Braj Pal vs State Of U.P.
2016 Latest Caselaw 5516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

											Reserved
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 6046 of 2008
 
Appellant :- Braj Pal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- B.N.
 
Singh,A.V.Yadav,D.P.S. Chauhan,Narendra Singh
 
Counsel for Respondent :- Govt.
 
Advocate,Yogendra Kr.Srivastava
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Bala Krishna Narayana, J.)

Heard Sri D.P.S. Chauhan, learned counsel for the appellant, Sri Sagir Ahmad, Km. Meena, learned A.G.A. assisted by Mrs. Manju Thakur, brief holder for the State.

Appellant, Braj Pal son of Bariyar Singh has approached this Court under Section 374(2), Code of Criminal Procedure by instituting this appeal challenging the veracity and sustainability of his conviction and sentence order dated 4.7.2008 recorded by Sessions Judge, Mainpuri in S.T. No. 165 of 2005 (State vs. Braj Pal), arising out of Case Crime no. 47 of 2005, under Section 302 I.P.C. and S.T. No. 167 of 2005 (State vs. Braj Pal), arising out of Case Crime no. 48 of 2005, under Section 25 Arms Act, P.S. Kishni, district-Mainpuri.

The facts of this case are that one Chottey Singh PW1 lodged a written report (Ext.Ka-1) on 16.3.2005 at about 14 hours at police station-Kishni, district-Mainpuri stating therein that on 16.3.2005 he along with PW2 Shiv Raj Singh son of Sadhav Singh and Sarvesh Kumar Pradhan son of Jore Singh had gone to Block Kishni for incorporating amendments in the voter list to be prepared for the next election. At about 1:00 p.m., while they were doing the work relating to amendments in the voter list in a room in the Block Office, accused Shilu son of Ram Bahadur, Brajpal son of Bariyar Singh and Rajesh son of Rameshwar Dayal came there and Rajesh insisted on incorporating his name in the amended voter list of Gram Sabha, Paharpur to which Sarvesh Kumar Pradhan refused, on which the accused started hurling abuses at them. At the instigation of Shilu and Rajesh to kill Sarvesh Kumar Pradhan, accused Braj Pal opened fire at Sarvesh from his ('tamancha') inflicting fire arm injury on him to which he succumbed on the spot. The complainant and the other people present there tried to catch the accused but Shilu alias Shilendra and Rajesh escaped in a Bolero car which was parked outside extending threats of dire consequences, while accused Braj Pal was caught on the spot along with a country made pistol with empty cartridge in the barrel and four live cartridges and taken to the police station. The written report contained a further recital that the dead body of his deceased brother Sarvesh Kumar Pradhan was lying on the spot.

On the basis of the above written report (Ext.Ka-1), Case Crime no. 47 of 2005, under Sections 302, 504 and 506 I.P.C. was registered against Sarvesh, Braj Pal and Rajesh, while another case namely, Case Crime no. 48 of 2005, under Section 25 Arms Act was registered against the accused Braj Pal alone at police station-Kishni and an entry to that effect was made in the G.D. on 16.3.2005. Immediately after the registration of the F.I.R, the Police Officer entrusted with the investigation of the case PW5 Udai Bhan Singh swung into action, visited the spot and conducted the inquest of the dead body of the deceased and prepared the inquest report and thereafter dispatched the cadaver of the deceased Sarvesh Kumar Pradhan together with the necessary police papers to the district mortuary for conducting the postmortem. He recorded the statements of the witnesses, inspected the spot, prepared site plan (Ext.Ka-7), collected samples of simple and blood stained soil, blood stained (chadar), one pair of shoes, simple and blood stained paper and pen and prepared separate recovery memos. After completing the necessary formalities of investigation he submitted charge sheet in Case Crime no. 47 of 2005, under Sections 302, 504 and 506 I.P.C. against the accused Braj Pal, Shilu alias Shilendra and Rajesh, while separate charge sheet under Section 25 Arms Act was laid by him against the accused Braj Pal alone in Case Crime no. 48 of 2005. Since the accused Sarvesh and Rajesh were absconding, their trial was separated from that of accused Braj Pal and committed to the court of session on 8.7.2005 and registered as S.T. No. 165 of 2005 along with the other case against accused Braj Pal, under Section 25 Arms Act, which was numbered as S.T. No. 167 of 2005. Subsequently the case against accused Sarvesh and Rajesh was also committed to the court of session on 25.5.2006 and registered as S.T. No. 167 of 2006.

