Rajpal Singh vs State Of U.P. & Others
2014 Latest Caselaw 7471 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. 36
 
A.F.R.
 
Case :- GOVERNMENT APPEAL No. - 1026 of 2012
 
Appellant :- State Of U.P.
 
Respondent :- Bheem & Others
 
Counsel for Appellant :- Govt. Advocate, A.G.A.
 
Connected with
 
CRL. MISC. APPLICATION U/S 372 CR.P.C (LEAVE TO APPEAL) No. - 14 of 2011
 

 
Applicant :- Rajpal Singh
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Applicant :- Mayank Yadav
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Rakesh Tiwari, J.

Hon'ble Mrs. Vijay Lakshmi, J.

(By Hon'ble Vijay Lakshmi, J.)

Both the above-mentioned appeals arise out of the same judgment and order dated 16.11.2011 passed by learned Additional Sessions Judge (Special), Baghpat in S.T. No. 602 of 2009, State Versus Bheem and others and in S.T. No. 603 of 2009, State Versus Satish, whereby the learned Additional Sessions Judge has acquitted all the accused persons from the charges under Sections 147, 148, 302/149 I.P.C. and has also acquitted the accused Satish from the charge under Section 25/27 Arms Act.

Aggrieved by the aforesaid order of acquittal, the State and the complainant Raj Pal Singh have come to this Court seeking permission for leave to appeal. Hence the prayer  for leave to appeal  by both the appellants are  being disposed of by this common order.

Some background facts, in brief, are that the complainant Rajpal lodged an F.I.R. on 29.8.2009 at 7.00 A.M. to the effect that the accused persons Leelu son of Onkar, Rishi, Bheem, Sikandar, Deshpal and Leelu son of Ishwar came to his house on 28.8.2009 at about 9.00 P.M. and took the complainant's son Sonu alongwith them. When Sonu did not return till late night, his family members searched for him. During search Raj Singh, Subhash and Indar met them. Raj Singh informed that he had seen the accused persons taking Sonu with them towards the road to Ninana. When the complainant alongwith his family members went towards Ninana and reached near the field of Om Pal, he saw the accused persons Rishi, Bheem, Sikandar, Deshpal, Leelu son of Ishwar and Leelu son of Onkar firing shots at Sonu. The complainant challenged them on which Deshpal waved his country made pistol towards him and threatened him with the words "SAALO TUMHE BHI MAAR DENGE". According to the F.I.R., Deshpal and Sikandar had country made pistol with them, Rishi and Bheem were armed with knife and both the Leelus  were armed with Sariya. In the light of torch and  moon light, all the accused persons were identified. After firing  on Sonu, who fell down and succumbed to the injury, all the accused persons ran away towards Ninana threatening the complainant party.

On the basis of this written report a criminal case was registered against all the accused persons. The matter was investigated. During investigation the police found that both the Leelus, Rishi, Sikandar and Deshpal were falsely implicated in this case whereas the actual culprits were Bheem, Pramod, Satish, Amit and Mintu alias Kapil. So they were arrested and at the instance of accused Pramod, who was not named in the F.I.R., a knife was recovered. Likewise at the instance of one Satish, whose name came to light during investigation, a country made pistol of 12 bore was recovered. After conclusion of investigation, the police submitted chargesheet against Bheem, Pramod, Satish, Amit and Mintu @ Kapil. The accused Satish was also chargesheeted under Section 25/27 Arms Act.

Being exclusively triabled by the court of sessions, the case was committed to the court of Sessions where the charges were framed under Section 147, 148 and 302/149 I.P.C. and  the trial commenced.

The prosecution produced 3 witnesses of fact - the informant Raj Pal as P.W. 1, Jai Singh as P.W. 2 and Inder as P.W. 3. On the basis of the statements of these witnesses, the accused persons who,  though named in the F.I.R. yet  not chargesheeted,  were summoned under Section 319 Cr.P.C. and they also faced trial under Sections 147, 148 and 302/149 I.P.C.

