Kesheo Singh vs State of U.P.

Arvind Kumar Tripathi, J.—The present criminal appeal has been preferred against the judgment and order of conviction and sentence dated 3.5.1986 passed by Additional Session Judge, Kanpur Dehat, in S.T. No. 355 of 1983 convicting and sentencing the appellant to undergo imprisonment for life under section 302 IPC and further to undergo imprisonment for five years under section 307 IPC with direction that both the sentences should run concurrently.

Mr. Devendra Rama, Advocate, appeared on behalf of appellant and Mr. Chandrajeet Singh Yadav, learned AGA appeared on behalf of State.

We have heard learned counsel for the parties on 28.10.2015, 29.10.2015 and 30.10.2015. The judgment was reserved on 30.10.2015.

The brief facts of the prosecution case is that accused Kesheo Singh is resident of village Raipur, P.S. Rasoolabad, District Kanpur Dehat. The first information report was written by Chhotey Singh son of complainant Ram Singh, R/o village Raipur, P.S. Rasoolabad. According to FIR version informant Ram Singh is father-in-law of deceased Smt. Maya Devi. Ram Singh, informant has enmity with accused appellant Kesheo Singh son of Atibal Singh of his village due to forceful possession over the grove of informant. Smt. Maya Devi, widow of Lakhan Singh elder brother of Kesheo Singh, was re-married with consent of her brother and other family members to Yadunath Singh son of complainant, Ram Singh and it was court marriage. Due to this Kesheo Singh has enmity and he was in search of opportunity to kill informant Ram Singh and Yadunath Singh. On the date of incident i.e. 16.8.1983 at about 6.00 A.M. informant and his son Yadunath Singh were sitting near pond and his daughter-in-law Maya Devi and daughter Phool Kumari were going to attend the call of nature. At the same time Kesheo Singh having countrymade pistol in both hands was coming to kill informant and his son. He found in front of him his daughter-in-law Maya Devi and seeing her Kesheo Singh fired with countrymade pistol at his daughter-in-law who fell down and died. Informant, his son and one Sobaran Singh, son of Kalka Singh, were standing nearby place, they ran to caught him. As soon as he reached, Kesheo Singh by the second countrymade pistol fired at them, and informant, who was leading just bent downwards to save him, hence he received fire-arm injury on his back. Thereafter, Kesheo Singh extending threat to them went towards village. The incident was witnessed by informant, his son Yadunath Singh, daughter Phool Kumari, Sobaran Singh and others. The dead body was lying near field of Sobaran Singh. The complainant requested to initiate legal proceeding. The report was written by his son Chhotey Singh and on the basis of written report first information report was lodged and registered on the same day i.e. on 16.8.1983 at 8.00 A.M. under section 304 , 307 IPC at case crime No. 121/83. The distance of police station from the place of incident was about 4 km. north. Chik report was prepared by Head Constable Qasim Raza, P.W. 5. The written report was proved as Ext. Ka-1 and chik report as Ext. Ka-4. G.D. Entry is Ext. Ka-5.

After first information report was lodged investigation was started by Station Officer, Ram Prakash Singh. According to him first information report was lodged and registered in his presence at police station and he himself started investigation, who was examined as P.W. 8. He reached at the place of incident at about 9.00 A.M. Panchayatnama was prepared in between 9.30 to 11.30 A.M. Ext. Ka-7. The dead body was sealed and handed over at about 12.30 to constable Kishan Singh and Amar Singh for post-mortem examination. Baniyan of injured Ram Singh was recovered with blood stain having holes on the same date i.e. 16.8.1983 Ext. Ka-15. Plain and blood stained earth was recovered from the place of incident. One Lota, two cartridges of 12 bore and one cartridges of 315 bore were also recovered. One Dhoti, blouse, chappal of the deceased were also recovered and sealed. The recovery memo was prepared, which was proved as Ext. Ka-14.

The injured Ram Singh was sent for medical check-up with Majrubichitthi on 16.8.1983 by Station Officer, R.P. Singh. He was examined at Primary Health Centre, Jhinjhak Kanpur, on 16.8.1983 at about 6.35 P.M. by Dr. P.S. Chauhan. The doctor noted following injury:--

"there were pe let wounds of varying sizes .2" x .2" up to .3" x .2" with swelling around them and numbering 13, in an area of 5" x 7" on the right side of back and left side of back on right scapular region 2" below, out of them three wounds were on the right side of back, near midline of back. One wound on right side is abrasion of size .4" x .4". There was no scorching, no blackening, no tattooing and, no pus formation, was present in the abrasion. X-ray of chest was advised. Al the injuries were kept under observation and were caused by fire-arm and were about half day back."

