Allahabad High Court
Shiv Nath Singh & Another vs State Of U.P. on 22 January, 2016
Author: Arvind Kumar Tripathi
Bench: Arvind Kumar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
Court No. - 42
Case :- CRIMINAL APPEAL No. - 4061 of 2006
Appellant :- Shiv Nath Singh & Another
Respondent :- State Of U.P.
Counsel for Appellant :- Sheo Ram Singh,Ambrish Kumar,D.R.Azad,Dileep Kumar,Dilip Gupta,Himanshu,Lav Srivastava,M.K.Tiwari,Manish Tiwari,Rajeev Gupta,Rajeev Misra,Swadesh Kumar
Counsel for Respondent :- Govt. Advocate,B.P. Mishra,Kamal Krishna,V.P.Mishra
CONNECTED WITH
Case :- CRIMINAL APPEAL No. - 3898 of 2006
Appellant :- Amar Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Smt. Usha Srivastava,Ambrish Kumar,M.K.Tiwari,Mithlesh Kumar Tiwari,P.K.Tripathi,R.A.Zaidi,S.Kumar,Shivnath Singh,V.K. Singh,Vinod Kumar Srivastava
Counsel for Respondent :- Govt. Advocate
WITH
Case :- CRIMINAL APPEAL No. - 4403 of 2006
Appellant :- Birendra Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Vishnu Gupta,M.K.Tewari,Manish Tiwari,Mrs.Mridul Tripathi,P.K. Tripathi,R.O.V.S. Chauhan,S.K.Singh,S.R. Singh,Swadhesh Kumar
Counsel for Respondent :- Govt. Advocate,B.P.Mishra,P.B. Misra,P.K.Chauhan
Hon'ble Arvind Kumar Tripathi,J.
Hon'ble Arvind Kumar Mishra-I,J.
(Delivered by Hon'ble Arvind Kumar Mishra-I, J) We have heard respective submissions of both the sides and perused the record.
The aforesaid criminal appeals have been filed by the appellants Shiv Nath Singh, Shamsher Singh, both sons of Baboo Singh, Amar Singh son of Siya Ram and Birendra Singh son of Rajjan Singh @ Dashrath Singh against the judgment and order of conviction and sentence dated 06.07.2006 passed by Additional Sessions Judge/ Special Judge (E.C. Act), Farrukhabad in Sessions Trial No. 50 of 1986, State Vs. Shiv Nath Singh and others (arising out of Case Crime No. 320 of 1985) under Sections 147, 148, 302/149, 307/149 IPC, P.S. Mohammadabad, District Farrukhabad whereby the learned trial Judge has sentenced the appellants Shiv Nath Singh, Shamsher Singh and Amar Singh under Section 148 IPC with 1 1/2 years rigorous imprisonment with fine of Rs. 2,000/-, in default will have to suffer additional three months' imprisonment, under Section 307 IPC read with Section 149 IPC each of the appellants will have to undergo 10 years rigorous imprisonment with fine of Rs. 5,000/-, in default, the concerned defaulting convict will have to suffer additional imprisonment for one year, under Section 302 IPC read with Section 149 IPC each of the appellants will have to undergo imprisonment for life with fine of Rs. 20,000/-, in default, the concerned defaulting convict will have to suffer additional imprisonment for two years, under Section 147 IPC appellant Birendra Singh will suffer one year rigorous imprisonment with fine of Rs. 1,000/-, in default, he will have to suffer additional imprisonment for three months, under Section 307 IPC read with Section 149 IPC appellant Birendra Singh has been sentenced with 10 years rigorous imprisonment with fine of Rs. 5,000/-, in default, he will have to undergo additional imprisonment for one year. He has been further sentenced under Section 302/149 IPC with life imprisonment and fine of Rs. 20,000/-, in case of default, he will have to suffer two years additional imprisonment. All the sentences of the aforesaid appellants have been directed to run concurrently.
