Allahabad High Court
Mahipal And Others vs A.G.A. on 17 October, 2019
Bench: Govind Mathur, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Chief Justice's Court Case :- CRIMINAL APPEAL No. - 605 of 1983 Appellant :- Mahipal and others Respondent :- State of U.P. Counsel for Appellant :- Ajendra Kumar, D.P. Yadav, Jagdish Singh, Pulak Ganguly A/C Counsel for Respondent :- A.G.A. With Case :- CRIMINAL APPEAL No. - 715 of 1983 Appellant :- Chandrapal Respondent :- State of U.P. Counsel for Appellant :- Ajendra Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Govind Mathur,Chief Justice Hon'ble Vivek Varma,J.
These appeals are preferred to question correctness of the judgment dated 03.03.1983 passed by learned Additional Sessions Judge (Special Court - Anti Dacoity), Etah in Sessions Trial No. 13 of 1982. By the judgment impugned, learned trial Court recorded conviction of accused Chandrapal, Mahipal S/o Ram Narain, Mahipal S/o Chob Singh and Sobha for commission of offence punishable under Section 396 Indian Penal Code and sentenced them to undergo imprisonment for life term.
The prosecution story as unfolded before us is that on 18.01.1982, a first information report was lodged at Police Station Awagarh at the instance of Ram Chandra S/o Chudamani Brahman relating to commission of offence punishable under Section 396 Indian Penal Code. As per the averments contained in the first ifnormation report, Raghuvir (nephew of the informant) was sleeping on the roof of the house and a single barrel gun was lying at his head side on the cot. In midnight, 10-12 miscreants armed with gun and country-made pistols entered in the house and got hold of Raghuvir. At that time, Chandrapal and Mahipal S/o Ram Narain Brahman exhorted to shoot Raghuvir. The miscreants then pushed Raghuvir down in a small hut and caused a gun shot at him. The miscreants then got hold of Jai Prasad (other nephew of informant) and killed him too. Before killing Jai Prasad, Satyendra, Kas Devi, Sudha, Gijee, Sneh and the informant himself begged for life of deceased persons, but of no consequence. As per the first informant, accused persons had enmity with his family especially with the nephews. An allegation was also made about taking of the gun and certain other articles of Raghuvir by the accused persons.
The Investigating Agency during the course of investigation got the autopsy on corpus of both the deceased persons conducted. After completing the investigation, a police report was filed and, on basis of that, charge was framed against the accused persons for commission of offence under Section 396 Indian Penal Code and in alternative commission of offence under Section 302 read with 149 and 148 Indian Penal Code. The charge was read over and explained to the accused persons and, on denial of the same, trial commenced as desired.
The prosecution supported its case with the aid of the ocular evidence given by several witnesses, out of whom, three, namely, Ram Chandra (PW-2), Satyendra Kumar (PW-3) and Sudha (PW-4) were cited as eye-witnesses. Dr. V.K. Sharma (PW-1) adduced medical evidence as he conducted autopsy on the corpus of deceased persons and submitted the post mortem reports (Exhibit Ka-1 and Ka-2). Investigating Officer Sri Kamta Prasad Sharma (PW-5) narrated all the steps taken by him during the course of investigation.
After examining the evidence available on record, learned trial Court held the accused-appellants guilty for commission of an offfence punishable under Section 396 Indian Penal Code and awarded sentence to undergo life term imprisonment.
In appeals, the arguments advanced by learned counsel for the appellants are that; (i) serious contradiction appears in the evidence adduced by the eye-witnesses and that creates a reasonable doubt in accepting the prosecution story, and; (ii) no material is available on record to convict the accused-appellants under Section 396 Indian Penal Code.
Heard learned counsel for the appellants as well as learned Additional Government Advocate.
At the threshold, it would be appropriate to state that during pendency of the appeal, accused Sobha has already been died and, as such, the appeal stands abated qua her.
To examine case of the other accused persons, we have looked into the record especially the evidence adduced by the eye-witnesses. PW-2 - Sri Ram Chandra (uncle of deceased Jai Prasad and Raghuvir) while getting his testimony examined stated as under :-
"We are four brothers. The name of my three brothers are Hukam Singh, Babu Ram and Munshi. I and Babu Ram are not married. Hukam has got four sons. Their names are Ganga Prasad, Shaitan, Raghuvir and Jai Prasad. Jai Prasad and Raghuvir have died. Prior to this occurrence, Shaitan, Ganga Prasad live in Wari Ka Nagla. Wari ka Nagla may be around 10 kms from our village. There they have around 108 Beegha land. In this occurrence, Raghuvir and Jai Prasad were killed. Name of Raghuvir's widow is Kas Devi who is a witness in this case. The witnesses Vijendra and Satyendra are the sons of the deceased Raghuvir, and the witness Sneh Lata is the daughter is Raghuvir. The witness Mala Devi is the widow of Jai Prasad, and the witness Sudha and Gijee are the daughters of Jai Prasad. The witness Munshi Lal is my brother. The witness Satyendra is my nephew and is the son of Munshi Lal.
The accused Chandrapal, Mahipal S/o Ram Narain, Shobha, Bhoja @ Bhojraj and Mahipal S/o Chob Singh live in my village.
Accused Chandrapal and Mahipal S/o Ram Narain are in custody and have been brought in Baparda condition. At the request of the learned counsel for the state unwilling faces of these two accused is necessary for the purpose of identification and therefore all persons except counsel for the parties and the police force have been directed to go out of the court room and thereafter the doors have been closed. These two accused are directed to open their faces.
