Sudhir and Others vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 16.12.1980 passed by IInd Additional Sessions Judge, Aligarh in Sessions Trial No. 189 of 1979 convicting all the Appellants under Sections 302 read with 149, I.P.C. and alternatively u/s 302/34, I.P.C. and sentencing each of them to imprisonment for life. All the Appellants were further convicted u/s 148, I.P.C. and sentenced to undergo R.I. for a period of two years. Appellant Sudhir was further convicted u/s 404, I.P.C. and sentenced to undergo R.I. for a period of one year. All the sentences were ordered to run concurrently.

The prosecution story, briefly stated, was as under:

Appellant Sudhir was uncle of Appellant Jitendra. Shyodan Singh, who was Pradhan of village, had initiated a proceeding u/s 133, Cr. P.C. against Mahendra Singh father of Appellant Jitendra Singh, as he had constructed a house on the public path. Deopal Singh was real brother of Appellant Bhan Pratap. Deopal Singh was murdered and Shyodan Singh deceased was arrayed as accused in the said murder case. After trial, Shyodan Singh was acquitted of the said murder case. Shyodan Singh deceased had also initiated a case against Appellant Kamal Singh and his brother for encroaching chak road, in which fine was imposed on Kamal Singh and others. On account of above litigations and murder, the Appellants Sudhir, Jitendra, Bhan Pratap and Kamal Singh were having enmity with Shyodan Singh deceased. Chhidda Appellant was of the party of above Appellants.

On the evening of 23.8.1978 at about 6 p.m. Omvir Singh (P.W. 1) along with Shyodan Singh deceased, Badam Singh deceased, Raghuraj Singh (P.W. 3), Anand Kumar (P.W. 4) and Ram Singh was going to his village from Sadhu Ashram Bus Stand. Badam Singh deceased was having cycle, but was proceeding on foot keeping cycle in his hand. Badam Singh and Shyodan Singh talking with each other were proceeding ahead. Shyodan Singh deceased was having his licensed double barrel gun. When they reached near field of Rup Singh, at a distance of about 40 paces from Sadhu Ashram Bus Stand, all the Appellants armed with guns emerged out from nearby bushes. Appellant Jitendra Singh fired on Shyodan Singh and the shot hit him. When Badam Singh rushed to save him, Appellants Bhan Pratap and Kamal Singh fired on him. In the meantime, three other persons also came out of the bushes. Two persons lifted Badam Singh and Chhidda and one another person lifted Shyodan Singh and proceeded towards the river. Observing the incident, Omvir Singh (P.W. 1) raised alarm and ran towards Sadhu Ashram. In the meantime, Chhidda Appellant told that Shyodan Singh deceased was alive and shots were again fired on him. Thereafter, Sudhir Appellant snatched gun of Shyodan Singh. Hearing shrieks of the witnesses several persons from Sadhu Ashram rushed challenging the Appellants and then the Appellants ran away towards river.

Omvir Singh (P.W. 1) asked Raghuraj Singh (P.W. 3) to go to village and inform about the incident. Omvir Singh (P.W. 1) came to Sadhu Ashram Bus Stand and prepared a report (Ext. Ka-1) of the occurrence at the shop of Dal Chand and came to police station Harduaganj, where he lodged the report at 6.50 p.m. On the basis of written report, Chik F.I.R. (Ext. Ka-6) was prepared by Head Constable Mauli Ram (P.W. 5), who made an endorsement of the same at G.D. report and registered a case under Sections 302, 201, 148, 149 and 379, I.P.C. against the Appellants and three unknown persons.

Investigation of the case was taken up by Bhanwar Pal Singh (P.W. 7). He came to the spot along with other police officers. Dead bodies of Badam Singh and Shyodan Singh were lying near field of Rup Singh. On the direction of the I.O., Sub-Inspector Shyam Singh conducted inquest of the dead bodies of Badam Singh and Shyodan Singh, sealed the same and sent for post-mortem. The I.O. took into possession one wrist watch and one cartridge, blood stained and simple earth from the place of dead body of Shyodan Singh. The I.O. interrogated Omvir Singh (P.W. 1), Anand Kumar (P.W. 4) and other witnesses. He also inspected place of occurrence and prepared site plan (Ext. Ka-22).

