Devendra and Others vs State of U.P.

Ramesh Sinha, J.—Heard Sri Arvendra Singh, learned counsel for the appellants, Sri Nitin Srivastava, learned AGA for the State and perused the record.

The present criminal has been preferred against the judgment and order dated 7.7.2012 passed by Additional Sessions Judge, Ex-Cadre, Court No. 2, Mainpuri in Sessions Trial No. 50 of 2008 (State Vs. Devendra @ Chapooda and others), convicting and sentencing the appellants to undergo for five years R.I. under Section 307 read with Section 34 I.P.C. And to pay a fine of Rs. 5000/- each, in default of payment of fine, they will undergo for one year R.I.

The prosecution case in brief is that; on 1.12.2006 at about 9 P.M. in the night, the informant/injured Ram Prakash had gone to attend the Tilak Ceremony of his niece, namely, Km. Ranju, daughter of Ahibaran Singh at the house of Vedram who was resident of Village Ghutara, Police Station Bewar, District Mainpuri. Many other persons of the village of the informant were present there, in which Sunil Kumar son of Bankey, Harendra Singh son of Ahibaran Singh, Arvind son of Lal Bahadur were also present. In the said Ceremony accused Devendra @ Chapooda Son of Tilak Singh, Suresh Chandra son of Tilak Singh, Bijendra @ Bachchu Son of Ram Nath and Prabhash son of Ram Nath were also there. Out of which accused Devendra @ Chapooda was carrying a rifle, whereas the other accused, namely, Suresh Chandra, Bijendra @ Bachau and Prabhas were having countrymade pistols. Devendra @ Chapooda with an intention to kill fired at the informant which hit him on his neck and when his condition became serious all the persons present there started running away. The incident was witnessed by Sunil Kumar, Harendra and and other persons of the village. After firing, Devendra @ Chapooda and all his associates had fled away from the place of occurrence. The informant was admitted in District Hospital, Mainpuri where his condition was found to be serious and the doctor had referred him to Agra. Thereafter, the informant was admitted in Kamayani Hospital at Agra where he was medically treated for about 15 days and thereafter he was discharged from the said hospital. The informant after his discharge from the hospital tried to lodge an FIR against the accused persons but the same could not be lodged and thereafter he moved an application to the S.S.P., Mainpuri on 13.7.2007 annexing his medical examination report and X-ray report requesting him to lodge an FIR. On the basis of which, an FIR was lodged against the accused persons on 19.7.2007 as Case Crime 651 of 2007, under Section 307 I.P.C. which was marked as Ex. Ka-1.

After investigation, the police submitted charge sheet under Section 307 I.P.C. against the accused appellants as Ex. Ka-6. The case was committed to the Court of Sessions by the learned Magistrate on 25.1.2008 and the trial Court framed charges against the accused appellants under Section 307/34 I.P.C. The accused denied the charges and claimed for trial.

The prosecution in support of its case has examined PW 1-Ram Prakash, PW 2 - Sunil Kumar, PW 3 Dr. M.B. Jain, PW 4-Dr. S.N. Gupta, PW 5-CP 783 Shivendra Singh, PW 6-CP 63 Satyavir Singh.

The statements of the accused appellants were recorded under Section 313 Cr.P.C. in which they had denied the prosecution case and submitted that the witnesses have falsely deposed against them. No evidence was led by the accused in their defence.

PW 1-Ram Prakash who is informant as well as injured of the case has supported the prosecution case and has deposed before the trial Court that the accused appellant Devendra @ Chapooda had fired shot at him with an intention to kill with rifle in the Tilak ceremony which was being performed at the house of Vedram Singh. So far as other accused persons are concerned, he only stated that they were found to be present at the said ceremony carrying illegal pistols and after the incident they fled away firing along with the co-accused Devendra. He further deposed before the trial Court that he was shifted to the District Hospital, Mainpuri, but he was referred to Agra where he was medically treated for about 15 days at Kamayani Hospital, Agra and thereafter he was discharged after 15 days. After his discharge from the hospital, the he approached the police for registering an FIR against the accused appellants but the same could not be registered, hence, he moved an application to the S.S.P. Mainpuri, on 13.7.2007 for registering the FIR, on the basis of which FIR was lodged against the accused appellants.

PW 2-Sunil Kumar who is eye witness of the occurrence and was also present in the Tilak ceremony, has repeated the prosecution case as has been alleged by the PW 1 Ram Prakash.

PW 3 - Dr. M.B. Jain, who is a private Radiologist, has stated that he has performed the X-ray of the injured Ram Prakash on 6.12.2006 and he found metallic bullet over the 6-7 vertebras extending to the posterior-inferior surface of C-6 vertebras and he has proved the X-ray report of the injured Ex. Ka-2.

