Narendra vs State

Vinod Prasad, J.—Appellant Narendra incarcerated into jail through this jail appeal has challenged his convictions under Section 307 I.P.C. and 25 Arms Act and sentences for 8 years R.I. and fine of Rs. 10,000 (Rs. Ten thousand) on the first count and three years imprisonment and fine of Rs. 5,000 (Rs. Five thousand) on the second count recorded by Additional Sessions Judge, Court No. 4, Moradabad in Sessions Trial No. 753 of 2002, State v. Nagendra Singh and Ors., with the prayer that his appeal be allowed and the aforesaid convictions and sentences be set aside. Further direction of trial Court is that in default of payment of fine of Rs. 10,000 (Rs. Ten thousand) he shall undergo one year further imprisonment and in default of payment of fine on the second count he shall undergo six months simple imprisonment.

The prosecution case against the appellant is that on 611 2001 at 3.00 a.m. H.C.52 Balbir Singh of P.S. Majhola, district Moradabad (informant) accompanied by Constable 1078 Hari Shankar Singh, Head Constable 3946 Jai Prakash armed with rifles were on a picket duty under the police circle of police out post Mandi Samiti, Moradabad when they saw four persons coming from Shankar Nagar and proceeding towards Shakti Nagar. Torches were flashed by the police personnels and those persons were warned to stand still. The caution of the police resulted in instigation that police personnels had arrived and all of a sudden all the four culprits started firing at the police party causing injury to Head Constable Jai Prakash on his forehead. The culprits were chased and the present appellant was arrested on the spot and from his possession a country made pistol of .315 bore with an empty cartridge fixed in the barrel and one live cartridge .315 bore with marking SKFBMM 86 on its metal cap was recovered. The three other culprits were disclosed to be Arun Singh son of Suresh Valmiki, Dinesh @ D.K. and Prem. Arrest and seizure memo were prepared on the spot in the torch light and after being read over to the accompanying police personnels their signatures were obtained on it. Accused appellant was brought to the police station at a distance of 5 Kms, south and the F.I.R. for the said offence was got registered by the informant scribe HC52 Balbir Singh on the same day at 4.15 a.m. as Crime No. 570 of 2001, under Section 307 I.P.C. and 25 Arms Act. Injured Constable Jai Prakash was medically examined on that day itself that 4.45 a.m. by Dr. Rakesh Kumar P.W. 6, Investigating Officer started the investigation recorded the statement of witnesses, prepared the site plan Exhibit Ka5, and submitted a chargesheet Exhibit Ka7 on 132002 as chargesheet No. 66 of 2002 only against appellant Narendra Singh and Arun Valmiki and Prem. No chargesheet, however, was submitted against Dinesh Kumar @ D.K.

The appellants were summoned by the Judicial Magistrate/J.S.C.C, Moradabad who committed to them to the Court of sessions for trial on 1062002. Additional Sessions Judge Court No. 4, Moradabad framed charges against the accused and other appellants under Section 307 I.P.C. and Section 25(1)(B) Arms Act on 1722003.

The prosecution to prove its case against the accused examined six witnesses in the trial out of whom Constable 1078 Hari Shankar P.W. 1, Head Constable Jai Prakash (injured), P.W. 2, Head Constable 52 Balbir Singh (informant) P.W. 3, were the witnesses of fact. Ram Hitraj P.W. 4 (Pharmacist/Record Keeper of District Hospital, Moradabad), S.I. Kuldip Singh P.W. 5 (Investigating Officer) and Dr. Rakesh Kumar (E.M.O. District Hospital, Moradabad) P.W. 6 were formal witnesses.

After the prosecution evidence was over statement of the accused under Section 313 Cr.P.C. was recorded on 1662006 in which the appellants took the defence of false implication.

The trial Court after critically appreciating the prosecution evidence disbelieve the prosecution version in respect of two accused Arun and Prem and acquitted them. However, finding the case of the present appellant proved to the hilt it convicted the appellant for offences under Section 307 I.P.C. and 25 Arms Act and sentenced him for 8 years R.I. with fine of Rs. 10,000/ (Rs. Ten thousand) under Section 307 I.P.C. and in default of payment of fine to undergo one year further imprisonment and under Section 25 Arms Act three years imprisonment with fine of Rs. 5,000/ (Rs. Five thousand) and in default of payment of fine to further undergo six months imprisonment. Hence, this appeal.

