Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 882 (ALL)

Chaman v. State of U. P.

2019-04-08

BALA KRISHNA NARAYANA, GHANDIKOTA SRI DEVI

body2019
JUDGMENT : Bala Krishna Narayana, Ghandikota Sri Devi, JJ. 1. Heard Sri Onkar Singh, learned counsel for the appellants and Sri J.K. Upadhyay, learned A.G.A. for the State. 2. This criminal appeal has been preferred by Chaman (A1), Kalu (A2) and Kalloo (A3) against the judgment and order dated 14.11.2006 passed by Additional District and Sessions Judge, Court No. 5, Meerut in S.T. No. 661 of 1999 (State vs. Kalloo and others) convicting the appellants and sentencing them to imprisonment for life and a fine of Rs. 5,000/- and in case of default in payment of fine, one month additional rigorous imprisonment each u/s 302/34 I.P.C. 3. The appellants upon being charge-sheeted were committed for trial to the Court of Sessions Judge, Meerut by Chief Judicial Magistrate, Meerut, where their case was registered as S.T. No. 661 of 1999 (State vs. Kalloo and others) where it was made over for trial from there to the Court of Additional District and Sessions Judge, Court No. 5, Meerut, who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused on the point of charge, framed charge under Section 302/34 I.P.C. against each of the accused who abjured the charge and claimed trial. 4. The prosecution in order to prove its case against the accused appellants examined as many as eight witnesses out of whom P.W.1 informant Alam Singh and P.W.6 Udai Raj were produced as eyewitnesses of the occurrence while P.W.2 A.S.I. Sri Nathi Ram Kamboj who had conducted the inquest on the body of the deceased and prepared and proved the inquest report (Ex.Ka.14) and other related documents namely photo lash (Ex.Ka.15), Form 13 (Ex.Ka.16), C.M.O. Report (Ex.Ka.17), R.T. Report (Ex.Ka.18) and check report (Ex.Ka.19), P.W.3 Dr. R.P. Mishra who conducted autopsy on the body of the deceased and prepared its postmortem report (Ex.Ka.13B), P.W.4 Head Constable Ram Babu Singh who had prepared the check F.I.R. (Ex.Ka.14A), G.D. entry (Ext.Ka.15), carbon copy of relevant G.D. Entry (Ex.Ka.16) and report certifying that original G.D. Entry (Ext.Ka.17) was weeded out by which the case was converted to one u/s 302 I.P.C. after the death of Alam singh in the hospital, P.W.5 Prabhakar Dutt Sharma, who had taken the dead body of Alam singh from the hospital to the mortuary for postmortem examination, P.W.7 S.H.O. R.K. Singh, the second Investigating Officer of the case, who after completion of the investigation, had filed charge-sheet against the appellants (Ex.Ka.10) and P.W.8 S.I. Dharmvir Sharma, the first Investigating Officer of the case who after inspecting the place of occurrence at the instance of P.W.1 informant Alam Singh, had prepared the site plan of the place of incident (Ex.Ka.13C), recorded the statements of P.W.1 informant Alam Singh, scribe of the F.I.R. and P.W.6 Udai Raj, eye-witness of the occurrence u/s 161 Cr.P.C. and proved the copy of the statement of P.W.6 Udai Raj Singh as (Ex.Ka.7), were produced as formal witnesses. Dr. Shailendra Kumar Sharma, who was posted in Casualty Department, Jagat Nursing Home, Meerut and had examined the injuries of the deceased Alam singh (Ex.Ka.1) was examined as C.W.1. 5. The accused in their statement recorded u/s 313 Cr.P.C. denied the prosecution case as false and alleged false implication due to previous enmity. The accused examined one Sempal as D.W.1, who had deposed that the murder of Alam singh was committed by some unknown persons and represented himself as witnesses who had arrived at the place of occurrence upon hearing the sound of gunshot. 6. Learned Additional District and Sessions Judge, Court No. 5, Meerut, after considering the submissions advanced before him by the learned counsel for the parties, both oral as well as documentary, convicted all the three appellants u/s 302/34 I.P.C. and awarded aforesaid sentences to them. 7. Hence, this appeal. 8. It has been contended by Sri Onkar Singh, learned counsel for the appellants that the F.I.R. in this case is anti-time. 7. Hence, this appeal. 