Brief matrix of facts as emanates from perusal of record reflects that a first information report was lodged against the appellants at police station Mohammadabad, District Farrukhabad at Crime No. 320 of 1985, under Sections 147, 148, 149, 302, 307, 323 IPC on 27.12.1985 at 21.10 hours by first informant Ashok Kumar son of Jagdish Singh by alleging the incident to have taken place at about 7.30 p.m. in his village (Tajpur). At that point of time the first informant was coming out of house of Brijpal Singh of the same village after attending "Chhath Party". As soon as he came out of house, he heard some noise coupled with abuses from the side of road, he rushed to the place of incident near the shop of Siya Ram on Pakka Road where he saw Shiv Nath Singh son of Baboo Singh, Siya Ram son of Hukum Singh possessing gun, Shamsher son of Baboo Singh and Amar Singh son of Siya Ram possessing country made pistol and Birendra Singh son of Rajjan Singh @ Dashrath Singh with Lathi. They had surrounded his father Jagdish and were saying to his father that "you are helping and protecting Harijans (members of scheduled caste community) whereupon informant's father Jagdish insisted that he will keep on doing the same. In the meanwhile Surendra Singh son of Ram Nath, Veer Pal son of Surjan Singh, Deshraj son of Mullu Singh and Rajendra Singh son of Chhote Singh, Vijay Kumar son of Guljar Singh also arrived on the spot, when Shiv Nath Singh while abusing exhorted 'Maro Sale ko ki sabhi Aaj....................." whereupon accused persons started firing and Birendra Singh assaulted with Lathi blow due to which the fire hit informant's father Jagdish Singh, Surendra Singh and Veer Pal and they died on the spot and Deshraj Singh sustained pellet injuries on his face, injured Vijay Kumar Singh and Rajendra Singh sustained injuries caused by Lathi blow. On alarm, being raised, various persons of informant's village Munendra Singh son of Natthu Singh, Chandra Bhan son of Kalyan Prasad Dubey, Brijpal Singh son of Shanker Singh having torches in their hands arrived on the spot, saw the incident and challenged the assailants whereupon the assailants made their escape good in the village. Informant did not pursue them on account of fear of weapons possessed by the assailants. The assailants committed the incident after much preparation. Motorcycle of Shiv Nath Singh is parked on the spot which motorcycle was likely to be used after commission of the offence. Assailants have committed mass massacre. First information report is exhibit Ka-3. Entries were noted down in the chik FIR at 21.10 hrs on 27.10.1985 at P.S. Mohammadabad, District Farrukhabad at Case Crime No. 320 of 1985 under Sections 147, 148, 149, 302, 307, 323 IPC, chik FIR is exhibit Ka-9A. Case was registered at relevant G.D. rapat no. 28 at the aforesaid crime number at 21.10 hrs on 27.12.1985. The relevant G.D. is exhibit Ka-10. Investigation of the case took place and inquest report regarding three deceased persons was prepared on 27.12.1985 itself. Inquest report of deceased Jagdish Singh was completed around 22.30 hrs and the same is exhibit Ka-13. Inquest report of deceased Surendra Singh was completed at 23.00 hrs and the same is exhibit Ka-23 and inquest report of deceased Veer Pal Singh was prepared at 23.30 hrs and the same is exhibit Ka-24 on record.
Thereafter, the relevant papers necessary for sending the dead bodies of aforesaid deceased for post mortem examination were prepared and post mortem examination of the aforesaid deceased was conducted by Dr. C.K. Chaturvedi on 28.12.1985 at Mortuary, Fatehgarh. Post mortem examination on the dead body of Jagdish Singh was conducted at 11.30 a.m. the doctor found the following ante-mortem injury:
(i) Guh shot wound entry 6 cm x 5 cm x abdomen cavity deep on upper part of abdomen just below xyphoid process at 12 O' clock position. Margins are everted, lacerated ecchymosed. Directed front to back slightly upward.
In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of gun shot injury. This post mortem examination report is exhibit Ka-7.
Post mortem examination on the dead body of Veer Pal Singh was conducted at 12.50 p.m. on the very same day (28.12.1985) and the doctor noted following ante-mortem injuries:
(i) Multiple wound of firearm of entry on face and forehead thirteen (13 in number) measuring .3 cm x .2 cm x bone deep to .5 cm x .2 cm x muscle deep. Margin everted, lacerated, ecchymosed. Directed front to back maximum side of face.
(ii) Multiple wound of firearm entry 18 in number measuring 16 cm x 18 cm at both supra clavicle region and front of chest. Margins are enverted, lacerated, ecchymosed, measuring .5 cm x .2 cm x skin cavity deep (chest) to .3 cm x .2 cm x muscle deep. Direction front to back.
In the opinion of the doctor, the cause of death was said to be shock and haemorrhage as a result of fire arm injury. This post mortem examination report is exhibit Ka-8.
Similarly post mortem examination on dead body of deceased Surendra Singh was conducted at 2.00 p.m. by Dr. C.K. Chaturvedi, who found the following ante-mortem injuries:
Gun shot of entry 6 cm x 5 cm x chest cavity deep, 5 cm below the right nipple at 6 O' clock position. Piece of liver and intestine seen coming out. Margins are lacerated, enverted, ecchymosed. Directed front to back downward left side.
In the opinion of doctor the cause of death was due to shock and haemorrhage as a result of gun shot injury. This post mortem report is exhibit Ka-6.