Charge was framed against the accused Braj Pal on 28.10.2005 under Section 302 I.P.C. in S.T. No. 165 of 2005 and under Section 25 Arms Act in S.T. No. 167 of 2005. Charge against co-accused Sarvesh and Rajesh was framed on 25.7.2006 in S.T. No. 176 of 2006 under Section 302 I.P.C. read with section 34 I.P.C. The accused denied the charges and claimed trial.

On the request of the D.G.C. (Criminal) of the above mentioned three sessions trial were consolidated for the purpose of recording the evidence and S.T. No. 165 of 2005 was made the leading case.

The prosecution in order to prove its case examined PW1 Chottey Singh who is the informant and eye witness, PW2 Shivraj Singh, eye witness, PW3 Dr. Santosh Kumar who conducted postmortem of the dead body of the deceased, PW4 S.I. Kshetra Pal Singh, the then Head Constable posted at police station-Kishni who prepared the chek F.I.R and PW5 S.O., Udaibhan Singh, the Investigating Officer of the case. The accused-appellant, Braj Pal in his statement recorded under Section 313 Cr.P.C. denied the prosecution case and apart from alleging false implication, he stated that the witnesses Chottey Singh, Shivraj Singh and the deceased are cousin brothers and he has been falsely implicated due to political pressure and political rivalry.

The accused Shilu and Rajesh examined as many as four defence witnesses, DW1 Rajesh Kumar Gupta, DW2 Subhash, DW3 A.S. Yadav, a retired employee of C.B.,C.I.D. who had conducted further investigation of Case Crime no. 47 of 2005 under the orders of U.P. Government and had mentioned the analysis of total investigation conducted by him on 24.12.2015 in C.D. no. 7 and DW4 Raj Kumar, Head Master of Junior High School, Gopalpur, Etawah. The learned Sessions Judge after considering the evidence on record and the submissions made before him by the learned counsel for the parties by the impugned judgement and order convicted the appellant under Section 302 I.P.C. and section 25 Arms Act and awarded him the aforesaid sentence while co-accused Shilu alias Shailendra and Rajesh were acquitted.

Learned counsel for the appellant has submitted that the prosecution having failed to prove its case against the appellant beyond all reasonable doubts, the recorded conviction of the appellant and the sentence awarded to him by the trial court on the basis of the same evidence which was not found sufficient by the trial court to convict co-accused Shilu alias Shilendra and Rajesh can not be maintained. He next submitted that considering the glaring discrepancies in the testimonies of the two witnesses of fact PW1 and PW2 who are closely related to the deceased, with regard to the material particulars, their presence at the place of incident is not proved and it is apparent that they did not speak the truth before the trial court. Even otherwise the false implication of the appellant in the present case due to political rivalry and political pressure is writ large on the face of the record and hence the impugned judgement and order can not be sustained and is liable to be set aside.

Per contra, Sri Sagir Ahmad, learned A.G.A. appearing for the State submitted that two eye witnesses examined on behalf of the prosecution to establish the charge against the appellant have in their evidence recorded during the trial supported the prosecution case as spelt out in the F.I.R. to the hilt which further stands fully corroborated from the medical evidence on record. The role of the appellant who was arrested on the spot with the crime weapon is clearly distinguishable from that of the other co-accused Shilu alias Shilendra and Rajesh and their acquittal will not entitle the appellant to claim acquittal. The impugned judgement and order which are based upon relevant considerations and finding of guilt recorded therein is supported by cogent evidence warrants no interference by this Court and hence, this appeal which lacks merit is liable to be dismissed.

We have very carefully considered the submissions made by learned counsel for the parties and scanned the entire lower court record.

The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts? As already noted in order to prove its case against the appellant, the prosecution has examined as many as five witnesses of which PW1 Chottey Singh who is the informant and PW2 Shiv Raj Singh are the eye witnesses.

