Allahabad High Court
Shushil @ Bablu vs State Of U.P. on 3 July, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:109842-DB
Court No. - 48
Case :- CRIMINAL APPEAL No. - 5902 of 2007
Appellant :- Shushil @ Bablu
Respondent :- State of U.P.
Counsel for Appellant :- Krishna Kumar
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth,J.
Hon'ble Brij Raj Singh,J.
1. Heard Sri Krishna Kumar, learned counsel for the appellant and learned A.G.A for the State.
2. The present criminal appeal has been preferred before this Hon'ble court against the judgment and order dated 23.08.2007 passed by Additional Sessions Judge, Court No. 9, Kanpur Nagar in Sessions Trial No. 774/93 (State vs. Sushil @ Bablu) under Section 302 IPC arising out of Case Crime No. 350/92, P.S. Fazalganj, District- Kanpur Nagar, convicting and sentencing the appellant to under life imprisonment and a fine of Rs. 25,000/-.
3. Prosecution case is that the informant, namely, Sadhari Lal Shukla, was standing on house of his terrace (chhajja) at about 09:00 am on 08.12.1992. He had sent his son, Shiv Gopal @ Kallu, to a neighbouring dairy for purchasing curd. When his son was standing on the dairy, the accused-appellant, Sushil @ Bablu Chandel, along with some of his friends reached the dairy waiving country made pistols in their hands and chased the son of informant. The informant was witnessing the incident from his house and raised alarm for saving his son when the accused fired at his son by his country made. His son suffering injury fell down. After the incident the accused, Sushil @ Bablu, along with his friends ran but Sushil @ Bablu was caught by people of locality and passers-by. He was caught with 315 bore country made pistol wherein one live and one empty cartridges were found. In the process of being apprehended by public the accused also got injured. The informant and the other persons took the accused to the police station along with the illegal weapon and an application (exhibit Ka-1) was given at the police station and FIR was lodged against the accused and his 2-3 friends as Case Crime No. 350 of 1992, under Section 307 IPC and another Case Crime No. 351 of 1992 was lodged against him under Section 25 of the Arms Act. Subsequently, the deceased died and the FIR was converted under Section 302 IPC.
4. Charges were framed under Section 302 IPC and Section 25 of Arms Act and trials were conducted vide Sessions Trial No. 774 of 1993 and 775 of 1993 respectively.
5. The prosecution produced six prosecution witnesses, namely, P.W.-1, Sidhari Lal Shukla (informant); P.W.-2, Shiv Kishore; P.W.-3, Dr. Y.K. Sharma; P.W.-4, Dr. S.G. Mishra; P.W.-5, Constable Genda Lal and P.W.-6, Constable Munne Khan.
6. Learned counsel for the appellant has submitted that the prosecution story set up by P.W.-1 is absolutely false. Incident as alleged by P.W.-1 never took place. The deceased involved himself in clash with some other persons and suffered injuries. The appellant was falsely implicated in this case because two days ago a petty dispute took place between the deceased and the accused. The accused-appellant was employed as Clerk in a bank while the deceased was unemployed and had failed in high school. He was not having good company also since one of the co-accused, Kallu, is having criminal history of 25 cases. He has pointed out to the number of discrepancies in the statements of the prosecution witnesses and the documentary evidence which has been considered by the court.
7. Learned counsel for the appellant has finally submitted that as per custody certificate, appellant has undergone actual period of custody of 16 years, 5 months and 7 days without remission and with remission undergone custody of 21 years, 7 months and 7 days. He has prayed that the appellant may be acquitted of the charges under Section 302 IPC. He has already been acquitted in connected Sessions Trial No. 775 of 1993 wherein under Section 25 of Arms Act.
8. Learned A.G.A has opposed the submissions of learned counsel for the appellant and has submitted that there is eye-witness account of the incident which corroborates the prosecution case. The minor discrepancies in the statements of the witnesses and in the documentary evidence showing improper investigation cannot be made ground for acquittal of appellant.
