Nitin Singh vs The State Of U.P.
2021 Latest Caselaw 5258 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(Per: Rajeev Singh,J.)
 
1.

Both the appeals have been filed by appellants namely Nitin Singh and Amit Singh against the judgment of conviction and order of sentence dated 29.03.2014, passed by Additional Sessions Judge-Court No.5, Faizabad in Session Trial No.31 of 2012, arising out of Case Crime No.552 of 2011, under Section 302 I.P.C. Police Station-Cantt, District Faizabad, whereby learned trial court has convicted the appellants, namely Nitin Singh and Amit Singh under Section 302 of the Indian Penal Code and sentenced them to undergo imprisonment for life and fine of Rs. 12,000/- each, in default of payment of fine to undergo additional imprisonment for one year. Both the appellants have filed two separate appeals. The aforesaid appeals are being decided by way of common judgment.

2. As per the prosecution story, on 22.03.2011 at about 10:00 p.m., the informant-Ashok Kumar Singh and Ram Kumar Singh riding on one motorcycle and Bhushan Veer Singh and Neeraj Singh riding on another motorcycle were returning from Faizabad to their village-Manapur, when they reached at Raipur canal bridge, they saw in the head light of their motorcycle that the appellants-Nitin Singh and Amit Singh were assaulting one person on the south lane of bridge with danda and axe. When the assailants saw that the bikers are approaching towards them, they left the person and ran away. Thereafter, informant and three other persons reached on the spot and found that the injured (Arun Kumar Singh) was real brother of the informant, they tried to move the injured, who was in pool of blood and found that he was dead. On the written complaint of Ashok Kumar Singh (informant), the FIR in question was lodged as Case Crime No.552 of 2011 (Exhibit K-7) and the same was entered into general diary. On the basis of FIR, the police officers reached on the spot and prepared the site plan and body was sent for postmortem, thereafter the postmortem was conducted on 23.03.2011 at 2:30 p.m.

3. The postmortem of the body of the deceased was conducted by Dr. B.M. Maurya, Medical Officer, who appeared before the trial court as PW-5. As per postmortem report, he found eight ante mortem injuries and opined that the cause of death is due to coma as a result of antemortem injury. The ante mortem injury mentioned in the postmortem report are as follows:-

" (i) Abraded contusion of size 0.7 cm x 0.5 cm present on right side of forehead 5.0 cm above the middle of right eyebrow.

(ii) Four incised wound of size 4.0 to 4.5 cm length bone deep and 0.8 to 1.0 cm width present in area of 9.0 cm x 6.0 cm on left occipital region and is 5.0 cm postero superior to left ear. Underlying bone is fractured.

(iii) Incised wound of size 6.0 cm x 1.0 cm present on right parietal region and is bone deep 8.0 cm above right ear.

(iv) Contusion size 5.0 cm x 2.0 cm present on tip of left shoulder joint.

(v) Abraded contusion of size 10.0 cm x 3.0 cm present on lateral aspect of left arm 5.0 cm below the tip of left shoulder joint.

(vi) Abraded contusion of size 3.0 cm x 0.5 cm present on exterior aspect of left forearm 6 cm below the elbow joint.

(vii) Abraded contusion of size 3.0 x 1.0 cm present on exterior aspect of right elbow joint.

(viii) Abraded contusion of size 3.0 x 1.0 cm present on medial aspect of right forearm 9.0 cm above the wrist joint."

4. The injury and external condition of the body of the deceased clearly reveals that death of the deceased is a case of homicide.

5. On the basis of site plan, recovery memo, postmortem report and statements of the accused persons as well as of witnesses recorded under Section 161 Cr.P.C., the Investigating Officer came to the conclusion that it was a case of homicide which was caused by the appellants, thereafter, charge-sheet was filed and case was committed before the Court of Sessions, which was registered as S.T. No.31 of 2012 and charge was framed against the appellants on 18.02.2012, under Section 302 I.P.C.

