Allahabad High Court
Jai Narain And Ors. vs State Of U.P. on 9 December, 1999
Equivalent citations: 2000CRILJ3808
Author: U.S. Tripathi
Bench: G.P. Mathur, U.S. Tripathi
JUDGMENT U.S. Tripathi, J.
1. This appeal has been preferred against the judgment and order dated 21-4-1980 passed by Sessions Judge, Hamirpur in Sessions Trial No. 240-A of 1.975, convicting the appellants Hukum Singh alias Hakim Singh under Sections 302, 307/34 and 324, I.P.C. and sentencing him to undergo imprisonment for life under Section 302, I.P.C, R.I. for a period of seven years under Sections 307/34, I.P.C. and R.I. for a period of 1- 1/2 years under .Section 324, I.P.C, convicting the appellant Jai Narain under Sections 302/34, 324/34 and 307/34, I.P.C. and sentencing him to imprisonment for life, R.I. for a period of 1-1/2 years and R.I. for a period of seven years respectively and convicting the appellant Shyam Singh (since dead) under Section 302 read with Sections 34, 307 and 324/34, I.P.C. and sentencing him to undergo imprisonment for life, R.I. for a period of seven years and R.I. for a period of 1-1/2 years respectively.
2. The prosecution story, briefly stated, was that Bhagwat Singh (40) deceased and the appellants as well as Ramadhin Singh (since acquitted by the Trial Court) were residence of village Patara, P.S. Korara, district Hamirpur. Appellant Jai Narain was the son of Ramadhin and appellant Shyam Singh was son of Maternal uncle of appellant Hukum Singh alias Hakim Singh. Bhagwat Singh had his 'Khandhar' in his village. Towards north of the said Khandhar there was vacant land. The above vacant land was surrounded by old boundary wall which had fallen down by lapse of time. Ramadhin who had his house towards east of said vacant land, wanted to make a way towards east of his house through said vacant land. In order to protest his land Bhagwat Singh deceased had dug out foundation in the extreme western corner of said land for raising new boundary wall so that 'Rasta' might not be made through his land.
3. On the morning of 30-11-1974 Bhagwat Singh deceased was getting constructed the wall in the western side of his vacant land through labourers including Chhutku (PW-5) He was sitting on Chabutra in front of his 'Kotha' and was supervising the construction of boundary wall. At about 10.00 a.m. appellants Jai Narain, Hukum Singh alias Hakim Singh and Shyam Singh along with Ramadhin came out from the house of Ramadhin. Ramadhin was having a 'Danda,' Hakim Singh and Shyam Singh were having guns and Jai Narain Singh was having a country made pistol. Ramadhin exhorted and on his exhortation the appellants Jai Narain, Hukum Singh alias Hakim Singh and Shyam Singh fired on labourers. Sustaining pellet injury Chhutku (PW-5) ran away to the house of Bhagwat Singh, deceased. Observing fire and apprehending danger Bhagawat Singh deceased entered into his 'Kotha' and bolted it front inside, Chhutku (PW-5) told to Deo Singh (PW-1) the brother of Bhagwat Singh deceased, that appellants and Ramadhin had surrounded Bhagwat Singh. On getting above information, Deo Singh (PW-1) rushed towards spot along with his brothers Jai Karan Singh and Mahendra Singh. The appellants Jai Narain Singh, Hukum Singh alias Hakim Singh and Shyam Singh were pushing the doors of 'Kotha' and Ramadhin was exhorting from the Chabutara in front of the Kotha, Deo Singh (PW-1) challenged the appellants. Hearing the challenge of Deo Singh (PW-1), Bhagwat Singh deceased opened the door of 'Kotha.' The moment door of kotha was opened Hukum Singh alias Hakim Singh fired on the chest of deceased. Sustaining injury Bhagwat Singh deceased fell down. Appellant Shyam Singh fired on Deo Singh (PW-1). Sustaining injury he sat down. Mohan Singh (PW-4) who was coming from the house of Babu Lal Darai also challenged the appellants. Hukum Singh alias Hakim Singh appellant fired on Mohan Singh (PW-4) and he sustained pellet injuries. Sadhu Singh (PW-3) who was also coming from the house of Babu Lal Darai also sustained pellet injury. Jai Karan Singh, the younger brother of Deo Singh (PW-1), grappled with appellant Shyam Singh and snatched his gun. Mahendra Singh chased Hukum Singh alias Hakim Singh, caught him hold and tried to snatch his gun, but he pushed him away and ran away. Shyam Singh and Jai Narain appellants also ran away. Deo Singh (PW-1) and other witnesses put Bhagwat Singh deceased on a Charpai and took him to his house. A tractor was arranged and Chaukidar and Pradhan were called. Taking Bhagwat Singh, deceased on the tractor they proceeded to P.S. Korara. Bhagwat Singh deceased died in the way. At Korara Bus Stop Deo Singh (PW-1) got prepared report (Ext. Ka-1) from Jai Ram Singh and lodged the same at P.S. Korara at 11.45 a.m. and the gun of appellant Shyam Singh was deposited.
4. Chik FIR (Ext. Ka-10) was prepared by Head Constable Ram Pyare Tiwari (PW-10) who made an endorsement of the same at G.D. report (Ext. Ka-44). He also took into possession the gun of Shyam Singh deposited by Jai Karan Singh and prepared recovery memo (Ext. Ka-45) and made an endorsement of the same at G.D. report.
5. The investigation of the case was taken by Sri A.P. Chaturvedi (PW-9). He conducted inquest of the dead body of Bhagwat Singh deceased at Police Station and prepared inquest report (Ext. Ka-11), diagram of the dead body (Ext. Ka-12) challan lash (Ext. Ka-13) and letter for post mortem (Ext. Ka-15). He sealed the dead body and handed over to Constable Narain Singh and Chaukidar Narrottam for escorting the same for post-mortem. The Investigating Officer interrogated Jai Karan Singh at Police Station and sent the injured for medical examination.
6. Deo Singh (PW-1) was medically examined on 30-11-1974 at 2.15 p.m. by Dr. V.K. Tandon (PW-2), who found gun shot wounds on right arm, right hand, chest, left arm and right thigh and prepared injury report (Ext. Ka-2). He also examined Mohan Singh (PW-4) at 2.45 p.m. and found lacerated wound and gun shot wounds on his person and prepared injury report (Ex. Ka-3). He also examined Sadhu Singh (PW-3) at 3.05 p.m. and Chhutku (PW-5) at 3.15 p.m. and found grazing abrasions on their person and prepared injury reports (Exts. Ka-4 and Ka-5) respectively.
