Alok vs State Of U.P.
2017 Latest Caselaw 2628 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 
Case :- CRIMINAL APPEAL No. - 3147 of 2003
 

 
Appellant :- Alok
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- G.P. Dikshit,Amit Misra,Anil Srivastava,D.R.Sharma,Dharmendra Singhal,V.R. Sharma
 
Counsel for Respondent :- A.G.A.,S.K.Pandey
 

 
AND
 

 
Case :- CRIMINAL APPEAL No. - 3135 of 2003
 

 
Appellant :- Kalloo @ Pradeep Garg
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Amit Misra,Akhilesh Srivastava,Viresh Misra
 
Counsel for Respondent :- A.G.A.
 

 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(DELIVERED BY HON'BLE BHARAT BHUSHAN,J)

1. Both these appeals stem from the same impugned judgment and order dated 30.06.2003 passed by the then Additional Sessions Judge (Fast Track Court No. 1), Aligarh in Session Trial No. 661 of 2000 (State v. Alok & others) arising out of Crime No. 206990301 of 1999, under sections 302 of the Indian Penal Code 1860 (in short "IPC"), 302 read with section 34 IPC, 307 read with 34 IPC, 5 of the Explosive Substance Act 1908 (in short "Explosive Substance Act") and 25 of the Arms Act 1959 (in short "Arms Act"), Police Station (in short "P.S.") Barla, District Aligarh, therefore, both appeals were heard together and are being decided by common judgment.

2. In the impugned judgments following punishments were awarded to the appellants:

Name of the accused appellant

Section under which accused is convicted

Punishment

1. Alok

(a) 302 IPC

Life imprisonment and Rs. 5,000/- with default stipulation

(b) 307/34 IPC

10 years Rigorous Imprisonment (in short "RI") and a fine of Rs. 2,000/- with default stipulation

2. Kallu alias Pradeep Garg

(a) 302/34 IPC

Life imprisonment and a fine of Rs. 1,000/- with default stipulation

(b) 307/34 IPC

10 years RI and fine of Rs. 1,000/- with default stipulation

(c ) 304 IPC

7 years RI and fine of Rs. 1000/- with default stipulation

3. Appellant Alok and Kallu alias Pradeep Garg were also prosecuted under section 25 Arms Act and section 5 of the Explosive Act but they were acquitted in the aforesaid offences by the same impugned judgement. All sentences were ordered to run concurrently.

4. This is a case of very serious and grave incident wherein Ram Singh Rajput, Station House Office of Police (in short "SHO"), P.S. Barla himself along with one Ram Nath Master, an innocent bystander were allegedly assassinated by the appellants. Prosecution story, in brief, is that town (Qasba) Barla was holding a Ram Leela in the night of 30.10.1999. SHO, P.S. Barla, Ram Singh Rajput went to this Ram Leela to maintain normal law and order during staging of this Ram Leela along with few Constables. He was sitting on a chair, just opposite the shop of one Dr. Bhoop Singh. His companion constables were busy on the other side managing the crowd.

5. The informant Preetam Singh, the then A.S.I., Barla (P.W.-1) had been dispatched on the same evening for checking and combing assignment near Kali river with his companions namely; Constable Ram Naresh, Constable Sanjeev Kumar and driver Constable Ram Prakash etc. As they were leaving for Kali river for normal combing operation, the deceased SHO orally asked them to assist him in peaceful management of Ram Leela after performing combing operation at Kali river.

6. Following the aforesaid direction, Preetam Singh and his companion Constables arrived at Ram Leela ground sometime around 12.00 midnight of 30.10.1999/31.10.1999. A large number of people had gathered for viewing Ram Leela. Similarly several illuminating rods, bulbs and other decorative implements were providing immense illumination. Informant Preetam Singh and his companion Constables started going towards the SHO, who was sitting opposite the shop of Dr. Bhoop Singh and as they neared him, appellants accused Alok and Kallu alias Pradeep Garg surfaced close to deceased Ram Singh Rajput (SHO). Appellant Alok whipped out a firearm weapon from his shawl (yksbZ) and shot him at his temple. Resultantly, the SHO died instantly.

7. The stunned police personnel immediately tried to rush towards appellant Alok but meanwhile second accused Kallu alias Pradeep Garg hurled two bombs like explosive substance. One bomb exploded on the head of one Ram Nath Master tearing it into pieces. Ram Nath Master, an innocent spectator also died instantaneously. The incident occurred around 12.00 in the intervening night of 30.10.1999 and 31.10.1999. The explosion of bomb also injured some other persons namely, Pooran, Lakshman and Chandra Prakash etc. One Gaurav Kumar (P.W.-7) also got injured in the resultant stampede. This dare devil incident created dread and terror. The spectators ran helter and skelter towards all exits. Informant, Preetam Singh communicated this information through wireless installed in the jeep to P.S. Barla and senior police officers. Police personnel were left on the spot to take care of corpses and the place of occurrence. The informant himself reduced the incident into writing and lodged formal First Information Report (in short "FIR"), Exhibit Ka-1 at 1.15 A.M., on 31.10.1999 i.e., within 75 minutes of the incident at P.S. Barla, which was located just one furlong away from the place of occurrence.

