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2018 DIGILAW 418 (ALL)

DEVENDRA SINGH v. STATE OF Uttar Pradesh

2018-02-16

A.P.SAHI, RAJEEV MISRA

body2018
JUDGMENT By the Court.—Heard Sri Vindesh Kumar Mishra, learned counsel for the appellant and Sri Sagir Ahmad, learned AGA for the State. 2. The appeal questions the correctness of the conviction and the sentence awarded by the learned Additional District and Session Judge, Shahjahanpur in Session Trial No. 293 of 2005 arising out of Case Crime No. 343 of 2004 whereby the appellant has been convicted for the offence of murder under Section 302 Indian Penal Code and has also been found guilty of having committed offence under Section 25 of the Indian Arms Act in Session Trial No. 292 of 2005 in case crime No. 345 of 2004, for which he has been awarded life imprisonment and two years of rigorous imprisonment respectively coupled with Rs. 10,000/- as fine and in default thereof to undergo further six months simple imprisonment. 3. The First Information Report discloses that the appellant is alleged to have fired a shot from a country made pistol at about 08:30 pm on 15th July, 2004 thereby causing the death of one Dharamveer Singh on the spot. The First Information Report is stated to have been lodged on the same day at about 22:45 pm by Agar Pal Singh, the first informant and PW-1 father of the deceased Dharmveer Singh. The scribe of the FIR is one Nanhe Singh son of Room Singh. The FIR is exhibit Ka-1 and it narrates that while the deceased Dharamveer Singh was standing near the shop of one Chotelal Kisan alongwith his younger brother Udaiveer Singh and one Sher Bahadur S/o Netrapal Singh, the appellant Devendra Singh was also present with a country made pistol in his hand. The deceased is stated to have purchased a sachet of Harsingar (gutka) upon which the appellant assailant is also stated to have offered him a sachet that was refused by the deceased. It is on such alleged trivial issue some oral exchanges took place and later on it took the shape of a scuffle whereupon the appellant aimed his country made pistol on the temple of the head of the deceased and fired a shot resulting in his death. 4. It is on such alleged trivial issue some oral exchanges took place and later on it took the shape of a scuffle whereupon the appellant aimed his country made pistol on the temple of the head of the deceased and fired a shot resulting in his death. 4. The FIR discloses that the informant Agar Pal Singh PW-1 on hearing of the shot being fired rushed towards the scene of occurrence alongwith his brother Rati Pal Singh and while they were coming towards the scene of occurrence, which was at the very short distance, they saw the appellant fleeing away waving his country made pistol. The informant and his brother did not make any attempt to catch hold of the assailant-appellant as he was armed with a country made pistol. The incident caused a big furore in the village and those who were present scattered and locked themselves inside their house. Leaving behind the body of the deceased, the informant has recited and that he arrived at the police station for getting his report registered. The inquest is said to have been prepared and the post-mortem was carried out the next day. 5. The investigation was concluded where after the appellant was charge-sheeted under Section 302 IPC for murder with a separate charge-sheet under Section 25 of the Arms Act. The prosecution produced Agar Pal Singh the father of the deceased as PW-1, Rati Pal Singh, the brother of Agar Pal Singh as PW-2 as witnesses of fact. The other witnesses are formal witnesses Karan Singh being the Investigating Officer who was examined as PW-3, Doctor Nepal Singh, who had carried out the autopsy was examined as PW-4 Mahesh Pal Sharma, the Investigating Officer of the offence under Section 25 of the Arms Act was examined as PW-5, Mohammad Kayyum Ansari, the constable of police station Tilhar who had registered the FIR was examined as PW-6 and Raghu Nandan Singh who carried out the raid to arrest the appellant and then made the recovery of the fire-arm alleged to have been used in the commission of the offence was examined as PW-7. 6. The statement of the accused under Section 313 IPC was recorded whereafter, the trial Court on an assessment of the evidence proceeded to convict the appellant of the said offences and awarded the sentence as indicated herein-above. 7. 6. The statement of the accused under Section 313 IPC was recorded whereafter, the trial Court on an assessment of the evidence proceeded to convict the appellant of the said offences and awarded the sentence as indicated herein-above. 