State Of U.P. vs Raghunandan @ Bade Mali .

ITEM NO.1B COURT NO.7 SECTION II [FOR JUDGMENT] S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No. 1189/2008

STATE OF U.P. Appellant(s)

VERSUS

RAGHUNANDAN @ BADE MALI & ORS. Respondent(s) WITH Crl.A. No. 1204/2008 [SHIV SINGH AND ANOTHER V. STATE OF U.P.]

Date : 29/09/2015 These appeals were called on for pronouncement of judgment today.

For Appellant(s) Mr. C. D. Singh, A.O.R.

Mr. Imtiaz Ahmed, Adv. For M/s. Equity Lex Associates, Advs.

For Respondent(s) Mr. Imtiaz Ahmed, Adv. For M/s. Equity Lex Associates, Advs.

Mr. Anuvrat Sharma, A.O.R.

*****

Hon'ble Mr. Justice Uday Umesh Lalit pronounced the judgment of the Court for a Bench comprising of Hon'ble Mr. Justice Pinaki Chandra Ghose and His Lordship. For the reasons stated in the signed judgment, the appeals are dismissed affirming the view taken by the High Court in the judgment and order under appeal. The bail bonds of Shiv Singh and Ram Niwas stand cancelled and they be taken in custody forthwith to undergo the sentence awarded to them.

Signature Not Verified

Digitally signed by Kalyani Gupta [KALYANI GUPTA] [SHARDA KAPOOR] Date: 2015.10.01 15:47:54 IST Reason: COURT MASTER COURT MASTER [SIGNED NON-REPORTABLE JUDGMENT IS PLACED ON THE FILE.] Non-reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1189 of 2008

State of U.P. …. Appellant

Versus

Raghunandan @ Bade Mali & Ors. … Respondents

And

CRIMINAL APPEAL NO.1204 of 2008

Shiv Singh and Another ….Appellants

Versus

State of U.P. ….Respondent.

JUDGMENT

Uday Umesh Lalit, J.

1. These appeals by special leave arise from the judgment and order dated

23.08.2006 passed by the High Court of Judicature at Allahabad in Criminal

Appeal No.5747 of 2003. The Trial Court had convicted six accused persons

namely Raghunandan @ Bade Mali, Mahesh, Shiv Singh, Brij Raj, Ram

Niwas and Raju under Sections 148, 404, 302 read with 149 IPC and 2

sentenced them to life imprisonment and other sentences. The accused

challenged their conviction and sentence by filing Criminal Appeal No.5747

of 2003 in the High Court. By its judgment under appeal, the High Court

affirmed the conviction and sentence of Shiv Singh and Ram Niwas while it

acquitted other four accused. The acquittal of those four accused is

challenged by the State in Criminal Appeal No.1189 of 2008 while the

conviction and sentence of Shiv Singh and Ram Niwas is under challenge in

Criminal Appeal No.1204 of 2008. Both these appeals are being disposed of

by this common judgment.

2. PW1 Brij Raj Singh submitted a written report on 01.01.2001 in P.S.

Aliganj, District Etah to the effect that on that day he along with his nephew

PW2 Shiv Ratan Singh and one Nahar Singh had gone to the bazaar to

purchase vegetables. While returning from the bazaar on foot, the brother of

PW1 named Raghunandan Singh, who had also gone to the market to

purchase vegetables on a cycle, overtook them. When they arrived at the

triangular crossing at Kila Road said Raghunandan Singh was about 50 steps

ahead of them. Raghunandan Singh was carrying his Rifle on his shoulder.

At this triangular crossing all the aforementioned six accused persons who

had been waiting, started firing upon Raghunandan Singh, on account of

which he died at the spot. The occurrence created a scramble and 3

shopkeepers closed down their shops and started fleeing. According to PW1,

the accused had taken away the licensed rifle of the deceased Raghunandan

Singh and made good their escape. PW1 further stated in his report that

accused Raghunandan @ Bade Mali was armed with licensed double barrel

gun while the other accused were also armed with fire arms. The incident

occurred at 4:30 p.m. and the aforesaid report scribed by one Ram Babu

Singh was submitted at 5:30 p.m., pursuant to which Crime No.2 of 2001

was registered in P.S. Aliganj.

