Kali Prasad Singh vs The State Of Uttar Pradesh

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1460-1461/2010

KALI PRASAD SINGH ETC. Appellant(s)

VERSUS

STATE OF UTTAR PRADESH Respondent(s)

J U D G M E N T

1. Heard learned counsel for the parties.

2. The appeals are preferred by the accused-appellants

against the conviction and sentence imposed by the Sessions

Court and affirmed by the High Court vide judgment and

order(s) dated 09.10.2009 for commission of offence under

Section 302, IPC.

3. Short facts of the case are that the first informant-

Rajendra Singh, resident of Baijnath, Police Station Ramgarh,

District Bhabhua, Bihar was preparing for civil services at

Allahabad and his brothers Surendra Singh and Abhinav Rathore

were residing at Varanasi. A week prior to the incident, the

first informant had come to Varanasi from Allahabad. His Signature Not Verified

younger Digitally signed by R brother Surendra Singh-deceased was working with NATARAJAN Date: 2019.04.10 16:47:12 IST

Topkan Opticals Rathyatra. On 18.02.2000 at about 9 p.m., Reason:

when his brother did not return from work place, Rajendra 2

Singh went to look for him towards Mahavir temple. At about

9.30 p.m. Surendra Singh met him near Mahavir temple and they

started walking towards their house. The deceased was walking

5-6 paces behind the complainant along with his bicycle. At

about 10 p.m., near the house of Pramod Dubey, the accused-

Kali Prasad @ Paintol and Santosh Kumar Singh, armed with

country made pistol, came from the side lane, caught hold of

his brother-Surendra Singh and fired at his neck and temple

(Kanpati). Hearing the shrieks of the complainant, constable

Nepal Singh (PW-3) who also resided in the same locality came

out of house and challenged the accused, who ran away.

Surendra Singh died instantaneously. A number of close by

residents arrived at the scene. The complainant was able to

recognize the accused in the light of electric bulb. Ram

Narayan was alleged to be the master-mind behind the

occurrence who had conspired with the accused to eliminate

the deceased.

4. The prosecution examined as many as eight witnesses.

Rajendra Singh was the only eye witness and was examined as

PW-1, Sanjay Kumar Rai was examined as PW-2, Constable Nepal

Singh as PW-3, Constable Uma Shanker Singh as PW-4, SI R.P.

Rai who performed the inquest report was examined as PW-5,

Inspector M.S. Chaudhary was examined as PW-6, SI Ashok Kumar

Pandey who investigated the matter under Section 25 of the

Arms Act was examined as PW-7 and J.P. Tripathi was examined

as PW-8.

3

5. Recovery of one country made pistol of 12 bore and 12

bore cartridge was made on 22.03.2000 by the police party led

by Ashok Kumar Pandey along with SI Vinod Dubey. Constable

Raja Ram Ranjan and constable Sanjay Kumar Ojha received

information that one of the accused involved in the murder of

Surendra Singh was present in the court campus. He was

arrested at 12.10 p.m. and unlicensed arm and cartridge were

recovered.

6. The Sessions Court vide judgment and order dated

29.01.2002 convicted both the accused under Section 302 IPC

and awarded life imprisonment along with a fine of Rs.5,000/-

each. In case of default of deposit of fine amount, they were

directed to further undergo six months’ imprisonment each.

Accused Kali Prasad was acquitted from the charges framed

under Section 25 of the Arms Act.

7. The High Court vide judgment and order dated

09.10.2009, dismissed the appeal(s) of the appellants and

upheld the conviction and sentence. Hence the appeals.

8. Shri K.T.S. Tulsi, learned senior counsel for the

appellants urged that the entire prosecution story was

concocted one and the incident has not been witnessed by PW-1

Rajendra Singh. His presence at the spot is doubtful and his

deposition does not inspire confidence. Being a solitary

witness, his deposition requires closer scrutiny and he is

not a truthful witness. He submitted that there is no

corroboration of the version of complainant Rajendra Singh 4

(PW-1). Learned senior counsel also urged that there is

manipulation as to the time when the first information was

registered, it was ante timed. Apart from that, whether the

police reached on the spot before the FIR was lodged or later

on, is also doubtful. Learned senior counsel submitted that

the complaint has been reduced in the form of written report

in his house by PW-1 after he had deliberations and

consultation and thereafter he had lodged it at the police

station.

