Ram Niwas And Others vs State Of U.P.
2019 Latest Caselaw 66 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Court No.54
 
Criminal Appeal  No. 1911 of 2007
 
1. Ram Niwas
 
2. Surjeet
 
3. Nokhey Lal					---- Appellants 
 
Vs. 
 
State Of U.P. 					---- Respondent
 

 
For Appellant			:	Shri Prabhat Pandey
 
For Respondent/State		:	Shri J.K. Upadhyay, A.G.A. 
 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J

(25.02.2019)

1. This appeal arises out of the impugned judgement and order dated 28.02.2007 passed by Special Judge (E.C. Act), Court No. 21, Shahjahanpur in Sessions Trial No. 1798 of 2004 (State vs. Nokhey Lal And Ors.) connected with Sessions Trial No. 1820 of 2004 (State Vs. Ram Niwas) and Sessions Trial No. 1821 of 2004 (State Vs. Surjeet Singh), convicting the accused-appellant no. 1 Ram Niwas and accused-appellant no. 2 Surjeet under Section 302/34 of IPC and Section 25 of the Arms Act, 1959, and accused-appellant no. 3 Nokhey Lal under Section 302/34 of IPC and sentencing the appellants Ram Niwas, Surjeet and Nokhey Lal to undergo imprisonment for life and further sentencing the appellants Ram Niwas and Surjeet to undergo three years rigorous imprisonment for the offence under Section 25 of the Arms Act and a fine of Rs. 1000/- each, and in default thereof, additional imprisonment of six months.

2. In the present case, there are two deceased namely Guddu and Yadram. It is said that they were cousin brothers. All the accused persons (Ram Niwas, Surjeet, Nokhey Lal and Khushi Ram) were the neighbours of deceased Guddu and Yadram and likewise two eye witnesses to the incident i.e. PW-1 Ram Pal and PW-2 Rajendra were also neighbours of the accused persons. On 28.08.2004 at about 07.30 p.m., the informant Ram Pal was sitting on the roof of his house and the two deceased, his son Guddu and nephew Yadram were standing along with PW-2 Rajendra opposite to his house. Acquitted accused Khushi Ram started abusing PW-2 Rajendra, which was objected by the two deceased and soon thereafter accused Nokhe Lal, acquitted accused Khushi Ram with their licensed gun and rifle and two other accused persons Ram Niwas and Surjeet with their country made pistols fired their weapons resulting instantaneous death of Guddu whereas Yadram sustained injuries. PW-1 Ram Pal and PW-2 Rajendra cried for help and they also challenged the accused persons upon which Shyam Lal, brother of PW-1 and other villagers reached there and seeing them, the accused persons came down from their roof, entered their house and closed the door. With the help of villagers and other persons, while taking the injured Yadram to police station, on the way, he succumbed to his injuries.

3. FIR Ex. Ka-18 was lodged on 28.08.2004 at 10.40 p.m. by PW-1 Ram Pal, father of the deceased Guddu against all the accused persons under Sections 302, 504 of I.P.C. and 30/27 of the Arms Act. A separate FIR was also registered vide Ex. Ka-20 on 01.09.2004 against accused Ram Niwas and Surjeet under Section 25 of the Arms Act.

4. Inquest on the dead bodies of the deceased Guddu and Yadram were conducted vide Ex.Ka. 22 and Ex.Ka. 23 respectively on 29.08.2004 and the bodies were sent for postmortem, which was conducted by PW-4 Dr. V.P. Singh on the same day.

5. As per Autopsy Surgeon, following injuries have been found on the body of deceased Guddu:

"1. Multiple firearm wound of entry over face of varying size 0.5 cm x 0.5 cm x muscle to bone deep and 0.5 cm x 0.4 cm x muscle to bone deep. Margin inverted.

2. Multiple firearm wound of entry over an area of 32 cm x 20 cm on upper part of front of chest of varying size 0.5 cm x 0.4 cm and 0.5 cm x 0.5 cm x muscle chest cavity deep. Margin inverted."

6. Following injuries have been found on the body of deceased Yadram:

"1. Multiple F/A wound of entry over forehead and face of varying size 0.5 cm x 0.5 cm x muscle deep and 0.5 cm x 0.4 cm x muscle deep. Margin inverted.

2. Multiple firearm wound of entry neck and upper part of front of chest including shoulder of varying size 0.5 cm x 0.5 cm x muscle to chest cavity deep and 0.5 cm x 0.4 cm x muscle to chest cavity deep. Margin inverted."

7. The cause of death of the deceased Guddu was due to shock and haemorrhage as a result of ante mortem firearm injury and the cause of death of the deceased Yadram was due to shock and haemorrhage as a result of firearm wound.