The witnesses looked at the accused present and stated that 'Amongst them except Bhojraj, the other four accused are present whose names are Mahipal S/o Ram Narain, the second is Mahipal S/o Chob Singh, the third is Sobha Ram and the fourth is Chandrapal.'"
In cross-examination, this witness maintained the version of facts as stated by him during the course of his examination-in-chief.
Learned counsel for the appellants made an effort to point out some facts which, as per him, are in contradiction to the version earlier stated, but, in our considered opinion, no serious contradiction in statement of this witness appears. As a matter of fact, whatever stated by this witness has been strengthened by other eye-witnesses also. It would also be appropriate to state that this witness, in quite specific terms, stated that the gun and belt of cartridges that belong to deceased Raghuvir was also taken over by the miscreants including four accused, namely, Chandrapal, Mahipal S/o Ram Narain, Sobha and Mahipal S/o Chob Singh.
The other eye-witnesses Satyendra Kumar (PW-3) stated that an open fire was made by the accused persons and their companions at roof and, as a consequence to that, he woke up. He then came to the place of occurrence and begged for the life of Jai Prasad but Chandrapal killed his father. The statement given by this witness reads as under :-
"7. I heard the voice of accused Chandrapal present in the Court and heard him exhorting to open fire at Raghuvir. I heard his companions exhorting to take him downwards so that they could fire at him there. Thereafter miscreants took my father and paternal uncle (tau) downstairs. Baba followed them. Chandrapal made my father sit in dalaan and fired at him. Accused took hold of palm of my uncle, took him to a room and heard firing.
8. My uncle was shot to death by firing opened by accused. My father died in dalaan.
9. The miscreants were 10-12 in number. They had torches. After causing the death of my father and uncle miscreants robbed the house for half an hour.
10. I had identified Chandrapal, Mahipal Pandit S/o Ram Narain, Mahipal II S/o Chob Singh, Sobharam and Bhoja on the spot. Witness stated on seeing the accused present in the court that all the four accused besides Bhojram whom I have identified on the spot are present. I was already acquainted with all the five men. They belong to my village. The rest of accused were not known to me. I had identified all the five accused in torch light. There was bit of moonlight also. I had seen the faces of unknown miscreants also. If they come before me I can identify them as well."
The same version of facts is given by Sudha (PW-4) D/o Jai Prasad who was 16 years of age at that time. Relevant portion of the statement given by Sudha (PW-4) reads as under :-
"1. In this incident which occurred around 6 months ago my father Jai Prasad and my uncle Raghuvir Prasad Sharma were murdered. This incident had occurred after midnight. The miscreants brought my uncle and father downstairs in the home. There lies courtyard first, followed by a varandah. The miscreants had first brought my father and uncle to the courtyard.
2. There were 10-12 miscreants. She was already acquainted with Sobha, Bhoja, Mahipal and carpenter Mahipal among these miscreants. They belonged to my village. Seeing the accused present in the court, the witness identified the accused standing from right as Chandrapal, Mahipal, Sobha and Mahipal who were involved in the occurrence.
Note: On being asked the names, the accused identified themselves with the same names.
3. I had seen and identified the dibbi, torch in the rising moonlight. A dibbi was lit in my room and another in uncle's verandah. The miscreants had torches which they had lighted.
4. Accused Chandrapal had got my uncle Raghuvir Prasad seated in the verandah and shot him.
5. Mahipal caught hold of my father and took him to the room. Other miscreants were with Mahipal. I was also in the courtyard. I heard sound of two gunshots inside the room. Those fires killed my father. My uncle was shot by Chandrapal. Thereafter, the miscreants looted articles from the home. The miscreants' dacoity continued for an hour. Remaining statement be continued tomorrow."
The version of facts stated by the eye-witnesses is sufficient to arrive at the conclusion that the accused persons came at the residence of deceased to cause dacoity and, during course of that, they killed two persons. The effort made by learned counsel for the appellants that no charge of dacoity stands established as no material was recovered from the accused persons is of no consequence. The eye-witnesses, in quite specific terms, stated that the gun and cartridges owned by deceased Raghuvir and certain other articles were taken by them is sufficient to establish the charge relating to commission of offence under Section 396 Indian Penal Code. A reliance is also placed upon a judgment of the Division Bench of this Court in Udai Pal Versus State of U.P. reported in 2014 (1) ACR 1005 to establish that in the same circumstances, it was held that if no recovery of articles is made, then charge relating to offence punishable under Section 396 Indian Penal Code is not sustainable.
No doubt exists about homicidal death of two deceased. The medical evidence available on record is also in consonance to the ocular evidence adduced by the eye-witnesses.
On going through the facts of the judgment referred above, we do not find any application of the same in the instant matter. As a matter of fact, in the case aforesaid, the Division Bench noticed that even the eye-witnesses were not trustworthy. On the contrary, in the case in hand, we do not find any inconsistency in the version of facts stated by the eye-witnesses.
The appeals, as such, are bereft of merit, hence are dismissed, as a consequence, the bonds and sureties furnished by them stands forfeited. Let they be arrested and be sent to State custody to undergo the sentence awarded by the trial Court.
Order Date :- 17.10.2019
Shubham
(Vivek Varma, J.) (Govind Mathur, C.J.)