Tara Singh and Others vs State of U.P.

Hon''ble Servesh Kumar Gupta, J.—In view of the reasons mentioned in the accompanying affidavit, urgency application No. 1907/2012 is allowed. Heard learned Counsel for the parties and perused the record. This appeal is directed against the judgment and order dated 24.7.1999 rendered by Sessions Judge, Nainital in Sessions Trial No. 120/1996, State of U.P. v. Tara Singh & 4 Others, whereby the accused appellants were found guilty for the various offences including Section 307/149, 147, 148, 427 IPC. They were sentenced to various terms of imprisonment and fine. Feeling disgruntled, all the convicts have come up before this Court in the instant appeal.

At the very outset, it would be pertinent to mention that it is a case of scuffle in which firing and brick batting has allegedly been done in the marriage party by the appellants. The allegation of firing was made against the appellant No. 2 Jagdish, while appellant No. 3 Bachchi Singh allegedly committed robbery, however, no such charge was levelled against him by the trial court. The alleged role of other three accused persons is of exhortation. It is worthwhile to mention here that appellant No. 2 Jagdish and appellant No. 3 Bachchi Singh died during pendency of this appeal and, accordingly, appeal, in respect of them, was abated by the order dated 26.12.2011 passed by this Court.

It transpires that the aforesaid unfortunate incident occurred in a marriage party between few members of groom side and the bride side. As per the FIR lodged by Sher Jung Singh on 13.6.2005 (Ex. Ka-7), the marriage party set out from Bhimtal (district Nainital) to Dhaulakhera, a place 7 kilometres away from Haldwani towards Bareilly road. When the marriage party reached at its destination, few members of the marriage party started altercations with all the appellants, which were from bride''s side. Noticing this quarrel, which had developed all of a sudden, Jaswant Singh intervened. It is alleged that all the accused appellants objected on his intervention and meanwhile Jagdish Singh Negi opened fire upon Jaswant Singh, which hit his left shoulder and he fell down at the spot. At that very time, it is alleged that Bachhi Singh Negi snatched a golden chain from the neck of Jaswant Singh. Somehow Jaswant Singh was shifted in a Maruti car in order to carry him for medical assistance, but all the accused persons further exhorted and shouted upon Jaswant Singh and his other companions. Meanwhile, Tara Singh allegedly opened fire, which hit the front wheel of the car. The accused person started pelting stones. Anyhow, the injured Jaswant Singh was shifted to the hospital at Haldwani where he was medically treated.

After investigation, chargesheet was submitted against all the accused appellants for the offences of Section 147, 148, 149, 307, 427 IPC. Chargesheet is Ex. Ka-11. Charges were accordingly levelled as per the chargesheet and case was proceeded for trial.

It is pertinent to mention that initially the report was lodged for the offence of Section 395 & 397, but after investigation, the allegations of dacoity & robbery, as envisaged u/s 395 & 397 IPC, could not be verified. So, the same was converted into Section 147, 148, 149, 307, 427 IPC.

Learned Counsel on behalf of the appellants argued that from the very beginning the endeavour was made by way of lodging FIR to implicate the appellants under graver offences like 395 and 397 IPC, while there was no such incident at all. That is why the investigation officer Abdul Sattar, who has been examined as PW7 in the case, has filed the chargesheet only for the offences as stated above.

Prosecution has examined PW1 Harish Padaliya and, it has been argued on behalf of the appellants that this witness has a long history of committing several types of crime, which he has also admitted in his cross-examination faced by him at the hands of the defence counsel. At page 4 of his statement, he has accepted himself to be an accused under National Security Act, Gangsters Act, attempt to murder and of murder as well. He has accepted that either these case are pending against him or he has been acquitted in some those cases. But the fact remains that the evidence of such a person, who has chequered criminal history, can hardly be believed and no reliance can be placed upon the statement of such a witness. So, his testimony is of no avail to the case of prosecution. As such, the trial court has erred in placing reliance on his statement.

PW2 Jaswant Singh has proved opening of the fire by the accused Jagdish, which hit his shoulder. But the accused Jagdish died during pendency of this case and his appeal has been abated. This witness Jaswant Singh has also stated that Bachchi Singh had snatched a golden chain from him, which was weighing 24 grams. Although this allegation was found to be false during the course of investigation by the investigating officer himself, but even if it is accepted for a moment, no charge of robbery was levelled against Bachchi Singh by the trial court. Furthermore, Bachchi Singh has also died and the appeal in respect of him stands abated.

Now remain only three accused persons, namely, Tara Singh, Mahendra Singh and Udai Singh.

It is also pertinent to mention that Tara Singh and Jagdish Singh are the real brothers, while rest of the accused Bachhi Singh, Mahendra Singh and Udai Singh are real brothers. Thus all the accused are either real brothers or cousins and are the grandsons of same grandfather.

PW3 Dr. M.C. Tiwari, who medically examined the injured Jaswant Singh, has proved the medical report Ex. Ka-2 on the record. He has proved that the gunshot wound of the entry was found on the shoulder of Jaswant Singh.

PW4 Head Constable Ram Naresh has written the chick report on the basis of FIR lodged by Sher Jung Singh. Statement of this witness is only formal in nature.

PW5 Pan Singh is not an eyewitness of the incident. He himself has admitted in his cross-examination that he had not seen the alleged incident. Hence, statement of this witness amounts to hearsay evidence and is not of much significance to the case of prosecution.

PW6 Amarjeet Singh hails from the village Lamba Chaur, which is also the village of PW1 Harish Padaliya as well as of PW2 Jaswant Singh and Sher Jung Singh, the lodger of FIR, and this fact has been stated by the injured Jaswant Singh in his cross-examination. This way, all these witnesses appear to be interested one against the accused appellants.

It is very amazing that no independent person from the marriage party either belonging to the family of groom or bride has been examined in order to corroborate the prosecution version. The statements of the prosecution witnesses do not inspire the confidence, which is required for holding rest of the accused guilty. The investigating officer Abdul Sattar has already found that the allegations made in the FIR were highly exaggerated.

Having considered the submissions of learned Counsel for the parties and the facts and circumstances of the case, it is very much clear that an altercation started between few persons, which took place at the spur of moment. The altercation escalated resulting into opening of fire by Jagdish Singh, whose appeal, being dead, has been abated. Another accused appellant Bachchi Singh, against whom allegation of robbery was made, has also died and hence his appeal was also abated. The alleged role of other accused appellants is of the exhortation only, and it can be observed that invariably, in such an incident, the names of many other persons are roped in order to implicate them falsely on account of their being relatives of the main assailant and, in the present case, the main assailant was Jagdish Singh and Bachchi Singh, who are dead now. As regards the other three accused persons, namely, Tara Singh, Mahendra Singh and Udai Singh, they had assembled in connection with a marriage and the offence committed by the said assailants was not in furtherance of the common object between them and the assailants. So, this Court feels that no case is made out against rest of the aforenamed accused appellants and they are liable to be acquitted.

Accordingly, the appeal of Tara Singh, Mahendra Singh and Udai Singh are allowed. Their conviction and sentence, as awarded by the trial court, is hereby quashed. They are acquitted of the charges of offence levelled against them. Impugned judgment and order dated 24.7.1999 rendered by Sessions Judge, Nainital in Sessions Trial No. 120/1996, State of U.P. v. Tara Singh & Others, is set aside to the extent indicated above. Appellants Tara Singh, Mahendra Singh and Udai Singh are on bail. Their personal bonds and sureties are discharged. They need not surrender unless required in any other case. Let a copy of this judgment and order be sent to the lower court. Trial court record be sent back.