Allahabad High Court
State Of U.P. vs Suraj Singh Yadav And Anr. on 23 October, 2003
Equivalent citations: 2004CRILJ2132
Author: M. C. Jain
Bench: M.C. Jain, Onkareshwar Bhatt
JUDGMENT M. C. Jain, J.
1. The State has come up in appeal against the judgment of acquittal dated 3-9-1997 passed by Sri Sardar Akhtar, the then Addl. Sessions Judge/Special Judge (E.C. Act), Mainpuri in Sessions Trial No. 169 of 1993. The two accused-respondents-Suraj Singh and his wife Smt. Kapoori Devi were tried for an offence under S. 302, I.P.C. read with S. 34, I.P.C. for the murder of one Jagat Singh.
2. The incident had taken place on 23-9-1992 at about 12.20 p.m. at the house of the deceased-Jagat Singh and the accused persons situated in village Chhibkaria, P.S. Bhongaon, District Mainpuri. The report was lodged on 23-9-1992 at 1.45 p.m. by the eyewitness Jaivir Singh P.W. 1 (nephew of the deceased). The accused-respondents are also close relatives of the deceased. Suraj Singh is son of Ram Sahai Yadav who was real brother of the father of the deceased. Suraj Singh was a Police Constable and was posted at Aligarh. He was in shadow duty of an Ex. M.L.A. On the day of incident, he was going from his house to join his duty. The deceased-Jagat Singh asked him to go after constructing the partition Mend of the agricultural plot. Suraj Singh abused him. His wife Kapoori Devi exhorted him to go after finishing him. Suraj Singh and his wife then ascended their roof. Suraj Singh fired two shots from his gun whereas his wife Kapoori Devi fired three shots from a revolver which hit Jagat Singh who died instantaneously. The incident was seen by Sant Saran examined as P.W. 2 as also by Dafedar Singh. Gajraj Singh, Atar Sri wife of Jagat Singh and other villagers. Consequent upon the registering of the case, the investigation was taken up by S.S.I. S. K. Dixit P.W. 5. The postmortem over the dead body of the deceased was conducted by Dr. D. S. Rathor P.W. 4 on 24-9-1992 at 1.45 p.m. The following ante-mortem injuries were found on his person who aged about 50 years :
1. Lacerated wound 0.8 cm. x 0.3 x muscle deep on front aspect of left ear pinna middle part.
2. Firearm wound 0.5 cm. x 0.3 cm x bone deep on right and front aspect of upper part of nose 1.00 cm. below root of nose, underlying nasal bone fractured. Margins charred.
3. Lacerated wound 1.00 cm. x 0.4 cm. x muscle deep on outer and front aspect of right upper arm, 11.00 cm. above the right elbow joint.
4. Two firearm wounds 0.5 cm. x 0.3 cm. x skin deep anterior outer aspect of right upper arm, placed 3 cm. apart, just above the right elbow. Margins charred.
5. Firearm wound of entry 0.4 cm. x 0.3 cm. x muscle deep on front of neck 2.5 cm. right to midline just above the clavicle. Margins inverted and charred.
6. Firearm wound of entry 0.3 x 0.3 x muscle deep on right side of neck 3.00 cm. away from injury No. 5 just 3.00 cm. above the clavicle. Margins charred and inverted.
7. Multiple firearm wounds of entry 0.4 cm. x 0.3 cm. x chest cavity deep to 0.4 cm. x 0.4 cm. x muscle deep in size in an area of 7.00 cm. x 6.00 cm. on front of chest midline on both sides in middle part of front chest. Margins charred and inverted.
8. Firearm wound of entry 0.4 cm. x 0.4 cm. x chest cavity deep on lower part front and outer aspect of right side of chest 11.00 cm. away from right nipple, at 7 O'clock position. Margins inverted and charred.
3. On internal examination, two metallic pieces were recovered from the soft tissues of the neck, two from left ventricle, one pellet from right chest cavity and one from abdomen cavity. The death had occurred due to shock and haemorrhage owing to ante-mortem injuries.
