Raj Singh and others v State of Uttar Pradesh

Allahabad High Court

25 April 2013

The Judgment was delivered by : Pankaj Naqvi, J.

1. Four accused persons Raj Singh, Satish, Watan @ Bittu and Kulvir were put on trial by the Special/Additional Sessions Judge, Court No. 4, Saharanpur in Session Trial No. 557 of 2006 for committing offences under Sections 148, 395, 302, 302/149, 307, 307/149, 412 IPC r/w S. 7 Criminal Law Amendment Act. Simultaneously, the first three accused were also tried u/s. 25 of the Arms Act in Session Trials No. 558 of 2006, 559 of 2006 and 560 of 2006 respectively. The learned Trial Judge vide judgment of conviction dated 19.05.2008, convicted the accused Raj Singh, Watan @ Bittu and Satish under Sections 148,302,307/149IPC and acquitted them under Sections 396,412 IPC r/w S. 7 Criminal Law Amendment Act and S. 25 of the Arms Act. Kulvir was acquitted of all the charged offences. On 19.05.2008, the convicts were heard on sentence and the learned Judge sentenced Raj Singh, Watan @ Bittu and Satish to rigorous imprisonment for life and 1 year under Sections 302/149 and 148 IPC respectively along with Rs.10,000/- as fine on the aforesaid two counts. They were further directed to undergo sentence for 10 years RI with Rs.5000/- as fine under Section 307/149 IPC. All sentences were directed to run concurrently and in the event of default in payment of fine, convicts were to undergo six months additional rigorous imprisonment.

2. Raj Singh preferred Criminal Appeal No. 3474 of 2008 and Satish and Watan Singh @ Bittu have filed Criminal Appeal No. 3409 of 2008.

3. A written report (Ex.ka-1) dated 27.01.2006 alleged that while informant Ranbir Singh (PW-1) was getting petrol filled in his motorcycle at the filling station of Vijendra Singh (PW-2) and Vipin Kumar at village- Nagal, PS Deoband, Saharanpur, the latter two persons came to PW-1 and Vijendra Singh (PW-2) informed PW-1 that he had received a phone call that BDC members of village Bachheti were with them and that they should talk to them on that day itself for which they were waiting at the tri-junction of road at Bachheti. Vijendra Singh (PW-2) requested the informant (PW-1) and one Tara Singh (not examined) to accompany them. All the above four persons boarded the Scorpio vehicle, driven by one Chandrahas (not examined). On reaching the appointed junction, no one was found and Vijendra Singh (PW-2) asked his companions to return.

4. While returning towards Bilaspur, their vehicle was overtaken after about 100 yards, and then stopped by a Maruti car with a broken number plate. Vipin Kumar alighted from the front seat of Scorpio vehicle and Raj Singh, Satish and Watan @ Bittu, the appellants also alighted from their car along with two unidentified persons at about 10.30 AM. Raj Singh fired a shot at Vipin, exhorting that he must face the consequences for contesting elections against them. Thereafter, Satish and Watan @ Bittu also fired shots, as a result of which Vijendra Singh (PW-2) sustained injuries. After Vipin fell on the ground, Raj Singh, the appellant took away the licensed pistol of Vipin and fled away firing shots towards Jhabreda. In an effort to speed away from the scene, the Scorpio vehicle fell in the ditch. On the arrival of another vehicle, both the injured were taken to the hospital and enroute an information was given by PW-1 to the brother of Vijendra Singh, i.e., Mange Ram (not examined), of the entire incident, who was found present at the arrival of the informant with the deceased and injured at the gate of the Government Hospital, Saharanpur. The doctors declared Vipin as brought dead and admitted Vijendra (PW- 2), the injured.

5. The motive for the incident was attributed to the fact that the wife of Mange Ram, the elder brother of Vipin Kumar (deceased), was a contestant for Block Pramukh, against the wife of Raj Singh, the appellant, in the forthcoming elections.

6. PW-5 Satyawan Singh, the Constable Clerk at the reporting chowki of PS Deoband, i.e., Khera Mughal, on the basis of the written report, drew the FIR under Sections 395,307 IPC and S. 7 Criminal Law Amendment Act, the particulars whereof was recorded in the general diary at Sl. No. 16 at 15.05 PM on 27.01.2006. On account of subsequent discovery of the weapon of offence, FIR was also registered u/s. 31 of the Arms Act on 04.03.06 against accused Raj Singh in Case Crime No. 63 of 2006; Watan Singh in Case Crime No. 64 of 2006, and against Satish in Case Crime No. 106 of 2006, u/s. 25 of the Arms Act.

7. During trial, Raj Singh was charged with offences under Sections 148, 395, 302, 302/149, 307, 307/149, 412 IPC r/w S. 7 of Criminal Law Amendment Act, Watan Singh with offences under Sections 395, 302/149, 307 IPC, r/w S. 7 of Criminal Law Amendment Act and Kulvir and Satish with offences under Sections 395, 302/149, 307/149 IPC r/w S. 7 of the Criminal Law Amendment Act.