8. From the roof of the house of the accused persons, from where they fired their firearm weapons, country made pistols were seized vide Ex.Ka-17. The licensed weapons of accused Nokhey Lal and Khushi Ram were also seized from the place of incident where the two deceased were standing along with PW-2 Rajendra. Certain empty cartridges were also seized from the place of occurrence.

9. While framing charge, the trial Judge has framed charge against all the accused persons under Sections 302/34 and 504 of IPC, whereas against accused Surjeet charge was also framed under Section 25 of the Arms Act.

10. So as to hold the accused persons guilty, prosecution has examined five witnesses, whereas one defence witness has also been examined. Statements of the accused persons were also recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication.

11. By the impugned judgment, the trial Judge has acquitted accused Khushi Ram of all the offences, whereas other accused persons, namely Nokhey Lal, Ram Niwas and Surjeet have been convicted and sentenced as mentioned in paragraph no. 1 of this judgement. Hence this appeal.

12. Learned counsel for the appellants submits:

(i) that a very improbable story has been put forth by the prosecution, where it is alleged that from their roof, the accused persons caused firearm injuries to Guddu and Yadram, who were standing in front of their house on the ground floor.

(ii) that PW-2 Rajendra was also standing there and had any such incident taken place, it was Rajendra who ought to have sustained injuries first and not Guddu and Yadram.

(iii) that first informant, PW-1 Ram Pal, father of deceased Guddu and uncle of deceased Yadram was standing on his roof and in between the house of Ram Pal and that of accused persons, there is a wall and thus, question of seeing the incident by Ram Pal from his house, does not arise.

(iv) that the incident occurred at 7:30 pm. There is no evidence of availability of sufficient light and, therefore also, statements of PW-1 Ram Pal and PW-2 Rajendra, two alleged eye-witnesses to the incident, become doubtful.

(v) that statements of PW-1 and PW-2 regarding use of arms have not been proved by the prosecution considering the nature of injuries sustained by the two deceased. Learned counsel submits that as per autopsy surgeon, possibility of using one weapon by the assailants, cannot be ruled out and unless the prosecution proves as to which weapon has been actually used, resulting the death of two deceased, it cannot be said that all the three convicted accused persons caused firearm injuries to the deceased.

(vi) that as per PW-2 Rajendra, PW-1 Ram Pal was not present in the village and therefore, question of seeing the incident by PW-1 Ram Pal, does not arise.

(vii) that certain miscreants used to have their activities in the village, in particular, near the house of accused and the deceased persons and, therefore, possibility of two deceased being killed by them, cannot be ruled out.

(viii) that from the spot, blood stained soil, plain soil and certain pieces of bricks were seized, but no human blood has been found on that seized articles. Further, there is no finding that the simple soil and the soil found on the spot was the same.

(ix) that it is impossible that the cartridges were seized subsequently, had any such incident would have occurred, seizure would have been made in a prompt manner.

(x) that there is inconsistency in the statements of PW-1 Ram Pal and PW-2 Rajendra and considering the same, benefit ought to have been given to the accused persons.

(xi) that no independent witness has supported the seizure of articles and the weapons.

(xii) that nature of injuries sustained by the two deceased were of similar nature and the possibility that both the deceased were killed by one of the accused by one weapon, cannot be ruled out.

(xiii) that the injuries sustained by two deceased could have been caused only by country made pistol recovered from accused Surjeet and the injuries could not have been caused from a far place, which could be about 25 yards.

13. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:

(i) that PW-1 Ram Pal, eye-witness to the incident, lodged a prompt report. The incident occurred on 28.8.2004 at 7:30 pm, whereas the report was lodged at 10:40 pm. State counsel submits that distance between the place of occurrence and that of police station is about seven and half kms. and immediately after the incident, efforts were made to shift Yadram to the police station and thus, for all practical purposes, it can be easily said that the report was prompt.

(ii) that in the FIR itself, PW-1 Ram Pal has given the description of the entire story and has named all the accused persons as assailants.

(iii) that as per FIR itself, presence of PW-2 Rajendra, at the place of occurrence, has been duly proved by the first informant.

(iv) that PW-1 Ram Pal is consistent throughout the case that he was sitting on his roof and the two deceased were standing near his house along with PW-2 Rajendra and then gun shots were fired by the accused persons from their roof resulting the death of two deceased.

(v) that there is no report on record to suggest that on 28.8.2004, any dacoity was committed in the village or any miscreant has entered in the village. Even while cross-examining PW-1 Ram Pal and PW-2 Rajendra, no such question was put to them.

(vi) that even in respect of direction of the injuries, proper questions have not been put to the autopsy surgeon or any other witnesses and therefore, the defence cannot take any advantage of the same.