Record further reflects that the injured persons namely Deshraj Singh, Ashok Kumar Singh, Rajendra Singh and Vijay Kumar were taken to District Hospital, Fatehgarh for their medical examination. Medical examination of Deshraj Singh was conducted at 1.15 a.m. on 28.12.1985 wherein the following injuries were found on his person:
(i) Multiple gun shot wound of entry involving entire face, forehead, eyes measuring from forehead to chin 17 cm x between both ears 30 cm; individual injury measuring from 0.5 cm x .4 cm to 0.3 cm x 0.25 cm from skin, muscle to unproved depth, margins are inverted, contused, irregular.
(ii) Multiple gun shot wound of entry over front of neck upper part in area 5 cm x 4 cm measuring from 0.5 x .4 cm to 0.3 cm x .25 cm from skin to unproved depth. Margins are inverted, contused, irregular.
Both kept under observation and advised x-ray skull AP & lateral view to decide nature of injury caused by gun shots.
Duration about ¼ day old. This injury report is exhibit Ka-4.
Medical examination of Ashok Kumar Singh was conducted at 1.00 a.m. On 28.12.1985, on his person following injury was found:
(i) Lacerated wound 5 cm x 1 cm x muscle deep back of head, 7 cm above left ear.
Kept under observation and advised x-ray of skull to decide nature of injury caused by blunt object.
Duration about ¼ day old. This injury report is exhibit Ka-5.
Medical examination of Rajendra Singh was conducted at 10.00 a.m. on 28.12.1985, on his person following injury was found:
(i) Lacerated wound on the left side of head 3.5 cm x 0.5 cm x scalp 3 cm above the root of left ear and 8 cm from occiput.
Remark- Injury is simple caused by blunt object. Duration is about half of a day. This injury report is exhibit Ka-9.
Medical examination of Vijay Kumar was conducted at 10.15 a.m. on 28.12.1985, on his person following injury was found:
(i) Lacerated wound on the right side of forehead .5 cm x 0.5 cm x muscle 10.5 cm above the root of right ear and 1.5 cm from occiput.
Remark- Injury no.1 is simple caused by blunt object duration is about half of a day. This injury report is exhibit Ka-10.
During the course of investigation the Investigating Officer also took various steps and prepared several fard (memos), the relevant and important ones are the memo of Torches exhibit Ka-25, memo of simple and blood stain soil exhibit Ka-26, memo of motorcycle of Shiv Nath Singh Yezdi No. UHQ 1966 exhibit Ka-27, memo of motorcycle of Jagdish Singh UPV 6950 exhibit Ka-29, memo of clothes of injured Rajendra Singh exhibit Ka-32, memo of blood stained clothes of complainant Ashok Kumar Singh is exhibit Ka-33, blood stained clothes of injured Vijay Kumar Singh is exhibit Ka-34, blood stained clothes of injured Deshraj is exhibit Ka-35, memo of iron nail and one electric bulb and its custody to Anis Kumar is exhibit Ka-36.
Besides recording statements of various persons the Investigating Officer also prepared the site plan (exhibit Ka-27). After completing the investigation chargesheet was submitted under Sections 147, 148, 149, 307, 302 and 323 IPC at Crime No. 320 of 1985 against the appellants which charge sheet is exhbit Ka-48. Thereafter, the committal proceedings took place and after the case was committed to court of session, it was made over for trial to the trial court. The prosecution and the accused persons were heard on the point of charge and prima-facie ground was found existing for framing charge under Section 147, 148, 302/149, 307/149 IPC. The charges were read over and explained to accused persons in Hindi who denied the charges and opted for trial. In turn the prosecution was asked to adduce its testimony whereupon the prosecution produced in all eight witnesses, P.W.-1 Ashok Kumar Singh and P.W. 2 Deshraj Singh are the injured eye witnesses of fact, P.W.-3 Dr. O.P. Gangwar who medically examined injured Ashok Kumar Singh and Deshraj Singh has proved exhibit Ka-4 and Ka-5 respectively, P.W.-4 is Dr. C.K. Chaturvedi who conducted post mortem examination on the dead bodies of three deceased persons and has proved the post mortem reports, P.W.-5 Dr. S.C. Katiyar who has conducted medical examination of injured Rajendra Singh and Vijay Kumar has proved the same as exhibit Ka-9 and Ka-10 respectively. P.W.-6 Ram Raj Singh, Head Constable has proved entries made in the chik FIR and the concerned G.D. as exhibit Ka-9A and Ka-10A respectively. P.W. 7 is Investigating Officer Baij Nath Singh, he has conducted the investigation and has filed charge sheet exhibit Ka-48. P.W. 8 is Shyam Sunder Yadav who has specifically proved the preparation of inquest report in his testimony. Thereafter, evidence for the prosecution was closed and statements of accused persons were recorded under Section 313 Cr.P.C. They have stated to have been falsely implicated in this case on account of enmity. Appellant Shiv Nath Singh stated in his statement that informant Ashok Kumar Singh had got lodged a false case through one Vedaram of village Ahimalapur under Section 392 IPC against him and his brother Shamsher Singh and Veer Bhan wherein after investigation his name was deleted and the very next day the police arrested him under Section 307 IPC. Had there been any such case under Section 302 IPC he would have been arrested under Section 302 IPC. He some how managed installation of electricity connection for his tubewell which was earlier denied by Jagdish Singh due to which the first informant was having grudge against him. Some litigation regarding landed property also took place with co-accused Amar Singh and Siyaram. He is neither possessing any licensed gun nor owns any motorcycle. Defence has led ocular testimony of D.W.-1 Anil Kumar Singh on fact that it was foggy night when the incident allegedly took place and visibility was very poor. The learned trial court after hearing both the sides on merit passed the aforesaid judgment and order of conviction and sentence, consequently this appeal.
