Rakesh Singh @ Kallu vs State Of U.P.
2017 Latest Caselaw 1697 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 2836 of 2013
 

 
Appellant :- Rakesh Singh @ Kallu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Smt. Usha Srivastava,Lal Chandra Mishra,M.P. Yadav,Satya Narain Dubey,Satyendra Kumar Srivastav
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Prabhat Chandra Tripathi,J.

(Delivered by Hon'ble Prabhat Chandra Tripathi,J.)

1. We have heard Sri Satya Narain Dubey, learned counsel for the sole appellant-Rakesh Singh alias Kallu and Ms. Usha Kiran, learned A.G.A. for the State-respondent.

2. This criminal appeal has been preferred by the sole appellant-Rakesh Singh alias Kallu against the judgement and order of the then learned Additional Sessions Judge, Court Number I, Banda dated 01.05.2013 in Sessions Trial No.22 of 2011, arising out of Case Crime No.190 of 2010, under Sections 302, 307, 427 I.P.C. and Section 30 Arms Act, Police Station Pailani, District Banda convicting the appellant-Rakesh Singh alias Kallu under Sections 302, 307, 427 I.P.C. and Section 30 Arms Act. Under Section 302 I.P.C. sentencing him to undergo for life imprisonment and also imposed fine of Rs.5000/-, under Section 307 I.P.C. sentencing him to undergo imprisonment for ten years and also imposed fine of Rs.3000/- and under Section 427 I.P.C. sentencing him to undergo imprisonment for one year and under Section 30 Arms Act sentencing him to undergo imprisonment for three months. In case of default of payment of fine, six months imprisonment was awarded. All the sentences would run concurrently.

3. The written F.I.R. in Hindi Vernacular is enumerated as below:-

"The applicant-Jagdish Singh son of late Ayodhya Singh, resident of village Khaptiha Kalan, Police Station Pailani, District Banda moved a written First Information Report dated 12.12.2010 before the Station Officer, Police Station Pailani, District Banda on 12.12.2010 at 15:15 hours that his son Sandeep alias Puniya aged about 35 years was driving the vehicle of Sriram Babu Dwivedi son of Chunuvad Brahmin of the same village on rent since last one month. Govind aged about 14 years, who was grandson of the applicant had accompanied Sandeep in the vehicle since last three days. That day, on date 12.12.2010, his son Sandeep was near Alona trisection of village Khaptiha Kalan with his vehicle. At that time, Rakesh Singh alias Kallu son of Bhola Thakur wielding 0.315 bore Rifle in his hand asked Sandeep to drop him at Bhulsi, which son of the applicant refused. At this the aforementioned Rakesh Singh alias Kallu started abusing, when he was prevented to do so Rakesh Singh alias Kallu son of Bhola Thakur with intention to kill Sandeep fired at him which hit in his head. Hearing the sound of the fire, the persons present in the Bazar gathered at the place of occurrence then at that time, Rakesh Singh alias Kallu attempted to flee from the scene. When people chased to catch him then with intention to kill, he fired two shots at public also;, but Raju Singh son of Ram Vishal Singh and Gorey Singh son of late Ayodhya Singh and Pradeep Singh elder son of the applicant and grandson of the applicant Govind and others caught hold of Rakesh Singh alias Kallu along with Rifle at the spot. This fact was narrated to the applicant by his son Pradeep and grandson Govind. This incident was of quarter past two in the day. His son died inside the vehicle on the spot. Vehicle bearing Registration No.U.P.78T-6773 was soaked in blood in a damaged condition on the spot and corpse of his son Sandeep was lying in a bend condition near the front seat. The applicant alongwith the help of all the aforementioned persons has taken Rakesh Singh alias Kallu alongwith 0.315 bore Rifle to the Police Station and prayed to lodge the report and action might be taken."

