Shivendra Singh @ Bhola vs State Of U.P.
2015 Latest Caselaw 1005 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 2641 of 2012
 

 
Appellant :- Shivendra Singh @ Bhola
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B.K. Solanki,Jai Raj Singh Tomar,Kavita Tomar,V.P. Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Pramod Kumar Srivastava,J.

(Delivered by Hon.Arvind K.Tripathi,J)

1-The present Criminal Misc. Appeal has been preferred against the impugned judgement and order of conviction and sentence dated 15.6.2012. passed by District & Sessions Judge, Hathras under section 302 I.P.C. for awarding life imprisonment with fine of Rs.10,000/- and in default further one year's R.I. in Session Trial No.3 of 2001 (State vs. Shivendra Singh alias Bhola) arising out of Case Crime No.321/2001 under section 302 I.P.C. PS.Hathras Junction, District Hathras and seven years' R.I. under section 25/27 Arms Act with fine of Rs.5000/- and in default further six month's R.I. in S.T.No.13/2002 arising out of Case Crime No.322/2001 under section 25/27 Arms Act, PS.Hathras Junction, District Hathras.

2-Shri Dharmendra Singhal, learned counsel appeared on behalf of the appellant assisted by Shri B.K.Solanki, Advocate, Shri Chandrajeet Yadav, learned A.G.A. appeared on behalf of the State.

3-Heard Shri Dharmendra Singhal, learned counsel for the appellant, Shri Chandrajeet Yadav, learned A.G.A. on 1.5.2015 and 6.5.2015 and the judgment was reserved on 6.5.2015.

4-The prosecution case is that the informant Virpal Singh s/o Nand Kishor r/o Vahanpur PS.Hathras Junction, District Hathras lodged the First Information Report at Hathras Junction on 2.10.2001 13.25 hours(1.25 P.M.) regarding the incident dated 2.10.2001 which took place at 11.30 A.M. The distance from the place of incident to Police Station is 4 km. According to version of the First Information Report, on 2.10.2001 PW.-1 Virpal Singh, and his younger brother Vijay Pal Singh were talking while sitting at their Chabutra. At a short distance on chabutra of Prempal Singh s/o Chokhey Singh, Ramesh Chandra, and Prem Pal Singh s/o Chokhey Singh, Gajraj Singh s/o Gokul Singh, Chandra Kant s/o Mahaveer Singh, r/o Vahanpur were playing play-card for entertainment. At about 11.30 A.M. Shashipal s/o Ram Prasad, Shivendra Kumar s/o Shashipal Singh, Virendra Kumar s/o Karanvir Singh, Karnvir Singh s/o Ram Prasad, Adarsh Kumari w/o Shashipal Singh due to previous enmity with his brother on account of election of Pradhan, came there while abusing, Adarsh Kumari and Karnveer Singh started assaulting his brother with Danda. When he tried to stop, then other assailant dragged his brother and Virendra Kumar who was having country made pistol assaulted on head of his brother by butt of country made pistol. Shashipal uttered that he would not die in such manner. Thereafter Shivendra Kumar who was having licensed gun of his father, fired at his brother Vijay Pal Singh with an intention to kill him. Due to that his brother expired on the spot. The assailants while firing in the air climbed at the roof of their houses. Shashipal fled away from the spot. The other assailants started firing from their roof, due to which terror was created on the spot and the persons present there could not dare to save the deceased Vijaypal Singh. Leaving his dead body on the spot he went to the Police Station for lodging of the First Information Report. The First Information Report was registered as Case Crime No.321/2001 under sections 147, 148, 149, 302 I.P.C. at Police Station, Hathras Junction.

5-S.I.Dharmpal Singh with police party reached on the spot for preparation of panchayatnama. Panchs were appointed and panchayatname was prepared. According to opinion of Panch the deceased Vijay Pal Singh died due to injury caused to him, hence the opinion was to get the post-mortem examination conducted. After completing formalities the dead body of Vijay Pal Singh was sent for mortuary. The post-mortem was conducted on 3.10.2001. The doctor noted one lacerated wound on frontal region and one firearm entry wound on chest of the deceased Vijay Pal Singh.