8. The defence alleged false implication on account of local election rivalry and denied their participation in the occurrence.

9. The prosecution in support of its case, examined 16 witnesses. PW-1 Ranbir Singh (informant) and PW-2 Vijendra Singh (injured), were the eye witnesses to the incident. PW-3 Dr. S K Garg conducted the autopsy on the dead body of the deceased, Vipin Kumar. PW-4 Dr. Karmveer Singh was the Medical Officer of SBD Hospital, Saharanpur, who attended the injured Vijendra Singh (PW-2), examined his injuries, prescribed the treatment and directed the police at about 11.45 AM to record his dying declaration and also prepared a death memo of the deceased Vipin Kumar. PW-5 Satyawan Singh was the Constable Clerk at the reporting chowki, Khera Mughal, PS Deoband, Saharanpur on 27.01.2006, who prepared the formal FIR on the basis of the written report at 3.05 p.m. PW-6 Raj Kumar was the Constable of PS Janakpuri, who on the receipt of the death memo at about 12.30 PM, proceeded along with R R Katheria, Station Officer, PS, Janakpuri and Mahesh Kumar (not examined) for the hospital for holding inquest upon the dead body of the deceased. PW-7 was the Sub-Divisional Magistrate, who conducted the test identification parade. PW-8 R. R. Katheria, was the Station Officer, PS Janakpuri who conducted the inquest upon the dead body of the deceased, Vipin Kumar. PW-9 was the Constable at PS. Deoband, who on discovery of weapon of offence, registered the three FIRs under the Arms Act. PW- 10 Suneet Kumar was the Prabhari Nirikshak / Investigating Officer of PS Deoband, Saharanpur. He prepared the site plan, collected the blood-stained earth, ordinary earth, prepared a recovery memo duly signed and sealed by him and the witnesses. PW-12 Dr. Sanjay Solanki was the doctor at Ganga Ram Hospital, Delhi, who examined the injured Vijendra Singh (PW-2). PW-13 Prahlad Singh and PW-14, Rajendra Prasad Sharma were the 2nd and 3rd Investigating Officers of cases under the Arms Act. PW-16 N P Singh was the Constable, who sealed eight bundles of articles pertaining to the case and after due permission, sent the same for forensic examination at CFSL, Agra.

10. The defence examined four witnesses. DW-1 Jagpal claims to be the owner of the agricultural fields abutting the road near the scene of occurrence, who stated that on 27.1.2006 he was at his fields, then at about 10.30 AM he saw a Scorpio vehicle coming from Jhabreda side in which 3 – 4 persons were seated. At the same time, two motorcycles also came from Siddki side in which 4 persons were seated which stopped the Scorpio vehicle. Persons seated on the motorcycle alighted and started forcibly dragging one person, who was in the car, abuses were exchanged and it appears that they wanted to take the said person along with them. In the process, shots were fired, as a result of which two persons, who alighted from the car sustained bullet injuries. One person riding the motorcycle took away with him one person, who came out from the car. Thereafter, one of the occupants of the car called up from his mobile, a vehicle arrived from Siddki side which took away the injured. He also stated that the injured person dropped his pistol in the scuffle, which was lifted by the police. He finally stated that he recognizes the four assailants, who came on the motorcycles, but denied that the accused were the persons, who came on the motorcycle. DW-2 Dr. R.C. Asthana was the Medical Officer at District Hospital, who stated that on 17.3.2006 at 12.30 PM the accused appellant – Raj Singh was brought in police custody from the District Jail, Ghaziabad, for medical examination. He examined the injuries of Raj Singh. He stated that the injuries were simple, appearing inflicted within two weeks.

11. The medical report (Ex.Kha 1) was prepared under his signatures, which bore the thumb impression of the appellant – Raj Singh. DW-3 Devendra Kumar was the Advocate of Raj Singh in case crime no.31 of 2006 (instant case). He stated that both the accused, namely, Raj Singh and Watan were taken on police remand by PS Deoband from Ghaziabad Jail after medical examination on 01.03.2006 and at that time they did not have any injuries. He also stated that the said accused persons had told him that even though they were denying involvement in the instant case, but the police was exerting pressure on them to admit their involvement. On 02.03.2006, he noticed that Raj Singh, the accused was sitting on the floor of the lock-up, blood was oozing from his hand and a police man was inflicting lathi blows. The doctor concerned at the Primary Health Centre did not note any injury on the body of Raj Singh. PW- 4, Dr. Ashok Kumar stated that he was posted as a Medical Officer in District Jail, Ghaziabad between 01.03.2006 to 05.03.2006. While sending the accused Raj Singh on police remand at 10.45 p.m., on 01.03.2006, he did not notice any external injury on his body, which is evident from the report (Ex. Kha-3). However, when the accused came back to district jail, Ghaziabad on 05.03.2006, he found 6 injuries, which were simple appearing, caused by a sharp cutting weapon. Injury no. 2 was on account of lathi blow, which had a sharp pointed edge like a wire. The medical report was marked as Ex. Kha- 4.

