Rakesh vs State Of U.P.
2012 Latest Caselaw 4590 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 33
 
Criminal Appeal  No.  1172  Of  2003
 

 
Rakesh..................................................................................................Appellant
 

 
                                                              Versus
 

 
State of U.P.......................................................................................Respondent
 

 
Hon. Rakesh Tiwari, J.

Hon. Anil Kumar Sharma, J.

( By Hon. Anil Kumar Sharma, J.)

Challenge in this appeal is to the judgment and order dated 21.2.2003 passed by the Additional Sessions Judge, Court no. 8, Ghaziabad in S.T. No. 285 of 2001, State Vs. Rakesh and another, under section 302 IPC (crime no. 806 of 2000) and S.T. No. 429 of 2001, State Vs. Rakesh, under section 25, Arms Act ( crime no. 807 of 2000), whereby the appellant has been found guilty under section 302 IPC and 25, Arms Act and he has been sentenced to imprisonment for life with fine of Rs. 10,000/- and two years' RI under section 25, Arms Act with fine of Rs. 2000/- with default stipulations.

2. Briefly stated the prosecution story is that deceased Mangat Singh was working as Postman in Post Office Ghaziabad City. On 4.12.2000 at about 10.45 A.M. some person is said to have enquired about Mangat Singh from Yogesh in the Post Office, who in turn informed Mangat Singh that someone has come to meet him. Mangat Singh went outside the post office and near tin shed of cycle stand, a fire was shot on him and he died on the spot. Officials and employees of the post office chased the assailant and apprehended him inside the premises of the Post Office armed with two country made pistols. On interrogation, he disclosed his identity as Rakesh son of Khajan Singh Thakur, resident of Rasoolpur, Police station Aarnia, Bulandshahr. Sri T.D. Chopra, Sub Postmaster, Ghaziabad City Post Office, Bajaria, sent a written report of this incident through official Sri Ganga Sharan, Krishna Prasad, Yogendra alias Yogesh Kumar and Kishan Pal alongwith the accused and two country made pistols recovered from his possession. On the basis of this written report, case at crime no. 806 of 2000 under section 302 IPC and crime no. 807 of 2000, under section 25, Arms Act, was registered the same day at 11.20 A.M. at police station Kotwali, Ghaziabad.

3. Investigation of the cases was conducted by S.S.I. Har Prasad Singh. He reached at the spot and prepared inquest of the dead body of Mangat Singh and alongwith usual papers sent the same in sealed condition for postmortem examination.

4. Dr. J.R. Jiani conducted autopsy on the cadaver of the deceased at 4 P.M. On 4.12.2000. The doctor found that 46 years' old deceased was of average built, rigor mortis was present all over the body. He found the following anti mortem injuries on his person :

1.Gun shot wound of entry 1cm x 1 cm communicating to injury no. 2 on right side of base of head/occipital region 8 cm below to right ear. Blackening and tattooing present,

2.Gun shot wound of exit 6 cm x 3 cm x communicating to injury no. 1 on left side of upper part of neck just below ear, underneath -mandible mastoid bones are found fractured.

On internal examination, mandible and mastoid bone and base of neck were found fractured. 120 gms. of semi digested food was found in the stomach of the deceased. In the opinion of the doctor, the deceased had died about 1/4th day before due to shock and hemorrhage, as a result of anti-mortem injuries.

5. The police also got the accused medically examined on 4.12.2000 at 11.20 A.M. but his medical report was not proved by examining the Medical Officer of M.M.G. Hospital, Ghaziabad.

6. The Investigating Officer recovered simple and blood stained earth from the spot as also a bullet through recovery memo Ex. Ka-9. Police took into its possession two country made pistols recovered from possession of the accused which were handed over by Ganga Sharan through memo Ex. Ka-5 and signature of the accused were also obtained apart from signatures of officials of Post Office Sri Krishna Pal Singh, Sri Krishna Pal, Sri Yogendra alias Yogesh Kumar, Sri Omvir Singh and Sri Kishan Pal. The Investigating Officer recorded statement of the witnesses and also prepared site plan of the scene of occurrence. Simple and blood stained earth and two country made pistols alongwith bullet and empty cartridges of 315 bore which was found in barrel of one of the pistols, were sent for examination to Forensic Laboratory, Agra and report of the laboratory is Ex. Ka-12.