Autopsy on the dead bodies of Badam Singh and Shyodan Singh were conducted on 14.8.1978 by Dr. L. K. Shukla (P.W. 6), who found following ante-mortem and internal injuries on the dead bodies.

Post-mortem report of Shyodan Singh

Ante-mortem injuries.

(1) Gun shot wound of entry 1" ? 3/4" ? bone deep one and quarter inch away from right eye. Tattooing and blackening was present. Margins of the wound were inverted.

(2) Gun shot wound of entry 1" ? 3/4" ? bone deep on right face over the mandible. Blackening and tattooing present and margins inverted.

(3) Gun shot wound of entry 3" ? 2-1/4" ? muscle deep, on the neck with blackening and tattooing and the margins inverted.

(4) Gun shot wound of entry 1/4" ? 1/4" ? muscle deep on left side of neck.

(5) Gun shot wound of entry 1/4" ? 1/4" ? muscle deep on left shoulder back margins inverted.

(6) Gun shot wound of entry 4/10" ? 4/10" ? muscle deep on left shoulder in the back.

(7) Gun shot wound of entry 1/4" ? 4/10" on the left inner side of the forearm 3" below the axillary fossa.

(8) Gun shot wound of entry 1/4" ? 1/4" ? muscle deep on right side of base of neck, 1/2" above the clavicle.

(9) Lacerated wound 1-1/2" ? 1" ? bone deep, on right side back of occipit.

Internal examination showed that both lungs were lacerated and congested. There was fracture of parietal bones on both sides, frontal bone, occipital bone and base of skull. Brain membranes were lacerated and congested. Thoracic cavity was full of blood. Both lungs were lacerated and congested. Stomach contained about 500 ounce semi-digested food. Cause of death was shock and haemorrhage and coma resulting from ante-mortem injuries.

Two wadding pieces recovered from left side of neck. One big pellet recovered from left back. One pellet was recovered from middle back, one pellet was recovered from right post axillary fossa and 44 pellets were recovered from brain.

Post-mortem report of Badam Singh

Ante-mortem injuries.

(1) 3 gun shot wound of entry, each 1/4" ? 1/4" through and through on the right front and middle of the arm. No blackening.

(2) Two gun shot wounds of exit 6/10" ? 6/10", through and through on the back of right middle arm.

(3) Gun shot wound of entry 1/4" ? 1/4" ? muscle deep, on the right front of the middle forearm.

(4) Gun shot wound of entry 1/4" ? 1/4" ? muscle deep on the right inguinal region.

(5) Gun shot wound of entry 1-1/2" ? 1" ? bone deep on the back of right hip in the middle, with communited fracture of upper part of femur bone.

(6) Gun shot wound of entry 1/4" ? 1/4" ? through and through on the left thigh in the middle.

(7) Gun shot wound of exit 1/4" ? 1/4" ? through and through, on the left thigh on the front.

(8) Gun shot wound of entry 4" ? 3" ? muscle deep on the left hip on the back near anal cave.

Internal examination showed fracture of right humerus and right femur in upper part. The left side of heart was empty and there was clotted blood in the right. Abdominal cavity contained blood and faecal matter. Large intestine was lacerated at places. The bladder was ruptured.

One pellet was recovered from right back of hip. 26 pellets were recovered from intestine and abdominal cavity. 15 pellets recovered from muscle of left hip. Cause of death was shock and haemorrhage resulting from ante-mortem injuries.

