Allahabad High Court
Shiv Pratap Singh And Others vs State Of U.P. on 13 December, 2021
Bench: Ramesh Sinha, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 AFR Case :- CRIMINAL APPEAL No. - 387 of 1985 Appellant :- Shiv Pratap Singh & Others Respondent :- State of U.P. Counsel for Appellant :- R.K. Singh,Anurag Kumar Singh,Ghanshyam Tripathi,M L Syal,M.L. Syal,Shashi Kiran Arya,Shishir Pradhan Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Vivek Varma,J.
Ramesh Sinha, J. (Oral) INTRODUCTION (1) Six accused persons, namely, Shiv Pratap Singh, Vijay Vikram Singh, Kali Charan, Nanhey, Ram Autar and Jaskaran were tried by the IV Additional Sessions Judge, Hardoi in Sessions Trial No.314 of 1984 : State Vs. Shiv Pratap Singh and others arising out of Case Crime No.188 of 1983, under Sections 147, 148, 149, 302 I.P.C. at police station Bilgram, District Hardoi.
(2) Vide judgment and order dated 07.06.1985, the learned IV Additional Sessions Judge, Hardoi, while acquitting the accused Jaskaran from all the offences/charges levelled against him, convicted and sentenced the rest of the accused persons, namely, Shiv Pratap Singh, Vijay Vikram Singh, Ram Autar, Kalicharan and Nanhey in the manner as stated herein below:-
"i. Under Sections 302/149 I.P.C. to undergo life imprisonment; and ii. Under Section 323/149 I.P.C. to undergo six months R.I."
In addition, the IV Additional Sessions Judge, Hardoi had also convicted the accused Shiv Pratap Singh, Nanhey Lal and Ram Autar under Section 148 I.P.C. and sentenced them to undergo one year's imprisonment and other two accused persons, namely, Vijay Vikram Singh and Kali Charan were convicted under Section 147 I.P.C. and sentenced them to undergo six months' R.I. All the sentences were directed to run concurrently by the IV Additional Sessions Judge.
(3) During pendency of the instant appeal, appellant no.1-Shiv Pratap Singh, appellant no.3-Kalicharan and appellant no.5-Ram Autar died and, as such, vide order dated 13.08.2018, the instant appeal filed against the aforesaid appellants no.1, 3 and 5 stand abated.
(4) Now, the instant appeal is surviving only in respect of appellant no.2-Vijay Vikram Singh and appellant no.4-Nanhey, who are said to be in jail since 08.07.2019.
FACT (5) Shorn off, unnecessary details the facts of the case are as under :-
On 28.10.1983, informant-Lal Bahadur Singh (PW1) and his elder brother Vijay Bahadur Singh Pradhan (deceased) had gone to Cold Store, Bilgram for taking the seed of potato and after taking it, they were returning home on their respective bicycle and when they reached near the Sorghum (Jowar) farm of one Kunwar Pal of Chakarpurwa at about 4 p.m. in the evening, accused/appellant no.1-Shiv Pratap Singh armed with Kanta and his son accused/ appellant no.2-Vijay Vikram Singh armed with Lathi challenged them (informant and his brother Vijay Bahadur Singh Pradhan) and said that "घेर कर मार डालो दुश्मन आज जाने न पाए". Thereupon, appellant no.3-Kalicharan armed with lathi, appellant no.4-Nanhey armed with Banka, appellant no.5-Ram Autar armed with Kanta and other two other persons armed with lathi, to whom identified by him by their face but not by name, came out from Sorgum (Jowar) field and started assaulting the brother of the informant Vijay Bahadur Singh (deceased). Thereafter, informant-Lal Bahadur Singh (P.W.1) and his brother Vijay Bahadur Singh (deceased) raised alarm and on hearing their alarm, Raj Kumar, son of Hardayal and Vishwanath Singh son of Thakur Bux Singh, r/o Kuluwapur, who were ploughing their field nearby and one Ram Saroop Singh (P.W.2), son of Ujagar Singh, who was going towards his home from Bilgram, came at the place of occurrence and they all asked the accused persons not to assault Vijay Bahadur Singh (deceased) and also challenged them. Thereafter, appellant No.3-Kalicharan started assaulting the informant-Lal Bahadur Singh (P.W.1) with lathi, as a consequence of which, he also sustained injuries on his left hand wrist, elbow and arm and on right leg.
It has also been stated in the F.I.R. by the informant-Lal Bahadur Singh (P.W.1) that about five years ago from the date of the incident, his aunt Smt. Bittan Devi, who is the samdhin of appellant no.1-Shiv Pratap Singh and mother-in-law of appellant no. 2-Vijay Vikram Singh, was murdered, in which his brother Vijay Bahadur Singh (deceased) was named as accused but was later on acquitted by the competent Court. On account of the aforesaid, the appellants had a lot of animosity in their heart against informant-Lal Bahadur Singh (P.W.1) and his brother Vijay Bahadur Singh (deceased). Because of this enmity, all the appellants formed an opinion and assaulted the deceased Vijay Bahadur Singh with Kanta, Banka and Lathi.
In the F.I.R., it has also been stated that Vijay Bahadur Singh (deceased) fell on the spot and died and injuries of Kanta, Banka and Lathi were appearing on his body. On challenging by the informant Lal Bahadur Singh (P.W.1) and other persons, all seven accused persons ran towards the southern direction. The informant P.W.1-Lal Bahadur Singh and other witnesses, who were present there, saw the accused persons assaulting the deceased and they identified the two unknown persons by their face and they can recognize them when they came in front of him.
(6) The informant Lal Bahadur Singh (P.W.1) got the written report (Ext. Ka. 1) scribed by himself at Bilgram Chauraha. He, thereafter, put his signature on it. He, then, proceeded to Police Station Bilgram, district Hardoi and lodged it.