12. It was submitted by Sri Gopal Swaroop Chaturvedi, learned Senior Advocate for appellant Raj Singh, that even though the alleged incident had taken place at about 10.30 AM and inquest was held at 12.40 PM, no disclosure of the identity of the assailants was made till 3.05 PM, though both PW-1 & PW-2 came in close contact with the police, which completely demolishes the prosecution story. He also submitted that the investigation so conducted, was an absolute farce, ante-dated and fabricated which cannot inspire the confidence of the Court. Sri P N Misra, learned Senior Counsel appearing for appellants Satish and Watan @ Bittu in the connected appeal, while adopting the arguments of Sri Chaturvedi, also submitted that only if witnesses are found to be trustworthy and credible, tardy investigation may not prove fatal to the prosecution. He also submitted that delayed- disclosure as to the identity of the assailants may be acceptable in case a satisfactory explanation is given for the delay, but where there was no disclosure at all, a belated disclosure was to be rejected. He finally submitted that the guilt of Watan @ Bittu cannot traverse beyond S. 326 IPC, as his shot hit only PW-2, the injured, and not the deceased who was already shot dead. No overt act was committed by Satish.

13. Sri Akhilesh Singh, learned Government Advocate, submitted that the conduct of PW-1, in not lodging the report prior to 3.05 PM, is not unnatural as he was compelled by circumstances beyond his control, i.e., taking both the injured to the hospital, out of whom one was declared brought dead, and the injured-PW-2 had to be shifted to Delhi for treatment. He submitted that the testimony of PW-2 was wholly credible as his presence at the scene of occurrence was not doubted. PW-2 gave sufficient explanation for belated statement u/s. 161 Cr. P. C. on 03.02.2006 at Saharanpur as he was under treatment at Sir Ganga Ram Hospital, New Delhi. He finally submitted that the lacuna in the investigation was due to incompetence of the police, which could not affect the substantive evidence which directly implicates the appellants.

14. Sri Raghuraj Kishore, learned counsel for the informant submitted that non-examination of Chandrahas, an eye witness, was not fatal for the prosecution as he was only a driver/owner of the vehicle, who was only interested in the release of his car. He further submitted that P.W. 1 had given an explanation as to why he did not disclose the names of the appellants, the nature of the weapon, and the details of occurrence to the police officer who conducted the inquest between 12.40 p.m. -1.30 p.m. as the said police officer was not from the police station concerned.

15. Sri A N Mulla, learned AGA submitted that the delay in filing the FIR has been satisfactorily explained, which version has been found to be true by the Learned Trial Court, and in the absence of any perversity, the same was not liable to be disbelieved. He further submits that from the evidence of PW-2, at page 26 of the paper book, it was established that the relations between the two factions were hostile on account of local electoral rivalry due to which the incident took a bloody turn.

16. Before the Court considers the submissions, it would be apposite to have a brief resume of the evidence of the important prosecution witnesses.

17. PW-1 claims to be an eye witness and was the informant of the case. He was a school teacher. He is said to have accompanied Vipin Kumar (deceased), PW-2, Chandrahas (driver) and Tara Chand at the request of PW-2, who is said to have received a telephonic call that as B.D.C. members were with him, they should meet them at the appointed place, to garner support of Bachheti members for elections to the post of Block Pramukh, for the wife of Mange Ram, the elder brother of the deceased. On reaching the specified destination, as no one was found, Vijendra Singh (PW-2) called upon to retreat towards Bilaspur. While they had covered a distance of 100 yard towards Bilaspur, a maruti car came from the rear side with a broken number plate and overtook their vehicle (Scorpio) and stopped in front of their vehicle. Vipin Kumar (deceased) alighted from the Scorpio. The appellant Raj Singh alighted from his maruti car, took out a pistol and exhorted at Vipin Kumar who also alighted from his vehicle, that he must pay the price for contesting the election and fired a shot at Vipin Kumar. The other two accused Satish Kumar and Watan @ Bittu also fired shots at PW-2, out of which one bullet injured PW-2 in his right leg. Raj Singh, the appellant took away the licenced arm of Vipin Kumar (deceased). Vipin Kumar fell on the ground, whereas Vijendra Singh (PW-2) collapsed inside the vehicle.