The I.O. arrested Appellants Jitendra, Bhan Pratap and Kamal Singh on 24.8.1978. Appellants Sudhir and Chhidda surrendered in the Court on 28.8.1978. The I.O. interrogated Raghuraj Singh (P.W. 3) on 4.9.1978 and on completion of investigation submitted charge-sheet against the Appellants.

The Appellants were charged with the offences punishable under Sections 148, 302 read with 34, I.P.C. and alternatively 302 read with 149, I.P.C. and 404, I.P.C. The Appellants pleaded not guilty and contended that they were falsely implicated on account of enmity. Bhan Pratap further contended that Omvir Singh (P.W. 1) was inimical with him, as he had initiated as case u/s 436, I.P.C. against his nephew Nawab Singh. Chhidda Appellant further contended that Omvir Singh (P.W. 1) and others had robbed of him for which he had initiated a robbery case.

The prosecution in support of its case examined Omvir Singh (P.W. 1), constable Jayanti Prasad (P.W. 2), Raghuraj Singh (P.W. 3), Anand Kumar (P.W. 4), Head Constable Mauliram (P.W. 5), Dr. L. K. Shukla (P.W. 6) and Bhanwar Pal Singh, I.O. (P.W. 7). Ram Babu was examined as C.W. 1. Omvir Singh (P.W. 1), Raghuraj Singh (P.W. 3) and Anand Kumar (P.W. 4) were witnesses of fact, while evidence of remaining witnesses was formal in nature.

Appellants examined Satish Kulshreshtha (D.W. 1), Kanhi Singh (D.W. 2) and Ummed Singh (D.W. 3).

Learned Sessions Judge on considering evidence of the prosecution as well as of the Appellants held that the prosecution has successfully established the guilt of the Appellants for the offences punishable u/s 302/34, I.P.C., alternatively under Sections 302/149 and 148, I.P.C. He further held that guilt of Appellant Sudhir for the offence punishable u/s 404, I.P.C. was also established. With these findings, he convicted and sentenced the Appellants as mentioned above.

Aggrieved with their above conviction and sentences, the Appellants have come up in this appeal.

During pendency of the appeal, Appellant Sudhir was murdered on 27.3.1983 and Appellant Chhidda died on 26.9.2003. The death of above Appellants was confirmed by enquiry report of C.J.M., Bulandshahr. Consequently, the appeal preferred by Sudhir and Chhidda stood abated.

We have heard Sri Ghanshyam Joshi, learned Counsel for the Appellants Jitendra, Bhan Pratap and Kamal Singh and Sri R. K. Singh, learned A.G.A. for Respondent and have perused the entire evidence on record.

The learned Counsel for the Appellants contended that in fact dacoits had committed murder of the two deceased and looted gun of Shyodan Singh deceased and the Appellants were falsely implicated on account of enmity. He further contended that presence of witnesses on the spot is doubtful and they had deposed falsely against the Appellants on account of enmity.

The identity, death and cause of death of two deceased namely Shyodan Singh and Badam Singh are not disputed. The medical evidence of Dr. L. K. Shukla (P.W. 6) referred to above clearly indicated that both the deceased had sustained gunshot injuries and died on account of above gun shot injuries. The Doctor had further stated that injuries on the person of the two deceased were sufficient in ordinary course of nature to cause their death.

Date, time and place of occurrence are also not disputed. After lodging the report of the occurrence, the I.O. Sri Bhanwar Pal Singh (P.W. 7) visited the spot and conducted inquest of the dead bodies of two deceased. The I.O. also collected blood stained earth and empty cartridges from the spot. Perusal of inquest report of two deceased shows that inquest were conducted at 7.40 p.m. and 8.20 p.m. respectively. The report of the occurrence was lodged at 6.50 p.m. on the date of occurrence. The presence of dead bodies and blood as well as empty cartridges and lodging report at 6.50 p.m. established the date, time and place of occurrence.

