Allahabad High Court
Dhananjai Pandey vs State Of U.P. on 2 January, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 1 Criminal Appeal No. 575 of 1983. Dhananjai Pandey and others vs. State of U.P. Hon'ble Ramesh Sinha, J.
Hon'ble Dinesh Kumar Singh-I, J.
(Delivered by Hon'ble Ramesh Sinha, J.)
1. The present appeal has been filed by four appellants out of which appellant no. 1 Dhananjai Pandey, appellant no. 2 Shri Krishna and appellant no. 4 Ganga Yadav died during the pendency of appeal and the appeal on their behalf has already been ordered to be abated by this Court vide order dated 20.4.2018 and 16.11.2016 respectively and the present appeal survives with respect to appellant no. 3 Bhrigu Nonia only, hence the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellant, namely, Bhirgu Nonia.
2. The present appeal has been preferred against the judgment and order dated 18.2.1983 passed by Sessions Judge, Ballia in S.T. No. 95 of 1982 convicting all the four appellants under section 302/34 I.P.C. and sentencing each of them to undergo imprisonment for life. Appellant no. 1. Dhananjai Pandey (dead) has also been convicted under section 379 I.P.C. and sentenced to undergo R.I. for two years and his sentences were ordered to run concurrently by the trial court.
3. The prosecution case as has been set up in the F.I.R. is that on 29.1.1982 at about 5:00 p.m. in the evening, the informant Barmeshwar Singh along with his father Bhagwat Prasad Singh were returning to their home after visiting their agricultural field from the side of Reoti railway station through northern railway track and when they reached the home signal, the informant stopped for urinating and his father proceeded ahead. Thereafter he heard the shriek of his father on which he stood up and saw that the accused Dhananjai Pandey son of Vyas Pandey resident of village Bamnauli, Shri Krishna Ahir son of Har Narayan Ahir resident of Kamlapur, Bhirgu Nonia son of Raja Nonia and Ganga Ahir son of Samhut Ahir resident of Gayghat surrounded his father near the railway track towards North and started assaulting him with Farsa with which the accused persons were armed and on the alarm raised by him, the witnesses Ram Kripal Singh son of Gopal Singh, Shambhu Singh son of Satram Singh and Vijay Bahadur Singh son of Benimadhav Singh, who belong to his village and were also coming from the village by the side of railway track had also arrived and seen the accused assaulting his father. The accused persons after assaulting his father had also snatched away his licensee revolver and fled away towards South. The informant and witnesses had seen the accused armed with Farsa, who assaulted his father and also seen them fleeing after forcibly snatching the revolver of his father. When the informant and witnesses went near the deceased, they saw injuries on the face and forehead of his father which were caused by Farsa on account of which he died. It is further stated by the informant in the F.I.R. that while the accused were assaulting his father they were uttering that they would not leave him alive for doing pairvi in the case in which his elder brother, namely, Sureshwar Singh was murdered in the year 1972 in which the accused of his village, namely, Shri Krishna Ahir, Ganga Ahir, Bhirgu Nonia and others were convicted for life imprisonment by the Session Court, Ballia against which the accused preferred an appeal in the High Court and they were granted bail by the High Court. In the said murder case his father used to do pairvi in the High Court on account of which the accused have murdered his father. The dead body of his father was lying on the place of occurrence on the pebbles (Gitti) adjacent to North railway track between Western Home Signal and Outer Signal of Reoti railway station. Leaving some of the villagers at the place of occurrence for taking care of the dead body of the deceased, the informant went to file a written report for registering the F.I.R. at police Chauki Reoti of police station Sahtawar, District Ballia for necessary action.
