Navratan Singh and Others vs State of Uttar Pradesh

Pramod Kumar Srivastava, J.

This appeal has been preferred against joint judgment of conviction and sentence dated 21/22.4.2010 passed by Additional Sessions Judge/Fast Track Court-III, Mainpuri in S.T. No. 375/2002, State v. Navratan Singh and S.T. No. 146/2006, State v. Mahesh Singh and another, relating to same crime No. 53/2001, section 147, 148, 149, 307, 302 IPC, p.s. Kurra district Mainpuri.

Mr. Arvind Kumar Singh, Advocate appeared on behalf of appellant Navratan Singh, Mr. J.N. Singh, Advocate appeared on behalf of appellants Mahesh and Raju; and Mr. A.N. Mulla A.G.A. appeared on behalf of the State of U.P.

We have heard the arguments on 09.04.2015 and the judgment was reserved.

Prosecution case in brief before trial court was that complainant Ram Pal Singh is resident of Gram Bhogpur, p.s. Kurra, district Mainpuri. On 8.5.2001 in his village the ''lagun'' ceremony of Dharmaveer, son of Mewaram was to be performed, in which complainant Ram Pal, his son Sandeep @ Dabloo, Parasram Singh, Mewaram and others were participating. On that day at about 1:00 p.m. accused Navratan Singh, Ripudaman Singh, Mahesh, Sonu, Raju Singh armed with gun came on the place of ''lagun''. Due to old enmity these accused persons had fired on Sandeep Singh @ Dabloo and on Mahipal Singh at a place in front of door of Mewaram. Due to this firing Sandeep @ Dabloo and Mahipal sustained injuries. Then complainant took them to police station and lodged first information report on basis of which case crime No. 53/2001, under sections 147, 148, 149, 307 IPC was registered. Due to injury sustained in this incident Sandeep @ Dabloo died; then offence of section 302 IPC was added during investigation. Medico-legal examination of injured Mahipal was done on 8.5.2001 at about 3:00 pm, when he was taken by the police to hospital. Post-mortem of deceased Sandeep @ Dabloo was performed on 09.05.2001 at about 11:00 AM. Thereafter Investigating Officer visited the spot, prepared site plan, taken statements of witnesses and submitted charge sheet against Navratan Singh, Mahesh and Raju. Charge sheets were submitted separately, so S.T. No. 375/2002, State v. Navratan Singh was initiated separately against Mahesh Singh and Raju. Another S.T. No. 146/2006 was initiated against Navratan Singh on submission of separate charge-sheet. But after committal of the cases the proceedings of two sessions trials were carried out jointly and both were decided by one judgment.

During trial of the case Navratan Singh was charged for offences under sections 148, 307/149, 302/149 IPC, and Mahesh Singh and Raju were separately charged for offences under sections 147, 148, 307/149 and 302/149. They denied the charges and claimed to be tried.

Prosecution side had examined PW-1 Ram Pal Singh complainant, PW-2 Dr. R.D. Pandey, Radiologist, PW-3 Mahipal Singh, PW-4 Dharam Veer Singh, PW-5 Dr. M.L. Gupta, PW-6 Dr. Awdhesh Sharma, PW-7 Amresh Chandra Pandey Zonal S.I.S., PW-8 S.I. Surendra Nath, PW-9 S.I. Gurudutt Sharma and PW-10 Inspector Harpal Singh. These witnesses had proved documentary evidences of prosecution side, which were exhibited.

After closure of prosecution evidence the statements of accused persons under section 313 Cr.P.C. was recorded, in which they have denied the allegations of prosecution side and told that complainant, deceased and witnesses are of criminal nature. Sandeep was murdered somewhere else but due to enmity his body was brought in the village and false report was lodged. Defence side had examined D.W.-1 Gyanendra Singh and D.W.-2 Constable Gajraj Singh in defence evidence.

After receiving evidence from the prosecution and defence side and after affording opportunity of hearing the trial court had passed judgment dated 21.04.2010 by which all the three accused, namely, Navratan Singh, Mahesh and Raju were convicted for charged offences of sections 148, 307, 302 IPC Then after affording opportunity of hearing on point of quantum of sentence learned Additional Sessions Judge had passed order of sentence on 22.04.2010 by which each accused was sentenced for imprisonment of one year for offence under section 148 IPC, imprisonment of life and Rs. 5,000/- as fine (in default of payment three months'' imprisonment) for charge under section 302 IPC, and seven years rigorous imprisonment and Rs. 3,000/- as fine (in default of payment one month''s imprisonment) for charge under section 307 IPC it was also directed by the trial court that all the sentences would run concurrently. Aggrieved by this impugned judgment of trial court, present appeal has been preferred by the three convicted accused persons.