PW1 Chottey Singh in his statement recorded before the trial court testified that on 16.3.2005 he along with Shiv Raj Singh and his brother Sarvesh Kumar Pradhan had gone to Block Kishni for amending the voter list. At about 1:00 p.m. accused Shilu, Rajesh and Brajpal entered into the room, in which his brother Sarvesh Kumar was engaged in the work connected with the amendment of voter list and co-accused Rajesh ordered Sarvesh Kumar to include his name also in the voter list of village Paharpur to which Sarvesh did not agree and refused on which Shilu and Rajesh started abusing him and instigated Brajpal to kill Sarvesh, on which accused-appellant, Brajpal fired a shot from his 'katta' which hit the deceased on his back and he died on the spot. They tried to catch the accused but accused Shilu and Rajesh managed to escape in a Bolero car, however, accused-appellant Brajpal was apprehended along with his country made pistol of 315 bore with an empty cartridge in its barrel and four live cartridges, by the informant with the help of Shivraj and the other people present there after chasing him for about 25 paces. He wrote the written report on the spot and thereafter took accused-appellant Brajpal together with the recovered country made pistol and the cartridges to the Police Station-Kishni. He gave the written report paper no. 5A at the Police Station-Kishni and proved the same as Ext.Ka-1. The country made pistol and cartridges were given by him to (Divanji) who prepared the recovery memo paper no. 10A and obtained his signatures as well as that of Shivraj Singh on the same. He proved the recovery memo marked as Ext.Ka-2. He further deposed that the accused Rajesh who was a resident of village Fatehgarhi was insisting for including of his name in the voter list of village Paharpur.

PW2 Shiv Raj Singh testified that the occurrence had taken place on 16.3.2005. He, Chottey Singh and Sarvesh had gone to Block Kishni in connection with the work of amendment of voter list. Sarvesh Kumar Pardhan at the relevant point of time was the Pradhan of village Paharpur. Sarvesh Kumar was filling in the forms of the new voters while sitting on a 'Takht' in Block Kishni while Chottey Singh was sitting on a chair towards East of Sarvesh Kumar and he was sitting on the 'Takht' in the West of Sarvesh. At about 1:00 p.m. accused Shilu and Rajesh came armed with rifles, Rajesh ordered Sarvesh to include his name also in the voter list of Gram Sabha, Parahpur and when he refused, the accused started hurling abuses at him and at the instigation of Shilu alias Shilendra and Rajesh accused-appellant Brajpal opened fire at Sarvesh Kumar from his country made pistol which hit him on his back and he fell down and died. He further deposed that although they had tried to catch the accused but accused Shilu and Rajesh fled away in their Bolero car which was parked outside the gate. However, he and Chottey Singh with the help of members of public caught the accused-appellant Brajpal along with his weapon of 315 bore with an empty cartridge in its barrel and four live cartridges which he was carrying in his left hand. The report of the incident was scribed by Chhotey Singh on the spot and thereafter they all went to Police Station-Kishni along with accused-appellant, Brajpal lodged the F.I.R. of the incident and handed over the accused Braj Pal to the police. He put his signatures on the recovery memo of the articles recovered from the accused-appellant Brajpal prepared at the police station.

PW3 Dr. Santosh Kumar, the then Medical Officer, District Hospital, Mainpuri deposed before the trial court that on 16.3.2005, while he was posted as Orthopadic at District Hospital, Mainpuri conducted the postmortem of the dead body of Sarvesh Kumar at 1:30 p.m. and had found the following ante mortem injuries on his body :-

(1) Firearm entry wound 1 cm x 1 cm x chest cavity deep on left side chest back 3 cm lateral to mid line and 6 cm below inferior angle of scapula. Margins were inverted. Blackening was present all around in 1 cm in collar area.

(2) Firearm exit wound 3 cm x 2 cm x chest cavity deep in the mid line on front of chest 10 cm below external notch. Margins were everted.

On internal examination, the doctor found that injuries No. 1 and 2 were through and through on probing. Left lung and its membranes were also found lacerated. 4 ounce semi-digested food was present in the stomach. Small intestine was half filled with faecal mater and gases. Gall Bladder was half filled. Liver, spleen and kidney were pale in colour. The death of the deceased was caused due to shock and haemorrhage as a result of ante mortem firearm injuries. Duration was 1/4th day.

