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2019 DIGILAW 2362 (ALL)

Naresh v. State of U. P.

2019-10-18

PRITINKER DIWAKER, RAJ BEER SINGH

body2019
JUDGMENT : Pritinker Diwaker, J. As these appeals arise out of a common judgement and order dated 30.10.2010 passed by Additional Sessions Judge, Court No.15, Meerut in Sessions Trial Nos. 3 of 2000 and 189 of 2000, convicting the accused-appellants under Section 302 and 302/34 of IPC and sentencing appellant Naresh under Section 302 of I.P.C. to undergo imprisonment for life and a fine of Rs.10,000/-, in default thereof, to further undergo two years rigorous imprisonment, however, he has been acquitted of the offence under Section 25 of The Arms Act and further sentencing appellants Brij Kumar and Sahdev under Section 302/34 of I.P.C. to undergo imprisonment for life and a fine of Rs.10,000/- each, in default thereof, to further undergo two years rigorous imprisonment, they are being disposed of by this common order. 2. In the present case, name of the deceased is Virendra Singh, who was working as a teacher in a primary school at Khuwajampur. On 07.10.1999 at about 7:00 a.m., deceased left for his school on his bicycle and when PW-1 Jagdip Singh, nephew of the deceased, inquired from his maternal grandmother about the passbook of the Bank for getting an old age pension, it was discovered that deceased had taken the said passbook along with him. PW-1 Jagdip Singh and PW-2 Ram Charan proceeded towards the school of the deceased on the bicycle of PW-1 Jagdip Singh and when they reached just at the gate of the school, they saw one scooter coming from the other side being driven by accused Sahdev, whereas other two accused persons namely, Brij Kumar and Naresh were siting as pillion riders. After stopping the said scooter, accused Naresh and Brij Kumar carrying country made pistols with them reached to the window of the classroom of the school, accused Naresh caused firearm injury to the deceased of which, sound was heard by PW-1 Jagdip Singh and PW-2 Ram Charan. Accused Brij Kumar also made an attempt to cause firearm injury but he failed to do so and thereafter both these accused persons returned to their scooter and then all the three fled away from the spot. PW-1 Jagdip Singh and PW-2 Ram Charan reached to the window of the classroom and saw the deceased sitting on his chair in a pool of blood. PW-1 Jagdip Singh and PW-2 Ram Charan reached to the window of the classroom and saw the deceased sitting on his chair in a pool of blood. According to PW-1 Jagdip Singh, this incident occurred at about 9:45 a.m., of which report was lodged at 11:15 a.m. It is relevant to note here that as per prosecution case, distance between the place of occurrence and that of police station is about 14 kilometers. Based on written report lodged by PW-1 Jagdip Singh, FIR Ex.Ka.17 was registered against all the three accused persons under Section 302 of IPC. 3. On 07.10.1999, inquest on the dead body of the deceased was conducted vide Ex.Ka.4 and the body was sent for postmortem, which was conducted on 08.10.1999 vide Ex.Ka.2 by PW-3 Dr. R.K. Kapoor. 4. As per Autopsy Surgeon, following gunshot injuries have been found on the neck of the deceased: (i) Gun shot wound of entry 2.0 cm x 1.0 cm x bone deep on back of neck 6.0 cm below from lower end of left ear pinna inverted. Tattooing present. (ii) A metallic bullet recovered from the muscle of lower jaw. Lower jaw fractured on right side. The cause of death of the deceased was due to shock and haemorrhage as a result of gunshot injury. 5. While framing charge the trial Judge has framed charge against accused appellant Naresh under Section 302 of IPC and Section 25 of The Arms Act, whereas against accused Brij Kumar and Sahdev, charge was framed under Section 302/34 of IPC. 6. So as to hold accused appellants guilty, prosecution has examined nine witnesses, whereas three defence witnesses have also been examined. Statements of accused persons were recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication. 7. By the impugned judgment, the trial Judge has convicted accused Naresh under Section 302 of IPC, whereas accused Brij Kumar and Sahdev have been convicted under Section 302/34 of IPC and they have been sentenced as mentioned in paragraph no. 1 of this judgement. Accused Naresh has been acquitted of the offence under Section 25 of Arms Act. Hence these two appeals. 8. Learned counsel for the appellants submits: (i) that testimony of PW-1 Jagdip Singh and PW-2 Ram Charan are not reliable and both these two witnesses had not seen the actual occurrence. 1 of this judgement. Accused Naresh has been acquitted of the offence under Section 25 of Arms Act. Hence these two appeals. 