4. Apart from the medical and formal evidence including that of investigation, the prosecution relied upon the testimony of Jaivir Singh P.W. 1 and Sant Saran P.W. 2 as eye-witnesses.
5. The defence was of denial.
6. Disbelieving the eye-witnesses on the ground that there was contradiction between the medical evidence and ocular testimony, the learned trial Judge also observed that the wife of the deceased and other independent witnesses had not been examined. He recorded acquittal which is challenged by the State before us through this appeal.
7. We have heard Sri M. C. Joshi, learned A.G.A. from the side of State and Sri Samit Gopal, learned Amicus Curiae from the side of accused-respondents. He came to be appointed under these circumstances that the respondents had been served and filed bail bonds as per order of this Court, but they did not engage any counsel.
8. The record of the lower Court has been summoned before us which we have carefully perused.
9. Learned A.G.A. has argued that the guilt of the accused-respondents was proved to the hilt by the testimony of two eye-witnesses examined at the trial which had no infirmity with the medical evidence. The trial Court, according to him, committed grave error in acquitting the two accused-respondents on the basis of alleged superficial contradiction between ocular version and medical evidence and owing to other independent witnesses having not been examined. The submission of learned Amicus Curiae, on the other hand, is that the finding of acquittal is perfectly justified for the reasons assigned by the trial Court.
10. On carefully scrutinizing the evidence on record, we are in the agreement with the trial Court that the acquittal of accused-respondent No. 2 Kapoori Devi was perfectly justified. The reasons are not far to seek. The prosecution case and evidence was that she fired three shots on the deceased from revolver. However, it was categorically stated by Dr. D. S. Rathor P.W. 4 who conducted autopsy on the dead body of the deceased that he had not sustained any gun-shot wound of revolver. In revolver a bullet is used. A glance on the ante-mortem injuries found on the person of the deceased also clearly indicates that he did not sustain any bullet injury. Further, the prosecution case was that when deceased Jagat Singh had asked the accused-respondent No. 1 Suraj Singh to go to join his duty after constructing partition mend, his wife Kapoori Devi accused-respondent No. 2 had exhorted her husband to go after finishing him. That means to say, she had exhorted her husband to kill Jagat Singh. Keeping it also in view, it does not stand to reason that she herself also used a revolver in shooting Jagat Singh. In any case, the deceased having not received any revolver injury, this part of the prosecution case could not be believed that Kapoori Devi also opened shots on him from a revolver. At times, one finds a tendency to exaggerate the guilt of the accused side. Jagat Singh had asked Suraj Singh accused-respondent No. 1 to first construct partition mend before going to join his duty. Therefore, in natural course of things, he would have annoyed him. He was a police constable and had a gun and hardly needed any exhortation to kill Jagat Singh who had so asked him. Therefore, it was also doubtful that accused-respondent No. 2 Kapoori Devi had actually played assigned role of exhortation. On judicious scrutiny of the evidence on record and concomitant circumstances, her involvement in the commission of the crime even by exhortation was doubtful and her acquittal is perfectly justified. We see no reason whatsoever to interfere so far as she is concerned.
