Mahendra Pratap Singh vs State Of U.P.
2015 Latest Caselaw 2266 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 1802 of 2010
 
Appellant :- 	Mahendra Singh
 
Respondent :- 	State of U.P.
 
Connected with
 
Case :- GOVERNMENT APPEAL No. - 3651 of 2013
 
Appellant :- 	State of U.P.
 
Respondent :- 	Ramesh Kumar Singh
 
And
 
Case :- GOVERNMENT APPEAL No. - 3652 of 2013
 
Appellant :- 	State of U.P.
 
Respondent :- 	Gorakh Nath Singh
 
Counsels for Appellant :-Satish Trivedi, Gyanendra Pratap, Arvind Kumar Singh-II, Rajul Bhargava
 
Counsel for Respondent :- A.N. Mulla A.G.A.
 

 
Hon'ble Arvind Kumar Tripathi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1.Above mentioned first two appeals are preferred against the judgment dated 25.3.2010 passed by Additional Sessions Judge, Court No 9, Varanasi in S.T. No. 1039/1998, State v. Ramesh Kumar Singh, sections 147, 148, 302/149, 307/149 I.P.C., p.s. Phoolpur, Varanasi, by which one accused Gorakh Nath Singh was acquitted; and another accused Mahendra Prasad Singh was convicted and punished for offences under sections 147, 148, 307/149 and 302/149 I.P.C. He was punished for charge u/s 147 IPC with simple imprisonment for one year, for charge u/s 148 IPC with simple imprisonment for 2 years, for charge u/s 307/149 IPC with rigorous imprisonment of 10 years and fine of Rs. 5000/- (in default of payment additional s.i. of 2 years), and for charge u/s 302/149 IPC with imprisonment for life years and fine of Rs. 10000/- (in default of payment additional s.i. of 4 years). Remaining two accused persons namely, Gorakhnath Singh and Ramesh Kumar Singh were acquitted. Above mentioned third Governmental Appeal is preferred against the judgment dated 27.06.2012 passed by same sessions court by which accused Ramesh Kumar Singh was acquitted of charges u/ss 147, 148, 307/149 and 302/149 I.P.C.

2.The three appeals relate to same judgments of two above mentioned sessions trial relating to one and same incident relating to case crime no. 91/ 1989, which were conducted and concluded separately.

3.Sri Satish Trivedi, Advocate appeared on behalf of Mahendra Pratap Singh and Gorakhnath Singh. He was assisted by Sri Arvind Kumar Singh-II and Sri Gyanendra Pratap Singh. Sri Rajul Bhargava, Advocate argued on behalf of Ramesh Kumar Singh. In three appeals learned A.G.A. Sri A.N. Mulla represented and argued on behalf of State.

4.The prosecution case in brief was that the complainant Tribhuwan Narayan Singh (PW-1) had given written report in police station Phoolpur, Varanasi on 25.7.1989 at 7:00 p.m. to the effect that there was dispute between his father Girija Prasad Singh and accused Ramesh Kumar Singh on point of possession of a quarter and also regarding the election of Gram Pradhan. On 25.7.1989 he (complainant) was getting his quarter situated at village Hiramanpur, p.s. Phoolpur cleaned, then at about 6:00 p.m. in evening came there Gorakhnath Singh empty handed, Ramesh Singh armed with gun and Guddu Singh, Lallu Yadav, Kallu Yadav Mahendra Singh armed with country-made pistols. They reached at the general store of complainant at Hiramanpur crossing. On exhortation of Gorakhnath Singh, accused Mahendra Prasad Singh, Ramesh Singh and other accused had indiscriminately fired on Girija Prasad Singh. Due to this firing complainant's father Girija Prasad Singh died on spot and Jwala Prasad Singh and other persons had got injuries of pellets. This incident was witnessed by Kamla Singh, Janardan Singh and others. On the basis of this written report (Ex. Ka-1) case crime no. 91/1989 under section 147, 148, 149, 307 and 302 I.P.C. was registered against six accused persons namely, Ramesh Singh, Guddu Singh, Lallu Yadav, Kallu Yadav, Mahendra Singh and Gorakhnath Singh; and investigation started. After inquest the dead body of Girija Prasad Singh was sent for postmortem, which was conducted by Dr. M.N. Yadav (PW-6), on 26.7.1989 at 3:30 p.m. Dr. P.D. Singh (PW-8) examined injuries of injured Jwala Singh on25.7.1989 at 9:30 p.m. in S.S.P.G. Hospital, Varanasi and prepared medico legal injury report (Ex. Ka-7). Dr. S.K. Rai (PW-4) examined injuries of Kamla Singh on 26.7.1989 at 11:00 a.m. in P.H.C. Pindra and prepared medico legal injury report.

