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2018 DIGILAW 299 (ALL)

AWADH BIHARI SINGH v. STATE OF U. P.

2018-02-05

ARVIND KUMAR MISHRA I

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JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. The instant appeal has been preferred by the appellant Awadh Bihari Singh against the judgment and order of conviction dated 09.01.1986 passed by II-Additional Sessions Judge, Banda, in Session Trial No.443 of 1984 arising out of Case Crime No.618 of 1983 under Section 307 IPC and Case Crime No.619 of 1983 under Section 25 Arms Act, Police Station Kotwali, District Banda, whereby the appellant has been sentenced to undergo four years rigorous imprisonment under Section 307 IPC and one year rigorous imprisonment under Section 25 Arms Act. Both the sentences have been directed to run concurrently. 2. Heard learned counsel for the appellant, learned AGA for the State and perused the record. 3. The relevant factual matrix of this case, as reflected from records, is indicative of fact that on 18.07.1983, S.I. B.D. Tripathi, the informant was in search of the accused concerning Case Crime No.617 of 1982 under Section 326 IPC, while he reached near Police Club Banda, it was around 11:30 p.m., he saw two persons riding on a bicycle, the bicycle stopped 5 to 6 paces ahead of him. One of the two (bicyclists) who was pulling the bicycle said to the another person (who had alighted) that he annoyed him very much whereupon that another person said yet and stepped away. In the meanwhile, the bicycle-man came to the informant (S.I. B.D. Tripathi) and told him that he is Shiv Nath Tripathi and he resides in Chhota Bazar, District Banda and the another person who had just left the spot is Awadh Bihari Singh, resident of Gureh, is a notorious person and he is possessing a loaded countrymade gun and he on gun point, at Bajrang School forced him to take him on bicycle up to place Khai Par Theka else he will shoot him dead. 4. At this, Sub-Inspector B.D. Tripathi chased Awadh Bihari Singh and challenged him to stop but instead of stopping he whipped out countrymade gun from his waist and with intention to kill fired on the Sub-Inspector who somehow saved himself and in the meanwhile Sub-Inspector fired seven rounds of fire with his revolver to stop him but the person disappeared taking advantage of darkness. The Sub-Inspector tried to search him out but he did not find him. The Sub-Inspector tried to search him out but he did not find him. Around 12:45 a.m. in the night intervening 18/19.07.1983, he returned to the police station where a report was orally lodged by him against the accused-appellant on 19.07.1983 at 00:45 hours at Case Crime No.618 of 1983 under Section 307 IPC and at Case Crime No.619 of 1983 under Section 25 Arms Act, Police Station Kotwali, District Banda. 5. On 19.07.1983, Sub-Inspector B.D. Tripathi along with police personnels went in search of the accused concerning the aforesaid two Crime Nos.618 and 619 of 1983 when he received tip off information that the accused Awadh Bihari Singh is present in house and after availing witnesses reached the house of the accused. The accused tried to run away by jumping over the wall, whereupon he fell down and he was given Lathi blow and over powered to the eastern side of his house around 11:30 a.m. 6. It was disclosed by S.I. R.B. Mishra that the accused told the police personnels that he had sustained gun shot injury on his leg yester night while firing was opened by the police, therefore, he was about to leave for his treatment when they caught him. Countrymade gun along with cartridges were recovered from the possession of the accused. The recovered articles were kept under seal and memo of arrest and seizure was prepared by the police. 7. The investigation ensued and the after recording statement of the various persons, charge sheets were filed against the accused at the aforesaid case crime numbers under aforesaid Sections of IPC and Arms Act. 8. As a sequel to it, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial to the aforesaid trial court of II-Additional Sessions Judge, Banda, who in turn heard both the prosecution and the accused on point of charge and was prima-facie satisfied with case against the appellant, accordingly, framed charges under Sections 307 IPC and 25 Arms Act. Charges were read over and explained to the appellant who abjured charges and opted for trial. 