Yashpal and another vs State of U.P.

Dharnidhar Jha and Ashok Srivastava, JJ.—Two appellants. Yashpal and Jaipal both sons of Shyam Singh, are the brothers of deceased Baru, who was the eldest amongst four sons of Shyam Singh. They have appealed to this Court against the judgment of conviction and order of sentence dated 5.10.1983. passed by the learned IInd Addl. Sessions Judge, Muzaffarnagar in S.T. No. 110 of 1983 by which the appellants were found guilty of committing offence u/s 302 read with Section 34. I.P.C. and each of them was directed to suffer R.I. for life. The prosecution case, as contained in Ext. Ka-1, the written report of P.W. 1 Smt. Sumitra wife of the deceased Baru was that Chhotu, the youngest of the four brothers, had died and his minor son Manoj (P.W. 2) was living with the informant Smt. Sumitra. Manoj Kumar (P.W. 2) was the son of the full sister of the informant, who was married to Chhotu the youngest of the four sons of Shyam Singh. It was stated that Shyam Singh had partitioned his entire immovable properties in 5 parts : his own part being blended with the shares of deceased Baru and his other deceased son Chhotu. Thus, the two appellants. Yashpal and Jaipal, were left with their own individual shares.

It is further stated that the two appellants were pestering the deceased to share the property, which was in share of their father, with appellants as well. That not being done, it was alleged, the two appellants were nursing grudge in their hearts against the deceased.

It so happened that on 13.12.1982 at 5.30 p.m., the deceased alongwith his nephew Manoj Kumar (P.W. 2) had gone to the cattle shed, situated west of the house of the appellants, to teether the catties. They were returning and when they had reached in front of the house of the appellants, it is stated that appellant Jaipal took the deceased into his arms while appellant Yashpal fired a shot at him. The informant stated that the cries raised by P.W. 2 Manoj Kumar, attracted the witnesses like P.W. 3 Shiv Raj Singh and others, who saw the deceased being dragged by the two appellants into the house of appellant Yashpal. After dragging the deceased inside the house, its doors were closed. The witnesses including the informant knocked at the doors as also pushed it when the wife of the appellant Yashpal opened the door and the two appellants ran away towards the fields. The informant stated that she alongwith others went Inside the room and found that the deceased was lying dead and was bleeding from different injuries which had been caused to him by Phawra which was also found lying just by the side of the dead body inside the room. The informant stated that she had left the dead body under the watch of her father-in-law, namely, Shyam Singh and a few of the villager and had herself come to the police station to lodge Ext. Ka-1. the written report.

As may appear. P.W. 5 S.I. Nathoo Lal who was the second officer posted in the police station, that after the case was instituted by drawing up the F.I.R. Ext. Ka-17. the charge of investigation was handed over to him whereafter he prepared the copies of the F.I.R. and made necessary entries in the General Diary and also recorded the statements of Head Moharrir as also the informant. P.W. 1 and other persons, who had accompanied her up to the police station. He thereafter, with other Sub Inspectors of police namely Mahavir Singh and Awal Singh Ravat as also a few constables, came to the place of occurrence with the informant. By the time he had reached at the village, it was quite dark and, as such, it was not possible to hold inquest upon the dead body. However. P.W. 5 went inside the house of appellant Yashpal and found the dead body lying inside a Pucca built room on the ground and as may appear further that he also searched that particular house of the appellant but could not find any incriminating articles, much less a pistol as may appear from Ext. Ka-2. The search and recovery memo was prepared in that behalf. He also did not find any family members inside the house. He thereafter, roamed around the village in search of the accused persons but could not succeed to trace them out.