PW4 S.I. Kshetra Pal Singh who was posted as Head Constable in P.S. Kishni at the time of the occurrence proved the chek F.I.R. (Ext.Ka-4) and carbon copy of the entry made by him in the G.D. at 'Rapat' no. 25 at 14:10 hours on 16.3.2005 (Ext.Ka-5) and recovery memo (Ext.Ka-2). He further proved the case property namely, cloth of cover on which crime number was written and marked as material Ext.1, country made pistol of 315 bore material Ext.2, four live cartridges of 315 bore bearing LC-1, LC-2, LC-3 and LC-4 material Ext.3, 4, 5 and 6.

PW5 Udaibhan Singh, the then S.O. P.S. Kishni who was the first Investigating Officer of the case proved the inquest report of the deceased which was prepared under his direction and signatures in the handwriting of R.S. Parmar, Incharge of Police Out Post-Kusmara, Photo Lash (Ext.Ka-7), Challan Lash (Ext.Ka-8), Report to C.M.O. (Ext.Ka-9), Letter to R.I. (Ext.Ka-10). He prepared the site plan on the spot (Ext.Ka-11). He also proved the recovery memo of the sample of simple and blood stained pieces of cement on floor dug from the spot (Ext.Ka-12), blood stained 'Chadar' (Ext.Ka-13), one pair of shoes (Ext.Ka-14), blood stained paper and simple paper and pen (Ext.Ka-15). He further stated that he had obtained permission from the District Magistrate for prosecuting the accused for the offence under Section 25 Arms Act on 6.5.2005 (Ext.Ka-16), charge sheet submitted by him against the accused-appellant Brajpal, Shilu and Rajesh (Ext.Ka-17) in Case Crime no. 47 of 2005 and (Ext.Ka18) and the charge sheet filed by him against the accused-appellant Brajpal under Section 25 Arms Act in Case Crime no. 48 of 2005. We need not refer to the evidence of four witnesses examined on behalf of the defence DW1 Rajesh Kumar Gupta, DW2 Subhash, DW3 A.S. Yadav and DW4 Kshetra Pal Singh as they were examined on behalf of co-accused Shilu and Rajesh for establishing their alibi and there is nothing therein either supporting the appellant or incriminating him.

After a thorough analysis and scrutiny of the evidence on record, we find that the two eye witnesses examined in this case namely, PW1 Chottey Singh and PW2 Shivraj Singh have proved the prosecution case that the accused was shot dead by the appellant with his country made pistol in a room in the Block Office of Block Kishni after he had refused to include the name of co-accused Rajesh in the electoral role of village Paharpur and his arrest on the spot with a country made pistol with an empty cartridge in its barrel and four live cartridges in his possession. PW4 S.I., Kshetra Pal Singh who was posted at Police Station-Kishni, district-Hathras on 16.5.2005 as Head Constable testified that on the aforesaid day complainant, Chottey Singh and Shiv Raj Singh had come to the Police Station-Kishni along with accused-appellant Braj Pal who was carrying 315 bore 'tamancha' in his hand and had given a written report of the incident at the police station on the basis of which Chek F.I.R. (Ext.Ka-4) was prepared by him and registered as Case Crime no. 48 of 2005, under Sections 302, 504 and 506 I.P.C. against Sarvesh, Rajesh and Braj Pal and he had made the G.D. at 'Rapat' no. 25 at 14:10 hours on 16.3.2005 (Ext.Ka-5) in his own writing. He also stated that the complainant had also given him four live cartridges which he claimed to have recovered from the possession of accused-appellant Braj Pal at the time when he was caught by them with the help of public at the place of incident.

