Mohan And 2 Others vs State Of U.P.
2022 Latest Caselaw 9029 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 879 of 2018
 
Appellant :- Mohan And 2 Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Akhilesh Kumar Mishra,Abida Syed Ac,Kamlesh Kumar Tiwari,Surendra Kumar Chaubey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. Heard Shri Surendra Kumar Chaubey, learned counsel for the appellant-Mohan; Ms. Abida Syed, learned Amicus Curie for unrepresented litigants; and Shri N.K. Srivastava, learned counsel for the respondents. Perused the record.

2. During trial the main assailant, accused-Kedar has breathed last and the other three accused Mohan and two others faced the trial, all the accused have been convicted for commission of offence under Section 302 of Indian Penal Code and sentenced to life imprisonment. The accused were punished sentenced to life imprisonment with the aid of Section 34 of the IPC and fine of Rs.50,000/- each and default sentence of 6 months if they did not deposit the amount of fine.

3. The first Information report given on 13.10.1993 is to this effect that brother of the informant namely Ram Sevak son of Rupai was done to death on 12.10.1993 at about 11 p.m by firing. The brother of the informant was sleeping on his bed with his son and the informant was sleeping in his hut and suddenly on the noise of firing the informant woke up and went in the direction from where the noise had come. The informant and others went in the direction from where the noise had come and saw that Kedar was shooting at the brother of the informant who died and Kedar was shouting that, Mohan run, Ram Sevak is dead, till then Jangi son of Sajjan and Hansraj son of Ram Ratan came there and after hearing the shouting they had tried to catch the accused, but all four accused persons Kedar son of Gauri, Mohan son of Ram Shree, Budhiram son of Vanshraj and Daroga son of Ramdhani ran away from the place of occurrence.

4. According to the informant, accused Mohan and Kedar were carrying country-made pistol (Katta) and Budhiram and Daroga were carrying lathi in their hands. The informant taking some other people with him and the Chowkidar went to house of Kedar and Mohan as they believed that after committing the said act they might have reached home but they were not at home, they went again at the place of occurrence to take the injured to hospital.

5. The informant further informed that before 20 days there was auction in their village in which brother of the informant (namely deceased) and Kedar both had taken part but as the auction money was more, Kedar could not deposit the money or get the bid in his favour because of non depositing of money which bid was allotted to the brother of informant (deceased). From the said day Kedar and Mohan had grudge against the deceased. It is further alleged that accused Mohan had by force encroached on the land known as Kali Mata Temple and so the village people along with deceased had objected to this act of Mohan and, therefore, both the accused Kedar and Mohan in connivance with the other two accused had committed the act causing the death of brother of informant by firing gunshot from close range.

6. The information culminated into FIR and investigation was kept in motion. The statements of witnesses were recorded by investigating officer and after completing the investigation, the police filed the charge sheet which culminated into case being committed to the court of session as it was sessions triable case.

7. The accused on being summoned appeared before the learned Sessions Judge. The learned Judge framed the charge on 27.2.2000. The accused pleaded not guilty and wanted to be tried. During trial Kedar died and trial abated qua him.

8. The prosecution examined 10 witnesses who are as follows:

Rama Shanker

PW1

Jangi

PW2

Dheera

PW3

Ram Asrey

PW4

Rukmuddin @ Samsuddin

PW5

Tirath Ram

PW6

Ramakant

PW7

Chandrabhan Singh

PW8

Harihar Prasad

PW9

Dr. V.K. Dubey

PW10

9. In support of ocular version following documents were filed:

First Information Report

Ex.Ka.2

Written Report

Ex.Ka.1

Recovery Memo of blood-stained cloth pellets and Tickli

Ex. Ka. 7

Recovery Memo of blood stained and plain earth

Ex. Ka. 8

Postmortem Report

Ex.Ka.14

Panchayatnama

Ex.Ka.6

Charge-sheet Mool

Ex. Ka.5

Site Plan with Index

Ex. Ka.4

10. On the witnesses being examined and the prosecution having concluded its evidence, the accused were put to questions under Section 313 Cr.P.C.

11. It is submitted by the counsel for appellants that the FIR did not mention that Mohan was the person who had fired gunshot. The FIR was proved the evidence of PW-1 and corroborated by PW-2 that it was Kedar who had fired gunshot injuries which caused death of the deceased instantaneously. On the basis of First Information Report and deposition of doctor who performed the post mortem, it is submitted by learned counsel for appellants that Mohan accused is entitled to benefit of doubt.