7. Learned counsel for the appellant has urged that the eye-witness account is absolutely untrustworthy, inasmuch as, neither the father of the deceased PW-1 nor his uncle PW-2 were present at the time of alleged occurrence so as to witness the commission of the offence, nor their testimony could be believed, keeping in view the material contradictions in the version of the FIR as well as in the own statement of these witnesses. The second submission of the learned counsel is that the FIR has been ante timed, inasmuch as, according to the testimony of the formal witnesses as well as the witnesses of fact including the first informant PW-1, the written report was delivered on the next day of the incident i.e. on 16th July, 2004. It is submitted that as a matter of fact the inquest was carried out the next day and, therefore, both the documents namely the FIR as well as the inquest report reflect a timing which establishes that the FIR has been ante timed with a view to somehow the other create evidence and falsely implicate the appellant in the commission of the offence. 8. It is further submitted that there was no motive or enmity established and consequently, in the light of the evidence on record, there was nothing to connect the appellant with the commission of the offence. 9. He has then submitted that neither the ocular testimony of the witnesses of fact or the testimony of the formal witnesses in any way corroborate each other and to further buttress his submissions, he contends that the post-mortem report belies the entire prosecution story of the offence having been committed and the injury having been caused by a fire-arm. 10. Lastly, it is urged that the entire story of the recovery of the fire-arm is a concoction inasmuch as neither the fire-arm has been connected with the injury caused nor is there any ballistic report to establish that the fire-arm had been utilized which could lead to any conclusion that the fatal shot had been fired through the country made pistol said to have been recovered from the appellant. The recovery according to the learned counsel is a planted fake recovery and it does not conform to the ingredients as prescribed under Section 27 of the Indian Evidence Act, 1872. In such circumstances, the argument is that the prosecution has completely failed to prove the prosecution story beyond reasonable doubt, consequently, neither the conviction nor the sentence can be upheld and the impugned judgment being unsustainable the appeal deserves to be allowed. 11. Replying to the aforesaid submissions on behalf of the appellant, the learned AGA submits that the date, time and place of incident is clearly established from the evidence that has been led and in such circumstances, the occurrence could not be dislodged by any such loophole as pointed out by the learned counsel for the appellant. It is further submitted that the medical evidence clearly indicates the cause of death due to the injury sustained by the deceased and in such circumstances there being no other alternative hypothesis to disbelieve the case of the prosecution, the guilt has clearly been found to be proved. He, therefore, submits that the ocular testimony would override the medical evidence and the same being unimpeachable, the appellant cannot claim any benefit of either any discrepancy or shortcoming in the investigation or the preparation of the medical report. He, therefore, submits that the conclusion drawn by the trial Court, on the basis of the circumstances existing, the conviction has been brought home on sound evidence that remains unimpeached hence, the judgment of the trial Court does not deserve any interference. 12. We have considered the submissions raised and perused the records. To begin with the narration in the FIR which was lodged by PW-1, the informant Agar Pal Singh, who is the father of the deceased in his deposition has clearly admitted that the FIR that has been proved as Ext-Ka-1 is the same FIR which had been tendered by him after being transcribed by Nanhe Singh. Thus, the transcription the contents and the allegations of the FIR are categorically admitted and proved by PW-1. The said contents clearly recite that when the shot was fired the witness alongwith his real brother Rati Pal Singh rushed to spot. Thus, the transcription the contents and the allegations of the FIR are categorically admitted and proved by PW-1. The said contents clearly recite that when the shot was fired the witness alongwith his real brother Rati Pal Singh rushed to spot. This clearly, establishes that the said witness namely Agar Pal Singh and his brother Rati Pal Singh were not standing or were at the spot when the crime is said to have been committed at 08:30 pm. The FIR clearly states that it was only after they heard the sound of the shot that they arrived at the scene. In the testimony PW-1 Agar Pal Singh has nowhere deviated from the aforesaid deposition. What he deposes before the Court is that the deceased was accompanied by his younger son Udaiveer Singh and one Sher Bahadur. It is to be noted that none of these two persons were produced as witnesses in spite of the fact that they are nominated in the FIR and their names were again stated in the testimony of PW-1. In our considered opinion, they could have been the best possible eye-witnesses for any ocular testimony to establish that at the time of commission of the offence, the appellant assailant was present and had fired the shot. This lapse in the prosecution and non production of these two persons who could have been the best eye-witnesses has not been patched up and corroborated by any evidence led thereafter. 