7. The I.O. A.P. Chaturvedi (PW-9) reached on the spot at about 5.00 p.m. He inspected the place of occurrence and prepared site plan (Ext. Ka-18). He took into possession blood stained and simple earth from the spot and prepared recovery memo. (Ext. Ka-18). He also recovered empty cartridge (Ext. 16) from the spot and prepared recovery memo (Ext. Ka-19). He also took into possession burnt pieces of Khaprail and sample of ash from the 'Kotha' and prepared recovery memo (Ex. Ka-20). He searched appellants and other accused, but they were not traceable. On 1-12-1974 the I.O. interrogated Deo Singh (PW-1), Sadhu Singh (PW-3) Mohan Singh (PW-4) Chhutku (PW-5) and other witnesses.
8. The autopsy on the dead body of Bhagawat Singh deceased was conducted on 1-12-1974 at 10.00 a.m. by Dr. Prithivi Raj Singh (PW-7) who found one gun shot wound of entry on the left side chest of deceased as ante mortem injury and cause of death due to shock and haemorrhage as a result of above gun shot injury. He prepared post mortem report (Ext. Ka-8).
9. On 4-12-1974 the I.O. took into possession the blood stained clothes of Sadhu Singh (PW-3) and Mohan Singh (PW-4) and prepared recovery memo (Ext. Ka-6 and Ext. Ka-28). The appellants accused were absconding and the I.O. obtained processes under Sections 82 and 83 Cr.P.C. against them. Appellant Jai Narain and Ramadhin surrendered in the Court on 12-12-1974. The I.O. interrogated then on 12-1-1975 and sent warrant of arrest for appellants Shyam Singh and Hukum Singh alias Hakim Singh to their Commanding Officers (as they were army personnel). Hukum Singh alias Hakim Singh was sent to Hamirpur Jail by the Army Officers and the I.O. interrogated him on 19-3-1975. Appellant Shyam Singh was kept under army custody. The I.O. sent the gun of Shyam Singh and empty cartridge (Ext. 16) recovered from the spot to Ballistice Expert and on completion of investigation he submitted charge sheet (Exts. Ka-42 and Ka-43) against Ramadhin and Jai Narain and that of Hukim Singh alias Hakim Singh. Thereafter he was transferred and remaining investigation was conducted by Mohd. Yunus (PW-6), who interrogated appellant Shyam Singh at Jhansi Military Hospital on 7-8-1975 and submitted charge sheet (Ext. Ka-7) against him.
10. Committal proceeding took place in the Court of Magistrate who committed the case of appellants and Ramadhin to the Court of Session.
11. In the Sessions Court appellant Hukum Singh alias Hakim Singh was charged with the offences punishable under Sections 302, 324 and 307 read with 34, I.P.C. appellant Shyam Singh was charged with the offences punishable under Sections 307, 302 read with 34 and 324 read with 34, I.P.C. while Ramadhin and Jai Narain Singh were charged with the offences punishable under Section 302 read with 34, 324 read with 34 and 307 read with 34, I.P.C. The appellants pleaded not guilty and claimed trial.
12. The defence of appellant Hukum Singh alias Hakim Singh was that Ramadhin had his vacant land towards east of his house. He (Hakim Singh) and Shyam Singh had no land near their house for constructing ('Baithaka'). Therefore he and Shyam Singh jointly purchased land from Ramadhin prior to 15 days of occurrence which was in between the house of Genda Dhobi and Har Prasad, through sale deed. On the date of occurrence i.e. 30-11-1974 at 8.15 a.m. he was getting wall constructed over said land through labourers Bhura (PW-3) and others and had his gun with him because on the morning of occurrence at about 7.00 a.m. Deo Singh (PW-1) and others had robbed the gun of Shyam Singh from his house. His leave was expiring on the date of occurrence and he had to report for his duty on the next morning. Therefore he came from his house prepared to go to place of his duty after getting the construction work started. After 1-1/2 hours Deo Singh (PW-1) Mahendra Singh, Bhagwat Singh deceased, Sadhu Singh (PW-3), Mohan Singh (PW-4), Shiv Singh, Moti and others, in all about 40-45 persons, came to the spot and surrounded him. He was sitting on 'Chabutara' of Ramadhin which was wrongly claimed by Bhagwat Singh deceased. Deo Singh (PW-1) was having a rifle, Mohan Singh was having his licensed 12 bore gun, Bhagawat Singh was having spear and Mahendra Singh was having Pharsa. Deo Singh (PW-1) abused him and exhorted his associates to kill him. Appellant Hukum Singh alias Hakim Singh in order to save his life entered into 'Kotha' towards west of 'Chabutara' with his gun and bolted it from inside. Deo Singh (PW-1) and others set at fire the above 'Kotha'. He was crying for about 15 minutes inside the 'Kotha' and threatening that in case any one came for-, ward he would kill him. When he felt suffocation due to smoke and flames, he opened the door of kotha. In the meantime Bhagwat Singh deceased rushed towards him with spear. Bhagawat Singh deceased was to trust spear on him but in the meantime he fired on him (Bhagawat Singh) in his self defence. Sustaining fire arm injury Bhagwat Singh fell down inside Kotha. Deo Singh (PW-1) and Mohan Singh (PW-4) tried to assault him (Appellant) and then he fired two shots again in his self defence. Thereafter he came out of the Kotha and went to his unit and narrated the incident to his Commanding Officer.
13. Appellant Shyam Singh contended that the land in front of Kotha belonged to Ramadhin and he and Hakim Singh purchased the said land, due to which Deo Singh, (PW-1) became inimical with him. On 30-11-1974 at about 7.00 a.m. Deo Singh (PW-1) and others came to his house and snatched his gun. In order to save his life he went to his unit prior to seven days of the expiry of his leave and narrated the incident to his Officers. His Officers informed the local police but no action was taken.
14. Accused Ramadhin contended that land belonged to him and he sold it to Hakim Singh and Shyam Singh prior to 15 days of the occurrence. Deo Singh (PW-1) and others annoyed on selling the land. The land belonged to the patti of Ramdayal, who was elder brother of his father. Jai Narain appellant contended that he was falsely implicated on account of enmity and was not present on the spot.
15. The appellants examined Avadh Bihari (DW-1), Laxman Singh Chauhan, (DW-2) and Bhoora (DW-3) in support of their defence version.
16. The prosecution, in support of its case, examined Deo Singh (PW-1), Dr. V.K. Tandon (PW-2), Sadhu Singh (PW-3), Mohan Singh (PW-4), Chhutku (PW-5), S.I. Mohd. Yunus (PW-6), Dr. Prithivi Raj Singh (PW-7), S.P. Mishra (PW-8), A.P. Chaturvedi, I.O. (PW-9) and Ram Pyarey Tiwari, Head Moharrir (PW-1). Head Constable Awadh Kishor Pandey (PW-1) was examined as Court witness. Deo Singh (PW-1), Sadhu Singh (PW-3), Mohan Singh (PW-4) and Chutku (PW-5) were witnesses of fact while evidence of remaining witnesses was formal in nature.