(7) The evidence of PW4-Ishtiyaq Mohammad shows that he was posted as Head Constable, police station Bilgram on 28.10.1983. On the date itself i.e. on 28.10.1983, Lal Bahadur Singh (P.W.1) gave a written report (Ex. Ka-1) at the police station at about 4.30 p.m., on the basis of which, he prepared Chik Report (Ex. Ka-2) and made entry to this effect in GD (Ex. Ka-3). The recovered items from the place of incident was received in a sealed condition at 1.05 p.m. on 29.10.1983 at police station, which was submitted in Malkhana and entry of it was made in GD as No.15 and the signed copy (Ex. Ka-4) of the same was submitted to the Court. The recovered material related to this case was sent to Sadar Malkhana, Hardoi in a sealed condition through Constable Ajay Singh on 08.11.1983 and the entry of the same was made in GD and copy of the same is submitted to the Court as Ex. Ka-5.
In cross-examination, P.W.4-Ishtiyaq Mohammad denied the suggestion that the report of the case was written by him after Sub-Inspector returned from the place of incident and after taking opinion of the people.
(8) The evidence of P.W.9-R.K. Tiwari shows that in the month of October, 1983, he was posted as Station Officer, Bilgram. The case of the incident was lodged in his presence. He started the investigation of the case on the date itself. He recorded the statement of informant-Lal Bahadur Singh (PW1) and sent him for medical examination. Thereafter, he went to the place of occurrence. The evidence of PW9 R.K. Tiwari further shows that after sending the informant for medical examination, he went to the place of the incident and found that the dead body of the deceased Vijay Bahadur Singh was lying in the field of Kunwar Pal. Thereafter, he prepared the Panchayatnama (Ex. Ka-7) of the dead body of deceased and also prepared the photo lash (Ext. Ka.8), challan lash (Ext. Ka.7), letters to C.M.O. (Ext. Ka. 10 and 11). Thereafter, he sealed the deadbody of the deceased and sent it for post-mortem at District Hospital, Hardoi along with Constable Ishtiaq Ali and Constable Harnath Singh.
PW9 R.K. Tiwari further deposed that before sealing the dead body of the deceased, he took in occupancy the blood stained muffler, sadri and kurta from the body of the deceased and sealed it and prepared recovery memo of the same (Ex. Ka-13). He found from the pocket of sadari of Vijay Bahadur Singh (deceased) two currency note of One denomination each, stamp by the name of Vijay Bahadur Singh (Pradhan), one fountain pen, tobacco in box and prepared recovery memo of the said articles (Ex. Ka-14). He, then, collected samples of blood stained earth, parts of blood stained sorghum (Jowar) plant, plain earth, plain sorghum (Jowar) plant from the place of occurrence and sealed them in separate containers and prepared memo Ext. Ka-15. At the place of incident, he also found a cycle and a pair of slippers and which were given to the son of deceased and memo of the same was prepared as Ex. Ka-16. On the pointing out of witnesses he prepared Site Plan (Ex. Ka-17). He next deposed that on 29.10.1983 he arrested accused Jaskaran and Nanhey, and recorded their statement. Accused Nanhey has stated that he will help in the recovery of Banka, which was used in the murder of deceased Vijay Bahadur Singh. Thereafter, he took both the accused in jeep to Kutuapur village, from where witnesses Umaar and Khetai were taken also accompanied them. Accused Nanhey in front of witnesses took out Banka from the bushes of Acacia (Babool) and grass, which was blood stained. The recovery memo (Ex. Ka-18) of the Banka was prepared by Hari Mohan Shukla on his dictation.
After preparing recovery memo (Ex. Ka-18) of the Banka, PW9 R.K. Tiwari, then, sent the recovered material and both the accused appellants, Jaskaran and Nanhey, to the police station through H.C. Hari Mohan, Constable Radhey Shyam, Constable Gurdayal and Constable Chandra Pal. He then prepared site plan of the place where recovery was made (Ex. Ka-19). He then went on for search of other accused and when they were not found he came back to the police station. Inspector S.N. Mishra also investigated the case in the meantime. He recorded the statement of complainant/ informant PW1 once again. Accused appellant Ramautar and Kalicharan were arrested by Sub-Inspector Lallu Singh and he recorded their statement. Thereafter, investigation of this case was again done by him.
On 03.11.1983 accused Vijay Vikram Singh surrendered before the Court. He sent the recovered materials for chemical examination to Agra. After completing the investigation he filed the charge sheet against the accused appellants on 12.11.1983 (Ex. Ka-20).
In his cross-examination, P.W.9 deposed that he started the investigation of the case fifteen minutes after the case was registered. He made a copy of the report in his Case Diary and also made copy of GD which took him ten minutes. It took him about five to seven minutes to record the statement of PW1 informant Lal Bahadur Singh. He reached at the place of the incident at 17:20 hour. The time of panchayatnama was written as 16:00 hour. He further stated that the dot (.) occurring after 16 hour was overwriting and on this, he put his signature. He denied the suggestion that FIR was not written till the time of writing the Panchayatnama and also that he got the written report prepared with his own advise. He further deposed that thickness between two crops of Sorghum (Jowar) was around one feet. The Sorghum (Jowar) crops in the field of Sudarshan was 8 to 10 feet tall but the Sorghum (Jowar) crops in the field of Kunwarpal was not that tall. Accused Jaskaran, Nanhey and brother of accused Shiv Pratap met in Gonda. Gun and cartridges were recovered from accused Jaskaran and that is why he too was arrested. Only Nanhey told him about the Banka. He denied the suggestion that Banka was not recovered at the pointing out of Nanhey and he prepared its fake memo. He did not detected about the tractor and trolly but he saw in the register that deceased Vijay Bahadur Singh came to cold storage and got potatoes.
(9) P.W.6 Constable Ajay Singh in his deposition before the trial Court stated that on 08.11.1983 he took the recovered material related to this case and deposited the same in Sadar Malkhana, Hardoi in a sealed and packed condition. The recovery material was deposited in the same condition as was received by him.