18. The accused, thereafter, fled away. Both the injured were brought in another vehicle and were sent along with Tara Chand (not examined) and PW-1 and Chandrahas (not examined) to the Government Hospital, Saharanpur. Enroute, the elder brother of Vipin Kumar and Bijendra Singh, i.e., Mange Ram was called up by PW-1 by his mobile, was apprised of the incident and was found present at the hospital at the time of the arrival of the injured. The doctors declared Vipin Kumar as brought dead in the hospital at 11.40 a.m., and admitted Vijendra Singh (PW- 2). PW-1 stated that the distance between the SBD Hospital and PS Janakpuri is 1 furlong, SBD Hospital is within a radius of 1 km from the office of SSP, Collector, Circle Officer and the police lines. Further he stated that more than a furlong across the bridge is P.S. Sadar Bazar. He stated, at page 58 of the paper book, that the distance between Nagal and Mughal Khera (police outpost) via Siddiki is 12 kms. The returning chowki of PS Deoband is at 50 steps from the main road of Khera Mughal. According to PW-1, the police reached the hospital after about an hour of their arrival at 12.40 p.m. He does not remember as to whether the police came upon the instructions of the doctor or not. The relatives of the deceased were present, according to the inquest, yet they were not made witnesses to the inquest, although the inquest records that they are named as witnesses. PW-1 witnessed the inquest proceedings. He further stated that the Investigating Officer carried out the inquest between 12.40 p.m. to 1.30 p.m. after obtaining the signatures of the inquest witnesses. Thereafter, the dead body was sealed and handed over to the Constable for postmortem.

19. Till the time of the incident, none had filed nominations for the post of Block Pramukh as only news reports were published in Dainik Jagran, the formal notification had not been issued. He stated that elections were probably scheduled for 22.02.2006 but the wives of appellant Raj Singh and that of Mange Ram, elder brother of Vipin Kumar (deceased), had not filed their nominations. Subsequently, he said that wife of Mange Ram had filed her nomination but not the wife of Raj Singh, the appellant. On reaching tri-junction of roads at Bachheti, Satyapal was not found there and no one made any efforts to trace Satyapal in village Bachheti as he was expected to meet at the Bachheti tri-junction. Before reaching the Bachheti tri-junction, Vijendra Singh (PW-2) had called at the number from which he received the call but after reaching the Bachheti junction and not finding Satyapal at the appointed place, Vijendra Singh (PW-2) did not make any telephonic contact with the caller. He also stated that he did not make any efforts to trace the mobile number from which the call was received on the mobile of Vijendra Singh (PW-2). PW-1 claims to have scribed the written report outside the Hospital between 1.30 – 2.00 PM. Thereafter, PW-1 took the report along with Mange Ram, elder brother of the deceased, in a car to the police station Khera Mughal (police outpost), where he found Chandrahas (driver of the vehicle) already present at that police outpost.

20. PW-2 claims to be an injured-eye witness, who supports the testimony of PW-1. He further stated that on account of his deteriorating condition in the hospital, he was given an injection, rendering him unconscious but at the time of arrival in the hospital and when he met Mange Ram, he was conscious. He was conscious for 5-10 minutes while bandage was being wrapped up. On the day of occurrence, Sanjay, the caller did not disclosed to him the name of the BDC members who were expected to extend support to them, but on his visit to Bachheti on 24.01.2006, Sanjay had called him to talk to one Satyapal. He never came across face-to-face with Sanjay, but called him on 24.01.2006, whereas the person who called him on the fateful day, i.e., 27.01.2006 was also claiming himself to be Sanjay. After the occurrence neither he nor his family members made any efforts to inquire from Sanjay as to whether did he make any call on the day of occurrence or not . He did not speak to Mange Ram, his elder brother in the Hospital and he spoke to him about the occurrence only after he was discharged from the Hospital in Delhi on 03.02.2006. His statement u/s. 161 Cr.P.C. was recorded at Saharanpur on 03.02.2006.

21. PW-4, Dr. Karmveer Singh, Medical Officer of SBD Hospital, Saharanpur, stated that on 27.01.2006 at about 11.45 a.m., he examined the gun shot injuries of PW-2. Injury no. 1 was a fire arm wound of entry 0.5 cm in diameter around right knee at upper border of patella with no blackening and the second injury was also a fire arm wound exist into 1×1 cm, margins were everted on the left knee at upper border of patella. Fresh bleeding was found and the injured was advised X-ray. The injury report was marked as Ex.ka-4. He intimated the police station Janakpuri in the prescribed format about the admission of the injured-PW-2 in the Hospital. He prepared BHT (Bed Head Ticket) of PW-2 under his signatures (Ex.ka-5), according to which around 4 p.m., PW-2 was referred to a higher medical centre. He could not identify the handwriting and the signature of the doctor, who issued the advice note. He prepared the death memo (Ex.ka-7) of the deceased, Vipin Kumar at 11.40 a.m. by Mange Ram. He, on cross-examination, stated that although the general condition of PW-2 was not well, he was conscious and was administered life saving drugs. As per the BHT, he was not unconscious but his general condition was poor. At 11.45 a.m. he directed the police for recording the dying declaration of PW-2.

