Babloo Alias Virendra And Others vs State Of U.P.
2012 Latest Caselaw 789 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									      AFR
 
								      Court No. 46
 
								       Reserved.
 
	
 
			    Criminal Appeal No. 6952 of 2010.
 
Babloo @ Virendra  and others
 
Vs.
 
State of U.P.
 
Hon'ble Amar Saran, J.

Hon'ble P.K.S. Baghel, J.

(Delivered by Hon'ble Mr. Justice P.K.S. Baghel,J.)

The appellants Babloo @ Virendra, Sandeep and Dharmvir have preferred this Criminal Appeal under Section 374 (2) Cr.P.C. against the judgment and order dated 15.10.2010 passed by the First, learned Additional Sessions Judge, F.T.C. No.1, Bijnor in S.T. No. 242 of 2010, Crime no. 1101 of 2009 and S.T. No. 243 of 2010, Crime No. 1103 of 2009. The appellants were put to trial and the trial court convicted them for the offences under Sections 302/34 IPC sentencing them to undergo life imprisonment with fine of Rs. 20,000/- each. The appellant no. 1- Babloo @ Virendra has also been convicted under Section 25 of the Arms Act for two years R.I. in S.T. No. 243 of 2010, Crime no. 1103 of 2009.

Facts of the appeal are these: The appellant no.1 Babloo, resident of village Bhogpur, police station Chandpur, District Bijnor was married with Meenu, the daughter of deceased Satpal Singh. Satpal Singh's house is 6 km. away from his daughter's house. On 29.11.2009 at about 4.00 p.m. the deceased's daughter Meenu had made a phone call to her father and complained that her husband, the appellant no. 1-Babloo, appellant no. 2 Sandeep and the appellant no. 3- Dharmvir, all residents of village Bhogpur were beating her in connection with their demand for a new Maruti car. They also threatened to kill her and when she was talking to her father she was crying on the phone. Her father after receiving the said phone call immediately proceeded to her in-law's house along with Rambir and Vipin. They reached there at 5.00 p.m. and found that her husband Babloo- the appellant no. 1, Sandeep-the appellant no. 2 and Dharmvir- the appellant no. 3 were still beating his daughter Meenu. The deceased Satpal Singh tried to save his daughter but Dharmbir and Sandeep caught hold of him and Babloo, the appellant no. 1 fired at Satpal Singh with a country made pistol. He was fataly wounded. Rambir and Vipin who had accompanied Satpal Singh were present all through and later on during trial they became eye witnesses of the said incident. The critically injured Satpal Singh was taken to the hospital at Chandpur, where the doctor referred him to Bijnor hospital. In Bijnor also the doctor having regard to his precarious condition referred him to Meerut. While he was on the way to Meerut, he succumbed to his injuries. On 30.11.2009 Shyam Bir son of deceased Satpal Singh lodged an FIR ( Ex Ka-1) at 9.15. a.m., which was recorded at police station Chandpur district Bijnor implicating appellants Babloo, Sandeep and their father Dharamvir. On the basis of allegation made therein a case crime no. 1101 of 2009 under section 498-A, 323, 302/34 IPC and 3 /4 D.P. Act was registered against the appellant. On the same day viz. 30.11.2009 an empty cartridge was recovered from the spot ( Ex-ka -4).

Sri Anil Kumar Singh, S.I. Police was nominated as I.O. of the case, who commenced investigation in the matter and prepared site plan. The I.O. arrested Babloo @ Virendra and recovered a country made pistol of 315 bore along with one live cartridge from the field of one Baran Singh. Another First Information Report (Ex Ka-16) was lodged on 2.12.2009 at 7.25 a.m. the case crime no. 1103 of 2009 under Section 25 Arms Act was registered against Babloo.

The inquest on the dead body was conducted and inquest memo, Chick No. 485 of 2009 was written by Head Moharir Daulatram. He had also made entries in G.D. ( Ka-10). The Site plan was prepared by Gyanendra Singh (Ka-17). The dead body of the deceased was sent for postmortem. The autopsy on the dead body of the deceased was conducted by the doctor concerned. The postmortem report reveals that cause of death was due to shock and hemorrhage as a result of anti mortem injuries. The following observations were made by the doctor in the postmortem report, (i) gun shot wound of entry 3.0 x 2.0, entry deep oval in shape, wound of exit 1.5 x 1.00 entry.