9. After hearing the rival contentions, this court finds that when first time, information was received in police station regarding incident in dispute, offence was cognizable and hence FIR should have been lodged and in G.D., 'entry number' and 'time of entry' should have been mentioned. In present FIR date and time of receiving first information is mentioned as 08.10.1992 at 09:45 am but in G.D. Entry Number and time of entry is not mentioned. In present FIR, when offence under Section 307 IPC was converted into 302 IPC then for the first time G.D. No. 24, time 12:05 is mentioned which creates serious doubt about the veracity of FIR and reveals that FIR was lodged with consultation and deliberation with P.W.-1 by police personnel.
10. A perusal of FIR shows that it was lodged on 08.10.1992 at 10:45 a.m., with regard to incident which took place at 09:45 a.m. As per section 157 Cr.P.C., the copy of the aforesaid FIR ought to have been sent to the Magistrate competent to take cognizance of the offence forthwith but it was sent to the C.J.M., concerned only on 14.10.1992.
11. Regulation 97 of the Police Regulations also mandates that the original copy of the FIR shall be sent by the Superintendent of Police to the Magistrate forthwith having jurisdiction. For ready reference regulation 97 of Police Regulations is quoted hereinbelow:-
"97. Process for information relating to the commission of a cognizable offence.- Whenever information relating to the commission of a cognizable offence is given to an officer-in-charge of a police station the report will immediately be taken down in triplicate in the check receipt book for reports of cognizable offences (Police Form No. 341). The step will on no account be delayed to allow time for the true facts to be ascertained by a preliminary investigation. Even if it appears untrue, the report must be recorded at once. If they report is made orally, the exact words of the person who makes it, including his answers to any questions put to him should be taken down and read over to him; he must sign each of the three parts, or if he cannot write, he must make his mark or thumb-impression. If a written report is received an exact copy must be made, but the signature por mark of the messenger need not be taken. In all cases the officer-in-charge of the station must sign each of the three parts and have the seal of the station stamped on each. The triplicate copy will remain in the book; the duplicate copy will be given to the person who makes the oral or brings the written report; the original will be sent forthwith through the Superintendent of Police to the Magistrate having jurisdiction with the original written report (if any) attached.
The practice of delaying first information reports until they can be sent toheadquarters attached to special or general diaries is contrary to the provisions of Criminal Procedure Code and is prohibited.
If there is an Assistant or Deputy Superintendent incharge of the subdivision, and stationed at a place other than the headquarters of the district, the original should be sent through him to the Magistrate."
12. Regulation 99 of the Police Regulations provides that as soon as the report is written in the First Information Report book, the substance of the report must be briefly recorded in the general diary. The entries in FIR and general diary must be made at once, but in the present case the column "C" mentioned for making the such entry in the general diary is blank.
13. The Apex Court in the case of Ishwar Singh (The appellant) Vs. State of U.P. (The respondent) AIR 1976 SC 2423 has held that delay in sending report to the Magistrate makes the prosecution case doubtful. Only two days' delay in sending of the FIR to the Magistrate was considered fatal for the prosecution case. The Apex Court found that the delay in sending of the FIR gives time for introducing improvements setting up distorted version of the occurrence in the FIR. It would be useful to refer to paragraph 5 of the judgment of the Apex Court which is as follows:-
" 5. Mr. Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the Judgment of the trial Court, the High Court also overlooked certain important aspects of the case that the Sessions Judge had failed to consider. He pointed out that the F.I.R. which is stated to have been lodged at 9.05 A. M. on February 14, 1973 was sent out from the police station the next day, February 15; the time when it was despatched is not stated, but it appears from the record that the Magistrate received it on the morning of February 16. The Court of the Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police station. Section 157 of the CrPC, 1898 as well as of 1973 both require the first information report to be sent "forthwith" to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in Court differs at least in two very important particulars from that narrated in the F.I.R. Mahabir Singh, who lodged the first information report, stated in-Court that he had invited some people to his house to effect a settlement between him and Ishwar Singh, and that he had also sent Ghanshyam to call Ishwar Singh there. The F.I.R. does not mention anything like this. From the F.I.R. it appears as if the accused persons came uninvited to his house, demanded why he had demolished the drain, and started assaulting him and the other persons who were present there. It is also difficult to understand why Mahabir should invite anyone to his house for a settlement, if really Ishwar Singh had permitted him to demolish the drain as he claimed. Further, the F.I.R. does not mention that Mahabir and Satyapal wielded lathis in their defence when attacked and that this resulted in some of the accused getting injured; but that is what both Mahabir (P.W. 1) and Satyapai (P.W. 2) stated in their evidence in Court. 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-witnesses "cannot be accepted at its face value", as observed by this Court in Mitter Sain v. State of U.P."
