RAKESH versus STATE OF U.P

High Court of Judicature at Allahabad

Indian Supreme Court Cases / Judgements / Legislation

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Rakesh v. State Of U.P - CRIMINAL APPEAL No. 550 of 1982 [2007] RD-AH 13864 (10 August 2007)

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HIGH COURT OF JUDICATURE OF ALLAHABAD

   (Reserved)

Criminal Appeal  No. 550  of 1982      

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Rakesh son of Shri Ram Swaroop

aged about 47 years,

Resident of Hirdaipur Bhandaula,

P.S. Modinagar, District Ghaziabad. . .....Appellant-Accused

              Vs.

            State of U.P.           .......Respondent.

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Hon'ble S.S. Kulshreshtha,J

Hon'ble Barkat Ali Zaidi, J

( By Hon'ble Barkat Ali Zaidi, J)

1. The  abovenamed accused- appellant  Rakesh alongwith co-accused Sukhvir and Pawan were tried by  the  VIIth  Addl. Sessions Jude, Ghaziabad,  in S.T. No. 89 of 1981, under Section 302/34 I.P.C., who found accused- appellant guilty under Section 302 I.P.C. and  awarded him  life imprisonment, and acquitted the remaining two accused, vide judgment and order dated 23.2.1982. That is what brings the appellant in appeal here.

2. The incident took place 26 years back and the guilt of the accused is yet to be finally determined.  Such enormous delay is detrimental to justice, and indicates that the justice Apparatus needs to be refurbished.  It is high time, be did, something about it instead of pouring lamentations.

3. According to the prosecution version, father of the complainant P.W.1 Ram Singh had given a loan of Rs. 2,000/- to one  of the accused Pawan, brother of the present appellant Rakesh about 4 years  prior to the  incident in question. Despite several demands, accused-Pawan did not repay the loan. Around 2 years back, there was some altercation  on this issue between Pawan and deceased Mahendra son of the complainant which caused bad blood between them.  It is said that on 17.2.1981 at about 5.00 P.M., when deceased Mahendra alongwith his brother P.W.2 Vidya Bhushan were returning to their village Hridaipur Mandol  and reached near chak of Mangaroo, the accused accosted them, and said, that they will repay their loan today, and as alleged accused-appellant Rakesh  fired at Mahendra, which hit his back, in consequence whereof, Mahendra died instantaneously at the spot. On raising alarm by Vidya Bhushan, his   brother Ramesh Chandra and one passer by PW-3 Rich Pal came there  and the accused run away  towards the South. Vidya Bhushan went to the village , informed his father Ram Singh, who came at the place of occurrence, got a written report Ex. Ka-1 scribed, which he produced at police station Modinagar on the same evening at 7.30 P.M. The police registered a case under Section 302 I.P.C. against the accused and investigation of the case was assigned to P.W. 6 S.I. Om Prakash Sharma, who went on the spot and after completing the legal formalities,sent the dead body of deceased Mahendra for post mortem examination to District Hospital,Ghaziabad where on 18.2.1981 at 4.45 P.M. P.W. 4  Dr. A. S. Soodan Medical Officer, conducted the post mortem, and on  internal examination found fracture, of frontal  and partial  of both side occipital on  left side,  membrances lacerated at places of fracture. Fracture anterior and middle of the base of skull and following ante mortem injuries  on  person of Mahendra and opined that the cause of death is Shock and Haemorrhage as a result of ante mortem injuries, vide post mortem report  Ex. Ka- 2.

ANTE MORTEM INJURIES:

1.Wound of entry  0.75 cm  in shape with Rt side temporal region 7 cm from the Tragus of Rt. Ear at 1.30 O'clock position. Margin inverted. Hair present.

2.Wound of exit e.15 cm x 1 cm in skull cavity deep in the Lt. Side Head back side behind the Lt. Ear, 9 cm from the Lt.  Tragus at 2 O' clock position. Brain matter coming out from the would margin everted."

4. P.W.6 S.I. Om Prakash Sharma after completing the investigation challaned the accused under Sec.302  Indna Penal Code in the Court.

5. In support of it's case , the prosecution examined P.W. 1 Ram  Singh, P.w. 2 Vidya Bhushan, P.W.3 Richhpal, P.W.4 Dr. A.S. Sudan, P.W.5 H.C. Tejvir Singh who instituted the case crime and wrote the chick F.I.R.   and P.W.6 S.I. Investigating Officer  Om Prakash Sharma. in the Court.

6. The case of the accused is of denial simpliciter  and that they have been falsely implicated. In defence, only accused Pawan produced D.W.1 Dr. J.C. Juneja, D.W. 2 Dr. D.S. Das, D.W.3 Sewa Ram and D.W.4 Krishna in the Court.

7. The learned Sessions Judge, on the basis of the evidence produced before him, acquitted accused Pawan and Sukhvir and held the accused-appellant Rakesh guilty, as above.