13. In such circumstances, it has to be seen as to whether the ocular testimony of PW-2 Rati Pal Singh the brother of the informant that has supported the story of the prosecution with improvements can be believed or not. The statement of PW-2 categorically records that PW-2 was present when the fatal shot was fired and that he had witnessed the entire occurrence. We are unable to accept this part of the statement of PW-2, inasmuch as, neither the First Information Report nor the first informant in his deposition has stated that Rati Pal Singh was already present at the spot, when the occurrence took place. To the contrary as noted above in the statement of PW-1, the arrival is after hearing the shot having been fired. To the contrary as noted above in the statement of PW-1, the arrival is after hearing the shot having been fired. The statement of PW-2 to the effect that he had himself seen the appellant having committed the offence, therefore, has no legs to stand as it is a clear contradiction and material improvement upon the statement of PW-1. We may point out that in his cross-examination PW-1 Agar Pal Singh has categorically stated that the incident took place in the presence of his younger son Udaiveer Singh who was never produced as a witness. It has further been categorically stated by PW-1 that no one else was present at that time. This, therefore, fortifies the argument that the testimony of PW-2 claiming himself to be present at the time of occurrence is absolutely untrustworthy. PW-1 has further supplemented his statement by a categorical stand taken that after hearing the shot being fired, he arrived on the spot thereafter. 14. It is further to be gathered from the statement of PW-2 Rati Pal Singh that at the time of the incident, the deceased Dharmveer Singh was all alone at the shop of Chotelal Kisan. It has been nowhere been indicated in the statement of PW-2 that Udaiveer Singh and Sher Bahadur were also present on the spot. Thus PW-2 to this extent has neither supported the FIR nor the statement of his brother Agar Pal Singh PW-1. It is, therefore, evident from the said statement of the witnesses of fact that the contradictions are severe narrating two diametrically opposed versions establishing that they were not present at the time of occurrence. The statement of PW-2 is absolutely untrustworthy being in contradiction to that of PW-1. If PW-1 had arrived with his brother as stated way after the shot was fired, then the testimony of PW-2 that he was present from before is clearly contradictory. The said witnesses, therefore, did not actually see the commission of the offence. 15. These two witnesses have, however, stated that after having fired the shot, the assailant-appellant had fled away but they did not make any attempt to stop him. This conduct of the witnesses was absolutely unusual but may be under the threat of an alleged presence of a fire-arm in the hands of the appellant they may have behaved accordingly. 16. These two witnesses have, however, stated that after having fired the shot, the assailant-appellant had fled away but they did not make any attempt to stop him. This conduct of the witnesses was absolutely unusual but may be under the threat of an alleged presence of a fire-arm in the hands of the appellant they may have behaved accordingly. 16. It is here that the recovery of the fire-arm becomes important and its connection with the offence. From the recovery memo, we find that the country made pistol was recovered from the pocket of the pants of the appellant, when he was arrested and which was a country made pistol of 315 bore of a single barrel. It is also stated in the recovery memo that the cartridge which had been allegedly fired from the pistol had been thrown by the appellant in a nearby pond. There are no independent witnesses to the said recovery. 17. The aforesaid recovery does not appeal to reason, inasmuch as, what is required under Section 27 of the Indian Evidence Act, is that the utilization of the said weapon should be established to make it a relevant and admissible piece of evidence. There is no ballistic report nor is there any expert report which may establish that the said weapon had been utilized or a shot had been fired from it so as to connect it with the commission of the offence. The cartridge said to have been utilized was never recovered. In the aforesaid circumstances, even if the recovery is accepted and a live cartridge is also stated to be available then in that event, there is nothing to indicate that the weapon had been utilized for having fired the fatal shot. 18. There is no recovery of any trace of any material suggesting the injury to be that from a fire-arm. No bullet, pellet or any gun powder material or metal was found in the autopsy report to even remotely indicate a fire-arm injury. The allegation is that the weapon was used from a very short range. The injury nowhere indicates any blackening tattooing, charring or trace of any gun powder material on the surface of the wounds. 