Sainsar Pal vs State of U.P.

S.I. Jafri, J.—Sainsar Pal, son of Kali Ram President of village Loni, P.S. Baraut. Distt. Meerut has filed this appeal against his conviction Under Sections 302 and 452 IPC and sentence of life imprisonment and 2 years RI respectively recorded by Sri. G. R.S. Tandon, VII Additional Sessions Judge, Meerut by his judgment and order dated 30th May, 1978 in Sessions Trial No. 458 of 1977.

Alongwith the Appellant, Jaibir, Ziley Singh and Smt. Vidya were also tried but they were acquitted by the trial court. In this case Smt. Jaswanti d/o Hans Raj lost her life whereas her father Hem Raj and mother Jai Devi had received injuries. The parties are co-laterals which given below:

Tek Ram ________________________________________________________________________________________________________ | | | | | |

Hemraj Ziley Singh Bhanwar Kaliram At present Lal Singh PW (1) (accused) (murdered w/o Ziley Singh | (16 years back) (accused) | Smt. Vidya accussed) | |_________________ ____________________ | Jai Devi (PW 3) | | Sainsar Pal Jaibir ____________________________________ (accused) (accused) | | | | Ratan Ram Kishan Anaro Jaswanti PW 5 (deceased)

The case of the prosecution is that Kali Ram, the father of Sainsarpal Appellant was murdered about 16 years back prior to the occurrence and Smt. Anaro, Hem Raj PW 1, Ratan Singh PW 5 and Ram Kishan were prosecuted and they were convicted and sentenced by the trial court. However, in appeal Hem Raj and Smt. Anaro were acquitted but the rest were sentenced to undergo 5 years RI at the time when Kali Ram was murdered, Sainsarpal was aged about 2 or 3 years. The motive suggested by the prosecution is that there was deep seeded enmity between the parties which resulted in the murder of Smt. Jaswanti and injuries to Hem Raj and Smt. Jaidevi.

It is alleged by the prosecution that on 30th July, 1977 at about 6.30 p.m., the Appellant armed with pistol and co-accused Jaibir and Ziley Singh armed with pharsa alongwith Smt. Vidya who was armed with lathi entered the house of Hem Raj PW 1 and the Appellant fired which caused injuries to Smt. Jaswanti and the remaining accused assaulted Hem Raj PW 1 and Jai Devi PW 3 with their respective weapons. Smt. Jaswanti on receiving the gunshot injury fell down on the ground and died on the spot. A number of persons rushed to the house of Hem Raj but the accused persons made good their escape. Ratan Singh PW 5 went to the police station Baraut with a report scribed by Baljor alongwith injured Hem Raj and Jai Devi, leaving the dead body of the deceased Smt. Jaswanti in the house and handed over the said report to the Head Constable Narendra Kumar PW 6 at 8.45 p.m. the same day at police station Baraut, the distance being 2 miles from the place of occurrence. The constable prepared the chick report on the basis of the said report and registered case in the General Diary of the police station u/s 302/324 IPC against all the accused. He sent the injured Hem Raj PW 1 and Jai Devi PW 3 to the hospital where their injuries were examined. Dr. R.K. Sharma, Medical Officer, Baraut examined the injuries of Hem Raj at 9.15 p.m. on the same day and he found the following injuries on his person:

(1) Incised wound 10" x 1/4" x skin deep on the Rt. side abdomen started from lower 3rd Rt. chest upto lower abdomen verticle. Margin clear cut regular direction from above downward.

(2) Incised wound 2" x 1/4" x skin deep on the Rt. side thigh upper 3rd front verticle. Margin clear cut regular direction from above downward.

(3) Contusion 1" x 1" on the lower 3rd back Rt. side.

Dr. R.K. Sharma also examined the injuries of Smt. Jai Devi and found the following injuries on her person:

(1) Red contusion 5" x 2" on the back Rt. side upper third.

(2) Red contusion 5-1/4" x 2" on the back left side upper third.

(3) Linear abrasion 6" x 1/4" on the right side bone middle and lower 3rd verticle.

(4) Contusion 2" x 1" on the Rt. forearm back lower 3rd Adv. X-ray.

(5) Contusion 2" x 2" on the back of Rt. hand.

(6) Incised wound 1" x 1/2" muscle deep on the middle finger Rt. hand Distal ? lateral side.