8. A chik report (Exhibit Ka-16) was carved out. Relevant entries were made into General Diary (in short "G.D.") of the P.S, extract of which is available on record as Exhibit Ka-7). Injured were sent for medical examination vide Chitthi Majroobi (Exhibit-18 to Exhibit Ka-21). Corpses of both the deceased Ram Singh Rajput (inquest report Exhibit Ka-6) and Ram Nath Master (inquest report Exhibit Ka-13) were sent for post-mortem. Post-mortem report of deceased Ram Singh Rajput (Exhibit Ka-50) discloses following injuries, which were found on his person:

Ante Mortem Injury:

(i) A fire arm wound of entry on the Rt Temporal region of skull just front of upper part of Rt ear size 2.5 cm x 2.5 cm margins are inverted and lacerated, tattoing and blackening present around the wound. Track is directed inward; downward causing laceration of brain tissue, fracture of back of skull.

(ii) A swelling at the angle of left mandible size 5 cm x 4 cm on dissection left mandible is fractured and at this site a metallic piece and too ticklish are recovered. This injury correspond with injury no. 1.

9. Similarly, Doctor found following injuries on the person of deceased Ram Nath Master (post-mortem report Exhibit Ka-51):

Antemortem injury:

A lacerated wound of size 25 cm x 20 cm on the Rt side of skull involving Rt temporal region, Rt parietal region and Rt occipetial region upper part of Rt ear is lacerated, brain matter is coming out there is blackening around the wound underlying bones are fractured.

10. P.W. 8, Dev Raj Singh commenced investigation, recorded statements of informant Preetam Singh and prepared site plan (Exhibit Ka-29). Inquest proceedings were conducted by him, however, inquest reports were prepared by Sub Inspector (in short "S.I.) Preetam Singh, P.W.-1 at the instance of the Investigating Officer (in short "I.O.") Dev Raj Singh (P.W.-8).

11. Samples of blood stained earth and simple soil were also lifted from both the spots (Fard Exhibit Ka-30 and Exhibit Ka-31). The residue of bombs was also lifted from the spot (Fard Exhibit Ka-32). The chair on which deceased Ram Singh Rajput, SHO was assassinated was also taken into possession vide Fard Exhibit Ka-33.

12. It appears that the stampede created in the wake of the gruesome murder, made people flee from the spot. Some of them left without their shoes or slippers. They were also taken into possession (Fard Exhibit Ka-40). After completing the investigation, I.O. submitted charge sheet (Exhibit Ka-42) against accused Alok and Kallu alias Pradeep Garg). It appears that one bomb, which was also recovered on 03.03.2000 at the instance of accused Kallu alias Pradeep Garg (Fard Exhibit Ka-14). This matter (chik report Exhibit Ka-22) was separately investigated. Site plan of this place is available on record as Exhibit Ka-44. This case under section 5 Explosive Act was separately investigated and a separate charge sheet under section 5 Explosive Substance Act (Exhibit Ka 35) was separately submitted against appellant Kallu alias Pradeep Garg.

13. Similarly, on 18.05.2000 at about 7.30 A.M., a country made pistol of 12 bore was recovered at the instance of appellant Alok. A separate case (Exhibit Ka-24) under section 25 Arms Act was registered against accused Alok, which was also investigated and charge sheet (Exhibit Ka-37) under section 25 Arms Act, arising out of Crime No. 52 of 2000, was submitted against appellant Alok. District Magistrate accorded sanction against appellant Kallu alias Pradeep Garg for prosecution under the Explosive Substance Act, which is available on record as Exhibit Ka-38. Similarly, the then District Magistrate also accorded sanction to prosecute Alok under section 25 of the Arms Act, which is available on record as Exhibit Ka-39.

14. Medical reports of Gaurav Kumar, Param Lal, Chandra Prakash and Lakshman Singh are available on record as Exhibit Ka- 25, Ka-26, Ka-27 and Ka-28 respectively.

15. The then trial judge framed charges against appellants on 13.09.2000. Appellant Kallu alias Pradeep Garg was charged under sections 302, 302 read with 34 and 307 IPC. Appellant accused Alok was charged under sections 302, 302 read with 34 and 307 read with 34 IPC. Appellant Kallu alias Pradeep Garg was separately charged under section 5 of the Explosive Substance Act on the same day while Alok was also charged under section 25 Arms Act. Accused persons denied all allegations and claimed trial.

