Kunnoo Singh @ Harender Singh vs State Of U.P.
2017 Latest Caselaw 3192 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
	                                                                       Reserved on :- 01.05.2017
 
	                                                                       Delivered on :- 11.08.2017
 
Court No. - 47
 

 
Case :- CRIMINAL APPEAL No. - 1509 of 2012
 

 
Appellant :- Kunnoo Singh @ Harender Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.N. Yadav,Indra Kumar Chaturvedi,R.P. Mishra,Sanjay Kumar Yadav,Sunil Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Rekha Dikshit,J.

(Delivered by Hon'ble Rekha Dikshit, J.)

1. This appeal assails the correctness of the judgment dated 03 March, 2012 passed by Additional Sessions Judge, Court No.1, Ballia in Session Trial No.278 of 2008, State of U.P. Vs. Kunnoo Singh @ Harender Singh. The Additional Sessions Judge has convicted the appellant-accused, namely, Kunnoo Singh @ Harender Singh under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced him to undergo rigorous life imprisonment with fine of Rs.10,000/- in default one year additional rigorous imprisonment.

2. Narrated concisely, prosecution case against the appellant is that on 09.10.2007 around 11:15 pm the brother of informant Jaleshwar was returning from Bairahi temple to his tube well, as soon as he reached near his fields accused Sona @ Harindra and his relative Kunnoo appeared and fired a shot at Chandrashekhar who fell down on the spot and died. The informant and Bhola Singh were also returning from the said temple and they tried to caught hold of the accused but they ran away. By this time Janki Devi, the sister of the informant and Smt. Ramawati, wife of deceased-Chandrashekhar came there with a torch and saw accused-Sona and Kunnoo running with country-made pistol in their hands, the dead body of deceased-Chandrashekhar was lying on the spot.

3. The F.I.R. was lodged on 10.10.2007 at 02:30 am, registered as case crime No.107 of 2007, under Section 302 I.P.C. The dead body of the deceased-Chandrashekhar was sent for post mortem where he was examined by Dr. Ramanand Vashisth (P.W. 4) Exhibit Ka-2 is post mortem report in which ante mortem injuries are as follows:

(i) Lacerated wound - charred and blackened - measuring 5 cm x 4 cm found in the middle of elbow joint.

(ii) Lacerated wound 2 c.m. X 1 c.m. which was blackened, was found 5 c.m. below the nipple on the left side of chest. One metallic bullet measuring 3 c.m. X 0.5 c.m. had been found from the right lung. The fifth and sixth ribs to the left side of chest and sixth and seventh ribs to the right side of the chest were found fractured.

4. The case was investigated by S.I. Srikant Pandey and consequently charge-sheet (Exhibit Ka-14) was submitted after completing the investigation. The charge was framed against both the accused under Section 302 I.P.C. read with Section 34 I.P.C. by the trial court.

5. To bring home the guilt of the appellant, the prosecution has examined 7 witnesses which are as follows:

(i) P.W. 1 Jaleshwar Singh, the informant of the case and brother of the deceased has categorically supported the prosecution case in his oral testimony in S.T. No.278 of 2008 (State of U.P. Vs. Kunnoo Singh @ Harender Singh) but has resiled from his own testimony in S.T. No.74 of 2010 (State of U.P. vs. Sona Singh @ Harendra Singh) in which he has been declared hostile. He has stated that he got the report (Exhibit Ka-1), written by his son Shailendra at the spot.

(ii) P.W. 2 Smt. Janki Devi has also corroborated the prosecution story stating that the deceased is her brother and at the time of alleged incident, she alongwith her sister-in-law, Smt. Ramawati, wife of deceased, reached the spot with a torch in their hand and saw accused-respondents fleeing away after firing on her brother. She has narrated the same story in both the sessions trial.

(iii) P.W. 3 Ramawati, wife of deceased has corroborated the said incident and stated in her oral testimony in both the sessions trial that the incident took place around 11 pm in the night when the accused-respondents fired shot at her husband and she reached the spot with a torch and saw the accused persons firing on her husband. She has also stated that P.W. 1 Jaleshwar Singh and Bhola Singh were just behind her husband when the incident took place.

(iv) P.W. 4 Dr. Ramanand Vashisth, conducted post mortem of the deceased on 10.12.2007 and has proved the post mortem report (Exhibit Ka-2).

