Bhola Singh and Ors. vs State of U.P.

V. P. Mathur, J.—The appellants Bhola Singh, Mullu Singh, Raghuraj and Ganga Singh have come up to this Court feeling aggrieved by the judgment and order passed on 2641978 by Sri J.S. Mishra, the then II Additional District and Sessions Judge, Fatehpur. The learned Judge convicted the appellants on a charge under Section 302 read with Section 34, I.P.C. and sentenced each one of them to imprisonment for life.

It may be mentioned here that during the pendency of this appeal Ganga Singh appellant died and his appeal has abated.

The deceased in this case was one Gaya Prasad. The occurrence took place on 19.71974 at about 12.30 p.m. at a distance of 8 miles from the scene of occurrence ia village Sukhai Ka Purwa, the first information report as lodged at 5.00 p.m. by Jagat Pal Singh, brother of the deceased, at police station Hathgaon.

The prosecution story of that Gaya Prasad, brother of Jagat Pal Singh, was original resident of Chak Babullapur Bhabhuti which lies within the police station Khaga, district Fatehpur. To this village also belong appellants Mullu Singh, Raghuraj and Bhola Singh. Ganga Singh, who was brotherinlaw of accused Bhola Singh, was a resident of village Rampur, police station Khaga, in the district of Fatehpur. Bhola Singh and Mullu Singh, are related as uncle and nephew, while Raghuraj is their servant. Deceased Gaya Prasad was a teacher in Primary School, I jura Buzurg, which lies within the area of police station Hathgaon. He used to live in his Sasural in village Hisamuddinpur, which is also known as Rasoolpur and he was daily travelling from his School to his Sasural house where he lived. One Jagan Nath, real brother of accused Bhola Singh had been murdered a few years prior to this occurrence and a murder case started against Jagat Pal Singh, the first informant of this case and some other persons. Gaya Prasad, who died in this case was doing pairvi in that case on behalf of his brother. The case ended in conviction from the Sessions Court but an appeal was preferred in the High Court which was allowed and all the accused of that case were acquitted. The High Court judgment is dated 8/1970. This enmity was kept in the heart ay the present accusedappellants and Bhola Singh and his family members were out to take revenge, which resulted in the present occurrence. Gaya Prasad was returning from his School at ljura Buzuig. He was going to his Sasural in village Hisamuddinpur alias Rasoolpur. He had a gun and a belt of cartridges on his shoulder. He was followed by Rampal, another teacher in the same School. The first informant Jagat Pal Singh had also gone for a bath in the Ganga at ljura Ghat and from there he had gone to the School of the deceased and he was also following the deceased on another bicycle at some distance. When the deceased reached towards north of Sukhai Ka Purwa on the canal bridge the four accusedappellants, namely Bhola Singh, Mullu Singh, Raghuraj and Ganga Singh, who were concealing their presence under the bridge suddenly came out. Mullu Singh exhorted and all the four accused who were armed with lathis started assault upon Gaya Prasad. Gaya Prasad fell down from his bicycle and even in that condition he was constantly assaulted. Rampal (PW2) and Sukru (PW3) cried out. A number of other persons also collected and the accused persons ran after committing the murder of Gaya Prasad and after taking away his licensed gun and cartridges. The people who had collected on the spot, however, gave a chase to the culprits and in the nearby fields caught hold of three persons, namely Mullu Singh, Raghuraj and Ganga Singh after inflicting injuries upon them. The gun and the belt of cartridges of the deceased were found in possession of Raghuraj from whom they were taken. The accusedappellant Bhola Singh was, however, successful in escaping and could not be arrested. A written report Ex. Ka. 1 was then prepared by Jagat Pal Singh and along with it in the company of three arrested appellants, namely Mullu Singh, Raghuraj and Ganga Singh, he came to police station Hathgaon and lodged the first information report at 5.00 p.m.