(10) P.W.7 Ram Pal deposed before trial Court that he was posted as Constable, polce station Bilgram, Hardoi and on 07.12.1983 he took the sealed packed recovered material for examination to CMO office and after receiving the letter from the office of CMO he took the same to Agra for further examination of the recovered material.
(11) P.W.8 Dammar in his deposition before the trial Court deposed that around one year and 2½ months ago, he and Khetai were going to Bilgram. The police met them near Dakshina Usar of his village and the police, who were in jeep, called them. Accused Nanhey and one other person was also there in the police jeep. Accused Nanhey talked to them and told them that he will hand over the Banka used in the murder of Vijay Bahadur Singh to the police. Accused Nanhey was followed by P.W.9 R.K. Tiwari, Dammar, Khetai and other policemen. After some distance accused Nanhey took out Banka from the bushes of acacia (babool) and grass, which was blood stained. The Banka was recovered near the Paddy fields of Ishwar Chand. Recovery memo of the said Banka was prepared by P.W.9 R.K. Tiwari and it was 11 o' clock at that time. After doing the paper work P.W.9 R.K. Tiwari affixed thumb impression of his and Khetai and also sealed the Banka.
In his cross-examination, PW8 Dammar deposed that apart from accused Nanhey, accused Jaskaran was also present in the police jeep and they both are known to him and all of them are resident of village Kutuapur. Banka was not buried in the soil but was covered with grass. Except the field belonging to Ishwarchand no other field is present nearby and there is only jungle. In the paddy fields of Ishwarchand many people were working, who came on spot and whose name he does not know. People working in the field of Ishwarchand did not affix their thumb impression on the memo but in front of those people, accused Nanhey took out Banka from the bushes. He further denied the suggestion that PW9 R.K. Tiwari called him in police station to affix his thumb impression on recovery memo. He did not remember whether Bittana's bail was taken in the murder case of Vijay Bahadur's case or not. PW9 R.K. Tiwari met him after 12 to 14 days of recovery of Banka. PW9 R.K. Tiwari did not investigate anything further from him and did his paper work from where the Banka was recovered and further he does not remember whether he made any copy of it or not. When he saw accused Nanhey and accused Jaskaran sitting in the jeep, he saw that they were tied with rope. He denied the suggestions that he belonged to Vijay Bahadur's party and that accused Nanhey did not take out the Banka and also that PW9 R.K. Tiwari called him in police station and he affixed his thumb impression on recovery memo thereon.
(12) P.W.11 Eqtada Hussain deposed before the trial Court on 02.02.1983 that in the month of October, 1983 he was posted as Supervisor National Cold Storage, Bilgram, District Hardoi and that he has brought delivery register of the year 1983. He stated that whenever any material is delivered its entry is being made in the register. On 28.10.1983 deceased Vijay Bahadur Singh got the delivery of 41 sacks of potato in two parts, payment of which was made two nights earlier. He had entered this delivery in two serial nos. 951 and 952 in his delivery register. Deceased Vijay Bahadur Singh had made his signature in the said entry. Copy of the said delivery register has been entered as Ex. Ka-22 and the original is with him.
In his cross-examination, PW11 deposed that timing is never mentioned in the delivery register, but from his memory he stated that potatoes were taken out from the cold storage at around 4 p.m. in the evening. After that he could not tell whether deceased Vijay Bahadur Singh left with his potatoes immediately or later.
(13) P.W.12-Surendra Nath Bajpai has stated in his deposition before the trial Court that on 23.02.1978, he was posted as Petition Clerk in the Court of District Magistrate. On the said date, an application has been submitted before the Court by a person named as Vijay Bahadur whose address has been mentioned in the application. He received the said application, in which his signature and seal of District Magistrate appeared. The duplicate copy of the said application (Ext. Ka.23) was sent for inquiry. There is no order of the District Magistrate on the duplicate copy of the said application. This peititon was with regard to peace. He further deposed that he did not know the applicant personally nor he could say that who has submitted the said application.
(14) Going backwards, the injuries of the informant PW1-Lal Bahadur Singh was examined on 28.10.1983 at 5:00 P.M. by PW5-Dr. S.N. Mishra, who, after examining him, found the following injuries (Ext. Ka. 6) on his person :-
"Injuries of informant-Lal Bahadur Singh (P.W.1) (I) An abraded contusion of 6 cms x 2 cms present on the dorsomedial aspect of the left wrist joint and above on the left fore-arm. Reddish in colour.
(II) A transmative swelling with contusion of 4 cms. x 2 cms. present on the dorsal aspect of the left elbow joint. Reddish in colour.
(III) A superficial lacerated wound of 1.5 cms. x 0.5 cm present on the anterior aspect of the Rt. leg 22 cms. above from the Rt. medial malecus. The aspect of the Rt. Leg 22 cms. above from the medial malecus. The wound is skin deep and the marigs are lacerated and irregular. Complaint of pain on the left shoulder without any mark of apparent Injury present on the part.
As per the opinion of PW5-Dr. S.N. Mishra, all the injuries are simple in nature and could be caused by blunt weapons.