The dead body of Smt. Maya Devi was received by doctor on 17.8.1983, which was brought by constable Amar Singh and Kishan Singh both P.S. Rasoolabad, District Kanpur Dehat. The post-mortem was done at 3.15 P.M. on 17.8.1983 and following anti mortem injury was noted:--

"Gun shot wound of entry 1 cm x 1 cm. x cavity deep on the middle part of the sternum bone. Margins inverted 7 cm below the manubrium sterni. Blackening, tattooing 16 cm x 10 cm around the entry are seen. Mata lic bu let present on the muscular region of right side back 17 cm below the inferior angle of scapula bone on lateral aspect. Direction of the bu let is forward, downward and backward from medial to the laterally.

On internal examination it was found that the bu let passed in between 8th and 9th ribs mascular region laterally situated middle part of sternum bone. The ribs were ruptured. Pleura was found ruptured. Right lung upper lobe lacerated through and through. One litre clotted blood on the right side chest cavity was found. Left lung was empty. Weight was 150 gm. Pericardium was ruptured. Heart was lacerated through and through and was empty. Weight was 150 grams. Peritoneum was ruptured. Abdomen contained 4 oz. of semi digested fluid. Smal intestines were half full with gases. Large intestines were also full with gases. Gall Bladder was half full."

According to opinion of the doctor cause of death was as a result of shock and haemorrhage as a result of fire-arm injury. The postmortem was exhibited as Ext. Ka-3 duration of death was one and half day.

The statement of witnesses were recorded under section 161 Cr.P.C. by the I.O. and after concluding the investigation chargesheet No. 75 of 83 dated 9.10.1983 was submitted against the accused appellant Ram Singh under section 304 , 307 IPC. The case was committed to the court of sessions, thereafter, charge was framed on 7.2.1984 under section 302 read with section 301 and 307 IPC. The accused appellant denied the charges and pleaded not guilty.

The prosecution in support of the case examined 8 witnesses out of which two witnesses P.W. 1 and 3 were examined as eye witness of the incident. Informant, Ram Singh was examined as P.W. 1, Dr. P.S. Chauhan, who examined injured Ram Singh was produced as P.W. 2. Phool Kumari claiming to be eye witness was examined as P.W. 3, Dr. Sarveshwar Tiwari, who conducted post mortem was examined as P.W. 4. Qasim Raja, constable who prepared chick report was examined as P.W. 5. Amar Singh was examined as P.W. 7, Ram Ashray Pandey was examined as P.W. 6 (Senior Assistant Scientist), Scientific Laboratory, U.P. Constable, Amar Singh, who carried the dead body for post-mortem was examined as P.W. 8. After the prosecution evidence was closed statement of accused appellant Kesheo Singh was recorded under section 313 Cr.P.C. No evidence was adduced on behalf of defence.

The trial court held the appellant guilty under section 302 and 307 IPC. He was on bail, his bail was cancelled and he was taken into custody. After hearing on question of sentence on the same day i.e. 3.5.1986 he was sentenced to life imprisonment under section 302 IPC and further he was sentenced to undergo rigorous imprisonment for five years of the offence under section 307 IPC with the direction that both the sentences would run concurrently.

Against the impugned judgment of conviction and sentence dated 3.5.1986 present appeal was preferred, which was admitted and bail application was allowed on 15.5.1986 by this Court.

Learned counsel for the appellant challenged the validity of the order of conviction and sentence on the ground:

"(i) that appellant was implicated due to enmity

(ii) that P.W. 1 and 3, who were alleged to be the eye witnesses were not present on the spot

(iii) that P.W. 1 has not received any injury in the incident dated 16.8.1983 and he got the injuries manufactured

(iv) that as per allegation firing was with point black range but there was no burning and charring

(v) that there is a contradiction in the statement of P.W. 1 and 3, who were alleged to be eye witnesses and other alleged independent witnesses have not been examined."

