Allowed

Dharm Singh v. State of U.P.

Allahabad HC25 May 2018CRLA/1413/2015

Case brief

AI extract

What is this about?

Appeals by four appellants convicted under Section 302 IPC for the shooting death of a man near a handpump. The court found the two eye-witness accounts contradicted by medical evidence, call detail records and the site plan, drew adverse inference from withheld witnesses, and acquitted all four appellants giving them benefit of doubt.

What did the court decide?

Conviction and sentence of all four appellants set aside; appellant Dharam Singh released forthwith, other appellants on bail need not surrender, bail bonds cancelled; personal bond with sureties unde

Dharm Singh Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2018)

(1)

A.F.R.

Court No. - 4

Case :- CRIMINAL APPEAL No. - 1413 of 2015

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Appellant :- Dharm Singh Respondent :- State Of U.P. Counsel for Appellant :- K.N. Singh,Brijesh Sahai Counsel for Respondent :- Govt.Advocate,N.K. Mishra

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Connected with

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Case :- CRIMINAL APPEAL No. - 724 of 2015

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Appellant :- Maan Singh Respondent :- State Of U.P. Counsel for Appellant :- K.N. Singh Counsel for Respondent :- Govt.Advocate,V.K. Gupta

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Connected with

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Case :- CRIMINAL APPEAL No. - 725 of 2015

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Appellant :- Daan Singh Respondent :- State Of U.P. Counsel for Appellant :- Vivek Kumar Singh Counsel for Respondent :- Govt.Advocate

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Connected with

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Case :- CRIMINAL APPEAL No. - 1230 of 2015

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Appellant :- Karan Singh Respondent :- State Of U.P. Counsel for Appellant :- K.N. Singh Counsel for Respondent :- Govt.Advocate,N.K. Mishra

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Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Gupta,J.

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(1) Heard Sri Manish Tiwari, Sri K.N. Singh and Sri Atharva Dikshit, learned counsel for the appellants, Sri N.K. Mishra and Smt. Shilpa Ahuja, learned counsel for the informant and Smt. Manju Thakur, learned A.G.A.-I for the State.

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(2)

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(2) These four appeals have been preferred by Dharm Singh, appellant in Criminal Appeal No. 1413 of 2015, Maan Singh, appellant in Criminal Appeal No. 724 of 2015, Daan Singh, appellant in Criminal Appeal No. 725 of 2015 and Karan Singh, appellant in Criminal Appeal No. 1230 of 2015 against the judgement and order dated 13.02.2015 passed by Additional Session Judge, Court No. 1, Mahoba in Session Trial No. 38 of 2012, “State of U.P. Vs. Dharm Singh & Others” arising out of Case Crime No. 1025 of 2010, P.S.- Charkhari, DistrictMahoba by which all the appellants have been convicted and sentenced to imprisonment for life and a fine of Rs. 50,000/- each and in case of default in payment of fine, one year additional imprisonment u/s 302 I.P.C. each.

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(3) Briefly stated the facts of this case are that P.W.1 Dr. Keshari Singh, son of Bhagwan Singh, resident of village- Bamhaurikala, P.S.- Charkhari, District- Mahoba, gave a written complaint (Ext.Ka.1) at P.S.- Kotwali Charkhari on 17.07.2010 at 5:55 a.m stating therein that his brother Drigpal Singh @ Chhotey Raja (deceased) who was working as a caretaker of the Airtel tower, was going towards the tower to attend his duty on 17.07.2010 at 5 a.m. and as soon as he reached in

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front of the door of the house of Tilak Singh Tomar, accused-appellants namely Dharm Singh, Karan Singh, Daan Singh and Maan Singh with whom the informant had an old enmity, were already sitting near the hand pump with their arms, caught hold of the informant's brother, Drigpal on which he shouted. Hearing his shouts, P.W.1 Dr. Keshari Singh and P.W.2 Ramendra Singh @ Ramu ran towards him to save him but the appellant Dharm Singh shot his brother Drigpal with his firearm which hit his brother when the informant P.W.1 Dr. Keshari Singh and P.W.2 Ramendra Singh @ Ramu ran towards the appellants to catch them, they fled with their firearms from the place of occurrence, exhorting and shouting, towards east. The informant took his brother to Charkhari Hospital where the doctor declared him brought dead.

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(4) On the basis of the written report (Ext.Ka.1), Case Crime No. 1025 of 2010 u/s 302 I.P.C. was registered against the appellants Dharm Singh, Maan Singh, Daan Singh and Karan Singh on 17.07.2010 at about 5:55 a.m. which was recorded in the G.D. vide rapat no. 6 time 5:55 a.m. on the same day.

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(5) The inquest on the body of the deceased Drigpal

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(4)

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Singh was held in the hospital and after completion of the inquest, inquest report was prepared. His dead body was dispatched along with the necessary documents namely letter addressed to C.M.O, letter addressed to R.I., photo nash and challan nash for postmortem. The postmortem on the deceased's body was conducted by P.W.3 Dr. Pratap Singh in District Hospital, Mahoba who also prepared his postmortem report (Ext.Ka.2).

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(6) After completing the investigation, the Investigating Officer submitted charge-sheet against the accused-appellants namely Dharm Singh, Maan Singh, Daan Singh and Karan Singh u/s 302 I.P.C. before the Chief Judicial Magistrate, Mahoba.

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(7) Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Mahoba committed the case for trial of the accused-appellants to the Court of Sessions Judge, Mahoba where it was registered as S.T. No. 38 of 2012, “State of U.P. Vs. Dharm Singh & Others” and made over for trial from there to the Court of Additional Sessions Judge, Court No. 1, Mahoba, who on the basis of the material on record and after hearing the prosecution as well as the accused on the point of

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charge, framed charge against all the four accusedappellants u/s 302/34 I.P.C. The accused-appellants abjured the charge and claimed trial.