22. PW-5, Satywan Singh, was the Constable / Clerk posted on the day of occurrence at the reporting chowki of PS Deoband, i.e., Khera Mughal. He stated that on the basis of the written report submitted by PW-1, he registered the FIR (Ex.ka-8), which was duly entered at Sl.No. 16 of the general diary at 15.05 p.m under his signatures. He stated that on 27.01.2006, no non-cognizable or cognizable report was registered at the outpost. Prior to the recording of the FIR, neither any information on RT set from PS Janakpuri or PS Deoband was received at the outpost nor from any other source or person as regards the alleged occurrence. On the day of occurrence, as per the GD entry no. 10, a Constable was sent at 9.15 a.m., from the police outpost Khera Mughal for Bachheti, who returned at 2.30 p.m., at the outpost, as per GD entry no. 13 and he did not report about any untoward incident at the police outpost Khera Mughal. Udai Raj Singh, S.I., returned after investigation in Case Crime No. 29 of 2006 as per G.D. entry no. 15 at 15.00 hours and he too did not report to the police outpost Khera Mughal of the alleged occurrence on 27.01.2006.

23. PW-6, Constable Raj Kumar of PS, Janakpuri, Saharanpur, took the dead body of deceased Vipin Kumar for postmortem. He stated that he noticed large contingent of police posse in the Hospital, but could not say with certainty, whether police from PS Deoband was present or not. As long as panchayatnama was carried out, the police force remained present along with the relatives of the deceased, whom he did not identify. The body was handed over for postmortem at 1.40 p.m., which commenced at 2.00 p.m. and concluded between 3.00 – 3.30 p.m. Thereafter, the body was handed over to the father of the deceased, i.e., Kishan Kumar, who was present in the hospital.

24. PW-8, was the Station House Officer of PS Janakpuri, Saharanpur on the day of occurrence. He stated that on 27.01.2006 at 12.30 p.m., he received a death memo (Ex.ka-7) from SBD Hospital, Saharanpur, which was duly recorded in the general diary (Ex.kha-1). He proceeded for the Hospital, conducted the inquest upon the dead body of the deceased at 12.40 p.m. and sent the dead body along with police papers and letter to CMO, etc. for postmortem at 1.30 p.m. As the memo related to PS Deoband, information of the same was also given to PS Deoband on the wireless set. He admitted that despite the aforesaid GD entry, he did not speak to PS Deoband. The GD entry also records that he was directed by S.P., City on CUG No. 3453 to proceed for the Hospital which information he received while he was leaving for the Hospital. He deposed that when he reached the Hospital, none of the higher police officials were present and it was only after 20-25 minutes of his arrival that Circle Officer, S.P, City arrived on their own. The inquest (Ex. Ka-14) was prepared by him and signed by him and the witnesses and it was stated that the death was due to a gunshot injury. He also stated that panch witnesses remained with him from 12.40 p.m. to 1.30 p.m. On a specific query, PW-8 stated that he neither inquired from any of the inquest witnesses as regards the time, place and nature of weapon used for inflicting injuries on the deceased nor was the said information disclosed by the inquest witnesses, while giving their opinion, as regards the cause of death.

25. PW-10 was the Inspector, In-charge of PS, Deoband. He stated that upon receipt of information on RT set from the police outpost Khera Mughal of PS Deoband, he along with his associates reached police outpost Khera Mughal for investigation. He took with him informant (PW-1), conducted the spot inspection, prepared a site plan under his signatures (Ex.ka-23) collected blood stained earth, ordinary earth kept them in sealed boxes, prepared a recovery memo (Ex.ka-24), signed by the witnesses, Chandrahas and Satyapal (both not examined). He also collected two empty cartridges of 9 mm which bore the no. 2206KF, prepared a recovery memo, signed by the aforesaid witnesses (Ex. ka-25). He also collected blood from the seat cover of the Scorpio vehicle and the blood-stained clothes, prepared a recovery memo, signed by him and the witnesses. Thereafter he proceeded for the arrest of the accused and came to know that the injured-PW-2 had been referred to a Hospital in Delhi. He recorded the statement of the injured (PW-2) after his return from Delhi on 03.02.2006 at his residence in Saharanpur. He stated that in this case five different case diaries were prepared. He admitted that, at most of the places in the case diary, the time of the event recorded, was not mentioned and the parchas of the case diaries submitted before the Circle Officer, do not bear the date below the signatures of the Circle Officer. Udai Raj Singh (not examined), was the Station Officer of the police outpost Khera Mughal on the day of incidence, whose statement was recorded by PW-10, wherein he stated that he had come to know of the incident at 10.30 a.m., and reached the scene of occurrence.