Learned counsel for the appellants claims that the entire incident is cooked up story and fabricated one, no offence was in fact committed by the present appellants. The so called eye account testimony of P.W.-1 Ashok Kumar Singh and Desh Raj is contradictory, they have been assaulted by some unknown persons. However, on account of enmity they were deliberately implicating appellants in the present case. No specific role has been assigned against the appellants as to whose fire hit whom. The so called eye witness testimony on the face appeared to be tutored, sketchy and motivated. The FIR is ante-time, the inquest report has not been properly proved. It has not been established as to when the Investigating Officer arrived at the place of occurrence and as to when he started investigation. The inquest reports on record do not give any time as to when its preparation started. The relevant G.D. regarding the time when the Investigating Officer started from police station to the place of occurrence has also not been proved. Presence of the eye witnesses on the spot is doubtful and managed in collusion with the police. How is it possible to complete the inquest report of three deceased persons on the very same day before 12.00 midnight when the FIR was lodged at 21.10 p.m. on 27.12.1985. A number of prosecution papers do not bear the case crime number which fact throws doubt on the authenticity and veracity of the same and at the root of the prosecution case. In fact the FIR was lodged after inquest reports were prepared. Role of Veer Pal is allegedly confined to assault being caused by Lathi which itself is an isolated act and fair enough to show that Veer Pal was not sharing any common object with other accused persons and he cannot be made responsible for any offence under Section 307 and 302 IPC read with Section 149 IPC. In this regard the very injury on the deceased persons and the injured amply proves act of Veer Pal as an isolated act. Moreso, the role of assault being caused by lathi by Veer Pal has been devised just to incarnate presence of Veer Pal on the spot, although he was not present on the place of occurrence. Apart from above, learned counsel laid stress on the ground that the source of light on the spot has not been reasonably proved. D.W.-1 has himself explained that it was foggy night and visibility was very poor and nothing was visible at a distance of 4-5 meters and lastly the learned counsel summed up that the very perusal of the site plan exhibit Ka-27 invariably shows that the point from where fire was opened is marked by word 'x' and this spot marked by 'x' cannot be seen by any witness. Presence of eye witnesses as per the site plan on the spot is doubtful and they appear to be chance witnesses.
While replying to aforesaid contention the learned A.G.A. submitted that in this case the trial court has analysed the entirety of the matter viz.a.viz. the testimony on record. The presence of two eye witnesses on the spot is most natural and consistent. The place of incident is well within sight of the witnesses, the very site plan itself shows the path marked by arrow which was followed by the witnesses while they were rushing towards the spot after hearing the noise. The entire testimony of both the eye witnesses P.W. 1 and P.W. 2 inspires confidence, establishes their presence on the spot and proves the incident in its entirety. They have been put specific question in cross examination regarding the particular manner and style in which the incident took place, which has been positively answered by both the eye witnesses. The inquest reports were quickly prepared and inquest report of deceased Jagdish Singh mentioned the very crime number of the case which by itself is sufficient to establish that the case was lodged at 21.10 hrs on 27.12.1985. The lodging of the FIR and entries of the FIR in the relevant chik has been proved by prosecution witness Ram Raj Singh as exhibit Ka-9A, Ka-10A. Similarly the very act of assault being caused is attributed to all the accused persons present on the spot and they appear to have been acting in prosecution of their common object commencing with the exhortation of Shiv Nath Singh the assault was made with the Lathi blow of Birendra Singh and in a little short while the same was followed by indiscreet firing and triple murder itself speaks about the intention of the assailants that they wanted to kill the complainant side without showing any mercy. The factum of enmity is very much proved. Certain contradictions are bound to occur in all such cases where triple murder has taken place, but it is the credit worthiness and reliability of the prosecution witnesses of fact which has got major role of play. Testimony of both the eye witnesses is worthy, reliable and inspiring confidence. Some non explanation and contradiction occurring in the testimony of other formal witnesses say the Investigating Officer and other police personnel are of trivial nature and will not cast any shadow of doubt on the prosecution case.