4. In pursuance of the said written report dated 29.1.1982 submitted by the informant, F.I.R. was registered as case crime no. 22 of 1982 under section 302/392 I.P.C. against four accused persons including the appellant on 30.1.1982 at 6:30 p.m. On receiving the information about the murder of the deceased, a chik F.I.R. was prepared at police Chowki Reoti and scribed by Constable Ram Bachan which was marked as Ex. Ka-55. P.W. 12 S.I. Bhanu Pratap Dubey being the In-charge of police Chowki Reoti was present there on 29.1.1982 at 6:30 p.m. He signed the Chik F.I.R. The case relates to the jurisdiction of G.R.P. Ballia but as no officer of G.R.P. could reach the place of occurrence, S.I. Bhanu Pratap Singh took constable Ganesh Singh, Shriram and Jagdish and went to the place of occurrence and started investigation of the case. As it was night and not possible to conduct the inquest proceedings, the inquest was conducted on the next day morning and in the night to keep watch over the dead body Constable Ganesh Singh and Shriram had been deputed in order to avoid any kind of tampering with the dead body. Thereafter, he recorded the statement of the informant Barmeshwar Singh and the eye witness Ram Kripal Singh under section 161 Cr.P.C. On 30.1.1982 at about 7:30 a.m. inquest report of the dead body of the deceased was prepared which was marked as Ex. Ka. 8. He also prepared the Photo-nash which was marked as Ex. Ka. 33 and sealed the dead body of the deceased. The sample seal marked as Ex. Ka. 34 was also prepared along with Challan nash which was marked as Ex. Ka. 35. Thereafter, he prepared the report for post mortem and for taking into possession clothes on the dead body of the deceased which was marked as Ex. Ka-36. He entrusted the sealed dead body of the deceased to Constable Ganesh Singh and another for getting the post mortem of the dead body conducted at Ballia. He prepared the site plan of the place of occurrence which was marked as Ex. Ka-37. He also collected the blood stained pebbles, soil and plain soil and sealed the same and prepared recovery memo in respect thereof which was marked as Ex. Ka-38. The clothes and other belonging of the deceased were also recovered including eight cartridges of revolver which were duly sealed and recovery memo of the same was prepared, the same is marked as Ex. Ka-9. The said articles were identified by P.W. 12 Sri Bhanu Pratap Dubey in the Court also. On 29.1.1982, before leaving the police station a written information, which was marked as Ex. Ka-41, has been entrusted by him to Constable Surendra Nath Gupta, who was posted at police out post Reoti for being given to S.O. G.R.P. who took the chick F.I.R. and other papers of this case from police out post Reoti on the same day for being handed over at G.R.P. Ballia. P.W. 10 Radha Kishun Singh S.O. G.R.P. had admitted in his evidence that he received the chick F.I.R. and other papers of the case sent from police out post Reoti through Constable Surendra Nath Singh at 10:10 am on 30.1.1982. The case was registered and he being the investigating officer proceeded to the place of occurrence with some police personnel. He took the investigation of the case from S.I. Bhanu Pratap Dubey and also took in possession the sealed articles prepared by Bhanu Prasad Dubey. He further sent police personnel in search of the accused and took the statements of the witnesses, namely, Vijai Bahadur Singh, Shambhu Singh, Hridyanand Singh and others under section 161 Cr.P.C. When the accused could not be arrested then proceedings under section 82, 83 Cr.P.C. had been initiated against them. On 3.2.1982 accused Srikrishna, Bhrigu Nonia and Ganga Ahir surrendered themselves in the court and on 18.2.1982, the investigating officer came to know that accused Dhananjai Pandey had surrendered himself at Azamgarh but when he sent a report for bringing the accused Dhananjai Pandey then he came to know that he had not surrendered on that date but subsequently he came to know that on 26.2.1982, the accused had surrendered and he was accordingly transferred on 17.3.1982 to Ballia jail. He sent the sealed blood stained articles for chemical examination by the Chemical Examiner at Agra and after completing the investigation he submitted charge-sheet against the accused persons which was marked as Ex. Ka-29. The case was committed to the court of Session by the Magistrate and charges were framed against the accused including the appellant by the trial court for the offence under section 302 I.P.C. read with Section 34 I.P.C. and the accused Dhananjai Pandey was further charged under sections 394 I.P.C. The accused denied the charges and claimed their trial.