P.W. 5 stated that he started the investigation early in the morning on 14.12.1982 when he held the inquest upon the dead body in presence of the witnesses and prepared the inquest report, Ext. Ka-4. He also inspected that particular room where the dead body was lying and seized the phawra as also the blood stained earth and the clothes, which were found on the dead body by preparing seizure memos, Exts. Ka-10 and 11. He prepared the letters addressed to the Reserved Inspector and Chief Medical Officer alongwith the challan for dispatching the dead body for post-mortem examination. The letters to the Reserved Inspector and the Chief Medical Officer have been marked as Exts. Ka-6 and 7. while the challan for carrying the dead body to the hospital by P.W. 4 Con. Ravinder Singh, has been marked as Ext. Ka-8. He inspected the place of occurrence including the cattle shed, path-way which was passing in front of the house of the appellant Yashpal as also the village road, which was situated east of the house of the appellant Yashpal and other important structures and on the pointing out of the informant and the witnesses he prepared the sketch map, Ext. Ka-9. During that course he found three wads of cartridge which was fired firstly by appellant Yashpal at the deceased lying at one of the gates which fitted in the premises of the house of the appellant Yashpal and also found driplets of blood at two different places which have been denoted by "C". The site, plan also indicated the direction in which the accused persons had dragged the deceased into that particular room of the house of the appellant Yashpal. where he was butchered with a Phawra and the place, where the dead body and blood stained earth were found, have been indicated by P.W. 5 in the site plan by letters "A" and "B". Likewise, during the course of inspection of place of occurrence, the Investigating Officer also found one pellet embedded into the outer wall of the house of the informant somewhere at place "C". That was also recovered and that place has also been indicated in the site plan by "X". The Investigating Officer finding materials sufficient submitted the charge-sheet, Ext. Ka-16, and thereafter sent the seized incriminating materials, like, blood stained earth, clothes and phawra to the Chemical Analyst for obtaining the report from the serologist.

It may be of some importance to point out that the Chemical Analyst, in his report dated 16.7.1983. reported that the blood was traced out on all articles, which were bearing SI. Nos. 1 to 9 and which were seized from the place of occurrence and those articles included the blood stained earth, phawra, which was the weapon of offence, one shirt, sweater, pajjama, underwear, blanket, muffler and one pair of sandles. However, so far as the report of the serologist. Ext. Ka.-20. is concerned, it was reported that articles No. 1 to 9 were definitely found carrying blood but on account of the disintegration of the formation of blood, the group could not be ascertained, as regard the trace of it on article No. 2, i.e., Phawra. Nonetheless the report was very clear that phawra and blood stained earth were also carrying human blood. On the above material facts, the prosecution placed the charges before the learned trial Judge for the trial of the two appellants.

The defence of the appellants was that they did not have any particular motive for committing the offence and it was not a fact that their father had partitioned the property and, in fact. P.W. 2 was residing at his maternal uncles house and on account of some village politics the appellants had been implicated falsely.

The prosecution examined as many as six witnesses in support of the charges, out of whom P.W. 1 Smt. Sumitra. P.W. 2 Manoj Kumar and P.W. 3 Shivraj Singh were eyewitnesses to the occurrence. We have already pointed out that Constable Ravindra Kumar. P.W. 4 had carried the dead body to the hospital for autopsy whereas P.W. 5 S.I. Natthoo Lal had investigated the case. The autopsy was conducted by Dr. S.K. Sharma. P.W. 6.

It was contended by Sri Brajesh Sahai, learned counsel appearing on behalf of the appellant, that if the motive was persistently entertained in the minds of the appellants then they could have the opportunities over all days to execute their plan of killing the deceased. It was simply absurd to believe as to why the appellants should chose a particular day and time for executing their plan. It was next contended that P.W. 1 had made improvements by adding that she was also present alongwith the deceased and P.W. 2 at the cattle shed and that improvement was purposely made so as to presenting herself as a competent eyewitness; while, on the other hand, her evidence may Indicate that she was not an eye-witness to the occurrence. So far as the evidence of P.W. 2 is concerned, it was also not coming from an eye-witness, who was very much under the influence of the informant, the full sister of her mother, and appears tutored to make a statement. The evidence of P.W. 3 was criticised as that of an interested witness. So far as the investigation of the case was concerned. Sri Sahai was castigating the conduct of the Investigating Officer by submitting that he was searching the house of the accused persons in the very night itself but was not seizing the incriminating articles, like, phawra, etc. from the place of occurrence and at the same time was not holding inquest upon the dead body. It was contended that the circumstances of the dead body being found in the house of the appellant Yashpal may not be treated as culpable as he was not found even present in his house by P.W. 5. It was, lastly, contended that even if the Court accepts the finding recorded by the trial Judge in the light of evidence of witnesses, it must consider that appellant Jaipal did not play any specific role in commission of the offence and he could be extended the benefit of doubt.