6-The Investigating Officer after the spot inspection prepared site plan. Single barrel gun with cartridges were recovered from Shivendra Kumar. One empty cartridge was found in barrel of the gun and smell was coming from it. The country made pistol was recovered from the co-accused Virendra Kumar. After investigation charge sheet was submitted against Shivendra Kumar alias Bhola, Adarsh Kumari, Virendra Kumar, Karnvir under section 302 I.P.C. Against Shivendra Kumar, and Virendra Kumar the charge sheet was submitted under section 25 Arms Act. Cognizance was taken and the matter was committed to the court of session. In Sessions Trial No.3/2002, the charges were framed under section 302 I.P.C. against Shivendra Kumar and under section 302/34 I.P.C. against all the accused namely Shivendra Kumar alias Bhola, Smt.Adarsh Kumari, Virendra Kumar and Karnvir Singh. In Sessions Trial No.13/2002 charges were framed under section 25 Arms Act against Shivendra Kumar and in Sessions Trial No.14/2002 under section 25 Arms Act against Virendra Kumar. All the accused denied the charges and pleaded to be tried.

7-Since all the Sessions Trial were connected with the same incident and connected with the recovery of same incident, hence trial of the all three cases were conducted jointly.

8-Out of five witnesses of fact, four witnesses were examined. PW-1 Vir Pal Singh, the informant,

PW-2 Gajraj Singh, PW-3 Ramesh Chandra, PW-4 Prem Pal Singh. PW-5 Dr.M.K.Jain was examined to prove the postmortem examination report. He found following injuries:

1.Lacerated wound 3x1 cm muscle deep in mid line frontal region of head.

2.Firearm wound of entry 7x5 cm cavity deep on mid line upper 1/3 anterior aspect of chest margin are lacerated & sternum bone was broken. 4th and 7th right ribs and 3 to 6 ribs were found broken. Both lungs/heart were found lacerated. Bronchi was found lacerated. Heart lacerated. Metallic bullet recovered from left lung. The cause of death was due to shock hemorrhage as a result of anti mortem injuries. His stomach was found empty, hence he might have consumed meal four to six hours prior to the incident. Injuries might have been caused at about 11.30 A.M. on 2.10.2001. Injury no.1 might have been caused due to fall on earth. Injury no.2 might have been caused from a distance of 1 to 1-1/2 metre. However, he could not tell whether it was caused by rifle or country made pistol or .315 bore.

9-PW-6 S.I.Subhash Chandra Tyagi who was posted as S.H.O. took investigation. He gave instruction to S.I.Dharmpal Singh for preparation of panchayatnama. After inspection he prepared site plan, Ext.Ka-4. He recovered gun from Shivendra alias Bhola and country made pistol from Virendra Kumar and they were arrested. Karnvir Singh was also arrested. Adarsh Kumari was arrested on 3.10.2001 and Furd recovery of country made pistol and cartridges were prepared as Ext.Ka.5. After investigation he submitted charge sheet. PW-7 Constable S.B.Singh, who prepared chick report, Ext.Ka.7 and G.D.Entry No.28 dated 2.10.2001 Ext.Ka.8. PW-8 S.I.Dharm Pal Singh who prepared Panchayatnama, PW-9 Rajendra Singh constable who proved chick report under section 25/27 Arms Act. The statement of the accused were recorded under section 313 Cr.P.C. The defence did not examine any witness.

10-There was cross case crime no.321A Of 2001 and Sessions Trial No.282/2002 in which prosecution case and defence case of the present appellant was that fire by Gajraj Singh hit own man Vijay Pal Singh. However, in that case vide judgment and order dated 15.6.2012 Adarsh Kumari, Virendra, Karnvir were acquitted under section 302 I.P.C. read with section 34 I.P.C. Virendra was acquitted in S.T.No.14/2002 under section 25 Arms Act.

11-The accused appellant Shivendra Kumar Singh alias Bhola was convicted and sentenced for life imprisonment under section 302 I.P.C. with fine of a sum of Rs.10,000/- and in default further to undergo one year's R.I. He was also convicted in S.T.No.13/2002 under section 25 Arms Act for seven years R.I. with fine for a sum of Rs.500/- and in default further to undergo six months' R.I.

