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2018 DIGILAW 1095 (ALL)

PREM KUMAR v. STATE OF U. P.

2018-05-03

DINESH KUMAR SINGH, SHABIHUL HASNAIN

body2018
JUDGMENT : Dinesh Kumar Singh, J. The present appeal is directed against the judgment and order dated 12.11.1999 passed by IInd Additional Sessions Judge, Hardoi in Sessions Trial No.286 of 1982 under Sections 147, 148, 302/149, 307/149 IPC arising out of Case Crime No.344 of 1979, Police Station-Shahabad, District Hardoi. 2. The prosecution story as emerges out from the record is that the complainant, Rajesh Pal on 23.10.1979 gave a written complaint, Exh.Ka-1 alleging that there had been a long drawn enmity with respect to land between Gram Pradhan, Bateshwar Dayal and the accused, Vijay Bahadur. Family members of accused, Prem Kumar used to support Vijay Bahadur. They would create illegal pressure on the Village Pradhan. The complainant and other persons of the village would support the Village Pradhan. On 23.10.1979 when the complainant and his father, Puttu Lal were watering their field from pumping set on the East of the village, at that time Vijay Bahadur and Ram Kripal came across the boundary of the field carrying fodder and because of the water, Vijay Bahadur slipped and fell down. On which hot talk and altercation took place between the complainant, his father and accused, Vijay Bahadur and Ram Kripal. Vijay Bahadur and Ram Kripal went towards the village threatening the complainant and his father that complainant side had gone out of their mind and today they would settle the score with them. The complainant and his father, however, remained there and continued watering the field. At around 5:30 P.M. the accused, Bhagwat Sahai, Prem Kumar, Awadesh and Kamlesh armed with guns, Mithilesh armed with rifle and Darshan armed with Kanta (spade) and Ram Naresh, Vijay Bahadur and Ram Kripal, brother-in-law of Vijay Bahadur armed with lathies came towards the complainant from the village. The accused, Prem Kumar exhorted "Be careful, today the matter would be finally decided.". At that time, Ram Pal (deceased) the brother of complainant, armed with his licensed gun and his brother Shripal who was going to their home from school through railway line and reached near the orchard of one Buddha, Ram Pal and Shripal also exhorted. On this Prem Kumar and others turned towards Ram Pal and Shripal, brothers of the complainant. Complainant and his father also reached there by raising alarm and armed with lathies. Prem Kumar and Bhagwat Sahai fired at his brothers which hit Ram Pal, the deceased. On this Prem Kumar and others turned towards Ram Pal and Shripal, brothers of the complainant. Complainant and his father also reached there by raising alarm and armed with lathies. Prem Kumar and Bhagwat Sahai fired at his brothers which hit Ram Pal, the deceased. Ram Pal fell down after receiving the gun shot injury. Prem Kumar exhorted "kill everyone, nobody should go alive". On this the accused fired many rounds. In self defence Shripal took the gun of Ram Pal which had fallen after the deceased Ram Pal fell down and fired. Prem Kumar and others started firing and Shri Pal also fell down after receiving the gunshot injuries. On hearing noise and gun fire shots, Ram Hetu son of Lalai, Krishna Pal Singh s/o Mishri Lal, Bhagwansaran s/o Jagannath and many other persons reached there running. These people witnessed the accused assaulting the complainant side by firearm, kanta and Lathi. These people exhorted then Prem Kumar and others taking the gun of Rampal, ran towards the village. Ram Pal had died due to fire arm injury. Complainant and others received grievous injuries from lathi kanta and gunfire. He came to the police station with his father and brother and gave the complaint for registering the first information report and taking necessary action. The dead body remained lying at the place of incident. 3. On the basis of aforesaid complaint, Exh.Ka-1, the case was registered at report No. 32 at 18:30 Hours on 23.10.1979 against accused, Bhagwat Sahai, Prem Kumar, Awadhesh, Mithlesh, Darshan, Kamlesh, Ram Naresh, Vijay Bahadur and Ram Kripal under Sections 147, 148, 149, 307, 302 and 379 IPC. Shri Mohan Singh, Sub-Inspector was entrusted with the investigation. 