The State Of Uttar Pradesh vs Raghuvir And Anr Etc Etc

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2175-2177 OF 2017 (Arising out of SLP(Crl.) Nos. 349-351 of 2015)

STATE OF U.P. …Appellant

Versus

RAGHUVIR AND ANR. ETC. ETC. ...Respondents

ORDER

R. BANUMATHI, J.

Leave granted.

2. These appeals preferred by the State of U.P. challenges the

judgment of the High Court of Allahabad in Criminal Appeal Nos.745

of 2009, 841 of 2009 and 891 of 2009 acquitting the respondents

under Section 302 IPC by setting aside their conviction and the

sentence of life imprisonment imposed upon them.

3. Case of the prosecution is that on 30.07.2003, informant Bharat

Singh along with his son Lallu Singh, Shivpati wife of Lallu Singh,

Dheerendra Singh (PW-1), Monu (PW-2) and Meenu were returning

home after working in their fields at 09.00 P.M. At about 09.00 P.M.,

when they reached near huts constructed near the field of Hanuman Signature Not Verified Digitally signed by BALA PARVATHI

alias Mana, then in ambush Prem Bhujva, Raghuvir, Mehngu and Date: 2018.01.05 16:33:59 IST Reason:

Prem Yadav, extended exhortation and fired at Lallu Singh with 2

country-made pistol and guns. Lallu Singh died on the spot and all

the accused persons ran away towards the village.

4. The incident is stated to be the result of an enmity culminating

into hatching of conspiracy by the accused due to a Marpit taken

place three days prior to the incident between Sriram Gupta and

Shiv Charan on one side and the deceased on the other wherein they

had threatened the deceased to kill. On account of heavy rain during

night and due to fear of the accused, the incident was not reported

on the same night.

5. Bharat Singh lodged complaint (Ex.A1) on the next day i.e. on

31.07.2003 at 10.00 a.m., based on which FIR No.103 of 2003

(Ex.A3) was registered under Section 302 IPC read with Section 120B

IPC. Upon completion of investigation, chargesheet was filed under

Section 302 read with Section 34 IPC and Section 120B IPC on

17.10.2003 against the accused Prem Bhujva, Raghuvir, Mehngu and

Prem Yadav with two others Shiv Charan and Ram Gupta.

6. The trial court examined seven prosecution witnesses including

two eye witnesses Dheerendra Singh (PW-1) and Monu (PW-2),

PW-3-SI Dharampal Singh, PW-4-Dr. Rajesh Kumar Srivastava who

conducted post mortem (Ex. A4) and PWs 4 to 7 who were other

witnesses and investigating officer. Upon consideration of evidence,

the trial court held that evidence of eye witnesses PW-1 and PW-2 is

credible and trustworthy. Based upon the evidence of eye witnesses

PW-1 and PW-2, the trial court held that gun was recovered from the 3

possession of accused Prem Yadav and as per the ballistic report, the

gun recovered from the possession of accused Prem Yadav tallied

with the empty cartridges recovered from the place of occurrence

and on those findings, the trial court convicted all the four accused

persons under Section 302 IPC and sentenced each of them to

undergo imprisonment for life and a fine of Rs.5,000/- was imposed

on each of them with default clause.

7. Aggrieved by the conviction, the respondents/accused filed

criminal appeal before the High Court. The High Court set aside the

conviction and held that the delay in lodging FIR has not been

satisfactorily explained. The High Court held that the evidence and

incriminating circumstances are not sufficient to hold the accused

guilty and reversed the judgment of the trial court and acquitted all

the accused. Being aggrieved, the State has preferred these

appeals.

8. We have heard learned counsel for the parties and perused the

impugned judgment and materials on record.

9. Dheerendra Singh (PW-1) and Monu (PW-2) have consistently

stated that on 30.07.2003, after working in the field, they were

returning to their houses at around 09.00 P.M. along with Lallu Singh

and Shivpati wife of Lallu Singh. They further stated that when they

reached the huts constructed near the field of Hanuman alias Mana, 4

accused Prem Bhujva, Raghuvir, Mehngu and Prem Yadav in ambush

came and hurled abuses on Lallu Singh. The first shot fired by Prem

Yadav and thereafter, all the other three accused also fired. On

seeing the people coming near them, the accused persons fled away

from the scene of occurrence. The motive for the crime is stated to

be an occurrence about 2-3 days prior to the incident i.e. a quarrel

between the accused persons namely Shiv Charan and Ram Gupta

with deceased Lallu Singh. PW-1 and PW-2 have stated that they

were standing at about four-five steps behind the deceased and the

accused persons were about seven-eight steps in front of Lallu

Singh. PW-1 and PW-2 categorically stated that first round of fire

was shot by accused Prem Yadav from his gun and then the

remaining accused fired from their pistols.

