Bhawar Singh and Others vs State of U.P.

Rakesh Tiwari, J.—Heard Sri Satish Trivedi, senior counsel, assisted by Sri A.R. Gupta, for appellant No. 1. Sri V.P. Srivastava, senior counsel, assisted by Kavita Tomar and Sri Ajit Kumar Srivastava, for appellant No. 2, Sri V.S. Parmar. holding brief of Sri Vivek Singh, for appellant No. 3, Smt. Usha Kiran, learned A.G.A. for the State, and perused the record. This criminal appeal challenges the judgment and order dated 22.12.2010 passed by the District and Sessions Judge. Firozabad in Session Trial No. 314 of 2002, State v. Bhawar Singh and others, arising out by Case Crime No. 268 of 2000. By the Judgment impugned in the present appeal, the appellants have been convicted u/s 302 /34, I.P.C. and awarded sentence for life imprisonment and fine of Rs. 10.000 each. The judgment further provides that in case of default in payment of fine, the appellants shall serve one year additional imprisonment in lieu thereof.

Counsel for the appellants has assailed the impugned judgment on the ground that conviction and sentence of appellants is wholly unjustified and against the evidence on record; that the prosecution has failed to establish any motive of the appellants for committing the alleged offence, and that there is no independent witness to support the version of prosecution and the witnesses P.W. 1 and P.W. 2 who are close relatives of the deceased and highly partisan. It is also challenged that the court below has not only erred in convicting and sentencing the appellants by not appreciating the evidence of the prosecution witnesses properly, but has not considered that medical evidence also does not support the oral evidence as well as prosecution story and has convicted and sentenced the appellants on the basis of the statement of P.W. 1 -Santosh Kumar and P.W. 2-Ram Das; that sentence awarded is too. severe and in any case is liable to be set aside as the prosecution has failed to establish its case beyond reasonable doubt against the appellants.

The case of prosecution in brief is that a written report was submitted to the Station House Officer, Sirsaganj, District-Firozabad, on 18.6.2000 by the complainant-Santosh Kumar son of Sri Mukut Singh. R/o. Village-Darigapur, P.S. Sirsaganj, alleging therein that on 17.6.2000 at about 11.00 p.m., the complainant alongwith his brother Dinesh Kumar S/o. Sri Mukut Singh, R/o. Village-Darigapur, were going from his house to sleep at the tube-well. When they reached in front of house of Raghuvir Singh son of Sri Pitamber Singh, Ved Prakash son of Sri Genda Lal, Rajan Singh son of Sri Munshi Singh. Indradev Singh son of Sri Tej Singh, Bhamar Singh son of Sri Jahar Singh, all R/o. village-Darigapur (Bharol) having country made pistol met them and said to his brother Dinesh that he is living with Prem Kumar and doing pairvi in his case. On this, Dinesh Kumar said that Prem Kumar is his brother so they live together. Thereafter, on the signal of Rajan Singh, one of the accused, all the accused persons fired from their country made pistol upon Dinesh Kumar who died on the spot. Upon hearing the sound of firearm, Ram Das, Raj Bahadur and other residents of the village reached at the place of occurrence who recognized the accused persons at the place of incident in the light of torches and moon light and report of the incident was given to the police station-Sirsaganj. On the basis of written report, chick report was prepared and entry in G.D. was made on 18.6.2000 at 1.15 a.m. registering criminal case against the accused persons.

The case was investigated by S.O. Omvir Singh Tyagi, P.S. Sirsaganj. He prepared the inquest report. The recovery memo of plain and blood stained earth was prepared and sealed separately in two separate packets and sent the body of the deceased for post-mortem which was conducted on the cadaver of deceased Dinesh Kumar on 18.6.2000 at about 11.55 a.m. in the external examination of the body of the deceased he was reported to be aged about 22 years old having average built body. Rigor-mortis had passed out from neck and present in upper and lower extremities and that the deceased had received the following ante-mortem fire-arm injuries:

(1) Firearm wound of entry 2 cm. x 2 cm. x brain cavity deep on right parietal surface of scalp, near mid line, 14 cm. above the twinges of right ear. Margins are inverted and lacerated.

(2) Multiple firearm wound of entry on top of right shoulder, front of right shoulder and front of chest up to right nipple and upper half of right arm outer aspect average size. 0.3 cm. x 0.3 cm. x muscle deep to chest cavity deep. Margins are inverted and lacerated, in an area of 18 cm. x 17 cm.