16. Prosecution produced as many as 10 witnesses in support of their case namely, P.W.-1 Preetam Singh (informant/eye witness), P.W.-2 Munne Khan (witness of recovery of bomb at the instance of appellant Kallu alias Pradeep Garg), P.W.-3 Constable Rajendra Prasad (recorded FIR), P.W.-4 Constable Ram Naresh (eye witness), P.W.-5 Constable Amar Singh (recorded FIR under section 25 of the Arms Act against appellant Alok), P.W.-6 Dr Brij Kishore (conducted medical examination of injured Gaurav Kumar and others), P.W.-7 Gaurav Kumar (hostile eye witness), P.W.-8 S.I. Dev Raj Singh (conducted investigation), P.W.-9 S.I. Hoshiyar Singh (conducted investigation against Kallu alias Pradeep Garg under section-5 Explosive Act and against Alok under section 25 Arms Act) and P.W.-10 Dr. Yatendra Bhardwaj (conducted autopsy).

17. Thereafter statements of both the appellants were recorded under section 313 of the Code of Criminal Procedure 1973 (in short "Cr.P.C.") wherein all allegations were denied by appellants. They claimed false implication on account of previous enmity with P.S. Barla.

18. Appellants were given opportunity to adduce evidence in defence. They produced one witness D.W.-1 Dinesh Chandra, uncle of both the appellants.

19. The then trial judge concluded that appellants were guilty of offence under sections 302 and 302 read with 34 IPC. However, in the opinion of the trial judge charge under section 307 IPC could not be proved. As far as murder of deceased Ram Nath Master was concerned, the trial judge held that the appellant Kallu alias Pradeep Garg was guilty of offence under section 304 IPC and not under section 302 IPC.

20. However, appellant Alok under section 25 Arms Act and appellant Kallu alias Pradeep Garg under section 5 Explosive Substance Act were acquitted.

21. Strangely, the trial judge held that charge under section 307 IPC was not established by prosecution evidence yet he convicted both the appellants under section 307 read with 34 IPC. It appears that either operative portion was wrongly carved out or earlier conclusion regarding section 307 IPC was mistakenly made. Secondly, appellant Alok was convicted under section 302 IPC but appellant Kallu alias Pradeep Garg was convicted under sections 302 read with 34 IPC for murder of Ram Singh Rajput. He was also convicted and sentenced under section 304 IPC for the murder of Ram Nath Master. However, appellant Alok was neither convicted under section 304 IPC nor punished even with the aid of section 34 IPC.

22. All appellants were punished as detailed in earlier part of the judgement, this judgment is under challenge before this Court in these two appeals.

23. Heard Sri Viresh Mishra, Senior Advocate assisted by Sri Amit Mishra, Advocate for appellant Kallu alias Pradeep Garg, Sri Dharmendra Singhal, learned counsel for appellant Alok and Sri Ajeet Kumar Singh, learned AGA for the State.

24. Learned counsel for appellants have argued that no independent witness of vicinity was produced by prosecution despite the presence of hundreds or perhaps thousands of persons on the spot. Police personnel accompanying deceased Ram Singh Rajput, too have not been produced during evidence. Their submission is that both witnesses of fact namely, P.W.-1 Preetam Singh and P.W.-4 Ram Naresh were admittedly deputed near Kali river for law and order duties and their presence on the spot is deliberately manufactured and created in order to lend weight to the prosecution story. They have also drawn attention of this Court to the fact that name of Ram Naresh has not been mentioned in the FIR. They have also argued that accused persons were not arrested on the spot and there is no evidence on record to demonstrate who divulged the name of appellants to the informant. They have also challenged the veracity of inquest reports and stated documentation done in the wake of the incident. Submission is that the FIR was manipulated and ante-timed; Chitthi Majroobi lacks crime number; no injured of occurrence was produced as a witness; the injured person Gaurav Singh (P.W.-7), who admittedly sustained injuries in stampede, has not supported the prosecution case and has been declared hostile at the instance of prosecution itself.

