Raja Bhaiya @ Kanhiya Lal Panda vs State Of U.P.
2018 Latest Caselaw 1934 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment reserved on 30.05.2018.
 
Judgment delivered on 10.08.2018.
 
Court No. - 4
 

 
Case :- CRIMINAL APPEAL No. - 2092 of 2016
 

 
Appellant :- Raja Bhaiya @ Kanhiya Lal Panda
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ajatshatru Pandey, Pradeep Kumar Rai
 
Counsel for Respondent :- G.A., Raghvendra Dwivedi
 

 
Hon'ble Bala Krishna Narayana, J.

Hon'ble Rajiv Gupta, J.

(Delivered by Hon'ble Rajiv Gupta, J.)

The present criminal appeal has been filed by the appellant Raja Bhaiya @ Kanhiya Lal Panda against the judgment and order dated 29.02.2016, passed by Special Judge, EC Act/Additional Sessions Judge, Allahabad, in Sessions Trial No. 394 of 2007 (State Vs. Raja Bhaiya and another) arising out of Case Crime No. 310 of 2005, under Section 302 IPC, Police Station Dhoomanganj, District Allahabad, by which the appellant has been convicted under Section 302 IPC and awarded the sentence of life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine, to undergo six months additional imprisonment.

Briefly stated the prosecution story, as mentioned in the written report, is that the first informant's elder brother Ram Vishal Pal was having inimical terms with Dhruv Panda. On 02.11.2005, two persons had taken his brother from his house for showing them a plot. It is further alleged that the first informant along with his brother and several other persons were present at the plot. At about 12:20 PM, while his brother was returning back from the plot to his house, two persons riding a CBZ motorcycle came there. The pillion rider, named Raja Bhaiya @ Kanhiya Lal Panda S/o Dhruv Panda, who was armed with rifle, opened fire upon his brother. Hearing the shot, first informant, who was following him, ran towards him, however, the motorcycle riders made their escape good through the motorcycle. The other person, who was driving the motorcycle, is known to him and has been recognized but he does not know his name. On account of firing made, his brother Ram Vishal Pal received injuries and died instantaneously, resulting into commotion at the place of the incident.

On the basis of the said written report, Exhibit Ka-1 FIR was registered at Police Station Dhoomanganj, District Allahabad vide Case Crime No. 310 of 2005 under Section 302/34 IPC. On the basis of the said check FIR, G.D. Report No. 32 dated 02.11.2005 at 13:45 hours was drawn, carbon copy whereof has been marked as Ex. Ka-5. After the registration of the FIR, the Investigation was entrusted to PW-6 Ved Prakash Rai, who along with relevant police papers and other police personnels, reached at the place of the incident and PW-7 SI Ranjeet Singh conducted the inquest on the person of the deceased and prepared the challan lash, photo nash, sealed sample, chitthi RI, chitthi CMO, which have been marked as Ex. Ka-10, Ka-11, Ka-12 and Ka-13 respectively and thereafter, despatched the dead body for postmortem. The Investigating Officer thereafter on the pointing out of the first informant prepared the site plan, which has been marked as Ex. Ka-9 and thereafter, collected the bloodstained earth and plain earth from the place of incident and prepared its fard. The Investigating Officer also prepared the fard recovery memo of empty cartridges and charger clip, which has been marked as Ex. Ka-3.

On 02.11.2005, an autopsy was conducted on the person of the deceased by PW-4 Dr. Ajeet Singh, who has noted as many as 11 injuries on the person of the deceased and in his opinion, cause of death was due to shock and hameorrhage as a result of fire arm injuries to vital organs. The injuries noted on the person of the deceased are being described herein below :-

(1). F.A.W. of entry ¾ x ¾ inch x cranial cavity deep, margins inverted, on right side on nose adjacent to medial of right eye, # of underlying nasal bones and frontal bone.

(2). F.A.W. of exit 1 x 1 inch margins everted, cranial cavity deep on back of head over occipital region communicating with injury no. 1.

(3). F.A.W. of entry ¾ x ¾ inch margins inverted x bone deep on right side of chin, scorching BT present with # of underlying.

(4). F.A.W. of exit 1 x 1 inch margins everted x bone deep on left side of chin communicating with injury no. 3.

(5). F.A.W. of entry ¾ x ¾ inch margins inverted x abdomen cavity deep on left side back of abdomen, 5 inch below inferior L of left scapula.

(6). F.A.W. of exit 2 x 2 inch margins everted x abdomenal cavity deep on left lateral surface of 9 inch below left axilla communicating with injury no. 5.