(3) Firearm wound of entry on epigastric surface of front of abdomen. 14 cm. below the left nipple, at 7 O''clock position, on just left to mid line 2 cm. x 2 cm. x abdominal cavity deep. Blackening present in the area of 6 cm. x 6 cm. Wound margins are inverted and lacerated.

The internal examination showed that right parietal bone of the deceased was fractured. Membranes were lacerated and congested. The right pleura was lacerated and no abnormality was detected in the left pleura and a metallic bullet was recovered from brain cavity which was sealed for scientific examination. About 1/2 litres of blood had collected in the chest cavity of peritoneum membrane of stomach found ruptured which was filled with about a litre of blood and about 6 oz. pasty food and 22 pellets recovered from the brain and left kidney wall also sealed separately for forensic examination. In the opinion of doctor, death was caused due to Coma as a result of ante-mortem injuries.

On submission of the charge-sheet, the District and Sessions Judge, Firozabad framed charges against the accused persons for the offence u/s 302 /34, I.P.C., who pleaded not guilty to the same and claimed to be tried.

Before proceeding further the pedigree of the complainant''s family may be given for appreciation of the evidence.

The prosecution produced 7 witnesses, namely Santosh Kumar-P.W. 1, Ram Das-P.W. 2, Dr. R.K. Pandey-P.W. 3, Ghanshyam Sachan-P.W. 4, Omvir Singh Tyagi-P.W. 5, Ramesh Chandra-P.W. 6, Mohan Singh-P.W. 7 and Raj Bahadur-C.W. 1, in support of its'' case.

The contention of learned counsel for the appellant is that;

(1) The F.I.R. which was lodged at 1.15 a.m. on 17/18.6.2000 was ante-timed. The incident had actually been given effect on the chabootra of Raghubir Singh, by some unknown persons and not by the accused-appellants as has come in F.I.R. for falsely implicating them and it is for this reason that the court witness Raj Bahadur has not shown the place of incident in the site-plan and the injuries do not tally with the version of the eye-witness.

(2) The two witnesses P.W. 1-Santosh Kumar, who is the brother of the deceased and P.W. 2-Ramdas. though inimical to the appellants, has supported the defence case. Thus, there is material contradiction in the prosecution story.

(3) No motive against the appellants has been brought out and proved against them.

(4) There is no independent witness to support the version of prosecution.

The argument of counsel for the appellant is that the offence had been committed by some unknown persons in the night of 17.6.2000 at about 11.00 p.m. of which F.I.R. was lodged at about 1.15 a.m., i.e., after more than two hours of the incident on 18.6.2000 falsely implicating them. The distance of police station from the place of occurrence is about 10 km. It is stated that even if F.I.R. would have been lodged by 6.00 O''clock after inquest, the names of the accused would have certainly found place in it. Therefore, according to him, the said F.I.R. was lodged at the police station after the inquest. He has then placed evidence of P.W. 1. P.W. 2-Ram Das son of Bachan Singh stated that he had seen the accused in moonlight. The complainant-Santosh Kumar who was examined as P.W. I proved the written report as Ka-1. He has stated that accused Ved Prakash is real nephew of Rajan Singh and Indra Dev also is related to the family of the accused as reported that campaign for election of pradhan in the village was going on when incident had taken place. In the election, Shanti Devi wife of accused Bhanwar Singh, Indira Devi wife of Shiv Kumar and Urmila Devi wife of Virendra were contesting the election in which Indira Devi was declared winner and before her Bhanwar Singh the accused had been the pradhan of the village from 1988 to 1995, but does not know that during his tenure as pradhan any case u/s 115D in respect of house built by Bachan Singh, Mukut Singh and Raj Bahadur etc. was filed or not.

Regarding the incident, he has stated that he and his brother had not run away on seeing the accused persons. They had remained standing when accused standing on the chabootra had fired 4 shots at his brother from a distance of about 5 paces and after a minute had ran away. Some persons nearby came at the spot such as Jaiveer Singh, Agyaram and Keshav Singh etc., but the accused ran away in southern direction.

