Shiv Sagar vs State of U.P.

R.C. Deepak, J.—The present criminal appeal has been filed by the accusedappellants Shiv Sagar, Keshava, Sushil, Parmeshwar, Sunder Lal, Parikrama, Kali Prasad and Bhawani Prasad against the judgment and order dated 29.3.1982 passed by the learned II Addl. District & Sessions Judge. Barabanki in Sessions Trial No. 191 of 1980 whereby he convicted the accusedRam appellants under sections 302/149, 147 and 148 IPC and sentenced them to life imprisonment under section 302/149 IPC, 2 years R.I. under section 148 IPC and 1 year R.I. under section 147 IPC.

The accusedappellants Shiv Sagar, Parmeshwar, Sunder Lal and Kali Prasad died during the pendency of this appeal and vide order dated 17.9.2007 their appeal stood abated.

Now the appeal of Keshava, Sushil, Parikrama and Bhawani Prasad is listed before us for hearing.

The following short sketch of the pedigree would disclose the relationship of the parties.

Ram Ratan

Shiv Nath

First Wife

Bhagwati Prasad Raj Rani (P.W. 1)

Ram Kishore (deceased) Shiv Kumari (P.W. 3)

I Second Wife

Parmeshwar (appellant) Sunder (appellant)

Kamal Shanker @ Nanku Ram Shanker @ Gopal

Shiv Sagar (appellant)

Keshava Sushil

(appellant) (appellant)

Keshava (appellant)

Sushil (appellant)

Appellant Kali Prasad and Bhawani Prasad are brothers and they are brotherinlaw of accusedappellant Keshav. Parikrama is said to be the associate of Shiv Sagar, but this fact has been denied by the appellants, but the remaining relationships are not under dispute. The further brief facts of the case are that Parmeshwar, the fatherinlaw of Shiv Kumari, wife of deceased Ram Kishore alias Kishore, had married to two women. From his first wife. Ram Kishore and Govind were born. The second wife is alive having two sons named Kamal Kishore alias Nanku and Ram Shanker alias Gopal. Due to some differences, Parmeshwar had separated Ram Kishore from his family and he was living separately. There was a dispute in regard to the sahan land between Ram Kishore and Shiv Sagar, but due to the intervention of the village people, the matter was reconciled, but prior to 2/3 months from the murder of Ram Kishore, Shiv Sagar used to threaten him for harassment. Bhagwati and Raj Rani are husband and wife. Both are old. Bhagwati was suffering from ailment. Ram Kishore served him at his level best, as a consequence Bhagwati was pleased with him and he expressed his desire to transfer some of his property to Ram Kishore. In this regard, the relevant documents/khatauni etc. were required.

It is alleged that on 26.7.1979 Ram Kishore (deceased) and Raj Rani had gone to Ram Nagar by cycle to meet Badri, the lekhpal to obtain the relevant documents, but the lekhpal was not available. Thereafter, they had been returning to the village. When they reached near the garden of kalka and field of Munim of the village, the way leading ahead was full of mud and water where the cycle could not run. Ram Kishore asked Raj Rani to come down from the cycle and both of them came down from the cycle. Ram Kishore was on foot with cycle followed by Raj Rani. At about 9:30 a.m.. as soon as Ram Kishore reached the corner of the garden of Kalka, first of all accusedappellants Parikrama and Sunder Lal came out from the bush nearby and exhorted. Thereafter, the accusedappellants Shiv Sagar, Keshava, Sushil, Parmeshwar, Sunder Lal, Parikrama, Bhagwati, Kali Prasad and Bhawani Prasad armed with lathis, ballams and hand grenades came there and surrounded Ram Kishore and caused injuries to him with their respective weapons and committed his murder. Ram Kishore died of the injuries on the spot. Raj Rani raised alarm upon which Shiv Sahai and Jagannath, who were scrapping grass there, reached the place of occurrence and witnessed the occurrence. Raj Rani went to the house of Shiv Kumari, the wife of the deceased and informed her in regard to the murder of her husband. Shiv Kumari rushed to the place of occurrence and saw that the dead body of her husband was lying there. She got an application (Ext. Ka1) prepared by Bhawani Prasad in regard to the murder of her husband and went to the police station and submitted the application, on the basis of which a case as case crime No. 137 of 1979 under Sections 147, 148, 149, 302 IPC was registered against the accused at the police station Ram Nagar at 11:35 a.m. The distance of the police station being 2 miles. The chik report is Ext. Ka2.