17. The learned Sessions Judge on considering the evidence on record held that prosecution had successfully proved the guilt of Hukum Singh alias Hakim Singh, Shyam Singh and Jai Narain for the offences punishable under Sections 302, 307/34, 324/(sic) I.P.C., 302/34, 324/34, 307/34 and 302/34, 324/34 and 307/34, I.P.C. respectively. He further held that prosecution could not establish the guilt of Ramadhin. With these findings he acquitted Ramadhin and convicted Hukum Singh alias Hakim Singh, Shyam Singh and Jai Narain under above sections and sentenced them as mentioned above.
18. Feeling aggrieved with their above convictions and sentences appellants Jai Narain, Hukum Singh alias Hakim Singh and Shyam Singh preferred this appeal.
19. During pendency of the appeal Shyam Singh appellant died in the year 1997 vide report of Chief Judicial Magistrate dated 23-4-1999. On account of death of Shyam Singh the appeal preferred by him stood abated.
20. We have heard Sri J. S. Sengar learned counsel for the appellants, Sri V.S. Singh the learned counsel for the complainant as well as learned A.G.A. and examined the record and evidence.
21. The death of Bhagawat Singh deceased in the incident and injuries on the persons of Deo Singh (PW-1), Sadhu Singh (PW-3) and Mohan Singh (PW-4) are not disputed by the appellants. Dr. Prithivi Raj Singh (PW-7) who conducted autopsy on the dead body of the Bhagawat Singh deceased found following ante-mortem injuries on his person Gun shot wound of entry 3 cm x 4 cm x chest cavity deep. Edges inverted scorching present around the wound. Oval in shape, on left side of chest 6 cm from mid line and 10 cm from the left nipple at 11 0' clock position. Direction of wound from left to right slightly down-ward and back-ward.
22. On internal examination skull bone was found punctured at many places in upper part. First and second ribs fractured on left side in the middle, left clavicle fractured in its middle. Right lung was perforated at several places upper and middle lobe. Six pellets were recovered from right lung and 10 pellets and four wadding materials were recovered from pleural cavity. Sternum fractured in upper part, six pellets were recovered. The stomach contained watery fluid. Small intestine contained gases and large intestine contained faecal matters.
23. Cause of death, according to Doctor, was due to shock and haemorrhage as a result of gun shot injury.
24. Dr. V.K. Tandon (PW-2) who examined Deo Singh (PW-1), Sadhu (PW-3), Mohan Singh (PW-4) and Chhutku (PW-5) found following injuries on their persons:-
(1) Four gun shot wounds of entry with inverted margins in an area of 8 cm x 6 cm on the front and inner side of middle 1/3rd of right arm. Each wound measuring 0.3 cm. x 0.3 cm. x skin deep.
(2) Multiple gun shot wounds of entry with inverted margins in an area of 25 cm. x 13 cm over back side of right fore arm and right hand. Each measuring 0.3 cm. x 0.3. cm. x skin and muscle deep.
(3) Two gun shot wounds of entry with inverted margins on the right chest over pectoral region. One at 7 0' clock position from right nipple and at 7 cm. away, IInd at 11 0'clock position 6 cm away from right nipple. Each measuring 0.3 cm. x 0.3 cm. x skin deep.
(4) Gun shot wound of entry 0.3 cm. x 0.3 cm x muscle deep on the front of lower part of left arm.
(5) 2 gun shot wounds of entry with inverted margins 0.3 cm. x 0.4 cm. x skin deep. Each situated on the upper most part and outer side of right thigh and were 2.5 cm. apart. Direction of all the wounds from right to left, horizontally placed. No scorching or tattooing present. Fresh bleeding and fresh clot over wound present.
25. Duration of injuries was fresh caused by fire arm and simple in nature.
INJURIES OF SADHU (PW-3) (1) Grazing abrasion 0.5 cm. x 0.2 cm. on the left iliac fossa.
The injury was fresh in duration caused by fire arm and simple in nature.
Injuries of Mohan Singh PW-4) (1) Two oblique grazing parallel abrasions 2.5 cm. x 0.3 cm. over left forehead 2.5 cm. above medial end of left orbit. Both were 0.5 cm. apart. Direction below, upward from right to left.
(2) Lacerated wound 1 cm. x 0.3 cm. x scalp deep, middle of forehead 5.5 cm. above bridge of nose.
(3) Gun shot wound of entry with inverted margins 0.3 cm. x 0.3 cm. x 2.5 cm. deep under the scalp of left forehead 6 cm. above the medial end of left orbit. Direction was below, upwards outer side.
(4) Gun shot wound of exist with everted margins 0.5 cm. x 0.4 cm. x scalp deep 2.5 cm. long. Direction corresponding with injury No. 3.
(5) Grazing abrasion 0.7 cm. x 0.5 cm. on the outer side of left forehead.
(6) Gun shot wound of entry 0.3 cm. x 0.3 cm. x 2 cm. on the lower part of right chin with inverted margins. Direction below upwards towards left side from right side.
(7) Gun shot wound of exit 0.7 cm. x 0.4 cm. with everted margins on right chin. Direction corresponding with injury No. 6.
(8) Gun shot wound of entry with inverted margins 0.3 cm. x 0.3 cm. x muscle deep on left chin.
(9) Gun shot wound of entry with inverted margins 0.2 cm. 0.2 cm. x skin deep on left supra clavicular fossa. There was no scorching or tatooing. Directions of wound from below upward and from right to left. Fresh bleeding from wound was present.
Duration of injuries were fresh, caused by fire arm and simple in nature.
26. On the body of Chhutku (PW-5) one Grazing abrasion 0.7 cm. x 0.2 cm. on the darsum of first phallynx of right thumb was found. It was fresh in duration caused by fire arm and simple in nature.
27. Deo Singh (PW-1) Sadhu Singh (PW-3), Mohan Singh (PW-4) and Chhutku (PW-5) have stated that gun shots were fired on the deceased and on them and Bhagwat Singh deceased and they sustained gun shot injuries. As mentioned above the appellants admitted the death of Bhagwat Singh deceased due to gun shot injury and they have also admitted that Deo Singh (PW-1), Sadhu (PW-3) and Mohan Singh (PW-4) also sustained gun shot injuries. In this way the death of Bhagwat Singh and injuries on the person of above witnesses are established.
28. The prosecution had relied on evidence of ocular witnesses Deo Singh (PW-1), Sadhu Singh (PW-3), Mohan Singh (PW-4) and Chhutku (PW-5).