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(8) The prosecution in order to prove its case against the accused-appellants examined P.W.1 Dr. Keshari Singh, informant and brother of the deceased and P.W.2 Ramendra Singh as witnesses of fact while P.W.3 Dr. Pratap Singh, P.W.4 Constable Shamsul Haq, P.W.5 Inspector Ramsukh Verma, first Investigating Officer of the case and P.W.6 Inspector Satyveer Singh, second Investigating Officer of the case were examined as formal witnesses.

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(9) The accused-appellants in their statements recorded u/s 313 Cr.P.C. denied the prosecution case and alleged false implication. They further stated that the charge-sheet was submitted in this case on the basis of tainted investigation and the witnesses had falsely deposed against the appellants due to previous enmity.

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(10) The defence examined Maheshwari Deen as D.W.1. The prosecution as well as the defence adduced documentary evidence also which has been dealt with by the learned trial Judge in detail in the impugned judgement and to which we shall refer as and when the

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context so requires.

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(11) Learned Additional Sessions Judge, Court No. 1, Mahoba after considering the submissions made by learned counsel for the parties before him and scrutinizing the evidence on record, both oral as well as documentary, convicted all the four appellants and awarded aforesaid sentence to them.

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(12) Hence, this appeal.

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(13) Sri Manish Tiwari, appearing for all the four appellants has submitted that the prosecution has miserably failed to prove by adducing any reliable evidence that the incident had taken place at the time, place and manner as narrated in the F.I.R. The incident had taken place between 3 A.M. to 4 A.M. as deposed by P. W. 1 Kesri Singh in his cross-examination when it is pitch dark and there being no evidence evincing any source of light at the place of occurrence it was neither possible for the so called eye-witnesses either to see the occurrence or to identify the accused considering the distance between the place of incident and the spot from where the witnesses had allegedly seen the occurrence. The evidence of two witnesses of fact adduced by the prosecution namely P.W.1 Keshari Singh and P.W.2

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Ramendra Singh upon which the learned trial Judge has extensively placed reliance while holding the appellants guilty, is full of contradictions and material improvements and, does not inspire any confidence. It is established to the core that neither P.W.1 Dr. Keshari Singh who admittedly was not residing permanently in village- Bamhaurikala and had settled permanently in village-Naugaon which was at a distance of about 65-75 kms from village- Bamhaurikala, was present at the place of occurrence at the time of the incident nor he had given information about the incident to P.S.Charkhari by his mobile or had taken the deceased to the hospital as claimed by him. Sri Manish Tiwari further submitted that the investigation in this case is totally tainted. The prosecution has failed to come up with any explanation for not examining either the deceased's widow or his children or Devi Singh who would have been the best witnesses to corroborate the prosecution story that the deceased had left his house on the date of the incident for going to the Airtel Tower to attend his duty especially in view of the admitted fact that the prosecution has failed to lead any legally admissible evidence to establish that the deceased was employed

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as custodian in the Airtel tower. That apart no explanation is coming forth from the side of the prosecution as to why the facts stated by Smt. Sunita Singh, widow of the deceased in her application moved before the S.P., Mahoba in which she had stated that P.W.1 informant Dr. Keshari Singh had falsely implicated the appellants in the case of murder of her husband which is a clear indication of the fact that a deliberate effort was made by the Investigating Officer to shield the real culprits and to falsely implicate the appellants. The medical evidence on record does not corroborate the prosecution story. The impugned F.I.R. in this case is ante-timed. Hence, neither the recorded conviction of the appellants nor the sentence awarded to them can be sustained and are liable to be set-aside.

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(14) Smt. Manju Thakur, learned A.G.A.-I appearing for the State has vehemently submitted that it is fully proved from the evidence of P.W.1 informant Dr. Keshari Singh and P.W.2 Ramendra Singh that the appellant Dharm Singh had shot deceased Drigpal Singh on 17.07.2010 at about 5 p.m. in front of the door of the house of Tilak Singh when he was going to the Airtel tower to attend his duty on the exhortation of the other

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appellants. The medical evidence on record fully corroborates the prosecution story. There are no material contradictions or improvements in the evidence of the two witnesses of fact. Even if it is assumed for the sake of arguments that there are some discrepancies, contradictions or improvements in their testimonies, the same are not so material so as to effect the core of the prosecution story rendering it untrustworthy. The failure of the prosecution to examine the wife and the children of the deceased or Tulsi Ram would not in itself vitiate the recorded conviction of the appellants. The facts stated by Smt. Sunita Singh in her application moved before the S.P., Mahoba in which she had stated that the appellants were innocent and the matter was not being investigated properly, were thoroughly examined by the Investigating Officer. She further submitted that although it is true that P.W.1 Dr. Keshari Singh on the date of incident was not residing permanently in villageBamhaurikala and was practising medicine in villageNaugaon but there is no dispute about the fact that he had his ancestral property in village- Bamhaurikala and he used to visit his native village occasionally and on the date of the incident, he had come to village-

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Bamhaurikala in the evening preceding the date of the incident and he had stayed in the house of his brotherin-law in village- Bamhaurikala and hence, his presence at the time and place of the occurrence stands explained to the hilt.

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(15) The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not.

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(16) With this object in our mind, we first proceed to scrutinize the evidence of the two eye-witnesses of the incident produced by the prosecution during the trial namely P. W. 1 and P. W. 2. It is not disputed that both the eye-witnesses are close relatives of the deceased, P. W. 1 Keshri Singh being his real brother while P. W. 2 Ramendra Singh hiis nephew (Bhanja).

