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2015 Supreme(All) 1110
ALLAHABAD HIGH COURT
BEFORE : ARVIND KUMAR TRIPATHI AND PRAMOD KUMAR SRIVASTAVA, JJ.
MAHENDRA PRATAP SINGH ....Appellant
Versus
STATE OF U.P. ....Opposite Party
(Criminal Appeal No. 1802 of 2010 connected with Government Appeal Nos. 3651 and 3652 of 2013, decided on 11th September, 2015)
Counsel :
Satish Trivedi, Gyanendra Pratap, Arvind Kumar Singh-II and Rajul Bhargava for the Appellant; A.G.A. for the Opposite Party.
Headnote:(Indian) Penal Code, 1860—Sections 147, 148, 307/149 and 302/149—Murder—Conviction—If any evidence is given against accused in different trial then on basis of such evidence of another case accused cannot be held guilty in different trial—Therefore any evidence came in earlier trial conducted in absence of accused cannot be read against him during trial conducted in his presence—Evidences adduced before accused can only be read against him if he had been afforded opportunity to contradict them and adduce his own evidence in defence—Conclusion and finding of fact given by Additional Sessions Judge in S.T. No. 1039-A/1998 is based on evidences adduced in it—There are contradiction in evidences regarding ‘R’ in testimony of P.W-1 and P.W-2 in both trials—Second trail of S.T. No.1039-A/1998 was conducted later on after conclusion of earlier trial No. 1039/2010—Finding of fact and conclusion given by Additional Judge is such that may be one possible conclusion on basis of those evidences—1039-A/1998 erroneous—Judgment dated 25.3.2010 passed Additional sessions Judge, in S.T. No. 1039/1998; and judgment dated 27.6.2012 passed by said court in S.T. No. 1039-A/2012 needs no interference.
Appeals Dismissed.
(Delivered by Hon'ble Pramod Kumar Srivastava, J.)
1.Above mentioned first two appeals are preferred against the judgment dated 25.3.2010 passed by Additional Sessions Judge, Court No 9, Varanasi in S.T. No. 1039/1998, State v. Ramesh Kumar Singh, sections 147, 148, 302/149, 307/149 I.P.C., p.s. Phoolpur, Varanasi, by which one accused Gorakh Nath Singh was acquitted; and another accused Mahendra Prasad Singh was convicted and punished for offences under sections 147, 148, 307/149 and 302/149 I.P.C. He was punished for charge u/s 147 IPC with simple imprisonment for one year, for charge u/s 148 IPC with simple imprisonment for 2 years, for charge u/s 307/149 IPC with rigorous imprisonment of 10 years and fine of Rs. 5000/- (in default of payment additional s.i. of 2 years), and for charge u/s 302/149 IPC with imprisonment for life years and fine of Rs. 10000/- (in default of payment additional s.i. of 4 years). Remaining two accused persons namely, Gorakhnath Singh and Ramesh Kumar Singh were acquitted. Above mentioned third Governmental Appeal is preferred against the judgment dated 27.06.2012 passed by same sessions court by which accused Ramesh Kumar Singh was acquitted of charges u/ss 147, 148, 307/149 and 302/149 I.P.C.
2.The three appeals relate to same judgments of two above mentioned sessions trial relating to one and same incident relating to case crime no. 91/ 1989, which were conducted and concluded separately.
3.Sri Satish Trivedi, Advocate appeared on behalf of Mahendra Pratap Singh and Gorakhnath Singh. He was assisted by Sri Arvind Kumar Singh-II and Sri Gyanendra Pratap Singh. Sri Rajul Bhargava, Advocate argued on behalf of Ramesh Kumar Singh. In three appeals learned A.G.A. Sri A.N. Mulla represented and argued on behalf of State.
4.The prosecution case in brief was that the complainant Tribhuwan Narayan Singh (PW-1) had given written report in police station Phoolpur, Varanasi on 25.7.1989 at 7:00 p.m. to the effect that there was dispute between his father Girija Prasad Singh and accused Ramesh Kumar Singh on point of possession of a quarter and also regarding the election of Gram Pradhan. On 25.7.1989 he (complainant) was getting his quarter situated at village Hiramanpur, p.s. Phoolpur cleaned, then at about 6:00 p.m. in evening came there Gorakhnath Singh empty handed, Ramesh Singh armed with gun and Guddu Singh, Lallu Yadav, Kallu Yadav Mahendra Singh armed with country-made pistols. They reached at the general store of complainant at Hiramanpur crossing. On exhortation of Gorakhnath Singh, accused Mahendra Prasad Singh, Ramesh Singh and other accused had indiscriminately fired on Girija Prasad Singh. Due to this firing complainant's father Girija Prasad Singh died on spot and Jwala Prasad Singh and other persons had got injuries of pellets. This incident was witnessed by Kamla Singh, Janardan Singh and others. On the basis of this written report (Ex. Ka-1) case crime no. 91/1989 under section 147, 148, 149, 307 and 302 I.P.C. was registered against six accused persons namely, Ramesh Singh, Guddu Singh, Lallu Yadav, Kallu Yadav, Mahendra Singh and Gorakhnath Singh; and investigation started. After inquest the dead body of Girija Prasad Singh was sent for postmortem, which was conducted by Dr. M.N. Yadav (PW-6), on 26.7.1989 at 3:30 p.m. Dr. P.D. Singh (PW-8) examined injuries of injured Jwala Singh on25.7.1989 at 9:30 p.m. in S.S.P.G. Hospital, Varanasi and prepared medico legal injury report (Ex. Ka-7). Dr. S.K. Rai (PW-4) examined injuries of Kamla Singh on 26.7.1989 at 11:00 a.m. in P.H.C. Pindra and prepared medico legal injury report.
5.After completion of investigation, police had submitted charge-sheet against six accused Ramesh Kumar Singh, Guddu Singh, Lallu Yadav, Kallu Yadav, Mahendra Prasad Singh and Gorakhnath Singh for offence under sections 147, 148, 149, 302 and 307 I.P.C. During trial accused Guddu Singh and Kallu Yadav absconded, therefore, their trial was separated. During
