Netrapal, Surendra and Suresh vs State of U.P.

Surendra Singh, J.—Challenged in this appeal is the Judgment and order dated 27.11.1982 passed by IIIrd Additional District and Sessions Judge, Budaun in Sessions Trial No. 222 of 1982 State v. Netrapal and Ors., convicting and sentencing the Appellants u/s 302/34 IPC for life imprisonment and u/s 307/34 IPC for four years rigorous imprisonment. Both the sentences were directed to run concurrently.

THE FACTS

An incident is said to have taken place on 23.12.1981 at about 8:00 hours. In this incident one Balloo Singh (deceased) died and Smt. Ramshri had sustained injuries.

The injured Smt. Ramshri (Informant) lodged the FIR on the same day at about 10:00 hours at the police station Ujhani, District Budaun under Sections 302 and 307 IPC vide Case Crime No. 618 of 1981.at about 10:30 hours.

The parties are related to each other. The relevant pedigree is as follows:

Cousin Brothers ___________________|_______________________ | | Gokil Karan Singh _________|_________ | | | Smt. Kashmiri Devi=Bahadur Singh=Smt Ramsri Mathuri Balloo Singh (Deceased) (1st wife) | (died) | (2nd wife) | (issue less) | | | | Smt. Kanti Devi=Omvir Geeta Netra Pal (daughter) (daughter) (A1) ______|_______ | | Surendra Suresh (A2) (A3)

The allegations in the FIR are as follows:

� One Bahadur Singh resident of Village Butla Daulat executed a gift deed in respect of agricultural land to his second wife Smt. Ramshri prior to his death;

� Smt. Kashmiri Devi was the first wife of Bahadur Singh. Smt. Kanti Devi wife of Omvir Singh who was the daughter of Bahadur Singh from his first wife Smt. Kashmiri Devi initiated a proceeding challenging the said gift deed in the court at Budaun;

� 23.12.1981 was the date fixed in the said proceeding. The Appellants, Netrapal and his sons Surendra and Suresh were pairokar of Smt. Kanti Devi in the said case while Balloo Singh (Deceased) who had no issue was doing pairvi on behalf of Smt. Ramshri and has asked the Accused-Appellants to stop doing any pairvi on behalf of Smt. Kanti Devi otherwise he would transfer his entire agricultural land in favour of Smt. Ramshri. The Accused- Appellants apprehended that Balloo Singh might transfer his entire land to Smt. Ramshri and thus they would be deprived of his land;

On the fateful day, i.e. 23.12.1981 both, Smt. Ramshri (Informant) and her Jeth, Balloo Singh (Deceased), were going to attend the case in Budaun court, when both of them reached near the plot of Hem Chand situate in Har of Village Butla Daulat at about 8:00 hours Accused-Appellants, Netrapal and Surendra having armed with lathis and accused Appellant Suresh armed with knife surrounded them and all of them caused injuries on the person of the Deceased Balloo Singh and Smt. Ramshri by their respective weapons. The shrieks and cry of both injured persons attracted Balvir Singh, Bheem Singh, Mathura Prasad and Ompal who arrived there and challenged the assailants. Balloo Singh succumbed to his injuries on the spot;

� Smt. Ramshri had also received numerous injuries on her person. However, she managed to get a report (Ex Ka-1) of the incident written by one Amar Singh, Master on the spot and reached to the police station-Ujhani, District Budaun where she lodged the report at 10:00 hours on the same day. On the basis of the same F.I.R. (Ex Ka-14) was registered. S.I. Nirwikar prepared inquest report (ExKa-4) and he also prepared photo lash (Ex Ka-5) and Challan Lash (Ex Ka-6) under supervision of Charan Singh Investigating Officer. The dead body of Balloo Singh was sealed and thereafter S.I. Nirwikar completed other formalities for sending the dead body of the deceased to Budaun mortuary through constables Jaivir Singh and Man Singh. The Investigating Officer Charan Singh reached the place of occurrence and prepared the site plan (Ex Ka-10). He took blood-stained earth (Ex Ka-8) and unstained earth (Ex Ka-9).