The three injured arrested culprits were also lodged in police lock up. A case was registered under Sections 302, 394 and 411 I.P.C. Bloodstained clothes of the injured were taken into custody along with their lathis. It appears that accused Bhola Singh afterwards surrenderd before the Chief Judicial Magistrate, Fatehpur, on 281974.

The investigation was made by Sri H. P. Sharma, the then Station Officer, Hathgaon and he has been examined as PW6 in this case. He came to the spot, prepared inquest memo Ex. Ka. 10 and other documents and sealed the body and sent it to the mortuary for postmortem examination. He then recorded the statements of the witnesses and took blood stained earth from the spot in his custody. The cycle of the deceased was also found lying on the spot. It is Ex. 18 and was taken into custody. On 481974 he received a telegram Ex. Ka. 27, which is now admitted to have been sent by Bhola Singh. He also received an application Ex. Ka. 28, which again admittedly was sent by Bhola Singh to Kotwali, police station Hathgaon, giving his version of the occurrence. After completing the investigation he submitted the chargesheet.

The postmortem examination on the dead body of Gaya Prasd was made on 2071974 at 5.00 p.m. by Dr. B. K. Agarwal District Hospital, Fatehpur. The face of the deceased was distorted due to injuries and brain matter was peeping out of the wound on the face. He had following 13 visible injuries, which were all antemortem, on his body :

Lacerated wound on the chin 14" X � " X bone deep.

Lacerated wound on the lower lip 1" X � " on right side angle.

Lacerated wound 4" X � " X bone deep on upper side 4" above right angle of mouth.

Lacerated wound 6" x 2 � " X bone deep and brain deep extending from tip of nose to top of head 3" from pinna of left ear.

Lacerated wound 1� " X � " on left eye brow near outer border.

Lacerated wound 1� " X 1/4" on the forehead 2" above left eye brow.

Lacerated wound � " X 1/4" X orbit deep on right eye brow.

Lacerated wound 1 � " x 1/4'''' x muscle deep 1/4" below the right eye brow on upper eye lid.

Abrasion 4" x 1" on the left side of front of chest extending from 2J" from mid line of body to nipple left.

Abrasion 4" x 2" on the left side of front of chest extending from 2i" from mid line of body to left axilla.

Abrasion 2" x 1" on the right thigh laterally 6" above right knee.

Abrasion 6" x 1� " on right forearm and dorsum of right hand 3" above wrist and 3" below wrist joint (right).

Abrasion 3" x 1" on the right side front of chest extending from middle of right clavicle to axilla.

There was a communited fracture of both Mandible. The right maxilla and frontal bone on the left side were also fractured. There was a lacerated wound on the top of scalp extending from mid line of the body to 3" above pinna of left ear under injury No. 4 and communited fracture of frontal and left parietal bone was also there. It was 6" x i" brain deep and on the right side of the fracture there was a blood clot 3" x 2". Membranes on the left side of skull were lacerated. Brain was lacerated on the frontal lobes and also on left side. Lateral lobe was lacerated and base of the skull had been fractured in the middle cranial fossa as well as anterior cranial fossa. 2nd and 3rd ribs in the mid clavicular line were also fractured. Left lung was lacerated on the upper lobe J" x 4". Both mandibles were fractured and the death was due to coma oa account of the injuries inflicted by some blunt weapon like lathi and specially the head injury.