8. Learned counsel for the appellants submits: (i) that testimony of PW-1 Jagdip Singh and PW-2 Ram Charan are not reliable and both these two witnesses had not seen the actual occurrence. It has been argued that even assuming that two witnesses had gone to the school but by the time they could reach, the incident had already taken place. (ii) that there was previous enmity between the accused persons and the deceased and therefore, chances of false implication of the appellants cannot be ruled out. (iii) that there is inordinate delay of about three days in recording case diary statement of PW-2 Ram Charan and PW-5 Smt. Shanti Devi and this delay has not been explained by the prosecution. (iv) that one country made pistol has been seized from accused Naresh vide Ex.Ka.14 but there is no ballistic expert report connecting the said weapon with the commission of offence. (v) that conduct of the eye-witnesses is required to be noted where real uncle of PW-1 Jagdip Singh had suffered gunshot injury in his presence but yet he did not make any effort to save his uncle and left him as it is, thinking that he has already expired. (vi) that both PW-1 Jagdip Singh and PW-2 Ram Charan have admitted the fact that by the time they could see the dead body of the deceased in the classroom, number of persons had already gathered there and this clearly demonstrates that these two witnesses, if at all reached to the place of occurrence, it had taken place. In the site map, it has not been shown as to from where PW-1 and PW-2 saw the incident, even the distance from where PW-1 and PW-2 have seen the incident, has not been made clear by the prosecution. 9. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that the conviction of the appellants is in accordance with law and there is no enmity in the same. 10. Learned counsel for the objector specifically submits that there was no occasion for PW-1 Jagdip Singh and PW-2 Ram Charan to falsely implicate the appellants and they appears to be very natural witnesses. 11. We have heard counsel for the parties and perused the record. 10. Learned counsel for the objector specifically submits that there was no occasion for PW-1 Jagdip Singh and PW-2 Ram Charan to falsely implicate the appellants and they appears to be very natural witnesses. 11. We have heard counsel for the parties and perused the record. 12. Pw-1 Jagdip Singh, is a nephew of the deceased and eye-witness to the incident. He has stated that he knew all the accused persons. His uncle (deceased) was working as a teacher in a school and on 17.10.1999, at about 7:00 p.m. he left for his school on his bicycle and when he (this witness) inquired about the passbook of his maternal grandmother, related to an old age pension, it was discovered that it is the deceased who had taken the same along with him. PW-1 Jagdip Singh, on his bicycle along with PW-2 Ram Charan reached to the school of the deceased and as soon as they stopped their bicycle at the gate of the school, they saw accused persons coming from the other side and then accused Naresh first caused firearm injury from the window and then an attempt was also made by accused Brij Kumar to cause another firearm injury but he could not succeed. In cross-examination, this witness admits that by the time he reached to the school, his uncle had already suffered gunshot injury on his neck and that blood was oozing. When he saw his uncle, about 10-20 people of the school and village were already there, however, he is not aware about the names of those persons nor he had any talk with them. He further states that dead body of the deceased was lying in a sitting posture on a chair and he did not make any attempt to take out the said body from the chair. He has admitted the fact that accused Brij Kumar and Sahdev were having enmity with his father Ashok Kumar and that Brij Kumar and Sahdev had caused knife injury to his father for which case under Section 307 of IPC was registered against them. He further states that in the said case deceased Virendra was one of the witness and was prosecuting the case. He has further admitted the fact that accused Brij Kumar has filed a civil suit against his family members at civil court, Meerut and the same is still pending. 13. He further states that in the said case deceased Virendra was one of the witness and was prosecuting the case. He has further admitted the fact that accused Brij Kumar has filed a civil suit against his family members at civil court, Meerut and the same is still pending. 13. Pw-2 Ram Charan is the other eye-witness to the incident, who on the date of occurrence had accompanied PW-1 Jagdip Singh. He states that as soon as he and PW-1 reached to the school, they heard the sound of gunshot and then they saw accused Naresh and Brij Kumar carrying country made pistols with them whereas third accused was sitting on his scooter. He states that after causing gunshot injury to the deceased, accused persons fled away from the spot and when he reached near the deceased, he noticed gunshot injury on his neck and the said injury was caused by accused Naresh, whereas accused Brij Kumar had missed his fire and he could not hear second sound of gunshot. In cross-examination, he states that by the time he reached to the place of occurrence, dead body of the deceased was already lying and that about 100-200 persons including school children were also present. However, none of those persons were known to him. He further states that the entire gathering had surrounded the dead body of the deceased, which was lying in the middle of the room. He thereafter has stated that initially the dead body of the deceased was found on the chair and then his body was taken out from the chair and was kept in the middle. He states that distance between school gate and the window is about 56 yards. He admits that his diary statements was recorded by the police after three days of the incident. 