� Smt. Ramshri (Informant) was sent to Primary Health Centre, Ujhani from the police station for medical examination through constable Tulsi Ram;

The Injuries of the Informant-Ramshri:

She was examined on 23.12.1981 at 11:15 hours by Dr ML Verma (PW 2), the then Medical Officer, Primary Health Centre, Ujhani, District Budaun. Her injuries are as follows:

(i) Lacerated wound measuring 4cm x 0.5cm x bone deep on the right side of scalp, 8.5cm above the right ear. Bleeding profusely;

(ii) Lacerated wound measuring 0.5cm x 0.5cm x muscle deep on right side of scalp, 1.5cm above the injury No. 1;

(iii) Lacerated wound measuring 4cm x 0.5cm x muscle deep on the right side of scalp 4cm in front of and superior to injury No. 1. Bleeding profusely;

(iv) Stab wound measuring 5cm x 0.75cm x not probed on the left anterior abdominal wall, 4cm above and lateral to umbilicus. Margins clean cut and well defined, profusely bleeding;

(v) Incised wound nearly 2.4cm x 0.5cm x muscle deep on the other side of upper 3rd of left thigh, bleeding profusely, margins clean cut and well defined;

(vi) Incised wound nearly 2.7cm x 0.5cm x muscle deep on the left gluteal region 5cm above and behind the injury No. 5, bleeding profusely;

(vii) Incised wound nearly 3.75cm x 0.75 x muscle deep on the left buttock, 11.5cm behind injury No. 6, bleeding profusely. Margins clean cut well defined;

(viii) Incised wound nearly 1cm x 0.2cm x skin deep on the dorsal surface of left little finger, margins clean cut and well defined. Bleeding profusely;

(ix) Incised wound measuring 3.5cm x 1cm x muscle deep on the left gluteal region, 9cm above the injury No. 7, bleeding profusely, margins clean cut and well defined;

(x) Linear semi circular abrasion measuring 7cm on the left hip 3cm above the injury No. 9;

(xi) Contusion with abrasion measuring 4cm x 2cm on the back and inner side of upper side of left forearm, colour pinkish;

(xii) Linear abrasion measuring 18cm semicircular in shape on the left side of anterior abdominal wall;

(xiii) Incised wound measuring 2cm x 0.5cm x muscle deep on the left side of back, 5cm medial to inferior angle of scapula bleeding profusely, margins clean cut and well defined;

(xiv) Abrasion measuring 2cm x 0.5cm on the left side of back, 7cm above the injury No. 19;

(xv) Abrasion measuring 0.5cm x 0.5cm on the left side of back, 5cm medial to injury No. 20;

(xvi) Abrasion measuring 0.5cm x 0.5cm on the right side of back;

(xvii) Contusion measuring 8cm x 2cm on the outer side of upper 3rd of left upper arm, colour bluish;

(xviii)Contusion measuring 4cm x 2cm on the dorsal surface of left index finger at the proximal phalangs;

(xix) Contusion measuring 8cm x 2cm on the outer side and back side of lower 3rd of right upper arm, colour bluish.

As per opinion of the Doctor, injury Nos. iv to ix and xiii were caused by some sharp edged weapon and injury Nos. x, xii, xiv and xvi were caused by friction and rest of the injuries were caused by blunt weapon like lathi or danda. Injury No. i was kept under observation and x-ray was advised. According to the deposition of the Doctor, incised wounds, stab wounds and linear abrasions on the person of Injured could be caused by knife and injuries were fresh and the time of examination and they could be caused on 23.12.1981 at 8 hours.

Ante-mortem Injuries of the Deceased- Balloo Singh:

Autopsy on the dead body of the Deceased was conducted on 24.12.1981 at 14:35 hours by Dr OP Chimpa (PW 5) who proved his injuries as (Ex Ka-3). In his opinion, the Deceased was about 70 years of age, having an average built body and had died one day earlier. As per the opinion of the Doctor, rigor mortis was present on lower and upper limbs of the dead body of the Deceased. The following ante-mortem injuries were found on his person:

(i) Lacerated wound 6cm x 1cm x bone deep on left side head, 5cm above above ear;

(ii) Lacerated wound 7cm x 1.5cm x bone deep on right side head, 6cm above and post to right ear;

(iii) Lacerated wound 3cm x 1cm x muscle deep on left occipital region 6cm pot to right ear;

(iv) Lacerated wound 3cm x 1cm x bone deep at left side head 2cm above injury No. 3;

(v) Lacerated wound 1cm x 1cm on dorsal aspect of index finger at middle phalanges;

(vi) Lacerated wound 2cm x 1cm x muscle deep at the base of thumb on dorsal aspect of right palm.

