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2019 DIGILAW 904 (ALL)

Shiv Ratan Singh v. State of U. P.

2019-04-10

B.K.NARAYANA, GHANDIKOTA SRI DEVI

body2019
JUDGMENT : Ghandikota Sri Devi, J. 1. The present appeal has been preferred by the appellants against the judgment and order dated 3.9.1987, passed by the learned IV-Additional District and Sessions Judge, Farrukhabad, in Sessions Trial No. 365 of 1983 (State v. Arun, Kumar and others), arising out of Case Crime No. 195 of 1981, P.S. Kamalganj, District-Farrukhabad, whereby the learned trial Court has convicted the accused-appellants, namely, Arun Kumar and Shiv Ratan Singh under Section 302 IPC read with Section 34 IPC and sentenced them to undergo imprisonment for life. 2. The facts in nutshell according to the prosecution case are that on 9.7.1981, at about 10:00 p.m. (night), the first informant-Uma Shanker (P.W. 1) alongwith his elder brother-Dayalu @ Daya Shankar, Jawahar and Brij Mohan were coming back to their houses after watching the cinema. When they reached on the road in front of adat of Arjun Singh at about 10:00 p.m., the accused-Kare Bhaiya R/o. Katrauli Parti, Shiv Ratan Singh R/o. Hazi +Nagla, and another person were seen sitting on the patiya of the shop of one Jhabbu. When the first informant and his friends reached in front of the accused, then all the accused got up from the patiya they hurled and stated that "Kare Bhaiya, maar dalo sale ko achha mauka hai," then his brother Dayalu @ Daya Shankar started running but Kare Bhaiya fired at him on the back with his tamancha, to which he fell down then and there and all the accused escaped towards east. The first informant and others chased the accused and caught hold of one of the accused, who disclosed his name as Arun Kumar S/o. Tulsi Ram R/o. Danmandi, P.S. Kamalganj, Farrukhabad. The injured Dayalu @ Daya Shankar was taken on the charpai to the police station but he succumbed to the injury on the way. About 15-20 days before the said incident, there was a quarrel between Dayalu @ Daya Shankar, Kare Bhaiya & Shiv Ratan Singh with regard to the asking of the amount for tea by Dayalu @ Daya Shankar to which Kare Bhaiya and Shiv Ratan threatened Dayalu to kill him. The accused were hooligans (gundas) by nature and they had intentionally killed the brother of the informant. The said Written Report was got scribed by one Ziauddin, narrated by the informant and, thereafter, the same was lodged in the police station. The accused were hooligans (gundas) by nature and they had intentionally killed the brother of the informant. The said Written Report was got scribed by one Ziauddin, narrated by the informant and, thereafter, the same was lodged in the police station. On the basis of the said Written Report, case crime No. 195 of 1981 under Sections 302/34 IPC was registered and thereafter, the investigation of the case was initiated by S.I. Indrajeet Singh Dewatia. The inquest on the dead-body was conducted on 10.7.1981 and, thereafter, the inquest report was prepared. The dead-body was sealed and relevant papers for dispatching the dead-body to conduct postmortem examination were also prepared and thereafter, the dead-body was sent for postmortem examination alongwith connecting papers. The post-mortem on the dead-body was conducted by Dr. V.P. Bhatnagar on 10.7.1981. The Investigating Officer, after completing the formalities of investigation, submitted the charge-sheet before the Chief Judicial Magistrate, Farrukhabad. 3. Since, the disclosed offences were exclusively triable by the Court of sessions, the CJM had committed the case to the Court of sessions for trial where the Case Crime No. 195 of 1981 was registered as S.T. No. 365 of 1983 and the same was transferred to the Court of Additional District and Sessions Judge for trial. However, during the pendency of the sessions trial, Kare Bhaiya @ Brij Kishor had died for which the case against the said accused-Kare Bhaiya was dismissed as abated. 4. The learned Additional District and Sessions Judge, on the basis of primary evidence and after affording opportunity to both the accused and the prosecution, vide order dated 16.4.1985 had framed the charges under Sections 302/34 IPC against the accused Shiv Ratan Singh and Arun Kumar. The accused abjured the charges and claimed trial. 5. The prosecution, in order to prove the charges levelled against the accused, had examined the informant-Uma Shankar (P.W. 1) and Mohd. Yunus (P.W. 2) as the witnesses of fact. These two witnesses were also said to be the alleged eye-witnesses to the occurrence and Uma Shankar (P.W. 1) was also said to be the younger brother of the deceased. Apart from the aforesaid two witnesses, prosecution had also examined the Investigating Officer/S.I. Indrajeet Singh (P.W. 3) and Dr. V.P. Bhatnagar (P.W. 4), who conducted the post-mortem on the body of the deceased, as formal witnesses. Apart from the aforesaid two witnesses, prosecution had also examined the Investigating Officer/S.I. Indrajeet Singh (P.W. 3) and Dr. V.P. Bhatnagar (P.W. 4), who conducted the post-mortem on the body of the deceased, as formal witnesses. Apart from the oral evidence, the prosecution also relied upon the documentary evidence such as Written Report (Ex. kal), Check FIR (Ex. ka2), panchayatnama (Ex. ka3), Challan-lash (Ex. ka4), Fard-lash (Ex. ka5), Memo of recovery of Sandals from the place of occurrence (Ex. ka6), Spot-map (Ex. ka7), Charge-sheet (Ex. ka8) and Postmortem Report (Ex. ka9). 