Learned counsel for the appellants pleaded that all the prosecution witnesses are hardened criminals and have long criminal history. Out of three prosecution witnesses of fact, PW-1 Ram Pal Singh is life convict, PW-4 was also accused of murder case and came for evidence in Court from jail. Therefore, they should not be treated as reliable witnesses. Learned counsel for the appellants also contended that trial court has not considered defence evidence of alibi of accused in the school at the time of incident and passed defective judgment. Appellants'' side also contended that murder weapon was never recovered by the police, therefore, benefit of doubt should be given to appellants. Learned counsel for the appellants also contended that it is highly improbable that such murder would be caused in front of large gathering of a family function. He also contended that there is serious contradiction in evidence of prosecution witnesses, which make their testimony untrustworthy. Therefore the impugned judgment and conviction based on evidence of such witnesses should be set aside and appeal should be allowed.

Learned A.G.A. Contended that impugned judgment of conviction is based on testimony of intact eye witnesses. Initially case was registered for offence under section 307 IPC and later on converted for offence under section 302 IPC when Sandeep @ Dabloo died due to injuries received during charged incident. In present case one injured had died but other injured Mahipal Singh had supported prosecution case in believable manner. He also contended that defence evidence produced by appellants during trial is untrustworthy and unreliable. Attendance register produced by defence side is untrustworthy because accused himself is sole creator of that register and the person proving that register was never present at the time of making of entries at relevant time.

We have considered rival contentions and gone through the records of the case.

We are in agreement with the contention of appellants'' side that learned Additional Sessions Judge had not specifically dealt with defence evidence of alibi. It appears that on basis of evidences of prosecution witnesses the trial Court had found the presence of witnesses and accused believable on spot at the time of charged incident, so no specific finding was given by the Sessions Judge on plea of alibi. We have meticulously considered the defence evidence regarding plea of alibi of accused Mahesh. D.W.-1 Gyanendra Singh is teacher and was posted on 8.5.2001 as in-charge Principal/teacher in Kanya Primary Pathshala, Bhawanipur, Karhal, district Mainpuri. He stated that near his school there is another primary school in Bhawanipur for boys. On 8.5.2001 Principal of that boys school Mahesh Pal Singh was present in that school from 7:00 AM in the morning till 1:35 PM afternoon. This witness had presented original register and proved its copy as Ex.-Kha-1. D.W.-1 is neither colleague of Mahesh Pal nor was posted in boys school of Bhawanipur where accused Mahesh Pal Singh was posted on 8.5.2001. D.W.-1 has stated in his cross examination that he remained in his school from 6:30 AM to 2:00 PM because he was alone there and was also doing survey calculation work of his school. Since this witness D.W.-1 was present in girls school and was not posted in boys school where accused Mahesh Pal Singh was posted, so his statement cannot prove the physical presence of accused Mahesh in his school of posting. D.W.-1 has also stated that in his primary boys school accused Mahesh Pal Singh was alone. Thus D.W.-1 was posted and present in his girls school at the time of incident and at that time duty of accused Mahesh was in boys school where no one else was present with him. No one has specifically stated in the court that he had seen or was present with accused Mahesh Pal Singh in boys school at the time of charged incident. Attendance register Ex.-Kha-1 produced was not in his handwriting of D.W.-1. This document Ex.-Kha-1 was prepared by accused Mahesh Pal Singh who is creator of this document and its entries. It was suggested to D.W.-1 that at that time on 8.5.2001 schools were closed. Best witness to prove this register and its entries was the person who had prepared this document or who had seen accused Mahesh in his school on 8.5.2001. No such evidence was adduced by defence side. In these circumstances, the evidence of D.W.-1 is not more than that of hearsay type, and is of no help to accused Mahesh Pal Singh or appellants'' side.

D.W.-2 Constable Gajraj Singh of p.s. Kurra had proved criminal history sheet of PW-1 Ram Pal Singh, of PW-4 Dharam Veer Singh and of deceased Sandeep @ Dabloo. He had proved that these three persons had been accused in several cases. The pendency of criminal cases against PW-1 Ram Pal Singh, PW-4 Dharam Veer Singh and deceased Sandeep @ Dabloo is a proved fact, which was admitted by prosecution witnesses also. But such criminal history or the nature of witness looses its value when facts are proved by direct and believable evidences relating to fact. Therefore, we have to scrutinize the facts and evidence of the case in hand.