On internal examination, scalp was found congested below injury Nos. i to iv and right and left parietal as well as left side occipital bone was fractured and brain membranes were congested and ruptured below injury No. i. Two ounce of semi-solid undigested food in the stomach was found and small intestine was full of gases and small faecal matters and gases were found in large intestine. In the opinion of the Doctor, the death of Balloo Singh was due to shock and haemorrhage as the result of injury Nos. i and ii. He further opined that the Deceased might have sustained all the ante-mortem injuries by lathi blows and injuries were sufficient in normal course to cause the death of Balloo Singh (the Deceased) and those might have been caused on 23.12.1981, at about 8 hours.

The police investigated the case and submitted the charge sheet against the Accused Appellants. The case was committed to the sessions'' court and was registered as ST No. 222 of 1982 State v. Netrapal and Ors.

The charges were framed by the Additional Sessions Judge, Budaun on 3.8.1982. The Appellants were charged under Sections 302 IPC read with Section 34 IPC and u/s 307 IPC read with 34 IPC.

Since the Appellants abjured the charges, therefore, the trial proceeded against them.

In order to cement the charges and prove its case, the prosecution examined the following witnesses:

� Smt. Ramsri (PW-1): Eye witness;

� Dr ML Verma (PW-2): Examined the injuries of Smt. Ramsri;

� Dr OP Chimpa (PW-3): Performed autopsy on the body of the Deceased (Balloo Singh);

� Jaiveer Singh (PW-4): Formal witness;

� SI Charan Singh (PW-5): The Investigating Officer;

� Ishwar Prasad Sharma (PW-6): Head Moharrir.

Among others, the prosecution filed the following documents:

� Report (Ex Ka-1);

� Injury report of Smt. Ramsri (Ex Ka-2);

� Postmortem report (Ex Ka-3);

� Inquest report (Ex Ka-4);

� Photo lash (Ex Ka-5);

� Challan lash (EX Ka-6);

� Site plan (Ex Ka-10);

� Charge sheet (Ex Ka-13);

� Chik FIR (Ex Ka-14);

� Carbon copy of GD Entry (Ex Ka-15).

The statements of the Appellants were recorded u/s 313 Cr.P.C. on 30.10.1982. They denied their involvement in the incident and said that they have been falsely implicated as Balloo Singh (Deceased) had no issue and the Informant Smt. Ramsri wanted to grab his entire property.

Accused Appellants did not examine any witness in their defence rather they filed the following documents:

� Statement of Smt. Ramsri (Ex Kha-1);

� Copies of voter list ((Exs. Kha-2 & 3).

The Additional Sessions Judge by his judgment dated 27.11.1982 convicted the Appellants and awarded the following sentences:

� Imprisonment for life u/s 302 IPC read with Section 34 IPC;

� Four years'' rigorous imprisonment u/s 307 IPC read with Section 34 IPC.

Both the sentences were directed to run concurrently. Hence the present appeal.

During the pendency of this appeal, Appellant No. 1, Netrapal has died. His appeal was abated on 14.8.2007. There is a report from the Office dated 4.8.2010 that Appellant No. 3 Suresh has also died. His appeal is also abated. The appeal survives for Appellant No. 2 Surendra only.

POINTS FOR DETERMINATION

We have heard Sri PN Mishra, Senior Counsel, assisted by Sri Rahul Mishra, counsel for the Appellants and Km Usha Kiran, learned AGA for the State.

The following points arise for determination:

(i) Whether the Appellant had any motive to commit this crime;

(ii) Whether the testimony of the solitary Injured witness Smt. Ramsri (PW-1) is sufficient to prove the guilt of the Appellant;

(iii) Whether the prosecution has proved the death of Balloo Singh on 23.12.1981, at 8:00 hours;

(iv) Whether the prosecution has proved the guilt of the Accused Appellants beyond all reasonable doubt.

1st Point: THE APPELLANT HAD STRONG MOTIVE:

The relevant pedigree as noted above indicates that the parties are related to each other. It is not disputed that Balloo Singh (Deceased) was issue less and he used to reside with Smt. Ramsri (PW-1) in the house of her husband. Bahadur Singh, husband of Smt. Ramsri (PW-1) transferred his 15 bighas of agricultural land by a gift deed to her in his life time. Smt. Kanti Devi, daughter of Smt. Kashmiri Devi (first wife of Bahadur Singh) filed a case challenging the said gift deed. Bahadur Singh, subsequently, died after giving statement in the said case and thereupon Balloo Singh (Deceased) started pairvi in the case on behalf of Smt. Ramsri (PW-1). On the other hand, Accused Appellants were doing pairvi in the case on behalf of Kanti Devi.

