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2024 DIGILAW 1933 (ALL)

Karan Singh v. State of Uttar Pradesh

2024-08-27

RAM MANOHAR NARAYAN MISHRA, SIDDHARTHA VARMA

body2024
JUDGMENT : 1. Instant Criminal Appeal has been preferred under Section 374 Cr.P.C. against the judgment and order dated 26.05.1982 passed by Special Judge, Additional Session Judge, “Dakaiti Prabhawit Chhetra Banda, in Sessions Trial No.318 of 1981, convicting the appellants under Sections 148, 307 read with 149 and under Section 302 read with section 149 I.P.C., whereby the accused appellants were convicted. For the charge under Section Section 148 IPC, they were sentenced to three years rigorous imprisonment. For the charge under Section 307/149 IPC they were sentenced to 7 years rigorous imprisonment and for the charge under Section 302/149 the appellants were sentenced to life imprisonment. In the impugned order dated 26.05.1982 all the sentences were directed to run concurrently. 2. Heard learned counsel for the appellants and Sri Amit Sinha learned A.G.A. for the State-respondents and perused the material available on record. 3. Upon an incident having taken place on 30.05.1981, a First Information Report was lodged by the Sub Inspector Balbir Singh stating that on an application given by one Ram Bali, the Sub Inspector Balbir Singh alongwith Dharam Singh had visited the village. These two Sub Inspectors were accompanied by Om Prakash Singh and Ram Narayan constables. When they started from their police station they passed through a village called Bhabhuwa where the police party was joined by constables Jagdev Singh, Indu Khan and Jeevan Lal, and thereafter they reached the village Imiliha Purwa at around 10:30 am. The Sub Inspector Balbir Singh in an effort to investigate into the complaint made by Rambali questioned the villagers, and it so transpired that two of the persons who were named in the complaint namely Amar Singh and Shamsher Singh were hiding in a house of one Bihari Chamar. It also came to his knowledge that the two persons against whom the complaint was made by Rambli were carrying fire arms. When the police personnel reached the house of Bihari Chamar, the two accused persons namely Amar Singh and Ramesh Singh went out of the house and also hurled abuses on the police party and said that the members of the police party would be done away with. When the police personnel reached the house of Bihari Chamar, the two accused persons namely Amar Singh and Ramesh Singh went out of the house and also hurled abuses on the police party and said that the members of the police party would be done away with. The police party as has been stated in the FIR hid behind a wall and started facing the bullets as were being fired by Amar Singh and Shamsher Singh and thereafter to protect themselves in their defence they also started firing. The Sub Inspector Dharam Singh very valiantly went into the enclosure where Amar Singh and Shamsher Singh were hiding and as he crossed the house where they were hiding, they were assailed by constant firing and S.I. Dharam Singh in the process got injured. It has been stated in the FIR that the bullet which was fired by Amar Singh, had actually hit the Sub Inspector Dharam Singh. The police party thereafter intensified its firing and entered the house and took out Dharam Singh from the house which he had entered, and Om Prakash Singh constable was instructed to arrange for a vehicle to take him to a hospital and thereafter the five accused namely Amar Singh, Karan Singh, Shamsher Singh and Vijay Singh who were residents of the village Rudauli, Police Bhaberi ran away alongwith Bhairo Singh who was a resident of village Turra, Police Station Bhadausa. However, Balwant Singh the sixth accused, while running away, got injured by the firing of the police and he hid himself in the house of Bihari. In an effort to oust him from the house, the Sub Inspector Balbir Singh put the house on fire, and thereafter Balwant came out of the house and was injured to such an extent that he also died. 4. Learned counsel for the appellant further submitted that the FIR was thereafter lodged by Sub Inspector Balbir Singh on 31.05.1981 and that was made an exhibit in the case. The police while investigating, prepared certain recovery memos with regard to the bullets etc. which were found on the spot and that recovery memo was exhibited as Ext. Ka-3. The revolver of Dharam Singh which had got damaged was also recovered and the recovery memo was exhibited as Ext. Ka-4. The police while investigating, prepared certain recovery memos with regard to the bullets etc. which were found on the spot and that recovery memo was exhibited as Ext. Ka-3. The revolver of Dharam Singh which had got damaged was also recovered and the recovery memo was exhibited as Ext. Ka-4. The plain soil and the soil with blood was also taken by the police and a recovery memo was also got prepared, which was exhibited as Ext. Ka-5. Ext. Ka-6 was with regard to the guns and bullets of the accused which were recovered from the spot. Since the house of Bihari was burnt, the ash was also kept as evidence and the recovery memo which was prepared was exhibited as Ext. Ka-7. The dead body of the deceased Dharam Singh and Balwant were sent for postmortem and their report were also prepared. 