(15) It is significant to mention that P.W.5-Dr. S. N. Mishra has reiterated the aforesaid cause of injuries on the person of P.W.1-Lal Bahadur Singh before the trial Court and deposed before the trial Court that on 28.10.1983, he was posted as Medical Officer, PHC, Bilgram, Hardoi. On 28.10.1983 in the evening at about 5 p.m. he examined the body of injured Lal Bahadur Singh (P.W.1) and prepared the injury report (Ext. Ka.6). He stated that all the injuries could be attributable to the injured/informant Lal Bahadur Singh (P.W.1) on 28.10.1983 at about 4:00 p.m. In cross-examination, P.W.5-Dr. S.N. Mishra has deposed that it is wrong to say that there was no injury on the body of the injured and all the injuries could not be attributable by its own. He denied the suggestion that he had prepared the injury report on the dictate of Hari Shanker Tiwari, M.L.A. (16) P.W.3 Har Nath Singh, who was posted as Constable at police station Bilgram, District Hardoi, has deposed before the trial Court that on 28.10.1983, at about 7 p.m., R.K. Tiwari (P.W.9) handed over him the dead body of deceased Vijay Bahadur Singh in a sealed condition and also relevant documents in the field of Kunwarpal for the purpose of post-mortem. He brought the dead body of deceased Vijay Bahadur Singh at Police Lines, Hardoi at 1.30 a.m. in the morning, got its entry done and after taking letter from R.I. he produced papers in front of C.M.O. and after obtaining orders from there, he took the dead body and relevant papers and produced it before the doctor. He further deposed that the body was in a sealed condition till the time it was with him and did not sustain any injury or loss.
P.W.3 Har Nath Singh further deposed that after the post mortem was conducted by the doctor, he brought the post mortem report and sealed belongings found on the dead body of the deceased to the police station and did its entry.
In his cross-examination, PW3 Har Nath Singh has deposed that he left the place of occurrence with the dead body at around 7 p.m. in the evening and the same reached at police line at around 1.30 a.m. in the night. He met PW10 Dr. P.K. Gangwar at around 8 a.m. and he asked him to get the post mortem of the body conducted. He denied the suggestion that he produced the relevant documents relating to post mortem before the doctor at around 1:00 p.m. and also denied that he took the dead body from the place of occurrence in the morning.
(17) The post-mortem of the corpse of the deceased Vijay Bahadur Singh was conducted on 29.10.1983 at about 03:15 p.m. at District Hospital, Hardoi by PW10 Dr. P.K. Gangwar, who, found the following ante mortem injuries on the dead body of the deceased Vijay Bahadur Singh:-
"Ante-mortem injuries of deceased Vijay Bahadur Singh :
1. Incised wond 14 cm x 2 cm x muscle deep on Rt. side of face semi front of Rt.Ear
2. Incised wound 3 cm x 1 cm x Trachea deep on the front of neck at Layeal proumace Trachea cut.
3. Incised wound 4 cm x 1.5 cm x muscle deep on Lt. side of neck just below and mandible cut.
4. Incised wound 7 cm x 2 cm x bone deep on the Lt. Side of face at chin, mandible cut.
5. Incised wound 10 cm x 2 cm x bone deep on the Lt. Side of face, upper jaw, lower jaw present, Lip cut.
6. Incised wound 14 cm x 3 cm x bone deep on the Lt. Side face eye brow to nose, eye damaged maxilla x zygoumatra bone cut.
7. Incised wound 8 cm x 2 cm x bone deep just front of left ear, Temporal bone cut.
8. Incised wound 5 cm x 1 cm x muscle deep on the Lt. ear. Pippa cut nuddle.
9. Incised wound 5 cm x 2 cm x bone deep on the Lt. side of head 04 cm above the Lt. eye brow frontal bone fractured.
10. Incised wound 10 cm x 0.5 cm x skin deep on the Lt. side of Lt. shoulder and tail facing downward.
11. Incised wound 10 cm x 0.5 cm c skin deep on the Lt. side of chest just on the Lt. nipple.
12. Incised wound 6 cm x 2 cm x muscle deep on 10 cm above Lt. wrist joint on it, fore- arm back.
13. Two abrasion on the back of left arm back 4 cm. above the Elbow joint size 2 x 1 cm and
14. Incised wound 3 x 1 cm x muscle on the inner side of Lt. hand palm 4 cm below wrist joint.
15. Incised wound 6 cm x .5 cm x skin on Lt. arm back just above axilla.
16. Incised wound 6 cm x .5 cm x skin deep on the Lt. side back just above axilla.
17. Contusion 15 x 2 cm on the Lt. side of ABD. 12 cm below Lt., nipple 6 O'clk.
18. Contusion 12 x 2 cm on the Lt. side of ABD 2 cm below the Inj. No.17
19. Contusion 14 cm x 2 cm on the Lt. side of ABD 20 cm below the Lt. nipple.
20. Incised wound 2 x 1 cm x bone deep on back on Rt. Index fingure fractured 4 cm above tip.
21. Incised wound 2 x 1 cm x bone deep on the back of Rt. middle fingure fractured 5 cm above tip.
22. Abrassion 1 x 1 cm on the Lt. knee joint."
As per the opinion of Dr. P.K. Gangwar (P.W.10), deceased died due to shock and haemorrhage due to ante-mortem injuries sustained by him.
(18) It is significant to mention that P.W.10-Dr. P.K. Gangwar has reiterated the cause of death of the deceased and has stated in his deposititon before the trial Court that on 29.01.1983, he was posted at District Hospital, Hardoi and on that date, at about 03:15 p.m., he conducted the post-mortem of the deceased Vijay Bahadur Singh. He further stated that Constables Harnath Singh and Ishtiyaq Ali had brought the sealed deadbody of the deceased Vijay Bahadur Singh for post-mortem. They had also identified the deadbody of deceased Vijay Bahadur Singh before him. He also deposed that on internal examination, he found that membrane of the brain of the deceased was torned; blood was oozing out from there; the brain of the deceased was also torned; four ounces of indigestive food was present in the stomach of the deceased; the deceased was died one day before; the death of the deceased could be attributable on 25.10.1983 at 4:00 p.m.; and he prepared the post-mortem report (Ext. Ka. 21) by itself.
In cross-examination, P.W.10 Dr. P.K. Gangwar has stated that documents relating to post-mortem was received by him on 29.10.1983 at about 01:00 p.m. He further deposed that injuries no. 13 and 22 could be attributable by felling on a hard object. Injuries no.17, 18 and 19 could not be attributable when a man gone through bicycle. There could be a difference of six hours of the duration of both side.