Smt. Ramsri (PW-1) had stated that, about 8 days prior to the incident, Deceased (Balloo Singh) asked the Accused Appellants for a compromise in the case and he had threatened that in case they did not settle the dispute he would transfer his entire land to Smt. Ramsri (PW-1), thereupon Accused Appellant Netrapal asked his sons Suresh and Surendra that both, Smt. Ramsri (PW-1) and Balloo Singh (Deceased) be killed.

The motive as deposed by Smt. Ramsri (PW-1) appears to be probable. Indisputably, Deceased (Balloo Singh) was issue less and from the fact that both Smt. Ramsri (PW-1) and the Deceased (Balloo Singh) were going to Budaun to attend the case on the date and time of the incident shows that Balloo Singh was doing pairvi in the case on behalf of Smt. Ramsri (PW-1) and, therefore, Accused Appellants might be having apprehension in their mind that Deceased can give his property to Smt. Ramsri (PW-1) and consequently, they would not be able to inherit the property of Deceased (Balloo Singh).

Smt. Ramsri (PW-1) would not have any motive to implicate the Accused Appellants in a false case rather the Accused Appellants have strong motive to commit the murder of Balloo Singh and Smt. Ramsri (PW-1) so that the property of Deceased might not be transferred to Smt. Ramsri (PW-1) or some other persons, by him.

2nd POINT: TESTIMONY OF SOLITARY INJURED WITNESS IS SUFFICIENT TO PROVE THE GUILT:

The fact that one person Balloo Singh met homicidal death and that Smt. Ramsri (PW-1) received 19 injuries in the occurrence is beyond dispute. When, once presence of Smt. Ramsri (PW-1), being gravely injured, at the scene of occurrence is not doubted then her evidence assumes great importance and unless there are strong grounds, the same cannot be rejected on the basis of some minor discrepancies.

Coming to the question whether on the basis of solitary evidence conviction can be maintained. A bare reading of Section 134 of the Evidence Act, 1872 is suffice. The provision clearly envisages that no particular number of witness is required to establish a case. The quality of evidence is required and not the quantity of evidence.

We have under taken a very close and critical scrutiny of the evidence of PW-1 which is of such a quality that a conviction for the offence of the murder or attempt to murder can be safely rested on sole testimony. The Hon''ble Apex Court has repeatedly observed that on the basis of the testimony of the single eye witness a conviction may be recorded. It has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to pass a conviction solely on the basis of that witness. In doing so the Court must test the credibility of the witness by relying on the quality of evidence. The evidence must be free from any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of testimony of a single witness.

So, tested, we find the evidence of PW-1 is to be of that quality, mentioned above. It has also to be noted that Smt. Ramsri, Injured (PW-1) claimed to have set the law into motion. She began the story with existence of strong motive for committing the crime. The narration of events as they took place before the actual murder of her Jeth Balloo Singh are also shown to be true. There is no doubt that the FIR was lodged at her instance on the date of incident, at 10 am without loss of any time i.e. within 2 hours. Her testimony lefts no suspicion about her being eye witness.

We are satisfied that her evidence is unblemished beyond all possible criticism. Thus on her evidence alone conviction can be based.

3rd POINT: APPELLANT WAS INVOLVED:

Learned Counsel for the Appellant has submitted that the prosecution case is doubtful due to the following reasons:

(1) The witnesses Balvir Singh, Bheem Singh, Mathura Prasad and Ompal mentioned in the FIR have not been examined;

(2) The Deceased (Balloo Singh) was murdered by some robbers and Smt. Ramsri (PW-1) might have sustained injuries in the incident;

(3) Smt. Ramsri (PW-1) had concealed the factum of her earlier marriage with one Ram Singh;

(4) The eye sight of Smt. Ramsri (PW-1) was weak and she might not have recognized the Appellant.

(i) Non examination of FIR witnesses was not fatal:

� It is not disputed that shrieks and cries of Injured (PW-1) and the Deceased (Balloo Singh) attracted Balvir Singh, Bheem Singh, Mathura Prasad and Ompal who are alleged to have arrived on the spot and challenged the assailants who fled away towards village abadi still they have not been examined by the prosecution on the ground that they were won over by the Accused persons.

� Importantly, the alleged witnesses arrived on the spot after the assault did not come forward to support the prosecution case, therefore, they could not be the eye witnesses and no adverse inference can be drawn against the prosecution due to their non- examination.

