Ninnaml Singh vs State of U.P.

B. K. Rathi, J.—All the four appellants have been convicted for the offences punishable under Sections 148,302/149, I.P.C. and have been sentenced to undergo 2 years R.I. under Section 148 I.P.C. and imprisonment for life under Section 302/149, I.P.C. vide judgment and order dated 21.10.81 by Addl. Sessions Judge, Aligarh.

The case of the prosecution as is unfolded by the documentary and oral evidence on record is that Raksh Pal Singh complainant examined as P.W. 1 resident of Sikandarpur, police station Akrabad, District Aligarh on 5.11.90 at about 4 p.m. alongwith Sajjan Singh P. W. 2 and victim of this case Mahipal Singh (deceased) were going to the house of Vijai Pal Singh, younger brother of the deceased Mahipal Singh in town Aligarh from the side of Chharra bus station. Raksha Pal Singh complainant is owner of the bus which runs on the route of Aligarh to Shankara from Chharra bus station, Aligarh. As they reached near the sewer well, they saw Yash Pal P.W.Sand Vedpal coming from the opposite side. As they reached near the northeast corner the sewer well, the appellants Narendra Singh and Ranveer fired three rounds of shots from their revolvers at Mahipal Singh all of which caused injuries on the left arm of Mahipal Singh. After receiving injuries, Mahipal Singh tried to run. In the mean time, the appellants Ninnami and Brijendra Singh fired three round of shots at Mahipal Singh which caused injuries on the left side of chest, head and left eye. Mahipal Singh fell down at a distance of about 12 steps and died. Ninnami Singh appellant escaped by Motor Cycle No. D.H.Y. 2394 and the other three appellants Vijendra, Narendra Singh and Ranveer Singh by Fiat Car No. R.S.A.147, on the driving seat of which Jagdish a harden criminal was sitting and waiting for them.

Shankar Pal Singh arrived little after the incident and first information report Ext. Ka1 of this incident was got scribed by Raksha Pal Singh P.W. 1 from Shankar Pal Singh and he went to police station Civil Lines, Aligarh and gave it there. On the basis of this written report Ext. Ka1 the chik F.I.R. was prepared by H.C. Raj Pal Singh on 5.11.1990 at 7.15 p.m. He also registered a case in the G.D. Ext.Ka8.

The investigation of the case was shouldered by Sri Prem Pal Singh, SubInspector P. W.6, he immediately went to the place of incident, prepared inquest report of the dead body of Mahipal Singh and other necessary papers and sealed the dead body and sent it for postmortem examination alongwith papers which was carried by Kishan Chand constable P.W.4. The I.O. also found blood at the spot and took simple and blood stained earth and put the same in the sealed cover then prepared a memo. He also took clothes of the victim, his ring, plastic shoes, Rs. 177.25 cash, knife and Bins and gave the same in the supurdgi of Ravi Kumar. He also took the banian and Kurta of the victim and then inspected the place of incident and prepared sitplan Ext. Ka3. After completing the investigation, he submitted chargesheet against all the four appellants.

All the appellants of this case pleaded not guilty and alleged that the witnesses have enmity with them and therefore, have falsely implicated them. The appellants examined two witnesses in defence who are Ekbal Ahmad and Udai Singh D.W. 1 and 2. They have not stated anything regarding the facts. They have proved the information received on telephone at the control room, Aligarh on 5.11.80 at 5.05 p.m. which is Ext. Kha19. The information received was, that some body informed on telephone from Surendra Nagar that Mahipal has been shot dead by some body. It has been proved to show that till 5.05 p.m. the name of the assailants were not known.

The prosecution in support of its case examined as many as six witnesses. Raksha Pal Singh, P.W. 1 is the complainant of this case who has unfolded the entire prosecution story as narrated above. The reason given by him from going to Chharra bus station is that his buses run from that bus station. In his cross examination, he stated that he had a house in Mohalla Janakpuri in town Aligarh which is at a distance of about 45 furlongs from the place of incident.

The second witness of the incident is Sajjan Singh P.W.2 who has stated that he was also accompanying Raksha Pal Singh P.W. 1 from Chharra bus station to the house of Vijai Pal Singh, who is an engineer and had his ''Kothi'' in Mohalla Surendra Nagar, Aligarh. That Mahipal Singh victim brother of Vijai Pal Singh was also with them. He has fully corroborated the version given by Raksha Pal Singh P.W.1.

