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Allahabad High Court · body

2020 DIGILAW 566 (ALL)

Sunil Kumar Singh v. State

2020-02-20

ANJANI KUMAR MISHRA I, GAUTAM CHOWDHARY

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JUDGMENT : 1. Heard Sri Rajiv Kumar Mishra, learned counsel for the accused-appellant Sunil Kumar Singh, Sri Nafees Ahmad and Sri Bhanu Prakash Singh, learned A.G.A. for the State in the present appeal and Sri Nafees Ahmad and Sri Bhanu Prakash Singh, learned A.G.A. for the State-appellant in the connected Government Appeal Nos.1086 of 1984 and 1088 of 1984. 2. The instant criminal appeal has been preferred by the accused-appellant Sunil Kumar Singh against the judgment and order of conviction dated 04.02.1984 passed by III-Additional Sessions Judge, Varanasi, in Sessions Trial No. 133 of 1981, State Vs. Sunil Kumar Singh and another, arising out of Case Crime No.207 of 1980, under Section 304 Part-II read with Section 34 I.P.C., Police Station Cant, District Varanasi whereby the accused-appellant Sunila Kumar Singh has been convicted under Section 304 Part-II read with Section 34 I.P.C. and instead of being sentenced, he was directed to be released on probation for two years to maintain peace and be of good behaviour on his furnishing a personal bond of Rs.4,000/- along with two sureties each in the like amount. 3. The aforesaid Government Appeal No.1086 of 1984 (State of U.P. Vs. Sunil Kumar Singh and another) was preferred by the State against the same judgment and order of acquittal dated 04.02.1984 and the aforesaid Government Appeal No.1088 of 1984 (State of U.P. Vs. Sunil Kumar Singh and another) has been preferred by the State for enhancement of the sentence. 4. It is relevant to mention that the appeal qua accused Ram Daras stood abated on 20.05.2019. 5. Since the aforesaid appeals arise out of one and the same judgment dated 04.02.1984 passed by III-Additional Sessions Judge, Varanasi, therefore, the instant appeals are being disposed of by way of a common judgment. 6. The prosecution facts as discernible from record suggest that the written report was lodged at Police Station Cant, District Varanasi by the informant Omkar Nath Dubey against the accused-appellant on 11.04.1980 at 7:10 p.m. by describing that the informant's son Atul Kumar was injured by shot at quarter to 5:00 p.m. on 08.04.1980 in front of the office of A.D.M. (Project), Bhuwneshwar Colony Orderly Bazar, Varanasi. The injury was caused by firing with air-gun by Sunil Kumar Singh son of Sabhajeet Singh. The injury was caused by firing with air-gun by Sunil Kumar Singh son of Sabhajeet Singh. On being asked, Chhotey uncle of Sunil Kumar Singh informed that boys were playing and the shot was fired in the play itself. Since condition of the victim Atul Kumar was serious, therefore, actual occurrence could not be known. After three days of the occurrence, Atul Kumar somehow regained consciousness and was able to speak then it transpired that Sunil Kumar Singh deliberately and intentionally fired on him (Atul Kumar). The air-gun belonged to Ram Daras who is peon in Sarada Sahayak Pariyojana. The injured Atul Kumar was taken to the hospital in the evening on 08.04.1980 and got admitted in the hospital in the serious condition at B.H.U. (E.N.T.). The pellet is entangled in the neck of the injured. Request was made for lodging the first information report.This written report is Ext. Ka-1. 7. The first information report was lodged at Police Station Cant., District Varanasi on 11.04.1980 at Case crime no.207 of 1980 under Section 307 I.P.C. The check FIR is Exhibit Ka-15. 8. On the basis of entries made in the check FIR, case was registered against the accused persons at serial no.56 of G.D. on the same day at 07:10 a.m. at Case Crime No.207 of 1980 under the aforesaid Section of I.P.C. at Police Station Cant., District Varanasi. G.D. entry is Ext. Ka-16. 9. Record reflects that the injured Atul Kumar was medically examined by Dr. T.B. Rai, on 08.04.1980 at 07:05 p.m. who noted the following injury:- 1. Lacerated penetrating wound 3/4 cm x 1/2 cm x depth not proved on front of neck. Injury report is Ext. Ka-5. 10. It so happened that during the treatment, the victim Atul Kumar died on 12.04.1980 at 6:15 p.m. in B.H.U. Hospital Varanasi and the matter was reported at Police Station Cant. on 13.04.1980 due to which the case was altered under Section 302 I.P.C. 11. Record signifies that after coming to know about death of the deceased Atul Kumar, Ali Mohd Khan, PW-8 rushed to the B.H.U. Hospital where he prepared relevant papers pertaining to the inquest of deceased Atul Kumar after appointing inquest witnesses. He started inquest of Atul Kumar at 11:50 a.m. on 13.04.1980 and completed at 3:50 p.m., the very same day and has proved the same as Exhibit Ka-2. 