25. Per Contra, learned AGA has disputed all the arguments of counsel for appellants. He has submitted that FIR was lodged within 75 minutes of the incident. The information was also communicated on wireless immediately, the detail of which is available on record which counters the argument of ante-timing of FIR. Submission is that there is no law which requires recording of crime number on the Majroobi Chitthi. The inquest reports do contain crime number not only on the top of inquest reports but also within the contents of inquest reports obviating any possibility of manipulation or ante-timing of FIR. He has also argued that wireless message communicated in the wake of incident, does contain the name of assailant Pradeep Garg. Failure to record the name of the appellant Kallu alias Pradeep Garg, in his opinion, is not fatal. He has argued that wireless messages are by very nature brief, therefore, the police personnel wrote accused Alok and others. He submits that the name of sole accused was not written itself shows that the police personnel did not intend to include the name of only one appellant namely Alok. He has also argued that FIR lodged within 75 minutes of the incident, specifically contains the name of co-accused Kallu alias Pradeep Garg. Learned AGA has also refuted the claim of appellants that failure to conduct identification parade, despite request of accused is not fatal to the prosecution case for the simple reason that named FIR had been recorded against both the appellants. Both were known persons of that area. In fact, various criminal proceedings were also initiated by the police personnel of P.S. Barla indicates that the late request for test identification during the trial was merely a ploy to derail the prosecution.

26. We have carefully examined all materials on record, including oral testimony as well as documentary evidence. First of all, counsel for the appellants have disputed the presence of eye witnesses present on the spot. They have claimed that P.W. -1 Preetam Singh was admittedly dispatched along with P.W.-4 Constable Ram Naresh by P.S. Barla to Kali river to manage the normal combing and convoy operations. The argument is that admittedly, this duty used to finish by 4.00-5.00 A.M. Counsel for the appellants have drawn the attention of the Court towards the statement of P.W. -4 Constable Ram Naresh wherein it was mentioned that on earlier occasions duty of police force at Kali river used to complete by 4.00 -5.00 A.M. Counsel for appellants have argued that only two witnesses of fact namely, P.W.-1 Preetam Singh and P.W. 4 Constable Ram Naresh have been produced by prosecution. Admittedly, they were dispatched from the Police Station Barla to Kali river for combing operations. Normally, they should have been present at Kali river till 4.00-5.00 A.M., but prosecution has shown the presence of these witnesses on Ram Leela ground at 12.00 midnight of 30.10.1999. Counsel have also wondered about absence of any independent witness of the locality despite the stated presence of huge number of spectators.

27. We have carefully examined this argument of counsel for the appellants. We believe that this argument is misconceived for the simple reason that both the witnesses have themselves stated that they were indeed dispatched by P.S. Barla towards Kali river and in fact, they did went to Kali river in compliance of the order. P.W.-1 Preetam Singh has specifically asserted that when they were going to Kali river, in compliance of their dispatch order, the deceased SHO Ram Singh Rajput orally asked them to come to Ram Leela ground for extending help in management of that huge affair. P.W.-1 Preetam Singh has stated that almost 5000 people were present at the time of the Ram Leela in qasba Barla. Others have also bandied various number of spectators. Obviously, each witness was merely giving his own guesstimate about the number of spectators. Nobody had counted the exact number of spectators. It is, in fact, natural for citizens especially of small town to gather in large number for watching Ram Leela. Staging of Ram Leela in small towns of Uttar Pradesh is a very very special and important occasion. Therefore, there is nothing surprising about the presence of large number of people in the Ram Leela.

28. On the other hand, the presence of this large number of such gatherings require effective police management entailing presence of substantial number of police personnel. All types of people gather in such events. Intentions of all are not hunky-dory but record reveals that SHO went to manage this huge gathering with little force. Record further reveals that SHO was accompanied by only two constables. Obviously, SHO did not have sufficient number. Convoy management and show of force at Kali river was equally important, therefore, for SHO to ask his subordinates to reach the Ram Leela ground after establishing their presence at Kali river- was not at all surprising or strange. To claim that this oral direction was not recorded in the G.D., of the P.S., therefore, this Court should not believe it, is way off the mark. Not everything can be reduced on papers. SHO was not aware when the duty of P.W.-1 Preetam Singh and company will finish at Kali river. There might have been some incident at Kali river as well, then it would have been virtually impossible for P.W.-1 Preetam Singh and his companion to leave Kali river, therefore, the SHO simply asked his subordinates to go to Kali river, assess the situation, establish their presence and then come back to Ram Leela ground, if possible. Such uncertain things cannot be recorded in G.D. The G.D. is not meant for this purpose.

29. Once the police personnel leave the P.S., in accordance with the directions recorded in G.D., their future activities cannot be guided or controlled by such instructions for the simple reason that events outside the P.S., are not governed or controlled or occur in a specific manner.

30. When P.W.-1 Preetam Singh left P.S. Barla, he did so due to instructions given to him at P.S. Those instructions were enshrined in the G.D. Was it possible for Preetam Singh to follow those instructions and reach Kali river, if some other incident had occurred on his way to Kali river? As soon as Preetam Singh left Police Station., his future activities were actually governed by prevailing circumstances. If some incident had occurred on his way to Kali river then Preetam Singh and his companion police personnel would have been involved in that incident. Nobody would have expected Preetam Singh to come back to P.S. Barla and change the entries in G.D. and then go back again to this imaginative situation. We do believe that the entries in G.D., would not necessarily create doubt about the presence of P.W.-1 Preetam Singh and P.W.-4 Ram Naresh on the spot. Whether they were present on the spot or not, will have to be decided by analyzing their testimony and the documents, prepared in the wake of incident.

