qua causing murder of Deo Saran Singh @ Babu Singh, Pradhan of Village - Karsawan with the allegations that on 5.8.1992 about 8:00 p.m., the informant, his brothers namely Deo Saran Singh @ Babu Singh and Ram Karan Singh had gone to house of Ram Prasad Chamar to engage labourers for plantation of paddy and were standing under Neem tree in front of Sahan of Ram Prasad. When they were about to leave the place after telling Ram Prasad that tomorrow he will come at work, in the meanwhile Chheddu @ Jageshwar, Chhedi Lal and Ram Kishore appeared from western side and were seen in the torch light. Pradhan Ji (Deo Saran Singh @ Babu Singh) asked the informant that they will leave only when these persons move away from the place. As soon as these persons came close to them, Chheddu @ Jageshwar exhorted that Pradhan Ji should not be spared and fired on him. Pradhan Ji (Deo Saran Singh @ Babu Singh) asked the informant that they will leave only when these persons move away from the place. As soon as these persons came close to them, Chheddu @ Jageshwar exhorted that Pradhan Ji should not be spared and fired on him. When alarm was raised by the informant and his brother, all the three persons after opening fire fled away towards northern side. Pradhan Ji died on the spot. Several villagers after hearing sound of firing also arrived on the spot. Last year, Chhedi Lal and his associates had beaten up the informant and his family members for which a case was pending in the Court but the speaking terms were resumed for about three months between the parties. The dead body has been brought to the police station by horse-cart (Tanga) of Shiv Prasad Chamar. Report be lodged and action be taken. This written report is Ext. Ka-1. 5. Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No. 197 of 1992 under Section 302 IPC, at Police Station Ghazipur, District Fatehpur, on 5.8.1992 at 9:30 p.m. Check FIR is Ext. Ka-19. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial No. 36 on 5.8.1992 at 21:30 hours at aforesaid case crime number at Police Station Ghazipur under aforesaid section of I.P.C. against accused-appellant. General diary copy is Ext. Ka-20. 6. The investigation of the case was taken over by Radhey Shyam Dwivedi, PW-6 on 5.8.1992 itself. He ensured inquest of the deceased Deo Saran Singh @ Babu Singh through S.I. Bhulayee Ram. After selecting inquest witnesses, inquest was held. The witnesses concurred with the Investigating Officer that the dead body be sent for post mortem examination in order to ascertain real cause of death. The inquest report is Ext. Ka-7. 7. Record reflects that S.I. Bhulayee Ram PW-5 who prepared inquest report under supervision of the Investigating Officer also prepared certain papers for sending the body for post mortem examination in form of Challan dead body, Photonash, letter to CMO and letter to R.I. and has proved the same as Ext. Ka-8 to Ext. Ka-11. Specimen seal is Ext. Ka-12. 7. Record reflects that S.I. Bhulayee Ram PW-5 who prepared inquest report under supervision of the Investigating Officer also prepared certain papers for sending the body for post mortem examination in form of Challan dead body, Photonash, letter to CMO and letter to R.I. and has proved the same as Ext. Ka-8 to Ext. Ka-11. Specimen seal is Ext. Ka-12. Thereafter dead body of the deceased Deo Saran Singh @ Babu Singh was sent for post mortem examination in the mortuary at Fatehpur. The post mortem examination on cadaver of the deceased Deo Saran Singh @ Babu Singh was done by Dr. Harish Chand on 6.8.1992 at 4:00 p.m. wherein he noted the following ante mortem injuries: 1. Fire-arm wound of entry 1 cm x 1 cm on the outer aspect of right arm 10 cm above elbow with fracture of humerous bone deep, (one deformed pellet recovered from wound). No blackening, tattooing and scorching seen. Direction was towards inner side. 2. Fire-arm wound of entry 1 cm x 1 cm on outer aspect of right forearm 6 cm below elbow, muscle deep, communicating with injury No. 3. No blackening, tattooing and scorching seen. 3. Fire-arm wound of exit 1 cm x 1.5 cm on inner side of right forearm, communicating with injury No. 2, 4 cm medial to injury No. 2, directing medially. 