8. We have heard Sri N.K. Verma, learned counsel for the appellant and Addl. Government Advocate for the State.

9. It will appear from the aforesaid narration that the case hinges on the testimony of the two witnesses who are said to have seen the occurrence, PW-2 Vidya Bhushan and  PW-3 RichhPal. It is the evidence of these two witnesses which is to be closely scrutinised in order to come to a just conclusion. P.W.2  Vidya Bhushan is the real brother of the deceased Mahendra Singh Tyagi and was proceeding with him at the time of occurrence.  He is the solitary witness, who saw the occurrence from A to Z, and he has stated that three accused accosted them and accused Pawan asked his brother accused Rakesh  to settle scores with him finally, once and for, all, so that his debt may be repaid,  and thereupon, accused Rakesh fired upon him , which caused the instatenous death of deceased Mahendra at the spot.

10. We must countenance the argument of the counsel for the accused-appellant, that, the statement of witness should be taken with the pinch of salt, because he is the brother of deceased .  It cannot be inferred from this relationship that the witness will falsely implicate the accused.

11. Similarly  we are  not prepared to accept the other argument of the accused-appellant that since the Trial Court has found the evidence of the witness unworthy  of reliance,  in respect of  other accused who have been acquitted , it should not be considered dependable  in respect of accused-appellant Rakesh .

12. It is now well established by a catena of pronouncement of Supreme Court that the principal, ' Falsus in Uno Falsus in  Omnibus' is neither a Rule of Law nor Rule of Prudence. However, there are a number of features and circumstances  which make it difficult to accept in toto the evidence  of the witness. The Post Mortem Report mentions burning and blackening at the right side of the temporal region of the deceased, which means that the fire must have been made, from a very close range,  and according to the Modi's Medical Jurisprudence from a maximum distance of 2-3 feet.  It is natural for anyone to run for safety if a weapon is aimed against him and there is imminent apprehension, that the enemy  is  going to fire. This is normal human  conduct, and it must be assumed that, the deceased and his brother would have tried to run on seeing a revolver in the hand of appellant Rakesh. The evidence of this witness is that the deceased did try to run, but he was held by accused Pawan. Normally  when a man runs for life, he will try  to dodge any person,  who wants to apprehend him, and will run in a different direction, so that he is not caught or apprehended, particularly when the witness and the deceased have been challenged from some distance as the evidence goes . In order to over come this lacuna, P.W. 2 Vidya Bhushan  has stated that the accused Pawan caught hold of the deceased Mahendra, and then the accused-appellant fired upon him. In the first place, this seems to be an improvement, because this statement neither appears in F.I.R. nor in statement under Section 161 Cr.P.C. Secondly, it is difficult to comprehend that the accused will fire on the deceased, while he is being held  by his colleague because the  cartridge which was fired, contained pellets, and pellets can fly around and there could be a clear possibility of any pellet  hitting  to accused Pawan, who was holding the deceased . This circumstance substantially erodes the veracity of the version given by the witness, besides indicating that he has no  hesitation in making improvements in his statement. We cannot, therefore, call this witness a fully dependable and reliable witness.

12. Coming to the evidence of P.W. 3 Richpal, his statement is to the effect, he heard the noise of gun fire while he was at some distance, and then he ran towards the place of occurrence, and found the deceased lying  injured at the spot. He further says that he saw a pistol in the hand of appellant which he was trying to hide under a blanket which he was carrying. In his statement, in court, he has stated that he ran behind the accused but he did not say so in his statement to the investigating officer under Section 161 Cr.P.C.. He was just a passer-by and is unlikely to have risk his life, by running behind the accused, and his statement to this effect does not inspire confidence. He has admitted of a pending litigation between his nephew Bhagirath and Katar  Singh, a  cousin of  the appellant  Rakesh and the  suggestion from the side of the accused is that, it is because of the ill will generated because of this litigation that he is deposing against the accused. In any case it has to be noticed that he is not a witness who saw the actual occurrence, and it was only subsequent to the occurrence that he came to the spot.

13. The  motive attributed to the commission of crime is that the co-accused  Pawan   had taken Rs. 2000/- as loan from Ram Singh, P.W. 1  four years earlier, and the loan was not being repaid, despite demands on which, there was an altercation between  accused Pawan and the deceased. There is no writing about the loan and there  is evidence to the effect that the father of the accused is a well to do person and has 15 bighas of land with him and the suggestion is as there was no need to take a loan from the father of the accused-appellant . It is also in evidence the father of the accused who is said to have given the loan is himself under the debt  and a decree of recovery  of money  has been passed  against him, and it is, therefore, suggested that it is unlikely, that any such loan was given by the father of the accused. In view of all these circumstances, the evidence of motive is very weak and infirm.

14. We have already noticed that the eye witness account given by P.W. 2 Vidya Bhushan and P.W. 3 Rich Pal cannot be considered to be fully dependable and there does  persist element of doubt and suspicion, which should operate in favour of the appellant- accused. We do not , therefore, consider safe in the circumstances, to record a finding  of guilt on the basis of the evidence available on record, and we will, therefore, prefer to acquit the appellant.

O R D E R

Appeal is allowed. The conviction of the accused-appellant Rakesh is set aside and he is acquitted of the charge  levelled against him. Material Exhibits, if any,shall be  destroyed, in case no appeal is filed within prescribed period of time. The appellant is on bail. His bonds are cancelled and sureties are discharged.

Dt : 10th  August, 2007

NU

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