5. The prosecution in support of its case has examined 12 prosecution witnesses, i.e., P.W. 1 Dr. A. Halim, P.W. 2 Barmeshwar Singh, the informant, P.W. 3 Jogendra Rai, Constable posted at G.R.P. Ballia, P.W. 4 Isdutt Tiwari, Constable G.R.P., P.W. 5 Ram Kripal Singh, the eye witness, P.W. 6 Hridaya Nand Singh, P.W. 7 Vijai Bahadur Singh eye witness, P.W. 8 Vishwanath, who happens to be the Washerman of the accused persons and has turned hostile, P.W. 9 Constable Sri Ram posted at police out post Reoti, P.W. 10 Radha Krishna Singh posted as Station Officer G.R.P., the Investigating officer, P.W. 10 Surendra Nath Gupta posted as Constable at police out post Reoti, P.W. 12 Bhanu Pratap Dubey posted as S.I. at police out post Reoti.
6. The statements of accused persons including the appellant were recorded in which they denied the prosecution case. The appellant stated that he has been wrongly convicted by the Session Court in the murder of Sureshwar Singh and he had preferred an appeal against his conviction before the High Court in which he has been granted bail by the High Court. He denied that he had absconded at any point of time after the crime. He further stated that the witnesses belong to one group and they were inimical to him. He has further stated that he is resident of Lala Ka Tola, police station Reoti.
7. The accused in their defence have produced D.W. 1 Ashok Kumar Singh, who was posted as Assistant Station Master at Reoti railway station.
8. P.W. 2 Barmeshwar Singh, who is the son of the deceased deposed before the trial court that including him his father had three sons, namely, Nareshwar Singh and Sureshwar Singh. Nareshwar Singh was Mining Engineer in district Dhanbad, Bihar. The accused Shri Krishna, Ganga Ahir, Bhrigu Nonia and Dhananjai Pandey, who are present in the court are known to him. The accused Dhananjai Pandey was employed as Vaccinator in Reoti Primary Health Centre and against him several cases of scuffle (marpeet) etc. were registered and he is also facing prosecution with respect to the same. His father, the deceased had also moved an application before the higher authorities of the district for removing him from the said post on which the then C.M.O has ordered for an enquiry and on the application of his father in year 1975, the accused Dhananjai Pandey was also suspended but later on he was reinstated. The criminal case has proceeded against the accused Dhananjai Pandey for assaulting one Ram Iqbal Baniya, who belongs to his village and in the said case his father was doing pairvi on behalf of Ram Iqbal Baniya. In the said case, accused Dhananjai Pandey was convicted under section 307 I.P.C. on 3rd November, 1981 against which Dhananjai Pandey preferred an appeal before the High Court and in the said appeal he was released on bail. Accused Shri Krishna, Ganga Ahir and Bhrigu Nonia-the appellant in the year 1977 had formed a labour union against Rajpoot as they belong to lower caste. They used to restrain people of their caste to work for higher caste. The crops of the people of higher caste were being destroyed by them. They used to regularly demonstrate deadly weapons like spear, Farsa and hold meetings. In the year 1972, the accused and their associates were holding one such meeting and at that time his brother Sureshwar Singh was passing through the place where the meeting was being held. The said accused and their associates had killed his brother Sureshwar Singh and when his father Bhagwat had gone with his licensee gun then his gun was also snatched away by them. A case for murder was registered against the said three accused persons, namely, Shri Kishan, Ganga Ahir and Bhirgu Nonia and in the year 1978 all the three accused were convicted for life imprisonment by the Session Court against which the accused appellant and others have preferred the appeal before this Court which is pending and they were granted bail in the said appeal. His father used to do pairvi for which a letter was written by his father to his Advocate Sri Lallan Prasad Singh of the High Court in the said appeal and correspondence were made by said Advocate to his father also, who used to sent letters to him with respect to the progress of the case. After the murder of his father, the informant used to visit the said lawyer and correspondences were