6. After closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded and they were put to the questions related to the evidence adduced by the witnesses to which the accused denied to have committed any crime and stated that the witnesses had deposed falsehood against them. Arun Kumar, accused-appellant No. 2, had stated that the police had arrested him on 10.7.1981 at about 8:00 a.m. from Ghazipur and had falsely implicated him in the present case. However, the accused did not adduce any evidence in support of their defence. The witness-Jiauddin was examined as Court-witness. 7. The Investigating Officer, after taking up investigation of the case into his hands, conducted investigation of the whole case from the initial stage till the submission of charge-sheet. As already stated earlier, he was examined before the Court as PW3 and deposed that the Written Report (Ex. kal) was lodged in front of him, which was registered by Head Constable Lala Ram, on the basis of which, the Check FIR (Ex. ka2) was prepared and the relevant G.D. Entries were made by him in his presence. He further deposed that he conducted inquest over the dead-body and prepared the Inquest Report (Ex. ka3). He also prepared the related papers such as Challan-lash (Ex. ka4), Photo-nash (Ex. ka5). He made inspection of the spot and prepared spot-map (Ex. ka7). He further deposed that he had recovered one pair of sandal from the place of occurrence and prepared the recovery memo as (Ex. ka6) and after completing the formalities of investigation, he submitted the Charge-sheet (Ex. ka8). 8. During his cross-examination, this witness deposed that the case crime was registered in his presence but the report was not written in front of him. ka6) and after completing the formalities of investigation, he submitted the Charge-sheet (Ex. ka8). 8. During his cross-examination, this witness deposed that the case crime was registered in his presence but the report was not written in front of him. He conducted inquest over the dead-body between 12:00 a.m. to 2:00 a.m. He further stated that he could not found any blood on the spot. He also stated that he had seen the place where the accused-appellant No. 2, Aran Kumar was caught hold of by Mohd. Yunus (P.W. 2) and stated that the arrest of the accused-appellant, Aran Kumar was not done by any police officer. He had categorically stated that the accused-Aran Kumar was brought to the police station at about 1:30 a.m. (night). 9. The other formal witness, namely, Dr. V.P. Bhatnagar (P.W. 4), who conducted the postmortem on the body of the deceased, had deposed before the Court that he conducted postmortem on the body of the deceased on 10.7.1981 at 4:30 p.m., brought by the Constables-Ram Singh and Ram Chand and found that the body of the deceased was average-built, rigor mortis was present all over the body. His eyes were closed and mouth was partially opened. He found the following ante-mortem injuries on the body of the deceased: (a) Lacerated gun-shot wound of entry 3/4 inch x 1/4 inch x chest cavity deep on the right side 1-1/2 inches away from middle line and 5 inches below lower angle 14 scapula. Margins inverted and lacerated and ecchymosed. Blackening present all around the wound. (b) Gun-shot wound of exit 1/2 inch x 1/2 inch x communicating the injury No. 1 on the left side chest 1 inch middle of left nipple between 9-10 o'clock position. Margins averted. In the internal examination, he found that the 7th rib at back right side was lacerated, both the lungs were lacerated and Pleura & Pericardium were also lacerated. He also found the clotted-blood present in the chest cavity, semi-digested food about 14 pound was found in the intestine. According to the opinion of the doctor, the death of the deceased was caused by shock and hemorrhage due to the ante-mortem gun-shot injury. The doctor also recovered one nylon green-baniyan, one pant and one underwear from the body of the deceased and, thereafter, he prepared the post-mortem report (Ex. ka9). 10. According to the opinion of the doctor, the death of the deceased was caused by shock and hemorrhage due to the ante-mortem gun-shot injury. The doctor also recovered one nylon green-baniyan, one pant and one underwear from the body of the deceased and, thereafter, he prepared the post-mortem report (Ex. ka9). 10. The learned trial Court, after appraisal of the evidence on record, had recorded its finding, inter alia, stating therein that the gun-shot injury was caused by the deceased-Kare Bhaiya but the other two accused, namely, Shiv Ratan Singh-appellant No. 1 and Arun Kumar-appellant No. 2, were also involved in commission of the crime and the crime was committed in furtherance of common intention of murder by all the three accused and accordingly, convicted both the accused-appellants under Sections 302/34 IPC. 11. Hence, this appeal. 12. However, during the pendency of the appeal, the accused-appellant No. 1, Shiv Ratan Singh had died and, accordingly, the appeal against the aforesaid appellant No. 1 was dismissed as abated vide order dated 15.5.2018, passed by another co-ordinate Bench of this Court. Thus, the challenge in this appeal, is restricted only with respect to the appellant No. 2-Arun Kumar. 