9. In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 8 witnesses. A brief sketch of witnesses is as under:- 10. Shiv Nath Tripathi PW-1 is the independent witness, he has turned hostile and has not supported the prosecution version. Mohd. 9. In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 8 witnesses. A brief sketch of witnesses is as under:- 10. Shiv Nath Tripathi PW-1 is the independent witness, he has turned hostile and has not supported the prosecution version. Mohd. Tariq PW-2 being public witness has testified on the same line as PW-1. Sub Inspector B.D. Tripathi PW-3 is the informant of the aforesaid Case Crime Nos.618 and 619 of 1983. Constable Chhaggu Singh PW-4 has proved certain entries in the general diary. Ram Vilas Mishra PW-5 conducted raid on 19.07.1983 in the house of the accused and has described the process. Munnu Lal Katiyar PW-6 has proved Check FIRs under Sections 307 IPC as Ext. Ka-1 and 25 Arms Act as Ext. Ka-6. S.I. Yadunath Singh PW-7 is the Investigating Officer, he has proved various papers and also recorded statement of various witnesses and proceeded to the spot concerning offence under the Arms Act and prepared site plan Ext. Ka-7 and filed charge sheet Ext. Ka-8 under the Arms Act. Raj Bahadur Singh PW-8 is also Investigating Officer, he has prepared site plan relating to the incident that took place in the night intervening 18/19.07.1983. Except as above, no other evidence was adduced by the prosecution. Therefore, evidence for the prosecution was closed. 11. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. wherein he has stated that one Laxman Singh was on inimical terms with him, he colluded with the Inspector Babban Singh for killing him in police encounter and on 19.07.1983 around 9:30 a.m. the police caught him on the road, beat him and in the meanwhile Sub-Inspector B.D. Tripathi fired on him which hit him on his leg. He also stated that telegram regarding this incident was also sent to the authority concerned by him. 12. The accused has produced three witnesses namely Mahesh Prasad DW-1, Judicial Assistant Collector, Banda, he has proved receipt of the telegram on 19.07.1983 as Ext. Kha-1. Dr. Subhash Chandra Gurudev DW-2 has medically examined the accused on 20.07.1983 and noted as many as nine injuries on his person. He has proved medical examination report Ext. Kha-2 and opined that injury nos.8 and 9 may be caused by firearm around 9:30 a.m. on 19.07.1983. Kha-1. Dr. Subhash Chandra Gurudev DW-2 has medically examined the accused on 20.07.1983 and noted as many as nine injuries on his person. He has proved medical examination report Ext. Kha-2 and opined that injury nos.8 and 9 may be caused by firearm around 9:30 a.m. on 19.07.1983. In his cross examination, he has stated that these two injuries cannot be caused at 11:30 p.m. on 18.07.1983. Dr. M.C. Mittal DW-3, Radiologist conducted x-ray examination of the accused and has proved x-ray examination report Ext. Kha-3. 13. Thereafter, 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 and awarded sentence vide impugned judgment and order dated 09.01.1986. 14. Consequently, this appeal. 15. Upon careful scrutiny of the case, it comes out that the entire episode has been well planned by the police personnels in collusion with each other and whatever may have the reasons but it is a false case slapped against the accused. Specific reason for the same being fact that the origin and genesis of the crime is admittedly the person Shiv Nath Tripati who in the night of 18.07.1983 came across Sub-Inspector B.D. Tripathi who was leading a police party at Police Club Banda around 11:30 p.m. and told him that another man who had alighted from his bicycle is one Awadh Bihari Singh, he is notorious person and he compelled him (Shiv Nath Tripathi) on gun point at Bajrang School to take him on bicycle up to Khai Par Theka else he will shoot him. 16. Now the point is, if Shiv Nath Tripathi PW-1 supports claim of the police which is the very origin of the entire case then a case is made out against the accused. But if Shiv Nath Tripathi PW-1, as per his testimony, did not support at all the incident regarding the occurrence in the night of 18.07.1983 at 11:30 p.m. that it ever so occurred and that he never told anything to any police personnel then quintessence origin and genesis of the crime itself falls flat and goes into eternal oblivion and nothing remains to be considered by this Court. 