Allahabad High Court
Balbir Singh And Ors. vs State Of U.P. on 20 July, 1994
Equivalent citations: 1994CRILJ3400
JUDGMENT Palok Basu, J.
1. This criminal appeal has been filed by Balbir Singh and Rampal, appellants against the judgment and order dated 28-3-1978 passed by TV Addl. Sessions Judge, Aligarh in Sessions Trial No. 415 of 1976 where by appellant No. 1 Balbir stands convicted under Section 302, I.P.C. and appellant No. 2 Rampal stands convicted under Section 302/34, IPC and the sentence awarded to both of them is imprisonment for life.
2. The charge against the appellant Balbir was that on 5-8-1976 at about 5 p.m. on the Patri of Bamba Baroda in village Ganeshpur, police station Khair, Aligarh he. committed the murder of Jagmal by intentionally causing his death by firing from his licensed gun and thereby committed the offence punishable under Section 302, IPC. Likewise, the charge against Rampal was that he having accompanied co-accuased appellant Balbir in furtherance of their common intention caused the death of Jagmal Singh and he thereby committed an offence punishable under Section 302/34, IPC.
3. According to the prosecution case Jagmal deceased was the father of informant Udai Singh Raghav P.W. 1. The accused and those two were residents of village Sahajpura police station, Khair, Aligarh. In 1960 Jagmal Singh fought election for the office of Pradhan against Gajraj Singh, father of appellant No. 1, Balbir Singh and was declared elected. In 1969 Balbir Singh got Jagmal Singh suspended from the office of Pradhan. In 1972 proceedings under Section 107/117, Cr.P.C. ensured but ended in compromise. In 1976 yet another proceedings under Section 107/16, Cr.P.C. commenced. In the party of Balbir Singh appellant there were 12 persons including P.W. 4, Lallu Ram Sharma. Similarly, in the party of Atte Khan there were 15 persons which included deceased Jagmal Singh, Bahadur Khan, P.W. 2 and Bhoop Singh. Therefore, enmity persisted between the two sides. On 5-8-1976 both the parties had come to the court of S.D.M. Khair in those proceedings under Section 107/116, Cr.P.C. By about 3.30 p.m. a date was given and the case stood adjourned. On the talk of compromise some altercation took place which resulted in exchange of abuses. However, the matter having subsided then, P.W. 1 Udai Singh Raghav, his father Jagmal Singh deceased, Lallu Ram Sharma, P.W. 4, Bhoop Singh Shyam Lal, P.W. 3, Bahadur Khan, P.W. 2 and Ahmad Sayeed, P.W. 5 proceeded on their bicycles to village Sahajpura. When they had reached Rajbaha Baroda Bamba Ki Patri near village Resari at about 5 p.m., P.W. 1 Udai Singh and Lallu Ram Sharma P.W. 4 were ahead of the deceased by about 10 yards while Bahadur Khan and Ahmad Saeed were about 40-50 yards behind him and Shyam Lal, P.W. 3 and Bhoop Singh were about 80 yards behind. Just at that moment a motor-cycle being driven by appellant Rampal having Balbir Singh seated on it passed by the side of the deceased. They stopped the motor-cycle and got down. Appellant Balbir Singh incited 'Aja sale Bachkar nahin jayega'. Balbir Singh was having his double barrel gun. On being challenged by accused Balbir Singh the decease Jagmal Singh ran towards the back side. Appellant Rampal then exhorted to Balbir 'Mar sale main goli'. The appellant Balbir Singh immediately obliged and pushed the trigger of his double barrel gun and a bullet hit back portion of the deceased which left him staggering up to five paces when he fell down on the patri of Bamba. At this stage Rampal Singh rushed to the deceased, caught hold of him and asked appellant Balbir Singh to fire on his head and immediately Balbir Singh placed the barrel of his gun near the right ear of Jagmal Singh and fired the second shot which struck and came out of the other side of the head killing Jagmal Singh instantaneously. The gun was re-loaded by Balbir Singh to threaten all the witnesses that if anyone were to interfere they will be massacred and after this both the appellants fled away towards village Sahajpura on their motor-cycle.
