Ashok Kumar & Others vs State Of U.P.
2016 Latest Caselaw 386 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.42
 
RESERVED
 

 

 

 
Court No. - 42
 

 
Case :- CRIMINAL APPEAL No. - 6319 of 2010
 

 
Appellant :- Ashok Kumar & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Govind Saran Hajela,A.K.Sachan,Ajay Kumar Pandey,Sheshadri Trivedi,Z.A.Siddiqui
 
Counsel for Respondent :- Govt. Advocate,Amit Kumar Srivastava,R.D. Yadav
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Arvind Kumar Mishra-I,J.

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

1- Shri B.D.Sharma, learned Advocate appeared on behalf of the appellants and Km.Meena, learned A.G.A. appeared on behalf of the State.

2- The present appeal has been preferred assailing the impugned judgment and order of conviction and sentence dated 28.8.2010 passed by learned Additional District & Sessions Judge, Court No.3, Bareilly in S.T. No.437 of 2007 arising out of Case Crime No.65 of 2003, under section 302 I.P.C. PS. Bhuta District Bareilly convicting and sentencing the appellants under section 302 I.P.C. for life imprisonment with fine of Rs.20,000/- and in default of payment of fine, one year additional imprisonment.

3- We heard learned counsel for the parties and perused the record. Judgment was reserved on 19.2.2016.

4- All the three appellants are in jail since the date of conviction.

5- The brief facts of the case is that the First Information Report was lodged by Manveer Bahadur on 19.3.2003 which was registered at 10.00 A.M. as Case Crime No.65 of 2003 at PS.Bhuta, District Bareilly. As per First Information Report version on 19.3.2003, the informant and his son Dig Vijay Singh and Veer Pal s/o Ram Das of the same village and other persons were singing Holi festival song. At the same time the accused appellant Ashok Kumar and others in drunken condition started quarreling. However, persons present there intervened. Subsequently at about 8.00 P.M. the appellant Ashok Kumar s/o Shyam Lal , Bhoop Ram s/o Rupali Ram and Raj Kumar s/o Jagannath Prasad came there with licensed gun. Raj Kumar was having gun of his father and Ram Chandra s/o Bulaki Ram was armed with country made pistol. They started indiscriminate firing causing firearm injuries to Dig Vijay Singh and Veerpal. Dig Vijay Singh expired on the spot. The accused caught hold the hand of the Dig Vijay Singh and they tied rope around the neck of Veer Pal and dragged them towards their house. Due to indiscriminate firing villagers started running towards house and closed the doors. While running they left there shoes chappal and empty cartridges were also lying on the spot. The animals started running after breaking the rope. The terror was created in the village. The incident was witnessed by Prabhat Kumar s/o Lakshya Chandr, Babloo s/o of Nanhey Lal, Devendra Kumar s/o Lakshya Chandra and others villagers in the light of petromax and torch. They tried to catch hold the accused but firing in the air and showing their gun and country made pistol they went towards jungle leaving both the dead bodies in the house of Ashok Kumar. Number of villagers were collected there. He went for lodging of the First Information Report. The report was got written by one Kunwar Sen. The investigating officer started investigation. Police reached on the spot. The investigation was started by the then SHO Harvir Singh who went on the spot alongwith the police personnel including S.I. Raj Kumar Singh. Blood and blood stained earth were taken from the spot which was sealed in separate container. Four empty cartridge were recovered from the place of occurrence. The recovery memo was also prepared regarding shoes and chappal. Petromax was taken into custody and thereafter it was handed over to the witness Nathhu Lal. Thereafter on 21.3.2003 one plastic rope was recovered on pointing out of the accused. The accused were arrested. From their possession double barrel gun, two cartridges, one single gun and one cartridge were taken into custody. Recovery memo was prepared. The recovery memo was proved and exhibited. S.I. Raj Kumar Singh, PW-6 The accused appellant Ashok Kumar, was arrested with SBBL gun, Bhupram with DBBL gun, Raj Kumar with DBBL gun and Ram Chandra on their pointing out rope used for dragging Veer Pal was recovered. The gun and cartridges recovered from the accused appellant were sealed. Recovery memo was prepared in presence of the witnesses. On the body of Dig Vijay Singh firearm entry of 2 cm x 2 cm x bone deep was found. 3 cm on right side of head and 3 cm above right year on the parietal bone in the area of 6 cm x 4 cm measuring 0.2 cm x 0.2 cm x bone deep. The cause of death was a result of anti mortem injuries. According to postmortem examination report of the deceased Veer Pal there were following injuries noted:-

1) Firearm wound of entry 3cm x 2 cm muscle deep on middle of left thigh and number of firearm of entry were noted in the area of 15 cm x 14 cm measuring 0.2x 0.2 cm x bone deep.

2) Firearm wound in the area of 12 cm x 10 cm on right arm and size of firearm injuries were noted as 0.2 cm x 0.2 cm x skin deep.

3) Contusion with number of injuries around the neck measuring 3 cm x 1.5 cm.