6. In support of prosecution case, five witnesses appeared before the trial court as Ashok Kumar Singh (eye witness) PW-1, Ram Kumar Singh (eye witness) PW-2, Sub-Inspector- Bacchu Singh PW-3, Constable-Surendra Kumar Singh-PW-4 and Dr. B.M. Maurya-PW-5.

7. The prosecution has relied on twelve documentary evidences as Exhibit:Ka-1 is the written complaint of Ashok Kumar Singh (PW-1), Exhibit Ka-2 is the site plan, Exhibit Ka-3 is the site plan in relation to the recovery of axe and rectangular wooden rod, Exhibit Ka-4 is the arrest memo of both the appellants, Exhibit Ka-5 is the recovery memo by which the trouser of accused-Amit Singh was taken into custody, Exhibit Ka-6 is the recovery memo of bloodstained and plain mud, and one cycle found from the site, Exhibit Ka-7 is the chick FIR, Exhibit Ka-7A is the inquest report, Exhibit Ka-8 is the D.G. of rapat No.54 dated 22.03.2011, Exhibit Ka-9 is the postmortem report, Exhibit Ka-10 is the charge-sheet, Exhibit Ka-11 is the police Form-13 and Exhibit Ka-12 is the sample seal.

8. After closure of the evidence of prosecution, the trial court took the statement of appellants under Section 313 Cr.P.C., in which their defence was of total denial. The appellants also produced two witnesses, namely Mansharam-(DW-1) and Pappu Lal-(DW-2).

9. After hearing, learned trial court had passed the judgment of conviction and order of sentence dated 29.03.2014, which is under challenge.

10. Heard, Sri Ajay Veer Singh along with Sri Atin Krishna, learned Counsel for the appellants and Sri Vishwas Shukla, learned A.G.A. for the State and perused the lower court record.

11. Learned counsel for the appellants submitted that the informant namely Ashok Kumar Singh (PW-1) deposed in his examination-in-chief that on 22.03.2011 at about 10:00 p.m. he was coming back to the village by one motorcycle along with Ram Kumar Singh, and Bhushan Veer Singh and Neeraj Singh on another motorcycle and when they reached to the bridge of Raipur Canal, then they saw in the head light of their motorcycle that the appellants namely Nitin Singh and Amit Singh were causing injury to one person on right lane of the bridge with axe and danda respectively. As the informant along with others approached near the appellants, then the appellants ran away towards the East side of the canal. Thereafter, informant (Ashok Kumar Singh) along with others went to the victim and found that the person lying on the ground was his brother, then he shook him and found that he was dead. They tried to catch the accused persons, but they disappeared. Thereafter, the informant went to the Police Station and made a written complaint, i.e., Exhibit Ka-1 and it was proved by him. The informant also deposed in his cross-examination that on the date of incident, he went to Hanuman Gadhi temple for offering his prayer. After visiting the temple, he was waiting for taxi and at the same time his brother Ram Kumar Singh also visited Hanuman Gadhi for offering his prayer, then he went along with his brother on his motorcycle at Naka, where Neeraj Singh and Bhushan Veer Singh met them, thereafter, they started journey together back to their village. Informant also deposed that he was the pillion rider and when he saw the incident, then he found that the person who was being assaulted was in bend position towards South West and his back was visual, due to which he could not identify the victim at the first instance that he was his brother, but he identified the assailants.

12. Learned counsel for the appellants submitted that as per the deposition of PW-1, deceased was in bend position, but no injury was found on his back, therefore, his statement is contradictory to the ante mortem injuries found in the postmortem report (Exhibit Ka-5) which was duly proved by Dr. B.M. Maurya (PW-5). He further submitted that the PW-1 deposed in his cross-examination that he went to the spot and oscillated the injured and also put the hand on the nose of the injured to verify whether he was breathing or not, then he found that there was no response from body of the injured and then he understood that he is no more. Learned counsel for the appellants further submitted that when the incident was seen by PW-1, he found that the victim was standing in bend position and within a minute, he reached to victim but he found him dead, which is highly improbable. Learned counsel for the appellants further submitted that the informant (PW-1) also deposed that when he touched his brother, then he found that he was dead, therefore, he made no attempt to provide any medical aid.