(ii) It was not robbery:

� Smt. Ramsri (PW-1) has undoubtedly deposed in her cross- examination that she was robbed by the Accused persons and her money and Khandua was forcibly taken by them. But this deposition of Smt. Ramsri (PW-1) does not draw any inference that some robbers might have committed the murder of Balloo Singh and caused injuries to her at the time of commission of robbery;

� The testimony of Smt. Ramsri (PW-1) is consistent on the point that Accused Appellants in furtherance of their common intention committed murder of Balloo Singh and caused numerous injuries by lathi and knife on her on account of reasons mentioned under the heading of the motive.

(iii) Concealment of earlier marriage not relevant:

� Learned Counsel for the Appellants has submitted that Smt. Ramsri (PW-1) was firstly married with one Ram Singh of village Damari and subsequently, she married with Bahadur Singh. In support of their defence, copy of statement (Ex Kha-1) of Smt. Ramsri (PW-1) recorded in the court of Tehsildar, Budaun in case No. 79 of 1978 on 14.10.1980 and the copies of the voter list (Ex Kha-2 & Ex Kha-3) were also filed, in this regard;

� Undoubtedly, Smt. Ramsri (PW-1) might have concealed the factum of earlier marriage with Ram Singh but this fact does not belie the prosecution story. She did not have any motive to falsely implicate the Accused persons in the present case rather the Accused had strong motive to commit the murder of both Smt. Ramsri (PW-1) and Balloo Singh (Deceased).

(iv) Smt. Ramsri (PW-1) recognized the assailants:

� The deposition of Smt. Ramsri (PW-1) that her eyesight was weak does not mean that she had failed to recognize the real assailants on the spot. She had definitely stated that she clearly recognized the Accused persons as she had sufficient opportunity to mark the features of the Accused Appellants;

� Moreover, the Accused Appellants being the member of her family, there might not have been any difficulty to recognize them.

APPELLANT IS GUILTY

The prosecution case regarding motive was disclosed in the FIR. The Informant who is the solitary injured witness deposed that:

� Deceased (Balloo Singh) was her Jeth and she was doing pairvi on her behalf in a case pending in the court at Budaun u/s 145 Cr.P.C.;

� Accused Netrapal was also her Jeth and he was doing pairvi of the case on behalf of Smt. Kanti Devi, daughter of Bahadur Singh from the first wife Smt. Kashmiri Devi;

� Balloo Singh was issue less and he used to reside along with Informant in the house of her husband;

� Accused Appellants were apprehending that Balloo Singh (Deceased) might transfer his entire land in favour of Smt. Ramsri (PW-1).

Both, Balloo Singh and Smt. Ramsri (PW-1), were going to Budaun at the time of occurrence to attend the court. They were attacked outside the village abadi by Accused Netrapal and Surendra each armed with lathi and Suresh armed with knife. Resultantly, Balloo Singh died on the spot and Informant Smt. Ramsri (PW-1) sustained numerous injuries on her person.

The incident took place in the day-light at about 8am and the FIR was promptly lodged at about 10am, thus the chances of deliberation and consultation to built the prosecution story is ruled out.

It is clear from the testimony of IO Charan Singh (PW-5) that investigation of the case was fair and impartial.

The defence theory of robbery is not believable and does not inspire any confidence. The testimony of Injured Smt. Ramsri (PW-1) is trustworthy, unblemished and beyond all possible criticism and conviction could be based on her sole testimony.

The prosecution story as well as oral testimony are supported by the medical evidence. There is no material contradiction among the statement of the Informant Smt. Ramsri (PW-1) and other prosecution witnesses. There is no reason to disbelieve their oral testimony.

Dr OP Chimpa (PW-3) conducted the postmortem. He deposed that the injuries were of hard and blunt object and the Deceased died because of the same. Nevertheless, it is clear that the Deceased died because of lathi injuries.

Dr ML Verma (PW-2) had examined the Informant Smt. Ramsri (PW-1). He deposed that the injuries were of both hard and blunt object and the sharp edged weapon

In our opinion, the prosecution has proved its case beyond reasonable doubt.

CONCLUSION

In view of our conclusions, the appeal against the Judgment and order dated 27.11.1982 passed by IIIrd Additional District and Sessions Judge, Budaun in Sessions Trial No. 222 of 1982 State v. Netrapal and Ors. is dismissed. The Appellant Surendra is on bail. His bail is cancelled. The CJM Budaun shall cause the Appellant Surendra to be arrested and lodged in jail to serve out the sentence.