In the trial, Constable Hari Shankar P.W. 1 deposed that on 6 112001 was posted at P.S. Majhola, Moradabad. On the intervening night between 15/16112001 he alongwith Head Constable Balbir Singh, Head Constable Jai Prakash were on picket duty in the area of police out post Mandi Samiti, Moradabad. When they found four people coming from Shakti Nagar and proceeding towards Shankar Nagar. Torch was flashed on them and they were ordered to stop on which the accused persons shouted that police had reached and one of the accused persons fired towards them from his countrymade pistol which hit Head Constable Jai Prakash on his forehead. In spite of that injury informant and his other companions caught hold of one of the assailants at 3.00 a.m. Who disclosed his name as Narendra son of Kishan Lal Jatav, resident of Sharuva Dhrampur, P.S. Civil Lines, Moradabad. Rest of the three accused made their escape good, from the search of the appellant a countrymade pistol of .315 bore with an empty cartridges fixed in the barrel and a live cartridges were recovered. Appellant disclosed the names of his companions as Arun Son of Sudhesh, Dinesh @ D.K. and Prem. Dinesh @ D.K. and Prem were vendors in the train. The seizure memo was prepared by Head Constable Balbir Singh in the light of the torch and electric bulb and the recovered weapon and cartridges were sealed on the spot and impression of seal was prepared. No public witness was available at that hour. The recovery memo and the seizure memo were read out to the informant and other police personnels and was got signed by them. The recovery memo and seizure memo was proved as Exhibit Ka1 by the said witness. P.W. 1 further evidenced that the accused appellant was brought to the police station were Head Constable Balbir Singh got the F.I.R. registered and handed over the accused and the seized weapon at the police station. The recovered countrymade pistol was exhibited as material exhibit1, empty cartridge as exhibit2, live cartridges as exhibit3 and the cloth in which they was sealed as exhibit4. He further testified that on the metal cap of the live cartridges KFBMM87 was engraved. The record reveals that opportunity to the cross examination this witness was given to the accused but he did not crossexamine him and hence the said opportunity was closed.

Head Constable Jai Prakash P.W. 2, who is injured in the incident also supported the version of P.W. 1 in his examination inchief and evidenced that one out of four accused made a fire which had hit him but in spite of that fact he and his companions caught hold of one of the assailants, who disclosed his name to be Narendra Jatav (appellant) and from his possession .315 bore pistol was recovered. He identified the apprehended accused as the appellant in the Court. He further evidenced that the appellant had disclosed the names of his other associates as Prem, Arun and Dinesh Kumar @ D.K. He further stated that on opening the barrel of the pistol an empty cartridges was found fixed in it and smell of gun powder was coming out. The aforesaid Dinesh Kumar is a vendor in railways. He further supported the prosecution version by saying that Head Constable Balbir Singh in the electric and torch light prepared the seizure and recovery memo which was read out to them and their signatures were obtained on it and independent witness could not be joined because of early hour of the morning. He also proved his signature of exhibit Ka1, the recovery memo. In the cross examined he stated that he was posted at police station Majohala a month prior to the incident and the picket consisted of Constable Hari Shankar and Head Constable Balbir Singh besides himself. He, however, could not tell at what time they had started from the police station but testified that from the police station they had gone to Prem Nagar on foot, which was at a distance of 34 Kms., in an hour. He had further testified that he was posted at Mandi Samiti and the place of the incident is within the area of Shankar Nagar. He also staled that they had seen four people and he and Head Constable Hari Shankar were armed with rifles. He further testified that at the time of the incident it was dark and he could not say which accused was armed with what weapon. He has further deposed that after sustaining injury he became sightless and could not witness as to who had fired shot towards them and the appellant was apprehended on the spot. He had stated that he was detained for some time at the police station and then was sent for medical examination. He further stated that he cannot recognize the accused persons who had made their escape good from the spot but the apprehended accused had fired the shot. He could not identify coaccused Arun and had deposed that his name was disclosed by the present appellant and he did not know any of them.