14. Pw-5 Shanti Devi is a wife of the deceased, states that on the date of incident at about 7.00 a.m., her husband had left for his school. Accused Naresh is a criminal and her husband had lodged report against him because of which accused Naresh was sent to jail and that he was having inimical relation with her husband. 14. Pw-5 Shanti Devi is a wife of the deceased, states that on the date of incident at about 7.00 a.m., her husband had left for his school. Accused Naresh is a criminal and her husband had lodged report against him because of which accused Naresh was sent to jail and that he was having inimical relation with her husband. She further states that against two other accused persons i.e. Brij Kumar and Sahdev, criminal case was registered for assaulting her brother-in-law Ashok Kumar and in the said case, she and her husband were the witnesses and that Court statement of her husband was partially recorded. She further states that there was further dispute between accused Brij Kumar, Sahdev and her husband in respect of brick road between the two houses and her husband had lodged a report against the accused persons, based on which, case under Section 307 of IPC was registered against them. In cross-examination, she has stated that on the date of incident at about 10.00 to 11.00 a.m., she met PW-1 Jagdip Singh in her house and there PW-1 and PW-2 Ram Charan had informed her about the murder of her husband. PW-1 stayed in her house for about 5 to 10 minutes and by the time she reached to the place of occurrence, police was already there and in her presence body was sealed. In her further cross-examination, she has given details of dispute between the two families. 15. Pw-3 Dr. R.K. Kapoor conducted postmortem on the body of the deceased. PW-4 Aizaz Alam Khan is a first Investigating Officer of the case, whereas PW-6 R.N. Singh is a second Investigating Officer. He also recovered the country made pistol from accused Naresh vide Ex.Ka.14. However, as already stated above, there is no ballistic expert report regarding use of this weapon. PW-7 Mahesh Kumar Gautam recorded the FIR. PW-8 Sandeep Kumar and PW-9 Harendra Pal Singh assisted during investigation. 16. Dw-1 Satyapal Arya, DW-2 Bhagirah Singh and DW-3 Sripal Singh have stated that deceased Virendra Singh while working in the school was killed by some miscreants and relevant entries were made in the school Register, which was maintained on regular basis. They have stated that village Pardhan was also communicated about the murder of the deceased by some miscreants and this entry has also been made in the school Register vide Ex.Ka.1. 17. They have stated that village Pardhan was also communicated about the murder of the deceased by some miscreants and this entry has also been made in the school Register vide Ex.Ka.1. 17. Close scrutiny of evidence makes it clear that on 07.10.1999, when deceased Virendra Singh was teaching in his class room, he suffered single gunshot injury on his neck, resulting his instantaneous death. According to prosecution, PW-1 Jagdip Singh and PW-2 Ram Charan incidentally reached to the place of occurrence and saw appellants Naresh and Brij Kumar causing gunshot injury to the deceased resulting his death. In examination-in-chief both PW-1 and PW-2 have shown themselves to be eye-witnesses to the incident but in cross-examination, they admit that when they reached to the class room of the deceased, deceased had already suffered gunshot injury and that number of persons including villagers were already there. According to PW-1 Jagdip Singh, 10 to 20 people had already gathered there, whereas according to PW-2 Ram Charan about 100-200 people were already there at the place of occurrence. Considering the statement of PW-1 and PW-2, possibility cannot be ruled out that both these witnesses reached to the place of occurrence after the incident had already taken place. Yet another important aspect of the case is that previous enmity between the two families have been admitted PW-1 Jagdip Singh, PW-2 Ram Charan and PW-5 Smt. Shanti Devi, thus, possibility of false implication of the appellants cannot be ruled out. Enmity is a double edged weapon, in the case of Sunil Kundu and Another Vs. State of Jharkhand, (2013) 4 SCC 422 , it has been held by the Apex Court as under: "It was argued by Mr. Ratan Kumar Choudhary, learned counsel for the State that