7. During investigation, it was found that deceased Mangat Singh was resident of village Tatarpur and son of Rambir Singh P.W-15 was kidnapped and one Baljeet (co-accused in the case who was acquitted by the trial court) had said that the deceased got his son kidnapped and a Panchayat was held in the village where Mangat Singh deceased and Baljeet were present and a scuffle took place between them. In the panchyat Baljeet threatened Mangat Singh for life. After investigation, charge sheet against accused Rakesh and Baljeet under section 302, 120-B IPC and another charge sheet under section 25, Arms Act was filed against accused Rakesh.

8. After committal of the cases to the Court of session, the Additional Sessions Judge framed separate charges under section 302 IPC and 25, Arms Act against accused Rakesh whereas Baljeet was charged for the offence under section 302 IPC read with section 120-B IPC.

9. In order to prove its case, the prosecution has examined Sub Postmaster Sri T. D. Chopra P.W.-1, Krishna Prasad P.W.-2, Yogendra P.W.-3, Ganga Sharan P.W.-4, Tejvir Singh P.W.-5, Ram Kishan P.W.-6, Gyan Chand P.W.-7, Krishna Pal Singh P.W.-8, Manoj P.W.-9, Kali Charan P.W.-10, Brahmjeet Singh P.W.-11, Alok Chand P.W.-12, Ashok Kumar P.W.-13, Sanjay son of the deceased P.W.-14, Rambir Singh P.W.-15, Tejveer P.W.-16, Constable Ombir Singh P.W.-17, Constable Arun Kumar P.W.-18, I.O. S.S.I. Har Prasad Singh P.W.-19, Dr. J.R. Jiani P.W.-20, Ratan Lal P.W.-21, Head Constable Pitam Singh P.W.-22 and S.I. Chaman Singh P.W.-23.

10. In the statement under section 313, Cr.P.C., the accused denied all the facts and incriminating circumstances appearing against him in the prosecution evidence. However, he did not adduce any evidence in his defence.

11. After hearing parties' counsel, learned Additional Sessions Judge through the impugned judgment has convicted accused Rakesh as indicated earlier. However, accused Baljeet was acquitted for the offence punishable under section 302 IPC read with section 120-B IPC. Aggrieved, accused Rakesh has come in appeal.

12. We have heard Sri S.S. Chauhan, Advocate and Sri Bhavesh Pratap Singh Amicus Curiae who was appointed by this Court to defend the accused appellant as in the revised list counsel for the appellant did not appear to argue the appeal. We have also heard Sri R.A. Mishra, A.G.A. for the State and perused original records of the case carefully.

13. Learned counsel for the appellant has assailed judgment of the trial court on the following grounds :

1.that there was no motive for the accused to eliminate the deceased;

2.that identity of the accused is doubtful;

3.that there are material contradictions and inconsistencies in the statement of prosecution witnesses;

4.that officials of the Post Office who allegedly apprehended the accused-appellant, have not supported the prosecution story;

5.that co-accused Baljeet who has played significant role in naming the deceased in kidnapping of son of Rambir Singh, has been acquitted by the trial court, and

6.that the medical evidence does not support the witnesses of fact.

14. Per contra, learned A.G.A. submitted that it is a case of broad day light murder on account of enmity and the accused was apprehended at the spot by public alongwith weapon of offence; that an empty cartridge was found in the barrel of one of the country made pistols recovered from the accused which was sent for examination to Forensic Science Laboratory, Agra and in the report, the Laboratory has opined that the empty cartridge has been fired from the country made pistol recovered from the possession of the accused. He further submitted that officials of the Post Office have not supported the prosecution story with regard to identity of the accused and have been declared hostile but from their statements the date, time and place of the incident is proved beyond any doubt. He concluded that learned trial court has rightly found the accused guilty for committing murder of Mangat Singh as also for possessing the illicit firearm.

