Allowed

Raj Vishambhar and Another v. State of U.P.

Allahabad HC18 Jan 2018CRLA/501/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal and acquitted the appellants of attempt to murder and criminal trespass. The Court found crucial contradictions in prosecution witnesses' statements regarding the incident's details, presence, and injuries, and noted the lack of evidence linking the appellants to the crime.

What did the court decide?

Conviction of Raj Vishambhar and Sushil @ Putan is set aside; they are acquitted; bail bonds cancelled.

Raj Vishambhar and Another Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2018)

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Judgment reserved on : 01.12.2017 Judgment delivered on: 18.01.2018

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Court No. - 14

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Case :- CRIMINAL APPEAL No. - 501 of 2009

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Appellant :- Raj Vishambhar & Another Respondent :- State Of U.P. Counsel for Appellant :- Mohd. Naushad Siddiqui,S. Singh,S.N. Singh,S.S.Sachan,Sachikant Mishra,Upendra Kumar Verma

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Counsel for Respondent :- Govt. Advocate

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Hon'ble Umesh Chandra Tripathi,J.

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1. This appeal is directed against the judgment and order dated 27.01.2009 passed by Additional Sessions Judge, Fast Track Court No. 1, Kanpur Dehat in Sessions Trial No. 454 of 2007 (State v. Raj Vishambhar and another), arising out of Crime No. 479 of 2001, Police Station - Ghatampur, District – Kanpur Nagar, whereby appellants Raj Vishambhar s/o Bashla and Sushil Sachan @ Putan s/o Raj Vishambhar, both r/o Village Motipur, were convicted and sentenced as follows:

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(a) Rigorous imprisonment for a period of five years and to pay fine of Rs. 7,000/- and in case of default in payment of fine, simple imprisonment for further three months, under Section 307/34 of the Indian Penal Code (hereinafter referred to as 'IPC'); and

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(b) Rigorous imprisonment for a period of three years and to pay fine of Rs. 3,000/- and in case of default in payment of fine, simple imprisonment for further one month under Section 452/34 IPC.

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2. Both the sentences were directed to run concurrently.

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3. Brief facts of the prosecution case, as discernible from

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record, are that in the night of 15.12.2001, the informant Mukesh Kumar s/o Devtadeen r/o Village Motipur, Police Station – Ghatampur, District – Kanpur Nagar. after having his meals, was lying on the cot. His relative – Rahul s/o Uday Narayan r/o Sahbajpur, Police Station – Sajeti, District – Kanpur Nagar was also lying beside him. His cousin Sunil Sachan s/o Ram Chandra Sachan was lying in the adjacent room. A lantern was burning inside the house. At about 11.00 P.M., the informant woke up on hearing some noise. He saw that accused-appellants Ram Vishambhar and Sushil Sachan @ Putan, both residents of his village, bearing country-made pistol ( tamancha ) in their hands, along with two other persons, who were seen in the lantern light, entered into the room of his cousin. Accused-appellant Raj Vishambhar, with the intention to kill his cousin Sunil Sachan, fired on him, which fire hit on his right temple. Thereafter, the accused made their escape good. The informant took his cousin injured Sunil Sachan to the police station. Report be lodged and action be taken. The written report is on record and the same is marked as Ex.Ka.1.

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4. Contents of written report were taken down in the chik first information report (FIR No. 350/01) at Case Crime No. 479 of 2001 under Sections 452, 307 IPC at Police Station - Ghatampur, District – Kanpur Nagar on the next day i.e. 16.12.2001 at about 02.10 A.M. On the basis of entry made in the FIR, relevant entry was made in the general diary and a case was registered against the accused-appellant at the aforesaid case crime number under the aforesaid section. Thereafter, investigation of

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the case was started.