8. It has been contended by Sri Onkar Singh, learned counsel for the appellants that the F.I.R. in this case is anti-time. It is further contended that the learned trial Judge had committed a material illegality in convicting the appellants for the murder of Alam singh on the basis of the evidence of solitary witness P.W.1 informant Alam Singh who happens to be the real brother of the deceased, hence highly interested in securing their conviction due to previous enmity although his testimony does not find corroboration from any other evidence on record, the other alleged eye witness of the incident P.W.6 Udai Raj having been declared hostile. He next submitted that there are glaring contradictions vis-a-vis the facts deposed by P.W.1 informant Alam Singh in his evidence and those narrated by him in the written report of the incident (Ex.Ka.12) and the medical evidence on record which clearly demolish his claim of being the eye-witness of the occurrence. He lastly submitted that the prosecution having miserably failed to prove that the occurrence had taken place in the manner, time and at the place spelt out in the F.I.R. and that the appellants had committed the murder of the deceased by adducing any reliable or cogent evidence, neither the recorded conviction of the appellants, nor the sentences awarded to them can be sustained and are liable to be set aside. 9. Per contra Sri J. K. Upadhyay, learned A.G.A. appearing for the State submitted that P.W.1 informant Alam Singh is a wholly reliable witness and the learned trial Judge did not commit any illegality in recording the conviction of the appellants on the basis of his evidence. The contradictions and the discrepancies in the statement of P.W.1 informant Alam Singh highlighted by the learned counsel for the appellants are of trivial nature which do not go to the core of the prosecution story rendering it unreliable. The statement of P.W.1 informant Alam Singh finds full collaboration from the other evidence on record which was collected during the investigation. Hence, this appeal lacks merit and is liable to be dismissed. 10. We have very carefully considered the arguments of learned counsel for the parties and perused the entire lower court record. 11. The statement of P.W.1 informant Alam Singh finds full collaboration from the other evidence on record which was collected during the investigation. Hence, this appeal lacks merit and is liable to be dismissed. 10. We have very carefully considered the arguments of learned counsel for the parties and perused the entire lower court record. 11. Record of this appeal shows that on the basis of the written report (Ex.Ka.12) purporting to have been lodged by P.W.1 informant Alam Singh at police outpost- Lawar, P.S.- Inchauli, District- Meerut, Case Crime No. 10 of 1999 u/s 307 I.P.C. was registered against all the three appellants. In the written report, it was stated that on the occasion of Holi festival in the year, 1988, one Amar Pal of village- Chindauri, uncle of Chaman (A1) and Kalu (A2), was murdered. Alam singh S/o Dhara Singh, Bhullan Singh S/o Saman Singh, Ach Pal S/o Samman Singh, Devi Singh and Bedu, sons of Ach Pal Singh were tried for the murder of Amar Pal. Alam singh (deceased) was acquitted and ever since then, the appellants had become inimical towards him. On the date of the incident, Alam singh (deceased), P.W.1 informant Alam Singh and P.W.6 Udai Raj S/o Jabar Singh were going towards their village- Chindauri and when they reached near the “Kolhu” of Anand, they saw the appellants standing at the culvert and a scooter bearing registration no. UP15D0793 was parked near them. They immediately started firing at them and chased them. The shots fired by them hit Alam singh. On their making noise, the appellants fled leaving behind the scooter. Alam singh had received gunshot wounds on his stomach and on his side. The villagers took Alam Singh to Meerut Hospital. On the basis of the written report of P.W.1 informant Alam Singh, check F.I.R. (Ex.Ka.14A) and the relevant G.D. Entry (Ex.Ka.15), were prepared by P.W.4 Constable Ram Babu Singh. Record further shows that the deceased Alam singh was first taken to Jagat Nursing Home, Meerut for treatment and he was admitted there by one Manglu as is evident from the injury report of the deceased (Ex.Ka.1) which was prepared and proved by C.W.1 Dr. Shailendra Kumar Sharma after he had examined his injuries. Injury report of Alam singh (Ext.Ka.1) shows that he had received following injuries :- (1) One grazing wound with dark serrated margins present over rt. Shailendra Kumar Sharma after he had examined his injuries. Injury report of Alam singh (Ext.Ka.1) shows that he had received following injuries :- (1) One grazing wound with dark serrated margins present over rt. side arm on medial aspect transverse, 4 cm x 2 cm bleeding on touch about 4 cm above elbow joint. (2) One grazing wound present over rt. forearm on lateral margin with dark serrated margins, size 6 cm x 2 cm, 3 cm below elbow joint. (3) One deep wound with black margins present over rt. side chest wall, margins depressed, irregular bleeding profusely with each respiration, located in mid axillary line 10 cm above iliac crest. (4) L/W on rt. renal angle superficial, bleeding on touch 3 cm x 2 cm. 12. The injured Alam singh died at about 8.50 pm in Jagat Nursing Home. The information about his death was given by the compounder of Jagat Nursing Home to P.S.