(vii) that while referring a chart duly obtained from internet, it has been argued that on 29.8.2004, it was a full moon light, whereas on 28.8.2004, the visibility was 97%. State counsel submits that the incident occurred in the open space and, therefore, the question of identification of the accused persons by PW-1 Ram Pal and PW-2 Rajendra cannot be questioned. He further submits that even otherwise villagers had brought the torch at the place of occurrence, thus it cannot be said that there was no sufficient light at the place of occurrence.

(viii) that the accused persons are neighbours of PW-1 Ram Pal and PW-2 Rajendra and, therefore, also identification of the accused persons becomes easy and cannot be doubted.

(ix) that it has nowhere stated by the autopsy surgeon that the injuries found on the body of two deceased were of only one weapon.

(x) that no question was put to the autopsy surgeon regarding the injuries qua the distance of the two places and, therefore, hypothetical argument will not sustain.

14. We have heard counsel for the parties and perused the record.

15. PW-1 Ram Pal is the first informant. He is also the father of the deceased Guddu. He has stated that he knew all the accused persons as they are his neighbours. On the date of incident, at about 7:30 pm, he was sitting on his roof whereas his son Guddu and nephew Yadram were standing opposite to his house along with PW-2 Rajendra. Acquitted accused Khushi Ram started abusing PW-2 Rajendra, which was objected by the two deceased and thereafter all the accused persons, who were carrying weapons in their hands, appeared and caused firearm injuries resulting the instantaneous death of Guddu and Yadram became unconscious. He and PW-2 Rajendra raised their cries and they also challenged the accused persons and upon hearing them, his brother Shyam Lal and other villagers reached there carrying torch with them. He has further stated that it was not a dark night, accused persons caused injuries from their roof and after the incident came down from their roof, entered their house and closed the door. Yadram, while being taken to the police station, succumbed to his injuries. Leaving Yadram as it is, PW-1 Ram Pal had gone to the police station and lodged the report. He states that as he was flourishing, it was not liked by the accused persons. In the lengthy cross-examination, this witness remained firm and reiterated again and again that he saw the entire occurrence. Questions were put to him that he could not have seen the incident from the roof as there was a wall in between his house and that of the house of accused persons, but he has clarified that the height of the wall was not as such, which could have obstructed the view. He has reiterated that the accused persons were known to him and, therefore, he could identify them easily. Here, it is relevant to note that minor contradictions in his statement are required to be ignored considering the fact that he is a rustic villager and his court statement was recorded after a lapse of many months from the date of incident. At last, he has again clarified that the incident was visible.

16. PW-2 Rajendra is other eye-witness to the incident, who was standing along with two deceased opposite to the house. He states that he was abused by acquitted accused Khushi Ram, which was objected by two deceased and then all the accused persons appeared carrying weapons in their hands and then they caused gun shot injuries to both the deceased. He states that he and PW-1 Ram Pal raised their cries and upon hearing them, villagers gathered there and then the accused persons came down from their roof, entered their house and closed the door. He further states that injured Yadram, while being taken to the police station, succumbed to his injuries. He states that after two-four days of the incident, he was in the village but he was disturbed and was running from one place to another. He further states that after fifteen days of the incident, his statement was recorded by the police. In the cross-examination, this witness also remained very firm so far as seeing the occurrence. He has stated that the moment, Yadram sustained injury, he hid himself. At one place he has stated that PW-1 Ram Pal was having a licensed gun.

17. PW-3 is the Investigating Officer of the case, has duly supported the prosecution case. He has proved various seizures including plain soil, blood stained soil, pieces of bricks, clothes, empty cartridges and weapons. He has categorically stated that PW-1 Ram Pal had informed him that at the time of occurrence of the incident, he (Ram Pal) was sitting on his roof.

18. PW-4 Dr. V.P. Singh conducted the postmortem on the body of two deceased. He states that two injuries found on the body of Yadram could have been caused by one firearm and likewise two injuries sustained by Guddu could have also been caused by one fire arm. No relevant question was put to this witness regarding the direction of the injuries or question as to whether such injuries could have been caused to two deceased from the roof whereas two deceased were standing on the ground floor. He merely states that level of injuries cannot be explained. He has further stated that exact distance from which the firearm was used cannot be determined.

19. PW-5 Mahesh Pal Singh is a police constable, has assisted during investigation and has merely proved the signature of S.H.O.

20. DW-1 Deen Dayal made an attempt to prove the fact that on the date of incident accused Nokhe Lal was with him and was not present at the place of occurrence.