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(17) P.W.1 informant Dr. Keshari Singh, who is the brother of the deceased, in his statement recorded during the trial deposed that four and quarter years before the date on which his statement was recorded on 01.04.2013, his brother Drigpal Singh was murdered by four persons on 17.07.2010 at about 5 a.m. in villageBamhaurikala, P.S.- Charkhari, District- Mahoba in front

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of the house of Thakur Tilak Singh. At the time of the incident, he was lying on his cot on the roof. He had seen his brother Drigpal Singh going towards the tower. As soon as his brother reached the hand pump, out of the four appellants Dharm Singh, Karna Singh, Daan Singh and Maan Singh who were already waiting there armed with rifles, a D.B.B.L gun and a lathi, appellants Daan Singh and Maan Singh caught hold of Drigpal Singh on which he shouted for help on which the informant and Ram Singh stood up and challenged the appellants. As soon as Drigpal freed himself from the clutches of Daan Singh and Maan Singh, he ran towards his house and while running he turned back and looked at the appellants, then on the exhortation of appellant Karan Singh that he should not be left alive and should be killed, the appellant Dharm Singh shot at Drigpal Singh from his rifle. The shot hit him on his left hand and the bullet after breaking the bone pierced into his chest whereafter he ran for about 5-10 paces and then he fell on the ground in front of his house. On seeing this, they came down from the roof and challenged the accused-appellants on which they fired in the air and abusing and threatening them, they ran towards the

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east. P.W.1 informant Dr. Keshari Singh further deposed that he was a doctor and on seeing the serious condition of his brother Drigpal, he took him in a tractor to C.H.C. Hospital. On reaching the government hospital, the doctors present there declared Drigpal brought dead. Thereafter, the informant procured a paper from the hospital and scribed the report of the incident in his hand-writing and informed P.S.- Charkhari. He proved his signature on the written report (Ext.Ka.1). He next stated that the police after registering the case, came with him to the hospital for conducting the inquest and the inquest report was prepared before him. On the date of the incident, the Investigating Officer had gone to the place of incident and after inspecting the same on the pointing out of the informant, prepared the site plan and recorded the statements of the witnesses. He collected plain and blood-stained earth and cartridges from the place of incident. The accused had fled after the incident. The police tried for 18 months to arrest the accused-appellants and had even declared a prize money but could not catch them. Later on, the accusedappellants surrendered themselves before the Court. The informant further deposed that he knew accused-

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appellant Dharm Singh, Karan Singh, Daan Singh and Maan Singh who were present before the Court and stated that they were the same persons who had murdered his brother Drigpal before him. The incident was also witnessed by one Ramendra Singh who was a tender-hearted fellow and had fallen unconscious after witnessing the incident. He further stated that he had a licensed gun in his name. The informant did not sit in his clinic daily but sat only when there was work. The clinic was situated between Charkhari and Naugaon. Sometimes he came to his house in the evening and sometimes he stayed back in Naugaon. The informant also stated that he did not know the number of house in Bamhaurikala as he was not the custodian of that house. His family lived in the house in Bamhaurikala, in the east whereof is the house of Tilak Singh, in the west is the field of Puttan Tiwari, in the north is the field of the informant and in the south are the ruins of Babu Singh Gautam. The aforesaid house of the informant is made up of bricks which has no roof. The informant next stated that in village- Naugaon, District- Chatarpur, he has a house and a clinic namely Indra Dental Clinic. The informant in his statement recorded before the Court

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had named this clinic as Dr. Keshari Singh Clinic on account of his being the proprietor. One shop of the Nagarpalika Parishad in Naugaon was allotted in the name of the informant and another in the name of the informant's wife. The informant did not know that the Airtel Tower where the deceased Drigpal Singh worked was run by Sri Narendra Mishra. According to him, Drigpal Singh was the custodian of that Airtel Tower. His eldest daughter Anupam Raje was studying in Class-I in the Saraswati Shikshu Mandir, Naugaon. His daughters lived in Indore and his son lived in Bhopal. The distance between Bamhaurikala and Charkhari was about 60 kms. The informant further stated that before the murder took place, he had asked for the mobile set of Devi Singh from him. The incident took place at about 3- 4 a.m. He had called at P.S.- Charkhari at 4-4:30 a.m. from this mobile. He had called only once. He did not know who had called the police station again from the same mobile. His village- Bamhaurikala is about 8-10 kms. away from village- Patha. He did know if any Airtel tower is situated in village- Patha or not. The informant stated that he did not have any information whether the location of mobile phone of Devi Singh was within the

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tower area of village- Patha between 4:15 a.m and 4:27 a.m. He also did not know whether the mobile number of Devi Singh was 995569410. He had called on the basic phone of P.S.- Charkhari.

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(18) On being cross examined with regard to the special features of the place of incident and his house, P. W. 1 stated that the land lying vacant in the west of the house of Tilak Singh had been partitioned equally between him and his brother Ram Singh. Apart from the aforesaid vacant land, he had also got his share in his ancestral house which was partitioned equally amongst his four brothers and 1/4^th portion of the house had fallen to his share, his brother had been shot at a place which was at a distance of about 200-250 paces from the aforesaid house in the east. The aforesaid spot was shown by him to the police at the time of the spot inspection but the site plan was not prepared in his absence and he was not aware what was shown by the I.O. in the site plan. He further stated that the I.O. has wrongly shown the house of his brother, Ram Singh in the west of the house of Tilak Singh. At the place where Khandar is shown there is vacant land and the I.O. has wrongly shown a passage in the west of the aforesaid

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land. There is no passage. After the vacant land, there is a house of Ram Singh and his house is behind the house of Ram Singh and it is for the aforesaid reason that the I.O. did not show his house in the site plan. Before the incident, the accused-appellants were hiding near the handpump which is installed in an open land and there is no construction near the handpump. When Drigpal Singh had shouted then he had seen the accused-appellants. He had not seen them before hiding near the handpump. He next stated that the road and the handpump are adjacent to each other. He denied the suggestion given to him by the defence counsel that he had falsely deposed that the accused were hiding behind the handpump. He further stated that he was present at the place of incident at the time of its inspection by the I.O. and he had shown him the place where the accusedappellants were hiding and in case I.O. had not shown the aforesaid place in his site plan he was not in a position to give any explanation for the aforesaid omission on the part of I.O. He also stated that the Panchayat Ghar is near the road which is at a distance of about 30 paces from the handpump and the road is in the north. He had never told the I.O. that the accused-