made between them. He has proved the letters written by his lawyer Lallan Prasad Singh bearing his signature with respect to the case and the same were marked as Ex. Ka. 2, Ka. 3, Ka 4, Ka. 5 and Ka. 6. The accused belong to one group. His father had license of a country made revolver because of danger from the accused. His father instead of going alone to his agricultural field used to take someone along with him and his revolver. One Data Singh's stockyard (Khaliyan) was set at fire for which a case was registered against the accused appellant Bhirgu Nonia and others. He deposed before the trial court that on 29.1.1982, his father was murdered and on the day of incident he along with his father had gone to his agricultural field towards tubewell and at about 1:30 p.m. in the afternoon and they have also taken their lunch at about 2:00 p.m. After visiting their agricultural field he along with his father had gone at Reoti railway station where they had taken tea and from their at about 4:45 p.m. in evening they proceeded towards their house by the side of railway track which was towards North side. The witness was empty handed while his father was having revolver which he tied on his waist. When they reached towards ahead of home signal then the informant sat for urination as there were bushes and his father proceeded ahead. He heard the shriek of his father and stood up and saw that his father had fallen at the northern side of pebbles and accused Shri Krishna, Dhananjai Pandey, Ganga Ahir and Bhirgu Nonia-the appellant present in the Court, have surrounded him and were assaulting him with Farsa. On the alarm raised by him other witnesses, namely, Ram Kripal Singh, Shambhu Singh and Vijai Bahadur Singh, who were coming from the West rushed to the place of occurrence on which the accused Dhananjai Pandey had snatched the revolver of his father forcibly and taken away thereafter all the four accused fled away towards South. At the time of assault, the accused were uttering that they would not leave his father alive for doing pairavi in the High Court. When the accused fled away, the informant along with other witnesses came near the deceased and saw that he had died on account of assault made by the accused persons. After the accused fled away on the alarm raised by him many other persons of the village gathered. Thereafter a report was written by him about the incident. He proved the same as Ex. Ka. 7 and his signature also on the same. After leaving some persons of the village near the dead body, the said written report was taken by him to police out post Reoti and handed over the same to Constable clerk of police station Reoti. The Sub Inspector of police outpost Reoti reached at the place of occurrence in the night, who recorded the statement under section 161 Cr.P.C and on the next day in the morning, the S.I. conducted the inquest proceedings of the dead body of the deceased and appointed Punch witnesses and after reading out the inquest report and understanding the same he along with other witnesses signed the inquest report which was marked as Ex. Ka.-8. The dead body of the deceased was sealed by the Sub Inspector and sent for post mortem at district Ballia. At the place of occurrence, the shoes of his father and belt along with cartridges were lying, the same were also identified by him and proved the said items and other belonging of the deceased which were marked as material exhibits which were sealed in two bundles were opened before the trial court. During the course of investigation, he also handed over the applications to the investigating officer which were given by his father against accused Dhananjai Pandey to higher authorities which bears signature of his father which were marked as Ex. Ka. 9 to 12.
9. During his cross examination nothing could be pointed out by the defence which may discard his testimony after a lengthy cross examination and he has categorically denied the suggestion that the incident was not witnessed by any one and he got the information about the murder of his father in the night and after the incident his father's dead body was brought at Reoti police out post and the present F.I.R. was lodged after due consultation and deliberation with S.I. Chedi Upadhyay of police sation Sahtawar and other persons of his village.