10. Dheerendra Singh (PW-1) and Monu (PW-2) are the nephew of

deceased Lallu Singh and grandson of complainant Bharat Singh. As

pointed out by the trial court, PW-1 and PW-2 being related to

deceased Lallu Singh, it is quite natural that after working in the

fields, while returning to their houses, they accompanied the

deceased Lallu Singh. PW-1 and PW-2 have stated that though it

was night time, they were able to recognize the accused persons in

torch light. Accused Prem Bhujva is from the same village as of

deceased Lallu Singh i.e. Devmai and the remaining three accused 5

persons are from village Diwan Kheda which is situated at a distance

of one kilometer from their village. The trial court which had the

opportunity of seeing and observing the demeanour of PW-1 and

PW-2, found that evidence of PW-1 and PW-2 is trustworthy and their

identification of the accused persons cannot be doubted. The High

Court, in our view, was not right in doubting the evidence of PW-1

and PW-2 and upset the verdict of conviction.

11. From the scene of occurrence, three empty cartridges and one

live cartridge were recovered (Ex.A13) by the Investigating

Officer-Pravesh Chandra Chaturvedi (PW-7). The gun was recovered

from the accused Prem Yadav on 08.08.2003. The gun recovered

from the accused Prem Yadav and the empty cartridges were sent to

the ballistic expert for comparison which reached the ballistic expert

on 04.11.2003. The ballistic expert in his report (Ex.A14) opined

that the empty cartridges recovered from the scene of occurrence

were found to be shot from the same gun which was recovered from

accused Prem Yadav and this is a militating circumstance against the

accused Prem Yadav. This strong incriminating circumstance was

brushed aside by the High Court on the ground that the opinion of

the ballistic expert was not put to the accused under Section 313

Cr.P.C. Placing reliance upon Pancho v. State of Haryana (2011) 10

SCC 165, the High Court observed that the opinion of ballistic expert 6

(Ex. A14) cannot be held against the accused Prem Yadav. In

Pancho case relied upon by the High Court, there was no evidence to

show that during the period of six months, in whose custody the

pistol was kept. The facts of the said case are different and the said

decision may not be applicable to the present case. In the case in

hand, three empty cartridges and one live cartridge were recovered

from the place of incident. The gun was recovered from accused

Prem Yadav on 08.08.2003. Merely because there was a delay in

receipt of gun and the empty cartridges by the ballistic expert, the

incriminating circumstances emanating from the opinion of the

ballistic expert cannot be brushed aside.

12. Moreover, for relying upon the opinion of the ballistic expert,

the High Court observed that no question was put to the accused

under Section 313 Cr.P.C about ballistic expert report (Ex. A14). The

object of Section 313 Cr.P.C. is to put a circumstance against the

accused so that he may meet out the prosecution case and explain

the circumstances brought out by the prosecution to implicate him

in the commission of the offence. If any circumstance had not been

put to the accused in his statement, the same shall be excluded

from consideration. Of course, this is subject to a rider whether

omission to put the question under Section 313 Cr.P.C. has caused

miscarriage of justice or prejudice to the accused. As pointed out 7

earlier, in the case in hand, recovery of gun from the accused Prem

Yadav and the ballistic expert's opinion (Ex. A14) is only a

corroborative piece of evidence strengthening the prosecution case

as established by the oral testimony of eye witnesses PW-1 and

PW-2. Even assuming that the question regarding the ballistic

expert's evidence has not been put to the accused under Section

313 Cr.P.C., in the facts and circumstances of the case in hand, it

must be held that it has caused no prejudice to the accused. In our

considered view, the High Court was not right in brushing aside this

formidable circumstance against accused Prem Yadav.

13. For doubting the prosecution case and for acquitting the

accused, the High Court inter alia reasoned:- (i) inconsistency

between evidence of PW-1 and PW-2; (ii) whether it was raining or

not on the night of 30.07.2003; (iii) PW-1 and PW-2 stated that there

were four shots but the deceased had only two fire-arm injuries; (iv)

two lacerated injuries found on the body of the deceased Lallu Singh

were not explained; and (v) that the members of the family who

were along with the deceased Lallu Singh must have received

injuries; absence of such injuries raise doubt about the prosecution

case. The above reasonings recorded by the High Court, in our

considered view, are not adequate to doubt the credibility of the eye

witnesses PW-1 and PW-2. As pointed out earlier, PW-1 and PW-2 8

were about five-six steps behind the deceased and the accused

were about seven-eight steps in front of the deceased. Since the

gun shots were fired at the deceased, others in the complainant

party may not have sustained gun-shot injuries or they might have

tried to protect themselves.

14. So far as the injuries sustained by the deceased Lallu Singh are

concerned, PW-4-Dr. Rajesh Kumar Srivastava has noted the

following gun-shot injuries on the body of the deceased:-

"1. One Entry wound made by bullet towards left side of chest measuring 3 cm × 2 cm × deep up to Guha, 2.5 cm below the left nipple, towards inner and back side. Its edges were towards inside having reddish.

