Parmal Singh vs State of U.P.

Rakesh Tiwari and Arvind K. Tripathi, JJ.—Since both the appeals are arising out of Case Crime No. 55/91 and judgment of conviction in S.T. No. 67/91, hence both the appeals are being taken up together.

No one is present for the Appellants. Learned A.G.A. was requested to assist.

The present appeal is being heard to dispose on merit, in view of judgment of Hon''ble Supreme Court in the case of Bani Singh and ohters Vs. State of U.P.,

Heard learned A.G.A. and perused the record of both the appeals.

Present Criminal Appeal No. 109/97 has been filed by Narendra Singh S/o Ram Singh Thakur, Mahendra Singh S/o Ram Adhar Singh R/o Sirhaul, Police Station Jaswant Nagar, district Etawah against the judgment and order of conviction and sentence dated 16.1.1997, passed by learned Special Judge (D.A.A.) in S.T. No. 67/91 convicting the Appellant Narendra Singh u/s 302 read with Section 34, I.P.C. and sentenced for a period of life imprisonment, u/s 394, I.P.C. sentenced to undergo five years'' R.I. convicted u/s 15 of the U.P. D.A.A. Act and was sentenced to undergo five years R.I. with fine of Rs. 1,000. In default of payment of fine he was to undergo six months'' R.I. The Appellant was also convicted u/s 25, Arms Act and was sentenced to undergo one year''s R.I. The Appellant Mahendra Veer was convicted u/s 302/34, I.P.C. and was sentenced to undergo for life imprisonment u/s 394, I.P.C. and was sentenced to undergo for a period of five years'' R.I. with the direction that all the sentences should run concurrently.

Criminal Appeal No. 161/97 has been preferred by accused-Appellant Parmal Singh s/o Lakhan Singh r/o Mhabbatpur, P.S. Jaswant Nagar district Etawah who was convicted and sentenced u/s 302 read with Section 34, I.P.C. for a period of life imprisonment and further was convicted u/s 394, I.P.C. and was sentenced to undergo for a period of five years R.I. with the direction that all the sentences should continue to run concurrently. They were accused in the present case arising out of Case No. 55/91 registered at Police Station, Chhata, district Agra on 30.1.1991. There were four accused and the case of the accused Krishna Veer Singh alias Babloo was separated vide order dated 6.1.1997 as he was declared juvenile at the time of cross-examination and his case was sent to the Juvenile Justice Board for trial.

The brief fact of this case is as follows:

On 30.1.1991, the first information report was lodged by the informant P.W. 1 Ranchhor Das Tandon at police station Chhata, district Agra who was resident of Varanasi dealing with the business of saries. He had a firm which deals with the saries and also had five other firms. On 30.1.1991 he alongwith his Munim Yogendra Yadav was at Agra in connection with the business of saries and for collection of the dues from the businessmen. They collected the outstanding dues from the various firms at Agra and after collecting money six bank drafts were prepared with regard to the amount collected earlier. However, subsequently the amount collected on 30.1.1991 was Rs. 42,700. The aforesaid amounts were collected from the firms situated at the different places, i.e., Kinari Bazar, Jauhari Bazar and Subhash Bazar. On the date of incident the informant Ranchor Das Tandon was going alongwith his Munim to Gudri Mansoor Khan through Peepal Mandi and his Muneem was having bag containing drafts, cash etc. When both of them reached in front of the temple of Lord Shiv Ji at about 9.30 p.m. they saw four miscreants standing there who intercepted both of them. They tried to snatch the bag from his Munim Yogendra Yadav and one of them brandished his country-made pistol and asked them to hand over the bag. When the Munim resisted then one of the miscreants fired and they forcibly snatched the bag. The Munim received firearms injuries and fell down on the spot. They raised alarm which attracted S.I. Kanhai Singh and Constable Surendra Kumar Mishra who were present at the police outpost Peepal Mandir and they reached on the spot. Those miscreants threatened to the police party also and brandished their country made revolver. A panic was created in the market. Accused-Appellant Narendra Singh was arrested just after few steps from the place of incident. However, three of the miscreants succeeded to run away from the spot. The bag was recovered from the accused-Appellant Narendra Singh containing Rs. 42,700 which was looted from the Muneem of complainant. Six bank drafts of State Bank of India and Oriental Bank of Commerce were also recovered alongwith some relevant papers relating to the business of the complainant which were kept in the bag. After search was made one country made pistol alongwith one empty and five live cartridges were also recovered regarding which he had no licence. The cash, bank drafts etc. and relevant papers recovered from him were sealed in the same bag and country-made pistol and cartridges were also sealed separately. The injured Munim was taken to the hospital however, he succumbed to the injuries on way to the hospital.

