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2022 DIGILAW 1970 (ALL)

Ajayraj @ Raja v. State of U. P.

2022-12-14

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : Ajai Tyagi, J. 1. Heard Sri Uttar Kumar Goswami, learned counsel Amicus Curiae for appellant and Sri Patanjali Mishra, learned A.G.A. for the state. 2. This appeal challenges the judgment and order dated 16.11.2013 passed by Additional Sessions Judge, Court No.12, District Meerut, in Session Trial No.664 of 2010(in Case Crime No.665 of 2009) (State of U.P. Vs. Ajayraj @ Raja and others) convicting accused-appellant, under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the accused-appellant to undergo imprisonment for life with fine of Rs.50,000/- and in case of default of payment of fine, further to undergo imprisonment for a period of one year. 3. Brief facts as culled out from the record are that P.W.1, Vinod Kalanjari, gave first information the police authority stating therein that at around 6:15 in the morning of 1.12.2009, three unknown young persons barged in his house at Kalanjari Gaon and fired indiscriminately with the intention to cause death of his younger brother Subodh Kumar, as a consequence of which his brother received grievous injuries and accused persons escaped firing aerial shots. He carried his injured brother with the help of his family members and villagers to K.M.C. Hospital for treatment and got him admitted where his treatment is going on and he continues to be critical. 4. The then Constable Clerk PW-3 at P.S. Jani had prepared Chik First Information Report Ex Ka-4 for the offence under Sec. 307 at 8:05 in the morning itself of 1-12-09 on the basis of aforesaid written complaint. Entry of the aforesaid was done by constable clerk PW-12 posted at P.S. Jani in report no. 14 of the G.D. on the same day at 8.05 in the morning as Ex Ka-13. Case was comitted u/s 302 of IPC after the death of injured during treatment, postmortem was done. 5. On being summoned, the accused-person pleaded not guilty and wanted to be tried. The offence for which accused was charged was triable by the Court of Sessions, hence, the accused-appellant was committed to the Court of Sessions. The learned Sessions Judge framed charge under Section 302 of IPC. 6. The Trial started and the prosecution examined 12 witnesses who are as follows : 1. Vinod Kumar PW1 2. Dr. Sanjay Sharma PW2 3. Pradeep Kumar PW3 4. Radha PW4 5. Abhimanyu PW5 6. Seema PW6 7. Satyapal Singh PW7 8. The learned Sessions Judge framed charge under Section 302 of IPC. 6. The Trial started and the prosecution examined 12 witnesses who are as follows : 1. Vinod Kumar PW1 2. Dr. Sanjay Sharma PW2 3. Pradeep Kumar PW3 4. Radha PW4 5. Abhimanyu PW5 6. Seema PW6 7. Satyapal Singh PW7 8. Pratap Singh PW8 9. Dr. Sanjeev Lalwani PW9 10. Rajveer Sharma PW10 11. Chandra Prakash Chaturvedi PW11 12. Gyandas PW12 7. In support of ocular version following documents were filed : 1. F.I.R. Ex.Ka.4 2. Written Report Ex.Ka.1 3. Application Ex.Ka.10 4. Supurdginama of dead body Ex.Ka.9 5. Recovery Memo EX.K.a10 6. Recovery memo of empty cartridges and cartridge Ex.Ka.6 7. Letter of CMO Ex.Ka.6A 8. Medical examination report Ex.Ka.3 9. Statement Ex.Ka.8 10. Letter to Autopsy Surgeon Ex.Ka.7 11. Post-mortem report Ex.Ka.11 12. Panchayatnama Ex.Kal.6B 13. Charge-sheet Ex.Ka.12 8. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant as mentioned above. 9. Learned amicus curiae for appellant first of all submitted that there is no eye witness in this case. All the witnesses of fact are planted. PW-1 (Vinod Kumar) informant has admitted in his testimony that he was not present at the place of occurrence when the alleged occurrence had taken place. P.W.-4(Radha) is the wife of the deceased, she has narrated the incident in her examination-in-chief. In her examination-in-chief she has deposed that she and her husband together came out of gate. If it was so how she could further depose that on the date of occurrence, she did not see his Jeth and her son Kabya because in her examination-in-chief she has specifically stated that her son Kabya also had reached to the place of occurrence. In her cross examination, she has also stated that she has given contradictory statement that after two or three months of incident, she had seen Kabya and Vinod and on the date of occurrence, she did not see Kabya and Vinod. She has stated that both the aforesaid statements, are correct but it cannot be so. Hence, the testimony of PW-4 (Radha) goes to show that she had not seen the occurrence and her testimony is hearse evidence. 10. She has stated that both the aforesaid statements, are correct but it cannot be so. Hence, the testimony of PW-4 (Radha) goes to show that she had not seen the occurrence and her testimony is hearse evidence. 10. PW-1 (Vinod Kumar) informant has admitted in his testimony that he was not present at the place of occurrence when the incident had taken place. P.W-5(Abhimanyu) is the son of brother of the deceased. He has stated in his cross examination that after the fire, he did not go near the deceased and hide herself behind the pillar. This is very unnatural conduct of PW-5. In his cross examination, he has stated that he did not tell to his father that accused had murdered his uncle. This is also very unnatural and cannot be believed. His testimony also does not inspire confidence. He has also stated that after departure of accused person, his father and cousin brother(son of the deceased) also came at the spot on hearing the sound of firing. This statement is very much in contradiction with the statement given by PW-4. 11. These aforesaid contradictions have argued by learned amicus curiae and after that he vehemently submitted by PW-6 is daughter of the brother of deceased and she is star witness of the prosecution. Her testimony is also goes to show that she has not seen any occurrence. Even the Investigating Officer has not recorded her statement during the investigation. 