Also considered the above submission.
The moot point that arises for consideration in this appeal relates to fact (i) whether the prosecution has been able to prove its case beyond reasonable doubt against accused persons? and (ii) whether the act of Birendra Singh is an isolated act devoid of sharing any common object with other assailant and his presence on the spot is doubtful?
Before we proceed further in this case, it would be convenient to have a reference of the contents of FIR exhibit Ka-3. FIR alleges time of occurrence 7.30 p.m. at that point of time complainant Ashok Kumar Singh after attending 'Chhath' ceremony in Brij Lal's house in his village came out of the house when he heard some noise, he rushed to the spot in front of Siya Ram's shop on Pakki Road, he saw Shiv Nath Singh and Siya Ram possessing gun and Shamsher Singh and Amar Singh possessing country made pistol and Birendra Singh was wielding Lathi. The assailants had surrounded complainant's father Jagdish Singh and were saying to him (Jagdish Singh) that he has helped Harijans (members of scheduled caste community) and protects them whereupon Jagdish Singh insisted that he will continue to do the same. In the meanwhile other co villagers Surendra Singh, Veer Pal Singh, Deshraj Singh, Rajendra Singh and Vijay Kumar @ Ram Vriksh also arrived at the place of occurrence, when Shiv Nath Singh abused and exhorted that all persons are collected here let thorn be removed when Birendra Singh opened assault with Lathi and fire was opened by the other assailants, due to which Jagdish Singh, Veer Pal Singh and Surendra Singh died on the spot, Deshraj sustained several pellet injuries on his face besides complainant Vijay Kumar Singh and Rajendra Singh sustained injuries by Lathi blow. Upon hearing the sound of fire co-villagers Munendra Singh, Chandra Bhan and Brij Pal bearing torches in their hands also arrived on the spot, they challenged the assailants who made their escape good by running towards village. The incident is alleged to have occurred around 7.30 p.m. and the distance of police station from the place of incident is about 8 km. The FIR is stated to have been lodged at P.S. Mohammadabad at 21.10 hrs the very same day on 27.12.1985 and the investigation of the case started thereafter.
We may start with contention of appellant that the FIR is ante time. In this context perusal of record suggests that the inquest reports of deceased Jagdish Singh, Surendra Singh and Veer Pal Singh was prepared the very same day on 27.12.1985. The very perusal of these inquest reports prima-facie reflects that the case crime no. 320 of 1985 was written on the inquest report of deceased Jagdish Singh. This by itself bears credit to the effect that at the time of preparation of the inquest report the FIR was very much in existence and it cannot be inferred that the other inquest reports of Surendra Singh and Veer Pal Singh Ka-23 and Ka-24 since don't bear the case crime number, therefore, the FIR is ante-time for the reason that the very crime number was mentioned in one of the inquest reports that is of Jagdish Singh and preparation of these inquest reports have been duly proved by P.W.-8 Sub Inspector Shyam Sunder Yadav, he has been cross examined at length. On the point of preparation of inquest report nothing adverse has come out. Further, the contention regarding the FIR being ante-time stands overruled by the testimony of Dr. O.P. Garg P.W.-3 who conducted medical examination of injured Ashok Kumar Singh and Deshraj Singh in the intervening night of 27/28.12.1985 after the incident at 1.00 a.m. and 1.15 a.m. respectively and has proved the injury reports of injured Ashok Kumar Singh and injured Deshraj Singh as exhibit Ka-5 and ka-4 respectively. The attending circumstances also do not take us to any such inference like FIR in this case being ante-time. However, P.W.-6 Ram Raj Singh has also proved the lodging of the FIR at 21.10 hrs and secondly the entries of the FIR in the chik FIR and the concerned G.D. and has proved the same as exhibit Ka-9A and Ka-10A respectively.
In this view of the matter the contention so raised regarding the FIR being ante-time is not borne out under facts and circumstances of the case.
Now we switch over to meritorial aspect of this case.