31. Coming back to the evidence of P.W.-1 Preetam Singh, he has specifically asserted that when he came to Ram Leela about 12.00 midnight he saw that deceased SHO Ram Singh Rajput was sitting outside the shop of Dr. Bhoop Singh. The evidence discloses that there was sufficient light at the time of the incident. Large number of ordinary bulbs, rods and decorative bulbs were flashing lights. There was naturally no paucity of light at that point of time. If the testimony and evidence of P.W.-4 Constable Ram Naresh is examined in the light of the site plan, Exhibit Ka-29, then it would reveal that stage was set towards south side. Most of the people were sitting towards north side. SHO was sitting towards north-east, outside the shop of Dr. Bhoop Singh. He was sitting on a chair, which was later on taken into possession by the I.O. Newly arrived police personnel, including Preetam Singh started moving towards SHO from south, as they neared the place of occurrence, appellants Alok and Kallu alias Pradeep Garg surfaced near SHO Ram Singh Rajput. Alok whisked out a country made pistol from his shawl, put it on the temple of the deceased and opened fire. As shocked police personnel again moved towards the assailant, but co-accused Kallu alias Pradeep Garg also threw two bombs. One bomb fell on the head of Ram Nath Master, second deceased. His head was blown away into pieces. Second bomb did not explode. Both, SHO Ram Singh Rajput and Ram Nath Master died instantly on the spot. The story given by P.W.-1 Preetam Singh and P.W.-4 Constable Ram Naresh is absolutely totally consistent not only with site plan, Exhibit Ka-29 but also with the medical evidence. Their testimony is natural, in accordance with normal human conduct, credible and trustworthy. But for their presence on the spot, they would not have been able to depict the entire incident in such a great detail.

32. We have absolutely no doubt about the veracity of these two witnesses. It is pertinent to point out that formal report of this incident was made by Preetam Singh himself and that too within 75 minutes of the incident. It is true that P.S., was merely one furlong away but considering the nature of the incident, some delay could have occurred. Hundreds and thousands of people were present; stampede occurred; people started running away helter-skelter and a sense of dread naturally prevailed. Murder in the public place and in the presence of large number of people is not an everyday affair. To murder a sitting local Thana In-charge in his own jurisdiction, in the presence of thousands of people in peaceful area of a small town is almost rare even in these troubling times. Therefore, it is not difficult to visualize the situation on the spot. One police personnel had been killed in presence of half a dozen other police personnel. Use of bomb and murder of the SHO, would have naturally frightened them too, whether they admit it or not.

33. In that situation they had to save themselves first and simultaneously had to sanitize the place of occurrence to avoid stampede. They were also required to initiate standard operating protocol. We believe that considering the circumstances, the recording of the FIR within 75 minutes of the incident belie the argument of their absence from the place of occurrence. There is additional evidence to demonstrate their presence on the spot. Both, P.W.-1 Preetam Singh and P.W.-4 Constable Ram Naresh have testified that they had wireless-set in their jeep and they communicated information of this ghastly incident to authorities in police department, obviously, after gathering their wits. This wireless message was indeed received at P.S. Barla and in other places. This fact has been admitted by P.W.-3 Constable Rajendra Prasad in his testimony. This information was recorded in the G.D., of the P.S., at about 12.10 A.M., in the intervening night of 30.10.1999/ 31.10.1999. The fact that this G.D., contains the averment that Alok and his companion had killed SHO Ram Singh Rajput and Ram Nath Master, is sufficient to establish the presence of P.W.-1 Preetam Singh on the spot.

34. The absence of name of Kallu alias Pradeep Garg does not mean anything. In a desperate kind of atmosphere prevailing on the spot specific name of Alok was mentioned. The name of Kallu alias Pradeep Garg was not mentioned but it was mentioned that appellant Alok was not alone. This message at 12.10 A.M., was followed by FIR at 1.15 A.M. in the same night and this FIR, recorded within 75 minutes of incident, not only contains the name of both the assailants but include quite a detailed narration of the entire episode.

35. We have carefully perused all materials on record. Entries made in G.D., contents of FIR, testimony of eye witnesses cumulatively establish and prove the presence of witnesses on the spot. Not only this, the wireless message of 12.10 A.M. in the night obviates any possibility of ante-timing of FIR. Half a dozen police personnel were present; they had seen the assailants; sufficient light was available, and there was no reason for them to wait for lodging the FIR, especially for the murder of their own brother officer.