Head Constable 52 Balbir Singh (informant) also supported the prosecution version in his examinationinchief and deposed that he had scribed the F.I.R. and had lodged it at the police station on 6112001 at 4.15 a.m. as Crime No. 570 and 571 of 2001 under Section 307 I.P.C. and 25 Arms Act. He further proved the chik F.I.R., which was in the hand writing of Constable 1369 Raj Bahadur Singh as exhibit Ka2 and the G.D. Entry as exhibit Ka3. He had further testified that incident had occurred at an unusual time, therefore, independent witnesses were not found. In his crossexamination he has deposed that he did not remember at what time they had gone on the picket duty and that during picket duty they carried firearm. Head Constable Jai Prakash and Hari Shankar had accompanied him from the police station and police outpost Mandi Samiti was at a distance of 2 Kms., from the police station Majohala. He had further deposed that place of incident is at a distance of 1 km. from police out post and the incident occurred at 3.00 a.m., when the appellant was caught. He knew another coaccused Arun whose name was disclosed by the present appellant. He further deposed that fire was made by the appellant from whom the countrymade pistol was recovered. He further testified that he had identified the other coaccused persons from their faces but he did not know their name. He denied the suggestions that the name of accused Arun was disclosed to him only on the basis of statement of Narendra present appellant.

Ram Hitraj P.W.4 Pharmacist/Record Keeper, District Hospital, Moradabad prove the injury report of Jai Prakash and stated that he was medically examined by Dr. Rakesh Kumar in District Hospital, Moradabad. He had identified the writing of Dr. Rakesh Kumar and had proved the injury report as exhibit Ka4.

Kuldeep Singh S.I. (Investigating Officer) P.W.5 deposed before the Court that on 6112001 he was posted at police station Majohla as S.I. and on that date at 4.15 a.m. F.I.R. of crime No. 570 and 571 of 2001 was registered and the investigation was handed over to him. He thereafter copied chik F.I.R., recovery memos and then recorded the statements of informant and other witnesses including the injured. He had conducted spot inspection at the pointing out of the informant and had prepared the inspection note as exhibit Ka5, He had recorded statement of coaccused Prem and then copied the injury report in the case diary. He further produced countrymade pistol and the cartridges before the District Magistrate Manoj Kumar Singh who had granted sanction Exhibit Ka6 for prosecution of the appellant under Section 25 Arms Act and on completion of investigation he had submitted chargesheets No. 66 of 2002 and 67 of 2002, exhibit Ka7 and Ka8 against the accused. In his crossexamination he had stated that coaccused Arun had surrendered in Court and he had interrogate the neighbours of locality but had not penned down their statements. He denied the suggestions that he had not conducted any investigation and had completed the formality at the police station itself.

Dr. Rakesh Kumar P.W.6, E.M.O. District Hospital, Moradabad evidenced that on 6112001 he was working on the said post when at 4.45 a.m. he had medically examined injured Jai Prakash aged about 32 years who was brought to him by Constable Hari Shankar of P.S. Majohla and had prepared Exhibit Ka4. Jai Prakash had a lacerated wound 2.5 c.m. x 1 c.m. x depth not proved on the forehead right side 3cm above the eyebrow which injury was kept under observation. Nature and cause of injury could not be ascertained but he was informed by the injured that he had sustained the said injury by firearm which had no blackening or tattooing present. He had advised Xray of the injury for it''s cause and nature. He further deposed that the injury was fresh which could have been caused at or about the time of the incident and the injured was admitted in the hospital for further management of his injury. On being crossexamined P.W.6 deposed that from the injury report it cannot be said as to how the said injury was caused and what was its nature. He further stated that neither the Xray plate nor the Xray report is available on record and that there can be a variation of two to three hours in the time of sustaining the said injury.

In statement under Section 313 Cr.P.C. the appellant disclosed his age to be 22 years and vocation as white washing. At 6.00 a.m. he had gone to attain the call of nature when he was arrested by the police and implicated in the crime and no recovery of any weapon or cartridge was made from him.

I have heard Sri I.K. Chaturvedi Amicus Curie in support of this appeal on behalf of the appellant and the learned A.G.A. in opposition and I have gone through the evidences and exhibits on record.