13. Learned counsel for the appellants submitted that the autopsy of the body of the deceased was conducted by Sri. B.M. Maurya (PW-5) on 23.03.2011 and he was examined before the court below and in his cross-examination, he deposed that after receiving the injuries, the injured may have gone into coma, but there is a possibility of him being alive for sometime and if he had been subjected to medical facilities in time, then there was a possibility to save his life. PW-5 also deposed that after death, the dead body remains warm about one hour, therefore, the statement of PW-1 who is claiming as an eye witness are contradictory to the injuries found on the body of the deceased. Hence, the testimony of PW-1 who is the real brother of the deceased being a relative and interested witness is not reliable and the trial court has wrongly considered the testimony without considering the aforesaid facts.

14. Learned counsel for the appellants submitted that PW-2 (brother of PW-1) deposed in his statement that on the date of incident his brother met him near Hanuman Gadhi, then both were returning to their village by one motorcycle and on another motorcycle, Bhushan Veer Singh and Neeraj Singh. On 22.03.2011 at about 10:00 p.m. when they reached near the place of incident, then they saw in the head light of motorcycle that on the South lane of the bridge, Nitin Singh and Amit Singh armed with axe and danda were beating one person, then Ashok Kumar Singh (PW-1) and Ram Kumar Singh (PW-2) along with Bhushan Veer Singh and Neeraj Singh reached on the spot, and seeing them the appellants ran away. Thereafter, they identified that the person who was being beaten was the real brother of Ashok Kumar Singh (informant) and he was having injury on his head and arm. In his statement he also deposed that on the North point of the bridge, one house of Bhujwa is situated, but his testimony was not taken by the prosecution and he also deposed that when he left his motorcycle and reached on the spot, then they saw that the victim was fallen down. Learned counsel for the appellants submitted that neither PW-1 nor PW-2 stated in their statement that the cycle of the deceased was lying on the spot and this fact was also not mentioned in the FIR. The inquest was prepared by PW-3-In-charge, Station House Officer-Bacchu Singh and he categorically mentioned in the inquest report that no article was found near the body. It is highly improbable that when the deceased was coming back from his duty neither he was having any footwear nor any cycle, as in the inquest prepared by PW-3, he has written in the aforesaid column as Nil, but later, the recovery of cycle has been shown by preparing a separate recovery memo which is contradictory, therefore, the testimony of PW-2 is not reliable, as he is an interested witness.

15. Learned counsel for the appellants submitted that the statement of PW-3 Bacchu Lal, (S.H.O) was recorded before the trial court in which he categorically stated that in the inquest report, he has not mentioned any article or weapon found at the place of incident. The relevant part of the deposition of PW-3 is reproduced as under:-

iapk;rukek ds dkye ua0 3 ^^lEifRr rFkk mu gfFk;kjksa dh lwph tks 'ko es ;k mlds ikl feys gSa vkSj muds O;oLFkkiu dh fof/k^^ ds lkeus ;fn dksbZ oLrq 'ko esa ;k 'ko ds ikl feyrh gS rks mldk bUnzkt iapk;rukek fd;k tkrkA pwafd eq>s LikV ij 'ko ds ikl vxy&cxy dksbZ oLrq ugha feyh Fkh blfy, mDr dkye ds lkeus eSus Nil fy[k fn;k x;k gSA LikV ij 'ko ds ikl vxy&cxy e`rd ds twrs vFkok pIiy ;k lSafMy] dye vkfn dqN Hkh ugha feyk FkkA

PW-3 has also stated that as per the prosecution case, relevant part of the trouser of appellant-Amit Singh was sent along with the blood stained soil, plain soil and weapon to FSL, but no report of FSL is available on record. He also stated that call detail reports of appellants, Ashok Kumar Singh (PW-1) & Ram Kumar Singh (PW-2) and deceased had not collected to get their respective location at the time of incident. He also deposed before the trial court that the investigation was concluded by Sub-Inspector Bharat Ram Singh and submitted the charge-sheet against the appellants. Learned counsel for the appellants submitted that in the statement of appellant, Amit Singh, recorded under Section 313 Cr.P.C., he has categorically stated that he was falsely implicated and a false recovery of trouser was made by the Investigating Officer, as the size of waist of alleged recovered trouser was 28 inches, but he was wearing the trouser of waist having 34 inches, therefore, prosecution story is not reliable.

