Khalid L. vs State of U.P.

Pratyush Kumar, J.—1. The instant appeal filed on behalf of the accused-appellant is directed against the judgment and order dated 9th April, 2010 passed by Sri R.S. Yadav, the then Special Judge of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 hereinafter referred as ''the Act'', Faizabad in Gangster Case No. 352 of 2003 whereby the present appellant has been convicted under sections 147, 148, 302 I.P.C., Section 7 of the Criminal Law Amendment Act and Section 3(1) of the Act and sentenced him to undergo rigorous imprisonment of one year imprisonment, imprisonment for life and fine of Rs. 5,000/- in default thereof three months'' six months'' imprisonment and fine of Rs. 3,000/- in default thereof, six and three years'' rigorous imprisonment and fine of Rs. 5,000/- in default thereof imprisonment of five months respectively. All the sentences were directed to run concurrently.

In this appeal, prosecution facts of the case may be summarized as under:-

On 14th July, 2002, at 6.30 a.m. Haridev Sharma handed a written report at Police Station Kamrauli stating therein that his two brothers Shadeo and Vasudeo were going from the house by Scooter No. UP 32K, 0974 to attend their duty at Indo Gulf Factory. Shadeo Sharma was also carrying 12 bore gun on his scooter. Following them he and co-villager Rajendra Tiwari @ Baba were going to get their vehicle refuelled at the petrol pump. When his brother reached national highway then at about 5.45 a.m. near Sanjay Gandhi Polytechnic, the first informant saw that from the side of Lucknow, one jeep came at great speed with intention to kill. They hit the jeep with the scooter of his brothers, both his brothers fell down, scooter was also overturned. After proceeding further, jeep also turned turtle on the road side. Javed, Khalid, Subhash @ Puttan, Shivdas @ Daddan and three unknown persons were sitting in the jeep, they alighted therefrom and started indiscriminate firing on his brothers, due to which his both brothers died at the spot. The scooter was damaged, gun was lying on the spot. One person sitting in the jeep had sustained injuries. Number of the Jeep was MZN-1795.

At this, Chik F.I.R. was scribed, Case Crime No. 121 of 2002 was registered and requisite entry was made in the report of the general diary. Investigation was taken over by Arun Kumar Verma, the then Station Officer himself. From the spot one country made pistol of .303 bore with two life cartridges, gun of deceased Shahdeo with three life cartridges were recovered from the spot. On the same day, on the basis of information received one accused Gautam died from the gun shot injury sustained by him during his encounter with the police party. Two accused during the investigation died. Shivdas @ Daddan, Subhas @ Puttan absconded and only against the present appellant chargesheet was submitted. After conclusion of the investigation, chargesheet was submitted against the present appellant.

During trial Shivdas @ Daddan also appeared and tried with the present appellant. The present appellant and co-accused Shivdas stood trial before the court of Special Judge, Gangster, Faizabad where they were charged under Sections 147, 148, 302/149 I.P.C., 7 Criminal Law Amendment Act and 3(1) of the Act, the charges were denied by them.

In order to prove the charges, on behalf of the prosecution, besides documentary evidence, in oral evidence nine witnesses were examined. Their details are as under:-

P.W.-1 Hari Deo Sharma, brother of the deceased persons, informant

P.W.-2 Rajendra Tiwari, alleged eye witness

P.W.-3 Dr. C.B.N. Tripathi, Autopsy Surgeon

P.W.-4 Const. Devi Baksh Singh, proved G.D. Entry

P.W.-5 Mahadeo Vishkarma, witness of inquest

P.W.-6 Mahoob Khan, produced to prove an earlier alleged incident, in respect of Gangster Act.

P.W.-7 S.I. Mazrul Hasan, conducted inquest

P.W.-8 Arun Kumar Gautam, First Investigating Officer

P.W.-9 Prakash Arvind, subsequent Investigating Officer

During trial, co-accused Shivdas @ Daddan absented. His case was separated and statement of the present appellant under Section 313 Cr.P.C. was recorded. He denied the facts of the prosecution version and claimed false implication. He did not give any evidence in defence. On conclusion of the trial, the present appellant was convicted and sentenced as above.