He then described the proceedings of the incident thereafter thus:

Thereafter in his cross-examination he stated that Prem Kumar is son of his ''tau'' (father''s elder brother) who had a quarrel with Ved Prakash in Holi festival in which Ved Prakash had injured Prem Kumar by firing upon him, but he (P.W. 1) has no enmity with Ved Prakash and he is falsely implicating him due to this or on ground of party-bandi in the village. He had left his house alongwith Raj Bahadur at about 11.00 p.m. for going to his tube-well to sleep. His house is at a distance of about 35 meters from the house of Raghubeer Singh. He had heard noise from about 20 meters and had reached the place of Incident within 2-3 minutes and heard noise of 4 firearm shots when he was about 15 meters from the place of occurrence from where he could see the incident taking place. He further stated in his cross-examination that Dinesh was injured by his shots on stomach, shoulder and hold, but could not tell which accused''s shot hit where and that the shots were fired from about 4-5 paces. It was moonlight and he had switched on his torch on hearing the firearm shot; that the chabootra of Raghubeer is 2 ft. higher than the way and he had seen the accused and Dinesh (since deceased) who were wearing pants and shirts.

He also then proceeded to give the factual details of proceedings with regard to the incident thus:

According to Sri Satish Trivedi, learned senior counsel, appearing for appellant No. 1, there is material contradiction in the evidence of witnesses for the prosecution. In this regard he had drawn our attention to the statement of Santosh Kumar-P.W. 1. complainant and brother of the deceased and Raj Bahadur-C.W. 1. who have stated in their statement that when they alongwith their younger brother Dinesh (since deceased) reached near the house of Raghuvir Singh, they met with Ved Prakash, Rajan Singh, Indra Dev and Bhawar Singh who had country made pistol with them. The counsel then placed the F.I.R. before the Court pointing out that aforesaid persons have met with them in front of house of Raghuvir Singh with country made pistol which is material contradiction in the story of prosecution.

Regarding false implication of the accused as the murder was committed by Ved Prakash (since deceased), the case of the appellants was that Bhawar Singh (accused) had been pradhan of the village from 1988 to 1995 at the time of incident. The election process was going on and voting was scheduled for 23rd June. In this election. Shanti Devi, wife of Bhawar Singh, Indra Devi wife of Shiv Kumar and Urmila Devi wife of Virendra, were candidates in which Indra Devi was victorious. He has further argued that in the circumstances there was no occasion for the complainant or his brother for going to the tube-well to sleep. whereas the case of the prosecution is that deceased was shot dead by the accused persons from the chabootra when they were going on the way. He has also argued that since Ved Prakash, Rajan Singh and Indra Dev are relatives of the appellant and Bhawar Singh is not related with the accused-appellant, therefore, there was no motive to join hands with other accused.

Sri Vivek Singh has adopted the arguments of Sri V.P. Srivastava, regarding bringing of the dead body to the police station and ante-timed F.I.R. In addition, he has stated that injuries suffered by the deceased are not supported by medical evidence and that conduct of the first informant going with the deceased is also to be seen. It is emphatically argued that presence of witnesses and the manner of assault belies the possibility of implication of one accused; that statement of P.W. 1 and P.W. 2, are contradictory: that P.W. 1 has stated that there was no blood on his clothes though he had picked up his brother. As regards, statement of P.W. 2 is concerned, it is argued that he was highly interested and partisan witness related to the deceased by blood. In the statement recorded u/s 161, Cr. P.C., P.W. 2, has stated that he was going to his agricultural field and not at the tube-well as mentioned in the written report, therefore, there is contradiction in the statement of P.W. 1 and P.W. 2, who also introduced a charpai on the chabootra on which Investigating Officer had found the dead body. He has further stated that there is contradiction in the statement of prosecution evidence and that presence of accused-appellant is doubtful at the place of occurrence. The incident could not be verified from G.D. as the same was weeded out after five years, hence benefit should go to the appellants.

Per contra, Smt. Usha Kiran, learned A.G.A. has stated that F.I.R. is not ante-timed as the incident took place at 11.00 p.m. on 17.6.2000 and the report was itself lodged in the night at 1.15 a.m., i.e., in about two hours. Therefore, there is no reason for the witnesses P.W. 1-Santosh Kumar and P.W. 2-Ramdas to have falsely implicated the appellants; and that the post-mortem report itself shows that there are three distinct fire arm injuries on the deceased which have been proved by Dr. R.K. Pandey who in his cross-examination not only described the ante-mortem injuries in his examination-in-chief but has explained in detail. The relevant extract placed by the learned A.G.A. in this regard reads thus:

As per her argument, case crime number is mentioned in the panchayatnama which shows that reference of report having been lodged and details in column have been mentioned. Not only this P.W. 7 has mentioned in his statement about sending of police papers.

