Allahabad High Court
Udal Singh Son Of Ganpat Singh, Jaipal ... vs State Of U.P. on 27 April, 2006
Author: M.C. Jain
Bench: M.C. Jain
JUDGMENT M.C. Jain, J.
1. Phool Singh, Udal Singh (both brothers), Jaipal Singh son of Phool Singh abovenamed and Manvir Singh son of Dera Singh were tried before the I Additional Sessions Judge, Rampur in Sessions Trial No. 193 of 1980. All of them came to be convicted under Sections 148, 440 and 302 read with Section 149 I.P.C. by the impugned judgment dated 31.10.1981. Sentence of life imprisonment was awarded for murder with certain other sentences for remaining offences.
2. Udal Singh and Manvir Singh happened to file another Criminal Appeal No. 2685 of 1981 whereas accused Phool Singh filed Criminal Appeal No. 3162 of 1981. All these three accused died during the pendency of appeals. As such, separate Criminal Appeal No. 2685 of 1981 filed by Udal Singh and Manvir Singh and Criminal Appeal No. 3162 of 1981 separately filed by Phool Singh came to be abated vide order dated 31.3.2005. Now the appeal survives only on behalf of the accused Jaipal Singh.
3. The victim of the present felony was one Arjun Singh who was done to death on 12.3.1980 at about 8 A.M. in village Milak Nibbi Singh, P.S. Patwai, District Rampur. The F.I.R. was lodged the same day at 10.15 A.M. by Surjan Singh PW 1 (eyewitness-brother of the deceased).
4. The prosecution case as unfolded by the F.I.R. and the evidence adduced in court was like this: Smt. Ram Shri, daughter of Phool Singh accused was married to Basanta Singh of village Jakhera, District Meerut about 15 years ago. Her husband died about 5-6 years ago. About six months or a year before the occurrence, she developed illicit relations with Suresh of village Jakhera. Suresh was the son-in-law of Subedar Singh, resident of village Navan Nagla, Police Station Moonda Pandey, District Moradabad. About three or four days before the occurrence, Arjun Singh and Subedar Singh brought Smt. Ram Shri from village Jakhera to the house of one of them-Subedar Singh. When Phool Singh and his brothers came to know of it, they became very angry. A day before the incident, a Panchayat was held in this regard at the house of Anwar Hussain PW 5, resident of village Paipatpura, Police Station Munda Pandey, District Rampur. In the said Panchayat, Arjun Singh deceased denied that he had brought Smt. Ram Shri from village Jakhera. However, Phool Singh and those who had accompanied him insisted that Arjun Singh had brought Smt. Ram Shri from village Jakhera to the house of Subedar Singh. When the two sides started quarrelling, Anwar Hussain asked them to go away.
5. On 12.3.1980 at about 6.30 A.M. , Arjun Singh accompanied by his brother Surjan Singh PW 1 and Kedar Singh PW 6 went to village Milak Nibbi Singh to borrow oil engine from Vijai Pal Singh, which was needed for the irrigation of his field. They reached the house of Vijai Pal Singh at about 7.45 A.M. Vijai Pal Singh was not there at his house. They, therefore, sat outside the house of Vijai Pal Singh on the cots lying under Bargad tree. A few minutes after. Tej Pal Singh PW 3 who was returning to his village after finishing his duty at Raza Textile Mills, also came there. While all of them were gossiping, at about 8 A.M., all the four accused named above appeared from south-west side along with one Tej Pal Singh deceased. Phool Singh and Tejpal Singh were armed with Tabals; Udal Singh and Jaipal Singh were armed with countrymade pistols and Manvir Singh was armed with a Ballam. They accosted them hurling abuses. All the four of them who were sitting under the Bargad tree ran to save their lives. Arjun Singh ran inside the house of Vijai Pal Singh and the other three came to