Raoraja vs State Of U.P.
2017 Latest Caselaw 4231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 40
 
Case :- CRIMINAL APPEAL No. - 5315 of 2009
 
Appellant :- Raoraja
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Amit Daga,Akash Misra,Ashok Misra,Dileep Kumar,Noor Mohammad,Pradeep Kumar Rai,Prashant Kumar,Shivam Yadav,Vijay S.Mishra
 
Counsel for Respondent :- Govt. Advocate,Murlidhar Misra
 
with
 
Case :- CRIMINAL APPEAL No. - 5888 of 2009
 
Appellant :- Man Singh Gujar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vikas Tiwari,Dileep Kumar
 
Counsel for Respondent :- Govt. Advocate,M.D.Mishra
 
with
 
Case :- CRIMINAL APPEAL No. - 5332 of 2009
 
Appellant :- Bharat Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.N. Singh,Dileep Kumar
 
Counsel for Respondent :- Govt. Advocate,Murlidhar Misra
 
with
 
Case :- CRIMINAL APPEAL No. - 5889 of 2009
 
Appellant :- Sardar Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vikas Tiwari
 
Counsel for Respondent :- Govt. Advocate,M.D.Mishra
 
with
 
Case :- CRIMINAL APPEAL No. - 5222 of 2009
 
Appellant :- Bhola Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Amit Daga,Dileep Kumar,Manish Tiwari
 
Counsel for Respondent :- Govt. Advocate,Murlidhar Misra
 
with
 
Case :- GOVERNMENT APPEAL No. - 8007 of 2009
 
Appellant :- State Of U.P.
 
Respondent :- Raoraja And Others
 
Counsel for Appellant :- G.A.,Akash Mishra,Murlidhar Mishra
 
Counsel for Respondent :- Dillep Kumar
 
with
 
Case :- GOVERNMENT APPEAL No. - 8277 of 2009
 
Appellant :- State Of U.P.
 
Respondent :- Rinku Genda @ Manish And Another
 
Counsel for Appellant :- G.A.,Akash Mishra,Murlidhar Mishra
 
Counsel for Respondent :- Jitendra Kumar Singh,Vikas Tiwary
 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

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

Heard Sri Dileep Kumar, learned counsel for the appellants and Sri Murlidhar Misra, learned counsel for the complainant, Sri A.N. Mulla assisted by Sri Saghir Ahmad, Sri J.K. Upadhyay, Kumari Meena and Ms. Manju Thathur, learned AGAs for the State.

These seven criminal appeals have been preferred by the appellants Bhola Singh, Raoraja, Bharat Singh, Maan Singh Gujar and Sardar Singh against the judgment and order dated 20.08.2009 passed by Additional Sessions Judge, Court No.1, Jhansi in S.T. No. 41 of 2007, under Sections 148, 302/149, 307/149 IPC and 7 Criminal Law Amendment Act, State Vs. Raoraja and six others connected with S.T. No. 79 of 2007, State Vs. Man Singh Gujar, under Section 25 Arms Act, S.T. No. 80 of 2007, State Vs. Sardar Singh, under Section 25 Arms Act, S.T. No. 81 of 2007, under Section 25 Arms Act, State Vs. Bharat Singh, S.T. No. 82 of 2007, under Section 25 Arms Act, State Vs. Bhola Singh and S.T.No. 118 of 2007 under Section 25 Arms Act, State Vs. Raoraja by which the accused appellants Raoraja, Sardar Singh, Bharat Singh, Man Singh Gujar and Bhola Singh were convicted and sentenced to one year rigorous imprisonment each under Section 148 IPC, imprisonment for life together with fine of Rs. 1 lakh each and in default of payment of fine three years additional rigorous imprisonment each under Section 302/149 IPC, 10 years rigorous imprisonment and a fine of Rs. 1000/- each and in default of payment of fine six months additional rigorous imprisonment each under Section 307/149 IPC and six months rigorous imprisonment each under Section 25 Arms Act. All the sentences awarded to the accused appellants were directed to run concurrently.

Government Appeal Nos. 8277 of 2009 has been preferred by the State of U.P. against the part of judgment and order 20.08.2009 passed in S.T. No. 41 of 2007 by which accused Sachin and Manish have been acquitted in Criminal Appeal No. 5315 of 2009.

Government Appeal No. 8007 of 2009 has been filed by the State of U.P. for the enhancement of the sentence awarded to the accused/ respondent nos. 1 to 5 in the aforesaid appeal.

Govt. Appeal No. 8277 of 2009, Govt. Appeal No.8007 2009, Criminal Appeal No. 5222 of 2009, Criminal Appeal No. 5888 of 2007 were connected with Criminal Appeal No. 5315 of 2009 by order of this Court dated 13.12.2012.

Since all the aforesaid appeals are connected and arise out of the same incident and same judgment and order passed by the trial court on the basis of the same set of evidence, they are being heard and decided by us together by a common judgment.

Briefly stated the facts of this case are as narrated herein below:-

PW-1 Sanjai Verma gave a written report Ext.Ka-1 at P.S. Kotwali, Jhansi on 01.11.2006 at 20.05 hours alleging therein that while on 01.11.2006 at about 6.30 p.m., he and his brother Ajay Verma were present in their jwellery shop situated in the bullian market, Jhansi, the accused appellant Raoraja, Sardar Singh, Man Singh Gujar son of Jardan Singh Gujar and Bharat Singh son of Atar Singh, Bhola son of Bharat Singh Gujar residents of Lakara P.S. Sipiri Bazar, Jhansi and Sonu Geda and Rinku Geda both sons of Hari Saran Geda r/o Chaturiyana Bazar, Jhansi came to his brother's jwellery shop and with the common object and accused appellants Raoraja and Bhola Singh exhorted their companions to kill the informant and his brother and to ensure that they did not succeed in escaping on which all the accused appellants with the intention of causing death of the informant and his brother started firing at them from their firearms causing bullet injuries in the chest of informant's brother Ajai Verma. The informant saved his life by throwing himself behind a wall in the shop but the bullets fired by the accused hit his brother Ajai Verma. On being challenged by the other shop keepers of the bullian market and the hue and cry raised by them the accused made their escape good on motorcycles towards Gadidhar Tapra firing in the air with their firearms. As a result of the firing panic gripped the whole market and people started running helter-skelter. Shop keepers pulled down the shutters of their shops. The informant took his injured brother to the District Hospital with the help of the other shop keepers where the doctors declared him dead but since the informant was not convinced with their opinion and hoping that his brother may still be alive he took him to the medical college where also the doctors after examining his brother declared him dead. The incident was witnessed by a large number of people who were present in the market at the time of the incident. It was further alleged in the written report that in the year 2004, accused Bharat Gujar had falsely implicated the informant and his deceased brother in the case of murder of his son Chandra Shekhar and in order to settle the matter Bharat Gujar and his accomplices were demanding Rs. 30 lakhs from the appellants through Sonu Geda and Rinku Geda and the murder of his brother by them was a fall out of informant's refusal to pay the aforesaid amount to Bharat Gujar and others.

