Naubat And Another vs State Of U.P.
2022 Latest Caselaw 8331 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Judgement reserved on 15.07.2022
 
						            Judgement delivered on 28.07.2022
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 5415 of 2009
 

 
Appellant :- Naubat And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Awadhesh Kumar Srivastava,Dr. Arun Srivastava,R.B.Maurya,Vinay Prakash Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Deepak Verma,J.

Heard learned counsel for the appellants, learned AGA on behalf of the State and perused the record.

The instant criminal appeal has been preferred against the judgment and order dated 27.08.2009 passed by Upper Session Judge, Fast Track Court No.1 Bareilly in Session Trial No.1611 of 1999 (State vs. Naubatram and others) convicting and sentencing the appellants under section 302 read with Section 34 I.P.C. to undergo life imprisonment with fine of Rs.10,000/- each, in case of default in payment of fine, the appellants to undergo further one year additional rigorous imprisonment; convicting and sentencing the appellants also under section 452 I.P.C. to undergo three years rigorous imprisonment and fine of Rs.2,000/- each, in default of payment of fine, the appellants to undergo further three months additional rigorous imprisonment; also convicting and sentencing them under section 323 read with section 34 I.P.C to undergo for six months rigorous imprisonment and fine of Rs.1,000/- each. In case of default to pay fine, the appellants to undergo further additional one month rigorous imprisonment to each. All the sentences to run concurrently.

First information Report lodged by informant Dillidhar dated 21/22.06.1999 alleging that the informant's brother-in-law Balakram s/o Mohan, r/o Jua Jawaharpur died of illness in the month of Fhagun. Sukkhi Devi wife of Balakram and Balakram were issueless. Balakram had left 24 bigha land and one house over which Sukkhi Devi's (deceased) name was mutated. Since brothers of Balakram namely Dalchand, Naubatram, Bhoopram and Nanhey, r/o village Karaura, Police Station Meerganj were trying to get possession over the property left by brother-in-law of the informant, therefore, he started living with his sister Sukkhi Devi for her protection. When Sukkhi Devi (deceased) opposed the act of the accused-appellants, they lodged civil suit, resulting in enmity. On the intervening night of 21/22 around 12.30 a.m., when deceased Sukkhi Devi, informant and his nephews Kalicharan and Guddu were sleeping, Dalchand, Naubatram and Bhoopram r/o Karaura and Tularam Maurya r/o Jawharpur came to the house of deceased with Tamancha and fired at Sukkhi Devi. Informant and his nephew Kalicharan and Guddu woke up on account of firing and tried to apprehend the accused and in the process Kalicharan was hit with the butt of a pistol on the hand and head. The accused fled while firing. Bhoopram received fire arm injuries on account of firing by his companions, fell unconscious in the hut of Naubatram. After sometime, he succumbed to injuries.

Informant written report dated 21/22.06.1999 lodged at 3.45 a.m. marked as Exhibit Ka-1, Chik First Information Report Exhibit Ka-3, was entered in the G.D. Exhibit Ka-4, by constable clerk Suresh Chand. Injured Kalicharan was medically examined on 22.06.1999 by Dr.Ashu Kumar Agarwal and injury report was marked as Exhibit Ka-2.

Inquest of deceased Sukkhi and Bhoopram were conducted on the direction of Sudarshan Chandra Katoch, SHO, Investigating Officer by Head Constable Itwari Lal and were marked Exhibit Ka-14 & 15. The dead bodies of deceased Sukhi and Bhoopram, challanlash, report of R.I., report of CMO, photolash have been marked as Exhibit Ka-16 to Ka-20 and Exhibit Ka-21 to Ka-25.

Postmortem of Smt.Sukkhi Devi and Bhoopram was conducted by Dr.V.K.Yadav on 22.06.1999 at District Hospital Bareilly and the reports were marked as Exhibit Ka-32 and Ka-33. The reports read as follows:-

Post mortem done on the dead body of Bhoopram, aged 35 years, s/o Mohan Lal, r/o Karora, Police Station Meerganj, District Bareilly.