2. Entry wound of bullet located on left side at upper portion on the mid auxiliary line measuring 3 cm × 2 cm × deep up to bone, 3 cm below the edge of left rib cage, whose direction was towards inside and slightly below. Its edges were turned inside and were blackish in colour. ........"

Even though PW-1 and PW-2 have stated that there were four shots,

two gun shots might have hit the deceased as there were only two

gun-shot injuries and other shots might have missed the target.

There is no justification for blowing such trivial discrepancies to

doubt the evidence of PW-1 and PW-2 and the prosecution case and

the High Court could not have referred to the same, much less relied

upon the same to reverse the verdict of conviction. So far as

contradiction in the evidence of PW-1 and PW-2 is concerned, in our

considered view, the discrepancies pointed out by the High Court 9

neither affect the credibility of PW-1 and PW-2 nor is fatal to the

prosecution case.

15. For reversing the judgment of the trial court, the High Court

mainly relied upon the delay in lodging the FIR. The occurrence was

at about 09.00 P.M. on 30.07.2003 and the FIR was registered on

31.07.2003 at about 10.00 A.M. The prosecution has explained the

delay stating that on account of heavy rain during the night and

fearing of the accused persons, the complainant party could not

lodge the complaint on the night of 30.07.2003. After detailed

analysis, the trial court had accepted the explanation offered by the

prosecution for the delay. We find no good ground as to why the

High Court had taken the different view. Of course, delay in lodging

of complaint and the registration of FIR is normally viewed with

suspicion because there is a possibility of concoction and the courts

should subject evidence as well as contents of FIR to careful scrutiny.

Whether the case of the prosecution is to be registered on the

ground of delay in FIR, depends upon facts and circumstances of

each case. In the present case, as discussed earlier, the prosecution

has explained the delay in lodging the complaint that is due to heavy

rain and fear of the accused. The High Court, in our view, ought not

to have interfered with the same merely on the ground of delay in

setting the law in motion.

10

16. The High Court has not properly appreciated the evidence of

eye witnesses PW-1 and PW-2 and recovery of gun from the accused

Prem Yadav and the opinion of ballistic expert that empty cartridges

recovered from the scene of occurrence were fired from the gun

recovered from the accused Prem Yadav. The grounds on which the

High Court reversed the judgment of the Sessions Court were not

adequate. The High Court has misdirected itself in appreciating the

evidence before it and the reasonings for acquittal of accused Prem

Yadav are not sustainable.

17. Insofar as the other accused Prem Bhujva, Raghuvir and

Mehngu, we do not find any other substantial evidence corroborating

the evidence of eye witnesses PW-1 and PW-2. Two empty cartridges

recovered from the scene of occurrence, were fired from the gun

recovered from the accused Prem Yadav. In the absence of any

other corroborative evidence, the High Court rightly extended the

benefit of doubt to the other three accused viz., Prem Bhujva,

Raghuvir and Mehngu.

18. In the result, the appeal preferred by the State pertaining to

accused Prem Yadav is allowed. The conviction of accused Prem

Yadav under Section 302 IPC and the sentence of life imprisonment

awarded by the trial court are confirmed. The accused Prem Yadav

shall surrender/taken to custody to serve the remaining sentence. 11

19. Insofar as the appeals preferred by the State, pertaining to

Prem Bhujva, Raghuvir and Mehngu, are dismissed.

…....………………………..J. (R. BANUMATHI)

…....………………………..J. (UDAY UMESH LALIT)

New Delhi;

December 13, 2017 12

ITEM NO.16 IN COURT NO.3 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Special Leave Petition (Crl.) No. 349-351 of 2015.

THE STATE OF UTTAR PRADESH Appellant(s)

VERSUS

RAGHUVIR AND ANR ETC ETC & ORS. Respondent(s)

Date : 13-12-2017 These appeals were called on for hearing today.

CORAM :

HON'BLE MRS. JUSTICE R. BANUMATHI HON'BLE MR. JUSTICE UDAY UMESH LALIT

For Appellant(s) Mr. Ratnakar Das, Sr. Adv.

Mr. Manoj K. Mishra, Adv. Mr. Ashutosh Kumar Sharma, Adv. Mr. Kamlendra Mishra, AOR

For Respondent(s) Mr. Ajay Veer Singh Jain, Adv. Mr. AtulAgarwal, Adv. Mr. Uday Ram Bokadia, Adv. Ms. Divya Garg, Adv. Mr. Rakesh Kumar Khare, Adv. Mr. Rahul Poonia, Adv. Mr. Alok Mohan, Adv. Mr. Sonal Jain, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal preferred by the State pertaining to accused Prem Yadav is allowed and the appeals preferred by the State pertaining to Prem Bhujva, Raghuvir and Mehngu are dismissed, in terms of the signed reportable order.

(B.PARVATHI) (TAPAN KUMAR CHAKRABORTY) COURT MASTER BRANCH OFFICER

(Reportable order is placed on the file)