Dharmpal & Others vs State Of U.P.
2012 Latest Caselaw 5005 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
						          	            		  Court No.53		
 
			Criminal Appeal  N0. 8119 of 2007
 
Dharampal and others						      ..........Appellants
 
                                  		Vs.
 
State of U.P.                    						      ........Opposite party
 

 
Hon. Arun Tandan,J.

Hon. Vijay Prakash Pathak, J.

Heard Shri Satish Trivedi Senior Advocate assisted by Shri Tarun Agarwal advocate and Shri Ajay Pandey advocate, on behalf of the appellants, Shri A.C. Srivastava advocate on behalf of the complainant and learned A.G.A. on behalf of the State.

This criminal appeal is directed against the judgment and order of the Additional Sessions Judge, Court No.4, Ghaziabad dated 23.11.2007 passed in S.T. No.291 of 1997 (State vs. Dharmpal and others) arising out of Case Crime no.93 of 1996, under sections 302/34 I.P.C., P.S. Bahadur Garh, District Ghaziabad. The appellants have been convicted of an offence punishable under sections 302/34 I.P.C. and have been sentenced to life imprisonment with fine of Rs.1,50,000/- each, in case of default, the appellants have to undergo rigorous imprisonment of two years.

The prosecution story as disclosed from the records is as follows:

On 7.6.1996 the Village Chaukidar informed the police station in writing that around 7.00 A.M. panchayat was being held in the village for resolving the dispute of property between Dharampal and Rajpal, who are real brothers. During the meeting Praveen Kumar son of Rajpal, who was employed in military service arrived. Hot talks took place, as a result of which Dharampal left the panchayat and proceed to his house. Praveen and his father-in-law armed with Rifle and hockey stick respectively followed Dharampal who fired upon Praveen from his licenced gun. The gun shot hit Praveen. He was in serious condition and had been taken to hospital by his father and other members of the family. This information was registered as case crime no. 19 of 1996 under section 307 I.P.C., P.S. Bahadur Garh, District Ghaziabad.

That on 12.6.1996 father of Praveen submitted an application dated 8.6.1996 before the S.O. Police Station Bahadur Garh. In the application it was stated that partition of the properties had taken place between the informant Rajpal and his two brothers, namely, Vijaypal and Dharampal. His elder brother's son Rajveer was not satisfied with partition he often used to abuse the informant. The informant was resided alone in his house, his son was employed in Indian military as Captain. He had informed his son about the hostile attitude of Dharampal and his son. Praveen reached home on 7.6.1996 on the same day, he left for Hapur to attend a marriage. On 7.6.1996 Dharampal and his son Rajveer and Sudhir had indiscriminately fired upon the informant. He in order to save himself took shelter in his room on the first floor. On 8.6.1996 at around 8.00 A.M. Captan Praveen Kumar returned from the marriage. Dharampal along with his son Rajveer and Sudhir forcibly dragged Praveen towards the first floor of their house with intention to kill him. Praveen started shouting and on hearing the shouts Rajpal Singh, Jal Singh son of Chattar Singh, Omkar Singh son of Khacheru Singh, Budha Singh son of Harbansh Singh and informant rushed to save him. At this point of time, Sudhir threatened them with the country made pistol in his hand and warned that if they proceed he will shoot. Dharampal is stated to have exhorted Rajveer to kill. Rajveer shot at Praveen from the licensed gun of Dharampal. Praveen was taken in a car to Military Hospital, Meerut where he was declared dead. According to the prosecution this application was sent to police station on 8.6.96, but it was not accepted on the plea that information of the incident has already been received. It was only on the intervention of D.I.G. that the police accepted the application dated 8.6.1996 on 12.6.1996.

On receiving the information of death of Praveen, the offence was converted into one under section 302 I.P.C.

The investigating officer made spot inspection and recorded the statement of the informant under section 161 Cr.P.C. Inquest report was prepared on 9.6.1996 and the dead-body was sent for postmortem examination to the District Hospital, Medical College, Meerut. Postmortem was performed by Dr. V.K. Bajpayee. The postmortem report prepared on 9.6.1996 records following antemortem injuries.

"1. Bayeen jaghn me goli jhusne ka ghaw samne ki aur upper se 6 c.m. neeche tha. 2.4x2 c.m. animiyat tha. Usme se khoon bah raha tha aur goli bahar nikelne ka koyee ghav nahi tha.

