Man Singh and Others vs State of U.P.

T.P. Garg, J.—Man Singh, Ram Prakash Singh and Ram Asrey sons of Sheo Raj Singh have filed this revision against the order dated 1.6.1983 passed in Criminal Appeal No. 13 of 1983 by IVth Additional Sessions Judge, Banda, whereby their appeal was dismissed and their conviction u/s 307/34, I.P.C. and sentence to undergo R.I. for four years, and also to pay a fine of Rs. 500 each u/s 307/34, I.P.C. and conviction and sentence of one year R.I. of Ram Asrey u/s 323, I.P.C. passed by Asstt. Sessions Judge, Banda in Sessions Trial No. 255 of 1980 was maintained.

Brief facts giving rise to the present revision are as under:

The case against the accused-applicants u/s 307/323/34, I.P.C. was committed to the Court of Sessions for trial by the Judicial Magistrate vide his order dated 1.8.80. The case against the accused is that they are real brothers and are Thakur by caste. Dhanpat, complainant also belongs to the same village and is Bantya by caste. The house of the applicants-accused is situated at a little distance from that of the complainant. On 1.11.1979, at about 8 a.m., Dhanpat complainant made a report Ext. Ka. 3 to the Police Station to the effect that about 20 days before that date, Chedi Lal had purchased an old house from one Sadhu Singh about which Thakur Man Singh had said that he would take forcible possession of that house ; that a Panchayat was to be held about that dispute on that date. However, in the morning, Man Singh, Ram Prakash Singh and Ram Asrey, sons of Sheo Raj Singh started demolishing the said house with Phawara. Chedi Lal told Dhanpat, complainant about this matter on which the complainant and Chedi Lal both asked the accused to desist from doing so. On this Man Singh, accused asked his brother. Ram Prakash Singh to bring his gun and kill them. Thereafter, Ram Prakash went inside the house and brought his gun and fired a shot at the complainant. The pellets of the gunshot hit the complainant on both of his thighs and lower part of his body. Man Singh and Ram Asrey, started belabouring the complainant with lathies. Chedi Lal ran towards Ram Prakash Singh and snatched his gun from him. But Ram Asrey, accused gave lathi blow to Chedi Lal on his head, but he (Chedi Lal) successfully ran away with his gun and same was kept with one Ram Avtar Tiwari. Alarm raised by them attracted Bhola Singh Thakur of the same village and Chedi Lal son of Gaya Deen, who rushed to the spot and witnessed the occurrence and intervened. It was about 8.30 a.m. when this occurrence took place. It is alleged that had Chedi Lal not snatched the gun from Ram Prakash Singh, they would have been done to death.

On the aforesaid report, Ext. Ka. 3, a case vide First Information Report Ext. Ka. 7 was registered on the same day. Dhanpat and Chedi Lal were medically examined vide injury reports Ext. Ka. 1 and Ex. Ka. 2 respectively. Vide medical report Ext. Ka. 1, as many as 11 injuries were found on the person of Dhanpat and vide report Ex. Ka. 2, one injury was found on the person of Chedi Lal. The injuries No. 1 to 5 and 11 on the person of Dhanpat have been found to be caused by the blunt weapon and injuries No. 6 to 10 were found to have been caused by the firearm. On the person of Chedi Lal the only injury found was stated to have been caused by blunt weapon.

Dr. Umesh Chandra Trivedi P.W. 1 medically examined the injured P.Ws. According to him, the fire-arm injuries on the person of Dhanpat could have been caused by a single shot at about 8.30 a.m. on 1.11.79. He has further stated that the injuries on the person of Dhanpat were sufficient to cause his death. Further that had he not been given medical aid, the injuries on his person could have proved fatal. On the person of Chedi Lal, he found one simple injury, caused by blunt weapon. In his cross-examination, he has stated that on 2.11.1979, he examined Ram Prakash Singh accused and found five injuries on his person, which all were simple, caused by blunt weapon vide his report Ext. Kha. 1. He also medically examined Man Singh and found three injuries on his person, which were all simple injuries caused by blunt weapon vide his report Ext. Kha. 2. The case was investigated by the Sub-Inspector Meetan Ram, who inspected the place of occurrence and prepared a site plan Ext. Ka. 4, and after completion of the investigation, filed a charge-sheet Ext. Ka. 6. He also took into possession the licenced gun of 12 Bore, which was allegedly snatched away by Chedi Lal from the possession of Ram Prakash Singh vide memo Ext. Ka. 5. After completion of the investigation a charge-sheet was filed against the accused.