12. Shri Chaubey, learned counsel for the accused has vehemently submitted that it is not the case of prosecution that Mohan had caused the firearm injuries. According to counsel for appellants, during the investigation 93 pellets were found and 5 dead cartridges were recovered. According to learned counsel for appellant, there is only one injury despite the fact that two injuries are mentioned to have been caused, but the post mortem report shows that there was one injury which reads as follows:

"(i) A fire arm wound of entrance measuring 2 cm x 2 cm x chest cavity-deep on the left side chest upper part just above Clavicular region, margins of wound inverted. Blood & scorching round the wound seen. Wound directed downward."

13. The learned trial Judge has convicted the accused on the basis of the evidence which according to the learned court below pointed out the figures towards the present accused. PW-3 has not witnessed the incident. PW-6 and PW-7 have given a different version, then that which were given in the statement under Section 161 of Cr.P.C. The witnesses were put to questions about dacoity in the said village which the witnesses have categorically denied. The witness has categorically mentioned that Kedar and Mohan had enmity with the deceased that is why he was done to death by accused. PW-2 has deposed that he came after hearing of the gun-fire and when he was going towards the residence of Ram Sevak, he heard the second fire and he run and went towards the residence of Ram Sevak, it is deposed that by PW-2 that the other people who had seen the accused with Kedar going away told him about this fact. PW-5 has corroborated to certain extent that the death occurred at 11 pm. He was sleeping on roof top, when came down he saw the deceased and he breathed last.

14. The prosecution before the trial judge had contended that minor contradictions should not be considered to grant acquittal. It is submitted that on minor contradictions, benefit of doubt cannot be granted to the accused who have committed the offence.

15. While considering the factual scenario, there are certain aspects which require to be noted, namely, the fire arm injuries were alleged to be fired by Kedar and not by Mohan; no firearm was recovered from Mohan; and there is no Forensic Science Lab report. The ocular versions of PW-1 and PW-2 does not see that it was Mohan who had fired any gunshot neither the evidence case to show that it was Kedar who had shot and convey to Mohan to flee from the seen of offence.

16. It is an admitted position of fact that no one had seen the firing. The role assigned to Daroga and Buddhiram is not spelled out in testimony of any of the witnesses and there are no injuries of lathi rather the stick on the body of the deceased.

17. While going through the evidence and the findings of fact, we fail to understand that there are no reasoning given by the learned Judge so as to come to the conclusion that accused were the perpetrators of the crime, the fact that no injuries were caused to child who was sleeping with deceased Ram Sevak though there were 93 pellets found also does not find any mention in the judgment. The evidence of PW-1 and PW-2 also does not inspire confidence. No blood was found on the cot where alleged firing was said to have taken place as is deposed by PW-1. The evidence also proves that there is political rivalry.

18. The evidence of witnesses is reproduced in Hindi in our ready reference so that this becomes crystal clear for us to decide whether the accused have been involved in the commission of offence or not:-