5.After completion of investigation, police had submitted charge-sheet against six accused Ramesh Kumar Singh, Guddu Singh, Lallu Yadav, Kallu Yadav, Mahendra Prasad Singh and Gorakhnath Singh for offence under sections 147, 148, 149, 302 and 307 I.P.C. During trial accused Guddu Singh and Kallu Yadav absconded, therefore, their trial was separated. During trial accused Lallu Yadav died, therefore, his case abated. All accused persons were charged for offences under sections 147, 148, 302/149 and 307/149 I.P.C. They all denied the charges and claimed to be tried. During trial of S.T. No. 1039/ 2010 one accused Ramesh Kumar Singh absconded, then his case was separated as S.T. No. 1039-A/ 2010. Trial of S.T. No. 1039/2010 was carried out and concluded by judgment dated 25.03.2010 as above. Later on trial of S.T.No. 1039-A/ 2010 was conclued by judgment dated 20.06.2012 by which accused Ramesh Kumar Singh was acquitted against which above mentioned third Government Appeal has been preferred by State.

6.In support of charges, the prosecution side (in S.T.No. 1039/ 2010) had examined PW-1 Tribhuwan Narayan Singh (informant), PW-2 Janardan Singh, PW-3 Jwala Prasad Singh, PW-4 Dr. S.K. Rai, PW-5 H.C. Ganga Sagar Rai, PW-6 Dr. M.N. Yadav, PW-7 Ramakant Pharmasist, PW-8 Dr. P.D. Singh, PW-9 Constable Gilkesh Singh and PW-10 X-ray Technician Shishir Kumar Singh. These witnesses had proved prosecution documents as Ex.Ka-1 to Ex.Ka-19. In S.T.No. 1039-A/2010 apart from other common formal witnesses and evidences on two witnesses of fact were examined which were PW-1 Tribhuwan Narayan Singh (informant), PW-2 Janardan Singh.

7.After closure of prosecution evidence the statements of accused persons under section 313 Cr.P.C. were recorded, in which they had denied the prosecution case and stated that witnesses had given incorrect and false statements due to enmity, false charge-sheet has been submitted against them. Accused Gorakhnath Singh had stated that complainant's father Girija Prasad Singh was village Pradhan for 30-35 years. In gram prqdhan election of year 1988 he had defeated Girija Prasad Singh and won the said election. Due to this enmity he and his nephew Mahendra Pratap Singh had been implicated in this case. Accused Mahendra Pratap Singh had stated that his uncle Gorakhnath Singh had defeated the complainant in election of Gram Pradhan. Due to this enmity he and his uncle Gorakhnath Singh had been falsely implicated in this case. In his statement accused Ramesh Kumar Singh had stated that evidences adduseced against him are false. Defence side had not adduced any oral or documentary evidence in both trials.

8.After affording opportunity of hearing to prosecution and defence side, learned Additional Sessions Judge, Court No. 9, Varanasi had passed two impugned judgments dated 25.3.2010 and 20.062012 as above. By these judgments accused Mahendra Prasad Singh was convicted and punished as above, and remaining two accused Gorakhnath Singh and Ramesh Kumar Singh were acquitted. Against this impugned judgment three appeals as above had been preferred.

9.Learned counsel for the appellant Mahendra Pratap Singh contended that in depositions of prosecution witnesses there are serious contradictions, which were not considered by the trial court. He contended that out of three witnesses of facts, namely PW-1, PW-2 and PW-3, the statements of none of them was believable; but trial court had erroneously convicted the appellant Mahendra Pratap Singh while on similar evidences other two co-accused namely, Gorakhnath Singh and Ramesh Singh had been acquitted. He contended that Mahendra Pratap Singh and Gorakhnath Singh had no concern with other co-accused namely, Guddu, Lallu or Kallu. It is said that there were two sets of accused persons who were unknown to each other and had no previous meeting. Therefore it was not probable that both sets of accused had meeting of minds for joint commission of charged offence. He also contended that prosecution witnesses had admitted that deceased Girja Prasad Singh had been winning elections of Gram Pradhan for last 30-32 years, but he was defeated in this election for the first time by Gorakhnath Singh, and this election was challenged by deceased. He argued that in these circumstances any cause of dissatisfaction, jealousy or enmity would have been on the part of deceased and not for Gorakhnath Singh. Therefore, Gorakhnath Singh and other accused were falsely implicated in this case. So appeal of Mahendra Pratap Singh should be allowed and remaining two said appeals should be dismissed.

