Ravindra Yadav vs State of U.P.

Anil Kumar Sharma, J.—In both the appeals, the appellants have challenged the judgment and order dated 3.11.2006 in S.T. No. 886 of 2002, State v. Shivpujan Singh and two others, whereby they have been convicted u/s 302 read with Section 34, I.P.C. and each of them has been sentenced to imprisonment for life and fine of Rs. 3,000, with default imprisonment for two years. However, both the accused have been acquitted u/s 506. I.P.C. Ravindra Yadav was also charged u/s 3/25 of Arms Act but found not guilty on this charge. The facts in brief as stated in the written report of Markandey Singh on 19.7.2002 and as narrated in the Court by the prosecution is that there was old criminal litigation and dispute over rasta between the complainant and co-accused Shiv Poojan Singh, and on this score he and his family bore enmity with the family of the complainant. It was alleged that in the night of 18/19.7.2002, the complainant''s son Anil Singh, aged about 28 years after taking meals was sleeping at the door of the house. Nearby Tej Bahadur Singh son of Tapeshwar Singh, Sanjai Singh son of complainant and others were also sleeping on different cots. At about 1.00 a.m. in the night due to barking of dogs and whispers of human movement they woke up and found that Shiv Poojan Singh alongwith his son Subhash Singh and Ravindra Yadav son of late Ram Awadh, r/o Village-Baidauli, P.S. Barhalganj, District-Gorakhpur, suddenly came at the door of the complainant''s house. Shiv Poojan Singh pointed out towards Anil Singh saying that he should not be left today as he is the enemy and on his exhortation Ravindra Yadav in order to kill, fired shot from his country made pistol and sustaining injury on the temporal region. Anil Singh died on the spot. Hearing the sound of fire, neighbours Ramesh Yadav, Pappu Yadav and others carrying torches rushed over towards scene of occurrence and then making fire from his country made pistol Subhash Singh threatened them to kill. Thereafter, the accused persons made their escape-good towards western side. The report of this incident was submitted by the complainant at police station-Barhalganj, District-Gorakhpur on 19.7.2002 at 6.30 a.m., which was registered at Crime No. 212 of 2002 u/s 302, I.P.C., investigation whereof was entrusted to S.I. Chandra Dev Chaudhary. He rushed at the spot and conducted inquest upon the dead body of the deceased same day at 8.30 a.m. and alongwith usual papers sent the same in sealed condition for post-mortem. Dr. Brijesh Kumar on 19.7.2002 at 4.20 p.m. conducted autopsy. He found that 28 years deceased was an average built. He found following ante-mortem injuries on his person.

Gun shot wound of entry 4 cm. x 3 cm. x brain deep on left side ear, margin inverted blackening and charring present around the wound, underlying temporal bone fractured, wound is directed left to right upward. Brain membranes lacerated. There is two pieces of log wedding and 35 metallic pellets were recovered. Singing of scalp hair present.

In the opinion of the doctor, the deceased suffered death about one day before due to coma as a result of ante-mortem injury.

The Investigating Officer recovered simple and blood stained earth from the spot as also a blood stained cover of mattress and a kathari on which the deceased was sleeping and prepared memo. He interrogated the witnesses and prepared site-plan. The same day the Investigating Officer searched for accused Ravindra Yadav from his house, but he was not available. However, a D.B.B.L. gun 12 bore alongwith 5 live cartridges 12 bore and gun licence of Radhey Shyam were seized. On 20.7.2002, on information of the informer accused Ravindra Yadav was arrested by the Investigating Officer at 12.15 a.m. and he got a country made pistol 12 bore recovered near a pond of village-Baidauli at 1.30 a.m. in presence of the public witnesses Deena Nath and Jagdish Tiwari. A recovery memo was prepared and its copy was furnished to the accused. On 21.7.2002, the Investigating Officer interrogated witnesses Sanjay Singh, Tej Bahadur. S.I. Bhaiya Lal Yadav, and Head Constable Veer Bahadur Yadav. He also visited the spot of recovery of firearm at the instance of the accused Ravindra Yadav and prepared site-plan. Later on investigation of the case was conducted by S.I. R.P. Tiwari, who obtained sanction from the District Magistrate for prosecution of accused, Ravindra Yadav u/s 3/25, Arms Act and sent the case property for examination to Forensic Science Laboratory. Lucknow, and after completing the investigation submitted charge-sheet against the accused persons.

