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Allahabad High Court · body

2019 DIGILAW 2692 (ALL)

Sarnam v. State of U. P.

2019-12-03

HARSH KUMAR

body2019
JUDGMENT : Harsh Kumar, J. The instant appeals have been filed against impugned judgment and order of conviction passed by Additional Sessions Judge/Special Judge, S.C./S.T. (Prevention of Atrocities) Act, Budaun on 28.9.2013 in Sessions Trial No.538 of 2008 (State vs. Amreesh and 5 others), Case Crime No.194 of 2007 under Sections 147, 148, 325/149 and 307/149 I.P.C. P.S. Gunnaur, District Budaun whereby all the accused persons were acquitted of the charges of offences under Section 325/149 I.P.C., convicted for charges of offences under Sections 147, 148, 307/149 I.P.C. and each of them was sentenced with rigorous imprisonment for a period of 8 years under Section 307/149 I.P.C. and fine and other sentences under Sections 147, 148 I.P.C. 2. Feeling aggrieved, convicts Amreesh, Neeresh, Dharampal and Dinesh filed Criminal Appeal No.4448 of 2013 and convicts Sarnam and Munna Lal filed Criminal Appeal No.4634 of 2013 against same impugned judgment and order. Since two appeals arise from one and same impugned order of conviction and sentence passed in one and same sessions trial, they were connected and are being decided by common judgment. 3. The brief facts relating to the case are that Ramesh Chandra submitted a written report to Inspector Incharge of P.S. Gunnaur District Budaun at 11.30 a.m. on 7.5.2007 on which F.I.R. was lodged at Case Crime No.194/2007 under Sections 147, 148, 149, 307 and 325 I.P.C. against Munna Lal and 7 others, with averments that, "today at 11.00 a.m. applicant (Ramesh Chandra) had come to State Bank of India Gunnaur for depositing money and when passed from shop of Lala Raman, Munna Lal and 7 others came from behind surrounded him with an intention to cause his death, and upon exhortation by them Munna Lal fired at him which passed through his temporal region by touching his KANPATI and Dariao, Neeresh, Dinesh, Natthu, Dharampal and Surnam attacked him with lathis and when he called nearby shop-keepers for rescue, they (accused) started firing with firearms upon which all shopkeepers and persons in market gone apprehended; that accused persons fractured his leg and in the meantime, Raghunath and Roshan of his village arrived there and upon their caution they (accused) again beaten him, knelled him down at ground and fled away.” 4. The Investigating Officer after preparing site plan, ascertaining medical examination of first informant/victim and collecting injury report as well as other evidence, submitted charge sheet against Amreesh, Neeresh, Dharampal, Dinesh, Surnam and Munna Lal, 6 out of 8 persons named in F.I.R., exonerating Dariao and Natthu. The case was committed to sessions and the Sessions Judge, Budaun framed charges against all the 6 accused under Section 147, 148, 325/149 and 307/149 I.P.C. on 11.12.2008 to which they denied and demanded trial. 5. In order to prove charges against accused-appellants, prosecution produced eye witness Roshan as P.W.1, first informant and injured eye witnesses Ramesh Chandra as P.W.-2, Dr. A.K. Verma as P.W.-3, Head Constable Jagpal Singh as P.W.-4 and S.S.I, Devendra Kumar Tyagi as P.W.-5 who proved documentary evidence of prosecution viz., F.I.R, injury report, 2-2 charge sheets, site plan etc. as Ext. A-1 to A-7 and closed. Then statement of accused persons were recorded under Section 313 Cr.P.C. but they did not produce any defence evidence. 6. The learned trial court after hearing parties counsel and analization of evidence on record passed impugned conviction order. Feeling aggrieved with which two instant appeals have been filed by convicted accused persons. 7. Heard Shri Ram Babu Sharma & Shri Ardhendu Shekhar Sharma for appellant no.1 in Criminal Appeal No.4634 of 2013 and appellant nos.2 to 4 in Criminal Appeal No.4448 of 2013, Shri Aditya Dhar Dwivedi, Advocate holding brief of Shri Pradeep Kumar Pal for appellant no.2 in Criminal Appeal No.4634 of 2013 and appellant no.1 in Criminal Appeal No.4448 of 2013 and Shri Raj Kamal, learned A.G.A. for State. 8. 8. Learned counsel for appellants contended that impugned judgment and order of conviction is wrong on facts and law; that as per averments made in F.I.R., the incident in question did take place around the shop of Lala Raman when first informant Ramesh Chandra was going to deposit money in State Bank of India, Gunnaur as accused persons allegedly surrounded upon exhortation and attacked him, in contradiction to which in his statement on oath as P.W.