10.Learned A.G.A. on behalf of State in three appeals had contended that there was sufficient direct evidences against all charged accused persons including Mahendra Pratap Singh and the respondent of two government appeals. Prosecution witnesses had proved the case of charged incident against accused persons beyond any doubt. Therefore, the appeal of Mahendra Pratap Singh should be dismissed and both the state appeals should be allowed.

11.We have heard the rival contentions and perused the original records of the case.

12.The time of charged incident was 25.07.1989 at about 6:00 p.m. in evening. Considering season it was time of sufficient day light to identify any person. The first information report (Ex. Ka-1) was lodged on same day after one hour of the incident at 7:00 p.m. According to FIR, the informant Tribhuwan Narain Singh (PW-1), injured eye witness Jwala Prasad Singh (PW-3), eye witness Janardan Singh (PW-2) and injured eye witness Kamla Singh have witnessed this incident. Out of these four eye witnesses named in FIR, three were examined by prosecution side during trial in support of the charges, which were PW-1 Tribhuwan Narain Singh, PW-2 Janardan Singh and PW-3 Jwala Prasad Singh (injured). They have given evidences in support of prosecution case and FIR version, which was meticulously scrutinized by the trial court before reaching to conclusion.

13.PW-1 Tribhuwan Narain Singh informant had stated that 3-4 years prior to charged incident deceased Girja Prasad Singh had constructed three rooms at Hiramanpur crossing, which were not plastered. On the date of incident, that is on 25.07.1989 Girja Prasad Singh had employed labourers for plastering those rooms. At that time accused Ramesh Singh came there and complained that he was promised that one room would be given to him because he had helped in construction of those rooms in spite of objections of Jokhan Singh. He (informant) had denied any such talks. On it Ramesh Singh had stopped labourers from working and left the place after threatening. On same evening at 6:00 p.m. when informant's father Girja Prasad Singh was sitting at his shop of general store situated in Hiramanpur with his relative Jwala Prasad Singh (PW-2), then Ramesh Singh armed with gun and Guddu @ Brijesh, Kallu Yadav, Lallu Yadav armed with country-made pistols came there and started firing on exhortation of Gorakhnath Singh. In this firing, Girja Prasad Singh was injured and succumbed to injuries immediately. In this firing, Jwala Prasad Singh (PW-3) and Kamla Singh also sustained injuries.

14.PW-2 Janardan Singh had also supported the averment of PW-1 and stated that on 25.07.1989 at about 6:00 p.m. in evening, he was enjoying tea and sweets at Hiramanpur crossing. At that time Girja Prasad Singh was present at his general store shop with Jwala Prasad Singh (PW-3), and Tribhuwan Narain Singh (PW-1) was standing inside the shop, and Kamla Singh was standing besides that shop. Then Gorakhnath Singh came there with Mahendra Pratap Singh, Ramesh Singh, Guddu, Lallu Yadav and Kallu Yadav. At that time, Ramesh Singh was armed with single barrel gun, Gorakhnath Singh was empty handed, and other accused had country-made pistols. These accused reached in front of shop of Girja Prasad Singh and on exhortation of Gorakh Nath Singh, they all started firing, which had killed Girja Prasad Singh, and alsod Jwala Prasad Singh and Kamla Singh had sustained injuries. This witness PW-2 had seen the incident himself and also stated that since Tribhuwan hid behind the counter of the shop, therefore, he could not be injured.

15.PW-3 Jwala Prasad Singh had also stated that on 25.07.1989 at 6:00 p.m. in evening Ramesh Singh, Guddu Singh, Lallu Yadav, Kallu Yadav and Mahendra Pratap Singh alongwith 1-2 unknown persons had visited the shop of Girja Prasad Singh, where he (PW-3) was also sitting. They all were equipped with country-made pistols and started firing at Girja Prasad Singh. These fires had hit and killed Girja Prasad Singh and injured him (PW-3). Then he was firstly taken to P.H.C., Pindra and then to Kabir Chaura Hospital, where his treatment was carried out.