The investigation into the case was entrusted to Sri Kalpati Ram, S.I.. who recorded the statement of Shiv Kumari at the police station, visited the place of occurrence, took the dead body of the deceased Ram Kishore into his possession and sent it in a sealed cover for postmortem examination. He prepared the site plan of the occurrence (Ext. Ka11), took the bloodstained and unstained earth from the place of occurrence, prepared the recovery memo (Ext. Ka10) and sent it for chemical examination and recorded the statements of other prosecution witnesses.

Dr. Gopal Swaroop (P.W.5) conducted the autopsy on the body of the deceased Ram Kishore and he found the following injuries on his person:

Anti Mortem Injuries:

Incised wound 3 cm. x 1 cm. x bone deep margins sharp over the left side of the forehead 2.5 cm. above the left eye brow.

Abrasion 2 cm. x 1 cm. x black in colour over the Rt. Lower arm 5 cm. below the cubital fossa on the palmer aspect.

Abrasion 2 cm. x 1 cm. x black in colour over the Rt. Thigh in the middle 6 cm. above Rt. Knee joint.

Abrasion 2 cm. x 1 cm. x black in colour over file Rt, Lower leg just above the Rt. Knee joint.

Firearm wound 20 cm. x 15 cm. x cavity deep part of stomach loop of large intestine. Liver on the Rt. Side upper part of the abdomen coming out 10 cm. below the Rt. Nipple along with Blood stained fluid oozing out. Margins having charring & blackening present. 6. Firearm wound 12 cm. x 8 cm. x muscle bone deep on the lateral aspect of the left knee joint 45 cm. above the Rt. lateral malleolus. 8. The doctor determined that the cause of the death of the deceased was injuries No. 1 & 5.

After completing the investigation into the case, he submitted the chargesheet (Ext. Ka12) under Sections 147, 148, 149 and 302 IPC against the accused persons.

The charges were framed against the accused, who pleased not guilty and claimed to be tried.

To prove its case, the prosecution examined as many as six witnesses. Smt. Raj Rani (P.W.I), Jagannath (P.W.2) and Smt. Shiv Kumari (P.W.3) are the witnesses of fact and the remaining are formal ones.

The Trial Court on the basis of evidence on record convicted the accusedappellants under sections 147,148, 302/149 IPC and sentenced them accordingly, against which the present appeal has been filed already referredtoabove.

We have heard Sri Nagendra Mohan, learned Counsel for the accusedappellants. Sri R.P. Shukla, learned A.G.A. for the State, Sri Siddharth Sinha, learned Counsel for the complainant and perused the record.

Learned Counsel for the accusedappellants has argued as follows:

That no doubt the occurrence is said to have taken place in the broad day light. The first information report was made promptly. The presence of blood and the dead body on the spot also does not dispute the place of occurrence, but the presence of prosecution witnesses Raj Rani and Jagannath is highly doubtful, as there is material contradiction in the statements of these witnesses and that of medical evidence, as it would appear from their statements that accusedappellants Shiv Sagar and Keshava were alleged to have armed with hand grenades, Sushil with spear and the remaining accusedappellants with lathis, that they caused injuries to the deceased with their respective weapons, but the absence of lathi and spear injuries and the presence of firearm injury (injury No. 6) on the person of the deceased belie the prosecution case, as injury No. 6 is not a result of the explosion of hand grenade. No explanation of this injury has been advanced by the prosecution.

Learned Counsel for the accusedappellants concluded expressing that the possibility of false implication of the accusedappellants due to enmity cannot be ruled out.

On the other hand, learned Counsel for the State has strongly contradicted the arguments of the learned Counsel for the accusedappellants by submitting that injury No. 1 can very well be said to have been caused by spear. Similarly, injury No. 6 is a result of blast of hand grenade as injury No. 5 is the blast injury and injuries No. 2, 3 & 4 are abrasions can be caused by lathis.