Feeling aggrieved the present appeal has been filed.

Heard Sri Nadeem Murtaza, learned counsel for the appellant and Ms. Madhulika Yadav, learned A.G.A. for the State and perused the record.

On behalf of the appellant, it has been submitted that during postmortem, no ante-mortem injury caused by fire arm could be found whereas ocular version of the occurrence claims that death had occurred due to gun shot and not from the accidental injuries. Learned counsel has submitted that from the medical evidence, case of the defence that both the deceased died in an accident and he was falsely implicated on the behest of one influential officer, stands substantiated.

He further submits that eye-witnesses are interested. They are planted witnesses and falsely deposing on the dictates of the brother of Ram Surat Tiwari, the then S.D.M. Sultanpur who boar grudge due to murder of his brother Ram Mohan Tiwari and from that murder case the appellant was acquitted.

On behalf of the State-respondent, these arguments have been repelled and it has been urged that findings recorded by the learned Special Judge are well substantiated from the record. He has given reasons in support thereof. The impugned judgment and order are factually and legally sound. They need no interference and appeal deserves to be dismissed.

First we would like to discuss the medical evidence which consist of statement of Dr. C.B.N. Tripathi, P.W.-3 who conducted autopsies on the dead bodies of the deceased Vasudeo Sharma and Shadeo Sharma on 14th July, 2002. Dr. C.B.N. Tripathi, P.W.-3 has recorded ante-mortem injuries found on the dead bodies of both the deceased. He has proved the postmortem reports and X-ray report Exhibits Ka-5 and Ka-6. According to him, when discrepancy occurred between the state of injuries and their cause as mentioned in police papers, he solicited orders for constituting a board, in pursuance thereof Dr. R.K. Arya and Dr. R.N. Srivastava were deputed to constitute board with him. When they jointly discussed the matter and examined the facts, they formed opinion that the deceased died due to shock and hemorrhage as a result of ante-mortem injuries in the bodies. No pallet was found. X-ray examination also substantiated this finding. During cross examination, he admitted that injury No. 3 of Vasudev Sharma could have been caused when a person carrying gun on his shoulder fell down. Except that no other fire arm wound was found. In the postmortem report, this witness has recorded ante-mortem injuries found on the dead body of Vasudeo Sharma as under:-

Lacerated wound of size 3 c.m. X 3 c.m. X bone deep present on dorsal surface of right forearm, 8 c.m. Distal to right elbow joint.

Abrasion of size 14 c.m. X 04 c.m. on anterior surface of right knee joint.

Firearm wound of size 3 c.m. x 2 c.m. x bone deep with blackening and tattooing present, 3 c.m. around the wound present on the right side of posterior part of head, 3.5 c.m. below and posterior to right ear. On exploration, no foreign body (pellet etc.) recovered from the wound.

He also recorded in the postmortem report ante-mortem injuries found on the dead body of deceased Shadeo Sharma. The same is quoted below:-

Laceration wound of size 1.5 c.m. x 1 c.m. present on left lateral side of chest which is muscle deep no communicating to the cavity, 22 c.m. below left axillary frit.

Abraded contusion of size 8 c.m. x 6 c.m. present on right side of chest lateral to right nipple.

Lacerated wound of size 2 c.m. x 1 c.m. x bone deep present on top of right shoulder.

Lacerated wound of size 2 c.m. x 1 c.m. x bone deep present on exterior surface of right leg.

Multiple abrasion in ara of 8 c.m. x 4 c.m. on outer surface of right thigh.

Traumatic swelling of size 18 c.m. x 10 c.m. present on middle of right thigh.