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appellants were hiding inside the Panchayat Ghar and the I.O. has erroneously mentioned in the site plan the place where the accused-appellants were hiding as Panchayat Ghar. His house is at a distance of about 3040 paces from the house of Drigpal Singh in the northwest. He and the accused-appellants have their chaks in the Village Motohar. He and Drigpal Singh had given their fields on Batai. He hardly met the accusedappellants. He was not aware whether Drigpal Singh was meeting the accused-appellants frequently or not. He also denied that he was aware of any panchayat having taken place in the village to settle the dispute between Drigpal Singh and the accused-appellants. He did not have any rifle on the night of the incident.

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(19) P. W. 1 in his cross cross-exmination further stated that he was not aware that the Airtel Tower in which deceased, Drigpal Singh worked belonged to Narendra Mishra. He only knew that deceased, Drigpal Singh was looking after the Airtel Tower. He was not aware whether any appointment letter was issued to the deceased or not. He was also not aware about the work done by the deceased in the Airtel tower or since when he had been working in the Airtel Tower or what was his salary. He

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was also not aware whether the duty hours of Drigpal Singh were during the day time or in the night. The Airtel tower is at a distance of about 500-600 paces from the house of Drigpal Singh in the east. He was aware that on the day preceeding the date of incident, Drigpal Singh was on night duty and since Drigpal Singh was working as Caretaker of the tower he presumed that on the date of incident he must have been going towards the tower. He had not seen any document pertaining to the service of Drigpal Singh. While he was going towards the tower on the date of incident, he was wearing an underwear and vest. He had not noticed whether underwear was tailor stitched or was readymade. The vest was readymade.

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(20) On being asked that how many days before the incident he had last come from Navgaon to Village Bamhaurikala, he stated that he did not remember how many days before the incident he had come to Village Bamhaurikala. He had come to village Bamhaurikala one day before the incident alone without his wife on a motorcycle af his relative who was a resident of Distirct Chhatrarpur. He did not remember the registration number of the motorcycle. Since he had come alone he

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had not come from his house. He denied the suggestion given to him by the defence counsel that in the morning of 17.7.2010 he was with Maheshwari Deen and he had reached Charkhari from Navgaon in the Maruti Car on the same day at about 5:30 A.M. He further deposed that in the evening preceding the date of occurrence he had taken his dinner in the house of his brother-in-law, Tilak Singh. Whenever he came from Navgaon to Bamhaurikala he stayed in the house of Tilak Singh. He had not met Devi Singh in the night of the incident. He, Ramendra Singh and his sister, Sheela Kunwar were present in the house of Tilak Singh. Tilak Singh was absent from his house that night. After the incident at about 5 A.M. he was seen in the village Bamhaurikala, and also at the time of the inquest of the deceased which was held in the hospital. He admitted that he was not a witness of the inquest. The inquest was conducted between 6:30 A.M. to 7:30 A.M. The dead body was dispatched for postmortem at about 9:10 A.M. He denied the suggestion given to him by the defence counsel that he was not present at the time of the inquest.

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(21) On being further cross-exmined with regard to the

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incident, P. W. 1 stated that in front of the house of Tilak Singh in the east there is a 4-5 feet wide platform and in the east of this platform there is a 8-10 feet wide kharanja road and thereafter lies the handpump where the accused-appellants had hid themselves. He further deposed that the tower of the Airtel is in the east of the handpump. There is no house on the road between the handpump and the tower. The panchayat ghar is in the field and it does not fall on the way from handpump to tower. In the north of the handpump Kharanja Road exists. In the north of the state highway exists Panchayat Ghar, tower and agricultural fields. Two accused had caught hold of deceased, Drigpal Singh at a place which was at a distance about 1-2 paces in the west from the handpump. After the accused had caught hold of Drigpal Singh, they had not beat him and at that time the accused-appellant, Dharam Singh was standing at a distance of about 2-3 paces in the south from the place where the other accused were standing. Accusedappellant, Karan Singh was standing at a distance of about 2 – 2 (½) paces in the north of the place where the aforesaid three accused were standing. When appellants, Daan Singh and Maan Singh had caught hold

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of Drigpal Singh, Dharam Singh had not fired any shot. However, when Drigpal Singh after escaping from the clutches of the accused started running, at that time, Dharam Singh who was standing at a distance of about 2-3 paces from the running Drigpal Singh and when Drigpal Singh had run for about 3 paces and while he crossed Dharam Singh, he shot Drigpal Singh when he while running turned around to see the accused.