16. Learned counsel for the appellants submitted that Dr. B.M. Maurya (PW-5) who conducted the postmortem was produced before the trial court and he stated that injury Nos.1, 4, 5, 6, 7 and 8 may be caused with the blunt object, injury nos.1, 4 and 7 may be caused from falling on the ground, and injury nos.2 and 3 may be caused with heavy or small cutting weapon. He also stated that after causing such injuries, there is a possibility that the victim remains alive in coma, in case the medical facilities were provided, then there was a possibility to save his life, but in the present case, PW-1 as well as PW-2 deposed that when the injured fell down, they reached to him within a minute and they found that he was not breathing. PW-5 also deposed that after death, body remains warm for a period of one hour. In such circumstances, the testimony of PW-1 and PW-2 are contradictory with the testimony of PW-5 and the medical evidence, therefore, the court below has wrongly convicted the appellants.

17. Learned counsel for the appellants submitted that after recording the statements of the appellants under Section 313 Cr.P.C, two co-villagers namely, Mansharam and Pappu Lal as DW-1 and DW-2 were produced before the trial court. Mansharam-DW-1, has categorically deposed that he was working at Goyal Medical Store along with the deceased and he also deposed that duty of the deceased was in the store from 9:00 a.m. up to 7:00 p.m. and duty of DW-1 was from 11 a.m. up to 8:30/9:00 p.m. DW-1 further deposed that on the date of incident the deceased left the medical store at about 6:45 p.m. and DW-1 left the medical store at 9:00 p.m as he had to deliver medicine at one place and he stayed there for about 15 to 20 minute, then he moved towards his village and at about 10:00 to 10:15 p.m., he crossed the Canal Bridge (alleged place of incident) and no one was present there and thereafter, he also delivered medicine in Purwa and reached his house at 11 p.m., then PW-1 Ashok Kumar Singh and PW-2 Ram Kumar Singh reached at his house and asked for Arun Kumar Singh (deceased), as he had not reached his house, then DW-1 informed them that Arun Kumar Singh (deceased) left the shop in the evening, therefore, he is not aware about him. The family members of DW-1 also informed that before DW-1 returned home, Ashok Kumar Singh (PW-1) and Ram Kumar Singh (PW-2) visited the house of DW-1 asking for Arun Kumar Singh (deceased). Mansharam-DW-1 was cross examined by the Government Counsel and the Government counsel failed to dislodged the evidence of DW-1. Pappu Lal-DW-2 is also the resident of the same village residing in front of the house of DW-1, he deposed that at about 11:00 p.m. Ashok Kumar Singh PW-1 and Ram Kumar Singh-PW-2 came to the house of DW-1 and asked about Arun Kumar Singh (deceased), then they were informed by DW-1 that the deceased left the shop in evening, but he is not aware about his current location. Ashok Kumar (PW-1) and Ram Kumar Singh (PW-2) also asked Pappu Lal (DW-2) about the whereabouts of the deceased, but he showed his unawareness about the same. Pappu Lal (DW-2) was also cross examined by Government Counsel and he categorically deposed that in the night he had no information about the death of Arun Kumar Singh (deceased) and on the next morning, it came into his knowledge that Arun Kumar Singh (deceased) was killed. Learned counsel for the appellants has submitted that the trial court had failed to test the deposition of DW-1 and DW-2. As DW-1 has categorically deposed that he crossed Raipur Canal Bridge at about 10:00 to 10:15 p.m., but as per the prosecution story, the incident was taken place at 10:00 p.m., therefore, the court below has wrongly convicted the appellants, as no one has seen the incident and due to inimical relations, the appellants were falsely implicated. Therefore, the appeal is liable to be allowed.