The motive alleged by the prosecution was that there was long standing enmity between the parties and a series of litigations had taken place. Ram Babu (C.W. 1) had also filed documents regarding enmity. It is clear from the evidence on record that Deopal Singh and Niranjan Singh brothers of Appellant Bhan Pratap were murdered and deceased Shyodan Singh was prosecuted for the said murder and acquitted, vide judgment of Sessions Trial No. 204 of 1963 (Ext. Ka-3). This fact is not disputed. It was further stated by Ram Babu (C.W. 1) that Shyodan Singh was Pradhan of the village and he made a report regarding encroachment of chak road against Kamal Singh and his brothers, on which Tahsildar made report and a proceeding u/s 133, Cr. P.C. was initiated. Copy of the application and order of Tahsildar are also on record. It was further stated by Ram Babu (C.W. 1) that Shyodan Singh deceased had initiated a proceeding u/s 133, Cr. P.C. against Ram Babu and Mahendra father of Appellants Sudhir and Jitendra. Proceeding u/s 107/116, Cr. P.C. had also taken place between Shyodan Singh deceased and Omvir Singh (P.W. 1) on one side and Mahtab, Bhan Pratap Singh and Kamal Singh on the other side. It is clear from the evidence on record that Chhidda Appellant lodged report on 6.6.1978 against Shyodan Singh u/s 342, 380 and 323, I.P.C. in which Mahtab Singh, Jitendra, Sudhir and Mahabir had filed affidavits (Exts. C-4 to C-8) and (Exts. Kha-8 to Kha-11). It is also in the evidence on record that Nahar Singh brother of Appellant Sudhir was murdered and two sons of Shyodan Singh were prosecuted for the said murder (vide Ext. C-9). Ram Babu (C.W. 1) further stated that Mahendra Singh had filed a complaint u/s 395, I.P.C. against Shyodan Singh (vide Ext. C-12). It was further stated by him that Shyodan Singh deceased had made a complaint addressed to a Minister suspecting danger of his life from Chhidda Appellant. The enmity regarding above litigations is not disputed. Thus, it is clear from the evidence on record that both parties were inimical with each other. It is true that enmity is a double edged weapon, which cuts both ends. Deceased Shyodan Singh would have been murdered on account of above enmity and Appellants might be implicated on account of enmity, but one thing is clear that Appellants'' side had motive to eliminate Shyodan Singh, therefore, motive alleged by the prosecution has been established.

In order to prove its case, the prosecution relied on ocular testimony of Omvir Singh (P.W. 1), Raghuraj Singh (P.W. 2) and Anand Kumar (P.W. 4).

Omvir Singh (P.W. 1) after stating about the enmity between the parties further stated that on the evening of occurrence at about 5.45 p.m. he was proceeding to his village from Sadhu Ashram Bus Stand. Shyodan Singh and Badam Singh deceased, Raghuraj Singh (P.W. 3), Anand Kumar (P.W. 4) and Ram Singh were also with him. Shyodan Singh and Badam Singh were about 10 paces ahead to him and another person. Both the deceased were proceeding on foot talking with each other. Badam Singh was having his cycle in his hands and Shyodan Singh had double barrel gun. When they reached near field of Thakur Roop Singh, at a distance of 40 paces from Sadhu Ashram Bus Stand, all the Appellant armed with guns, emerged out from bushes. Sudhir and Jitendra fired on Shyodan Singh. When Badam Singh tried to save him Bhan Pratap and Kamal Singh fired on him. In the meantime, three other persons came out of the bushes. Two of them lifted Badam Singh and Chhidda and one person lifted Shyodan Singh. Observing firing, he turned back and ran towards Sadhu Ashram Bus Stand. He also heard utterances of Chhidda that he (Badam Singh) was alive and simultaneously he heard sound of fire. When he saw towards back Chhidda Appellant armed with gun was standing near the dead body of Shyodan Singh. Several other persons from Sadhu Ashram Bus Stand rushed towards spot and on their challenge the Appellants ran away towards Kali river. Appellant Sudhir also snatched gun of Shyodan Singh.