On 2.12.2009 the I.O. sent the cartridge for forensic examination, which was found at the spot. After completion of investigation, the I.O. Submitted chargesheet ( Ka-18) against appellants-accused under section 498-A, 323, 302 IPC and Section 3 / 4 D.P. Act. All the three accused appellants were put up for trial.

The prosecution examined five eye witnesses namely, PW-1 Shyamveer son of deceased Satpal, PW-2 Meenu d/o Satpal Singh, PW-3 Vipin son of deceased Satpal Singh, PW-4 Rajvir Singh, the eye witness of the incident and PW-5 Jaishankar who was the pairokar of the prosecution.

PW-1, PW-2, PW-3 and PW-4 were declared hostile as they did not support the case of the prosecution. PW-1 Shyamveer Singh in his examination-in- chief had proved the contents of the FIR. However, in the cross examination he changed his version and did not support the case of the prosecution. In his deposition, he has stated that he did not see the incident and whatsoever the facts were mentioned in the FIR were on the basis of information of Rambir and Vipin. He had also denied the fact that in-law's of his sister had ever tortured her for demand of dowry. The PW-2 Meenu, the daughter of Satpal Singh, in her statement, stated that she was married two years before the incident. Her husband or her in-laws never made any demand of dowry. They were completely satisfied with the dowry whatsoever was given by her parents. She also denied the allegations made in the FIR that she had made a phone call to her father on 29.11.2009. She further denied that she asked him to come to her in -law's house on that date. When she was confronted with her statement under section 161 Cr.P.C., she flatly denied that she had made any such statement to the I.O. She further stated that she is living in her in-law's house. The PW-3 Vipin, the son of the deceased Satpal Singh in his examination in chief, stated that the allegations against the appellant Babloo @ Virendra and his family members with regard to demand of dowry were incorrect and false. He has also stated that on 29.11.2009, there was no phone call from his sister. He also denied his alleged statement under section 161 Cr.P.C. He proved his signature on the inquest report. This witness was also declared hostile by the prosecution. PW-4 Rambir denied the allegation made in the FIR that he had accompanied late Satpal Singh on 29.11.2009 to the Meenu's house. He was also declared hostile by the prosecution. In his cross-examination he denied all the allegations made in the FIR. The PW- 5 Jaishankar as a pairokar in the police station Chandpur, has proved various exhibits such as FIR exhibit- 16 and site plan etc. It is pertinent to mention here that in S.T. No.. 243 of 2010 under section 25 Arms Act, the sole accused Babloo @ Virendra-the appellant no. 1 had admitted his guilt. The said document is exhibit ka -26 and it is noteworthy that the said document is undated. The perusal of exhibit -ka-26 indicates that hand written application is undated and the accused had not signed it at the place where his name as an applicant is mentioned. From perusal of the document it is evident that some other person has written it and Babloo @ Virendra had signed it. It is also mentioned that since his mother is ill and he is in jail for the last 9 months, therefore, he may be given lesser punishment.

Trial court vide impugned judgment dated 15.10.2010 has found that all the appellants Babloo, Dharmbir and Sandeep were guilty under section 302/34 IPC and sentenced them to undergo imprisonment for life with fine of Rs. 20,000/- each. The appellant no. 1, Babloo @ Virendra was also found guilty under section 25 Arms Act and he was sentenced two years R.I. However, the accused were not found guilty for the offences under section 323/34, 498-A and 3/ 4 D.P. Act

We have heard Sri P.S.Pundir, learned counsel for the appellants and learned AGA for the State.