4. The prosecution case is that the injured were sent for medical examination with Const. Babu Singh to the Primary Health Centre, Shahabad. Investigating officer, Sub-Inspector Nandlal Singh, Const. Gangasagar, Vijay Ram Singh, Munna Lal and Har Narayan alongwith Sita Ram went to the place of incident to prepare the inquest etc., of the dead body. It was said that since Dr. S.C. Vaish had sore thumb, therefore, the injured could not be medically examined at the Primary Health Centre, Shahabad and they were sent to District Hospital, Hardoi where the injured were examined. The injury report of Sripal, Puttu Lal and Rajesh were marked as Exhs.Ka-3, 4 and 5. It was said that since Dr. S.C. Vaish had sore thumb, therefore, the injured could not be medically examined at the Primary Health Centre, Shahabad and they were sent to District Hospital, Hardoi where the injured were examined. The injury report of Sripal, Puttu Lal and Rajesh were marked as Exhs.Ka-3, 4 and 5. Inquest report of dead body of Rampal was marked as Exh.Ka-6. The investigating officer inspected the place of incident and prepared the site plan Exh.Ka-13. It was also said that the investigating officer seized 8 empty cartridge from the place of incident and seizure memo, Exh.Ka-11 was prepared. The Investigating Officer took the blood stained earth and plane earth from the place of incident and prepared memo Exh.Ka-14. It was further said that the deceased, Rampal's DBBL 12 bore gun was recovered from accused, Vijay Bahadur at the emergency ward of the District Hospital, Hardoi from where the accused, Vijay Bahadur was said to have been arrested. G.D. entry of seizure of the said gun was at Serial No.34 on 24.10.1979 at 13:35 Hours. The copy of the GD entry was marked as Exh.Ka-17. After completing the investigation, the investigating officer filed charge-sheet, Exh.Ka-19 under Sections 147, 148, 149, 302, 307, 379 and 411 IPC against accused, Bhagwat Sahai, Awadhesh, Mithlesh, Darshan, Kamlesh, Ram Naresh, Vijay Bahadur and Ram Kripal. It was said that investigation against Prem Kumar was continued. Bhagwat Sahai died after the charge sheet was filed. 5. The charges were framed against the accused, Awadhesh, Mithilesh and Darshan under Sections 148, 302/149 and 307/149 I.P.C. and against the accused, Ram Naresh, Vijay Bahadur and Ramkripal under Sections 147, 302/149 and 307/149 IPC. On denial of the charges, trial took place. Initially no charge-sheet was filed against the accused-appellants, Prem Kumar, however, he was summoned to face trial under Section 319 Cr.P.C. and thereafter charges under Sections 148, 302/149, 307/149 I.P.C. were framed against him also. 6. Though there was no cross case registered, however, it appears that the accused, Vijay Bahadur lodged an FIR under Sections 147, 148, 149, 307 and 323 IPC on 24.10.1979 at Police Station Kotwali, District Hardoi against Ram Pal, Shripal, Rajesh, Puttu Lal and Ram Ashrey. No case Crime number was mentioned on the chik report. The defence produced the aforesaid FIR which was exhibited as Exhibit Kha-1. No case Crime number was mentioned on the chik report. The defence produced the aforesaid FIR which was exhibited as Exhibit Kha-1. In the aforesaid report, it was said that one year ago, the brother of Vijay Bahadur had registered a report at the Police Station Shahabad against Rampal s/o Puttu Lal regarding assault and for that reason there was enmity between them. These persons were in look out to kill him. It was said that in this regard several applications were given to the Superintendent of Police, Hardoi. On the basis of aforesaid applications, police sent report against both the sides under Section 107/116 Cr.P.C. which was pending in the Court. On 23.10.1979 at around 5:00 P.M. when Vijay Bahadur, his brother-in-law, Ram Kripal and his partner, Arvind Kumar were coming back from their filed after cutting fodder and Aadarsh Mohan and Darshan Lal were also coming back from their field and when they reached the place of incident i.e. orchard of one Buddha at that time Ram Pal, Sripal and Rajesh sons of Puttu lal, Puttu Lal and Ram Ashrey s/o Lalai waylaid them. Rampal was having his licensed double barrel gun. Shripal, Puttu Lal and Rajesh were having lathies and Ram Ashrey was having spear. They came out from where they were hide and Rampal fired two shots from his licensed gun with the intention to