12-Mr.Dharmendra Singhal, learned counsel for the appellant submitted that the judgment of the trial court is against the evidence on record. He further contended that according to prosecution case and the statement of PW-1 Adarsh Kumari and Karnvir Singh assaulted repeatedly by danda. However, no injury of lathi and danda was found on the person of the deceased Vijay Pal Singh. The role of firing was assigned to Shivendra Kumar by licensed gun of his father Shashipal Singh. However, the allegation was made that Virendra and Shashipal assaulted with butt of the country made pistol on the head of the deceased Vijay Pal Singh but no injury was found. There was one lacerated injury on the fore-head, which was on mid bone of frontal region and that injury might have been caused due to fall. Injury no.2 is firearm injury.

13-The allegation was that the appellant Shivendra fired with SBBL gun on 12 bore. The recovery of SBBL gun of 12 bore with cartridges were shown. One empty cartridge was in barrel of the gun. However, one metallic bullet was recovered from the body of the deceased Vijay Pal which clearly shows that the firing was by rifle or country made pistol of .315 bore and not by gun. These circumstances shows that no one has seen the incident and due to enmity false allegation was made and the appellant was implicated alongwith other co-accused. No charge sheet was submitted against Shashipal who was summoned under section 319 Cr.P.C. However, that order was stayed by the High Court and Virendra, Karnvir Singh, Adarsh Kumari, wife of Shashipal were acquitted. Only appellant Shivendra was convicted under section 302 I.P.C. against whom allegation was that he fired with licensed gun of his father though injury of gun was not found on the person of the deceased. Out of five witnesses of fact, four witnesses PW-1 Virpal, PW-2 Gajraj Singh, PW-3 Ramesh and PS-4 Prempal were examined.

14-The First Information Report was lodged by Virpal. The enmity of Gram Pradhan's election was shown. The recovery of country made pistol was shown on the pointing out of Virendra which was also of 12 bore and he has already been acquitted. According to ballistic expert report the recovery of bullet was of .315 bore and it is clear from the record and prosecution case that the gun and country made pistol which was recovered were of 12 bore. The specific case of the prosecution is that firearm injury was caused to Vijay Pal by firing from the gun of Shashipal and as per prosecution the appellant s/o Shashipal shot at the deceased. There is no allegation of firing with country made pistol by the appellant and other causing firearm injury to the deceased.

15-Counsel for the appellant further submitted that according to defence case firing of Gajraj Raj Singh, hit Vijay Pal Singh and cross case was registered regarding at Case Crime No.321A/2001. However, in that case in S.T. No.282/2002 the accused were acquitted. S.H.O. Subhash Tyagi arrested the accused on the same day and recovery of 12 bore gun was shown at 3.10 P.M. on 2.10.2001 and as per allegation the incident took place at 11.30 A.M. No pellet was recovered from the body of the deceased rather one metallic bullet was recovered. Heart and both lungs were found lacerated. External right ribs and left ribs were broken which were not possible by single shot with .315 bore from 12 bore barrel. Hence in view of the fact, the prosecution story appears to be false and the witnesses were not present on the spot as there statements were not corroborated with medical and expert report of Scientific Forensic Laboratory. Benefit of doubt has already been given to co-accused and on the basis of same evidence which was not reliable, the applicant/appellant has been convicted and sentenced for life imprisonment which is illegal and against the evidence on record. Since the prosecution failed to prove its case beyond reasonable doubt and as such the impugned judgment and order of conviction is liable to be set aside and the appellant be released forthwith.

16-Learned A.G.A. vehemently opposed the aforesaid prayer and submitted that by adopting advance technology, even bullet can be in used in 12 bore gun. One Bullet can hit external heart and both lungs and due to that ribs of both side might be broken. All the witnesses have supported the versions of the First Information Report. Injury No.1 on forehead was also found which might be caused by lathi and danda and butt of country made pistol. Since the specific role of firing by license gun was assigned to the applicant/appellant Shivendra causing firearm injuries which was cause of death and as such the trial court rightly convicted and sentenced the appellant. Hence he is not entitled to be released and this appeal is liable to be dismissed.