Learned counsel for the appellants Sri P.S. Pundir has taken us through the impugned judgment of the trial court, the statement of the witnesses and the various other materials placed before us. Learned counsel for the appellants submitted that there was no evidence on record to prove beyond reasonable doubt about the incident itself as there was not a single eye witness of the alleged incident which took place at 5.00 p.m. on 29.11.2009 at the house of the appellant no. 1. The two eye witnesses namely Rambir and Vipin have also been declared hostile and they have denied there presence at the time of the alleged incident. He has further urged that daughter of Satpal Singh in her examination-in-chief as well as in cross examination had denied the fact that she has ever been tortured in connection with demand of dowry and she has also denied the alleged occurrence which took place at her home on 29.11.2009 wherein her husband Babloo @ Virendra has been made accused under section 302/34 IPC.

Learned counsel for the appellants strenuously urged that finding of the trial court with regard to the admission of the appellant Babloo @ Virendrain in support of S.T. No. 243 of 2010 has been illegally read by the trial court in S.T. No.. 242 of 2010. He has submitted that trial court has erred in placing the burden of proof on the accused in terms of Section 106 of the Evidence Act. He place reliance on the judgment report in AIR 1956 SC 404 Shambhu Nath Mehra Vs. State of Ajmer, AIR 1992 SC 2100 State of Maharashtra Vs. Sukhdeo Singh and another, AIR 2000 SC 2988 State of West Bengal Vs. Mir Mohammad Omar and others etc, AIR 2005 SC 2345 Murlidhar Vs. State of Rajsthan.

Before adverting to the legal submissions made by the learned counsel for the appellants, it would be advantageous to refer the findings of the trial court for holding appellants guilty. The trial court has based its finding on four material facts; ( i ) There is no direct evidence and as such on the basis of circumstantial evidence, the accused have been held to be guilty ( ii ) The burden of proof is on the accused in terms of Section 106 of the Evidence Act ( iii) The accused Babloo @ Virendra has admitted his guilt in another S.T. No. 343 of 2010 and as such he is guilty in S.T. No. 242 of 2010 also. (iv) The Forensic report exhibit Ka-30 dated 6.10.2010 indicates that the cartridge which was found at the house of the appellant no. 1 ( Babloo) was fired from the country made pistol which was recovered from the possession of Babloo. The assailant had used the said pistol to kill Satpal Singh.

Indisputably, there is no substantive evidence to support the prosecution case. The trial court itself has recorded the finding that in absence of any substantive or direct evidence, only on the basis of circumstantial evidence, the accused have been found guilty.

The eye witnesses mentioned in the FIR have denied there presence at the time of occurrence. The I.O. of the case has not collected the blood from where the deceased was alleged to have been shot. There is no eye witness of the incident when the appellant no. 1 alleged to have fired at late Satpal Singh. The two important witnesses have turned hostile and they denied their presence. The trial court has also erred in shifting the burden of proof on the accused in terms of Section 106 of the Evidence Act.

Section 106 as used the word " especially within the knowledge of the accused". In the present case, the ingredient of the section 106 of the Evidence Act is not attracted at all, inasmuch as the body of Satpal Singh was not recovered from the house of Babloo. No blood was found at his house. There was no eye witness of occurrence. The two alleged eye witness turned hostile and denied their presence at the spot. The object of Section 106 of the Evidence Act is not to relieve the prosecution of its burden of proof. The aid of Section 106 of the Act can be available only in those exceptional cases where it would be well neigh impossible for the prosecution to prove certain facts which are especially in knowledge of the accused. For illustration, if a crime is committed in the bed room of a person during night, then there can not be any possibility for the presence of an eye witness. In such situation the fact of the crime may be especially in knowledge of the person who was present in the house with the deceased. The Supreme Court has considered the ingredients and the applicability of the Section 106 of the Evidence Act in series of decisions. In the case of Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199, the Supreme Court held:-

"9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R."

In the case of Krishan Kumar Vs. Union of India, (1960) 1 SCR 452, the Supreme Court had occasion to deal with the same issue. The relevant part of the judgment is extracted herein below:-

"It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of Section 106 of the Evidence Act to throw the onus on him to prove his innocence."

In the case of Sawal Das Vs. State of Bihar, (1974) 4 SCC 193, at page 197, the Supreme Court has laid down the law in the following terms:-

"10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?"

