Bharat Singh vs State Of U.P. Through Secretary ...
2022 Latest Caselaw 8511 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved on 27.07.2022
 
Delivered on 29.07.2022 
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 4632 of 2022
 

 
Appellant :- Bharat Singh
 
Respondent :- State Of U.P. Through Secretary Home And 3 Others
 
Counsel for Appellant :- Sanjay Kr. Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Deepak Verma,J.

Heard Shri Sanjay Kumar Srivastava, learned counsel for the appellant and learned AGA for the State.

The instant appeal has been filed under Section 14-A(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and is an appeal against the acquittal of the opposite parties.

The accused, opposite parties have been acquitted in Sessions Trial No. 41 of 2012 arising out of Case Crime No. 145 of 2009, under Section 302/34 I.P.C. and Section 3(2)(v) of the SC/ST Act.

Additionally, opposite party no.3 has also been acquitted in Sessions Trial No. 49 of 2012 arising out of Case Crime No. 155 of 2009, under Section 25 of the Arms Act while opposite party no. 3 has been acquitted in Sessions Trial No. 131 of 2012 arising out of Case Crime No. 154 of 2009 also under Section 25 of the Arms Act. All the three sessions trial pertain to Police Station- Hastinapur, District- Meerut.

An FIR was lodged on 12.04.2009 at Police Station- Hastinapur, District- Meerut at 5:00 pm, which gave rise to Case Crime No. 145 of 2009, under Section 302/34 I.P.C. and Section 3(2)(v) of the SC/ST Act. This FIR was with regard to an incident alleged to have been taken place at 1:00 pm on the same day. In the FIR, the first informant alleged that his brother Dharmendra was returning to village Gudha from Veernagar via a jungle, when he was shot by the opposite parties. The shots fired were heard by Mintu, Prashant, Virendra, Sohanveer, who also saw the accused making good their escape. The eye witnesses informed the first informant and he went to the spot and found his brother dead. Five spent 12 bore cartridges were lying on the spot as was the body of the deceased and his motorbike.

It appears that on 14.04.2009, opposite party no. 5, Tejveer was arrested by the police while the other two opposite parties namely Vinod and Pramod surrendered in Court on 17.04.2009. On 29.04.2009, the police after taking Vinod and Pramod on police remand and on their pointing out recovered the weapons of assault, the country made pistols alleged to have been used by them in crime. Accordingly, Case Crime No. 155 of 2009 under Section 25 of the Arms Act was registered against Vinod, opposite party no. 2 and Case Crime No. 154 of 2009 was registered against Pramod, opposite party no.3 also under Section 25 of the Arms Act.

The matter was committed to the Court of Session on 13.12.2011, whereupon charges were framed against the accused.

The prosecution examined as many as 13 witnesses to prove the prosecution case of which PW-1 to PW-5 and PW-7 and PW-8 were witnesses of fact while the remaining were formal witnesses.

PW-1, the first informant deposed that Gaurav son of Vinod, opposite party no. 2 eve-teased the daughter of the first informant and that the matter was later compromised. This happened 6 or 7 days prior to the incident wherein the deceased who was returning home from Veernagar via a forest, was shot by the deceased despite the compromise.

It was relevant to note that PW-1 is not an eye witness of the alleged incident.

According to the prosecution case PW-2 Virendra, PW-3, Prashant, PW-4 Sohanveer and PW-5, Mintu, the co-brother of the deceased, were eye witnesses of the murder of Dharmendra, the deceased.

Each of these witnesses turned hostile. They have deposed that they did not see the incident. Additionally, PW-4, Sohanveer stated that he was at his house at the time of alleged occurrence while PW-5, Mintu, the co-brother of the deceased had deposed that on hearing about the incident he had gone to the scene and found that a crowd was present there. He has, however denied having seeing the accused on the scene of occurrence.

After the aforesaid persons, the alleged eye witnesses as per the FIR turned hostile, two other witnesses of fact, namely PW-7 niece of the deceased and PW-8, widow of the deceased have been examined. PW-7 deposed that on 9th of April, she was teased by Gaurav. On her informing, her dad and uncle about the incident they were proposing to go to the police station to lodge a report but in the meantime and on the intervention of third parties, the matter was compromised. On the date of incident, she, her grand mother and aunt Rachana (widow of the deceased) had gone to the forest to collect fire wood. They were collecting fire wood about 15 to 20 steps from a tiraha. She saw the deceased coming by motorcycle followed by the three accused. When they reached the tiraha, which appears to be a clearing in the forest, the deceased is stated to have been shot by the accused. He fell down on the spot. The witness hid due to fear. The accused ran away and the witness returned home and informed her uncle. She has also stated that she belongs to the scheduled caste.

