Guru Dev Singh vs State Of U.P.
2021 Latest Caselaw 2869 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on  25.1.2021
 
Delivered on 23.02.2021
 
Court No. 86 
 

 
Case :- CRIMINAL APPEAL No. - 4658 of 2018
 
Appellant :- Guru Dev Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sarvesh Kumar Dubey
 
Counsel for Respondent :- G. A.
 

 
Hon'ble Subhash Chand,J.

1. The instant Criminal Appeal has been preferred on behalf of the appellant-convict Guru Dev Singh against the judgment and order dated 04.08.2018 passed by the Special Judge(Dacoity Affected Area)/ Third Additional Sessions Judge, Farrukhabad in Special Sessions Trial No. 14 of 1995 (State Vs. Gurubachan Singh and others) arising out of Case Crime No. 212 of 1995 under Sections 394, 325 read with 34 I.P.C., P.S. Kotwali Fatehgarh, District Farrukhabad whereby the learned trial court while acquitting the appellant for the offence under Section 394 of I.P.C, convicted him for the offence under Section 323 and 325 of I.P.C and was given benefit of the probation to maintain peace for a period of further two years and also to maintain a good conduct and not to indulge in any criminal activities and was also directed to furnish a personal bond of Rs. 50,000/- and two sureties of the like amount within a period of one week before the Probation Officer. It was also further directed that if during the probation period the appellant is found involved in any offence or is convicted in some other offence he would have to appear before the court for punishment.

2. The brief facts giving rise to this criminal appeal are that the informant Nirmal Singh moved a written information with the police station Kotwali Fatehgarh on 24.04.1995 with these allegations that the son of the informant's aunty (bua) i.e Ravindra Singh was to appear before the court in a case in which dated was fixed for his appearance. The informant along-with Premsagar reached to the court campus to meet Ravindra Singh and after having meeting with Ravindra Singh at 4:30 'O' clock, they left the court campus to reach their village. At 7'O' clock after the culvert in front of the Rakha college Gurubachan Singh, Guru Dev and Durvijay @ Natiya all sons of Lakhan Singh resident of village Rampura alighted from the jeep and cordoned to the informant and all alarmed him to attack because of doing pairvy of Ravindra Singh who is accused in the murder of their brother Brijendra Pandit. All the three accused began to beat him with danda. Gurubachan damaged the H.M.T Vijay wrist watch of the cost of Rs. 450/- of the informant. Durvijay @ Natiya snatched Rs. 500/- from the left pocket of his shirt while Guru Dev snatched Rs. 200/- from the right pocket. On making noise by informant and Premsagar many persons of the locality attracted there, all the three accused persons fled away from the scene. The informant sustained injuries. On this written information case crime no. 212 of 1995 was registered under Section 394 of I.P.C against the accused Gurubachan Singh, Guru Dev and Durvijay @ Natiya with the Police Station Kotwali Fatehgarh. The Investigating Officer after having concluded the investigation filed charge sheet against all the three accused persons under Section 394 of I.P.C.

3. The court of Special Judge (Dacoity Affected Area)/ IIIrd Additional Sessions Judge, Farrukhabad took cognizance on the charge-sheet and summoned the accused persons. The charge was framed under Section 394 of I.P.C on 01.05.2007 against all the accused persons. Thereafter on 31.01.2012 charge was framed against all the accused persons under Section 325 read with 34 I.P.C also. The charge framed against the accused persons were read over and explained to them. All the accused persons denied the charge and claimed for trial.

4. On behalf of prosecution to prove the charge against the accused persons in documentary evidence adduced the written information Exhibit Ka-1, injury report of Nirmal Singh Exhibit Ka-2, Supplementary report of Radiologist Exhibit Ka-3, site plan of the place of occurrence Exhibit Ka-4, the charge-sheet Exhibit Ka-5, chick F.I.R . Exhibit Ka-6, G.D entry in regard to registering case crime Exhibit Ka-7. Report in regard weeding out the original G.D Exhibit Ka-8 and X-Ray plate material Exhibit Ka-1.

In oral evidence examined P.W-1, Premsagar, P.W-2, Yogendra Singh, P.W-3, Nirmal Singh, P.W-4, Dr. S.C.Tiwari, P.W-5, Head Constable 96 Rajesh Singh, P.W-6, S.I Charan Singh Sharma.