4. Upon written information of the informant, First Information Report was lodged in Case Crime No. 190 of 2010, under Sections 302, 427, 307 I.P.C. and Section 30 Arms Act at Police Station Pailani, District Banda against the named accused person Rakesh Singh alias Kallu son of Bhola Thakur, resident of Bhulsi, Police Station Sisolar, District Hamirpur.

5. The prosecution has produced the following documentary evidence:-

"(i) Written F.I.R. (Exhibit Ka-1), (ii) Post Mortem Report of Sandeep alias Puniya (Exhibit Ka-2), (iii) Site Plan (Exhibit Ka-3), (iv) Charge-sheet (Exhibit Ka-4), (v) Inquest Report of Sandeep alias Puniya (Exhibit Ka-5), (vi) Report R.I. (Exhibit Ka-6), (vii) Sample Seal (Exhibit Ka-7), (viii) Challan Nash (Exhibit Ka-8), (ix) Photo Nash (Exhibit Ka-9), (x) Report C.M.O. (Exhibit Ka-10), (xi) Fard Memo of bloodstained glass pieces and simple Rexine of the seat of the vehicle (Exhibit Ka-11), (xii) Fard Memo of taking of possession of Rexine of seat of vehicle bearing Registration No.U.P.78T-6773 (Exhibit Ka-12), (xiii) Chik F.I.R. (Exhibit Ka-13), (xiv) Copy of General Diary No.22 date 12.12.2010 time 15:15 hours, Police Station Pailani, District Banda (Exhibit Ka-14), (xv) Fard Memo of recovery and possession of weapon of offence 0.315 bore licenced factory made Rifle and 0.315 bore three factory made empty cartridges (Exhibit Ka-15)."

6. The prosecution has produced following oral evidence:-

"P.W.-1 Jagdish Singh, P.W.-2 Pradeep Singh, P.W.-3 Govind, P.W.-4 Dr. Shiv Prakash, P.W.-5 Jai Hind Rawat, D.C.R.B., District Banda and P.W.-6 Sub-Inspector Ramanand Tiwari."

7. The learned counsel for the accused person-appellant Rakesh Singh alias Kallu has advanced his arguments on the following points:-

"(a) The F.I.R. is ante-timed.

(b) Presence of the witnesses at the scene of occurrence is doubtful.

(c) The prosecution has not produced any independent witness.

(d) The informant was known to the present accused-appellant.

(e) The investigation is partisan, erroneous, baseless and site plan is a total mismatch."

8. Lastly, as an alternative argument, learned counsel for the accused person-appellant has also advanced his arguments on the following point:-

"The offence (if any) committed by the accused person-appellant is covered under the right of private defence of the body extending to cause death under Section 100 of the Indian Penal Code (hereinafter referred to as I.P.C.)"

9. Learned counsel for the accused person-appellant has also cited following Rulings of the Supreme Court:-

"(i) Criminal Appeal No.416 of 2016 (Arising out of SLP (Crl.) No.2301 of 2016) (Bhagwan Sahai and Anr. Versus State of Rajasthan). (ii) Criminal Appeal No.1555 of 2009 (Sadananda Mondal Versus State of West Bengal)."

10. P.W.-1 informant Jagdish Singh on 28.04.2011 in his examination-in-chief has deposed that incident took place on date 12.12.2010 at about quarter past two in the day when his son Sandeep alias Puniya, who was driving the vehicle of Sriram Babu Brahmin since last one month on rent was standing at Alona trisection to carry the passengers from Khaptiha to Sandee. At that time, Rakesh Singh alias Kallu wielding his licenced Rifle came and asked to drop him at his village Bhulsi. Sandeep refused to go. Then accused started abusing him. When Sandeep prevented the accused to do so, then the aforementioned Rakesh Singh alias Kallu son of Bhola Thakur with intention to kill Sandeep fired from his Rifle at his son Sandeep. On hearing the noise of the fire, Raju son of Ram Vishal, Gorey Singh alias Jagatram son of Ayodhya Singh and elder son of this witness Pradeep Singh and grandson of this witness Govind Singh reached at the place of occurrence and tried to apprehend the accused person. At this accused fired two shots but those fire shots did not hit anybody. These persons caught hold of accused Rakesh Singh alias Kallu and snatched the Rifle. At the time of incident, this witness was at his home. His grandson Govind informed him about the incident. He immediately rushed to the place of occurrence and saw (there) that his son Sandeep has died and his dead body was lying on the front seat of the vehicle. The dead body of his son and vehicle were stained with blood. He had scribed the written First Information Report in his own handwriting about the incident as told by his grandson Govind and presented it in the Police Station Pailani and has also apprehended/taken the accused person alongwith Rifle.

