Prem Pal Singh vs State Of U.P.
2018 Latest Caselaw 473 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.                         
 
 Judgment Reserved on 7.4.2018
 
Judgment Delivered on 10.5.2018
 
In Chamber
 
Case :- CRIMINAL APPEAL No. - 1564 of 2003
 
Appellant :- Prem Pal Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Prem Prakash,Ambrish Kumar,R.P.S.Chauhan
 
Counsel for Respondent :- A.G.A.
 
AND
 
Case :- CRIMINAL APPEAL No. - 1053 of 2003
 
Appellant :- Hemraj & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sudhir Kumar,Pravin Kumar
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Rajiv Lochan Mehrotra,J.

Hon'ble Aniruddha Singh, J.

(Delivered by Hon'ble Rajiv Lochan Mehrotra, J.)

(1) Heard learned counsel for the appellants, learned A.G.A. on behalf of the State and perused the material available on record.

(2) The judgment and order dated 28.2.2003 passed by Additional Sessions Judge, Court No. 1, Badaun in S.T. No. 684 of 2000, case crime No. 49 of 2000, convicting all the appellants for life imprisonment coupled with a fine of Rs. 5000/- under Section 302/34 I.P.C. and further convicting the appellant - Prem Pal for three months rigorous imprisonment under Section 30 Arms Act is under challenge in both the abovesaid criminal appeals.

(3) The prosecution case in nut-shell is that on 19.3.2000 Badan Singh handed over a written report to Station Officer, Usava, Badaun with the averments therein that on the same day at about 8.00 PM an altercation took place between two children Nirdosh and Dannu. Rajeshwar of the same village favoured Nirdosh while Hemraj took favour of Dannu. After a while Rajeshwar and Hemraj started fighting each other on the same issue. Complainant Badan Singh, Rajpal and Mangli tried to pacify. At the same time Balbir and Prempal appeared there. Prempal was having a licensee gun with him. On the exhortation of Hemraj and Balbir Prempal opened fire at Mangli (hereinafter referred to as 'the deceased') resulting into his death. A kid Girish S/o Rajpal also received pellet injuries on his left cheek during the said firing. A report in the light of the said complaint was lodged on the same day at 8.30 PM.

(4) Investigation came into action. Sample of blood-stained and plain soil was taken by the Investigating Officer. Three empty cartridges of 12 bore were also recovered from the place of the occurrence. Formalities with regard to the inquest memo of the deceased were observed immediately after lodging of the FIR and continued upto 10.45 PM. After observing due process, the body was transmitted for postmortem. The autopsy on the body of the deceased was performed on 20.3.2000 at 3.00 PM and multiple fire arm wounds of entry were found on his chest, stomach, both scapula, both arms and on both thighs. As per opinion of the doctor, these injuries could be the result of either single or of two fires. The gun used in the commission of the offence was recovered on 15.4.2000 from an arsenal shop at Badaun. The collected samples of soil alongwith blood stained clothes of the deceased were sent to the forensic lab for further verification. Forensic lab confirmed the presence of human blood on it. Apart from it, injured Girish Pal was also medically examined on 21.3.2000 and a fire arm wound of entry of size 0.4X0.3 cm X depth not probed was found on his left side face. X-ray report confirmed a single metallic shadow under it. Investigating Officer after collecting the evidence, submitted the charge-sheet against all the accused.

(5) Charges under Section 302/307 I.P.C. and 25/27 Arms Act were framed against the appellant Prem Pal while charges under Section 302/34 and 307/34 I.P.C. were framed against appellants Balbir and Hemraj which they denied and claimed trial.

(6) In support of the charges prosecution examined PW-1 complainant Badan Singh and PW-2 Rajeshwar as witnesses of facts. PW-3 Dr. T.N. Sharma, Senior Radiologist proved the supplementary report of injured Girish Pal confirming therein a metallic shadow under the injury on his left face. PW-4 Dr. M.P. Gangwar conducted the postmortem of the deceased and proved the postmortem report. PW-5 Dr. D.B. Sakya initially examined injured Girish Pal and found a gun shot wound of entry of 0.5 cmX 0.3 cm X depth could not be probed on his left face, 2 cm below the left eye while PW-6 Surendra Singh Parihar S.I. investigated the matter and proved the relevant documents.