5. Upon the completion of the investigation on 05.12.1981 charges were framed against Karan Singh, Shamsher Singh, Vijay Singh and Bhairo Singh under Sections 148, 307/149, and Section 302/149 IPC. The first informant Balbir Singh Rathore was produced as prosecution witness No.1 and similarly Om Prakash the other companion constable who was also an eyewitness was produced as PW2. Ram Bali on whose complaint the police party had gone to the house of the Bihari where allegedly Amar Singh and Shamsher Singh hid, was produced as PW3. Dr. Vikas Chandra who had done the postmortem on the dead body of the Dharam Singh was produced as PW-4. Another eyewitness Bhagwandeen from the public was produced as a prosecution witness 5. Dr. R.N. Mathur was the doctor who had done the postmortem on the dead body of Balwant as he was produced as PW6. Sri S.L. Pandey, who was the Sub Divisional Magistrate in whose presence the panchayatnama was prepared, was produced as prosecution witness 7. R.S. Singh was the Sub Inspector who had got the dead body of Dharampal for postmortem and he was produced as PW-8. Jawahar Lal the second Investigating Officer was produced as PW9. Since charges were framed against Karan Singh, Shamsher Singh, Vijay Singh and Bhairo Singh, on 05.12.1981 their trial was proceeded as Sessions Trial No.314 of 1981. However the trial of the accused Amar Singh was conducted in Sessions Trial No.354 of 1982. He was charged by the order dated 18.01.1983. Jawahar Lal the second Investigating Officer was produced as PW9. Since charges were framed against Karan Singh, Shamsher Singh, Vijay Singh and Bhairo Singh, on 05.12.1981 their trial was proceeded as Sessions Trial No.314 of 1981. However the trial of the accused Amar Singh was conducted in Sessions Trial No.354 of 1982. He was charged by the order dated 18.01.1983. The four accused Karan Singh, Shamsher Singh, Vijay Singh and Bhairo Singh upon their conviction on 26.05.1982 filed an Appeal No.1403 of 1982. The appellant Amar Singh was convicted by the judgment and order dated 09th of July 1984 and he filed Appeal No. 2022 of 1984 in this Court. 6. The appeal No. 2022 of 1984 abated on 12.01.2024, as the appellant Amar Singh had died. In Criminal Appeal No.1403 of 1982, since the appellant Nos. 1, 2 and 3 namely Karan Singh, Shamsher Singh and Vijay Singh had died, the appeals had abated on two different dates namely 05.10.2007 and 12.01.2024. The appeal vis-a-vis Bhairo Singh alone was argued by Sri Naresh Chandra Tripathi, learned counsel for the appellant. 7. While arguing the appeal of Bhairo Singh being Criminal Appeal No.1403 of 1982, learned counsel for the appellant took the court through the statements of the prosecution witnesses. When the learned counsel for the appellant took us through the statement in chief of the PW1 namely Balbir Singh, the court found that PW1 had elaborately described the incident and had also stated in his statement in chief the reasons as to why he had implicated the six accused persons. Through the statement in chief of PW1 the court was made aware again as to how on the application of Rambali, the police party comprising Balvir Singh, Dharam Singh, Om Prakash and Ram Narayan had started from the police station and while crossing village Bhabhuwa had also taken with them the constables Jagdev Singh, Indu Khan and Jeevan Lal. The incident ultimately occurred at the village Imiliha Purwa at 10:30 am. In the examination in chief PW1 has vividly described as to how the police party was given the information by an informer that the accused persons were hiding in the house of Bihari and that the accused were thereafter surrounded and in the exchange of firing the Sub Inspector Dharam Singh had died. In the examination in chief PW1 has vividly described as to how the police party was given the information by an informer that the accused persons were hiding in the house of Bihari and that the accused were thereafter surrounded and in the exchange of firing the Sub Inspector Dharam Singh had died. In the cross-examination the PW1 has narrated as to how he had known the two accused persons chiefly Amar Singh and Shamsher Singh. He had stated that they were members of a notorious gang and that their registration number was D-72, and they were also involved in other similar cases. The PW1 had specifically stated that after he was posted in the relevant police station he had also visited the village around 1415 days before the incident had occurred. With regard to the cross-examination done vis-a-vis Karan Singh, Shamsher Singh, Vijay Singh the PW1 was consistent with what he had stated in the statement in chief and he stood firm by all the statements made therein. However when the cross examination vis-a-vis Bhairo Singh was