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2024 DIGILAW 1024 (ALL)

Sarpal v. State of U. P.

2024-04-09

SIDDHARTHA VARMA, VINOD DIWAKAR

body2024
JUDGMENT : 1. Brief facts of the case necessary for the adjudication of the instant appeal are that on 5.7.2013 Karu @ Rajpal with his wife Ruma Devi, his elder brother Satyapal and his brother-in-law Karan Singh (Sala) was going from his Sasural at Khetapur to his village at Tikra in a bullock cart which is also called Danlap. At around 7:00pm three persons riding upon a motorcycle came from behind and asked them to stop the bullock cart. As per the first information report lodged by Satyapal, three miscreants had a scuffle with Karu and Satyapal and when they were reluctant to stop the bullock cart one person sitting on the motorcycle fired with an intention to kill Karu with a country made pistol. The shot hit the left side of the chest of Karu. After having fired, the three miscreants ran away on the motorcycle towards Tikara. The three of them, it has been stated in the first information report, were not very aged persons. The first informant could not recognize them. He has stated in the first information report that the dead body of the deceased was lying at the spot and he had gone to get the first information report lodged and he had requested for an investigation. Upon the lodging of the first information report, investigation commenced. It has been stated by the P.W.-8 that during the investigation on 7.7.2013 on the statement having been given by Ruma, the case which was earlier registered under Section 302 IPC was also registered for Section 394 IPC. Thereafter, it has been stated that on 14.7.2013 when a call came from the first informant Satyapal on the CUG number of the police, the accused Sarpal was apprehended. At the time of his arrest, he had, as per the recovery memo prepared on 14.7.2013, taken the names of Ram Babu s/o Rameshwar and Mukesh son of Sompal Singh and had stated that these persons had accompanied him at the time when he had killed Karu @ Rajpal. During the arrest of the accused, a country made pistol was recovered and, therefore, the case had an added Section for investigation under Section 25 of the Arms Act and since the Kadas (silver bangles) of Ruma were recovered, Section 411 IPC was also added. 2. Investigation thereafter commenced and the Police forwarded two separate charge sheets. During the arrest of the accused, a country made pistol was recovered and, therefore, the case had an added Section for investigation under Section 25 of the Arms Act and since the Kadas (silver bangles) of Ruma were recovered, Section 411 IPC was also added. 2. Investigation thereafter commenced and the Police forwarded two separate charge sheets. In one charge sheet, charges were framed under Section 302, 394 and 411 IPC and in the other, charges were framed under Section 25 of the Arms Act. 3. The Additional Sessions Judge, Chandausi, Moradabad, framed charges against Sarpal under Sections 302/34, 394, 411 of I.P.C. Similarly, on the very same day, by a separate charge-sheet, Sarpal was charge-sheeted under Section 25 of the Arms Act. When the accused had denied the charges, the case was put to trial. Before the Trial Court, the prosecution produced as many as ten prosecution witnesses. 4. PW-1, Mahendra Pal Singh, who scribed the first information report, has stated that on the dictation of the PW-4 Satyapal, the first information report was written down by him for being lodged before the Police Station and that the first information report was dictated, in fact, at the Thana. 5. PW-2, Rooma Devi, who was the wife of the deceased, has in her examination-in-chief stated that the incident had occurred while she was going from her Mayka to her Sasural at Tikra and in between when they had crossed Faridpur and had reached Bahroli, three persons on a motorcycle had accosted the bullock cart and approached her husband and asked about some directions etc. One out of the three miscreants had a scuffle with her husband and pulled him out of the bullock cart. She states that at the time of the incident she was wearing two silver kadas (silver bangles) and one of the three accused persons pulled out the silver bangles and, because of the fact that she was frighted she gave the other one also of her own accord. She, in her statement, takes the name of one Mukesh, whose name she states was mentioned by one of miscreants and she further states that Mukesh was exhorted by the other accused persons and he was directed to do as they wished and, therefore, one person from the three of them shot the husband dead. She, in her statement, takes the name of one Mukesh, whose name she states was mentioned by one of miscreants and she further states that Mukesh was exhorted by the other accused persons and he was directed to do as they wished and, therefore, one person from the three of them shot the husband dead. The bullet struck in the left side of the chest of her husband and thereafter he died. 6. During the statement being given in the Court, the PW-2 recognized the accused who was present in the Court and stated that he was the person who had shot at her husband. She thereafter states that her Jeth (brother-in-law) Satyapal who was accompanying them had got the first information report lodged. In her cross-examination she has specifically stated that at the point of time when the silver bangles were being snatched, her Jeth (brother-in-law) was present in the bullock cart. Further in her cross-examination she states that when she was taken to the Thana she had seen the accused and before that she had never seen him. She states that she had reached the Thana three days after the incident and had seen the accused there. At the Thana, she was shown the silver bangles which had been robbed from her. She also very categorically states that the silver bangles (kadas) were not sealed but were kept in the open at the Thana. She very categorically states that the person who was driving the motorcycle was wearing a helmet. 