18. On the other hand, learned counsel for the State supported the view taken by the trial court and submitted that having regard to the facts and circumstances the trial court assessed in proper perspective and delivered a reasoned judgment. The conviction and sentenced passed against the accused is liable to be affirmed and the finding of the trial court does not require interference of this Court. Learned A.G.A further submitted that the F.I.R. was lodged by Ashok Kumar Singh (PW-1) and supported the prosecution story and stated that alleged incident was taken place at 10:00 p.m., thereafter, chik FIR was prepared at the same time. In-charge Station House Officer-Bacchu Singh (PW-3) reached on the spot and prepared the inquest and the body was sent for postmortem which was conducted by Dr. B.M. Maurya (PW-5). The ante mortem injuries corroborated with the prosecution story as deposed by PW-1 and PW-2. The recovery memo was prepared by PW-3 and he also recovered the trouser of Amit Singh. The weapon and trouser was sent for forensic examination. He also submitted that the statement of DW-1 and DW-2 was rightly considered by the court below, therefore, the appeal is liable to dismissed.

19. Considering the arguments of learned counsel for the parties and going through the record, it is evident that Ashok Kumar Singh (PW-1) and Ram Kumar Singh (PW-2) categorically deposed that the incident has taken place at 10:00 p.m. and they reached on the spot and found that Nitin Singh armed with axe and Amit Singh armed with danda were beating one person who was in bend position and after putting their motorcycles on stand, they rushed to the place of incident, then the appellants ran away and within a minute, they reached to the victim and found that the victim was the brother of PW-1, then, PW-1 shook the body and found that he was dead. Thereafter, they chased the appellants, but the appellants ran away. It is also evident that a written complaint was lodged by PW-1 at the police station, then In-charge, Station House Officer-Bacchu Lal (PW-3) reached on the spot and prepared the inquest, but he did not mentioned any cycle or footwear in the inquest report and he categorically mentioned the same in the column of inquest report in which it has to be mentioned that the 'articles and arms' found near the body as Nil and thereafter, one recovery of cycle has been shown. It is also evident that PW-1 has stated that he saw the victim in a bend position, but no such injury is found on the back of the deceased. It is also evident that Mansharam (DW-1) and Pappu Lal (DW-2) were also examined and DW-1 has categorically stated that on the date of incident at about 6:45 p.m, Arun Kumar Singh (deceased) left the shop and he also stated that while crossing the bridge at about 10:00 to 10:15 p.m., he found no person and there was pin drop silence, thereafter, he delivered some medicines to the adjoining Purwa and at about 11:00 p.m. he reached his house, where his family members informed him that PW-1 and PW-2 visited the house asking for Arun Kumar Singh (deceased). At the same time, they came again and asked about Arun Kumar Singh (deceased) and informed that till now Arun Kumar Singh (deceased) has not come home and they asked the same from DW-2 and then they left. DW-1 and DW-2 were duly cross examined by the Government Counsel, but the prosecution failed to falsify their version that at 11:00 p.m., PW-1 and PW-2 came to the house of DW-1 and asked about Arun Kumar (deceased).

20. It is also evident that appellant-Amit Singh had categorically stated in his statement recorded under Section 313 Cr.P.C. that he wear trouser of 34 inches of waist, but the alleged recovered trouser was of 28 inches of waist, which is fabricated and no report of FSL is available and the weapon was also not produced before the court and the trial court failed to deal with the contents mentioned in statement under Section 313 Cr.P.C., as the enmity has been shown by the prosecution with the appellants. It is also evident from judgment of the trial court that the trial court has not considered the fact that DW-1 deposed before the trial court that at 11:00 p.m. PW-1 and PW-2 came to the house of DW-1 and asked about Arun Kumar Singh (deceased) and this fact was also not considered that at about 10:00 to 10:15 P.M., DW-1 passed through the bridge and no one was there.