being done the PW1 had only stated that despite the fact that Bhairo Singh was of a different village namely village Turra of police station Bhadausa he had started living in the village were Amar Singh and Shamsher Singh were living and that he was a constant visitor there, and therefore he had correctly recognized him. 8. Since the learned counsel for the appellant had taken us to the statements of Om Prakash PW2, Rambali PW3 and Bhagwan Deen PW5, the court went through them and commonly found that they had also stated somewhat similar facts as were stated by PW1. However, from the statements of the eye-witnesses which were read out it is no-where clear that how exactly Bhairo Singh who was an outsider was recognized by the police party from before i.e. before the first information report was lodged. 9. Learned counsel for the appellant Sri N.C. Tripathi, has chiefly argued as follows:- (i) Learned counsel for the appellant has stated that if the FIR was perused, then it becomes clear that the Sub Inspector Balbir Singh was as per the averments made in the FIR meeting the six accused persons namely Amar Singh, Karan Singh, Shamsher Singh, Vijay Singh and Bhairo Singh for the first time. However while getting the FIR lodged he had not only mentioned the names of all the accused persons, but had also mentioned the names of their fathers. He also knew as to how Amar Singh and Karan Singh were real brothers and that they were the sons of Shripal. He also knew that Shamsher Singh and Vijay Singh were also real brothers and they were the sons of Shiv Mangal Singh. Learned counsel for the appellants also argued that it was definitely not possible on the date when the FIR was being lodged to know the names of the appellants and also the names of their fathers, specially when Bhairo Singh was a resident of village Turra Police Station Bhadausa and was only occasionally visiting Amar Singh and Shamsher Singh, whose details were also vividly known to the police. Learned counsel for the appellants therefore states that a doubt would therefore arise, as to how the police party on the very first day knew the names of all the accused persons and also how they were related to each other and as to what was their parentage. (ii) Learned counsel for the appellants thereafter has submitted that even if it was taken for granted that Amar Singh and Shamsher Singh were members of notorious gangs and that they were also having a registration number being D-72, it was not possible for the police party to have known the name of Bhairo Singh or to have recognized Bhairo Singh on the spot, specially when Bhairo Singh was not assigned any role. (iii) Leaned counsel for the appellant further states that if the statement of eyewitness Bhagwan Deen is perused, it definitely becomes clear that he was an interested witness. Also the account of Om Prakash was only a reproduction of what the PW1 had stated. (iv) Learned counsel for the appellant states that if the entire record is seen and also if the statements in chief and also the cross-examinations are seen, then one thing definitely comes out in the open and that is that the application of the Rambali was nowhere to be seen. The application of Rambali was the basis on which the police party had gone and that application was never produced in the court. The application of Rambali was the basis on which the police party had gone and that application was never produced in the court. Learned counsel for the appellant states that to cover this up PW1 and the PW2 had stated that the application was with Dharam Singh the Sub Inspector who had died. However learned counsel states that neither from his clothes nor from his belongings the application was ever recovered. Learned counsel for the appellant therefore states that the entire incident becomes a doubtful one and simply because the police party was knowing the names of the accused they were made accused in the case. (v) Learned counsel for the appellant further states that for a moment it could have been said that Amar Singh and Shamsher Singh who were members of a notorious gang could have been recognized by the police, but definitely vis-a-vis Bhairo Singh an identification parade ought to have been undergone. In this regard, learned counsel for the appellant relied upon the judgment 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 of the accused by a particular witness 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. 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. 