29. Deo Singh (PW-1) after disclosing his relationship with the deceased and inter se -relationship of appellants as well as Ramadhin, stated that on 30-11-1974 at about 10.00 a.m. he was present on the gate of his house near his 'BAITHKA,' His Younger brother Jai Karan Singh and Mahendra Singh son of Prithvi Pal Singh were also sitting there. He heard sound of fire and came out of his gate. Ghhutku (PW-5) came running towards him and told that while Bhagwat Singh deceased was sitting on CHABOOTRA of his Khandhar and he (Chhutku) and others were constructing well, Ramadhin, Jai Narain, Hakim Singh and Shyam Singh came from the house of Ramadhin. Ramadhin exhorted and on his exhortation above three persons namely Jai Narain, Hakim Singh and Shyam Singh started firing on them and they had surrounded Bhagwat Singh deceased for killing him getting above information he along with Jai Karan Singh and Mahendra Singh rushed towards his Khandhar were he observed that Shyam Singh, Hakim Singh and Jai Narain Singh were pushing the doors of kotha and Ramadhin was standing on Chabootra and exhorting. Shyam Singh was having single barrel gun, Hakim Singh was having single barrel gun and Jai Narain was having country made pistol. He challenged the above appellants. Hearing his challenge Bhagwat Singh deceased opened the doors. The moment door was opened, Hakim Singh fired on the chest of deceased, due to which he sustained gun shot injury and fell down. Shyam Singh fired on him (Deo Singh) and sustaining injury he sat down. Mohan Singh who was coming from house of Babu Lal Darzi also challenged the appellants. On his challenge Hakim Singh again fired towards Mohan Singh and he sustained pellet injuries on his face temple and chin Sadhu (PW-3 who was coming behind Mohan Singh (PW-4) also sustained pellet injury. Jai Karan Singh grappled with Shyam Singh and snatched his gun. Mahendra Singh tried to snatch the gun of Hakim Singh, but he pushed him aside and ran away. He lifted Bhagawat Singh, laid him on a CHARPAI arranged for tractor, called Chaukidar and Pradhan and proceeded to police station. After travelling some distance Bhagawat Singh died. He got prepared report (Ext. Ka-1) from Jai Ram Singh at Korara Bus stop and lodged the same at. police station Korara. Jai Karan Singh deposited the gun which he had snatched from Shyam Singh. Thereafter he was sent to Korara Hospital for medical examination, but the Doctor was not available there and he along with Sadhu Singh (PW-3), Mohan Singh (PW-4) and Chhutku (PW-5) were sent to Hamirpur Hospital, where they were medically examined. His blood stained clothes were also taken by the Doctor. He further stated that boundary wall around the land in front of Khandhar had fallen down and Ramadhin wanted to make RASTA through said land and therefore he dug out foundation a month before the occurrence and on the date of occurrence boundary wall was being constructed.
30. Sadhu (PW-3), another ocular and injured witnesses, stated that on the date of occurrence at about 10.00 a.m. he was returning from the house of Babu Lal Darzi after taking his clothes. When he reached near the well of the Khandhar of Bhagwat Singh he saw Ramadhin standing on Chabutra exhorting Hakim Singh, Shyam Singh and Jai Narain, Shyam Singh and Hakim Singh were pushing the doors of Kotha of Bhagwat Singh. Deo Singh (PW-1), Mahendra Pal Singh and Jai Karan Singh were coming from western side. Deo Singh (PW-1) challenged the above appellants. In the meantime Bhagwat Singh opened the door. The moment door was opened. Hakim Singh fired on Bhagwat Singh and sustaining injury he fell down inside the kotha. Thereafter Shyam Singh fired on Deo Singh (PW-1). Mohan Singh (PW-4) who was some paces ahead to him (the witness) also challenged the appellants as to what were they doing. Then Hakim Singh fired one shot on him which hit on the chin and temple of Mohan Singh as well as him (the witness), Jai Karan Singh grappled with Shyam Singh and snatched his gun. Mahendra Pal Singh apprehended Hakim Singh but he kicked him and ran away. Bhagwat Singh was taken out from the kotha and was laid on a Charpai. After arranging Tractor he was being taken to Korara. He further stated that when he started from the village he observed fire at the place of occurrence. Bhagwat Singh died in the way. Deo Singh got prepared report at Korara Bus Stop and lodged the same at police station. Jai Karan deposited the gun of Shyam Singh at the police station. He was sent to Korara Hospital through a Constable, but Doctor was not available there and therefore he and other injured persons were sent to Hamirpur Hospital where they were medically examined.
31. Mohan Singh (PW-4), the other ocular and injured witness, stated that on the date of occurrence he was coming from the house of Babu Lal Darzi, where he had gone to handover his cloths for stitching. In the way he observed Ramadhin exhorting from the Chabootra and appellants Jai Narain and Hakim Singh pushing the doors of the Kotha of Bhagwat Singh deceased. Deo Singh (PW-1), Jai Karan and Mahendra Pal came there. Deo Singh (PW-1) challenged the appellants. In the meantime Bhagwat Singh opened the door of kotha and Hakim Singh fired gun shot on him (Bhagwat Singh). He also challenged and then Hakim Singh fired on him. He sustained injuries on his temple and chin. Deo Singh (PW-1) also sustained gun shot injuries, but he could not see as to who fired on Deo Singh (PW-1). Sadhu Singh (PW-3) who was behind him also sustained injuries. Mahendra Pal Singh grappled with Hakim Singh and tried to snatch his gun, but Hakim Singh got himself rescued and ran away. Bhagwat Singh deceased was taken to Korara on tractor. His injuries were examined at Hamirpur Hospital. However the witness denied the presence of appellant Shyam Singh on the spot. In leading questions put up to the witness by prosecution he admitted that Mata Deen was his father and Bhagwan Deen was his real uncle. Smt. Ram Kali, mother of appellant Shyam Singh, was the daughter of Bhagwan Din. That appellant Shyam Singh was his first cousin Bhanja (Cousin Sister's son). He further admitted that Jai Karan had deposited a gun at the police station, but he did not know as to whom the gun belonged.
32. Chhutku (PW-5), the other ocular and injured witness, stated that on the date of occurrence at about 10.00 a.m. he was constructing the wall in the Hata of Deo Singh (PW-1) along with Bhagirath. Bhagwat Singh, deceased was sitting on Chabootra in front of Kotha. Appellant Hakim Singh, Shyam Singh, Jai Narain Singh and Ramadhin came out from the house of Ramadhin. Ramadhin was having a Danda, Hakim Singh and Shyam Singh were having guns and Jai Narain was having a country made pistol. On the exhortion of Ramadhin, Shyam Singh, Hakim Singh and Jai Narain fired on them. He went to the gate of Deo Singh (PW-1), where Deo Singh (PW-1), Jai Karan and Mahendra met him and he told about the incident to them. Thereafter he sat down at the door of the house of Deo Singh (PW-1). He was medically examined at (Hamirpur Hospital).
33. Ram Pyarey Tiwari (PW-10) who is the Head Constable, stated that on 30-11-1974 at about 11.45 a.m. Deo Singh (PW-1) produced written report (Ext.Ka-1) at the police station and on the basis of above report he prepared Chik FIR (Ext. Ka-10) and made an endorsement of the same of G.D. (Ext. Ka-44) Jai Karan deposited a SBBL gun No. M-3347 (Ext. 17). He took the above gun into possession and prepared recovery memo (Ext. Ka-45).