However, the learned trial court on conclusion of evidence, found the prosecution case totally unreliable and disbelieved the statements of witnesses due to their suffering from material contradictions. There was delay in lodging the F.I.R. and also there was cutting and over writing on it. Moreover, the description of ante mortem injuries in post mortem report, did not coincide with oral evidence creating doubt in the prosecution case regarding manner of occurrence. On the basis of all these facts learned trial court acquitted all the accused persons.

It has been vehemently argued by Sri Mayank Yadav, learned counsel for complainant Rajpal Singh and also by learned A.G.A. appearing for the State that the impugned judgment and order passed by the court below in respect of acquittal of opposite party no. 2 to 7 is illegal, arbitrary and not sustainable in the eye of law as the medical evidence completely supports the prosecution version. It has also been argued that there is no major inconsistency or contradiction in the statement of prosecution witnesses but the court below has acquitted the accused persons on the basis of minor contradictions in the statement of witnesses. The prosecution witness no. 1/first informant Rajpal has supported the prosecution version and specific role of opposite parties has been assigned in his statement. However, the court below gave weight to the fact that accused persons named in the F.I.R. were not charge-sheeted by the I.O. and a different set of accused persons were charge sheeted by the I.O. against whom no testimony was given in court. It has further been submitted that the accused cannot be acquitted merely for the reason that the incident occurred at previous night while the F.I.R. was lodged on the next day at 07.00 A.M. but learned trial court has acquitted the accused persons for the reason that prompt F.I.R. was not lodged despite the fact that there were eye witnesses and several phones were available in the village. It has been argued by learned A.G.A. that but the court below did not consider this aspect that no body knew the telephone number of police station or police chauki. It has also been submitted that the court below disbelieved prosecution version for the reason that the I.O. committed irregularity and submitted charge sheet against different accused persons against whom no evidence was adduced by witnesses ignoring the basic principle of law that the prosecution case cannot be thrown out for the errors committed by I.O. or on the ground that I.O. has submitted charge sheet against different accused persons. It has lastly been submitted by both the counsel for the appellants that in totality of all aforesaid facts and circumstances the impugned judgment and order passed by court below deserves to be set aside and accused persons be convicted for the offence committed by them.

Heard and perused the record.

After a careful perusal of the record, we find that so far as the manner of occurrence is concerned, it suffers from material contradiction as the eye witnesses have stated that 6 persons had fired on Sonu whereas the post-mortem report shows that only single firearm injury was found on the chest of the deceased Sonu.

One more reason which raises serious doubt in the prosecution story is that all the prosecution witnesses i.e. P.W. 1 Raj Pal, P.W. 2 Jai Singh and P.W. 3 Indar, have not stated even a  single word against accused Pramod, Satish, Amit and Mintu alias Kapil who all have been chargesheted by the police. To the contrary P.W. 1 has categorically stated about specific roles played by the accused Rishi, Bheem, Sikandar, Deshpal and both the Leelus in the occurrence.  Likewise P.W. 2 has  even denied the presence of accused Pramod, Satish, Amit and Mintu @ Kapil  on the spot at the time of occurrence. It is noteworthy that I.O. on 6.9.2009  arrested the accused persons Pramod, Bheem, Amit and Mintu @ Kapil and at the instance of accused Pramod  recovered a knife alleged to be used in the occurrence. The I.O. has also recovered a country made pistol at the instance of Satish whereas the involvement of Satish and Pramod in the occurrence, has been specifically denied by all the prosecution witnesses.

Under these circumstances, the prosecution case became totally doubtful. Naturally the trial court, after an elaborate discussion of all these facts came to the conclusion that in wake of this self contradictory prosecution story, the accused persons cannot be convicted for the charges levelled against them under Section 147, 148 and 302/149 I.P.C. and 25/27 Arms Act.

Keeping in view all the facts and circumstances and after a close scrutiny of the judgment and the record, we are of the firm view that the learned trial court has rightly acquitted all the accused persons and there is no ground to interfere in the judgment of acquittal.

In this view of the matter, we find no merit in both the applications for leave to appeal which are liable to be rejected and are hereby, rejected. Consequently, both the appeals are also dismissed.

Order Date :- 13.10.2014

S.B.