As stated above, the case was committed to the Court of Sessions and" entrusted to the Assistant Sessions Judge, Banda for trial.

All the three accused were charged u/s 307/323/34, I.P.C. on the accusation that on 1.11.1979 at about 8.30 a.m. in the area of village Tarowa in furtherance of their common intention to cause death of Dhanpat P.W. 2, one of them namely: Ram Prakash fired a shot from his gun and caused injuries to said Dhanpat, knowing that the said person Dhanpat, if injured, by the spot, the death might be caused and he would be guilty of murder. The accused were further charged u/s 323/34, I.P.C. on the accusation that on the said date, time and place, in furtherance of the common intention, one of them, Ram Asrey voluntarily caused injuries to Chedi Lal P.W. 3. All the accused pleaded not guilty, and claimed trial.

In the trial, the prosecution examined as many as six P. Ws. namely. Dr. Umesh Chandra Dwivedi, P.W. 1, Dhanpat injured and complainant P.W. 2, Chedi Lal son of Mangalwa P.W. 3, Balli P.W. 4, Chedi Lal son of Gaya Deen P.W. 5 and S.I. Mitan Ram, Investigating Officer P.W. 6. In their statements recorded u/s 313. Code of Criminal Procedure, all the accused have denied the allegations. They have, however, admitted that they all are brothers inter se.

It has been pleaded on behalf of the accused that Chedi Lal was opening a door towards the south of his house ; that they asked him not to do so, but they did not desist, which led to exchange of hot words ; that they were preparing to go to the Police Station when Dhanpat. Jagpat, Chedi Lal, Balli, Ram Das and Mangalwa came there and started giving lathi blows to Man Singh and Ram Prakash Singh. Further, that Man Singh, in order to save Ram Prakash, gave a lathi blow and finding that it would not serve the purpose, he went inside the house and took up his gun and came out. Chedi Lal, Dhanpat and Jagpat started snatching the gun from Man Singh and Chedi Lal after snatching the gun, gave a blow of lathi on the head of Man Singh. Man Singh fell down on the ground and a shot was fired from his gun on its own. Chedi Lal ran away with the gun.

Ram Asrey accused, filed a written statement wherein it is contended that his brother Man Singh was in possession of a 12 bore single barrel gun which has no trigger and when the cartridge is put in it, the trigger sets on its own and with a little effort it goes off. In their defence, the accused have placed reliance on the injury reports of the accused Ext. Kha. 1 and Ext. Kha. 2 proved in the cross-examination of Dr. Umesh Chander Dwivedi, P.W. 1.

The trial Judge, believing the prosecution version and disbelieving that of the accused, held them all guilty u/s 307/34, I.P.C., convicted them thereunder and sentenced each of them to undergo R.I. for four years and also to pay a fine of Rs. 400 each or in default of the payment of fine further to undergo R.I. for one year. Ram Asrey, accused was also individually held guilty u/s 323, I.P.C. convicted and sentenced to undergo R.I. for one year. The sentences of Ram Asrey accused were made to run concurrently.

All the accused filed an appeal against their conviction and sentence, which was heard by the Additional Sessions Judge, Banda, who vide his judgment and order dated 1.6.83 dismissed the same and maintained both their conviction and sentence. Hence this revision.

Learned Counsel for the parties have been heard and records of both the courts below have been perused.

It was argued on behalf of the applicants that the complainant party has failed to prove its right over the house alleged to have been purchased from Sadhu Singh by Chedi Lal, son of Mangalwa P.W. 3. According to him, the prosecution should have examined Sadhu Singh in order to prove the said contention because the case of the prosecution hinges on the dispute in respect of the said house.