The first information report was lodged by P.W. 2, Ranchhor Das Tandon at police station Chhata, district Agra on the same day, i.e., 30.1.1991 at 10.45 p.m. which was recorded by the Head Moharrir Surendra Singh Chauhan who made entry in the general diary. S.I. Kripa Shanker Dubey, prepared the inquest report of the deceased and relevant papers for the post-mortem examination of the deceased Munim Yogendra Yadav. The inquest memo was Ext. Ka-4. The post-mortem examination of the deceased Yogendra Yadav was conducted by Dr. R.C. Gupta, P.W. 1 on 31.1.1991 at 4.30 p.m. S.H.O. Tejeswar Pal Singh investigated the case and arrested the remaining three accused-Appellants at about 11.50 p.m. on the same day near Vedant Temple who was examined as P.W. 7. The accused Narendra Singh identified three remaining accused who participated in the commission of crime alongwith him. The informant Ranchhor Das Tandon also reached on the spot at the time of arrest of the other three accused Parmal Singh, Krishna Veer Singh alias Babloo and Mahendra Veer Singh and he also identified them. From the possession of accused Parmal Singh one country made pistol and three live cartridges were recovered, from accused Mahendra Veer two bombs were recovered and from the co-accused Krishna Veer alias Babloo one country-made pistol was recovered. The statement of the witnesses were recorded by the Investigating Officer on the next day. The site plan was prepared. After permission was obtained from the District Magistrate, Agra to prosecute the accused Narendra Singh u/s 25, Arms Act, the charge-sheet was submitted. All the three accused-Appellants pleaded not guilty and asked for the trial and urged that the entire allegations against them were false. The accused Mahendra Veer Singh. Krishna Veer Singh and Parmal Singh also pleaded that they were apprehended by the police of police station Kedara Nagar where their sister resides. The accused Narendra Singh did not plead anything except that of bare denial and false implication.

Dr. R.C. Gupta was examined as P.W. 1 who conducted the post-mortem examination, Ranchhor Das Tandon who lodged the first information report was examined as P.W. 2, Constable Abdul Mateen Khan was examined as P.W. 3, Constable Brijpal Singh was examined as P.W. 4. S.I. Kripa Shanker Dubey was examined as P.W. 5 and H.C. Surendra Singh as P.W. 6. Tajeshwar Pal Singh, the Investigating Officer was examined as P.W. 7. The accused also examined in defence as D.W. 1 Smt. Saroj Devi, D.W. 2 Dr. D.B. Bhargava and D.W. 3 Smt. Kusum Lata. Smt. Saroj Devi was examined on the point that these accused-Appellants namely Mahendra Veer Singh, Krishna Veer Singh and Parmal Singh were apprehended by the police from the house. Smt. Kusum Lata and Dr. D.B. Bhargava, were examined on the point of minority of accused Krishna Veer Singh alias Babloo.

Dr. R.C. Gupta P.W. 1 stated that he conducted the post-mortem examination of the deceased Yogendra Yadav on 31.1.1991 at about 4.30 p.m. The dead body of the deceased was brought by the constable Brij Pal Singh, police of police station Chhata. The Doctor found following ante-mortem injury:

A gun shot wound of entry 1 cm. x 1 cm. (circular) front and upper part of abdomen on the mid line, blackening present, margins inverted.

Dr. R.C. Gupta, P.W. 1 further deposed that from the internal examination, he found that the bladder was empty, peritoneum was ruptured and there was free and clotted blood about two litres in the abdomen cavity, digestive food was found in small intestine. According to his opinion the cause of death was due to shock and haemorrhage as a result of aforesaid ante-mortem injury. On 31.1.2009 at about 9.30 p.m. the injury could be inflicted. The post-mortem examination report is Ext. Ka-1.

In view of the statement of P.W. 1 Dr. R.C. Gupta, it is clear that the cause of death was due to gun shot injury. P.W. 2 Ranchhor Das Tandon has filed the first information report stating that when there was resistance by Muneem, miscreants fired and bag containing Rs. 42,700, six bank drafts and other relevant papers belonging to him which was with his Muneem was snatched by the accused-Appellants. In his statement he has corroborated the prosecution story narrated in the first information report.

