Sri Krishna Singh (in Jail) vs State of U.P.

M.C. Jain, J.—These two connected Criminal Appeals Nos. 883 of 1980 and 1238 of 1980 are being decided by this common judgment. In Criminal Appeal No. 883 of 1980 the Appellant is Krishna Singh whereas Parmatma Nand Singh, Mahatma Nand Singh, Bachcha Singh and Babban Singh are the Appellants in connected Criminal Appeal No. 1238 of 1980. The judgment assailed is one dated 19th April, 1980 passed by Sri S. C. Jain the then Sessions Judge, Ballia in Sessions Trial No. 4 of 1980. All of them have been convicted u/s 302 read with Section 149, I.P.C. with sentence of life imprisonment, u/s 307 read with Section 149, I.P.C. with sentence of five years'' rigorous imprisonment and u/s 148, I.P.C. with sentence of two years'' rigorous imprisonment. All the sentences have been ordered to run concurrently.

One Bhanu Chand Singh was murdered in this incident and Haru Singh P.W. 3 received injuries. The incident occurred on 8.10.1979 at about 7.45 a.m. in Mohalla Satkuiyan of village Chitbaragaon, police station Narhi, district Ballia and the F.I.R. was lodged the same day at 9 a.m. by eye-witness Dinesh Chand Singh P.W. 1. The distance of the police station was about 7 Km. The broad essentials of the case may be set forth. The informant Dinesh Chand Singh P.W. 1, deceased Bhanu Chand Singh and Ramesh Singh were real brothers and resided in town area of Chitbaragaon. Bhanu Chand Singh was a lecturer in Ballia Polytechnic while Ramesh Singh, who was the youngest, studied at Lucknow. Their father was ailing for the last 4-5 years and Bhanu Chand Singh acted as karta and manager of the family. All the Appellants belonged to one family being closely related. Bachcha Singh and Babban Singh were real brothers. Parmatma Nand Singh and Mahatma Nand Singh are also brothers being sons of Krishna Singh, but Mahatma Nand Singh had been adopted by Bal Krishan Singh-uncle of Krishna Singh, Rajesh, real brother of Bachcha Singh and Babban Singh had been murdered for which Bhanu Chand Singh deceased, Dinesh Chand Singh and Ramesh were being prosecuted. They had been released on bail sometime before the occurrence. Because of the murder of Rajesh, the accused-Appellants were highly annoyed with the deceased and his brothers and were on a look out to take revenge. On 8.10.1979, at about 7.45 a.m., the deceased Bhanu Chand Singh accompanied by his brother Dinesh Chand Singh P.W. 1 started for railway station to go to Ballia. In the way, Dinesh Chand Singh P.W. 1 sat for urination near the house of Ram Janam Koeri while Bhanu Chand Singh proceeded ahead. Haru Singh P.W. 3 was also proceeding by that route along with cattle. Bhanu Chand Singh crossed him near the house of Nagina Koeri while Dinesh Chand Singh P.W. 1 further lagged behind. When Bhanu Chand Singh reached towards south west of the shop of Parashuram P.W. 7, the accused-Appellants emerged from behind the shop where they were laying in wait. Parmatma Nand Singh, Mahatma Nand Singh and Babban Singh were armed with country made pistols while Sri Kishan Singh and Bachcha Singh had knives. Babban Singh caught hold of Bhanu Chand Singh while Sri Kishan Singh and Bachcha Singh assaulted him with knives. He raised an alarm and Haru Singh P.W. 3 rushed forward to his rescue, whereupon shots were fired in quick succession. Bhanu Chand Singh fell down and succumbed to his injuries in no time. Haru Singh P.W. 3 also received gunshot injuries. As a result of the alarm, the complainant Dinesh Chand Singh P.W. 1, Ram Janam, Ramayan Singh, Baijnath, Muni Singh and Triloki Singh appeared on the scene. The accused-Appellants made their escape good towards river side. After a couple of minutes, constables from police outpost appeared on the scene. A cot was arranged and the dead body of Bhanu Chand Singh was placed thereon and covered with a piece of cloth. The dead body was left in the supervision of constables and other persons who had assembled. Dinesh Chand Singh P.W. 1 accompanied by the injured Haru Singh P.W. 3 went to the market, scribed the F.I.R. which he took to the police station in a taxi. The report was lodged there. A case was registered with the preparation of Chik Report by Head Constable Shiva Ji Singh P.W. 8. Haru Singh P.W. 3 was referred for medical examination. His injuries were examined by Dr. P. N. Singh P.W. 4 the same morning at 9.30 a.m. A gunshot injury was found on his left upper arm. He was referred to District Hospital, Ballia, where he was operated upon in due course and bullet was taken out from his wound by Dr. N. B. L. Srivastava, P.W. 9.