kill them. Gunfires hit Ram Kripal, Aadarsh Mohan and Darshan Lal. When these people started running from orchard of Buddha, they started assaulting Ram Kripal with lathi and Ram Ashray assaulted by spear. Rampal put the cartridge in his gun to fire at Ram Kripal. At that time, Ram Kripal snatched the gun from Ram Pal and he started running to save his life. At that time Sripal, Rajesh and Puttu Lal ran after him with the intention to assault him and started assaulting him. Ram Kripal in his self defence fired from the gun at Rampal, Vijay Bahadur and Darshan Lal also used lathi in their self defence. On hearing the noise of gun shot and ruckus Ram Sagar, Harisharan, Ramchandra, Prem Shankar and many others from the village reached there who witnessed the incident and intervened. Since, there were grievous injuries caused by Rampal and others, Vijay Bahadur etc., came to Hardoi for treatment by train at around 12 night and got admitted in the hospital. On hearing the noise of gun shot and ruckus Ram Sagar, Harisharan, Ramchandra, Prem Shankar and many others from the village reached there who witnessed the incident and intervened. Since, there were grievous injuries caused by Rampal and others, Vijay Bahadur etc., came to Hardoi for treatment by train at around 12 night and got admitted in the hospital. It was said that gun of Rampal was also brought to the police station to be deposited. The injury report of Darshan Lal, Ram Kripal, Aadarsh Mohan and Vijay Bahadur were filed in the defence and defence witnesses were also examined. 7. It was said that the final report was prepared in the case registered on the complaint of Vijay Bahadur. However, a copy of the final report was not placed on record and it was said that the papers were misplaced. It is also important to note that Vijay Bahadur and others did not take any action to prosecute their complaint inasmuch as they did not file any application before the Magistrate if the final report was prepared or the papers were missing. 8. The prosecution to prove its case examined witnesses, Rajesh Pal P.W.-1, Sripal P.W.-2, Dr J.K. Verma P.W.-3, Dr.J. B. Singh P.W.-4, Sub-Inspector Nandlal Singh P.W.-5, Mohan Singh P.W.-6, Ashfaq Hussain P.W.-7, Pratap Singh Pandey P.W.-8. 9. In the present case incident is admitted by both the sides. During the pendency of appeal Ram Kripal had also died as reflected from the report dated 26.05.2014 sent by learned C.J.M., Hardoi regarding factum of death of accused, Ram Kripal. Hence his appeal gets abated. 10. Sri Nagendra Mohan, learned counsel for the accused-appellants has submitted that it was Rampal and others who had waylaid the accused-appellants in order to kill Vijay Bahadur and others and they were the assailants. Vijay Bahadur and Aadarsh had acted in self-defence and after snatching the gun, Ram Kripal fired which hit the deceased who died. Sripal received gunshot injuries and Rajesh and Puttu Lal received lathi blows. He said in the incident there was only four persons i.e. Vijay Bahadur, Darshan Lal Ramkripal and Aadarsh Mohan who have received injuries in the incident and other persons were falsely implicated. Mithlesh was said to have been armed with rifle but there was no rifle injury on any of the person. 11. He said in the incident there was only four persons i.e. Vijay Bahadur, Darshan Lal Ramkripal and Aadarsh Mohan who have received injuries in the incident and other persons were falsely implicated. Mithlesh was said to have been armed with rifle but there was no rifle injury on any of the person. 11. He said that Prem Kumar, Awadesh Kumar and Mithlesh Kumar are sons of Bhagwat Sahai. They were alleged to have been armed with guns. But they did not receive any injury. 12. The defence witness unequivocally proved that Prem Kumar Tripathi was a practicing Advocate who was with them on the date and time of the incident. He could not have been present on the date, time and place of the incident. Even the charge-sheet was not filed against him. Subsequently, he was summoned under Section 319 of the Code of Criminal Procedure and he was falsely implicated. 13. Shi Jyotindra Nath Mishra, learned Senior Advocate for the accused-appellants submits that when the prosecution as well as defence version appeared to be untrue, reliance cannot be placed on one and, therefore, the accused-appellants are liable to be acquitted. He further submits that if the testimony of defence witnesses had remained unimpeachable, it cannot be discarded and the Trial Court had wrongly discredited the defence evidence. 