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2018 DIGILAW 183 (ALL)

NAWAB SINGH v. STATE OF U. P.

2018-01-23

ARVIND KUMAR MISHRA I

body2018
JUDGMENT : 1. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgement and order of conviction dated 21.04.1986 passed by III Additional Sessions Judge, Shahjahanpur in Sessions Trial No.371 of 1982 (State Vs. Kallectar Sing & others), arising out of case crime no.42 of 1982, Police Station- Sehramau South, District- Shahjahanpur, whereby accused appellant- Bhagwan Singh @ Chhotey Bhaiya- has been sentenced to one year R.I. under Sections 307/34 IPC. 2. Pertinent to mention that out of three appellants two appellants, namely, Nawab Singh (appellant No.1) and Virendra Singh (appellant no.3) have died during pendency of this appeal. Therefore, the appeal stood abated qua Nawab Singh (appellant No.1) and Virendra Singh (appellant no.3) vide order dated 03.02.2017. Now, this appeal is being adjudicated upon in respect of the only surviving appellant- Bhagwan Singh @ Chhotey Bhaiya. 3. Facts relevant giving rise to this appeal as reflected from the record appear to be that an FIR was lodged by informant Ganga Singh (P.W.2) by presenting written report (Exhibit Ka-1) at police station- Sehramau South, District- Shahjahanpur on 7.2.1982 at 1.30 A.M. against several accused including the present appellant at Case Crime No.42 of 1982, under Section 307 IPC, whereby the allegations were made regarding injury being caused on the informant side, particularly on injured Anag pal in the incident, which took place around 5.00 P.M. on 06.02.1982 on account of some landed dispute going on between the informant, Kallector Singh and Nawab Singh and some dispute regarding distribution of woods. The informant cut woods of mango tree of his share and gave it to his relative and conveyed it over to his home. In the evening around 5 P.M. The informant was coming to home from his field, when he reached in front of door of Nawab Singh, Kallector Singh said to him as to how he has stacked wood, which wood is owned by him also. Informant said to him that he has taken only his share, if he wants share, he may also get it. Informant said to him that he has taken only his share, if he wants share, he may also get it. At this, several persons including the appellant arrived on the spot and one of the accused possessed gun, whereas the others including the appellant who possessed lathi began to assault the informant side, in the meanwhile, injured Anang Pal along with two others arrived on the spot then at the exhortation of Nawab Singh, the other co-accused fired with his gun; which hit Ananag Pal on his arm and stomach. The informant, somehow, saved himself. A number of villagers arrived on the spot when the assailants fled away from the scene. 4. Initially, contents of the written report were taken down in the concerned Check FIR at Case Crime No.42 of 1982, under Section 307 IPC on 7.2.1982, at Police Station- Sehramau South, District- Shahjahanpur. Check FIR is Exhibit Ka-3. On the basis of entry made in the Check FIR, a case was registered against the accused- appellant in the concerned General Diary at serial no.2 of aforesaid date and time at aforesaid case crime number. Copy of the concerned General Diary is Exhibit Ka-4. 5. The injured was sent to District Hospital, Shahjahanpur where he was examined medically by Dr. A.K. Jain (P.w.1) at 9 A.M. On 7.2.1982. The doctor found the following injuries on his person:- 1- Gundshot wound of entrance, four in numbers, in an are of 4 cm x 7.5 cm on back of upper part of left forearm just below left elbow joint, two of them measuring 3 cm and 1 cm in diameters and the remaining two measuring 0.5 cm each in diameter. Depth not probed, margins inverted, clotted blood present. Blackening, tattooing and scorching present. Gunshot wound of exit measuring 4 cm in diameter x depth not probed on posterior medial aspect of left elbow joint, 4 cm away from wound of entrance, margins everted, clotted blood present, traumatic swelling red in colour 12 cm x circumference around upper part of left forearm, lower part of upper arm and left elbow joint. 2- Abrasion 1.5 cm x 0.2 cm on lower part of front of right side of chest, 15 cm away from right nipple 1.7 OI' clock position, clotted blood present. 6. Injury no.1 was kept under observation and X-ray examination was advised. 2- Abrasion 1.5 cm x 0.2 cm on lower part of front of right side of chest, 15 cm away from right nipple 1.7 OI' clock position, clotted blood present. 