The investigation was taken up by Rama Shankar Singh P.W. 10. The post-mortem over the dead body of the deceased was conducted by Dr. B. K. Tripathi P.W. 5 on 8.10.1979 at 2 p.m. The deceased Bhanu Chand Singh was aged about 35 years and about half day had passed since he died. As many as 20 ante-mortem injuries were found on his person out of which injury Nos. 1 to 5 were incised wounds, injury No. 6 was abrasion while injury Nos. 7 to 20 were gunshot wounds. Death had occurred due to shock and haemorrhage as a result of ante-mortem injuries.

The accused-Appellants pleaded not guilty and claimed to have falsely been implicated due to enmity.

In support of its case, the prosecution in all examined ten witnesses. Dinesh Chand Singh P.W. 1, Triloki Nath Singh P.W. 2 and Haru Singh injured P.W. 3 were witnesses of fact. Parashuram P.W. 7 was the person in front of whose shop the occurrence had taken place. He himself was not the eye-witness. Rest were the Doctors and formal witnesses including the Investigating Officer.

The learned Sessions Judge found the case to be proved and rendered the impugned judgment of which the Appellants are aggrieved and hence the present appeal before this Court.

In Criminal Appeal No. 883 of 1980, the Appellant is represented by S/Sri A. D. Giri, G. P. Dixit and Jagdish Prasad Advocates. However, none appeared at the revision of the list. We have heard Sri A. K. Verma, learned A.G.A. for the State and have perused the record. In connected Criminal Appeal No. 1238 of 1980 Sri J. S. Audichya learned Counsel for the Appellants advanced arguments for the Appellants and Sri A. K. Verma, learned A.G.A. on behalf of the State. The record of the case is before us, which we have carefully perused. We propose to decide the appeal on merits dealing with the arguments raised at the bar in the light of the evidence and other material.

It has first been argued for the Appellants that the F.I.R. is ante-timed. It would be recalled that the incident occurred at about 7.45 a.m. on 8.10.1979 and the report was lodged by Dinesh Chand Singh P.W. 1 the same day at 9 a.m. at the police station, the distance of which was about 7 km. It has been urged that in view of the sequence of the events as narrated by Dinesh Chand Singh P.W. 1, the F.I.R. could not be lodged at 9 a.m. His statement has been referred to that after the murder he arranged for a cot and placed the dead body of Bhanu Chand Singh over the same. Certain constables from Chitbaragaon police outpost appeared on the scene and the dead body was left in their charge. Then he accompanied by Haru Singh P.W. 3 went to the Bazar and scribed the report at a tea stall of one Bhagat and thereafter both of them proceeded to police station and reached there at 9 a.m. It is urged that the distance of the police station being 7 km., all the activities could not be possible within 75 minutes as the prosecution alleges. It is not possible for us to subscribe to this reasoning. It is pertinent to find that it has come in the testimony of Dinesh Chand Singh P.W. 1 that he with Haru Singh P.W. 3 had gone to the police station in a taxi. It has been contended that it was stated by him for the first time in the Court that taxi had been used to reach the police station. Regard has to be made to the fact that this fact could not be there in the F.I.R. which had been written by Dinesh Chand Singh P.W. 1 in the Bazar. He was placed in highly emotion ridden and tension packed situation having witnessed the ghastly murder of his own brother. We think that using a taxi, he could well reach the police station at 9 a.m. There is another test which satisfies the judicial mind about the F.I.R. having been lodged at 9 a.m. The injuries of Haru Singh P.W. 3 were examined by Dr. P. N. Singh P.W. 4 the same morning at 9.30 a.m. after he had been referred for medical examination by the police. It has come down in the testimony of Dr. P. N. Singh P.W. 4 that the injured came to him with a letter of request for medical examination from police station. Head Constable Shiva Ji Singh P.W. 8 who prepared the Chik F.I.R. has also stated that after recording the F.I.R. he sent the injured to Narhi Hospital for examination with a letter of request. This letter on record bears the crime number and sections of I.P.C. under which the case was registered. Indeed, the injured with this letter could not be sent by the police to the Doctor for medical examination unless the F.I.R. had already been lodged at the police station obviously, the medical examination of injured Haru Singh P.W. 3 on 8.10.1979 at 9.30 a.m. bears the most authentic and intrinsic evidence about the F.I.R. having been lodged earlier thereto. We see no merit in the argument that the F.I.R. was ante-timed.

