Gabadoo @ Laljit Singh vs State Of U.P.
2016 Latest Caselaw 5338 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                    Reserved
 
Case :- CRIMINAL APPEAL No. - 7117 of 2006         A.F.R.
 
Appellant :- Gabadoo @ Laljit Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- J.N. Singh,Ambrish Kumar,K. Kumar Tripathi,N.K.Mishra,R.B. Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

Heard Sri Ambrish Kumar, learned counsel for the appellant, Sri Sagir Ahmad, Sri J.K. Upadhyay and Ms. Manju Thathur, learned AGAs for the State and perused the record.

The present criminal appeal has been preferred by the appellant Gabadoo @ Laljit Singh against the judgment and order dated 06.11.2006 passed by I-Additional Sessions Judge, Kannauj, in Sessions Trial No.205 of 2005 (State Vs. Gabadoo @ Laljit) arising out of Case Crime No.315 of 2005 under Section 302 IPC, Police Station Gursahaiganj, District Kannauj whereby he has been convicted under Section 302 IPC and sentenced to life imprisonment.

Facts of this appeal as unfolded in the first information report appear to be; that first informant Suresh Singh resident of Village Rudauli, Police Station Kannauj, lodged the first information report at Police Station Gursahaiganj, on 30.04.2005 at 20:05 hours to the effect that his son Samar Singh had gone to purchase some articles on bicycle from market of village Bhawanipur on 30.04.2005. When he was returning from market around 5:00 p.m. on bicycle, he was being followed at some distance by Amar Singh son of Vijay Bahadur Singh and Brij Bhan Singh son of Ram Autar. Certain cemented pipes were lying on the road at some place 1 kilometer away to the southern side of village Bhawanipur where the appellant was lying in ambush. He came out of the aforesaid pipe and hurled bomb upon Samar Singh as a result of which Samar Singh fell down from his bicycle and the appellant came close to him and fired from close range on the back of his neck due to which Samar Singh died on the spot. Because of explosion of bomb, Amar Singh, and the another co-villager who was also following the deceased sustained injuries. The motive for committing crime has been suggested to be old enmity between families of the deceased and the appellant. The appellant after committing the murder fled away towards village Badlepurwa. The incident was witnessed by Amar Singh and Brij Bhan Singh. They could not catch the appellant because of fear of weapon which the appellant was possessing. The dead body was lying on the spot. Report be lodged and action be taken.

On the basis of the first information report, relevant entries were made in Check FIR at Crime No.315 of 2005 under Section 302 IPC, Police Station Gursahaiganj, District Kannauj on 30.04.2005 at 20:05 p.m. Check FIR is Ext. Ka-5. On the basis of the entry made in the Check FIR, a case was registered against the appellant under Section 302 IPC in the relevant General Diary, rapat no.47 on 30.04.2005 at Crime No.315 of 2005 at the same Police Station, copy whereof Exhibit Ka-6.

Thereafter investigation of the case commenced. PW-9 Maan Singh Yadav was entrusted with investigation of the case. In the process, he got inquest report of the deceased Samar Singh prepared by S.S.I. R.V. Singh under his supervision. Inquest report was completed at 11:30 p.m. 'Panchas' opined that for ascertaining real cause of death, dead body of the deceased Samar Singh should be sent for post mortem examination. This inquest report is Ext. Ka-11.

As a sequel to the same, relevant papers were also prepared for sending the dead body for post mortem examination which are letter to CMO Ext. Ka-12, Photonash Ext. Ka-13 and Police Challan Form No.13 Ext. Ka-14. The Investigating Officer also prepared memo of cycle of the deceased Samar Singh which memo is Ext. Ka-2. In due course, the Investigating Officer also recorded recovery of weapon used in the alleged crime on 18.05.2005 and prepared memo of the same which is Ext. Ka-10 on record. Besides, the Investigating Officer also collected sample of simple and blood stained soil from the spot and prepared memo of the same which is Ext. Ka-16 on record.

Record reflects that post mortem examination on the dead body of the deceased Samar Singh was conducted by Dr. Anoop Singh Gautam, PW-4 at mortuary district hospital Fatehgarh on 01.05.2005 at 2:10 p.m. wherein he noted the following anti mortem injuries:

(1) Firearm wound of entry 1.5 cm x 1 cm x through and through back of neck upper part margins inverted lacerated ecchymosed. Blackening and tattooing present around wound communicating wound of exit 2 cm x 1.5 cm over right side of chin, mandible lacerated. Teeth loose broken, tongue lacerated. Margins of wound everted.