(19) The case was committed to the Court of Session by the Munsif Magistrate (West), Hardoi on 13.06.1984. The learned Sessions Court framed charges against accused/appellants Shiv Pratap Singh, Nanhey and Ram Autar under Section 148 I.P.C.; against all accused/ appellants under Sections 302/149 I.P.C.; against accused/appellants Shiv Pratap Singh, Nanhey, Ram Autar, Vijay Vikram Singh and Jai Karan under Section 323 I.P.C.; against accused/appellants Vijay Vikram Singh, Kali Charan and Jai Karan under Section 147 I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.
(20) During trial, in all, the prosecution examined 12 witnesses. Two of them, namely, the informant Lal Bahadur Singh (P.W. 1) and Ram Saroop Singh (P.W.2) were examined as eye-witnesses. Constable Harnath Singh, who handed over the sealed deadbody of the deceased for post-mortem, was examined as P.W.3; H.C. Ishtiyaq Mohammad, who had written the chik FIR on the basis of the written report, was examined as P.W.4; Dr. S.N. Misra, who medically examined the injured/informant Lal Bahadur Singh (P.W.1), was examined as P.W.5; CP Aajay Singh, who deposited the recovered articles to Malkhana, was examined as P.W.6; CP Ram Pal, who brought the recovered articles from Malkhana for chemical examination to Agra, was examined as P.W.7; Dammar, who is witness of recovery of Banka on the pointing out of accused Nanhey, was examined as P.W.8; R. K. Tiwari, who is the Investigating Officer of the case, was examined as P.W.9; Dr. P.K. Gangwar, who conducted the post-mortem of the deceased, was examined as P.W.10; Eqtada Hussain, who was the Supervisor of National Cold Storage, Bilgram, was examined as P.W.11 to prove the fact that on 28.10.1983, deceased Vijay Bahadur Singh came at Cold Storage for purchasing the potatoes; and Surendra Nath Bajpai, who was posted as Petition Clerk in the office of District Magistrate, was examined as P.W.12.
From the side of defense, Ramesh Chandra Dwivedi, who was the Deputy Inspector of School, Hardoi, was examined as DW-1.
(21) P.W.1-Lal Bahadur Singh, in his examination-in-chief, has stated before the trial Court that around 1 and 1½ months ago from today (10.12.1984), at about 3-4 p.m., he and his brother Vijay Bahadur was going from Bilgram to his village Kulluwapur and when they reached in between the field of Kuwarpal and Sudarshan, accused Shiv Pratap Singh and Vijay Vikram Singh came out from the field of Jawar of Kuwarpal. Accused Shiv Pratap was having Kanta and accused Vijay Vikram Singh was having lathi. They told them that "?ksj yks lkyksa dks ekj Mkyks tkus u ik;sA" Vijay Bahadur was in front of him (P.W.1). On this statement, Kalicharan armed with lathi, Nanhey armed with Banka, Ram Autar armed with Kanta and two other persons to whom he did not recognize armed with lathi, came out from the field of Kuwarpal and when they challenged, then, his brother Vijay Bahadur and he went towards north direction and raised alarm and Vijay Bahadur tried to run. Thereafter, in the field of Kunwarpal, 2-3 lathi blow was occurred upon Vijay Bahadur, as a consequence of which, Vijay Bahadur fell down. Thereafter, accused armed with Kanta and Banka assaulted Vijay Bahadur. He was assaulted by Kalicharan with lathi. This incident was also seen by Ram Swaroop (P.W.2), Rajkumari and Vishwanath. His brother Vijay Bahadur died on the spot. On his hue and cry, the aforesaid witnesses and several other persons were came there and thereafter, accused ran towards south direction.
P.W.1 has further deposed that his grand-father was Gajraj Singh. The brother of his father was Netrapal Singh. Smt. Bittan Devi was the wife of Netrapal. Prior to 5-6 years ago, Smt Bittan Devi was murdered and a case in this regard was lodged against his brother Vijay Bahadur, Raj Kumar, Munne and Hardayal, in which they were acquitted. The report of the case was lodged by accused Shiv Pratap. Vitana and Netrapal had no son and they had three daughters, namely, Prem Kumari, Jaidevi and Sail Kumari. He further deposed that Sail Kumari was married with accused Vijay Vikram. A case in respect of assets of Netrapal was lodged by Prem Kumari and Jaidevi against Vitana.
P.W.1 has also stated in his deposition before the trial Court that Vijay Vikram was the son of Shiv Pratap, whereas other accused were beloging to his party. Prior to this murder, a case under Section 107 Cr.P.C. was instituted between his brother Vijay Bahadur and accused Shiv Pratap and others. He further stated that he scribed the F.I.R. of the incident at Bilgram Chauraha and also lodged the report at police station Bilgram on the date of the incident itself.
In cross-examination, P.W.1 has deposed that he was stayed at about 08-10 minutes at the place of the incident. He did not go to his village Kulluwapur for giving information. He had also not sent anyone to his village for giving information. The distance between the place of occurrence and Bilgram Chauraha was about three mile. He lodged the written report of the incident at police station at about 4-4½. He had received a duplicate copy of the F.I.R. from the police station. He further stated that he was studying at Class-VIII. Since report has to be scribed, therefore, he scribed the report at Bilgram Chauraha and did not go at police station directly. He denied the suggesstion that Ext. Ka.1 was not written by him nor his signature was there.
P.W.1 has also stated that the Inspector has recorded his statement and he was sent for medical. He was stayed at police station about 6-7 minutes. He reached in the hospital from police station about 5-6 minutes. After reaching the hospital, 2-4 mintues took place to meet the doctor. After reaching the hospital, he ate medicine, took injuection and after 2-4 minutes, doctor told him to go home and the doctor handed over the documents to the constable. After returning from hospital, he went to the place of occurrence, where his brother died. He reached at the place of occurrence at about 06:00-05:45 p.m. When he reached at the place of occurrence, the deadbody was lying in the field; Inspector was there and was preparing the documents relating to the incident; and after five minutes when he reached there, the Inspector sealed the deadbody of his brother.