7. P.W.-3, Khempal, was the Head Constable who had proved the chik report and the General Diary. 8. P.W. 4, Satyapal, who is the elder brother of the deceased and the brother-in-law (jeth) of Rooma Devi, has again stated that on the 5th of July, 2013 at around 7:00pm to 7:15pm, the incident had occurred while the four of them were sitting in the bullock cart. He also states that from behind them a motorcycle came which was carrying three persons. He also states that there was a scuffle between his brother and the three of them and his brother had tried to resist. They took away the silver bangles of his sister in law and they also shot dead his brother. 9. He also states that from behind them a motorcycle came which was carrying three persons. He also states that there was a scuffle between his brother and the three of them and his brother had tried to resist. They took away the silver bangles of his sister in law and they also shot dead his brother. 9. In the examination-in-chief on 7.2.2015 itself he states that on 14.07.2013 when he was standing by the side of the khadanja in his village, he sited the accused persons who had killed his brother and thereafter he had phoned the Police. He states that thereafter when the Police apprehended the accused, he had also reached the spot alongwith Karan Singh, Satish and Chandrakesh and from the accused a country made pistol, 2 to 3 bullets and silver bangles were recovered. He very categorically states that the person who was driving the motorcycle was not wearing any helmet and the two other pillions had covered their faces. PW-4 in his cross-examination has further stated that the person who was driving the motorcycle was not wearing a helmet and his face was not covered whereas the two other persons who were on the pillion had their faces covered. 10. PW-4 has further in his cross-examination on 21.8.2015 again stated upon being questioned as to whether he was there on the spot and he has stated that he was not in fact there on the spot and that whatever statement he had given earlier was so stated because he was tutored and that he wanted to support his deceased brother’s wife. He thereafter stated that because on that day the deceased brother’s wife Rooma was not present in the Court, he was giving the correct statement and, therefore, he was stating that he was actually not there on the spot. He has stated that for the first time he had seen the accused sitting at the Thana and has stated that at the Thana itself the silver bangles, the country made pistol and the bullets were sealed and at the Thana only Chandrakesh and Satish who were the witnesses of the recovery had signed the recovery memo. He had also denied all that had been recorded by the investigating Police under Section 161 of Cr.P.C. 11. PW-5 was the Sub-Inspector Naresh Kumar and he had proved the Panchnama. 12. He had also denied all that had been recorded by the investigating Police under Section 161 of Cr.P.C. 11. PW-5 was the Sub-Inspector Naresh Kumar and he had proved the Panchnama. 12. PW-6 is Karan Singh, brother of Rooma Devi and the brother-in-law(sala) of deceased. He recollects while giving the statement, as to how the accused was arrested after around eight days of the incident and how the two silver bangles were recovered. In his cross-examination in a very confused manner he states as to how much cash was recovered from the accused persons. At times he states that around Rs. 200-220 were there and, thereafter he states that Rs. 255 were there. 13. PW-7 is the Inspector Rajveer Singh who was a formal witness. 14. PW-9 is the doctor, B.K. Goyal, who had done the postmortem and had proved the same. He has very categorically stated that a bullet was also found from the body of the deceased and that it had been sealed and had been sent to the Police. 15. PW-10 is the Investigating Officer, Braj Mohan Gautam, who had in fact done the investigation. 16. After the examination of the prosecution witnesses, the accused Sarpal got his statement recorded under Section 313 Cr.P.C. and categorically denied having committed the crime. 17. Upon the consideration of all the evidence on record as was brought by the prosecution and the defence the Additional Sessions Judge, Chandausi, Moradabad convicted the accused under Sections 302/34, 394 and 411 of I.P.C. and under Section 25 of the Arms Act. 18. Aggrieved thereof the appellant Sarpal has filed the instant appeal. Learned counsel for the appellant has argued :- (i) The case as was brought forth by Satyapal by means of the first information report itself gets falsified the moment he gave his statement that he had given all the statements before the Police under Section 161 of Cr.P.C. and before the Court on 07.02.2015 under some pressure and because of the fact that his deceased brother’s wife was present. Learned counsel for the appellant states that when the person who had got the first information report lodged himself was stating that he was not present at the spot and that he had never seen the incident then the only conclusion would be that the appellant had been falsely implicated and that he should be acquitted. Learned counsel for the appellant states that when the person who had got the first information report lodged himself was stating that he was not present at the spot and that he had never seen the incident then the only conclusion would be that the appellant had been falsely implicated and that he should be acquitted. (ii) Learned