(7). F.A.W. of entry ¾ x ¾ inch margins inverted x abdomen cavity deep of back of abdomen on left side 6 inch above waist.

(8). F.A.W. of exit 1 x 1 inch margins everted x abdomen cavity deep on anterior abdomen cavity wall 3 inch above umbelious of 2 O'clock position communicating with injury no. 7.

(9). F.A.W. of entry ¾ x ¾ inch margins inverted MM deep on outer surface of right hip.

(10). F.A.W. of exit 1 x 1 inch, margins everted x M.M. Deep on right buttock on right side communicating to injury no. 9.

(11). F.A.W. of entry ¾ x ¾ inch, margins inverted x bone deep on back of lower part of left upper arm, two metallic pieces recovered from left tissue.

On 02.11.2005 itself, PW-6 Investigating Officer Ved Prakash Rai recorded the statement of the first informant and thereafter, on his transfer, the investigation was entrusted to PW-5 Shail Kumar, who again recorded the statement of the first informant on 26.11.2005 and in this statement, for the first time the name of the other co-accused Hanuman Prasad was disclosed and thereafter, the statement of PW-2 Shiv Lal Pal was recorded.

Further on 28.11.2005, the Investigating Officer recorded the statement of the accused Raja Bhaiya, who confessed his guilt and disclosed that the rifle and the motorcycle, which has been used in the incident, could be got recovered by him, however, despite the accused being taken on police remand, the said motorcycle and the rifle said used in the incident could not be recovered and thereafter, the Investigating Officer concluded the investigation and submitted the charge-sheet against the appellant, which has been proved and marked as Ex. Ka-8.

On the basis of the said charge-sheet, learned Magistrate had taken cognizance and since the case was triable by Sessions, as such, the same was committed to the Court of Sessions, Allahabad, where it was registered as Sessions Trial No. 394 of 2007, State Vs. Raja Bhaiya and another, who made over the case for trial before the Special Judge, EC Act/Additional Sessions Judge, Allahabad.

The Trial Court, after hearing the prosecution as well as accused, framed the charges against the appellant Raja Bhaiya and Hanuman Prasad under Section 302 read with 34 IPC and under Section 7 of the Criminal Law Amendment Act. The charges were read out and explained to the appellant, who did not plead guilty and claimed to be tried.

The prosecution in order to bring home the guilt against the appellant has produced as many as 7 witnesses :-

PW-1 Shyam Lal Pal is the first informant and the eye-witness of the incident, PW-2 Shiv Lal Pal, is another witness of fact, whereas PW-3 HCP Jaswant Kumar, who has registered the FIR and had drawn the check FIR and corresponding GD, which has been proved as Ex. Ka-4, Ka-5 and Ka-6, PW-4 Dr. Ajeet Singh, who had conducted the postmortem on the person of the deceased and has proved the same as Ex. Ka-7, PW-5 Shail Kumar Singh, the second Investigating Officer of the case, who concluded the investigation and submitted the charge-sheet against the appellant, PW-6 Ved Prakash Rai, the first Investigating Officer, who had prepared the site plan and proved the same as Ex. Ka-9, PW-7 Ramji Singh, who had conducted the inquest and proved the same as Ex. Ka-2 are produced as formal witnesses.

After conclusion of the prosecution witnesses, the statement of the appellant was recorded under Section 313 CrPC, in which, he has denied the prosecution case and has stated that the deceased Ram Vishal Pal was involved in preparing fake documents, as such, he had large number of enemies infact he had been killed at some other place and he has been falsely implicated in collusion with the police, however, the appellant has not produced any evidence in his defence.

Learned Trial Court, after hearing the prosecution as well as the defence and scrutinizing the evidence and material on record, has recorded the finding of conviction against the appellant and sentenced him for life imprisonment, hence this appeal.

Heard Sri Kamal Krishna, Senior Advocate assisted by Sri Pradeep Kumar Rai, learned counsel for the appellant, Sri O.P. Singh, Senior Advocate assisted by Sri Sanjay Kumar, learned counsel for the informant, Sri J.K. Upadhyay, learned AGA for the State/respondent and perused the record.

Learned counsel for the appellant has submitted that from the evidence produced during the course of trial, the presence of PW-1 Shyam Lal Pal and PW-2 Shiv Lal Pal is highly doubtful. In this regard, it is important to point out that from the careful perusal of the FIR, it is evident that the name of PW-2 Shiv Lal Pal does not find mention at all in the FIR.

He has further submitted that even the name of the other co-accused, who was driving the motorcycle, has not been mentioned at all in the FIR, though, he is said to have been seen and recognized by the first informant.