On the basis of the written report Ext.Ka-1, case crime no. 1463 of 2006, under Sections 147, 148, 149, 307 and 302 IPC and 7 Crl. Law Amendment Act was registered against the accused appellants and Sonu Geda and Rinku Geda at P.S. Kotwali Jhansi, check FIR Ext.Ka-3 and the relevant G.D. entry Ext.Ka-5 were prepared by PW-3 Constable Jai Singh and PW-5 Constable Ashok Kumar Dwivedi respectively. The investigation of the case was entrusted to PW-10 Ashwini Kumar Sinha Inspector-in- Charge P.S. Kotwali Jhansi, who reached the place of occurrence along with S.S.I. K.K.Tiwari, S.I. Narendra Singh, S.I. V.K.Singh, S.I. Balvir Singh, Head Constable Kadore, Constable 432 Lallo Prasad, Constable 1120 Narendra Kumar, Constable Rajeev Kumar, Constable Braj Mohan, Constable TaraSingh and Constable Arvind Singh and recorded the statement of informant Sanjai Verma, who was present on the spot. Thereafter at his instance he inspected the place of incident and prepared the site plan Ext.Ka-7.

He then seized five empty cartridges from the place of incident in the presence of the witnesses and prepared recovery memo Ext.Ka-8.

He also collected plain and blood stained pieces of stones and after packing them in two different containers sealed the same and prepared the recovery memo of the aforesaid articles as Ext.Ka-19. Thereafter he along with the other members of his force including PW-9 K.K.Tiwari proceeded to the mortuary of the medical college with the instruction to PW-9 K.K.Tiwari to hold the inquest. PW-9 SSI K.K.Tiwari on reaching the medical college mortuary appointed Mukesh Verma, Neeraj Verma, Ajai Soni and Veeru as Panch witnesses and commenced the inquest at 22.15 hours and after completing the inquest he prepared the inquest report Ext.Ka-10 and others related documents, namely, letters addressed to CMO and RI, photo lash, challan lash and impression of specimen seal Ext.Ka-11 to Ext.Ka-15. Thereafter he handed over the dead body of Ajai Verma to Constable Narendra Kumar Tiwari and Lallo Prasad for taking it for post mortem.

The autopsy of the dead body of Ajai Verma conducted on 02.11.2006 by PW-3 Dr. Harish Chandra at about 2.30 a.m. on 02.11.2006, who also prepared his post mortem report, which is on record as Ext.Ka-8. According to the post mortem report of deceased Ajai Verma following ante mortem injuries were found on his dead body :-

1. Gun shot wound of entry size 1.5 cm x 1.5 cm, 19 cm below shoulder tip on back at 12 o'clock portion margins inverted direction to forward.

2. Gun shot wound of exit size 3 cm x 2 cm in front of chest obliquely 9 cm above right nipple at 1 o'clock portion margins.

3. Wound of entry size 1 cm x 1 cm, 1 cm above right nipple at 12 o'clock portion margins are inverted direction to forward and downward.

4. Gun shot wound of entry size 1/2 cm x 1/2 cm on right side chest, 4 cm oblique belong injury no.3 margins are inverted direction to forward to downward.

5. Gun shot wound of entry size 1/2 cm x 1/2 cm on right side of chest wall 1 cm below injury no.4 margins inverted.

6. Wound of entry sized 2 cm x 2 cm on right side of upper part of abdomen just below right coastal margins 13 cm obliquely away from umbilicus.

The cause of death was stated to be shock and haemorrhage as a result of of ante mortem firearm injuries and the time of death was estimated to be about 8 hours before conducting the post mortem.

The prosecution case further is that on 07.12.2006 at about 14.30 hours, 15.20 hours, 16.00 hours, 16.45 hours and 17.30 hours respectively one rifle and four country made pistols of 315 bore were recovered from their respective houses on the pointing out of the accused-appellants Man Singh, Sardar Singh, Raoraja, Bharat Singh and Bhola. It is further alleged that all the accused-appellants on whose pointing out one country made rifle and four country made pistols of 315 bore were recovered and confessed before the Investigating Officer of the case, in whose presence recoveries were made, that they had used the recovered firearms for committing the murder of Ajai Verma on 01.11.2006 at about 6.30 p.m. The recovery memo of the weapons recovered on the pointing out of the accused-appellants Man Singh, Raoraja, Bharat Singh, Sardar Singh and Bhola was prepared on the spot and the same is on the record as Ext.Ka-16. On the basis of the recovery memo Ext.Ka-16, case crime nos. 1538, 1539, 1540, 1541 and 1542 of 2006 under Section 25 of the Arms Act were registered against accused-appellant Man Singh, Sardar Singh, Rati Ram, Bharat Singh and Bhola at P.S. Kotwali District Jhansi on 07.12.2006 vide check FIR Ext.Ka-9. The weapons allegedly used in committing the crime, the four metal pieces recovered from the dead body of the deceased Ajai Verma during his post mortem and the four empty cartridges seized from the place of occurrence were sent to Vidhi Vigyan Prayogshala, Agra for forensic examination. The blood stained clothes of the deceased and the plain and blood stained earth collected from the place of occurrence were also sent for chemical examination. The report of the chemical examiner of the aforesaid articles has been brought on record as Ext.Ka-24.

