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2020 DIGILAW 669 (ALL)

Bilendra v. State of U. P.

2020-03-03

ALI ZAMIN, B.AMIT STHALEKAR

body2020
JUDGMENT : Ali Zamin, J. 1. Heard Sri Irfan Chaudhary, learned counsel for the appellants and learned A.G.A for the State. 2. This appeal has been preferred being aggrieved from the judgment and order dated 8.6.2001 passed in Session Trial No. 873/1998, arising out of Case Crime No. 104 of 1994 (State v. Bilendra @ Virendra and another) by which learned Additional Sessions Judge, (Court No. 3), Muzaffarnagar has convicted the appellants, under Section 302 I.P.C. read with Section 34 I.P.C. and has sentenced them to undergo life imprisonment. 3. The appellant No. 1 Bilendra @ Virendra died during the pendency of the appeal and appeal against him has been dismissed as abated vide order date 3.4.2019. Hence, this appeal is confined only for the appellant No. 2 Sukhpal. 4. According to prosecution version Bijendra, brother of the informant Rajendra had gone to irrigate his field in the evening of 25/26.5.1994. In the night the informant and his father Bholu reached the tube-well carrying dinner of Bijendra. Bijendra was sleeping on a cot in front of the tube-well. Informant and his father at about 3:00 a.m. in the night had gone to look after the irrigation in the adjoining field, where they heard a sound of fire at the tube-well, upon which they rushed to the tube well and saw that Bilendra @ Virendra and Bhura sons of Ramsewak and Sukhpal son of Nirmal were standing close to the cot of the deceased having country-made pistol in their hands. In the meantime Tara Chand son of Behu Gujar also came from the adjoining tube-well. On their exhortation Bilendra fired a shot on the chest of Bijendra from a close range and all the three accused fled away towards west side. They saw very well and identified them, in the torch and moon light. Regarding daul (Medh, plot boundary), deceased had an altercation with Bijendra, Bhura and Sukhpal 8-10 days before the incident. On the basis of written report Ext. Ka-1 Case Crime No. 104 of 1994, under Section 302 I.P.C. against the accused-appellants and another Bhura under chik F.I.R. Ext. Ka-12 was registered on 26.5.1994 at 5.30 a.m. Investigation of the case was entrusted to S.H.O. Ashok Kumar Singh (P.W. 4). Investigating Officer reached the spot and got prepared inquest memo Ext. Ka-2 and relevant papers i.e. letter to C.M.O. Ext. Ka-3, letter to R.I. Ext. Ka-4, photo lash Ext. Ka-12 was registered on 26.5.1994 at 5.30 a.m. Investigation of the case was entrusted to S.H.O. Ashok Kumar Singh (P.W. 4). Investigating Officer reached the spot and got prepared inquest memo Ext. Ka-2 and relevant papers i.e. letter to C.M.O. Ext. Ka-3, letter to R.I. Ext. Ka-4, photo lash Ext. Ka-5, chalan lash Ext. Ka-6 by S.I. p.m. Kashyap, in his presence and thereafter, dispatched the dead body for post-mortem. 5. Dr. V.K. Shukla (P.W. 3) conducted autopsy on the dead body at 4.50 p.m. on 26.5.1994 and prepared a report (Ext. Ka-2A). According to the post-mortem report following injuries were found on the dead body: 1. Gun shot wound of entry 1.5 cm x 1 cm x cavity deep in front of chest left side 6.5 cm from nipple in 11. O'clock position blackening present in an area of 6 cm x 5 cm around the wound. 2. Gun shot wound of exit 3 cm x 2 cm on the back of chest right side scapular region. In internal examination 2nd and 3rd ribs were found fractured, both lungs were lacerated. In opinion of the doctor cause of death of the deceased was found shock and haemorrhage as a result of ante-mortem injuries and death was possible at 3.00 a.m. in the morning of 25/26.5.1994. 6. Investigating Officer recorded the statement of complainant Rajendra, Bholu and other witnesses, inspected the place of occurrence and prepared site plan Ext. Ka-7. He collected the blood stained and plain earth from the place of occurrence and prepared recovery memo Ext. Ka-8. He also took into possession the torch from which incident was seen by the witnesses and prepared memo Ext. Ka-10. The woollen sheet (chadar) etc. were also taken into possession and memo Ext. Ka-11 was prepared. After completing the investigation, charge-sheet (Ext. Ka-13), under Section 302 I.P.C. was filed against the accused-appellants before the Court of C.J.M., Muzaffarnagar. 7. Since offence under Section 302 IPC is exclusively triable by the Court of Sessions therefore, learned C.J.M., Muzaffarnagar committed accused to the Court of sessions for trial where Case Crime No. 104 of 1994, under Section 302 I.P.C. was registered as Session Trial No. 873 of 1998. Learned Sessions judge framed charge against the appellants-accused under Section 302 I.P.C. read with Section 34 I.P.C., who denied the charge and claimed trial. Learned Sessions judge framed charge against the appellants-accused under Section 302 I.P.C. read with Section 34 I.P.C., who denied the charge and claimed trial. Thereafter learned Sessions Judge made over the case for trial to the Court of Additional Sessions Judge Court No. 3, Muzaffarnagar. 