External Examination-

Average build. RM present upper and lower limb eyes. Mouth partially open.

1. Multiple fire arm wound entry in an area of 20 c.m.x15 c.m. on the right side of Abdomen and lower part of chest measuring 0.4x0.4xmuscle to county deep. No blackening present 9 c.m. below the right nipple.

Cause of death - Shock and haemorrhage due to fire arm injury.

Post mortem done on the dead body of Smt.Sukkhi, aged about 40 years, w/o Balakram, r/o Jua Jawaharpur, Police Station Shergarh, District Bareilly.

External Examination-

Average built. RM present, eyes & mouth partially open.

1. Firearm wound of entry in an area of 15 c.m.x 0 c.m on the upper part of midline of chest with central whole 2 c.m.x 2 c.m. Blackening present around the whole x cavity deep.

2. A firearm wound of entry 2 c.m.x 2 c.m. on underline of sic lower part sic# Margins inserted. Blackening sic.

3. A lacerated fire arm wound of entry 8 c.m.x muscle deep on the front of right forearm just below elbow present. Blackening present.

4. A fire arm wound of entry 6 c.m.x 4 c.m.x muscle deep on frontal aspect of forearm 8 c.m. above wrist joint.

Cause of death - Shock and haemorrhage due to fire arm injury.

Cause of death - Shock and haemorrhage due to fire arm injury.

Investigation was conducted by Sudersan Chandra Katoch, SHO, Shergarh. On 22.07.1999, Investigating Officer arrested accused Ram Swaroop and on 23.07.1999 on his pointing out 12 bore pistol have been recovered, which is marked as Exhibit Ka-11. Investigating Officer also submitted charge-sheet, marked as Exhibit Ka-13.

Head Constable Police Itwarilal investigated the case under section 25 Arms Act against Naubatram and Ram Swaroop and prepared spot maps, Exhibit Ka-28 and Ka-29 and submitted charge-sheets against them under Section 29 Arms Act, marked as Exhibit Ka-30 and Ka-31 respectively.

Forensic report from the laboratory at Agra has been marked as Exhibit Ka-34 and Ka-35. Charges were framed under Sections 452, 323/34, 302/34 I.P.C. and under Section 25 Arms Act.

The relevant part of Exhibit Ka-34 is reproduced below:-

विवादित कारतूसों ईसी-1 व ईसी-2 पर परीक्षार्थ कारतूसों टीसी-1 व टीसी-2 से तुलनार्थ कोई चिन्ह उपलब्ध नहीं है।

परिणामः- विवादित कारतूस ईसी-1 व ईसी-2 पर उपरोक्त देशी पिस्तौल चि० 1/2001 व देशी पिस्तौल चि० 2/2001 से तुलनार्थ कोई चिन्ह उपलब्ध नहीं है।

नोट- (1) उपरोक्त परिणाम मूल प्रदर्शो के माइक्रोस्कोपिक निरीक्षण पर आधारित है।

(2) कृपया प्रदर्श वापिसी का प्रबन्ध शीघ्र करें।

The relevant portion of Exhibit Ka-35 reads as follows:-

1- (मिट्टी खूनालूदा मिट्टी सादा)- दो सील्ड डिब्बों मे मृतक सूखी के एक वस्त्र .... समुद्रित बंडल घटना स्थल से।

2- (मिट्टी खूनालूदा मिट्टी सादा) दो सर्व मोहर डिब्बो में भूपराम के घटना स्थल से।

3- दरी (अमुद्रित बण्डल मे)

4- गद्दा (अमुद्रित बण्डल मे)

5- बान- चारपाई समुद्रित बण्डल मे मृतक सूखी से।

6- अदवायन चारपाई- सर्व मोहर बंडल में।

7- पेंट (मृतक भूपराम से अमुद्रित बंडल मे)

8- शर्ट (मृतक भूपराम से अमुद्रित बंडल मे)

9- बनियान (मृतक भूपराम से अमुद्रित बंडल मे)

10- अण्डर वियर (मृतक भूपराम से अमुद्रित बंडल मे)

11- पेटी कोट (मृतका से अमुद्रित बंडल में)