the Chabutara of Chaupal of Vijai Pal Singh. The accused and Tejpal Singh deceased ran after Arjun Singh and went inside the house of Vijai Pal Singh. Seeing that, Surjan Singh, Tej Pal Singh PW 3 and Kedar Singh also went behind them. When, in order to save his life, Arjun Singh was going upstairs to reach the roof, he was fired at by Udal Singh and Jaipal Singh. On being so hit, Arjun Singh fell down on the stairs. The other two accused and Tejpal Singh dragged him down the stairs and assaulted him with their respective weapons. As a result of gunshot injuries and other injuries received by him at the hands of the accused, he (Arjun Singh) died at the spot. Apart from Surjan Singh, Tej Pal Singh PW 3 and Kedar Singh PW 6, the incident was witnessed by Gambhir Singh PW 4 also-Sarhu of Vijai Pal Singh who resided with him in the same house, and also by the other members of the family. During the occurrence they raised alarm, but were manhandled by the accused to keep quiet. After committing the murder of Arjun Singh, the accused ran away towards village Surjanpur. After the occurrence, Surjan Singh went to Police Station Patwai where he lodged the F.I.R. by oral narration. The investigation of the case was taken up by the then S.O. Patwai, namely, Roop Singh Verma PW 9. The report was lodged in his absence as he had gone to Rampur. Papers relating to this crime were sent to him and he left for the place of occurrence, reaching there the same day at 12.15 P.M. He prepared the inquest report of the dead body of the deceased and other necessary papers. He busied himself with the activities related to investigation. The sealed dead body with relevant documents was sent for post mortem through Constable Harpal Singh PW 8.
6. Post mortem over the dead body of the deceased was conducted by Dr. N.C.Agarwal PW 2 at 4.45 P.M. on 12.3.1980. The deceased was aged about 45 years. About 8 hours had passed since he died. 18 incised wounds had been inflicted on the person of the deceased besides two abrasions. He had also received two gunshot injuries mentioned at Serial Nos. 15 and 17 of the post mortem report. They were as follows:
15. Lacerated wound, 3 cm. X 1 cm. X chest cavity deep on the outer aspect of right side chest, 12 cms below axilla.
17. Lacerated wound 7 cms. X 4 cmx x abdominal cavity deep on the outer aspect of left side abdomen, 3 cms below left sub-costal margin.
7. One big pellet was recovered from the right lung which was punctured. Peritoneum was also punctured under injury No. 17. 16 small pellets were recovered from beneath.
8. It is not necessary to relate the incised wounds since the surviving appellant Jaipal Singh was allegedly armed with countrymade pistol with which he had opened shot on the deceased. Death had occurred due to shock and haemorrhage.
9. The present accused appellant Jai Pal Singh was allegedly arrested on 15.3.1980. He and, for that matter, all the accused pleaded not guilty.
10. Accused Tej Pal died before the trial.
11. The prosecution in all examined nine witnesses out of whom Surjan Singh PW 1, Tej Pal Singh PW 3, Gambhir Singh PW 4 and Kedar Singh PW 6 were eyewitnesses. Anwar Hussain PW 5 was examined with regard to the Panchayat held previous day at his house. One Vishwa Bandhu, Time Keeper, in Raza Textmile Mill was also examined as DW-1 from the side of the defence.
12. The trial Judge believed the prosecution evidence and passed the impugned order.
13. We have heard Sri Samit Gopal who was appointed amicus curiae for the accused. Miss N.A. Moonis AGA has been heard in opposition. The learned amicus curiae criticized the testimony of eyewitnesses that they could not be believed to hold the accused appellant Jai Pal Singh to be guilty.