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5. Investigation of the case was entrusted to Inspector Ugra Singh Yadav (Investigating Officer) (since retired), who after recording the statement of eye-witnesses, proceeded to the spot and prepared site plan. The site plan is on record and the same is marked as Ex.Ka.4. He also collected simple and blood-stained earth and one cartridge from the spot. The recovery memo of the aforesaid sample earth and cartridge are on record and the same is marked as Ex.Ka.6.

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6. Injured Sunil Sachan was medically examined by Dr. K. Swaroop, Senior Orthopaedic Surgeon at Ursala Hospital, Kanpur on 16.12.2001 at 04.25 A.M. Dr. K. Swaroop was, at that time, Medical Officer of the aforesaid hospital. He noted the following injury:

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Firearm wound of entry size 2 cm. x 1.5 cm. x depth not proved over right side of face 2.00 cm. lateral to right angle of right eye. Margins are inverted and scratched collar of abrasion present. Blackening in an area of 4.5 cm. x 4.5 cm. present around the wound. Fresh bleeding present. Traumatic swelling present all over the right side of face.

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Opinion : In the opinion of doctor, injury is caused by firearm. The injury was kept under observation. X-ray of skull and face was advised. Duration fresh.

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7. The injury report is on record and the same is marked as Ex.Ka.3.

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8. The Investigating Officer Inspector Ugra Singh Yadav, on finding prima facie that no offence was being made out, submitted final report (Final Report No. 08/2002) on 28.07.2002.

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9. The aforesaid final report was received by the court of

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Chief Judicial Magistrate, Kanpur Dehat and the same was registered at Misc. Case No. - 402/2002 on 05.09.2002. Thereafter, notice was being issued to the informant/complainant, pursuant thereto, the informant appeared before the court concerned and the court vide its order dated 09.09.2004 rejected the aforesaid final report and directed for further investigation of the case. In this regard, Investigating Officer Ashok Ram submitted an application to Superintendent of Police, Rural Area, Kanpur Nagar, contending that the court concerned has rejected the final report vide its order dated 09.09.2004, hence, the final report be rejected, upon which, the S.P. concerned rejected the final report on 02.11.2004.

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10. On perusal of record, it is also reflected that after further investigation, the police again submitted final report (Final Report No. 14/2005) on 29.04.2005, which was received by the court concerned on 11.07.2005. Notice was again issued to the informant, on which he filed protest petition and the court, after careful consideration, again rejected the aforesaid final report vide its order dated 08.08.2005 and took cognizance against the accused.

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11. Consequent thereupon, committal proceedings took place and the case was committed to the court of Sessions. The accused-appellants were given copies of documents, as per provision of Section 207 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'). As a sequel to that, it was made over for trial and disposal to the court of Additional Sessions Judge, Fast Track Court No. 1, Kanpur Dehat on 23.11.2007. Accused-appellants

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were heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charge against them under Sections 307/34 and 452/34 IPC. Charges were read over and explained to the accused, who pleaded not guilty and claimed to be tried.

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12. The prosecution in order to substantiate charges against the accused examined as many as six prosecution witnesses, out of whom P.W.1 Mukesh Kumar (informant), P.W.2 Rahul (brother-in-law of injured Sunil Sachan), P.W.3 Smt. Rakhi Hayan (wife of injured Sunil Sachan) and P.W.4 Prayag Narayan were examined as witnesses of fact, whereas P.W.5 Dr. K. Swaroop and P.W.6 Retd. Inspector Ugra Singh Yadav were examined as formal witnesses.

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13. The defence did not lead any evidence, either oral or documentary.

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14. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused-appellants was recorded under Section 313 of Cr.P.C., wherein, they claimed to have been falsely implicated in the case.

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15. Learned trial Judge after considering the case on its merit passed aforesaid finding of conviction and passed the impugned judgement and order.

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16. Feeling aggrieved by the order of learned trial judge, the appellants have preferred the instant criminal appeal.

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17. Heard Sri Afzal Durrani, Advocate holding brief of Sri S.S. Sachan, learned counsel appearing on behalf of the

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appellants and Sri L.D. Rajbhar, learned Additional Government Advocate appearing on behalf of State of Uttar Pradesh.

