Subedar Singh and Another vs State of U.P.

M. Chaudhary, J.—This is an appeal from judgment and order dated 15th of December, 1981 passed by I Ind Additional Sessions Judge, Mainpuri in State v. Subedar Singh and Anr. Sessions Trial No. 234 of 1981, convicting the accused u/s 302, I.P.C. and sentencing each of them to imprisonment for life thereunder.

Brief facts giving rise to this appeal are that in February, 1977 Kalka, elder brother of Subedar Singh was murdered and Jai Ram, brother of Kedar Singh was prosecuted for that murder and convicted and sentenced in that murder case and the appeal was pending in the High Court and Jai Ram was released on bail ; that in August, 1980 Gabarhoo, another brother of Subedar Singh was fired at and an F.I.R. of that case was lodged against Jai Ram above named and four others. At about 7.00 a.m. on 20th of November, 1980 Kedar Singh along with his brother Jai Ram and nephew Rajesh Kumar were going from their village to Mainpuri ; that Jai Ram was going on the road 20-25 paces ahead of Kedar Singh and Rajesh Kumar and their co-villagers Din Dayal and Jhunak Lal were also coming behind them ; that at about 7.00 a.m. as they were passing through the grove of Naresh Kumar at Nagla Kespur and Jai Ram after crossing the grove reached near the field of Dariyab Singh, Subedar Singh and his cousin Tej Singh armed with guns emerged from the ''Besharm'' shrubs shouting that he was released on bail by the Court but now they would not let him live alive ; that sighting them Jai Ram ran for his life and immediately Subedar Singh and Tej Singh fired at him and receiving the gunshot injuries Jai Ram fell down but mustering courage he got up and again started running and after crossing the field of Dariyab Singh as he was about to cross the pathway they again fired at him and sustaining firearm injuries Jai Ram fell in the field of Devi Din and immediately both the miscreants fled away. Sustaining the fatal injuries Jai Ram died on the spot instantaneously. Immediately Kedar Singh, brother of the deceased went to the Police Station Bhogaon situate at a distance of about ten miles from the place of occurrence and handed over written report of the occurrence to the police there at about 9.15 a.m. (Ext. Ka-1). The police registered a crime against the accused and made entry regarding registration of the crime in the general diary (Exts. Ka-2 and Ka-3).

S.I. Tek Chand Chauhan to whom investigation of the case was entrusted went to the scene of occurrence. On reaching there he drew inquest proceedings on the dead body of Jai Ram, prepared the inquest report (Ext. Ka-5) and other necessary papers (Exts. Ka-6 to Ka-8) and handed over the dead body in a sealed cover along with necessary papers to constables Shiv Singh and Nihal Singh for being taken for its post-mortem. Then he inspected the place of occurrence and prepared its site plan map (Ext. Ka-13). He also picked up empty cartridge of .2 bore lying near the dead body and collected blood-stained and simple earth from near the dead body lying by the side of northern ridge in the field of Devi Din and prepared their memos (Exts. Ka-10 and Ka-11) respectively. He collected blood stained and simple earth from near the southern ridge of the field of Dariyab Singh and prepared its memo (Ext. Ka-12). He also recorded statements of the witnesses and did other necessary things.

Autopsy conducted on the dead body of Jai Ram by Dr. J. P. Gupta, Medical Officer, District Hospital, Mainpuri on 21st of November, 1980 at about 2.30 p.m. revealed the below noted ante-mortem injuries:

(1) Gun shot wound of entry 1.5 cm. x 1 cm. through and through to injury No. 2 over the left side of face 1 cm. above the left ear with margins inverted.

(2) Gun shot wound of exit 2 cm. x 2 cm. x through and through injury No. 1 over the right side of face 2 cm. above the right ear with margins everted and irregular.

(3) Abrasions 6 cm. x 5 cm. over the left side of forehead just above the left eyebrow underneath bone depressed and fractured.

(4) Abrasions 4 cm. x 3 cm. on right side of forehead just above the right eye underneath bone was depressed and fractured.