14. The Apex Court in the case of Marudanal Augusti Vs. State of Kerala (1980) 4 SCC 425 has held that once FIR is found to be fabricated brought into existence long after the occurrence, entire prosecution case will collapse. In this case there was only 29 hours delay in receipt of FIR by Sub-Magistrate which the Apex Court held fatal for the prosecution case and affirmed the order of the acquittal passed by the trial court and set aside the judgment of the High Court.
15. In the recent judgment of the Apex Court in the case of Mohd. Muslim Vs. State of U.P. (Now Uttarakhand) [2023 (124) ACC 932] Apex Court has held that four days delay in sending of FIR to the court in a case of murder casts doubt on its authenticity in paragraph 13 which is quoted as follows:-
"13. The chick FIR report was sent to the Court on 08.08.1995 with the delay of about 4 days. It is worth mentioning that FIR in a criminal case and particularly in a murder case is a vital and a valuable piece of evidence especially for the purpose of appreciating the evidence adduced at the trial. It is for this reason that the infirmities, if any, in the FIR casts a doubt on its authenticity. The FIR in such cases may also lose its evidentiary value. In Meharaj Singh and Ors. Vs. State of U.P. and Ors.1, it has been opined that on account of the infirmities such an ante-timing of the FIR loses its evidentiary value. Thus, this entitles the accused to be given the benefit of doubt."
16. Generally in written report place where report was prepared is mentioned in report (Taharir), but in present F.I.R place of preparation of written report is not mentioned. It also creates doubt about written report. Ex. Ka3 reveals that injured, Shiv Gopal, went to L.L.R. Hospital, Kanpur, with private person, Mr. Subhash. There is no majarubee chitthi on record of Shiv Gopal, who later died.
17. On the other hand for examination of injury, appellant, Sushil @ Bablu, went to L.L.R. Hospital, Kanpur with two police constables, namely, CP2224, Shankar Lal and CP2516, Ram Lakhan (as mentioned in Ex.Kha3). Majarubee chitthi has been issued for appellant/accused, Sushil @ Bablu by Police Inspector of police station- Fazalganj, district ? Kanpur.
18. Above facts show that deceased, Shiv Gopal, directly went to the hospital. He did not go to the police station with first informant, namely, Sidhari Lal Shukla and appellant, Sushil @ Bablu, who was arrested as per FIR version, and taken to police station with Shiv Gopal (deceased). Both went to police station with first informant, namely, Sadhari Lal Shukla. Therefore, it is clear that there is contradiction between F.I.R version and contents which are shown in Ex.Ka1 and Ex.Kha 3.
19. N.C.R. which was lodged by father of appellant-accused, namely, Santosh Kumar Singh, reveals that Shiv Gopal @ Kallu, Nanhe and Kallu Firingbaj, were beating the appellant. Injuries sustained by the appellant shows that above named persons were beating him from front side.
20. In the recovery memo signature of the appellant-accused has not been taken. The witnesses, Dinesh Kumar Dube, Shyam Lal and Ravi Shankar Shukla, have not been examined before learned trial court. Hence recovery memo of 315 bore country made pistol has not been proved. On the basis of such recovery conviction could not be sustained.
21. P.W.-1 Sadhari Lal Shukla, father of deceased, Shiv Gopal @ Kallu, first informant and also eye-witness of the case was employed as head constable of police at the time of incident. The deposition of P.W.-1 reveals that there are many contradictions in his statement and cross-examination.