13. We have heard learned counsel for the appellant No. 2 and Smt. Manju Thakur, learned AGA appearing for the State-respondent and perused the case record. 14. Learned counsel for the appellant has contended that the testimonies of Uma Shanker (P.W. 1) & Mohd. Yunus (P.W. 2), who were alleged to be the eye-witnesses to the occurrence, are not believable because there were material discrepancies in the evidence of both these alleged eye-witnesses regarding the time, place and manner of occurrence. It was further contended that even as per the prosecution case, the occurrence took place at 10:00 p.m. (night) on the road and there was no mention about the source of light and, hence, the question of identifying the accused does not at all arise. The present accused-appellant, who was unknown to the so-called eye-witnesses had been falsely implicated in this case with the connivance of the police, who was brought to the police station at a later stage and in order to give colour to the prosecution case, he was assigned the role of exhortation. The present accused-appellant, who was unknown to the so-called eye-witnesses had been falsely implicated in this case with the connivance of the police, who was brought to the police station at a later stage and in order to give colour to the prosecution case, he was assigned the role of exhortation. It was also contended that the role of firearm injury inflicted to the deceased was only attributed to the deceased-accused/Kare Bhaiya and the role assigned to the present accused was only exhortation hence, as the act was not committed in furtherance of the common intention, the learned trial Court had committed grave error in convicting the appellant under Section 302 with the aid of Section 34 IPC. Thus, it was submitted that the findings recorded by the learned trial Court are perverse and illegal, the same cannot be sustained in the eye of law and hence, the judgment and order impugned, passed by the learned trial Court is liable to be set aside and the appeal deserves to be allowed. 15. Taking us through the evidence on behalf of the State-respondent, learned AGA has submitted that on exhortation by the present accused-appellant and Shiv Ratan Singh, the de-ceased-accused-Kare Bhaiya shot at the deceased and the commission of the crime was done in furtherance of common intention of all the accused hence, the present accused-appellant would also be liable under Section 302 read with Section 34 IPC and the accused-appellant had been rightly convicted by learned trial Court. Hence, there is no need to interfere with the findings arrived at by the learned Court-below. The appeal is devoid of any merit and the same is liable to be dismissed. 16. As already stated earlier, the prosecution had examined only four witnesses in this case and one Jiauddin as the Court-witness out of whom S.I. Indrajeet Singh (P.W. 3) and Dr. V.P. Bhatnagar (P.W. 4) were the formal witnesses. The prosecution relied upon the evidence of the fact witnesses Uma Shankar (PWl) and Mohd. Yunus (P.W. 2). 17. The first informant-Uma Shankar (P.W. 1) had deposed before the Court that on the date of occurrence after watching the cinema, he was returning to home alongwith the deceased at about 10:00 p.m. All the three accused were sitting on the patiya of one Jhabboo in front of the shop of one Arjun Singh. Yunus (P.W. 2). 17. The first informant-Uma Shankar (P.W. 1) had deposed before the Court that on the date of occurrence after watching the cinema, he was returning to home alongwith the deceased at about 10:00 p.m. All the three accused were sitting on the patiya of one Jhabboo in front of the shop of one Arjun Singh. The accused were known to him since before the occurrence. Three other persons were also accompanying him apart from the deceased. When they crossed the road, then Shiv Ratan Singh exhorted that "Kare Bhaiya, aisa mauka fir kaha ayega, maar do saale ko" to which the deceased-accused, Kare Bhaiya fired at Dayalu @ Daya Shankar with tamanch. Arun Kumar, appellant No. 2, exhorted that "aisa mauka kaha ayega". After inflicting gun-shot injury, accused started running away, they were chased up to some distance, and the accused-appellant No. 1-Arun Kumar was caught hold. He further stated that the accused-appellant, Arun Kumar was not known to him before the alleged incident but the appellant told his name after he was caught hold of. He again stated that when the informant taken his brother alongwith the accused Aurn Kumar to the police station then the accused disclosed his name as Arun Kumar. He got the report written by one Jiauddin at the market on the plain paper, contents were read over and explained to him and thereafter he put his signature. He took the report and his brother so also the accused and reached the police station. 