19. No bullet, pellet or any gun powder material or metal was found in the autopsy report to even remotely indicate a fire-arm injury. The allegation is that the weapon was used from a very short range. The injury nowhere indicates any blackening tattooing, charring or trace of any gun powder material on the surface of the wounds. 19. There are two wounds described as ante-mortem injuries and the description thereof is incised wound size 16cmX 15cm, cavity deep extending from a medial border of left eye adjacent to medial border of nose to temporal region of the skull 1.7 cm above the left ear. The description, further is margins are clean cut and deeper on the nose side. 20. The second injury is above the left eye brow and to the middle of the left cheek of an identical nature with clear margin cuts deeper on the frontal side being an incised wound of the size of 12.5 cm X 1cm and bone deep. The said injuries have not been described in the post-mortem report to have been caused by any fire-arm. It is, therefore, evident that the entire description is of two incised wounds with clean cut margins and are not lacerated wounds as is usually found in fire-arm injuries. To the contrary, the injuries appear to have been caused by some sharp edged weapon. The deposition of PW-4 Dr. Nepal Singh describes the same injuries in detail but at one place he states that an incised wound can also occur from a fire-arm injury. On cross-examination, he says ordinarily fire-arm injuries are lacerated wounds and the edges are not clear. On further cross-examination and by putting to him the statement made under Section 161 Cr.P.C, he said that he had stated before the Investigating Officer that such injuries would have been caused by a sharp edged weapon. He was further cross-examined and he gave an answer that the post-mortem report has described the injuries as incised wounds. It is, therefore, evident from the testimony that the doctor did not find it necessary to give any such information either to the police or the higher authorities about the injury to be that of a fire-arm as he further clarified that no foreign body bullets or pellets were found. It is thus evident that the injuries which were incised in nature were sought to be connected as a fire-arm injury. It is thus evident that the injuries which were incised in nature were sought to be connected as a fire-arm injury. To test this medical evidence, learned counsel for the appellant relied on the authority of Modi’s Jurisprudence on Forensic Science 25th Edition to urge that this authority in its description, under the topic of Fire-arm Wounds, has nowhere indicated that incised wounds of the nature as presently involved could be caused by a fire-arm. To the contrary, the said authority indicates that these are usually lacerated wounds and which have also been stated by PW-4 in his statement. Thus the stray opinion of the doctor to describe the two wounds which are incised wounds with a clean cut as a possible or probable fire-arm injury is neither supported by the nature of the injury nor is supported by any authority on the subject. To the contrary, it is just the other way around. With the close nature of the shot having been fired either the bullet, if retained inside the skull would have been found or if it was a through and through injury, then there would have been a wound entry and a wound of exit. These are entirely absent. The two injuries are in all probability that of a sharp edged weapon. The nature of the injuries clearly indicate that their dimensions are that of having been caused by a sharp edged weapon. The status of the wound with a clean cut and the depth of the injury being bone deep and on the left side of the head indicates a massive forced sharp edged weapon injury. Thus, the utilization of a fire-arm to cause the injuries which is the sole case of the prosecution is neither established by the recovery, by any medical evidence and as examined above neither by ocular testimony as the presence of PW-1 and PW-2 at the time of the occurrence is highly doubtful. A suggestion was also put of an axe being used for the assault but that was clearly denied. There is no recovery of any sharp edged weapon. 21. It would be necessary to point out that the sketch photograph of the dead body (photonash) reflects the injuries on the left side and that this matches the description of the injuries in the post-mortem report. There is no recovery of any sharp edged weapon. 21. It would be necessary to point out that the sketch photograph of the dead body (photonash) reflects the injuries on the left side and that this matches the description of the injuries in the post-mortem report. It can therefore be said that the deceased may have been hacked from the left side with some sharp edged weapon. 