Sri I.K. Chaturvedi contended that in this case the prosecution version is wholly incorrect and prosecution has fail to prove the charge against the appellant. He contended that the appellant was never arrested from the spot and the recovery of pistol and cartridges alleged to have been recorded from the appellant are planted. That the prosecution has not been able to prove that injured had sustained firearm injury from a shot made by the appellant. He further submitted that the allegation of spot arrest is wholly doubtful and cannot be believed. He, therefore, contended that the appeal of the appellant deserves to be allowed and he deserves to be acquitted. He further contended that the appellant had been awarded a sentence of maximum 8 years R.I. and the appellant is in jail since 6th November, 2001 and therefore, as on the date he had already served out five and a half years of imprisonment. He, therefore, contended that in case the appeal is not allowed on merits the appellant should be sentenced only to the period of imprisonment already undergone and his fine should be waived off as he is a poor person and had no criminal history.

Learned A.G.A. contended that the prosecution has been able to prove the charge against the appellant to the hilt and the conviction record is justified. He submitted that the F.I.R. is prompt and the appellant was arrested on the spot and his arrest is not doubtful. He further submitted that the medical report is consistent with the prosecution version and there was no reason for false implication of the appellant and therefore, the appeal of the appellant lacks merit and deserves to be dismissed.

I have considered the submissions raised by both the sides. The prosecution case in the present appeal hinges on two facts. The first fact being as to whether the injured had sustained injury on 6112006 at 3.00 a.m. by pistol shot made by the appellant or not? The second fact is that whether the appellant was arrested on the spot or not at the time and date of the incident as has been alleged by the prosecution.

Coming to the first question as to whether the injured had sustained the injury by firearm made by the appellant or not it is to be noted that the incident took place on 6th November, 2001 at 3.00 a.m. when it was dark as has been admitted by all the witnesses specially injured Jai Prakash P.W. 2. In his evidence injured has clearly stated that at the time of the incident it was dark and he does not know which accused was carrying what weapon. He had further deposed that after sustaining injury on his forehead he could not see anything. He had further deposed that he could not see as to which of the accused had made the fire. No doubt this witness has further stated that they have apprehended the appellant on the spot and he had made the fire but his two above evidences being wholly contradictory to each other cannot be accepted at all. Moreover according to him two of his other companions, Hari Shankar P.W. 1 and Head Constable Balbir Singh informant were a head of him when fire was made. Site plan exhibit Ka5 indicates that dot (.) was the place where the injury was sustained by the injured and cross was the place where the accused was apprehended. Taking the statement of the injured to be Correct visavis with site plan the police party was proceeding towards the accused persons. It is not understandable that the assailants will make a fire at a person who is behind and not on the two constables who were nearer to them. This is wholly unnatural. It is also not understandable that if the two Constables accompanying the injured were armed with rifle why they did not made any retaliatory fire to save their lives. Medical report of the injured also does not countenance the fact of receiving firearm injury by the injured and said fact is not proved by any cogent and reliable corroborative evidence by the prosecution. Evidence of Dr. Rakesh Kumar P.W. 6 does not establish at all that injured had sustained any firearm injury. Prosecution had not dared to ask from the doctor that the injury sustained by the injured was from firearm in examinationinchief. According to the statement of the doctor it was the injured who had told him that he has sustained a fire arm injury. There was no blackening and tattooing present around the wound and there were no pellets embedded in the injury nor the injury had an exit wound. In his examinationinchief doctor has categorically stated that he cannot say that the injury sustained by the injured was from firearm. Injured was advised for Xray but no Xray plate or Xray report was on the record. He had clearly stated that by looking to the injury report he cannot say how the said injury was sustained by the injured. In such a view it is difficult to come to a positive conclusion that the injured had sustained firearm injury. Penal statute is the statute of strict proof. In this case the prosecution has not been able to prove at all that the injured Head Constable Jai Prakash P.W.2 had sustained the firearm injury except the ipse dixit of injured which statement is self contradictory. In my this view I am also fortified by the fact that had the injured sustained gunshot injury blood must have oozed out from his injury but neither the blood has been recovered from the place of the incident nor any blood stained cloth of the injured was taken by the I.O. in custody.