(7) Statements of accused/appellants were recorded under Section 313 Cr.P.C. wherein they denied the commission of offence and said that the witnesses have falsely deposed against them. Appellant Prem Pal further stated that he contested and won election of village Pradhan after defeating two brothers of the complainant namely Nathu and Shyam Singh. On account of this rivalry he has falsely been implicated in the matter. Appellant Hemraj said that he, being a member of Pradhan's party, has been falsely implicated in the matter while appellant Balbir said that being brother of the Prem Pal he has been falsely involved in the case. From the side of the defence Shyam Pal Singh, clerk oath commissioner, Office of the District Bar Association, Badaun has been examined as DW-1.

(8) It is vehemently argued on behalf of the appellants that the incident took place in the mid-night whereat some unknown persons have killed Mangli and on account of election rivalry they have been falsely implicated in the case.

(9) As per FIR, the occurrence took place at 8.00 PM and the report was lodged at 8.30 PM. It shall be proper to mention here that the distance between the place of occurrence and the police station is 4 KM. The proceedings with regard to the inquest memo were completed on the same day at 10.45 PM. The main argument advanced on behalf of the appellants is that as per Exhibit Ka-6 i.e. Police Form No. 13, the dead body was sent to the police headquarters after completion of the inquest memo which reached there on 20.3.2000 at 7:40 AM. It is contended by learned counsel for the appellants that in case, the inquest proceedings were completed at 10.45 PM why it took nearly nine hours to reach the body at police headquarter which is not too far from the place of occurrence. The arguments of the appellants to this effect does not have any force because as per postmortem report only 50 gm semi digested food was recovered from the intestine of the deceased while his stomach as per post mortem report was found empty. The prosecution witnesses were not cross examined by the appellants on the point as to whether the dead body was carried in a cart or in a tractor. Undoubtedly the police headquarter is at a quite reasonable distance from the place of the occurrence.

(10) It is specifically deposed by PW-4 Dr. M.P. Gangwar that the deceased would have taken his meal six hours before his death. Had the occurrence taken place in the mid-night, definitely the deceased would have sufficient quantity of semi digested food in his intestine and faecal matter in his rectum. Moreover, as per deposition of PW-4 Dr. Gangwar at the time of postmortem rigor mortis was partially present in the upper part of the body while it was wholly present in the lower part. The duration of death at the time of postmortem as assessed by doctor was approximately 18 hours. In the cross examination, Dr. Gangwar clearly admitted that the rigor mortis starts disappearing after 18 hours of the death, particularly, in summer. In the present case, the date of occurrence is 19th March, 2000. Thus, the sole ground of some delay in reaching the body at police headquarter cannot make the FIR ante time.

(11) It is also argued by the appellants that as per admission of PW-2 Rajeswar, the body was taken to the police station which is a clear irregularity and the appellants are liable to get the benefit of it. The argument of the appellants is not tenable because the body was transmitted to the police headquarter in the night and for villagers police headquarter may also be called as police station.

(12) PW-1 Badan Singh in his statement has admitted that Prem Pal and Nathu (brother of the complainant) were main rival candidates in the election of village Pradhan in which Prempal was declared as winner. It is undisputed that appellants Balbir and Prempal are real brothers. In his statement under Section 313 Cr.P.C. Hemraj has categorically stated that he belongs to the party of Prempal and used to canvass for Prempal in the election of Pradhan. Though it is alleged by PW-1 Badan Singh and PW-2 Rajeshwar that on the exhortation of Hemraj and Balbir, Prempal opened fire on Mangli but it is nowhere mentioned in their statements that either of the two has even tried to assault or catch hold of Mangli. As per prosecution story, during the said altercation between the children, Hemraj took favour of Dannu while Rajeshwar was in favour of the other child Nirdosh and on account of it Rajeshwar and Hemraj both started fighting on the above said issue. Hence, false implication of Hemraj on the abovesaid ground cannot be ruled out. Balbir being the brother of Prempal can also be implicated in the case falsely on account of election rivalry between the families of appellant Prempal and complainant Badan Singh. It is also admitted by PW-1 Badan Singh that the place where a fight took place between the children is different from the place of occurrence of this case. On this ground also the presence of Hemraj and Balbir also becomes doubtful on the spot.

(13) Apart from it, as per admission of PW-1 Badan Singh parties started hurling abuses on each other which continued upto nearly nearly ten minutes. Moreover, the arguments between the appellants Hemraj and Rajeshwar were exchanged from their houses. This also doubts the presence of the Hemraj on the spot because as per admission made above during that period Hemraj was present in his house. Role of appellant Balbir till the actual commission of offence has also not been disclosed by the witnesses.

