Allahabad High Court
Raghuraj Singh And Ors. vs State Of U.P. on 7 May, 1999
Equivalent citations: 1999CRILJ3759
Author: S.K. Phaujdar
Bench: S.K. Phaujdar
JUDGMENT
1. The three appellants stood a trial in S. T. No. 79 of 1979 and were convicted by an order of the Vth Additional Sessions Judge, Hamirpur, dated 12-12-1980. All were sentenced to life imprisonment for their conviction under Sections 302/34, I.P.C., as also for R. I, for one year for their conviction under Sections 403/34, I.P.C. the sentences were directed to run concurrently. The appeal was admitted on 15-12-80 and the appellants were directed to be released on.bail and they were so released. The case against them was initiated on an F.I.R. lodged at 9 p.m. on 25-12-78 at police station Sumerpur, in the district of Hamirpur, by one Smt. Sukh Rani wife of Binda Singh. She had named all the three present appellants in the F.I.R. and had stated that at about noon on that date the informant and others had gone to the place where bricks were being prepared. They had gone to keep a watch on the work. At about 5 p.m. Babuiya son of the informant along with Mustaq Tongawala and Mukhkhu came there and Babuiya also started watching the bricks. By then the appellants came there with arms. Raghura had a single barrel gun with him, Pratap had a lathi with him, Deoraj Singh had a single barrel gun and with them another man Ram Kripal Singh was also there with a spear. These persons surrounded Babuiya and Pratap shouted "mardo dushman ko bachne na paye" (kill the enemy he must not be spared). Ram Kripal felled Babuiya on the ground. Deoraj shot him near his neck from a touching distance. Raghuraj shot two fires and thereafter Deoraj, after reloading his gun, gave another shot on Babuiya. The victim died at the spot. The complainant and others shouted. Ram Kripal took away a watch from the hands of the deadbody of Babuiya and some cash from his pocket. Raghuraj and Deoraj kept on firing and declared they could finally take the revenge. They fled towards the east. It was alleged that about 14 years prior to this incident the husband of the complainant and her son were murdered for which Raghuraj and Ram Kripal were sentenced to life imprisonment and for that grudge only the present murder was committed.
2. The F.I.R. was scribed by one Ram Singh and case crime No. 212 was initiated. An investigation was taken up, necessary seizure and arrest were made. Inquest was done and the deadbody was sent for post-mortem examination. This examination was done on 27-12-78, at about 11.15 a.m. and the doctor estimated the time of death to be within two days from his examination. It was the deadbody of a 35 years old male of average built. Rigor mortis had passed off from the upper limbs but was present in the lower extremity. There were four gun shot wounds of entry. One was on the right side of larynx, the second half a centimetre above the first, the third on the chest lateral to the left nipple and the fourth on the right buttock. The doctor noted blackening charring, scorching and tattooing on the different injuries. On internal examination the small bone was found 6 fractured into pieces. 14 shots were found in the brain along with two wads pieces. The 5th and 6th ribs on the left side were found fractured. The heart was severally lacerated. The lungs were found perforated and lacerated. The stomach contains 4 oz of pasty food. Small intestine also contained pasty food matter. Death was due to shock and haemorrhage as a result of firearms injuries. The shots (sic) recovered from the brain along with wads were sent back to the police station in a sealed cover.
3. After submission of the charge-sheet, only the present three appellants stood the trial. The judgment of the trial Court indicated that Ram Kripal Singh died before the framing of the charges. The trial Court had framed charges against all the present three appellants for offences under Sections 202 read with 34, I.P.C. for having murdered Babuiya in furtherance of their common intention. They were further charged for having committed criminal misappropriation of a wrist watch and cash by taking the same from the deadbody of Babuiya and this was also stated to have been committed in furtherance of their common intention. They pleaded not guilty.