After committal of the case to the Court of Session, charge for offences punishable under Sections 323/34 and 506, I.P.C. were framed against the accused persons. A charge u/s 3/25. Arms Act was also framed against accused, Ravindra Yadav. All three accused persons pleaded not guilty and claimed trial.

In order to prove its case, the prosecution has examined complainant Markandey Singh, P.W. 1, Sanjay Singh, P.W. 2, Pappu Lal Yadav, P.W. 3, constable Ram Dulare Rai, P.W. 4, Dr. Brijesh Kumar, P.W. 5, Deena Nath, P.W. 6. S.I. Rajendra Prasad Tiwari, P.W. 7 and S.I. Chandra Dev Chaudhary. P.W. 8.

In their separate statements u/s 313, Cr. P.C. both the accused have again denied the entire prosecution story as also incriminating circumstances appearing against them in the prosecution evidence. Accused, Ravindra Yadav has further stated that at the instance of Pappu Lal Yadav and Ramesh Yadav, the complainant-Markandey Singh has levelled false charge against him. According to him, Pappu Lal Yadav and Ramesh Yadav were inimical because uncle of Ramesh Yadav was convicted on his real uncle''s evidence. He is also witness against Pappu Yadav and Sanjay Singh in a criminal case and there is election rivalry between them. However, accused persons have not adduced any evidence in their defence.

On a consideration of the entire evidences on record, the trial court acquitted accused Shiv Poojan Singh, giving him benefit of doubt and convicted the accused/appellants as stated in first paragraph of the judgment.

On the first date of hearing counsel for appellants did not appear in Court, so the Court appointed Km. Rashmi Tripathi, amicus curiae in Criminal Appeal No. 6813 of 2006, and Sri Sandeep Kumar Singh, amicus curiae in Criminal Appeal No. 6780 of 2006. Later on Sri V.P. Srivastava, senior advocate, assisted by Sri Ranjanjay Kumar, advocate in Criminal Appeal No. 6813 of 2006 put in appearance. We have heard Sri Srivastava and both the amicus curiae and Sri R. A. Mishra, learned A.G.A. Tor the State. We have also perused the original record of the case.

Learned counsel for the appellants has assailed the judgment and order of the trial court on following grounds :

that the prosecution could not prove sufficient motive for the accused to kill the deceased;

that the F.I.R. is delayed, it has not been sufficiently explained by the prosecution :

that the alleged incident took place at dark mid night and single shot was allegedly made at the deceased so it is shot and run affair'' and no body could see and recognise the real assailants as there was no light at the spot and the prosecution has introduced the light of electric bulb and torches of witnesses;

that the alleged eyewitnesses had no occasion to identify the accused while they were running away in torch light:

that no active role has been assigned to accused Subhash Singh so he could not be convicted with the aid of Section 34, I.P.C.:

that there are material contradictions and inconsistencies in the prosecution evidence;

that only 35 pellets were allegedly recovered from the body of the deceased by the doctor whereas Forensic Science Laboratory has examined 104 pellets sent by the Investigating Officer.

Per contra Sri R.A. Misra, learned A.G.A. supporting the impugned Judgment has contended that through the evidence of witnesses of fact, the prosecution has successfully proved the motive for the crime; that there was sufficient light to identify the accused persons and more over they were residents of same village : that the deceased had been killed by all the accused sharing their common intention, although specific role had been assigned to accused Subhash. He further submitted that prosecution has not improved its case by introducing source of light at the spot, as the Investigating Officer had found lighting bulb under the ausara of complainant and has also prepared memo regarding torches of complainant, P.W. 3 and Ramesh Yadav after having found them in working condition.