6- The cause of death was due to shock and hemorrhage as a result of ante mortem injuries.

7- According to report received from Forensic Laboratory, Agra U.P. the fire was from gun recovered from the accused appellant.

8- After completing formalities the investigating officer submitted charge sheet and the case was committed to the court of Sessions. Charges were framed under section 302 and 201 I.P.C. The accused appellant denied the charges and pleaded to be tried.

9- The prosecution examined as many as nine witnesses to prove its case. PW-1 Manveer Bahadur, the informant, PW-2 Constable Vishwajeet Singh who prepared chick report and made G.D. Entry and he proved the chick report and G.D. Entry and which was exhibited as Ext.Ka-2 and Ext.Ka-3 respectively, PW-3 Devendra Kumar, witness of panchayatnama, PW-4 Dr. Deepak Kumar Saxena who conducted the postmortem examination of the bodies of the deceased Dig Vijay Singh and Veer Pal, PW-5 S.I. Aditya Kumar Mishra who prepared panchayatnama on 20.3.2003 as in the night of 19.3.2003, there was no sufficient light for preparation of panchayatnama and he proved panchayatnama of Veerpal and Dig Vijay Singh, P.W.6 S.I. Raj Kumar Singh who accompanied, the then Investigating Officer,(the then S.H.O.)Harvir Singh for recovery and collecting sample of blood and blood stained earth. Four empty cartridges were also taken into custody. The Petromax was taken into custody. After seeing patromax received the same was handed over in the custody of Nathhu Lal who also proved the recovery of plastic rope on 21.3.2003 and arrest of the accused on 21.3.2003. PW-7, S.I. Surendra Singh, the second investigating officer to whom the investigation was handed over on 5.4.2003. He inspected the place of recovery of gun and recorded the statement of the witnesses. The site plan was prepared after inspection on the spot on 7.4.2003. Subsequently the statement of the other witnesses were also recorded. After completing investigation he submitted charge sheet on 3.9.2003 in Case Crime No.65/2003 under section 302 and 201 I.P.C. and which was exhibited as Ext.Ka 28. Site plan was prepared and Exhibited as Ext.Ka.27. PW-8 S.I. Harvir Singh, the investigating officer took the investigation and started investigation after the First Information Report was lodged on 19.3.2003. He was S.H.O. Of the Police Station concerned. The First Information Report was registered in his presence. Panchayatnama was prepared on his direction, recoveries were made. PW-9 Constable Roop Ram who brought the report from Forensic Laboratory Agra which was proved and submitted before the trial court as Ext.Ka.31 and 32. After the prosecution closed the evidence the statement of the accused appellants were recorded under section 313 Cr.P.C. He denied the charges and wanted to adduce the evidence. Four witnesses were examined from side of the defence. DW-1 Mahendra Pal Singh to show that on the date of Holi Festival Raj Kumar visited his house. He is brother-in-law (sala) of the accused Raj Kumar, DW-2 Ram Bharose Lal to prove alibi to the effect that the shop of the accused appellant Ashok Kumar was adjacent to his shop, which used to remain open on all days during entire year. There was no Holiday to close the shop, DW-3 Ramesh Chandra to prove alibi that the accused Bhupram was his tenant who was residing with his wife in his house on rent and according to him he was apprehended by the police while he was going to school, DW-4 Mohd.Saleem to prove of Manveer Bahadur who was working in the irrigation department and was known to him. It was informed by Manveer Bahadur that from his first wife there was a son, namely Dig Vijay Singh who was residing at the house situated at Joginaveda and there was suspicion regarding illicit relationship with his second wife. Due to that he ousted his son Dig Vijay Singh from the house where he was residing and he did not use to visit to his village. He tried to show that both father and son (deceased) have no good relation. They were not visiting the house of each other and on the third day of Holi festival, informant Manveer Bahadur took his meal and remained there upto 11.30. Thereafter he went to his house. He was brought by the accused Ashok Kumar for evidence.

10- Learned counsel for the appellant submitted that in fact no body had seen the incident and on the basis of false allegation due to suspicion the appellants were implicated in the present case. It appears that the incident took place at some other place. The deceased were assaulted by some unknown persons. It was unnatural and unbelievable that there was indiscriminate firing but no firearm injury was caused to any other person who are claiming to be present there and witnessed the incident. However, it was unnatural that they were dragged to the house of one of the appellants (Ashok Kumar). Since the informant Manveer Bahadur was intermediate pass and as such it was unnatural that he got the First Information Report written by third person (scribe Kunwar Sen). In fact he was not present on the spot. After he came to know regarding the incident, then the First Information Report was lodged and registered and the appellants were apprehended from their houses showing the recovery of gun from them. The appellants were falsely implicated in the present case. It was night incident and there was no sufficient light, hence it appears that no one could identify the assailants. There was no talking term of the informant with his son deceased Dig Vijay Singh as there was suspicion of his illicit relation with the second wife of the informant that is step mother of the deceased. Though the appellants were charged under section 302 and 201 I.P.C. However, on the basis of the same evidence adduced on behalf of the prosecution, they were acquitted under section 201 I.P.C. because the prosecution failed to prove its case beyond reasonable doubt, hence it is clear that the evidence adduced by the prosecution was found unreliable. There are contradiction in the statement and since the deceased failed to prove its case beyond doubt and as such the impugned judgment and order is liable to be quashed.