12. He started inquest of Atul Kumar at 11:50 a.m. on 13.04.1980 and completed at 3:50 p.m., the very same day and has proved the same as Exhibit Ka-2. 12. In the process, inquest witnesses expressed opinion for conduction of postmortem examination of the dead body in order to ascertain real cause of death. Therefore, relevant papers were prepared by Ali Mohammand Khan, PW-8 for sending the dead body for postmortem examination. Apart from that, relevant papers -say challan dead body, photonash dead body and letter to C.M.O. etc. have been proved as Ext. Ka-7, Ext. Ka-8, Ext. Ka-9, respectively. 13. Record reflects that the postmortem examination on cadaver of the deceased was conducted at mortuary, Varanasi by Dr. H.M. Agarwal, PW-6 at 3:15 p.m. on 13.04.1980. The doctor found the following ante-mortem injuries:- 1. Healing wound 0.8 cm x 0.3 cm on front of neck, 0.5 cm left of mid-line, 8 cm above supra external notch, direction horizontally backward piercing through and through anterior and posterior walls of trachea and oesophagus. One pellet (air gun pellet) found behind oesophagus in front of sixth cervical vertebrae. Frank pus in moderate amount present in front of the vertebrae column behind oesophagus and up to upper mediastinum lower down. Cause of death was asphyxia. The postmortem examination report of the deceased is Exhibit Ka-4. 14. The investigation of this case commenced and the Investigating Officer, PW-8 besides recording statement of prosecution witnesses prepared site plan of place of occurrence Ext. Ka-6. In the meanwhile, accused-appellant Sunil Kumar Singh was arrested by S.O. Shyam Sunder Tiwari PW-10. The investigating was transferred to another Investigating Officer Shyam Sunder Tiwari PW-10, who also took various steps in completing the investigation and papers prepared by the Investigating Officer PW-8 were proved as Ext. Ka-11, Ext. Ka-12 and Ext. Ka-13. He recorded statement of the various persons and also recorded statement of another accused Ram Daras. After completing the Investigating, he filed charge sheet Ext. Ka-14 against the accused-appellant. 15. Pursuant to committal proceeding, case was transferred from the Sessions Court to the aforesaid trial court i.e. III-Additional Sessions Judge, Varanasi for conduction of trial and its disposal. 16. Prosecution opened its case by stating the charges brought against the accused and it also stated the evidence by which it proposed to prove guilt of the accused. 15. Pursuant to committal proceeding, case was transferred from the Sessions Court to the aforesaid trial court i.e. III-Additional Sessions Judge, Varanasi for conduction of trial and its disposal. 16. Prosecution opened its case by stating the charges brought against the accused and it also stated the evidence by which it proposed to prove guilt of the accused. The trial court heard the accused as well as prosecution on the point of charge and was, prima-facie, satisfied with the case for framing charges under Sections 302 read with Section 34 I.P.C. Accordingly, trial court framed charge against accused-appellant. Charge was read over and explained to the accused-appellant who abjured charge and opted for trial. 17. Consequently, the prosecution was asked to adduce its testimony in respect of charges. The prosecution produced in all 11 witnesses. A brief reference of them is ut infra: Godawari Devi PW-1 is the mother of the deceased Atul Kumar. Sanjay Singh PW-2 appeared on the spot subsequent to the occurrence and is a witness of the post incidental development. Shyam Bihari Lal PW-3 claims himself to be eyewitness of the occurrence and he has testified about the incident. The child Nisa is the star witness of this case, she was 8 years of age when her testimony was recorded before the trial court. Omkar Nath Dubey PW-5 is the informant. Dr. H.M. Agarwal PW-6 has conducted post mortem examination on the cadaver of the deceased and has proved post mortem examination report Ext. Ka-4. Dr. T.D. Rai PW-7 has medically examined the victim on 08.04.1980 at 07:05 p.m. at S.S.P.G. Hospital Varanasi and has proved medical examination report of the victim as Ext. Ka-5. Ali Mohammad Khan PW-8 is the first Investigating Officer of this case. Constable Brij Kishor Tiwari PW-9 took the dead body in sealed condition to the mortuary at Varanasi and has proved the same. Shyam Sundar Tiwari PW-10 is the subsequent Investigating Officer who after completing the investigation has filed charge sheet against the accused-appellant. Balbhadra Tiwari PW-11 has proved the concerned Check FIR and relevant entry made regarding the same as Ext. Ka-16. 