17-Considered the submissions of learned counsel for the the parties. Now it has to be considered in view of the facts of circumstances and evidence adduced by the the prosecution whether the witnesses are wholly reliable, partly reliable or unreliable.

18-In respect of the co-accused trial court found the witnesses unreliable and co-accused Adarsh Kumari, Virendra and Karnvir Singh were acquitted by the judgement and order under section 302 I.P.C. read with section 34 I.P.C. The co-accused Virendra was also acquitted in S.T.No.14/2002 under section 25 Arms Act with regard to the recovery of country made pistol. On the basis of same evidence the appellant Shivendra was convicted and sentenced under section 302 I.P.C. in S.T. No.3/2002 for life imprisonment and in S.T. No.13/2002 under section 25 Arms Act read with 27 Arms Act for seven years' R.I. with fine of Rs.5000/-.

19-Though the specific allegation was by PW-1 and

other witnesses that co-accused assaulted with country made pistol, lathi and danda to the deceased Vijay Pal Singh, however, neither any injury on head and other part of body caused by lathi and danda or on head by country made pistol was found except one injury on forehead which might be even due to fall. The one injury on forehead was noted as lacerated wound 3 cm X 1 cm X muscle deep on mid line of frontal region and according to statement of the doctor in cross examination injury no.1 might have been caused due to fall. He further proved the recovery of metallic bullet from left lung and on the basis of Forensic Science Laboratory's Report recovered Bullet was of .315 bore. However, as per allegation the licensed gun of his father was used by the appellant which was 12 bore. The same was recovered. When the gun was recovered, even cartridges of 12 bore were recovered and no Bullet was recovered from Shivendra appellant. There is no allegation that firing by another firearm injury hit the deceased Vijay Pal Singh. Scorching, tattooing and blackening were also found, hence firing was from very close range. Heart and both lungs were found lacerated and apart from that not only sternum bone was broken but even external bone 4 to 7 right ribs and 3 to 6 ribs of left side were found broken. However, no other superficial injury was shown on the person of the deceased except injury no.1 & 2, hence if he was assaulted with lathi & danda, ribs can be broken but normally visible injuries would also be present. If Bullet or any other hard weapon hit and sternum was broken, then due that ribs might also be broken but in the present case there is specific allegation that firstly Karnvir Singh and Adarsh Kumari assaulted repeatedly by danda, Shashipal and Virendra assaulted with butt of the country made pistol on head and thereafter on the instigation of Shashipal, his son Shivendra, the appellant, shot at the deceased Vijay Pal Singh with licensed gun, and he died due that firearm injury. If the prosecution story is correct, then there was gap in between assault by lathi-danda and firearm, then visible injuries must have been shown on the person of the body due to assault by lathi and danda or by country made pistol. Hence either any one has not seen the incident or fire was by rifle or country made pistol and immediately on the same time he was assaulted with lathi and danda, then there would be fracture of sternum and ribs but injury would not be visible on the person of the deceased. Apart from that if he is pressed with force by log and lathi etc. then there is chances that the injury might not be visible. These circumstances create doubt whether the witnesses were present at the place of occurrence or not.

20-According to Modi's Medical Jurisprudence and Toxicology, fracture of the ribs results from direct violence as in the case of blows or stabs,

and from indirect violence as in compression of the chest or on very rare occasions from muscular contraction during violent coughing, sneezing, or straining. In the case of indirect violence, fractures occur at the most convex parts of the ribs near their angles, and the fragments are driven outwards. The ribs that are most frequently fractured are the middle ones, namely, the fourth, fifth, sixth, seventh and eighth; as they are most prominent and fixed at both ends. The upper ribs are not usually fractured unless very great force is used, when the lesions of the viscera, as a rule, occur. The lower ribs often escape on account of their great mobility. In old age, a fracture of the ribs is liable to occur easily from the slightest violence. Even a kick may fracture a single rib. Symmetrical fractures of the ribs on both sides are often met with, when a person sits on the chest and compresses it considerably by means of the knees or elbows, by trampling under feet, or by means of two bamboos, a process known as bans dola. In such cases the ribs are often fractured in front near the coastal cartilages, where the compressing force is applied, and near the angles at the back, the force travelling along the ribs. These are not always accompanied by external injuries or ecchymoses of blood in the soft tissues over the ribs. The markedly elastic ribs of a child may escape fracture. Further, fracture of the sternum is rare and it is ordinarily due to direct violence, and usually occurs transversely either between the manubrium and body or a little below this level. The sternum may be fractured by indirect violence as the result of forcible flexion on extension of the body, or a forceful direct impact of the sternum against the steering wheel of a car may cause its fracture and rupture of the aorta at the end of the arch. The sternum may rarely be fractured spontaneously by muscular spasm caused during violent coughing.