34. Sri A.P. Chaturvedi (PW-9) was Investigating Officer of this case. He stated that on 30-11-1974 the case was registered at police station in his presence. After registration of the case he conducted inquest of the dead body of Bhagwat Singh deceased at police station and prepared inquest report and other relevant papers (Exts. Ka-11 to Ka-13). He also took into possession the blood stained clothes of the deceased and prepared recovery memo (Ext. Ka-14). He sent complainant and injured for medical examination. He also interrogated Jai Karan at the police station. Thereafter he came to the spot and reached there at about 5.00 p.m. He inspected the place of occurrence and prepared site plan (Ext. Ka-17). At the time of spot inspection mud of the foundation was quite wet. He took into possession blood stained and simple earth from the spot and prepared recovery memo (Ext. Ka-18). He also collected an empty cartridge (Exhibit-16) and prepared recovery memo (Ext. Ka-19). He also took into possession burnt pieces of Khaprail and sample of ash and prepared recovery memo (Ext. Ka-20). He searched the accused but they were not traceable. On 1-12-1974 he interrogated Deo Singh (PW-1), Sadhu Singh (PW-3), Mohan Singh (PW-4) and Chhutku (PW-5). The accused were absconding and subsequently they surrendered in Court. After completing other formalities of investigation he submitted charge sheet against Ramadhin, Jai Narain and Hakim Singh.
35. Sri S.P. Misra (PW-8) Ballisitc Expert stated that he tested the empty cartridge (Ext. 16) with SBBL gun No. M 3347 (Ext. 17) and found that the empty cartridge (Ext. 16) was fired from gun (Ext. 17). He prepared report test (Ext. Ka-23) in which he mentioned the similarities.
36. We have given the above gist of evidence adduced by the prosecution. The evidence adduced by appellants will be considered at the relevant places.
37. The appellants had admitted date, time and place of occurrence as well as the death of Bhagwat Singh due to gun shot injury and fire arm injuries on the persons of Deo Singh (PW-1), Sadhu Singh (PW-3) and Mohan Singh (PW-4). The case of the prosecution was that on the date of occurrence at about 10.00 a.m. Bhagwat Singh deceased was getting boundary wall, towards west of his vacant land, constructed through labourers Chhutku (PW-5) and Bhagirath. Bhagwat Singh was sitting on Chabootra in front of his 'Kotha'. In the mean time Ramadhin and appellant Hakim Singh, Jai Narain and Shyam Singh came there by coming out of house of Ramadhin. Shyam Singh and Hakim Singh were having gun and Jai Narain was having a country made pistol. Ramadhin exhorted the appellants to kill Bhagwat Singh and others as they were not listening his warnings regarding construction of boundary wall. On his exhortation Shyam Singh, Jai Narain and Hakim Singh fired. Chhutku (PW-5) who was constructing wall sustained pellet injury and rushed towards house of Deo Singh (PW-1). Observing the firing Bhagwat Singh deceased entered into his Kotha to save his life and bolted its doors from inside. Appellants Hakim Singh, Shyam Singh and Jai Narain started pushing the doors of 'Kotha.' On hearing sound of fire and the information given by Chhutku (PW-5), Deo Singh (PW-1), Jai Karan and Mahendra Pal Singh rushed to the spot. Deo Singh (PW-1) challenged the appellants and hearing his challenge Bhagwat Singh deceased opened the doors of kotha. In the meantime Hakim Singh fired on the chest of Bhagwat Singh who sustained injury and fell down in the kotha. Shyam Singh appellant fired on Deo Singh who sustained injuries and sat down. In the meantime Mohan Singh (PW-4) also came and challenged the appellants. Hakim Singh fired on Mohan Singh (PW-4) who sustained injuries. Sadhu Singh (PW-3) who was behind Mohan also sustained pellet injury. Jai Karan grapped with Shyam Singh and snatched his SBBL gun. Mahendra Pal Singh tried to snatch the gun of Hakim Singh but he kicked him and ran way. Bhagwat Singh was being taken to Hospital but he died in the way.
38. On the other hand the case of appellants Hakim Singh was that he had no land near his house for constructing his 'Baithaka' and therefore he and Shyam Singh jointly purchased land in front of house of Ramadhin from Ramadhin prior to 15 days of the occurrence. On the date of occurrence Hakim Singh was getting constructed wall over the land purchased by him. At about 7.00 a.m. on the date of occurrence Deo Singh (PW-1) and others took away the gun of Shyam Singh appellant from his house. Hakim Singh was serving in Military and his leave was to expire on the day of the occurrence. He had to go to his unit on the date of occurrence. At about 8.00 a.m. he came to the land in front of Kotha and started construction of wall, through Bhoora (DW-3) and others. He was also having his gun for its safety. He was on the Chabootra of Ramadhin. After 1-1/2 hours of starting the construction work Deo Singh (PW-1), Mohan Singh (PW-4), Bhagwat Singh deceased, Mahendra Pal Singh, Sadhu Singh (PW-3), Shiv Singh, Moti Singh and others, in all about 40-50 persons, came there and surrounded him. Deo Singh (PW-1) was having rifle. Mohan Singh (PW-4) was having his licensed gun, Bhagwat Singh was having spear and Mahendra Pal Singh was having Pharsa. Deo Singh (PW-1) abused him and exhorted his associates to kill him. In order to save his life he entered into kotha towards west of Chabutra with his gun and bolted it from inside. Deo Singh (PW-1) and others set the kotha at fire. He started crying and threatening that in case any one came forward he would kill him. When he felt suffocation due to smokes and flames he opened the door of the kotha. In the meantime, Bhagwat Singh deceased rushed towards him with spear and as he was to thrust spear, he fired on Bhagwat Singh in his self-defence. Sustaining fire arm injury Bhagwat fell down in the kotha. Deo Singh (PW-1) and Mohan Singh (PW-4) tried to assault him and he again fired two shots in his self-defence. Thereafter he came to his unit and reported the incident to his Commanding Officer.
39. Therefore, it is to be considered |whether the occurrence took place as alleged by the prosecution or in the manner suggested by appellants and Hakim Singh fired gun shot on deceased and injured persons in his self-defence.