4. The prosecution examined seven witnesses. P.W. 1 was Smt. Sukh Rani the complainant. P.Ws. 2 and 3 were Meera Devi and Geeta, the ladies who had accompanied Sukh Rani to the brick field. These three ladies are the alleged eyewitnesses. Ram Singh P.W. 4 was the scribe of the F.I.R. P.W. 5 Jodha Singh had received the F.I.R. and entered the chik report and initiated the case. P.W. 6 Dr. K. C. Singh had conducted the post-mortem examination on the deadbody. P.W. 7 Ravindra Kishore Pandey was the Investigating Officer. The prosecution brought on record the seizure memos, the post-mortem report as also an affidavit of one constable on a formal point. The defence proved certain statements of the witnesses made before police. After examination of the accused persons under Section 313, Cr. P. C. they declined to examine any defence witnesses.
5. At the outset we may deal with the charge under Sections 403/34, I.P.C. To be precise the charge should have been under Section 404, I.P.C. instead of 403, I.P.C. as the F.I.R. spoke of misappropriation of properties from the person of a deceased after his death. The F.I.R. story suggests a motive for the killing of Babuiya as Raghuraj and Ram Kripal had been convicted earlier in a case under Section 302, I.P.C. for the murder of father of Babuiya. The motive does not suggest that they had any intention of looting or of misappropriation of property. According to the F.I.R. after the firing incident and after the death of Babuiya at the spot, it was only Ram Kripal who had taken away the watch and cash. That was specifically the statement of P.W. 1 again in the Court and nothing has been stated about the present appellants of having taken part in such taking away. P.Ws. 2 and 3 also give a similar version. The alleged motive was not for committing theft or misappropriation. There is nothing on record to indicate that in the action of Ram Kripal the present appellants had also joined or that they had shared the intention with which Ram Kripal had taken away the watch and case. If Ram Kripal has done anything beyond any intention of the others, he alone would be liable for that extra act done by him and it cannot be stated that these three persons had shared any common intention of criminal misappropriation. Without any further discussion of the evidence in details, it must be stated that the conviction under Sections 403/34, I.P.C. for the present three appellants was bad in law. The conviction of the appellants for the offences under Sections 403/34 and the sentences thereupon are hereby set aside and the appellants are acquitted so far this charge is concerned.
6. The arguments were really advanced in respect of the charge under Sections 302/34, I.P.C. and it was contended by the learned counsel on behalf of the appellants that the motive alleged in the F.I.R. was a stale one as the alleged prosecution Of Raghuraj and Ram Kripal for the murder of Binda and Jageshwar was a 14 year old affair. It was further contended that after their conviction Raghuraj and Ram Kripal had preferred an appeal before the High Court and the appeal was allowed as far back as in 1971. It was stated that had there been any real motive to avenge that prosecution there would not have been any delay for seven years more, from 1971 to 1978. It was contended that there was no immediate motive alleged against the appellants.
7. It was also contended that there had been an unusual delay in lodging the F.I.R. after four hours of the incident when the police station was only three miles off. It was contended that really Babuiya was killed by some unknown persons after sunset and the F.I.R. was ante-timed only to make it a daylight murder and only to have the presence of witnesses.
8. In a third attack to the prosecution story it was stated that the witnesses were absolutely chance witnesses as they were not expected to be there at the brick field at the noon when the incident might have taken place. If the labourers were engaged and it was on a contract basis there was no necessity of keeping watch on the progress of work as the liabilities of labourers would end and that for of complainant would begin only after the delivery of the bricks to her.
9. The learned counsel for the appellants also contended that although two persons Mushtaq and Mukhkhu were named in the F.I.R. as having been present at the spot, these persons were not examined and only the interested witnesses had been examined and the conviction could not be sustained on their testimony alone. It was contended that the Harijan basti of the village was nearby but none had come to the spot and the learned counsel proposed to conclude that this was an indication that it was not a daytime murder but was a night occurrence when anybody would be scared to come out of his house. Questions are also raised concerning the distance from which firing was done and the learned counsel proposed to analyse the medical evidence on the question of presence of blackening, tattooing and charring etc.