(14) It is argued on behalf of the appellant that no motive is assigned in the instant case by the prosecution. Hon'ble the Apex Court in Dhananjay Shanker Shetty Vs. State of Maharashtra AIR 2002 SC 2787 and in Lokesh Shivakumar Vs. State of Karnataka AIR 2012 SC 956 has clearly observed that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive loses practically all relevance. Moreover, it is well settled that merely because motive is neither alleged nor proved, the same would ipso facto not affect the prosecution case.

(15) It is next contended that Girish Pal minor son of Rajpal also received fire arm injuries in the instant case but the prosecution did not examine him. It is specifically admitted by PW-1 Badan Singh that the injured Girish Pal has been won over by the appellants and was not ready to depose correctly, therefore, he was not examined.

(16) It is admitted by both the witnesses of facts that Prempal opened fire on Mangli from a distance of nearly eight paces. It was a day of Holi festival and assailant was seen in the light of petromax lamp. Apart from it being Pradhan of the village, appellant Prempal is well known personality in the locality, therefore, his identification even for want of light would not be disputed. It is nowhere denied by the appellant Prempal that he did not own any DBBL gun. Three empty cartridges fired by a gun were recovered by the Investigating Officer in the instant case from the place of the occurrence, a recovery memo of which was duly prepared thereon. A specific question in the form of question no. 6 was asked from appellant Prempal with regard to the recovery of his DBBL gun from the arsenal shop of P.S. Mahajan and recovery of three empty cartridges from the place of occurrence alleged to have been fired from the said gun, accused/appellant Prempal simply replied it by stating that a false charge on the basis of false and fabricated papers has been leveled against him. It is nowhere denied by the appellant Prempal that he is not a licensee of a DBBL gun. Moreover, as per Exhibit Ka-14 Investigating Officer Surendra Singh Parhihar has recovered the said DBBL gun of Prempal from the said arsenal shop.

(17) Credibility of PW-2 Rajeshwar was challenged by the accused by adducing the evidence of DW-1 Shyam Pal Singh, clerk oath commissioner, Office of District Bar Association, Badaun. It is deposed by DW-1 that the said Rajeshwar has sworn in an affidavit on 1.6.2000 with the averments that he did not see the occurrence. The said affidavit is denied by Rajeshwar on oath and he further stated that he has never put his thumb impression over it. It is admitted by DW-1 Shyam Pal Singh that neither he knows the deponent personally nor any photograph of him is annexed on this affidavit. Apart from it, it is also not disclosed in the statement of DW-1 as to who has identified the thumb impression of deponent. The oath commissioner Shyam Pal Singh has also not been examined to prove the said affidavit. DW-1 did not sign the affidavit, therefore, the said affidavit cannot be presumed as proved. One more notary affidavit is available on record which is addressed to Superintendent of Police, Badaun wherein its deponent Rajeshwar had supported the prosecution version in toto. PW-2 Rajeshwar in his statement has admitted that the said affidavit was moved by him before Superintend of Police, Badaun.

(18) On the basis of the above discussion it is clear that the FIR in the instant case has been promptly lodged. On account of the day being Holi festival and the appellant Prempal a known figure in the village, his identity on the spot is unchallenged. The postmortem report coupled with the statements of Dr. Gangwar also confirmed the time of death as disclosed in the FIR. The weapon used in the incident as narrated in the FIR also corroborates the injuries received by the deceased. However, the presence of appellants namely, Hemraj and Balbir on the place of occurrence and their involvement in the offence is not proved beyond doubt. Therefore, it shall not be proper to uphold the conviction of appellants Hemraj and Balbir only on the basis of suspicion. Hence, they are entitled for benefit of doubt and also for acquittal. However, the act of Prempal is proved beyond reasonable doubt. Therefore, the appeal of appellant-Prempal is liable to be dismissed.

(19) Accordingly, the appeal of appellants Hemraj and Balbir (Criminal Appeal No. 1053 of 2003) is allowed. The appellants stand acquitted. They are on bail. Their bail bonds are cancelled and sureties are discharged. They are directed to submit their personal bonds along with two sureties each in the like amount to the satisfaction of the court concerned in compliance of Section 437-A Cr.P.C. within 15 days from the date of the judgment.

(20) So far as the appellant Prempal is concerned, no interference is required in the impugned judgment and order dated 28.2.2003. Accordingly, the appeal of the appellant-Prempal (Criminal Appeal No. 1564 of 2003) is dismissed. He is on bail. He be taken into custody immediately for serving the sentence.

(21) Let a certified copy of the order along with the lower court record be sent to the concerned Court for necessary action and compliance. Compliance report be sent to this court at the earliest.

BKM/-