40. Admittedly, occurrence initiated on the raising of wall on the land towards north of kotha. According to prosecution the above land belonged to Bhagwat deceased. As the above land was in front of house of Ramadhin he wanted to make a Rasta through it. In order to block the above Rasta and protect his land Bhagwat deceased was getting constructed boundary wall on its western side. The case of Hakim Singh appellant was that the above land belonged to Ramadhin accused and he and Shyam Singh purchased a portion of said land through registered sale deed prior to 15 days of occurrence and on the date of occurrence he was getting wall constructed over it. The appellants filed a certified copy of sale deed dated 20-11-1974 (Ext. Kha-9) which shows that Ramadhin sold 25'x l0' land towards west of well and towards south of house of Medwa and Shambhoo Dayal to Hakim Singh and Shyam Singh. The place where boundary wall was being constructed has been shown with letter 'B' in site plan (Ext. Ka-17). It is true that the Investigating Officer had not made any enquiry about the ownership of said land. The appellants filed KHASRA extract for the year 1311 Fasali and Khatauni extract for the year 1333 Fasali and on the basis of it, it was contended that the plot No. 1773 belonged to the Patti of Ram Dayal, Mohan and Kashi Ram. Kashi Ram was admittedly grand father of Ramadhin while Ram Dayal was his uncle. The prosecution has filed Khasara Partition (Ext. Ka-57) of the case of Sheetal Singh and Ors. v. Sheo Narain and Ors. decided on 4-4-1940 A.D. The above Khasra Partition shows that plot No. 1773 was recorded as Abadi and different portion of it fell in the patti of Than Singh, Durgpal Singh, Jagram Singh, Ranjeet Singh and Shiv Narain Singh. Jag Ram Singh was admittedly father of Bhagwat deceased. Demarcation of land in question was not done by either party. From above documents it reveals that plot No. 1773 was a big plot and different portion of it fell in the share of ancestors of the parties and others. From the above documents no definite conclusion can be drawn that the land over which the boundry wall was being constructed belonged to Bhagwat deceased or to Ramadhin as the parties had not adduced evidence regarding specific user of the land. But the question of ownership of the above land has no much relevance as the case of appellant Hakim Singh was not that he acted in self-defence of property. Assuming for the sake of argument that Bhagwat deceased was forcibly getting a boundary wall constructed, then Hakim Singh had sufficient time and occasion to approach the public authorities to protect the said land. By raising alleged unauthorised construction by deceased, Hakim Singh appellant did not get any right of self-defence.
41. Bhagwat Singh has also claimed ownership over the well existing towards west of his house. The ownership of above well is also not very much material as it has no relevance with the occurrence of the case. Much controversy has also been raised about the ownership of kotha in which, according to the prosecution Bhagwat Singh took shelter and according to defence Hakim Singh appellant took shelter. The ownership of above kotha is also not very much material. Moreover, there is oral assertion of the parties about the ownership of above kotha. Whether the above kotha belonged to Bhagwat Singh deceased or to Ramadhin, it makes no difference to the appreciation of version of parties regarding occurrence of the case.
42. From the version of the prosecution and the defence one thing is clear that land over which boundary wall was being constructed was in front of house of Ramadhin accused and there were rival claims over it between Bhagwat deceased and Ramdhin. It also appears that Ramadhin executed a sale deed in favour of Hakim Singh and Shyam Singh who were military personnel and were licensees of gun. In these circumstances, the possibility that Ramadhin wanted to bring persons to assert right by force over the land to defeat the claim of Bhagwat Singh over said land, cannot be easily ruled out.
43. The case of the prosecution is that on the date of occurrence Bhagwat Singh deceased was getting the wall constructed through labourers Chhutku (PW-5) and Bhagirath. The contention of Hakim Singh appellant was that he was getting the wall constructed through Bhoora (DW-3) and others. Chhutku (PW-5) stated that on the date of occurrence at about 10.00 a.m. he was constructing the wall of "Khata" of Deo Singh (PW-1). Bhagirath was also with him and Bhagwat Singh deceased was sitting on the Chabootara. Bhoora (DW-3) stated that on the morning of occurrence he along with Shitlu Chamar, Rajaram and 3-4 other labourers was constructing the well on behalf of Hakim Singh. An attempt was made from the side of defence that Chhutku (PW-5) was not present on the spot and as he was servant of Bhagwat Singh, therefore he was deposing falsely. Chhutku (PW-5) had sustained pellet injury as stated by Dr. V.K. Tiwari (PW-2). His injury was caused in the same transaction in which the deceased Bhagawat Singh and injured Deo Singh (PW-1), Sadhu Singh (PW-3) and Mohan Singh (PW-4) sustained injuries. Though the appellants had disputed presence of Chhutku (PW-5) on the spot, but the presence of injury on his person in the same transaction in which the other injured witnesses and deceased, whose presence is admitted to appellants, sustained injuries, supports his presence on the spot. The defence could not explain the manner in which Chhutku (PW-5) sustained pellet injury and as such there could be no doubt regarding presence of Chhutku on the spot. The witness has categorically stated the purpose for his presence on the spot and denied the suggestion of appellants that he was servant of Bhagwat Singh. Chhutku was not resident of the village of the parties and as such his presence shows that he was constructing the wall on behalf of Bhagwat as he had no other concern with Bhagwat Singh deceased. Bhoora (PW-3) is admittedly resident of village Kakrau where Hakim Singh had his sasural. Therefore, the possibility that Bhoora was pressurised by in-laws of Hakim Singh to oblige him, cannot be easily ruled out. Moreover, according to Bhoora (DW-3) Shitlu Chamar, Rajaram and 3-4 other persons were also constructing the wall. But no other alleged labourer was examined. Therefore, the testimony of Bhoora Singh (PW-3) can be safely rejected on the ground of his interestedness, while the presence of Chhutku (PW-5) an injured witness is to be accepted.
44. No doubt, Deo Singh (PW-1) in his evidence stated that foundation of the boundary wall was due a month before the occurrence. It was contended by the learned counsel for the appellants that this fact was not mentioned in the FIR and it was subsequently developed in evidence in order to claim ownership over the land on which boundary wall was being constructed. It is true that Deo Singh (PW-1) for the first time in his evidence stated that foundation of wall was dug prior to one month of occurrence, but this fact was not mentioned in the FIR. The Investigating Officer who visited the spot found that mud of the foundation was wet and the foundation appeared recently filled up with mud. But this fact does not affect the prosecution story and exaggeration made by Deo Singh (PW-1) in his evidence that foundation was dug prior to one month of the occurrence may be ignored. Even if the foundation of the boundary wall was dug on the date of occurrence, it does not falsify the prosecution case.
45. The appellants have admitted presence of Deo Singh (PW-1), Sadhu Singh (PW-3) Mohan Singh (PW-4), Jai Narain and Mahendra on the spot. Presence of Chhutku (PW-5) is also proved as discussed above. The above witnesses have supported prosecution version and denied defence version.
46. It was contended by the learned counsel for the appellants that Mohan Singh (PW-4) has excluded Shyam Singh and stated that he was not present on the spot and thus the prosecution story is belied by it's own witness. Mohan Singh (PW-4) no doubt stated that Shyam Singh was not present on the spot, but in his cross-examination by the prosecution he had to admit that Shyam Singh was his cousin Bhanja (Cousin sister's son) and therefore he had soft corner for him. Moreover, the witness admitted that Jai Karan the brother of Bhagwat deceased had deposited a gun at the police station at the time of lodging of report. The prosecution case is that Jai Narain snatched the gun of Shyam Singh. When the witness was asked as to whom that gun belonged, he showed his ignorance. Therefore, the exclusion of presence of Shyam Singh by Mohan Singh (PW-4) was obvious. Except the presence of Shyam Singh, the witness has supported entire prosecution story and the manner in which he sustained gun shot injuries. Therefore, it cannot be said that evidence of Mohan Singh (PW-4) falsified the prosecution story.