14. On the other hand, learned AGA appearing for the State submits that the prosecution case has got completely proved by the cogent and credible evidence on record. It is unbelievable that when three persons alleged to have received gun shot injuries on the complainant side and forth one had also injuries, they would not go to the police station and they would travel by train to reach Hardoi and get themselves admitted in the hospital instead of going to the police station to lodge the FIR. He further submits that when the accused-appellants were assailants, it was not necessary for the prosecution to explain the injuries caused to the accused-appellants in the incident. 15. He further submits that when the accused-appellants were assailants, it was not necessary for the prosecution to explain the injuries caused to the accused-appellants in the incident. 15. Learned counsel further submits that the FIR, Exh.Ka-1 alleged to have been registered by the accused-appellant, Vijay Bahadur was investigated and final report was prepared but even if the final report was not filed, the accused-appellants side was very well versed with the legal position inasmuch as one of the accused, Prem Kumar Tripathi used to practice in the District Court and they could have taken further action on their FIR. He further submits that the FIR, Exh.Ka-1 was fabricated document and it got written to set up a defence case which was not otherwise available to them on record. 16. Sri Amrendra Kumar Bajpai, learned counsel appearing for the complainant has supported the arguments of learned AGA and has submitted that the judgment and order passed by the learned Trial Court is not to be interfered with and the appeal should be dismissed. 17. We have considered the arguments advanced on behalf of the parties and perused the record and evidence. 18. In the present case the incident is not disputed. Time and place of incident are also not in dispute. The question which needs to be answered is whether it was a sudden fight between two groups or weather one party was aggressor and the other acted in self defence as is the case of the defence. 19. From the first information report and statement of P.W.-1, initially verbal dual and heated altercation took place at around 4-4:30 P.M. between the complainant, his father and the accused-appellant, Vijay Bahadur and Ram Kripal when the complainant and his father were watering their field. When Ram Kripal and Vijay Bahadur passed through from there and Vijay Bahadur slipped of because of the water on earth. Thereafter, all the accused armed in the manner described above reached at 05:30 P.M. near the place where the complainant and his father were watering their filed through pumping set. At the same time the deceased, Rampal armed with his double barrel gun and Shripal reached at orchard of Buddha. The accused-appellants were aggressor. Rampal and Shripal were around 500 ft. away from the location of the complainant and his father. At the same time the deceased, Rampal armed with his double barrel gun and Shripal reached at orchard of Buddha. The accused-appellants were aggressor. Rampal and Shripal were around 500 ft. away from the location of the complainant and his father. Rampal exhorted the accused-appellants side who turned towards them and reached the place of occurrence i.e. orchard of Buddha covering around 300 feet. 20. Sri Nagendra Mohan, learned counsel for the accused-appellants submits that it was unlikely that when the accused-appellants wanted to teach lesson and assault the complainant and his father who were only a few feet away from them, they would not attempt to assault them but would cover 300 ft. to come near. Ram Pal and Shripal and commit murder of Rampal. He further submits that from the site plan, Exh.Ka-13 the prosecution story as set up becomes suspect. It is the case of the prosecution that Bhagwat Sahai and Prem Kumar Tripathi fired two shots at Rampal who died on the spot. However, on post mortem examination report of the deceased, Rampal (Exhibit Ka-2) mentions only one firearm injury and two incised wounds. 