Haridev Sharma, P.W.-1 is the first informant and alleged eye-witness. In his statement on oath, he stuck to the original version that due to indiscriminate firing by the persons indicated in the First Information Report, his brothers died but even he admits that their scooter was hit by the jeep and they fell down. Jeep was driven at high speed.

Rajendra Prasad Tiwari, P.W.-2 is the second alleged eyewitness who was accompanying Haridev Sharma, P.W.-1. He has narrated the same story.

As claimed by these two witnesses, the jeep was driven with great speed when it collided with the scooter. Both the eyewitnesses admits it was a serious accident and its necessary implication is that there was probability that both the riders were hit with great force and fell down. In such cases, serious injuries would naturally have caused to them. This inference is fortified from the medical evidence. Therefore, on test of probability, defence version appears to be probable.

As against this, prosecution version has to be proved beyond all reasonable doubt. Ocular evidence in the present case stands contradicted with the medical evidence and this contradiction is not compatible with medical evidence. The medical evidence relates to facts perceived by the three doctors and deposed by one of them. We do not think after noticing his contradiction any reliance can be placed on the ocular version of the occurrence given by two eye-witnesses. Above view gets forfeited from the observation of the Hon''ble Apex Court made several times. The same is quoted below:-

In the case of Mani Ram v. State of U.P., reported in , 1994 Supp (2) SCC 289, the Hon''ble Supreme Court has been pleased to hold that if the evidence of prosecution witnesses is totally inconsistent with the medical evidence, it would not be safe to convict the accused on the basis of such evidence, the relevant portion of the judgment of Hon''ble Supreme Court is reproduced below:-

.......... It is well settled by long series of decisions of this Court that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case. In the present case as noticed above the evidence of the solitary witness Prabhoo Nath is wholly inconsistent with the medical evidence and, therefore, it is difficult to accept him as an eyewitness to the occurrence and therefore, it would not be safe to base the conviction on the solitary evidence of such a witness. There is no other evidence to support the prosecution case. Consequently the conviction of the appellants deserves to be set aside.

Also, there was absolutely no motive for the appellant to commit the alleged incident. The motive alleged by the prosecution appears to be reason for false implication of the appellant in a case, which in-fact was an accident. The appellant was earlier implicated in a case relating to the murder of one Ram Manohar Tiwari, however, it is the admitted case of the prosecution that the appellant and other accused persons were acquitted in the aforesaid case. The deceased Sahdeo Sharma was a witness of prosecution in the aforesaid case, which ended in acquittal. It is submitted that the brother of the aforesaid deceased Ram Manohar Tiwari in the said murder trial namely, Ram Surat Tiwari was holding the post Sub Divisional Magistrate at the time of alleged incident and he is very close to the PW-1 Hari Deo Sharma. P.W.-2 Rajendra Tiwari has also accepted his intimacy with aforesaid Ram Surat Tiwari. When the case in which deceased Sahdeo Sharma appeared as a witness against the appellant ended in acquittal, there was no occasion for the appellant to commit the murder, however, there was an occasion for the informant and Ram Surat Tiwari to implicate the appellant and other accused persons due to the accidental deaths of Sahdeo Sharma and Vasudeo Sharma.

In view of above, we find that the learned Special Judge has not appreciated the evidence in legal perspective. He has held that deceased had died in the manner alleged by the prosecution whereas from the medical evidence this finding appears to be perverse.

In view of above, we find the appeal has substance. The impugned judgment and order are full of factual and legal infirmities. They deserve to be set aside. Conviction and sentences awarded to the appellant also deserve to be set aside.

Appeal has substance, therefore, the appeal is allowed. The impugned judgment and order as also conviction and sentences awarded thereby are set aside. The appellant is acquitted from the charges levelled against him. The appellant is in jail, if he is not wanted in any other case, he be released forthwith provided he files his personal bond and two sureties in the like amount to the satisfaction of the Special Judge (Gangster) in compliance of Section 437-A Cr.P.C.

Office is directed to communicate this order to the court concerned and to send back the record to the court below.