It is true that there are some minor discrepancies in the evidence of PW1 and PW2 but the said discrepancies in our view do not go to the core of the prosecution case so as to render the same unreliable or unbelievable. PW1 in his evidence recorded before the trial court has not deposed that co-accused Shilu alias Shilendra and Rajesh were also carrying arms, whereas PW2 in his examination in chief has stated that when co-accused Shilu, Rajesh and the accused-appellant Braj Pal had entered into the room, in which the deceased along with complainant and Chottey Singh was sitting and doing the work of revising the electoral role, accused Shilu and Rajesh were armed with rifles while no weapon was visible in the hands of Braj Pal. However, he has very categorically stated that when Sarvesh Kumar refused to record the name of co-accused Rajesh in the voter list of village Paharpur, on the instigation of Shilu and Rajesh the accused-appellant Braj Pal pulled out a 'katta' and shot him from behind on which Sarvesh Kumar fell down and died. Thus, PW2 has fully corroborated the evidence of PW1 on the point of shooting of the deceased Sarvesh Kumar Pradhan by the appellant, Braj Pal. Further both PW1 and PW2 have stated in unison that the accused had tried to escape from the place of incident and two of them Shilu and Rajesh had managed to escape in a Bolero car which was parked outside the Block Office but the appellant, Braj Pal was caught by the complainant and PW2 Shivraj Singh with the help of other people present at a place about 25 paces from the main gate on the Kishni Road along with the crime weapon and four live cartridges. Another aspect of the matter to which our attention was invited by the learned counsel for the appellant is that the presence of two eye witnesses at the place of incident is extremely doubtful in view of the fact that the postmortem of the deceased does not corroborate the prosecution version regarding the manner in which the incident was committed. He further submitted that that PW1 and PW2 testified before the trial court that the appellant had shot the deceased from behind, however the postmortem report of the deceased shows only one firearm entry wound of 1 cm x 1 cm x chest cavity deep on left side chest back which indicates that the deceased was shot from the front and not from the back as deposed by the PW2 and hence, it is apparent that none of the eye witnesses had seen the incident. The aforesaid submission of learned counsel for the appellant is without any force. The medical evidence in our opinion fully corroborates the ocular testimony of the eye witnesses. The postmortem report of the deceased (Ext.Ka-3) indicates two ante mortem injuries :-

(1) Firearm entry wound 1 cm x 1 cm x chest cavity deep on left side chest back 3 cm lateral to mid line and 6 cm below inferior angle of scapula. Margins were inverted. Blackening was present all around in 1 cm in collar area.

(2) Firearm exit wound 3 cm x 2 cm x chest cavity deep in the mid line on front of chest 10 cm below external notch. Margins were everted.

It is apparent that the ante mortem injury no. 1 found in the dead body of the deceased could have been caused by the appellant by firing at the deceased from behind as deposed by both PW1 and PW2. A murder was committed in a daring manner in a broad day light by the appellant in a public office, in which an elected representative of the people, the village Pradhan was shot dead by the appellant only on account of his refusal to enter the name of co-accused Rajesh illegally in the voter list of village Parahpur. The appellant was arrested at the place of occurrence along with the crime weapon with an empty cartridge in the barrel and four live cartridges in his possession with the aid of members of public and handed over to the police along with articles recovered from him by the complainant and PW2 promptly on the same day.

Upon a through analysis the evidence available on record and considering the investigation done by the police and the C.B., C.I.D. and the evidence on record it is proved beyond all reasonable doubts that the murder of Sarvesh Kumar Pradhan was committed by the accused-appellant, Braj Pal who was caught immediately after the incident on 16.3.2005 at about 1:00 p.m. in the block premises and handed over to the police. The F.I.R. was promptly lodged. We have no reason to disbelieve the testimonies of PW1 and PW2 who are close relatives of the deceased which appear to be consistent, trustworthy, reliable unimpeachable. The defence has failed to come up with an explanation as to why the complainant and the other witness would falsely implicate the appellant and thereby allowing the real culprit to go scot free. The acquittal of co-accused Shilu alias Shilendra and Rajesh whose plea of alibi was accepted by the trial court in our opinion does not in any manner affect the conviction of the appellant recorded by the trial court which is based upon relevant considerations and cogent evidence, entitling him also to acquittal as his role and the evidence against him stand on an entirely different footing.

Thus, we do not find any infirmity, illegality or perversity in the recorded conviction of the appellant and the sentence awarded to him by the impugned judgement and order.

The appeal lacks merit and is accordingly dismissed.

There shall be however no order as to costs.

Dt. 26.08.2016.

Faridul.