26. He further stated that on 27.01.2006 an information of the alleged occurrence was received at around 3.07 p.m. on the wireless set, while he was returning from Gopali Chowki. He stated that one person always remains present near the wireless set in the vehicle and any information, which is transmitted through wireless set, is received by all the wireless sets within the range. However, he stated that the signals of his wireless were weak. He also stated that when he recorded the contents of the FIR in his case diary, he had come to know the names of the eye witnesses of the incident. Chandrahas (not examined) was one of them. He stated that he did not find Chandrahas at the outpost Khera Mughal but when he proceeded for the site of occurrence, Chandrahas was present but Mange Ram was not available at the site. On a query as to why he did not carry out the inquest of the deceased, he stated that a dead body brought from a rural area, when taken to the district hospital, the inquest was carried out by the local PS Janakpuri. He further stated that the case diary of 27.01.2006 does not contain the information that the inquest had already been carried out, and that he neither made any effort to record the statement of PW-2, by going to Delhi nor did he seize the mobile phone of PW-2 and Mange Ram.

27. The alleged incident is said to have taken place at 10.30 a.m. in the presence of PWs 1 & 2, Chandrahas (driver-not examined) and Tara Singh (not examined). Mange Ram, the elder brother of the deceased Vipin Kumar was present in the hospital on arrival of both the injured, i.e., Vipin Kumar PW-1 and PW-2,whereas as per death memo(Exbt Ka 7) Vipin Kumar was declared brought dead at 11.40 am.According to PW 1 the police arrived in the hospital after about an hour of his arrival, i.e., around 12.40 p.m.. The inquest (Ex.ka-14) was held by PW-8 between 12.40 p.m. to 1.30 p.m. wherein the cause of death was attributed to gunshot injuries. PW-1, at page 62 of the paper book, stated that he did not inform the police officer conducting the inquest (PW-8) that he was an eye witness of the incident as according to him the officer did not make such a query from him.

28. We rather find a strange behavioural pattern of PW-1 unlike a prudent person knowing fully well that he was an eye witness to the gun shot injury both on the body of Vipin Kumar (deceased) and PW-2 and yet was not disclosing the full facts relating to the incident to PW- 8, was a circumstance which cannot be lightly brushed aside. No doubt the inquest witness was not expected to disclose details, such as, the names of assailants, place and time of occurrence, weapon used, etc., but where one of the inquest witnesses was an eye witness to the incident and was meeting several police officers including PW- 8, his failure to disclose the information cannot be ignored, on the premise that law did not enjoin him to make such a disclosure. We are of the view that in the instant case, failure on the part of PW-1, an eye witness to disclose the facts relating to the occurrence to PW-8, was fatal to the prosecution, as upon such a disclosure, the same would have constituted the first information report. PW-1 was tight lipped till 3.05 PM as regards the details of the occurrence which renders him not only a suspect witness, but his version also doubtful.

29. Further as per the testimony of PW-1, the senior police officials, like, Superintendent of Police (City), Circle Officer had arrived at around 12.40 p.m in the hospital. Although, PW-1 was present in the hospital right from 11.40 a.m. till 1.30 p.m., i.e., till the inquest was completed, no effort whatsoever was made by PW-1 either to disclose the names of the assailants to the police officials who arrived at 12.40 p.m. in the hospital or to the elder brother of Vipin Kumar (deceased), i.e., Mange Ram. As per P.W-6, presence of police personnel in the hospital was also established till the time the inquest had been completed. Given the gravity of the horrific daylight incident, where brother of Mange Ram, i.e., Vipin Kumar lost his life and PW-2 sustained injuries, yet no disclosure of the names of the assailants to Mange Ram (not examined) was made. If PW-1 had seen the occurrence or was present at that time, he is supposed to have related the whole story to everyone, specially the brother and father (Kishan Kumar) both of whom were present there and it was expected that Mange Ram, the real brother, in normal sequence of events would have persuaded PW-1 to disclose to the present senior police officials in the hospital the names of the assailants. Filial relationships evoke sharp reaction in a tragic event like the present one between the siblings, i.e. Vipin Kumar (deceased) and his elder brother Mange Ram (not examined). A normal conduct would have been to disclose the names of assailants to the police officials present in the hospital so that the police without further delay could have immediately commenced its operations to nab the accused.