According to P.W. 2 at the place of incident in front of temple of Lord Shiv there was light from the electric pole and in the electric light he has identified all the four miscreants. He has clearly deposed in the examination-in-chief corroborating the fact of the first information report. In examination-in-chief, he has stated that he was having business of saries at Varanasi and used to supply the same at Agra. He had visited Agra 3-4 days prior to the incident dated 30.1.1991. The money due from the traders was collected from the various traders at Kinari Bazar, Subhash Bazar at Agra and after collection daily they used to get the bank draft prepared. Six bank drafts were prepared after amount was collected earlier from the traders at Agra. Subsequently Rs. 42,700 was collected from the traders and that was with his Munim in the bag alongwith the bank drafts and other valuable business papers.

The accused-Appellant Narendra Singh was apprehended just at a few steps from the place of occurrence. The bag containing all the bank drafts, cash Rs. 42,700, and other valuable papers were recovered. The bag snatched by him containing Rs. 42,700 and six original bank drafts with valuable papers were recovered in presence of the informant P.W. 2. According to P.W. 2 when he reached near the Peepal Mandi he saw that four miscreants were standing in front of Vedant Temple of Lord Shiv and those miscreants surrounded them and tried to snatch the bag from the deceased Munim Yogendra Yadav. Munim resisted, then Narendra Singh opened fire upon Munim Yogendra Yadav who received firearm injuries on his chest. The bag containing cash and drafts and other relevant papers were snatched by the miscreants. When the alarm was raised the police party reached on the spot. The other accused-Appellants succeeded to run away from the spot. However, the accused Narendra was apprehended on the spot. Apart from the looted bag containing cash and drafts etc. on search a country-made pistol with one empty cartridge and five live cartridges were recovered. He identified the accused-Appellant, Mahendra Veer Singh, Parmal Singh and co-accused Krishna Veer Singh who were involved in the incident. The accused-Appellant Narendra Singh was apprehended on the spot. The accused-Appellants present in the Court, were also identified in the Court by P.W. 2.

In the cross-examination of P.W. 2 who is scribe of the first information report and is eye-witness nothing was suggested on behalf of the defence why he was implicating them. He was resident of Varanasi and outsider for Agra. Even there was no averment in the cross-examination which might be contradictory to the examination-in-chief or which did not corroborate with the version of the first information report. There was no motive to falsely implicate the Appellants by P.W. 2. Merely on the ground that there was no injury on the person of Narendra Singh, his arrest on the spot could not be disbelieved because he was arrested on the spot while he was trying to escape with the bag containing looted cash etc. in presence of P.W. 2, the scribe of the first information report who identified him.

The defence witnesses, D.W. 1 Smt. Saroj Devi the sister of the accused-Appellant Krishna Veer Singh was examined to prove the defence version of alibi that the Appellants Mahendra Singh, Parmal Singh and co-accused Krishna Veer Singh were not present on the spot at the time of the incident rather they were apprehended from the house by the police. According to her statement they were called by the police on 30/31 at about 9 to 9.30 p.m. They were taken by the police on the pretext that they were called by the accused-Appellant Narendra Singh. Apart from that there was no independent witness to prove that the accused-Appellant Mahendra Veer Singh and Parmal Singh were not involved in the incident and were apprehended from the house of D.W. 1. Two other defence witnesses D.W. 3 Smt. Kusum Lata, the mother of the accused Krishna Veer Singh and Doctor D.W. 2 were examined just to prove that accused Krishna Veer Singh was juvenile at the time of the incident. As mentioned earlier, the case of accused Krishna Veer Singh was referred to the Juvenile Justice Board.

Neither in the cross-examination on behalf of the defence any motive was suggested regarding false implication by P.W. 2 nor anything was suggested in the statement of the accused-Appellant recorded u/s 313, Code of Criminal Procedure. The incident took place at 9.30 p.m. and according to P.W. 1 Dr. R.C. Gupta, who conducted the post-mortem on the body of the deceased, that peritoneum was ruptured. Digestive food was found in the small intestine and faecal matter in the large intestine. The incident took place at about 9.30 p.m. and the first information report was lodged by P.W. 2 at 10.45 p.m. The distance of the police station Chhata from the place of the incident was about 1-1/2 km. Since the accused-Appellant Narendra Singh was arrested on the spot from whose possession looted bag containing cash and drafts and further country made pistol with cartridge were recovered hence sometime has taken place for preparation of recovery memo of recovered articles and to complete necessary formalities of the recovery before he came to the police station alongwith the police personnel. There was no delay in lodging the first information report rather the F.I.R. was lodged promptly.