The very motive imputed for commission of the offence by the appellants is stated to be multi pronged and culminating on the point of enmity. The very perusal of FIR itself suggests in clear cut term that the basic and immediate cause for assaulting the complainant side was help and protection being provided by Shiv Nath Singh to the Harijans of the village. In this regard, both the eye witnesses P.W. 1 Ashok Kumar Singh and P.W. 2 Deshraj Singh have given their testimony regarding causes of enmity, one of the reason being the election of Village Pradhan. As per testimony of P.W. 1 the brother of appellant Shiv Nath Singh namely Veer Bhan Singh had contested the election of Pradhan with one Chhote Singh who was family member of complainant side. Chhote Singh eventually won the election of Pradhan, another reason given in the testimony of aforesaid witnesses being drawing of electricity wire-line over the field of Jagdish Singh by appellant Shiv Nath Singh in the year 1983, but this was not permitted by deceased Jagdish Singh. It has been specifically testified by P.W. 1 Ashok Kumar Singh and P.W. 2 Deshraj Singh that in the year 1985 Shiv Nath Singh, Veer Bhan Singh and Shamsher Singh had looted Rs. 5,000/- from Harijan Ved Ram regarding which a case was lodged with the police, in this case both Ashok Kumar Singh and Deshraj Singh appeared as witnesses for the prosecution. Apart from that it has also come in the cross examination on page 24-25 of P.W. 1 that Shiv Nath Singh used force and took work with Harijans without paying for the same. These specific facts regarding motive are well established by the testimony of P.W. 1 Ashok Kumar Singh and P.W. 2 Deshraj Singh. Therefore, motive for committing the crime cannot be said to be either weak or wanting. Although it is admitted position that in cases of eye witness account, motive looses its legal significance.
In so far as the actual happening is concerned then we have before us testimony of two injured eye witnesses Ashok Kumar Singh the injured informant and Deshraj Singh. In their testimony both the witnesses have virtually substantiated the version of occurrence more so the particulars of incident in entirety. As per testimony of P.W. 1 Ashok Kumar Singh he came out of Brijpal's house after attending 'Chhath' party, at that point of time he heard about some noise from the road side, he arrived at the Pakki Sadak and reached to the spot where he saw Shiv Nath Singh, Shamsher Singh, Siya Ram, Amar Singh, Birendra Singh surrounding his father.
Shiv Nath Singh and Siya Ram possessed gun whereas Amar Singh and Shamsher Singh were bearing country made pistol and Birendra was possessing Lathi. Shiv Nath Singh had caught hold of his father by his collar and was taunting that he (Shiv Nath Singh) has extended help to the Harijans whereupon his father (deceased-Jagdish Singh) insisted that he will continue to help the Harijans. While this was going on Surendra Singh, Veer Pal Singh, Deshraj Singh, Rajendra Singh and Vijay Kumar also arrived at the spot, these persons asked Shiv Nath Singh to free grip of the collar whereupon Shiv Nath Singh exhorted all others by saying that all have assembled here, kill all of them. In the meanwhile, Birendra Singh gave lathi blow which caused injuries to the first informant Ashok Kumar Singh, Rajendra Singh and Vijay Kumar whereupon Ashok Kumar Singh tried to save himself and moved north-east, at that point of time Shiv Nath Singh, Siya Ram and Amar Singh started indiscriminate firing after receding to a little distance. This assault was given in front of Siya Ram's shop. Due to aforesaid firing complainant's father Jagdish Singh, Veer Pal Singh and Surendra Singh died on the spot, Deshraj sustained pellet injuries at that time. Munendra Singh, Chandra Bhan and Vrish Pal Singh bearing torches in their hands also arrived at the spot and the assailants made their escape good towards the village. Testimony of P.W.-2 Deshraj confirms the testimony of P.W. 1. He has testified to the effect that there is one college in village Tajpur where he runs his shop, Surendra Singh, Veer Pal Singh also run shop in the vicinity of his shop. At that point of time it was 7.15 p.m. this witness was being accompanied by Surendra Singh and Veer Pal Singh. All the three closed their shops and started for home and came on Bahorik Pur, Mohammadabad Pakka Road. As soon as they covered about 10 paces they heard some noise coming from the side of Siya Ram's shop. They scampered their way to the spot where they saw appellant Shiv Nath Singh and Siya Ram possessing gun, Amar Singh and Shamsher Singh bearing country made pistols and accused Birendra Singh possessing Lathi, had surrounded deceased Jagdish Singh and Shiv Nath Singh had caught hold of the collar of Jagdish Singh and was taunting that he is lending help to the poor. This incident took place in front of Siya Ram's shop. As per his testimony, Ashok Kumar, Rajendra Singh and Vijay Kumar had also arrived at the spot. All these people asked Shiv Nath Singh to free the collar grip of Jagdish Singh whereupon Shiv Nath Singh freed the collar and exhorted his companions to open assault on the complainant side then Birendra Singh caused Lathi blow. Due to this Ashok Kumar, Rajendra Kumar and Vijay Kumar receded to the east when Shiv Nath Singh exhorted all have assembled "hamesha ke liye kanta door karo" then the rest of the appellants fired from their weapons due to which this witness sustained injury and Jagdish Singh, Veer Pal Singh and Surendra Singh were killed on the spot.