-2 he has stated that he was returning from State Bank of India after depositing money; that as per averments made in F.I.R. role of firing has been assigned only to accused appellant Munna Lal which fire allegedly passed through his temporal region, touching his KANPATI, following which other accused persons beaten him with lathis resulting in fracture of his foot in contradiction to which as per his medical examination report he did not sustain any firearm injury or even lacerated wound over his temporal region or KANPATI, rather injury no.5 is single gunshot wound of entry 0.3 x 0.3 cm, 1 cm below left eye with blackening; that first informant does say that he was hit by fire below his eye and there is no injury over his KANPATI; that as per averments made in F.I.R. his foot/leg was fractured upon beating with lathis by accused persons but he has not specified as to which leg and which part of his leg was fractured; that in contradiction to the statement of first informant, his medical examination report states that he sustained (i) one traumatic swelling and (ii) one lacerated wound, total two injuries on his right leg of which X-ray was advised, but there is no X-ray or supplementary medical report or other evidence on record to suggest any fracture of his right leg or foot; that out of the two eye witnesses of incident mentioned in F.I.R. Roshan and Raghunath only Roshan was produced as P.W.-1 and in his statement on oath he has stated that he was not present at the place of occurrence and neither saw any incident nor Munna Lal fired at Ramesh Chandra nor other accused persons committed marpeet with Ramesh Chandra with lathi dandas in his presence; that the other eye witnesses Raghunath or Lal Raman (in front of whose shop the incident is alleged to have taken place) have not been produced by prosecution for the reason best known to it; that in F.I.R. no motive has been assigned to any of the accused for committing the incident in question and causing injuries to first informant, however, in his Examination-in-Chief as P.W.-2 first informant has stated that the accused persons were on enmical terms with him since before, on account of murder of his father by Munna Lal and Surnam in which case Surnam was convicted and case against Munna Lal was pending; that there is nothing on record to show or prove that accused appellant Munna Lal and Surnam were ever tried for murder of father of Ramesh Chandra or Surnam was convicted; that moreover such a fact has not been put to accused persons in their statements under Section 313 Cr.P.C. to deny or explain the alleged eventuality; that medical officer P.W.-3 in his cross examination has admitted that injury nos.1 to 3, which are on right let and right shoulder may also be caused by falling on ground and no X-ray or supplementary report of above injuries was ever brought before him; that he has also stated that gunshot injury no.5 could have been caused from a close range of 3 feet; that there was no corroboration of sole testimony of first informant and in view of the contradictions amongst averments made in F.I.R., statement of first informant as P.W.-2 and the medical evidence on record, the learned trial court acted wrongly in relying on the interested, sole and untrustworthy false testimony of first informant; that there was no iota of evidence to show that appellants formed any unlawful assembly or were armed with deadly weapons or the incident in question was committed in furtherance of common object of such unlawful assembly to cause death of first informant Ramesh Chandra; that in F.I.R. or in evidence, no specific weapon has been assigned to each accused person except Munna Lal has been assigned with firearm, so the conviction of all the appellants under Section 148 I.P.C. is wrong and baseless; that as per averments made in F.I.R. only Munna Lal was armed with pistol and other accused persons were armed with lathi danda the further contention in F.I.R. that upon calling the shopkeepers for rescue all of them started firing with pistol is absolutely false and self-contradictory; that appellants did not commit the incident in question and neither they formed any unlawful assembly nor were armed with deadly weapons or pistol or lathi-dandas nor such assembly had any common object of causing death of Ramesh Chandra nor caused any firearm or lathi injury to first informant; that in his cross examination at page 18 of paper book the first informant P.W.-2 has admitted that his father contested election of village Pradhan against Smt. Ramvati, the mother of appellant Munna Lal and named accused Amreesh in which Smt. Ramvati was declared elected and he lost against her; that the real fact is that due to above grudge/enmity of loss in village Pradhani election, the first informant has falsely implicated appellants; that first informant appears to have sustained injuries elsewhere at the hands of someone else and since the assailants could not be identified, so with ulterior motive appellants have been falsely implicated due to above mentioned enmity; that as per averments made in F.I.R. several fires were made by accused persons at the spot but I.O. has not collected even a single empty cartridge from the spot which also belies the place of occurrence as well as prosecution case; that the first informant has not come with clean hands and prosecution has concealed the genesis of incident, so also the prosecution case ought to have been disbelieved; that the impugned judgment and order of conviction and sentence is liable to be set aside and appellants are liable to be acquitted at least by giving them benefit of doubt. 