Allowed

Raj Kumar Singh and Others v. State of U.P.

Allahabad HC14 Jul 2022CRLA/8433/2007

Case brief

AI extract

What is this about?

The High Court acquitted three appellants convicted of murder. It set aside convictions for lack of direct evidence regarding restraint of the deceased by certain appellants and absence of ballistic proof linking alleged weapons to victims' injuries, granting benefit of doubt.

What did the court decide?

The convictions of appellants Veer Pal Singh, Munna Singh, and Rishi Pal Singh set aside; they are acquitted.

Raj Kumar Singh and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2022)

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Reserved on 11.07.2022

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Delivered on 14.07.2022

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Court No. - 46

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Case :- CRIMINAL APPEAL No. - 8433 of 2007 Appellant :- Raj Kumar Singh And Others Respondent :- State of U.P. Counsel for Appellant :- Rajesh Kumar Singh,Apul Misra,D.K.Srivastava,G.S.Hajela,Ghan Shyam Das,Kuldeep Kumar,Lav Srivastava,R.K.Singh,R.P. Singh,Satendra Kumar Sharma Counsel for Respondent :- Govt. Advocate,Alok Sharma,Deepak Kumar Srivastava

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Connected with

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Case :- CRIMINAL APPEAL No. - 63 of 2008 Appellant :- Rishi Pal Singh Respondent :- State of U.P. Counsel for Appellant :- S.R. Verma,Desh Ratan Chaudhary,Ghan Shyam Das,Jai Prakash Singh Counsel for Respondent :- Govt. Advocate,Alok Sharma

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Hon'ble Anjani Kumar Mishra,J. Hon'ble Deepak Verma,J.

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Perused the office report dated 30.03.2022 in Criminal Appeal No. 8433 of 2007 and also the death report of Chief Judicial Magistrate, Shahjahanpur which states that appellant no. 1 Raj Kumar Singh is dead.

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The appeal, insofar as, it is on behalf of appellant no. 1, Raj Kumar Singh, is hereby, abated.

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Heard Shri Apul Mishra, learned counsel for the surviving appellants in Criminal Appeal No. 8433 of 2007 and Shri Rahul Saxena and Shri Desh Ratan Chaudhary, learned counsel for the appellant in Criminal Appeal No. 63 of 2008 and learned AGA for the State.

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These two connected appeals are directed against the judgment and order dated 20.11.2007 passed by the Additional Sessions Judge/Special Judge, Shahjahanpur in Sessions Trial No. 622 of 1992, State Vs. Om Pal and others, under Section 302 I.P.C., Police Station- Banda, District- Shahjahanpur arising out of Case Crime No. 76 of 1992 and Sessions Trial No. 67 of 1993, Rishi Pal, under Section 25 of the Arms Act, Police Stationarising out of Case Crime No. 99 of 1992.

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Munna Singh and Veelpal Singh, appellants 2 and 3 in Criminal Appeal No. 8433 of 2007 stand convicted and sentenced to life imprisonment under Section 302/34 I.P.C. along with a fine of Rs. 2,000/- and in default thereof, to undergo further rigorous imprisonment for six months.

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Rishi Pal Singh in Criminal Appeal No. 63 of 2008 has also been convicted under Section 302 I.P.C. and Section 25 of the Arms Act and sentenced to life imprisonment and a fine of Rs. 2,000/- for the offence under Section 302 I.P.C. and in default thereof, further rigorous imprisonment of two years. A fine of Rs.500/- has been imposed for the offence under Section 25 of the Arms Act and in default thereof, further imprisonment of three months has been provided.

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An FIR was lodged by one Shyam Singh on 11.05.1992 at 7:30 a.m., P.S.- Banda, District- Shahjahanpur, which gave rise to Case Crime No. 76 of 1992, under Sections 147, 148, 149, 307, 302 and 25/27 Arms Act. The FIR stated that Ramu Singh, brother of the first informant, was elected the Pradhan. He had contested against Om Pal Singh, the erstwhile Pradhan, Om Pal Singh, who was defeated therefore, bore ill will toward Ramu Singh. An year earlier, the gun of Om Pal Singh had been looted in which case Ramu Singh, the deceased, was the accused but was exonerated during investigation.

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On the date of incident at about 6:30 a.m. when Ramu Singh was returning after attending the call of nature and his other brother Arjun Singh was sitting on a bridge on the culvert. Om Pal Singh armed with a double barrel gun, Rishi Pal Singh and Arjun Singh armed with country made pistols, swiftly emerged from the house of Raj Kumar Singh and on the exhortation of Om Pal Singh opened fired upon Ramu Singh. Ramu Singh ran but fell down near a mango tree. The accused approached him and fired several shots, killing him. The incident was witnessed by PW-1 Shyam Singh, Phool Singh and Shishupal Singh.