6. Injury no.1 was kept under observation and X-ray examination was advised. In the opinion of the doctor the injury was caused by firearm. Injury no.2 was simple in nature and was caused by friction. Both the injuries were about one day old. The patient was admitted in the hospital. 7. The X-ray examination was done by Bhagwati Prasad Verma, Technician (P.W.5), wherein multiple pieces of radio opaque shadows on left elbow with fracture of lower end of humerus and upper end of ulna. No callus formation was seen, vide X- ray plate (material Exhibit-1) and X- ray report Exhibit Ka-7, proved by P.W.5. 8. Investigation of the was initially taken over by S.I. Ganga Ram Pal (he has not been examined by the prosecution). Thereafter on 10.2.1982 the investigation was taken over by S.I. Veeri Singh (P.W.4), who recorded statement of various witnesses, prepared site plan Exhibit k-5 and also prepared memo of blood stained clothes of victim Anangpal Singh (Exhibit ka-6) at the police station. 9. After completing investigation, charge- sheet was filed. Consequently, the case was transferred to the aforesaid court of III, Additional Sessions Judge, Shahjahanpur, who heard the appellant on point of charge and charged him under Section 307/34 IPC. The charge was denied. Consequently, the prosecution produced in all five witnesses. Brief sketch of the same is hereby below:- Dr. A.K. Jain is P.W.1. He is the doctor witness, who examined the injured Ananagpal Singh. Ganga Singh is P.W.2, who is the informant in this case. Anandgpal Singh is P.W.3. He is injured eye- witness. Veeri Singh is P.W.4. He is the Investigating Officer of this case. Bhagwati Prasad Verma is P.W.5, who has proved X- ray plate (material Exhibit-1) and X- ray report Exhibit Ka-7. 10. Except as above, no other evidence was adduced, therefore, evidence for the prosecution was closed and recorded statement under Section 313 Cr.P.C., wherein several reasons were counted for false implication of the accused on account of enmity due to landed property and distribution of wood. It was also claimed that the accused side also sustained injuries and they were infact beaten by the informant side and the incident took place in the field away from the village. It was also claimed that the accused side also sustained injuries and they were infact beaten by the informant side and the incident took place in the field away from the village. 11. No evidence whatsoever was led by the defence. 12. After considering the merit of the case and appraisal of facts and evaluation of testimony, the trial court recorded conviction against the accused appellant under Section 307/34 IPC and sentenced him to one year R.I. 13. Serious objection has been raised to the entire incident that very genesis of the origin of the incident has been concealed. It is a genuine case of self- defence, wherein informant side has also sustained injury, which part of the incident has been deliberately suppressed. The testimony of both the witnesses of fact is grossly contradictory and the same does not inspire confidence. The place of occurrence has not been ascertained and the fact is that the informant side itself was armed with lathi and gun and they assaulted first the accused side against which assault they (appellant) acted in self defence. The trial court erroneously recorded the conviction of the appellant, which is nothing but in sheer misuse of the law. 14. After considering the entire allegations made against the present appellants, the moot point that crops up for adjudication of this appeal, relates to fact whether, the prosecution has been able to prove beyond reasonable doubt, the charge against the appellant or whether, the participation of the appellant in the crime was doubtful? 15. Bare perusal of the first information report is admittedly self revealing on particular aspect that there was dispute of some landed property between the informant side and the accused and the testimony of Ganga Singh P.W.2, the eye-witness of the incident and informant also, reflects that members of the informant side were also present on the spot when the incident took place and they also possessed lathi and they plied lathi at the time of assault. The first information report is itself whispering about share of appellant side in the wood cut and stacked on the ground, which was the bone of contention between the two sides. 16. The first information report is itself whispering about share of appellant side in the wood cut and stacked on the ground, which was the bone of contention between the two sides. 