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18. Learned counsel for the appellants contended that no role has been assigned to accused-appellant Sushil Sachan @ Putan. Role of causing firearm injury is assigned to accused-appellant Raj Vishambhar. The police submitted final report twice against the accusedappellants. There is material contradiction in the statement of the eye-witnesses. False allegation has been made against the accused-appellants due to enmity. Learned trial court has passed the impugned order without properly appreciating the evidence on record.

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19. Apart from arguing on the merits of the case, learned counsel for appellants further contended that accusedappellant Raj Vishambhar has completed more than three and a half years of sentence awarded to him. If the court comes to the conclusion that guilt of accused-appellant Raj Vishambhar is proved, then his sentence be reduced to the period already undergone by him.

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20. Per contra, learned A.G.A. contended that there is no error or infirmity in the impugned order passed by the trial court and as such, the same is liable to be upheld.

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21. In this case, after investigation, police has submitted final report twice, that is to say, on 28.07.2002 and 11.07.2005, observing that false F.I.R. has been lodged against the accused-appellants due to enmity and no one has seen the occurrence.

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22. P.W.1 informant Mukesh Kumar, P.W.2 Rahul and P.W.3 Smt. Rakhi Hayan stated before court that they

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have gone to the police station with injured Sunil Sachan and after lodging the F.I.R., they took the injured to Government Hospital, Kanpur.

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23. From the perusal of chik F.I.R., it is evident that at the time of lodging F.I.R., injured Sunil Sachan had not gone to police station with P.W.1 informant Mukesh Kumar. In the chik F.I.R. statement of informant Mukesh Kumar is mentioned. Mukesh Kumar stated before police that he left injured Sunil Sachan at Community Health Center, Ghatampur for treatment. P.W.2 Rahul admitted in his cross-examination that first of all, they had gone with injured Sunil Sachan on a tractor to Police Station, Ghatampur. He also admitted this fact that another 10-20 persons had also gone to Police Station, Ghatampur by tractor along with P.W.2 Rahul and injured Sunil Sachan. 24. From the perusal of injury report Ex.Ka.3, it is evident that injured Sunil Sachan was medically examined at Ursala Hospital, Kanpur Nagar on 16.12.2001 at 04.25 A.M. First Information Report was lodged on 16.12.2001 at 2.10 A.M. From the perusal of first information report, it is apparent that injured Sunil Sachan was not present at the time of lodging of F.I.R. He was not brought to Ursala Hospital either by any police personnel or by any member of his family, but was brought by one Susheel Sachan s/o Chote Lal r/o Ghatampur, Police Station – Ghatampur, District – Kanpur Nagar. Susheel Sachan is not a resident of Motipur, village of injured Sunil Sachan. How he reached at the place of occurrence and took injured Sunil Sachan to the hospital is not explained by the prosecution.

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25. P.W.4 Dr. K. Swaroop, who medically examined injured Sunil Sachan, admitted this fact that injury report of injured is mentioned in the accident register.

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26. Informant Mukesh Kumar is cousin of injured Sunil. Rahul is the real brother-in-law of injured Sunil Sachan, that is to say, brother of his wife Smt. Rakhi Hayan. Why they had not gone to the hospital with injured Sunil Sachan is also not explained by the prosecution.

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27. P.W.1 Mukesh Kumar admitted this fact that his residence is at a distance of 150 meters from that of the injured. Why P.W.1 Mukesh was sleeping at the residence of injured Sunil Sachan and not his own residence is also not explained by the prosecution.

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28. P.W.2 Rahul is the real brother-in-law of injured Sunil Sachan. This fact is not disclosed in the first information report, but concealed.