Having given my careful consideration to the said argument, I find myself unable to agree with the same. There is cogent and convincing evidence on record to prove that Chedi Lal son of Mangalwa P.W. 3 purchased the said house from Sadhu Singh, which annoyed Man Singh applicant, who used to say that he would take forcible possession of the said house. Simply because the sale-deed and the author of the sale-deed ; namely, Sadhu Singh were not produced in evidence it would not go to create any dent whatsoever in the prosecution case. There is overwhelming evidence on record to prove that Chedi Lal son of Mangalwa P.W. 3 purchased the house in question from Sadhu Singh, coming in the witness box as P.W. 3, Chedi Lal son of Mangalwa has categorically stated on oath that he had purchased a house from Sadhu Singh but Man Singh and other accused did not want him to take that house ; that on the day of occurrence, the accused party came to demolish the said house by means of Phawara to which he objected. He has further stated that he convened a Panchayat with the help of Dhanpat P.W. 2 and while they were deliberating over the matter, the accused started demolishing the said house on which the occurrence took place. Chedi Lal son of Mangalwa P.W. 3 was cross-examined on this point and he has stated that he had purchased the house from Sadhu Singh by means of a sale-deed ; that Sadhu Singh had been living in that house ; that he had himself seen Sadhu Singh living in that house ; that after executing the sale-deed in his favour, Sadhu Singh started living in some other house. He has denied the suggestion that the house purchased by him from Sadhu Singh was actually owned by Man Singh accused. On being further cross-examined, he was clarified that the said house was purchased by him for a consideration of Rs. 3,000 about which there was a recital in the sale-deed ; that the entire amount of consideration was paid before the execution of the sale-deed. On behalf of the accused, no evidence has been placed on record, nor any reference has been made by the learned Counsel for the applicant during the course of arguments that may indicate that Chedi Lal son of Mangalwa was not the owner of that house or he did not purchase the said house from Sadhu Singh or that Man Singh accused was in fact the owner of that house. Simply to say that the said house did not belong to Chedi Lal son of Mangalwa, does not suffice and is in the nature of an excuse which has been rightly rejected by both the courts below. It is thus clearly made out that the accused had a clear motive to commit the crime because they did not want Chedi Lal son of Mangalwa P.W. 3 to purchase the said house from Sadhu Singh and on the day of occurrence, they started demolition of the said house by means of Phawara. The argument advanced by the learned Counsel for the applicant is thus without merit.

It was further argued by the learned Counsel for the applicants that two of the accused, namely. Ram Prakash Singh and Man Singh received injuries at the hands of complainant party about which no explanation has been furnished by the prosecution and so on this ground alone, the accused were entitled to acquittal.

Having given my careful consideration to the aforesaid submission, I find the same to be without any merit. Besides sworn testimonies of two injured witnesses ; namely, Dhanpat P.W. 2 and Chedi Lal son of Mangalwa P.W. 3, there is evidence of Balli P.W. 4 and Chedi Lal son of Gaya Deen P.W. 5. Even if it be taken for a moment that Balli P.W. 4 is the brother of Dhanpat P.W. 2, yet Chedi Lal son of Gaya Deen, is not shown to be in any way related to the complainant party or inimical against the accused so as would come forward and make a false statement on oath. He is an independent witness and has made a statement on oath giving all the details of the occurrence that took place in the morning of 1.11.1979 and all that happened on that day. He has stated that in order to resolve the issue writ regard to the house purchased by Chedi Lal son of Mangalwa, a Panchayat had been convened by him (Chedi Lal son of Mangalwa) which was attended by him and others including Dhanpat, Balli and others. He has corroborated the prosecution story on all material points. He was grilled in cross-examination for quite some time, but his testimony was not shaken. He has given evidence in a most natural and straightforward manner and his testimony is satisfactory and reliable. He is not shown to be in any manner interested in the complainant party or hostile against the accused so as would come forward and make a false statement on oath. Dhanpat and Chedi Lal son of Mangalwa are both injured witnesses. Under no circumstance, the injured witnesses would spare the real culprits and introduce false persons as culprits. The testimonies of Dhanpat and Chedi Lal son of Mangalwa, injured P.Ws. find corroboration from the sworn testimonies of Balli P.W. 4 and Chedi Lal son of Gaya Deen P.W. 5. Their evidence is also consistent with the medical evidence on record. Taking all together, the evidence of prosecution witnesses is satisfactory, reliable, cogent and convincing and proves the case against the accused beyond reasonable doubt.