4. Fire-arm wound of entry 1 cm x 1 cm on right side of chest 6 cm below the arm pit. Cavity deep in right lung one pellet recovered from right lung. 5. Fire-arm wound of entry 1 cm x 1.2 cm on right side of chest lower part directing medially and downwards to right lobe of lower. One pellet recovered. No blackening, tattooing and scorching seen. 6. One fire-arm wound of entry 1 cm x 1 cm on right side of abdomen 6 cm below injury No. 5, directing medially and downwards cavity deep. No blackening, tattooing and scorching seen One pellet recovered from right side of lumbix vertebra. 7. Three contusions on the back side of stomach in the area of 2 cm x 8 cm outer side region in the size of 1 cm x 1.5 cm, 1 cm x 1 cm and 1 cm x 0.5 cm. 8. In the opinion of the doctor, cause of death was shock and haemorrhage as a result of ante mortem injuries No. 1 to 6. 8. In the opinion of the doctor, cause of death was shock and haemorrhage as a result of ante mortem injuries No. 1 to 6. This post mortem examination report is Ext. Ka-2. 9. Besides the Investigating Officer, PW-6 recorded statement of the brother of the deceased Raj Karan Singh and another brother Ram Karan Singh at the police station and arrived on the spot in the night intervening 5/6.8.1992 at Village-Karsawan. Next morning, he prepared site plan of the place of occurrence which is Ext. Ka-13. He also collected simple and blood stained clay roll from the spot and also recovered one discharged 12 bore cartridge and made a memo of the same Ext. Ka-14. He also arrested the accused Ram Kishore within periphery of Village-Pakhrauli and lodged him in the police lock up on 6.8.1992. The Investigating Officer completed various other formalities and after completing investigation, he filed charge-sheet against the accused-appellant under Sections 302, 120B IPC, which is Ext. Ka-18. The Investigating Officer also proved entries made in the Check FIR and general diary as above. 10. Pursuant thereto, proceedings were committed to the Court of Sessions from where it was made over for conduction of trial and disposal of the case to the aforesaid trial Court of Additional Sessions Judge, Fatehpur who in turn heard both the sides on point of charge and was prima facie satisfied with case against the accused-appellant, accordingly, framed charge under Sections 302/34 IPC. Charge was read over and explained to the accused-appellant who abjured charge and opted for trial. 11. In furtherance of the proceedings, the prosecution produced in all 6 witnesses. A brief sketch of witnesses is here under : 12. Raj Karan Singh PW-1 is the informant and has proved the written report Ext. Ka-1. He claims himself to be eye-witness of the incident. Dr. Harish Chandra has conducted post mortem examination on cadaver of the deceased Deo Saran Singh @ Babu Singh. He has proved post mortem examination report as Ext. Ka-2. Raj Karan Singh PW-1 is the informant and has proved the written report Ext. Ka-1. He claims himself to be eye-witness of the incident. Dr. Harish Chandra has conducted post mortem examination on cadaver of the deceased Deo Saran Singh @ Babu Singh. He has proved post mortem examination report as Ext. Ka-2. Binda PW-3 is not concerned with merit of the case of the present accused-appellant, for the reason that he was witness of fact of recovery of some incriminating material against another co-accused Chheddu @ Jageshwar, therefore, his testimony need not be taken into account for weighing merit of the case of the present accused-appellant as the appeal qua accused Chheddu @ Jageshwar has been abated by this Court. Constable Shyam Narain Singh PW-4 also made certain entries in the police record regarding some case under the Arms Act against another co-accused, therefore, his reference need not be given for assessing merit of the case of the present accused-appellant. S.I. Bhulayee Ram PW-5 has held inquest of the deceased Deo Saran Singh @ Babu Singh and has proved inquest report Ext. Ka-7, besides proving the other relevant papers for sending dead body in order to conduct post mortem examination at Fatehpur. Radhey Shyam Dwivedi PW-6 is the Investigating Officer of this case. He has detailed various steps, he took in completing investigation. He also filed charge-sheet against the accused-appellant. 13. Except as above, no other evidence was adduced by the prosecution. Therefore, evidence for the prosecution was closed. The statement of the accused was recorded under Section 313 Cr.P.C. wherein he termed his implication false on the ground of enmity and village Partibandi. Defence did not lead any evidence. 