11- Learned A.G.A. Vehemently opposed the aforesaid prayer. The prompt First Information Report was lodged by the informant Manveer Bahadur, father of the deceased Dig Vijay Singh. The incident took place at about 8.00 P.M. on 19.3.2003 at the time of Holi function, when they were singing Holi Song. First Information Report was got written by one Kunwarsen because he was mentally disturbed due to murder of his son and nephew. The distance was about 8 km from the place of incident, hence it is incorrect that the informant was not present on the spot. The dead body was recovered from the house of accused Ashok Kumar and from the place of occurrence blood and sample of blood stained and simple earth as well as four empty cartridges were recovered. As per report of the Forensic Laboratory it is clear that there was firing by the same gun recovered from the possession of the accused appellant. The medical reports have also corroborated the prosecution story.

12- The incident took place on the second day of Holi function and there was light of petromax and torches, hence in view of the fact, the prosecution has proved the case beyond doubt and as such the appellants were rightly convicted and sentenced under section 302 I.P.C. for life imprisonment by the trial court.

13- So for as the presence of the informant Manveer Bahadur P.W.-1 is concerned, there is no material to show that his presence was doubtful. He lodged the First Information Report at 10.00 P.M. regarding the incident took place at 8.00 P.M. And the distance of police station from the place of incident is about 8 Km.

14- So for as the light is concerned, it was second day of Holi function so the presence of sufficient light while they were signing Holi song is not unnatural and unbelievable. There was light of Petromax (gas lantern) and torch which were also shown to the I.O. recovery memo was prepared and the same was given in the custody of the owner/witnesses. After consuming liquor, before the incident, quarrel took place in between the accused and the deceased, hence there was motive for committing offence and if the motive was to kill Dig Vijay Singh and Veerpal, hence if they were targeted, then even if witnesses who were present there did not receive any injury, merely on this ground, their presence could not be doubted. Dig Vijay Singh expired on the spot. However, body of Dig Vijay Singh and injured Veer Pal were dragged to the house of Ashok Kumar. The accused were chased and since other persons started collecting at the place of occurrence and as such they ran away leaving the dead body. The registration of the First Information Report and G.D. Entry were proved by the constable Vishwajeet who was examined as PW-2.

15- So for as dragging of the bodies are concerned, the witnesses cannot read the mind of the assailant but it appears that they wanted to ensure the death of both injured Dig Vijay Singh and Veer Pal. Apart from that from the postmortem examination it is clear that there were injuries around the neck to show that the accused tied up the rope, around the neck of Digvijay Singh and dragged him.

16- From the place of the incident blood stained earth recovered and four empty cartridges were recovered, hence the place of incident is not doubtful. The rope was recovered on the pointing out of the accused. According to report received from the Forensic Laboratory it is clear that the firing was from the gun which was recovered from the accused appellant. It was found that the blood was found at the place in between the place of occurrence and house of Ashok Kumar where dead body of injured and deceased were dragged and carried away.

17- So for as the plea of alibi is concerned, there was no reliable material at the time of incident that the accused appellants were with the defence witnesses. Due to night incident spot was inspected next day morning by the investigation Officer. According to investigating officer S.I.Harvir Singh who was examined as PW-8 when the First Information Report was lodged and registered by the informant Manveer Bahadur on 19.3.2003 he was present at the place of police station. The accused were searched. Search was made to apprehend the accused but they were not traceable. There is no material contradiction to create doubt regarding prosecution case and there was no reason of false implication and in view of the allegation there is motive for committing offence.

18- Hence in view of the facts and circumstances it is clear that the prosecution succeeded to prove its case beyond reasonable doubt. Accused-appellants came with fire arm, started indiscriminate firing. The offence was committed with premeditation and with common object, and as such all the accused who were involved in the incident were rightly held guilty and convicted under sections 302 read with 34 I.P.C. The firing was with an intention to cause death and to cause bodily injuries to the deceased Dig Vijay Singh and Veer Pal which were sufficient to cause death and cause of death was as a result of anti mortem injuries.

19- So for as section 201 I.P.C. is concerned, the accused appellants were acquitted. Merely because the dead body of the deceased and injured were dragged and taken at some distance to the house of Ashok Kumar and villagers started collecting, hence there was no concealment of the dead bodies. However, apart from that judgment of the acquittal under section 201 I.P.C. had not been challenged either by the State or by the complainant.

20- In view of the aforesaid discussion it is not a fit case for interference in the impugned judgment and order and it lacks merit, hence this appeal is hereby dismissed.

Order Date :-14.3.2016

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