11. However, we are firmly of the opinion that the evidence adduced by the prosecution furnished sterling basis proving guilt of the other accused-respondent No. 1 Suraj Singh beyond any shadow of doubt. We have no hesitation to say that the learned trial Judge acquitted him on flimsy grounds and on a superficial approach. There was no contradiction at all in the medical and ocular testimony. Non-examination of other independent witnesses also did not adversely affect the prosecution case so far as he was concerned. A look at the postmortem report of the deceased shows that out of 8 ante-mortem injuries sustained by him, six were in the form of firearm wounds and the remaining two were lacerated wounds. The firearm wounds sustained by him could definitely be sustained by shooting from gun as has come down from the testimony of Dr. D. S. Rathor P.W. 4 too. A number of pellets had been recovered from inside his body. The cartridges are used in a gun and it was beyond the pale of doubt that the gun-shot injuries sustained by the deceased could have been caused by shooting from gun-which, as per the prosecution case, had been used by the accused-respondent No. 1 Suraj Singh in murdering the deceased Jagat Singh. No doubt, the Doctor stated that all gun-shot injuries sustained by him could be the result of one shot and the testimony of Jaivir P.W. 1 informant is that Suraj Singh had opened two shots on Jagat Singh. He so stated in the FIR also, but the statement of Doctor cannot be so interpreted that the gun-shot injuries sustained by the deceased were the result of single shot only. He does not overrule the possibility of more than one shot resulting in the gunshot injuries as were found on the person of the deceased. Moreover, it is of no great importance as to one or two shots fired by Suraj Singh hit the victim. The point of matter is that he fired on the victim by gun and latter sustained injuries thereby. The Supreme Court has held in the case of Leela Ram (D) through Duli Chand v. State of Haryana (1999) 8 JT (SC) 274 : (AIR 1999 SC 3717) that it is immaterial whether one or two shots were fired. Such contradiction does not travel to the root of the nature of offence. The discrepancy in this behalf in ocular account and medical evidence cannot affect credibility of evidence, Therefore, the prosecution case as against accused-respondent No. 1 Suraj Singh could not be displaced on the premise as to whether one or two shots were fired by him on the deceased. The trial judge has referred to the distance of shooting also as spoken by the eye-witnesses and Doctor. The Doctor stated that the shooting must have been from within the range of six feet. We note that the trial Judge emphasized that there was charring in some of the firearm wounds sustained by the deceased which could not be possible if the distance of shooting was longer as spoken by the eye-witnesses. Again the Supreme Court has ruled in the case of State of U.P. v. Sughar Singh, AIR 1978 SC 191 : (1978 All LJ 466) that when there is direct evidence of eye-witness is available, inconsistency relating to distance from which the gunshots were fired between evidence of medical expert and eye-witness is of no significance when the prosecution evidence pertaining to assault by guns and pistol substantially tallied with medical evidence. It has also to be kept in mind that some discrepancies in the narration of the details of the incident are bound to be there in the testimony of the witnesses. The corroboration of testimony of the witnesses by medical evidence cannot be expected with mathematical accuracy. Picturesque narration or description of the incident with mathematical accuracy cannot be expected from truthful witnesses who are not tutored. The testimony delivered by two eye-witnesses is substantially in conformity with the medical evidence that the deceased received gunshot injuries as a result of shooting resorted to by accused-respondent No. 1 Suraj Singh. The prosecution case as against the accused-respondent No. 1 Suraj Singh could not be thrown over board by pedantic approach, searching for superficial contradiction between the medical and ocular version.
12. We, therefore, do not find any contradiction or inconsistency between the medical and ocular version so far as the accused-respondent No. 1 Suraj Singh is concerned.
13. The rejection of the testimony of two eye-witnesses on the ground that they were interested persons and no other independent witness had been examined is also not at all justified. If the witness is related to the deceased, he would naturally be interested in ensuring that the real culprit is punished and not spared. The deceased as well as the accused-respondent No. 1 Suraj Singh were closely related to the two eyewitnesses Jaivir P.W. 1 and Sant Saran P.W. 2. They were the most natural witnesses whose presence at the spot could not be doubted as the incident happened at the house of the parties. The deceased, accused-respondent No. 1 Suraj Singh and two eyewitnesses had a common ancestor Rustam. He had three sons Jodha Singh, Sughar Singh and Ram Sahai. Accused-respondent No. 1 Suraj Singh is the son of Ram Sahai whereas Jagat Singh deceased was the son of Jodha Singh. Jaivir P.W. 1 is the son of Dafedar Singh brother of Jagat Singh whereas Sant Saran P.W. 2 is the son of Netrapal Singh another brother of deceased. No doubt, it has come in the evidence that there was a dispute between the parties including these two eye-witnesses about six bighas land of Sughar Singh who was issueless. But that could not lead to the conclusion that for that reason Jaivir. P.W. 1 and Sant Saran P.W. 2 were deposing falsely against the accused-respondent No. 1 Suraj Singh. Such family disputes are not uncommon to be found in the society. It would tantamount to stretching the imagination beyond permissible limits to surmise that because of such dispute over land, these two witnesses joined hands and deposed falsely against the accused-respondent No. 1 Suraj Singh. The FIR was promptly lodged by Jaivir P.W. 1 within 11/2 hours of the incident. Sant Saran P.W. 2 is also named as a witness in the FIR. As we mentioned earlier, they were most natural witnesses of the incident. They were subjected to searching cross-examination but their testimony remained unshaken so far as the accused-respondent No. 1 Suraj Singh was concerned that he had fired by gun on the deceased. We find nothing to reject their testimony so far as the accused-respondent No. 1 Suraj Singh is concerned.