8. Prosecution to prove the charge against the appellants-accused produced four witnesses. P.W. 1 Bholu and P.W. 2 Rajendra informant are witnesses of fact. P.W. 3 Dr. V.K. Shukla conducted post-mortem and P.W. 4 Ashok Kumar Singh Investigating Officer are the formal witnesses of the case. After examination of prosecution witnesses, statements of the appellants-accused were recorded under Section 313 Cr.P.C. In his statement appellant-accused Sukhpal has stated that due to enmity the case proceeded against him. He has further stated that deceased Bijendra was son of his elder father. Neither his land was adjoining to the land of Bijendra nor was there any dispute with him, he had cordial relation with the family of Bilendra, perhaps due to this reason he has been implicated in the present case. The appellants-accused led no evidence in their defence. 9. After hearing the parties and perusal of the record, learned Additional Sessions Judge, (Court No. 3), Muzaffarnagar passed the impugned judgment and order, hence this appeal. 10. Learned counsel for the appellant submits that according to prosecution version appellant Sukhpal was present at the time of incident alongwith the main accused Bilendra having country-made pistol in his hand. Accused Bilendra, Bhura and Sukhpal were named in the FIR. Role of causing injury to the deceased has been assigned to accused Bilendra. As per prosecution and post-mortem report a single fire-arm injury was caused to the deceased. At the time of the incident accused Bhura was in jail and Investigating Officer has not charge-sheeted Bhura finding him in jail at the time of incident. Appellant had no dispute with the deceased Bijendra nor he has any field adjoining to the field of the deceased. Appellant accused had cordial relation with the family members of accused Bilendra and on the basis of suspicion he has been implicated in the case. Evidence of PW 1 Bholu and PW 2 Rajendra, the informant, indicate that they have not witnessed the incident and learned Court below without proper appreciation of evidence has convicted and sentenced him. 11. Appellant accused had cordial relation with the family members of accused Bilendra and on the basis of suspicion he has been implicated in the case. Evidence of PW 1 Bholu and PW 2 Rajendra, the informant, indicate that they have not witnessed the incident and learned Court below without proper appreciation of evidence has convicted and sentenced him. 11. On the other hand learned AGA for the respondent state submits that from the evidence adduced by the prosecution charge is fully proved and learned Additional Sessions Judge properly appreciating the evidence has rightly convicted and sentenced him. Therefore, no interference is required by this Court and appeal is liable to be dismissed. 12. From the evidence, it is evident that Bijendra died of homicidal violence. It is evident from the medical evidence adduced in the case. PW 3 Dr. V.K. Shukla has conducted post-mortem and prepared report Ext. K-2A, according to which a gun shot wound of entry on left chest and it's exit wound on back of right chest have been found. In internal examination 2nd and 3rd ribs have been found fractured and both lungs were lacerated. Cause of death was shock and haemorrhage as result of ante-mortem injuries. From the above, it is clear that Bijendra died due to injury sustained by him. 13. As per prosecution case appellant-accused was present at the time of incident having country-made pistol in his hand, when co-accused Bilendra fired a shot over the deceased Bijendra and after the incident he also fled away alongwith him. 14. In this appeal the only question for our consideration is whether from the evidence led by prosecution charge against appellant for committing murder of deceased Bijendra with common intention of co-accused Bilendra is proved and trial Court properly appreciating the evidence on record has rightly convicted and sentenced him. 15. As per FIR Ext. Ka -12 in the intervening night of 25/26.5.1994 deceased was sleeping in front of the tube well on a cot and at about 3.00 a.m. in the night, PW 1 Bholu and PW 2 Rajendra had gone to look after irrigation of adjoining field, at that time they heard a sound of fire at the tube well whereupon they rushed to the tube well and saw that Bilendra @Virendra, Bhura and Sukhpal were standing close to the cot of the deceased having country made pistol in their hand. In the meantime Tara Chand also came there. On their exhortation Bilendra fired a shot which hit the chest of the deceased Bijendra and all the accused fled away towards west side. The witnesses saw very well and identified the accused in the torch and moonlight. 16. Before adverting to the evidences, it will be apposite to refer the law laid down by Hon'ble Supreme Court regarding evidentiary value of F.I.R. 17. In para 12 of the judgment in the case of Thulia Kali v. State of Tamil Naidu, (1972) 3 SCC 393 , Hon'ble Supreme Court has held as under: "12...First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as name of eye-witnesses present at the scene of occurrence." Again in Mehraj Singh v. State of U.P., (1994) 5 SCC 188 , in para 12 of the judgment Hon'ble Supreme Court has considered regarding evidentiary value of FIR of which relevant part for appreciation of present case is referred as under: "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the name of the eye-witnesses, if any." 18. From the law laid down by Hon'ble Supreme Court in the above referred cases, it is well-settled that FIR in a criminal case and particularly in a murder case is an extremely vital and valuable piece of evidence for the purpose of corroborating/appreciating the oral evidence led at the trial. 19. From the law laid down by Hon'ble Supreme Court in the above referred cases, it is well-settled that FIR in a criminal case and particularly in a murder case is an extremely vital and valuable piece of evidence for the purpose of corroborating/appreciating the oral evidence led at the trial. 