IPC, State v. Kapil Bansal and another and in Sessions Trial No
Case Details
Neutral Citation No. - 2023:AHC:184254-DB Court No. - 42 Case :- GOVERNMENT APPEAL No. - 132 of 2023 Appellant :- State of U.P. Respondent :- Kapil Bansal S/O Rajvir And Another Counsel for Appellant :- Shiv Kumar Pal Hon'ble Surya Prakash Kesarwani,J. Hon'ble Ms. Nand Prabha Shukla,J. 1. This Government Appeal along with an application under Section 378(3) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') has been filed by the State/appellant against the judgement and order dated 15.11.2022 passed by Additional Sessions Judge/Special Judge (SC/ST Act), Baghpat in Sessions Trial No. 21/2013, arising out of Case Crime No.730/2012, under Sections 302/34, 201 and 404 IPC, State vs. Kapil Bansal and another and in Sessions Trial No. 22 of 2013, arising out Case Crime No. 758 of 2012, under Section 25 Arms Act, State vs. Kapil Bansal, Police Station Baghpat, District Baghpat whereby Kapil Bansal and co-accused Smt. Poonam @ Beena were acquitted from the charges levelled against them.
Legal Reasoning
2. Heard Smt. Manju Thakur, learned AGA for the State- appellant. Facts: 3. Shorn off, unnecessary details, the facts in brief for the disposal of the appeal are that on 28.9.2012 at 8:30 AM, the first informant Dharmveer, son of Dhan Singh, resident of Village Harchandpur, who was a village Chaukidar at Police Station Kotwali Baghpat, gave a written Tehrir at P.S. Kotwali Baghpat, scribed by Ashwin Kumar stating therein that on 28.09.2012 around 8:00 am, a villager Brahmpal, son of Mahaveer informed him that in his sugarcane field, which is situated besides Rajwaha, an unknown dead body of a person aged about 35-40 years was lying. The person might have been killed by fire arm at some place and the dead body had been thrown besides the shores of the Canal through some vehicle. As the sugarcane field was irrigated so while dragging the dead body, it encompassed with the grass and the mud. The imprints of the tyre of some small vehicle was also found where the dead body was lying. 4. On the basis of the aforesaid information, the Constable Clerk Mewa Ram lodged the first information report against unknown persons 2 and Case Crime No. 730 of 2012, under Sections 302, 201 IPC, after making necessary entries in the General Diary was registered. At the instance of the Police of P.S. Sighawali Ahir, the dead body was recovered and Inquest Report, Photo Nash, Site Plan etc. were prepared and the Post Mortem Report was prepared by the Medical Officer, CHC, Baghpat. 5. After the registration of the aforesaid first information report, on 29.09.2012, Smt. Vikram @ Nisha wife of late Jagveer Singh, resident of Village Ganauli, Post Chirauri, P.S. Loni, District Ghaziabad gave a written report (Tehrir) at P.S. Kotwali Baghpat, District Baghpat, scribed by Rajesh Kumar son of Baljor Singh, resident of Village Kotwalpur, P.S. Loni, Post Chirauri, District Ghaziabad stating that the applicant originally belongs to Village Ganauli, P.S. Loni, District Ghaziabad. Her husband Late Jagveer Singh, was serving in Central Reserve Police Force of 131 B N Patni, Bihar, as Sub Inspector. While her husband was returning to his unit after completing his course from Silchar, in the meantime, on 25.09.2012 the health of the applicant deteriorated. She gave this information to her husband on the telephone. Knowing this he at once came to Delhi and in the night of 25.09.2012, he reached at her residence. On 26.09.2012, she was taken to the Hospital for treatment. A person named Kapil son of Rajveer Gurjar of Village Vinaypur who was posted as Constable at Central Reserve Police Force of 108 B N Meerut, took a debt of Rs.3,50,000/- and promised to return after a month. Whenever they demanded their money, he used to give them life threats. On 26.09.2012, when her husband rang him, demanding his money back, then Kapil assured that he would pay him in the evening. In the evening Kapil called him through his mobile number 9410885962 and asked him to come and take back his indebted amount at once. As it was getting darker, she did not permit her husband to go. On 27.09.2012 again he received a call from Kapil, then her husband took his Santro Car No. U.P.14 BM 3416 and proceeded to Vinaypur at about 6:00 am. When her husband did not return by afternoon, she called him, but the phone was not received, then she rang up to Kapil but he also did not respond. Finally, when her husband did not return by the evening, she lodged a missing report on 28.09.2012 at P.S. Loni, District Ghaziabad. On the same date, an information was published in the daily newspaper at Baghpat alongwith the photograph from 3 which she could identify her husband. Her family members, Jeth etc. went to the mortuary at Baghpat and identified the dead body of Jagveer. Thereafter, Tehrir was given at the Police Station that her husband has been killed by Kapil and his wife Poonam for the sake of lended money. Thereafter in order to evade the dead body, it was thrown away and the Santro Car, Laptop, three mobiles, ring, chain and other articles of her husband were taken away by them. Through the said Tehrir, a prayer was made to include this information in the investigation and to take action against Kapil and his wife Smt. Poonam @ Nisha. 