12- ब्लाउज (मृतका से अमुद्रित बंडल में)

13- टुकड़े चूड़ी (मृतका से अमुद्रित बंडल में)

14- कान के बाले (मृतका से अमुद्रित बंडल में)

नोट- वस्तु (13) व (14) को वस्तु (12) के साथ बांध कर वापस लौटाया जा रहा है।

रिपोर्ट

वस्तु (1) से (14 ) के ... भागों पर रक्त के धब्बे पाये गये। रक्त के ...स्टेक्ट्रमीय परीक्षण प्रयोग में लया गया।

वस्तु (4) पर रक्त के धब्बे सीरम परीक्षण के लिये अनुपयुक्त थे।

वस्तु (1) से (13) पर रक्त के धब्बे वियोजित (डिसइंटिग्रेटिव) पाये गये।

नोट- अग्रेषप पत्र मे क्रम सं० (3) पर वर्णित खोखे एंव सं०, 7 पर वर्णित दो तमंचे व उनकी रिपोर्ट अलग से अग्नेयास्त्र, अनुभाग द्वारा प्रेषित की जायेगी।

Prosecution examined and produced as many as seven witnesses. P.W.-1 Kalicharan/injured, P.W.-2 Dillighar/informant, P.W.-3 Dr.Ashu Kumar Agarwal, P.W.-4 Investigating Officer Sudershan Chandra Katoch and head constable Police P.W.-5 Itwarilal Verma, Investigating Officer of case u/s 25 Arms Act, Constable Clerk Suresh Chand, witness of inquest, P.W.-6 scribe of Chik FIR and P.W.-7 Dr. V.K.Yadav.

Documentary evidence produced by prosecution was Exhibit-1, written report of Kalicharan, Exhibit Ka-2, Chik report Exhibit Ka-3, entry of G.D. Exhibit Ka-4, spot map Exhibit Ka-5 and Exhibit Ka-6, fard blood stained soil, cot and plain soil Exhibit Ka-7 and empty cartridges, Exhibit Ka-8, country made pistol and cartridges Exhibit Ka-9, Chik FIR under section 25 Arms Act, Exhibit Ka-10 and Exhibit Ka-12, country made pistol recovered from Ram Swaroop Exhibit Ka-11 and charge-sheet Exhibit ka-13. The inquest of two deceased are Exhibit ka-14 and 15.

Statement of the accused under section 313 Cr.P.C is that prosecution witnesses have given false testimony. Naubatram stated that Bhoopram was his brother and Sukkhi Devi was Bhabhi. Dillidhar and his nephew Kalicharan were eyeing the land of Sukkhi and when he went to submit his report, the police detained him in the police station and took money from Dillidhar and Kalicharan and registered the false case against him and other accused. Accused Ram Swaroop stated that he was locked up after taking him in custody from his home. He has not committed any crime. Tularam has stated that Naubatram is resident of village Basti. Sukkhi Devi and Bhoopram were murdered by Dillidhar and Kalicharan in greed of land. Dillidhar and Kalicharan got him and Naubatram implicated in present case by bribing the police.

Accused produced five witnesses in defence namely- D.W.-1 Madan Lal, D.W.-2 Akhhan Khan, D.W.-3 Bhoopram, D.W.-4 Budh Singh Maurya, D.W.-5 Vegraj and produced documentary evidence Paper No.160Kha/2, certified copy of the order 160Kha/3, Khatuni 160Kha/456 Nakal Appeal and Paper No.160Kha/7 Nakal Registration Application Paper No.160Kha/8, certified copy of the order, Paper No.160/10 Nakal report, Paper No.160Kha/11, 12 and 13 copy of plaint, Paper No.160Kha/14 &15, copy of order of Civil Judge (Senior Division, Bareilly), Paper No.160 Ka/16 copy of order of S.D.M, Paper No.160Ka/17, 18, 19, sale deed, Paper No.160Ka/20 is copy of the family register.