9. Per contra, learned A.G.A. supported the impugned judgment and order of conviction and contended that the broad day light case of attempt to murder is based on direct evidence and there is no reason for false implication of accused persons or any of them; that minor contradictions in evidence, are natural, for which prosecution case may not be disbelieved; that first informant was a rustic villager and at the time of in lodging prompt F.I.R. (lodged within half an hour of incident) in disturbed state of mind, upon sustaining firearm injury, if he failed to correctly describe his gun shot injury and mentioned it over temporal region instead of under left eye, the prosecution case may not be disbelieved; that first informant was sent to C.H.C., Gunnaur for medical examination but since medical officer was not available there, so he was brought to District hospital Budaun which is at a distance of around 90 k.m. and so delay in medical examination of first informant may not be fatal; that it was proved from the evidence on record that accused persons armed deadly weapons formed an unlawful assembly and attempted on life of Ramesh Chandra in furtherance of common object of such unlawful assembly of causing his death, on account of enmity of election as well as of conviction of Surnam in case of murder of father of first informant, by accused Surnam and Munna Lal; that first informant has mentioned about fracture of his leg and not foot; that appeal has been filed with false & baseless allegations and is liable to be dismissed. 10. Upon hearing parties counsel and perusal of record, I find that undisputedly the incident in question is a broad day light incident as per averments made in F.I.R. and prompt F.I.R. has been lodged against named accused persons within half an hour. As per prosecution case, place of occurrence is busy market place on the way to State Bank of India at Gunnaur surrounded with shops on both sides. As per averments made in F.I.R. when first informant passed through shop of Lala Raman, all accused persons came from behind, surrounded and assaulted him with an intention to cause his death. It is also noteworthy that as per averments made in F.I.R., accused Munna Lal was armed with pistol and others were armed with lathis. As per averments made in F.I.R. when first informant passed through shop of Lala Raman, all accused persons came from behind, surrounded and assaulted him with an intention to cause his death. It is also noteworthy that as per averments made in F.I.R., accused Munna Lal was armed with pistol and others were armed with lathis. There is no specific averment that accused were ambushing there since before. Arrival as many as 8 persons armed with lathis and pistol in a busy market place during peak hours of a working day itself creates doubt over its correctness and does not appear possible. It is highly improbable that the shopkeepers on both sides of way to State Bank of India will ever permit entry to a group of as many as 8 persons with firearms lathi-dandas etc. during working hours of the day in market place, so as to enable them to commit any such incident at busy public place. The incident is not alleged to have happened on some holiday when market would have been closed, rather first informant has stated that he called shopkeepers for rescue. It is also highly improbable that 8 armed persons will ever choose a busy place of market to attempt on life of first informant, while they could have surrounded and attacked him at some lonely place during lonely hours, on way to village or in fields etc. 11. As per averments made in F.I.R. as many as 8 persons, surrounded first informant from behind and upon exhortation for his life, Munna Lal fired at him, which passed through his temporal region touching his KANPATI and Dariao, Neeresh, Dinesh, Natthu, Dharampal and Sarnam assaulted him with lathis. Out of 8 persons named in F.I.R., named accused Amreesh and Dinesh have neither been assigned with any specific role of beating first informant with lathis nor with any other overt act of beating but they have been charge sheeted, while amongst others accused Natthu and Dariao allegedly actively participated in beating first informant with lathi danda however, they have been exhonerated. Upon investigation, the Investigating Officer has submitted two separate charge sheets against accused persons, one against 4 accused and another against 2 accused, charge-sheeting Amreesh and Dinesh amongst others, (who have not been assigned with any overt act as mentioned above) and has not charge-sheeted Natthu and Dariao, (who were assigned with specific role of beating with lathi in F.I.R.) and they were not even sought to be summoned for trial together under provisions of Section 319 Cr.P.C. 12. It is also noteworthy that as per prosecution case accused came from behind while site plan of occurrence Ex. A5 states that accused persons came from opposite direction and occurrence take place in front of electronic shop of Sanu son of Yamem. Moreover I.O. has not shown shop of Lala Raman in site place Ex. A5, while first informant allegedly went to State Bank of India and occurrence taken place in front of shop of Lala Raman. 