6. During investigation, spot inspection was made, plain soil, blood stained soil and empty cartridge of 315 bore were collected from the spot and the statement of the witnesses were recorded. On 10.10.2012, SHO R.K. Singh Yadav arrested Kapil Bansal and Smt. Poonam who confessed that they had killed Jagveer. On the pointing out of accused Kapil, a country made pistol of 315 bore alongwith an empty cartridge and two live cartridges of 315 bore were recovered by the Investigating Officer at 7:30 AM, near the Mango grove besides the pathway of Rajwaha. On the basis of the aforesaid Recovery Memo, an FIR was registered against Kapil bearing Case Crime No. 758 of 2012, under Section 25 of the Arms Act and on the basis of the incriminating material, a charge sheet was submitted against accused Kapil Bansal under Section 25 of the Arms Act. A charge sheet was also filed against accused Kapil Bansal and Smt. Poonam @ Beena under sections 302, 201 and 404 IPC. 7. As the offence was cognizable by the Sessions Court, therefore, the case was committed to the Sessions Judge on 09.01.2013. The trial proceeded in the Court of Additional Sessions Judge/Special Judge, (SC/ST) Act, Baghpat. On 20.09.2013, charges were framed against the accused respondents Kapil Bansal and Smt. Poonam @ Beena under Sections 302/34, 201 and 404 IPC. Charges were further framed against the accused Kapil Bansal under Section 25 of the Arms Act. 8. The accused Kapil Bansal and Smt. Poonam @ Beena denied the charges and claimed to be tried. 9. In order to prove the charges levelled against the accused- respondents, the prosecution examined seven witnesses: 4 1. P.W.-1 Dharmveer Singh- First Informant/ Chaukidar 2. P.W. 2 Smt. Vikram @ Nisha- wife of the deceased 3. P.W.3 Ashwin Kumar-Scribe of the FIR lodged by PW-1 4. P.W. 4 Dr. Ravi Kumar- Doctor who prepared Autopsy Report 5. P.W. 5 Head Constable Avtar Singh- proved Recovery 6. P.W. 6 Retired S.I. Jaswant Singh- Investigating Officer of case under Section 25 of the Arms Act 7. P.W. 7 Constable Surender Singh- Secondary witness in place of I.O. 10. Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. wherein the accused denied the charges levelled against them and stated that they are innocent and have been falsely implicated. Despite opportunity given, no defence witness was produced. 11. The Trial Court, came to the conclusion that the story of the prosecution is false and acquitted the accused-respondents Kapil Bansal and Smt. Poonam @ Beena vide impugned judgement and order dated 15.11.2022. Being aggrieved from the aforesaid judgement and order, the present appeal has been preferred by the State. Submissions:- 12. Learned AGA assailing the impugned judgement submitted that the learned Trial Court discarded the evidence of prosecution witnesses without appreciating the evidences in the right perspective. Discussion and Findings:- 13. We have carefully considered the submissions advanced by learned AGA and perused the impugned judgement and order as well as the record of the Trial Court. 14. P.W.-1 Dharmveer Singh in his examination-in-chief deposed that on 28.09.2012 he was posted as Chaukidar of Village Harchandpur. On 28.09.2012 at around 8:00 am, a villager Brahmpal son of Mahaveer informed him that in his sugarcane field besides Rajwaha, an unknown dead body of a person aged about 35-40 years was lying. The person must have been killed by fire arm at some place and the dead body had been thrown from some 5 vehicle besides the shores of the Canal. As the sugarcane field was irrigated so while dragging the dead body, it was encompassed by the grass and the mud. The imprints of the tyre of some small vehicle was also found where the dead body was lying. The scribe of the said information was Ashwin Kumar and on the basis of said information, the FIR was registered at 8:30 am. This witness was extensively cross-examined by the defence witness. 15. P.W.-2 Smt. Vikram @ Nisha is the wife of the deceased and has supported the prosecution case in his deposition, as briefly noted above. 16. P.W.-3 Ashwin Kumar in his examination-in-chief deposed that on 28.03.2012 he was posted at P.S. Baghpat and on the information of Dharmveer he scribed Tehrir. He was the scriber of the Tehrir. Whatever Dharmveer narrated the same was scribed by him. This witness was also extensively cross-examined by the defence. 17. P.W.-4 Ravi Kumar in his examination-in-chief, deposed that on 28.09.2012, he was posted at CHC, Baghpat as Medical Officer and conducted the autopsy of deceased Jagveer Singh. Following ante-mortem injuries were found on the body the deceased: Injury No.1 - 4.0 cm from the left nipple of the chest of the left side of the deceased. Top entry wound of bullet. The size of the wound is 3.0 cm x 2.5 cm. There was all around and black spots on the inside measuring 8.0 x 7.0 cm. Injury No.2 - Bullet on the right side of the shoulder. There was an exit wound, whose edges were protruding. Injury No.3 - Bullet wound on the right side of the deceased. 