18. Shyam Sundar Tiwari PW-10 is the subsequent Investigating Officer who after completing the investigation has filed charge sheet against the accused-appellant. Balbhadra Tiwari PW-11 has proved the concerned Check FIR and relevant entry made regarding the same as Ext. Ka-16. 18. No further evidence was adduced by the prosecution, therefore, evidence for the prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C. wherein he has termed the incident as incidental caused in play and has denied fact that injury was intentionally inflicted upon the deceased. In turn, defence also led testimony of several witnesses namely Krishna Mohan Saxena DW-1 regarding some entries made in the relevant record i.e. electoral papers. Hari Prasad DW-2 was posted in Udai Pratap Degree College and has proved the record regarding date of birth of the accused-appellant. Dinesh Chandra Srivastava is DW-3 and Ramkesh Rai is DW-4. 19. The trial court after hearing both the sides on merit and appraising facts and evaluating the evidence, returned the aforesaid finding of conviction and passed the aforesaid sentence thus instead of passing sentence upon the accused-appellant Sunil Kumar Singh gave him benefit of probation for two years to maintain peace and be of good behaviour on his furnishing a personal bond of Rs.4,000/- along with two sureties each in the like amount. 20. Consequently, the aforesaid three appeals- the first against conviction and sentence by the accused-appellant, the second against the order of acquittal qua aforesaid accused-appellant and the third for enhancement of the sentence by the Government. 21. Sri R.K. Mishra, learned counsel for the accused-appellant has submitted that the entire prosecution story is concocted and highly motivated in the sense that nothing happened on the spot and no one saw the occurrence. It so happened that the deceased Atul Kumar and the accused-appellant Sunil Kumar Singh were playing together and some air-gun was used in the play which in fact caused harm to the deceased. This harm cannot be imputed to a single person that he had any animus to commit crime. Both the accused-appellant and the deceased were of the some tender age. What happened prior to the occurrence has not been accounted by any eye-account testimony. 22. Nisha Devi PW-4 is the only eye-account witness who has also not detailed in her examination in chief as to what transpired prior to the occurrence. Both the accused-appellant and the deceased were of the some tender age. What happened prior to the occurrence has not been accounted by any eye-account testimony. 22. Nisha Devi PW-4 is the only eye-account witness who has also not detailed in her examination in chief as to what transpired prior to the occurrence. The prosecution story is silent on the genesis of the incident created on the spot. Both the children – say accused-appellant Sunil Kumar Singh and the deceased Atul Kumar were playing and their playful activity somehow brought incidental hit by air-gun to the deceased Atul Kumar. 23. Now it so happened that after air-gun hit on the neck of the deceased Atul Kumar, his parents were infuriated and with a view to take revenge lodged false first information report regarding the firing and imputed to the accused-appellant Sunil Kumar Singh by tutoring Nisha Devi PW-4 on the point that the incident occurred in such and such manner. Assuming it to be that any incident as alleged in the first information report took place then version of Nisha Devi PW-4 ipso-facto becomes dubious, vague and tutored as this witness is wholly unreliable, for the reason that as per her testimony, she has described particular manner of the incident that the gun was pointed on the neck of the deceased Atul Kumar, at that particular moment when the incident took place, some conversation between the accused-appellant Sunil Kumar Singh and the deceased Atul Kumar took place that conversation is of particular nature and it has come in her testimony that she told about the incident to her parents after the occurrence took place. But this part of conversation is absolutely silent in the first information report. 24. However, a twist has been given to the entire situation by claiming that the informant was intimated by the injured himself that the accused-appellant Sunil Kumar Singh fired upon him with air-gun which aspect of the case is self-explanatory of fact that there is no iota of evidence or circumstance which may indicate the point that the deceased Atul Kumar ever regained his consciousness and was in fit mental condition to spell / utter any single word. 25. 