It is also clear from the statement of Investigating Officer P.W. 7 that when Narendra Singh informed that the other accused-Appellants and co-accused Krishna Veer Singh might be available at the house where they were residing. Then S.H.O. T.P. Singh alongwith S.I. Ram Kumar Awasthi and Dheeraj Pal Singh Malik with constables proceeded for search and arrest of the other miscreants. When the police reached at the house situated at Kaushalpur they were not available there. However, when he reached near Vedant Temple at 11.50 p.m. the accused-Appellants Parmal Singh and Mahendra Veer Singh and co-accused Krishna Veer Singh were seen in the electric light. They were coming from the side of the Jeevan Mandi Chowki. After seeing them accused-Appellant Narendra Singh informed that those were three Appellants who were involved alongwith him and who succeeded to escape from the spot. They were immediately surrounded and apprehended and after search recovered country made pistol and bombs from their possession. Within two hours of the occurrence other three accused were apprehended. In cross-examination and in the statement u/s 313, Code of Criminal Procedure nothing was suggested why the accused-Appellants were falsely implicated by the S.H.O. P.W. 7 and other police personnel who were also examined as prosecution witnesses. Only this much was suggested that they were falsely implicated by the police.

It was also suggested on behalf of the defence that behaviour of P.W. 2, informant was not natural because if he would have been present on the spot he might have tried to save life of the injured and immediately he might have taken him to hospital. This was explained by P.W. 2 in his statement that he was asked by the police personnel to remain at police station and injured was taken to the hospital with the assistance of the police however he succumbed to the injury in way to the hospital. Hence, it cannot be said that the conduct and behaviour of P.W. 2 was unnatural or his evidence was doubtful. P.W. 2 came from Varanasi alongwith his Muneem and his presence was natural.

It was further case of defence that arrest on the spot was doubtful because if accused-Appellant Narendra Singh would have been arrested on the spot he must have sustained some injury.

Before trial court judgment of the cases of Vinod Kumar v. State of U.P. 1985 ACR 40 and Shamli v. State of U.P. 1992 ACR 32, were cited.

In case of Vinod Kumar, the accused was arrested on the spot who caused knife injuries to victim and the accused received only two minor injuries on the person, hence his spot arrest was found doubtful.

In the present case when P.W. 2 raised alarm the police personnel were present at the police chowki situated near the place of the incident, reached on the spot and the accused-Appellant Narendra Singh was apprehended by the police in presence of P.W. 2. There was threatening on the part of the accused that if any one try to apprehend they would not only fire but also they would throw bombs and would destroy the shop etc. because they had ample arms and they would burn the market and also demolish the mosque. A panic was created in the market and shopkeepers down their shutters. They tried to run after firing but the informant P.W. 2 and other person with the help of police succeeded to apprehend the accused-Appellant Mahendra Veer Singh. Since he was apprehended just at a distance of few steps from the place of incident with the help of police but no force was used against them. Even due to panic and terror there was no crowd on the spot and even police was present hence no injury could be caused to him by the public. Merely on this ground the arrest of the Appellant on the spot and recovery of looted bag from his possession especially in the presence of P.W. 2, who was resident of Varanasi and has no motive to falsely implicate, will not be doubtful.

In the case of Shamli v. State, when the accused was arrested on the spot no injury was found on the person of the accused but in that case four eye-witnesses, out of five were declared hostile and hence the prosecution story was not found beyond doubt, hence the benefit was given to the accused.

The constable Abdul Mateen Khan P.W. 3 has also supported the prosecution case including the statement of the informant Ranchhor Das Tandon. According to P.W. 3 Abdul Matin Khan when the alarm was raised he was present at the police out post and when he reached he found that the deceased has received injury. The shopkeepers were downing their shutters. He has also supported the prosecution case regarding arrest of accused Narendra Singh on the spot with the help of other police personnel. Police immediately reached on the spot. P.W. 1 and P.W. 3 have supported the version of P.W. 2 Ranchhor Das Tandon. Some minor contradiction are natural but there was no such contradiction in the statement of the witnesses creating any doubt regarding involvement of the accused-Appellant or regarding prosecution story.

It was pointed out that the statement of the informant Ranchhor Das Tandon was not recorded on the same day rather it was recorded on the next day, hence there was delay in recording statement of the ocular witness by the Investigating Officer.

