STATE OF U.P. Vs. RAGHUNANDAN @ BADE MALI & ORS.
Section 302 - Punishment for murder
Section 120 B - Punishment of criminal conspiracy
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1189 of 2008, Judgment Date: Sep 29, 2015
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.
J U D G M E N T
Uday Umesh Lalit, J.
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 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.
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 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.
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:
Firearm wound of entry 4 x 1 cm on left side of hip.
Firearm wound of entry 1cm × 1cm side of back of chest, blackening present.
Firearm wound of exit 2cm × 1cm on right side of chest.
Firearm wound of entry 1.5cm × 1cm on right side of back of chest.
Firearm wound of entry 3cm × 1cm on left side of chest. Blackening present.
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.
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
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.
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.
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 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.
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 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.
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.
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
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.
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 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 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