3. As part of investigation, PW6 Sub Inspector Surender Singh Chauhan

arrived at the place of occurrence but could not conduct the inquest upon the

body of the deceased because of darkness. The inquest panchnama Ext. Ka

-16 was prepared at 8 o’clock on the next day i.e. on 02.01.2001. At the

spot, three empty cartridges were found, two of .315 bore and one of 12

bore. The body of the deceased was then sent for post mortem examination

which was conducted on the same day at 2:30 p.m. by PW3 Dr. Hariom

Gupta, Medical Officer, Distt. Hospital Etah and following ante mortem

injuries were found:

1) Firearm wound of entry 4 x 1 cm on left side of hip.

2) Firearm wound of entry 1cm × 1cm side of back of chest, blackening present.

4 3) Firearm wound of exit 2cm × 1cm on right side of chest.

4) Firearm wound of entry 1.5cm × 1cm on right side of back of chest.

5) Firearm wound of entry 3cm × 1cm on left side of chest.

Blackening present.

6) Lacerated wound 3cm × 1cm × muscle deep on top of skull.

On internal examination, both the lungs and pericardium were found

lacerated. The cause of death was shock and hemorrhage as a result of the

aforementioned ante mortem injuries.

4. All six accused persons were arrested and rifle of .315 bore bearing No.78

AB 0226 belonging to deceased Raghunandan Singh was recovered from the

heap of straw in the house allegedly belonging to accused Raghunandan @

Bade Mali. A country made pistol of 12 bore was recovered from accused

Ram Niwas along with two live cartridges of 12 bore while on the same day

a country made pistol of .315 bore and live cartridges of same bore were

recovered from accused Shiv Singh. According to the Ballistic Expert’s

opinion which was marked Ext. Ka(I) in the High Court at the appellate

stage, out of three empties found at the site, empty cartridge marked EC 1

was found to have been fired from country made pistol recovered from

accused Ram Niwas, while the other cartridge marked as EC 2 was found to 5

have been fired from the country made pistol recovered from the accused

Shiv Singh. The characteristics of empty cartridge EC 3 were however not

found sufficient for comparison.

5. The prosecution examined PW1 Brij Raj Singh and PW2 Shiv Ratan as eye

witnesses to the occurrence. There were some elements of inconsistency in

their statements, the principal being the assertion by PW2 Shiv Ratan that

the dead body of deceased Raghunandan Singh was brought to the police

station and that the body was in the police station during the night. The eye

witness account about the incident however consistently disclosed that all

the six accused had encircled deceased Raghunandan Singh whose body was

found to be having five injuries by fire arms out of which four were entry

wounds and the fifth was the exit wound. The location of the entry wounds

in the front as well as in the back of the body of the deceased was consistent

with the eye witness account. The sixth injury, a lacerated wound on the

skull was also in keeping with the eye witness account that after taking the

rifle from the deceased, accused Shiv Singh had hit the deceased with the

butt of the rifle.

6. The Trial Court by its judgment and order dated 21.10.2003 found all six

accused guilty of the charges levelled against them. It found the eye witness 6

account unfolded through the testimony of PW1 Brij Raj Singh and PW 2

Shiv Ratan to be trustworthy. The Trial Court found all the accused persons

guilty under Sections 143, 120-B, 404, 302 read with Section 149 of IPC and

sentenced each of them to undergo rigorous imprisonment for two years

under Section 148 IPC, rigorous imprisonment for two years and fine of

Rs.1000/- for the offence under Section 404 IPC, rigorous imprisonment for

life and fine of Rs.5000/- for the offence under Section 302 read with

Section 149 IPC and rigorous imprisonment for life and fine of Rs.5000/- for

the offence under Section 302 read with Section 120-B IPC.

7. The convicted accused being aggrieved, filed Criminal Appeal No.5747 of

2003 in the High Court of Judicature at Allahabad. It was submitted on their

behalf that the scribe was not examined, that the F.I.R was ante-timed and

lodged after deliberation and consultation, that there was motive on the part

of the prosecution to implicate the accused falsely, that there were

contradictions in the version of two eye witnesses and that the possibility of

false implication of some of the accused was very much present. At the

appellate stage the genuineness of the report of the Ballistic Expert was

specifically admitted, whereupon said report was marked as High Court Ext.