Sri A.N. Mulla, learned A.G.A. appearing on behalf of the State was submitting that witnesses were competent and uninterested. The motive was established and there were valid reasons for the Investigating Officer not to hold the inquest or to seize the incriminating articles in the very night of incident. It was also submitted that the motive was established and the participation of the appellant in killing the deceased has to be inferred from the circumstances attending upon the whole of the incident. It was contended that it was a dastardly act of the appellants who were the two younger brothers of the deceased and the manner of execution indicated the diabolic approach of the appellants and their savagery.

As regards the motive for committing of the offence, the learned trial Judge was not assured about it that it stood established by the prosecution rather he went on to record a finding that he did not see any reason emerging from the evidence of the witnesses and the evidence produced by the prosecution, to hold that motive had been established. After going through the evidence of witnesses, specially of P.W. 1, what we came to infer was that it could not be said that the motive was, firstly, absurd and secondly, it had not been established. Before we go to the relevant evidence of P.W. 1, we may point out that it was not necessary for the prosecution in a ''case of the present nature which had some very clear direct evidence on commission of offence coming through the eye-witness account of witnesses to prove the motive as was alleged by the prosecution in a very detailed manner. By making reference of the generogical table of the family of the deceased and the appellants, we want to examine the issue afresh. It is not denied that the eldest amongst the four brothers was the deceased Baru and though the appellants have denied the fact in their statements u/s 313, Cr. P.C. that P.W. 2 Manoj Kumar was not residing with the informant or the deceased after the death of his parents, we after having considered the evidence of witnesses especially that of P.W. 3 who happened to be equally related to both, the deceased and the appellants, find that there were some issue in respect of sharing of properties which were distributed after partitioning the same himself by Shyam Singh, the father of the deceased and the two appellants. The youngest brother amongst the four, Chhotu had died in absence of the deceased and the informant and a few months after the death of Chhotu as may appear, undeniably stated by P.W. 1. wife of Chhotu had also died. It is true that Shyam Singh would have been a right person to make some statement on the partition of properties by him but we have the evidence of the informant who could also have a very personal knowledge about the affairs of the house. Likewise, P.W. 3 who was the second cousin of the deceased was also stating that there was some feud between the brothers on account of imbalanced partitioning of the properties in five different shares, out of which three had been clubbed together to come into possession of deceased Baru. It is common knowledge of our rural society or even of the urban society that property feud could lead to any extreme steps to be taken by person who have been disadvantaged on account of disproportionate sharing of properties. We do not have any clear picture what, was the corpus of the property, which was possessed by the father of the appellants and the deceased, Shyam Singh, but the lady P.W. 1 had stated that it was some where in between 50 to 60 bighas of land. If three parts of it could be coming into one block by virtue of being blended together then there could be real consternation on account of heart burning of other co-sharers. More than half of the property was in possession of the deceased and it would have caused a clear imbalance socially and economically which might have created a situation of existing or not existing for the appellants also. When persons are placed in such a dire situation that they find their non-existence very much staring into their faces, then it is not unknown to human behaviour that they had picked up arms in the past to snatch or force equality or equilibrium in status. It was a fact that the deceased was the eldest among four brothers. It is also on record that he had served Indian Navy as appears from the evidence of P.W. 1 his wife at page 22 of the paper book which evidence is in the very opening line of cross-examination. It was expected that he would be respected by the brothers, but inequality could have caused a heart burn which would have boiled down into a situation that the two appellants had decided to finally settle the scores Themselves. The father of the deceased and the appellants was favouring the deceased, appears again coming out of the evidence of P.W. 1 Smt. Sumitra during her cross-examination which appears at page 26 of the paper book when she was put certain questions by the defence and was suggested that Shyam Singh, her father-in-law, had even made certain cash deposits in a bank account in a particular branch of the value of Rs. 51,000. This clearly gives an inkling to us that the deceased was the most favoured of the four sons and the favourite son had got 3 shares clubbed together on account of partition which was done by his father. Parents might have given birth to children but it is also not unknown that there are certain favourite child out of many to parents also. This may be the most important aspect in the life of persons that some of them could be identifying the reality and start living with such situation. But, every one is not bestowed with that sense of positive thinking in wordly affairs so as to start living with the realities. We, as such, are of the view that the learned trial Judges finding that motive was not established was not wholly correct. In our opinion, the evidence of witnesses is sufficiently indicative of the fact that the deceased was the most favourite of the four sons and he was enjoying somewhat a different status from the two appellants which could have definitely caused heart-burn in the two appellants impelling them to settle the scores themselves.