Learned counsel for the appellant submitted that from perusal of the prosecution case itself it appears that none of the witnesses has seen the occurrence neither P.W. 1, Ram Singh was present nor his daughter Phool Kumari P.W. 3 was present. There is an improvement in the statement of P.W. 1, Ram Singh. From perusal of the FIR and statement, it appears that he has seen the incident, however, considering the entire statement of P.W. 1 and P.W. 3, it is clear that he has not seen who shot fire at deceased Maya Devi wife of Yadunath. Phool Kumari, P.W. 3 was a married lady and she was normally expected to be living at resident of her in-laws and there was no reason or any occasion to stay at the parental house. According to her statement also the fire was from point black range as according to statement of P.W. 1

According to P.W. 3, Phool Kumari, fire was from close range, however, from the medical report it appears that the fire was from a distance of more than 1 feet as there was no charring and burning. Hence presence of both the witnesses are doubtful. Yadunath, son of informant, who also alleged to have arrived on the spot along-with informant neither received any injury nor was examined before the court since he was not ready to depose before the court hence married daughter was introduced as a witness and the delayed first informant report was lodged with consultation of the police. There is a contradiction regarding recovery of pellets on the spot. According to P.W. 1, Ram Singh, pellets were found and recovered from the spot by the investigating officer, P.W. 8, Ram Prakash Singh, which was denied by him. It is also unnatural that accused appellant was coming with two country made pistol in both the hands one was 315 bore and the other was 12 bore.

Learned counsel for the appellant further submitted that the injury report of the P.W. 1, Ram Singh, is doubtful, the same was not caused by fire-arm as alleged by P.W. 1 and P.W. 3. No x-ray report has been filed before the trial court to show that there was any fire-arm injury though x-ray was advised by Dr. P.S. Chauhan, P.W. 2, who examined injured Ram Singh. There is no evidence that any pellet was recovered from the body of P.W. 1 hence injury report as well as presence on the spot is doubtful and in fact he has not seen the incident. False recovery of countrymade pistol of 12 bore and 315 bore were shown from the possession of the appellant on the same day at about 4.00 P.M. from the place outside the village though in fact he was apprehended from the village and thereafter recovery was planted. According to report of the Scientific Laboratory the recovered cartridges were not fired from the countrymade pistol recovered from the appellant and in case under section 25 Arms Act he was acquitted. The recovery of countrymade pistol alleged to have been used in the incident cannot be relied in the present case in view of the finding recorded by the trial court in case under section 25 Arms Act, and the finding with regard to the recovery and use of countrymade pistol would constitute as stopple. He relied the judgment of the Apex Court reported in Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and Another, . He further contended that the prosecution failed to prove the case beyond doubt and the judgment of conviction and sentence being against the evidence on record is liable to be set aside. Learned counsel for the appellant also contended that in fact Dacoity took place in the night of 16/17.8.1983 and due to enmity when police came on the spot on the basis of concocted story anti time first information report was registered.

Learned AGA vehemently opposed the aforesaid prayer and submitted that there is no reason to disbelieve the eye witnesses P.W. 1 and 3, who have seen the occurrence. Admittedly there was enmity in between the parties due to possession of grove land and re-marriage of widow of Lakhan Singh elder brother of accused appellant and Yadunath Singh, son of complainant. The motive has already been mentioned in the first information report and it is also supported by the P.W. 3, Phool Kumari, who was present along-with deceased at the time of incident and she has seen the entire incident when appellant shot fire at deceased Smt. Maya Devi and when she raised alarm her father and brother reached there. While he was seeing her daughter-in-law appellant shot fire causing fire-arm injury on back of her father-in-law, Ram Singh P.W. 1. P.W. 1 and 3 both have supported the prosecution version and except minor contradiction there is no material contradiction in their statements. Hence trial court has rightly relied those statements and rightly convicted and sentenced the accused appellant under section 302 and 307 IPC. Even the medical report supported the prosecution case. According to doctor, the injury might have been caused at about 6.00 A.M. in the morning on 16.8.1983. As far as recovery is concerned, merely because the appellant was acquitted under section 25 Arms Act that by itself will not affect the prosecution case in respect of murder. Even Smt. Maya Davi after death of her husband was turned out from the house. When she was dispossessed and thrown out from her house, only then she got married with Yadunath son of informant, Ram Singh and they (complainant side) got her share hence appellant was annoyed. There was strong reason for being aggrieved on this ground also. The P.W. 3, Phool Kumari, was along-with deceased Maya Devi when she was shot dead hence there is no reason to disbelieve her statement. Their presence on the place of occurrence is natural and they have fully supported the prosecution case hence they are wholly reliable. He also contended that merely on the ground of opinion of doctor eye witnesses has not to be disbelieved. The witnesses have not stated that firing was by close range. The blackening and tattooing was found around fire-arm wound.