(v) P.W. 5 Bhagwan Ram, has proved chik F.I.R. (Exhibit Ka-3) and GD (Exhibit Ka-4) in his deposition.

(vi) P.W. 6, Shailendra Kumar Singh, the scribe of the first information report (Exhibit Ka-1) has deposed in his statement that the aforementioned report is in his hand writing but has expressed his doubts regarding signature of his father on the same.

(vii) P.W. 7, S.I. Srikant is the Investigating Officer of the present case who conducted the investigation, prepared relevant documents during investigation and proved them in his deposition. The documents proved by him in his testimony are Exhibit Ka-5 to Exhibit Ka-11 and submitted charge-sheet against the accused-respondents (Exhibit Ka-4) accordingly.

6. Incriminating evidence and circumstances was put to the appellant under Section 313 Cr.P.C. who denied all of them and claimed false implication due to connivance of Investigating Officer with the opponents of accused Sona Singh. It has further been stated that material Exhibit Ka-1 and 2 were not correctly examined during the trial and the informant has given different statement in different sessions trial.

7. The trial court held, that the appellant committed the said incident and the prosecution established the circumstance, proving his guilt under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced him to undergo rigorous life imprisonment with fine of Rs.10,000/- in default one year additional rigorous imprisonment.

8. Heard Sri Indra Kumar Chaturvedi, learned counsel for the appellants, Sri Ashish Pandey, learned AGA for the State and perused the record.

9. Learned counsel for the appellant submitted that the informant of the case has turned hostile and not supported the prosecution version and the other person accompanying him, namely, Bhola Singh has not been produced in evidence. He has also argued that the alleged scribe of the FIR has also not supported the prosecution case.

10. It has also been contended that the veracity of the statement of P.W. 2 and P.W. 3 is highly doubtful as they have admitted the distance of almost 1-1½ bigha in between the place of occurrence and there house, but have not clarified the time taken to reach at the spot. It has also been stated that as per their testimony, they reached the spot after hearing the fire shot. The sister of the deceased has even stated that after she reached the place of occurrence, accused Sona Singh fired one shot before her which do not correspond with the medical evidence.

11. Learned counsel for the appellant has also argued that there is no motive alleged by the prosecution for commission of said crime and the weapon alleged to have been used in crime has not been recovered. Further he has also stated that the witnesses of fact being family member, fall in the category of related witnesses, thus, their evidence cannot be relied upon. Moreover, there are lot of discrepancies and contradictions in their evidence which falsify the prosecution case.

12. Per contra, learned AGA for the State contended that the prosecution has established the guilt of appellants in the commission of crime in this case. The F.I.R. version has fully been supported by medical and ocular evidence, based on the said evidence, the court below rightly convicted the appellants and the impugned judgment warrants no interference.

13. We have considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.

14. In the instant case, the prosecution case is that the deceased was returning home from temple when around 11:15 pm, the accused-respondent fired at him, due to which he died at the spot. The informant, accompanied with Bhola Singh was a little behind the deceased, wife and sister of the deceased also reached the spot at the time of commission of crime. When they reached the spot, the appellants fled away and deceased Chandrashekhar was lying dead.

15. At the very outset, it is pertinent to mention here that the trial of accused Kunnoo and Sona Singh were registered separately as ST No. 278 of 2008 and S.T. No. 74 of 2010 respectively, though arising out of the same FIR. The court below consolidated both the sessions trial, considering S.T. No.278 of 2008 to be the leading case so the testimony of witnesses was recorded separately in each trial.

16. The foremost argument of learned counsel for the appellant pertains to the testimony of P.W. 1, namely, Jaleshwar Singh, informant of the case, who has supported the prosecution version alleging that he was just behind his brother, deceased-Chandrashekhar, when the accused-respondents shot at him due to which he died. But at the other instance, in Sessions Trial No.74 of 2010 he has totally denied the prosecution case and has stated that at the time of alleged incident, he was at his home which is at a distance of 1 km from the place of occurrence. On hearing the sound of fire shot and information by village people, he reached the spot where deceased was lying dead. He has also deposed that the report was dictated by Rajendra Singh, Kamal Dev Singh, Shiv Shankar Singh and Panchdev Singh to his son, he merely signed without knowing what is written in the same. He has also stated that P.W. 2 and P.W. 3 reached the spot after 15-20 minutes of his arrival. He was accordingly, declared hostile by the prosecution. He has further stated that the other witness, alleged to accompanying him at the time of incident, namely, Bhola Singh was dead at the time of incident. He has also stated that the averment in first information report regarding presence of Bhola Singh is false. He was informed by the village people regarding murder and death of his deceased brother. He further stated that his testimony recorded in S.T. No.278 of 2008 has been given under the pressure of police personnel. Thus, this witness can not be relied upon as he keeps changing his statement though being informant and allegedly eye-witness of the case.