47. Deo Singh (PW-1), Sadhu Singh (PW-3) and Mohan Singh (PW-4) have categorically stated that they were not having any arm at the time of occurrence. The fact and circumstances of the case show that their above version appears correct, Deo Singh (PW-1) was, no doubt, a licensee of rifle. But according to his evidence hearing sound of fire he rushed towards the spot empty handed and he has to occasion to take his rifle. Mohan Singh (PW-1) and Sadhu (PW-1) stated that they were returning from the house of Babu Lal Darzi where they had gone to give cloth for stitching and for going to house of Babu Lal Darzi for above purpose they need not take gun. The explanation offered by the above witnesses for coming to the spot empty handed is thus probable and convincing. Their presence on the spot empty handed is again supported by the fact that none of the appellants had sustained any sort of injury because in case these persons were having fire arm, farsa and spear they must have used their respective arms when shot was being fired on them.
48. Contention of Hakim Singh appellant was that he came to the spot for constructing his wall with his licensed 12 bore gun. He had offered an explanation for keeping his gun at that time by contending that on the date of occurrence at about 7.00 a.m. Deo Singh (PW-1) and others had removed the gun of Shyam Singh from his house and therefore for keeping his gun safe, he brought it with him on the spot. He further contended that on the date of occurrence his leave was to expire and he had to report for his duty on the next morning. He thought it proper that after starting construction work he would proceed to his unit and therefore he came to the spot fully prepared for going to his unit. The above explanation of Hakim Singh for having his gun on the spot despite of the fact that he had to go to his unit on the same day is not convincing. No doubt, Shyam Singh's version was that Deo Singh (PW-1) and others had taken out his gun from his house at the same date at 7.00 a.m. Shyam Singh had died and appeal preferred by him has abated. Therefore, we need not enter into defence set up by Shyam Singh. Even that it can be said that admittedly Shyam Singh had not lodged report of theft or robbery against Deo Singh and others on the date of occurrence or succeeding day and according to his contention he went to place of his duty prior to 7 days of the expiry of his leave and after about 14 days of the occurrence a report was sent to S.P. Hamripur through his Commanding Officer that his gun was removed by Deo Singh and others. The gun of Shyam Singh was deposited at the police station at the time of lodging of the report of this case and it appears that in order to offer some explanation for the same, Shyam Singh set up an afterthought version. This shows that explanation of Hakim Singh for having his gun with him on the spot is not convincing. Coming of Hakim Singh to the spot with his licensed gun leads to infer that when Bhagwat Singh started construction of wall Hakim Singh was called by Ramadhin to stop the construction by show of force.
49. The evidence of the prosecution is that on the exhortation of Ramadhin, Hakim Singh, Shyam Singh and Jai Narain fired first on labourers and when one of the labourer namely Chhutku (PW-5) sustained injury, Bhagwat Singh deceased apprehended danger and entered into kotha. The wall was being constructed at a distance of few paces towards north west of the Chabutara and at place (XB). The prosecution version that when two of the appellants having guns and one having country made pistol fired on labourers. Bhagwat Singh deceased entered into kotha appears probable. Contrary to it the version set up by Hakim does not appear probable, because in case Hakim Singh was surrounded by 4.50 persons and one of them was having rifle, one was having licensed gun, one was having spear and one was having farsa, it was not possible for him to escape the above persons and safely enter into kotha without sustaining any scratch on his body.
50. The learned counsel for the appellants vehemently argued that the defence version that when Hakim Singh entered into kotha and bolted its door from inside Deo Singh and others set fire to the said kotha is supported by the evidence of I.O. that when he visited the spot in the afternoon of the occurrence he found the kotha burnt and collected burnt pieces of Khaprail and ashes. But the prosecution witnesses had not offered any sufficient explanation for burning of Kotha. He further pointed out that explanation of burning of kotha offered by Mohan Singh (PW-4) before the I.O. that kotha caught fire by sparks of gun fire is not believable. It is true that kotha was burnt on the date of occurrence, but the prosecution witnesses Deo Singh (PW-1), Sadhu Singh (PW-3), Mohan Singh (PW-4) and Chhutku (PW-5) have categorically stated that no fire was set in the kotha during the occurrence and before removal of deceased from the spot. However, Deo Singh (PW-1) stated that when he was proceeding to Korara, he observed smokes on the spot but could not know how and under what circumstances kotha was burnt. Sadhu Singh (PW-3) stated that he had not seen fire or smoke in the kotha till Bhagwat Singh was removed from the spot. While in the way to police station he observed smoke on the. spot. Mohan Singh (PW-4) also stated that he had not observed any fire or smoke in the kotha till he left the spot. He also resiled from the statement under Section 161, Cr.P.C. that kotha caught fire due to sparks of gun fire. It is true that I.O. had also not enquired into as to how kotha was burnt, but from the facts and circumstances of the case it is clear that kotha was not set at fire during the occurrence. In case kotha was set at fire while Hakim Singh was inside it and Bhagwat Singh fell down after sustaining injuries could have been caused to Hakim Singh and Bhagwat Singh deceased. Admittedly, Bhagwat had fallen down after sustaining injuries inside the kotha and it is not the case of defence that fire was extinguished before he fell down inside kotha. No sort of burn or flame injury was sustained by the deceased and Hakim Singh had not got himself medically examined. The absence of burn injury on the person of deceased itself suggests that kotha was not burnt during the occurrence and before removing Bhagwat Singh deceased from the spot.
51. The I.O. A.P. Chaturvedi had showed his ignorance whether Ramadhin moved any application about the burning of kotha. Moreover, Ramadhin and his son Jai Narain had pleaded alibi and therefore they could not be having any knowledge as to when and in what manner kotha was burnt.
52. Bhoora Singh (DW-3) had no doubt, stated that when Deo Singh and others surrounded Hakim Singh, he entered into kotha and then Deo Singh and his associates set fire in the said kotha. But as mentioned above he is interested witness and had ground to support Hakim Singh, who had his sasural in his village. Therefore, his evidence cannot be relied on.