We considered the submission of learned counsel for the parties and perused the record. As far as the motive parts are concerned, though in the case of direct evidence motive may not be very important but in the present case in the FIR itself motive for committing of offence was shown by P.W. 1 Ram Singh. According to first information report itself first reason of enmity was regarding possession of grove land by appellant belonging to informant and due to that forceful possession there was enmity with them. The second reason for enmity was that deceased Smt. Maya Devi, widow of Lakhan Singh, elder brother of appellant Kesheo Singh, re-married with Yadunath S/o informant. From perusal of the examination-in-chief of P.W. 1 there is no whisper regarding the motive, however, the same motive was mentioned in the FIR and narrated by the P.W. 3 Smt. Phool Kumari in her statement but only this much was stated that the enmity was due to agricultural field and in respect of Smt. Maya Devi only the fact of re-marriage was mentioned that the marriage was registered in district court with the Yadunath Singh. In cross examination she has stated that re-marriage of deceased Smt. Maya Devi with Yadunath, her brother, was with consent of her father and brother and openly the marriage was performed. Even there was no objection raised by appellant Kesheo Singh and his family members. She stated that share of Maya Devi was transferred to her but there was no evidence and P.W. 1 has not stated whether any land or any property belonging to Lakhan Singh previous husband of Maya Devi was in the name of Smt. Maya Devi. There is no evidence that any property was received by Maya Devi or by informant No. 1. When she was compelled to leave the house after death of Lakhan Singh and there was no grievance and objection at the time of her re-marriage with Yadunath, then grievance to Kesheo Singh, and his family members after remarriage with Yadunath, is unnatural and he would not be benefited by killing her.

According to FIR version appellant Kesheo Singh had grievance and enmity with informant Ram Singh and his son Yadunath Singh and he was in search of opportunity to kill them. The appellant having country made pistol in both hands with intention to kill informant and his son and since she found his daughter-in-law Maya Devi hence she shot at her causing her death on the spot. When they reached on the spot there was apprehension that they would be killed by appellant but they neither raised any alarm nor tried to apprehend or assault the appellant Kesheo Singh. After firing at Smt. Maya Devi from a very close range, appellant did not run away from the spot rather he was waiting the witnesses for about 10-20 minutes to rush on the spot as stated by P.W. 3 Smt. Phool Kumari. According to her statement in para 11, when she raised alarm after 10-20 minutes her father and brother reached there and till they reached she continued to raise alarm. When his father reached there and he bent downwards to see the injury of her Bhabhi, then appellant Kesheo Singh, who was standing over there near the body of her Bhabhi fired at Ram Singh. According to her statement till Sub Inspector reached there her father remained lying on the spot and when Sub Inspector reached there on a separate bed he was taken near the Baskothi, Sub Inspector remained there for 4-5 hours and thereafter dead body of Smt. Maya Devi was taken by the bullock-cart. Subsequently, in the statement, it was stated by P.W. 1, Ram Singh that after Phool Kumari, her daughter, raised alarm then he arrived at the place of incident. Hence it is clear that he was not present at the place of incident and he has not witnessed the shot fired by appellant at Smt. Maya Devi and as such regarding the shot fired by appellant Kesheo Singh, P.W. 3 Phool Kumari is the only witness. It is unnatural that after shot was fired causing injury to Maya Devi he remained there for about 10-20 minutes, till witnesses reached on the spot. According to P.W. 1 his son reached after 10-12 minutes and subsequently, thereafter, 10-20 minutes after he reached on the spot he stated

""

this version is also against version of the FIR. According to FIR version, there was enmity and appellant wanted to kill informant and his son Yadunath Singh but when he reached on the spot appellant Kesheo Singh armed with countrymade pistol but there was no suspicion that he would shot fire at him. This also creates doubt regarding his presence on the spot. The defence version is that Dacoity took place in which jewelleries were looted and during the alleged incident she ran away outside the house to save her but ultimately miscreant shot her and subsequently on the basis of concocted story when police reached on the spot, first information report was lodged.