9. The incident occurred on 18.2.2000. The FIR has been

received by the concerned Magistrate on 21.2.2000, whereas

the distance of the Court from the police headquarters was

200 yards. Intimation has been sent belatedly and the same

also buttresses the plea that FIR has been ante-timed and the

same was registered after giving desired shape to the story

later on. The version of the complainant cannot be relied

upon in the absence of any corroboration.

10. Learned senior counsel also referred to the inimical

background between the parties. With respect to availability

of the source of light, there is doubt. The witnesses have

given the different heights of walls. As such, it is

doubtful whether light was at all available and the same has

not been described in the inquest memo prepared by the IO. It

was approximately 10 p.m. in the night when the incident had

taken place. In the absence of source of light, the entire

prosecution story falls down. No test identification parade 5

was held. It was necessary, as Nepal Singh had seen the

accused persons running from the spot. Blackening of skin was

not found on the entry wounds at injury Nos.1 and 3 on the

person of the deceased, according to the ocular evidence and

it appears from the nature of injuries that gun shots were

fired from a short distance. Hence the guilt has not been

established beyond reasonable doubt and the appellants

deserve to be acquitted.

11. Mr. Garvesh Kabra, learned counsel appearing for the

State contended that there is nothing to doubt the version of

the complainant. The incident had taken place at 10 p.m. The

correction made in the FIR as to the time it was lodged has

been explained by PW-4 namely, Constable Uma Shanker Singh.

The correction was reflected in the carbon copy as well.

Thus, it was made at the time of recording of FIR and not

later on which was recorded on the basis of the written

report submitted by the complainant.

12. With respect to the source of light also evidence

indicates that light was coming from the house of Pramod

Dubey. There was sufficient light for the identification of

the accused. Rajendra Singh (PW-1) had deposed that his

brother was murdered at 1 or 2 steps north side of the plot

of Dr. S.N. Singh. The height of boundary wall of the plot

of Dr. S.N. Singh has been stated to be about six to eight

feet in the version of different witnesses whereas the other

witnesses except PW-1 have not been cross examined as to the 6

height of the boundary wall of the house of Pramod Dubey

which was stated to be the source of light. The height of

boundary wall was 2 ½ feet only.

13. The version of Nepal Singh supports to a great extent

the version of complainant PW-1, the fact that the incident

had taken place at the time when it was purported to have

taken place and presence of the complainant PW-1 at the spot,

and he had seen the dead body of the deceased also, namely,

Surendra Singh. The solitary eye witness PW-1 is a reliable

witness as supported by the other evidence on record. The

shots were fired from short distance as stated by Rajendra

Singh (PW-1). As regards blackening of skin not being

present, the High Court has given a cogent reasoning for

holding that since a Jacket was put on by the deceased, mark

of blackening powder has not been found on the two entry

wounds. The fact remains that gun shots were fired from a

short distance and that fact is not disputed and is also

established by the nature of injuries caused to the deceased

and duly corroborated by medical evidence.

14. Firstly, we come to the question that the first

information report has been ante timed. The FIR had been

reduced to writing on the basis of the written report lodged

by the complainant Rajendra Singh (PW-1). Constable Uma

Shanker Singh (PW-4) reduced it to writing. The PW-4 has

clearly stated that he prepared Chik No.48/2000 case

No.66/2000 under Section 302/120B, IPC. Entry in the general 7

diary of the police station was made by the SHO at 2305

hours. The carbon copy of the FIR also reflects the position

in FIR. The aforesaid documents were marked as Ex.KA-5 and

KA-6, respectively. A bare perusal of the FIR indicates that

there is no correction as to the time of the offence i.e. 10

p.m. and as to date on which it has been recorded. There is

correction in time in writing at 2205 hours or 2305 hours. It

appears that figure of 2205 hours has been corrected to 2305

hours. However, considering the fact that carbon copy has

also been produced of the document, the same also indicates

that 2305 hours was corrected at the time when KA-5 was

recorded. The time of 2305 is also supported by general diary

entry. Thus, it appears that correction had been made at the

time of reducing the FIR to writing at the relevant time and

no dent is caused to the prosecution cast as to the time of

incident. The date of recording of FIR was 18.02.2000. There

is no scope for ante timing the FIR within two hours of night

available on 18.02.2000. The FIR cannot be said to be ante

timed.