4. Udai Singh, P.W. 1 then wrote out a report (proved as Ext. Ka. 1) and rushed to the police-station Khair along with P.W. 4, Lallu Ram Sharma and lodged it there at 7 p.m. P.W. 10 Onkar Singh constable - Moharrir prepared a chick report (Ext. Ka. 10) and registered the case in the general diary (Ext. Ka.ll). P.W. I5 T.D. Tyagi, Station Officer, was present at the police-station who immediately interrogated the informant and proceeded to the place of occurrence along with Sub-Inspetor P.W. 13, G.P. Pandey and a few constables.
5. Having reached the place of occurrence at about 9 p.m. he found the dead body of Jagmal Singh and prepared an inquest report. He also prepared a challan lash Ext. Ka. 15, Khaka lash Ext. Ka. 16 and wrote out a letter for post-mortem examination Ext. Ka;17. After having sealed the dead body he handed over the same to P.W. 9, Harbir Singh, constable along with another constable Ram Murti Singh who took it to the mortuary for post-mortem examination.
6. Simultaneously, the Investigating Officer had asked P.W. 13, G.P. Pandey to immediately rush to the house of the appellant and search him. The prosecution case is that on reaching the house of the appellant Balbir Singh, P.W. 13 G.P. Pandey, Sub-Inspector did not find him. However, his licensed double barrel gun No. 93879 (material Ext, 1) was recovered, the barrel of which was emitting gun powder smell and it was then taken into possession. It may be mentioned here that at the time of taking search constable Ram Autar and Ganga Singh and public witnesses Akbar Ali and P.W. 7 Amar Singh were taken along by P.W. 13, G.P.
7. The investigation at the spot, however, continued and the Investigating Officer found two empty cartridges (material Ext. 5 and Ext, 6) from near the dead body of the deceased Jagmal Singh. Both were sealed in a piece of cloth and memorandum was prepared which has been duly proved as Ext. Ka.3. Likewise, blood-stained and plain earth were also recovered and scaled in two different packets regarding which memorandum Ext. Ka.4 was duly prepared. From that site the Investigating Officer took out four pellets, material Exts. 8 to 11, and sealed those in a match-box under a cloth regarding which memorandum was prepared and proved as Ext. Ka.5. A sum of Rs. 5.75 p. was recovered from the pocket of Kurta which the deceased was wearing and gave the same in the Superurdgi of Mahipal Singh, the memo regarding which has been prepared and proved as Ext. Ka.6. The bicycle of Jagmal Singh was also recovered and handed over to the Supurdgi of Mahipal Singh regarding which a memorandum was prepared and proved as Ext. Ka.7. A site plan was drawn which is on the record as Ext. Ka.19. Having done all this P.W. 15 T.D. Tyagi, Station Officer interrogated Badri Prasad, P.W. 6, Amar Singh P.W. 7, G.P. Pandey, P.W. 5. Akbar Ali, Lallu Ram Sharma, P.W, 4, Bhoop Singh, Shyam Lal P.W. 3, and Ahmad Sayeed, P.W. 5 on 6-8-1976.
8. P.W. 15, T. D. Tyagi, Investigation Officer returned to the police station with the article recovered on 6-8-1976 at 9 p.m. vide Ext. Ka.2.
9. Dr. G.S. Tyagi, P.W. 12 conducted the post-mortem examination on the dead body of Jagmal Singh on 6-8-1976, at 4.00 p.m. and prepared the post-mortem examination report Ext. Ka. 14. He found that the age of the deceased was about 52 years and about one day had passed since death. The body was well built. Rigor mortis had passed off from upper limbs and was present in lower limbs. Abdomen had distended. He found the following ante-mortem injuries on the dead body of Jagmal Singh:-
1. Six gun shot wounds of entrance in an area of 3" x 2" and each was 3/10" x 3/10" x chest cavity deep on left side of back thorasic region near to the mid-line and at the level of scapular angle. There was scorching of the margins of the wounds, but no blackening or tattooing of skin. Margins were inverted. 5th, 6th, 7th and 8th ribs were fractured under the wounds.
2. Three gun shot wounds of exit, one on left axilla and two on left pertoral region at a distance of 4" from axillary wound, each 4/10" x 4/10" x chest cavity deep.
3. Gun shot wound of entrance 1- x 1" x brain cavity deep behind the right ear and lacerating of a portion of the right pinna. Blackish gun-powder was present in the wound on the ear and hairs were signed. The skull lobe was fractured under the wound.