11. Despite lengthy cross-examination, nothing has been elicited to discredit and discard his testimony, which has remained unshattered and consistent. The testimony of this witness is relevant for the fact of prompt lodging of the First Information Report as revealed by the Chik First Information Report (Exhibit Ka-13) the date of incident has been mentioned as 12.12.2010 and time has been mentioned as 14:15 hours in the day;, whereas date and time of report are mentioned as 12.12.2010 and 15:15 hours, whereas distance of Police Station Pailani from the place of incident has been mentioned as Alona trisection village Khaptiha Kalan, distance 15 Kilometers South. The First Information Report has been lodged promptly. This will give vigour to the prosecution version.

12. P.W. 2 Pradeep Singh is son of the informant P.W.1 Jagdish Singh and real brother of the deceased Sandeep alias Puniya. He is cited as a witness, who apprehended the accused person Rakesh Singh alias Kallu along with weapon of offence Rifle with the help of other persons. Certain flimsy and baseless questions were put to this witness in his cross-examination e.g. registration number of the vehicle and whether vehicle was a passenger vehicle or a goods carrier vehicle in which the corpse of the deceased Sandeep alias Puniya was lying. P.W. 2 Pradeep Singh in his examination-in-chief has deposed that incident was of the date 12.12.2010, time approximately at quarter past two in the day. Deceased Sandeep alias Puniya was his real brother and he was driving the vehicle of Ram Babu Dwivedi of the same village. He was waiting for the passengers sitting inside the vehicle at Khaptiha trisection of the village. This witness was at some distance. Some altercation took place between Rakesh Singh alias Kallu and Sandeep alias Puniya. This witness was present in the Bazar, which was nearby the place of incident. After sometime, he heard the noise of the fire and hearing the noise, he rushed towards the vehicle. When he reached, he saw that Rakesh Singh alias Kallu was fleeing after hitting from bullet. Rakesh Singh alias Kallu was wielding 0.315 bore licenced Rifle in his hand. Thereafter, he saw that his brother was lying aside on the seat of the driver inside the Jeep and bullet had hit in his head. Thereafter, Raju Singh, Gorey Singh of the same village and his father Jagdish Singh also arrived and his son Govind, who was working as a conductor in the vehicle was already present at the scene of the occurrence. His son Govind indicated that that was Rakesh, who was fleeing after hitting Sandeep alias Puniya with bullet. When they ran to catch hold of Rakesh, then Rakesh with intention to kill them fired two shots from the Rifle. They surrounded the accused Rakesh and apprehended him and had taken him along with Rifle to the Police Station. His father lodged F.I.R. at the Police Station. When they had taken the accused person along with the weapon of murder Rifle and three empty cartridges of 0.315 bore to the Police Station;, Sub-Inspector scribed the Fard Memo inside the Police Station before them and this witness along with Raju Singh and Gorey Singh and his father Jagdish Singh appended their signatures and this witness confirmed his signature on Paper No.10Ka/1 Fard Memo. This witness has also deposed that Sub-Inspector has filled-up the inquest report before him and he has appended his signature upon that, which he has confirmed. This witness has also said that Sub-Inspector has enquired from him.