We should also place it on the record that all the accused-Appellants being of the same family, could very well join hands to take revenge of the murder of Rajesh, younger member of their family for which the deceased Bhanu Chand Singh was also an accused. Though it is a case of direct evidence of this broad daylight incident, yet it is to be taken note of that there was motive too on the part of the accused-Appellants to commit this crime.

It has next been argued for the Appellants that actually Dinesh Chand Singh P.W. 1 was not present at the spot and was later on called to pose as an eye-witness. The argument is sought to be strengthened by the submission that the accused-Appellants were equally aggrieved with him and in case he was really present at the time of occurrence, they would not have spared him unharmed. This reasoning ignores two important factors. First, it has been explained by this witness that while accompanying his deceased brother, he had lagged behind by about 30 paces as he had sat down to urinate near the house of Ram Janam Koeri and in the meantime, Bhanu Chand Singh had proceeded ahead. The accused-Appellants after coming out from their hiding place, first targeted Bhanu Chand Singh. Haru Singh P.W. 3, who was an unconcerned person and placed in between Bhanu Chand Singh and Dinesh Chand Singh P.W. 1 rushed up to his rescue and also became the victim of the shot fired in quick succession by the Appellants holding firearms. The second important factor is that after the murder of Bhanu Chand Singh, an alarm had been raised and a number of persons had gathered on the scene. Under these circumstances, it was better for the accused-Appellants to have thought it better to escape rather than to prolong the whole matter by attacking this witness. They had already inflicted gunshot injury on an unconcerned person Haru Singh P.W. 3 during the course of the occurrence when he had rushed to the rescue of Bhanu Chand Singh. It was under these circumstances that after murdering Bhanu Chand Singh and injuring Haru Singh P.W. 3, the accused-Appellants retreated. The factum of Dinesh Chand Singh P.W. 1 being not injured cannot, under the aforesaid circumstances, be a ground to reject his otherwise confidence inspiring testimony.

Learned Counsel for the Appellants then urged that only Triloki Nath Singh P.W. 2 has been examined and several other witnesses named in the F.I.R. have not been produced. Suffice it to say in this regard that the prosecution is not supposed to multiply the evidence. The name of Triloki Nath Singh P.W. 2 does find place in the F.I.R. and his testimony corroborating the version of Dinesh Chand Singh P.W. 1 and injured witness Haru Singh P.W. 3 strengthens the prosecution case against the Appellants. To explain his presence at the spot, Triloki Nath Singh P.W. 2 stated that at the time of the incident, he was going to the market when he witnessed this incident. It has not been shown that he was either inimical towards the accused-Appellants or was on friendly terms with the deceased and his family. He ranks to be an independent witness who withstood the test of cross-examination firmly.

A doubt was then sought to be created as to the place of occurrence. It has been urged that the deceased had received 14 gunshot wounds out of which 7 were wounds of entry and 7 of exit. As such a number of shots must have been fired but no foreign material was found in the body of the deceased and as such pellets, wads, etc. should have been found near the place of occurrence. The truth of the matter, however, is that the Investigating Officer did not find any such thing on the spot and it should, therefore, be inferred that the occurrence had not taken place at the complained place, viz., towards the south-west of the shop of Parashuram. We are of the view that the argument raising doubt about the place of occurrence is wholly imaginary. Rama Shanker Singh P.W. 10 who investigated the case, well explained that when he reached the scene, huge crowd had gathered on the spot. He, therefore, could not find any pellets, wads, etc. near the place of occurrence. It was kachcha road and when a large number of persons had treaded over there after the incident, the possibility of finding pellets, wads, etc. was wholly remote. A little thing like pellet would have got lost in the dust of kachcha road. In fact, the testimony of Parashuram P.W. 7 is of great importance in proving beyond doubt that the incident occurred at the place alleged by the prosecution. It was in front of his shop that the occurrence had taken place. Of course, at the time of the incident, this witness was not present at his shop. According to him, at that day he opened the shop at about 6 a.m. He had also to look after another shop situated in the Bazar. He seated his sister''s son aged about 9-10 years and left the shop at about 7 a.m. By that time, no occurrence had taken place. In the market there was an alarm at about 8 a.m. that a murder had taken place in front of his shop. He then rushed to the scene and found the dead body of Bhanu Chand Singh lying there. Out of fear he closed the shop and went away. But it was again opened by him when he was called by the Investigating Officer at about 12 O''clock in the noon.