10. P.W. 5 Ram Kripal Singh, who is another eye witness of the incident has deposed before the trial court that when he had gone to his agricultural field for excursion and at the outskirt of his village he met Shambhu Singh and Vijay Bahadur Singh and thereafter they were going together and when they reached near the railway line and proceeded towards East of railway track, they saw the deceased Bhagwat Singh and his son Baremeshwar Singh were going towards North side of railway track. The son of Baghwat Singh sat for urination and Bhagwat Singh proceeded ahead and they also saw the accused Dhananjai Pandey, Shri Krishna, Ganga Ahir and Bhirgu Nonia, who were armed with Farsa coming from the South side of the railway line and when they reached at the place of occurrence they surrounded Bhagwat Singh assaulted him on which Bhagwat Singh fell and accused continued assaulting him. Bhagwat Singh could not speak and his son raised alarm, hence they ran towards the deceased and when they were at a distance of 40-50 paces, the accused Dhananjai Pandey forcibly snatched the revolver of the deceased Bhagwat Singh and all the four accused ran towards South. When they reached near Bhagwat Singh they saw that he died on account of injuries sustained by him. Thereafter his son Barmeshwar Singh had written a report and went along with Shiv Prasad Singh and Bhirgu Singh to the police station. Many people of the village arrived. He remained with the dead body and did not go to police station. There is no abadi of any village about 1-2 miles of the South of the railway line. The witness had identified all the four accused persons in the Court and had stated that he was deposing with respect to the said four accused. He further deposed that where the deceased had fallen sufficient blood was there. In his cross examination, the said witness had stated that he was also a witness in the murder of Sureshwar against three accused persons except Dhananjai Pandey and he deposed that in the earlier murder of Sureshwar also he was an injured witness. He also stated that the accused Ganga Ahir, Bhirgu Nonia and Shri Krishna and others used to destroy their crops on account of which Sureshwar was murdered as a complaint was made. In his cross examination also the defence could not take out any material to discard his testimony. Moreover, he also denied the suggestion that he did not go to his agricultural field on the day of incident nor he has witnessed the incident and further denied the suggestion that the accused have been falsely implicated in the present case after due consultation and deliberation with the police.
11. P.W. 7 Vijay Bahadur Singh, who is another eye witness of the occurrence has deposed before the trial court against the appellant and reiterated the prosecution as has been stated by P.W. 2 to 5. He stated that on the day of incident at about 5 p.m. in the evening his mother, who had gone to Dr. Ashok Singh at Ballia as she was ill for the last 5-6 months and her medical treatment was going on by the said doctor, was coming from Ballia to the village and he had gone to Reoti railway station from his house to take her and when he reached the outskirt of the village, he met Shambhu Singh and Ram Kripal Singh and all three proceeded together and when they reached towards the North track of railway line they saw the deceased Bhagwat Singh and his son Barmeshwar Singh going. He saw Barmeshwar Singh sat for urination and the deceased moved ahead and when Bhagwat Singh moved ahead then he saw accused arrived from the South of railway line and assaulted the deceased with Farsa by surrounding him on which the witness and others raised alarm and reached towards the place of occurrence and accused fled away, after accused Dhanjai Pandey forcibly snatched the revolver from the waist of Bhagwat Singh, towards South of the railway line. He saw the deceased sustained injuries on account of which blood was found at the place of occurrence. He also identified all the accused persons and stated that many persons of the village had arrived at the place of occurrence. Barmeshwar Singh wrote a written report and had gone to police station with Shiv Prasad Singh and Bhirgu Singh and the persons, who have collected at the place of occurrence and thereafter he went to Reoti station to take his mother.
12. After detailed cross examination nothing could be elicited by the defence which may discard the testimony of this witness also. He also denied the suggestion that on the date and time of incident, he did not go to railway station to take his mother, who was coming from Ballia. He denied the suggestion that he had not seen the incident and on the asking of Ram Kripal Singh and others, who are his collateral and belong to one group, he falsely deposed against the appellants.