13. P.W.2 Pradeep Singh has deposed in his cross-examination that distance between Bazar and the place of occurrence was about 200 meters. When he heard the noise of the fire at that time he was in the market and was purchasing the vegetables. At that time when he reached he saw that his brother was lying aside the driving seat. When he opened the window of the vehicle he saw that the body of his brother was blown to pieces. He did not touch the corpse. After his reaching Raju Singh, Gorey Singh and many others reached after 5-6 minutes. His father reached 10 minutes thereafter. In his cross-examination this witness further deposed that his father said that Rakesh might have not gone far-away;, catch him. He alongwith Raju caught the accused Rakesh. Before Rakesh was caught he fired from a distance of 5-6 Lathi.

14. This witness in his cross-examination further deposed that he snatched the Rifle of the accused Rakesh where he caught him. No live cartridges were found from him. Public picked up and handed over three empty cartridges. He did not pick them. When Daroga Ji reached at the spot he handed over those cartridges. Raju carried the Rifle and handed it over to Daroga Ji at the place of incident. The constables of out-post reached at the spot after one hour then they have apprehended Rakesh. On arrival, Police arrested Rakesh and had taken him to Police Station. The corpse of Sandeep was taken to Out-post by the Police. Bade Daroga Ji reached at the Out-post and sealed the corpse (of Sandeep) in the Out-post. Police Out-post is situated in Khaptiha Kalan. Daroga Ji had scribed at Out-post and made this witness also to append his signature. Narration of entire incident by this witness P.W.2 Pradeep Singh is so graphic that it looks natural. It also shows that how confidently he was able to narrate the role of accused in commission of the offence. It is not possible to give description of an incident in such a vivid and picturesque manner unless he had actually seen such incident and why P.W.2 Pradeep Singh will depose against the appellant and falsely implicate him when there is no evidence to prove their previous animosity. Lastly, nothing could be brought-out to shake his testimony in cross-examination.

15. P.W.3 Govind is an eye-witness. He has deposed in his examination-in-chief that deceased Sandeep alias Puniya was his uncle and was driving four wheeler passenger vehicle of Ram Babu Pandit of the same village. The incident occurred from 7-8 months ago from the day of recording of his examination-in-chief. His uncle was waiting with the vehicle for the passengers at Khaptiha trisection. He was also standing near the vehicle. It was two-half past two in the day that Rakesh Singh alias Kallu arrived. Rakesh was native of Bhulsi and asked to take him to Bhulsi. His uncle denied to this request on the plea of no passenger of Bhulsi was present. At this Rakesh uttered that he may be carried otherwise he will shoot his uncle. Altercation took place between them. At this Rakesh wielding Rifle stood in front of the vehicle and said that if he would not be carried he would shoot. On denial, Rakesh fired at his uncle from the front which hit upon head of his uncle. He made noise and informed his father. Then his father came, thereafter Rakesh started fleeing. It was market day. His Dada Gorey Singh, father Jagdish and Raju of his village had arrived. People from the market had also reached. His uncle being hit by the bullet died instantaneously. When bullet hit his uncle he was sitting on the driving seat. Rakesh fled. Then everybody ran to catch him. Everybody ran and caught Rakesh Singh and carried him to Police Station. This witness was near the dead body and did not go to the Police Station. Police came near the dead body but did not ask anything from him. They were looking at the corpse. Daroga Ji has recorded his statement.

16. In the case on hand, this prosecution witness has clinchingly demonstrated how the accused person arrived at a particular spot with deadly weapon like 0.315 bore Rifle and had fired at the deceased.

17. The suggestion which was made to this witness near the end of the cross-examination at the later part of it proved insidious to the accused person-appellant. Insofaras the suggestion made to this witness that his uncle Sandeep moved the vehicle somewhat towards the Rakesh then Rakesh fired bullet at him;, was totally denied by this witness. At the time of argument learned counsel for the appellant emphasized that accused person-appellant fired at the deceased in his self-defence otherwise deceased would have mowed-down the appellant with the vehicle and would have killed the appellant violently by crushing him beneath the vehicle. Although, such type of plea of self-defence was never taken by the accused person during the trial and no such statement was recorded under Section 313 Cr.P.C. of the accused person. This novice plea of self-defence may be examined in the light of evidence available on record.