15. Coming to the question of reliability of solitary eye

witness Rejendra Singh (PW-1). We have gone through the

entire deposition anxiously with the help of learned senior

counsel for the appellants. We find that his version is

quite truthful. He has clearly stated that one week before

the incident he had come from Allahabad to Varanasi. He went

out strolling to search for his brother and when he reached 8

near Mahavir temple he met his brother Surendra Singh and

they both started walking towards home. While they were

returning back, he was 5-6 paces ahead of Surendra, his

brother. When they reached in front of the house of Pramod

Dubey at about 10 p.m. Kali Prasad and Santosh appeared from

the Western side street. Both of them were having pistols in

their hands. They caught his brother Surendra and fired at

his temple and neck. His brother fell down. Thereafter on

hearing the hue and cry Constable Nepal Singh came out of the

house. He challenged the accused persons and ran towards them

to catch them but the accused persons fled away towards north

side and disappeared. His brother died on the spot. He went

to his house and immediately, reduced the report to writing,

then went to the police station and lodged the report in the

night itself. In the cross examination, it has been deposed

that the reason for killing was that there was enmity between

them and the accused Kali Prasad had a doubt that deceased

was also involved in murder of his brother. On further cross

examination, he has clearly stated that there was a case

pending regarding beating incident between the parties also

under Section 107, IPC. He has also stated that Pramod Dubey

and several other persons came out of their houses after

hearing hue and cry. There is nothing brought in the cross

examination as to doubt the version given by the witness that

is medically corroborated also and substantially corroborated

by the version of Nepal Singh (PW-3), who came to the spot

immediately after gun shots were fired.

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16. When we consider the statement of Nepal Singh (PW-3),

he has clearly stated that he knew complainant Rajendra

Singh. He used to live in the house adjacent to the house

where he lived. Rajendra Singh was studying at Allahabad but

occasionally he used to stay at Varanasi. The incident took

place at about 10 p.m., on 18.2.2000. He was in his house,

when he distinctly heard the sound of gun fire, he came out

shouting and saw Rajendra Singh (PW-1) was running towards

his house and on seeing him complainant, came to him and

started narrating the incident. He saw two people running

away to the North side. Body was lying in the pool of blood

in front of the house of Pramod Dubey. A bicycle was also

lying near the body. Thus, he has corroborated version of

complainant. He has narrated about the presence of Rajendra

Singh at the spot.

17. Coming to the question whether there was any source

of light, we find that the height of the house of Pramod

Dubey was 2-1/2 feet whereas the height of boundary wall of

plot of Dr. S.N. Singh was 6-8 feet as is apparent from the

depositions of witnesses. The height of house boundary wall

of Dr. S.N. Singh is hardly material for the purpose of the

case. The fact remains that there was source of light from

the house of Pramod Dubey and boundary wall was stated to be

2-1/2 feet which could not have obstructed the light as

suggested in cross examination. Thus, as to the visibility

and source of light, we have no doubt as to the version of 10

complainant.

18. It was further submitted that intimation of first

information report has not been sent promptly to the police

station. A perusal of the first intimation report dated

18.02.2000 and its receipt indicates that it has been

dispatched on 19.2.2000 as it had been sent by post to the

Magistrate and received on 21.2.2000. In the circumstances

of the case, it cannot be said to be a case of belated

intimation particularly, when it was sent by post. In the

facts of the case, it cannot be said that the shape has been

given to the story later on or that there was delay in

receipt of the intimation of the report by the Magistrate.

The submission on behalf of accused has no legs to stand in

the aforesaid factual matrix of the case.

19. Coming to the submission with respect to the non-

presence of the blackening powder, it appears that gun shots

have been fired from a close range but exact distance has not

been put to Rajendra Singh(PW-1) who is eye witness of the

incident. It is apparent and was not disputed rightly that

considering the nature of injuries the gun shots were fired

from a close range; what was the exact distance has not been

brought out. Apart from that, since the deceased was wearing

a hooded Jacket, obviously the absence of blackening on the

skin could not be found. In the case of hooded Jacket, there

may be blackening of the Jacket portion only but at the same

time the skin may not have marks. That explains the version 11

of the doctor that no blackening marks were found on injuries

Nos.1 to 3.

20. Thus, we find that the prosecution has proved case

beyond reasonable doubt and the High Court and trial Court

have rightly convicted the appellants for offence under

Section 302, IPC.

21. Considering the facts and circumstances of the case,

we find that no case is made out to interfere in the impugned

judgment and order(s).

22. The appeals are dismissed. The conviction and

sentence imposed by the Courts below are confirmed.

……………………...J. [ARUN MISHRA]

……………………...J. [NAVIN SINHA] NEW DELHI;

MARCH 28, 2019.