Allahabad High Court

Ratan Pahalwan vs State Of U.P. on 17 May, 2024

Author: Siddhartha Varma

Bench: Siddhartha Varma

HIGH COURT OF JUDICATURE AT ALLAHABAD

Neutral Citation No. - 2024:AHC:89160-DB

AFR

Reserved

Court No.43

Case :- CRIMINAL APPEAL No. - 2474 of 2018

Appellant :- Ratan Pahalwan

Respondent :- State of U.P.

Counsel for Appellant :- Prashant Kumar Singh,Ambrish Kumar Kashyap,Arun Kumar Shukla,Ashok Kumar Tripathi,Saurabh Sachan

Counsel for Respondent :- G.A.,Dharmendra Pratap Singh,J.P. Singh

WITH

Case :- CRIMINAL APPEAL No. - 2258 of 2018

Appellant :- Mewa Lal

Respondent :- State of U.P.

Counsel for Appellant :- Sunil Vashisth,Rajesh Kumar Mishra,Shailendra Kumar Ojha,Shyam Surat Shukla

Counsel for Respondent :- G.A.,Ashwani Kumar Sachan,Dharmendra Pratap Singh,Saurabh Sachan

WITH

Case :- CRIMINAL APPEAL No. - 2326 of 2018

Appellant :- Mahesh @ Maheshi And Another

Respondent :- State of U.P.

Counsel for Appellant :- Sunil Vashisth,Ashutosh Pandey,Rajesh Kumar Mishra

Counsel for Respondent :- G.A.,Ashwani Kumar Sachan,Dharmendra Pratap Singh,J.P. Singh,Saurabh Sachan

WITH

Case :- CRIMINAL APPEAL No. - 1982 of 2018

Appellant :- Ram Kumar Mallah

Respondent :- State of U.P.

Counsel for Appellant :- Prashant Kumar Singh,Surendra Singh

Counsel for Respondent :- G.A.,Ashwani Kumar Sachan,Dharmendra Pratap Singh,J.P. Singh,Rajendra Kumar Singh,Saurabh Sachan

WITH

Case :- CRIMINAL APPEAL No. - 1993 of 2018

Appellant :- Vikash Maurya

Respondent :- State of U.P.

Counsel for Appellant :- Prashant Kumar Singh,Ashok Kumar Tripathi

Counsel for Respondent :- G.A.,Ashwani Kumar Sachan,Dharmendra Pratap Singh,J.P. Singh,Saurabh Sachan

Hon'ble Siddhartha Varma, J.

Hon'ble Vinod Diwakar, J.

1. These appeals have been filed against the judgment and order dated 22.3.2018 passed by the Additional District & Sessions Judge, Court No.12, Kanpur Nagar convicting the appellants-Ratan Pahalwan, Mahesh @ Maheshiya, Mewalal, Ram Kumar Mallah, Suresh @ Mandir and Vikas Maurya for life imprisonment under section 302 read with section 149 IPC. A fine of Rs.50,000/- had also been imposed on each of the convict and in the event of non-depositing of fine, they had to undergo additional imprisonment of 180 days. Also, the accused Ratan Pahalwan, Ram Kumar Mallah and Vikas Maurya, under section 4/25 of the Arms Act, were sentenced for one year rigorous imprisonment and a fine of Rs.1000/- each was imposed and in the event of non-depositing of the fine, they had to undergo 30 days' additional imprisonment. The Accused Mahesh @ Maheshiya; Suresh @ Mandir and Mewalal were also sentenced for three years' rigorous imprisonment under section 25/27 of the Arms Act with a fine of Rs.3000/- each and in the event of non-depositing of fine, they had also to undergo 90 days' additional imprisonment. It was provided that all the sentences were to run concurrently.

