Pratap (in Jail) vs State of U.P.

K.N. Ojha, J.—Both these connected appeals have been preferred by Pratap, Dina Nath and Suresh against order of conviction and sentence dated 22nd May, 1981, passed by learned VI Ith Additional Sessions Judge, Mainpuri, in S.T. No. 552 of 1979, State v. Pratapand S.T. No. 143 of 1979, State v. Dina Nath and Suresh, by which these Appellants have been held guilty for committing the offence u/s 302 read with Section 34, I.P.C. and each of them has been sentenced to undergo life imprisonment.

Since both the Sessions Trials arose from the same crime and were decided by a common judgment by learned Additional Sessions Judge, Mainpuri, these appeals also are being disposed of by a common judgment.

We have heard Sri Ravindra Singh, advocate for Appellant, learned Additional Government Advocate, and have gone through the record.

According to prosecution, one Shiv Mangal Singh lodged F.I.R. against Pratap, Dina Nath and Suresh on 7.1.1979 at 7.15 a.m. at police station Kurra, district Mainpuri u/s 302, I.P.C. that all these three Appellants in furtherance of their common intention committed murder of his son Chandra Pal on 6.1.1979 at 9.30 p.m. at village Ropan Hamlet of Rajpur where parties live and which is at a distance of 6 miles from police station.

It was alleged that complainant Shiv Mangal Singh is the resident of village Ropan Hamlet of Rajpur. His mother had given three bighas land to Lala Ram on the condition that he would cultivate her land till he lives in the village, and would hand over the possession of the land whenever he leaves the village. Dina Nath Appellant, son of Lala Ram, got his name entered in the column of adhivasi in revenue records 13 or 14 years after the land was given in possession of Lala Ram. Shiv Mangal Singh and his son Chandra Pal got the name of Dina Nath removed from the revenue record, therefore, Dina Nath and his brother Suresh started to nurse bad blood against them. On 6.1.1979, his son Chandra Pal had gone to Mainpuri. He had come to the village by last train. He had brought tobacco of one Thakuri of the same village. On 6.1.1979, at about 9.30 p.m. when he had gone to give tobacco to Thakuri, Shiv Mangal Singh, Netra Pal Singh, Ram Naresh Singh and Ram Singh, who are the residents of the same village, were sitting warning on fire, shrieks of Chandra Pal were heard by them, who was raising alarm, "bachao, bachao". These persons ran to the spot flashing their torches and saw that Dina Nath and Suresh were causing injuries with kanta and knife near the house of Shiv Baran Pasi and Pratap, brother-in-law (sala) of Suresh, caused firearm injuries with country made pistol to Chandra Pal and all these three Appellants ran away but they were seen in the light of torches and moon while running away. Chandra Pal met his instantaneous death at the spot but being night and due to fear of Appellants, Shiv Mangal Singh could not proceed to the police station. He, therefore, lodged F.I.R. in the morning at the police station.

Investigation was done by P.W. 3 S.I. Rajpal Singh, who prepared inquest report, recovery memo of bloodstained and plain earth, site plan, recorded the statement of witnesses Shiv Mangal Singh and other eye-witnesses, arrested Dina Nath and Suresh on 8.1.1979 and submitted charge-sheet against Dina Nath and Suresh on 17.2.1979. Later on S.I. Ram Lal submitted charge-sheet against Pratap. After the case of these three accused were committed to the Court of Session, they faced trial and orders of conviction and sentence were passed against them as mentioned above.

Post-mortem examination on the dead body of Chandra Pal aged about 25 years was done by Dr. A. N. Saxena in mortuary of District Hospital, Mainpuri, on 8.1.1979 at 12 O''clock noon and following ante-mortem injuries were found on his body:

(1) Multiple gun shot wounds of entrance in an area of 12 cm. - 10 cm. On front and inner aspect of right thigh upper third of an average size 0.2 cm. - 0.2 cm. - muscle deep. Their margins were inverted and lacerated. There was no blackening, scorching and tattooing. 17 metallic shots were recovered from muscles of thigh underneath of which laceration of femoral vessels and tissue was found.

(2) Linear incised wound 2 cm. - 1/2 cm. - cartilage deep over pinna of left ear in middle.

(3) Transverse incised wound 3 cm. - 1 cm. - muscle deep on front and left side neck 4 cm. above clavicle bone. The wound was tapering towards the right.

(4) Transverse incised wound 4 cm. - 1/2 cm. - muscle deep 2 cm. below the chin, tapering towards the right.

(5) Transverse incised wound 3 cm. - 1 cm. - muscle deep over chin, tapering towards the right.

(6) Two oblique incised wounds 3.5 cm. - 1 cm. Scalp deep and 3 cm. - 1 cm. - scalp deep on left side of head. 11 cm. above left ear lying 2 cm. apart from each other both of tapering towards the front of left.