4. Gun shot wound exist 3" x 1/2" x brain cavity deep on left parietal region of head 2" above left ear. Brain matter coming out of the wound and skull lobes were badly fractured.
10. On opening the dead body of Jagmal Singh, the above doctor found comminuted fracture on both sides of skull. Membranes were lacerated. Brain was badly lacerated. There were comminuted faracutres of both middle and interior fossage on both sides. Pleura was lacerated on left side. One pint of dark blood was present in left pleural cavity. The left lung was badly lacerated. Two metallic shots were recovered from left lung. In the stomach, semi-digested food-material was present.
11. In the opinion of the above doctor, the death of Jagmal Singh had been caused by coma associated with shock and haemorrhage as a result of aforementioned injuries. He also opined that the death of Jagmal Singhu could have occurred on 5-8-1976, at about 5.30 p.m. He further opined that if injury No. 1 aforesaid was caused before injury No. 3, the deceased could stagger up to four to five paces before falling down.
12. Appellant Rampal surrendered before the court on 10-8-1976 and appellant Balbir Singh surrendered on 11-8-1976 who were interrogated by the .Investigating Officer on 4-9-1976 in the district Jail Aligarh. It may be mentioned here that Bahadur Khan, P.W. 2, who could not be interrogated earlier, was examined by him on 8-9-1976. The required articles were sent by the Investigating Officer to the Ballistic Expert and Chemical Examiner. After completing the investigation P.W. 15 T.D. Tyagi filed a charge-sheet against the appellants proved as Ext. Ka.21, on 15-9-1976.
13. During the trial five eye-witnesses had been examined and they are P.W. 1 Udai Singh Raghav, P.W. 2, Bahadur Khan, P.W. 3, Shyam Lal, P.W. 4, Lallu Ram Sharma and P.W. 5, Ahmad Sayeed. It may be mentioned here that the recoveries which were made at the spot regarding which memorandum Exts. Ka.3, Ka.-4, Ka.5, Ka.6 and Ka.7 were drawn were duly witnessed by P.W. 6, Badri Prasad,. The signature of this witness existis on these documents which he has admitted when in the witness-box. The only other witnesses are P.W. 8, Ashfaq Ahmad constable who has proved sending of the articles to Sadar Malkhana and P.W. 11, Ram Autar Singh who has proved sending of the articles to Chemical Examiner and P. W. 14, Ganga Singh constable has proved sending of the articles to Ballistic Expert. Reference about all other formal witnesses is thus now complete.
14. It may be mentioned here that P.W. 16 Shri B. Rai is the Ballistic Expert whose evidence has relevance for proving the fact that two cartridges recovered from near the dead body of the deceased which are material Exts. 5 and 6 were fired from the double barrel gun recovered from the residence of appellant Balbir Singh in the night between 5/6-8-1976 P.W. 13 Sri G.P. Pandey S.I. in presence of P.W. 7 Amar Singh.
15. The appellant have denied the occurrence and attributed their false implication due to enmity. No witness has been examined in their defence but some documents have been filed which only relate to showing some proceedings between the deceased and the witnesses which is admitted position in this case. But this documentary evidence is relevant only with regard to the testimony of P.W.I, Udai Singh Raghav and P.W. 2 Bahadur Khan.
16. Being satisfied with the prosecution evidence, learned trial Judge believed the case against the appellants and has convicted and sentenced them as noted above. Aggrieved, the present appeal has been filed.
17. Sri G.S. Chaturvedi, learned counsel for the appellants assisted by Sri Mangla Prasad Rai and Sri. Devendra Dhama, Advocate have been heard at sufficient length in support of this appeal. Sri S.P. Tewari, learned A.G.A. has been heard on behalf of the State of U.P. while Sri S.P.S. Raghav, Advocate has poused the cause of the informant. The entire original record has been thoroughly scrutinised.
18. Before going into the merits of the present case it may be pointed out that appellant No. 2, Rampal has reportedly died during the pendency of this appeal. Hence reports were called from Chief Judicial Magistrate and from the materials on record it has to be held that appellant Rampal is dead and, therefore, his appeal shall have to abate. Therefore, this appeal survives only so far as appellant Bablir Singh is concerned.