12 cm below the nipple. Size 1.0 cm x 1.0 cm. When the wound was opened, one bullet was found from the body which was 9.0 cm from the shoulder, 90 cm below the scapula. A bullet size 3 cm x 0.7 cm was found on the muscle below. Injury No.4- Abraded contusion on the right side of forehead of 2.5 cm above the right eyebrow of the size above 7.0 cm x 4.0 cm. 18. According to him, the cause of death of the deceased was due to excessive haemorrhage and shock due to loss of blood. This witness was also extensively cross-examined by the defence. 6 19. P.W.-5 Head Constable Avtar Singh in his examination-in- chief deposed that on 10.10.2012 at 7:30 am, in the forest of Village Harchandpur, a country made pistol of 315 bore and two live cartridges of 315 bore and an empty cartridge of 315 bore were recovered on the pointing out of accused Kapil. He proved the recovery memo as Exhibit Ka-4 and as secondary witness proved the Chik FIR under Section 25 of the Arms Act. This witness was also extensively examined by the defence. 20. P.W.-6 Retired S.I. Jaswant Singh in his examination-in- chief deposed that he was Investigating Officer of the case registered under section 25 of the Arms Act and had proved the site plan, charge sheet, prosecution sanction etc. This witness was also extensively examined by the defence. 21. P.W.-7 Constable Surender Singh in his examination-in- chief deposed that on 28.09.2012 he was posted at P.S. Kotwali, Baghpat as a Constable and the case was registered as Case Crime No.730/12, which was investigated by the then SHO, Sri R.K. Singh Yadav. After the incriminating material was collected, the said SHO, submitted a charge sheet against Kapil Bansal and Smt. Poonam @ Beena under Sections 302, 201 and 404 IPC. As the said Investigating Officer died, therefore, he has verified his handwriting and signature. This witness was also extensively examined by the defence. 22. It has been argued that the prosecution has proved the case against the accused persons beyond the reasonable doubt. It has also been argued that though there is no eye witness of the said incident but the chain of events are complete and it is the accused only who have committed the said crime and are liable to be convicted. 23. After perusal of the record and after examining the oral as well as the documentary evidence and the arguments advanced by the counsel for the State, we are of the view that the prosecution has failed to prove the charges under Sections 302/34, 201 and 404 IPC against the accused opposite parties beyond reasonable doubt. The chain of events are not complete which may indicate guilt of the accused. P.W.-1 Dharmveer Singh, P.W.-2 Smt. Vikram @ Nisha and P.W.-3 Ashwin Kumar are the witnesses of fact. P.W.-1 Dharmveer Singh has only proved the first information report and 7 he is not an eye witness account. He only stated that a dead body was found in his village which was thrown after causing fire arm injury. During cross-examination this witness deposed that Jagveer was not killed in the field of Brahmpal but was killed at some other place. On 27.9.2012 at 4:00 AM, he came to know that a dead body was lying. The said witness had not seen the incident and had merely given a Tehrir at the Police Station. P.W.-3 Ashwin Kumar is merely the scribe of the first information report. Whatever was stated by P.W.-1 Dharmveer, the same was scribed in the Tehrir. This witness of fact is also not an eye witness account. 24. Only the P.W.-2 Smt. Vikram @ Nisha (wife of the deceased) was the sole witness to some extent. But she also could not prove the complete chain of events, which may indicate guilt of the accused person. During cross-examination, she deposed that at the time of the incident, her husband was posted at Patna, Bihar, who after taking holidays did not come to the home on 25.09.2012, rather went to Silchar and after completing his course, came back to his unit. Only when she fell ill and on her calling her husband came on 25.09.2012. However, during cross-examination, she stated that on 25.09.2012, her husband was at Silchar, Assam for the training. Generally, the training gets over at 5:00 PM. She could not explain that how her husband reached at Village Ganauli, P.S. Loni, District Ghaziabad on 25.09.2012 that too after the completion of his training on 25.09.2012 at Silchar Assam at 5:00 pm. The said witness could not give any plausible explanation to such circumstances. She could not even depose that her husband came through Airways on a Flight. At any cost, the husband of the said witness could not reach home in the evening of 25.09.2012 after completion of his training on 25.09.2012 at 5:00 PM. These circumstance seems to be suspicious. The said witness stated that whatever information was given in the report for calling her husband was only due to her stomach pain. She was not hospitalized in any Hospital but she was supposed to be hospitalized on