Out of five accused persons named in the F.I.R., the case of one Sonu son of Lal Singh was separated due to his non availability. Charge sheet was not filed against another accused Ripudaman Singh son of Navratan Singh. Thus trial was conducted against three accused Navratan Singh, Mahesh Pal Singh and Raju. PW-1 had stated that on 7.5.2001 in his village there was ''lagun'' (Tilak) ceremony of Dharam Veer Singh son of Mewaram. In that ceremony he (PW-1) was participating with his son Sandeep @ Dabloo, Parsuram, Mahipal Singh (PW-3) and other persons. Then at about 1:00 PM accused persons came there equipped with fire arms; Navratan Sing had double barrel gun and other accused persons had country made pistols. At that time Sandeep @ Dabloo and Mahipal were standing on brick road (''kharanja''), then Navratan Singh came there, started shouting on Sandeep and fired on him. Other accused also fired on them due to which Mahipal and Sandeep @ Dabloo were injured. Then he got the report written by Chandrabhan and gave it to police station at about 1:30 PM. This witness had proved written report Ex.-Ka-1 and also told that police had sent both injured victims to Karhal hospital, where Sandeep died and Mahipal was treated. This witness (PW-1) is a witness of fact. He was properly cross-examined by defence side but nothing had come in his cross-examination that may create doubt on truthfulness of his statement. PW-1 had admitted that he was convicted in another case of murder. He had also admitted that at the time of incident in question there was continuing enmity between him and accused persons for last 15-20 years. He had specifically stated in his statement that at the time of incident it was Navratan Singh who fired first then other witnesses had fired, due to which Sandeep @ Dabloo and Mahipal were injured.

PW-3 Mahipal Singh is injured of this case. He was medically examined on 8.5.2001 at about 3:00 PM in hospital when he was taken there by police. At the time of said medico-legal examination following injuries were found on his body, which were proved by PW-6 Dr. Awadhesh Sharma, who had prepared injury report Ex. Ka-4:--

"1. Firearm wound of entry 0.2 cm x 0.2 cm x depth not probed on the posterior aspect of left forearm. Situated 6 cm below elbow joint. Kept under observation advised X-ray.

Firearm wound of entry 0.2 cm x 0.2 cm x depth not probed on the lateral aspect of abdomen on left side. Situated 8.5 cm above interior superior iliac spine. Kept under observation advised X-ray.

Lacerated wound 1.2 cm x 0.1 cm x muscle deep in front of chin. Situated 2.5 cm below right angle of mouth. Kept under observation."

PW-3 Doctor reported that all injuries were about fresh and could have been caused by fire arm.

This medico-legal injury report and statement of PW-6 Doctor proved that on 8.5.2001 at about 3:00 PM in the day fresh fire arm injuries were found on the body of PW-3 Mahipal Singh. This injured witness (PW-3) had supported the prosecution case averment of F.I.R. and statement of PW-1 during his examination. He had stated that on 8.5.2001 at about 1''O clock in the day, after ''lagun'' (Tilak) ceremony, he was standing on the kharanja road in front of house of Mewaram and talking to Sandeep. At that time Navratan Singh, Ripudaman Singh, Mahesh, Raju and Sonu came together and fired over them. The shot of fire hit him and Sandeep due to which they were seriously injured and fell on ground. Immediately Parsuram, Mewaram, Dharamveer Singh and Chandrabhan witnessed the incident and shouted, then accused persons had fled away from spot. After that Ram Pal Singh (PW-1 complainant) and other persons went police station Kurra on tractor from where they were sent for Karhal hospital in police custody, but Sandeep died in Karhal hospital and he (PW-3) was sent to Mainpuri hospital where he was put under treatment and X-ray was conducted. PW-3 had specifically stated that he was injured due to fire of accused-appellant Navratan Singh. He also stated that he cannot say as to whether fire of any other person had hit him or not. PW-3 had also stated that he had no enmity with accused persons.

PW-4 Dharam Veer Singh is the person for whose ''lagun'' (Tilak) ceremony the function was organized on the date of incident. He stated that on 7.5.2001 his ''lagun'' (Tilak) ceremony was performed and after that on 8.5.2001 there was gathering at his house. By time some relatives had gone and some were still staying. At that time he was present at his house where Ram Pal Singh (PW-1), Prakash, Dabloo (deceased), Parasram, Ramesh Chandra and Mewaram were also present; then at about 1:00 PM armed with gun, Sonu armed with gun, Navratan, Ripudaman son of Navratan Singh, Mahesh and Raju armed with country made pistols came there and fired on Dabloo and Mahipal with intention to kill them due to old enmity. Due to this fire, Dabloo and Mahipal were seriously injured, then they were taken to police station for lodging report. After some time Dabloo had died due to that injury. The deposition of this witness (PW-4) also supports prosecution case, facts of F.I.R. and statements of PW-1 and PW-3. There is no contradiction in oral and documentary evidences of prosecution side, which are in support of each other.