counsel for the appellant further states that even if the statement as was given by the PW-4 Satyapal on 21.08.2015 was shelved, the appellant deserves to be acquitted. He submits that the statement as was given by PW-1, the scribe of the first information report is analysed, the case as had been taken by prosecution cannot be believed. Learned counsel for the appellant states that PW1 had stated that he had not seen the injuries and that he had also never given his statement/opinion about the injuries. Learned counsel for the appellant therefore states that his presence at the time of the inquest becomes doubtful and he submits that in fact/the inquest was not prepared in the manner it had been produced in the record. Learned counsel for the appellant thereafter states that PW2 also does not give a very reliable evidence. She has stated that she was sitting on the back side of the bullock cart and that she was in parda, yet she gave the statements as if she had seen the incident. Learned counsel for the appellant states that she on the basis of the information which she had got from the arrest memo and the recovery memo prepared on 14.07.2013 takes the name of Mukesh and alleges he was present at the time of the incident whereas neither in the first information report nor in the statement of any of the prosecution witnesses the name of Mukesh had been mentioned. Learned counsel for the appellant states that she had stated that the driver of the motorcycle was wearing a helmet whereas the PW-4 Satyapal who had got the first information report lodged on 07.02.2015 in his cross-examination had very categorically stated that driver was not wearing any helmet and that the pillion riders’ faces were covered. Learned counsel for the appellant states that this discrepancy had crept in because PW-4 wanted to give out that he could recognise the accused. Learned counsel for the appellant states that this discrepancy had crept in because PW-4 wanted to give out that he could recognise the accused. In fact, learned counsel submits that the driver was wearing a helmet and therefore nobody could have recognised him. (iii) Learned counsel for the appellant further states that PW-4 who was the actual witness of the whole incident and an eye-witness of the incident and had also got the first information report lodged had categorically stated in his statement before the Court that he had given all the 10 statements before the Police under pressure and before the court because he was trying to support his dead brother’s wife and that in fact he was not there at the spot. Learned counsel for the appellant further states that the appellant had not recognized the three assailants and only had recognized the accused-appellant in the Court and he states that dock identification was no identification when in fact the appellant’s name was not mentioned in the F.I.R. and also when no test identification parade was undergone. In this regard, learned counsel for the appellant relied upon a decision of the Supreme Court reported in (2022) 9 SCC 402 : Amrik Singh vs. State of Punjab and submitted that it would be unsafe to convict an accused solely on the basis of his identification for the first time in the Court. Learned counsel for the appellant further to bolster his case with regard to the fact that the identification of the accused for the first time in Court was a weak piece of evidence, relied upon (1979) 3 SCC 319 : Kanan and others vs. State of Kerala and submitted that identification by a witness of the accused in Court raises a serious doubt and his testimony must be excluded. Still further he relied upon (1971) 2 SCC 715 : Rameshwar Singh vs. State of Jammu and Kashmir and submitted that if the accused was not previously known to the witness then an identification parade ought to have preceded the dock identification. Learned counsel for the appellant stated that though as per the decision of the Supreme Court in (2003) 5 SCC 746 : Malkhan Singh and Ors. Learned counsel for the appellant stated that though as per the decision of the Supreme Court in (2003) 5 SCC 746 : Malkhan Singh and Ors. vs. State of Madhya Pradesh evidence in Court was a substantive evidence but he submits, relying on the very same case law that if the recognition in the Court by the witness of the accused was not preceded by a test identification then the evidence would be categorized as a weak evidence. No or little weight should be attached to the evidence of identification in Court, which is not preceded by a test identification. (iv) Learned counsel for the appellant further states that if the first information report is looked into it was a clear case reporting a murder where in the accused persons had approached the persons sitting in the bullock cart with an intention to kill but subsequently to give a motive to the case, the case of snatching of two silver bangles was introduced and he submits that the entire case therefore become falsified. (v) Learned counsel for the appellant states that at the time of the recovery and the arrest of the accused, he had mentioned the names of Ram Babu S/o Rameshwar and Mukesh S/o Sompal but absolutely no efforts were made to search them out and arrest them. Learned counsel for the appellant therefore states that the Police/Investigating Agencies only to give credence to the story as was put in the first information report had recorded a statement that the other two accused persons were Ram Babu and Mukesh. (vi) When the country made pistol was recovered and the bullet was also recovered from the body of the deceased then the only logical conclusion was that the firearm ought to have been connected with the bullet and in the absence of any forensic laboratory test no reliance can be placed on the recovery. 