The defence version was an admission of the fact that the Bhola Singh was uncle of Mullu Singh and brotherinlaw of Ganga Singh and Raghuraj was their servant. It is admitted that 8 or 10 years before this murder, Bhola Singh''s brother Jagannath had been killed and in that case Jagat Pal Singh, the present informant was an accused alongwith others. It is also admitted that Gay a Prasad was a school teacher in Ijura Buzurg. Further, it is also an admitted fact that 1971974, which is the date of occurrence, was an Amavashya day when people go for a bath in Ganga. It is, however, contended that Jagat Pal Singh had not gone to Ganga Ijura Ghat because the people of village Chak Babullapur Bhabhuti usually go for a dip in the Ganga at Naubasta Ghat. The sending of telegram and the application Exts. Ka. 27 and Ka. 28 is admitted by accused Bhola Singh. It is contended that an occurrence took place on the date, time and place as alleged by the prosecution but while he (Bhola Singh) alongwith other coaccused was returning after taking a dip in Ganga at Mala Dei Ghat, he was encircled by the deceased and 7 and 8 other persons, who all assaulted him and his associates and caused them injuries. Only in selfdefence, the accusedarpellants also used lathis as a result of which the deceased sustained injuries and died.

On behalf of the defence one witness Dr. B. R. Bajpai has been examined as L WI and he proved the injuries of Bhola Singh, who was examined in District Hospital, Fatehpur, on21/1974 at 11.30 a.m. His injury report is Ext. Ka. 1 on record. The following injuries were found en the person of Bhoia Singh, which could relate back to the time of this occurrence :

Lacerated wound 1� X 1/4" x scalp deep on the right side head 3"

above the right ear.

Lacerated wound � " X 1/4" scalp deep on the right side head I" below injury No. 1.

3 Contused s veiling 2" x � " on the top of head.

Contused swelling 1� " X � " on the tip of left of left thumb.

Contused swelling 1� " x 1" on the outer aspect and lower third of left forearm.

Contused swelling 2� " X 1" on the back and middle third of right forearm.

Contused swelling 2" x 1 � " on the dorsum of right hand.

Contused swelling 2" X 2" on the outer aspect and middle third of right leg.

Contused swelling 2� " X 2" on the outer aspect of right ankle joint.

Contused swelling 3� " x 1" on the outer aspect and middle third of left leg.

It may also be mentioned that it is admitted on both the sides that three accusedappellants of this case also received injuries in this occurrence and they were examined in the District Jail Hospital at Fatehpur. Their injuries have not been proved but the factum thereof is established and there is also mention of the same in the General Diary of their arrest. According to the prosecution, these injuries were sustained by them at the hands of the persons who had collected on the spot, gave them a chase and caught them after giving a beating. According to the accusedappellants, they received these injuries because they were assaulted by two deceased Gaya Prasad and his 7 or 8 associates. No witness to support the defence version of the story has been examined. On the prosecution side there are, however, three witnesses, namely Jagat Pal Singh (PW1) who is brother of the deceased and who claims to have been present on the spot and had seen the occurrence ; Rampal (PW2), a Teacher in the same School Ijura Buzurg in which Gaya Prasad was also a Teacher and according to whom he was also accompanying Gaya Prasad at some distance and saw the occurrence ; and Sukru (PW 3) who also claims to be an eyewitness and saw the occurrence.