(2) Blast injury 12 cm x 11 cm on back of right side of chest scapular region, blackening, tattooing present. Scorching hair back of neck.

(3) Abrasion 3 cm x 1 cm on back of right leg.

In the opinion of the doctor, cause of death was shock and haemorrhage due to ante mortem firearm injuries. This post mortem examination report is Ext. Ka-3.

Record further reflects that medical examination of the injured Amar Singh was conducted by PW-5 Dr. Suresh Patariya at PHC Gursahaiganj, District Kannauj on 01.05.2005 at 8:30 a.m. wherein following injury was found:

(1) One lacerated wound of size 3.0 cm x 1.0 cm x muscle deep present in left parieto-occipital part of scalp. Margins are lacerated. Clotted blood seen in wound.

In the opinion of the doctor, injury was simple in nature caused by hard and blunt object. This injury report is Ext. Ka-3.

The Investigating Officer PW-9 Maan Singh Yadav also prepared site plan of the incident besides recording the statement of various witnesses. The site plan is Ext. Ka-15. After completing the investigation, charge sheet was filed in this case against the appellant under Section 302 IPC at Crime No.315 of 2005 at Police Station Gursahaiganj, District Kannauj, which is Ext. Ka-17 on record. Thereafter the case of the appellant was committed to the court of Sessions from where it was made over for trial to the concerned trial court of I-Additional Sessions Judge, Kannauj.

The trial court heard the appellant on the point of charge and charged him under Section 302 IPC. Charge was read over and explained to the appellant who denied the charge and claimed to be tried. Thereafter the prosecution was asked to adduce its testimony in order to prove its case whereupon the prosecution produced in all 10 witnesses. A brief reference of the same is hereunder.

PW-1 Suresh Singh is first informant. He has claimed himself to be an eyewitness of the incident and has proved the written report Ext. Ka-1. PW-2 Brij Bhan Singh has turned hostile and has not supported the prosecution version. PW-3 Amar Singh claims himself to be injured eyewitness. PW-4 is Dr. Anoop Singh Gautam who has conducted post mortem examination on the dead body of the deceased Samar Singh on 01.05.2005 and has proved the same as Ext. Ka-3. PW-5 is Dr. Suresh Patariya who has examined injury on the person of the injured Amar Singh on 01.05.2005 at PHC Gursahaiganj, District Kannauj and has proved injury report as Ext. Ka-3. PW-6 Dhawal Singh has proved entry made in Check FIR and entry made in the concerned General Diary as Ext. Ka-5 and Ka-6, respectively. He has also proved 'Majrubi Chitthi' of Amar Singh as Ext. Ka-7. PW-8 Constable Dinesh Shanker Chaubey is formal witness and has witnessed recovery of countrymade pistol 315 bore from possession of the appellant and he has also proved recovery memo as Ext. Ka-10. PW-9 Maan Singh Yadav is Investigating Officer. He has detailed various steps whereby he completed investigation and in the process, he has proved several prosecution papers. Except as above, the rest of the witnesses were concerned with Case Crime No.378 of 2005 (in Sessions Trial No.204 of 2005), therefore, their reference is not being made in this judgment which is confined to Crime No.315 of 2005 under Section 302 IPC.

Thereafter evidence for the prosecution was closed and statement of the appellant was recorded under Section 313 Cr.P.C. wherein he has termed his implication false on account of enmity and it has been stated that appellant's mother was assaulted with gunshot by the deceased and Ajay Pal in which case some compromise was entered into between the parties due to which the first informant was inimical towards the appellant. No evidence whatsoever has been led by the defence.

Learned trial court after hearing both the sides on merit passed the aforesaid judgment and order of conviction dated 06.11.2006 sentencing the appellant to life imprisonment. Consequently this appeal.

It has been vehemently claimed on behalf of the appellant that this case is absolutely false and there is no clinching evidence appearing against the appellant. Even circumstances do not support the case of the prosecution. The first information report is ante timed. The place of the incident is deserted jungle and no one in fact saw the incident. After the incident, the police did a lot of manipulation and found it convenient to rope in the appellant in this case. It can be conveniently seen that there are cuttings in the inquest report. The fact is that the dead body was sealed and thereafter cuttings were made in the inquest report in order to adjust the same to the fictitious circumstances of the case.