The other witness regarding the incident is Yash Pal P. W.5 who is resident of Nagla Ausabh ali police station Harduaganj, district Aligarh. He has stated that he came to courts on the day and was returning to Chharra bus station from the Courts via Mohalla Vishnupuri. That Ved Pal also met him and accompanied him. That as they reached on the road of Sewer well, they saw Mahipal Singh victim and Raksha Pal Singh, Sajjan Singh P. Ws. 1 and 2 coming from the other side. As soon as Mahipal Singh reached at northeast cormer of the sewer well Narendra Singh and Ranveer Singh fired shots at him by their revolvers causing injuries in the left hand of Mahipal Singh. That Mahipal Singh took turn and in the mean time, the other two appellants Ninnami Singh and Brijendra Singh fired shots by their revolvers at Mahipal Singh. He has further stated that Mahipal Singh fell down and died immediately and the accused escaped on Motor Cycle and Fiat Car which was driven by Jagdish.

The formal evidence consists of the statement of Dr. V.K. Agarwal P. W.3 who conducted the postmortem examination of the victim Mahipal Singh on 6.11.80 at 2 p.m. and prepared postmortem report Ext. Ka2. According to this report, the victim Mahipal Singh was aged about 60 years and died about one day before. The following antimortem injuries were found on his body:

(1) Gun shot wound of entry 1/2" x 1/2" x chest deep on the front of chest, left side 3/4" below left nipple at 5.O''clock position. The margins are inverted, achymosed. No blackening or tattooing or charring around.

(2) Gun shot wound of entry 1/2" x 1/2" x chest deep on the front of chest left side 1" in front of left anterior exillary fold. Margins, inverted and echymosed. No blackening. Tattooing or charring around.

(3) Gun shot wound of entry 1/2" x 1/2" muscle deep on the upper outer part of left upper arm margins are inverted echymosed, no blackening, tattooing or charring around.

(4) Gun shot wound of entry 1/2" x 1/2" muscle deep on the outer and middle of left upper arm 2" below injury No. 3. Margins are inverted echymosed, no blackening, tattooing or charring around. 2" below the injury No. 3, one metalicshot recovered underneath.

(5) Gun shot wound of entry 1/2" x 1/2" x muscle deep on the outer and lower part of upper arm 1" below injury No. 4 margins are inverted, echymosed and no blackening, tattooing or charring around, one shot recovered underneath.

(6) Gun shot wound of entry 1/2" x 1/2" brain deep on the inner of left eye just by the side of bridge of the nose left side. Margins inverted and echymosed. No blackening, tattooing or charring around.

(7) Gun shot wound of exit 3/4" x 3/4" x muscle deep on probing communicating with injury No. 3. There is fracture (communicated) of the shaft of left humerous bone underneath.

(8) Multiple abrasion in an area of 6" x 3" on the forehead and upper part of front of skull.

(9) Abrasions 3/4" x 3/4" on the outer and above part of left eye.

(10) Abrasion 1/2" x 1/2" on the left temporal bone.

(11) Abrasion 3/4" x 1/4" on the bridge of the nose.

Note.No blackening, tattooing or charring around the wounds from 1 to 6 were found.

The death was due to shock and haemorrhage as a result of the antimortem injuries.

Sri Kishan Chand P.W. 4 transported the dead body in sealed cover alongwith papers for postmortem after the inquest report was prepared. Sri Prem Pal Singh, SubInspector, P.W.6 investigated this case, prepared inquest report and submitted chargesheet. The learned Additional Sessions Judge relied bn the evidence and convicted the appellants as above. Aggrieved by it, the present appeal has been preferred.

We have heard the arguments of the learned counsel for the appellants and learned A.G.A and have carefully gone through the entire evidence on record.

The main stress of the learned counsel for the appellants in long pains taking arguments is that the appellants have been implicated in this case by their enmies under a conspiracy and they were not present at the time of the incident nor the incident has been witnessed by any person. It is contended that the close scrutiny of the evidence show that all the witnesses belong to one gang who are highly inimical to the appellants and they could not have been seen the incident we, therefore, scrutinise the evidence of three eyewitnesses to examine whether they were correctly relied on by the learned Sessions Judge. However, before scrutinising the evidence it is proper to mention certain circumstance which can never belie, though the witnesses may tell lies.