According to statement of P.W. 1, Ram Singh, in para 17 P.W. 3 Phool Kumari came at his house 5-6 months prior to the incident and her husband reached there 2-3 days after receiving the news regarding the incident. According to P.W. 3, Smt. Phool Kumari, 15 days prior to the incident she was in village and before the incident in the evening her husband also came to the village. Hence there is contradiction that since when she was living there and whether her husband came before the incident or after the incident. According to statement of P.W. 3.

However, according to investigating officer, P.W. 8, R.P. Singh According to P.W. 1 pellets were recovered by the Sub Inspector.

According to P.W. 3, and according to investigating officer Kesheo Singh was not arrested at 10.00 A.M. from the village. According to investigating officer the cartridges were recovered on 16.8.1983 from the place of occurrence, which remain in police station upto 20.3.1984. Neither it was deposited in ''Sadarmalkhana'' nor it was sent to the Scientific Laboratory. Subsequently on 20.3.1984 along-with letter dated 15.3.1984, the same reached to the Scientific Laboratory. There is no reason or occasion or justification to keep the cartridges for a such long period at the police station, which was a material peace of evidence. However, according to report of Scientific Laboratory both cartridges appears to have not been fired from the countrymade pistol recovered from the possession of appellant.

As far as judgment relied by learned counsel for the appellant in respect of finding regarding recovery of countrymade pistol is concerned, that will not be applicable in the present trial because in the present case trial is with regard to murder of Smt. Maya Devi and causing fire-arm injury to informant, Ram Singh, P.W. 1. Whether recovery was genuine or it was planted recovery it will not affect the prosecution case if prosecution succeeded to prove the case beyond reasonable doubt. Hence case of Sangeetaben Mahendrabhai v. State of Gujarat and another is not applicable in the present case.

The deceased Maya Devi and P.W. 3 Phool Kumari both were going second time in the morning at about 6.00 A.M., on 16.8.1983 to attend the call of the nature, as they were suffering from diarrhoea/dysentery. According to her both were suffering from diarrhoea for last two days before the incident and for last two days they have not eaten anything but according to Dr. Sarveshwar Tiwari

Hence this story to show presence of Smt. Phool Kumari became doubtful.

According to investigating officer no blood or pellets were found on the spot and whether Ram Singh received injury and fell down or not though according to P.W. 3 blood was oozing out, which fell down on the earth. Whether P.W. 1 is an injured witness and he was present on the spot is doubtful. Admittedly he has not seen, the occurrence when, as per allegation appellant shot fire at deceased Maya Devi and subsequently, after hearing the voice raised by P.W. 3, Phool Kumari, his daughter he rushed to the spot. According to doctor he advised X-ray to ascertain whether injuries were caused by fire-arm or not the stated in para 8 but no supplementary report was placed before the trial court regarding the injuries. It was not mentioned whether it was averted or inverted. The suspicion was that the pellets were present in the body, however, there is no evidence whether that pellets were removed. There is no evidence adduced by the prosecution whether pellets were present in the body of injured P.W. 1 Ram Singh, which could have been ascertained by the supplementary report after x-ray. Further according to P.W. 1, Ram Singh, at the time of incident he was sitting near the pond along-with his son Yadunath though according to his statement in para 17.

The incident took place at about 6.00 A.M. whether he was sitting near the pond at the time of incident or not along-with his son at about 6.00 A.M. is also appears to be doubtful. From perusal of first information report and statement, there is improvement in the prosecution version because in the first information report it was not mentioned that after hearing the alarm he reached at the place of incident but according to the statement, after hearing alarm raised by his daughter Phool Kumari he rushed to the place of incident. Further he stated that when he reached to apprehend appellant Kesheo Singh he shot fire at them but according to statement when he reached at the spot after hearing the alarm raised by P.W. 3 firstly he bent downwards to see injuries and condition of deceased Smt. Maya Devi then Kesheo shot at causing fire-arm injury to him on his back. These circumstances discussed above create doubt regarding presence of witnesses at the place of occurrence. The incident took place but whether the incident was witnessed by P.W. 1 and 3 and whether P.W. 1 received fire-arm injury in the same incident could not be proved by the prosecution beyond reasonable doubt, whether appellant fired. Hence the appellant is entitled for benefit of doubt.

Hence, in view of the above noted discussion, the judgment and order of conviction and sentence dated 3.5.1986 passed by Additional Session Judge, Kanpur Dehat, in S.T. No. 355 of 1983 is hereby set aside.

Accordingly, the present criminal appeal is Allowed. The appellant is already on bail. The sureties stand discharged.