It has come in the testimony of both the eye witnesses P.W. 1 and P.W. 2 that the incident was witnessed in the light of electric bulb which was flashed on the door of Siya Ram's shop, besides it was full moon night. After lengthy and extraneous cross examination the version of incident being caused in the manner and style suggested by the prosecution itself has been proved. The suggestion made to P.W. 1 Ashok Kumar Singh in his cross examination at page 10-11 regarding firing being done on the spot is apparent admission of firing on the spot and then in cross examination on page 27 to 31 and 34 suggestion made to the witness virtually establishes fact of assault being caused by appellants on the complainant side resulting into death of three persons besides causing injuries to others. In so far as the injuries on P.W. 2 Deshraj Singh is concerned suggestion has been made by the defence in cross examination on page 33 that these injuries might have been caused in some encounter, which suggestion has been specifically denied. More so, the injury of P.W. 2 Deshraj Singh, P.W. 1 Ashok Kumar Singh have been duly proved by Dr. O.P. Garg P.W. 3. Nothing adverse has come in the testimony of doctor so as to disbelieve him. In so far as the source of light is concerned both the witnesses of fact P.W. 1 and P.W. 2 have categorically stated that a bulb was flashed on the shop of Siya Ram but the fact of non-existence of shop of Siya Ram and illuminated electric bulb has not been specifically challenged by the defence. Thus, the source of light and the particular manner and style of assault being caused on complainant side by the appellants as evidenced by P.W. 1 and P.W. 2 very much proves the incident so caused.
Contention has been raised about the presence of P.W. 2 Deshraj on the spot as most doubtful and it has been claimed that he is a chance witness but no specific suggestion has been forth coming from the side of defence about the non existence of shop of Deshraj and others near college in village Tajpur. The existence of shop of Deshraj in village Tajpur and closure of shop on the fateful day at about 7.15 p.m. and thereafter Deshraj along with others proceeding towards his home is very much proved by his testimony itself and there is no evidence or adverse circumstance to doubt the presence of Deshraj on the spot, similarly presence of Ashok Kumar Singh the first informant is evident from the evidence and circumstances of the case that he, at that point of time, came out of house of one Brij Pal Singh after attending 'chhath' party at 7.30 p.m. and he arrived at the spot first in point of time after hearing noise and after a few seconds Deshraj and others also arrived at the spot.
We are surprised as to how non presence of these two injured witnesses can be inferred from the specific evidence and circumstances pointing to their natural presence on the spot therefore, non-presence of both P.W. 1 and P.W. 2 cannot be accepted merely on the asking.
Reference of ante-mortem injuries found in post mortem examination of the three deceased Surendra Singh, Jagdish Singh and Veer Pal is worth mentioning at this stage. Ante-mortem gun shot injury has been found on chest of deceased Surendra Singh, on abdomen of deceased Jagdish Singh and on face, forehead and chest of deceased Veer Pal in the shape of multiple gun shot wounds. In this context doctor witness P.W.-4 C.K. Chaturvedi has testified that these ante mortem injuries have been caused by gun shot/ fire arm. Besides, he has also testified categorically that the cause of death was due to shock and haemorrhage as a result of ante mortem injuries. This witness (P.W. 4) has also come out with specific statement that the death of deceased persons was likely to occur around 7.30 p.m. on the fateful day and this time of death as suggested by the doctor in his testimony has not been specifically challenged or controverted by the defence/ appellants. At this stage injuries found on the person of injured Deshraj (P.W. 2) need be referred. Dr. O.P. Gangwar (P.W. 3), has on his medical examination found multiple gun shot wound on face, forehead, eyes and neck. P.W. 3 Dr. Gangwar has stated that the injuries may be caused by fire arm in his cross examination on page 8. This fact has not been specifically challenged by the defence/ appellants. Thus the testimony of the two injured eye witnesses P.W. 1 and P.W. 2 regarding indiscreet firing by the appellants on the spot causing death of three persons on the spot and causing injuries by lathi blow on others gets sufficient corroboration from medical testimony on record.
One relevant aspect of the case is that the defence has also led ocular testimony of one Anil Kumar Singh D.W. 1, he has testified to the fact that there was no live electric connection in the village on the fateful day and from 6.00 p.m. onwards fog had set in and no person was visible at a distance of 4-5 paces. In his cross examination this witness has admitted that he was suffering from myopia and was treated for the same. On page 2 of his cross examination he has stated that he was suffering from myopia for which treatment was done, he has also admitted in cross examination on the same page that electric connection was provided to the harijans in village abadi and harijan abadi is located about 100 yards away from the place of occurrence. He has again stated on the same page that due to fog he confined himself inside his house from 6.00 p.m. onwards (on the day of occurrence) and it was foggy (weather) in his house. He has also stated that he did not make any statement to any authority whatsoever regarding this incident and has come to depose in court of his own free will. Bare perusal of testimony of D.W. 1 Anil Kumar Singh itself reflects that this witness has not come out of his house after 6.00 p.m. on the fateful day and his statement about poor visibility does not have any empirical support. More so this witness is suffering from short sightness and has undergone treatment for the same.