- Nauchandi at 21.35 hours whereafter Case Crime No. 10 of 1999 was converted from Section 307 I.P.C. to one u/s 302 I.P.C. vide G.D. Entry (Ex.Ka.17). The investigation of the case was entrusted to P.W.8 S.I. Dharmvir Sharma on 19.2.1999. He visited the place of occurrence on the same day but he did not find any blood-stained sand or pellets, bullets or empty cartridges at or near the place of occurrence. In the morning of 20.2.1999, he was transferred and the investigation was taken up by P.W.7 R.K. Singh, who held inquest on the body of the deceased in Jagat Nursing Home on 20.2.1999. The inquest report and other related documents (Exts.Ka.14 to Ka.19) were prepared by P.W.2 Nathi Ram under the supervision of P.W.7 R.K. Singh. He thereafter reached the place of occurrence and after inspecting the same at the behest of P.W.1 informant Alam Singh, prepared the site plan of the place of occurrence (Ext.Ka.13C). The postmortem on the body of the deceased Alam singh was conducted by P.W.3 Dr. R.P. Mishra on 20.2.1999, who also prepared and proved his postmortem report as (Ex.Ka.13B). The postmortem report of the deceased indicates following ante-mortem injuries on the body of the deceased :- (1) Stitched wound lt. side chest 12 cm in length with 8 stitches. On opening 6 and 7th rib # with part missing. (2) Stitched wound rt. side chest 14 cm with 10 stitches. The postmortem report of the deceased indicates following ante-mortem injuries on the body of the deceased :- (1) Stitched wound lt. side chest 12 cm in length with 8 stitches. On opening 6 and 7th rib # with part missing. (2) Stitched wound rt. side chest 14 cm with 10 stitches. On opening 7 rib is fractured with a part missing. (3) Stitched wound rt. side 4 cm. 2 stitches just injury no. 2. (4) Stitched wound 4 cm with 3 stitches lower part of rt. side abdomen just above the iliac crest. (5) Stitched wound 5 cm with 4 stitches rt. upper arm. (6) Stitched wound 6 cm with 5 stitches on rt. forearm. 13. According to P.W.3 Dr. R.P. Mishra, the death of the deceased was caused due to shock and haemorrhage. We have already referred to the charge framed against the appellants by the learned trial Judge and also to the evidence adduced by the prosecution and the defence during the trial. The only question which arises for our consideration in this appeal is that whether the recorded conviction of the appellants on the basis of the evidence of sole witness P.W.1 informant Alam Singh can be maintained ? 14. The law is settled that an accused can be convicted on the basis of the evidence of a solitary witness without seeking corroboration from other material on record if such witness appears to be a wholly reliable witness. In case the sole witness does not appear to be wholly trustworthy, in that case, the court shall seek corroboration from the evidence on record. 15. The prosecution examined P.W.1 informant Alam Singh and P.W.6 Udai Raj as the eye-witnesses of the occurrence. However, P.W.6 Udai Raj failed to support the prosecution case from the inception and was declared hostile. On being contradicted by the D.G.C. (Criminal) with his statement recorded u/s 161 Cr.P.C. during his cross-examination, he denied having made any statement to the Investigating Officer during investigation of the case. 16. As far as P.W.1 informant Alam Singh is concerned, learned counsel for the appellants has invited our attention to several discrepancies in his evidence which according to him go to show that P.W.1 informant Alam Singh had neither witnessed the occurrence nor he is a wholly reliable witness. 17. The prosecution case as spelt out in the F.I.R. has already been narrated hereinabove. 