It has been further added by learned counsel for the appellant that the statement of the prosecution witnesses is contradictory in material particulars. The blood stained clothes from the first informant were taken at inordinate delay on 31.08.2005. In fact, the place of occurrence is doubtful and not certain. In this case, it appears from circumstances that the dead body was recovered somewhere and the proceedings undertaken and then the prosecution deliberately made false implication of the appellant in this case. The prosecution has failed to establish charge against the appellant. Finding of conviction is based more on conjecture and surmises than on evidence on record.

Per contra, Sri J.K. Upadhyay, learned AGA has replied that the case in hand is consistent and genuine one. Evidence on record proves prosecution version overwhelmingly. It cannot be said to be either shallow or shaky. The incident has been witnessed by the first informant and Amar Singh. Moreover, Amar Singh is an injured witness and his injury has been medically examined at PHC Gursahaiganj, District Kannauj on 05.01.2005 and the doctor has proved his injury report which will be read against the appellant. His presence on the spot is most natural. He is an independent prosecution witness.

Learned AGA further added that besides distance from the place of the occurrence to Police Station Gursahaiganj, District Kannauj is 13 kilometers. The incident took place on 30.04.2005 around 05:00 p.m., whereas, the first information report was lodged the very same day at 20:05 hours at Police Station Gursahaiganj, District Kannauj which, under circumstances, is justified and it cannot be said that there is inordinate delay in lodging of the first information report. There is no point in sparing real culprit and implicating an innocent person in this case. The appellant was sighted by many prosecution witnesses at the time of the occurrence which is supported by direct testimony of the prosecution witnesses. The testimony of the prosecution witness of fact does inspire confidence and there is no element of doubt in their testimony. Accordingly, the instant appeal has no force.

Also considered above submissions.

The moot point involved in this case relates to the fact whether the prosecution has been able to establish its charge against the appellant beyond reasonable doubt and whether the incident was not seen by anyone and it is a case of blind murder?

Before we enter into merit of this case it would be convenient to have glimpse of the contents of the first information report wherein allegations have been made by the first informant, PW-1 Suresh Singh that on 30.04.2005, his son Samar Singh had gone to village Bhawanipur for marketing on bicycle and he was returning home around 5:00 p.m. when he was being followed at some distance on bicycle by Amar Singh and Brij Bhan Singh of the same village. Some cemented pipes were lying by the side of the road at some place away to one kilometer south of village Bhawanipur, where the appellant was lying in ambush. All of a sudden he came out of these pipes and hurled bomb on Samar Singh who fell down from his bicycle and in the meantime the appellant fired from behind the neck of the deceased with countrymade pistol due to which he died. Because of explosion of bomb, some splinter injury was also caused to the injured Amar Singh.

It is stated that there was old enmity between family members of the first informant and the appellant. The appellant after committing the offence fled away towards Badlepurwa. In this case, another witness named in the first information report Brij Bhan Singh has turned hostile and has not supported the prosecution version. Therefore, his testimony is discarded to that extent. However, testimony of first informant, PW-1 Suresh Singh and the injured witness PW-3 Amar Singh are quite relevant, for assessing merit of the case.

PW-1 Suresh Singh has stated that the incident occurred on 30.04.2005 when his son Samar Singh had gone to village Bhawanipur for marketing and he was returning home on bicycle at 5:00 p.m. He was also being followed by co-villagers Amar Singh and Brij Bhan Singh on bicycle. At some place one kilometer away on southern side of village Bhawanipur, some cemented pipes were lying by the side of the road in which the appellant had hidden himself and all of a sudden he came out of cemented pipes and hurled bomb from behind upon Samar Singh, due to which Samar Singh fell down from his bicycle then the appellant shot fire on the neck of Samar Singh as a result of which Samar Singh died on the spot. Amar Singh who was following the deceased at some distance also sustained bomb injury.

PW-1 Suresh Singh has further stated that the incident was witnessed by Amar Singh and Brij Bhan Singh and he also arrived on the spot and he too witnessed the incident. Thereafter he went to the Police Station and then he lodged the first information report. However, this witness has not clarified in his examination-in-chief as to how he arrived on the spot and how he witnessed the incident. It appears that this witness arrived on the spot after a short while after the incident had taken place, but under facts and circumstances, it is apparent that he did not witness the incident as such. Therefore, on point of being eyewitness to the occurrence, testimony of this witness cannot be said to be relevant and credible, therefore, eyewitness account testimony, as such, is not to be believed as given by PW-1 Suresh Singh.