30. There is yet another intriguing aspect of the case. To recapitulate, it was a call from one Sanjay, which inspired PWs 1 & 2 along with others, to proceed for Bachheti junction to garner votes of BDC members for the post of Block Pramukh. PW-2 did not know, who this Sanjay was. In a politically surcharged atmosphere, candidates and their supporters are willing to walk an extra mile to garner support. But at the same time, they also tread cautiously, lest in an effort to obtain support, they may not fall either in a trap led by the rival faction or their move becomes public. Those who contests elections are well aware of such electoral moves. Even though the identity of the caller was not known, yet PW2 along with others proceeded to the appointed place specified by Sanjay. Absence of persons concerned at the specified place by Sanjay, followed by the shootout, gives enough reason to raise the needle of suspicion towards Sanjay. Was it sheer inadvertence or a part of well planned strategy on the part of I.O. that on being informed that it was only a phone call from Sanjay, that Vipin Kumar (deceased), PW-1, PW-2 along with two more persons left for Bachheti junction, yet the I.O. did not ascertain the call particulars of Sanjay from the mobile phone of PW-2 least to talk of tracing out the said Sanjay by pursuing other modes of investigation of a case of such serious propositions. The Learned Trial Court found the said lapse as minor and procedural which would not frustrate the prosecution case. However, we cannot share the said perception, as in the sequence of events the chain commences only with a phone call from ‘Sanjay’. If PW-10/I.O. failed in his duty, to obtain call particulars of PW-2, as observed by the Learned Trial Court, then nothing prevented PW-2 from disclosing a vital information as regards the call particulars of Sanjay either to PW- 10/I.O., or in case PW-10/I.O. was not cooperating, PW-2 could have made a complaint before the higher police officials. Unfortunately, no such evidence is on record. Sanjay was also not examined as no effort was made by the Investigating Officer to trace him out for that purpose. In our considered opinion, non-ascertainment of the identity of Sanjay and consequently his non-examination, was a vital lacuna in the entire chain of events of the prosecution case, which could not be explained by the learned Government Advocate and the learned counsel for the informant, thus throwing several improbabilities in the prosecution case.

31. PW-4 Dr. Karmveer Singh, examined PW-2, the injured and stated that at the time of his admission in the hospital at around 11.45 a.m., his condition was poor, but he was conscious, as may appear from page 103 of the paper book. He further testified that he had directed the police (Ex.ka-7) at around 11.45 a.m. to record his dying declaration. The dying declaration was not recorded. Even though, PW-2 was conscious and became unconscious only when he was administered an injection, nothing prevented him to disclose the names of the assailants to his elder brother Mange Ram who got him admitted (Ex.ka-5). PW-2 was recommended to a higher medical centre and was discharged from the district hospital, Saharanpur on 27.01.2006 at about 4.10 p.m. He remained at Sir Ganga Ram Hospital, New Delhi from 27/28.01.2006 at 2.07 a.m. till his discharge on 02.02.2006. No effort was made by the Investigating Officer to record his statement u/s. 161 Cr P C while he was in Delhi and his statement was recorded only after his return from Delhi on 03.02.2006 at Saharanpur. On these facts, we find that though the condition of PW-2 at Saharanpur for a certain duration was such that he was in a position either to get his dying declaration recorded or even to disclose the names of the assailants to his brother, Mange Ram (not examined), yet the same was not done. It was too unnatural and improbable on the part of PW-2 not to disclose the names of the assailants of his real brother Vipin Kumar, to his elder brother Mange Ram at the hospital, rendering the prosecution story as highly improbable and doubtful.

32. S. 172 of the Cr.P.C. provides that every police officer making an investigation shall day-by-day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and statement of the circumstances ascertained through his investigation. The case diary has to be a volume and duly paginated, but nevertheless in the case like the present one, which was prior to the amendment by Act No. 5 of 2009, the requirement of a case diary in a volume form with pagination would still exist by necessary implication, as what was earlier implicit was now explicit. The said provision is to be read along with Regulation 291 of the U.P. Police Regulations which also provides sufficient procedural safeguards against any antedating of the case diary.

33. PW-10, the Investigating Officer, at page 146 of the paper book, states that as many as five different case diaries were used in the investigation of the case. At page 148 of the paper book, it was stated that at numerous place in the case diaries, the time of recording the event was not mentioned. It was admitted that the case diary did not bear the date on which the same was submitted before the Circle Officer. A perusal of his statement also indicates that while one case diary was not completed and pages of the other case diary was opened and written. Some diaries were not paginated, such as diaries no. 44 to 47 of the series 47310. The Trial Court too noticed the illegality in the preparation and maintenance of the case diary, but the effect of the same was brushed aside on the ground that the same does not adversely affect the interest of the defence. Considering the attending circumstances, including the defect in preparation and maintenance of C.Ds, this Court is of the view that the provisions of S. 172 Cr P C r/w S. 291 were flouted with impunity, which castes a serious doubt in the case of the prosecution, as the ordinary inference we draw is that the case diaries were never written on a day-to-day basis and the same were ante-dated by probably written them up in different sittings in the police stations and not at places as claimed.