19. It is interesting to point out here, before scrutinising the rival contentions of the parties, that after investigation the Investigating Officer had mentioned the names of five eye-witnesses in the calendar who happen to be the persons working in the adjacent agricultural fields in village -Resari. During the trial, an application was moved on behalf of the prosecution that those witnesses have been won over and, therefore, the prosecution prayed that they be discharged, which prayer, was accepted by the learned trial Judge. However, it was good that ultimately the trial Judge did examine four of those witnesses, namely, C.W. 1, Rajvir Singh, C.W. 2, Mahabir, C.W. 3, Ramjilal and C.W. 4, Anek Singh. The learned Judge has relied upon the testimony of these four witnesses in order to -record the finding aginst the appellants.
20. The primary criticism on behalf of the appellants was that P.W.I, Udai Singh Raghav should be held not to be present at the place and time of the incident and is a got-up witness. Reliance was placed on the testimony of this witness to the effect that he, was a teacher in Aligarh and, therefore, it was not expected that he could be present at the scene of occurrence also when the date of incident was a working day in the College. Stress was laid on the so-called admission of this witness that he had not applied for formal leaye from the Principal and reached the place of occurrence along with his father after having joined him in the court of S.D.M. This argument was strongly repelled by the learned counsel for the opposite party who emphasised that on the date of the incident examinations were going on which were over by about 10 a.m. and the witness's statement to the effect that he had obtained oral permission from the Principal and had thus left to join his father in the court of S.D.M. was absolutely trustworthy.
On examining the rival contentions and the statement of P.W. 1 Udai Singh it is to be stated here straightway that this witness had a ring of truth in whatever he has to deposet. He could have very well come out with a case that he was accompanying his father from the very begining but that was not so. Therefore, he has volunteered to make the truthful statement that he had, after going to the College taken permission from the Principal to leave the College on the ground that he had an urgent work. It is rightly emphasised that there was neither any need nor necessity todivulge the said urgent work to the Principal because that may not have convinced the Principal that the informant should be given the permission to leave the College. In any case, no positive evidence has been brought out by the defence to show that the informant could not have been present at the place of occurrence because of his presence at some other place. Since examinations were going on, there is no reason at all as to why a teacher after completion of the examination hours, could not be permitted by the Principal to leave the College and attend to his urgent personal work when he has so approached by the teacher concerned. Consequently there is absolute truth in the statement of the informant when he says that he had reached the court of S D.M. wherefrom he was accompanying hit, lather and other witnesses and had gone up to the place of occurrence when he noticed the incident.
21. The second criticism advanced on behalf of the appellants was with regard to lodging of the F.I.R., it was sought to be emphasised that a detailed report in the nature of Ext. K.a-1 could not have come into existence if the incident had really happened in the manner as is contained in the said document. This argument, to say the least, is always advanced whenever a detailed written report is lodged. It may be stated at the outset that the informant being himself a teacher was expected to carry pen and paper as he rightly deposed to consequently his drawing up the F.I.R. at the spot after having witnessed the incident and then rushing to the police-station to lodge the same does not in any way detract the value of the contents of the F.I.R. It may be interesting to mention here that in this F.I.R. the names of P.W. 2, Bahadur Khan, P.W. 3, Shyam Lal, P.W. 4 Lallu Ram Sharma and P.W. 5 Ahmad Sayeed specifically find place. This F.I.R. also details the fact that some villagers of the village-Resari were also present in the immediate neighbourhood who had witnessed the occurrence. Admittedly this informant P.W. 1, Udai Singh did not know the names of those villagers and, therefore, he could not have mentioned the names of those persons in the F.I.R. The narration of the incident as is contained in the F.I.R. is fully corroborated by the injuries sustained by the deceased. In this connection however, only one argument has to be tested. It was said that the injury on the back part of the deceased Jagmal Singh was having scorching and, therefore, it should be presumed that it was not from a very great distance. As noted above, the injury No. 1 did not have any blackening and tatooing of the skin and its exit wound has been noted at injury No. 2. The scorching of the margins of wound therefore, could be as a result of the firing from the double barrel gun particularly because the evidence furnished by P.W. 12 G. S. Tyagi fits in completely with the ocular testimony. The chasing was a continuous process by the appellant Balbir when the deceased was fleeing for his life. The tussle between the death and life must have shortened the distance because the deceased was wearing a Dhoti which was found on his body at the time of post-mortem examination which wearing apparel is certainly one which makes running very difficult. New powerful gun powder was capable of resulting in scorching in the margins of the wounds and the absence of blackening or tattooing of the skin fully corroborates the number of assault sut out in the ocular testimony of five eyewitnesses. The result, therefore, is that neither there is any infirmity in the narration of the incident as contained in the F.I.R. nor is there any improbability attached in the manner of assault.