P.W.-1 Kalicharan is the injured witness. In his statement he has stated that he came to his Bua's (Sukhi Devi) house. His uncle Dillidhar was living with Bua Sukhi Devi for her protection after the death of Phufa (maternal uncle) Balakram. On the night of incident, at about 12.30, I and my younger brother Guddu were sleeping on single cot, my bua (aunti) was sleeping under the hut and my uncle was sleeping near the door in courtyard where a lantern was burning. Accused Naubatlal, Dalchand, Tularam @ Tulai and Bhoopram came there, Bhoopram and Naubatram are real brothers and brother-in-law of my Bua. Accused were armed with country made pistols and lathi and they initially shot my Bua. Thereafter, they hit him with lathi. His younger brother, out of fear, hid under the cot. Two persons caught his uncle. He is unaware of their name. After killing Bua, they fled away from the spot. Bhoopram received gun injury from the fire made by their accomplices. Accused hit me on the head and I lost consciousness and regained consciousness after 5-10 minutes. Villagers arrived on the spot. Constable of police station Shergarh took him to Behari Hospital for his medical examination and report was lodged by uncle Dillighar.

In cross-examination, P.W.-1 has stated that I and my brother Guddu slept after taking dinner at 8.00 p.m. Uncle and Bua had also taken food and slept of before him. He and his younger brother Guddu woke up after receiving two or three lathi blows but he could not recognise his assailants as it was dark. He fell unconscious. He received one blow over head and two over hand. The left hand was bleeding. He and Dilligarh are not in possession over disputed land. His Uncle had filed an application under section 145 Cr.P.C.

P.W.-2 Dillighar is informant and brother of deceased Sukkhi Devi. P.W.-2 deposed that deceased Sukkhi Devi was married with Balakram, s/o Mohanlal, R/o Jua Manpur, Police Station Shergarh. Brother-in-law Balakram died due to illness, issueless. After his death, my sister Sukkhi Devi was mutated over 24 bigha land left by brother-in-law Balakram. For her protection he was living with her. 24 bigha land and house was sought to be grabbed by the brothers of my brother-in-law namely, Naubatram, Bhoopram, Nanhey and Lalchand. He further stated that on the date of incident, he and his nephews Kalicharan and Guddu were sleeping in courtyard and lantern was burning. Naubatram, Tularam, Bhoopram, Nanhey and Dalchand came there, armed with pistols and apprehended sister Sukkhi Devi and fired at her. When my nephew Kalicharan tried to run away, the accused beat him. When he started shouting, villagers came on the spot. Accused Bhoopram received fire arm injury from shots fired by the accused persons.

In cross examination he had stated that after death of Balakram, the brothers of Balakram filed for mutating their name over the property of his brother-in-law and sister. He denied filing any petition claiming on the basis of a will executed by sister Sukkhi Devi in his favour. He has also denied that petition filed claiming on a will, was decided against him. He further denied that he had not filed any application under section 145 Cr.P.C. He stated that he is illiterate. He further stated that accused Tularam had caught hold of him. Since Tularam was armed with a pistol, therefore, he could not say anything. He recognized the accused, who had fired. Kalicharan received injury on hand but not on the head. He denied the suggestion that he had murdered his sister to grab her property and had falsely implicated the accused.

P.W.-3 Dr.Ashu Kumar Agarwal has stated on oath that he was posted on the date of incident at P.H.C Baheri and examined injured Kalicharan, aged about 18 years, brought by Chandrapal Singh, Constable Police C.P.No.969, Police Station Shergarh. Injured had received a contusion 4 c.m.x 2 c.m. left arm upper side and opined that the injury was simple in nature, likely caused by a blunt object and was one day old. Injured Kalicharan had not received any head injury.