2. Brief facts of the case are that on 30.7.2009 a First Information Report was lodged by one Gyanwati wife of Om Prakash. The FIR was got written on the dictation of Gyanwati by one Manoj Kumar son of Jamuna Prasad. In the FIR, it was mentioned that on 30.7.2009, the son of Gyanwati namely Sarvesh Pandit when was sitting with Munna Pandit and Dayaram in front of the Santoshi Maa Temple where a light bulb was on, at around 10.30 pm, Ratan Pahalwan son of Jagmohan, resident of 4/272 Purana Kanpur along with Mahesh @ Maheshi son of Ganga Prasad, r/o 5/237 Purana Kanpur; Ram Kumar Mallah and Suresh Mandir sons of Ganga Prasad, r/o 5/237 Purana Kanpur and Vikas son of Roshan Pahalwan who were armed with country made firearms and Chapad, approached Sarvesh Pandit and said that they would take the revenge of the death of Basant Pahalwan. Thereafter they surrounded Sarvesh and attacked him. Consequently, the son of the first informant died. In the FIR, the motive has been given that around 12-13 years prior to the lodging of the FIR, in the area of Police Station Nawabganj, Basant Pahalwan had been killed and in that the son of Gyanwati had been jailed and on account of this revenge, Ratan Pahalwan and others were inimical to her son and they always wanted to do away with him. Thereafter she categorically stated that the dead-body of her son Sarvesh Pandit was lying under a tree and she requested that investigation be undergone and justice be done.

3. Thereupon investigation ensued. Six accused were arrested and on 14.8.2009 at the pointing of Mahesh, a country made pistol of 315 bore was recovered. In that regard, a recovery memo was prepared and an FIR was lodged under section 4/25-A of the Arms Act. Similarly, the accused Ram Kumar Mallah on 14.8.2009 had got recovered a Chapad and against him also an FIR under the Arms Act was got lodged. On 30.8.2009, Vikas Maurya got recovered a Kulhadi (axe) and similarly against him also, an FIR under the Arms Act was got lodged. On 24.8.2009, Suresh @ Mandir had got recovered another .315 bore country made pistol and against him also, an FIR under the Arms Act was got lodged. On 7.9.2009, Mewa Lal son of Ganga Prasad had got another country made .315 bore pistol recovered and against him also, an FIR was got lodged. The firearms, as were recovered, were kept in the custody of the police and the recovery memos were accordingly prepared. From the spot, where the alleged murder had taken place, three empty cartridges and two bullets of .315 bore were recovered and they were kept in a tin box of which a recovery memo was prepared and was exhibited as Exhibit Ka-27. The plain soil and the soil on which there was blood was also recovered and a recovery memo was prepared and was exhibited as Exhibit Ka-28. After the FIR was lodged, the police had reached on the spot and had taken the body of Sarvesh Pandit to the Hallet Hospital where the Panchayatnama was got prepared. This happened on 31.7.2009. Thereafter the Constable Pradeep Kumar Rai took the dead-body for the post mortem.

4. Charges were framed by the police and they were forwarded to the Court of Additional Sessions Judge, Court No.13. The Court upon taking cognizance of the matter, charged the accused under the relevant sections. All the accused pleaded not guilty and denied charges and thereafter the trial commenced.

5. From the side of the prosecution as many as 14 prosecution witnesses gave their statement-in-chief and they were also cross-examined.