22. The next argument advanced on behalf of the appellant was that the Inyesti gating Officer did not examine four witnesses, namely, C.W. 1, Rajvir Singh C.W. 2, Mahabir, C.W. 3, Ramjilal and C.W. 4, Anek Singh till about five weeks after the incident and, therefore the trial Judge has erred in placing reliance on the testimony of those four witnesses. This argument has to be tested on a number of reasonings. The F.I.R. did not disclose the name of these witnesses. Consequently, it was Left open only to the Investigating Officer to find out who those villagers were, reference about whom existed in the F.I.R. but whose names were not disclosed because of absence of knowledge on the part of the informant. This, therefore, threw the ball in the Court of the Investigating Officer. If he took more time in tracing out the name of those witnesses it cannot be said that the informant is to be blamed. Moreover there is a tendency these days on the part of innocent villagers to keep themselves away from such murder cases where two rival parties are involved because they fear that giving or not giving evidence in such cases may result in incurring the wrath of one or the other party. Above all, there is already an application moved on behalf of the prosecution in the trial Court that these witnesses were won over by the accused and consequently they prayed for discharge of the witnesses which request was accepted. However, a little more discussion on the actual worth of these four witnesses shall be taken a little after.
23. It was vehemently argued on behalf of the, appellants that the testimony of P.W. 1, Udai Singh and P.W. 2, Bahadur Khan should be rejected out-right because they are admittedly involved in the litigation giving rise to the proceedings under Section 107/116, Cr. P. C. It was argued that enmity being the source of dispute and both these witnesses having admitted the same, their testimony should be discarded. It is too bald an argument to be accepted. It is this enmity alone which was the result of this incident and the presence of both these persons at the spot is, therefore, plausible. As noted above P.W. 1, Udai Singh had every reason to be with his father in the Court of S.D.M., Khair and likewise P.W. 2 Bahadur Khan himself being a party in the proceedings was expected to be in the Court. Who else but these were to accompany the deceased on their return journey to the village. The only answer to this question would be that the parties to this litigation were the most natural and probable witnesses of the occurrence. At this stage the testimony of P.W. 4 Lallu Ram Sharma may be referred to who admittedly belongs to the party of the appellant Balbir Singh and stood implicated in the case before the S.D.M, Therefore, on the said date having seen the incident, accompanied the informant to the police-station and his statement under Section 161, Cr. P. C. was recorded by the Investigating Officer immediately after interrogation of the informant. Such is the statement of the Investigating Officer P.W. 15 Sri T.D. Tyagi. The Investigating Officer has proved in extenso the entire statement of P.W. 4, Lallu Ram Sharma as was recorded by him under Section 161, Cr. P. C. The need for proving this statement arose because during the trial Lallu Ram Sharma P.W. 4 had made some such statement which indicated that he has again been terrorised or won over by the defence side and was consequently declared hostile. The hostility of the witness alone cannot be a ground to discard his testimony and the fact, therefore, remains that his presence at the place of occurrence is proved beyond all doubt and his testimony, as available on record, is enough to support the testimony of P.W. 1, Udai Singh and P.W. 2, Bahadur Khan.
24. Coming to the testimony of P.W. 3, Shyam Lal and P.W. 5 Ahmad Sayeed it may be mentioned here that nothing at all has been elicited in their cross-examination to show how and why their testimony should be rejected. The statements of these two witnesses inspire confidence inasmuch as they had every reason to be present at the place of occurrence and the criticism that they were chance witnesses and, therefore, testimony should be rejected has no legs to stand. In villages one would like to travel to the bigger or larger market in purchasing articles if and when some need for making such purchases arises. Therefore, there is absolutely no improbability when these persons were at the place of occurrence after having made purchases and, therefore, witnessing the entire occurrence.