The investigating officer of this case after completing the investigation filed charge-sheet against accused appellant Raoraja, Sardar Singh, Man Singh, Bharat Singh, Bhola Singh and accused Sonu Geda and Rinku Geda under Section 147, 148, 149, 307, 302 IPC and Section 7 Crl. Law Amendment Act before C.J.M., Jhansi while separate charge sheets under Section 25 Arms Act were filed against accused appellants Man Singh, Sardar Singh, Raoraja, Bharat Singh and Bhola Singh.

Since the offences mentioned in the charge sheets were triable exclusively by the court of Sessions, C.J.M., Jhansi committed the case for the trial of the accused to the court of Sessions Judge, Jhansi by two different committal orders dated 03.02.2007 and 01.02.2007 where the case under Section 147, 148, 149, 307 and 302 IPC was against all the accused was registered as S.T. No. 41 of 2007 while the cases under Section 25 Arms Act against the accused appellants were registered as S.T. No. 79, 80, 81, 82 and 118 of 2007.

From the court of Sessions Judge, Jhansi all the above noted Sessions Trials were transferred for trial to the court of Additional Sessions Judge, Court No.1, Jhansi, who on the basis of the material on record and after hearing the prosecution as well as the accused on the point of charge framed charge against the accused appellants Raoraja, Sardar Singh, Man Singh, Bharat Singh, Bhola Singh, Sonu Geda and Rinku Geda under Section 147, 148, 302/149, 307/ 149 IPC on 29.04.2008 while separate charge under Section 25 Arms Act was framed by him against the accused-applicants Man Singh, Sardar Singh, Raoraja, Bharat Singh,Bhola Singh, Rinku Geda and Sonu Geda.

The prosecution in order to prove its case examined PW-1, Sanjai Verma and PW-2 Ajai Soni as witnesses of fact while PW-3 Dr. Harish Chandra, PW-4 Constable Jai Singh, PW-5 Constable Ashok Kumar Dwivedi, PW-6 Constable Ram Magan Singh, PW-7 Dr. Rajesh Pachauria, PW-8 Head Constable Jagdish Verma, PW-9 S.I. Krishna Kumar Tiwari, PW-10 Ashwini Kumar Singh, I.O. Of the case and PW-11 S.I. Jagat Narain Dwivedi were produced as formal witnesses.

The prosecution also adduced documentary evidence details whereof have been given by the trial judge in the impugned judgment and to which we shall refer as and when the context so requires.

The accused-applicants in their statements recorded under Section 313 Cr.P.C. denied that they either extorted any money from the shop keepers of the bullian market Jhansi or they had implicated the deceased and his brother falsely in the case of the murder of Chandra Shekher son of accused-appellant Bharat Singh. They further denied that they had ever demanded any money from the informant or his brother for settling the matter. On the date of the incident, Rinku and Sonu had gone to the house of their aunt in Datai, where Rinku had fallen ill and admitted in hospital in Datia where Sonu was looking after him.

The defense examined DW-1 Dr. O. P. Maheshwari, DW-2 Dr. I.D. Agarwal, DW-3 Shyam Kishore Wireless Oifficer,DW-4 Dr. G.L.Verma and DW-5 B.N.Sahgal. The accused also adduced documentary evidence which shall be referred to and dealt with as and when the context so requires.

Learned Additional Sessions Judge, Jhansi after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the entire evidence on record convicted the accused-applicants Raoraja, Sardar Singh, Man Singh, Bharat Singh, Bhola Singh, Sonu Geda and Rinku Geda and awarded the aforesaid sentences to him while accused Rinku and Sonu were acquitted of all the charges.

Hence these appeals.

We have heard Sri Dilip Kumar, learned counsel for the appellants in nos. 5315, 5332, 5222, 5888 and 5889 of 2009 and learned AGA for the State, Sri Saghir Ahmad, learned AGA for the appellants in Govt. Appeal No. 8277 and 8007 of 2009 and Sri Dilip Kumar for the accused respondents in the aforesaid two appeals.

We will first deal with the five appeals, namely, criminal appeal nos. 5315 of 2009, 5332 of 2009, 5888 of 2009, 5889 of 2009 and 5222 of 2009 which have been preferred by the accused-appellants against the part of the impugned judgment and order by which they have been convicted and awarded life and other sentences.

Sri Dilip Kumar, learned counsel for the appellant has submitted that the deceased Ajai Verma who had a long criminal history was shot by some unknown persons on 01.11.2006 outside his shop when no-one was present in his jwellery shop and after the information of his murder was communicated to the police station Kotwali Jhansi on wireless and recorded in the G.D. entry, the police personnel of P.S. Kotwali Jhansi arrived at the place of incident and took the injured Ajai Verma to medical college where he was declared brought dead and upon coming to know about the attack on his brother and his being taken by the police to the medical college, informant PW-1 Sajnai Verma rushed to the medical college and in collusion with and on the advise of the police personnel of P.S. Kotwali, Jhansi he prepared written report of the incident Ext.Ka-1 narrating an absolutely false and concocted version of the occurrence falsely implicating the accused-appellants as the perpetrators of the murder of his brother. He next submitted in order to establish his presence at the time and place of the occurrence and to fabricate an explanation for the delay in lodging of the FIR, he built up a false story in the written report of the occurrence by falsely stating in the FIR that after his brother had been shot by the accused appellant, he had taken him to the District Hospital, Jhansi with the help of the other shop keepers of the market and from the District Hospital, where the doctor after examining his brother had declared him dead, he had taken him to medical college, but the prosecution has failed to prove by any cogent evidence that PW-1 Sajnai Verma had either taken his brother Ajai Verma from the place of occurrence either to the District Hospital or from there to Medical College or even the fact that he was present in the District Hospital when his brother was brought there.

Sri Dilip Kumar next submitted that keeping in view the dimensions of the shop and the prosecution's claim that the accused-appellants had come to the shop of the informant's brother with the common intention of killing both the brothers, if the PW-1 informant was actually present inside the shop with his brother as he claims then he could not have escaped unhurt considering the fact that as many as seven persons had fired at them with their firearms while they were sitting inside the jwellery shop of the deceased totally unprotected. He further submitted that the prosecution failed to prove by any cogent and reliable evidence that the occurrence had taken place either at the time mentioned in the FIR or in the manner as narrated in the FIR.