6. PW-1 Gyanwati wife of Om Prakash had stated in her examination-in-chief that her son on 30.7.2009 was sitting under a Goolar tree on a chabutara and by his side Munna Pandit and Dayaram were also sitting. The goolar tree was in front of Santoshi Mata Temple and at that time i.e. around 10.30 pm she (Gyanwati) was standing on a chabutara which surrounded a Peepal tree near her house. Around 7-8 paces behind her, her nephew Shiv Sewak Sharma was standing. From the side of gaushala, Ratan Pahalwan, Ram Kumar, Mahesh @ Maheshiya, Mewa Lal, Suresh @ Mandir and Vikas arrived. Ratan Pahalwan exhorted all the accompanying assailants and said that they had to take revenge of his brother Basant and had ordered them to kill Sarvesh. Ram Kumar and Ratan who were carrying chapad; Mahesh, Mewalal and Suresh who were having the tamancha along with Vikas who was having a kulhadi, surrounded the son of the first informant and they started assaulting the son of the first informant who fell down faced downwards. He was shouting for help. The nephew of the first informant and the first informant reached the spot but the assailants threatened the first informant that if she raised her voice, she would also be killed. PW-1 also stated that there were a lot of people living in the area but because of the fear of the assailants, none of them came. She has also stated that Guddu @ Anwar and Rajesh had seen the incident and they were standing 7-8 paces away near a bargad tree. After having killed the deceased, the assailants went away. The first informant went to the police station and told them about the incident. The police asked her to give a written complaint then she got hold of Manoj and on her dictation the report was written down. On that document she had also signed. She thereafter also proved the tehrir. Thereafter the police came on the spot and recovered four empty cartridges and two bullets and they took her son in a Jeep to the Hallet Hospital where he was declared dead. Post mortem was thereafter done. Here she again stated that the motive for killing her son was that her son while was working as a Home-Guard had got recovered four and half kilograms of gunpowder and a tamancha from the house of one of the assailants Ratan and she reiterates about the fact that 12-13 years back when Basant Pahalwan was killed, the assailants thought that her son had killed him. Earlier also, Sarvesh was attacked upon. In her cross-examination, the PW-1, upon being asked as to whether she was aware that her son was a history-sheeter, she denied that her son was ever externed. She categorically stated that Guddu @ Anwar was sitting on the neighbouring chabutara. Upon being asked about Daya Ram and Munna Pandit, whose names she had mentioned in the FIR, she stated that at the time when the incident had occurred, they were not there at the spot. She stated that they were sitting beside her son before the incident had occurred. She then stated that even though she knew the house of Ratan Pahalwan but she did not know its number. She stated that she had in fact mentioned in the FIR which she had got lodged that she was standing by the Peepal tree in her house. She also stated that she was standing 10 paces away from the place where the incident had occurred and this fact she had also stated in the FIR. She had also mentioned in the FIR that Shiv Sewak was standing 7-8 paces away behind her. She has stated that she definitely mentioned in the FIR that Vikas had a small axe. She has stated that the copy of the FIR was given to her at 4.00 pm on the next day i.e. on 31.7.2009. She had stated that her son worked in J.K. Jute Factory. She reiterates that her son was beaten for around 6-7 minutes. Upon being asked as to why her husband had not appeared at the spot, she had stated that he was asleep. She had also stated that while she was sitting at the threshold of her house, she had not made any efforts to wake-up her husband. She has also stated that the wife and the children of the deceased were also present on the spot.

7. Shiv Sevak, the nephew, appeared in the witness box as PW-2. He repeats the case as was stated by PW-1.

8. PW-3 Rajesh Kumar who was, as per the first informant, present on the spot, had stated in his examination-in-chief that he was not present there. He was thereafter declared hostile. In the cross-examination, he has stated that he was not threatened by the assailants.

9. PW-4 Dr. R.L Mahip was the doctor who had proven the post mortem report.

10. PW-5 Constable Ashok Kumar Mishra had proven the chik FIR.

11. PW-6 Guddu @ Anwar who, per the first informant, was present at the spot, had stated that he was not there on the spot and thereafter he was also declared hostile. In the cross-examination, he stood firm on what he had stated in the examination in chief.

12. PW-7 Constable Girja Kumar was a formal witness.

13. PW-8 Tannu who was a witness of the recovery of the empty cartridges and the bullets, had stated that he was not present at the time when the recovery memo was prepared and that they were not recovered in from of him and that he had signed on a blank paper.

14. PW-9 was the scribe of the FIR Manoj Kumar and he had virtually stated what the PW-1 had stated to him.

15. PW-10 was the Investigating Officer Satyendra Singh Rathor. He had stated that on the date of incident, he had gone on the spot along with the first informant and on the next date he was present at the time of panchayatnama and he was also instrumental in getting all the recovery memos prepared. PW-10 had stated in his cross-examination that the bullet and the pallets were sent to Agra for forensic lab test. He had stated that when he had gone on the spot, the deceased was lying in an injured state. He had stated that the first informant had not told him about the fact that she was standing by a peepal tree. He had also stated that the first informant had not told him that behind her, was her nephew Shiv Sevak Sharma standing. He states that he had not stated as to how high was the chabutara and he had also not stated that there was blood near the chabutara and on the walls. He had stated that there were also no bullet marks on the walls and on the trees and he further states that when he had reached the spot, the body of the deceased was not lying on the chabutara but was on the ground. The deceased, he stated, was a history-sheeter and there were many other serious cases pending against him.

