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

M.C. Jain, J.—Both these criminal appeals arise out of the judgment and order dated 16.12.1980, passed by Sri Bhanwar Singh, the then VII Ith Additional Sessions Judge, Agra, in Sessions Trial No. 359 of 1980. The Appellant in Criminal Appeal No. 2912 of 1980 is Shrilal whereas Amar Singh is the Appellant in Criminal Appeal No. 2952 of 1980. Both of them have been convicted u/s 302, I.P.C. read with Section 34, I.P.C. and sentenced to life imprisonment. Both of them were allegedly armed with knives and committed the murder of Bachchu Singh between the night of 4/5.4.1980 at about 1 O''clock near the brick-kiln of Durga Prasad in village Khera Pangai, P.S. Tajganj, district Agra. The report was lodged on 5.4.1980 at 8.15 a.m. by Shiv Singh P.W. 3. The distance of the police station from the place of occurrence was about 5 kms.

Broad spectrum of the case may be set forth for the appreciation of the subsequent discussion. Bachchu Singh deceased and Veerpal were the nephews of informant Shiv Singh P.W. 3. On 4.4.1980 at about 10 a.m., they had gone to see a fair in village Semari Tal. In the fair at about 1 p.m., the two accused Appellants teased Km. Malti Devi P.W. 1 sister of Bachchu Singh and Veerpal. Km. Malti Devi complained of it to her brothers Bachchu Singh and Veerpal who were annoyed on hearing about her teasing by the accused Appellants. They gave a beating to them and insulted them for such misbehaviour. This occurrence was witnessed by Udal, Nanhey P.W. 4 and Udaibir Singh P.W. 8. They pacified Bachchu Singh and Veerpal and rescued the accused persons from their clutches. After this incident, the accused persons went away issuing a threat that they would kill Bachchu Singh and Veerpal by the same night to take revenge of their insult. Bachchu Singh and Veerpal with their sister Km. Malti Devi also returned home from the fair after this incident.

Again, Bachchu Singh accompanied by some other boys of the village, went to the fair in the night at about 9 p.m. to hear the holi (songs chanted by the villages in the fair). After hearing holi songs, Bachchu Singh set out for his village at about 2 a.m., in the night. When he reached near the brick-kiln of Durga Prasad, the two accused persons with their other two companions who were putting on red shirts accosted Bachchu Singh and killed him with knives and kachcha half bricks. Bachchu Singh raised hue and cry. His shrieks attracted the witnesses Dal Chand, Niranjan Singh P.W. 6 and Darab Singh P.W. 7 who were going in the night to hear the holi songs in the fair. They challenged the assailants viz., the present two Appellants and their two unknown companions. Before they would come nearer to the place of occurrence, the assailants finished their job in the sight of the said witnesses and escaped towards the west of the place of occurrence. The witnesses saw the assailants killing the deceased in the torch light as each of them had a torch with him. Amongst the four assailants, present two Appellants were very well identified by the witnesses, while the remaining two remained unidentified. When the witnesses reached near Bachchu Singh, he was groaning and crying of pain and within a second he breathed his last. Dal Chand informed the family members of Bachchu Singh. On receiving information, the family members of the deceased reached at the site of occurrence and saw Bachchu Singh lying dead in a pool of blood. Due to fear, no body dared to go to the police station in the night to report about the incident. In the morning, three constables, who were on duty in fair, reached at the site and guarded the dead body. Leaving the dead body to be guarded by them and the family members of the deceased and some villages who had collected there, Shiv Singh P.W. 3 reached the police station and lodged the F.I.R. at 8.15 a.m., as stated earlier. The investigation was taken up by S.I. Ram Niwas Mishra P.W. 13. He reached the spot, prepared the inquest report of the dead body of the deceased and busied himself with other activities related to the investigation of the case. The dead body was sent for post- mortem which was conducted on 6.4.1980 at 3 p.m. by Dr. K. P. Singh P.W. 5. The deceased was 18 years of age and about 1-1/2 days had passed since he died. The following ante- mortem injuries were found on his person:

(1) Lacerated wound 1" - 2/10" - upto the bone deep upper side head 3" above the left ear.

(2) Incised wound 3/10" - 1/10" - 1" on the left (punctured wound) side neck. 1" below on the outer left ear.

(3) Contusion 6" - 2-1/2" on the left side angle from mandible extending to the ear.

(4) Abrasion 4-1/2" - 1-1/2" on the right scapular region.

(5) Abrasion 2" - 1-1/2" on the right side neck 1" above the clavicle.

(6) Abrasion 1" - 1/2" on the right outer part of the heel.

