Indal and Others vs State of U.P.

V.D. Chaturvedi, J.—This criminal appeal is directed against the judgment and order dated 7.1.1982 passed in Sessions Trial No. 363M of 1981 whereby the learned Sessions Judge, Kanpur, convicted the Appellants u/s 302/34, I.P.C. for the double murder and sentenced them to imprisonment for life, acquitting the co-accused Shyam Baboo and Chhote Lal.

The factual matrixes are as under:

The complainant Ram Khelawan son of deceased Bhagirath resident of village Jamrehi, P.S. Bidhnu, district Kanpur submitted on 12.7.1981 at 7.05 a.m., a written report Ex. Ka-1 at the police station Bidhnu stating that in the preceding night his father Bhagirath, brother Ram Karan and his mother were lying on the roof of the house whereas he himself was sleeping in the courtyard ; that at about mid night accused Indal armed with a gun, the accused Sheo Shankar armed with country-made pistol, accused Shyam Baboo and Chhote Lal armed with lathis climbed on the roof from western side through ladders and committed the murders of his father Bhagirath and brother Ram Karan by shooting them; that hearing the sound of fires as also the cry of his mother, he and the witnesses Anoop Kumar, Lal Tiwari and many others, flashing their torches, reached there; that he and the witnesses flashed their torches at the roof and challenged the accused persons who in reply fired and warned that they (he and witnesses) would be killed if they reached close to them; that thereafter they (accused persons) alighted from the roof and firing from their weapons ran towards the western side ; that he and others chased them but since they were frightened, they could not apprehend any of the accused persons; that thereafter he and the witnesses reached at the roof and saw that his father and brother were lying dead on the cots. Regarding the motive, he stated in F.I.R. that a case relating to property was pending between the deceased Bhagirath and one Bhaggu who was murdered in the month of February, 1981 ; that Bhaggu''s wife, in her report, expressed suspicion upon him, his father Bhagirath and brother Ram Karan ; that the deceased persons and the complainant were found innocent in the investigation ; that thenceforth Bhaggu''s wife and wife''s brothers were on a look out of an opportunity for committing the murders of the deceased and the complainant.

P.W. 7 S.O. Ram Pal Singh, who conducted the investigation, reached the spot alongwith P.W. 3 S.I. Narendra Singh, prepared the necessary papers and sent the dead bodies of Bhagirath and Ram Karan for post mortem examination. He also collected blood stained and simple floor pieces, blood stained cot rope etc. from the spot and prepared their memos.

The post-mortem examination of the dead bodies of Bhagirath and Ram Karan was conducted on 13.7.1981 at 2.00 p.m. and 3.00 p.m. respectively by P.W. 4 Dr. S. N. Sinha who prepared the post mortem reports Ex. Ka-13 and Ex. Ka-12 respectively. The duration of their death was found one and half-a-day. The Doctor found the following single injury on the dead body of Bhagirath:

(1) Gunshot wound of entry 7 cm. x 4 cm. x muscle/bone/cavity. Blackening, charring and tattooing present all around the wound on the left hip joint, outer and back aspect. Direction below upwards obliquely from left to right. Fracture of the head and socket of femur bone of left hip.

He opined that the death of Bhagirath was caused due to shock and haemorrhage as a result of the above ante mortem injury.

The Doctor found the following six ante-mortem injuries on the corpse of Ram Karan :

(i) Gunshot wound of entry 5 cm. x 5 cm. x chest cavity over right side chest 10 cm. vertically below the nipple. Blackening, charring and tattooing present all around the wound. Direction front to back.

(ii) Gunshot wound of exit four in number, each measuring 1 cm. x 1 cm. x chest cavity in an area of 6 cm. x 4 cm. over the back in middle region, 1 cm. to the right of spinal column.

(iii) Gunshot wound of entry 3 cm. x 3 cm. x muscle/bone/cavity over the back of right thigh, 3 cm. below the hip. Blackening, charring and tattooing present all around the wound. Fracture of the head and socket of femur bone. Direction below upwards obliquely from right to left.

(iv) Gunshot wound of exit 1 cm. x 1 cm. x muscle over the front of right thigh 4 cm. below its crease.

(v) Gunshot wound of exit 1 cm. x 1 cm. x abdominal cavity, 2 cms. away umbilicus at 10 O'' clock position.

(vi) Gunshot wound of exit 1 cm. x 1 cm. x abdominal cavity, 7 cm. away umbilicus at 7 O'' clock position.

He opined that the death of Ram Karan was caused due to shock and haemorrhage as a result of ante mortem injuries.