16. PW-11 was Sub-Inspector Shiv Karan Sonkar and he was the Investigating Officer in the case under the Arms Act.

17. PW-12 Pratap Singh was also an Investigating Officer under the Arms Act.

18. PW-13 Sub-Inspector Pradeep Kumar Rai had stated that he had reached the LLR (Hallet) Hospital at around 23.40 hours and had got conducted the panchayatnama. He had taken out the dead body from the mortuary. He has also stated that he had got sent the dead body for the post mortem.

19. PW-14 Sub-Inspector Ram Niwas was the witness of the recovery of the axe (kulhadi).

20. Thereafter the accused persons got their statements recorded under section 313 Cr.P.C. They had all stated that they were innocent.

21. One Arjun, who was the defence witness, had come forward and had stated that Vikas Maurya was his neighbour and on 28.8.2009 at 10.00 pm, he was sitting in front of his house after having taken his diner and thereafter the police came to the house of Vikas Maurya and had taken him away.

22. Learned counsel for the appellants has argued that in fact the murder had not taken place at the spot as had been alleged by the PW-1. Learned counsel for the appellants has stated that the mother of the deceased i.e. the first informant had stated in the FIR itself that the deceased was dead and was lying on the spot yet it has been stated that the dead-body of the deceased was taken from the spot and was taken to the LLR (Hallet) Hospital. Learned counsel for the appellants, therefore, states that in fact the murder had taken place somewhere else and the dead body was taken to the LLR Hospital and there the panchayatnama was conducted. He submits that had the death taken place on the spot where the first informant was saying then the panchayatnama too would have been conducted on the spot itself. For giving the reason as to why the dead body was taken to the Hallet Hospital, the police officer Pradeep Kumar Rai had stated that when he had gone on the spot, he had found that the dead-body was breathing and therefore he taken him away. Learned counsel for the appellants states that when the assault was to the extent, as had been mentioned in the FIR itself and when it was stated by the first informant, that her son was dead then there was no reason for taking the dead-body to the hospital for panchayatnama. Learned counsel for the appellants stated that the police personnel are from an experienced service and they could easily decipher as to whether a person is dead or alive. Learned counsel for the appellants thereafter states that in fact after the first informant had come to know about the death of her son somewhere else, she had gone to report about the death and the police who were aware of the fact that the accused persons were also history-sheeters, took out their names from their own records and had, in the FIR, given their names, parentage and the addresses. Learned counsel for the appellants states that if the statement of PW-1 is seen, she has very categorically stated that even though she knew about the houses of Ratan Pahalwan but she did not know the number of the house (i.e. the address). Learned counsel for the appellants states that if the FIR is seen then the addresses of all the accused had been given. This, he submits, definitely was the doing of the police. Learned counsel for the appellants thereafter has stated that in the FIR, the PW-1 had tried to create eye-witnesses on the spot apart from her itself. She had also named Munna Pandit and Dayaram in the FIR but subsequently she had done away with them and in her statement-in-chief she had brought in Guddu @ Anwar and Rajesh as eye-witnesses. Learned counsel for the appellants further states that in the FIR she had also not stated about the fact that there was any peepal tree by the side of which she was standing and that behind her, Shiv Sewak Sharma was standing around 7-8 paces away. Learned counsel for the appellants, therefore, states that the PW-1 had come up with all cooked-up story. He submits that Munna Pandit and Dayaram did not even come into witness box. The witnesses which she had tried to bring in as eye-witnesses namely Guddu @ Anwar and Rajesh came to the witness box but they had turned hostile. Further, learned counsel for the appellants states that the post mortem report shows that there were three bullets which had entered the body of the deceased. It is alright, he submits, that this matched with the three empty cartridges but he submits that only one bullet was recovered from the body of the deceased and one which had probably escaped from the exit wound was also found. Where did the third bullet go was a mystery. Learned counsel for the appellants further states that all the firearms which were recovered were country made pistols of .315 bore but pellets were also recovered from the body of the deceased. How those pallets entered the body of the deceased was again a mystery. Learned counsel for the appellants states that when no forensic lab test was done on the firearm and on the pellets, it mattered little as to what was the recovery done. Learned counsel also states that even the motive was a strange motive which the PW-1 had given. He states that the accused persons were taking a revenge of an event which had taken 13 years prior to the incident which she was reporting. Still further, learned counsel for the appellants states that the father of the deceased who was sleeping was the first person the first informant would have woken-up but she had allowed him to sleep. Also, the wife and children of the deceased who were standing at the spot as per the PW-1 had not come forward to give their side of the story. Learned counsel for the appellants, therefore, states that all the statements which the PW-1 had given get falsified. If the statement of the Investigating Officer PW-10 is seen, it would reveal that he had categorically denied that PW-1 had told him about the peepal tree by which she was standing. What is more, even the peepal tree was not shown in the site-map which the Investigating Officer had prepared; meaning thereby, learned counsel for the appellants states, that even the site-plan was not prepared after going to the site but in fact it was prepared sitting in the police station. Learned counsel for the appellants, to bolster his submissions, relied upon the decisions of the Supreme Court in Ravasaheb @ Ravasahebgouda etc. vs. State of Karnataka : 2023 LiveLaw (SC) 225; Ajai @ Ajju etc. etc. vs. The State of Uttar Pradesh : 2023 LiveLaw (SC) 110; Chhote Lal vs. Rohtash & Ors. (Criminal Appeal No.2490 of 2014 decided on 14.12.2023); Amar Singh vs. The State (NCT of Delhi) (Criminal Appeal No.335 of 2015 decided on 12.10.2020) and also upon the decisions of this Court in Criminal Appeal No.4857 of 2011 (Parshu Ram vs. State of U.P.) decided on 14.2.2019; Criminal Appeal No.6583 of 2004 (Karan Singh & Anr. vs. State of U.P.) decided on 13.1.2017; Criminal Appeal No.1875 of 2007 : Shesh Narain vs. State of U.P. (decided on 27.5.2016); Criminal Appeal No.2421 of 1985 : Bashir & Anr. vs. State of U.P. (decided on 17.5.2019) and Criminal Appeal No.4122 of 2015 : Gulshan @ Mekedam Singh Jatav vs. State of U.P. (decided on 6.8.2020).