Both eyes were blue and swollen. On internal examination there was found a depressed fracture of the left parietal bone corresponding to injury No. 1. The membranes and brain were congested. The cause of death was coma as a result of injury No. 1 (head injury).

On the arrest of Amar Singh, his bushirt was found to be blood stained which was got removed by the Investigating Officer.

The defence was of denial and of false implication. According to Amar Singh, he had been falsely implicated because of party factions between Jats and Jatavas of village Pachgai Khera, he being Jatav and the deceased being Jat. Shrilal stated u/s 313, Cr. P.C. that Shiv Singh and others were jealous of him because he had constructed two storeyed pakka house. He being a Jatav, his such prosperity was not digested by them.

The prosecution, in all, examined 13 witnesses. No witness was produced by the defence.

None responded from the side of the Appellants on the revision of the list. On record, Amar Singh is represented by Sri S. K. Chaturvedi, Sri Tapan Ghosh and Sri V. K. Sharma, advocates and Appellant Shrilal is represented on record by Sri S. S. Tiwari, Sri K. K. Srivastava and Sri V. K. Sharma, advocates. We have heard Sri G .S. Bisaria, learned A.G.A. from the side of State. We propose to decide the appeals on merits.

Having gone through the record and evidence and after hearing learned A.G.A., we intend to deal with the important aspects of the matter in succeeding discussion.

The incident took place at about 1 O''clock in between the night of 4/5.4.1980 at the outskirts of village Semari Tal and the report was lodged by Shiv Singh P.W. 3 on 5.4.1980 at 8.15 a.m. at P.S. Tajganj. The distance of the police station from the place of occurrence was about 5 kms. We note from the judgment of the lower court that an argument was raised there about late lodging of the F.I.R. However, on consideration, we find that there was satisfactory explanation as to why the report could not be lodged earlier. The incident having been witnessed by Niranjan Singh P.W. 6, Darab Singh P.W. 7 and Dal Chand, one of them, namely, Dal Chand rushed to inform the family members of the deceased. The distance of the house of the deceased from the place of occurrence was about 1-1/2 furlongs. Having reached there, Dal Chand narrated the incident to the family members of the deceased whereafter they rushed to the site of occurrence finding the victim to be dead. It has come in the evidence of the eye-witnesses and also Shiv Singh informant P.W. 3 that half of the dead body of the deceased was lying in the nali and half of it was outside. Naturally, it was decided to remove the dead body from the nali and keep at even place. On being taken out from the nali, it was placed on the chak road. Obviously, it must have consumed sometime. Still, it was dead of night. Not even Shiv Singh, as stated by him, was prepared to go to the police station at that hour out of fear which was at a distance of about 5 kms. The report was got written by him by Kalyan, as he himself suffered some injury in his finger while operating his tractor earlier. Further, the cycle which Shiv Singh used for reaching the police station went out of order in the way due to chain breaking as stated by him. He went to the shop of one Inder Singh Yadav in Semari Tal but since it was still early in the morning, no mechanic had turned up till then. Resultantly, he had to leave the cycle at the shop of Inder Singh Yadav and had to walk on foot upto the police station Tajganj. He reached there at 8.15 a.m. to lodge the F.I.R. The F.I.R. mentions this fact too that due to fear none could dare to reach the police station in the night to lodge the F.I.R. To come to the point, lodging of the F.I.R. on 5.4.1980 at 8.15 a.m. is very well explained and the defence could not score any point by complaining delay in lodging the F.I.R.