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29. P.W.3 Smt. Rakhi Hayan admitted this fact that her brother Rahul came at her residence one day before the occurrence. He had completed his education. However, in her affidavit (Ex.Ka.2), it is mentioned that her brother Rahul was studying in high school and was living with her. She admitted before the court that in the evening of the occurrence, informant Mukesh Kumar had taken meals at his own residence. However, in her affidavit, it is mentioned that informant Mukesh Kumar had taken meals at her residence. On these points, statement of Smt. Rakhi Hayan is contradictory and unreliable.

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30. For the aforesaid reasons, presence of P.W.1 informant Mukesh Kumar and P.W.2 Rahul on the spot at the time of occurrence is highly doubtful.

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31. P.W.1 informant Mukesh Kumar and P.W.2 Rahul were sleeping together. They woke up on hearing some noise. P.W.3 Smt. Rakhi Hayan admitted this fact that she was sleeping with her husband injured Sunil Sachan in one room and P.W.1 informant Mukesh Kumar and P.W.2 Rahul were sleeping in another room. P.W.2 Rahul admitted this fact that he was sleeping with P.W.1 informant Mukesh Kumar inside the room which was 20 meters away from that room in which his sister P.W.3 Smt. Rakhi Hayan was sleeping along with her husband injured Sunil Sachan. This is an occurrence of winter season. P.W.3 Smt. Rakhi Sachan admitted this fact that the night of the occurrence was very dark and foggy. The accused had fled away from the spot immediately after firing. Single fire was shot at that time. In such a situation, it was not possible for P.W.1 informant Mukesh Kumar and P.W.2 Rahul, who were sleeping in another room, to see and identify the persons who fired on injured Sunil Sachan.

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32. P.W.1 informant Mukesh Kumar admitted this fact that at the time of occurrence, injured Sunil Sachan was wearing shirt and pant. However, P.W.3 Smt. Rakhi Hayan stated before court that her husband injured Sunil Sachan was wearing underwear and vest at the time of occurrence. If P.W.1 informant Mukesh Kumar was present there at the time of occurrence, then it was not difficult for him to identify the clothes worn by injured Sunil Sachan.

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33. P.W.1 informant Kumar and P.W.2 Rahul were sleeping on the same cot. P.W.2 Rahul admitted this fact that he could not see from which direction bullet was fired. He

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only saw and identified accused-appellant Raj Vishambhar on the spot and did not see any other person. According to him, at the time of occurrence, accused-appellant Raj Vishambhar was present on the spot, but P.W.2 Rahul had not seen accused-appellant Raj Vishambhar firing. If P.W.2 Rahul could not see any other accused except Raj Vishambhar, then how P.W.1 informant Mukesh Kumar had seen accused-appellants Raj Vishambhar, Sushil Sachan and other two unknown persons is also not explained by the prosecution.

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34. P.W.1 informant Mukesh Kumar and P.W.2 Rahul stated before court that injured Sunil Sachan succumbed to his injury two months after the occurrence, that is to say, on 25.02.2002. Their statement on this fact is totally false. Although injured Sunil Sachan had died two months after the occurrence, P.W.3 Smt. Rakhi Hayan admitted in her cross-examination that her husband died in hospital. His postmortem was not conducted. P.W.3 Smt. Rakhi Hayan submitted affidavit Ex.Ka.2 on 01.10.2004 before the Investigating Officer, after more than two years of death of her husband injured Sunil Sachan. Even in that affidavit, it is not narrated that her husband died due to injury caused in this occurrence. If her husband died due to the injury, then there was no cause that this fact should not have been narrated in that affidavit. This shows that these two witnesses are most untrustworthy. 35. P.W.3 Smt. Rakhi had not specified the accused who fired on her husband. Her statement before court is selfcontradictory to her statement in affidavit Ex.Ka.2. Smt. Rakhi Hayan stated as follows:

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^^--------ftl le; xksyh dh vkokt gq;h eSa o esjs ifr ,d gh pkjikbZ ij lks jgs Fks ml le; tkM+s dk ekSle Fkk jtkbZ vks<+ dj lks jgs Fks nksuksa yksxksa dh jtkbZ ,d FkhA esjs ifr dk eqWg fd/kj dks Fkk ;kn ugha gS ;g Hkh ;kn ugha fd esjk eqWg fd/kj Fkk eqfYteku ekj dj rqjUr Hkkx x;s Fks :ds ugha FksA Hkkxrs gq, eqfYtekuksa dks ns[kk Fkk eSa ;g ugha crk ldrh fd dkSu eqfYteku fdl fn'kk dks Hkkxk Fkk--------**

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She admitted this fact that she had seen the accused when they were fleeing, but she could not mention the direction in which they fled. From her statement, it appears that it is least possible for her to identify the accused in such a dark and foggy night.

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36. The accused have chosen dark and foggy night to commit the offence. This shows that they were intended to conceal their identity in order to escape from the criminal liability, even though it is unnatural that they did not mask their faces in order to conceal their identity. According to the prosecution version, accused were four in number. They were intended to kill Sunil Sachan, but at the time of occurrence, only accused-appellant Raj Vishambhar had made single fire on Sunil Sachan. The other accused did not fire on Sunil Sachan. This story appears to be unnatural and against human behaviour.

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37. Informant Mukesh Kumar in his cross-examination stated that there is no enmity between him and the accused. However, he admitted the fact that he, his brothers Suresh and Rakesh, his father Devtadeen and his mother were accused in case of murder of Smt. Aruna w/o his brother Rakesh. In that case, accused-appellant Raj Vishambhar was witness against them. In crossexamination, informant Mukesh and Smt. Rakhi Hayan

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showed their ignorance about the fact that injured Sunil Sachan was apprehended on the spot while committing dacoity at the residence of one Badlu Prasad of their village before this occurrence and also in case of that dacoity, accused-appellant Raj Vishambhar was witness against them. They did not deny these facts specifically. It is not possible that the wife does not know that her husband was apprehended on the spot for committing dacoity in her own village. From their deposition, it is evident and apparent that they are concealing this fact knowingly. Smt. Rakhi Hayan further stated that 7-8 days before this occurrence, a fight had taken place between her husband injured Sunil Sachan from one side and accused-appellants Raj Vishambhar and Sushil Sachan @ Putan from the other side. She stated that her husband had not lodged any F.I.R. in that reference against the accused. P.W.1 informant Mukesh Kumar also showed his ignorance about the fact that accused-appellant Sushil Sachan @ Putan had lodged a non-cognizable report (N.C.R. No. 324/01) under Section 323, 504 IPC at Police Station – Ghatampur, District – Kanpur Nagar against injured of this case Sunil Sachan. He had also not specifically denied this fact. This shows criminal incidence of injured Sunil Sachan and that there was grave enmity between injured Sunil Sachan and accused.

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38. From the above facts and circumstances of the case, this probability cannot be ruled out that injured Sunil Sachan might have been injured in some other way and due to enmity and suspicion, first information report had been lodged against accused-appellants Raj Vishambhar

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and Sushil Sachan @ Putan.

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39. The trial court while recording conviction against the appellants failed to properly appreciate the evidence and the above facts and circumstances of the case and recorded erroneous finding of conviction, which cannot be sustained, for reasons aforesaid.

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40. Accordingly, the appeal is allowed. Conviction of appellants – Raj Vishambhar and Sushil @ Putan unders Section 307/34 and 452/34 IPC is hereby set aside and they are acquitted.

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41. Appellants Raj Vishambhar and Sushil @ Putan are on bail. They need not surrender. Their bail bonds stand cancelled and sureties are discharged.

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42. Office is directed to send a certified copy of this order to Sessions Judge, Kanpur Dehat for its compliance. Let the lower court's record be remitted back to the court concerned.

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Order Date :- 18.01.2018 I. Batabyal

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[Umesh Chandra Tripathi,J.]

Raj Vishambhar and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

Raj Vishambhar and Another v. State of U.P.

Case brief

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