It may be mentioned that it is admitted position that at the time of the incident there were large scale communal riots in the city of Aligarh where the incident has taken place. The report was called regarding this fact for which affidavit has been filed by Sri Mohd. Tahir, Additional City Magistrate, Aligarh. According to affidavit though there was no curfew at the time of the incident, but that time there was curfew from dusk to dawn. Sri Prem Pal Singh.S.I. who has investigated the case has also stated about this fact and he stated that due to the curfew B.S.F.,C.R.P.,P.A.C. and police was continuously patrolling the city. He also admitted that when he reached at the place of the incident, C.O. City, Inspector Civil Lines and other officers were already present there. The witnesses also admitted that within minutes of the incident the personnels of B.S.F..C.R.P. and P.A.C. arrived at the place of the incident. However, all the witnesses of the fact, namely, Rakshpal, Sajjan and Yashpal has admitted that they did not tell the names of the assailants to the personnels of the Armed Forces who reached there nor they tell as to from which vehicle they escaped from the place of the incident and to which side they had gone. This information would have resulted in the immediate arrest of the assailants as the information could have been sent by the wireless regarding their movements. This fact, therefore, clearly show that the assailants were not seen by any of the witness.

The other circumstance regarding it is that Prem Pal, I.O, P.W. 6 also stated that information regarding murders at that time were being given to the police control room immediately and information regarding this murder was also given to police control room at 5.05 p.m. which have been proved by the document Ext. Kha19. In this information it has been mentioned that unknown persons have committed the murder of Mahipal. Had the assailants were seen, their names would also have been mentioned. In any case, at least it should have been mentioned that the assailants escaped by motor cycle No. DHY 2394 and Fiat Car No. RSA 417 as mentioned in the F.I.R. and these vehicles were seen at the spot. The witnesses may tell lie, but circumstances can never tell a lie and this is important circumstance against the prosecution case.

Before scrutinising the evidence of the three witnesses of the fact, reference is also required to be made to the postmortem report. According to the prosecution case, all the four appellants fired with the revolvers at the victim. This version is corroborated by medical evidence as far as injuries No. 1 to 7 found on the person of the victim in postmortem examination. However, there are three other injuries No.8 to 11 which are abrasions. Injury No. 8 is an abrasion of 6" x 3" size on the forehead and upper part of front of skull. None of these injuries could be caused by firing shot by revolvers. Dr. V.K. Agarwal P.W.3 who conducted the postmortem in his examinationinchief has stated that these injuries could have been caused by the fall after being injured. No doubt there is no crossexamination on this point, but in our opinion explanation is not acceptable. Looking to the size of the injury No. 8, it appears that it could not be caused by fall. As there is no explanation of these injuries it also gives rise to reasonable doubt regarding the correctness of the prosecution case.

Now coming to the statements of prosecution witnesses, firstly, it may be mentioned that all of them are chance witnesses, whose presence at the time of the incident is not probable. Sri Raksha Pal complainant is resident of village Sikandarpur, P.S. Akrabad of district Aligarh. However, he also had a house in Mohalla Jankpuri, in city Aligarh and it may be expected that he may be living in Aligarh. However, he has stated that his house is at a distance of 45 furlongs from the place of the incident. He stated that he alongwith the victim and Sajjan P. W. 2 were going from Chharra bus station to the house of Vijai Pal Singh Engineer who is brother of the victim. The explanation given by him for going to Chharra bus station is not plausible. He has simply said that his buses runs from Chharra bus station to Shankara. That can be no reason from going to Chharra bus station on the day of the incident when there were riots in the city. He did not had any work at the bus station on that day.

The second witness is Sajjan Singh who was also accompanying him. The house of Sajjan Singh is situated in mohalla Surendra Nagar, Aligarh and is at a distance of 2 furlongs from the place of the incident. He has stated that he was going to the house of Vijai Pal Singh, engineer along with the victim. The house of Vijai Pal Singh, engineer as well as the house of Sajjan Singh both are situated in Mohalla Surendra Nagar. He has not given any reason as to why he went to Chharra bus station and was going from there alongwith the victim to the house of Vijai Pal Singh the brother of victim nor he stated where he found the victim.

The third and last witness of the fact is Yashpal P. W. 5 whose presence at the time of the incident is also not probable. He is resident of village Ausafali, P.S. Hardua ganj which is at a distance of 12 miles from the place of the incident. He had no house in the town of Aligarh. The explanation given by him for his presence at the time of the incident does not appeal to a reason. He has stated that he came to Court and reached at the Courts at 1 or 1.30 p.m. and waited there for his counsel for 1 1/2 to 2 hours but the counsel was not available therefore, he was returning back. He clearly stated that on the day he had no case in the Court. He further stated that he did not bring any paper and only came to the Court to consult the counsel. He did not tell the name of the Advocate to whom he wanted to consult. He admitted that he did not file any case thereafter. From his crossexamination it appear that he had absolutely no work on the day of the incident in the Court, therefore, there was no question of coming to the Court from his village situated at a distance of 11 12 miles. It is more so because the condition in the city was disturbed and riots were going on.