The learned Counsel for the Appellants then urged that the incident had taken place much before the time of incident alleged by the prosecution under the cover of darkness. He wanted to support this argument by three factors. Firstly, it has been pointed out that Dr. B. K. Tripathi P.W. 5 who conducted the autopsy on the dead body of the deceased stated in his cross-examination that death might have occurred at 4 a.m. Secondly, all the injuries of the deceased had been sustained on right side which could have been sustained by him while he was sleeping turning to left with right side of the body exposed upward. Thirdly, though he had started from his house early in the morning at about 7.30 a.m. for going to Ballia by train, but the post-mortem report shows that large intestine of the deceased was full of faecal matter, meaning thereby that he had not eased by the time he was murdered. It is urged that had he started from his house in the morning at 7.30 a.m. he would have done so after easing himself. None of the contentions has the attraction of logic. The simple possibility that the death could have occurred at about 4 a.m., cannot and does not overshadow and eclipse the positive and clinching eye-witness account that it had taken place at about 7.45 a.m. As we have ruled above, the place of occurrence is established as being near the shop of Parashuram. It would be preposterous to suggest that the deceased would have been sleeping turning to left side at that spot. He could not possibly be lying on the kachcha road. It was just by chance that the injuries were sustained by him on right side of his body. The accused-Appellants had pounced upon him all of sudden and his right side being within their reach, the injuries were inflicted on that side. So far as contents of large intestine of the deceased are concerned, it should be noted that the things are crystal clear on careful perusal of statement of Dinesh Chand Singh P.W. 1. He has explained that he got up first and then woke up Bhanu Chand Singh who then started alongwith him without easing himself. In a hurry to board the train, Bhanu Chand Singh left his house without easing himself and it explains away the condition of his large intestine.

On examining the arguments of the learned Counsel for the Appellants, we do not locate merits in any of them. The prosecution version is supported by as many as three witnesses, namely, Dinesh Chand Singh P.W. 1, Triloki Nath Singh P.W. 2 (an independent witness named in the F.I.R.) and injured witness Haru Singh P.W. 3, whose testimony as injured is of great value. Three of the Appellants used firearms while two others wielded knives. The ante-mortem injuries sustained by the deceased and gunshot injuries sustained by the injured witness could have been sustained by such weapons. As many as five incised wounds had been sustained by the deceased which were capable of being caused by knives. One ante-mortem injury was abrasion while injury Nos. 7 to 20 were gunshot wounds. 7 wounds of entry with equal number of exit were there. The injury of Haru Singh P.W. 3 was also of gunshot on front of left upper arm wherefrom a bullet had also been taken out. The ocular testimony reconciles with the medical evidence. It was a broad daylight incident in which one person was murdered with cruelty and the other one who mustered up courage to come to the rescue of the deceased, also sustained gunshot injury. The accused-Appellants belonging to one and the same family committed this murder with planning, forming an unlawful assembly with deadly weapons. Their guilt has rightly been found to be established to the hilt by the court below and we see no ground, whatsoever, to interfere.

We would record here that the parties professed to compound the offences. In view of the law, we are of the opinion that the so-called compounding of the offences by the parties is of no consequence at all. The Legislature, in its wisdom, and rightly, has categorised the offences of rioting, murder and attempt to murder as non-compoundable even with the permission of the Court. Such offences create a sense of abhorrence in the society and affect the general public. It is for this reason that they have been categorised to be non-compoundable under any circumstance. Therefore, the compounding of the offences by the parties has to be ignored. We should, however, observe that two of the Appellants of Criminal Appeal No. 1238 of 1980, namely, Bachcha Singh and Babban Singh have died during the pendency of the appeal, as borne out from the record. Therefore, the appeal abates so far as they are concerned.

Our final order is as under:

Criminal Appeal No. 1238 of 1980 abates so far as the Appellants Babban Singh and Bachcha Singh are concerned.

The two Criminal Appeal Nos. 883 of 1980 (filed by Krishna Singh) and 1238 of 1980 in respect of Appellant Nos. 1 and 2 (Parmatma Nand Singh and Mahatma Nand Singh) are dismissed. Their conviction u/s 302 read with Section 149, I.P.C. with sentence of life imprisonment, u/s 307 read with Section 149, I.P.C. with sentence of 5 years'' rigorous imprisonment and u/s 148, I.P.C. with sentence of two years'' rigorous imprisonment are confirmed. They are on bail. They shall be arrested and lodged in jail to serve out the sentences passed against them, which shall run concurrently.

The office shall send a copy of this judgment to the court below along with the record for reporting compliance to this Court within two months.