Coming now to the injuries suffered by Ram Prakash Singh and Man Singh, accused. Admittedly, all the three accused-applicants are brothers inter se. It has come in evidence on record that all the three accused participated and took active part in the occurrence. Ram Prakash Singh suffered as many as five blunt weapon simple injuries, whereas Man Singh suffered as many as three blunt weapon simple injuries. Man Singh was examined at 11.40 p.m. on 1.11.1979 while Ram Prakash Singh was examined at 12.15 a.m. on 2.11.1979. Dr. U.C. Dwivedi P.W. 1 has stated that injuries on the persons of both these accused could have been caused at about 8.30 a.m. on 1.11.1979, i.e., the time when the occurrence took place. However, as per medical report of the doctor, Dhanpat was examined at 9.30 p.m. on 1.11.1979 and Chedi Lal son of Mangalwa was examined at 11.28 p.m. on 1.11.1979. Vide Medical Report Ext. Ka. 1, he found as many as injuries on the person of Dhanpat P.W. and one injury on the person of Chedi Lal P.W. vide his report Ext. Ka. 2. Out of 11 injuries on the person of Dhanpat P.W., he found injury Nos. 6, 7, 8, 9 and 10 to have been caused by firearm while injuries No. 1 to 5 and 11 by blunt weapon. On the person of Chedi Lal, he found the only injury having been caused by blunt weapon.

Coming in the witness box as P.W. 1, Dr. U.C. Dwivedi, has stated on oath that injuries on the person of Dhanpat P.W. were sufficient to cause his death ; and that the death would have been caused if he would not have been given proper medical treatment. He has further stated that all the fire-arm injuries could have been caused by a single shot. He has not been cross-examined on this point. From his testimony, it is made out that the fire-arm injuries on the person of Dhanpat P.W. could have caused his death but for the timely medical aid. In view of the categorical medical evidence on record, the fire-arm injuries on the person of Dhanpat P.W. were certainly dangerous to his life and would have resulted in his death but for timely medical aid. On the other hand, the injuries on the persons of Ram Prakash and Man Singh accused were all simple and caused by blunt weapon. No doubt in the F.I.R. lodged by Dhanpat P.W., there is no mention of the injuries on the persons of aforesaid two co-accused. But then, all the other details of the entire occurrence have been fully given and recorded. After all F.I.R. is not an encyclopaedia which will give all the details. Since Dhanpat P.W. has not used any force at the time of occurrence, it was quite natural for him to have ignored this aspect of the matter. Thus omission on the part of Dhanpat P.W. in explaining the injuries on the persons of two accused does not go to the root of the case nor makes the prosecution story doubtful in any manner. Chedi Lal son of Mangalwa P.W. 3 is an injured witness. In his statement in the court as P.W. 3, he has explained the circumstances under which he caused injuries to Ram Prakash Singh accused. Both Balli P.W. 4 and Chedi Lal son of Gaya Deen, P.W. 5 have categorically stated in their testimonies before the Court that the lathies were wielded in self-defence and as a result of which, Man Singh and Ram Prakash Singh received injuries. None of the P. Ws. was cross-examined by the learned defence counsel with regard to their alleged omission to have given statement to that effect before the Investigating Officer.