5. The statement of accused persons under section 313 Cr.P.C., was recorded in which all the accused persons denied the incriminating circumstances in the evidence against them and stated that the aunty (bua) of Nirmal Singh was married in their village and her sons Surendra Singh, Devendra Singh and Ravindra Singh had committed murder of their brother Brijendra Singh @ Pandit and to avert the evidence in that case, they have been falsely implicated them in this case.

6. On behalf of prosecution in defence evidence examined D.W-1, Jagdish.

7. The learned trial court after hearing the contentions of the learned counsel for the parties passed judgement on 04.08.2018 acquitting Gurubachan, Durvijay Singh @ Natiya from all the charges framed against them and also acquitting Guru Dev Singh from charge under Section 394 of I.P.C; but held him guilty for the charge under Section 323 and 325 of I.P.C and inspite of passing sentence released the convict/appellant Guru Dev Singh on probation.

8. Aggrieved from the impugned judgment and conviction order dated 04.08.2018, this criminal appeal has been preferred on behalf of the appellant-convict Guru Dev Singh on the ground that the impugned judgment of conviction is against the evidence on record the trial court has not applied the judicial mind in passing the impugned judgment. The evidence on record was not properly appreciated by the court below and the conviction of the appellant is against the weight of the evidence on record. The impugned judgment was based on illegal, perverse and improper finding which is bad in the eye of law. Accordingly, prayed to allow this Criminal Appeal and to set aside the impugned judgment of conviction of the appellant.

9. I have heard submissions made by the learned counsel for the appellant and also learned A.G.A. for the State, and perused the materials brought on record.

10. On behalf of prosecution to prove the prosecution case in ocular evidence examined P.W-3, Nirmal Singh, victim and two eye witnesses P.W-1, Prem Sagar, P.W-2, Yogendra Singh.

P.W-3, Nirmal Singh in his examination-in-chief supports the F.I.R version and also proves the written information Exhibit Ka-1, that the written information was also given by the victim himself with the police station concerned. In cross-examination this witness says that Brijendra Singh @ Pandit was murdered on 24.10.1994. The case in regard to his murder was registered against his cousin brothers Ravindra Singh, Surendra Singh, Devendra Singh and his both sons, Harpal and Yashpal Singh.

At the time of occurrence Ravindra Singh was in jail in case of murder of Brijendra Singh @ Pandit. On the date of occurrence he left village Rampura at 11 'O' clock and came by cycle to meet Ravindra Singh in the court. Witness Premsagar also accompanied him at the same time.

Nothing was looted from Premsagar and no injury was sustained by Premsagar. Premsagar did not make any effort to rescue him, he was witnessing the occurrence standing at some distance. It is wrong to say that he sustained injuries due to collision with rickshaw. He was lying by the side of road, thereafter, Premsagar and rickshaw-puller took him up. None of the passersby except Premsagar came to take him up from the road side.

The injuries sustained by him were caused by the accused persons inflicted with danda.

As the accused persons snatched rupees out of his pocket he resisted and both the pockets of his shirt were torn.

11. P.W-1, Premsagar who is the eye witness of the occurrence as per prosecution case, in his statement says that on 24.04.1995 he did not accompany Nirmal Singh to reach kutchary, Fatehgarh for meeting with Ravindra Singh, no occurrence took place in his presence in front of Rakha College near by culvert. None of the accused Guru Dev Singh, Gurubachan Singh, Durvijay @ Natiya caused the alleged occurrence in his presence. This witness was declared hostile by the prosecution and in cross-examination this witness denied the statement under Section 161 Cr.P.C given to the Investigating Officer. In cross-examination by defence, this witness says that on the date of occurrence he was present at his house, on the next day he came to know that Nirmal Singh has sustained injuries because of collision with rickshaw.

12. P.W-2, Yogendra Singh, in his statement says he had heard that Nirmal Singh had been beaten by the accused persons, his wrist watch and rupees was also snatched away. In cross-examination this witness says he had not heard this rumour in the village that Gurubachan Singh, Gurudev Singh and Durvijay @ Natiya had beaten Nirmal Singh and had snatched his wrist watch and rupees. Rather, he had heard that Nirmal Singh while going by his cycle collided with rickshaw and sustained injures and a false report in regard to marpeet and loot was lodged by him against the accused persons. No statement was recorded of him by the Investigating Officer.