Elaborating his arguments, learned counsel for the appellant has drawn the attention of the Court on page 19 of the paper book, wherein he has said that the name of the person, who was driving the motorcycle with the appellant Raja Bhaiya, was Hanuman Prasad @ Raju, however, he could not mention his name in the FIR as he did not remember his name at the time of the incident.

He has further stated that his statement under Section 161 Cr.P.C. was recorded twice by the Investigating Officer and only in his second statement dated 26.11.2005, he had mentioned the name of the co-accused as Hanuman Prasad @ Raju.

Learned counsel for the appellant has further stated that both, co-accused Hanuman Prasad @ Raju and the first informant, are resident of Fatehpur Ghat and are very well known to each other, therefore, had PW-1 Shyam Lal Pal being present at the time of the incident, he would have certainly nominated him as a co-accused and this circumstance clinchingly establishes that the first informant was in fact not present at the time of the incident.

Learned counsel for the appellant has further drawn the attention of the Court on page 24 of the paper book, wherein PW-1 has stated that on account of fear, he had not mentioned the name of the co-accused Hanuman Prasad @ Raju in the FIR. Furthermore, when on the date of the incident, his statement was recorded by the Investigating Officer under 161 Cr.P.C., he had not mentioned the name of the other co-accused Hanuman Prasad @ Raju on account of fear and only on 26.11.2005, when his second statement was recorded, the name of the other co-accused was disclosed. This circumstance further fortifies the fact that the PW-1 was not present at the time of the incident and that is why, he could not nominate the accused.

Learned counsel for the appellant has further submitted that the presence of PW-1 at the time of the incident is also doubted from the circumstance that PW-2 in his statement on page 27 has clearly stated that Shyma Lal Pal had inquired from him the name of the person, who was driving the motorcycle, as he could not exactly recognize him, then he had disclosed him the name of the motorcycle driver as Hanuman Prasad @ Raju, Son of Girija Shankar, however, despite the said fact the name of the co-accused was not mentioned either in the FIR or in the first statement of the witness, which clearly establishes the fact that PW-1 was not present at the time of the incident and had not actually witnessed the incident.

The next argument of learned counsel for the appellant is that even the presence of PW-2 Shiv Lal Pal, as an eye-witness, has not been mentioned at all in the FIR and even his statement for the first time under Section 161 Cr.P.C. was recorded by the Investigating Officer on 26.11.2005 after a gap of more than 24 days of occurrence. This unexplained delay in recording the statement of PW-2 creates a serious doubt about his presence at the place of incident.

Learned counsel for the appellant has further submitted that in the statement of PW-1 on page 18 of the paper book, it has been stated that on the fateful day i.e. on 02.11.2005 at about 10:00 A.M., Nate and Jokhu Patel had accompanied the deceased for seeing the plot and he along with his another brother Sohan Lal and Shiv Lal were present at the plot, however, in the FIR neither the name of Nate nor the name of Jokhu Patel, has been mentioned, even the name of real brother of the deceased Sohan Lal has also not been mentioned at all in the FIR and none of these three witnesses have been produced by the prosecution to corroborate the prosecution story. This circumstance further creates serious dent in the prosecution story and rules out the presence of the first informant at the time of the incident.

Learned counsel for the appellant has further submitted that even the place of the incident has not been specifically mentioned in the FIR, however, subsequently in the statement of PW-1, it has been stated that when the victim-deceased Ram Vishal Pal has reached near the house of Munna Kushwaha, then the assailants reached there on a CBZ motorcycle and pillion rider Raja Bhaiya alighted from the motorcycle and immediately opened fire upon the deceased Ram Vishal Pal causing his instantaneous death, which is nothing but an improvement in the statement of PW-1.

Learned counsel for the appellant has further submitted that even there is serious contradiction in the statement of PW-1 and PW-2 regarding the time of the incident. PW-1 in his statement on page 18 of the paper book has clearly stated that on fateful day i.e. on 02.11.2005 at about 10:00 A.M., the victim-deceased Ram Vishal Pal along with Nate and Jokhu Patel had gone to show them the plot and while returning back to his house, the present incident had taken place near the house of Munna Kushwaha at about 12:20 P.M., whereas, PW-2 in his statement has categorically stated that on 02.11.2005, he along with first informant Shyma Lal Pal, Sohan Lal Pal, another brother of the deceased, Ram Vishal Pal had reached the plot at 12 O'clock and some time thereafter, Ram Vishal Pal along with one another person, who, he did not recognize, accompanied with Nate and Jokhu Patel has reached the plot and after some discussion with Nate and Jokhu Patel, Ram Vishal left towards his house. This circumstance clinchingly establishes that the incident has in fact not taken place at 12:20 P.M., as alleged by the first informant but at some later time, which further creates serious doubt about the presence of PW-1 and PW-2 at the time of incident.