17. Secondly, Dr. 17. Secondly, Dr. Subhash Chandra Gurudev DW-2 who medically examined the accused Awadh Bihari Singh on 20.07.1983, has categorically suggested that injury nos.8 and 9 may be firearm injuries and it can be caused around 9:30 a.m. on 19.07.1983 and this injury cannot be caused around 11:30 p.m. on 18.07.1983. Now what face the police will come to save that the fire, in fact, hit the accused around 11:30 p.m. on 18.07.1983 and this factual disclosure was made by the accused to the police party at the time of his arrest from the place Lal Kuwa where he was residing in his house on 19.07.1983 when the police conducted raid for his (accused) arrest. It appears that the trial Judge had no sense, whatsoever, as to how he should appreciate the law and fact. Obviously, the police personnels have concocted theory of hit by shot on leg of accused on 18.07.1983 at 11:30 p.m. 18. Reading of the entire impugned judgment is indicative of fact that the trial Judge was wholly ignorant of his duty as to how marshaling of fact is to be done and the parameters on which prosecution evidence is to be evaluated. The entire impugned judgment is on the face based on hypothetical equation and imagination. 19. If the trial Judge had ventured to look to fact that in spite of public witness, availed by the police, no public witness supported the case of the police then what is the authenticity and veracity of the police claim that police encounter took place at 11:30 p.m. on 18.07.1983 and the accused was arrested on 19.07.1983 at 11:30 a.m. the next day of police encouter. The entire story is outcome of mischievous mind of the police and claim of the accused that the police, in fact, wanted to kill him in encounter, under facts and circumstances of the case, appears to be just explanation for falsely implicating him in this case. 20. Analysis and comprehensive scrutiny of record takes this Court to conclude that lot of doubts are created regarding authenticity of claim of the police/prosecution because of inconsistent description of the prosecution witnesses when applied to and compared with the prevailing facts and circumstances of the case. 20. Analysis and comprehensive scrutiny of record takes this Court to conclude that lot of doubts are created regarding authenticity of claim of the police/prosecution because of inconsistent description of the prosecution witnesses when applied to and compared with the prevailing facts and circumstances of the case. Consequently, the conviction recorded by the trial Judge is, on the face, erroneous and against material on record and the trial Judge misread into evidence vis-a-vis facts and circumstances of the case which renders the order of conviction and sentence wholly bogus and the trial court was not justified under facts and circumstances of the case in recording such finding. The prosecution was not able to prove its case beyond reasonable doubt. Besides above, absence of independent corroboration of factum of arrest by any independent source hits at the root of the case. 21. In criminal jurisprudence, it is settled principle of law that testimony and circumstances of the case must positively point out guilt of the accused beyond reasonable doubt and in case evidence when taken together vis-a-vis facts and circumstance of the case, in absence of independent corroboration appears to be shaky, vacillating and full of improvements then charges framed against the accused will lose its legal significance and the accused will be entitled for acquittal. 22. In this case, there is no worthy evidence which may connect the accused with the commission of the crime except testimony of the interested police personnels but the trial court while taking stock of merit of the case overlooked this factual aspect and erroneously recorded finding of conviction and awarded sentence against the appellants under Sections 307 IPC and 25 Arms Act which conviction and sentence is not sustainable in the eye of law. 23. Therefore, the judgment and order of conviction dated 09.01.1986 passed by II-Additional Sessions Judge, Banda, in Session Trial No.443 of 1984 arising out of Case Crime No.618 of 1983 under Section 307 IPC and Case Crime No.619 of 1983 under Section 25 Arms Act, Police Station Kotwali, District Banda, is set aside. 24. Consequently, the present appeal is allowed. 25. The appellant is acquitted of charges under Sections 307 IPC and 25 Arms Act. 26. In this case, the appellant is on bail. He need not surrender before the court below. His bail bonds concelled and sureties discharged. However, the appellant shall ensure compliance of Section 437A Cr.P.C.