2. Dayeen jaghn me samne ki aur bahut sare charre jhusne ka ghav tha 3 c.m. x 6 c.m. ke vayas me they aur ghutne se lagbagh 10-15 c.m. upper ki aur the.

3. Purana fata huya ragar ka nishan dayeen kohni par tha.

4. Ak fata huwa ghav lagbhag dhayee inch lamba va . 5 c.m. madhya (ban deep) tha jo sir ke pichle bagh me upper ki aur tha khoon nahi bahraha tha."

After completion of investigation, charge-sheet was submitted. The matter being cognizable by the Sessions, was committed to the Sessions Court. Charges were framed under the order of the Court dated 12.1.1996. The accused denied the charges and stated that they have been falsely implicated, they claimed trial.

The informant Rajpal was examined as P.W.1. He stated on oath that on 8.6.1996 when Praveen returned from marriage party by car at around 8.00 A.M. Dharmpal, Rajveer and Sudhir forcibly dragged Praveen towards their house. Praveen started shouting and on hearing the informant, Jal Singh son of Chattar Singh, Omkar Singh son of Khacheru Singh, Budha Singh son of Harbansh Singh ran to save him. The three accused had caught hold of Praveen and after dragging him from the place the car was parked till the steps they pulled and pushed Praveen up the stairs. The informant and others were threatened by Sudhir with the country-made pistol in his hands. At this point of time, Dharampal instigated his son Rajveer to fire upon Praveen. Rajveer fired upon Praveen from the licenced gun of his father Dharampal. On being hit by the gun shot Praveen fell down on a cot and then Dharampal hit Praveen on his head by a hockey stick. At this point of time other villagers arrived at the spot the three accused ran away by jumping from the roof alongwith their arms.

The injured Praveen was taken to Military Hospital, Meerut in the vehicle where he was declared dead. The informant called his younger son sanjiv Singh, who was a student in Meerut. The informant dictated the report to his younger son, which was signed by the informant as well as by Sanjiv Singh. The information was sent to the police station it was marked as Ext. Ka.1. The reason for delay in receiving of the first information report was also explained. He stated that initially his report was not accepted by the police station on the plea that information of the incident has already been received, it was only on the asking of the D.I.G. that such report was accepted on 12.6.1996.

Jal Singh one of the eye witnesses was examined as P.W.2 he also reiterated what was disclosed by Rajpal Singh (P.W.1) in his testimony. He explained in detail the manner in which Praveen was fired upon.

Dr.V.K. Bajpayee, who had performed the postmortem was examined as P.W.3. He proved the postmortem report and opined that the death had been caused due to gun shot injury suffered Praveen. According to him, approximate time of death would be around at 8.00 A.M. on 8.6.1996. Colonel Miss. Savitri Datti, who was Senior Registrar of Military Hospital, Meerut was examined as P.W.4. She stated that Praveen was brought in an injured condition by his father and father-in-law. She was informed by father-in-law of Praveen that Praveen had been shot at by his relatives. Sub-Inspector Man Singh was examined as P.W.5, he had prepared the inquest report. Sub-Inspector Devi Deen was examined as P.W.6, he had registered the report submitted by chaukidar of the village. Lieutent Colonel Dr. Sandeep Restogi, was examined as P.W.7 and he deposed that before Praveen would be admitted to the hospital, he had already expired. However, he examined the dead body of Praveen. A report whereof was prepared and marked as Ext. Ka.5. The Village Chaukidar Tunda, who had submitted the report on 8.6.1996 before the police station was examined as P.W.8. He stated that he had not himself seen the act of firing. He was informed about the incident and that Praveen was shot at and had been taken to the hospital. However, he proved the report submitted by him on 8.6.1996 which was marked as Ext. Ka.16. This witness was declared hostile. Subedar, who was the Record Keeper in the Military Hospital was examined as P.W.9. Sub-Inspector Vijay Kumar Singh, who had recorded the statement of the witnesses of panchayatnama as also the statement of other witnesses was examined as P.W.10. He proved the charge-sheet marked as Ext. Ka.17. Inspector Rajeev Kumar was examined as P.W.11. He was the second investigating officer. He proved the site plan which was marked as Ext. Ka.18 and also recorded the statements of other witnesses. He had also prepared seizure memo of clothes of Praveen and had taken the photographs of the site.