(5) Abrasions 4 cm. x 2.5 cm. over left side of face just below and lateral to eye.

(6) Abrasions 6 cm. x 2 cm. over the right side of chest 5 cm. below and medial to right nipple.

(7) Gun shot wound of entry 1 cm. x 2 cm. x muscle deep over medial surface of right thigh 10 cm. above the right knee oblique and margins inverted.

(8) Gun shot wound of exit 8 cm. x 3.5 cm. over the anterior surface of right thigh 4 cm. above the right knee through and through to Injury No. 7.

(9) Gun shot wound of entry 4 cm. x 3.5 cm. x skin deep over left side of back 7 cm. below left angle of scapula, transverse in direction and blackening present around the wound.

(10) Multiple gun shot wounds of entry .2 cm. x .2 cm. x muscle deep in an area of 8 cm. x 6 cm. over the right buttock region with a gun shot wound of entry 6 cm. x 4 cm. x muscle deep posteriorly 19 cm. below right sacral iliac joint.

On an internal examination both frontal and parietal bones were found fractured and base of the skull also fractured and brain completely lacerated, bleeding present from left ear. Stomach contained liquid about 2 ounces. Both the intestines were half full containing faecal matter and gases. The doctor opined that death was caused due to shock and haemorrhage as a result of brain injury about one and a quarter day ago.

After completing investigation the police submitted charge-sheet against the accused.

After framing of the charge against the accused the prosecution examined Kedar Singh (P.W. 1) and Rajesh Kumar (P.W. 2) as eye-witnesses of the occurrence. Testimony of the remaining witnesses examined by the prosecution is more or less of formal nature. P.W. 3, H.C. Megh Shyam who prepared check report on the basis of the written report handed over at the police station and made entry regarding registration of the crime in the general diary has proved these papers (Exts. Ka-2 and Ka-3). P.W. 4 S.I. Tek Chand Chauhan who investigated the crime has proved the police papers. P.W. 5 Dr. J. P. Gupta who conducted autopsy on the dead body of Jai Ram proved the post-mortem report stating that the ante-mortem injuries sustained by the deceased were sufficient to cause his death in the ordinary course.

The accused denied the alleged occurrence altogether stating that they were got implicated in the case falsely on account of enmity. Both the accused are cousins. Accused Tej Singh also stated that in the murder case of Kalka he appeared as a witness against Jai Ram.

On an appraisal of the evidence on the record and after hearing the parties'' learned Counsel the learned Additional Sessions Judge held the accused guilty of the charge levelled against them and convicted them u/s 302, I.P.C. sentencing each of them to imprisonment of life thereunder.

Feeling aggrieved by the impugned judgment and order the accused preferred this appeal for redress.

A perusal of the record goes to show that relying upon the testimony of the two eye-witnesses, namely, P.W. 1 Kedar Nath and P.W. 2 Rajesh Kumar the learned Additional Sessions Judge recorded conviction of the accused and we also find ourselves in complete agreement with the findings recorded by the learned trial Judge. However, the Appellants'' learned Counsel has advanced the following arguments and now we shall deal with them if they have got any substance.

It has first been argued by the Appellants'' learned Counsel that the alleged murder took place in the broad day light but no independent witness of the occurrence has been examined by the prosecution in its support. No doubt, it is mentioned in the F.I.R. itself that the murder of Jai Ram was witnessed by Din Dayal, Jhunku Lal and Dafedar Singh but neither of them has been examined by the prosecution. It is a matter of common knowledge and experience that generally the people keep themselves away from the courts unless it is inevitable as they do not want to invite trouble for themselves. No doubt P.W. 1 Kedar Nath, being brother of the deceased and P.W. 2 Rajesh Kumar, his nephew both are related with the deceased but on that score alone, their sworn testimony cannot be thrown overboard as they withstood the test of cross-examination firmly and nothing could come out to cast cloud on their testimony. Both these witnesses have given a truthful and honest account of the occurrence witnessed by them and once the evidence of these two witnesses is believed, non-examination of independent witness would not go to demolish or introduce an element of doubt in the prosecution case.