At this juncture we may record that another so called eyewitness PW-2 Brij Bhan Singh has turned hostile and he has not supported the prosecution version. He has been cross examined by the prosecution wherein he has reiterated his claim that he did not witness the incident and he was not present on the spot. Therefore, testimony of PW-2 also becomes inadmissible on the point of being eyewitness to the occurrence. Now we are left with testimony of solitary eyewitness Amar Singh. We may appraise the same in its entirety as available on record.

PW-3 Amar Singh has stated in his testimony that on 30.04.2005, he was going along with Brij Bhan Singh on bicycle and Samar Singh who belonged to his village, was also riding on bicycle ahead of him. One kilometer south away to village Bhawanipur, some cemented pipes were lying. It was around 5:00 p.m., the appellant came out of these cemented pipes and hurled bomb on Samar Singh due to which Samar Singh sustained injury and fell on the ground. He claimed that he also sustained splinter injury. Thereafter the appellant fired on Samar Singh. A number of people arrived on the spot when the appellant made his escape good. Samar Singh died on the spot after sustaining gun shot injury.

PW-3 Amar Singh has stated that he too was medically examined. He has stated that at the time of the incident, no other person was there except Brij Bhan Singh and himself. A number of people arrived on the spot after some time of the incident. He has stated in his cross examination that he informed about the incident to the father of the deceased. The first informant-father of the deceased-met him around 5:15 p.m. He has stated at page 22 of the paper book in his cross examination that Daroga Ji enquired of him at the police station thereafter the first information report was lodged. However, he has stated that the first information report was lodged only after inquiry was made from him.

At this stage, contention has been raised on behalf of the appellant that this piece of testimony specifically establishes that the first information report was lodged at the interference of 'Daroga Ji' and the same is outcome of well thought out deliberation. The appellant's name was mentioned in the first information report merely because the first informant was abhorrent towards the appellant.

This specific, contention is not sustainable in view of the fact that it is very common experience that as and when one goes to some police station for lodging of the first information report, primarily inquiry is made regarding the incident/occurrence. After inquiry is made, if the incident appears to be genuine and element of truth is found to be existing in the description inquiry/description of incident then naturally the first information report is lodged at the police station. This witness has nowhere stated that the first information report was deliberated by Daroga Ji. This piece of testimony that after inquiry was made by Darogaji then the first information report was lodged, cannot be interpreted to mean that Daroga Ji himself entered into shoes of first informant and dictated the first information report.

It is due to viles and guiles of clever cross examination by the defence wherein such type of aberrations have surfaced and these aberrations cannot paint different picture than the one which this witness (PW-3) claims to testify; because there is no positive assertion on the part of this witness that the first information report is outcome of the dictation of Daroga Ji, therefore, it cannot be contemplated that the first information report is ante timed. Merely an isolated piece of evidence will not render the FIR ante time, if the testimony on the whole reveals that it was act of the first informant alone, as is the case in hand.

A careful analysis of the post mortem report at this stage becomes relevant wherein we discover ante mortem injuries (1) firearm wound of entry 1.5 cm x 1 cm x through and through back of neck upper part margins inverted lacerated ecchymosed. Blackening and tattooing present around wound communicating wound of exit 2 cm x 1.5 cm over right side of chin, mandible lacerated. Teeth loose broken, tongue lacerated. Margins of wound everted. (2) Blast injury 12 cm x 11 cm on back of right side of chest scapular region, blackening, tattooing present. Scorching hair back of neck. (3) Abrasion 3 cm x 1 cm on back of right leg. Therefore, it is obvious that fact of explosion of bomb on the spot and causing of firearm injury both are corroborated by post mortem examination report Ext. Ka-3.

