State Of U.P. vs Chandan Singh @ Martand Singh
2023 Latest Caselaw 29326 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


High Court of Judicature at Allahabad
 
(Lucknow)
 
************
 
                              Neutral Citation No. - 2023:AHC-LKO:68889-DB	
 
Reserved on:09.10.2023
 
Delivered on:19.10.2023
 
Court No. - 9
 

 
Case :- GOVERNMENT APPEAL No. - 1924 of 2010
 

 
Appellant :- State of U.P.
 
Respondent :- Chandan Singh @ Martand Singh
 
Counsel for Appellant :- G.A.
 
Counsel for Respondent :- Ashok Kumar Srivastava
 
A N D
 
Case :- CRIMINAL REVISION No. - 668 of 2008
 

 
Revisionist :- Sanjay Kumar Misra
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Rajiv Misra,Soniya Misra
 
Counsel for Opposite Party :- G.A.,Ashok Kumar Srivastava
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ajai Kumar Srivastava-I,J.

1. The State has come in appeal bearing Criminal Appeal No. 1924 of 2010 challenging the judgment dated 11.09.2008 passed by Additional District and Sessions Judge, Court No. 4, Pratapgarh acquitting the respondents herein of the offence under Section 307/34, 304 IPC with which they were charged in Sessions Trial No. 292 of 2007 (State Vs. Chandan Singh @ Martand Singh and Anr.) arising out of Case Crime No. 579 of 2006, Police Station - Kotwali Nagar, District - Pratapgarh.

2. The informant has also filed a revision bearing Criminal Revision No. 668 of 2008 challenging the aforesaid judgment but none appears for the revisionist. Nevertheless, we proceed to decide the same on merits.

3. Out of the two respondents, Respondent No. 1-Chandan Singh @ Martand Singh has died and the appeal has abated with regard to him. The appeal survives only with regard to the other Respondent No. 2- Pramod Singh whose counsel has been heard, apart from the State counsel.

4. We have heard learned A.G.A. for the State and learned counsel for the respondent.

5. The prosecution case in nutshell is that an F.I.R. was lodged on 06.12.2006 at 07.45 p.m. at Police Station - Kotwali Nagar, District - Pratapgarh by the informant- Sanjay Mishr alleging that 'teranhvi' ceremony was being held on 05.12.2006 at his neighbour Bhagwant Singh's place at village Shrinathpur where he had gone to participate. About 100-150 persons of the village were present in the ceremony. At about 7.10 p.m. in the evening as he started to return to his house after having dinner, the accused Chandan Singh @ Martand and Pramod Singh residents of Rajgarh and another person who was a resident of Kamaipur, District Pratapgarh, whom the informant recognized but did not know his name, all these persons started firing from their 'tamancha'. The informant ran towards the persons who were participating in the ceremony but in this process one bullet hit his jaw and he fell down. The villagers rushed and challenged the assailants who left behind their motorcycle and ran away. Earlier, he had informed the Police about threats being extended by the assailants on 24.11.2006 when he had been beaten up by the accused and had also informed the police about a plan on 05.12.2006 itself when he received information about possibility of such incident from Mohd. Israil at whose place the conspiracy was hatched by the assailants but he was sent back by the Police saying that the matter would be inquired into.

5. The trial Court after considering the evidence on record has acquitted the respondents.

6. The case of the prosecution is based on direct evidence of the injured informant/witness. Though, the incident is said to have occurred on 05.12.2006 at 07.10 p.m. the F.I.R. was lodged on the next day on 06.12.2006 at 07.45 p.m. It has come in the testimony of the informant that in fact while he was admitted in the hospital he had got the 'tehrir' written by an unknown person at 7-8 a.m. next day i.e. 06.12.2006 but the 'tehrir' is dated 05.12.2006 and though, the F.I.R. is dated 06.12.2006 at its bottom the date 05.12.2006 is mentioned and no explanation has been offered by PW-4 Investigating Officer when this was pointed out to him and gave it to his father next day in the early morning at the hospital itself. The informant does not remember the name of scribe of the 'tehrir' to whom he is said to have dictated the 'tehrir' in the hospital itself. He has stated that his father had come to the hospital at 11.00 in the night and that he had sent the 'tehrir' through him early in the morning which could only be on 06.12.2006. He has also stated that his father immediately left for the police station to lodge the F.I.R., yet, the F.I.R. was lodged belatedly on 06.12.2006 at 07.45 p.m about which there is no satisfactory explanation. Thus, this leaves a possibility of deliberation and consultation prior to lodging of the F.I.R.

7. This apart, the presence of more than 100-150 persons of the same village is alleged at the time of the incident but nobody other than injured/informant has been examined in support of the prosecution's case. Interestingly, one of the alleged witnesses to the incident was sought to be produced before the Court by the prosecution but on initial inquiry he denied having seen the incident, therefore, he was discharged on the request of the prosecution itself, a fact which has come in the judgment of the trial Court.

8. Further, PW-1 has stated that though he knew the name of eye witness as he had not mentioned it in his 'tehrir' but he had mentioned the names in his statement to the Police. On the other hand PW-4, Investigating Officer, who had recorded his statement says that PW-1 had not mentioned the name of any eye witness in his statement under Section 161 Cr.P.C. No witnesses, other than the injured PW -1, were produced before the Court.

9. Inspite of indiscriminate firing by three persons it is PW-1 alone who got injured.

10. As per testimony of PW-1 informant, inspite of being hit by a bullet in the Jaw there was no blood on the ground, although, his clothes were blood stained, which is highly improbable. No such clothes of the injured were recovered and sent for examination.