The three witnesses, who were examined by the prosecution, were relied upon by the learned trial Judge. We want to make some modifications in that finding as regards the evidence of P.W. 1. It is true that she stated that she was also accompanying the deceased and P.W. 2 and was present in the same premises of the cattle shed and it is also true that she has claimed following the deceased and P.W. 2 for some distance. We are not going to reject that claim merely because that particular fact of accompanying the deceased also at the cattle shed, was not mentioned in the written report. The occurrence had taken place at 5.30 p.m. on 13.12.1982 and the report was drafted to be presented at the police station on that particular day at 7.00 p.m. i.e. after 1-1/2 hours. The informant had to travel a distance of 4 miles. This time included the period which could have been consumed, after the informant had been confronted with the situation of finding her husband brutally murdered by the appellants in the very house of the appellant. She has stated in her evidence that she attempted to rush to the body of her husband but she was caught by persons, who were present there. This evidence has come in paragraph 31 of her cross-examination. In the last few lines appearing at that particular page she stated that she had gone to the police station only when she had recollected herself and had probably been consoled by persons who had assembled there. This fact, probably, indicates as to what was the mental state of lady in which the story could have been narrated by the bereaved lady to her scribe for presenting it at the police station. That fact probably gave a glimpse about the mental state of P.W. 1 and considering that it does not appear unusual that some important facts could have been missed out by the lady to be mentioned in the written report. Moreover, it Is a settled law that F.I.R. is not the last word in the prosecution case nor is an encyclopedia of the facts which could be material as may be omitted by them from being narrated before the police during investigation. They may be coming out of the witnesses when the witnesses depose in Court after having recollected the whole incident so as to reiterate the whole facts before the trial Judge. Inspite of that we are clearly of the view that the lady had not seen the shot being fired. This we say on the strength of the evidence of the lady which came in cross-examinations appearing at page 30 of the paper book. The lady was stating that when she first saw the appellants, she found appellant Jaipal having caught the deceased in between his arms and they were dragging him in that situation into the room where the dead body was ultimately found. The lady, however, appears a competent witness to us of later parts of the incident, i.e. she and other witnesses and persons, having assembled there, knocked at the doors of the room and, ultimately, the doors were opened by the wife of appellant Yashpal. We also accept the evidence of P.W. 1 when she was narrating that as soon as the doors were opened and she and others attempted to enter the room, the two appellants rushed out of it by giving push to the lady and other witnesses, especially P.W. 3, to vanish into the fields. Thus, we find P.W. 1 a competent witnesses on the above parts of the occurrence.