In this regard, we may also discuss testimony of Dr. Anoop Singh Gautam PW-4 who conducted the post mortem examination and proved the same as Ext. Ka-3. In the post mortem examination report, duration of death has been stated to be about one day and the same fact has been testified by this witness before the trial court. However, he has suggested in his cross examination that injuries found on the body of the deceased could have been caused between 1:00 p.m. to 3:00 p.m. on 30.04.2005. This fact merely suggests to only the admissible variation in time of injury that there is possibility of injuries being caused between 1:00 p.m. to 3:00 p.m. on 30.04.2005. But fact of this admissible variation in time will not be presumed to the extent that it was not caused around 5:00 p.m. It has not been testified that these injuries could not have been caused around 5:00 p.m. on 30.04.2005. Some marginal difference in time gap is always there in such cases like the present one where death of a person is under scrutiny. Normally in death cases, there is variation of six hours on either side based on medical jurisprudence. No specific challenge has been made to the doctor that these injuries could not have been caused by bomb explosion or firearm at 5:00 pm. on 30.04.2005. Therefore, ocular testimony is corroborated by medical testimony and presence of eyewitness Amar Singh PW-3 on the spot cannot be doubted and cannot be said to be unnatural and his presence on the spot becomes natural and probable. His testimony carries element of truth and the same is supported by attendant circumstances.

PW-5 Dr. Suresh Patariya has proved injury report Ext. Ka-3 relating to the injury caused to Amar Singh in the shape of lacerated wound of size 3.0 cm x 1.0 cm x muscle deep present in left parieto-occipital part of scalp. Margins are lacerated. Clotted blood seen in wound. This injury has been said to be of duration 12 to 24 hours. This medical examination was conducted at 8:30 a.m. on 01.05.2005 and the duration described very well covers the time and date of occurrence. However, the doctor has opined that injury was simple and caused by hard and blunt object. The doctor witness in his cross examination has stated that this injury cannot be said to be blast injury. Assuming it to be; that this injury is superficial and cannot be blast injury even then that alone will not nullify presence of PW-3 Amar Singh on the spot.

It has been held in catena of decisions of the Apex Court that there is no legal hurdle in convicting a person on the sole testimony of a single witness if his version is found to be consistent clear and reliable, for the principle is that the evidence has to be weighed and not to be counted. In Vadivelu Thevar Vs. The State of Madras; AIR 1957 SC 614, it has been held that if the testimony of a singular witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. In the said pronouncement it has been further ruled that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness as has been held in the case of Kusti Mallaiah Vs. State of A.P.: 2013 Cri.LJ 3098.

Moreover, PW-9 Maan Singh Yadav, the Investigating Officer has proved investigation and also proved fact that he took simple soil, blood stained soil from the spot and memo of the same which he prepared is Ext. Ka-16. Therefore, the place of the occurrence cannot be said to be uncertain or doubtful. In so far as statement of eyewitness PW-3 Amar Singh is concerned, the same is clinching, consistent and inspiring confidence and it gives innocuous description of the incident. There is no such material contradiction as may render his testimony dubious or unreliable.

Learned counsel for the appellant could not point out any such material contradiction in his testimony and in the statement recorded under Section 161 Cr.P.C. by the Investigating Officer. May be that some laches have been committed by the Investigating Officer but that alone will not throw away the prosecution case and that factor alone will not generate doubt in the testimony of eyewitness PW-3 Amar Singh.

In the statement recorded under Section 313 Cr.P.C., the appellant has stated that he has been falsely implicated in this case on account of the fact that one Ajay Pal and the deceased had fired on his mother five years ago for which the first information report was lodged but compromise was entered into between the parties due to which the first informant was inimical towards the appellant, but this fact by itself cannot be any reason for PW-3 Amar Singh to depose falsely against the appellant. We may conveniently observe that in such a case of murder, it is hard thinking that any independent witness shall be interested in falsely implicating an innocent person as the murderer while sparing real culprit. Moreover, no such material exists on record nor has come in the testimony of PW-3 in his cross examination that he is prejudicial towards the appellant and is interested in achieving his conviction.

In this view of the matter, we find that testimony on record qua circumstances are sufficient to establish and prove charge under Section 302 IPC beyond reasonable doubt. Learned trial court has taken correct view of the fact, circumstances and evidence on record and has recorded just finding and has rightly sentenced the appellant to life imprisonment which order of conviction and sentence need no interference by this Court. Judgment of conviction and sentence dated 06.11.2006 passed by trial court in Sessions Trial No.205 of 2005 against the appellant is upheld by us.

In view of above, the appeal lacks merit and is dismissed. The appellant is in jail. He shall serve out his sentence.

Let a copy of this judgment be certified to the trial court for necessary information and follow up action.

Order Date :- 20.08.2016

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