Before we take up the points raised before us by the parties'' counsel it would be necessary to note the basic features of the case. The incident had taken place at about 1 a.m. in the night outside the house of the complainant, therefore, the presence of complainant and his son Sanjay Singh was quite natural and cannot be doubted. The house of Pappu Lal P.W. 3 is situated at a distance of only 100 metres from the house of the complainant and according to him he woke up at about 1 a.m. for easing himself, then the sound of fire attracted him, he rushed towards the scene of occurrence and in torch light identified accused Shiv Pujan Singh (acquitted by the trial court) Ravindra Yadav and Subhash, who were carrying country made pistols in their hands. He enquired from them as to where they were running. They retorted and it is none of his business. The complainant got the written report scribed from Brahm Dutt Soni and handed over at the police station Barhal Ganj on 19.7.2002 at 6.30 a.m.

MOTIVE

It has been stated by the complainant in his written report that named accused Shiv Pujan Singh is his pattidar and there was enmity between them on account of old litigation and dispute over rasta. Accused Subhash Singh is son of Shiv Pujan Singh. Although both these accused have denied this enmity in their statements u/s 313, Cr. P.C., but at the same time have stated that they have been falsely indicted in the case on account of enmity. Thus enmity between the families of complainant and Shiv Pujan Singh Is not disputed. It has been vehemently argued by learned counsel for accused Ravindra Yadav and that he has no enmity with the complainant and he has been implicated in the case on account of animosity with Pappu Yadav P.W. 3 and his family. It is important to note that role of causing single fire arm injury to the deceased had been attributed to accused Ravindra Yadav. Had the complainant named the accused persons on account of enmity he could have assigned the role of firing on Subhash instead of Ravindra Yadav. As regards Pappu Yadav P.W. 3, he has not stated that he had seen the accused persons at the spot firing shot on the deceased. He had simply stated that at about 1 a.m. he woke up to attend natural call and then he heard sound of fire and thereafter alongwith his brother Subhash with torches he proceeded towards the scene of occurrence and found all the three accused running and at that time Ravindra Yadav and Subhash were having country made pistols in their hands. He intercepted and questioned them as to from where they were coming during night? They retorted that he had no business. If the report was prepared with consultation of Pappu Yadav he could have stated that he had seen the accused persons at the spot committing murder of the deceased. This witness has admitted that there was election of village Pradhan between his sister-in-law and wife of accused Ravindra Yadav and during the Pradhan tenure of her sister-in-law the pukki drain at the door of Mankandey Singh was constructed through which the water of many other persons is flowing. The witness has further admitted that on 9th June, 2000 co-villager Hirday Shanker Sharma lodged a report against him, Anil Singh (deceased) and Sanjay Singh P.W. 2, wherein accused Ravindra Yadav and his brother Ashok Yadav were witnesses. He has fairly admitted in cross-examination that he has not seen the incident with his own eyes. Thus, it is seen that Ravindra Yadav accused was witness against the deceased, his brother and Pappu Yadav P.W. 3, so the possibility cannot be ruled out that he has Joined hands with Shiv Pujan Singh and others to take revenge from the complainant''s family. Thus, motive for all the accused to commit the instant crime is duly proved.