14. The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 302 read with Section 34 IPC and sentenced the appellant to life imprisonment coupled with fine Rs. 5,000/- under Section 302 IPC. 15. Consequently, this appeal. 16. Learned counsel for the accused-appellant has vehemently contended that in this case, conviction by invoking help of Section 34 IPC is wholly unjustifiable and its application is not based on evidence. There is no worthy evidence involving participation of the accused-appellant in the crime. 5,000/- under Section 302 IPC. 15. Consequently, this appeal. 16. Learned counsel for the accused-appellant has vehemently contended that in this case, conviction by invoking help of Section 34 IPC is wholly unjustifiable and its application is not based on evidence. There is no worthy evidence involving participation of the accused-appellant in the crime. Admittedly, fatal shot was fired by Chheddu @ Jageshwar and not by the accused-appellant. Time of occurrence is 8:00 p.m. It was complete darkness. Presence of eye-witness on the spot is doubtful because post mortem examination report indicates as many as seven ante mortem injuries on cadaver of the deceased Deo Saran Singh @ Babu Singh, whereas, theory of one shot being fired on the spot has been deposed by Raj Karan Singh PW-1. There is want of independent witness and corroboration of crime from independent circumstance. In fact, the deceased Deo Saran Singh @ Babu Singh was killed by someone else as he was having enmity with many persons on various grounds due to criminal cases pros and cons. 17. Learned counsel for the accused-appellant has further contended that neither the accused-appellant had any specific motive to commit crime nor has any such specific motive been attributed against him. Finding of conviction by invoking help of Section 34 IPC is blatantly erroneous and it shows non-application of mind to the evidence, facts and circumstances of the case by the trial Court. The Investigating Officer claims that he arrived on the spot around 12:15 a.m. in the night but Raj Karan Singh PW-1 says that Daroga Ji arrived on the spot next morning around 7:00 to 8:00 a.m. when Panchayatnama was prepared. Why was inquest report not prepared in the night itself has not been clarified by the prosecution witness. The prosecution has failed to prove its charge beyond reasonable doubt. Therefore, learned trial Court was not justified in awarding sentence under Section 302 read with Section 34 IPC against the accused appellant. 18. Why was inquest report not prepared in the night itself has not been clarified by the prosecution witness. The prosecution has failed to prove its charge beyond reasonable doubt. Therefore, learned trial Court was not justified in awarding sentence under Section 302 read with Section 34 IPC against the accused appellant. 18. Per contra, the learned AGA retorted to aforesaid arguments by submitting that circumstances of the case are clinching and consistent and the case of the prosecution is coherently proved by evidence as well as circumstances of this case which proves that the accused-appellant was present on the spot and was accompanying the other assailants at the time of occurrence and has been named in the First Information Report as one of the assailants. For participation in the crime, it is not necessary that some overt act in form of causing injury or death must have been caused but legal principle applies that the person who is one of the members of the assailants or miscreants, was present at the time of committing the crime and he joined out of his own volition and he escaped alongwith the other assailants after the main crime was committed then circumstances and testimony confirming that aspect would be deemed to have fastened constructive liability on the accused concerned. 19. Learned AGA has further submitted that three accused persons have been named in this case. They equally participated in the offence. One of them shot Deo Saran Singh @ Babu Singh dead and they were armed with countrymade pistol and they were seen fleeing away from the scene of occurrence after the offence was accomplished. Merely laches committed by the Investigating Officer will not be sole the ground for ruling out the prosecution case. Testimony of Raj Karan Singh PW-1 establishes culpability of the accused-appellant in committing the crime. The accused-appellant has been rightly convicted and sentenced by the trial Court. 