In view of the above analysis of facts and circumstances it is obvious that incident of assault being caused by the appellants on the complainant side is reasonably proved and it is also proved under circumstances that all the appellants conjointly had common object of killing the complainant side and in prosecution of their common object they not only caused injuries on the complainant side but also caused death of three persons.
Specific contention has been raised regarding act of co-accused Birendra Singh being isolated act and he can not be imputed any liability by virtue of section 149 IPC. We may come out with specific finding on role of appellant Birendra Singh by careful scrutiny of evidence and attending circumstances. In the light of above circumstances, it has been claimed on the part of appellant Birendra Singh that his act at the most will not fall under section 307/149 IPC or Section 147 IPC for the reason that his act cannot be treated to be murderous assault like the other appellants.
Here the evidence and the circumstances suggest that Birendra Singh though possessed Lathi was very much present on the spot and it was he and he alone who first started the assault by giving lathi blow at the exhortation of Shiv Nath Singh to Ashok Kumar, Rajendra Singh and Vijay Kumar and the rest of the appellants followed the same by indiscriminate firing from their respective weapons. Presence of all the appellants on the spot is very much established. Their assembly becomes unlawful for causing the very offence and the manner and style of participation of each appellants in the incident establishes that all are pursuing their common object. In this existing scenario the offence in question appears to have been committed conjointly by all the appellants after forming unlawful assembly in prosecution of their common object and Birendra Singh has every reason to know and believe that death is likely to be committed by the weapons being possessed by the other appellants. Evidence is in plenty that Birendra Singh, no doubt is one of the members of unlawful assembly and he is acting in prosecution of common object with other assailants and he knew it well that murderous assault may also be caused just for the weapons used by members of the unlawful assembly and if any member of any unlawful assembly knew or was aware of the likelihood of particular offence being committed in prosecution of a common object then he along with others would be liable vicariously for the act of the others. This categorical principle has been laid down by Hon'ble Apex Court in the case of Waman Vs. State of Maharashtra AIR 2011 SC, JT 2011 (7) SC 24, it is settled principle of criminal jurisprudence that once membership of unlawful assembly is established then overt act on part of each member need not be established for members present on the spot; even in the absence of any overt act, such members is responsible vicariously for the act of other members of unlawful assembly. These principles have been laid down by Hon'ble Apex Court in the case of America Devi Vs. State of Bihar AIR 2011 SC 1379 and JT 2011 (5) SC 406.
In so far as the other aspects of the case regarding investigation being conducted by the Investigating Officer and the other attending circumstances are concerned the same cannot be treated to be material one for the reason that the incident alleged stands proved by the testimony and circumstances of the case. There is no reason for false implication. Appellants have raised suggestion that some dacoits might have killed the three deceased persons in front of tubewell of Ram Pal but this theory is not supported either by circumstance or by any testimony. Therefore, the suggestion so made cannot be believed.
In view of aforesaid factual aspect of the case, the death of three persons in the incident of indiscreet firing and assault by Lathi by the appellants on 28.12.1985 at about 7.30 p.m. stands proved beyond reasonable doubt.
From perusal of record we may note that in this case laches committed by the police personnel and contradiction appearing in the testimony of formal witnesses cannot be treated to be material and substantial so as to hit at the root of the case. Thus the conclusion drawn by the learned trial Judge while appreciating the various facts and circumstances of the case viz-a-viz the testimony on record cannot be faulted with at this juncture and the conviction and sentence so passed vide judgment and order dated 06.07.2006 is liable to be upheld by us.
Consequently, the contentions raised by the learned counsel for the appellants are devoid of force and the various grounds urged in support of the appeals are not sustainable. Conviction of the appellants recorded by the trial court is hereby upheld. The instant appeals are devoid of merits and the same are dismissed.
Appellants Shiv Nath Singh, Shamsher Singh and Amar Singh are in jail. They shall serve out remaining part of their sentence. Appellant Birendra Singh is on bail. His personal and surety bonds are cancelled. He is directed to be taken into custody and lodged in jail to serve out remaining part of his sentence imposed upon him.
Let a copy of the judgment be certified to the trial court for it's intimation and necessary compliance.
Order Date :- 22.1.2016 IrfanUddin