He further submitted that as per the prosecution case itself at the time when the informant's brother was shot at by the accused-appellants all the shops in the market were open and the place was crowded with customers. The failure of the prosecution to examine any shop keeper of the adjoining shop unequivocally indicates that had those persons been examined they would not have supported the prosecution case and this is the reason why only PW-1, the brother of the deceased and PW-2 Ajai Soni who was an employee of the informant and the deceased were produced by the prosecution for corroborating the prosecution case hence under the peculiar facts and circumstances of this case the recorded conviction of the appellant which is based on the evidence of persons who are either related to the deceased or under in fiduciary relation with the informant, in the absence of any corroboration of their evidence by any independent witness cannot be sustained and is liable to be set aside.

He also submitted that oral and the documentary evidence led by the accused-appellants before the trial court for proving their innocence as well as the falsity of the prosecution case has been illegally discarded by the trial court for extraneous considerations. More over there are irreconcilable contradictions, omissions, inconsistencies and material improvements in the testimony of the PW-1 informant Sanjai Verma which affect the core of the prosecution story rendering it wholly unreliable and untrustworthy. Evasive replies given by him in his cross examination on various material questions relating to the incident belie him presence at the place of the incident at the time of the occurrence.

He lastly submitted that such being the state of evidence neither recorded conviction of the appellants nor the sentence awarded to them can be maintained and are liable to be set aside.

Per contra Sri Saghir Ahmad larned AGA appearing for the State submitted that the prosecution had succeeded in proving by cogent and reliable evidence that the accused-appellants had committed the murder of Ajai Verma in his jwellery shop in bullian market Jhansi at about 6.30 p.m. on 01.11.2006. The evidence of PW-1 and PW-2 cannot be discarded merely on the ground of their being relatives and interested witnesses as upon going through their evidence it transpires that they had given cogent and correct version of the incident. Minor omissions, discrepancies and contradictions in their evidence which have been pointed out by the learned counsel for the appellant are of trivial nature which do not affect either their credibility or authenticity of the prosecution story. The medical evidence on record fully corroborates the ocular version. Merely because shop keepers of the adjoining shops were not produced as witnesses during the trial no adverse inference is liable to be drawn against the prosecution as the same stood fully proved from the evidence of PW-1 and PW-2. The prosecution fully succeeded in establishing the motive for the accused-appellants to commit the murder of the informant's brother as well as their complicity by leading cogent evidence. This appeal lacks merit and is liable to be dismissed.

We have very carefully considered the submissions advanced before us by the learned counsel for the appellants and perused the entire lower court record.

Record of this case shows that on the basis of the FIR lodged by PW-1 informant Sanjai Verma against the accused appellants Raoraja, Man Singh, Bharat Singh, Sardar Singh, Bhola Singh, Rinku Geda and Sonu Geda at P.S. Kotwali, District Jhansi on 01.11.2006 at about 20.05 hours alleging therein that his brother Ajai Verma had been shot dead by the accused appellants and the other co-accused in his jwellery shop in bullian market Jhansi on 01.11.2006 at about 6.30 p.m., case crime no. 1463 of 2006, under Sections 147, 148, 149, 307, 302 IPC and Section 7 Crl. Laws Amendment Act was registered at P.S. Kotwali. On the basis of the recovery of one country made rifle and four country made pistols of 315 bore each on 07.12.2006 on the pointing out of accused-appellants Man Singh, Raoraja, Sardar Singh, Bharat Singh and Bhola, case crime nos. 1538, 1539, 1540, 1541 and 1542 of 2006 under Section 25 of the Arms Act against them at P.S. Kotwali District Jhansi. Upon being charge sheeted under Sections 147, 148, 149, 307 and 302 IPC and Section 7 Crl. Laws Amendment Act and Section 25 of Arms Act accused-appellants along with Rinku Geda and Sonu Geda were committed for trial to the court of Sessions Judge, Jhansi and from the court of Sessions Judge, Jhansi their trial was transferred to the court of Additional Sessions Judge, Court No.1 Jhansi along with connected trials. Charge was framed against all the accused under Sections 148, 302 read with Section 149 and 307 read with Section 149 IPC while separate charge under Section 25 Arms Act was framed against the accused-appellants. We have already noted herein above that the prosecution in order to prove the charges framed against the accused had examined as many as 21 witnesses of whom PW-1 informant Sanjai Verma, PW-2 Ajai Soni were examined as eye witnesses of the occurrence while evidence of other witnesses is formal in nature. The accused had examined Dr. O.P.Mishra , Dr. I.D.Agarwa;l, Shyam Kishore, Dr. G.L.Verma and B.N. Sehgal as DW-1 to DW-5.

The only question which arises for our consideration in this appeal that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubt.

In order to examine the aforesaid question we proceed to analyze evidence of the two eye witnesses, informant Sanjai Verma and Ajai Soni who were examined by the prosecution as PW-1 and PW-2 as eye witnesses of the occurrence. For the purpose of satisfying ourselves whether their claim of being of being eye witnesses of the occurrence is unimpeachable and fully reliable or the discrepancies, inconsistencies, contradictions and improvements in their evidence which have been highlighted by the learned counsel for the appellant, totally belie their claim of having witnessed the incident and identified the perpetrators of the crime.

