Ashok Singh alias Mintu Singh (Pintu) and Others vs State of U.P.

A. Mateen, J.—Since these three criminal appeals arise out of one and the same judgment, the same are being heard and disposed of by this common judgment so far as the prayer for bail in these appeals is concerned.

The appellants have filed these appeals against judgment and order dated 17.12.2008 passed by Additional Sessions Judge/Fast Track Court No. 2, Gonda in Sessions Trial No. 177 of 2004 arising out of case crime No. 114-A of 2001, under Sections 147, 148, 342, 302/149, 325/149, 323/149 IPC, police station Nawabganj, district Gonda, convicting the appellants under Sections under Sections 147, 148, 304 (Part-1)/149, 342 and 323/149 IPC and sentencing them for the maximum term of life imprisonment with fine stipulation.

In brief the story of the prosecution as comes out is that on 09.09.2001 at about 11.00 am. when Chandreshwar Pratap Singh was coming on a jeep towards Nawabganj and almost when he reached Nawabganj, a vehicle was standing in the middle of the road as such the vehicle in which Chandreshwar Pratap Singh was travelling, stopped. The driver of his jeep tried to maneuver and cross the vehicle standing there, but the accused persons, who were eleven in number and were armed with hockey, batten, iron rod, rifle and gun, pulled Chandreshwar Pratap Singh from the jeep and started assaulting him by their respective weapons. It is the case of prosecution that Chandreshwar Pratap Singh was also struck by the butt end of rifle and gun and thereafter he was dragged to a nearby house having an iron channel. Chandreshwar Pratap Singh was pulled inside the channel and again he was beaten there mercilessly by the accused persons by their respective weapons. On the intervention of certain persons and witnesses, the accused persons fled away from the spot leaving behind Chandreshwar Pratap Singh in an injured condition.

Chandreshwar Pratap Singh was taken to the District Hospital, Faizabad by his mother Smt. Kusumlata Singh where his injuries were examined by Dr. Arvind Kumar Srivastava on the same day i.e. 09.09.2001 at 1.55 pm. The doctor found seventeen injuries on his person. The doctor opined that all the injuries were caused by blunt object and were fresh in nature. Later on, Chandreshwar Pratap Singh was taken to the Mayo Hospital, Lucknow where he was admitted. However, in spite of medical aid provided to Chandreshwar Pratap Singh, he expired on 16.09.2001.

FIR of the case was lodged on 11.09.2001 at 14.15 pm. at police station Nawabganj, district Gonda by one Shiv Bux Singh (PW-1).

We have carefully gone through the judgment as well as record of lower court, statement of witness, injury report of injured Chandreshwar Pratap Singh as well as his postmortem report.

Admittedly, Chandreshwar Pratap Singh on the day of lodging of the FIR i. e. 11.09.2001 was still alive and thus, the FIR was lodged under Sections 147, 148, 342, 323, 506 and 308 IPC. After the death of Chandreshwar Pratap Singh, the case was converted u/s 302 IPC read with other sections.

Prosecution in support of its case examined Shiv Bux Singh as PW-1, Ram Naresh Singh as PW-2, Vijay Pratap Singh as PW-3 besides other formal witnesses. It is also relevant to indicate here that at the initial stage the case was investigated by the police of police station Nawabganj, but later on the case was transferred for investigation to CB.,CID, which after conclusion of the investigation submitted charge sheet against eleven accused persons.

It is a case where the complainant Shiv Bux Singh (PW-1) was informed by Ram Naresh Singh (PW-2) the manner in which the incident had taken place and in support of this case Vijay Pratap Singh, brother of the deceased, was also examined to prove the case although he was not an eyewitness. It is also relevant to indicate here that one of the appellants Sunil Tiwari also lodged an FIR at police station Nawabganj, district Gonda on 09.09.2001 at 9.10 PM vide case crime No. 114 of 2001 in whose premises the deceased was pulled in and as per prosecution case after closing the channel, he was beaten in which the police after investigation submitted a report u/s 169 Cr.P.C.