36. Learned counsel for the appellants has also argued that the FIR does not contain the name of P.W.-4 Ram Naresh and yet Ram Naresh has been produced as witness while on the other hand the police personnel accompanying deceased SHO Ram Singh Rajput have not been produced in evidence. Learned counsel has submitted that evidence of P.W.-4 Ram Naresh is, therefore, doubtful.

37. We are not convinced of this argument as well. It is a misconception with regard to the FIR as a document which should contain the entire case for the prosecution, including the names of all the witnesses. We believe that main purpose of FIR is to give information of cognizable offence to the police and set them in motion. We believe that testimony of witnesseses are evaluated on the basis of quality in their evidence. If witnesses are found reliable and trustworthy, their evidence cannot be discarded on the ground that their names were absent in the FIR, especially if FIR has been lodged promptly and without unnecessary delay.

38. Coming back to the facts of the present incident, it is apparent that a crime of great magnitude was committed. It naturally created a frightening and terrifying atmosphere on the spot affecting even the police personnel because their own brother officer was brutally murdered in their presence. In this scenario to leave out the name of P.W. 4 Constable Ram Naresh from FIR is hardly surprising but his high quality testimony is trustworthy and cannot be discarded on the ground that some other person had not included his name as a witness.

39. There is another reason for discarding this argument. The record reveals that P.W.-1 Preetam Singh and his companions were initially dispatched to Kali river and their names were mentioned in the G.D. The police personnel went to Kali river on official jeep, driven by one driver Constable Ram Prakash. All these persons went to Ram Leela ground at about 12.00 midnight. There was no reason for Preetam Singh to leave out Constable Ram Naresh, who had been issued official arms and ammunition. It is evident that the whole team went to Kali river and then diverted towards Ram Leela ground. His detailed and trustworthy evidence also establishes this fact.

40. It is pertinent to point out that the same Constable actually remained at place of occurrence while Preetam Singh went to lodge FIR to the P.S. This witness was also sent from the place of occurrence directly to Aligarh mortuary and from Aligarh this witness directly went to parental home of deceased SHO. He has testified that he had returned his rifle and Kartoos to the P.S., through P.W.-1 Preetam Singh after inquest proceedings. The issuance of rifle and cartridges to this witness and entry of his departure from the P.S., in the company of P.W.-1 Preetam Singh in G.D., obviates any possibility of his absence from the place of occurrence at the time of the incident.

41. We are convinced that both P.W.-1 Preetam Singh and P.W.-4 Ram Naresh were present at the time of the incident. We also believe that FIR was indeed lodged at 1.15 A.M. on 31.10.1999 by P.W.-1 Preetam Singh at P.S. Barla and that a wireless message was sent at 12.10 A.M. on the same morning, giving information of assassinations of both SHO Ram Singh Rajput and deceased Ram Nath Master, prior to formal lodging of the FIR. Therefore, we are convinced that there is no evidence on record to demonstrate that FIR was ante-timed or manipulated in any other manner. Learned counsel for the appellants have argued that two constables namely, Dinesh Babu and Pradeep Kumar, who had accompanied deceased SHO Ram Singh Rajput have not been produced in evidence and that in their opinion creates doubt about the genesis of the prosecution story.

42. We are not convinced of this argument as well. Evidently, hundreds and thousands of people were present at the time of the incident and some of them must have seen the incident. As stated earlier, a stampede broke out on the spot. People were running away here and there. All wanted hasty exit from the scene of this gruesome murder. Some people might have seen the assailants and yet all of them were running away. In this atmosphere, it was difficult to notice the presence of other persons. The record reveals that both Constables Pradeep Kumar and Dinesh Babut were managing the crowd at different corner or area, therefore, it is very much possible that they might have not seen the presence of assailants. On the other hand this newly arrived police party from Kali river was actually moving towards SHO Ram Singh Rajput. Their attention was naturally drawn towards the presence of SHO Ram Singh Rajput and suddenly incident occurred at the same time. Therefore, to produce them as witnesses is much more reasonable. In any case, if there are large number of witnesses in a particular episode then prosecution is not required to produce them all. Prosecution can choose its own witness and if the evidence of chosen witnesses is credible and trustworthy then it cannot be discarded merely on the ground that some other witnesses have not been produced.

43. Learned counsel for the appellants have also drawn attention of the Court towards the testimony of P.W.-7 Gaurav Kumar, who has turned hostile. P.W.-7 Gaurav Kumar is son of second deceased Ram Nath Master. He has testified that he was sitting behind the chair of deceased Ram Singh Rajput. Ram Leela was going on and suddenly accused appellant Alok took out a pistol from his shawl (yksbZ ) and shot the SHO. Meanwhile one other person hurled the bomb, in explosion of which, his father died. This witness could not disclose the identity of second person i.e., the person who hurled bomb and at this stage he was declared hostile at the instance of prosecution.