(22) P.W.2 Ram Swaroop Singh, in his examintion-in-chief, has stated that he known to all the accused persons. He also known to Vijay Bahadur Singh. Prior to 1 year and 1½ months from today (11.12.1984), Vijay Bahadur was murdered. He was going from Bilgram to his house through bicycle and in front of him, Vijay Bahadur Singh and Lal Bahadur Singh was going through bicycles. When Vijay Bahadur and Lal Bahadur reached between the field of Kuwarpal and Sudharshan, he reached near the tree of Pakariaya. He listened the voice of Vijay Bahadur and his brother. At that time, it was 03:45 p.m. He immediately reached there and saw that Shiv Pratap Singh, Vijay, Kalicharan, Nanhey, Ram Autar and other two unknown persons were assaulting Vijay Bahadur with Kanta, Lathi and Banka in the field of Kunwarpal. Out of these persons, Shiv Pratap, Ram Autar were having Kanta and Vijay Vikram, Kalicharan and two other unknown persons were having lathis and Nanhey was having Banka. Apart from him, Raj Kumar and Vishwa Nath Singh were also came there and they also saw the incident. When they challenged, Kalicharan had assaulted 2-3 lathi blows upon Lal Bahadur. Thereafter, accused ran towards the south direction of the field of Kunwarpal. Vijay Bahadur Singh died on the spot. The bicycle and slipper of Vijay Bahadur Singh were there.
In cross-examination, P.W.2 has stated that when the family members of the deceased came there, then, he went with his bicycle to home. At that time, son of Vijay Bahadur and several other villager came there on listening hue and cry. He further stated that there was no need to stay there as he brought articles from market and the same had to go home. When the family members were reached there, then, there was no need to stay there for him. He was coming from Bilgram. The distance from Bilgram to place of incident was about 1½ kosh and the distance from the place of incident to his village was about one mile. He further staed that he was not having any weapon at that time.
P.W. 2 has further stated that the uncle of Vijay Bahadur, namely, Netrapal was murdered. In this case, he was sentenced to undergo life imprisonment. Visjwa Nath was the witness of this case and his father Thakur was awarded capital punishment.
(23) The defense has produced Ramesh Chandra Bajpai, who was the Deputy Inspector of School, Hardoi, as D.W.1. He, in his examination-in-chief, has deposed before the trial Court on 27.03.1985 that the attendance register of teachers of Suratipur Junior High School was in front of him, in which, the presence of Shiv Pratap Singh on 28.10.1983 has been mentioned in the register. The timing of the school was 10:00 am to 04:00 pm. He further stated that on 28.10.1983, he inspected the school. He reached in the school at about 02:30 p.m. and was present there till 04:00 p.m. (24) The learned trial Judge believed the evidence of Lal Bahadur Singh (P.W.1) and Ram Saroop Singh (P.W.2) and found the appellants Shiv Pratap Singh, Vijay Vikram Singh, Ram Autar, Kalicharan and Nanhey guilty for the offences punishable under Sections 302/149 and 323/149 I.P.C., whereas appellants Shiv Pratap Singh, Nanhey and Ram Autar for the offences under Section 148 I.P.C. and appellants Vijay Vikram Singh and Kalicharan for the offence under Section 147 I.P.C. and, accordingly, convicted and sentenced the appellants in the manner stated in paragraph 2. The trial Court, however, acquitted the appellant Jaskaran from all the offences.
(25) It is pertinent to mention that the State of U.P. has not filed any appeal against the acquittal of accused Jaskaran by preferring an appeal under Section 378 (1) of the Code of Criminal Procedure.
(26) As mentioned earlier, aggrieved by their convictions and sentences appellants preferred the instant appeal and during the pendency of this appeal, appellant nos. 1, 3 and 5 died and their instant appeal stand abated. The present appeal is surviving on behalf of the appellant no.2 and 4, thus this Court proceeds to hear the appeal of behalf of the said two appellants, namely, appellant no.2-Vijay Vikram Singh and appellant no.4-Nanhey.
APPELLANTS' ARGUMENTS (27) On behalf of appellant no.2-Vijay Vikram Singh, Shri M.L. Sayal, learned Counsel has argued as under :-
A) There were six accused persons, namely, Shiv Pratap Singh, Vijay Vikram Singh, Kali Charan, Nanhey, Ram Autar, Jaskaran armed with Kanta, Lathi, Lathi, Banka, Kanta respectively, and one unknown person. Out of the said accused persons, four accused, namely, Vijay Vikram Singh, Kali Charan, Jaskaran and one unknown person were armed with lathi. The deceased Vijay Bahadur Singh sustained three contusions i.e. injury nos.17, 18, 19, which could be a result of injury from lathi and perusal of the said injuries shows that they were on the left side of abdomen and no internal damage was caused. Moreover, out of the four accused who were armed with lathi the appellant Vijay Vikram Singh along with Kali Charan have been convicted, whereas Jaskaran, who was armed with lathi, and one of the unknown person whose whereabouts could not be traced out, were acquitted by the trial court. He further argued that out of the four accused persons, who were armed with lathi, the surviving appellant Vijay Vikram Singh, whether he caused injuries to the deceased or not, is doubtful. He submitted that even if the injuries were caused by the appellant Vijay Vikram Singh to the deceased, then the injury nos.17, 18, 19, which are contusions, were not fatal for his death, hence, the appellant Vijay Vikram Singh is entitled for a lesser punishment and the conviction and sentence awarded by the trial Court is too severe.
B) No independent witness in whose field the incident had taken place, has been produced by the prosecution and the evidence of PW2 Ram Swaroop Singh, who is a chance witness, is unworthy to be believed as he was inimical to the appellants as he was related to one Bittan Devi, who was mother-in-law of accused Vijay Vikram Singh and he had an interest in the property of Smt. Bittan Devi, hence, he falsely deposed against the appellant Vijay Vikram Singh.