10. We may take up the evidence now to see if the objections, raised by the learned counsel could be sustained. Motive certainly plays a big role in the commission of any crime but it has not such an importance in a case where eye-witnesses are there as it has in a case based on circumstantial evidence. Moreover, undisputed facts suggest that father of Babuiya was killed and for that killing the present appellant Raghuraj had been on a trial. This murder had allegedly taken place 14 years prior to 1978 which dates back to 1964. There had been a conviction and sentence and the matter attained finality in 1971 when Raghuraj stood acquitted by an order of the High Court. That goes to show that Raghuraj had to suffer a trial and an order of conviction for seven years. This was certainly a background to engender a feeling of revenge in Raghuraj and to his associates. The mere passage of time may not be a ground to say that the motive had waned away. However, we are not concerned with motive as the present case stands based on alleged account of eye-witnesses and motive, therefore, may not play a dominant role. Concerning the delay in lodging the F.I.R. we find that the incident took place at about 5 p.m. and the report was made at about 9 p.m. It is true that the police station was only three miles away but it must be remembered that a male member in the family of the complainant was shot dead by old enemies who had arms with them and if the female inmates made a delay, only of four hours, it may not be taken as a vital one to throw away the prosecution case, if otherwise possible to be believed. P.W. 1, Sukh Rani, stated in her statement that after the incident she had come to her house and got a report written by Ram Singh. Only thereafter she had gone to Chauki Surauli and made it over to the Dewanji. She reached Chauki Surauli within one and half hours. Her cross-examination indicates that she went to the spot again with Ram Singh and got the report written by him. She stated that she put her L.T.I, in presence of the Dewanji when he had come. The learned counsel proposed to say that this was her L.T.I, in the F.I.R. that proved that the F.I.R. was drawn up after the arrival of the S.I. The statement of Ram Singh (P.W. 4) may be seen. He had stated that the report was written on the asking of Darogaji in the house of Babuiya Singh at about 7 a.m. He stated that it was read over to Sukh Rani. She had put her thumb mark on it. The witness was declared hostile by the prosecution and in cross-examination by the State he had stated that he had not put the date 26-12-78 in his writing. Rather he gives the date as 25-12-78 it was suggested to him that the accused persons were influential people of the locality. The statement of P.W. 5 is most important in this respect. He was constable Jodha Singh of Surauli Chauki. According to him, the F.I.R. was lodged before him on 25-12-78 at Surauli Chauki at 9 p.m. and upon that report he had drawn the chik report which was Ext. Ka-2 and the case was started. He proved the original diary entry which was also marked as Ext. Ka-3 and the only cross examination that was made to him was that the F.I.R. was drawn up after deliberation and he denied that suggestion. Absence of cross-examination on the material points of this witness P.W. 5 instead of being in favour of, goes against the defence story that the F.I.R. was really lodged on the next date. The very fact that Ram Singh had put the date on it as 25-12-78 although he wrote it on 26-12-78 goes to suggest that Ram Singh had been under the influence, while making statement at the Court, of defence as, admittedly, the appellants are influential people of the locality. In view of unchallenged testimony of P.W. 5 on the point of lodging of the F.I.R. on 25-12-78, we may not accept the version of Ram Singh that the report was scribed on 26-12-78. It is true that the informant had stated that L.T.I, was taken but it has not been indicated on which paper it was so taken. Again on the basis of the statement of Jodha Singh, we accepted that the F.I.R., as it stands, was lodged on 25-12-78 and it could be for another paper on which the Daroga might have taken her L.T.I, the object of delay and of antedating the F.I.R. are, therefore, not sustainable.
11. Concerning the absence of independent witnesses it was argued that Mushtaq and Mukhkhu were not present at the spot and had not come at the spot as Mushtaq was only a tangawala and had no business to visit the spot at that hour. Neither Mushtaq nor Mukhkhu had been examined and even if this criticism of the defence is accepted that they were not natural witnesses to be present there, their non-examination does not go to the benefit of defence in any manner. For the absence of the labourers it was stated that even their names were not stated. Evidence is there that Babuiya had gone there to make payment to the labourers. It is quite probable because any deal with outsiders is normally done by the male folk in the family. If the ladies in the family did not know the name of the labourers, it may not suggest that no labourers were there at all. Moreover, when the shots were fired, the labourers, who were outsiders, ran away which was suggestive of a natural reaction from any outsider at the time of such a fearful incident. The Harijan basti was no doubt nearby but there is no evidence that anybody has come and when they had not come it would be a matter of conjecture only to say why they did not come. The absence of Mushtaq and Mukhkhu or the labourers or anybody from the Harijan basti may not, therefore, affect the prosecution story if at all the eye-witnesses are believed.