16. Further, regarding place of occurrence, it has emerged in the testimony of both the witnesses of fact Ganga Singh P.W.2 and Anangpal Singh P.W.3, respectively, that blood spilled on the ground and the spillage of blood continued on the ground on the spot where Anangpal Singh fell down upto the place where he was taken away by the rescuers. But the testimony of Veeri Singh P.W.4 (I.O. in this case), who prepared the site plan is unequivocally indicative of fact that no blood marks, whatsoever, was found on the spot. 17. Anangpal Singh P.W.3 testifies that the written report was got scribed in the village at home and it was handed over to the police, whereas the informant Ganga Singh P.W.2 testifies to the fact that after the incident took place, he proceeded to the police station and infront of the police station at the bus-stand he wrote/got scribed the written report with Bhagwan Saran and gave it at the police station. 18. Here, grave contradiction is perceptible, when contemplateing about the place, as per Anangpal Singh P.W.3 where the written report was scribed is village where the incident took place, whereas as per Ganga Singh P.W.2 the report was scribed at the bus stand in front of police station, but the hypocrisy of both the witnesses of fact on point of the very place where the written report was scribed stands exposed when Ganga Singh P.W.2 the informant categorically testified in his cross-examination that the ink pad which was used for imprinting thumb impression on the report was brought from the police station, this is the height of hypocrisy of maneuvering made by the informant where involvement of the police prior to the lodging of the report is proved by cogent circumstance. How the ink pad from police station was brought outside the police station at the bus stand and by whom and then thumb impression given on the report is an independent circumstance against the prosecution that the FIR is a piece of paper, wherein police has interfered prior to the lodging of the FIR, as such, the contents of FIR itself become doubtful to be a description of actual occurrence. 19. 19. More importantly, if the witnesses had infact seen the real assailants who fired with his gun then they must have shown the spot from where firing was done, but the site plan is silent on the point of specific spot from where the assailant fired on Anangpal Singh. The site plan Exhibit ka-5 has been vaguely prepared which only indicates place 'X' as the place where the incident took place. No spot as the place from where shot was fired has been marked by the Investigating Officer in the site plan. It means if any scuffle, assault or attack took place the same was outcome of sudden and free fight for which each individual member was liable for causing harm on each other. Here as per the scrutiny of testimony of Ganga Singh P.W.2, the informant, he was beaten for about 4 to 5 minutes by the accused with lathi blow, but the same is not substantiated by any such report whatsoever. The injury report of injured Anangpal Singh P.W.3 itself does not entail fact that a number of lathi blows were caused on him. At this stage, suggestion of the defence, becomes relevant that someone amongst the crowd fired, which hit Anangpal Singh P.W.3. There are inherent anomalies both in the testimonial account of the incident of the two witnesses of fact and the facts alleged in the FIR and the origin as well as genesis of the incident has been concealed. 20. The overall analysis of above facts and circumstances, vis a vis, testimony on record itself bring out a case that the prosecution has not been able to prove its case beyond reasonable doubt, but the trial court perhaps misread and took erroneous view of facts and circumstance of the case, vis a vis, testimony and recorded erroneous findings of conviction, which finding of conviction and sentence awarded by way of judgement and order of conviction dated 21.04.1986 passed by III Additional Sessions Judge, Shahjahanpur in Sessions Trial No.371 of 1982 (State Vs. Kallectar Sing & others), arising out of case crime no.42 of 1982, Police Station- Sehramau South, District- Shahjahanpur is hereby set aside. 21. Consequently, The appeal is allowed. Appellant is acquitted of all charges. 22. Appellant is on bail. He need not surrender. His bail bonds are hereby cancelled and sureties are discharged. Kallectar Sing & others), arising out of case crime no.42 of 1982, Police Station- Sehramau South, District- Shahjahanpur is hereby set aside. 21. Consequently, The appeal is allowed. Appellant is acquitted of all charges. 22. Appellant is on bail. He need not surrender. His bail bonds are hereby cancelled and sureties are discharged. However, he will comply with the provisions of Section 437-A Cr.P.C. 23. Let a copy of this order be forwarded to the lower court for its intimation and follow-up action.