In the case of Murlidhar Vs. State of Rajasthan reported in 2005 (11) SCC 133 and AIR 2005 SC (2345) in paragraph no. 20 of the Judgment the Supreme Court has followed its earlier judgment of Mir Mohammad Omar and others which is extracted here in below:-

"20. In Mir Mohd. Omar1 it was established that the accused had abducted the victim, who was later found murdered. The abductors had not given any explanation as to what happened to the victim after he was abducted by them. The Sessions Court held that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt as there was "a missing link in the chain of events after the deceased was last seen together with the accused persons and the discovery of the dead body of the deceased at Islamia Hospital". Rejecting the said contention this Court observed (vide SCC p. 392, para 31):

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty."

In a recent case of Prithipal Singh Vs. State of Punjab, (2012) 1 SCC 10, Supreme Court has highlighted the said proposition as follows;

"53. In State of W.B. v. Mir Mohammad Omar this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also Shambhu Nath Mehra v. State of Ajmer, Sucha Singh v. State of Punjab and Sahadevan v. State)."

What emerges from the above mentioned cases are that the prosecution is not absolved from its duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt and the Section 106 of the Evidence Act is attracted in exceptional cases.

As regard to the finding of the trial court on the admission of Babloo @ Virendra in another S.T. No. 243 of 2010, the said admission cannot be relevant in the present case and on the basis of the said admission accused Babloo @ Virendra cannot be held guilty under Section 302/34 IPC. In the said confession, he had admitted his guilt in respect of the offence under Section 25 of the Arms Act. It is significant to mention that the trial court has recorded the finding that the weapon was recovered from the house of Babloo @ Virendra, the said finding is incorrect. The weapon was found from the field of one Baran Singh, which is evident from siteplan of S.T. No. 243 of 2010 ( Exhibit Ka- 1). From a perusal of the confession, it is evident that Babloo @ Virendra was already in jail for the last 9 months and his mother was keeping indifferent health and as such he has made a request for lesser punishment. The trial court has made the admission of Babloo @ Virendra in S.T. No. 243 of 2010, Crime No. 1103 of 2009, under Section 25 of the Arms Act main ground for conviction in S.T. No. 242 of 2010, Crime no. 1101 of 2009. We are unable to agree with the view of the trial court, as the said admission cannot be treated as a missing link of the circumstantial evidence.

Learned counsel appearing for the appellants has placed reliance on the judgment of Supreme Court in the case of State of Maharashtra Vs. Sukhdeo Singh reported in AIR 1992 SC 2100. He submitted that the trial court has grievously erred in misconstruing the admission made by the accused in another S.T. No. 242 of 2010, Crime no. 1101 of 2009. He submitted that the court cannot act on the admission or confession made by the accused in another case and his statement recorded under Section 312 Cr.P.C. without complying with the provision and ingredients of Section 229 of the Cr.P.C. The relevant portion of the judgment is extracted herein below:-

"Section 229 next provides that if the accused pleads guilty, the judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty the judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt."

With regard to the findings of the trial court that the Ballistic report shows that the cartridge which was found at the spot was fired from the same country made pistol which was recovered from the accused Babloo. We find from the record that there are obvious discrepancies for the following reasons, (i) In the charge sheet of S.T. No. 243 of 2010, it is mentioned that the country made pistol was recovered from the possession of the accused Babloo, when he was arrested from his house on 2.12.2009 at 9.05 a.m., whereas in the siteplan (exhibit Ka-1) the country made pistol and one live cartridge were shown to be recovered from a field of one Baran Singh, behind the house of the accused Babloo. We have perused the recovery memo of the country made pistol dated 2.12.2009 ( exhibit Ka-16). It has not been signed by any independent witness and in the said recovery memo, it is mentioned that country made pistol and one live cartridge were found from the field of Baran Singh. This material discrepancy has escaped the notice of the trial court. Thus, its finding on this issue is perverse. The trial court has also relied on the Ballistic report ( exhibit Ka -30). The recovery of the country made pistol and the live cartridge was made on 2.12.2009, however, the same was sent for forensic report on 4.2.2010 after two months. In the report, it is mentioned that along with country made pistol one missed fired cartridge was also sent for its examination. In Ballistic report, it is mentioned that the missed fire cartridge was compared with two cartridges which were test fired by the Ballistic expert. There was no case of prosecution that any missed fire cartridge was found, only one live cartridge was found on 2.12.2009. In the report of Ballistic expert, only his conclusion has been mentioned, no reason has been given. In the case of Gopal Singh Gorkha, Vs. State of U.P. reported in 1991 CRI.L.J. 1235, this Court has observed as follows:

"Para 22. An expert opinion in fire arms identification case should produce facts and not opinion which can not be checked. Being the Head of the Forensic Science Laboratory, the expert should know his responsibility towards the administration of criminal justice. He should give up the habit of producing his bald opinion. The expert should, if he expects his opinion to be accepted, put before the court, all the material which induced him to come to his conclusion so that the court, although not an expert may from its own judgment on these materials. Bald opinions are of no use to the court and often lead to the breaking of very import important links of prosecution evidence which are led for the purpose of corroboration."

A Division Bench of Madhya Pradesh High Court, reported in 1988 CRI.L.J. 1583, Santokh Singh and others Vs. State of Madhya Pradesh, has taken the following view;

"Para-14- No doubt, the Ballistic expert J.K. Agarwal (PW-17) has stated that the empty cartridge, Art. C, has been fired from the gun, Art. A ( vide his report Exp. P-32), but he stated no reasons for his opinion. The opinion was dogmatic rather than explanatory. In view of Adam's case, 1971 Cri. App Rep 349 ( SC), such dogmatic opinion of the Ballistic experted has to be discarded. That apart, the fact that the recovery of the empty cartridge Art. C, is highly suspicious and that the gun Art. A before being sent to the Ballistic expert was kept in police custody for a long period for two months and ten day, make this evidence very unreliable. Hence, fit to be ignored."

The facts of the said case say that the gun was sent for examination to Ballistic expert after two months and ten days. In the said case also the opinion of Ballistic expert was only a conclusion without support of detail reasons. In the said case although the Ballistic expert was examined, however, the court discarded the evidence of the Ballistic expert following the judgment of Supreme Court, in Adam's case 1971 Cri App Rep 349 SC.

In view of the above discussions, the finding of the trial court on this issue is not sustainable.

Having regard to the circumstances of the case, we are satisfied that that the prosecution has failed to prove its case against the accused beyond reasonable doubt and the findings of the trial court are not sustainable for the reasons given hereinabove.

In the result, the appeal against the S.T. No. 242 of 2010 ( State Vs. Babloo @ Virendra and others) under Sections 302/34 IPC, Police Station Chandpur, District Bijnor succeeds and the same is allowed.

The judgment of conviction and order of sentence passed by the First learned Additional Sessions Judge, F.T.C. No. 1, Bijnor is hereby set aside.

Now coming to S.T. No. 243 of 2010, ( Crime No. 1103 of 2009), in this matter the accused Babloo had admitted his guilt. In his statement under section 213 Cr.P.C. also he has admitted the fact regarding recovery of a county made pistol of 315 bore and one live cartridge of 315 bore at his home on 2.12.2009 at 9.05 a.m. He has also admitted that he had made an application admitting his guilt and prayed for lesser punishment on the ground that his mother is keeping indifferent health.

Learned counsel appearing for the appellants has not made any other argument in this matter.

In view of the aforesaid facts, we do not find any infirmity in the order of the trial court. The judgment and order of the trial court does not warrant any interference, therefore, we affirm the same. The appeal of Babloo @ Virendra against the judgment and order arising out of S.T. No. 243 of 2010 ( Crime Case No. 1103 of 2009) is dismissed.

All the appellants are acquitted from the charges of which they have been found guilty in S.T. No. 242 of 2010. The appellant no. 2 and 3 Sandeep and Dharmvir are on bail, they need not to surrender. The appellant no. 1 Babloo, who is in jail shall be released after completing his sentence in S.T. No. 243 of 2009, ( Case Crime No. 1103 of 2009), unless wanted in some other case. All the appellants shall stand discharged from the liabilities of their respective bail bonds.

Dt-25.4.2012

Gss.