12. These eye-witnesses are P.Ws. 1, 2 and 3. It was argued that they had no business to come to the spot at relevant hour as no watching or guarding the bricks was necessary and that too at the instance of the ladies. It is in evidence that bricks were being made in the brick field near an orchard. The sketch map that was prepared by the I.O. after visiting the spot indicates the places where bricks had been prepared and were under preparation. That bricks were being made at the relevant time is, therefore, not to be disputed or doubted. The ladies had gone to the brick fields in the afternoon. Labourers were working there. It is true that preparation was being made on contract basis and it is also true that unless the bricks are delivered to the persons who ordered them, they owe the responsibility to keep any watch on them. But this is also true that whenever something is being done, may be construction or some preparation for the benefit of anybody, they have some interest to look to the progress of the work and although it was on a contract basis, it cannot be stated that the female folk would have no interest to look to the progress of the work as the materials were finally to come to them. Seen in this light we may not say that it was a tall story that Sukh Rani, Geeta and Meera Devi had gone to the spot. They were there immediately after mid-day but the incident took place when Babuiya came there. The three witnesses have given detailed description how the attack was made, who saw first, what happened next and how all the fires were shot at.
13. A question was raised that Deoraj Singh first fired near and then Raghuraj Singh fired from a distance. It was stated that Deoraj fired near the throat of Babuiya by touching him by the barrel and then the next two shots came from Raghuraj from a distance of 2 to 3 steps while the fourth shot was given again by Deoraj which hit on his abdomen. The learned counsel referred to the deposition of the doctor as also the postmortem report to say that there was no gun shot injury at the abdomen. He proposed to argue that the witnesses have stated so only upon a finding in the post-mortem report that the last shot was abdominal cavity deep although really it was on the right hip. Even if the fourth injury be taken to be a misdescription there are injuries on the head caused by Deoraj and injuries on the chest caused by Raghuraj for which the eye-witness account and the medical evidence corroborate each other. It was proposed to be argued that these two injuries had spread, which suggest that these were fired from some distance. This theory, however, is negatived by presence of blackening, charring and tattooing mark. The blackening was present in an area of 14 cm x 10 cm but the entry was 2 x 2.06 cm only.
14. Evidence, in our opinion, is convincing on the point of participation of Raghuraj and Deoraj Singh in the act of murder of Babuiya by opening fire on him.
15. So far Pratap Singh is concerned the F.I.R. spoke that he had exhorted the others to kill the enemy. Although he had a lathi in his hand, Pratap is not alleged to have used the lathi in any manner barring the aforesaid exhortation. P.W. 1 spoke of exhortation by Pratap to the extent "Pakar sale ko (catch the guy). P.W. 2, however, supported the prosecution version on the words used in exhortation and that was statement of P.W. 3 as well. In view of the fact that the maker of the F.I.R. has changed her version in so far the words of exhortation used by Pratap is concerned, and, in view of the fact that he did not participate in any manner by use of his weapon, we feel that a doubt remains regarding his actual participation even by exhortation. Under these circumstances we feel that Pratap, may be given the benefit of doubt so far the charge under Sections 302/34, I.P.C. is concerned.
16. For all the reasons, stated above, the appeal stands partly allowed as follows :-
(1) The conviction and sentence of all the appellants for offences under Sections 403/34, I.P.C. are set aside and they are acquitted for that charge.
(2) The conviction and sentence of appellant Pratap Singh is set aside and he is acquitted.
(3) The conviction and sentence of Raghuraj and Deoraj for the offences under Sections 302/ 34, I.P.C. are confirmed.
They are to surrender before the C.J.M., Hamirpur, immediately for undergoing the sentence imposed on them. The C.J.M., Hamirpur, shall issue all necessary process to get them arrested and commit them to imprisonment to undergo the same according to law.