13. According to F.I.R., the incident in question did take place in market place on way to State Bank of India in front of shop of Lala Raman and was seen by Roshan and Raghunath of his village. However, the prosecution has neither produced either Lala Raman or Raghunath nor Sanu son of Yamam in front of whose shop occurrence taken place as per site plan Ex. A5 nor any other independent witness in corroboration of his testimony, while another eye witness Roshan, produced as P.W.-1, has denied his presence at the place of occurrence or firing by Munna Lal over Ramesh Chandra or assaulting him with lathi-danda by accused Dariao, Neeresh, Dinesh, Dharampal, Natthu and Amreesh or any of them in his presence. The prosecution has not assigned any reason for not producing Lala Raman, Raghunath or Sanu who could have been best witnesses to throw light over the manner of occurrence. It is settled principle of law that if a person in possession of best evidence fails to produce it, adverse inference will be drawn against him and it will be deemed that had such witness been produced in evidence, he would not have supported the prosecution case. 14. It is settled principle of law that if a person in possession of best evidence fails to produce it, adverse inference will be drawn against him and it will be deemed that had such witness been produced in evidence, he would not have supported the prosecution case. 14. As far as motive is concerned, no motive has been mentioned in F.I.R. No doubt in cases based on direct evidence, motive loses its importance and otherwise also motive remains in the mind of accused and prosecution may not be expected to give, correct description of motive behind the crime. However, it does not mean that in cases of direct evidence, prosecution has no obligation to assign probable motive behind the crime. It is also pertinent to mention that the first informant as P.W.-2 in his Examination-in-Chief at page 14 of paper book has tried to introduce motive by stating that accused had enmity with him since before as Munna Lal and Surnam had shot his father long ago in which matter appellant Surnam had been convicted and trial against appellant Munna Lal was pending. Such conviction has not been disclosed earlier in F.I.R. or at the time of framing of charges and has not been mentioned in charges framed against Surnam and Munna Lal on 11.12.2008. As per provisions of Section 211 (7) Cr.P.C. previous conviction is required to be mentioned in charges framed against accused. Moreover the fact of there being accused or convict, was not even put to accused-appellants Surnam and Munna Lal at the stage of recording of their statements under Section 313 Cr.P.C. so as to afford them opportunity to deny or explain. It is also pertinent to mention that at page 18 of paper book in his cross examination as P.W.-2 has admitted that his father lost in election of village Pradhani against Smt. Ramvati, the mother of accused Munna Lal and Ambresh, but even the above facts of enmity have not been disclosed in F.I.R. 15. Enmity is a double edged weapon, which on one hand may form motive behind crime and on the other hand may be used for false implication. Enmity is a double edged weapon, which on one hand may form motive behind crime and on the other hand may be used for false implication. Ordinarily, in every case the first informant describes the probable motive of accused behind the crime but despite twin enmity of (i) murder of father as well as (ii) election rivalry of village Pradhani election there is no whisper of motive of crime in F.I.R. which is strange and unnatural. In the circumstances of the instant case, possibility of false implication of accused due to above grudge/enmity of election is higher in comparison to the possibility of committal of incident by accused persons. It is also pertinent to mention that loser in election may be having more enmity to falsely implicate, in comparison to the winner of election to commit offence. 16. Undisputedly, neither any firearm was recovered from Munna Lal or any other accused nor any lathi was recovered from any of them. The prosecution has absolutely failed to produce any evidence with regard to formation of unlawful assembly by accused-appellants and their being were armed with deadly weapons. The prosecution had also utterly failed to prove by any reliable, cogent or independent evidence that unlawful assembly of accused persons, with common object of causing death of first informant Ramesh Chandra, committed the incident in question and caused firearm injury and other injuries of blunt object to first informant. In absence of any corroboration by independent witness the sole testimony of first informant could not have been relied. 