25. The doctor witness has also not been examined by the prosecution on this point who can testify fact that the deceased Atul Kumar was in fit mental condition to spell / utter word then the point as to how and under what circumstance the informant was intimated by the deceased Atul Kumar himself is an episode self-created by none other than the informant himself and has been wrongly relied by the trial court. Charges against appellant have not been proved beyond reasonable doubt. 26. Contention by the learned A.G.A., in brief, is that conviction recorded under Section 304 Part-II is itself indicative of fact that charge though was framed under Section 302 I.P.C. but conviction was recorded under Section 304 Part-II I.P.C. which deviation by the trial court under facts and circumstances of the case is not justified, for the reason that eye-account testimony of Nisha Devi PW-4 is direct, accurate in consonance with the prosecution version described in the first information report. Her testimony is innocuous and unimpeachable on the point of the occurrence. The intention to cause harm when considered vis-a-vis the attendant facts and circumstances of the case would end in commission of offence of death and it actually occurred in this case. An innocent boy lost his life because of the indolent behaviour of the accused-appellant Sunil Kumar Singh and this case should not be viewed with leniency and no mercy can be shown to the accused-appellant Sunil Kumar Singh on the ground that the accused-appellant Sunil Kumar Singh was at that particular time of this incident a boy of tender age of 12 years. The prosecution witnesses have proved all the relevant facts which are required to be proved by it. 27. In this case, as per allegations the intention to commit the crime was apparent, however, the conviction, if converted, from Section 302 I.P.C. to one under Section 304 I.P.C. then it ought to have been confined to Part-I of Section 304 I.P.C. and the animus which was playing in the mind of the accused-appellant was very much apparent by the criminal act done by him. The trial court wrongly convicted the accused-appellant under Part-II of Section 304 I.P.C. instead it should have convicted the accused-appellant under Part -I of Section 304 I.P.C. 28. The trial court wrongly convicted the accused-appellant under Part-II of Section 304 I.P.C. instead it should have convicted the accused-appellant under Part -I of Section 304 I.P.C. 28. Lastly added that the case of the prosecution has been consistently proved and investigation of this case has been done properly and fairly. Testimony of the prosecution witnesses of fact is clinching, sans embellishment and improvement and under circumstances, is natural and inspires confidence. Nisha Devi PW-4 is the star witness who has described every relevant details of the incident and participation of the accused-appellant in the incident. 29. After hearing learned counsel for the parties and considering rival submissions of the respective parties, core consideration that arise in these appeals are two pronged - one relates to fact whether the prosecution was not able to prove its charges against appellant Sunil Kumar Singh in the aforesaid Criminal Appeal (717 of 1984) and second relates to fact whether finding of acquittal is based on conjectures and surmises rather than grounded on material on record and third relates to enhancement of the sentence in the aforesaid Government Appeals? 30. The very genesis of the crime, as we gather from reading of the first information report, describes the incident to have taken place on 08.04.1980 at 4:45 p.m. and description is to the magnitude that with intention to kill, shot was fired with air-gun upon the victim Atul Kumar by the accused-appellant Sunil Kumar Singh. The shot hit on the neck of the victim. 31. The condition of the victim was serious, therefore, details of the incident could not be known and after three days of the incident when the victim was able to speak then it transpired that the accused-appellant Sunil Kumar Singh deliberately shot him with air-gun and the air-gun was owned by peon Ram Daras posted in the office at Sarada Sahayak Pariyojana. The victim was taken to the hospital in the injured condition where he was admitted in serious condition. The pellet was entangled in his neck. If this version of the incident is taken to be correct then we have star witness of this incident namely Nisha Devi PW-4. 32. As regards the occurrence, we have best testimony in the form of PW-4 and PW-3. We scanned the entire testimony of Shyam Bihari Lal PW-3 who happened to be Lekhpal posted in district Varanasi. If this version of the incident is taken to be correct then we have star witness of this incident namely Nisha Devi PW-4. 