P.W.-4 S.I. Sudersan Chandra Katoch, the investigating officer stated that he was posted as S.H.O at Police Station Shergarh, District Bareilly on the day of incident. The aforesaid case was registered in his presence. Investigation was started by him, Chik No.62/99 was written by Constable 678 Suresh Chand. He has proved the handwriting and entry made in G.D. No.6, made by Constable Suresh Chand, Exhibit Ka.4 to 9. Injury report of injured Kalicharan was written in the case diary. He arrested accused Naubatram and recorded his statement. On pointing out of Naubatram, one country made pistol .12 bore and two life cartridges were recovered and memo was prepared. He proved his signature and signatures of constable Shiv Singh and constable Satyaveer Singh. Accused Ram Charan was arrested on 22.07.1999 and thereafter his statement was recorded. On the pointing of accused Ram Swaroop, one Tamancha of 12 bore was recovered and sealed in presence of constable Budh Prakash and Jai Singh. Memo was prepared and chargesheet has been submitted under sections 302, 323, 452 I.P.C. on 30.09.1999. Pistol and cartridges recovered on the pointing out of Naubatram were sealed in one bundle. He admitted that two separate bundles were prepared, one bundle was for the recovered pistol from Naubatram and second was of the pistol recovered from Ram Swaroop. He denied the suggestion that Kalicharan was not sent for medical examination on that Kalicharan has not received any injury and only to implicate the accused persons a false medical report has been prepared. Dillidhar's statement was recorded at the place of incident on the same day.

In cross examination, he has stated that he has no knowledge that deceased Sukkhi Devi has solemnized marriage with deceased Bhoopram and she was living with him. He has stated that during investigation he got information that deceased Sukkhi Devi had executed will in favour of her nephew Kalicharan. As to whether the will was got executed by Dillidhar to grab the land of his sister, was an assumption regarding which no enquiry was made by him. From the possession of the deceased Bhoopram, no pistol or cartridges had been recovered.

P.W.-5 Head Constable Itwari Lal Verma has stated on oath that on 22.06.1999 he was posted as A.S.I. in Police Station Shergarh and on the direction of Sudersan Chandra Katoch, S.O. he prepared inquest reports of deceased Sukkhi Devi and Bhoopram and other papers in his writing. He investigated Case Crime No.89A of 1999 (Government vs. Naubatram) and Case Crime No. 89B of 1999 (Government vs.Ram Swaroop) under section 25 Arms Act and submitted charge-sheets being Exhibit Ka-30 & Ka-31.

P.W.-6 Constable 6,7,8 Suresh Chand has stated on oath that he was posted as Constable Clerk on the date of incident. Dillidhar reached at police station at about 3.45 p.m. with written report, which is marked as Exhibit Ka-1. Chik is marked as Exhibit Ka-3 was written by him. Dillidhar and Kalicharan reached the police station by Tractor at about 3.45 a.m. He entered injury received by Kalicharan in G.D. and had sent Kalicharan for medical examination.

P.W.-7 Dr.V.K.Yadav has stated on oath that on the date of incident, he was posted as Medical Officer and conducted postmortem of the deceased. Postmortem was done between 5.00 to 5.30 p.m. Time since death was about half day. Both died due to firearm injuries suffered by them.

The contention of counsel for the appellants is that it is a case of false implication. From the evidence filed on record in defence, it is clear that land which is the motive for the murders had already been recorded in the name of appellant no.1. Under the circumstances, there was no reason for him to have committed murder, as no useful purpose would be served and this fact supports the case that it is a case of false implication. It is in fact the first informant and the alleged injured witness who were claiming on the basis of alleged Will executed by the deceased Sukkhi Devi. The first informant and the injured witness could claim any benefit under the will set up by them, only on the death of Sukkhi Devi. Therefore, it was the first informant and the injured witness who had the real motive to commit the crime. It is next submitted that the presence of the injured witness at the scene of crime or that he in fact saw anything is extremely doubtful. The first information report does not contain any assertion that the injured witness Kalicharan was assaulted by lathi. In any case, the injured witness has himself stated that he was assaulted by lathi by a person whom he could not recognize as it was dark.. This statement by itself casts a doubt on the alleged source of light, a lantern mentioned in the first information report and also mentioned in the testimony of PW2- the first informant.