21. Learned counsel further submits that it was the specific case in the FIR that these accused-appellants fired several shots and some of them hit Shripal, the complainant and his father. However, the medical reports of the complainant and his father, Exhs. Ka-5 and Ka-4 respectively do not show any firearm injury on them. Only firearm injuries were on Shripal which is evident from his injury report, Exh.Ka-3. 22. Learned counsel submits that the medical report does not corroborate the FIR and the whole prosecution story becomes suspect. He submits that Ram Pal fired shots at the injured persons from the side of the accused and in self defence they attacked Ram Pal and snatched his gun and fired which hit Ram Pal and Shripal and thereafter, both sides assaulted each other by lathies. Thus, the accused-appellants cannot be said to be aggressor and they had acted in self-defence and, therefore, they could not have been convicted on the basis of evidence led by the prosecution. 23. We are not in agreement with the aforesaid submissions on the point of the complainant side being the aggressor in the incident. Thus, the accused-appellants cannot be said to be aggressor and they had acted in self-defence and, therefore, they could not have been convicted on the basis of evidence led by the prosecution. 23. We are not in agreement with the aforesaid submissions on the point of the complainant side being the aggressor in the incident. The injuries received by the accused-appellants were simple in nature and they would have also received serious injuries if they were not the aggressor. Further nothing stopped them to go to the police station. However, instead of going to the police station, they reached Hardoi where Prem Kumar used to practice and got themselves admitted in the hospital for the simple injuries. The injury report of the accused-appellant, Vijay Bahadur is exhibited as Exh.Ka-6. Vijay Bahadur did not receive any firearm injury and for the injuries he received no admission was required. Injuries of Ram Kripal, Aadarsh Mohan and Darshan Lal were also simple in nature which were exhibited as Exhs.3, 4 and 5 respectively. So far as these injuries are concerned, no admission was required. The accused-appellants did not go to the police station at the first place but they went to the District Hospital in order to create evidence in their favour which is not believable. Therefore, the Court is of the view that the defence version cannot be believed that they were not the aggressor but it was the complainant side which was aggressor. 24. Once, it is established that the accused-appellants were aggressor and their presence at the place of incident in prosecution of their common object was proved by ocular testimony of the prosecution witnesses, it cannot be said that since some of them did not receive injury, therefore, their presence would be suspect. Defence has examined D.Ws. 8, 9, 10, 11 and 12 on the point of alibi to prove that on the date of incident these witnesses were with accused-appellant, Prem Kumar. However, when the ocular testimony regarding the presence of the accused, Prem Kumar has been found to be credible, reliable and unimpeachable, the plea of alibi with respect to the accused-appellant, Prem Kumar loses its ground and, therefore, defence witnesses cannot be believed. 25. Learned counsel for the accused-appellants has pointed out certain discrepancies in the evidence of prosecution witnesses with respect to the injuries. 25. Learned counsel for the accused-appellants has pointed out certain discrepancies in the evidence of prosecution witnesses with respect to the injuries. We find that those discrepancies are inconsequential and the core of the prosecution case is not affected. These discrepancies are nothing but embellishment and therefore, cannot be said that the prosecution did not prove its case beyond reasonable doubt. 26. We, therefore, after going through the record, evidence and submissions of learned counsels for the parties, dismiss the appeal and uphold the judgment and order passed by learned Trial Court and affirm the conviction and sentence of the accused-appellants. 27. Their bail bonds are cancelled. Learned C.J.M. Hardoi is directed to get the accused-appellants arrested and sent them to the prison to undergo sentence awarded by the Trial Court.