"विस्तर पर कोई खून नहीं गिरा था । मै झोपडी के अंदर नहीं सोया हुआ था । झोपड़ी के बाहर दो कदम की दुरी पैर सोया था । यही बात मैंने अपने तहरीर में भी लिखवाया था । और यही बात मैंने दरोगा जी को भी बताया था की झोपडी के बाहर दरवाजे पर सोया हुआ था । अगर मेरे तहरीर में यह बाद की "हम उसी से चार कदम उत्तर अपनी झोपडी में सोये थे" लिखा हो तो मैं इसकी वजह नहीं बता सकता । अगर दरोगा जी ने मेरे बयान में झोपडी से सोने वाली बात लिखा हो तो मैं उसकी वजह नहीं बता सकता । गोली की पहली आवाज सुनकर मैं चारपाई से उठकर गुमटी की आड़ में चला गयाविस्तर पर कोई खून नहीं गिरा था । मै झोपडी के अंदर नहीं सोया हुआ था । झोपड़ी के बाहर दो कदम की दुरी पैर सोया था । यही बात मैंने अपने तहरीर में भी लिखवाया था । और यही बात मैंने दरोगा जी को भी बताया था की झोपडी के बाहर दरवाजे पर सोया हुआ था । अगर मेरे तहरीर में यह बाद की "हम उसी से चार कदम उत्तर अपनी झोपडी में सोये थे" लिखा हो तो मैं इसकी वजह नहीं बता सकता । अगर दरोगा जी ने मेरे बयान में झोपडी से सोने वाली बात लिखा हो तो मैं उसकी वजह नहीं बता सकता । गोली की पहली आवाज सुनकर मैं चारपाई से उठकर गुमटी की आड़ में चला गया. दूसरा फायर करने के बाद जब जाने लगे तब मैंने शोर किया. उसके बाद तुरंत हंसराज व् जंगी आ गए तब हम तीनो लोक मुल्जिमान का पीछा करने लगे. उसके बाद चकरोड पक्काडकर के भाग गए. दौड़ते समय मुल्जिमान ने हम लोगो को जान से मरने की धमकी दीया था. कटे के पीछे मत पद्दो नहीं तो तुमको भी मर देंगे. तब हम लोग जान गए की मोहन केदार बुधिराम और दरोगा हैं. उसके बाद हम लोग थोड़ा पीछे हट गए तब मुल्जिम वह से भाग गए । दूसरा फायर करने के बाद जब जाने लगे तब मैंने शोर कियाविस्तर पर कोई खून नहीं गिरा था । मै झोपडी के अंदर नहीं सोया हुआ था । झोपड़ी के बाहर दो कदम की दुरी पैर सोया था । यही बात मैंने अपने तहरीर में भी लिखवाया था । और यही बात मैंने दरोगा जी को भी बताया था की झोपडी के बाहर दरवाजे पर सोया हुआ था । अगर मेरे तहरीर में यह बाद की "हम उसी से चार कदम उत्तर अपनी झोपडी में सोये थे" लिखा हो तो मैं इसकी वजह नहीं बता सकता । अगर दरोगा जी ने मेरे बयान में झोपडी से सोने वाली बात लिखा हो तो मैं उसकी वजह नहीं बता सकता । गोली की पहली आवाज सुनकर मैं चारपाई से उठकर गुमटी की आड़ में चला गया. दूसरा फायर करने के बाद जब जाने लगे तब मैंने शोर किया. उसके बाद तुरंत हंसराज व् जंगी आ गए तब हम तीनो लोक मुल्जिमान का पीछा करने लगे. उसके बाद चकरोड पक्काडकर के भाग गए. दौड़ते समय मुल्जिमान ने हम लोगो को जान से मरने की धमकी दीया था. कटे के पीछे मत पद्दो नहीं तो तुमको भी मर देंगे. तब हम लोग जान गए की मोहन केदार बुधिराम और दरोगा हैं. उसके बाद हम लोग थोड़ा पीछे हट गए तब मुल्जिम वह से भाग गए । उसके बाद तुरंत हंसराज व जंगी आ गए तब हम तीनो लोग मुल्जिमान का पीछा करने लगे। उसके बाद चकरोड पकड़कर के भाग गए। दौड़ते समय मुल्जिमान ने हम लोगो को जान से मरने की धमकी दीया था। कट्टे के पीछे मत पडो नहीं तो तुमको भी मर देंगे। तब हम लोग जान गए की मोहन केदार बबुद्धिराम और दरोगा हैं। उसके बाद हम लोग थोड़ा पीछे हट गए तब मुल्जिम वहां से भाग गये ।

जब मैं रत में शोर सुनकर राम सेवक के घर गया तो वहां मोहन नहीं था मेरे सामने बदमाशो को कोई खोजने भी नहीं गया था "

19. The provisions of Section 34 of the IPC are also not made out. Nobody has seen the role of Mohan. Only Rama Shanker and Hansraj who had given the name of Buddhiram and Daroga as held above, no incriminating instruments were found from their possession.

20. In our case the judgment of the Apex Court in State of Madhya Pradesh v. Gharkole, AIR 2005 SC 44 will not be applicable to the facts of this case as the judgment will also not help the prosecution and the learned trial Judge has brushed aside the judgment cited by counsel for the accused. Just because the informant was sleeping at four steps from the coat of the deceased, it is very doubtful as to he came after the second shot was heard by him. It was Kadar who had fired and nobody had seen Mohan at the time of the incident.

21. While discussing the parameters on which the accused can be convicted, the evidence and the decision of the court below has to be also evaluated .

22. We now come to the role of each of the accused-appellants. All the three accused-appellants were convicted for the offence punishable under Section 302 read with Section 34 of IPC. Section 34 of I.P.C. reads as under :

"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

23. In that view of the matter, we have no other option but to upturn the judgment of the learned Judge below and appeal is allowed accordingly.

24. The accused if not wanted in any other offence, we set free giving benefit of doubt to the accused.

25. This court is thankful to counsels for the parties for getting matter disposed of .

26. Rs.12,500/- as honorarium be paid to Ms. Abida Syed, who is appointed as Amicus Curie by the High Court Legal Services Committee.

27. Record and proceedings be sent back to the Court below forthwith, if any

Order Date :- 03.08.2022/A.N. Mishra