18. P.W.3 Govind has deposed in his cross-examination that Rakesh had fired at his uncle Sandeep standing from the distance of one Lathi. Wind screen of the vehicle was broken by the impact of the bullet. When he opened the window and saw his uncle then his uncle was dead and lying below the seat. At that time, his uncle was lying face-down. P.W.3 Govind is an eye-witness who has given a crystal-clear description of the incident. On going through the same, there is no reason to disbelieve his version. It is also settled law that the motive looses of its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a strong motive for the accused person to commit a particular crime he cannot be convicted if the evidence of eye-witnesses is not convincing. In the same way, even if, there may not be an apparent motive but if the evidence of eye-witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. As pointed out, even the accused person has stated that he has been falsely implicated due to previous enmity, in such circumstances, it cannot be said that the accused person had no motive to commit the crime in question. In fact, the prosecution witnesses have specifically adverted to this without any contradiction and all of them denied the suggestion that the alleged incident was due to aggressive behaviour of the deceased to mow-down the accused person and the accused person-appellant had nothing to do with it.

19. P.W. 4 Dr. Shiv Prakash, who conducted the Post-mortem upon the dead body of Sandeep alias Puniya, noted the following Ante-mortem injuries:-

"Fire arm wound 3 x 3 cm over the forehead at the level of eyebrow (Lt.) margin inverted very little blackening present over margin. A communicating exit wound 5 x 5 cm present over occipital region situated to Rt. 8 cm Post to Rt. ear;, margin are everted".

20. Duration of the said injuries, at the time of Post-mortem had, been about one day old. This witness has opined the cause of death was coma due to fire arm injuries. Nothing could be demonstrated to discredit and discard the testimony of this witness.

21. P.W.5 Sub-Inspector Jai Hind Rawat was the initial Investigating Officer who had prepared the site plan Exhibit Ka-3 and charge-sheet Exhibit Ka-4. P.W. 5 Sub-Inspector Jai Hind Rawat deposed in his cross-examination that he had examined the body of the accused person Rakesh Singh and had noticed blood stained injuries on his head and right hand palm. He was complaining of pain throughout his body. His injury of the head was very serious so he was sent to C.H.C., Jaspura for medical examination by preparing Majrubee Chithi with the constable 363 Harswarup, P.C. Arvind Pratap Singh, H.G. Binda Prasad. Learned counsel for the appellant could not enumerate any reason for the injuries upon the body of the accused person. However, such type of injury present on the body of the accused person at the time of his arrest clearly proves that at the time of arrest the accused person had received such type of injuries. Non-explanation of the injuries on the body of the accused person proves fatal to the defence. P.W. 5 Sub-Inspector Jai Hind Rawat, Investigating Officer has deposed in his cross-examination that he has sent the Rifle and the cartridges to Ballistic Expert.

22. P.W.6 Ramanand Tiwari has prepared the inquest report under his hand-writing which bear his and also the signatures of other witnesses marked Exhibit Ka-5 and all the papers relating to Inquest Report viz. Report R.I., Sample Seal, Challan Nash, Photo Nash, Report C.M.O. under his hand-writing which were marked Exhibit Ka-6 to Exhibit Ka-10. He has prepared the Memo of Fard of blood taken from the front seat, bloodstained glass pieces and simple Rexine of the seat from the loader vehicle U.P. 78 T 6773 from the place of incident on date 13.12.2010 under his hand-writing in the presence of witnesses Manoj Kumar Singh and Ram Naresh which bear his signature as well as signatures of the witnesses which was marked as Exhibit Ka-11. On date 15.09.2011 again a piece of Rexine ad-measuring 13x13 sq. cm was taken from the seat of the vehicle U.P. 78 T 6773 in the presence of Ram Kripal Singh and owner of the vehicle Ram Babu Dwivedi and Fard Memo was prepared under his hand-writing marked as Exhibit Ka-12.