First Information Report

The alleged incident took place at about 1 a.m. in the intervening night of 18th and 19th July, 2002 and its written report was submitted by the complainant at 6.30 a.m. on 19.7.2002. The distance between the place of occurrence and the police station as per check report Ex. Ka-2 is 6-kilometres. In cross-examination complainant has stated that after the incident they left for police station at 5 a.m. The written report was dictated by him to Braham Dutt Soni about 1-1/2 hour of the incident. He has further stated that when he reached the police station darogaji was not there and he met diwanji. He stayed at the police station for about half an hour and during this time the sub-Inspector also arrived there. His statement was recorded at the police station. He has stated that Pappu Yadav and Braham Dutt have accompanied him to the police station, but Pappu Yadav had denied this fact in cross-examination. However, copy of G.D. Ex. Ka-3 supports the statement of complainant that Pappu Yadav was with him when he reached police station for lodging the report. The Investigating Officer P.W. 8 has also stated that he interrogated the complainant and Pappu Yadav at the police station after registration of the case. The testimony of Pappu Yadav was recorded in the trial court nearly three years after the incident, so It may be possible that due to lapse of time he forgot about this fact. The time of registration of case has also been proved by S.I. Ram Dulare Rai P.W. 4 who had prepared check report and registered the case in the general diary on the basis of written report of the complainant. Thus, we find that there is no inordinate delay in reporting the crime to the police. The importance of prompt report of the crime to the police is well known as it rules out the possibilities of concocting the story of incident after consultations and deliberations. Such report can very well be taken into consideration for corroborating the other prosecution evidence.

The Real Incident, Identification and Role of Accused Persons

Learned senior counsel appearing for the appellant Ravindra Yadav has vehemently argued that from the contents of the F.I.R. it appears to be a case of ''shot and run'' affair during dead hour of night and as such there was no occasion for any one to have seen and Identify the real culprits and the accused had been named due to previous enmity. This argument was also adopted on behalf of other appellants. It has been further submitted that there is no mention of source of light in the F.I.R. and the light of electric bulb and torches had been introduced in the story afterwards. On the face of it, the arguments appear to be attractive, but in the facts and circumstances of the case as also from the evidence available on record they are fallacious. The case of the complainant from the beginning is that they woke up due to barking of dogs and hearing whispers of human movement and they saw accused persons in the light of electric bulb light. No doubt light of bulb and torch is not mentioned in the written report, but it has no insignificance, because the Investigating Officer has found an electric bulb lighting under the chhappar of the complainant near the place of occurrence. All the witnesses of fact have spoken about the source of light. P.W. 8 has also prepared memo Ex. Ka-18 regarding torches of P.W. 1, P.W. 3 and Ramesh s/o. Jang Bahadur Yadav and found that all were in working condition and their signatures were also obtained on this memo. If P.W. 1 could not state about preparation of memo regarding his torch in his cross-examination, it does not make any difference, because the memo Ex. Ka-18 was prepared by the Investigating Officer few hours after the murder of young son of the complainant. At that time he must be in great shock, anger and trauma. It has come in the statements of P.W. 1 and P.W. 2 that when they tried to surround the accused persons, accused Subhash making fire threatened that any one who stepped forward would be killed. Thus, the evidence on record clearly show that there was ample time and sufficient light for the prosecution witnesses to see and recognize the accused persons, who were they were co-villagers. Shiv Pujan Singh and his son Subhash were family members of the complainants, so there cannot be any mistake in wrongly identifying the accused persons. However, since the incident had taken place in rural area and people of country side are used to work in the light of earthen lamp, so their competence of vision during night hours is better than the urban people. In the case of Kalika Tiwari and others Vs. State of Bihar, , the Apex Court has made observations about the vision capability of village people in the following manner :

The visible capacity of urban people who are acclimatized to fluorescent light is not the standard to be applied to villagers whose optical potency is attuned to country made lamps. Visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such lights.

As regards non-mention of electric bulb and torch light in the written report is concerned, suffice it to say that the F.I.R. is not the encyclopaedia of the prosecution story. We have already observed the mental status of the complainant after the incident and at the time of dictating written report. Thus, we find that there is no improvement in prosecution story regarding introduction of source of light at the time of occurrence, as argued by the learned senior counsel.