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(22) P. W. 1 further deposed that he had shown to the I.O. at the time of the inspection of the crime scene the place where Dharam Singh had shot at Drigpal Singh but why the aforesaid place was not depicted by the I.O. in the site plan, he is not in a position to give any explanation for the same. The distance between the spot where the accused had caught hold of the deceased and the spot where he was shot is about 6-8 paces. The deceased, Drigpal Singh was shot at a place which was at a distance of 9-10 paces from the eastern door of the house of Tilak Singh in the south-east direction. After escaping from the clutches of the deceased Drigpal Singh had started running on the kharanja road towards the south in the east of kharanja road. There are two pipes affixed on the ground for tying the animals for

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treatment. Drigpal Singh was running with his face towards the aforesaid pipes. He had shown the direction in which the deceased was running on the kharanja road to the I.O. but he was not in a position to give any reason why the I.O. omitted to show the direction in which Drigpal Singh was running after being shot in the site plan. The deceased after being shot had not fallen on the kharanja road. He had fallen in the field in front of the door of his house. The house of Drigpal Singh is accessible from the kharanja road by a mud path and a field. He had also shown the mud path to the I.O. but strangely he did not mention the same in the site plan. P. W. 1 further stated that he had shown the place where the blood oozing out from deceased's wound had fallen on the khranja road and the mud path to the I.O. but why the I.O. did not show the aforesaid spots in the site plan was beyond his comprehension. The I.O. had not collected the blood lying on the kharanja road. He had collected bloodstained earth from the place of kachcha path where the deceased had fallen. He had not noticed any empty cartridges at that time as he was in a hurry to take the deceased to the hospital. However, later he had noticed an empty cartridge lying there. He did not

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remember whether there was one empty cartridge or two. He did not know the bore of the empty cartridge but it was of brass. One empty cartridge was recovered from the place where the deceased was shot and other at some distance from the aforesaid spot. These empty cartridges were recovered from the places which were at a distance of about 20-25 paces from the handpump in the south. The first empty cartridge was recovered from the place which was at a distance of about 4-5 paces from the handpump while the second empty cartridge was recovered from the place which was at a distance of about 20-25 paces from the handpump. These empty cartridges were picked up by the children of the house after he had gone to the hospital. He had given the aforesaid empty cartridges to the I.O. He denied the suggestion given to him by the defence counsel that the incident had not taken place at the place mentioned in the F.I.R. or that the bloodstained earth and the empty cartridges were not recovered from the place mentioned by him. He also deposed that the I.O. has wrongly shown the distance between the place from where the shot was fired and the place where the deceased was hit as 9 paces.

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(23) He further deposed that just before the incident he had seen some suspicious persons behind the house of Tilak Singh and on hearing the sounds made by them he had called Devi Singh and had informed the police about the suspicious activities going on behind the house of Tilak Singh from the phone of Devi Singh. Devi Singh had himself come to give his phone to him. He had returned the phone of Devi Singh to him after making the call to the police station. He had not asked Devi Singh to inquire about what was happening behind Tilak Singh's house at the night of the incident. His wife was in Navgaon and he had left his all three mobile sets bearing numbers 9009502889, 8269229571 and 9303866857 in Navgaon. He had not given the information of the incident to his wife. After the incident, on 17.7.2010 his wife had come to Village Bamhaurikala. He was not aware about his wife's coming to Bamhaurikala. He had met his wife on the date of incident at about 9:30 A.M. He was not aware about the identity of the person who had informed his wife about the occurrence.

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(24) On being cross-examined by the defence counsel with regard to his taking injured, Drigpal Singh to the

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hospital. P. W. 1 deposed that he had seen the wounds of the deceased, who had one wound on his elbow and another wound on the left side of his chest and when the deceased had fallen on the ground, both the wounds were bleeding. Since he was a doctor he had tied two towels around the wounds of the deceased to stop bleeding while tying the towels around his wounds he had taken the deceased in his lap but his clothes did not get bloodstained. Drigpal Singh was unconscious at that time. His wife and children had also reached the place of occurrence. Wife of Drigpal Singh and his children had embraced him and were weeping. He had not noticed whether the clothes of Drigpal Singh's wife had become blood stained. Wife and children of Drigpal Singh had not accompanied him to the hospital. In his crossexmination, he further deposed that he had not mentioned the fact that he had called the police from the phone of Devi Singh in the F.I.R. as the written report of the occurrence was scribed by him hurriedly but he had stated the aforesaid fact to the I.O. The number of basic phone of the police was in the knowledge of Devi Singh. He does not know the number of basic phone. He denied the suggestion given to him

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(26)

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by the defence counsel that Devi Singh had called from his mobile numer 9935569410 at the basic phone of the police station on 17.7.2010 at 4:10 A.M., 40:20 A.M., 4:22 A.M., 4:26 A.M. and 5:10 A.M. from Villgae Patha for want of knowledge. He denied the suggestion given to him by the defence counsel that in the night of 16/17.7.2010, Devi Singh was not present either in the evening or in the night of 16/17.7.2010 in Village Bamhaurikala or he was lying when he said that he had called the police from the phone of Devi Singh. He also denied the suggestion given to him by the defence counsel that he had not made any call to the police on 17.7.2010 beween 3:00 A.M. to 4:00 A.M. from the phone of Devi Singh. He also denied the suggestion given to him by the defence counsel that he had called on the aforesaid number of Devi Singh from his phone from Navgaon. He denied another suggestion given to him by the defence counsel that on the date of incident between 5:30 A.M. to 9:18 A.M. Devi Singh had called him twice from his phone and informed him that he had reached Kharanja Road and at that time the location of the phone of Devi Singh was within Charkhari Tower while that of P. W. 1 was within Navgaon Tower or that

¶88

(27)

¶89

at 5 A.M. he was in Village Navgaon.

¶90

(25) Learned counsel for the appellants while inviting our attention to the cross-examination of P. W. 1, submitted that P. W. 1 had made material improvements in his evidence tendered before the trial Court by stating certain facts for the first time which are as follows :

¶91

(i) Although P. W. 1 who is the first informant and the eye-witness of the occurrence he had failed to state in the F.I.R. that when the accused-appellants had caught hold of Drigpal Singh he raised a cry of help on which he and P. W. 2 Ramendra Singh who were lying on the cot on the roof of the house of Tilak Singh got up and on noticing that the appellant had caught hold of Drigpal Singh they had challenged them and after appellant, Dharam Singh had shot Drigpal Singh when Drigpal Singh after escaping from the clutches of the appellants had started running towards his house, they had come down from the roof and tried to catch the appellants but they had escaped. Although the aforesaid fact was stated by the P. W. 1 to the I.O. and before the trial court but no explanation is coming forth for his failure to state the aforesaid fact in the F.I.R.