15. As regards motive, during investigation it was found that son of Rambir resident of Tatarpur was kidnapped and co accused Baljeet told the people that deceased Mangat Singh was hand in glove in the aforesaid kidnapping. Although Rambir Singh P.W.-15 has not supported this aspect of the prosecution story and has been declared hostile by the State counsel but his real brother Tejvir Singh P.W.-16 has stated in his deposition before the trial court that Panchayat was held in the village because Baljeet had disclosed that kidnapping has been done at the instance of Mangat Singh. In the Panchayat Baljeet, Mangat Singh, Rambir Singh and 15 -20 other people of the village were present where abuses had been hurled between Mangat Singh and Baljeet and both of them threatened each other for life. He has further stated that 15-20 days after the incident Mangat Singh was killed. On the basis of such evidence Baljeet was also indicted in the case for having hatched conspiracy to kill the deceased. However, Baljeet has been acquitted by the trial court mainly on the ground that Rambir Singh has not supported the prosecution story. It has also come in evidence that Rakesh was residing with Baljeet. Thus, it cannot be said that there was no motive for the accused to eliminate the deceased. Further, in this case the accused was apprehended by the public alongwith weapon of offence immediately after the incident, with whom the accused-appellant has no animus. The appellant cannot succeed on the ground that Baljeet has been acquitted by the trial court as the factsand circumstances against Baljeet were considered by the court and found that prosecution could not prove his guilt in the case to the hilt beyond doubt.

16. Much emphasis was laid by the counsel for appellant about identity of the accused. His contention is that in the F.I.R. as well as in the medical examination of the accused, his parentage is shown as son of Khajan Singh, resident of village Rasoolpur, P.S. Arnia , district Bulandshahr while the accused appellant is son of Ram Chandra, resident of village Sujawalpur, P.S. Gangiri, District Hathras. It is true that name, parentage and address of the accused appellant is not the same which has been disclosed by him in his statement before the trial court. On perusal of the original records, we find that the accused has given incorrect name of his father and residential address after his arrest to the public and the police. The Investigating Officer has submitted charge sheet against the accused giving his parentage and address as has been told by accused appellant in his statement under section 313, Cr.P.C. We further find from the original records that accused appellant is original resident of village Sujawalpur, P.S. Gangiri, district Hathras and his father is also known as Khajan Singh. In fact the Investigating officer in the remand application dated 5.12.2000 has noted particulars of the accused appellant as under:

"Rakesh son of Sri Khajan Singh alias Ram Chandra Thakur, resident of Rasoolpur, Police station Arnia, district Bulandshahr, original village Sujawalpur, P.S. Gangairi, district Hathras."

It is important to note here that to resolve this controversy, the best person was Investigating Officer but surprisingly no question about the difference in the particulars of the accused, has been put to S.S.I. Har Prasad Singh P.W.-19 in his cross examination. We may also observe that unless and until any foundation is laid before the trial court, plea of mis identity of the accused cannot be taken for the first time in appeal. Even in the memo of appeal, no such ground has been taken on behalf of the appellant. As such the argument of the learned counsel for the appellant for all the aforesaid reasons is untenable.

17. It is noteworthy that although the Post Office officials have not supported the prosecution story with regard to apprehending of the accused soon after the incident, but complainant Sri T.D. Chopra P.W.-1 has stated in his examination in chief that accused was apprehended in his presence and same person is present in the court. Tejvir Singh P.W.-5 is also an official of the Post Office and he has specifically stated in his examination in chief that hearing report of firearm shot, he reached at the spot and found that accused Rakesh present in court was apprehended by the public. Although he is relative of the deceased but at the same time he is an employee of the same Post Office also where the incident had taken place, so his presence at the spot cannot be doubted. Gyan Chand P.W.-7 has stated that the person who was arrested by the police told his name as Rakesh but he did not identify the accused in court. Since the incident had taken place outside working place of the Post Office officials, therefore, it was not possible for them to have witnessed the actual incident of firing on the deceased. Kali Charan P.W.-10 has stated that on the date of incident, he had come to the Post Office alongwith the deceased as he had to take some money from him. While he was sitting at the tea stall, he saw Baljeet and Rakesh who arrived there on a motor cycle. Baljeet stood outside and Rakesh went inside the Post Office. He heard noise of firearm shot and when he went inside, he found that Rakesh was apprehended by the public and he was having countrymade pistol. Thus, there is more than sufficient evidence to fix identity and culpability of the accused appellant in the crime.