As we have mentioned earlier, the original case put forth by the appellants was that they had gone to Karmepur to the house of Ram Narain where a Katha was being held and on the date in question, namely \\J 71974, it was an Amavashya day, all of them went to Mala Dei Ghat for a dip in the Ganga. While they were returning from there at canal culvert near Sukhai Purwa they were encircled by the deceased Gaya Prasad and his 7 or 8 associates and were assaulted. This story has been given a go by in the written report sent by Bhola Singh to the Kotwal (Ext. Ka 28). However, the story of thus taken is that all these persons had gone to Ijura Ghat to take a bath in Ganga. The story about going to Karmepur to the house of Ram Narain where the Katha was being held and taking bath at Mala Dei Ghat is all abandoned. It is on the contrary contended that they all were returning from Ijura Buzurg when this occurrence took place at the canal culvert near Sukhai Purwa. It is contended that Gaya Prasad, Baldeo Singh, Tilakva, Chatra Dhari, Pandey son of Ramnath, Chandrapal, all residents of village Chak babullapur Bhabhuti and Babu Singh, resident of Rasoolpur and his elder son, armsd with lathis waylaid and attacked Bhola Singh and his associates and the occurrence took place. It is further contended that Gaya Prasad at that time was armed with a gun and he was exhorting his associates while he was standing behind the remaining assailants. When he tried to fire with his gun after loading it, Bhola Singh allegedly gave him a blow as a result of which the gun fell down. There was an exchange of lathis blows on both sides and injuries were sustained by Gaya Prasad as well as the fourThe allegations are appellants, Bhola Singh managed his escape. Others, however, failed to manage it and it is not known as to what happened to them. It is further mentioned in Ext. Ka. 28 that 34 assailants were not known to Bhola Singh from before. This will make the total number 11 or 12. It is further said that amongst the witnesses were Karmepur''s Kallu Kurmi and Ram Narain Singraur. This petition Ext. Ka. 28 is admitted to have been seen by Bhola Singh and its contents are also admitted now. This is quite in contravention of the defence version now taken. According to the defence story put forth in this case, the accused persons had gone to village Karmepur to attend the Katha at the house Ram Narain. Ext. Ka. 28 make this story false. The allegation that these persons on account of Amavashya went to Mela Dei Ghat to take a dip in the Ganga also falls to the ground as it is admitted that they had gone to Ijura Buzurg Ghat. Ram Narain''s presence as a witness of the occurrence vide Ext. Ka. 28 also completely discounts the story of Katha at his house and going of the appellants there.

So far as the factum of the occurrence on 1971974 at 12.30 p.m. near village Sukhai Purwa in the proximity of canal culvert within the area of police "station Hathgaon is concerned, it stands established by the definite and direct prosecution evidence and by the evidence on the defence side. From the post mortem examination report it is established beyond doubt that Gaya Prasad received a large number of injuries by blunt weapons which could be lathis. His bones were fractured and even his brain was lacerated. He died as a result of these injuries. The fact that Gaya Prasad was attacked and received injuries at the hands of the appellants is now admitted to the appellants also. Place of occurrence is admitted between the parties, According to the prosecution case, the accusedappellants were concealing their presence under the culvert and they were armed with lathis and had come prepared to commit this crime and when Gaya Prasad unaware of the situation reached the culvert on way to Rasoolpur with his gun and a belt of cartridges on his shoulder, he was suddenly encircled and assaulted. He had no opportunity to use his gun and was murdered on the spot. The defence version is that Gaya Prasad armed with a gun along with 7 or 8 persons (who were armed with latins, determined with attack the defence side), was concealing under the culvert and when the accusedappellants came on the culvert they were immediately encircled and assaulted. They also wielded lathis in selfdefence and caused injuries to Gaya Prasad. They also received injuries at the hands of their assailants. One fact remains to be considered that if it is a fact that Gaya Prasad along with 7 or 8 persons, determined to attack, had reached the place of occurrence and concealed under the culvert, it does not stand to reason why he did not use the gun when he had carried it with the alleged intention of committing murder on the defence side. Also it does not stand to reason how Gaya Prasad could know that accusedappellants, who according to their own statement were not visiting Ganga Ghat Ijura generally but used to go to Naubasta Ghat, would be visiting Ijura Ghat on that day and would return from the culvert bridge. There is nothing on record to show how this knowledge came to Gaya Prasad, who then waylaid them. It is highly improbable that when normally these persons were always going to Naubasta Ghat, on that particular day they would ha/e gone to Ijura Ghat and this information could have leaked out to Gaya Prasad. Nobody has come forward to say that the appellants had disclosed this information to any body in the village and hence it was communicated to Gaya Prasad, who thus became ready to commit the assault. The very fact that Gaya Prasad could not use his gun although he was also possessed of a belt of cartridges, also indicates that the assault was not mounted by Gaya Prasad and his associates. On the contrary, it appears that he was taken by surprise. He never expected that on his normal return to village Rasoolpur from his School, which was his daily routine, he would be way Lald and surprised by the accusedappellants and attacked, otherwise there was no reason why when he was armed with a gun, he should not have used it. Jagat Pal Singh had not received any injury and the defence contention is that he was not present, but his statement on oath has to be taken to be correct because he could not be shaken in his testimony. There was a motive for this incident and the accusedappellants had a reason to take the law into their own hands. Bhola Singh''s brother had been murdered some years back. Jagat Pal Singh was also an accused in that case along with some othere. He was convicted by the Sessions Court, but on appeal he was acquitted by the High Court on 871970. It is not disputed that Gaya Prasad was doing pairvi in that case for his brother Jagat Pal Singh and others and naturally the accused appellants would be having enmity with both the brothers on that account. It appears, therefore, that on the fateful day knowing fully that as usual Gaya Prasad would be returning from his School and going to his Sasural house in village Hisamuddinpur alias Rasoolpur and will pass through the canal culvert, these accusedappellants took it into their head to mount an assault and kill him. Therefore, armed with lathis they reached the spot and hid themselves under the culvert and when Gaya Prasad completely ignorant of what was happen passed through over the culvert, he was assaulted and murdered. This is a different matter that Jagat Pal Singh and Rampal who were following the deceased, the former after taking bath at Ijura Ghat where had gone for that purpose, came for the rescue of the deceased and chased the culprits when they ran away after accomplishing their object. Three of the appellants were arrested on the spot and Bhola Singh could manage to run away. The injuries which Bhola Singh sustained during this incident are fully established and the prosecution version finds corroboration from the same and it is also established that Bhola Singh was injured when village people, namely Jagat Pal Singh, Rampal and others gave a chase to the culprits and struck them lathis blows and three of them were arrested on the spot. It was fortunate for Bhola Singh to have escaped even after so many injuries. It is admitted case of the parties that remaining three appellants were taken into custody. The prosecution evidence consisting that of the Investigating Officer and three eye witnesses clearly indicates that remaining three appellants were cought on the spot, tied with a rope and brought to the Thana where they were lodged in the lock up. This fact is mentioned in the General Diary also. The testimony of Rampal and Sukru is completely reliable has to be accepted. They both corroborate the entire prosecution case.