In his cross-examination, the witness clarified that on the evening of occurrence he had gone to Sadhu Ashram Bus Stand for leaving his sister and sister''s son, who had to go to village Bhudiya by bus. That he got his sister and sisters'' son seated in the bus at about 5 p.m. and thereafter sat beneath Neem tree and smoked Bidi along with Ram Singh and thereafter proceeded to his village. The witness is informant and he had lodged report of the occurrence, at 6.50 p.m. at P.S. Harduaganj, which was at distance of 3 miles from the place of occurrence. The presence of the witness at the police station at 6.50 p.m. is noted down in the G.D. report and is proved by evidence of Constable Mauli Ram (P.W. 5). Therefore, the presence of the witness at the spot was natural and probable and is supported by G.D. report and evidence of Head Constable Mauli Ram (P.W. 5). No doubt, Omvir Singh (P.W. 1) was also a party in a case u/s 107/116, Cr. P.C. along with Shyodan Singh deceased, but his testimony cannot be discarded simply on the ground that he was inimical with the Appellants.

Raghuraj Singh (P.W. 3) stated that on the date of occurrence, he had gone to Harduaganj for making purchases. That at about 5.30 p.m. he got down of the bus at Sadhu Ashram Bus Stand and he along with Omvir Singh (P.W. 1), Anand Kumar (P.W. 4) and Ram Singh was proceeding on foot to his village. Badam Singh and Shyodan Singh were going to their village and were 10-11 paces ahead to him. When Shyodan Singh and Badam Singh reached near field of Rup Singh the Appellants armed with guns in their hands emerged out from near-by bushes. Sudhir and Jitendra fired two shots each on Shyodan Singh from their double barrel guns. Badam Singh, who was behind Shyodan Singh, rushed to save him and Bhan Pratap and Kamal Singh fired on him. In the meantime, three unknown person also came out of the bushes. Chhidda and one unknown person lifted Shyodan Singh and two unknown persons lifted Badam Singh and proceeded towards river. Observing firing he turned back and raised alarm. In the meantime, he heard utterances of Appellant Chhidda "he was alive". Simultaneously he heard sound of fire. When he turned his face back, he saw Chhidda Appellant pointing his gun towards dead body of Shyodan Singh. On the challenge given by the witness and other persons, the Appellants ran away towards river.

The witness has given probable explanation for his presence on the spot, as he had gone to Harduaganj and on return from Harduaganj got down of the bus at Sadhu Ashram Bus Stand from where he was proceeding to his village on foot. The occurrence had taken place at about 6 p.m. and in all probabilities he had occasion to be present on the spot at the time of occurrence.

Anand Kumar (P.W. 4) is the son of Shyodan Singh deceased. He stated that on the evening of occurrence, he had gone to Sadhu Ashram Bus Stand to receive his father Shyodan Singh. When the bus came to the above bus stand, his father got down of the bus and asked him to proceed to his village. He had brought the gun of his father and he handed over the same to him. That he stopped at the bus stand for moment for purchasing guava. That his father Shyodan Singh along with Badam Singh proceeded to his village on foot. The witness along with Omvir Singh (P.W. 1), Raghuraj Singh (P.W. 3) and Ram Singh were proceeding about 10 paces behind the two deceased. When his father and Badam Singh reached near the field of Thakur Rup Singh at about quarter to 6 p.m., all the Appellants armed with gun emerged out from bushes. Sudhir and Jitendra fired on his father. When Badam Singh tried to save him, Bhan Pratap and Kamal Singh fired on him. Three unknown persons also came out of the bushes. Chhidda and three unknown person lifted body of his father and Badam Singh and proceeded towards Kali river. Observing firing, he along with other witnesses turned back and ran towards Sadhu Ashram. Thereafter, he heard utterances of Chhidda "he was alive". Simultaneously, he heard sound of fire and when he turned his face, he saw Chhidda Appellant standing with gun. He raised alarm and several persons from Sadhu Ashram Bus Stand rushed to the spot and the Appellants ran away towards river. Appellant Sudhir snatched the gun of his father.