Secondly, learned Counsel for the Appellants emphatically argued that ocular testimony is inconsistent with the medical evidence. He contended that both the eye-witnesses stated that Jai Ram was fired at by the accused Appellants with guns whereas perusal of the post-mortem report goes to show that firearm wounds would have been caused with rifle. The said argument advanced by the Appellants'' learned Counsel is fallacious. Medical witness Dr. J. P. Gupta (P.W. 5) was not put any question in his cross-examination by the defence counsel if the ante-mortem injuries found on the dead body could have been caused with rifle and not with guns. On a perusal of the post-mortem report, there is nothing to suggest therein that the ante-mortem injuries found on the dead body of Jai Ram could not be caused with guns. Rather the doctor recovered two cardboard, one tikli and 18 small pellets from inside the wounds. One empty cartridge of .12 bore was also found lying near the dead body (Ext. Ka-10). Hence, we are of the view that there is no inconsistency between medical evidence and the ocular testimony. Rather we find that the ocular testimony of the two eye-witnesses stands corroborated by the medical evidence.

Thirdly, the Appellants'' learned Counsel argued that the F.I.R. is ante-timed. For that, his argument is two fold: (i) There was opportunity for the F.I.R. to be ante-timed as P.W. 3 Megh Shyam stated that next F.I.R. of cognizable offence at the police station was recorded on 20.11.1980 at 6.10 p.m. u/s 307, I.P.C. (ii) Check report of the said crime was sent to the Chief Judicial Magistrate on 25th of November, 1980 ; and from these two circumstances the Appellants'' learned Counsel wanted that it should be concluded that the F.I.R. is ante-timed. In our opinion, from the above, it is not possible to conclude that the F.I.R. is ante-timed. The incident took place on 20th of November, 1980 at about 7.00 a.m. and the F.I.R. of the occurrence was lodged at about 9.15 a.m. at Police Station Bhogaon situate at a distance of about ten miles from Nagla Keshpur. Special report of the said crime was sent to the Higher Authorities the same day at about 10.15 a.m. through constable Surendra Singh. He returned back to the police station after handing over the special report the same evening at about 8.30 p.m. The Court sees no plausible reason to doubt the veracity of the G.D. entries and time of lodging the F.I.R. mentioned in the check report. Further, after completing inquest proceedings dead body of Jai Ram in a sealed cover along with necessary papers was handed over by the Investigating Officer to constables Sheo Singh and Nihal Singh at 10.30 forenoon the same day for being taken for its post-mortem. For the above, the said argument appears to be wholly misconceived and falls to the ground.

Lastly, it has been argued that Jai Ram, the deceased was a bad character and had many other enemies. The said argument advanced by the learned Counsel for the Appellants does not commend to us. The fact of his having several other enemies would not eclipse or overshadow the sworn testimony of the two eye-witnesses that he was shot dead on the given time, date and place by the accused Appellants. The said argument, therefore, has got no substance and is repelled.

After considering all the arguments advanced on behalf of the Appellants in the light of evidence and circumstances attending the case, we do not find any merit in any of them. The testimony of the two eye-witnesses corroborated by the prompt F.I.R. and medical evidence on the record form a sturdy basis for conviction of the accused. We, therefore, find ourselves in complete agreement with the findings recorded by the learned trial Judge against the accused Appellants. The appeal has got no merit and is liable to be dismissed.

The appeal is hereby dismissed. Since Jai Ram, the deceased was fired at by both the accused Appellants with guns in furtherance of their common intention to commit his murder, they committed the offence u/s 302 read with Section 34, I.P.C., and hence their conviction u/s 302, I.P.C. is altered into one u/s 302 read with Section 34, I.P.C. Hence, the judgment is modified to the extent that both the accused are convicted u/s 302 read with Section 34, I.P.C. and each of them is sentenced to imprisonment for life thereunder. Both the Appellants are on bail. They shall be arrested and lodged in the jail to serve out the sentence awarded to them.

Certified copy of the judgment and record of the case be transmitted to the Court below for compliance under intimation to this Court within two months from today.