19. PW 1 Bholu in cross-examination has stated that after hearing sound of fire son and father, both rushed to the tube well. When they reached the tube well Bijendra was not alive. He has further stated that even he did not see him wriggling. He saw him in a dead condition. He has clearly stated that when they arrived at the tube well the three accused were fleeing towards west side. While as per FIR hearing sound of fire PW 1 Bholu alongwith his son PW 2 Rajendra reached the tube well, saw the appellant Sukhpal and other accused close to the cot of the deceased very well and identified them in the torch and moon light and on their exhortation co-accused Bilendra fired a shot on the chest of deceased Bijendra. If really this witness was present on the spot at the time of incident then such contradiction would not have crept. Thus, oral testimony. of PW 1 Bholu with regard to witnessing the appellant at the time of incident is not corroborated with the FIR. In cross-examination he has clearly stated that he saw the accused fleeing from a distance of 50 to 100 meter. As per spot map Ext. Ka-7 the witnesses have been shown at place B which is towards east side of the place of incidence and accused persons have been shown fleeing towards west side from the place of the incidence. According to FIR also after incident accused fled towards west side. Thus, with regard to fleeing of accused towards west side prosecution evidence is consistent. In view of the evidence that after the incident accused fled towards west side and at that time witnesses were towards east side from the accused, in that situation on witnessing only, back of accused will be seen and witnessing back in the night from a distance of 50 to 100 meter, accused cannot be identified. In view of the evidence that after the incident accused fled towards west side and at that time witnesses were towards east side from the accused, in that situation on witnessing only, back of accused will be seen and witnessing back in the night from a distance of 50 to 100 meter, accused cannot be identified. This view is fortified from the fact that in FIR including the appellants one Bhura was also named but during investigation his involvement was found false as he was in jail at the time of incident and he has not been charge-sheeted. 20. Thus, keeping in view, the law laid down by Hon'ble Supreme Court in the cases of Thulia Kali v. State of Tamil Naidu and Mehraj Singh v. State of U.P. (supra), on consideration of the evidence available on record as discussed above we find that testimony of P.W. 1 Bholu does not inspire confidence that he saw the appellant-accused at the time of incident. 21. P.W. 2 Rajendra is the informant and alleged eye-witness of the incident. In cross-examination he has stated that name of Bhura is clearly mentioned in the report which he himself has written, no other person has written it. He has also stated that he did not see Bhura on the spot by face but saw his back who was appearing like Bhura, third person was appearing like Bhura. He has further stated that before today this fact was not mentioned in the report nor disclosed to the Investigating Officer, while as per FIR hearing sound of fire he reached the tube well, saw Bilendra, Bhura and Sukhpal very well and identified them in the torch and moonlight as well as on their exhortation Bilendra fired the shot which hit the chest of deceased Bijendra. Thus, his oral testimony with regard to witnessing Bhura is contradictory to the FIR. If P.W. 2 Rajendra was present, saw and identified the accused persons then he would not have named Bhura whose involvement has been found false during investigation. It appears that when during investigation involvement of Bhura was found false as he was in jail at the time of incident then with regard to witnessing Bhura he has changed his stand by saying that the third person was looking like Bhura so as to justify himself to be eye-witness for the remaining accused. It appears that when during investigation involvement of Bhura was found false as he was in jail at the time of incident then with regard to witnessing Bhura he has changed his stand by saying that the third person was looking like Bhura so as to justify himself to be eye-witness for the remaining accused. In FIR showing Bhura as an accused and during investigation finding his involvement false casts a serious doubt upon him to be a trustworthy witness and that he launched the prosecution with true facts as the incident had happened. It indicates that actually he did not see the incident and he is not the witness of the incident. 22. There is another aspect also in the case, according to FIR at the time of incident the witnesses i.e. Rajendra and Bholii were looking after irrigation in the adjoining field and hearing the sound of fire they rushed to the tube-well and saw that Bilendra @ Virendra, Bhura and Sukhpal were standing close to the cot of the deceased having country made pistol in their hand. On their exhortation Bilendra fired a shot on the chest of the deceased Bijendra. As per spot map Ext. Ka-7 at the time of first fire they were at a distance of 54 steps, naturally in covering the distance of 54 steps some time will be spent. If during odd hours of night accused persons came for committing murder and that too in agricultural field certainly by firing in the air they will not invite attention of other persons and wait for coming of the persons of the locality to come and see the incident. It also does not appear natural that when a fire is made close to a sleeping person he will not awake hearing the sound of fire and try to save himself and persons at a distance of 54 steps hearing the sound will come and exhort the accused then they will cause the incident. For the reasons discussed above also a doubt is created in the mind as to whether the witnesses saw appellant-accused at the time of incident. 