44. If we carefully peruse the statement of this Gaurav Kumar, it is evident that he has no doubt about the presence and role of the appellant Alok Kumar. He could not recognize second assailant namely Kallu alias Pradeep Garg. He has testified that his house is located near the house of appellant Alok Kumar. He has admitted that he communicated the name of Kallu alias Pradeep Garg to the I.O., but has explained that he did so because he heard the name of Kallu alias Pradeep Garg from various people on the spot. He has also stated that he knew both Kallu alias Pradeep Garg and Alok from prior to the incident. As far as role of accused Alok in the incident is concerned, that has been reiterated even by this hostile witness.

45. It is settled law that entire evidence of a hostile witness is not effaced from the record. There is no need to reject chief-examination part merely because a witness turned hostile. Subsequently, part of evidence of witness can be accepted. If found truthful and provable, the same evidence can be accepted against some accused and part of the same can be rejected in respect of some other accused. What is to be seen is whether the Court can rely upon such evidence or not. There is no doubt in our minds that evidence of hostile witness, also can be relied upon to the extent it supports the prosecution version. Evidence of such witness cannot be treated as washed off and there is no legal bar to base conviction of accused upon testimony of such witness, if corroborated by other reliable evidence.

46. Coming back to the facts of the present case, it is evident that Gaurav Kumar (P.W.-7) was present on the spot. He has also testified that appellant Alok had, in fact, murdered SHO Ram Singh Rajput with firearm weapon. His evidence has not only established the incident but has also established the time, place, manner of the incident and the role of appellant Alok in commission of the aforesaid crime but this witness did not mention name of second appellant Kallu alias Pradeep Garg at the particular time of the incident. In fact, he has even admitted that he did name Kallu alias Pradeep Kumar, as one of the assailants but he has testified that he gave this name of Kallu alias Pradeep Garg on the information furnished by other people present on the spot and that he personally did not see Kallu alias Pradeep Garg. It is very much possible that this witness might have not seen Kallu alias Pradeep Garg, especially in the wake of explosion of bomb. It is also possible that this witness subsequently developed fear. It is pertinent to point out that this witness was a student of class X at the time of the incident and that he left P.S. Barla immediately to Bareilly and since then he has been living at district Bareilly. Admittedly, he has lost all connection with town Barla. He has also admitted that he no longer visits qasba Barla. This indicates some sort of revulsion or existence of fright or both with town Barla.

47. We believe that evidence of P.W.-7 Gaurav Kumar to that extent can be accepted, so far as it discloses the role of appellant Alok but merely because he could not name second appellant Kallu alias Pradeep Garg, the prosecution case cannot be discarded. Even the hostile testimony of Gaurav Kumar has established all basic contours of prosecution story.

Learned counsel for the appellants have also argued that no independent witness has been produced by prosecution despite the claim of presence of hundreds of witnesses. They have further argued that the absence of independent witnesses do create doubt about the prosecution story.

48. We do not believe that merely because some person of vicinity have not been produced, the testimony of other witnesses can be discarded. We believe that every witness is normally considered independent unless he or she stems from tainted source. Ordinarily, it requires mustering of courage in a case of such gruesome incident for a simple man to come forward and disclose the truth disregarding the consequences to himself. It is necessary to keep the nature of the case into mind. A senior most police officer of local P.S., was brutally murdered in the presence of hundreds of persons along with another person. P.W.-7 Gaurav Kumar has himself, admittedly, permanently left the town in the aftermath of this incident. We have no doubt that the murder of his father and the then SHO, Barla has something to do with his decision to leave the town permanently. In this scenario the testimony of these witnesses has to be evaluated. We are convinced that the evidence of police personnel cannot discarded merely because they are employed by police department. These witnesses are not local persons. They are only interested in conviction of miscreants and that by itself cannot be a reason for discarding the evidence of police personnel. We also believe that the question of bias or interestedness of witnesses has to be demonstrated like any other allegation. Merely leveling wild and bald allegation of bias would not suffice.

49. Learned counsel for the appellants have also argued that some interpolation has been made in the inquest report. Time of initiation of inquest proceedings etc., have been written in a different ink. They have also argued that section 307 IPC have been written in a very haphazard manner and therefore, it indicates that documentation was done subsequently but shown to have been done earlier. They have also argued that inquest proceedings were done in the next morning despite the availability of light etc., and that creates doubt about authenticity of inquest proceedings.