34. PW-1 is alleged to have scribed the FIR in the hospital at around 1.30 p.m. on 27.01.2006 and, thereafter, he along with Mange Ram went all the way up to the reporting chowki at police station Deoband, i.e., Khera Mughal to lodge the FIR. The report was lodged at the reporting chowki (Ex.ka-8). Chandrahas (driver-not examined) was already present at the reporting chowki Khera Mughal. Chandrahas was an eye witness to the incident. After the shootout, he did not accompany the injured to the hospital. He may only be a driver who was only interested in running his vehicle for canvassing in election or in the release of the vehicle, as observed by the Learned Trial Court, but his conduct of not intimating the police of the reporting chowki Khera Mughal, cannot be lightly ignored, even though he was found standing outside the reporting chowki at 3.05 pm when PW-1 visited the police outpost Khera Mughal to lodge the FIR, as may appear from page 73 of the paper book.

35. The conduct of Chandrahas (not examined), though present outside the police outpost Khera Mughal and yet not informing the police of the shootout incident at 10.30 in the morning, only leads to one plausible inference that he had been withheld to approach the police for the narration of the incident. The conduct of PW-1 in lodging the report at 3.05 pm at the reporting chowki Khera Mughal and not at PS Deoband is also viewed by us with suspicion. PW-1 was a teacher and a certain degree of knowledge and understanding can be imputed to him that FIRs are registered only at the police stations and not at the outpost. This suspicion is based on two factors. Firstly, PW-5, In- charge of the reporting chowki Khera Mughal, at page 107 of the paper book, states that on 27.01.2006, no cognizable or non- cognizable report was registered at the outpost. Secondly, it was stated by him that at 9 a.m., a Constable was deputed to go to Bachheti, who returned at 2.30 p.m. on the same day as per report no. 10, but he did not report any untoward incident at Bachheti. He further stated that S.I. Udai Raj Singh also returned on 27.01.2006 at 3 p.m. as per report no. 15, but he too did not report about the shootout incident, as may appear from page 107 of the paper book.

36. There is abundant evidence on record from the very cross- examination of PW-1 that while going to the hospital at Saharanpur, there were many police stations. PW-1 has admitted that there were numerous police stations adjacent to the hospital in or around Saharanpur, any of which could have been easily accessed to lodge the report. But the prosecution was avoiding to present the report before the Officer of any of the those police stations and was proceeding to a distant outpost to lodge the report. PW-8, the Investigating Officer holding inquest upon the dead body stated that he had been instructed by the Senior Superintendent of Police to proceed to the hospital to do the needful. He did not appear seeing for any person who could give to him the information about the occurrence. PW-1 claimed that he was an eye-witness to the occurrence and was rubbing his shoulders not only with PW-8 but with other higher police officers but was shying away in disclosing the story to any of them. These are some of the suspicious circumstances, which share the credibility of the prosecution story and makes it doubtful.

37. We are of the view that if the alleged occurrence had occurred at Bachheti Chowk in the manner as suggested by the prosecution at around 10.30 a.m. then it was highly improbable that the police outpost of Khera Mughal which was only 12 kms via Siddiki would have gone unnoticed.

38. It is true that the life of Vipin was lost and PW-2 Vijendra Singh was injured seriously in his ankle but the circumstances which we have read out of the prosecution evidence are so glaring that it had created a serious doubt in our minds as regards the participation of appellants. The occurrence had taken place at about 10.30 AM on 27.01.2006 and in spite of the elder brother of the deceased and his father remaining present in the hospital, so much so, that the father was also receiving the dead body of Vipin while the elder brother of the deceased namely Mange Ram was getting PW-2 in the hospital. It was such a serious incident that each and every family member would have been very anxious to know as to who could have committed murder of Vipin and injured PW-2 Vijendra Singh. Witnesses like PWs 1 & 2 were all amidst the police officers and the family members but no one was opening his mouth to speak any detail of the incident. We have all reasons to believe that the elder brother of the deceased, his father could have seriously requested every accompanying person of the deceased including PW-2 himself to speak out to them the details of the incident, but it is evident from the evidence, no one was ready to do it. PW-1 stated that he was the eye witness but in spite of that he was not telling either the police or family members of the deceased. Police Stations which were in close proximity of the hospital were avoided and the informant and other witnesses travelled to Khera Mughal outpost where the report was lodged. Probably, purposely because the Senior Superintendent of Police, Saharanpur was knowing about the incident and as such he was directing PW-8 to go to the hospital for the needful. Why the informant shied from lodging his report before the nearest police station, who had also no lesser jurisdiction than Khera Mughal? These are suspicious circumstances raising the probability that in fact the assailants could not have been identified and the prosecution witnesses and family members of the deceased and injured had probably fixed up their mind as to how to approach the police with an acceptable story against persons, who could have some direct or remote motive for the commission of the offence. These are some of the reasons upon which we extend the benefit of doubt to the appellants.

39. The appeals are allowed. The Judgment of the Trial Court is set aside. Appellants Raj Singh, Watan Singh @ Bittu and Satish are acquitted of the offences charged. If they are on bail, they need not surrender and their bail bonds stand discharged.