17. The prosecution case as spelt out in the F.I.R. has already been narrated hereinabove. In the written report (Ext.Ka.12) which was lodged by P.W.1 informant Alam Singh, describing himself as an eye-witness of the occurrence, it has categorically been stated that the three accused before starting to fire with their firearms, were standing near the culvert with the scooter bearing registration no. UP15D0793 parked near the “Kolhu” of Anand. The written report contains a further recital that after Alam singh had been shot and had fallen on the ground with gunshot wounds, the villagers had taken him to the hospital for treatment, while he had got the written report of the incident scribed by one Amarveer Singh and had lodged at police outpost- Lawar, P.S.- Inchauli at about 16.30 hours. 18. Now we refer to the discrepancies pointed out by the learned counsel for the appellants in the statement of P.W.1 informant Alam Singh. P.W.1 in his examination-in-chief on page 14 of the paper book has stated that the accused had come from the side of the village on a scooter, while he was going on a buggy. He had met the accused in the north of the culvert while they were coming from the side of the village. Bundles of sugarcane were transported by the buggy. His brother was returning from Amhera on foot. P.W.1. informant Alam Singh was walking about twenty metres behind him. Kalu (A2) was driving the scooter, Kallu (A3) was sitting in the middle while Chaman (A1) was sitting behind Kallu (A3). Time was about 3.00pm. The accused leaving the scooter behind them, shot 6-7 times. The first shot fired by them hit his brother and he fell then and there. The remaining shots were fired after his brother had fallen down. P.W.6 Udai Raj also came from behind and ran towards his brother. “Kolhu” of Niranjan was operating and about 10-12 labourers were working on it. They ran to the place of occurrence after his brother was shot and saw the accused firing. P.W.1 informant Alam Singh had requested them to take his brother to the hospital. His brother after being shot, had become unconscious, and was taken to hospital, where he became conscious and started talking. The deceased was taken to the hospital by P.W.1 informant Alam Singh, Chandveer and P.W.6 Udai Raj and was admitted in Jagat Nursing Home. P.W.1 informant Alam Singh had requested them to take his brother to the hospital. His brother after being shot, had become unconscious, and was taken to hospital, where he became conscious and started talking. The deceased was taken to the hospital by P.W.1 informant Alam Singh, Chandveer and P.W.6 Udai Raj and was admitted in Jagat Nursing Home. He was with his brother till his death. His brother Rajpal had gone to the police outpost to inform the police about the occurrence. Rajpal had given the information of the occurrence to the police. Next day after the death of his brother, he had gone to the police station and put his thumb impression on the report. He further deposed that Rajpal was an illiterate person and hence, he had got the written report scribed by Amarveer Singh. He did not remember the registration number of the scooter. The scooter had been seized by the police from the place of occurrence and on the next day, during interrogation, the Investigating Officer had taken him in the official keep to the place of incident and all the paper work was done there. 19. The aforesaid facts deposed by P.W.1 informant Alam Singh in his examination-in-chief are conspicuous of their absence in the written report of the occurrence. There is no mention in the F.I.R. that P.W.1 informant Alam Singh was going on buggy in which bundles of sugarcane were stocked. In the F.I.R., he had stated that the villagers had taken his brother to the hospital but in his evidence, he had deposed that he had taken his brother to the hospital with P.W.6 Udai Raj and Chandveer and had remained with his brother till his death. In the F.I.R., there is no recital that he had sent his brother Rajpal to the police outpost for giving the information of the occurrence. On the contrary, in the F.I.R., it was stated by him that the written report of the incident was given by him at the police station on the date of the incident. 20. In the F.I.R., there is no recital that he had sent his brother Rajpal to the police outpost for giving the information of the occurrence. On the contrary, in the F.I.R., it was stated by him that the written report of the incident was given by him at the police station on the date of the incident. 