The investigation of the case was handed over to R.S. Pundir PW 10 who left for the police station after the registration of the case in the company of Ratan Singh PW 5 and reached the place of occurrence at about 9.30 p.m. The SI found the dead body of the deceased lying on the ground in the Delhiz of complainant Hem Raj. The Sub-Inspector next morning prepared the inquest on the dead body of the deceased Smt. Jaswanti and sent the same to the mortuary for post mortem examination. He also took the blood stained and unstained earth where the body of the deceased was lying and prepared the (sic) memo Ex. ka. 17. He then recorded the statement of witness Hem Raj and made a search of the house of the accused. He also prepared a search memo Ex. ka. 18. Thereafter, the SI went to the hospital at Baraut and recorded the statement of Smt. Jai Devi.

Dr. Ashok Kumar Dubey conducted the autopsy on the dead body of Jaswanti on 1-7-77 at 4.45 p.m. and found the following ante-mortem injuries on her person :

Gun shot wound of entry twelve in number in an area of 20 cm x 14 cm on the front of chest and upper part of abdomen including both breasts. Average size of wound 1 cm x 1/2 cm margins inverted. No charring or blackening present. Dark clotted blood present.

Gunshot wound of exit 1-1/2 cm x 1 cm on the (R) side back just below the shoulder blade. Dark clotted blood present margins enverted.

Abrasion 15 cm x 3 cm on the (R) arm lower part inner side just above the (R) elbow joint.

Abrasion 4 cm x 1-1/2 cm on the (L) side of the chest 7 cm below (L) nipple.

Abrasion 12 cm x 3 cm in the middle part of chest vertical in direction.

Abrasion 5 cm x 1-1/2 cm on the (L) side of hip joint.

Abrasion 7 cm x 1 cm on inner side of the (L) fore 7 cm above the (L) joint.

Lacerated wound 1/2 cm x 1/2 cm x muscle deep on the inner side of the (L) palm below the wrist.

The investigation of the case was taken over by Hoshiyar Singh on 11-7-78 from R.S. Pundir PW 10. Hoshiyar Singh arrested the accused and took them to the police station on 27th July 1977 whereafter on interrogation Sainsarpal promised to point out pistol. Consequently the investigating officer took Sainsarpal alongwith two witnesses Mohd. Hanif and Ramzani to the promised place of recovery along with two constables on a jeep. After going for a mile and half, the Appellant Sainsarpal took out the pistol and one cartridge after digging the ground of the canal patri in the presence of the aforesaid two witnesses Hanif PW 8 and Mohd. Ramzan. The Sub-Inspector prepared the memo and also put the recovered pistol and cartridges in a sealed cover. Thereafter the SI went back to the Police Station and made an endorsement in the General Diary of the Police Station. The accused were sent to the jail subsequently. After completing the investigation Hoshiyar Singh PW 7 submitted the charge sheet against the accused persons.

The accused pleaded not guilty to the charge and stated that he was falsely implicated in the case on account of enmity.

The prosecution examined in all 10 witnesses in support of its case. Out of them Hem Raj PW 1 and Smt. Jai Devi PW 3 and Ratan Singh PW 5 were examined as eye witnesses of the occurrence.

Ratan Singh PW 5 has narrated the occurrence in detail. He has deposed that on the day of occurrence at about 6.30 p.m. he was at his house in his village along with his father Hem Raj PW 1, his mother Smt. Jai Devi and sister Smt. Jaswanti. Shortly, thereafter, Sainsarpal armed with pistol, co-accused Vidyawati with a lathi and Jaibir and Ziley Singh armed with pharsas entered his house and challenged to kill them. Smt. Jaswanti asked the accused not to kill them. Smt. Jaswanti asked the accused not to kill but Sainsarpal fired with his pistol which hit Smt. Jaswanti on her chest and she fell down and died instantaneously. He further deposed that the remaining co-accused had assaulted Hem Raj, Smt. Jai Devi with their respective weapons. On his intervention, he was also fired at by Sainsarpal but it did not hit him. On the alarm raised by him, Charna, Balkar and Sheo Ram also arrived there who had intervened and saved him. However, the accused had made good their escape after the occurrence. He then got the report of the occurrence scribed by Baljor in the court-yard of his house and along with his mother and father he went to the police station where he handed over the report to the Head Constable. He further deposed that his mother and father were examined in the hospital. It was also stated by him that there was enough blood lying on the ground where Smt. Jaswanti had fallen. He also deposed that Charna and Sheo Ram had colluded with the accused and they are not prepared to give evidence. Hemraj PW 1 and Jai Devi PW 3 have fully corroborated the evidence of Ratan Singh. Though these witnesses are all partisan but they are natural witnesses of the occurrence as the occurrence had taken place inside their house in broad day light. Hemraj PW 1 and Jai Devi PW 3 are also injured witnesses. They have received number of injuries and considering the nature of injuries we are unable to hold that injuries were fabricated or self inflicted. No suggestion was put to the prosecution witnesses by the defence that the injuries were not received in this incident. It is no doubt true that Rataa Singh is the son of Hemraj PW I but merely on this score, his evidence cannot be brushed aside. We have very carefully gone through the evidence of the witnesses and we are of the view that the trial court fell in error in holding that the injuries of Smt. Jai Devi and Hemraj were not received in this occurrence. The finding of the trial court is not based on cogent and reliable evidence but it is based on surmises and conjectures. The evidence of the complainant Ratan Singh is fully corroborated by the evidence of Hemraj PW 1 and Smt. Jai Devi PW 3 who are not only natural witnesses but also injured. The presence of Hem Raj and Jai Devi on the spot cannot thus be doubted by any stretch of imagination. The evidence of these witnesses also inspires confidence and we are fully satisfied that the prosecution has fully succeeded in bringing home the charge against the Appellant Sainsarpal.