19. Sri Rahul Asthana, learned A.G.A. in opposition to the argument made by the learned counsel for the appellant states that three persons namely Satyapal, Karan and Rooma were the eye-witnesses and their statements could not be disbelieved even if they had certain discrepancies. Learned A.G.A. further submitted that in fact the death had happened and the incident could not be denied. The F.I.R. version if is looked into, it clearly revealed that three persons had accosted the deceased and they had fired at him. Learned A.G.A. further submitted that in fact the death had happened and the incident could not be denied. The F.I.R. version if is looked into, it clearly revealed that three persons had accosted the deceased and they had fired at him. Resultantly, the deceased had died. Learned A.G.A. submits that the F.I.R. is not a complete encyclopedic of facts and, therefore, even if the fact with regard to the snatching of the silver bangles was not mentioned in the first information report it would make little difference. The fact of the matter was that the appellant was there on the spot and that he had fired upon the deceased and, therefore, should compulsorily be convicted. 20. We have heard Sri Rajesh Kumar Vishwakarma, learned counsel for the appellant and Sri Rahul Asthana, learned A.G.A. The case taken by the prosecution was that three individuals had accosted a bullock cart which was carrying the deceased Karu @ Rajpal, Rooma his wife Satyapal his elder brother and Karan the brother of his wife. Further, the case of the prosecution is that upon the incident having happened i.e. after Karu @ Rajpal was shot dead, the PW-2 Satypal, elder brother of the deceased, had called the PW-1 namely Mahendra Pal Singh, who was an educated person, to get the first information report lodged and the first information report was got lodged within one hour and forty minutes. Thereafter, we find from the records and from the arguments made by the learned A.G.A. that after three days of the incident in a statement given by Rooma Devi she had stated that she was taken to the Thana and she had stated that two of her silver bangles had been removed from her hands during the incident and, thereafter, the case was also investigated under Section 394 of I.P.C. We further find that after nine days of the incident when the accused was arrested, a country made pistol was recovered from him along with two bullets and also two silver bangles were recovered from him. However, from the statements recorded, we do find as has been argued by the learned counsel for the appellant that the statements of PW-1 and PW-4 who had scribed of the F.I.R. and the person who had lodged the F.I.R. respectively were not believable. However, from the statements recorded, we do find as has been argued by the learned counsel for the appellant that the statements of PW-1 and PW-4 who had scribed of the F.I.R. and the person who had lodged the F.I.R. respectively were not believable. The PW-4 has in his cross-examination before the Court categorically stated that he was not there on the spot and that whatever statement he had given in the court was under the pressure of the Police and that he had wanted to give solace to the deceased brother’s wife, Rooma. Further we find that even the statement given by Rooma Devi has any number of contradictions. She has stated that the driver was wearing a helmet whereas the PW-4 has stated that the driver was not wearing a helmet. Definitely any sane mind would conclude that Rooma Devi had given the statement innocently whereas PW-4 Satyapal to make out a case that he actually recognised the driver had stated that the driver was not wearing a helmet. Still further we find that the F.I.R. had not mentioned any name of the assailants/accused. The first time the prosecution witnesses recognised the assailants was in the Court and, therefore, in the absence of any test identification parade, the dock identification was an absolutely useless piece of evidence. The prosecution witness no. 2, Rooma Devi also has given a statement that the accused was introduced to her in the Thana and that she was able to recognise him because he was shown to her in the Thana. All this definitely goes show that the prosecution had planted a case which cannot be believed. 21. The Appeal is, thus, a fit case to be allowed. The judgement and order dated 23.1.2018 passed by Additional Sessions Judge, Chandausi, District -Moradabad in S.T. No. 1008 of 2013 (State vs. Sarpal) arising out of Case Crime No. 270 of 2013, under Sections 302/34, 394, 411 IPC and in S.T. No. 1009 of 2013 (State vs. Sarpal) arising out of Case Crime No. 285 of 2013 under Section 25 of the Arms Act, Police Station – Bahjoi, District – Sambhal, which are based on absolutely unbelieveable evidence is set aside. 22. The accused-appellant is, therefore, acquitted of the charges under Section 302/34, 394 and 411 of I.P.C. 23. 22. The accused-appellant is, therefore, acquitted of the charges under Section 302/34, 394 and 411 of I.P.C. 23. Since we also find that even though the bullet was recovered from the body of the deceased and the firearm was recovered on 14.07.2013 in the presence of two independent witnesses, no effort was made to connect the firearm with the bullet, the case as was brought forth under Section 25 of the Arms Act also is not believable for the reasons mentioned above. The appellant is also acquitted in the Case Crime No. 285 of 2013, under Section 25 of the Arms Act, P.S. -Bahjoi, District – Sambhal. 24. The appeal is, therefore, allowed and the judgment and order dated 23.01.2018 is quashed and is set aside. 25. The appellant – Sarpal, who is reported to be in jail, be released forthwith if he is not required in any other case.