different persons react differently to a particular situation and as such there may be minor variations in their statements. He submitted that minor contradictions and inconsistencies which do not go to the root of the prosecution version need to be ignored. In this case, it is not possible for us to adopt such an approach because there is a major lacuna in the prosecution story. It has been alleged that at least two of the accused were carrying pistols; the deceased was fired at and he was injured. This case is not borne out by the medical evidence. In this case, it is not possible for us to adopt such an approach because there is a major lacuna in the prosecution story. It has been alleged that at least two of the accused were carrying pistols; the deceased was fired at and he was injured. This case is not borne out by the medical evidence. At the cost of repetition, we must state that no bullets or empty cartridges have been recovered from the scene of offence. If we keep this major lacuna of the prosecution story in mind and consider the above mentioned inconsistencies in the evidence of the prosecution witnesses, it would not be possible to term them as minor inconsistencies or variations which should be ignored. Besides, all the three important prosecution witnesses are related to the deceased and, therefore, are interested witnesses. We are aware that the evidence of an interested witness is not to be mechanically overlooked. If it is consistent, it can be relied upon and conviction can be based on it because, an interested witness is not likely to leave out the real culprit. But in this case, the interested witnesses are not truthful. Their presence itself is doubtful. According to PW-6 Narendra Yadav, they were present at the scene of offence, but their names are not mentioned in the FIR. The genesis of the prosecution case is suppressed. Moreover, admittedly, there is deep rooted enmity between the accused and the deceased to which we have made reference earlier. We are mindful of the fact that enmity is a double edged weapon but possibility of false involvement because of deep rooted enmity also cannot be ruled out." 18. Another important aspect of the case is that in the site plan it has not been made clear as to from where the eye-witnesses could see the accused persons and the incident and as to how they gained entry in the class room. According to the inquest, dead body of the deceased was lying on a chair in a sitting posture, whereas according to the statement of eye-witnesses, body was already taken to the middle of classroom and when PW-1 Jagdip Singh and PW-2 Ram Charan reached to the place of occurrence, number of persons had already gathered there and they were standing surrounding the dead body. 19. 19. According to PW-5 Smt. Shanti Devi at 10-11 a.m., PW-1 Jagdip Singh and PW-2 Ram Charan were in her house, whereas, as per prosecution case, incident occurred at 9:45 a.m. of which, report was lodged at 11:15 a.m. and the distance between the place of occurrence and that of police station is 14 kilometers. Further it is the case of the prosecution that distance between the house of PW-5 Smt. Shanti Devi and the school is about 8 kilometers and considering this distance and timing, it is doubtful as to whether at 9:45 a.m., PW-1 Jagdip Singh and PW-2 Ram Charan were at the place of occurrence or they were in the house of PW-5. 20. Yet another aspect of the case is that diary statement of PW-2 Ram Charan and PW-5 Smt. Shanti Devi were recorded on 10.10.1999 by PW-6 R.N. Singh and there is no explanation for this inordinate delay in recording the same. 21. In this view of the matter, we are of the view that prosecution has failed to prove the guilt of the appellants beyond a reasonable doubt and in such a situation, it is the appellants who are entitled to be given benefit of doubt. 22. In Kali Ram vs. State of Himachal Pradesh, (1973) AIR SC 2773, while dealing with the issue relating to withholding or affording benefit of doubt, observed as under: "26. It needs all the same to be re-emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused. The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established. In the case of an accused who is innocent, or whose guilt cannot be proved, the public interest and the interest of the accused alike require an acquittal. 27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos." The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao Bobade & Anr., (1973) AIR SC 2622 as is clear from the following observations: "Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations." 23. Resultantly appeals succeed and are allowed. Impugned judgment and order of the trial court is set aside. Appellants Brij Kumar and Sahdev are already on bail, therefore, no further order is required in their respect. Appellant Naresh is reported to be in jail, he be set free forthwith, if not required in any other case. 24. Let a copy of this judgment be sent to the concerned trial Court forthwith for compliance.