14. We have waded through the evidence to consider the worth of the submission of the learned amicus curiae. In this case, it was undisputed that Arjun Singh-brother of Surjan Singh PW 1 was murdered on 12.3.1980 inside the house of Vijai Pal Singh in village Milak Nibbi Singh. The accused appellant Jai Pal Singh was, as per the prosecution case, armed with countrymade pistol with which he fired on the deceased. There was another pistol being held by accused appellant Udal Singh, but he having died, the Court is not now concerned with him. As per the post mortem report, the deceased had received two gunshot injuries, detailed at Serial Nos. 15 and 17 of the ante mortem injuries (quoted earlier). The eyewitnesses Surjan Singh PW 1, Tej Pal Singh PW 3, Gambhir Singh PW 4 and Kedar Singh PW 6 fully supported the prosecution case including firing on him by the present accused appellant Jai Pal Singh. Surjan Singh PW 1 happened to be the brother of the deceased whereas Kedar Singh PW 6 belonged to the same village to which the deceased belonged and was employed in spinning section of Raza Textile Mills. Gambhir Singh PW 4 was Sarhu of Vijai Pal Singh and both of them were living in the house of their mother-in-law in village Milak Nibbi Singh where the incident occurred.
15. Surjan Singh PW 1 as also Anwar Hussain PW 5 vividly described the background too that Ram Shri daughter of Phool Singh (one of the accused) was married to Basanta Singh of village Jakhera, District Meerut about 15 years back. Her husband died 5-6 years back. Nearly six months or a year before the incident she developed illicit relations with Suresh of village Jakhera. Suresh was the son-in-law of Subedar Singh, resident of village Navan Nagla, Police Station Moonda Pandey, District Moradabad. About three or four days before the occurrence, Arjun Singh and Subedar Singh had brought Smt. Ram Shri from village Jakhera to the house of one of them-Subedar Singh. When Phool Singh and his brothers came to know of it, they became very angry. A day before the incident, a Panchayat was held in this regard at the house of Anwar Hussain PW 5, resident of village Paipatpura, Police Station Munda Pandey, District Moradabad. Anwar Hussain PW 5 testified that on 11.3.1980 at about 4 P.M. a Panchayat was held at his house. Phool Singh, Tejpal Singh, Udal Singh, Jai Pal Singh and two other persons had come to his house requesting him to call Arjun Singh (deceased) who had abducted the daughter of Phool Singh. He had then called Arjun Singh to his house. When Arjun Singh came, discussion took place between the two sides. Arjun Singh denied to have abducted the daughter of Phool Singh, but all the time, Phool Singh had been insisting that Arjun Singh had abducted his daughter. This led to an altercation between the two sides. Then, apprehending trouble, he asked all of them to go away from his house. While leaving his house, Phool Singh accused had threatened Arjun Singh that he would see him. Thus, there was some such matter related to Ram Shri in connection with which a Panchayat had been held the previous day. It was stated in the statement under Section 313 Code of Criminal Procedure by Jaipal Singh accused also that Arjun Singh had brought Ram Shri to his house 15 days before the incident. Jaipal Singh accused appellant is the son of Phool Singh. It is gathered that he, his father Phool Singh and others on his side were of the firm opinion that Arjun Singh deceased had abducted Ramshri from village Jakhera and in that connection a Panchayat was held. To come to the point, the accused appellant Jaipal Singh had a strong motive to participate in this crime to liquidate Arjun Singh.
16. The eyewitnesses Surjan Singh PW 1, Tej Pal Singh PW 3, Gambhir Singh PW 4 and Kedar Singh PW 6 fully corroborated the prosecution story including the shooting part of Jaipal Singh accused appellant. They were subjected to rambling and searching cross-examination but nothing came out to dislodge their testimony which was well in conformity with the medical evidence in so far as the present accused appellant Jaipal Singh was concerned. It would be recalled that he had opened fire on the deceased who, as we pointed out above, received two gunshot injuries, one on the chest and the other on the abdomen. At the time of the incident on the eventful day, Surjan Singh PW 1 had acompanied his brother Arjun Singh to village Milak Nibbi Singh so as to borrow the engine set for irrigation from Vijai Pal Singh. As Vijai Pal Singh was not present at his house, he and Arjun Singh sat outside his house at a distance of 10-12 paces under a Bargad tree on cots where Tejpal Singh also came and sat. They were conversing amongst themselves when at about 8 A.M. all the accused suddenly appeared there, variously armed (accused appellant Jaipal Singh was having a countrymade pistol) and cried hoarse for killing Arjun Singh who rushed inside the house of Vijai Pal Singh. They including Jai Pal Singh, chased Arjun Singh inside the house of Vijai Pal Singh. The part played by the present accused appellant Jai Pal Singh was that when Arjun Singh was settling steps on staircase, he opened shot on him (the other shot was opened by Udal Singh). He rolled down the stairs and then the other accused assaulted him with Tabals and Ballam (sharp edged weapons) causing incised wounds, abrasion etc. to him. They (witnesses) had also followed the accused inside the house of Vijai Pal Singh and they witnessed the incident.