21. The evidence of PW-1 Ashok Kumar Singh (informant) and PW-2 Ram Kumar Singh who are the chance witnesses and claimed themselves to be the eye witnesses of the incident. Their evidence does not appear to be reliable and trustworthy particularly the manner in which the incident has taken place in the night which does not found corroborated with the medical evidence, therefore, prosecution story creates doubt and benefit of doubt goes in favour of the appellants. Hence it would be unsafe to uphold the conviction and sentence of the appellants as has been ordered by the trial court.

22. As in the case of Amar Singh Vs. State (NCT of Delhi) reported in 2020 SCC online SC 826, the Hon'ble Apex Court is of the view that ordinarily Court are reluctant to disturb the concurrent view, but if there are inherent improbabilities in the prosecution story with ordinary course of human nature, then it would be safe not to convict the appellants merely on the testimony of the alleged eye witnesses. The relevant paragraph Nos.29 to 32 of the judgment reads as under:-

"29. In the facts and circumstances of the case this was serious lapse on the part of the investigating officer. Though normally minor lapses on the part of the investigating officer should not come in the way of accepting eye witness account, if otherwise reliable. But in the circumstances of the case at hands where the conduct of sole eye witness is unnatural and there are various other surrounding circumstances which make his presence at the site of incident doubtful, such a lapse on the part of the investigating officer assumed significance and is not liable to ignored.

30. While emphasizing the importance of eliciting the opinion of medical witness in such circumstances this Court in the case of Kartarey v. State of U.P. has observed as under:--

"We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically on this point, for the proper administration of justice particularly in a case where injuries found are forensically of the same species, example stab wound, and the problem before of the Court is whether all or any those injuries could be caused with one or more than one weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration of the course of justice".

31. The same has been again asserted by this Court in Ishwar Singh v. State of U.P. by observing as under:--

"It is the duty of the prosecution, and no less of the Court, to see that the alleged weapons of the offence, if available, is shown to the medical witness and is opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so sometimes, cause aberration of the course of justice. On the basis of the evidence on record it is difficult to say whether the injury to the deceased was caused by the knife with a broken tip which was ceased. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye witness "cannot be accepted at its face value", as observed by this Court in Mitter Sen v. State of U.P."

32. The conviction of the appellants rests on the oral testimony of PW-1 who was produced as eye witness of the murder of the deceased. Both the Learned Sessions Judge, as well as High Court have placed reliance on the evidence of PW-1 and ordinarily this Court could be reluctant to disturb the concurrent view but since there are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the incorroborated testimony of the sole eye witness. Similar view has been taken by a Three Judge Bench of this Court in the case of Selvaraj v. The State of Tamil Nadu. Wherein on an appreciation of evidence the prosecution story was found highly improbable and inconsistent of ordinary course of human nature concurrent findings of guilt recorded by the two Courts below was set aside."

23. Thus, in view of the forgoing discussion, we are not able to appreciate the reason given by the Courts below for convicting the appellants for the alleged offences. On the contrary, we are of the considered view that prosecution has failed to establish the guilt of the accused beyond reasonable doubt. The incident does not appear to have happened in the manner in which the prosecution wants the Court to believe it had happened.

24. In view of the discussion made hereinabove, the appellants become entitle for the benefit of doubt and appeal deserves to be allowed and is hereby allowed.

25. The Criminal Appeal No.669 of 2014 and Criminal Appeal No.540 of 2014 on behalf of appellants namely, Amit Singh and Nitin Singh stand allowed. They are said to be in jail. They shall be released forthwith, if not wanted in any other criminal case.

26. It is further directed that the appellants namely, Amit Singh and Nitin Singh shall furnish bail bond with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.

27. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.

28. 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, before the concerned Court/Authority/Official.

29. 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.

(Rajeev Singh,J.)      (Ramesh Sinha,J.)