13. P.W. 6 Hridyanand Singh has deposed that the accused after seeing him turned towards the West and run away towards Belahari Gaon thereafter he came to know that the deceased was murdered. He denied the suggestion that on the day of incident he did not go to his field nor he has seen the accused appellant running away and only at the instance of Ram Kripal Singh and others he is deposing against the appellants.
14. Besides the above witnesses of fact P.W. 1 Dr. A. Haleem was also examined by the trial court and he has stated that on 30.1.1982, i.e., the day of incident, he was posted as Medical Officer at Reoti Hospital in district Ballia and has conducted the post mortem of the deceased whose dead body was brought in a sealed condition by Constables Sriram and Ganesh Singh. The deceased was aged about 70 years and he found the following ante mortem injuries on the dead body of the deceased:-
1. Incised wound 3 x 1 brain matter through bones on outer part of left orbit and left side forehed including left eye which has gone out and not present in orbit. Bone underneath fractured;
2. Incised wound 5 x 1/2 x bone deep on left side face and over nose 1" below injury No. 1-1" above and front of upper part of pinna of left ear. Bone underneath fractured and cartilage of nose had been cut;
3. Incised wound 2.1/5 x 1/2 x bone deep of left side of fact and over upper lip-1/2" below injury no. 2. Lip of the left side had been cut away and bone underneath fractured;
4. Incised wound 5.1/2 x 1.1/2 x bone deep on left side cheek (face) and joint of mouth cavity deep. Bones underneath fractured. Both lower jaw and upper jaw bones, teeth of the jaws are nocked out and fractured except 4 (four) molar upper jaw teeth intact just below injury no. 3;
5. Incised wound 2.1/2 x 1 x bone deep on right side face from nose to level of outer angle of right eye. Bones underneath fractured;
6. Incised wound 5 x 3 x bone deep on right side face right ear which had been cut away of upper and back portion. Bone underneath fractured injury is just below injury no. 5;
7. Incised wound 4.1/2 x 3. 1/2 x bone deep on right side face just below injury no. 6. Both upper and lower jaws bones had been fractured and all teeth of right lower jaw had gone out and mandible (right jaw) was fractured;
8. Incised wound 6" x 2.1/2 x bone deep on back of right side neck upper part just behind right ear;
9. Incised wound 5" x 2.1/2" x bone deep on back of left side neck and behind left ear cutting pinna of left ear, middle and lower parts;
10. Incised wound 1/2 x 1/5 x 1/2 on inner side of lower part of right leg-2" aboveright ankle joint;
11. Abrasion 1.1/2" x 1/2" on back of lower part of right forearm lower part-2" below wrist (R).
As per the opinion of the doctor, the cause of death was shock and hemorrhage as a result of injuries noted above.
15. On internal examination following several fractures were found on the body of the deceased:-
1. Left frontal bone including obbital margins;
2. Left maxilla;
3. Left Mandible;
4. Right Maxilla;
5. Right mandible;
6. Left parietal bone;
7. Thyroid cartilege fracture and crushed up.
16. P.W. 10 Sri Radhey Krishna Singh, who was Station Officer of G.R.P. and had taken over the investigation from the earlier Investigating Officer Sri Bhanu Pratap Dubey of police outpost Reoti after completing the investigation submitted charge-sheet against the accused which has been marked as Ex. Ka. 29.
17. D.W. 1 Ashok Kumar Singh, who was posted as Assistant Station Master at Reoti railway station (North Eastern Region) has deposed before the trial court mainly regarding the timings of the train on the day of incident in order to show that if the dead body was lying the same could easily be seen by the driver of the train.
18. The trial court after examining the evidence led by the prosecution has convicted all the accused persons including the appellant under section 302/34 I.P.C. and sentenced for life imprisonment for the murder of the deceased. Aggrieved by the same, the accused including the appellant have preferred the instant appeal and as stated above that the surviving appellant, namely, Bhirgu Nonia his case is to be considered by this Court in the present appeal.