18. Being cross-examined by the counsel for the accused-Arun Kumar, he had stated that when his brother received the fire-arm injuries, about 10-25 people were present at the place of occurrence. The accused-appellant was caught hold at a distance of 60 feet from the place of occurrence and at the time when his brother received fire-arm injuries, 10-20 persons were remained present hither-tither. They were running towards the same direction, where the accused were also running. The accused did not cover their faces. His injured brother Dayalu @ Daya Shankar died before he was taken to the police station. He was taken to the police station in a charpai and the said charpai was kept on the platform of the police station. He further stated that the scribe Jiauddin did not go to the police station. The accused did not cover their faces. His injured brother Dayalu @ Daya Shankar died before he was taken to the police station. He was taken to the police station in a charpai and the said charpai was kept on the platform of the police station. He further stated that the scribe Jiauddin did not go to the police station. He further stated that the police personnel from Kamalganj Police Station reached the place where the accused-appellant Arun Kumar was apprehended and they helped the informant and the other witnesses in apprehending the accused-appellant but the police did not come in the police jeep. However, he denied to the suggestion that the accused was apprehended night at 1:00 a.m. by the police and due to party-bandi, he was brought to the police station and that he was not present at the place of occurrence. 19. In this regard, the other alleged eye-witness Mohd. Yunus (P.W. 2) deposed before the Court that the alleged occurrence took place about four and half years back at about 10:00 p.m. when they were returning to their house after watching the cinema. This witness alongwith the deceased Dayalu @ Daya Shankar, the deceased Uma Shankar and Brij Mohan were returning home and when they reached near the kothi of one Arjun Singh, three persons were sitting on the patiya of the shop of Jhabbu Singh, out of whom two persons were recognized by him as Kare Bhaiya and Shiv Ratan and the third person was not known to him. He. could only come to know his name after the accused was apprehended by them. He further stated that the accused Shiv Ratan and Arun Kumar exhorted that "Kare Bhaiya issse achha mauka nahi ayega, fauran goli maar do" to which Kare Bhaiya fired at the deceased Dayalu @ Daya Shankar from the back side. Dayalu @ Daya Shankar fell down and he alongwith others chased the accused. However, two had managed to run away but they apprehended the third person and handed over him in the police station. He further stated that he did not accompany the deceased. At that time, the accused disclosed his name as Arun Kumar. 20. Dayalu @ Daya Shankar fell down and he alongwith others chased the accused. However, two had managed to run away but they apprehended the third person and handed over him in the police station. He further stated that he did not accompany the deceased. At that time, the accused disclosed his name as Arun Kumar. 20. When he was cross-examined by the counsel for the accused-appellant Arun Kumar, this witness had deposed that by the time they returned back after apprehending the accused, the injured was already taken away by the public and the accused, the person who was apprehended was also taken to the police station. He had also gone to the police station. He had categorically stated that the police did not help them in apprehending the accused. Police met them in the police station and the charpai was kept on the platform of the police station. Uma Shankar also gone with them while chasing the accused. He, alongwith Uma Shankar etc., apprehended the accused and they all had gone to the police station. He further stated that Police Inspector recorded his statement under Section 161 Cr.P.C., two days after the occurrence however he denied to the suggestion that he had left for home after the occurrence. He also denied to the suggestion that he had not given the statement to the police that Uma Shankar and Brij Mohan apprehended the accused and took him to the police station and thereafter he had gone to his house. He further stated that the accused-appellant was apprehended at a distance of two furlongs towards east from the place of occurrence and he had shown to the Investigating Officer the place where the accused-appellant was apprehended. He further stated that the accused had run away towards the east immediately after the occurrence. He had also deposed that he was remained present at the place till 10:00-10:15 p.m. Thereafter, he left for his house. Again, he reached the police station at about 11:00 p.m. The apprehended accused did not cover his face, however no incriminating article was recovered from his possession. He denied to the suggestion that he did not witness the occurrence as deposed by him and due to friendship he was deposing falsehood. 21. Regarding the apprehension of the witness, prosecution had examined another witness, who was the Investigating Officer in this case. He denied to the suggestion that he did not witness the occurrence as deposed by him and due to friendship he was deposing falsehood. 