18. Counsel for the appellant has argued that there are material contradictions in the statement of prosecution witnesses. Contradictions are bound to occur in the statement of natural witnesses because if all the witnesses give same statement with regard to certain facts pertaining to a crime, then such a witness can be easily termed as a 'tutored witness'. Main contradiction pointed out by the counsel for the appellant is that while Kali Charan P.W.10 has stated that he saw Baljeet and Rakesh arriving at the Post Office on motor cycle and arrest of the accused soon after the incident but Tejveer has stated in his cross examination that after getting news regarding murder of the deceased, he alongwith Kali Charan, Ashok, Sanjay and several other villagers reached the Post Office and saw dead body of the deceased in hospital. This contradiction is of minor nature. No such question was asked from Kali Charan as to whether Tejveer and others had come with him. Categorical statement of Kali Charan P.W.-10 is that on the date of incident he came to the Post Office alongwith the deceased as he had to take some money from him. Thus, we find that there is no material contradiction in the statement of prosecution witnesses with regard to role of the accused appellant.

19. As regards hostility of the Post Office officials, it has no bearing on merits of the case because Post Office personnel reached at the spot after hearing sound of the fire. It is not the law that testimony of hostile witnesses should not be taken into consideration. The Court can very well rely upon that part of statement of a hostile witness which finds corroboration from other evidence available on record. Thus, the accused cannot derive any benefit from the hostility of Post Office officials.

20. It is true that co accused Baljeet has been acquitted by the trial court. He was charged for having hatched a conspiracy with the accused- appellant for committing murder. Role of the accused appellant and evidence against him is quite distinct from that of co- accused Baljeet. The accused appellant has been arrested on spot alongwith weapon of the offence while he was trying to escape from the spot after firing fatal shot on the deceased. In these circumstances, the accused appellant is not entitled for any benefit on account of acquittal of co accused Baljeet.

21. Lastly, counsel for the appellant has submitted that medical evidence does not support the prosecution story. This argument has no legs to stand. Consistent prosecution story is that accused appellant fired shot on the deceased on 4.12.2000 at 10.45 A.M. in the premises of Ghaziabad City Post Office and soon thereafter he was apprehended by the public alongwith country made pistols. In postmortem examination report of the deceased, one gun shot wound of entry and other of exit have been found by Dr. J.R. Jiani P.W.-20. This witness has not been cross examined on behalf of the accused appellant inspite of opportunity given to him for the purpose. Dr. Jiani has proved post mortem report as Ex. Ka-13 as also the contents thereof. Thus, there is no variation in the prosecution story vis-a vis the medical evidence available on the record.

22. In view of the above, we find that learned trial court has not at all erred in convicting the accused appellant for the offence punishable under section 302 IPC and 25, Arms Act. Learned counsel for the appellant has submitted that accused appellant is in jail since after his arrest, so a lenient view may be taken with regard to the sentence imposed upon him. We are afraid that this contention of the learned counsel is tenable as under section 302 IPC no imprisonment other than imprisonment for life or death sentence can be awarded by any Court. In the facts and circumstances of the case, the learned trial court has awarded appropriate sentence to the appellant under the aforesaid offences.

23. Thus, the appeal has no merit and is accordingly dismissed. Impugned judgment and order of the trial court are confirmed. The appellant is already in jail and would serve out the sentence imposed on him.

24. Sri Bhavesh Pratap Singh, Amicus Curiae would get Rs. 2100/- for his services rendered to the Court and it would be paid to him within a month.

25. Let a certified copy of the judgment be transmitted to the court concerned forthwith for compliance which should be reported within a month.

...................................Rakesh Tiwari, J

..........................Anil Kumar Sharma, J

Dt/-28.9.2012

SNT/