21-Further according to the statement of PW-1 the accused were inimical to him due to election of Gram Pradhan but if enmity was with him, then why he was not assaulted if he was very much present and instead of an attempt to kill him the deceased Vijay Pal Singh was shot dead. According to statement of Virpal enmity was with him and he was also having licensed gun but neither there was any attempt to kill him nor he tried to use gun in self defence. There is no recovery of any weapon and article to show that any technology was used to fire by Bullet of .315 bore from the gun of 12 bore though in the present case it is clear that the deceased was hit by bullet and not by pellet. In respect of other co-accused the statement of the witnesses were disbelieved. The specific case of the prosecution was that firing with license gun by appellant Shivendra hit the deceased Vijay Pal. It is not the case of the prosecution that fire with country made pistol by any co-accused hit him or there was firing by country made pistol also by

the appellant.

22-So far as the injury no.1 on forehead is concerned, according to doctor, if the deceased Vijay Pal Singh had fallen down, then due to that injury might be caused due to fall. Hence in absence of any evidence it cannot be presumed that the appellant caused injury no.2 by any other firearm and no pellets were recovered from the body of the deceased Vijay Pal. The defence case was that PW-2 Gajraj Singh fired towards accused appellant and since Vijay Pal Singh came in between them, hence he received firearm injury though in cross case, trial resulted into acquittal but apart form that the prosecution is required to prove its case beyond reasonable doubt. Merely on the presumption that the injury by another weapon or country made pistol might have been caused, the appellant cannot be convicted.

23-In the present case the averment was that first aid was given and thereafter on advise he was shifted to district hospital.

24- Learned A.G.A. submitted that even one bullet might hit and cause damage to sternum, heart, both lung and due that ribs might be broken. Even if this argument is accepted, the question would arise whether the injury was caused by the appellant or someone else because in view of the fact specific allegation is that he fired with license gun and on the same day that SBBL gun of 12 bore was recovered. However, metallic bullet bore was recovered from the body of the deceased was of .315 bore. There is no evidence to show that any advance technology was used and that bullet was fired from SBBL gun of father of the appellant. From the ballistic expert report it is clear that the bullet which were recovered from the person of the deceased could not be fired from the SBBL gun recovered from the house of the appellant belonging to his father. In the above noted reason, the evidence of eyewitnesses are wholly inconsistent with the medical evidence as also the evidence of ballistic expert report. Hence same are not reliable and is liable to be rejected in view of the judgment of the Apex Court in the Case of Ram Narayan vs. State of Punjab, 1975 SC Crl.571.

25-In view of the fact and circumstances the witnesses who were disbelieved in respect of the co-accused are also not reliable for prosecution to prove its case even against the appellant, beyond reasonable doubt, hence the appellant is also entitled for the benefit of doubt.

26-In view of the aforesaid discussion, the abovenoted impugned judgment of conviction and sentence dated 15.6.2012 passed by learned Sessions Judge, in S.T.No.3 of 2001 and S.T.No.13 of 2002 is hereby set aside. Accordingly this appeal is allowed.

27-Concerned Superintendent of Jail is directed to release the appellant forthwith in the present case if he is not wanted in any other case. The Chief Judicial Magistrate concerned will also ensure the compliance of the order.

28-Let a copy of this order be sent to the concerned Chief Judicial Magistrate and Superintendent Jail for follow up action.

Order Dates :- 6.7.2015

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