21. Close scrutiny of the evidence makes it clear that on 28.08.2004, when the deceased Guddu and Yadram were standing along with PW-2 Rajendra, opposite to the house of PW-1 Ram Pal, acquitted accused Khushi Ram started abusing PW-2 Rajendra, which was objected by the two deceased and soon thereafter accused Nokhe Lal, acquitted accused Khushi Ram with their licensed gun and rifle and two other accused persons Ram Niwas and Surjeet with their country made pistols fired their weapons resulting instantaneous death of Guddu whereas Yadram sustained injuries. PW-1 and PW-2 cried for help and they also challenged the accused persons upon which Shyam Lal, brother of PW-1 Ram Pal and other villagers reached there and seeing them the accused persons came down from their roof, entered their house and closed the door. With the help of villagers and other persons, while taking Yadram to police station, on the way, he succumbed to his injuries. The incident has been duly witnessed by PW-1 Ram Pal, who has lodged the FIR and the incident has also been witnessed by PW-2 Rajendra.

22. We have no reason to disbelieve the statement of PW-1 Ram Pal and PW-2 Rajendra. Minor contradictions in the statements of these two witnesses are required to be ignored considering the fact that they are rustic villagers. Statement of PW-2 Rajendra that PW-1 Ram Pal was not present in the village is of no consequence because it is not clear as to what was the question, which was put to this witness and under what context. Only at one place he states that on the date of incident, Ram Pal was not having his licensed gun, as he was not in the village on that day and his house was locked but in several other places, in his statement, he has categorically stated and proved the presence of PW-1 Ram Pal. He has stated that he (PW-2) and Ram Pal (PW-1) immediately after the incident raised their cries and upon hearing the same, villagers reached there.

If the statement of PW-2 Rajendra is seen in entirety, it is apparent that he proves the presence of PW-1 Ram Pal and supports the statement of PW-1 and one sentence of PW-2 cannot be read in isolation.

23. We further find no substance in the argument of defence that the accused persons have been falsely implicated. PW-1 Ram Pal, at the time of occurrence was sitting on his roof, saw the entire occurrence, rushed to the spot, attended Yadram and after the death of Yadram rushed to the police station and lodged the report. While lodging the prompt FIR, there was no time for him to think of false implication of the accused persons. At least there is no evidence on record to suggest as to why Ram Pal would falsely implicate the accused persons. No proper evidence has been adduced by the defence that on the date of incident, any dacoity was committed in the village or certain miscreants have entered the house of Ram Pal and committed the murder of two deceased. Had any such incident of dacoity would have taken place, FIR ought to have been lodged either by Ram Pal, his family members or even by the accused persons, who were the neighbours of Ram Pal and the two deceased.

24. We further find no substance in the argument of the defence that the medical report does not support the prosecution case. PW-4 Dr. V.P. Singh has categorically stated that both the deceased died after sustaining firearm injuries and that the injuries sustained by the deceased Guddu could have been caused by one weapon and likewise injuries of Yadram could have also been caused by one weapon. Doctor has nowhere stated that the injuries of Guddu and Yadram both have been caused by a common weapon. Autopsy surgeon has not been subjected to proper cross-examination in respect of the direction of injuries sustained by the two deceased. No question whatsoever has been put to this witness as the accused persons have alleged to have fired from the roof while the two deceased were standing on the ground floor. We also find no substance in the argument of the defence that once on the same set of evidence once Khushi Ram has been acquitted, the other accused persons also deserve to be acquitted. If the co-accused has been acquitted on some wrong pretext, the appellate court is not bound to acquit the other accused persons.

25. We further find no substance in the argument of defence that the identification of the accused persons is doubtful. PW-1 Ram Pal and PW-2 Rajendra have categorically deposed that they saw the accused persons in the torch light. Furthermore, on 28.08.2004 the visibility was 97% as 29.08.2004 was the full moon light. This apart, accused persons are the neighbours of PW-1 and PW-2 and before committing the murder, they have also abused Rajendra while standing on the roof of their house. Thus, it was very easy for Rajendra to identify the accused persons. Moreover, law in this respect is well settled. In the case of Dalbir Singh v. State of Haryana; (2008) 11 SCC 425, it has been observed that "in a dark night ocular identification may be difficult in some cases but if a person is acquainted and closely related to another, from the manner of speech, gait and voice identification is possible." Earlier, the same issue has also been discussed in Anwar Hussain v. The State of U.P. and Anr. (AIR 1981 SC 2073), wherein it was observed that "even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms, from his voice, gaits, features etc."

26. In absence of independent witness supporting the seizure of weapon, we are not inclined to uphold the conviction of accused Ram Niwas and Surjeet under Section 25 of the Arms Act, they are entitled for benefit of doubt in respect of this offence.

27. Taking the cumulative effect of the evidence, we are of the view that the trial court was justified in convicting the accused-appellants under Sections 302/34 of I.P.C. Accordingly, their conviction is maintained.

28. The appeal is, accordingly, dismissed.

29. The appellants Ram Niwas, Surjeet and Nokhey Lal are already in jail, therefore, no further order is required.

 
Dated: 25.02.2019
 
RK/SK
 

 
                                  (Raj Beer Singh, J.)    (Pritinker Diwaker, J.)