¶92

(ii) In the F.I.R. as well as in his statement

¶93

(28)

¶94

recorded under Section 161 Cr.P.C. P. W. 1 has stated that the incident had taken place at 5:00 A.M. on 17.7.2010 but he in his cross-examination deposed that the incident had taken place between 3 A.M. to 4 A.M. The prosecution failed to recall the P. W. 1 to get the aforesaid fact clarified. This omission on the part of the prosecution puts a big question mark against the truthfullness of the prosecution claim that the incident had taken place at 5 A.M. P. W. 1 for the first time stated in his evidence recorded before the trial court that before the incident had taken place he had noticed some unknown persons moving behind the house of Tilak Singh of which he had called Devi Singh and had called the basic phone Charkhari from the cell phone of Devi Singh informing the police station about the suspicious activities going on behind the house of Tilak Singh. The aforesaid fact is conspicuous by its absence in the F.I.R. as well as in the statement of the P. W. 1 recorded under Section 161 Cr.P.C. The aforesaid improvement was made by P. W. 1 Kesri Singh to furnish explanation for the call made to Charkhari from the cell phone of Devi Singh.

¶95

(iii) P. W. 1 Kesri Singh had not mentioned in the

¶96

(29)

¶97

F.I.R. that when the deceased after escaping from the clutches of the appellants was running towards the house and while running he had turned around to have a look at the appellants and it was precisely at this moment appellant, Dharam Singh had shot him. P. W. 1 Kesri Singh made material improvement by stating the aforesaid fact for the first time in the court to reconcile the medical evidence with the ocular version as the postmortem report of the deceased indicated that one firearm wound of entry existed on the chest of the deceased which could have been caused only if the deceased was shot from the front. The aforesaid injury could not have been caused if the deceased was shot from behind. The failure of P. W. 1 Kesri Singh to mention the aforesaid fact in the F.I.R. is another circumstance which creates a serious doubt about the genuineness of his claim of being the eye-witness of the incident.

¶98

(26) P. W. 2 Ramendra Singh although in his evidence tendered before the trial court has substantially corroborated the evidence of P. W. 1 but there are some material contradictions in the evidence of P. W. 2 vis-avis that of P. W. 1 while P. W. 2 on page 71 of the paper

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(30)

¶100

book in his examination-in-chief has stated that after being shot, Drigpal Singh had run for about 10-15 paces towards his house while P. W. 1 in his examination-inchief on page 24 of the paper book has deposed that his brother had run for about 10-5 paces after being shot.

¶101

(27) Further P. W. 2 on page 72 of the paper book in his examination-in-chief has deposed that he had witnessed the entire occurrence from the roof of the house and thereafter he had become unconscious and fallen on the roof but P. W. 1 on page 24 of the paper book in his examination-in-chief has deposed that both P. W. 1 and P. W. 2 had come down from the roof and challenged the appellants and tried to catch them. Although P. W. 2 has deposed before the trial court that immediately after the incident he had fainted and had not gone along with P. W. 1 to the hospital, however, I.O. on page 113 of the paper book has in his evidence tendered before the trial court has deposed that P. W. 2 Ramendra Singh was present at the hospital at the time of the inquest.

¶102

(28) We now proceed to examine the evidence of formal witnesses.

¶103

(29) P. W. 3 Dr. Pratap Singh who had conducted the postmortem on the body of the deceased and prepared

¶104

(31)

¶105

and proved his postmortem report Ext. Ka2, had noted following antemortem injuries on the body of the deceased :

¶106

1. Gunshot wound of entry 2.8 cm x 1.5
cm on outer aspect of left upper arm
12 cm above left elbow. Blackening and
collar of abrasion present around
wound. Marging inverted with tattooing
all around wound in 7 cm in radius.
Direction of wound inside with
fractured left tumorous bone.

¶107

2. Gunshot wound of exit on inner
aspect of lt. upper arm 13 cm above
left elbow. Margins inverted. No
blackening, tattooing and collar of
abrasion present. Size 1.5 cm x 1.3
cm.

¶108

3. Gunshot wound of entry 1.3 cm x 1.2
cm on left side chest on left single
10 cm below axillary pit and 14 cm
behind & outer to left nipple. Collar
of abrasion present. No blackening,
tattooing present. Direction of wound
around to left lung cavity. Through
and through hole in lung (left)
present.

¶109

According to him, the cause of death was due to shock and haemorrhage as a result of ante-mortem

¶110

(32)

¶111

gunshot injuries. He on page 97 of the paper book in his cross-examination has categorically deposed that the deceased after recovering the gun shot wounds, noted by him in his postmortem report could not have run at all from the place where he was shot.

¶112

(30) P. W. 4 Shamsul Haq who was posted as Constable Moharrir in P. S. Charkhari on the date of incident had proved the chek F.I.R. as Ext. Ka3 and the relevant G.D. entry vide rapat no. 6 time 5:55 A.M. as Ext. Ka4. He in his cross-examination on page 100 of the paper book has categorically deposed that on the date of occurrence he had received a phone call at about 4:30 A.M. from one Devi Singh on the basic phone of the police station who had informed him that he was speaking from Patha and one Drigpal Singh had been shot by someone in Patha and he was coming to Charkhari along with the injured to lodge the first information report. At 5 A.M. Devi Singh had called again and informed him that he had reached hospital.