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Meanwhile Munna Singh and Veer Pal Singh grappled with Arjun Singh, the brother of the deceased Ramu Singh and the first informant, who was sitting on the culvert and on their exhortation Raj Kumar Singh fired upon Arjun Singh with country made pistol, as a result whereof, Arjun Singh succumbed. While running away Om Pal Singh again fired with his double barrel gun due to which Phool Singh, who was passing by on his tractor also sustained firearm injuries.

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After committal, charges were framed against Munna Singh and Veer Pal Singh, under Sections 147, 302 read with Section 34 I.P.C. and Section 120-B I.P.C. on 15.11.1994.

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Similarly the appellant Rishi Pal Singh was also charged under Section 148, 302 read with Section 34 I.P.C. and Section 120-B I.P.C. also on 15.11.1994. A charge under Section 25 of the Arms Act was also framed against Rishi Pal Singh in Sessions Trial No. 67 of 1993 arising out of Case Crime No. 99 of 1992, under Section 25 of the Arms Act on account of an alleged recovery of a .315 bore, country made pistol on his pointing out on 04.06.1992.

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The prosecution examined seven witnesses to prove the prosecution case.

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PW-1, Shyama Singh is the first informant and has supported the version setup in the FIR. He has specifically stated that Om Pal Singh was armed with a double barrel gun, Rishpal Singh was armed with a country made pistol as was Awsan Singh. Om Pal Singh fired first, which shot hit Ramu Singh and he fell down, whereupon Rishi Pal Singh, Awsan Singh and Om Pal Singh again shot Ramu Singh killing him on the spot.

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Thereafter, there was a scuffle between Munna Singh, Veer Pal Singh with Arjun Singh. On their exhortation Raj Kumar Singh fired with his country made pistol at Arjun Singh, killing him. Thereafter, on being chased, Om Pal Singh fired with his double barrel gun injuring Phool Singh.

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This witness has been extensively cross-examined as regards the scene of occurrence and its general layout. He has also stated that a false case of looting the firearm Om Pal Singh has been registered against the deceased Ramu Singh, which was found false on investigation.

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During cross-examination, he has also stated that three shots had fired at the deceased Ramu Singh of which two hit him. He was at a distance of 10 to 12 yards from the deceased when he was fired upon.

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PW-2, Satyapal Singh, ASI is the Head Moharrir who lodged the FIR and has proved the chik. He has also made consequential GD entries and has stated that the GD has been weeded out.

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PW-3, Dr. Satya Singh, Project Manager, District Hospital, Noida, Gautam Budh Nagar conducted the post mortem report on the body of the deceased Ramu Singh and has proved the post mortem report prepared by him. He has also conducted the post mortem on the body of deceased Arjun Singh and has also proved this report. In both cases the cause of death was opined to be on account of shock and hemorrhage caused by the

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firearm injuries on the bodies of the deceased.

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PW-4 Parvez, SO started the investigation after the FIR was lodged and has prepared the site-plan and has examined the witnesses.

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PW-5, ASI has prepared the memo of the items recovered from the scene of occurrence on the instructions of SO Parvez Miyan, the Investigating Officer. He has also prepared the recovery memo Ex. Ka-22 regarding the recovery of .315 bore country made pistol on the pointing out of Rishpal Singh. He obtained sanction of the District Magistrate for prosecution of Rishi Pal Singh under the provisions of the Arms Act and he filed charge-sheet against the accused including the chargesheet under Section 25 of the Arms Act against Rishi Pal Singh.

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PW-6, Phool Singh is the alleged injured witness. He has stated that Om Pal Singh fired at Ramu Singh and once he fell, the accused approached him and again fired at him using country made pistols and double barrel gun. He, himself, was injured by a shot fired by Om Pal Singh.

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During cross-examination, he has stated that it is not for the first time that he is stating that he was witnesses of the murder of Arjun Singh. He had mentioned this fact to the Investigating Officer and if this fact is not mentioned in the statement, he cannot offer any explanation for the same.

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PW-7, Dr. K.P. Srivastava, had examined injured Phool Singh at C.H.C. Banda, Shahjahanpur on 11.05.1992 at 4:00 p.m.

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The statement of the accused were recorded under Section 313 Cr.P.C. Appellant Munna Singh has denied the questions put to him and has sated that he has been falsely implicated due to enmity. Identical is the position in the statements of appellant Veer Pal Singh and Rishi Pal Singh recorded under Section 313 Cr.P.C.

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DW-1, Dhruv Singh, the only witness produced by the defence, has stated that the Mazar and the house of Shyam Singh cannot be seen from the culvert on account of intervening bamboo clumps, shrubs and a dense grove.

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During cross-examination, he has denied the absence of the bamboo clumps, shrubs and dense grove at the time of incident.

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On the basis of the aforesaid evidence, the appellants have been sentenced as noticed above.