16.Above mentioned statements were given by witnesses in S.T. No. 1039/1998 in the trial against Mahendra Pratap Singh and Gorakhnath Singh; and also in separate trial S.T. No. 1039-A/1998, State Vs. Ramesh Kumar Singh only two persons namely PW-1 Tribhuwan Narain Singh and PW-2 Janardan Singh were examined as witnesses of fact. In this trial, Jwala Prasad Singh was not examined. In this trial of S.T. No. 1039-A/1998, witnesses of fact namely PW-1 Tribhuwan Narain Singh and PW-2 Janardan Singh had given same evidence, which were given by them in earlier S.T. No. 1039/1998.

17.Learned trial court had meticulously gone through the evidences adduced in these trials. Since accused Lallu Yadav had died during trial and Guddu @ Brijesh Kumar Singh and Kallu Yadav were absconders, therefore, trial against them could not be concluded. But judgment of trial against Mahendra Pratap Singh and Gorakhnath Singh was pronounced in S.T. No. 1039/1998. Likewise in separate trial relating to S.T. No. 1039-A/1998, judgment was passed by different court of Additional Sessions Judge on 27.06.2012. The judgment of these two session trials are under scanner in present appeals, which are being decided jointly.

18.Trial court in S.T. No. 1039/1998 had rightly found that name of Mahendra Pratap Singh had occurred in statement of all witnesses of facts and there is no contradiction or discrepancy in depositions of eye witnesses regarding him. On perusal of evidences in both the trial reveal that eye witnesses PW-1 Tribhuwan Singh, PW-2 Janardan Singh (in both trials) and PW-3 Jwala Prasad Singh (in S.T. No. 1039/1998) had stated that at the time of charged incident Mahendra Pratap Singh armed with fire arm, had come on spot at the shop of deceased Girja Prasad Singh with other accused persons and a few persons which were not recognized. There was discrepancy in involvement of Gorakhnath Singh and Ramesh Kumar Singh in evidences adduced by eye witnesses in two session trials, but there was no discrepancy or contradiction in statement of any witnesses regarding involvement of Mahendra Pratap Singh (appellant of Criminal Appeal No. 1802/2010). The statement of all above named eye witnesses of fact reveal that appellant Mahendra Pratap Singh had come on the general store shop of Girja Prasad Singh at the time of charged incident, accompanied with other culprits and started firing due to which Jwala Prasad Singh PW-3 was injured and Girja Prasad Singh had died. These statements are supported by formal evidences of doctors who had examined the injured persons and performed post-mortem of deceased Girja Prasad Singh. A perusal of evidences of eye witnesses in both the sessions trial reveal that so far involvement of appellant Mahendra Pratap Singh is concerned, the prosecution side had succeeded to prove its case beyond any doubt. Not only earlier dispute resulting in motive of charged incident has been proved by prosecution witnesses but charged incident was proved by their direct believable testimony so far appellant Mahendra Pratap Singh is concerned. Therefore, finding of trial court regrading conviction of Mahendra Pratap Singh is found correct and without error which is hereby confirmed. Accordingly, Criminal Appeal No. 1802/ 2010 is liable to be dismissed.

19.In same S.T. No. 1039/1998 the trial court had acquitted the accused Gorakhnath Singh. According to prosecution version and statements of PW-1 Tribhuwan Narain Singh and PW-2 Janardan Singh, the role of Gorakhnath Singh in charged incident was only of exhortation. PW-1 and PW-2 had stated that Gorakhnath Singh had visited the spot empty handed without any arm, and had exhorted the other accused persons, which instigated them to start firing on deceased. But third eye witness of the fact namely PW-3 Jwala Prasad Singh, whose presence on spot is accepted by PW-1 and PW-2, and who is also injured witness of case, had specifically named those persons who were involved in charged incident. But he had not named Gorakhnath Singh as accused nor recognized him. If charged incident had started on exhortation of Gorakhnath Singh, then he must have been properly witnessed by PW-3 Jwala Prasad Singh, who was present on spot with informant and deceased. Trial court had discussed these points in detailed and also discussed the fact that Gorakhnath Singh had won the election against Girja Prasad Singh. Therefore, he had no motive against the deceased. After meticulously scrutinizing the testimony of prosecution witnesses, the trial court had gave specific finding of fact, in which involvement of accused Gorakhnath Singh in charged incident was disbelieved. This finding of trial court appears correct and acceptable. PW-3 had seen the Gorakhnath Singh in court and specifically stated that he was not the person involved in the case. In these circumstances, finding of trial court regarding benefit of doubt to Gorakhnath Singh resulting in his acquittal is found correct, and is hereby confirmed. Therefore the Government Appeal No. 3652/2013 is liable to be dismissed.