C) It was further submitted that the injured witness Lal Bahadur Singh who happens to be real brother of the deceased, his presence at the place of occurrence is also doubtful and further he happens to be a highly interested partisan witness as his brother Vijay Bahadur Singh was an accused in the murder case of Bittan Devi and that Vijay Bahadur Singh was acquitted by the trial Court from the said murder case of Bittan Devi. He also argued that the trial Court have failed to record the finding that the appellant-Vijay Vikram Singh along with other co-accused had formed an unlawful assembly for committing the murder of the deceased Vijay Bahadur Singh. He lastly submitted that the circumstances of the prosecution case has not been rightly put to the appellant-Vijay Vikram Singh in his statement under Section 313 Cr.P.C. which has prejudice his right to lead an effective evidence. Thus he submitted that the conviction and the sentence of the appellant-Vijay Vikram Singh by the trial court is liable to be set aside by this Court and the appellant-Vijay Vikram Singh be acquitted.
(28) On behalf of appellant no.4-Nanhey, Shri Shishir Pradhan, learned Counsel has argued as under :-
A) Appellant No.4 Nanhey had no motive to commit the murder of deceased Vijay Bahadur Singh as the motive to commit the crime was with the co-accused appellant no.2 -Vijay Vikram Singh and his father appellant no.1-Shiv Pratap Singh as the deceased Vijay Bahadur Singh was acquitted from the murder charge of Bittan Devi. He next argued that the appellant-Nanhey was armed with banka, whereas co-accused Shiv Pratap singh and Ram Autar were armed with kanta and the injuries which have been sustained by the deceased of sharp edged weapon is of Kanta. He submitted that the dimension of the injuries which have been sustained by the deceased as is evident from the Post Mortem report as it shows that it is not of Banka which is a heavy cutting weapon as it appears to be that of kanta.
B) Besides the aforesaid argument, he has adopted the argument of learned counsel for the appellant no.2 Vijay Vikram Singh.
RESPONDENT/STATE (29) On behalf of respondent/State, Shri Arunendra, learned AGA has vehemently opposed the arguments of learned counsel for the appellants no. 2 and 4 and submitted that the incident has taken place at 4 p.m. in the evening and the FIR of the incident was lodged on the same day promptly at 4.30 p.m. at police station Bilgram, District Hardoi which was at a distance of three miles away from the place of occurrence by Lal Bahadur Singh who is the brother of the deceased and also an injured witness. He argued that deceased Vijay Bahadur Singh was acquitted from the murder charge of Bittan Devi due to which appellant no.2 Vijay Vikram Singh, who was her son-in-law, was annoyed hence he along with his father Shiv Pratap Singh and three other accused persons namely, Kali Charan, Nanhey and Ram Autar, formed an unlawful assembly along with one unknown person and with a common object in the said unlawful assembly committed the murder of the deceased on 28.10.1983 at 4 p.m. in the evening and the brother of the deceased, namely, PW1 Lal Bahadur Singh, who was accompanying the deceased when tried to save his brother was also assaulted by the appellants and other co-accused persons, who were armed with lathi and blunt object like banka and kanta. The deceased sustained as many as 22 ante-mortem injuries on his person out of which 13 were incised wound whereas three contusion and one abrasion. The deceased received ante-mortem injuries by the aforesaid weapons and the cause of death as per the post mortem report was shock and hemorrhage due to ante-mortem injuries. He argued that the PW1 who is an informant as well as injured witness has categorically narrated the prosecution case which has taken place in his presence and the ocular testimony of the said injured witness fully corroborates with the post-mortem report of the deceased as well as the injury report of PW1. So far as PW2 is concerned, he is also an eye witness of the occurrence and from his evidence too it is apparent that the ocular testimony corroborates the prosecution case as it is established by the medical evidence. The trial Court after going through the prosecution evidence has rightly convicted and sentenced the appellants hence the present appeal is liable to be dismissed by this Court.
ANALYSIS (30) We have heard the learned counsel for the respective parties at length and have carefully gone through the judgment and order of conviction and sentenced passed by the learned trial Court. We have also re-appreciated the entire evidence on record, more particularly the depositions of PW1 and PW2 and have also considered the injuries found on the dead body of the deceased as well as injuries found on the body of the injured/informant Lal Bahadur Singh (P.W.1).
(31) As per the prosecution case, on 28.10.1983, P.W.1-Lal Bahadur Singh and his brother deceased Vijay Bahadur Singh were returning from Cold Storage, Bilgram to home through their respective bicycles after purchasing seed of potatoes. The deceased Vijay Bahadur Singh was riding bicycle in front of P.W.1- Lal Bahadur Singh and when they reached in the midst of fields of Kuwarpal and Sudarshan at 4:00 p.m., accused/appellant no.1-Shiv Pratap Singh armed with Kanta and his son accused/appellant no.2-Vijay Vikram Singh armed with lathi came inside the field of jawar of Kunwar Pal Singh and told that "?ksj yks lkyksa dks ekj Mkyksa tkus u ik;sA" and on this, accused Kalicharan armed with lathi, accused Nanhey armed with Banka, accused Ram Autar armed with Kanta and other two unknown persons armed with lathis, also came out from the field of Kunwarpal. Thereafter, accused persons challenged the deceased Vijay Bahadur, to which deceased Vijay Bahadur came out from bicycle; raised alarm and also tried to ran from there. Thereafter, 2-3 lathies were blown upon the deceased Vijay Bahadur, as a consequence of which, the deceased Vijay Bahadur fell down and thereupon, accused persons Shiv Pratap Singh and Ram Autar armed with kanta and accused Nanhey armed with banka assaulted the deceased Vijay Bahadur. At that relevant time, P.W.2-Ram Saroop Singh, who was also coming from Bilgram to his home and just behind the informant Lal Bahadur Singh and the deceased Vijay Bahadur Singh, seen the incident. Accused Kalicharn armed with lathi had also assauled the informant Lal Bahadur Singh (P.W.1). Thereafter, on hue and cry, several persons came there and on seeing this, accused persons ran from there towards southern direction. The deceased Vijay Bahadur Singh was found dead on the spot.