PW 4-Dr. S.N. Gupta has deposed before the trial Court that he was posted for Medico Legal purposes in Kamayani Hospital, Agra and he has examined the injured Ram Prakash on 2.12.2006 at 10.30 A.M. and found the following injuries on his person:

Injury No. 1

Lacerated wound of 1 c.m. X 1 c.m. X not probed 8 c.m. to cervical region on left side with abraded area of 2 c.m. X 1.5 c.m. just below the wound. Fresh clotted blood present. Margins inverted no charring present. Patient conscious. Patient developed left side hemafilaria on left hand. Advised x-ray neck and chest and C.T. Scan of cervical area. General condition poor."

He further deposed that when the injured was brought to the Kamayani Hospital, Agra his condition was serious and X-ray was also advised. He prepared the medical report Ex. Ka. 3.

PW 5 - C.P. Shivendra Singh has stated that on 13.7.2007 he was posted as Clerk at Police Station Bewar, District Mainpuri and he had registered an FIR under Section 307 I.P.C. and made an endorsement of the same in the G.D. of the said police station at 19.05 Hours on 13.7.2007 and proved the same as Ex.-Ka-4.

PW - 6 Constable Satyaveer Singh has stated before the trial Court that he had worked with Sub Inspector Kripal Singh at the concerned police station in the year 2007 and he is acquainted with the hand writing of the Sub Inspector Kripal Singh. On 2.3.2012, Sri Kripal Singh has died and he has proved the charge sheet and site plan prepared by Sub Inspector Kripal Singh, i.e., Ex. Ka. 6 & 7 respectively.

It has been argued by the learned counsel for the appellants that the incident had taken place in the Tilak ceremony and it appears to be an accidental fire which took place during the Tilak ceremony from a rifle and the appellant No. 1 Devendra @ Chapooda along with his real brother and cousins have been falsely implicated in the present case by the informant taking benefit of the said incident who were also present in the said Tilak ceremony. He further argued that the FIR of the present case has been lodged after 7 months of the incident which itself creates doubt about the prosecution case. He argued that the medical examination report of the injured shows that though he received injury of rifle which is small in dimension but the said injury report has been prepared in a private hospital and further the X-ray report is also of a private hospital and it has been shown that metallic bullet is said to have been found on the 6-7 vertebras of the said injured, but no internal damage has been caused. He further submitted that though the victim was taken to the District Hospital at Mainpuri but no paper regarding any reference has been filed by the prosecution which shows that the injured/victim has manipulated his medical report in private hospital, hence, the said medical documents does not appears to be genuine documents.

He lastly argued that even if the prosecution case is taken to its own face value, the appellant No. 1, namely, Devendra @ Chapooda is said to have fired at the injured with rifle and so far as other accused appellants are concerned, the appellant No. 2, namely, Suresh Chandra happens to be real brother of appellant No. 1 and appellant Nos. 3 and 4, namely, Bijendra @ Bachchu and Prabhas are cousins of appellant No. 1 and they have been falsely implicated by the informant in the present case due to inimical relationship with them. The false implication of the appellants in the present case cannot be ruled out as no role has been assigned to them for firing at the informant/injured and only a vague allegation has been leveled against them that they were carrying some illegal country made pistols, but no recovery any country made pistol was made from their pointing out or from their possession. He submitted that evidence of PW 2, namely, Sunil Kumar is not worthy of any credence as no other independent person has come forward to support of the prosecution case of PW 1, namely, Ram Prakash showing participation of the three other accused appellants in the present case, hence, their conviction and sentence by the trial Court be set aside and the appellants No. 2 to 4, namely, Suresh Chandra, Bijendra @ Bachchu and Prabhas be acquitted.

The learned counsel for the appellants has lastly submitted that the maximum sentence awarded to the appellants is 5 years R.I., out of which appellant No. 1, namely, Devendra @ Chapooda has already served out more than 3-1/2 years as under trial and after his conviction. Hence, the rest of the sentence of the appellant No. 1, namely, Devendra @ Chapooda be converted into fine and the same would not be treated as enhancement of sentence.

Learned AGA on the other hand vehemently argued that the appellant No. 1 had fired shot with rifle at the informant/injured who received single injury of rifle. He further submitted that the statement of PW 1, namely, Ram Prakash cannot be discarded by this Court as he is the injured person and as per the X-ray report metallic bullet was found in back side of the of his neck, but he could not dispute the fact that no role has been assigned to the other three appellants, namely, Suresh Chandra, Bijendra @ Bachchu and Prabhas by the injured himself and the said appellants are the real brother and cousin of appellant No. 1 Devendra @ Chapooda.

Considered the submissions advanced by the learned counsel for the parties and perused the record.