PW-1 Sanjai Verma informant in his examination in chief has stated that he and his younger brother Ajai Verma were present in their family jwellery shop in bullian market Jhansi on 01.11.2006 at about 6.30 p.m.. There was sufficient light at that time. Suddenly the accused appellants Raoraja, Sardar Singh, Man Singh, Bharat Singh and Bhola all residents of village Lakar, P.S. Sipiri Bazar and non appellants Rinku Geda and Sonu Geda r/o Chaturiyana P.S. Kotwali arrived at their shop on motorcycles. All the accused were armed with guns and pistols. The accused were previously known to the informant as they were engaged in the illegal activity of extorting money from the shop keepers of the bullian market. All the accused who were present in the court at the time of recording of his evidence were identified by him as the persons who had fired at him and his brother Ajai Verma. He further deposed that when firing started both PW-1 and his brother were sitting inside their shop. Before opening fire, accused-appellants Raoraja and Bhola had exhorted their companions to ensure that no one was able to escape. All of them with the common intention of causing death of PW-1 and his brother Ajai Verma started firing at them from the firearms which they were carrying in their hands. The shots fired by accused-appellants hit his younger brother Ajai Verma on his chest. As soon as the firing started PW-1 hid himself behind a wall in the shop and did not receive any injury on being challenged by the shop keepers of the nearby shops and on the noise made by the PW-1 the accused mounted on their respective motorcycles and drove towards gandi ka tapra hurling filthy abuses. As a result of the firing panic had gripped the market and the terrified shop keepers had pulled down the shutters of their shops. PW-1 further deposed that he took his injured brother to Civil Hospital Jhansi where the doctors after examining his brother declared him dead. However not convinced with their opinion and hoping against hope that his brother may be still alive he took him to the Medical College where also the doctors after examining him declared him dead. The incident had been witnessed by Bhagwat and Ajai Soni and several shop keepers of the area. PW-1 also deposed that the accused-appellants used to extort money from the shop keepers of the bullian market including the first informant and his brother and since he and his brother had refused to bow down to their illegal demands, accused Bharat Singh had falsely implicated the informant and his younger brother Ajai Verma in the murder of his son Chandra Shekhar which was committed in the year 2004 and for compromising the aforesaid matter, accused-appellant Bharat Singh was demanding Rs. 30 lakhs from them through accused non appellants Rinku Geda and Sonu Geda and since he and his brother had refused to pay any money to them, all the seven accused had committed the murder of his brother. He proved the written report of the occurrence which was brought on record as paper no.58 and marked as Ext.Ka-1.

From the perusal of the examination-in-chief of PW-1 Sanjai Verma it transpires that he has stated following facts in his evidence for the first time which were conspicuous by their absence not only in the FIR but also in his statement recorded under Section 161 Cr.P.C.:-

(i) That the accused was carrying a rifle with him;

(ii) That the accused had arrived at his shop on motorcycles;

(iii) That the accused-appellants used to extort money from the shop keepers of the bullian market including the informant and his brother Ajai Verma and since the deceased and his brother always refused to pay any money to the accused-appellants they had committed the murder of deceased;

(iv) That he had informed the Investigating Officer of the case that accused-appellant Bharat Singh had falsely implicated PW-1 informant Sanjai Verma in the murder of his son.

However, he in his examination-in-chief stated that he had communicated the aforesaid fact to the Investigating Officer during the investigation but in case the aforesaid fact was not recorded by him in his statement under Section 161 Cr.P.C., he had no explanation for the same.

PW-2 Ajai Soni deposed in his examination-in-chief that he was engaged in the profession of making ornaments for the last 8-9 years. The incident had taken place on 01.11.2006 at about 6.30 p.m. at that time he was working in the shop of Ajai Verma as his employee. Just before the occurrence he had gone to the hand pump near the temple of Lord Hanuman to quench his thirst.

While he was returning from the hand pump near the temple of Lord Hanuman after filling up the bottle with water and had reached near the shop of Ritu Jwellers, he saw the accused-appellant Raoraja, Sardar Singh, Man Singh, Bharat Singh, Bhola and non appellant Sonu Geda and Rinku Geda arriving on three motorcycles armed with guns and country made pistols and stopping in front of the shop of the deceased. He knew them in connection with Chandra Shekhar's murder case. On the exhortation of the accused-appellants Raoraja, and Bhola to kill every one and not to let anyone escape, the accused-appellants started firing with their firearms at the PW-1 informant Sanjai Verma and his brother Ajai Verma, who were sitting inside their shop. Sanjai Verma somehow managed to save himself by hiding behind a wall inside the shop but Ajai Verma received several gun shots wound in his chest as a result whereof he fell on the shop's. He further deposed that apart from himself Bhagwat Rajpoot and large number of other people present in the market had witnessed the occurrence. On account of the firing incident panic had gripped the whole area and there was stampede. Due to terror and out of fear the shops keepers closed their shops. The accused-appellants in the meantime escaped towards Gandi Ka Tapra. Thereafter Sanjai Verma with the help of the people present there took Ajai Verma to the Civil Hospital by taxi. PW-2 further deposed that he had followed the taxi on a motorcycle Ajai Verma was first taken to the Civil Hospital where the doctors had declared him dead. Thereafter the inquest report of deceased Ajai Verma was prepared in his presence.

From the perusal of the statements of PW-1 informant Sanjai Verma and Pw-2 Ajai Soni, it transpires that PW-1 Sanjai Verma has supported the prosecution case as spelt out in the FIR on all material points relating to the time, place and manner of the assault as well as the identity of the perpetrators of the crime and the weapons used by them. There are some improvements in his evidence to which we have referred to herein above but the aforesaid improvements in our opinion are not so material as as to belie his presence at the place of incident, PW-1 has been subjected to a grueling cross examination by the defense counsel and questions were put to him and suggestions given to him that he was not present at the place of occurrence at the time of occurrence and that he had directly gone to the medical college after receiving information about the death of his brother Ajai Verma and that due to previous enmity between him and accused-appellants he had falsely implicated the accused-appellants. It is true that to some questions put to him by the defense counsel, he had given evasive replies but the defense failed to elicit anything from him which may even remotely suggest that PW-1 had not witnessed the occurrence and his evidence was tutored. The defense also failed to show that the evasive replies given by him to some of the questions eroded his credibility.PW-1 in his evidence has given a cogent description of the incident and we do not find any reason to doubt his testimony. His presence inside the shop at the time of occurrence has been challenged by the learned counsel for the appellant also on the ground that if he was actually present inside the shop dimensions whereof are long 18 ft. x 10 ft wide, he would not have remained unhurt. However, we do not find any force in the aforesaid submission of the learned counsel for the appellant in view of the fact that PW-1 has categorically stated in his examination-in-chief that when the firing started he had hidden himself behind a wall in the shop which has been shown in the site plan Ext.Ka-7 by letter "A" and more over it has come in his evidence that after the accused started firing at the deceased Ajai Verma he had stood up and after receiving gun ghot injury on his chest he had fallen on the ground at the place denoted by letter "B" in the site plan Ext.Ka-17 which is outside the shop. PW-2 Ajai Soni has also corroborated the facts deposed by PW-1 Sanjai Verma in his evidence supporting the prosecution case as spelt out in the FIR on all material aspects of the matter. His presence on the spot and at the time and place of occurrence has been assailed by learned counsel for the appellant on the ground that he is not named as an eye witnesses in the FIR and he is stock witness of the family of informant being an employee of Ajai Verma and Sanjai Verma and he had appeared as witness on their behalf in large number of cases. On account of his fiduciary relationship with PW-1 Sanjai Verma, he had given false evidence against accused-appellants. It has also been argued that it was not possible for PW-2 Ajai Soni to have witnessed the occurrence from the place where he was standing at the time of the incident which is shown by letter "D" in the site plan Ext.Ka-17.