17. It has further been argued that the scribe of the FIR Shailendra Kumar Singh (P.W. 6) has deposed in his oral testimony that the written report (Exhibit Ka-1) is in his hand writing but did not identify the signature of his father (informant) on the said report. He has stated that on 10th October, 2007, early morning, he came to know about the death of his uncle deceased-Chandrashekhar and reached the police station concerned around 08:00 am where he wrote the report as per instructions of Police Inspector. It has further been stated by him that the accused-respondent has falsely been implicated in the present case as the deceased had lot of opponents in the village, who might have committed the said crime. The testimony of this witness puts a question mark on the veracity of the written report and the manner of incident as alleged by the prosecution. The informant (P.W. 1) has categorically stated in his testimony that he dictated the report to his son at one instance and on the other he has stated that some village people dictated the report to his son, Shailendra Kumar Singh, which creates a serious dent in the prosecution story as the informant and the scribe are in contradiction with each other in their testimony.

18. Learned counsel for the appellant has raised vital question regarding presence of the eye-witnesses at the time of commission of crime, the alleged eye-witness of the incident P.W. 2-Janki Devi, sister of the deceased, has supported the prosecution case to some extent but her statement suffers from serious discrepancies. She has stated that her brother-deceased left the house around 07:00 pm in the night and she along with wife of the deceased was sleeping in the same house. Both of them reached the spot 10 minutes after the occurrence took place, two fire shots were made prior to their arrival and third in her presence by accused-Sona Singh they saw both the accused running away. She has also deposed that the alleged source of light, the said torch and lantern were not taken into custody by the police and also not produced during the trial. It has also been stated after hearing the sound of fire shot, they rushed to the place of occurrence where, admittedly, the dead body was covered by Muzwan by all the sides which was about 5.4 inches in length. She has also admitted, the inimical terms of the deceased with Shiv Shankar and Anjala Singh of the same village. The place of occurrence, as per her statement, was 1-1½ bigha from her house and she proceeded after hearing the third shot. It has also been deposed that she saw three injuries on the body of the deceased which do not correspond with the medical evidence. Another noticeable deposition of P.W. 2 is regarding the writing of first information report which according to her was written by the police on the dictation of informant (P.W. 1) and was signed by P.W. 1, P.W. 3 and herself which is direly in contradiction of the prosecution case.

19. The testimony of P.W. 2 is not convincing on the issue as to when she left her house for the place of occurrence. At one point of time, it is after hearing two fire shots, on the other, it is on hearing the third fire shot. On the contrary, she further testifies third fire shot by Sona Singh in her presence, creating doubt on the authenticity of her presence at the spot. The distance of 1-1½ bigha between the house of P.W. 2 and place of occurrence was covered in, how much time is not evident in her testimony which raises a question mark, whether she could be able to witness the commission of crime. Moreover, the accused-Sona Singh has died and no specific role has been assigned to accused-Kunnoo by her. She has also stated that she reached 10 minutes after the occurrence, in such circumstances, her presence at the spot becomes highly improbable rendering her testimony not to be wholly reliable and trustworthy.

20. The wife of deceased, Ramawati-(P.W. 3) has deposed in her testimony that she saw the accused firing shot on the deceased in the light of torch along with her sister-in-law Janki (P.W. 2). She has further stated that the deceased left the house for the temple around 11 O'clock after having food. She has also deposed that the police came to her house after death of the deceased and took her to the place of occurrence. She further stated that she went to police station around 12 O'clock in the night and again she changed her statement and stated that when she reached the place of occurrence, police was already present there.

21. The testimony of P.W. 3 Ramawati, wife of deceased is not in consonance with the testimony of P.W. 2 and the prosecution case. She has stated that the deceased left the house after having food at 11 pm on the fateful day whereas P.W. 2 has categorically stated that deceased left the house at 7 pm without having food. As per her own testimony, at one instance, police took her to the place of occurrence, on the other when she reached the place of occurrence, police was present there. However, in both the circumstances, her presence at the spot and witnessing the incident becomes doubtful. The discrepancies in the statement of P.W. 2 and P.W. 3 is material enough to demolish the case of prosecution.