17. It is also pertinent to mention that there are material contradictions between averments made in F.I.R. and the statement of first informant which is also in contradiction to the medical evidence on record. According to the averments made in F.I.R., incident took place when he was going to deposit money in Bank, while in his statement on oath as P.W.-2, he has stated that he was surrounded and assaulted by accused persons at the time of returning from bank. According to the averments made in F.I.R., incident took place when he was going to deposit money in Bank, while in his statement on oath as P.W.-2, he has stated that he was surrounded and assaulted by accused persons at the time of returning from bank. As per averments made in F.I.R. he narrowly escaped by the fire made by Munna Lal as it passed touching his KANPATI, while the injury report does not state of any firearm injury over KANPATI or ear lobe rather states that injury no.5 was single and only firearm wound of entry measuring 0.3 cm x 0.3 cm on left side of face 1 cm below left eye with blackening around the wound, of which depth not probed. In his statement on oath P.W.-2 by way of improvement has stated that by fire made by Munna Lal he was below his left eye and forehead. Undisputedly, place of injury mentioned in injury report Ex. A-2 is totally different from temporal region or KANPATI and is quite a distant place from KANPATI and the portion below eye and forehead also exist at quite distance places of body and medical examination report does not state of any firearm injury over forehead. It is also pertinent to mention that when a fire passes touching any part or portion of body, it does not cause a wound and may cause only lacerated wound while no such lacerated wound is alleged to have been caused on KANPATY or below eye of first informant. In view of above contradictions in the statement of P.W.-2, which is not in conformity with medical evidence on record and is not corroborated by any other evidence, there is no sufficient ground to hold that accused-appellant Munna Lal was author of single firearm injury sustained by first informant. It is also pertinent to mention that according to F.I.R., in the incident in question leg of first informant was fractured, but there is no supplementary report or X-ray report on record to show that there was any fracture of any leg or foot of first informant and trial court has rightly acquitted appellants-accused of charges of offence under Section 325/149 I.P.C. 18. In view of discussions made above, I have come to the conclusion that apart from charges under Section 325/149 I.P.C. prosecution has also failed to prove charges of offences under Sections 147, 148 and 307/149 I.P.C. against accused-appellants or any of them to the hilt and beyond reasonable doubt. In absence of any cogent evidence, the possibility of sustaining of injuries by first informant in some other manner at the hands of some other persons may not be ruled out. The learned trial court acted wrongly, illegally and perversely in relying upon such a contradictory sole testimony of first informant, in absence of any corroboration. 19. The prosecution has failed to bring home the charges against accused-appellants. In view of the fact that charge-sheeted/convicted accused Amreesh and Dinesh have not been assigned with any specific role of causing injuries or any overt act in commission of offence and Natthu and Dariao who were assigned specific active role, were neither charge-sheeted nor even sought to be summoned for trial together under provisions Section 319 Cr.P.C. The impugned judgment and order of conviction and sentence is liable to be set aside and appeals are liable to be allowed. 20. Both Criminal Appeals are allowed. The impugned judgment and order of conviction and sentence is set aside and all the accused/appellants who were acquitted from the charges of offence under Section 325/149 I.P.C. also stands acquitted of charges of offences under Sections 147, 148 and 307/149 I.P.C. 21. Accused appellant Munna Lal is reported to be in custody. He will be released forthwith unless wanted in some other case subject to furnishing of bail bonds and sureties for appearance before the higher Court, to the satisfaction of trial court, in accordance with provisions of Section 437A Cr.P.C. Other accused appellants, are on bail and need not surrender. However, they shall appear before trial court within a period of one month and shall furnish bail bonds and sureties for appearance before the higher Court, to the satisfaction of trial court in accordance with provisions of Section 437A Cr.P.C. 22. Office is directed to send back the lower court record alongwith copy of judgment in this appeal, for necessary action, if any, by court below.