14. Non-examination of the wife of the deceased is not at all material. Even if she had been examined, that would not have made any difference. Rather, criticism could be built against her evidence on the premise that she was the most interested person being the wife of the deceased. In any case, it is the quality of evidence and not quantity that matters. The evidence is to be weighed and not counted. True, the FIR stated that certain residents of the village had also seen the incident and none of them was examined. In the case at hand, descendants of a common ancestor were involved. One of them had shot dead the other at their house. It is common knowledge and experience that outsiders seldom come forward to involve themselves even as witnesses in such matters to avoid trouble or enmity for themselves in future. Generally, the people keep themselves away from the Courts unless it is inevitable. We are in judgment that non-examination of any other witness did not cause any ripple affecting prosecution case as against the accused-respondent No. 1 Suraj Singh whose guilt was proved to the hilt.
15. It has also been argued by the learned Amicus Curiae appearing for accused-respondents that the Investigating Officer did not find any blood at the spot and further that no blood was there on the clothes of Jaivir P.W. 1 and Sant Saran P.W. 2. He, therefore, reasoned that the place of incident was rendered doubtful and so was the presence of eye-witnesses.
16. We have scrutinized the statement of the Investigating Officer P.W. 5 Santosh Kumar Dixit. We find that it was not even suggested to him that he did not find any blood at the spot. The only suggestion made was that he did not depict in the site plan the place of finding of blood. It could be the result of negligence or carelessness on the part of the Investigating Officer, but the place of incident cannot be doubted thereby. Similarly, the presence of eye-witnesses cannot be doubted if there was no blood on their clothes. It was not necessary that their clothes must have caught blood stains while lifting the victim by his hands and feet from the place he had fallen down on receiving injuries and placing him on Chabutra.
17. In view of the above discussion, we are in judgment that the guilt of the accused-respondent No. 1 Suraj Singh was established. He shot dead his close relative Jagat Singh without any justification whatsoever. He committed an offence under Section 302, IPC. We would, therefore, allow this appeal in part. Having regard to the totality of facts and circumstances, we would award him life imprisonment for the said offence which is lesser of two alternative punishments provided for the said offence.
18. The appeal filed by the State is partly allowed. While maintaining the acquittal recorded by the trial Court in respect of the accused-respondent No. 2 Kapoori Devi, we reverse the finding of acquittal in respect of the other accused-respondent No. 1 Suraj Singh. We find him guilty of an offence under Section 302, IPC for murdering Jagat Singh and convict him therefor. He is sentenced to undergo life imprisonment for said offence.
19. The accused-respondent No. 1 Suraj Singh, who is police personnel, is on bail. He shall be arrested and lodged in jail to serve out the sentence of life imprisonment awarded to him.
20. The Chief Judicial Magistrate, Mainpuri shall report compliance within two months from the date of receipt a copy of this order. A copy shall also be sent by office to D.G.P., U.P., Lucknow so as to locate the posting of the accused-respondent No. 1 Suraj Singh. He shall inform the Chief Judicial Magistrate. Mainpuri about the same within a week from the date of receipt of copy of the order to facilitate compliance.
21. Sri Samit Gopal who argued the appeal as Amicus curiae from the side of accused-respondents on being so appointed under the orders of this Court shall get Rs. 1000/- as his fee.