12Oz. semi digested food material was found in stomach. Small and large intestines were half full containing faecal matter and gases. Doctor opined that death of Chandra Pal had taken place due to shock and haemorrhage as a result of injuries.

Prosecution examined two eye-witnesses, P.W. 1 Shiv Mangal Singh, who is informant and father of the deceased and P.W. 2 Ram Singh. P.W. 3 police sub-inspector Raj Pal Singh, is the Investigating Officer. P.W. 4 is constable Radhey Shyam, who prepared chick report, P.W. 5 is Dr. A. N. Saxena, who performed autopsy on the dead body of Chandra Pal on 8.1.1979.

The defence case is that there is dispute of house and land, therefore, Dina Nath and Suresh have been involved in the crime and Pratap being of the party of Suresh, has been falsely involved in the crime. It is further alleged that Pratap is not brother-in-law of Suresh. It was alleged that Chandra Pal was a miscreant. He was killed in the dark hour of night by some unknown person and due to enmity, Appellants have falsely been implicated in this case. It is alleged that there is inordinate delay in the F.I.R.

There are two eye-witnesses, P.W. 1 Shiv Mangal Singh and P.W. 2 Ram Singh, who have made consistent statement about the occurrence. It was the month of January and at about 9.30 p.m. if they were sitting before fire at the door of complainant Shiv Mangal Singh, there nothing is unnatural. The dead body including blood was recovered from the place of occurrence, situate near the house of complainant Shiv Mangal Singh, in village Ropan Pur, P. S. Kurra, district Mainpuri. It means the murder was committed at the same place and time. Injuries in the nature of incised wound on head, chin, etc. were found, therefore, it was quite natural that alarm would have been raised by the victim Chandra Pal son of Shiv Mangal Singh and, therefore, arrival of Shiv Mangal Singh and Ram Singh eye-witnesses on the spot and accused being seen by them in the light of torches and moonlit light is worthy to be believed. Learned Counsel for the Appellants submits that there is inordinate delay in lodging F.I.R. because the occurrence is said to have taken place on 6.1.1979 at 9.30 p.m. while F.I.R. was lodged on 7.1.1979 at 7.15 a.m. Police station is at a distance of 8 miles from the place of occurrence. When a son of a person has been killed in the night at about 9.30 p.m., it is night of winter, journey of about 8 miles is to be performed for arriving at the police station and the time of sun rising on 7th January was 7.15 a.m., it seems there is nothing unnatural when the F.I.R. was lodged on 7.1.1979 at 7.15 a.m. It means Shiv Mangal Singh, father of the deceased started for the police station before sun rise. In such circumstances if he thought proper to remain at his residence till 4 or 5 a.m. and thereafter to proceed for the police station, in our opinion the delay in lodging F.I.R. in the morning of 7.1.1979 is well explained and on this ground, it cannot be said that F.I.R. is ante-timed or it suffers from any deliberation or consultation.

There is motive on the part of Appellants for committing murder of Chandra Pal. There is specific version in the F.I.R. supported by the statement of witnesses that 15 or 16 years before, grandmother of the deceased had given 3 bighas of land to the father of the accused, Dina Nath and Suresh for cultivation on the condition that when father and Dina Nath and Suresh or these accused themselves leave the village, the land would have to be given to Shiv Mangal Singh, but 13 or 14 years after Appellant Dina Nath got his name mutated as adhivasi in revenue record, which was got deleted and Shiv Mangal Singh, complainant started himself to cultivate the land, this was the reason due to which Dina Nath and Suresh started to nurse bad blood with Shiv Mangal Singh and his family members. Evidence show that the case was contested between Shiv Mangal Singh on one hand and Dina Nath and Suresh on other. Chandra Pal, deceased being son of Shiv Mangal Singh used to make pairvi in the case and this was the reason that Dina Nath and Suresh started to nurse grudge against Chandra Pal. Not only the land was taken back but these accused persons were asked to vacate the house which was constructed by them on the land of the deceased and to leave the village. Pratap is of the party of Dina Nath and Suresh and this was the case due to which Appellant had motive for committing murder of Chandra Pal.