12. It is further submitted by learned amicus curiae for appellant that only the appellant - accused is charge-sheeted by the Investigation Officer and no weapon is recovered from him. The Trial Court has wrongly convicted the accused and the impugned judgment is liable to be set aside. The Investigating Officer has recovered the empty cartridge of different bore from the place of occurrence but no weapon was ever recovered from the accused. Hence, the prosecution also failed to connect that the fires have been opened by the accused - appellant. Hence, the connecting evidence is also missing in this case. 13. Learned counsel appearing on behalf of State opposed the aforesaid submission made by learned amicus curiae for appellant and contended that PW-6 is the family member of the deceased and she has told the name of accused in her statement. Hence, the connecting evidence is also missing in this case. 13. Learned counsel appearing on behalf of State opposed the aforesaid submission made by learned amicus curiae for appellant and contended that PW-6 is the family member of the deceased and she has told the name of accused in her statement. It is also submitted that the Investigating Officer has recovered two empty cartridge of 32 bore and one empty cartridge of 315 Bore along with bullet from the courtyard of house of the deceased. 14. Antemortem injuries in the postmortem report are fire arm injuries which could be inflicted by the weapon of the aforesaid bore. It is vehemently submitted that PW-6 has identified the accused - appellant in Court during her testimony. Hence, there is no infirmity and illegality in the impugned order/ judgment which calls for any interference by this Court. 15. We have considered the submission made by learned Amicus Curiae for appellant and learned AGA for State and perused the record. 16. Learned Trial Court has opined that the occurrence of this case had taken place inside the house of deceased. Hence, in such situation only the family member can be the eye witness. There is no doubt that when an occurrence takes place inside the house, only the family members and the relatives are eye witnesses but in this case in hand, the testimony of alleged eye witnesses do not inspire confidence. 17. Informant has admitted that he had not seen the occurrence. PW-4 and PW-5 are other alleged eye witnesses but there are several material contradictions in their evidence which go to the root of the case. PW-6 is also the family member and the learned AGA has contended that she had identified the appellant at the time of her testimony but in her opinion the conduct of this witness is highly unnatural. She has stated in her cross examination that at the time of occurrence, her father was not present in the house and after returning also her father did not ask from her or other family members regarding the incident. She has further stated that nobody in the family told to the police authority that as to who had fired on the decease. She has further stated that nobody in the family told to the police authority that as to who had fired on the decease. It is also pertinent to note that Investigating Officer did not record the statement of this witness, during the course of investigation under Section 161 Cr.P.C. as stated by learned Amicus Curiae for appellant. 18. Moreover, according to her, all other family members were also in the house at the time of occurrence but their testimony is not found liable as discussed above. 19. There is no doubt that ante-mortem injury shown in the post-mortem report could be inflicted by fire arms but prosecution has to prove beyond reasonable doubt that fire arm was used by accused - appellant. The testimony of PW-6 is not wholly reliable and not corroborated by any other evidence. The learned Trial Court has convicted the appellant by placing reliance on the testimony of alleged eye witnesses who are family members of the deceased but their evidence is not found reliable. 20. In our considered view, as discussed above, their testimony is not found reliable and prosecution have failed to prove that the offence is committed by accused - appellant. It is also pertinent to mention that the FIR of this occurrence as alleged is exaggerated because in the FIR, it is mentioned that there were three persons who had indiscriminately fired at the deceased. While during the course of investigation the evidence was found only against the appellant as per Investigating Officer and only the appellant was charge-sheeted. This fact goes to show that there is exaggerated version of the incident in the FIR and the informant has not seen the occurrence because in his testimony as PW-1, he has admitted this fact that he had not seen the incident and he was not present at the house when the incident took place. It is mentioned in the FIR that there were three unknown persons who had committed offence and the informant did not know their names. No identification parade was done. 21. The accused can be convicted on the basis of sole testimony of eye witness but his testimony should be wholly reliable. It is mentioned in the FIR that there were three unknown persons who had committed offence and the informant did not know their names. No identification parade was done. 21. The accused can be convicted on the basis of sole testimony of eye witness but his testimony should be wholly reliable. In our case, no testimony of any alleged eye witness is found reliable by us and we are of the considered opinion that the accused - appellant has wrongly been convicted and sentenced by the learned Court below as he was entitled to be acquitted on the basis of doubt created by the prosecution evidence, hence, we upturn the impugned judgment and the accused-appellant is entitled to be given benefit of doubt as prosecution has failed to prove the case against him beyond reasonable doubt. 22. Appeal is liable to be allowed and is, accordingly, allowed. The conviction and sentence of the accused - appellant is set aside. He is acquitted of the charge framed against him. The amount of fine be refunded to the appellant, if already deposited. The appellant be set free forthwith, if not wanted in any other cases. 23. The record and proceedings be sent back to the Trial Court forthwith. 24. We direct the High Court Legal Service Committee to disburse a sum of Rs.15,000/- to Sri Uttar Kumar Goswami, learned Amicus Curiae for his well assistance.