20.As stated above, the trial of accused Ramesh Kumar Singh was separated as S.T. No. 1039-A/1998, in which only two witnesses of fact, namely PW-1 Tribhuwan Narain Singh and PW-2 Janardan Singh had been examined and this case was decided by different Sessions Judge. Trial court had scrutinized prosecution evidences adduced against Ramesh Kumar Singh. Witnesses PW-1 Tribhuwan Narain Singh and PW-2 Janardan Singh had named the accused Ramesh Kumar Singh having equipped with gun and fired (alongwith other accused persons) at Girja Prasad Singh. The trial court had scrutinized cross-examination of PW-1, who had stated that he does not know as to whose fire had hit his father or Kamla Singh. Trial court had also pointed out that in his cross-examination PW-1 Tribhuwan Narain Singh (in S.T. No. 1039-A/1998) had stated that he could not state as to which accused had what arm with him. Learned Sessions Judge had also discussed the statement of PW-1 informant when he stated that he had not seen accused Ramesh Singh firing at the time of incident, and that his shop is 500 meters away from the place of spot. In S.T. No. 1039-A/1998. PW-1 had stated that he cannot tell as to whether Ramesh Kumar Singh had fired or not, or whether he was seen firing at the time of incident or not. Trial court had also appreciated the evidence to the effect that the prosecution side had not tried to confirm that the blank cartridges found from the spot were used by the gun of Ramesh Kumar Singh or not. On the basis of these evidences, learned Additional Sessions Judge, Court No. 9, Varanasi had doubted involvement of accused Ramesh Kumar Singh in the aforesaid incident and acquitted him.

21.Learned AGA had contended that once trial court (in ST No. 1039/2010) had found evidences against Ramesh Kumar Singh, then in another trial those evidences could not be ignored. This contention is legally unacceptable. In Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 Apex Court had held that "One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem)."

22.In Anju Chaudhary v. State of U.P., (2013) 6 SCC 384 Apex Court had held that :

23."The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall withstand judicial scrutiny. The purpose of the Criminal Procedure Code and the Penal Code, 1860 is to effectively execute administration of the criminal justice system and protect society from perpetrators of crime."

23. It is settled legal position that only that evidence can be read against an accused, which is adduced in the trial being carrying out against him. If any evidence is given against accused in different trial then on the basis of such evidence of another case accused cannot be held guilty in different trial. Therefore any evidence came in earlier trial conducted in absence of accused (Ramesh Kumar Singh in present case) cannot be read against him during trial conducted in his presence. The evidences adduced before accused can only be read against him if he had been afforded the opportunity to contradict them and adduce his own evidence in defence.

24.The conclusion and finding of fact given by the learned Additional Sessions Judge in S.T. No. 1039-A/1998 is based on evidences adduced in it. There are contradiction in evidences regarding Ramesh Kumar Singh in testimony of PW-1 and PW-2 in both the trials. Second trial of S.T. No. 1039-A/1998 was conducted later on after conclusion of earlier trial no. 1039/2010. By passing of time, memory of witnesses may fail and there is possibility that their testimony in later trial may differ from their testimony in earlier trial. But their testimony in later trial has to be considered for the accused being tried in it. In these circumstances a perusal of evidences adduced in S.T. No. 1039-A/1998, State v. Ramesh Kumar Singh, we are of the considered opinion that the finding of fact and conclusion given by learned Additional Sessions Judge, Court No.-9, Varanasi is such that may be one possible conclusion on the basis of those evidences. The findings given by concerned Additional Sessions Judge in S.T. No. 1039-A/1998 on the basis of available evidences are not erroneous. Therefore, these findings are hereby confirmed. Accordingly, Government Appeal No. 3651/ 2013, State v. Ramesh Kumar Singh is liable to be dismissed.

25.On the basis of above discussion, we are of the considered opinion that the judgment dated 25.03.2010 passed by Additional Sessions Judge, Court No.-9, Varanasi in S.T. No. 1039/1998; and the judgment dated 27.06.2012 passed by said court in S.T. No. 1039-A/ 2012 needs no interference by exercise of appellate jurisdiction. Therefore, these three appeals are hereby dismissed.

26.Let a copy of this order be sent to trial court for follow up action.

Order Date :- 11.9.2015

SR