¶113

(31) P. W. 5 Inspector Ramsukh Verma, the first I.O. of the case has in his evidence narrated the various steps taken by him during the investigation. He proved the site plan of the place of occurrence Ext. Ka5. Recovery

¶114

(33)

¶115

memo of three empty cartridges of 315 bore from the place of occurrence as Ext. Ka2, one empty cartridge of 12 bore, 3 empty cartridges of 315 bore of brass as material exhibit Ka1 to Ka4 and the bullet recovered from the body of the deceased as material exhibit Ka5. On page 112 of the paper book he categorically deposed that informant had told him that the accused were hiding behind Panchayat Ghar. On page 111 of the paper book he categorically deposed that during the investigation he had not recorded the statement of the deceased's wife and children. However, he denied the suggestion given to him by the defence counsel that he had not recorded the statement of the wife of the deceased and his children as they were not willing to support the prosecution case.

¶116

(32) Although on page 112 of the paper book, he deposed that he had recovered empty cartridges from the place shown as 'X' in the site plan and no one had handed over the same to him but the aforesaid statement of fact made by P. W. 5 is directly in conflict with the fact deposed by the P. W. 1 in his crossexamination that the empty cartridges were collected by the children of the house after he had gone to the

¶117

(34)

¶118

hospital and when he had returned the children had handed over the empty cartridges and he had given the same to the I.O. Thus, the recovery of empty cartridges from the place of occurrence by the I.O. becomes extremely doubtful. The suggestion given to him by the defence counsel that he had not made any resident Village Bamhaurikala witness of the inquest and all the witnesses are of Village Patha because the incident had taken place in Village Patha. Although he denied the suggestion given to him by the defence counsel and stated that since Surendra Singh and Rajkumar Singh of Village Patha were present on the spot he had made them inquest witnesses. There is also no explanation coming forth from him as to why the P. W. 1 despite being allegedly present at the place of inquest was not made as the inquest witnesses.

¶119

(33) Satyaveer Singh, second I.O. of the case who had completed the investigation and submitted charge-sheet against the accused was examined as P. W. 6.

¶120

(34) Thus, what emerges from the perusal of the evidence on record is that while on the date of incident deceased, Drigpal Singh was going towards Airtel Tower, all the accused-appellants were hiding near the

¶121

(35)

¶122

handpump and as soon as he reached in front of the house of Tilak Singh the accused-appellants came out of their hiding place challenging the deceased and caught hold of him on which he started shouting. Hearing the noise made by him P. W. 1 and P. W. 2 who were lying on the roof of the house of Tilak Singh got up and saw the accused-appellants Daan Singh and Maan Singh had caught hold of Drigpal Singh. They challenged the accused-appellants from the roof top. In the meantime the deceased managed to escape from the clutches of the accused-appellants, Daan Singh and Maan Singh and started running towards his house and when, while running he turned back to have a look at the accusedappellants, on the exhortation of Karan Singh, accusedappellant, Dharam Singh fired at the deceased from his rifle. The shot so fired hit him on the left elbow and after piercing through the bone the bullet embedded in his chest, thereafter deceased ran about 10-5 paces and fell in the field in front of his house. Thereafter, the deceased was taken to the hospital where he was declared dead.

¶123

(35) Thus, upon a wholesome consideration of the facts and circumstances of the case and a threadbare scrutiny

¶124

(36)

¶125

of the evidence on record, we find ourselves unable to agree with the conclusions drawn by the trial court that the incident had taken place at the time, place and manner as spelt out in the F.I.R. and that the appellants were the perpetrators of the crime and the false implication of the appellants in the present case at the behest of P. W. 1 Kesri Singh cannot be ruled out for the following reasons :

¶126

(i) According to the F.I.R. and the facts stated by the two witnesses of fact in their examination-in-chief the incident had taken place at 5 A.M. while the deceased was going from his house towards the Airtel Tower where he was employed as a Caretaker but according to the evidence of P. W. 4 and the facts stated by P. W. 1 in his cross-examination the incident had taken place between 3 A.M. to 4 A.M.

¶127

(ii) Although it is alleged in the F.I.R. that the incident had taken place near the handpump which was installed at a distance of 30-40 paces from the house of the deceased in Village Bamhaurikala but no blood was found where the appellant, Dharam Singh had allegedly shot the deceased.

¶128

(iii) The recovery of empty cartridges from the

¶129

(37)

¶130

place of occurrence is also under cloud in view of the contradictory evidence of P. W. 1 Kesri Singh and P. W. 5 Ramsukh Verma, I.O. of the case wth regard to the recovery of the empty cartridges from the place of incident.

¶131

(36) Although according to the prosecution version the incident had taken place in Village Bamhaurikala and the deceased had died in hospital in Charkhari but all the witnesses of the inquest were residents of Village Patha and not a single resident of Village Bamhaurikala was made witness of inquest. Even P. W. 1 who claims that he had witnessed the incident and thereafter taken the deceased to the hospital was not made witness of the inquest although he claims that he was present at the time of inquest. The aforesaid circumstance creates a serious doubt about the prosecution theory that the incident had taken place in Village Bamhaurikala.

¶132

(37) There is evidence of P. W. 4 Shamsul Haq who on the date of incident was posted as Constable Moharrir in Police Station Charkhari, who in his cross-examination on page 100 of the paper book has categorically stated that on the date of incident he had received 3-4 phone calls from one Devi Singh resident of Village

¶133

(38)

¶134

Bamhaurikala at about 4:15 A.M. to 4:30 A.M. and in the last call made by Devi Singh to him he had disclosed that he was speaking from Patha and someone has shot Drigpal Singh in Patha and he was coming to Charkhari for lodging the F.I.R. with the injured. At about 5 A.M. Devi Singh had again called him and informed him that he had reached Charkhari Hospital and he had disclosed the aforesaid information to S.H.O. Ramsukh and Dr. Tulsidas who were present in the police station at that time. He had denied in his cross-examination that he had not received any information from Devi Singh on phone, as deposed by P.W.1 before the trial court, that some suspicious activities were going on behind the house of Tilak Singh in Village Bamhaurikala and some unknown persons were roaming there and the person who had called him had disclosed his name as Kesri Singh but had told him that his name was Devi Singh.