Identical is the statement of PW-8, Rachana.

The accused in their statement under Section 313 Cr.P.C. have stated that they have been falsely charged. Pramod deposed that Tejveer was elected Pradhan and that the accused had supported him. The deceased was a man of criminal antecedents and dealt in country made liquor. Even his brother is a man of criminal antecedents. It was specifically denied that Gaurav had teased PW-7. False implication was made due to political rivalry and party politics. Opposite party no. 5, Tejveer has also deposed on the same lines.

DW-1, Karan Singh was produced by the defence and has stated that the deceased was an agriculturist but also engaged in the sale of illicit liquor and had been shot by unknown persons. When this information reached the village the witness along with the accused had gone to the scene of occurrence and they were present till the time, the body was sent for post mortem. Various administrative and police authorities were present on the spot. The body was sent for post mortem at 4:00 pm.

After appreciation of the evidence on record, the accused have been acquitted by the trial court. One of the main reasons given for the acquitting the accused is that the eye witnesses named in the FIR all turned hostile and that nothing of substance could be elicited from them during their cross-examination by the prosecution.

The Court has disbelieved the testimony of the niece and widow of the deceased on the reasoning that in case they had seen the occurrence at 1:00 pm, as is their case, there was no justification for the FIR to be lodged at 5:00 pm, especially when there the certified copy of a PCR report is available on record which indicates that the deceased had been shot by unknown persons. Moreover, the statement of the IO is that he reached the scene of occurrence on receipt of a wireless message and was the first person to reach the scene of crime. This was not possible in case PW-7 and 8 had in fact seen the occurrence. Even the behavior of the niece and the widow of the deceased that they hid on seeing the deceased being shot and thereafter, returned home, is unnatural. The alleged scene of occurrence which is not disputed is situated at a distance of 1.5 kilometer from the village of the deceased and in the jungle.

The trial court has also observed that from the cross-examination of the first informant, PW-1, it emerges that the FIR was transcribed in the police station and the names of the witness were mentioned therein, when the police inquired as to who had seen the crime and, therefore, the accused have been named after due consultation and deliberation. This witness had also admitted in his cross-examination that the body had been removed from the scene of crime before registration of the FIR and that when the body was taken away by the police, he was in his village.

Another reason given by the trial court for discarding the testimony of PW-7 and 8 is the statement of PW-8, the widow of the deceased who has stated that on being informed of the murder by Mintu, PW-5, who is the husband of her sister, she and her mother-in-law, both fainted.

Moreover, the IO in his testimony has deposed that PW-7 and PW-8 were not the eye witnesses of the crime and that the FIR was lodged two hours after he reached the scene of crime.

The contention of learned counsel for the appellant is that PW-1, PW-7 and PW-8 have supported the prosecution case and, therefore, the judgment of acquittal is bad in law. An order of acquittal could not have been passed merely because some of the witnesses namely, PW-2 to PW-5 had turned hostile.

He has next contended that the medical evidence as also the post mortem report fully corroborated the prosecution case and, therefore, the order of acquittal is unsustainable. In any case, the accused could not have been acquitted also of the charges under the SC/ST Act.

Upon a consideration of the evidence referred to in the judgment of acquittal, the reasoning given by the trial court for acquitting the accused and the submissions of learned counsel for the appellant, first informant, we do not find any good ground to interfere.

The contention of learned counsel for the appellant that three of the witnesses of fact have supported the prosecution case is of no avail. PW-1 is not an eye witness of the incident. The testimony of the two other alleged eye witnesses, who have not turned hostile namely, PW-7 and PW-8 has been discarded by the trial court for cogent reasons, which have also been enumerated above. We find the reasoning given for discarding their testimony to be sound and not worthy of interference. The trial court has rightly observed that the presence of these eye witnesses on the scene of occurrence is extremely doubtful. We would go to the extent of observing that on the basis of their testimony their presence on the scene of occurrence and that they were eye witnesses as alleged is extremely unlikely. In case they were eye witnesses, there were no reason as to why the names of the accused had not surfaced till 4:00 pm or earlier when the incident is alleged to have taken place and was witnessed at 1:00 pm.

Under the circumstances, we do not see any reason to entertain this appeal as the same is found to be without merit.

The appeal is accordingly dismissed at the admission stage, itself.

Order Date :- 29.7.2022

Mayank