There is yet another disturbing and unproved fact of the prosecution version and that is doctor Rakesh Kumar P.W.6 had said that the injured was got admitted in the hospital for further management of his injury but in the trial prosecution led no evidence to prove the said fact and kept silent on the said aspect of the matter. No bedheadticket, no other proof of admission of injured in the hospital was brought on record by the prosecution even though the injured was a police constable. This speaks volumes because in case of injury to a police personnel normally investigation is above board. The (investigating Officer S.I. Kuldeep Singh P.W.5 has not at all deposed that he had made any effort to look into the bedheadticket or other admission paper of the injured or to make it a part of the case diary.

Thus, from the material on record I am not at all satisfied that the prosecution has been able to prove by cogent, reliable and credible evidence that the injured had sustained injury by the fire made by the appellant or any firearm injury at all. The ipse dixit of the injured cannot be believed as he himself is not sure as to what weapon was wielded by which accused and who used him injury and in that respect his evidence is self contradictory.

From the discussion made above it is thus established that injured had not sustained any firearm injury and that too grievous in nature and dangerous of life. The prosecution resultantly failed to establish that a fire was made by the appellant with intention to murder the injured and therefore, it remained unsuccessful in bring home the charge under Section 307 I.P.C. against the appellant.

The next aspect of the matter whether the appellant was arrested on the spot has also not been established by the prosecution. The appellant had not sustained any injury by fire arm. The appellant is alleged to have caused injury to a police constables in the presence of two of his other associates. Had appellant been present on the spot and was apprehended by the three constables, he certainly would have been belaboured severely under the normal code of police conduct which in this case is totally missing. It is not understandable that if there were four assailants and three police personnels two whom were armed with rifles why they did not made any retaliatory fire to save their lives. Police personnels were outnumbered by the assailants and therefore, natural reaction would have been to save oneself which is not evidenced by the witnesses. Further site plan does not show any place where the informant and other witnesses were standing. This also casts doubt on the prosecution version of arrest of the appellant at the spot because after the fire was made the two police constables would have certainly made efforts to save their lives. Unnaturality of the prosecution version is so grave that it does not satisfy the factum of spot arrest of the appellant at all especially when there is no independent witness to support the said fact not even through the evidence of res gestie. The incident had occurred at a place were, according to the site plan there were houses. No endeavour was made at all by the police picket to take help of the residents of those house after the incident either to tie the appellant by rope or to give medical assistance to the injured constable. Moreover, it was dark hour of night and it was very easy for the appellant to have run away from the spot. Absence of blood, non showing of presence of witness in site plan, dicey nature of injury, no electric pole in site plan all these facts to my mind crumble the prosecution version of spot arrest and therefore, I am not at all satisfied that the appellant was arrested on the spot. No. blood has been found on the spot, no distance etc. between the accused and the police party is mentioned, no place where the informant and the other witness was present is shown in the site plan dents the prosecution story further.

Now coming to the oral evidence of the witnesses I find that so far as the witnesses of fact are concerned they are giving a parrot like statement and they cannot be believed. The prosecution case is dented by the fact that in respect of the other two coaccused persons the trial Court itself has disbelieved the prosecution version. The shot had been fired from a distance and it has also come in the evidence of the injured that he cannot recognise any of the assailants but for the present appellant. Had there been a source of light and if the version of the prosecution would have been correct, there would have been no difficulty for the injured to recognize rest of the three assailants also as according to the prosecution case itself light of the torch and electric light were present besides moon light as has been evidenced by them. This fact, therefore, also established that in fact there was no light at the spot and the prosecution version is not true.

In view of what I have stated above I am of the opinion that the prosecution has not been able to prove its case at all. The evidence of the witnesses of fact are not free from contradictions and unnaturality and therefore, no implicit reliance can be placed on their testimony.

Resultantly, the appeal is allowed. The conviction of the appellant as has been recorded by the trial Judge vide his impugned Judgment dated 14.8,2003 passed by Additional Sessions Judge, Court No. 4 Moradabad in S.T. No. 753 of 2002, State v. Narendra Singh and Ors., under Section 307 I.P.C. and 25 Arms Act is set aside. Appellant is in jail. He is directed to be released forthwith if he is not wanted to any other crime.

A copy of this judgment be certified to the trial Court forthwith.