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. Learned counsel for the appellant therefore states that when the identification of Bhairo Singh itself becomes doubtful, then the appellant Bhairo Singh definitely could not have been implicated. (vi) Learned counsel for the appellant states that the police, specially the PW1 had throughout stated that he used to occasionally visit the village of the accused persons and that he used to also see Amar Singh and Shamsher Singh and also he used to see that Bhairo Singh was visiting Amar Singh and Shamsher Singh, but learned counsel for the appellant states that no-where in the GD entry of the police station it was entered that PW1 was in fact visiting the village and that for what purpose he was visiting the village. Also nowhere was it stated as to what did he actually find out there. (vii) Learned counsel for the appellant further states that if the panchayatnama of the Sub Inspector Dharam Singh is seen, then it becomes clear that the FIR was an ante dated FIR and he submits that when the panchayatnama was conducted at 01:35 pm, and the FIR itself was lodged on very same day at 03:00 pm, how the panchayatnama contained a Case Crime Number. Learned counsel for the appellant therefore states that everything further became doubtful. (viii) Learned counsel for the appellant also submits that the entire investigation was a defective one, as neither the ballistic expert report was called for nor the specimen of soil was at all sent to any forensic laboratory. 10. Learned counsel for the State Sri Amit Sinha assisted by Ms. Mayuri Mehrotra however has supported the judgment of the trial court dated 26.05.1982. He has submitted that the police was always knowing the criminals of the village, and therefore they always knew the names of the villagers. 10. Learned counsel for the State Sri Amit Sinha assisted by Ms. Mayuri Mehrotra however has supported the judgment of the trial court dated 26.05.1982. He has submitted that the police was always knowing the criminals of the village, and therefore they always knew the names of the villagers. He has also stated that the incident could not be denied as Dharam Singh the Sub Inspector had died and also Balwant had died as had been stated in the FIR. He states that Balwant was the last person fleeing from the spot and he had therefore faced the bullets and therefore had died on the spot. 11. Learned counsel for the State further states that there was absolutely no reason for falsely implicating the accused persons. He further states that Bhairo Singh was on bail and he had been implicated in various criminal cases, the details of which were given and are reproduced here as under:- 1. Case Crime No.200 of 1994 under Sections 323/504/506 IPC and Section 3(1)10 of SC/SC Act. 2. Case Crime No.380 of 1994 under Section 376/506 of IPC and Section 3(1)12 of SC/ST Act. 3. Case Crime No.426 of 1994, under Sections 302 IPC and Section 3(1)12 of SC/ST Act. 4. Case Crime No.334 of 1999, under Sections 323/324 IPC. 5. Case Crime No.40 of 2000, under Sections 110 Cr.P.C. 12. Having heard the learned counsel for the parties, the Court finds that the appeal being Criminal Appeal No.1404 of 1982 vis-a-vis Karan Singh, Shamsher Singh, Vijay Singh has abated. The appeal was argued only vis-a-vis the appellant No.4 Bhairo Singh. 13. From the entire perusal of the record and the arguments advanced by the learned counsel for the parties, this Court is of the view that PW1, even if he was in the know of the names of Amar Singh and Shamsher Singh, it was definitely not possible for the PW1 to have known that Amar Singh and Karan Singh were the sons of Shripal and that Shamsher Singh and Vijay Singh were the sons of Shiv Mangal Singh. Also the Court is of the view that when Bhairo Singh was a resident of another village namely Turra and was of a different police station being Police Station Bhadausa, then how the PW1 came to know the name of Bhairo Singh and how he came to know that he was now living in village Bhudhauli under police station Baberi. The Court is definitely of the view that the incident did take place, as Dharam Singh the Sub Inspector had died from the side of the police and that Balawant while running away in the last had got injured by the firing of the police and had also died. However, the Court definitely finds it doubtful that how Bhairo Singh was recognized in the absence of any identification parade and also when there was definitely no evidence on the record to have shown that Bhairo Singh was ever known to PW1 or to the other prosecution witnesses. So far as the criminal history was concerned it had no bearing on the decision of the instant appeal. 14. Under such circumstances, we are of the view that the implication of Bhairo Singh becomes doubtful, and therefore we are of the view that appellant Bhairo Singh be acquitted of the charges levelled against him. The appeal vis-a-vis appellant No.4 Bhairo Singh, therefore is allowed. 15. The impugned judgment and order dated 26.05.1982 passed by Special Judge, Additional Session Judge, “Dakaiti Prabhawit Chhetra Banda, in Sessions Trial No.318 of 1981, under Sections 148, 307 read with 149 and 302 read with 149 I.P.C. is set-aside, vis-a-vis the surviving appellant No.4 Bhairo Singh. He is acquitted from aforesaid charges. He need not surrender. The bail bonds are cancelled and the sureties are hereby discharged. The appeal vis-a-vis the appellant No.4 Bhairo Singh stands allowed. 16. Lower court record be sent back to court concerned for necessary compliance.