After recording the statements of the witnesses and after the usual investigation, the Investigating Officer submitted the charge-sheet against all the four accused persons.

The case was committed to the Court of Sessions. The charge u/s 302/34, I.P.C. was framed against all of them to which they denied.

The prosecution produced following seven witnesses in support of its case. The gist of their testimony is given below

P.W. 1 Ram Khelawan (complainant) deposed that deceased Bhagirath was his father and deceased Ram Karan was his brother ; that accused Indal, Sheo Shankar, Shyam Babu and Chhote Lal were known to him from before the occurrence; that one Bhaggu was murdered about five months back from the date of occurrence ; that in the report lodged by Bhaggu''s wife, the suspicion was expressed against him, his father Bhagirath and brother Ram Karan ; that the police had excluded them in investigation; that accused Indal was the nephew (bhanja) of said Bhaggu and accused Sheo Shankar was related to accused Indal ; that Bhaggu''s wife and relatives, therefore, harboured inimical feelings against him and the deceased persons ; that about four months back he was sleeping in his courtyard and his father Bhagirath, brother Ram Karan and mother were sleeping on the roof ; that at about mid night he heard the sound of a fire and the cry of her mother whereupon he, flashing his torch, reached near the house of Sri Ram ; that witnesses Lal Tiwari and Anoop Kumar, with their torches, also reached there ; that on shouts being raised by him and others, the accused Indal and Sheo Shankar fired from the roof and threatened that they would be killed if they reached near them ; that the accused persons, making fires and hurling abuses, fled away through the side where the ladder was placed ; that he and others reached on the roof and found that his father and brother were dead ; that he wrote a report at about half past 6.00 a.m. and submitted it at police station. He proved the written report Ex. Ka-1 and explained that due to fear of miscreants, the report was not lodged in night. In cross-examination, he deposed that he woke up after hearing the sound of one fire ; that he, thereafter further heard the sound of two fires. The suggestion that he was not present at his house at the night of the occurrence, was denied by him.

P.W. 2 Smt. Kalawati (wife of the deceased Bhagirath) deposed that about four months back the occurrence took place at about midnight ; that she was sleeping on the roof alongwith his son Ram Karan and husband Bhagirath ; that Ram Khelawan was sleeping in the courtyard ; that hearing the sound of the fire, she woke up and saw that Sheo Shankar was having a pistol and Indal was having a gun and accused Chhote Lal and Shyam Babu were having lathis ; that Ram Karan was shot dead by Sheo Shankar and her husband was shot dead by Indal ; that she and the persons of the locality raised cry whereupon the accused persons threatened them; that the faces of the accused persons were seen in the light of the torches flashed by accused Shyam Babu and Chhote Lal and also by the persons standing on the ground. The witness denied the suggestion that she did not see the occurrence.

P.W. 3 S.I. Narendra Singh who assisted P.W.7 S.O. Ram Pal Singh (Investigating Officer) in investigation, stated about it and proved relevant papers.

P.W. 4 Dr. S. N. Sinha proved the post-mortem examination reports Ex. Ka-12 and Ka-13, the details of which have been given above.

P.W. 5 Head Constable Aparbal Singh proved the copy of the G.D. and the chik report, prepared by him.

P.W. 6 Lal Tiwari stated that the deceased Bhagirath and Ram Karan and also the accused Indal, Sheo Shankar, Shyam Babu and Chhote Lal were known to him from before the occurrence ; that about four months back he heard the sound of the fire at about mid night ; that he (witness) reached there alongwith his torch and lathi and saw the accused Indal armed with gun and Sheo Shankar armed with pistol standing at the roof of Bhagirath. They threatened if the witnesses reached close to them (accused persons), they (witnesses) would be killed ; that accused Chhote Lal and Shyam Babu were having lathis ; that he saw their faces in the light of the torches ; that the accused persons, making fires from their weapons, left for western side; that after reaching at the roof of Bhagirath, he saw that Bhagirath and Ram Karan were dead.

P.W. 7 Ram Pal Singh was the Investigating Officer. He, deposed about the same. There is nothing particular to comment about his testimony.

The Appellants, in their statements recorded u/s 313, Cr. P.C, denied the circumstances appearing against them and pleaded that they were falsely implicated due to enmity. They did not adduce any evidence in defence.

On scrutiny of the evidence, the trial court convicted and sentenced the Appellants Indal and Sheo Shankar acquitting the accused Shyam Babu and Chhote Lal of the charge framed against them.

We have heard Sri G. S. Chaturvedi, the learned senior counsel for the Appellants and Miss N. A. Moonis, learned A.G.A. for the State. We have perused the record carefully.