It has been argued on behalf of the appellants by Sri Nagendra Mohan that if even for the sake of arguments the prosecution story as it is set up by the prosecution, is accepted, in such a circumstances, the deceased should have received many more injuries than what has come out at the very first instance when he was examined at District Hospital, Faizabad i.e. he would have received more injuries than seventeen injuries found by the doctor in PHC, Faizabad; He submitted that the manner in which the appellants are said to have used their respective weapons is quite improbable and unnatural. In other words, it was submitted by learned Counsel that the weapons, i. e. rifle, gun and pistol which were in possession of the appellants, were not used in the way they ought to have been used as no shot was fired from them, rather the deceased was assaulted with the but end of said firearms. He vehemently submitted that this also goes to establish that the appellants did not harbour intention to kill the deceased. The ante mortem injuries also reveal that most of the injuries were caused on non-vital parts. Learned Counsel next argued that the F.I.R is highly belated and no plausible explanation is forthcoming from the prosecution side for this inordinate delay. It was submitted that the incident admittedly had taken place on 09.09.2001, F.I.R of which was lodged at a very belated stage on 11.09.2001. It was submitted that as per statement of Dr. Arvind Kumar Srivastava PW-5, the injured was brought to the hospital in an injured condition by his mother herself, as such, the F.I.R should have seen the light of the day without any delay, which in fact was lodged with a delay of more than two and a half days. It was further argued that at the first instance, Dr. Arvind Kumar Srivastava PW-5 had found seventeen injuries on the person of the injured, but from the post mortem report it is evident that the doctor conducting the post mortem had found only ten injuries on the body of the deceased Chandreshwar Pratap Singh which demolishes the prosecution story and the prosecution has not come forward with the correct and unvarnished version of the incident. Sri Nagendra Mohan vehemently submitted that there is no eyewitness account of the incident and only interested and partisan witnesses have been examined by the prosecution. There is long standing enmity between the parties. It was submitted that the most natural witnesses of the incident, i.e. the driver and the cleaner of the jeep, have been withheld by the prosecution, which also puts a dent on the prosecution case.

Rebutting the above arguments of the learned Counsel for the complainant, Sri Kr. Mridul Rakesh, learned Counsel appearing for the complainant, submitted that on 14th September 2001 vide Exhibit Ka-15, the first Investigating Officer of the case (Sri Lalmani, PW-11) had recorded the dying declaration of the deceased and the dying declaration alone is sufficient to convict and sentence the accused persons under the aforesaid sections. This argument of learned Counsel for the complainant has been challaned by Sri Nagendra Mohan who submitted that the subsequent Investigating Officer of the C.B.,C.I.D to whom the investigation was transferred and has been examined as PW-10, had stated that the first Investigating Officer had not recorded any statement of the injured right from 09.09.2001 upto 16.09.2009, when the deceased met his ultimate. At the cost of repetition, it is worth mentioning that the deceased died after a week of the incident i.e. on 16.09.2001 and as per opinion of the doctor who had conducted the post mortem, the deceased died due to septicemia as a result of ante mortem injuries. Sri Nagendra Mohan stated that it cannot be said that the deceased died due to injuries allegedly sustained by him in the incident. Dr. Arvind Kumar Srivastava, PW-7, in his testimony has stated :

Mujhe yeh gyan hai ki sadharan choton ki dasha mein marij ke khud ki laparwahi wa uchit care wa treatment ke abhav mein infection ho jata hai.

Sri Kr. Mridul Rakesh, rebutting the arguments of Sri Nagendra Mohan stated that if the dying declaration Exhibit Ka-15 is accepted and it inspires confidence, then it alone would be sufficient to safely convict the appellants.