The fact that the defence came with a story which is in a complete contradiction from the report Ext. Ka. 28 has also to be taken into account. Rampal and Sukru are natural witnesses of the occurrence and Jagat Pal Singh''s testimony stands unshaken. Under these circumstances, we are in agreement with the learned Additional Sessions Judge that the case of the prosecution was satisfactorily made out beyond any doubt and it were Bhola Singh, Mullu Singh, Raghuraj and Ganga Singh who hatched a plan to commit murder of Gaya Prasad out of old enmity and with that common intention and in furtherance thereof, they did commit murder of Gaya Prasad on 1971974 at 12.30 p.m near village Sukhai Ka Purwa within police station Hathgaon. They mounted an assault on Gaya Prasad when he was returning from his School and going to his Sasural house. They were chased and beaten by the people, who had collected on the spot, in a bid to arrest them and in that process they were injured. Bhola Singh managed his escape. Others were arrested on the spot and brought to the Thana and lodged in the lock up. A clear case under Section 302 read with Section 34, I.P.C. was thus made out against the present appellants. The appeal has, therefore, to fail. We have already mentioned above that the appellant Ganga Singh has died and so far as his appeal is concerned, it stands abated.

In the result, the appeal fails and is hereby dismissed. The conviction of the appellants Bhola Singh, Mullu Singh and Raghuraj under Section 302/34, I.P.C. as returned by the learned Additional Sessions Judge vide order dated 2641978 is upheld and confirmed and the sentence of life imprisonment awarded to each of them is also upheld. They shall surrender forthwith and be taken into custody to serve out their sentences. Their bail bonds shall be cancelled and sureties discharged.