The statement of the accused were recorded under section 313 Cr.P.C. They denied the charges and stated that they have been falsely implicated due to enmity. The statement made by the prosecution witnesses were false. It was the case of Dharampal that on 7.6.1996 when panchayat was taking place the informant alongwith his supporter started assulting and threatening the accused. He therefore left the panchayat and went to his room on first floor of the house at that point of time he heard a gun shot. He was informed that gun shot had injured Praveen. Accused Rajveer stated that he was employed as professor in Shimbhawli Degree College and was permanently residing there for last 12 years. He was not present at the time of the incident in the village. The third accused Sudhir stated that he was a distant relative of Rajveer. He was not present in the village when the incident is stated to have taken place. He was student of B.Sc. in Shimbhwali Degree College where Rajveer was working as professor. He has been falsely implicated in the case.

On behalf of the accused one Charan Singh resident of the same village was produced as D.W.1. However, no documentary evidence was filed on behalf of the accused. Lal Singh was examined as D.W.2, who stated that relationships between the accused and the complainant were not good.

The trial court after considering the material evidence brought on record came to a conclusion that the prosecution had succeeded in bringing home the charge beyond reasonable doubt against the accused. They were accordingly convicted under section 302/34 I.P.C. and punished as aforesaid.

Challenging the order so passed by the Sessions Judge Sri Satish Trivedi, Senior Advocate, counsel for the appellants contended that the story as set up by the prosecution does not inspire confidence. The prosecution has hopelessly failed to establish beyond reasonable doubt the guilt of the appellants.

He points out that in the report dated 08.06.1996, filed by the informant Rajpal on 12.06.1996, there is absolutely no mention of any injury being inflicted upon Praveen Kumar by a hockey stick by any of the accused, including Dharmpal Singh. The only role assigned in the report to Dharmpal Singh and Sudhir with the help of the arms in their hand had restrained the informant and other villagers from interfering with the dragging of Praveen Kumar. He further points out that the informant P.W.-1 in his cross-examination specifically stated that from the first floor of his house he saw that as soon as his son got down from the vehicle after it had entered the compound of the house, Rajveer, Sudhir and Dharmpal caught hold of him (Lipat Rahe thay) and they were dragging Praveen towards the stairs. At that point of time none of the three accused had any weapon in their hand. Since the accused were trying to forcibly pull Praveen Kumar, the informant had apprehension that they may kill Praveen Kumar. Therefore, he immediately ran down the stairs from first floor of his house to save his son. He saw that all three accused were pulling Praveen Kumar on the staircase which was at a distance of nearly 20 steps from where the car was parked. It was then stated that they were pushing/dragging Praveen Kumar up the stairs. Clothes of Praveen Kumar were torn or not he did not see. When the informant reached near the staircase, he saw that the accused had dragged Praveen Kumar to top of the staircase. At the end of the staircase there was a gate. The staircase was in L shape. Praveen Kumar was making attempt to set himself free. He then stated that an attempt was made by him along with others to save Praveen Kumar from hold of the accused, however Sudhir, one of the accused, pointed a country made pistol on the informant and other persons present and asked them not to climb the stairs. While the accused were pulling Praveen Kumar on the staircase, he did see a country made pistol in the hand of Sudhir. Because of that the informant did not climb the stairs. He then stated that on to exhortation of Dharmpal, Rajveer fired upon Praveen with the licensed gun of Dharmpal. It was stated that the gun was kept in the room. Because of the gun shot injury Praveen Kumar fell on the cot and at that point of time Dharpal inflicted two blows with a hockey stick on the head of Praveen Kumar. It was also admitted in his testimony that Dharmpal was aged about 65 years and was a patient of Cancer and that the width of the staircase was hardly 3-5 feet.

According to the counsel it is beyond comprehension of any reasonable man that a serving captain of Indian Army, a young man, could be dragged by only three persons for nearly 20 steps on the ground and further he can be dragged up a staircase, which is hardly 3 to 5 feet width, by three persons, one of whom is aged about 65 years and a patient of cancer. He further points out that according to P.W.-1 none of the accused were armed with any weapon when they started dragging Praveen Kumar as soon as he got down from the car, but as soon as they reached the staircase the P.W.-1 states that Sudhir stopped them from climbing the staircase with the help of country made pistol, which was in his hand. From where the country made pistol came in possession of Sudhir has not been disclosed. Similarly, it is submitted that if Rajveer has gone to collect the country made pistol from somewhere, there would be only two persons holding Praveen Kumar and that a captain of Indian Army cannot be physically controlled by two persons only, one of whom is of 65 years of age. He further points out that neither in the first information report nor in his testimony it has been disclosed that Dharmapl had any hockey stick in his hand at the time he dragged Preveen Kumar or thereafter, from where he got the hockey stick has not been disclosed.