The learned Counsel for the Appellants contended that in the night of occurrence, P.W. 1 Ram Khelawan was not in his village but was in village Ganeshipur ; that after reaching back from Ganeshipur, he lodged the F.I.R. He added that the delay in lodging the report as also the absence of any injury on his person supported this contention.

The suggestion to P. W. 1 Ram Khelawan that he was in Ganeshipur at the night of occurrence, was denied by him. We cannot ignore that the Appellants were armed with deadly weapons. They had committed the murders of father and the brother of Ram Khelawan and upon flashing the torches they had threatened him (Ram Khelawan) and others to kill them if they reached near them (accused persons). P.W. 1 Ram Khelawan, in these circumstances, did not reach in front of or near the accused persons and did not sustain any injury. Thus, the absence of injury on the person of P.W. 1 Ram Khelawan does not create any doubt regarding his presence at the spot.

Regarding delay in lodging the F.I.R., it is material that the occurrence took place around midnight. The father and the brother of the complainant were shot dead when they were lying on their roof. The complainant was also within the target of the accused-Appellants. They had threatened the complainant and others to kill if they reached near them. In such circumstances, the explanation given by P.W. 1 Ram Khelawan, that due to fear he did not lodge the report at night, is very reasonable and justified. It is noteworthy that he lodged the report next morning at 7.05 a.m.

We therefore, do not agree with the argument of learned Counsel for the Appellants that P.W. 1 Ram Khelawan was not present at his house at the time of occurrence.

He then argued that P.W. 1 Ram Khelawan and P.W. 2 Smt. Kalawati both were the family members of the deceased persons and thus were partisan witnesses. Therefore, their evidence was not trustworthy according to his submission.

It is true that P.W. 1 Ram Khelawan and P.W. 2 Smt. Kalawati were related to the deceased persons but their evidence cannot be discarded merely because they were related to the deceased persons. We cannot turn our eyes to the general tendency of the witnesses, that they avoid giving evidence especially in the murder case, whereas it is a double murder case. Accused-Appellant Sheo Shankar and acquitted accused Shyam Baboo both belonged to village Jamrehi, where the occurrence took place. The independent witnesses of the same village, if for lack of courage, avoided giving evidence in double murder case it would not adversely affect the evidence of the inmates of the house whose presence, at the place and time of the occurrence, was natural. The evidence of P.W. 1 and P.W. 2, therefore, cannot be thrown out on the alleged ground. Besides, P.W. 6 Lal Tiwari, also gave the ocular account of occurrence who was an independent witness.

The learned Counsel for the Appellants also argued that the deceased Bhagirath was a history sheeter. He (Bhagirath), therefore, had many enemies; that the murders of the deceased could be committed by any of his such enemies; that the Appellants were falsely implicated just because a civil litigation between Bhaggu (Appellants'' relative) and the deceased was pending.

P.W. 5 Head Constable Aparbal Singh deposed that the history sheet of deceased Bhagirath was opened on 28.2.1950 and was closed on 3.8.1969. Thus, the history sheet was closed down more than 22 years back from the date of occurrence. The said history-sheet, therefore, lost its importance long back.

The motive of the Appellants in committing the murder of two persons was to take the revenge of the murder of Bhaggu, which was suspected to have been committed by the two deceased and the complainant. This motive was much stronger than the above motive suggested by the counsel for the Appellants for false implication. Hence, on this point also, we do not agree with the argument of the learned Counsel for the Appellants.

The learned senior counsel also argued that P.W. 2 Smt. Kalawati did not sustain any injury and it made her presence doubtful.

Two deceased persons and the complainant were the only persons who were suspected in the murder of Bhaggu. Smt. Kalawati was never suspected for the murder of Bhaggu. She was, therefore, not the target of accused-Appellants for taking revenge. In these circumstances, the absence of injury on her person does not cast any doubt about her presence at the spot.

On the basis of what has been discussed above, we find no infirmity in the findings arrived at by the learned Sessions Judge, Kanpur (Nagar) in convicting the Appellants u/s 302/34, I.P.C. for the double murder of Bhagirath and Ram Karan and in sentencing them to life imprisonment. We therefore, dismiss the appeal, uphold the decision of the trial court.

The Appellants Indal and Sheo Shankar are on bail. The C.M.M., Kanpur Nagar shall cause them to be arrested and lodged in jail to serve out the punishment of imprisonment for life and would send his compliance report within two months from the date of the receipt of the copy of this order.

Certify the judgment to the court below within 15 days.