21. Regarding the apprehension of the witness, prosecution had examined another witness, who was the Investigating Officer in this case. Shri Indrajeet Singh (P.W. 3) was the SHO of the Police Station-Kamalganj and he was the Investigating Officer of the case. He had deposed before the Court that the case crime was registered in his presence. He had also deposed that the inquest on the dead body of the deceased was conducted by him thereafter he had completed the other formalities of investigation and submitted the charge-sheet against all the three accused. During his cross-examination, this witness deposed that the place of occurrence was at a distance of four furlongs from the police station towards south-east side. However, he had not shown the distance and direction in his inquest report. He further deposed that he had recorded the statement of the informant at the police station itself but he had not mentioned the time of recording the statement. He further stated that the informant did not state that the accused-appellant Arun Kumar was apprehended towards western side from the place of occurrence and Mohd. Yunus (P.W. 2) also did not state him that the accused-appellant was apprehended at a distance of 2 furlongs towards east from the place of occurrence. He had categorically stated that none of the police officials have helped the informant and others in apprehending the accused-appellant Arun Kumar. However, he denied to the suggestion that due to party-bandi the accused-appellant/Arun Kumar was brought to the police station at 1:30 a.m. While confronting with the statement of P.W. 2, he has stated that P.W. 2 did not give him the statement that Uma Shankar and Brij Mohand have caught hold of the accused-Arun Kumar and took him to the police station and he had gone to his house. Thus, from the facts and circumstances and the improvements made by these witnesses with regard to their presence at the place of occurrence and their apprehending the accused-appellant near the place of occurrence is concerned, we are not inclined to place any reliance on these witnesses. Thus, from the facts and circumstances and the improvements made by these witnesses with regard to their presence at the place of occurrence and their apprehending the accused-appellant near the place of occurrence is concerned, we are not inclined to place any reliance on these witnesses. The presence of these two witnesses at the place of occurrence does not inspire confidence rather it creates a doubt in our mind about the time and place of occurrence. Apart from this with respect to this witness, the only evidence available on record is that he alongwith the other deceased accused Shiv Ratan Singh exhorted by saying that "Kare Bhaiya, aisa maukafir kaha ayega, maar do sale ko." 22. In the case of Jainul Haque v. State of Bihar, (1974) 3 SCC 543 , the Hon'ble Apex Court held as under: "The evidence of exhortation is, in the very nature of things, a weak piece of "evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person on exhortation to the assailant to assault the victim. Unless the evidence, in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant." 23. In the light of the submission made by the learned counsel for the present accused-appellant No. 2 and in regard to the observations made by the Hon'ble Apex Court in the case of Jainul Haque (supra), we find some substance and it would not be reasonable to convict the accused-appellant under Section 302 with the aid of Section 34 IPC, merely on the basis of general allegation of exhortation. 24. Moreover, there is no evidence on record to show that the act was done by the accused in furtherance of common intention. There was no evidence on record to show that all the accused were sitting at the place and waiting for the deceased to reach the place and to commit the crime. There is no iota of evidence on record showing that the accused were having any knowledge that the deceased had gone to watch the cinema alongwith the informant and his associates. No specific act is attributed to the present accused in attacking the deceased or any of the prosecution witnesses except the general role of exhortation. There is no iota of evidence on record showing that the accused were having any knowledge that the deceased had gone to watch the cinema alongwith the informant and his associates. No specific act is attributed to the present accused in attacking the deceased or any of the prosecution witnesses except the general role of exhortation. However, we have already held in our foregoing paragraphs that the presence of the witnesses two prosecution (P.W. 1 & P.W. 2) and the occurrence witnessed by them is doubtful. Hence, it can also be safely held that the alleged exhortation made by the present appellant is also doubtful. 25. In view of the above observations, the finding arrived at by the trial Court and the conviction of the appellant under Section 302 read with Section 34 IPC cannot be sustained and the same is liable to be set aside and the appeal deserves to be allowed. 26. The appeal is allowed. 27. Accordingly, the order dated 3.9.1987, passed by IV-Additional District and Sessions Judge, Farrukhabad in S.T. No. 365 of 1983, convicting the appellant under Section 302 IPC read with Section 34 IPC and sentencing him to undergo imprisonment for life is hereby set aside. 28. The appellant-Aran Kumar is on bail. He need not surrender before the Court. His bail-bonds are cancelled and his sureties stand discharged. However, the appellant No. 2, namely, Aran Kumar is directed to comply with the provisions of Section 437-A Cr.P.C. 29. The office is directed to communicate this order to the Court concerned for necessary compliance.