To have analysis/discussion on the evidence on record, it is relevant to mention here that there is no dispute that Bhagwati Prasad was not an old and ailing person. This fact has not been challenged by the accusedappellants that Ram Kishore, the deceased did not serve him and he was not pleased with his service and expressed his desire to transfer some of his property. The inthakhab/khasra/relevant documents in regard to the ownership of the land of Bhagwati Prasad was necessarily required. Raj Rani is the wife of Bhagwati Prasad. She lias given a pictorial description how she and Ram Kishore went to Ram Nagar by cycle to meet lekhpal named Badri, but he was not available. They returned back. Both of them came down from the cycle near the place of occurrence because of the presence of water and mud in the way and the cycle could not run in the mud and water. Ram Kishore was on foot with the cycle and Raj Rani was following him. She has specified the weapon in the hands of the accused. She deposed that Shiv Sagar and Keshava used hand grenade upon the deceased, which generated the smoke. Sushil caused spear injury and the remaining caused lathi injuries to him. The generation of smoke must have obstructed this witness to see the hit of lathis on the body of the deceased. The distance of the house of Shiv Kumari, wife of Ram Kishore was at a distance of 21/2 furlangs. Raj Rani is the first person to have informed Smt. Shiv Kumari that her husband was murdered disclosing the names of the accused, place and time of occurrence, the weapons used and the manner of assault, which formed the basis of first information report. Had she not been accompany in the deceased, the pictorial description of all these relevant facts in regard to the occurrence would have not been disclosed by her. Therefore, this witness seems to be wholly reliable witness and her presence cannot be doubted. Similarly, the presence of Jagannath (P.W.2) appears to be natural, as he was scrapping grass in the grove of Shiv Sahai where the occurrence took place. At the time of occurrence, his presence cannot be put under dispute merely because there appears some contradictions in regard to the weapon in the hand of the accxised. Shiv Kumari is the wife of the deceased. She is not an eyewitness of the murder of her husband, but her statement is material, as she has disclosed the bitter relationships between the deceased and the accusedappellants and their motive to eliminate her husband and also lends support to the presence of Raj Rani at the time of occurrence.

Much emphasis has been laid by the learned Counsel for the accusedappellants that there is material contradiction in the eyewitness account and that of medical evidence. Now we detain ourselves to examine and consider injury No. 1, 5 & 6. Whether injury No. 1 is a spear injury and injuries No. 5 & 6 are the result of explosion of hand grenade. These injuries are reproduced as under :

Injury No.A : Incised wound 3 cm. x 1 cm. x bone deep margins sharp over the left side of the forehead 2.5 cm. above the left eye brow.

Injury No. 5 : Firearm wound 20 cm. x 15 cm. x cavity deep part of stomach loop of large intestine. Liver on the Rt. Side upper part of the abdomen coming out 10 cm. below the Rt. Nipple along with Blood stained fluid oozing out. Margins having charring & blackening present.

Injury No. 6 : Firearm wound 12 cm. x 8 cm. x muscle bone deep on the lateral aspect of the left knee joint 45 cm. above the Rt. lateral malleolus.

Dr. Gopal Swaroop (P.W.5) has performed the autopsy on the person of the deceased and his statement has been recorded in the Trial Court. This witness has not denied that injury No. 1 is not of spear injury. Similarly, the injuries No. 2, 3 & 4 are abrasions and according to him these injuries can be caused by the pressure of the lathis. Dr. Gopal Swaroop has admitted that injury No. 5 is the result of blast of hand grenade, but he has categorically denied the injury No. 6 to be the result of blast of hand grenade, but it is the outcome of firearm. The solitary reason disclosed by this witness denying injury No. 6 to be of blast is that there is no blackening and charring in this injury i.e. injury No. 6, but it is relevant to mention here that this witness has mentioned injuries No. 5 & 6 as firearm wounds, that injury No. 6 is on the lateral aspect of the left knee joint 45 cm. above the right lateral malleolus, that the deceased, at the time of his murder, was putting paijama and the paijama was found torn, as is evidently clear from the panchayatnama (Ext. Ka6). This may be the reason for nonappearance of blackening and charring in this injury.

In view of the above discussion, we are unable to accept the arguments of the learned Counsel for the accusedappellants to the effect that injury No. 6 is not the blast of the hand grenade.

The accusedappellants Parikrama and Bhawani Prasad are alleged to have caused lathi injuries to the person of the deceased. Injuries No. 2, 3 & 4 are abrasions. According to P.W.5, these injuries can be caused with the pressure of lathis, but we are of the view that normally abrasions do not occur by the lathi blows, therefore, in our view the appellants Parikrama and Bhawani Prasad are entitled to be given the benefit of doubt and we extend it to them. Their conviction and sentence under sections 302/149, 147 and 148 IPC is hereby setaside and their appeal stood allowed.

But taking into account the evidence on record and the discussions made above, we arrive at an irresistible conclusion that the appeal of accusedappellants Sushil and Keshava lacks merit and deserves to be dismissed. Consequently, the criminal appeal of accusedappellant Sushil and Keshava is dismissed. The order of conviction and sentence is affirmed and maintained. They are on bail. Their bail bonds are cancelled and sureties are discharged. They are directed to be taken into custody forthwith to serve out the sentence.

The certified copy of the judgment be immediately sent to the Chief Judicial Magistrate concerned for compliance.