19. Heard Sri Ashok Kumar Maurya, learned counsel for the appellant, Sri Pawan Kumar Shukla, learned A.G.A. for the State and perused the record.
20. Learned counsel for the appellant has submitted that the motive which has been suggested to the appellant along with other accused persons for the murder of the deceased appears to be weak one as the appellant and co-accused have already been released on bail by the High Court in appeal after their conviction by the Sessions Court, Ballia in the murder of Sureshwar Singh-the brother of the informant. It was stated that the deceased Bhagwat Singh, who was the father of the informant was doing pairvi in the High Court in the appeal preferred by the appellant and co-accused against their conviction. It has been argued on behalf of the appellant that there were three other accused persons, who were also involved in the murder of the deceased have already died and the appellant, who is aged about 96 years as on date is confined in jail, has been falsely implicated only on account of suspicion. Learned counsel for the appellant further urged that the motive to commit the murder of the deceased was to co-accused Dhananjai Pandey, who was working on the post of Vaccinator and on the application given by the deceased to the higher authorities his services were terminated but he was later on reinstated and the recovery of revolver of the deceased was also made from co-accused Dhananjai Pandey, hence he was also convicted under section 379 I.P.C. and the appellant Bhirgu Nonia was implicated in the case because he belonged to the group of Dhananjai Pandey. He further argued that the presence of the three eye witnesses at the place of occurrence, i.e., P.W. 2, 5 and 7 appears to be doubtful and the deceased was done to death by some unknown miscreants and the appellant has been implicated in the present case along with other accused persons. He vehemently argued that the deceased was carrying a revolver with him as he apprehended danger of his life from the accused persons but he did not use the same when he was being assaulted by the appellant which shows that the prosecution case is not true and the conviction of the appellant by the trial court is against the evidence on record, hence the same be set aside and the appellant be acquitted. He next submitted that as the appellant was involved in the murder case of Sureshwar Singh and his appeal is pending before this Court and after the appellant was released on bail in the said case on 28.10.1983 he was again sent to jail on 24.7.1998 and he remained in jail till 15.3.2017 for the last 18 years and in pursuance of Government Order dated 3rd January 2017 he was released by the District Magistrate Ballia on 15.3.2017. On 7.3.2017 as his Form 'A' was allowed but subsequently on 5.6.2018 he has again been sent to jail in pursuance of the non bailable warrant issued by this Court in the present case when his appeal come up before this Court for final hearing and none has appeared on his behalf.
21. Per contra, learned A.G.A. on the other hand submitted that the incident has taken place at 5 p.m. in the evening and the appellant along with other accused persons has assaulted the deceased mercilessly with Farsa on account of which the deceased died. The incident has been witnesses by three eye witnesses of the occurrence including P.W. 2, who is the son of the deceased as he was accompanying him. The ocular testimony corroborates the post mortem report of the deceased and the trial court has rightly convicted the appellant for the offence under section 302/34 I.P.C. for life imprisonment and the antecedent of the appellant shown that he was earlier involved in a case under section 302 I.P.C. for the murder of the son of the deceased also by the trial court against which he preferred an appeal before this Court and was released on bail. The deceased was doing pairvi in the said case in the High Court against the appellant, hence he had strong motive to commit the murder of the deceased. The fact that the appellant is aged about 96 years and he has been released on license in pursuance of the Government Order of the State Government by the District Magistrate cannot be a ground for acquittal of the accused appellant in the present case, hence the appeal is devoid of merit and is liable to be dismissed.
22. We have given thoughtful consideration to the submissions advanced by learned counsel for the parties and perused the impugned judgment and order of the trial court and other material on record.