Coming to the prosecution case, once again, it will be seen that testimonies of all the P. Ws. are satisfactory and reliable. Dhanpat P.W. 2 is the complainant in this case. He has given a detailed account of the entire occurrence that took place at about 8.30 a.m. on 1.11.1979 and all that happened on that day thereafter. He has categorically stated about the presence of Balli, Chedi Lal son of Gaya Deen, Chedi Lal son of Mangalwa besides others in the panchayat which had been convened in order to deliberate upon the matter with regard to Man Singh''s threat to take forcible possession of the house of Chedi Lal son of Mangalwa P.W. 3. He has further stated that while the deliberations of the panchayat were going on, Chedi Lal son of Mangalwa P.W. 3 informed that the accused were trying to demolish the house purchased by him from Sadhu Singh, on which Chedi Lal went to that house and asked the accused to desist from doing so and that this annoyed Man Singh who asked the co-accused Ram Prakash Singh to bring a gun and fire at him ; Ram Prakash Singh loaded a gun and fired at Dhanpat which hit his thighs and as a result of which he fell down and thereafter, both Man Singh and Ram Prakash Singh gave him lathi blows. Chedi Lal son of Mangalwa gave lathi blows to Ram Prakash Singh and snatched his gun. Ram Asrey accused gave lathi blows to Chedi Lal on his head and Chedi Lal was successful in snatching the gun from Ram Prakash Singh and after which he handed over the gun to his father Mangalwa, who ran away with it. Soon after the occurrence, a report was lodged with the police. As stated above, the injured witnesses were soon got medically examined. The medical evidence of Dr. U.C. Dwivedi is consistent with the eye-witnesses'' account rendered by Dhanpat and Chedi Lal son of Mangalwa, both the injured P.Ws. and Balli and Chedi Lal, son of Gaya Deen P.Ws. Meetan Ram is Sub-Inspector of Police, who conducted the investigation of the case. His evidence is also consistent with the eye-witness account and medical evidence on record. On the other hand, the plea raised on behalf of the applicants is neither satisfactory nor convincing. It is in fact, in the nature of an excuse and has been rightly rejected by both the courts below. As per the plea taken by the accused in their statements u/s 313, Code of Criminal Procedure, the occurrence took place in the house of Man Singh and about which a report Ext. Kha. 5 was lodged by them. The Investigating Officer found no substance in the said report nor the courts below have placed any reliance on the same, and in my opinion, rightly so. As per this report Ext. Kha. 5, Chedi Lal and others started be labouring Ram Prakash Singh with lathies on which Man Singh came out of his house, saw the occurrence and went back to his house ; that Chedi Lal and others followed him on which he took his gun ; that Dhanpat caught hold of the barrel of the gun ; that Chedi Lal gave a lathi blow on his head and on account of which he fell down and a shot was fired on account of pressure on the trigger of the gun while he was lying on the ground. The defence version as recorded in Ext. Kha. 5 and pleaded by the accused in their statements u/s 313, Code of Criminal Procedure is certainly in the nature of an excuse and does not find support from any material on record. It cannot be believed that an accidental shot from the barrel of the gun lying on the ground would hit the thighs and private parts of the injured. It is not the case of the accused that the barrel of the gun was aimed at the thighs of Dhanpat P.W. The shot of the gun, lying on the ground would certainly go parallel, and not that it would go upwards to hit the thighs of Dhanpat and cause him as many as five fire-arm injuries. The defence version is thus certainly in the nature of an excuse and has been rightly rejected by both the courts below. Injuries on the persons of both the accused have been satisfactorily explained by the prosecution. The fact remained that all the accused-applicants shared a common intention to cause injuries to Dhanpat and Chedi Lal son of Mangalwa P.W. 3 and in order to translate their design, they did cause injuries to them. The prosecution story is satisfactory, reliable, cogent and convincing whereas the defence version is in the nature of an excuse and an afterthought and has been rightly rejected by both the courts below.

No other point has been urged.

In view of the foregoing, I find that both the conviction and sentence have been rightly awarded to the applicants by both the courts below, and there is no scope for any interference whatsoever by this Court in this revision. Consequently, the present revision fails and is dismissed. The conviction and sentence of all the accused-applicants recorded by the courts below are maintained. The accused are on bail. Their bail bonds are cancelled. They should be taken into custody forthwith to undergo the sentence awarded to them by the courts below.