22. There is yet another striking feature which deserves notice that has been pointed out while advancing his submissions on behalf of the appellant. The FIR and the inquest report are stated to have been carried out on the same day of the incident. The timing being 22:45 pm and 23:20 pm respectively. This fact has not been supported by PW-1 who is the first informant. To the contrary, he states that the police did arrive at about 11:30 pm and remaining therefore one hour but in the same statement of his testimony, he has specifically stated that he went to the police station the next day in the morning and then lodged the FIR that is on 16th July, 2004. The scribe of the FIR Nanhe Singh was not produced. In this context, the statement of Mohammad Kayyum Ansari, the concerned constable who is stated to have transcribed the report was examined. He has stated that the proceedings were recorded and were also mentioned in the daily diary on 15th July, 2004. In this context, the date mentioned in the preparation of the inquest report records the date as 16.4.2004. The original inquest report is exhibit-Ka-16. 23. Thus, from the statement of PW-1 and the inquest report, it is evident that this entire process of lodging the FIR and the inquest report was done on the next day i.e. 16.7.2014 as a result whereof the FIR appears to be ante timed. 24. The aforesaid lapses are serious and are lapses with gaps that could not be filled up by the prosecution. The very theory of the presence of the ocular witnesses is untrustworthy for the reasons given herein-above and the cause of death by a fire-arm injury has not been proved at all. There is complete lack of evidence of a fire-arm injury and in such circumstances, it will be difficult to believe that PW-1 and PW-2 had actually seen the appellant fleeing away with a pistol waiving his hand. 25. There is complete lack of evidence of a fire-arm injury and in such circumstances, it will be difficult to believe that PW-1 and PW-2 had actually seen the appellant fleeing away with a pistol waiving his hand. 25. The trial Court has completely omitted to examine the aforesaid minute details before arriving at a conclusion of the prosecution story having been established beyond a reasonable doubt. The judgment reflects legal oversights that were vital for consideration. To the contrary, the trial Court has abruptly come to the conclusion that the ocular testimony cannot override the medical evidence and has for no valid reason construed the statement of PW-4, the doctor, as conclusive evidence to treat the injury of that of a fire-arm. As analyzed herein-above, the aforesaid conclusion of the trial Court was clearly contrary to the weight of evidence on record and the best of ocular testimony, if at all which could have been adduced namely that of Udaiveer Singh and Sher Bahadur was never attempted by the prosecution. The prosecution, therefore, utterly failed to produce the best evidence and rather relied on the evidence of PW-1 and PW-2 whose ocular testimony does not appear to be trustworthy. The prosecution could not establish the cause of death by a fire-arm alleged to have been utilized by the appellant. The prosecution remained persistent to establish the offence of murder having been committed by causing a fire-arm injury whereas the post-mortem report reflects a sharp edged weapon injury. Thus a single shot from a country made pistol being fired and the deceased succumbing to such a projected injury is not proved at all. The version, for all the reasons as discussed above is barren of inspiration. In short, the prosecution has failed the test of beyond reasonable doubt. In fact it has attempted to cross bridges that were not even built. We are not elaborating on the principles of what is reasonable doubt as we have dealt with the same at some length with the aid of precedents in our recent pronouncement in the case of Krinshna Pal and another v. State of Uttar Pradesh (Crl. Appeal No. 950 of 2013) decided on 7.2.2018. 26. For all the aforesaid reasons, we are convinced that the prosecution failed to prove it’s case and as such the appellant deserves acquittal, extending him the benefit of all the doubts as explained above. Appeal No. 950 of 2013) decided on 7.2.2018. 26. For all the aforesaid reasons, we are convinced that the prosecution failed to prove it’s case and as such the appellant deserves acquittal, extending him the benefit of all the doubts as explained above. We, therefore, set aside the judgment of the trial Court dated 26.4.2011 and allow this appeal in its entirety. The offence of the alleged recovery also has not been proved against the appellant and, therefore, the appellant stands absolved of the alleged offence under Section 25 of the Arms Act as well. 27. The appellant shall be set at liberty forthwith. Copy of this judgment shall be dispatched to the trial Court for compliance.