11. He has stated that assailants had run away leaving their motorcycle behind, which was subsequently burnt by the villagers, however, no attempt was made by the Investigating Officer to find out the owner of the vehicle based on whatever was left of it. There is no recovery of the said motorcycle, which is most surprising. The engine frame of the motorcycle was also not sent by the Investigating Officer for examination at forensic Lab by experts.

12. There is no recovery of the 'tamancha' allegedly used by the assailants to commit the crime.

13. While it is true that as per testimony of the Doctor, PW-2, a bullet was found inside the mouth just below the ear which was taken out and sealed, but, there is no X-ray on record, as, it has come in his testimony that X-ray had been advised to find out as to whether lower bone of the Jaw had been fractured or not. This X-ray would have given a clear picture as to the nature of the injury. PW -1 has stated that bullet which hit him was fired from a distance of 2 paces. He has also stated that this distance of 2 paces was from the place where the person, who fired, was standing, and not from the nose of the barrel, meaning thereby, the barrel nose was even closer. Medical report Exhibit Ka-2 mentions that there was no blackening or tattooing on the single fire arm injury. In his testimony PW-2 the Doctor has reiterated this fact. PW-2 has further stated that the injury was not a 'near contact fire injury'. Thus, this medical evidence does not corroborate the statement of PW-1 that he was hit from a distance of 2 paces and is incompatible with the latter. There is no ballistic report nor any ballistic expert has been examined. PW-2 has not probed the fire arm injury to find out its depth. On being asked as to whether any bone of the mandible was fractured PW-2 submitted that he had suggested X-ray for this reason. No X-ray was conducted, as stated earlier. The bullet allegedly recovered was not shown to PW-2.

14. PW-4, the Investigating Officer has stated that he had not prepared any recovery memo of the bullet recovered by PW-2 from Jaw of the injured PW- 1.

15. PW -3 who was posted as pharmacist at District Hospital, Pratapgarh at the relevant time as also at the time of recording of his testimony has stated that no Bed Head ticket of injured Sanjeev Misra is is available in the records of District Hospital in the Store when he is said to have been admitted and treated. He has stated that had there been any such Bed Head Ticket it would have been available in the store of the Hospital.

16. There is no recovery of the weapon (Katta) allegedly used in the commission of crime.

17. Moreover, the earlier incident, which is said to have taken place on 24.11.2006 and which was the background for the subsequent incident of 05.12.2006, was found to be false by the police and a G.D. entry was made in this regard as per the testimony of PW - 4. There is nothing on record to show that the PW-1 filed any complaint case regarding the said incident.

18. According to the PW-1, after getting injured he straightaway went to the hospital and he wrote a 'tehrir' in the hospital itself which was lodged on the second day through his father which indicates that he did not go to the police station, but, the record shows that he was medically examined at the District Hospital on 05.12.2006 at 08.30 p.m. on the 'majroobi chiththi' given by the police station. If he did not go to the police station, then, how this 'majroobi chiththi' was prepared. PW-3 has stated that bullet recovered from the Jaw of injured was given to the Police Constable, meaning thereby, Police was present at the time of his medical examination on 05.12.2006, then, why there was delay in lodging F.I.R. is unexplained.

19. Moreover, PW-1 has stated that he had not gone to the scene of crime with the Police, but, PW-4 says that after recording statement of PW-1 he had taken him to the scene of crime and had prepared site pan of the scene of crime on the pointing of PW-1, creates a doubt about the prosecution case. Coupled with the delay in lodging of the F.I.R. it creates a doubt on the entire prosecution's case as also possibility of deliberation and consultation to implicate the respondents. PW-1 has also stated that subsequently, the police reached the scene of crime, which is indicative of the fact that the police came to know about the incident, but, the F.I.R. was lodged after 24 hours of the incident and there is no satisfactory explanation in this regard.

20. The gun shot as alleged which hit the Jaw of PW- 1 was by Chandan Singh and not the surviving appellant- Pramod Singh.

21. The unnamed person belonging to Kamaipur as mentioned in the F.I.R., who is also alleged to have fired but missed the injured, was neither arrested nor investigated. He was never produced before the Court by the prosecution and there is no explanation in this regard, although, the PW-1 had even mentioned the name of the village of the said person whom he could recognize. In fact, in his cross-examination he has stated that he had mentioned about this person as he had heard from villagers that one of the assailants was from Kamaipur. All this creates a doubt about the incident.

22. There are inconsistencies and contradictions in the prosecution's case as noticed earlier.

23. The case of the defence is of denial and false implication on account of village Partybandi, political rivalry and enmity.

24. In view of the above discussion, considering the delay in lodging F.I.R. which has not been satisfactorily explained, non-examination of any other witness other than PW-1 though more than 100 persons were present at the scene of crime, as alleged, PW-1 being the sole witness even though injured and considering the inconsistencies and contradictions in his testimony as also absence of X-ray which was recommended, for the other reasons mentioned earlier, the view taken by the Trial Court to acquit the respondents is a possible view and there is nothing perverse, improper or legally incorrect therein so as to persuade the Court to interfere with the same in exercise of his appellate and/or revisional powers. We, therefore, see no reason to interfere with the judgment of the trial Court at the behest of the State and the revisionist.

25. The government appeal and criminal revision both are accordingly dismissed.

 (Ajai Kumar Srivastava-I,J.)     (Rajan Roy, J.)
 
Order Date :-19.10.2023
 
R.K.P.