23. P.W. 2 Rajendra in cross-examination has also stated that the second fire on his brother was made when we both were 7-8 steps away from the cot. For the reasons discussed above also a doubt is created in the mind as to whether the witnesses saw appellant-accused at the time of incident. 23. P.W. 2 Rajendra in cross-examination has also stated that the second fire on his brother was made when we both were 7-8 steps away from the cot. At that time assailants had not fled towards west side, while P.W. 1 Bholu has stated that he saw the assailants fleeing towards west from a distance of 50-100 meters. They entered into a sugarcane field thereafter they were not seen. Thus, the place, where assailants were seen, the evidence of P.W. 1 Bholu and P.W. 2 Rajendra is not consistent while both had reached together after hearing sound of fire. If the witnesses were present at the time of incident then such contradiction would not have crept in their statement, which further creates a doubt as to them being witness of the incident. 24. Thus, keeping in view, the law laid down by Hon'ble Supreme Court in the cases of Thulia Kali v. State of Tamil Naidu and Mehraj Singh v. State of U.P. (supra), on consideration of the evidence available on record, as discussed above we find that testimony of PW 2 also does not inspire confidence that he saw the incident as well as appellant-accused at the time of incident. 25. It is the prosecution version that accused Bilendra fired a shot on the chest of deceased and at that time appellant was present there. On going through the evidence on record we find that there is no iota of evidence against the appellant with regard to sharing common intention with the co-accused Bilendra in causing the incident. 26. Even in case of role of catching hold and exhortation Hon'ble Supreme Court in the case of Balwant Bhai B. Patel v. State of Gujrat and another, (2009) 10 SCC 684 , in para 5 of the judgement has held as under: "...We are also not unmindful of the fact that allegations of catching hold of an attack victim or of an exhortation are invariably made when the number of injuries on the injured party do not co-relate to the number of accused or in the alternative in an attempt to rope in as many persons as possible from the other side." 27. As per FIR 8-10 days before the incident an altercation had taken place between deceased Bijendra and accused Bilendra, Bhura and Sukhpal which has been supported by P.W. 1 Bholu and P.W. 2 Rajendra, the informant through their oral testimony. It appears that on the basis of suspicion because altercation had taken place 8-10 days before the incident between deceased and accused persons, appellant has been implicated in the case. 28. In Digambar Vaishno and another v. State of Chhattisgarh, (2019) 4 SCC 522 , Hon'ble Supreme Court in para 15 of it's judgment has held as under: "14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of prosecution can't be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance if other circumstances unfailingly point to the guilt." 29. In view of the opinion of the Hon'ble Supreme Court in the above referred case, it is a settled principle of law that suspicion cannot take the place of legal proof and burden of proof squarely rests on the prosecution and the general burden never shifts. 30. Considering the facts of the case, attending circumstances, evidence available on record as discussed above and law laid down by Hon'ble Supreme Court, we come to a conclusion that the evidence of P.W. 1 Bholu and P.W. 2 Rajendra, father and brother of the deceased respectively, is not inspiring confidence with regard to witnessing the appellant-accused at the time of incident. There is no iota of evidence against the appellant for sharing common intention with the main accused Bilendra for committing the offence. Prosecution has failed to prove the charge against appellant. Finding of learned trial Court is not based on proper evaluation of evidence on record as such finding of trial Court is perverse. There is no iota of evidence against the appellant for sharing common intention with the main accused Bilendra for committing the offence. Prosecution has failed to prove the charge against appellant. Finding of learned trial Court is not based on proper evaluation of evidence on record as such finding of trial Court is perverse. Therefore, judgment and order passed by learned trial Court is not sustainable and is liable to set aside. 31. Appeal is allowed. The impugned judgment and order passed by learned trial Court is set aside. Consequently, appellant is acquitted of the charge under Section 302/34 I.P.C. Appellant is on bail, his bail bond is discharged. Appellant is directed to file personal bond and two sureties to the satisfaction of Court concerned in compliance of Section 437A Cr.P.C. 32. Registry is directed to send a copy of this order and original record to the Court concerned for compliance.