Learned counsel for the appellant has further drawn the attention of the Court to the testimony of PW-1 on page 23 of the paper book, wherein it is stated that the deceased along with Nate and Jokhu Patel had reached the plot on foot and stayed there for 15 minutes. As per the statement of PW-1, the deceased left his house along with Nate and Jokhu Patel at 10:00 A.M. and the distance between the house of the appellant and the plot is about 250 meters as evident from the statement of PW-1 at page 23 of paper book and the victim-deceased stayed at his plot for about 15 minutes and reached the place of incident at about 12:20 P.M., however as per the aforesaid statement, the time of incident at 12:20 P.M. does not reconcile in any manner and the incident in any case could not have taken place at 12:20 P.M., as alleged by the prosecution and thus, there is serious doubt even about the exact time of the incident.

Learned counsel for the appellant has further submitted that from the perusal of the site plan, the exact place from where the shot was fired by the appellant has not been mentioned in the site plan, though PW-4 Dr. Ajeet Kumar, who conducted the autopsy on the person of the deceased, has clearly stated on page 35 of his deposition that injury no.3 was containing blackening and tattooing. As per the statement of PW-2, it is clear that all the shots were fired from one place near the house of Munna Kushwaha and the Investigating Officer PW-6 V.P. Rai has admitted in his statement that the site plan was prepared at the instance of PW-1 and has further stated that the distance from the point "A" where the dead body of the deceased was lying and the house of Munna Kushwaha could be 20-30 paces. Thus, in any case, if the firing is made from such a distance, it would not result in causing blackening and scorching on the person of the deceased. The aforesaid medical contradiction further creates serious dent in the prosecution story and makes the eye-witness account doubtful.

Learned counsel for the appellant has further drawn the attention of the Court to the fact that in the FIR, distance between the place of the incident and the Police Station has been mentioned 3 ½ Kilometers West, whereas in the inquest, the said distance has been mentioned as 3 Kilometers East. Moreover, the police papers sent for conducting the autopsy has not been specifically mentioned in the memo of inquest report which clearly establishes the fact that at the time of conducting the inquest, FIR was not in existence. Learned counsel for the appellant has further pointed out that special report under Section 157 Cr.P.C. has reached the Court of C.J.M. on 16.11.2005 i.e. after 14 days of the incident, which further clinchingly establishes that the FIR was not in existence at the time of conducting the inquest and the same has been got registered by making it ante-time.

Furthermore, learned counsel for the appellant has drawn the attention of the Court to the statement of PW-4 Dr. Ajeet Kumar, who has conducted the autopsy on the person of the deceased on page 38 of the paper book, wherein it is stated that there was no exit wound of injury no.11 and two metallic pieces were recovered from the said wound. In rifle, pistol or revolver, only one bullet is used. In cartridges used in 12 bore gun, pellets are found. Injury no. 11 could be caused by a weapon, in which, 12 bore cartridge is used. The two pellets, recovered in wound no.11, were of size ½ inch x ½ inch and ¾ inch x ½ inch. Thus, the possibility of two weapons being used in the incident cannot be ruled out.

Per contra, learned AGA and the learned counsel for the complainant has submitted that the PW-1 and PW-2 are most natural witnesses of the incident and their presence cannot be doubted as they are said to be accompanying the deceased at the time of the incident. The postmortem report also corroborates the prosecution story. The defence has further not been able to elicit any material contradictions in the statement of PW-1 and PW-2, as such, they are the reliable witnesses and the trial Court, by rightly relying upon their testimonies, has convicted the appellant and sentenced him. The order passed by the trial Court is well considered and does not require any interference by this Hon'ble Court, as such, the appeal is liable to be dismissed.

Considering the rival submissions made by the prosecution and the defence, it would be useful to evaluate the oral and documentary evidences adduced by the prosecution witnesses and the defence to reach at the just conclusion, if the prosecution has been able to prove its case beyond all reasonable doubts against the appellant.

The first and foremost argument of learned counsel for the appellant is that the presence of both the witnesses, PW-1 Shyam Lal Pal and PW-2 Shiv Lal Pal at the time of incident, could not be clinchingly established by the prosecution, particularly in light of the facts and circumstances discussed in earlier part of the judgment. Moreover, the presence of PW-1 Shyam Lal Pal at the time of the incident is rendered highly doubtful, particularly, in view of the fact that the name of other co-accused Hanuman Prasad @ Raju, who belongs to the same village could not be mentioned by him either in the FIR or in the statement under Section 161 CrPC, more so, in the circumstance when PW-2 in his statement on page 27 has clearly stated that he had disclosed the name of Hanuman Prasad, the other co-accused to him.