From the perusal of the site plan of the place of incident Ext.Ka-17, we do not find any force in the submission of learned counsel for the appellant that it was not possible for PW-2 to have witnessed the occurrence from the place where he was standing at the time of the occurrence. In the site plan the place from where PW-2 Ajai Soni had seen the occurrence has been shown by letter "D" while the place of incident inside the shop of the deceased is denoted by letter "X" and the place where he had fallen down after receiving gun shot injury has been shown by letter "B".Point "B" & "X" are diagonally visible from the point "D" in the site plan.Thus, we hold that he had full opportunity to witness the occurrence from the point "D" which had taken place at the point "X" and "B".

More over the defense counsel by making a suggestion to PW-2 Ajai Soni on pg.75 of the paper book in para-66 of his cross examination that it was PW-2 Ajai Soni who had taken the deceased to the Civil Hospital after the occurrence has virtually admitted the presence of PW-2 Ajai as well as that of accused at the time and place of occurrence and we have no reason to doubt the credibility of this witness and the version of incident given by him as untrue or false notwithstanding the minor consistencies and discrepancies in his evidence which in our opinion do not affect the core of the prosecution story.

The presence of PW-1 Sanjai Verma and PW-2 Ajai Soni at the place of occurrence at the time of occurrence has been challenged by the learned counsel for the appellants also by submitting that in case PW-1 Sanjai Verma had taken his brother deceased Ajai Verma to the hospital then in that case it should have been mentioned in Ext.Kha-1 that he was brought to the hospital by Sanjai Verma and not by Ajai Soni. We have already held that both PW-1 Sanjai Verma and PW-2 Ajai Soni were the most natural witness to be present at the place of occurrence being the deceased's brother and his employee and more over no suggestion has been given by the defence counsel to PW-1 Sanjai Verma during his cross examination that he had not taken his brother to the hospital. None mention of the name of PW-1 Sanjai Verma in the bed ticket Ext.Kha-4 as the person who had brought the injured/deceased Ajai Verma to the District Hospital, in our opinion is not sufficient to hold that PW-1 Sanjai Verma was neither present at the crime scene at the time of occurrence nor he had taken his brother Ajai Verma to the hospital.

The presence of PW-2 Ajai Soni in the shop of the deceased at the time of the occurrence was most natural in view of the admitted fact that he was an employee of Sanjai Verma.

His credibility has also been sought to be impeached by the learned counsel for the appellant on the ground that his brother Vijai was an accused in the case of murder of Chandra Shekhar son of accused-appellant Bharat Singh and due to the aforesaid reason he had given false evidence against the accused-appellant in this case.

However, PW-2 on page 72 of the paper book in paragraph 43 of his cross examination has categorically denied that apart from the present case he has never appeared as a eye witness in any case of Ajai Verma and Sanjai Verma nor he is aware of the fact that he has been nominated as witness by the informant or the deceased as witness in any other case.

Learned counsel for the appellant has also submitted that the evidence of PW-1 and PW-2 is liable to be discarded on the ground that Pw-2 Sanjai Verma being the real brother of the deceased is an interested witness and hence highly interested in the conviction of the appellants while PW-2 Ajai Soni has been proved to be inimical towards the accused-appellant. However, in view of the settled legal position that the evidence of a witness is not liable to be discarded merely on the ground of his being either a relative of the deceased or being inimical towards the accused, if upon a careful scrutiny the evidence of such witness is found to be reliable then it cannot be discarded merely on the ground of his being a relative of the deceased or his being inimical towards the accused. In the present case after having very cautiously scrutinized the evidence of both PW-1 Sanjai Verma and PW-2 Ajai Soni, we have found their evidence to be trustworthy and reliable with a ring of of truth and we do not find any justifiable reason to disbelieve their evidence merely on the ground of their being relative of the deceased or being inimical towards the accused.

Learned counsel for the appellant has tried to persuade us that the trial court ought to have drawn adverse inference against the prosecution on account of the omission on its part to examine the shop keepers who had their shopd adjacent to the shop of the deceased and in close vicinity as eye witness of the occurrence on the premise that in case the aforesaid persons were produced as witnesses during the trial they would have not supported the prosecution case. There is no force in the aforesaid submission of learned counsel for the appellant. The indifferent attitude of the public in the investigation of the crime is well known. The member of the public are reluctant to depose before the Court. It would therefore not be proper to reject the prosecution version only on the ground that all witnesses of the occurrence were not examined in this case. The charge framed against the accused-appellant stood fully established from the evidence of PW-1 and PW-2. The Apex Court has often observed that it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

The FIR in this case has also been challenged as ante time on the ground that special report not forwarded to the court of concerned Magistrate on the same day. Record shows that in the written report of the incident Ext.Ka-16, the time of the incident has been mentioned as 6.30 p.m. Ext.Ka-3, check FIR prepared on the basis of the written report Ext.Ka-16 indicates that the FIR of the incident was registered on 01.11.2006 at about 20.05 hours. Appellant's case is that since the special report of the case was produced before the Magistrate on 04.11.2006, it is apparent that the same was not in existence on 01.11.2006 at 20.05 hours but was prepared on the next day. However, G.D. entry made on 01.11.2006 at 8.30 p.m. shows that special report pertaining to the incident was dispatched in a sealed envelope through Constable 390 Prem Narain Pandey on 01.11.2006 at 8.30 p.m.. In this case it would be useful to note that the defense has totally failed to cross examine PW-5 Constable Ashok Kumar Dwivedi vis a vis Ext.Ka-5 by which the information about the occurrence was communicated to the superior officers by him on the same day at 8.30 p.m.. The special report of the incident was presented before the Magistrate on 04.11.2006. Neither any adverse inference can be drawn against the prosecution nor the FIR could be held to be ante time. Commencement of the inquest on the dead body of the deceased itself at 22.15 hours and it being completed at 23.20 hours and the mention of the crime number on the inquest report is another circumstance which totally demolishes the prosecution claim that the FIR in this case is ante time.

