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IN THE HIGH COURT OF ALLAHABAD
BEFORE : RAM SURAT RAM (MAURYA) AND UMESH CHANDRA TRIPATHI, JJ.
KHEM CHAND ....Appellant
Versus
STATE OF U.P. ....Respondent
(Criminal Appeal Nos. 4345, 4343, 4344 and 5512 of 2009, decided on 7th September, 2018)
(B) (Indian) Penal Code, 1860 – Section 302 – Murder – Appreciation of evidence – On basis of minor contradictions whole prosecution version cannot be discarded. [Para 53]
(C) (Indian) Penal Code, 1860 – Section 302 – Murder – Witnesses – Hostile witness – Cross-examination – At appellate stage it cannot be pleaded that accused had not got opportunity to cross-examine witness after he turned hostile and cross-examined by prosecution. [Para 60]
(D) Criminal Procedure Code, 1973 – Section 313 – Murder – Examination of accused – Only material circumstance appearing in evidence against accused be put to accused under Section 313 of Code so as to enable him to explain it – It is not necessary to put all facts and circumstances which came in cross-examination of witness to accused under Section 313 of Code. [Para 64]
(E) Criminal Procedure Code, 1973 – Section 161 – (Indian) Penal Code, 1860 – Section 302 – Murder – Recording of statement under Section 161 – Delay in – Effect – Whether delay would cast any doubt on prosecution version will depend upon facts and circumstances of each case – It does not necessarily discredit testimony of eye-witnesses – In instant case it is mentioned in F.I.R. witnesses were present on spot and I.O. was favourable to accused – Accordingly their statements under Sections 161 of Code were not recorded promptly – Whole prosecution version cannot be discarded merely due to negligence of I.O. [Paras 70 and 71]
(F) (Indian) Penal Code, 1860 – Section 302 – Murder – Conviction based on eye-witness evidence – Validity – Presence of eye-witness at time and place of occurrence – Proof as to – Informant was working on post of clerk – Parent-teacher meeting was being held in school – After conclusion of aforesaid meeting informant, Principal, his son and one teacher were sitting in office and doing some official work – Accused persons armed with country-made pistol and revolver entered into office started deranging documents – On objection being made by Principal all of aforesaid persons with intention to kill fired on him due to which he sustained injury and fell on ground and thereafter succumbed to injuries – Fact of parents-teacher meeting held not mentioned in attendance register however presence of witnesses in office of principal cannot be doubted – Principal injured was present in his office – As such presence of witnesses who are staff of school is natural – Conviction based on testimony of such eye-witnesses cannot be set aside. [Para 66]
(G) (Indian) Penal Code, 1860 – Section 302 – Murder – Conviction based on statement of witnesses first time before Court – Held, is not sustainable. [Para 75]
Result; Order Accordingly.
Hon’ble Umesh Chandra Tripathi, J.—These four criminal appeals are born out of a common judgment and order dated 10.7.2009 passed by Additional Sessions Judge, Court No. 12, Gautam Budh Nagar in Sessions Trial No. 409 of 2005 (State v. Aman Singh and others) and Sessions Trial No. 44 of 2007 (State v. Islam @ Islamuddin), arising out of Crime No. 189 of 2004, under Sections 147, 148, 302, 307 and 120B of the Indian Penal Code (hereinafter referred to as ‘IPC’), Police Station - Sector 24, District - Noida whereby the appellants - Aman Singh, Khem Chand, Dharmendra Kumar and Islam @ Islamuddin were convicted and sentenced as follows :
[i]. Rigorous imprisonment for two years each, under Section 148 of IPC;
[ii]. Rigorous imprisonment for ten years and fine of Rs. 5,000/- each, under Section 307 read with Section 149 of IPC and in case of default in payment of fine, additional imprisonment for one year has to be undergone; and
[iii]. Imprisonment for life and fine of Rs. 10,000/- each, under Section 302/149 of IPC and in case of default in payment of fine, additional imprisonment for three years has to be undergone.
2. All the sentences were directed to run concurrently.
3. By the impugned judgment and order dated 10.7.2009, accused - Bijendra was acquitted of charge framed under Sections 148, 302 read with 149 and 307 read with 149 of IPC and accused Rajendra Kumar Sharma and Kalu Ram Sharma were also acquitted of charge framed against them under Section 120B of IPC.
4. Succinctly, stream of events culminating into lodging of the First Information Report, as discernible from the perusal of record, appears to be that informant Sushil Kumar was working on the post of clerk in Gandhi Smarak Vidyalaya, Sector 22, Noida, Gautam Budh Nagar. On 8.8.2004, a parent-teacher meeting was being held in that school. After the conclusion of the said meeting, the informant, Jaswant Singh (Principal), his son Rajeev Kumar @ Sonu and Narendra Tyagi (teacher) were sitting in the office and doing some official work. Mukesh Kumar, the ‘saala’ (brother-in-law) of Principal Jaswant Singh had come to the school to meet him. At about 02.00 p.m., Aman Singh, Khem Chand, Bijendra, Dharmendra Kumar and two other persons of Vilage - Chauda, armed with ‘tamancha’ (country-made pistol) and revolver entered into the office and said to the Principal Þlkys fizUlhiy rw cM+k vkWfMV djkus okyk curk gS] rw gekjs ?kksVkyks dh tkap djk;sxkÞ Thereafter, they started deranging the documents kept in the almirah of the office. On objection being made by the Principal, all of the aforesaid persons, with the intention to kill him, fired on him, due to which he sustained injury and fell on the ground. When Rajeev Kumar @ Sonu tried to save his father, they fired on him too, due to which he sustained injury and fell on the ground. On alarm being raised, the accused made their escape good. Due to the incidence, an atmosphere of fear and terror engulfed the whole market, leading to a stampede. All the shopkeepers and street vendors closed their shops and ran away. Peace and tranquility in the vicinity of the school and public law and order was totally shattered. After some time, the police came there and took injured Rajeev Kumar @ Sonu to District Hospital, Sector 31, Noida, where he was declared dead by the doctors. Injured Jaswant Singh was admitted to Sumitra Hospital, Sector 35, Noida. It was requested that report be lodged and appropriate action be taken. The written report is on record and the same is marked as Ex.Ka.1.
5. Contents of written report were taken down by scribe Constable Jamshed Ali in chik First Information Report (FIR No. 154 of 2004) at Case Crime No. 189 of 2004 under Sections 147, 148, 149, 307 302 read with 34 of IPC at Police Station - Sector 24 Noida, Dadri, District - Ghaziabad on 8.8.2004 at 03.15 p.m. The FIR is on record and the same is marked as Ex.Ka.2A. On the basis of entry so made in the FIR, relevant entry was made in the genera
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