Brahm Swaroop & Anr vs State Of U.P

Virendra Singh was standing in front of the Jeep. Gyanendra Singh kept his gun in the Jeep near Dharam Pal Singh and went towards the grove to urinate. At about 3.00 P.M., Nem Chand Gangwar (A.1) and his sons Balwant (A.2) and Chandra Pal (A.3), Jogendra (A.4), Brahm Swaroop (A.5) and Jagdish Baggar (A.6) armed with deadly weapons came there and started firing, after surrounding these persons with their respective weapons. Nem Chand Gangwar (A.1) assaulted Natthu Singh (D.1) with his Kanta. He died on the spot. Rajendra 2 Singh (D.2) and Dharampal Singh (D.4) received serious injuries by fire arm and became unconscious. Virendra Singh (D.3) fell near the Jeep after receiving fire arm injuries. The informant, Atar Singh (PW.1) also received injuries in the incident. Brahm Swaroop (A.5) took away the rifle of Rajendra Singh (D.2) and Jagdish Baggar (A.6) took away the licensed gun of Gyanendra. It was also alleged that the chap Serial No. 5809 of the gun of the accused had fallen on the spot.

Rajendra Singh (PW.2) and Satyapal Singh also witnessed the incident.

(B) After investigation of the case, the prosecution submitted the chargesheet under Sections 396, 148, 302 read with 149, 307/149 of the Indian Penal Code, 1860 (hereinafter called the IPC). Brahm Swaroop (A.5) and Balwant (A.2) were further charged under Section 25 of the Arms Act (hereinafter referred to as `Arms Act'). During the trial, the prosecution examined 12 witnesses to prove its case. After considering the whole case and appreciating the evidence, on the conclusion of the trial, the Sessions court vide judgment and order dated 5th August, 2003, in Sessions Trial No. 855 of 2001 acquitted Brahm Swaroop (A.5) and Jagdish Baggar (A.6) of all the charges 3 under Sections 148, 302, 149, 307, 396, 424 I.P.C. and Section 25 of the Arms Act. Chandra Pal (A.3) and Balwant (A.2) were convicted under Section 302 read with 34 I.P.C. and were awarded death sentence and a fine of Rs.5,000/- and, in case of failure to deposit the fine, six months imprisonment in addition. Nem Chand Gangwar (A.1) and Jogendra (A.4) were convicted under Sections 302/34 I.P.C.

(C) Being aggrieved by the aforesaid judgment and order of the Sessions Court, three appeals bearing Criminal Appeal No. 4648 of 2004, Criminal Appeal No. 3749 of 2003 and Government Appeal No. 6180 of 2003 were filed before the High Court of Judicature at Allahabad. The High Court vide its judgment and order dated 4th May, 2005, disposed of the aforesaid three appeals by the impugned common judgment and order dismissing the appeals filed by the 4 convicts, however, with the modification that the sentence of death imposed by the trial court on Chandra Pal (A.3) and Balwant (A.2) was altered to life imprisonment. The Government appeal against acquittal of Braham Swaroop (A.5) and Jagdish Baggar (A.6) stood allowed, and they were convicted under Section 302 read with 34 I.P.C. and sentenced to undergo imprisonment for life with a fine of Rs.10,000/- and, in default of payment of fine, rigorous imprisonment for a further period of one year. Both the said accused were further convicted under Sections 307/34 I.P.C. and sentenced to undergo 10 years rigorous imprisonment with a fine of Rs.5,000/- each and, in default of payment of fine, for a further period of six months R.I. The High Court directed that all the punishments would run concurrently.

sheeter and a large number of criminal cases were pending against him. Virendra Singh (D.3) and Dharampal Singh (D.4) were involved in criminal cases and facing trial in the said cases. Therefore, they have large number of enemies and the whole case of the prosecution becomes totally improbable. Had the incident occurred as alleged by the prosecution, the Jeep should have got some bullet marks as Rajendra Singh (D.2) and Virendra Singh (D.3) were sitting in the Jeep. Neither were any bullet marks on the Jeep nor had any pellets been recovered from the Jeep or the nearby area. An FIR had initially been registered under Section 396 I.P.C. and, in view of the fact, that one of the victims died on the spot and another died enroute to the hospital, had the prosecution given the correct version of events, the FIR ought to have been registered under Sections 302 and 307 I.P.C.

along with other Sections. The inquest has been manipulated and there are five blanks therein which make the whole prosecution case doubtful. The use of weapons was not established. The Magistrate 6 received the Special Report after five days. Atar Singh (PW.1) could not tell names of the father of Brahm Swaroop (A.5) as well as of Jagdish Baggar (A.6) though the same had been mentioned in the FIR lodged by him. The prosecution did not examine any independent witness. The reversal of the acquittal of Brahm Swaroop (A.5) and Jagdish Baggar (A.6) by the High Court is totally unwarranted and unjustified. Thus, the appeals deserve to be allowed.

The omission of the names of fathers of Brahm Swaroop (A.5) and Jagdish Baggar (A.6) cannot be fatal to the prosecution case and it is not necessary that the informant must be aware of all the contents of the FIR itself. The prosecution examined the injured witness, who would not spare the real culprits and involve someone falsely. The deposition of the injured witness has to be given due weightage. The manner in which the inquest report is made, has to be ignored as law 7 does not require to it to furnish all the information and it is not necessary to fill up the names of all the accused. Even if the Special Report reached the Judicial Magistrate at a belated stage, it would not be fatal to the prosecution case. The prosecution case is duly supported by the medical evidence and though the eye witnesses were closely related to the deceased persons, their depositions are required to be examined with care and caution, but cannot be ignored. Minor discrepancies in the evidence, cannot adversely affect the prosecution case. Thus, the appeals are liable to be dismissed.

6. Undoubtedly, there are five blanks in the inquest report. The crime number and names of the accused have not been filled up. The column for filling up the penal provisions under which offences have been committed is blank. The time of incident and time of dispatch of the special report have not been mentioned. Therefore, Shri Tulsi has 8 submitted that the FIR is ante-timed and there is manipulation in the case of the prosecution.

19. It has further been submitted by Shri Tulsi that the place of occurrence is not free from doubt as it has been stated by the investigating officer, Raj Guru, Inspector, P.S. Bahedi (PW.10) that on receiving the phone call at 11.00 A.M. purported to have been made from the residence of Natthu Singh @ Raghunath Singh (D.1) 1 that dacoits had attacked them he made an entry in the General Diary, and proceeded to that place and recorded the statement of some persons there. The vehicle in which Rajendra Singh (D.2) and Dharampal Singh (D.4) were sitting did not have any blood marks and no blood stains were found near the jeep and no pellets had been recovered from the said place. On the contrary, Shri Shail Kumar Dwivedi, Addl. Advocate General has submitted that cement containing blood stains from the counter had been collected and proved. So far as the alleged incident at 11.00 A.M. is concerned, the investigating officer, Raj Guru, Inspector, P.S. Bahedi (PW.10) had stated that "this was the conspiracy to misguide the police and to drive it out of the Kasba."

The FIR contains all the essential features of the prosecution's case including names of eye witnesses, time and place of incident, names of the victim, motive, name of the accused persons, weapons in their hands and manner of assault. Thus, all these things lend a seal of assurance not only to the presence of eye witnesses at the place of the incident, but also to the participation of the appellants in the crime.

Appeal against Acquittal :

30. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference.

37. We have, ourselves appreciated the evidence and reached conclusions similar to the High Court:

38. In view of the above, we do not find any cogent reasons to interfere with the impugned judgment and order of the High Court.

The appeals lack merit and, are accordingly, dismissed.