In view of the fact there was no delay in recording the statement of the ocular witnesses, Ranchhor Das Tandon, P.W. 1, Abdul Matin Khan, P.W. 3 by the Investigating Officer. When the accused-Appellant Narendra Singh informed to the Investigating Officer that those three miscreants might be available at the house where they were residing and might be apprehended, then instead of wasting further time, the Investigating Officer proceeded firstly to apprehend other three miscreants involved in the incident. The conduct of the Investigating Officer was natural. All the remaining accused were apprehended at about 11.55 p.m. in the night. There was recovery from them. They were apprehended within two hours of the incident. They were brought to the police station. Thereafter next day other formalities were completed regarding panchayatnama etc. and the statement of ocular witnesses were also recorded and in fact these facts support the prosecution story. The witnesses have fully supported the prosecution case in their statement. The scribe of the first information report Ranchhor Das Tandon P.W. 2 who is ocular witness and P.W. 3 Constable Abdul Matin Khan and the Investigating Officer P.W. 7 have stated in detail and proved the prosecution case regarding involvement of the accused-Appellants in the incident and recovery made from them as well as with regard to the subsequent necessary formalities. One eye-witness Ram Niwas and other person also reached on the spot. According to Ranchhor Das Tandon P.W. 2 when he was at the place of occurrence at that time one Ram Niwas and other person arrived there. They were asked to be a witness of the recovery but neither it was mentioned in the recovery memo nor it was mentioned in the statement of witnesses. Those witnesses were not inclined to be a witness of the recovery and if it was not specifically mentioned then it is minor discrepancy. Merely on this ground the recovery in presence of P.W. 2 and P.W. 3 will not be doubtful.

In view of the fact and circumstances of the present case neither the presence of P.W. 2 and P.W. 3 are doubtful nor there was any motive to falsely implicate the accused-Appellant in the present case. Hence, merely on the ground that those two witnesses or any other person were not examined as prosecution witnesses, the statement of P.W. 2, P.W. 7 and P.W. 3 are not liable to be disbelieved. The prosecution has proved its case beyond reasonable doubt. There are no such discrepancy which may create doubt with regard to the prosecution case for which the benefit might be given to the accused-Appellants. The medical report corroborated the F.I.R., case and statement of eye-witness. There is no material contradiction in the statement of P.W. 2, P.W. 3 and other witnesses, hence the prosecution has proved the case beyond reasonable doubt even medical evidence has clearly proved the prosecution case. One empty cartridge alongwith live cartridge were recovered from the accused-Appellant Narendra Singh when he was apprehended on the spot.

Constable Surendra Singh was examined as P.W. 6 who has proved the first information report and general diary entry, the copy of which was filed. There was argument on behalf of the defence that there was lack on the part of the police in sending the copy of the general diary to the Circle Officer and in cross-examination P.W. 6 has admitted that in the general diary entry the sending of the report was not mentioned but merely on that ground the prosecution story and the ocular witnesses will not be disbelieved. It is a case of robbery in which while trying to snatch the cash and drafts the accused-Appellant committed murder of the deceased Yogendra Yadav who was Munim of P.W. 2. Ranchhor Das Tandon who was carrying bag containing cash and drafts etc. The incident was at a public place near market. The Appellant-Narendra Singh was immediately arrested on the spot. On the same day within two hours of the incident other accused-Appellants were also apprehended.

Since the accused-Appellants Mahendra Singh and Parmal Singh were sharing common object, hence they were rightly convicted u/s 302/34, I.P.C. for the murder of the deceased Yogendra Yadav and apart from the other section including Section 394, I.P.C. and Section 15, D.A.A. Since the Appellant Narendra Singh has committed murder of deceased Yogendra Singh while trying to snatch the bag and there was resistance by the Munim and when he was injured then looted bag containing cash and bank draft etc. There was recovery of the looted articles and firearm from his possession hence he was rightly convicted and sentenced under Sections 302 and 394, I.P.C. alongwith other sections.

Hence, we are not inclined to interfere in the judgment and order of the conviction and sentence passed by the Special Judge, D.A.A., Agra on 16.1.1997 . The conviction and sentence awarded in S.T. No. 67/91, passed against the accused-Appellants Narendra Singh, Mahendra Veer Singh and Parmal Singh are confirmed. The bail to the aforesaid accused-Appellants are cancelled and sureties furnished by the Appellants are hereby discharged.

In view of the above both the appeals are hereby dismissed.

The Chief Judicial Magistrate concerned is directed to ensure the arrest of the aforesaid Appellants to serve out the sentence as awarded by the trial court in S.T. No. 67/91, State v. Narendra Singh, Mahendra Singh and Parmal Singh.