This according to the appellants is a improvement on the prosecution story viz-a-viz what was stated in his written report dated 08.06.1996 filed on 12.06.1996. The reason for such improvement is to explain the injuries which were noticed in the postmortem report on the head of Praveen Kumar.

He further points out that P.W.-2, the other eye witness stated that he is not aware from where Sudhir had picked up the country made pistol. None of the accused had any firearm in their hand at the time they started dragging Praveen Kumar and that Praveen had gone with the accused on his own. According to the said eye witness the staircase is not in L-shape but had a turning. According to him at best 2-3 persons at a time could climb the staircase. He stated that he could not see as to from where Rajveer had picked up the gun from which he had fired upon Praveen Kumar. Similarly, it was stated that he did not see as to from where Dharmpal had picked up the hockey stick. He lastly stated that he did not witness any attempt being made by Praveen Kumar to save himself.

Thus according to the appellants these are material discrepancies in the manner in which the incident has been narrated by P.W.-1 and that narrated by P.W.-2, the two eye witnesses. It is further pointed out that both the eye witnesses had stated that at the time Praveen Kumar was caught hold of by three accused after getting down from the vehicle, they were not armed with any weapon. P.W.-1 had stated that accused caught hold Praveen Kumar and started dragging to the staircase to the first floor. While according to P.W.-2 Praveen Kumar had walked along with accused from the car till the staircase. None of two eye witnesses could point out as to from where the accused had picked up the country made pistol, the hockey stick and the licensed gun of Dharmpal specifically when all 3 are stated to be dragging and pulling Praveen Kumar together.

We have examined the evidence which have been specifically referred to by the counsel for the appellants and the statement made by P.W.-1 and P.W.-2 in respect of the incident which is stated to have been seen by them.

In our opinion the story set up by the prosecution does not appear to be probable inasmuch as a serving captain in the army cannot be dragged by three persons for 40 steps and thereafter pulled on staircase which is only 3-5 feet width specifically when one of the accused is aged about 65 years and is a patient of cancer. Similarly, we find that there is complete non-discloser of the fact as to from where Sudhir had picked up the country made pistol and restrained the informant from climbing the staircase and from where Dharmpal could fetch the hockey stick to hit blows on the head of Praveen Kumar after he had fallen down after being injured by gun shot. We also find it highly improbable to accept that Rajveer could have gone inside the room to pick up the gun and only two of the accused could still succeed in holding on to Praveen Kumar on the staircase.

In our opinion the prosecution has not been able to bring home the charges beyond reasonable doubt against the accused. There are material discrepancies in the evidence led by the prosecution, and that as disclosed in the first information report and the statement of prosecution witnesses. We further find that in the report of the Chowkidar of the village, which was first in point of time, it was mentioned that Praveen Kumar had followed Dharmpal after he left the Panchayat and Dharpal had fired upon Praveen in defence. For the reasons best known to the prosecution, in the report submitted by the informant father, the role of firing has not been assigned to Dharmpal and it has been stated that it was only on the exhorting of Dharmpal that Rajveer had fired upon Praveen Kumar.

We find that the investigation and the prosecution have not followed the case as was disclosed by the Chowkidar in his first information report for the reasons best known. Absolutely no evidence has been led to establish that Dharmpal had fired upon Praveen Kumar.

In these set of circumstances we find that neither the incident as per the report as lodged by the Chowkidar could be proved by any material evidence nor the incident, as disclosed in the information filed by the father of the deceased, could be brought home against accused beyond reasonable doubt.

We have no hesitation to record that in the facts of the case the prosecution has hopelessly failed to establish the guilt of the accused beyond reasonable doubt. The trial court in the facts of the case has committed an error in holding that the appellants were guilty of the offence under Section 302 IPC read with Section 34 IPC.

We, therefore, hold that the judgment and order of conviction passed by the Sessions trial in case no. 291 of 1997 cannot be legally sustained and is hereby quashed. The sentence imposed upon the three accused is set aside. They are exonerated of the charges. The fine, if any, deposited by the accused may be returned.

The Court has been informed that all the three appellants are on bail. They need not to surrender. Their bail bonds stand discharged.

Appeal is allowed.

10.10.2012

R.U./Pkb/