The witness has also given probable explanation for his presence. It is also admitted to Kanhi Singh (D.W. 2) that he had his shop at Sadhu Ashram Bus Stand. He further stated that on the date of occurrence at about 2 p.m., Shyodan Singh came to his shop and thereafter got seated in a bus and went to Aligarh. Thereafter, in the evening at about 6-6.30 p.m. Shyodan Singh got down of the bus in front of his shop. He stayed for a short while and thereafter proceeded to his village. At that time, he was not having his gun. After 10-15 minutes, he heard sound of fire coming from the village of Shyodan Singh. Thereafter, Anand Kumar (P.W. 4), S/o Shyodan Singh came to bus stand and enquired about his father. He told that his father had proceeded towards village 10-15 minutes earlier.

Above evidence of Kanhi Singh (D.W. 2) that Anand Kumar (P.W. 4) had come to Sadhu Ashram Bus Stand to receive his father. If he had to receive his father, he must be knowing probable time of arrival of the bus and therefore, he ought to have reached the bus stand when his father got down of the bus. Therefore, the presence of Anand Kumar (P.W. 4) on the spot also finds support from evidence of Kanhi Singh (D.W. 2).

It is true that Anand Kumar (P.W. 4) s/o Shyodan Singh deceased had not lodged report of the occurrence, and the report was lodged by Omvir Singh (P.W. 1). But the witness has clarified in his evidence that he became perturbed and terrified after observing murder of his father and Badam Singh and therefore, asked Omvir Singh (P.W. 1) to lodge report of the occurrence. The above explanation of the witness appears convincing and genuine. No doubt, Anand Kumar (P.W. 4) is the son of the deceased, but his relationship is no ground to discard his testimony.

All the ocular witnesses have stated that occurrence took place near about 6 p.m. in the month of August. At 6 p.m. in the month of August, there is sufficient light to recognise the assailants. The above ocular witnesses were cross-examined at great length and they had withstood the rigours of lengthy and clinching cross-examination. Their evidence also finds corroboration from medical evidence, F.I.R. and other circumstances of the case. Therefore, we find that the evidence of above witnesses is worthy of credence.

The contention of the learned Counsel for the Appellants was that in fact dacoits had shot dead both the deceased to loot the gun of Shyodan Singh. But the ocular witnesses repelled the above suggestion and their evidence shows that they had witnessed the occurrence from a distance of about 10 paces. The name of the Appellants with their respective weapons and part played by them was mentioned in the F.I.R., which was promptly lodged and therefore, we find no force in the above contention.

It was further contended that Shyodan Singh was a criminal and had several other enemies. Therefore, he might have been murdered by some of his enemy and Appellants were falsely implicated on account of enmity. Anand Kumar (P.W. 4) is the son of deceased and Omvir Singh (P.W. 1) and Raghuraj Singh (P.W. 3) are of the village of the deceased and these witnesses were in a position to recognise the assailants. Had some one else other than Appellants was assailant, the above witnesses would have not spared them.

From our above discussions and observations, we find that the prosecution has successfully established the guilt of the Appellants and they were rightly convicted and sentenced and there is no force in the appeal.

The appeal preferred by Appellants Sudhir and Chhidda stood abated. The appeal preferred by Appellants Jitendra, Bhan Pratap and Kamal Singh is, accordingly, dismissed and conviction and sentence of above Appellants awarded by the trial court are confirmed.

The above Appellants are on bail. They shall surrender before the C.J.M. concerned to serve out the sentence.

The C.J.M., Aligarh is directed to procure the arrest of above Appellants Jitendra, Bhan Pratap and Kamal Singh by adopting all processes available under law and send them to jail to serve out the sentence.

The copy of the order be sent to C.J.M., Aligarh for compliance and report.