Our attention has also been invited by learned counsel for the appellant to the fact that neither the time of death of Ajai Verma nor the name of eye witness Ajai Soni finds mention in the inquest report and in the evidence of PW-9 S.I. Krishna Kumar Tiwari who had conducted the inquest wherein he had stated that at the time when he was preparing the inquest report he was neither aware of the time of the death of Ajai Verma nor the fact that Ajai Soni was an eye witness of the occurrence in the FIR. On the basis of the aforesaid extract of the testimony of PW-9 S.I.Krishna Kumar. Sri Dileep Kumar, learned counsel for the appellant has emphatically argued that had the FIR been in existence at the time of holding of inquest then PW-9 S.I. Krishna Kumar Tiwari would not have made the aforesaid deposition, we do find any force in the aforesaid argument of the learned counsel for the appellant as well.

Perusal of the list containing the particulars of the documents which accompanied the inquest reports shows that the same included the FIR of the case also. Thus in case PW-9 S.I. Krishna Kumar Tiwari was not diligent enough to peruse the same before preparing the inquest report, no adverse inference can be drawn against the prosecution case.

Another aspect of the matter which has been highlighted by Sri Dileep Kumar during the course of his arguments is that PW-10 Ashwini Kumar Sinha, Investigating Officer of this case, who at the relevant point of time was posted as S.H.O., P.S. Kotwali had informed the Radio Centre and other police stations and police officers about the incident at about 6.45 p.m. in which he had stated that three unknown persons had escaped from the place of occurrence after committing the crime. He further submitted that in case the informant was an eye witness of the occurrence, then the aforesaid information about the three unknown persons committing the crime would not have been circulated by the S.H.O., P.S. Kotwali through wireless set and from the aforesaid information it was fully established that the crime had been committed by three unknown persons but later the informant had prepared the written report of the occurrence after due deliberation and consultation concocting a false story implicating the accused appellant. However, we do not find any merit in the aforesaid argument also for the following reasons :-

(i) PW-10 Ashwini Kumar Sinha categorically denied before the trial court that he had circulated any such information;

(ii) The log book maintained at the radio centre of the police control room in which the information received by the police control room is recorded, which would have been the best evidence for proving the material fact that any such information was circulated by PW-10 Ashwini Kumar Sinha was not produced;

(iii) DW-3 Shyam Kishore, who was examined by the accused for proving that the fact that PW-10 Ashwini Kumar Sinha had circulated an information on RT set at 6.30 p.m. to the Radio Centre of the police control room and other police stations deposed the aforesaid fact and also produced the photostat copy of the relevant extract of the log book maintained at police station for corroborating the aforesaid fact. His testimony however, does not inspire confidence in view of the unequivocal and unchallenged evidence of PW-10 Ashwini Kumar Sinha that he had neither recorded nor circulated any such information.

(iv) More over the involvement of more than three persons in the crime stands further corroborated from the recovery of five empty cartridges from the place of occurrence which according to the forensic expert report Ext.Ka- 24 were fired from five firearms, which were recovered on the pointing out of the appellants and the pieces of metal recovered from the dead body of the deceased could be part any one of the recovered empty cartridges. In case the balastic expert had opined that the empty cartridges recovered from the place of occurrence were fired from three and not five weapons then, we could have attached some credence to the information about three unknown persons having committed the murder of the deceased in the bullian market which was allegedly given by PW-10 Ashwini Kumar Sinha, S.H.O., P.S. Kotwali District Jhansi by RT set to the Radio Centre of police control room. More over the Apex Court in 2008 (Vol. II) JIC 725, in the case of Shivjee Singh and others Vs. State of Bihar, has held that information received by telephone or through RT set can never be treated as first information report. Although the accused had examined DW-5 for proving that the metalic pieces recovered from the dead body of the deceased Ajai Verma were not fired from the weapons allegedly recovered on their pointing out, but his evidence being in the nature of opinion is not conclusive. The substantive evidence on the point is the eye witness account of PW-1 Sanjai Verma and PW-2 Ajai Soni which we have already held to be reliable, trustworthy and unimpeachable and which clearly establishes the complicity of the accused-appellants in committing the murder of Ajai Verma.

Sri Dileep Kumar has also submitted that the medical evidence on record conclusively proves that the incident could not have taken in the manner as described in the FIR. Advancing his submissions in this regard he further submitted that from the perusal of the post mortem report of the deceased and the evidence tendered by PW-7 Dr. Rajesh Pachauria, who had conducted the post mortem on the deceased's cadaver it transpires that deceased had received a gun shot wound of entry on his back with the corresponding exit wound on the right side of the chest. 9 cm above the nipple at 10 o'clock position, the direction of the ante mortem injury no.1 is from left to right. This injury had caused external fracture and had pierced throughout liver, gal bladder, heart and both lungs and pericardia. The bullet which had caused, this injury had entered through the back side of the deceased and after piercing through the liver, gal bladder, heart, lungs and pericardia diagonally had made its exit, 9 cm above, the nipple of the right side of the chest. The ante mortem injury no.1 was sufficient to cause death and it was not possible for the deceased to have received ante mortem injury no.1 while he was shot from the front and in view of the above admitted prosecution case that the accused-appellant had fired at the deceased Ajai Verma while he was in a standing position then it was not possible for him to have received the injury no.1 and hence the eye witness account under such circumstances is liable to be discarded. We however, do not find any substance in the aforesaid submission also as it is admitted case of the prosecution that after firing started the deceased had fallen on the ground and it cannot be said that he had remained in the same position after being shot and had not turned towards left while lying on the ground and if the accused-appellants had then fired the shot which caused ante mortem injury no.1 to him which has its corresponding exit wound on the right side of the chest, 9 cm above the nipple it was possible for the deceased to have received the aforesaid injury and it cannot be said that there is any material inconsistency between the medical evidence and the ocular version.