The further scrutiny of the evidence of witnesses show that they belong to one group and were highly inimical to the appellants and were interested in falsely implicating them. Sri Prem Pal Singh I.O. P.W. 6 in his crossexamination stated that on 181180 he found all the four witnesses of the fact (three examined and one Ved Pal) at the house of Shankar Pal Singh (scribe of the F.I.R.). There is no reason as to why all of them were there on 1811 80 and it appears that they are close with each other and are supporting the case for this reason.

It may also be mentioned that the complainant Rakshapal Singh has stated that immediately after the incident Shankar Pal Singh, brother of the victim arrived and F.I.R. was got written from him. That there is no reason as to why they waited for Shankar Pal Singh through the eyewitness Sajjan Singh P. W. 2 is graduate. The conduct of Rakshapal Singh P. W. 1 is also found doubtful in this matter for the reason that he has tried to suppress the facts. A first information report for the offence punishable under Section 392, I.P.C. was lodged on 4781 against Sarvesh, Anil Kumar and Hari Shankar by him. He stated that F.I.R. was written (scribed) by him and not by Shankar Pal Singh which statement was found to be false on the basis of other evidence and that first information report was also scribed by Shankar Pal Singh. The previous F.I.R. was lodged by the complainant as well as the present F.I.R. both were scribed by Shankar Pal Singh and the complainant has given false statement on this point.

The further scrutiny of the evidence of three witnesses show that each of them had enmity with the appellants. Raksha Pal Singh P. W. 1 has admitted that Mahipal was convicted under Sections 399 and 402, I.P.C. He has also admitted that Jagdish who was conductor of his bus was assaulted by the appellants Ranveer Singh and Narendra. That in that case he was a witness against them. He also stated that Sri Krishna brother of Mahipal victim and his wife were murdered in which Mahipal victim of this case and his brother Sughar Pal Singh were arrested and the appellant Ninnami was a witness in that case. He has denied this relation that the mother of Yashpal witness and wife of victim Mahipal are real sisters. The appellants have filed the copy of the statement of Yash Pal P.W. 5 recorded in Sessions Trial No. 23 of 1978, State v. Dalveer Singh, which is Ext. Kha8. In that statement he said that he is Saru of son of Shishu Pal (brother of the victim).

Now coming to the evidence of Sajjan Singh P.W. 2. It may be mentioned that he is a convict under Section 307, I.P.C. and stated that he was on bail at the time of the incident. He was also challaned in a case under Section 25, Arms Act. He is a graduate but did not himself prepare the F.I.R. nor gave any information on telephone to the police. Besides the fact that he is a chance witness, he also have a strong reason to implicate the accused. He has admitted that he, his father, brother uncle Yashpal P.W. 5 and Surendra son of deceased Mahi Pal were prosecuted for firing at Ninnami Singh appellant on 21378. The appellants had also filed the F.I.R. and chick report Ext. Ka8 and Ka9 which proved the same. He has admitted that he alongwith above persons were prosecuted in Sessions Trial No. 141 of 1986 under Section 307, I.P.C. in which the accused persons were convicted and sentenced to four years R.I. on 7981. He furtherstated that on 5180 one Mahendra Pal Singh was murdered and in that case he, victim, Mahipal Singh and his brother Shishu Pal Singh were accused. In that case, Ninnami Singh appellant was doing Pairvi and an application was moved to prove this fact to call Ninnami Singh in Court who was standing outside the Court. The copy of the application has been filed which is Ext. Kha16dated 151080.

Now coming to the statement of last witness of fact Sri Yash Pal Singh P.W. 5, he is also having enmity with the accused appellants. Shishupal Singh real brother of the victim Mahipal Singh were examined in Sessions Trial No. 23/78 on 24579 in which he stated that his son and Yashpal Singh are real ''Sarhu'' and he is closely related to the victim. He had also admitted that in the year 1978 his TAU'' Mahendra Singh was murdered. Indraveer Singh and Rakshpal Singh P.W. 1 were prosecuted in that case as it appear from the copy of the judgment dated 241175 Ext. Kha 12, F.I.R. Ext. Kha 10. Indra Veer Singh has stated in statement Ext. Kha 11 in that case that Ninnami is his uncle.

The above scrutiny of the evidence of the above witnesses show that