23. Chik First Information Report Exhibit Ka-13 and copy of General Diary No.22, time 15:15 hours, date 12.12.2010 Exhibit Ka-14 and Fard Memo of recovery/taking possession of weapon of offence (murder) 0.315 bore licenced factory made Rifle and three empty cartridges 0.315 bore and copy of licence was also proved and marked as Exhibit Ka-15. This witness is a witness of formal nature. Nothing has been shown to discredit his testimony. Report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 16.12.2011 has stated that the sample of the seat was 'Rexine'. Report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 16.09.2011 has stated that upon the glass pieces along with cotton swab and pieces of underwear, human blood was found. The report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 27.07.2011 has given the result of the experiment that disputed cartridges were fired from the same 0.315 bore Rifle No. A B 09 10722. The report of Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow-226006 dated 07.02.2011 has mentioned that glass pieces were stained with blood and upon the pieces of Rexine of seat of the vehicle;, vest, T-shirt, underwear, Pant and Wrist Amulet. Blood was found on their larger part.

24. The following Ruling is relevant on the point of ''Right of Private Defence'':-

"Ram Saiya and others v. Emperor, A.I.R. (35) 1948 Allahabad 205".

25. Following Rulings are important on the point of ''Related and Independent Witness'':-

"(i) Tarjinder Singh v. State of Haryana, AIR 1994 Supreme Court 503 (ii) Namdeo v. State of Maharashtra (2007) 14 Supreme Court Cases 150 (iii) Bathula Nagamalleswar Rao & Ors. v. State, Rep. by Public Prosecutor, AIR 2008 Supreme Court 3227 (iv) Ram Chander and Ors. v. State of Haryana, AIR 2017 Supreme Court 568".

26. It is clear that oral evidence of a close relative who is a natural witness cannot be characterized as an "Interested Witness".

27. Learned counsel for the appellant urged that this is a case of self-defence.

28. We do not find merit in this submission for more than one reason. First, no such argument was advanced before the court below. Second, the incident had taken place during mid-day in broad daylight where public witnesses were also present. Minor discrepancies, even if noticed, would not affect the prosecution case, if there is a sufficient independent witness to sustain the conviction. In this case the evidence adduced was found sufficient to sustain the conviction and we find no good ground to take a different view from the one taken by the court below and also with the findings and views by giving our reasons mentioned supra. Onus probandi has been fairly discharged by the prosecution.

29. The dramatic and strange plea of self-defence is baseless, cooked-up and false story.

30. The appellant had committed the offence of murder of Sandeep alias Puniya, aged about 35 years by shooting him on the head from 0.315 bore Rifle in the market place during broad daylight at about 2:15 P.M. and tried to escape from the scene but he was chased by the public and thereafter, he fired few shots to keep the persons at bay who were trying to catch him. He was caught on the spot with the weapon of assault 0.315 bore Rifle. The accused person had also received some injuries during his arrest by public. The prosecution witnesses fully support the prosecution case and the same is corroborated by the medical evidence.

31. No other points have been raised before us by the learned counsel for the appellant.

32. In view of the foregoing discussions, the appeal is found to be devoid of any merit. The appeal thus fail and is accordingly dismissed on merits.

ORDER

(i) This criminal appeal is dismissed on merits.

(ii) The accused appellant Rakesh Singh alias Kallu is already in judicial custody in this case.

(iii) Let the entire original record of this case be sent back within ten days to the Court of the learned Sessions Judge, Civil and Sessions Court, District Banda for necessary compliance.

Order Date :- 14.6.2017

S.Sharma