Right from the written report till the evidence was adduced before the trial court, the consistent case of the prosecution is that all the accused came together at the house of the complainant at about 1 a.m. on 19.7.2002 and on exhortation of co-accused Shiv Pujan Singh, accused Ravindra Yadav fired shot on deceased Anil Singh from point blank range and when the witnesses tried to apprehend the accused Subhash firing shot threatened them to kill. P.W. 1 to P.W. 3 have been put to gruelling cross-examination, but no material inconsistency has crept in their statements in this regard. In the wake of this evidence, the argument of learned counsel for Subhash that no active role has been assigned to him has no force. The Investigating Officer has collected sample of plain and blood stained earth (Memo Ex. Ka-15) and also took in possession cover of mattress and kathari smeared with blood of the deceased from the cot on which the deceased was sleeping from the spot through memo Ex. Ka-16 in presence of public witnesses. Both these articles were sent for chemical examination to Forensic Science Laboratory, Lucknow who in its report Ex. Ka-19 has found human blood on the above articles. It is trite law that recovery of blood stained earth and other articles having blood stains of deceased from the scene of occurrence fixes the spot of crime. In the fact the defence has not disputed the place of incident. Thus, we conclude that the prosecution has been able to establish that the accused-appellant Ravindra Yadav sharing common intention with other co-accused had killed the deceased in the night of 18/19.7.2002 at about 1 a.m. outside his house by firing close range shot from his country made pistol and accused Subhash fired shot from his country made pistol and threatened the witnesses through the cogent, clear and reliable evidence of P.Ws. 1 to 3 and there are no material contradictions or inconsistencies in their statements.

Learned counsel for accused Subhash has then argued that Dr. Brijesh Kumar P.W. 5 has recovered 35 metallic pellets from the body of the deceased during autopsy which were allegedly sent for examination to F.S.L., Lucknow, but the Laboratory has found 104 pellets in the sealed packet sent by the Investigating Officer. The contention of the learned counsel for the appellant is correct, but it appears that no question has been asked from the Investigating Officer about this irregularity during his cross-examination. It was incumbent upon the defence counsel to have an explanation from the Investigating Officer about this lapse. Unless and until the ambiguity is put to the Investigating Officer in his cross-examination, the defence cannot derive any benefit therefrom. This is certainly an act of negligence on the part of the Investigating Officer, but the prosecution story cannot be doubted only on this ground.

The ocular account of the incident finds full corroboration from the medical evidence. Dr. Brijesh Kumar P.W. 5 has proved his postmortem notes Ex. Ka-4. Dr. Kumar has stated in cross-examination that after sustaining the injury deceased must have remained in comma for some time, but he cannot tell the exact duration. He has specifically denied the defence suggestion that the fire had been shot from a distance of 8-10 steps and has given cogent reasons for his opinion. Thus the statement of the doctor corroborates the eyewitness account of incident that the fire was shot from point blank range. Learned counsel for the appellants has also drawn our attention to the statement of Dr. Kumar where he has stated that the position of intestines shows that the deceased had been on fast during the day. On this score, the learned counsel submitted that the medical evidence belies the story of the complainant in written report that the deceased had slept after taking meals before the incident. We do not find substance in the arguments, because the question had been asked about position of intestines, whereas pasty meal was found in the stomach of the deceased. Further, the statement of the doctor is merely his opinion and cannot displace the otherwise reliable testimony of eye-witnesses, who is no other than the father and brother of the deceased.

In view of the foregoing reasons, we are of the opinion that the prosecution has successfully proved its case beyond reasonable doubt and the accused-appellants were rightly held guilty for committing murder of deceased Amit Singh in furtherance of their common intention. The appeals have no force and are accordingly dismissed.

Both the amicus curiae appointed by this Court would get Rs. 2,100 each, which shall be paid to them in a month. Let certified copy of the judgment be sent to the Court concerned for compliance, which shall be communicated to this Court within two months positively.