This argument of learned Counsel for the complainant to the effect that dying declaration of the deceased was recorded in which he has named the accused persons is concerned, suffice to mention that a dying declaration is entitled to great weight. But, at the same time, it cannot be lost sight that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination.

Their Lordships'' of the apex Court in the case of State of Rajasthan v. Yusuf reported in JT 2009 (7) SC 159 have observed:

In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (See Gangotri Singh Vs. State of U.P.,

In the case in hand, we find that in the dying declaration recorded by the first investigating officer on 14.09.2001 vide Exhibit Ka-15, nothing is mentioned therein to show that the doctor''s opinion was sought regarding the condition of the deceased. The dying declaration also does not mention about certificate of the doctor that the deceased was in a fit mental state to get his dying declaration or statement u/s 161 Cr.P.C. recorded. Admittedly, the dying declaration was recorded after about five days. As mentioned above, the dying declaration was recorded by the first investigating officer at a very belated stage, i. e. 14.09.2001 with respect to the incident of 09.09.2001. Even recording of any statement by the first investigating officer has been denied by the subsequent investigating officer of the C.B.,C.I.D. PW-10 Sri Ramesh Chand. We have already perused Exhibit Ka-15, statement u/s 161 Cr.P.C. purportedly recorded by the first investigating officer of deceased Chandreshwar Pratap Singh which the prosecution intends to project as the dying declaration of the deceased. It is typical statement u/s 161 Cr.P.C. giving detailed description of the incident. Thus the so-called dying declaration does not inspire confidence.

Our above view is in consonance with the observations of the Apex Court in the case of Shaikh Rafiq and Another Vs. State of Maharashtra, made in para-4. In the case in hand admittedly the deceased died in the hospital where doctors were available. Yet the Investigating Officer has not taken certificate of fitness from the doctor as to whether Chandreshwar Pratap Singh was in fit mental condition to get his statement recorded or not. The statement of the Investigating Officer is silent on this point, as such, the dying declaration of deceased Chandreshwar Pratap Singh does not inspire confidence.

Lastly, it has been put forward by the learned Counsel for the complainant that the appellants were having criminal history which has been hotly disputed by the learned Counsel for the appellants by filing rejoinder affidavit to the supplementary counter affidavit filed by the State wherein it is averred that many of the cases shown against the appellants have resulted in acquittal.

Considering the facts and circumstances of the case and the respective arguments advanced by the learned Counsels for the parties, we find force in the arguments advanced by Sri Nagendra Mohan that had the incident taken place and the deceased beaten in the manner alleged by the prosecution by as many as 11 persons, in such the case, the deceased would have suffered many more injuries. We also find force in the argument of Sri Nagendra Mohan that the prosecution has not come up with the true facts of the case since Dr. Arvind Kumar Srivastava PW-5 had found 17 injuries while as mentioned in the injury report, but the doctor who subsequently conducted the post mortem on the body of the deceased has found only 10 injuries.

In view of our observations made above, we are of the view that the appellants deserve to be released on bail.

Let appellants (1) Ashok Singh alias Mintu Singh (Mintu), (2) Shailesh Kumar alias Pappu Singh, (3) Om Prakash Tiwari, (4) Babu Ram Tiwari, (5) Sunil Kumar Tiwari, (6) Prem Nath Dubey, (7) Rudra Nath Dubey, (8) Indra Nath Dubey, (9) Sandosh Singh, (10) Ramji Tiwari and (11) Giresh Singh, convicts of above mentioned Sessions Trial be released on bail on each of them furnishing personal bond and two sureties each in the like amount to the satisfaction of learned Chief Judicial Magistrate, Gonda.

Realization of half of fine from the appellants is stayed. Remaining of the fine shall be deposited by the appellants within one month from the date of their release on bail.

Chief Judicial Magistrate, Gonda shall transmit to this Court photo copies of the bail bonds and sureties furnished by the appellants to be preserved on the record of the respective appeals.