The recovery of the weapons used in the commission of the crime on the pointing out of the accused-appellants was proved by PW-10, who also proved the recovery memo of the aforesaid weapons Ext.Ka-16. The site plan of the place place from where the illicit firearm used by the accused-appellants in committing the murder of the deceased was proved by PW-11 S.I. Jagat Narain Dwivedi. The report of the balastic expert indicates that the deceased Ajai Verma had died as a result of the firearms injuries received by him from the shots fired from the illicit weapons. The accused-appellants Raoraja, Sardar Singh, Man Singh, Bharat Singh and Bhola failed to produce any license for keeping the firearms, which were recovered on their pointing out from their houses. Thus the prosecution has fully succeeded in proving the charge framed against the accused-appellants under Section 25 of the Arms Act.

Thus, in view of the foregoing discussion, we do not have any hesitation in holding that the prosecution has fully succeeded in proving by cogent and reliable evidence, both oral as well as documentary that the murder of Ajai Verma brother of PW-1 Sanjai Verma was committed by accused-appellants Raoraja, Sardar Singh, Bharat Singh, Man Singh and Bhola Singh at about 6.30 p.m. on 01.11.2006 situated in bullian market, Jhansi by inflicting firearms injuries on him from their firearms and that the accused-appellants did not have any license to possess the firearms from which they had fired at the deceased. The medical evidence on record fully corroborates the eye witness account. The inconsistencies, discrepancies, contradictions and improvements pointed out by the learned counsel for the appellants in the testimonies of PW-1 Sanjai Verma and PW-2 Ajai Soni, the eye witness of the occurrence, in our opinion, are of trivial nature, which do not affect the core of the prosecution story so as to render it unreliable.

We do not find any reason to interfere with the recorded conviction of the accused-appellants Raoraja, Sardar Singh, Bharat Singh, Man Singh and Bhola Singh and the awarded sentence of life imprisonment under Section 302 IPC.

We now proceed to examine the criminal appeals no. 8277 of 2009 and 8007 of 2009 preferred by the State of Uttar Pradesh against the part of the impugned judgment and order dated 20.08.2009 passed by Additional Sessions Judge, Court No.1, Jhansi by which the accused respondents Rinku Geda and Sonu Geda were acquitted and for enhancement of the sentenced awarded to the accused-respondents.

Sri Saghir Ahmad, learned AGA has submitted that although the prosecution had fully succeeded in establishing the guilt of accused-respondents Rinku Geda and Sonu Geda by cogent evidence yet learned trial judge illegally acquitted them of all the charges by examining plea of alibi set up by them. He further submitted that the part of the impugned judgement and order by which the accused-respondents Rinku Geda and Sonu Geda were acquitted cannot be sustained and is liable to be set aside.

Per contra Sri Dilip Kumar has submitted that the finding of acquittal recorded by learned trial judge qua the accused Rinku Geda and Sonu Geda is based upon relevant consideration and supported by cogent evidence. Learned trial judge after appreciating the entire evidence on record and examining the plea of alibi set up by the accused-respondents Rinku Geda and Sonu Geda before the trial judge rightly held that the prosecution has failed to prove its charge against the accused-appellants beyond all reasonable doubts and rightly acquitted the accused-respondents Rinku Geda and Sonu Geda. The finding of guilt recorded by the trial court vis-a-vis respondents Rinku Geda and Sonu Geda warrants no interference by this Court. He further submitted that the State appellant that no case for enhancement of sentence awarded to the accused appellants by the learned trial judge, both the govt. appeals are liable to be dismissed.

In order to prove their plea of alibi accused-respondents had taken up a specific case before the trial court that on the date of the incident i.e. on 01.11.2006, accused Rinku Geda was under going treatment for his illness in district Hospital, Datia at 1.00 p.m. to 6.45 p.m. and since his condition did not show any improvement, at 6.45 p.m., the doctor treating him in District Hospital, Datia had referred to Medical College, Gwalior for specialized treatment. It was further pleaded by the accused-respondents Rinku Geda and Sonu Geda that while Rinku Geda was being treated accused respondent Sonu Geda was attending him in District Hospital Datia. As per the FIR case the incident was committed on 01.11.2006 at about 6.30 p.m.. In order to prove their plea of alibi, the accused-respondents Rinku Geda and Sonu Geda had brought on record Ext.Kha-3 and Ext.Kha-4 which were proved by DW-4 Dr. G.S.L.Verma. On the basis of the Ext. Kha-3 and Ext.Kha-4 and the testimony of DW-4, the trial court held that it was not possible for the accused-respondents Rinku Geda and Sonu Geda to have remained present at the place of occurrence on 01.11.2006 at about 6.45 p.m. and participated in the brutal murder of Ajai Verma.

More over record further shows that five empty cartridges were seized from the place of occurrence by the Investigating Officer and the post mortem report of the deceased indicated that he had received six firearms wound of which ante mortem injury no.1 was exit wound which clearly indicated that five persons had shot from their firearms at the deceased. It is further pertinent to note that no incriminating article was recovered either from the possession of the accused-respondents or on their pointing out. The trial court in our opinion did not commit any illegality or infirmity in holding that the prosecution had failed to prove its charges agaisnt the accused-respondents Rinku Geda and Sonu Geda under Section 148, 302/34 and 307/34 IPC and they were entitled to benefit of doubt.

The finding of acquittal, in our opinion, is based upon proper appreciation of the evidence on record. The learned trial judge has given cogent reasons for holding that the charges framed against the accused-respondents Rinku Geda and Sonju Geda could not be proved by the prosecution and as such they were entitled to acquittal.

We do not find any compelling reason to interfere with the finding of acquittal recorded by the learned trial judge vide impugned judgment and order dated 20.08.2009 qua the accused respondents Rinku Geda and Sonu Geda.

As far as the Government Appeal no. 8007 of 2007 filed by the State of U.P. for enhancement of the sentence awarded to the accused-appellants by the learned trial judge is concerned, learned A.G.A. has failed to demonstrate or convince us that the sentence awarded to the accused-appellants for having committed the murder of Ajai Verma life sentence is in adequate. He has failed to bring to our notice any aggravating circumstance which would have warranted imposition of death penalty on the accused-appellants. Thus in our opinion no interference is required with the sentence of life imprisonment awarded by the trial court to the accused-appellants for their conviction under Section 302/34 IPC.

In view of the above, all the appeals fail and are accordingly dismissed.

There shall however be no order as to costs.

Order Date:- 12/09/2017

Abhishek Sri.