The second aspect is of motive. It is found that both the Appellants Shrilal and Amar Singh had immediate and strong motive against the deceased. Km. Malti Devi P.W. 1, Veerpal Singh P.W. 2 and Udai Veer Singh P.W. 8 are the witnesses of the earlier incident which took place on 4.4.1980 at about 1 p.m. in the fair of Semari Tal. Km. Malti Devi P.W. 1 is the own unmarried sister of the deceased and Veerpal Singh P.W. 2 is the brother of the deceased. It had so happened in the fair at about 1 p.m. that the accused Appellant Amar Singh had placed his foot on the chappal of Km. Malti Devi. At this mischief, she had raised objection. Amar Singh was at that time accompanied by Shrilal. In consequence of the objection raised by Km. Malti Devi, both of them had started abusing her and when she disclosed their mischief and misbehaviour to her brothers-Bachchu Singh deceased and Veerpal Singh P.W. 2, they took ill of it and gave beating to both of them. Bachchu Singh had even given shoe beating to Amar Singh as stated by Veerpal Singh P.W. 2. He (Veerpal Singh P.W. 2) had also beaten him up. Udaibir Singh P.W. 8 and Udal Singh had intervened in the matter and got them separated. However, the two accused Appellants had taken this insult deep inside and while going away, both of them issued threat that they would kill Bachchu Singh by night. This earlier incident is found mentioned in the F.I.R. too. It is noted from the impugned judgment that the defence wanted to make capital out of an admission of Km. Malti Devi that day she had attended the school and school hours were 12 to 2 p.m. It was reasoned that it being so, she could not at all be present in the fair at about 1 p.m. However, it was crystal clear that she, a girl aged about 12 years only, happened to say so under some confusion. 4.4.1980 was actually a holiday, being Good Friday. Therefore, there could be no question of school being open on that day. The learned trial Judge has well dealt with this aspect of the matter while rejecting the argument of the defence that Veerpal Singh P.W. 2 fully corroborated the version of Km. Malti Devi P.W. 1 as regards the earlier incident, he having also joined Bachchu Singh deceased in beating the two Appellants when Km. Malti Devi had complained to them about the mischief of one of them Amar Singh in placing foot on her chappal. The testimonial assertions of the sister and brother were corroborated by the independent witness Udaibir Singh P.W. 8, who had intervened and separated the two parties. It is there in his testimony too that the two Appellants had left the scene, saying that they would avenge themselves of the insult by killing Bachchu Singh and Veerpal Singh by night. This witness is neither inimical to the accused Appellant nor friendly to the members of the family of the deceased. No time gap had intervened which could heal up the bruised feelings of the accused Appellants. They got an opportunity the same night and by joining their two associates murdered Bachchu Singh upon whom they could lay hands that very night. They were in search of an opportunity which came handy to them as he had again gone to the fair in the night. The evidence adduced by the prosecution about the earlier incident was perfectly believable and the accused Appellants, as we said, had a very strong motive to commit this crime.

Thirdly, the eye-witness account rendered by Niranjan Singh P.W. 6 and Darab Singh P.W. 7 was capable of inspiring confidence. Both of them had been named as such in the F.I.R. It consistently flows from their testimony that the occurrence took place around 2 O''clock in the night. Both of them had started from their village at about 1.45 a.m. and within a few minutes had reached near the place of occurrence where they heard cries of a lad in distress. The distance of their village from the spot was less than half km. Within seconds, they reached the site and saw the accused Appellant killing the deceased. As per the post-mortem report and the statement of Dr. K. P. Singh P.W. 5 also, killing could have taken place at about 2 O''clock in the night. It is there in the testimony of Niranjan Singh P.W. 6 that, he accompanied by Darab Singh P.W. 7 and Dal Chand, was going towards Semari Tal to enjoy songs in the fair. He (Niranjan Singh) had a torch and lathi whereas Darab Singh and Dal Chand had torches. Keeping of torches at that hour of night was natural. The cries of a lad in distress had attracted these witnesses. From a distance of 10-20 paces Niranjan Singh P.W. 6 saw the accused Appellants near the brick-kiln killing the deceased. As regards the place of occurrence, Darab Singh P.W. 7 also gave the same version. The site plan prepared by the Investigating Officer shows that the way from Pachgai (village of these witnesses) to Semari Tal goes north-south from the brick-kiln of Durga Prasad.

We note that Niranjan Singh P.W. 6 tried to help the accused Appellant Shrilal while in the witness box by omitting to identify him in the Court. A careful reading of his statement makes it abundantly clear that he did so in an attempt to provide Shrilal accused a base to create a dent in the prosecution version so far as he was concerned. At the start of his statement, Niranjan Singh P.W. 6 had named both the accused Appellants and two unknown persons as the assailants of the deceased Bachchu Singh. He stated that Amar Singh and an unknown person with red shirt were assaulting the deceased with knives whereas Shrilal and another unknown person with red shirt were assaulting the deceased with bricks. Though Shrilal accused Appellant was present in the Court, but he defaulted in identifying him. He did so deliberately. Shrilal was the resident of his village as admitted by him in his cross-examination. It could not at all be believed that he (Niranjan Singh P.W. 6) did not know Shrilal accused Appellant living in the same village. Niranjan Singh P.W. 6 clearly stated that Amar Singh Appellant was one of the assailants who was assaulting Bachchu Singh with knife, but assumed a lukewarm posture as regards Shrilal accused Appellant by omitting to identify him in the Court, though stating that he and one unknown person with red shirt were assaulting the deceased with bricks. An argument was raised before the learned trial Judge from the side of State that Shrilal was a wealthy man and he might have exercised his influence on Niranjan Singh and succeeded in winning him over. There is no evidence in this behalf and, really speaking, it is difficult to find any evidence regarding the winning over of a witness by the accused. But it is crystal clear that Niranjan Singh P.W. 6 had deliberately omitted to identify Shrilal in the Court to provide him a defence base. He as well as Darab Singh P.W. 7 had flashed their torches on hearing cries of a boy and had then witnessed the incident of the assaulting of the deceased by four persons out of whom two were the present Appellants. Amar Singh was assaulting the deceased with a knife and Shrilal accused Appellant with brick. The testimonial assertions of Niranjan Singh P.W. 6 and Darab Singh P.W. 7 taken together conclusively proved the involvement of both the accused Appellants in committing murder of Bachchu Singh. It may also be stated at the risk of repetition that both of them had strong motive to commit this crime and they were together in the fair the preceding day where the earlier incident with that Km. Malti Devi P.W. 1 had taken place and they had been beaten up and insulted by Bachchu Singh and Veerpal Singh P.W. 2 over the issue of mischief played by them with Km. Malti Devi.