23. As it transpires from the prosecution case that the accused appellant along with three accused persons of the present case was involved in the murder case of Sureshwar, who happens to be the son of the deceased of the present case as well as elder brother of the informant P.W.-2 and in the said case the appellant and other accused have been convicted by the Sessions Court, Ballia for life imprisonment against which they preferred an appeal before this Court and were released on bail by this Court during the pendency of appeal. The deceased was doing pairvi in the said appeal before this Court against the appellant which annoyed the accused on account of which they have murdered the deceased on the date of incident while he was returning to his house along with his son P.W. 2 by sharp edged weapon Farsa. The deceased has received as many as 11 eleven incised wounds on his person and several fractures were also found on his body including fracture of parietal bone etc. The cause of death as per the post mortem report is shock and hemorrhage as a result of injuries noted in it by the doctor P.W. 1. The post mortem report of the deceased shows that he has been mercilessly assaulted by the accused persons including the appellant. P.W. 2, who is the son of the deceased was accompanying his father was an eye witness of the occurrence along with two other eye witnesses, namely, P.W. 5 Ram Kripal Singh and P.W. 7 Vijay Bahadur Singh, who have also narrated the prosecution case regarding the assault made by the accused including the appellant by sharp edged weapon and the revolver of the deceased was being forcibly snatched by accused Dhananjai Pandey. The presence of the informant P.W. 2 Barmeshwar Singh and two eye witnesses, i.e., P.W. 5 and 7 at the place of occurrence was found to be established as nothing could be pointed out or shown from their evidence by the learned counsel for the appellant by which their testimony could be disbelieved or could not be relied upon. The Investigating officer, P.W. 12 Bhanu Pratap Dubey, who conducted the investigation of the case soon after lodging of the report at police outpost Reoti by P.W. 2 at 18:30 hours, he reached at the place of occurrence and recorded the statements of the informant under section 161 Cr.P.C. and other witnesses and conducted the inquest on 30.1.1982 on the next morning as it was night, hence the inquest of the deceased could not be conducted. The presence of the informant is also established as he is witness of Panchayatnama along with Shambhu Singh and Bhirgu Singh, who have accompanied him to the police outpost when the report was lodged by P.W. 2. The investigating officer also found blood from the place of occurrence as it appears from the recovery memo. The blood stained earth has been marked as Ex. Ka. 38 and 40 and also from the cap and muflar which the deceased was wearing on which blood was also found. The investigating officer also recovered the shoes of the deceased and the belt in which eight cartridges of the revolver which the deceased was carrying was also found at the place of occurrence marked as Ex. Ka. 39. It further transpires from the evidence on record that the accused persons had also formed a labour union which provoked people of their caste not to work for the higher caste and the accused were also destroying their crops as they were against the persons of higher caste. The contention of learned counsel for the appellant that the appellant had no motive to commit the crime and he has been implicated in the present case only on the basis of suspicion because of the fact that he was involved in the murder case of the son of the deceased, is not acceptable as it is a case of direct evidence. Moreover from the evidence led by the prosecution it is well established that there was deep animosity between the parties on account of which the deceased was done to death by the accused appellant on 29.1.1982 at 5 p.m. in the evening. The ocular testimony fully corroborates the medical evidence. The presence of the three eye witnesses at the place of occurrence, who have deposed against the accused persons including the appellant appears to be wholly reliable and nothing fatal could be pointed out to show that they were falsely deposing against the accused and the appellant, hence the trial court has rightly convicted the appellant for the murder of the deceased as it found that the prosecution has proved its case beyond reasonable doubt against the appellant, hence no interference is called for by this Court in the impugned judgment and order passed by the trial court convicting and sentencing the appellant. The conviction and sentence of the appellant by the trial court is hereby upheld.
24. The accused appellant, who is stated to be aged about 96 years, hence some sympathy should be shown towards him but taking into account that there appears to be no infirmity in the impugned judgment. The said contention does not sound effective. It is needless to say that the appellant is at liberty to apply for remission before the State Government.
25. The appeal is liable to be dismissed and is accordingly, dismissed.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Dated:-2.1.2019
Shiraz