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The contention of Shri Apul Mishra, who appears for Veer Pal Singh and Munna Singh, appellants in Criminal Appeal No. 8433 of 2007, is that the prosecution case against these two appellants is that they physically handled and grappled with Arjun Singh, one of the deceased. The role of causing his death by firearm has been assigned to the other co-accused Om Pal (since deceased). They are not even alleged to have been carrying firearms and have merely been convicted with the aid of Section 34 I.P.C.. There is no direct enmity between the appellants and the deceased and, therefore, looking at the totality of circumstances, the false implication of these appellants is a distinct possibility. They are therefore, liable to be acquitted.

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Shri Desh Ratan Chaudhary and Shri Rahul Saxena who appear for the appellant, Rishi Pal Singh in Criminal Appeal No. 63 of 2008 submitted that the main role of shooting the two deceased has been assigned to Om Pal singh and Awsan as also Raj Kumar Singh. Awsan died during trial while Om Pal Singh and Raj Kumar Singh are also dead.

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Although the appellant Rish Pal Singh is alleged to have shot the deceased Ramu Singh once he fell down after being hit by the shot fired by Om Pal Singh, the prosecution case is highly doubtful because it is clear from the post mortem report of Ramu Singh that all the injuries suffered by him are pellet injuries. A .315 bore country made pistol is alleged to have recovered on the pointing out of the appellant but there is no injury on the body of the deceased Ramu Singh, which would correspond to or could have been caused by .315 bore pistol (country made). Moreover, there is no ballistic report to link the weapon allegedly recovered at the pointing out of the appellant, to the death of the deceased or to the injuries found during post mortem. The appellant has no enmity with the deceased. No motive for his participation in the alleged crime has been disclosed by the prosecution. Neither is there any evidence which would even prima-facie lead to a conclusion that he was interested in participating in the alleged crime at the behest of the main perpetuaters, namely Om Pal Singh and Raj Kumar. The appellant has been falsely implicated on account of enmity and is liable to be acquitted.

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Learned AGA has supported the conviction of the appellants but has not been able to dispute the submission that appellants Veer Pal Singh and Munna Singh are not shown to be armed with firearms nor they are alleged to have inflicted any firearm injury upon the deceased. The cause of death, as per the post mortem and the statement of the doctor who conducted the post mortem, is due to shock and hemorrhage caused by firearm

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injuries.

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Learned AGA has also not been able to be show that the second deceased namely Arjun Singh had any firearm injuries caused by a .315 bore country made pistol. It is also clear that no exit wound corresponding to such a firearm injury has been found on the body of the deceased Ramu. No bullet has been recovered from his body. The recovery during post mortem is only of a wad and about 125 pellets.

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The Court below has convicted Munna Singh and Veer Pal Singh on the ground that they are alleged to have caught hold of Arjun Singh in furtherance of the common intention of accused Raj Kumar Singh and it was on account of this catching hold that Raj Kumar Singh was able to shoot Arjun Singh dead.

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The Court below appears to be misdirected itself. The evidence talks of an scuffle between Arjun Singh on the one hand and Munna Singh and Veer Pal Singh on the other. There is no categorical assertion in the statement of PW-1 recorded during trial that the two caught hold of Arjun Singh and restrained him which enabled Raj Kumar Singh to shoot him dead. This suggestion exists only in the first information report.

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Under the circumstances, their conviction is not liable to be sustained and in the facts and evidence available on record Munna Singh and Veer Singh are entitled to the benefit of doubt.

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Insofar as Rishi Pal Singh is concerned, his conviction is also not sustainable as there does not appear to be any injury caused by a .315 bore country made pistol on the body of deceased Ramu Singh whom the appellant is alleged to have shot. Moreover, Rishi Pal Singh has not been convicted with the aid of Section 34 I.P.C.

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Under the circumstances, conviction to the appellants Veer Pal Singh and Munna Singh in Criminal Appeal No. 8433 of 2007 is set-aside and they are acquitted, giving them to the benefit of doubt. Similarly, Rishi Pal Singh, the appellant in Criminal Appeal No. 63 of 2008 is also acquitted of the charges against him.

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Both the appeals are accordingly allowed.

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The appellants Veer Pal Singh and Munna Singh in Criminal Appeal No. 8433 of 2007 are on bail. Their bail bonds are cancelled. They need not surrender.

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The sole appellant, Rishi Pal Singh in Criminal Appeal No. 63 of 2008 is in jail. Since his appeal has been allowed, he may be released from jail, forthwith.

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Registry is directed to transmit the trial Court record, along with a copy of this order to the Court below for compliance.

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Order Date :- 14.7.2022 Mayank

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Digitally signed by MAYANK KUMAR SHARMA Date: 2022.07.14 10:04:00 IST Reason: Location: High Court of Judicature at Allahabad

Raj Kumar Singh and Others v. State of U.P.

Case brief

What is this about?

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Raj Kumar Singh and Others v. State of U.P.

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