Ka (1). The High Court found that the evidence regarding recovery of the

rifle of the deceased from the heap of straw from the house belonging to the 7

accused Raghunandan was not satisfactory. It further found that the licensed

weapon which said accused Raghunandan @ Bade Mali was allegedly

carrying was not used at all. At the same time the empties recovered from

the place of occurrence did match with the country made pistols recovered

from accused Shiv Singh and Ram Niwas. The High Court therefore found

the case of the prosecution to have been established as against Shiv Singh

and Ram Niwas but gave benefit of doubt to the other accused. The

conviction and sentence of Shiv Singh and Ram Niwas as recorded by the

Trial Court was therefore maintained while the other accused were acquitted

of all the charges levelled against them.

8. The acquittal of Raghunandan @ Bade Mali, Mahesh, Brij Raj and Raju is

under challenge in Criminal Appeal No.1189 of 2008 while convicted

accused Shiv Singh and Ram Niwas have challenged their conviction and

sentence in Criminal Appeal No.1204 of 2008. By order dated 24.01.2011

the convicted accused were ordered to be released on bail, which facility

they have since then been enjoying.

9. We have heard Shri C.D. Singh and Shri Ranjit Rao, learned Advocates for

the State in Criminal Appeal Nos.1189 and 1204 of 2008 respectively while

the accused were represented by Mr. Salman Khurshid, learned Senior 8

Advocate in both the matters. It was submitted on behalf of the State that

minor inconsistencies apart, the version given by eye witnesses was well

supported by medical evidence on record. Furthermore, the opinion of the

Ballistic Expert having been admitted at the appellate stage, the issue stood

completely clinched in favour of the prosecution. The fact that there were

four entry wounds, some in the front while the others in the back of the

deceased, completely supported the eye witness account. The preparedness

and participation of all the accused having been clearly established, they

ought to have been convicted and the acquittal of four of the accused persons

was completely unjustified.

10. Mr. Khurshid, learned Senior Advocate on the other hand submitted that the

inconsistencies in the version of the eye witnesses were such that both the

versions were required to be rejected, that the first information report was

clearly submitted after due deliberation and consultation, that the scribe of

the original complaint and Nahar Singh were not examined at all, and that

the facts on record did not rule out the possibility of over implication on the

part of the eye witnesses. Emphasis was laid on the fact that first five

accused are real brothers while the sixth accused is the son of accused Ram

Niwas and that 15 to 20 days before the incident one Ram Singh, other 9

brother of first five accused was murdered in respect of which two sons and

two nephews of deceased Raghunandan Singh were named as culprits in the

murder.

11. We have gone through the entire record and considered the rival

submissions. It is true that there are certain inconsistencies in the versions of

both eye witnesses. But such inconsistencies are not pertaining to the basic

substratum of the case. The first information report in the instant case was

lodged soon after the incident and the injuries on the person of the deceased

also show that more than one fire arm must have been used in the

transaction. Even if the recovery of the licensed weapon of the deceased is

eschewed, the recovery of the country made pistols from Shiv Singh and

Ram Niwas stands completely proved. Furthermore, the empty cartridges

found at the spot, as opined by the Ballistic Expert, are found to have been

fired from those country-made pistols recovered from Shiv Singh and Ram

Niwas. In the circumstances the involvement of accused Shiv Singh and

Ram Niwas in the incident in question stands fully established. At the same

time, since the recovery of licensed weapon of the deceased from the house

of the accused Raghunandan @ Bade Mali was not established and so also

the fact that said Raghunandan @ Bade Mali, though statedly armed with a

double barrel rifle had not used that weapon at all, the assessment made by 10

the High Court that there could be possibility of over implication is quite

correct. We find the view taken by the High Court as regards the acquittal of

four accused, to be a possible view which would not warrant any

interference in this appeal against acquittal. We, therefore, affirm the view

taken by the High Court as regards the acquittal of those four accused but at

the same time find sufficient material on record as regards involvement of

Shiv Singh and Ram Niwas. We therefore, affirm the conviction and

sentence as recorded concurrently against Shiv Singh and Ram Niwas.

12. In the result, these appeals are dismissed affirming the view taken by

the High Court in the judgment and order under appeal. The bail bonds of

Shiv Singh and Ram Niwas stand cancelled and they be taken in custody

forthwith to undergo the sentence awarded to them.

…..…………………………..J. (Pinaki Chandra Ghose)

………………………………J. (Uday Umesh Lalit) New Delhi, September 29, 2015