(32) The incident was occurred on 28.10.1983 at 4:00 p.m. The F.I.R. of the incident was lodged by the informant P.W.1-Lal Bahadur Singh on the date of the incident i.e. on 28.10.1983 at 4:30 p.m. at police station Bilgram, district Hardoi, which is three miles from the place of the incident. Immediately after lodging the FIR, injured/informant P.W.1 Lal Bahadur Singh was sent for medical examination at Sadar Hospital, Hardoi, which is situated nearby the police station Bilgram, where his medical examination was conducted at 5:00 p.m. In these circumstances, it can safely be said that prior to lodging the F.I.R., there is no chance for the informant to consult anyone. The F.I.R. of the incident was promptly lodged.
(33) The P.W.1-Lal Bahadur Singh and P.W.2-Ram Saroop Singh are the eye-witnesses of the incident. They have categorcially stated before the trial Court that at the time of incident, accused Shiv Pratap Singh and Ram Autar were armed with kanta, whereas accused Vijay Vikram Singh and Kalicharan were armed with lathi and accused Nanhey was armed with Banka.
(34) The post-mortem report of the deceased Vijay Bahadur Singh shows that the deceased sustained twenty-two ante-mortem injuries and as per the opinion of P.W.10-Dr.P.K. Gangwar, who conducted the post-mortem of the deceased, the deceased died due to shock and haemorrhage as a result of ante-mortem injuries sustained by him. The post-mortem report also shows that out of twenty-two ante-mortem injuries, the deceased sustained seventeen incised wound; three contusions; and two abrasions. P.W.10-Dr. P.K. Gangwar in the statement before the trial Court has deposed that deceased could have died on 28.10.1983 at 04:00 p.m. (35) P.W.2-Dr. S.N. Mishra, who conducted the medical examination of the injured/informant P.W.1 Lal Bahadur Singh, has categorcially stated that he medically examined the injured/informant P.W.1 Lal Bahadur Singh at 05:00 p.m. in Bilgram and after exmination, he found three injuries on the person of injured Lal Bahadur Singh. As per his opinion, all the injuries are simple in nature and caused by blunt weapon like lathi.
(36) A bare persual of the impugned judgment and order passed by the learned trial Court shows that while convicting the accused, the court has heavily relied upon the depositions of PW1 and PW2. PW1 and PW2 are stated to be the eye-witnesses to the incident. Having gone through the entire depositions of PW1 & PW2 and even the cross-examination of the aforesaid two witnesses, we are of the firm opinion that both, PW1 & PW2 are trustworthy and reliable witnesses. Their presence at the time of incident with the deceased has been established and proved by the prosecution.
(37) The presence of PW1 and even PW2 at the time of incident is natural. PW1 is the brother of the deceased who accompanied the deceased at the time of the incident and both were returning from Bilgram through their respective bicycles. Similarly, PW2 also was going towards his home from Bilgram through bicycle and he was behind the P.W.1 and the deceased and thereafter he saw the incident. Both the witnesses have been fully and thoroughly cross-examined.
(38) There may be some minor contradictions, however, as held by the Apex Court in catena of decisions, minor contradictions which do not go to the root of the matter and/or such contradictions are not material contradictions, the evidence of such witnesses cannot be brushed aside and/or disbelieved.
(39) In the present case, both the aforesaid witnesses are thoroughly cross-examined on each and every aspect pointed out by the defence. From the entire evidence on record, it is established and proved that the deceased and PW1 went to the Cold Store Bilgram and thereafter while returning from Cold Store Bilgram, the incident had taken place. The place of incident has been established and proved by the prosecution.
(40) P.W.1-Lal Bahadur Singh is an injured eye witness. It is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh : (2012) 4 SCC 79, the Apex Court held as under :-
"31. We may merely refer to Abdul Sayeed V. State of M.P. - (2010) 10 SCC 259 where this Court held as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]
29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab-(2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:
''28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka-1994 Supp (3) SCC 235 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
29. In State of U.P. v. Kishan Chand-(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana-(2006) 12 SCC 459. Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
(41) Considering the entire deposition as a whole, we are of the opinion that the prosecution has been successful in proving the presence of PW1 & PW2 at the time and place of incident. They are found to be trustworthy and reliable. The injury report as well as post-mortem report has fully supported the prosecution case.
(42) The prosecution has successfully proved the motive. There was a prior long-time enmity between the deceased and the accused. P.W.2-Ram Saroop Singh has stated before the trial Court that the uncle of the deceased Vijay Bahadur, namely, Netrapal was murdered and in this case, he was awarded life imprisonment. P.W.2 has admitted the fact that the father of Vishwa Nath, namely, Thakur, was awarded capital punishment. He further deposed the Netrapal had no son and he had three daughters, out of which, his one daughter was married with Vijay Vikram. The wife of Netrapal was Smt. Bittan Devi, who was also murdered. Thus, it is established that there is enmity between the accused and prosecution for grabbing the property of the Netrapal. The defence has failed to prove any circumstances by which it can be said that they are falsely implicated in the case.
(43) In view of the above and for the reasons stated hereinabove, no interference of this Court is called for in the instant appeal as the learned trial Court has rightly convicted the appellants by the impugned judgment.
(44) The instant appeal fails and deserves to be dismissed and is, accordingly, dismissed. The appellants, who are in jail, shall serve the sentence as awarded by the trial Court.
(45) Let a certified copy of this order as well as lower Court record be transmitted to the Court concerned for necessary information and compliance forthwith.
(Vivek Varma, J.) (Ramesh Sinha, J.) Order Date :- 13.12.2021 Arnima