So far as P.W. 2 is concerned, we find that the learned trial Judge had not administered oath to him finding that he was not aware of the worldly affairs as he was not knowing exactly for what purpose the Courts were existing. He was aged about 11 years and the circumstance in his life of loosing his parents had come to him at an early age. It would have inculcated a sense of maturity as we generally find such maturity being found in such children who are put to harsh realities of life, on account of loosing their parents. Their tender age is not an incapacity for them, rather on account of finding themselves in this dire situation and out of care of their parents, they mature fast than the other children and this could be a case with P.W. 2 also. While we were going through the evidence of P.W. 2 and when we were hearing his evidence read out to us we found out that he was a natural witness coming out to fulfill the criteria of being truthful. Likewise, the evidence of P.W. 3 also appears unblemished. He has stated that his grandfather and the grandfather of the appellants were full brothers and he was equally related to both sides. While considering his evidence we could not come across any fact which could render him interested in any of the parties. He was living in the same village and appears maintaining a similar social relationship with both the sides as he appeared stating in the first paragraph of his evidence. He has given full account of the incident and during his cross-examination he pointed out the manner and details like, the place from where he was seeing the whole incident. That place, which was pointed out by P.W. 3 to the Court was pointed out by him as per his evidence, to P.W. 5 also and P.W. 5 stated that it was the place which has been marked "D" in the site plan. We have already indicated that there was not even an iota of fact in the long deposition of P.W. 3 which could create any doubt regarding his competence as an eyewitness''.

It was submitted by Sri Sahai that there were 14 injuries, which were recorded by P.W. 6. the doctor holding the post-mortem examination out of which injuries No. 11 and 12 were abraded contusions while injuries No. 9 and 10 were bearing clean margins. The weapon of assault was produced before P.W. 6 during his examination in Court and it has been described as the weapon of assault causing the injuries by its sharper bled part. It was further contended that there was complete absence of any gun shot injury on the deceased as there was no corresponding injury recorded by P.W. 6. It was contended that the story, as'' such, appears suspected. The 14 injuries, if considered very closely may point out that it was a severe attack upon the deceased with a weapon which has been marked as material Ext. 1 by the learned trial Judge. We have already Indicated that P.W. 6 has pointed out that most parts of the sharper edge of phawra which was used by the accused persons in assaulting the deceased, were blunted with some curves due to some other reason. Pellet was recovered by P.W. 5 from the wall of the place of occurrence. Whole face and head of the deceased was smashed. Occipital bone was fractured and temporal bone was smashed into pieces as was the parietal bone. The deceased was wearing very heavy clothes like shirt, sweater and had also put on a blanket around his shoulders. It is not that there was no firearm injury was caused to the deceased. We have no hesitation in recording that he had definitely been hit and some injury was caused by firearm. P.W. 5 had found 3 pieces of cartridges and quite some driplets of blood at "C" in the site plan. The manner in which the deceased was hacked Inside the house, might have disfigured or changed the injury which could have been caused to the deceased by firearm. The man was dragged Inside the house and there were abrasions which were on his right and left hands which have been described as injuries No. 15 and 16. Those injuries may explain the very act of dragging of the deceased committed by the appellants. Thus, it could not be said that there was no shot fired by the appellants.

The most important contention of Sri Sahai was that the finding of dead body in the house of Yashpal may not be the circumstance serious enough to sustain the conviction. We are of the view that the circumstance of finding the dead body in isolation may not be sufficient to fasten the liability of guilt upon the accused but when we considered that particular circumstance in tandem with circumstances first preceding it or succeeding it then we could have no hesitation in holding that it was a very serious circumstance as the evidence is very clear and cogent that the two appellants had captured the deceased and had dragged him inside the room and when the room was opened the deceased was found lying dead in a pool of blood with the weapon of offence lying by the side of the dead body. Not only that the appellant rushed out of the house to disappear in the darkness. These circumstances give an inference that it could be the appellants only who would have hacked the deceased to death.

On consideration of the evidence in the light of the submissions, we are of the view that the appellant Jaipal may also not get any benefit as he was an equal participant in capturing the deceased and dragging him inside the room also. We find that the learned trial Judge had rightly convicted the two appellants and properly passed a sentence upon each of them.

In the result, we do not find any merit in this appeal and it is accordingly dismissed. The two appellants are on bail. Their bail bonds are hereby cancelled. The learned trial Judge shall take appropriate steps for committing them to custody for serving out the sentence. Let a copy of this order be sent forthwith to the learned Sessions Judge, Muzaffarnagar for its onward transmission to the Court concerned for necessary action.