Learned counsel for the appellants contended that PW-4 had stated that there were 100-200 fire at the time of incident within 4 or 5 minutes, but no cartridges or pellets were found on spot. We have considered this fact. It appears that due to abrupt firing and serious injuries and death of his guest Sandeep, PW-4 became very conscious and made some exaggeration in his statement regarding incident. It is humanly impossible to fire 100-200 times by country made pistol or double barrel guns. Being interested witness due to death and injury of his guests, there is possibility of exaggeration by PW-4 in statement of facts, but there is no other contradiction. His statement supports the prosecution version that at the time and place of charged incident appellants came in front of house of Mewaram and fired on Sandeep @ Dabloo and Mahipal, who were standing at brick road (''kharanja''). This fact was immediately reported in F.I.R. by complainant and was proved by PW-1 and PW-3 also. PW-3 had specifically stated that fire of Navratan Singh had hit and injured him. This fact was also supported by PW-1 and PW-4. Mere exaggeration on the point of number of fires made cannot make whole prosecution evidence unreliable. This is very small and negligible discrepancy, which was rightly ignored by trial court.

Learned counsel for the appellants contended that written F.I.R. was lodged on behalf of complainant PW-1 Ram Pal Singh but it is written in a way as if Ram Pal Singh is a third person and not the author of F.I.R. On the basis of this, he had pleaded that F.I.R. was lodged by any other person in the name of complainant Ram Pal Singh, which doubts the prosecution theory. We have considered this argument. PW-1 Ram Pal Singh had stated that written F.I.R. Ex.-Ka-1 was dictated by him to Chandrabhan, then he had signed over it. Ram Pal is the father of deceased Sandeep and at the time of writing of the written report, condition of his son Sandeep @ Dabloo was very critical. In these circumstances and situation of tension, there is every probability that the scribe Chandrabhan had written a few words in which Ram Pal was treated as a third person and not first person. The entries of G.D. proved the F.I.R. and presence of PW-1 and the scribe. There was very short time gap between injury caused to Sandeep @ Dabloo and his death. Immediately after the incident, F.I.R. was lodged by complainant PW-1 Ram Pal for offence under sections 307, 147, 148, 149 IPC because at that time Sandeep was alive but within a couple of hours Sandeep had died. Had the Sandeep being dead at the time of lodging of F.I.R., this fact must have been written in F.I.R. and F.I.R. should have been for the offence of murder. Soon after lodging of F.I.R. and registering case crime No. 53/2001 under sections 147, 148, 149, 307 IPC Sandeep had died. Only after that case was converted for offence of murder. Thus there appears no ante-timing in lodging of F.I.R. There may be a few negligible minor discrepancies in prosecution evidences but there is no major contradiction or major discrepancies in statement of any witness or prosecution evidence.

Learned trial court had meticulously considered facts, circumstances and evidences adduced in this case and thereafter reached to finding of fact that three accused persons against whom trial concluded, namely, Navratan Singh, Mahesh Pal Singh and Raju had a common intention and common object of causing death of Sandeep @ Dabloo and Mahipal Singh (PW-3); and for obtaining said object they had fired on these two persons on 8.5.2001 at about 1:00 PM in the day on kharanja road in front of house of Mewaram. The finding of fact reached by trial court is based on evidences adduced and is correct. Even the postmortem report proved by PW-5 Dr. M.L. Gupta showed the several fire arm injuries on body of deceased Sandeep @ Dabloo. This witness (PW-5 Dr. Gupta) had also collected metallic objects and pellets from the body of deceased and proved them. The medico-legal evidences and injury reports as well as postmortem report prove to the conformity that injuries on body of Sandeep @ Dabloo and Mahipal were caused on 8.5.2001 at about 1:00 PM. Oral, documentary and circumstantial evidences were properly discussed by the trial court in his judgment and in the finding of facts were found to be correct regarding charged offences against appellants. Therefore, those findings of fact is hereby confirmed. Accordingly, appeal is liable to be dismissed.

Though no argument was advanced on quantum of sentence but we have considered on this point also. Accused appellants had fired with firearm attempting murder and committed murder after forming an illegal assembly, therefore, punishment of one year for offence under section 148 IPC appears appropriate. The minimum sentence of life imprisonment and Rs. 5,000/- as fine was awarded by trial Court to each accused for offence under section 302 IPC, and for offence of section 307 IPC imprisonment of seven years and Rs. 3,000/- as fine, which appears appropriate and just. Learned Sessions Judge has directed that all sentences would run concurrently. These sentences appear appropriate. Therefore, it cannot be said that excess punishment was awarded to any of the appellants. On point of sentence, the order of trial court is also confirmed.

For the reasons discussed above, this appeal is dismissed. Appellant Navratan Singh is in jail. Appellant-accused Mahesh Singh and Raju have been released on bail. They are directed to surrender immediately for undergoing punishment. The Chief Judicial Magistrate, Mainpuri is directed to ensure that accused Mahesh Singh and Raju are taken into custody and sent to jail for undergoing sentences awarded against them through impugned judgment dated 21/22-04-2010 in S.T. No. 146/2006.