¶135

(38) Call detail records of Kesri Singh and Devi Singh also show the location of the cell phones of both P.W.1 and P.W.2 at the time of the incident in Patha Village which falsifies the claim of P.W.1 that he had called the police station Charkhari from Village Bamhaurikala by using the phone of Devi Singh and he was present in Village Bamhaurikala at the

¶136

(39)

¶137

time of incident.

¶138

(39) Both the witnesses of fact examined by the prosecution during the trial are close relatives of the deceased. P. W. 1 Kesri Singh is a chance witness because admittedly he has settled in Navgaon. He has failed to come up with any explanation for his presence in the house of his brother-in-law, Tilak Singh on the date of incident. Tilak Singh, brother-in-law of the deceased and P. W. 2 Kesri Singh and their sister, Sheela Kunwar were also not produced by the prosecution during the trial. Absence of any blood on the kharanja road on which the deceased had allegedly run after being shot before falling in the field in front of his house further dents the credibility of prosecution version regarding the place of occurrence.

¶139

(40) The prosecution theory that the appellants were hiding behind the handpump before the occurrence also stands falsified not only from the evidence of P. W. 1 and P. W. 2 but also from the site plan of the place of incident prepared by P. W. 5 Ramsukh Verma, I.O. of the case and his evidence. It is proved from the evidence of the prosecution witnesses that there was no place to hide near the handpump where the appellants could

¶140

(40)

¶141

have hid themselves and hence if the deceased was actually going from his house towards the tower he could have easily seen the accused-appellants in case they were sitting near the handpump and would have immediately returned to his house instead of continuing to walk towards the tower giving ample opportunity to the appellants to catch him and shoot him later. The site plan of the place of incident exhibits the place where the appellants were hiding near the handpump by letter 'X'. The site plan does not show any construction at the spot behind which the accused-appellants could have hid themselves. The prosecution theory that immediately before the incident the accused-appellants were hiding near the handpump does not appear to be credible or thruthful at all. Same appears to hold good with regard to the claim of the two witnesses of fact that they had witnessed the occurrence.

¶142

(41) Devi Singh who would have been the best witness to prove that P. W. 1 Kesri Singh was present in the house of Tilak Singh at the time of incident and had called him from his house to the house of Tilak Singh upon noticing some strangers roaming behind the house of Tilak Singh and had made a call to the basic phone of

¶143

(41)

¶144

the police station from his cell phone was witheheld by the prosecution without any plausible reason.

¶145

(42) No reason is coming forth for not examining Sunita Devi, the widow of the deceased also during the trial, although she would have been one of the best witnsses to corroborate the prosecution theory. The omission on the part of the prosecution to produce either Devi Singh or Sunita Devi as witnesses compels us to draw an adverse inference against the prosecution that in case they were produced they would not have supported the prosecution case.

¶146

(43) P. W. 1 Kesri Singh not being made the inquest witness, although he claims that he was present at the time of inquest is a material omission which creates a serious doubt about his presence at the time and place of occurrence or at the hospital-mortuary at the time of conducting inquest. There is no evidence on record indicating that the facts stated by Smt. Sunita Devi, wife of the deceased in her complaint filed before the S.P. that the real murderers of her husband were being shielded by P.W.1 Dr. Kr. KesriSingh and the police were investigated.

¶147

(44) Dr. Pratap Singh who had conducted the postmortem on the body of the deceased and prepared

¶148

(42)

¶149

his postmortem report Ext. Ka2 was examined as P. W. 3. He in his cross-examination had clearly deposed that it was not possible for the deceased to have run at all after receiving the injury no. 3 on his chest. The medical evidence thus totally falsifies the evidence of P. W. 1 and P. W. 2 that the deceased after being shot had run 10-15 paces before falling down on the ground in front of his house and further belies their presence at the time and the place of occurrence.

¶150

(45) The medical evidence on record further belies the prosecution theory as set up in the F.I.R. of the incident which was lodged by P. W. 1 Kesri Singh that the deceased was shot from behind while running. The firearm wound of entry found on the chest of the deceased (ante-mortem injury no. 3) could not have been caused if the deceased was shot from behind and when the aforesaid discrepany came to the knowledge of P. W. 1 and P. W. 2, after they were shown the postmortem report of the deceased, in order to reconcile the medical evidence with the ocular version they made material improvements in their testimonies with regard to the manner of assault by deposing before the trial court for the first time that the deceased was shot by

¶151

(43)

¶152

appellant, Dharam Singh when he had turned around to have a look at the assailants while running.

¶153

(46) Thus, in view of the foregoing discussions, we are of the view that the prosecution has failed to prove its case against the accused-appellants beyond all reasonable doubts. Appellants are entitled to benefit of doubt.

¶154

(47) All the four appeals are accordingly allowed. The recorded conviction of the appellants and the sentence awarded to them are hereby set aside. The appellant, Dharam Singh in Criminal Appeal No. 1413 of 2015 is in jail. He shall be released forthwith unless he is wanted in any other criminal case while the appellants, Maan Singh, Daan Singh and Karan Singh in connected Criminal Appeal Nos. 724 of 2015, 725 of 2015 and 1230 of 2015 are on bail. They need not surrender. Their bail bonds are cancelled and the suretie are discharged. However, keeping in view the provisions of Section 437A Cr.P.C., appellants are directed to forthwith furnish a personal bond in the sum of Rs. One lakh and two reliable sureties in the like amount before the trial Court, (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the Instant Judgment or

¶155

(44)

¶156

for grant of leave, the appellants on receipt of notice thereof shall appear berfore the Hon'ble Supreme Court.

¶157

Order Date :- 25.5.2018 KS/SA

Dharm Singh v. State of U.P.

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Dharm Singh v. State of U.P.

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