17. Tej Pal Singh PW 3 well explained his presence at the spot that he was employed in Raza Textile Mills and his duty hours were from 10.30 P.M. to 6.30 A.M. On 12.3.1980 after finishing his duty at 6.30 A.M., he came out of the Mills, took his tea and left for his village via Punjab Nagar, Vijaiya and Milak Nibbi Singh. He reached in front of the house of Vijai Pal Singh at about 8 A.M. Seeing Arjun Singh, Surjan Singh and Kedar Singh sitting on the cots under the Bargad tree in front of the house of Vijai Pal Singh, he sat with them and then witnessed the incident as narrated by him.
18. Kedar Singh PW 6 belonged to the same village to which Arjun Singh and Surjan Singh belonged. He had accompanied Arjun Singh and Surjan Singh right from the beginning to reach the house of Vijai Pal Singh in village Milak Nibbi Singh. Gambhir Singh PW 4 was the Sarhu of Vijai Pal Singh. He was living in the same house with him and was present there when the incident occurred. The testimony of all these four witnesses was corroborative of each other with no ripple whatsoever and clinchingly establishing that they witnessed this incident. Jaipal Singh accused appellant participated by opening fire on the deceased inside the house of Vijai Pal Singh. Their testimony was in conformity with the medical evidence too as we related a little earlier. We do not find anything to dislodge their testimonial assertions, they having withstood the test of cross-examination firmly.
19. The trial judge has well dealt with this aspect of the matter that it was suggested to Surjan Singh PW 1 in his cross-examination that Arjun Singh was a bad character and he had entered the house of Vijay Pal Singh with some ulterior intention at about the time when it was dark. The suggestion could not stand the test of scrutiny. Arjun Singh was. related to the mother of Vijai Pal Singh as it came out from the cross-examination of Gambhir Singh PW 4 that mother of Vijai Pal Singh was the daughter of mother's sister of Arjun Singh, deceased. This being so, there could hardly be any question of his stealthily entering the house of Vijai Pal Singh with some bad intention and of his having been shot there by unknown persons.
20. In view of the above discussion, we reject the argument of learned amicus curiae for the accused appellant Jaipal Singh that the evidence of the eyewitnesses could not be believed against him. Rather, his participation in the crime by opening fire on the deceased (who did sustain two fire arm injuries) was proved to the hilt without any shadow of doubt. The culprits were definitely five including the present accused appellant who had formed unlawful assembly in prosecution of common object of which the victim Arjun Singh was murdered inside the house of Vijai Pal Singh as proved by the confidence inspiring evidence of the prosecution.
21. We accordingly dismiss this appeal. Jaipal Singh accused appellant has rightly been convicted by the trial court. He is on bail. Chief Judicial Magistrate, Rampur shall cause him to be arrested and lodged in jail immediately to serve out the sentences as imposed by trial court.
22. The appeal has abated in respect of other accused appellants Udal Singh and Manvir Singh.
23. Sri Samit Gopal, Advocate who argued the appeal as amicus curiae for the accused appellant Jaipal Singh shall get Rs. 1000/-(Rupees one thousand only) as his fee.
24. Compliance be reported within two months. Record of the lower court be returned back.