Apart from this, non-mentioning of the name of PW-2 in the FIR as well as in his first statement under Section 161 CrPC further creates serious doubt about his presence at the time of the incident.

In view of the said shortcomings in the statement of PW-1, we are of the opinion that the presence of the PW-1 at the time of the incident is highly doubtful.

Learned counsel for the appellant has further submitted that so far as the presence of PW-2 at the time of the incident is concerned, the prosecution has again miserably failed to establish his presence, particularly in view of the fact that his name does not find mention as an eye-witness in the FIR and that his statement has seen the light of the day after about 24 days of the incident and the explanation given by the Investigating Officer for his delayed examination on account of his non-availability does not stand to reason at all and cannot be believed by any stretch of imagination. Furthermore, his presence is doubted from the circumstance that he is resident of Paigambarpur, Police Station Pooramufti, District Kaushambi, which is situate at a distance of 18 Kilometers from the place of the incident and no reason whatsoever has come forth to show his presence at the time of the incident.

In the backdrop of the said circumstances, we are of the opinion that the presence of PW-2 in the present case is also highly doubtful.

The next argument of learned counsel for the appellant is that as per the prosecution case, the deceased had gone along with two persons, namely, Nate and Jokhu Patel to show the plot, where his other brother Sohan Lal is also said to be present and while returning from the said plot, the present incident has been committed but surprisingly enough, the names of none of the said three witnesses finds place in the FIR, nor anyone of them has been produced as a witness to corroborate by the prosecution story which again creates serious doubt about the truthfulness of the prosecution story itself.

We find force in the aforesaid submissions of learned counsel for the appellant. Non-mentioning of the names of the aforesaid three witnesses in the FIR and not producing any of them as a witness creates serious doubt about the truthfulness of the prosecution story and renders it wholly doubtful.

The next argument of learned counsel for the appellant is that the medical report does not support the prosecution story, particularly in view of finding of blackening and scorching on injury no.3, when the firing is said to be made from a distance of 20-30 paces from the house of Munna Kushwaha and further, the statement of PW-4 Dr. Ajeet Kumar to the extent that there was no exit wound of injury no.11 and two metallic pieces were recovered from the said wound and in the light of the opinion of the Doctor that injury no.11 could be caused by a weapon, in which, 12 bore cartridges were used, we are of the opinion that the possibility of two weapons being used in the incident cannot be ruled out, which further demolishes the prosecution story.

Learned counsel for the appellant has then submitted that since in the panchayatnama, the specific note of police papers being sent for conducting the autopsy has not been mentioned and that the copy of the special report under Section 157 CrPC has reached to the court of the Magistrate after 14 days on 16.11.2005 and the fact, that the distance of place of incident as mentioned in the FIR is different from that mentioned in inquest, it is clinchingly established that the FIR was not in existence at the time of conducting the inquest and has been registered by making it ante-time.

However, the said submission of learned counsel for the appellant does not appeal to us in view of the fact that from the careful perusal of the postmortem report, it is clearly evident that the Doctor at the time of receiving the dead body has mentioned that along with dead body, 9 police papers were received by him for conducting the postmortem.

Furthermore, the FIR has been registered in the present case at 1:45 PM i.e. 13:45 hours and the proceedings of the inquest has been started at 14:30 hours and the same has been concluded at 15:30 hours and thereafter, the dead body has been despatched for postmortem and reached the Headquarters at 16:20 hours and thereafter, autopsy has been conducted on the person of the deceased at 5:20 PM. At the time of sending the body for postmortem, the copy of the FIR as well as corresponding GD Report has also been sent, thus, from the said letters, it cannot be conclusively proved that at the time of conducting the inquest, the FIR was not in existence and the same has been registered by making it ante-time.

However, considering the holistic view of the matter and in view of the doubt created by the defence in regard to the presence of both the eye-witnesses at the time of the incident coupled with the medical contradiction, which do not corroborate the prosecution story, we are of the view that the prosecution has not been able to prove its case beyond all reasonable doubts against the appellant, as such, the appellant is liable to be acquitted of all the charges framed against him by allowing the appeal. The appeal is accordingly allowed. The appellant is directed to be released from the jail forthwith, if he is not wanted in any other case subject to fulfilling the requirement under Section 437-A CrPC.

A copy of this judgment along with trial court record be sent to the Sessions Judge, Allahabad for information and necessary compliance.

Judgment be certified and placed on record.

Order Date :- 10.08.2018.

Nadim