20. From the facts deposed by him in his evidence, it is further established that the F.I.R. in this case is anti-time as he has admitted in his cross-examination that he had gone to the police station for the first time in the morning of 20.2.1999 and put his thumb impression on the written report (Ex.Ka.12) and thereafter, he was taken by the Investigating Officer to the place of occurrence where some paper work was done. Paper work which was done there has not seen the light of the day and the possibility of the written report of the occurrence having been scribed on the next day of the incident after holding due deliberations and consultations with the police, cannot be ruled out. Deposition made by P.W.1 informant Alam Singh in his evidence that he did not remember the registration number of the scooter on which the accused had come and the same was disclosed to him by the police on the next day, is another circumstance which indicates at the interference of the police in the preparation of the F.I.R. and the same being anti-time because if P.W.1 informant Alam Singh did not remember the registration number of the scooter then how he could have written it in the F.I.R. There is another very material contradiction in the evidence of P.W.1 informant Alam Singh which also belies his presence at the place of occurrence. In the F.I.R., he has stated that the accused were standing near culvert and the scooter was parked near them but in his evidence, he said that the accused had come from the side of the village, north of the culvert by scooter which was being driven by Kalu (A2) while Kallu (A3) was sitting on the pillion in the middle while Chaman (A1) was sitting behind Kallu (A3). 21. 21. From the evidence of P.W.1 informant Alam Singh, it appears that the deceased had been shot at point 'A' shown in the site plan (Ext.Ka.13C) and had thereafter fallen at the point 'B', whereas the consistent case of the prosecution is that after being shot, the deceased had fallen on the ground and had not moved even an inch. The site plan was prepared at the instance of P.W.1 informant Alam Singh who claims himself to be the eye-witness of the occurrence. Then the question arises as to how the aforesaid discrepancy could arise in the site plan. No objection has been filed against the correctness of the site plan from the side of the prosecution. Under such circumstances, the claim of P.W.1 informant Alam Singh that he had seen the occurrence does not appear to be correct. 22. Upon a careful scrutiny of statement of P.W.1 informant Alam Singh, we are constrained to observe that he is a witness who, it appears, has no knowledge of the particulars of the incident and he is a planted witness who has given false evidence against the accused appellants. Moreover, there is no corroboration of his evidence by any other material on record. It has come in evidence of P.W.8 S.I. Dharmvir Sharma, the first Investigating Officer of the case, that no empty cartridges, bloodstained sand or pellets were found at the place of incident although he had reached there promptly. There is also disparity with regard to number of injuries mentioned in the injury report of the deceased (Ex.Ka.1) which was prepared by C.W.1 Dr. Shailendra Kumar Sharma and those noted in the postmortem report of the deceased. 23. The failure of P.W.1 informant Alam Singh to disclose the registration number of scooter on which the accused-appellants had arrived, during his cross-examination and his stating on oath that he did not remember the registration number of the scooter which was disclosed to him on the next date by the Investigating Officer of the case clearly evinces that not only the prosecution case is false but also the written report of the incident had been prepared after due deliberations and consultations on the advice of police officer and is anti-time. 24. 24. Upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we find that learned trial Judge was not at all justified in convicting the appellants on the basis of the evidence of solitary witness P.W.1 informant Alam Singh whose evidence is full of discrepancies, improvements and contradictions upon which no prudent man would place reliance for the purpose of drawing any conclusion on merit. 25. Consequently, this appeal stands allowed. The impugned judgment and order are hereby set aside. 26. The appellants are acquitted of the charge of murder of Alam singh. Chaman (A1) and Kalu (A2) are in jail. They shall be released forthwith unless they are not wanted in any other case. 27. Kalloo (A3) is on bail. He need not surrender. His bail bonds are cancelled and his sureties discharged. 28. All the three appellants Chaman, Kalu and Kalloo shall comply with the provisions of Section 437-A Cr.P.C. within two weeks from the date of their release. There shall however, be no order as to costs.