32. As regards the occurrence, we have best testimony in the form of PW-4 and PW-3. We scanned the entire testimony of Shyam Bihari Lal PW-3 who happened to be Lekhpal posted in district Varanasi. The place of the occurrence is adjacent to the office of Tehsil. He has described about the incident in his examination in chief that at the relevant point of time, he saw the occurrence when accused-appellant Sunil Kumar Singh was possessing air-gun and was standing at some pace from the victim this air-gun was given by Ram Daras to the accused-appellant Sunil Kumar Singh. 33. As soon as the victim Atul Kumar arrived on the spot, the accused-appellant Sunil Kumar Singh pointed air-gun on his neck and put the trigger on. This is particular piece of testimony regarding the incident. The natural conduct of this witness is to be considered for evaluating veracity of his testimony. In the cross examination, it is admitted to this witness that for over three days, he did not make any statement to any authority about the incident then what to say to the Investigating Officer that after three days, he gave statement to Daroga Ji. 34. Here we come across contrary statement given / made to Daroga Ji and testimony given in the cross examination before the trial court. His testimony does not indicate compatibility with natural conduct that after seeing the occurrence, he being Lekhpal posted in district Varanasi at that point of time must have told /described about the incident to anyone but he kept silent for three days. May be, he is a procured witness, managed by the prosecution in order to articulate things in its favour. Therefore, this witness is not reliable and he cannot be believed to be worthy of credit. He is vacillating on material point and his natural conduct is inconsistent with that of a man of ordinary prudence, not fit in the prevailing circumstances of the case. 35. Now we have testimony of the only star witness Nisha Devi PW-4, sister of the deceased Atul Kumar. He is vacillating on material point and his natural conduct is inconsistent with that of a man of ordinary prudence, not fit in the prevailing circumstances of the case. 35. Now we have testimony of the only star witness Nisha Devi PW-4, sister of the deceased Atul Kumar. After careful perusal of her testimony, we can take note of the description of the incident as testified in her examination in chief wherein she has categorically stated that the deceased Atul Kumar was her brother and the accused-appellant Sunil Kumar Singh fired upon him. The gun was pointed on the neck, with point blank range, and shot was fired at that relevant point of time when the gun was put on the neck of the deceased by the accused-appellant Sunil Kumar Singh, the deceased Atul Kumar asked him not to do so whereupon the accused-appellant Sunil Kumar Singh insisted that he will do this. After sustaining shot, the deceased Atul Kumar fell down to the eastern side of the electric pole on the spot. 36. Upon perusal of the first information report, it is revealed that the incident occurred around 5:00 p.m. on 08.04.1980. This description emerging in examination in chief of this witness (Nisha Devi PW-4) is to be cautiously scrutinized in view of fact that PW-4 is a child witness and at the time of the occurrence, she was about 6 years of age. 37. But before proceeding further, we would like to reflect on the point as we have scanned testimony of the doctor witness who medically examined the deceased and also perused relevant part of the testimony of the Investigating Officer Ali Mohammad Khan PW-8 who went to the B.H.U. Hospital in emergency ward after the investigation was taken over by him on 12.04.1980 then he found the victim Atul Kumar in unconscious state which indicates that the victim was not able to speak at that point of time when the Investigating Officer PW-8 arrived at B.H.U. Hospital Varanasi in the emergency ward on 12.04.1980 and his testimony is admitted on the point that the death occurred on 12.04.1980 in the evening around 6:15 p.m. itself. This being so an independent circumstance, the version in the first information report that the informant was told about the incident by the victim Atul Kumar is a version wholly unreliable and appears to have been managed by the prosecution and in particular by the informant and cannot be believed to be correct version in the prevailing facts and circumstances of the case. 38. Upon careful scrutiny of the entire testimony – say examination in chief and cross examination of the star witness Nisha Devi PW-4, we gather fact that after the occurrence, she told each particular of the occurrence to her parents and Omkar Nath Dubey - informant who is none other than the father of Nisha Devi PW-4. 