There is light of torch and moonlit night in which the accused were seen causing injuries to Chandra Pal and running away from the place. Not only one injury but as many as five incised wounds and one gun shot wound were caused. The witnesses had seen from some distance. Alarm was heard by them which was raised by the victim Chandra Pal. Therefore, arrival of the witnesses on the place of occurrence is natural and if they succeeded in seeing the real accused persons, who had caused injuries with knife and country made pistol, it is natural. Even though it is said that Pratap is not real brother-in-law of accused Suresh, but the witnesses were knowing him because he used to visit the village of the complainant, who is the eye-witness of the occurrence. He has no reason to falsely implicate Appellant, who was seen firing and running away from the place where Chandra Pal fell down on the earth in injured condition. P.W. 1 Shiv Mangal Singh has stated that the place where Chandra Pal was killed is at a distance of about 40 or 45 steps from the place where the witnesses were sitting before the fire. If the alarm is being raised by a person aged about 25 years because he is being injured, it is solitary hour of night in the village area. Hearing of the alarm of shrieks of the victim by the witnesses from a distance of 40 or 45 steps, is a fact which deserves to be believed. The distance was not so much that the shrieks could not be heard. The injuries were caused inside village abadi, hence it cannot be believed that some innocent person caused injuries to Chandra Pal in the night and real culprit could not be seen.

Much emphasis has been laid by learned Counsel for the Appellant that one witness Shiv Mangal Singh has stated that police officers reached his village at about 12 or 12.30 noon of 7.1.1979 and by the time the Appellants had left the village. It is submitted that P.W. 2 Ram Singh had stated that the Police-Sub-Inspector had reached the village at about 10 or 11.00 a.m. The difference about the time of the arrival of Police Inspector on the spot in the noon of 7.1.1979 is not so much that the statement of the witnesses may be disbelieved on the ground that they have made contrary statements about arrival of the Investigating Officer on the spot. Both these witnesses have stated that the Investigating Officer reached in the village on 7.1.1979. Such difference about the exact time in the statement of witnesses is natural.

Learned Counsel for the Appellant submitted that there is contradiction about the position of Chandra Pal when the fire was made on him by Pratap. P.W. 1 Shiv Mangal Singh has stated that injuries were caused by Dina Nath and Suresh with kanta and knife and when Shiv Mangal Singh challenged, Pratap fired with country made pistol on Chandra Pal. Then Chandra Pal fell down and died. P.W. 2 Ram Singh has stated that it was moonlit night. He saw that Dina Nath and Suresh were causing injuries to Chandra Pal. When he ran to the spot and challenged, Suresh and Dina Nath left Chandra Pal and in the meantime, Pratap fired on Chandra Pal, causing injuries. Chandra Pal was injured with firearm injuries and he died on the spot. Thus, there is no contradiction in the statement of eye-witnesses about the time when injuries were caused to Chandra Pal with firearm.

Next it is submitted that if there was dispute of land and house, the enmity was with Suresh and not Chandra Pal. It is further submitted that Appellant had no grudge to commit murder of Chandra Pal. The evidence is on record to show that the case which was pending between accused and Shiv Mangal Singh was being contested by Chandra Pal, son of Shiv Mangal Singh. He was a young and active person, therefore, accused had grievance against him, that he was making efforts to dispossess them from the land and the house which was constructed by Dina Nath and Suresh.

It is also argued that no independent witness has been examined in this case. Of course P.W. 1 Shiv Mangal Singh is the father of the deceased but P.W. 2 Ram Singh is of his village. He is not of the family of Shiv Mangal Singh. Ram Singh has no interest in the land and house. Therefore, he cannot be said an interested witnesses of the case. We have gone through the judgment delivered by learned Additional Sessions Judge, Mainpuri and we subscribe to the views expressed therein. There was sufficient source of light of moon and torch. When the witnesses reached the spot which was about 40 or 45 steps, they found sound of gurgling in the throat of Chandra Pal, P.W. 2 Dr. A. N. Saxena has stated that the death of Chandra Pal was possibly from firearm and it should be of 7.1.1979 at 9.30 a.m. Thus, the place, time and nature of the weapons, active role of the Appellants, commission of the crime being seen by the eye-witnesses, etc. are proved by the evidence.

It is submitted that Pratap is not relation of Dina Nath and Suresh. If it is so, Shiv Mangal Singh and Ram Singh have no motive to falsely implicate him in the crime but he used to visit the village, he belongs to the party of Dina Nath and Suresh, he may not be real brother-in-law of Suresh, but if he had interest from the side of the Appellants Dina Nath and Suresh and he caused firearm injuries which were found on the body Chandra Pal, the prosecution evidence deserves to be believed and the Appellants have been rightly convicted u/s 302 read with Section 34, I.P.C. and have rightly been sentenced to life imprisonment.

In view of above discussion, instant appeals do not yield any fruitful result and are hereby dismissed.

The appeals are dismissed. Appellants Dina Nath, Suresh and Pratap are on bail. Their bail is cancelled. Let non-bailable warrant be issued against Dina Nath, Suresh and Pratap by the lower court and they be sent to jail to serve out the sentence.

Let a copy of the judgment along with record be sent down to the lower court for compliance so as to report to this Court within two months.