the next day. She deposed that her husband came on 25.09.2012 and she went to the doctor on 26.09.2012 but she could neither recollect the name of the doctor nor his address. She stated that she went to one Bhagat and said Bhagat gave some medicines on his own. She did not know the name and address of Bhagat. Thus, the evidence adduced by this witness about her illness on 25.09.2012 8 also seems to be suspicious. Further the P.W.2 Smt. Vikram @ Nisha in her examination-in-chief while proving the motive, had deposed that her husband Jagveer and accused Kapil were serving in C.R.P.F. and Kapil was his friend. When Kapil asked for the money, her husband gave Rs.3,50,000/- in front of her. Kapil promised to return the said amount within a month but on repeated reminders, he gave life threats to her husband.The said witness in her cross- examination deposed that Kapil took this debt in the year 2011 and she does not remember the date. She could not even recollect whether the said amount was drawn from the Bank or given from the home. She stated that the said amount was entered by her husband in a Diary and she had noted it in a copy. She was ready to produce the copy. The diary was with her husband. She even could not produce the copy to the Investigating Officer. From this evidence, it appears that no trust worthy evidence could be produced by this witness to prove the alleged incident. The said witness neither produced the diary nor the copy. Therefore, the motive of committing the murder also appears to be doubtful. 25. As per Forensic Science Laboratory Report, an empty cartridge EC-2 was recovered from the possession of the accused Kapil Bansal which was shown to have been fired from the recovered country made pistol marked as 1/2014. It is relevant to mention that P.W.-4 Dr. Ravi Kumar found one bullet from the body of the deceased Jagveer at the time of the post mortem which was handed over to the Police Officers. The said bullet was neither sent to the Forensic Science Laboratory nor any record has been produced from the Forensic Science Laboratory with regard to the bullet. Thus, the empty cartridge EC-2 recovered from the possession of accused Kapil could not be compared with the bullet recovered from the body of the deceased. Therefore, it cannot be concluded that the empty cartridge EC-2 was used in the murder of the deceased. Therefore, the prosecution cannot take advantage of the Forensic Science Laboratory Report No. 21-B/3. 26. The Doctor P.W.-4 who conducted the autopsy of the deceased Jagveer, in his cross-examination stated that the deceased died 30 hours before the incident. There are chances of difference of six hours on either side. In case, the death of the deceased is calculated before hand, then it must have been caused on 27.09.2012 at 5:15 AM to 4:15 PM. Neither there is any last seen 9 evidence nor any call details report has been produced to prove any communication between the deceased and the accused Kapil. This also makes the prosecution story doubtful. 27. As far as recovery of country made pistol of 315 bore, an empty cartridges and two live cartridges is concerned, the said recovery appears to be false as the said weapon could not be connected to the said crime. There is neither any public witness of preparation of the recovery memo nor any efforts for the same was made. P.W.-5 Head Constable Avtar Singh and P.W.-7 Constable Surendra Singh in their cross-examination had deposed that the said recovery was made from the public place but no public or independent witness was produced. The confessional statement of the accused Kapil before the P.W.-7 Constable Surendra Singh is also not admissible in evidence as it is a weak evidence. Therefore, the accused persons can avail the benefit of doubt. 28. No direct evidence is available to prove guilt of the accused persons. Chain of circumstantial evidence is not complete. 29. In Sharad Birdhichand Sharda vs. State of Maharashtra, (1984) 4 SCC 116, five golden principles i.e. the panchsheel of the proof of a case based on circumstantial evidence have been laid down as follows: "(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 30. We do not find any factual and legal error in the appreciation of evidence by the Trial Court while acquitting the accused-respondents. Moreover, the view taken by the Trial Court is a possible view. The Trial Court has given valid, convincing and 10 satisfactory reasons while passing the order of acquittal and not relied on the evidence of the prosecution witnesses. 31. For all the reasons aforestated, there appears to be no good ground to disturb the findings of acquittal of the accused- respondents under Sections 302/34, 201 and 404 IPC recorded by the Trial Court. 32. We, therefore, do not consider it to be a fit case for grant of leave to appeal. The application seeking leave to appeal is, accordingly, rejected. Consequently, the appeal is also dismissed. 33. Office is directed to communicate this order to the trial court and send back the lower court record to the court concerned. Order Date :- 22.9.2023 Monika