50. We believe that this argument is misconceived. It is possible that the timings of incident may have been written in a different ink but over all there is no doubt about the incident and manner of the incidence. Manner of disclosing sections in a particular design is a subjective affair. Different officials record it differently and that by itself does not create any doubt. P.W.-1 Preetam Singh has clearly stated that the inquest report of deceased SHO was initiated in the morning at 7.00 A.M., and there is nothing suspicious about the timings considering the magnitude of the offence. At 1.15 A.M., the FIR was written. Obviously this incident must have been reported to the senior police officers/officials right upto the State level. The use of bomb had, in fact, blown some portion of body of Ram Nath Master into pieces. The death of top officer of P.S., Barla must have left subordinates in daze. Considering all facts and circumstances, we do not believe that merely because inquest proceedings were initiated in the morning at 7.00 A.M, it would create any doubt about the prosecution case.

51. Learned counsel for the appellants have also argued that there was no motive for the appellants to commit this crime. We think that the question of motive is one of perception. Appellant Alok himself has admitted the existence of animus with deceased SHO in his answer to question no. 13 during his statement under section 313 Cr.P.C. The testimony of D.W.-1 Dinesh Chandra also actually admits the existence of animosity. The record further reveals that there was some dispute between SHO Ram Singh Rajput and the family of accused persons. Several applications were dispatched to various higher officials including Hon'ble Rajyapal etc., against deceased SHO Ram Singh Rajput. Details may not be forthcoming but there is no doubt that rival parties had antagonistic relationship.

52. We have carefully examined all materials on record. We believe that there is sufficient evidence on record to establish the guilt of the appellants. Absence of crime number in Majroobi chitthi is not detrimental to the prosecution case. Some mistakes might have cropped up during the subsequent proceedings but considering the magnitude of the offence, the ordinary police personnel might have committed some mistake during subsequent proceedings but we do believe that core of prosecution story has been established by trustworthy evidence. We also believe that prosecution has been able to bring home the stated guilt of the appellants by trustworthy evidence.

53. It is true that the basic and core of prosecution story has been established by trustworthy evidence but it appears that the learned trial judge subsequently committed some mistakes. A charge under section 307 IPC was framed against the appellants. The trial judge concluded that no evidence under section 307 IPC is made out. The relevant portion of his conclusion is reproduced herein below:

^^ - - - - - vr% i=koyh ij miyC/k lEiw.kZ lk{; ds voyksdu ls eSa bl fu"d"kZ ij igqWaprk gwWa fd vfHk;kstu i{k vfHk;qDrx.k] ds fo:) /kkjk [email protected]@34 Hkk0na0la0 dk vkjksi fl) djus esa lQy jgk gSA tgkWa rd /kkjk 307 Hkk0na0 la0 dk iz'u gSA og bl dkj.k ls izekf.kr ugha gksrk] D;ksafd vfHk;qDr dYyw }kjk pyk;k x;k ce tSlk fd lk{khx.k jkeujs'k o izhre flag dk dFku gS fd mu ij tku ls ekjus dh uh;r ls Qsadk x;kA ,slk lEHko ugha gS] D;ksafd mu yksxksa ds u rks dksbZ pksV vkbZ gSA - - - - - -**

Yet he passed sentence under section 307 IPC read with section 34 IPC as well. He could have avoided this mistake. Accused persons were also acquitted under sections 25 Arms Act and 5 Explosive Act. No State appeal has been filed against their acquittal, therefore, we do not consider it necessary to enter into this question.

54. Considering all facts and circumstances, the aforesaid two appeals are partly allowed. The conviction and sentence of appellant Alok under section 302 IPC, whereby he was sentenced to life imprisonment and a fine of Rs. 5,000/- with default stipulation, is hereby affirmed. Similarly, the conviction of appellant Kallu alias Pradeep Garg under sections 302 read with 34 IPC, whereby he was convicted for life imprisonment and a fine of Rs. 1,000/- with default stipulation is, hereby affirmed. The conviction and sentence of appellant Kallu alias Pradeep Garg under section 304 IPC whereby he was sentenced to seven years imprisonment and a fine of Rs. 1000/- with default stipulation, is also affirmed.

55. Acquittal of appellant Alok and Kallu alias Pradeep Garg under sections 25 Arms Act and 5 Explosive Substance Act respectively is also affirmed. However, appeal of both appellants i.e., Alok and Kallu alias Pradeep Garg as far as conviction of under section 307 read with section 34 IPC is concerned is allowed.

56. The aforesaid both appellants are in jail and they will continue to remain in jail to serve out their remaining sentence.

57. Office is directed to certify this judgment to the concerned court through the Sessions Judge, Aligarh within ten days. The concerned court will report compliance of the judgment within one month thereafter.

Order date: 24.07.2017

shailesh