20. We have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal relates to fact whether the accused appellant has committed crime alleged and the prosecution has been able to prove its charge under Section 302 read with Section 34 IPC beyond reasonable doubt ? 21. 20. We have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal relates to fact whether the accused appellant has committed crime alleged and the prosecution has been able to prove its charge under Section 302 read with Section 34 IPC beyond reasonable doubt ? 21. Admittedly, there is only single witness of fact namely Raj Karan Singh, the informant PW-1 who claims himself to have been present on the spot at the time of occurrence which took place in Village Karsawan on 5.8.1992 at 8:00 p.m. when he alongwith his two brothers Deo Saran Singh @ Babu Singh and Ram Karan Singh went to engage manual labourer Ram Prasad for plantation of paddy crops at his house where they were standing under Neem tree in front of Sahan of Ram Prasad and they have settled the matter with Ram Prasad after suggesting to come tomorrow at work. When they were about to leave the place, in the meanwhile several accused persons including the appellant appeared on the spot and one of them exhorted that they should not be spared and fired on the deceased Deo Saran Singh @ Babu Singh due to which Deo Saran Singh @ Babu Singh died on the spot. They raised alarm and all the three assailants fled away towards northern side after firing. 22. Claim has been made on behalf of the accused-appellant that no such incident was ever witnessed by Raj Karan Singh PW-1 and he was not present on the spot. As per testimony of the Investigating Officer Radhey Shyam Dwivedi PW-6, in examination-in-chief appearing on page 41 of the paper-book, he arrived on the spot in the night intervening 5/6.8.1992 around 12:15 a.m. but prepared site plan the very next day and proved the same as Ext. Ka-13. But as per testimony of Raj Karan Singh PW-1 appearing in his cross-examination on page 30 of the paper-book in paragraph 13, he says that Daroga Ji arrived on the spot next morning around 7:00 - 8:00 a.m. and he stayed for about 10-15 minutes then he did not come across him. This anomaly shows that the police has tried to twist facts of the case and the Investigating Officer is not coming with true facts. He did not arrive on the spot in the night intervening 5/6.8.1992. 23. This anomaly shows that the police has tried to twist facts of the case and the Investigating Officer is not coming with true facts. He did not arrive on the spot in the night intervening 5/6.8.1992. 23. Except testimony of Raj Karan Singh PW-1, there is no any other factual testimony corroborating testimony of PW-1. As per testimony of PW-1 emerging in his examination in chief, it was around 8:00 p.m., they were standing in front of door of Ram Prasad under Neem tree. Ram Prasad agreed to work for plantation of paddy crops and when they were about to leave the place, several persons including the appellant appeared from western side then the deceased Deo Saran Singh @ Babu Singh (Pradhan Ji) suggested that they will move only after the accused persons passed by them. The assailants when passed by them and were at a distance of 4-5 steps then one accused exhorted to open fire and one of them say Chhedu @ Jageshwar fired on the deceased Deo Saran Singh @ Babu Singh. Alarms was raised and the assailants by firing with their respective weapons fled away towards northern side. Deo Saran Singh @ Babu Singh (Pradhan Ji) died on the spot. 24. It has come in testimony of the Investigating Officer PW-6 that at the time of preparation of site plan, he also recovered one discharged cartridge from the spot but the post mortem examination report very much doubts ocular testimony of PW-1 because as many as seven ante mortem injuries have been found on the body of the deceased Deo Saran Singh @ Babu Singh. By perusal of post mortem examination report Ext. Ka-2, it transpires that several gun shot woulds have been noted as entry wounds, whereas, certain other wounds have been noted by the doctor PW-2 in the post mortem examination report. This obviously reflects that it is a case of several fires being opened on the spot and it is not case of a single fire as testified by Raj Karan Singh PW-1 in his testimony in examination in chief. Even in his cross-examination, PW-1 has not supported ante mortem injuries as to how it had been caused to the deceased Deo Saran Singh @ Babu Singh0. 