The presence of both these witnesses at the scene of occurrence is well explained that they were going to hear bhajans at Semari Tal fair. The enjoyment of hearing songs/bhajans is usual source of entertainment for the villagers. It is also gleaned from the testimony of the two witnesses that interesting bhajans were chanted only after midnight, though the programme started at about 11 p.m. Thus, there was nothing unnatural if these two witnesses were going to hear bhajans from their village at about 1.45 a.m. Giving knife blows to the deceased by Amar Singh was spoken not only by Darab Singh P.W. 7 but by Niranjan Singh P.W. 6 too (who developed a soft corner for Shrilal by omitting to identify him in Court to provide a base for defence). The testimony of Darab Singh P.W. 7 is clinching and beyond ray of doubt against Shrilal too that he used brick in killing the deceased.

An argument was also raised before the learned trial Judge from the side of accused that there was only one knife injury sustained by the deceased whereas according to Niranjan Singh P.W. 6 and Darab Singh P.W. 7, Amar Singh and one another unknown person attacked the deceased with knives. We note that Darab Singh P.W. 7 stated that in his presence Amar Singh gave only one knife blow which struck the neck of the deceased. Incised wound found on the person of the deceased was on the neck. It could be caused by knife. Suffice it to say in this regard that it is just possible that blow(s) given by the other person missed the target and did not strike on the person of the deceased. A look at the post-mortem report shows that four assailants including present two Appellants had targeted the head of the deceased and possibility cannot be ruled out that some blows missed the target. The point of the matter is that the present two accused Appellants and two unknown persons acted in concert. Amar Singh used a knife and Shrilal made use of brick in assaulting the deceased. The deceased did sustain injuries capable of being caused by knife as well as brick. The ante-mortem injury Nos. 1 and 3 could be caused by brick blows. Injury No. 1 was a lacerated wound which had caused depressed fracture of parietal bone capable of being caused by brick blow. The impact of other blows might have resulted in contusions and abrasions as found on the dead body of the deceased. Thus, the ocular and medical evidence completely reconcile. The halves of kachcha bricks were found lying by the Investigating Officer near the dead body and they were blood stained as per the report of Chemical Examiner. The human blood was found on these kachcha bricks as per the report of Chemical Examiner on record.

Fourthly, it is also pertinent to state that the bushirt (Ext. 1) was got removed by the Investigating Officer from the person of the accused Appellant Amar Singh when he was arrested and he was brought to the site of occurrence. The accused Appellant Amar Singh admitted that bushirt to be belonging to him, but his explanation was that after getting bushirt removed from his person, it was stained with blood from the dead body. The learned trial Judge rightly rejected this explanation observing that the Investigating Officer could not have dared to do so in the presence of so many villagers who had collected at the site of occurrence when the investigation was going on. We also note that it was not even suggested to the Investigating Officer, Ram Niwas Mishra P.W. 13 in his cross-examination. It exposes the hollowness and falsity of this contention. For the first time, this contention was raised by him in his statement u/s 13, Cr. P.C.

On consideration of all relevant and important aspects, we find ourselves in agreement with the finding of guilt recorded by the learned trial Judge against the two accused Appellants.

Resultantly, we subscribe to the view taken by the trial Judge and find no merit in these two appeals. The Appellants have rightly been convicted u/s 302, I.P.C. read with Section 34, I.P.C. for the murder of Bachchu Singh with sentence of life imprisonment awarded to each of them.

In view of the above discussion, we dismiss both these Appeal Nos. 2912 of 1980 and 2952 of 1980 and affirm the conviction of the accused Appellants Shrilal and Amar Singh u/s 302, I.P.C. read with Section 34, I.P.C. and sentence of life imprisonment awarded to each of them. They are on bail. They shall be arrested and lodged in jail to serve out the sentence of life imprisonment. The Chief Judicial Magistrate, Agra, shall cause them to be arrested and lodged in jail.

The office shall send the copy of this judgment along with the record to the lower court to ensure compliance under intimation to this Court within two months.