22. We, now advert to other contention like motive as has been canvassed by learned counsel for the appellant, so far as motive is concerned, since, this being a case based on eye-witness count of the informant, P.W. 2 and P.W. 3 allegedly stated to be present at the spot, it relegates into insignificance. No such motive has been alleged by the prosecution which may be a reason for the alleged crime. It is well settled that where the direct evidence is worthy of credence and can be believed, then the question of motive does not carry much weight. The present case rests on direct evidence and on the testimony of alleged eye-witnesses, as such, motive does not have much role to play.

We may make a reference in the case of Shivraj Bapuray Jadhav and others Vs. State of Karnataka (2003) 6 SCC 392, Criminal Appeal No.805 of 2002 wherein it has been observed:

"In a case of direct evidence, the motive element does not play such an important role as to cast any doubt on the credibility of the prosecution witness even if there be any doubts raised in this regard."

23. It has further been placed that the witnesses of fact P.W. 1, P.W. 2 and P.W. 3 are of the same family, as such, they fall under the category of related witnesses, thus, their evidence cannot be trustworthy. It is well settled law that evidence of witnesses to the occurrence cannot be thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinized with great care and caution to safeguard against the normal temptation to falsely implicate others. The direct testimony of witnesses, whose evidence is otherwise consistent should not ordinarily be rejected on the ground that they are partisan witnesses, unless the surrounding circumstances discredit their version. Ordinarily, close relatives of the deceased would not allow the real culprits to escape.

We may make a reference in the case of Anvaruddin and others Vs. Shakoor and others, (1990) 3 SCC 266, Criminal Appeal Nos.119, 120, 121 and 122 of 1979 wherein it has been observed:

"Testimony of family members of deceased cannot be rejected merely because they are interested or partisan witnesses - However, their evidence is to be scrutinised with great care and caution - Possibility of implicating innocent persons to be kept in mind."

24. Thus, after a close scrutiny of the evidence and weighing the testimony of witnesses, we find force in the contention of learned counsel for the appellant that the presence of P.W. 2 and P.W. 3, alleged eye-witnesses on the spot, is doubtful. As discussed earlier, the discrepancies of the testimony of P.W. 2 and P.W. 3 regarding reaching the place of occurrence, the time deceased left the house with or without food and third fire shot by accused-Sona Singh before them, makes their presence at the place of occurrence highly improbable and it appears to have been set up just to workout the case against the accused. P.W. 1, informant, has himself denied his presence at the time of commission of crime and has not supported the prosecution version. Similarly, P.W. 6, the scribe of first information report has denied the entire case set up by prosecution. In the circumstances, the testimony of P.W. 2 and P.W. 3 cannot be relied upon to the extent of holding the accused guilty for the said crime.

25. Having regard to the aforesaid discussions, it is evident that their exist no reliable, cogent and credible evidence against the appellant, the finding recorded by the trial court in this regard suffers from legal infirmity.

26. We, thus, are of the opinion that the view taken by the trial court while convicting the appellant appears to be erroneous and cannot stand the scrutiny of law. The judgment and order passed by the trial court is based on a complete misreading of the case and misconception of the legal position relevant to the matter and has not considered the evidence on record in the right perspective. The prosecution has not been able to prove the case beyond doubt. In our considered opinion, the reasons given by the trial court are not sufficient to convict the appellant.

27. For all the reasons stated above, the appellants are entitled to the benefit of doubt and accordingly entitled to acquittal.

28. In the result, the appeal is allowed. The judgment and sentence of conviction under Section 302 I.P.C. read with Section 34 I.P.C. passed by Additional Sessions Judge, Court No.1, Ballia is hereby set aside. Accused-appellant, Kunnoo, is acquitted on benefit of doubt from the charge and sentence of conviction under Section 302 I.P.C. read with Section 34 I.P.C.

29. The appellant-accused is in jail. He be set at liberty forthwith.

30. Registrar General is directed to send copy of this judgment to District Judge, Ballia for its immediate compliance forthwith.

	(Rekha Dikshit, J.)                (Ramesh Sinha, J.) 
 
	Order Date :- 11.08.2017
 
	Nitin Verma