The trial court his clearly fallen in error in acquitting co-accused Jaibir, Ziley Singh and Smt. Vidya. These accused were named in the FIR which was lodged within two hours of the occurrence. Moreover, the prosecution witnesses viz. Hem Raj PW 1 and Jai Devi PW 3 are injured witnesses and they have consistently named them in their evidence There is no infirmity in their evidence for disbelieving them. Their evidence is further corroborated by the medical evidence produced in this case. The occurrence had taken place in broad day light at their house and as such there is no reason for them to shield the real culprit and falsely implicate the accused Jaibir, Ziley Singh and Smt. Vidya. However, we are fully satisfied that the acquittal of Jaibir, Ziley Singh and Smt. Vidya has not at all adversely affected the case against Sainsarpal.

As to the motive we are of the view that the Appellant Sainsarpal had a strong motive to commint the offence as according to the prosecution evidence, the father of Sainsarpal was done to death about 16 years back when he was about 2 or 3 years old. In that case, Kali Ram, the father of Sainsarpal was murdered in which Hem Raj PW 1, Ratan Singh PW 5, Smt. Anaro and Ram Kishan were prosecuted. However, in appeal Hem Raj and Smt. Anaro were acquitted by the High Court but the rest were convicted and sentenced. Under the circumstances as discussed above, Sainsarpal had a very strong motive to take revenge of his deceased father.

In the end it was pointed out that the inquest report Ex ka. 14, the distance of place of occurrence from the police station has been mentioned by the Sub-Inspector as 5 Kilometers whereas in the chick report the head constable has mentioned the distance of place of occurrence from the police station as 2 miles. On the basis of this conflict, it was submitted by the learned Counsel for the Appellant that at the time of preparation of inquest which commenced at 7 a.m. on 1-1-77, the chick report was not in existence. Reliance has been placed on the decision of a Division Bench of this Court 1984 ALJ 1303, Shyama Charan v. State of U.P. decided by Hon. B.C. Jauhari, J. and Hon. S.I. Jafri, J. wherein it was held that if there is conflict between the distance of police station mentioned in the chick report and the inquest report along with other infirmities exitence of the chick report at the time of the preparation of Inquest is subject to great doubt. No doubt in this case the difference between the chick report and the inquest report regarding the distance of the place of occurrence from the place of police station is at variance but the inference drawn by the Division Bench cannot be applied in favour of the accused in all cases as it will depend on the facts and circumstances of the individual cases. In the instant case, the time and place of occurrence was not challenged by the defence. It was not even suggested to the informant Ratan Singh PW 5 in his cross-examination by the defence that he did not hand over the written report Ex. ka. 5 to the Head constable Narendra Kumar PW 6 at 9.30 p.m. on the day of the occurrence. Under the circumstance the difference in the distance as given in the chick report and the inquest report cannot be held to be of any material significance in this particular case in view of the facts and circumstance of this case. The possibility that the Investigating Officer while preparing inquest report mentioned the distance in it on his own estimate without noting the distance given in chick report cannot be ruled out. Moreover, the investigating officer was not confronted regarding the aforesaid variance the distance in his cross-examination by the defence.

In view of the facts and circumstances as discussed above we are of the view that the prosecution has succeeded in bringing the guilt of the Appellant beyond any reasonable doubt in this case and under the circumstance, the conviction and sentence recorded by the trial court deserves to be upheld.

In the result, the appeal is dismissed and the sentence recorded by the trial court are upheld. The Appellant is on bail. He shall be taken into custody forthwith to serve out the sentence.