The medical report of Kalicharan PW1 does not mention any injury on the head. In fact, the doctor who had examined him has categorically stated there was no head injury on the person of Kalicharan. He only had an injury on the elbow which was caused by a blunt weapon. The Doctor has also accepted the suggestion that this injury would have been caused by a fall suffered by Kalicharan. The entire circumstances of the case belie the statement of PW1 that he received a lathi blow on his head and thereafter fainted. This is not possible in view of the statement of the doctor that injury on the person of injured witness Kalicharan could not have caused him to lose consciousness. The other serious discrepancy and the contradiction in the oral testimony of PW1 and PW2 is that PW1 states that he accompanied PW2 to the police station for lodging the first information report.

From the statement of PW1 it emerges that he had gone to the police station from where he was allegedly sent for medical examination. On the other hand, PW2 has categorically stated that PW1 injured witness did not accompany him to the police station, when he went to lodge the first information report.

It also emerges from bare perusal of the statement of PW1 that he has not seen anything. He was asleep when shots are alleged to have been fired. He also states that he woke up on receiving a lathi blow and that one blow stuck him on the head, whereupon, he fainted and regained consciousness after five minutes. He therefore, could not have seen how the second deceased Bhoopram, who according to the prosecution case, was one of the aggressors, was shot.

It is next contended that PW2 is a complete liar. He has categorically denied any litigation between him and the accused including a case under Section 145 Cr.P.C. said to have been initiated at his instance. This part of his testimony is totally belied by the documentary evidence filed by the defence., on record, which is also in consonance with the testimony of P.W.1. Under the circumstances, the said witness cannot be relied upon and his testimony is to be discarded as a whole.

It is lastly submitted that even the alleged empties recovered from the site of occurrence, have, upon ballistic examination not found to match or to have been fired from the country made pistol alleged to have been recovered on the pointing out of appellant no.1. The firearm allegedly recovered on the pointing out of other co-accused was in fact never sent for ballistic examination. In any case, the said co-accused has been acquitted by the trial court itself.

He also submits that the documentary evidence filed in defence to show that in fact the appellant no.1 had been recorded over the land which is stated to be the motive of the crime shows that prosecution case has no legs to stand on. This documentary evidence has not at all been considered by the trial court while convicting the appellants.

Learned A.G.A. has supported the order of conviction.

We have considered the submissions made by counsel for the parties and perused the record.

The factum of the litigation between the first informant and the injured witness Kalicharan on the one hand and the accused on the other is established by the documentary evidence annexed by the defence. It also emerges from the said documents that in fact the appellant no.1 had been mutated over the land and that challenge to the order of mutation, had failed. It can also be inferred from the statement of PW1 that in fact it was the appellant no.1 and or his brothers who were in actual physical possession over the land. Under the circumstances, the alleged motive assigned to the appellants for committing the crime and the murder of their bhabhi is not established.

The testimony of PW1, the injured witness also cannot stand scrutiny on account of statement of the doctor who had examined Kalicharan, PW1. The doctor has categorically stated that there was no injury on the head of Kalicharan. Neither any such injury is to be found in the injury report itself. The only injury found on his person was one which according to the Doctor could not have led to loss of consciousness. PW1 Kalicharan has also stated that he could not recognize the assailants as it was dark. This belies the prosecution case that a lantern was burning at the site of occurrence. Moreover, no such lantern has been taken into custody by the Investigating Officer. This renders the prosecution case of a lantern being the source of light, totally unbelievable. In any case this alleged source of light has not at all been proved. Admittedly, the incident is alleged to have taken place at around midnight when the deceased as also the alleged eye-witnesses were fast asleep.

In view of the same, it is impossible to hold that the prosecution has been able to prove its case beyond all reasonable doubt. The appellants under the circumstances are at least liable to be given the benefit of doubt.

Accordingly, the appeal is allowed. The conviction of appellants is set aside.

Appellant no.2 (Tula Ram) is on bail, he need not surrender and his bail bonds are cancelled.

Appellant no.1 (Naubatram) is stated to be in jail. He may be released forthwith as his conviction in Session Trial No. 1611 of 1999 arising out of Case Crime No.89 of 1999 is not sustainable and is set aside.

Let the record of the court below be remitted back alongwith a copy of the judgment forthwith for necessary compliance.

Order Date :- 28.7.2022

SKD