22. In his cross?examination P.W-1 stated that after hearing the noise of the people he reached the place of occurrence. Meaning, thereby that he had not seen the incident from his chhajja as alleged in the FIR. Therefore, he could not be considered as eye-witness. His statement in cross-examination is also contrary to the F.I.R version in this regard.
23. P.W.-2, who is the son-in-law of the P.W.1, Sadhari Lal Shukla, stated in his cross-examination that no family member was present at the place of occurrence. It means P.W.-1 was not present at the place of occurrence and he did not saw the incident. Hence he is not eye-witness. It is clear that P.W.-1 is totally unreliable witness and on the basis of his testimony, conviction of appellant can not be sustained.
24. P.W.-2, Shiv Kishore, son-in-law of P.W.1, Sadhari Lal Shukla, P.W.-1 is shown as eye-witness in the F.I.R. In his cross-examination he stated that he reached at place of occurrence after 10-12 minutes of the incident. It means he did not saw the incident as stated in the F.I.R.
25. It is settled law that conviction of an accused on the statement of solitary eye witness can be ordered. In the present case P.W.-1 is the only eye witness and also interested witness but his testimony does not inspires confidence. His conduct of watching his son being fired upon but not raising any alarm on crying for help is also not natural. His presence on scene of occurrence was not testified by his son-in-law, P.W.-2.
26. P.W.-3, Dr. Y.K. Sharma, proved P.M. report; P.W.-4, Dr. S.G. Mishra, Medial Officer, L.L.R. Hospital Medical College, Kanpur, proved injury report of deceased, Shiv Gopal and appellant / accused, Sushil @ Bablu and P.W.-5, Genda Lal, Constable / Muharrir proved the lodging of FIR.
27. P.W.-6, Munne Khan, Constable is an important witness. This witness has been examined in place of investigating officers, S.S.I, Shri Ram Verma and S.I., R.N. Dwivedi. S.S.I., Shri Ram Verma could not be examined due to his suffering from paralysis and S.I., R.N. Dwivedi, was alive but there was no information about his posting. It is suprising that whereabouts of a serving police officer was not known and his appearance in trial was exempted on this ground.
28. P.W.-6 could not make specific identification of signatures of S.S.I., Shri Ram Verma and S.I., R.N. Dwivedi in cross-examination. Therefore, papers regarding to the investigation could not proved by P.W.-6.
29. As per custody certificate actual period of custody undergone of appellant period is 16 years, 5 months and 7 days and with remission it is 21 years, 7 months and 7 days but the fact remains that the prosecution case is full of doubts and it does not inspires confidence. It appears that P.W.-1 has manipulated the lodging of FIR and investigation of this case. The version of FIR regarding apprehending of accused by crowd and P.W.-1 and recovery of 315 bore pistol is not found to be correct. The recovery of country made pistol from appellant was not in accordance with law as per the judgment of Apex Court in the case of Ramanand @ Nandlal Bharti vs. State of U.P. and Another 2022(SC) 5273. Further appellant stands acquitted of charges under Section 25 of Arms Act.
30. It is well settled that the benefit of doubt does not warrants acquittal of the accused by resorting to surmises, conjectures or fanciful considerations. Only reasonable doubts can be read in favour of the accused.
31. Thus, in the instant case, on cumulative evaluation of the probative value of the evidence before us put on the scales, we find that major contradictions and improvements in the evidence of the witnesses tilts the balance in favour of the accused. The prosecution has failed to establish guilt of appellant beyond all reasonable doubts. As the balance tilts in favour of the appellant, we are of the view that the appellant should get benefit of doubt. The appellants are thus acquitted of the charges under Section 302 and 307 IPC both readwith Section 34 of the Indian Penal Code.
32. The judgment and order of conviction passed by the trial court is set aside. The appeal is allowed.
33. Office is directed to notify this judgment to the trial court and return the record.
Order Date :- 3.7.2024
Rohit
(Brij Raj Singh, J.) (Siddharth, J.)