25. The last argument on behalf of the learned counsel for the appellants was that in the instant case the investigation is not fair, therefore, the prosecution case should be thrown out. In support of this argument it was said that P.W. 10, Onkar Singh having admitted that after registration of this case on 5-8-1976 no other cognizable case having been registered on that date or even on 6-8-1976, afforded, ample opportunity to the prosecution to ante-time the F.I.R. However this argument also has no legs to stand because it has come in the cross-examination of this very witness that special report of this occurrence was sent to the authority at Aligarh on 5-8-1976 at 9 p.m. through constable Sahab Singh. If this is so, it is impossible to conceive that the F.I.R. was not lodged at 7 p.m. on 5-8-1976. There was neither any occasion nor sufficient opportunity for ante-timing the preparation of the chik report and registration of the case. Mentioning of the crime number on the document prepared at the spot by the Investigating Officer, Writing a letter to the doctor for post-mortem examination and mentioning of the crime number on the inquest report are enough proof of the timely registration of the case at the police station. There is no other basis for criticising the investigation in this case which, to say the least, appears to be fair and it has apparently to be relied upon.
26. Coming now to the testimony of four witnesses it may be mentioned here that C.W. 1, Rajvir Singh was working in his field at a distance of about 150-200 paces from the place of murder. He has said that he did not recognise the assailant. But at the same time he has named Ahmad Sayeed, Bhoop Singh, Shyam Lal and Bahadur Khan and some other villagers of Sahajpura going through Damba Ki Patri. Consequently, the trial Judge is right when he observed that this witness has suppressed part of his earlier statement. For some ulterior motive this witness is not naming the two appellants and the reasons are obvious. However, the testimony of C.W. 2, Mahabir, C.W. 3, Ramji Lal and C.W. 4, Anek Singh goes to fully establish the prosecution case as deposed to by eye-witnesses P.Ws. 1 to 5. They have fully reproduced the manner of the incident and named all the witnesses including the two appellants.
27. It may be mentioned here that learned counsel for the appellants in fact did not even challenge the Ballistic Expert evidence which amply establishes that two empty cartridges recovered from the spot were fired from the gun which happened to be the licensed gun of the appellant Balbir which was recovered by P.W. 13, S.I. G.P. Pandey in the night between 5/6-8-1976 in presence of the public witness namely, P.W. 7, Amar Singh. A combined reading of the statements of P.W. 7, Amar Singh and P.W. 13, S.I. G.P. Pandey and the memorandum prepared at the spot leaves absolutely no room for doubt that the gun was recovered in the manner alleged by the prosecution. It may further be mentioned here that the assertion of P.W. 7. Amar Singh that he is related to the appellant Balbir in the sense that Balbir's wife was his nephew's wife. In other words, Balbir was related to Amar Singh witness as his nephew. There is no reason at all to discard the testimony of P.W. 7, Amar Singh which is fully corroborated by the testimony of P.W. 13, S.I. G.P. Pandey and the memorandum proved during the trial as Ext. Ka-8. The testimony of P.W. 16 B. Rai, Ballistic Expert leaves no room for doubt that the double barrel gun of the appellant Balbir was the weapon which was used in the incident because of two cartridges recovered from the spot were unchallengeably fired from the said gun. In view of the overwhelming evidence existing against the appellants the learned trial Judge was fully justified in placing reliance on the prosecution case and convicted and sentenced the appellant as noted above.
28. One further fact requires to be mentioned. When this appeal came up for hearing on the last occasion before another Division Bench the bail granted to appellant Balbir at the time of admission of the appeal, was cancelled and he was taken into custody after aforesaid cancellation order was passed. However, during the summer vacations appellant Balbir was released on a short-time bail perhaps on the ground of alleged marriage of his daughter. In the affidavit filed by one Netrapal Singh, son of Gajraj Singh it has been sworn that appellant Balbir has surrendered in the Court of Chief Judicial Magistrate on 16-7-1994. The surrender certificate issued by the C.J.M. Aligarh on 16-7-94 shows that appellant Balbir was taken into custody on 16-7-1994. This fact will be again verified by C.J.M. who will send his independent report to this Court within a fortnight. The Registrar is directed to place the report before the Bench of which one of us is a member.
29. In view of the aforesaid discussion the appeal of appellant Balbir is dismissed. He is in Jail and will serve out the sentence awarded to him.
30. The appeal of Rampal, for the reasons stated above, abates.