39. Now the moot point is concerning fact that after the incident took place, each particular of the incident was described and the first information report was lodged on 11.04.1980 much after the occurrence took place on 08.04.1980, how and why was reference to the magnitude that the injured was in fit condition to speak and he told about the incident to the informant then the informant came to know that offence was deliberately committed by none other than the accused-appellant Sunil Kumar Singh. This particular aspect is unimpeachable under existing circumstance of this case and requires explanation by the prosecution and the prosecution has tried to manage things to a degree to bring the case beyond reasonable doubt which it failed on account of certain infirmities creating serious dent in the prosecution story. 40. That way, no doubt the prosecution witness PW-4 is not believed to be wholly reliable witness and she appears to have been tutored witness because she has categorically stated in her cross examination that whatever was seen by her was told by her to her parents. During treatment of the the deceased, the conversation took place between PW-4 and her parents as emerging in her cross examination on page nos.34 and 35 of the paper-book then how and why improvement by PW-5 on point of talk with Atul Kumar that he had conversation with him (the deceased). The prosecution could not come out specifically about any such testimony or circumstance explicit or implicit reflecting on the point that the deceased regained consciousness and was in fit physical condition to speak. The prosecution could not come out specifically about any such testimony or circumstance explicit or implicit reflecting on the point that the deceased regained consciousness and was in fit physical condition to speak. Under these circumstances as a measure of caution, PW-4 who is a child witness cannot be wholly relied by us and doubt is created about the very manner and style of the incident in which the offence is claimed to have been committed by the accused. 41. The claim of the defence that the air-gun was fired in the play and it somehow incidentally hit the victim can be acted upon as plausible explanation about the incident. Under these circumstances, we can hold that the case was not proved within the four corners of Section 304 I.P.C. and the trial court did not consider this vital unimpeachable point / circumstance of the case which is self-revealing instead the prosecution on the point of actual occurrence is all the times improving and vacillating and the statement of the prosecution witnesses on the vital point as such are contrary to the Section 161 Cr.P.C. which contrast has been elaborately pointed out by the defence in cross examination of the prosecution witnesses. The prosecution witnesses PW-3 and PW-4 have been specifically challenged by the defence, which has been denied but specific challenge to the witnesses cannot be overlooked by us in view of several infirmities appearing in the testimony and we hold in the final count that the charge has not been proved beyond reasonable doubt and the accused-appellant is entitled to benefit of doubt – acquittal. 42. Learned trial court while considering merit of the case somehow overlooked above material factual aspects, circumstances and testimony on the whole on record and adopted only casual approach. Thus, the trial court erroneously recorded finding of conviction against the accused-appellant under Section 304 Part-II I.P.C. which finding in the absence of consistent and clinching testimony on point of occurrence becomes unsustainable and in the result liable to be set aside by us. 43. Therefore, the judgment and order of conviction dated 04.02.1984 passed by III-Additional Sessions Judge, Varanasi, in Sessions Trial No. 133 of 1981, State Vs. Sunil Kumar Singh and another, arising out of Case Crime No.207 of 1980, under Section 304 Part-II read with Section 34 I.P.C., Police Station Cant, District Varanasi, is hereby set aside. 43. Therefore, the judgment and order of conviction dated 04.02.1984 passed by III-Additional Sessions Judge, Varanasi, in Sessions Trial No. 133 of 1981, State Vs. Sunil Kumar Singh and another, arising out of Case Crime No.207 of 1980, under Section 304 Part-II read with Section 34 I.P.C., Police Station Cant, District Varanasi, is hereby set aside. Accused-appellant Sunil Kumar Singh is acquitted of the charge. Accordingly, the instant criminal appeal is allowed. 44. In this case, the accused-appellant is on bail. He need not surrender before the court concerned. His bail bonds are cancelled and sureties are discharged. However, he shall furnish surety bonds in compliance with Section 437A Cr.P.C. 45. Accordingly, Government Appeal No.1086 of 1984 and Government Appeal No.1088 of 1984 being devoid of merit are dismissed. 46. Let a copy of this order be certified to the trial court for its intimation and necessary follow-up action.