23. Learned AGA Sri Amit Sinha and the learned counsel appearing for the first informant Sri Saurabh Sachan, however, have stated that even if the first informant who was the eye-witness and in this case now virtually the lone eye-witness, her evidence ought to be believed as she was a mother who was giving evidence with regard to the death of her son and she would not lie to implicate others falsely.

24. Learned counsel for the first informant also argued that even if the peepal tree was not given in the site-plan and it was not mentioned in the FIR, it mattered little. The site as it contained things and which came to the fore after the statements were recorded, alone were to be looked into. He has tried to, after reading the statement of PW-1, establish that the PW-1 was a truthful eye-witness and if she had by any chance missed out certain facts in the FIR about which she was changing her statement in the Court, then it mattered little. In this regard, learned counsel for the first informant relied upon the decision of the Supreme Court in Bipin Kumar Mondal vs. State of West Bengal : AIR 2010 SC 3638; Sunil Kumar vs. State Govt. of Delhi : AIR 2004 SC 552; Vijendra Singh vs. State of U.P. (2017) 11 SCC 129; Dhanaj Singh @ Shera & Ors. vs. State of Punjab : (2004) 3 SCC 654; Ravasaheb @ Ravasahebgouda etc. vs. State of Karnataka : (2023) 5 SCC 391; State of U.P. vs. Krishna Master : AIR 2010 SC 3071; State of MP vs. Dharkole @ Govind Singh & Ors. : AIR 2005 SC 44 and State of Rajasthan vs. Ani @ Hanif & Ors. : AIR 1997 SC 1023.