It is an admitted fact that the incident had taken place in Tilak ceremony where the informant/injured, namely, Ram Prakash was also present along with the other appellants. As per the evidence of PW 1-Ram Prakash who is informant/injured of the case, it appears that it was the appellant No. 1 Devendra @ Chapooda who had fired shot at him with rifle, on account of which he received injuries and he was immediately rushed to the District Hospital, Mainpuri from where he was referred to Agra. The injured was admitted in a private hospital, namely, Kamayani Hospital at Agra and he was examined there by PW 4 Dr. S.N. Gupta who found single rifle injury on his person and advised X-ray, which was performed by PW 3 Dr. M.B. Jain who is a private Radiologist and metallic bullet was found on his neck on 6-7 position.

Though a suggestion has been given by the defence that as the accidental fire has taken place in the Tilak ceremony but the said suggestion has been denied by PW 1, namely, Ram Prakash who has stated that appellant No. 1, namely, Devendra @ Chapooda because of inimical relation had fired shot with an intention to kill him at the Tilak ceremony and simply because the injured was examined at private hospital and his X-ray was also performed at a private Centre, medical report and X-ray report could not be discarded on this ground alone. As per the evidence of PW 1, namely, Ram Prakash that he was admitted in the hospital for about 15 days. So far as the delay in lodging of the FIR, it has been stated by PW 1, namely, Ram Prakash that after his discharge from the hospital he approached to the police station concerned for lodging of the FIR but the same could not be registered because the accused belonged to a Ruling Party and ultimately an FIR was registered after seven months of the incident on the basis of an application given to the S.S.P., Mainpuri.

So far as appellants No. 2 to 4 are concerned, the appellant No. 2, namely, Suresh Chandra happens to be real brother of appellant No. 1, namely, Devendra @ Chapooda and appellants Nos. 3 and 4, namely, Bijendra @ Bachchu and Prabhas happens to be cousins of appellant No. 1, namely, Devendra @ Chapooda and their false implication in the present case cannot be ruled out as there appears to be previous animosity between the informant/injured with appellants.

Moreover, PW 1, namely, Ram Prakash has only stated that it was the appellant No. 1, namely, Devendra @ Chapooda who had fired shot at him with rifle and so far as other appellants are concerned they were stated to be carrying illegal country made pistols, but no such recovery was made at their pointing out or from their possession. The incident has taken place in the Tilak ceremony and no other person had come forward who were present and participated in the said Tilak ceremony to support the prosecution case. The evidence of PW 2-Sunil Kumar who is stated to be an eye witness account also appears to be not reliable one as it appears from his evidence that he deposed against the appellants only on account of the fact that he was a friend of PW 1 - Ram Prakash.

Thus, appellant Nos. 2 to 4, namely, Suresh Chandra, Bijendra @ Bachchu and Prabhas are given benefit of doubt. Their conviction and sentence passed by the trial Court on the ground that they had common intention to kill Ram Prakash, PW 1, does not appear to be proved from the evidence on record. Hence, their conviction and sentence passed by the trial Court is not sustainable in the eyes of law and is liable to be set aside.

Thus, in view of the above, the judgment and order dated 7.7.2012 passed by the trial Court with respect to appellant Nos. 2 to 4, namely, Suresh Chandra, Bijendra @ Bachchu and Prabhas is hereby set aside. The appellant Nos. 2 to 4, namely, Suresh Chandra, Bijendra @ Bachchu and Prabhas are hereby acquitted. They are stated to be on bail. They need not surrender. Their bail bonds and sureties are discharged.

So far as appellant No. 1, namely, Devendra @ Chapooda is concerned, the conviction and sentence passed by the trial Court is hereby upheld. But taking into account the last submission of learned counsel for the appellants that the appellant No. 1, namely, Devendra @ Chapooda has been awarded maximum sentence of 5 years R.I., out of which he has already served out more than 3-1/2 years as under trial and after his conviction. Hence, it would meet the ends of justice that rest of the sentence of appellant No. 1, namely, Devendra @ Chapooda is reduced to the fine of Rs. 35,000/- which shall be deposited by him in the Court of C.J.M., concerned. Out of which Rs. 30,000/- shall be paid to the informant/injured, namely, Ram Prakash, if he alive or to his legal heirs, if any, and rest amount i.e., Rs. 5000/- shall go the State. If the said amount as directed above is deposited by the appellant No. 1, namely, Devendra @ Chapooda, he shall be released, if not wanted in any other case.

In default of payment of fine, as directed above, the appellant No. 1, namely, Devendra @ Chapooda shall serve out the sentence as ordered by the trial Court.

In view of the above, the appeal is partly allowed.

Office is directed to send a certified copy of this order to the C.J.M. concerned for its compliance.