13. So far as the medical evidence is concerned P.W-4, Dr. S.C. Tiwari has proved the injury report of injured Nirmal Singh Exhibit Ka-2 in which five injuries are mentioned. Injury no-1 is traumatic swelling, injury no. 2 is pain, injury no.3 is contusion, injury no. 4 is traumatic swelling and injury no. 5 is lacerated wound. This witness also opines that all the injuries except injury no. 2 were simple in nature. Injury no. 2 was kept under observation and was referred for X- Ray. This witness also says that these injuries are likely to be caused in road accident, if the cycle of the rider collides with rickshaw. This witness also proves the Supplementary report of injured as Exhibit Ka-3 and also X-Ray as material Exhibit-1 in which fracture of fibula of left leg is shown.

14. The trial court has convicted Guru Dev Singh alone for the charge under Section 323 and 325 of I.P.C; while acquitting from the charge of Section 394 of I.P.C. There is no finding of the trial court in segregating the evidence on record for convicting the appellant for the offence under Section 323 and 325 of I.P.C while acquitting for the offence of Section 394 of I.P.C. Offence of Section 394 of I.P.C itself involves causing of hurt at the time of committing theft or extortion. Therefore, the impugned judgment passed by the court below bears infirmity and same needs interference.

15. The prosecution case in hand is based on the evidence of interested witness and independent eye witnesses. It is the well settled law that it is the quality of evidence which required to be judged by the court to place reliance on the statement.

It is also the established principle of law that evidence of witness cannot be discarded on the ground that he is interested witness. It is also equally the settled principle of law that evidence of interested witness should be scrutinized with utmost care. It can be relied if it is cogent, credible and trustworthy.

The Hon'ble Apex Court held in Harbir Singh Vs, Sheeshpal (2016) 16 SCC 418 has held as under:-

"18. Further the High Court has concluded that these witnesses were interested witnesses and thin testimony was not corroborated by the independent witnesses. We are fully in agreement with the reasons recorded by High Court in coming to the conclusion."

Hon'ble Apex Court in Raju Vs. State of Tamil Nadu (2012) 12 SCC 701 held as under:-

"20. The first contention relates to credibility of P.W-5 Srinivasan. It was said in this regard that he was related witness being the elder brother of Veerppan and son of Marudayi, both of whom were victim of homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore P.W-5 Srinivasan) had some enmity with the Appellant. It was said for both reasons, his testimony lacks credibility."

In Mahavir Singh Vs. State of Madhya Pradesh (2016) 10 SCC 220 Hon'ble Apex Court has held as under:-

"18. It is settled principle that evidence of interested person needs to be scrutinized with utmost care. It can be relied if the evidence has ring of truth to it, is cogent credible and trustworthy. We may also refer the chance witness also. The evidence of chance witness is admissible in India, yet the chance witness has to reasonably explain the presence at particular point moreso when his deposition is assailed being tainted.

19. A contradictory testimony of an interested witness cannot be usually be treated as conclusive."

16. The testimony of victim P.W-3, Nirmal Singh is not corroborated with the testimony of eye witnesses P.W-1, Premsagar and P.W-2, Yogendra Singh. Both the eye witnesses say that no alleged occurrence was caused by the accused persons and the injured Nirmal Singh had sustained injuries in accident because of colliding with rickshaw at the road and had falsely implicated the accused persons in this case due to the animosity. The animosity of causing murder of brother of accused persons of this case i.e Brijendra Singh alias Pandit by the sons of the aunty (bua) of Nirmal Singh is admitted to the informant/victim P.W-3, Nirmal Singh himself. As such the testimony of P.W-3, Nirmal Singh who is interested witness, cannot be relied being not corroborated with testimony of independent eye witnesses.

17. Aftermath reappreciation of evidence on record, this criminal appeal is hereby allowed. The impugned judgment passed by the trial court in Special Sessions Trial No. 14 of 1995 (State Vs. Gurubachan Singh and others) arising out of Case Crime No. 212 of 1995, P.S. Kotwali Fatehgarh, District Farrukhabad is set aside to the extent of conviction of appellant for the offence under Section 323 and 325 of I.P.C. Let the compliance of Section 437-A of Criminal Procedure Code be made by the appellant to the satisfaction of trial court concerned.

18. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.

19. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked.

20. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

(Subhash Chand, J.)

Dated: 23.02.2021/PS