Learned A.G.A. stated that two things, i.e., occurrence had taken place at about 11.00 p.m. in the night of 17/18.6.2000 and the distance of police station from place of occurrence is about 10 Km., are admitted. According to her. it is evident from cross-examination of eye-witness-Ram Das that Santosh Kumar and Subhash alongwith others had gone to the police station by motor-cycle after half an hour of the incident. On reaching the police station, report was written and CD. entry was made, therefore, it cannot be said that there is deliberate delay in lodging of the F.I.R.. rather it is prompt looking into the facts and circumstances of the case that incident had taken place in which a person had died. She again submitted that it is evident from the record that police had reached at the spot in the night of 17/18.6.2000 at the place of occurrence and two Police Sub-Inspectors alongwith a constable reached there at about 5.00 p.m. in the night for assistance in the inquest which was completed. The body carrier had taken body of the deceased at about 7.00 p.m. for postmortem.

It is vehemently argued by learned A.G.A. that the police had reached at the place of occurrence in the night itself and as such it cannot be said that F.I.R. is ante-timed. As regards name of accused persons having not been entered on Exts. Ka-7 to Ka-10 is concerned, it is stated that there were only column for filling sections under which offence has been committed, and there were no column on the aforesaid document for writing the names of the accused, therefore, names of the accused persons do not find place on the aforesaid document.

We find that Santosh Kumar had not anywhere stated that he was the resident of Sirsaganj. On the contrary he has given his address as resident of Darigapur (Bharaul), P.S. Sirsaganj, where he was a teacher in junior high school and he used to teach from the village-Sirsaganj. Even no suggestion has been given to him to this witness in his cross-examination by the appellants that he does not live in Sirsaganj or had not come to the place of occurrence on receipt of information. Admittedly, the police had reached at the place of occurrence in the night of 17/18.6.2000 at around 1.00 a.m. to control law and order situation. Since there was no column in Form-13 for mentioning names of the accused, no advantage can be gained by the appellants by raising the plea that since names of the accused have not been mentioned therein, F.I.R. is ante-timed on the basis of inquest having been made at about 6.30 p.m.

The contention of counsel for the appellant that body of the deceased was kept at police station for about one an hour and then it was sent to the hospital for post-mortem, the court below has recorded a finding that police constable had reached the place of occurrence in the night, therefore, while coming to back they wanted to relieve themselves and have handed over the dead body to another police personnel for carrying it to the hospital. Even otherwise, arguments of counsel for the appellant is taken on face value, the Court had to ensure that in the given circumstances can the F.I.R. be said to be ante-timed, and if so, it has to be ascertained as to whether any interpolation etc. has been made in the report. Therefore. the police on this score were required to show that they have been falsely implicated or any interpolation has been made by adding their names in the F.I.R.

We, therefore, find from the above discussions that the F.I.R. was lodged at 1.15 a.m. on 17/18.6.2000 and was not ante-timed, rather it was prompt and without any interpolation.

We have thoroughly examined the evidence of P.W. 1 and P. W. 2 and are of the opinion that their presence on the place of occurrence is probable and not doubtful. The statement given by them is wholly reliable. It may be noted that the deceased was not alone. The statement of P.W. 1 and P.W. 2 cannot be discarded merely on the allegation that they are close relatives of the deceased. It is settled law that if dependent witnesses are reluctant to depose before the Court, the testimony of eye-witnesses who are relatives of the deceased should be examined with care. They would be the last person to falsely implicate a person by not deposing against real defender. From careful perusal of statement of P.W. 1 and P.W. 2 produced by the prosecution, we find that there is no major contradiction in the statement given by eye-witnesses.

It may also be noted that statement of C.W. 1-Raj Bahadur, was recorded after 9 years of incident and 3 years after the death of accused-Ved Prakash, therefore, it was convenient for the accused persons to put blame upon Ved Prakash. There is no other material to corroborate the statement of C.W. 1. As had Ved Prakash been alive, then C.W. 1 could not mustered courage to depose against him. Although Raj Bahadur was a witness of prosecution but he was not examined by them and the Court has summoned him as witness of Court as his name was mentioned as an eyewitness of the incident by the complainant. Therefore, statement of C.W. 1 is also of no help to the defence.

The incident in fact had taken place during election campaign and appears to be election rivalry. The incident is corroborated by oral and medical evidence and any defect in investigation by Investigating Officer or in preparation of site-plan by him is not very relevant. It is noteworthy that site-plan prepared by Investigating Officer is hearsay evidence and cannot be termed as direct evidence. For all the reasons stated above, we find no force in this appeal which is accordingly dismissed, affirming the judgment and order dated 22.12.2010 passed by the District and Sessions Judge, Firozabad.

Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.