25. Having heard Sri Ambrish Kumar Kashyap and Sri Ashok Kumar Tripathi for the appellant in Criminal Appeal No.2474 of 2018; Sri Ashutosh Pandey for the appellants in Criminal Appeal nos.2258 of 2018 and 2326 of 2018; Sri Surendra Singh, Advocate for the appellants in Criminal Appeal Nos.1982 of 2018 and 1993 of 2018; learned AGA Sri Amit Sinha assisted by Ms. Mayuri Mehrotra, learned Brief Holder and Sri Saurabh Sachan, Advocate for the first informant, this Court is of the view that the appeals deserve to be allowed. The first informant had come up in the FIR with a case that when the assailants had come, Munna Pandit and Dayaram were sitting beside the deceased. However, though in the FIR she had stated so, in her statement before the Court she stated that they were sitting beside the deceased before the incident had occurred and in fact at the time when the incident had occurred, Guddu @ Anwar and Rajesh were there on the spot. We find that the peepal tree by which she says she was standing by at the time of incident was also never mentioned and in fact the Investigating Officer also had not shown it in the site-plan. We also find that throughout PW-1 had never introduced Shiv Sewak Sharma but for the first time in the Court she had stated that he was standing a few paces behind her at the time of the incident and Shiv Sewak thereafter also comes before the Court and testifies in her favour but his statement was absolutely a weak statement which could not be relied upon. We also find that she had justified the absence of her husband and has stated that it was not required to wake him up. She has stated that the wife and children of the deceased were present on the spot but they never cared to come in the witness box. The eye-witnesses which had come up to the witness box had turned hostile and the eye-witnesses with regard to which she had made a mention in the FIR never turned up to give their testimony. It was just possible that due to the fear of the assailants who were history-sheeters, the eye-witnesses were not coming forward but in the instant case we find that the testimony of the witness of the PW-1-Gyanwati who is the mother is not at all believable. She has changed stands very frequently. She has introduced so many things like the peepal tree and Shiv Sewak at her convenience and the peepal tree is not to be found even in the site-plan. In fact the Investigating Officer who was PW-10 states that the PW-1 had never told him about the peepal tree. It appears strange that the site-plan was prepared at the telling of the PW-1; that would mean that in fact the site-plan was also prepared not at the spot but somewhere else.

26. What is more we find that the mother of the deceased, PW-1 had got the FIR lodged and despite the fact that she had mentioned that she did not know the addresses of the assailants before the Court, in the FIR she had mentioned the addresses and the parentage of all the accused persons. This shows that the police very interestingly, which had the record of all the history-sheeters, had mentioned about the addresses and the parentage of the accused persons in the FIR. Also, we find that in the FIR the mother of the deceased had stated that the deceased had died on the spot and was lying dead but despite that the police had taken the dead to the Hallet Hospital. This raises a big question mark to the fact as to whether the deceased was found at the spot where, it is alleged, he was killed. The panchayatnama ought to have taken place at the place where the deceased lay dead.

27. Under such circumstances, we are of the view that the eye-witness PW-1, the mother, is an absolutely doubtful witness. The conviction cannot be done on the basis of her testimony. Also, we find that the PW-10 has stated in so many words that all the facts which the PW-1 was stating in the Court were never told to him. The ballistic report from the forensic lab was also never received and taken into account by the prosecution. This not only speaks volumes about the prosecution's functioning but also makes it unbelievable.

28. For all the reasons, the Criminal Appeals are allowed. The order dated 22.3.2018 passed by the Additional District & Sessions Judge, Court No.12, Kanpur Nagar is quashed. The appellants namely Ratan Pahalwan, Mewa Lal, Mahesh @ Maheshi, Suresh @ Mandir, Ram Kumar Mallah and Vikas Maurya, who are in jail, be released forthwith unless they are required in any other case.

Order Date :- 17.05.2024

(Siddhartha Varma, J.)

(Vinod Diwakar, J.)