53. It was further contended by the learned counsel for the appellants that the prosecution had come with an explanation that kotha caught fire due to sparks of the shots fired during the occurrence, as it was told by Mohan Singh (PW-4) before the I.O. Mohan Singh (PW-4) had denied to have given such statement. In view of the facts and circumstances of the case, discussed above, it does not appear that Mohan Singh would have told this fact before I.O. The I.O. Sri A.P. Chaturvedi, admitted that he did not make any enquiry as to how and under what circumstances Kotha caught fire. It appears that the I.O. was persuaded by the fact that he found kotha burnt at the time of his visit on the spot at about 5.00 p.m. on the date of occurrence and therefore instead of making enquiry he thought it proper to introduce some explanation in the statement of Mohan Singh (PW-4) under Section 161, Cr.P.C. Burning of kotha by the sparks of gun is not possible and it can be said that explanation collected by the Investigating Officer during the investigation was unscrupulous. But that does not affect the prosecution case. It was held by the Apex Court in the case of State of Karnataka v. K. Yarappa Reddy (1999) 8 JT (SC) 10 : AIR 2000 SC 185 that it can be guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the prohibity (sic) of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the Investigating Officers ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made the casualty for the wrongs committed by the Investigating Officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it albeit Investigating Officer's role in the case. Therefore, the above attempt of Investigating Officer to seek explanation about the burning of kotha is not the version of witness as Mohan Singh (PW-4) himself denied such explanation and the facts and circumstances referred to above do not indicate that kotha was burnt during the course of occurrence, and was burnt after the occurrence and removal of deceased from the spot and taking advantage of it Hakim Singh made a cock and bull story out of it.
54. The contention of Hakim Singh that when Bhagwat deceased dashed towards him with spear and as he was to pierce spear on him he fired on him (deceased) also does not appear correct. If Deo Singh (PW-1) was having rifle and Mohan Singh (PW-4) was having gun and Bhagwat deceased was aware of the fact that Hakim Singh, appellant was having gun with him, then in these circumstances Bhagwat Singh deceased, who was having spear would have not chosen to proceed towards Hakim Singh and instead of it he would have asked his real brother Deo Singh to fire by his rifle on Hakim Singh. This further shows that theory of advancing of Bhagwat Singh with spear towards Hakim Singh becomes improbable in the light of manner set up by Hakim Singh.
55. Moreover, if Hakim Singh opened door and caused injury on Bhagwat Singh which hit on his chest Deo Singh (PW-1) the real brother of deceased who was having rifle, Mohan Singh, who was having gun and Mahendra Singh who was having farasa would have not spared Hakim Singh and must have caused some injuries on him. But on the own showing of Hakim Singh he had not sustained even a scratch on his person.
56. Specific evidence of ocular witnesses was that Bhagwat Singh deceased sustained injuries inside kotha and he fell down inside kotha. Hakim Singh appellant has also admitted that on sustaining injuries Bhagwat Singh fell down inside the kotha near his legs. The falling down of Bhagwat Singh on sustaining injury inside the kotha again supports the prosecution version that he was shot at when he was inside kotha as in case shot was fired on him by Hakim Singh in self defence in the manner alleged by him, the deceased would have fallen down outside the kotha.
57. Hakim Singh appellant had not lodged any report of the occurrence at the police station. According to him on the date of occurrence he reported to his Commanding Officer and narrated the story, but no attempt was made to initiate a cross case. This further shows that Hakim Singh appellant had no courage to initiate a cross case.
58. The prosecution has also relied on the report and evidence of Ballistic Expert Sri S.P. Mishra, (PW-8) who stated that fired cartridge (Ext.-16) was fired from gun (Ext.-17) and the Investigating Officer Sri A.P. Chaturvedi (PW-9) stated that he recovered cartridge (Ext-16) from the spot. But the learned Sessions Judge has discarded the above evidence of Ballistic Expert on the ground that according to Deo Singh (PW-1) empty cartridge was deposited at the police station, along with the gun snatched from Shyam Singh, while I.O. stated that he recovered empty cartridge from the spot and the recovery from the spot was against the evidence of Deo Singh (PW-1). The evidence of Ballistic Expert related to appellant Shyam Singh who had died and appeal preferred by him has abated. Therefore we need not enter into above controversy and it is sufficient to observe that the above inconsistency in the evidence of Deo Singh (PW-1) and Sri A.P. Chaturvedi (PW-9) Investigating Officer regarding recovery of empty cartridge does not affect the prosecution story.
59. Appellant Jai Narain has pleaded alibi and according to his contention he was not present on the spot. He further contended that he had gone to house of his father's sister at village Milsa, P.O. Padari Lalpur, district Kanpur on 26-11-1974. He came to know about the occurrence at the said place and then surrendered before the Court 12-12-1974. The injured prosecution witnesses have categorically stated about the presence of Jai Narain on the spot armed with country made pistol. They also denied the suggestion of the appellant that Jai Narain was not present on the spot. Except the above suggestion and the statement of Jai Narain under Section 313, Cr.P.C. there is no other evidence to prove the plea of alibi. Plea of alibi is to be proved by person claiming it. As mentioned above there is no reliable evidence on record to prove the above plea of alibi. Therefore, his above plea cannot be accepted.
60. From the above discussion and observations we are of the view that the testimony of the ocular witnesses Deo Singh (PW-1), Sadhu Singh (PW-3), Mohan Singh (PW-4), who are injured witnesses and whose presence on the spot is admitted and that of Chhutku (PW-5) is reliable. The evidence of above ocular witnesses shows that they stood by the prosecution version and had denied the defence version. Therefore, from the evidence on record, the version set up by the prosecution has been proved beyond all shadow of reasonable doubts and the manner of occurrence suggested by Hakim Singh appellant is not proved. It is also clear from the evidence on record that Hakim Singh had fired on the deceased and other injured witnesses in the manner alleged by the prosecution and he had no right of private defence. The plea of right of private defence set up and suggested by Hakim Singh is, therefore, not reliable. We are, therefore, of the irresistible conclusion that the prosecution has successfully proved the guilt of Hakim Singh for the offences punishable under Sections 302, 307/34 and 323/34 and that of Jai Narain for the offences punishable under Sections 302/34, 307/34 and 324/34, I.P.C. The Trial Court, therefore, rightly convicted the above appellants under said sections and sentence of life imprisonment under Sections 302 and 302/34, I.P.C. 7 years R.I. under Sections 307/34, I.P.C. and 1-1/2 years R.I. under Sections 324/34, I.P.C. are adequate sentences. Thus, we find no force in the appeal preferred by Hakim Singh and Jai Narain.
61. We accordingly dismiss the appeal preferred by Hakim Singh and Jai Narain and confirm their convictions and sentences awarded by the Trial Court. The appeal preferred by Shyam Singh stood abated on account of his death during pendency of appeal. Both the appellants Hakim Singh and Jai Narain are on bail granted by this Court. Their bail bonds are cancelled and sureties are discharged. The Chief Judicial Magistrate, Hamirpur is directed to take immediate and prompt steps to take the appellants Hakim Singh and Jai Narain in custody for undergoing the sentences imposed upon them. He shall submit compliance report within a month.
62. Office is directed to send the copy of this order to C.J.M. Harnirpur within a week for compliance and report.