25. This post mortem report by itself is conducive to the interpretation that PW-1 is not telling the truth or was not present on the spot. Even in his cross-examination, PW-1 has not supported ante mortem injuries as to how it had been caused to the deceased Deo Saran Singh @ Babu Singh0. 25. This post mortem report by itself is conducive to the interpretation that PW-1 is not telling the truth or was not present on the spot. Had he been present on the spot, nature of injury must have been explained by him with accuracy and he could have given sort of description from where legal inference could have been drawn to the impact and magnitude that several fires were hit on the deceased Deo Saran Singh @ Babu Singh and in fact it hit the deceased Deo Saran Singh @ Babu Singh. 26. In this view of the matter, we after thoughtful consideration of the post mortem examination report Ext. Ka-2 and ocular testimony of Raj Karan Singh PW-1 though not corroborated from any other independent source becomes dubious and suspicious and we cannot place reliance on the same as his testimony in so far as against the accused-appellant is concerned, becomes wholly unreliable. The prosecution has failed to prove its case under Section 302 read with Section 34 IPC. Moreso, applicability of common intention as defined under Section 34 IPC, stipulates that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons shall be held responsible for that act as if it were done by him alone. 27. In this way, circumstances only suggest that three accused persons including the present appellant were armed with countrymade pistol. All the persons while fleeing away opened fire from their respective weapons. However, no injury was caused to Raj Karan Singh PW-1. This also makes his presence on the spot doubtful. Moreso, the Investigating Officer PW-6, as per his claim, arrived on the spot in the night of intervening 5/6.8.1992, whereas, his presence on the spot has been stated in testimony of PW-1 in the morning of next day i.e. 6.8.1992 between 7:00 to 8:00 a.m. In this way, it is obvious that even the Investigating Officer is not telling the truth. He has also tried to twist facts and circumstances of this case. 28. He has also tried to twist facts and circumstances of this case. 28. It is cardinal principle of law that once a doubt is generated in the prosecution story and hollowness is created then the entire charge goes as is the case in the present case. Learned trial Judge while evaluating evidence and appreciating facts utterly failed to tender attention on the aforesaid aspects of the case and the trial Judge could not distinguish ocular testimony of PW-1 with substance of post mortem examination report Ext. Ka-2, particularly, ante mortem injuries in form of gun shot wounds apart from the other inconsistency. This case requires some independent corroboration because no injury was caused to Raj Karan Singh PW-1 although firing was done by three persons while fleeing away from the scene of occurrence. 29. In the wake of above discussion, we may sum up that the finding of conviction recorded by the trial Court is on the face erroneous and perverse and the same cannot be sustained in the eye of law. Therefore, judgment and order of conviction dated 6.11.1995 passed by IV-Additional Sessions Judge, Fatehpur, in Sessions Trial No. 495 of 1993 State of U.P. v. Chhedu @ Jageshwar and others, arising out of Case Crime No. 197 of 1992, under Sections 302 read with Section 34 IPC, Police Station-Ghazipur, District-Fatehpur, is hereby set aside. Consquently, the appeal succeeds and is allowed, accordingly. Accused-appellant is acquitted of the charge under Section 302/34 IPC. 30. In this case, the accused-appellant is already on bail. He need not surrender in this case. His bail bonds cancelled and sureties discharged. However, he shall furnish surety bonds in compliance of Section 437A Cr.P.C. 31. Let a copy of this judgment/order be certified to the Court concerned for necessary informant and follow up action.