Allahabad High Court
Ajab Singh And Ors. vs State Of U.P. on 15 December, 2003
Equivalent citations: 2004CRILJ2680
Author: M. Chaudhary
Bench: U.S. Tripathi, M. Chaudhary
JUDGMENT M. Chaudhary, J.
1. This is an appeal filed by the accused-appellants from judgment and order dated 30th of March 1981 in Sessions Trial No. 260 of 1978 State v. Ajab Singh passed by II Additional Sessions Judge, Rampur convicting the accused-appellant Har Pal Singh under Sections 302 and 201 IPC and Section 323 read with Section 34 IPC and accused appellant Ram Pal Singh under Section 302 read with Sections 34 IPC and 201 IPC and Section 323 read with Section 34 IPC and sentencing each of them to imprisonment for life, five years* rigorous imprisonment and one year's rigorous imprisonment respectively thereunder.
2. Co-accused Ajab Singh who was also convicted under Sections 302 and 201 IPC and Section 323 read with Section 34 IPC and sentenced thereunder has been reported having died and his appeal stood abated vide order dated 24th of September 2003.
3. Brief facts giving rise to this appeal are that Ghulam Rasool and Pir Bux were servants of Mahabir Singh for the last 8-10 years; that on 30th of March, 1978 Mahabir Singh along with his servants Ghulam Rasool and Pir Bux had gone to village Saddiq Nagar to the house of his 'Saru' Har Pal Singh and reached there at about 12.00 noon. On reaching there Mahabir Singh told Har Pal Singh and his father Ajab Singh that he came there for taking 'Binds' and they should get the same supplied to him; that then Har Pal Singh went inside the house and on coming back he told that he and his father were going to the market at village Kharsaul and hence he should stay there and they would do the needful next day. After sunset Ajab Singh and Har Pal Singh returned from the market and then all of them took dinner and after going to their bed Ajab Singh asked Mahabir Singh that because of him marriage of his son could not be materialized with his sister-in-law and it was not fair on his part. Next morning Mahabir Singh asked Har Pal Singh to get his work done and then Har Pal Singh told that he wanted to purchase a mare and for that they would go to village Lalla. Tikar. Then Mahabir Singh asked his servant Pir Bux to go back home and Mahabir Singh along with Ajab Singh and Har Pal Singh went to village Lalla Tikar for seeing the mare and returned back in the afternoon. Then Mahabir Singh along with Ram Pal Singh, brother of Har Pal Singh, went in the dunlop bullock cart driven by Ghulam Rasool at the outskirts of village Jattpura. Ajab Singh and Har Pal Singh had already gone there on foot. At about 3 : 00 p.m. they reached at the outskirts of village Jattapura where Har Pal Singh and Ajab Singh met them. Then all of them started loading the "Binds" in the dunlop bullock cart, and in the meanwhile Ajab Singh left the place telling that he was going to bring some milk. At about 9:00 p.m. Ajab Singh returned back holding a gun and on reaching near the dunlop bullock cart he fired at Mahabir Singh who was sitting on the dunlop bullock cart and on receiving the gunshot injuries Mahabir Singh fell down. Immediately Har Pal Singh pulled out a country made pistol from his 'Phent' and fired at Mahabir Singh and Mahabir Singh succumbed to the fatal injuries sustained by him. Then all the three miscreants caught hold of Ghulam Rasool in order to kill him and inflicted injuries on him and then he entreated for his life and on the assurance given that fie would not disclose that incident to anyone they made him sit on the dunlop bullock cart. After midnight they laid the dead body of Mahabir Singh on the dunlop bullock cart and proceeded on the road leading to Bilari; and on reaching the kuchcha way leading to Makrand Pur they made him alight from the dunlop bullock cart and then Har Pal Singh and Ajab Singh ignited fire to the 'Binds' on which dead body of Mahabir Singh was placed. In the meanwhile Ghulam Rasool rushed towards his village Chand Pur Ganesh and disclosed the entire incident to Saudan Singh, brother of the deceased. Then Ghulam Rasool went to police station Bilari and lodged an FIR of the said incident with the police there on 2nd of April 1978 at about 9.30 a.m. (Ext ka 1). The police registered a crime against the accused accordingly and made entry regarding registration of the crime in the general diary (Exts ka 4 and ka 5).
4. S I Ram Chandra Sharma to whom investigation of the crime was entrusted went at village Dharampur Kalan and drew inquest proceedings on the dead body of Mahabir Singh, prepared the inquest report (Ext ka 7) and other necessary papers (Exts. ka 8 to ka 12) and handed over the dead body in a sealed cover along with necessary papers to constables Raja Ram and Tara Singh for being taken for its postmortem. Then he collected ashes and burnt pieces of tyre, axel, rim etc of the dunlop bullock cart and prepared their memos (Exts ka 13 to ka 15). He also inspected the place of occurrence from where the burnt dead body was found and prepared its site plan map (Ext ka 17). He also inspected the place of occurrence where Mahabir Singh was allegedly murdered and prepared its site plan map (Ext ka 18). At that very time he learnt that the site where alleged murder was committed fell within the territorial limits of police station Shahabad, District Rampur and then he got all the police papers concerning that crime sent to police station Shahabad.
5. Injured Ghulam Rasool was got medically examined by Dr. Satish Agarwal, Medical Officer, PHC, Bilari on 2nd of April 1978 at about 4.00 p.m. His medical examination revealed below noted injuries on his person:
(i) Abrasion 3 cm x 1 cm on left side back 3 cm backwards from left shoulder joint. Bluish red in colour.
(ii) Abrasions on left index and middle finger size 1.5 cm x 0.2 cm and 2 cm x 0.5 cm on anterior surface of distal pharynx of both fingers.
(iii) Contusion 5 cm x 4 cm on lateral side of left leg 9 cm below left knee joint. Bluish red in colour.
6. The doctor opined that the injuries were caused by blunt object, simple in nature and half to one day old in duration.
7-8. Autopsy on the dead body of Mahabir Singh conducted by Dr. S.P. Uppal, Medical Officer, District Hospital Rampur on 3-4-78 at 2.00 p.m. revealed the following ante mortem Injuries :
The doctor found fourth to sixth degree ante mortem burns on the dead body of the deceased. The dead body was completely burnt and scalp and face muscles with skin completely burnt. The bones were naked and sutures separated. Chest skin completely burnt and muscles partially burnt and left side chest was burnt, lung partially burnt and charred. Left side lung congested. Skin and muscles of abdomen burnt in most of the parts and viscera adherent with each other and burnt and could not be easily separated and discerned. Neck skin was completely burnt and muscles partially burnt. Heart contained clotted blood in right chamber and left side empty. Right upper limb was missing from the dead body but its pieces were available and the bones looked naked and at some places burnt muscles were attached. The left upper limb attached to the body and charred and burnt sixth degree. Both the legs attached to the body upto knee sixth degree burns, rest of the lower limbs present in pieces of burnt bones. The genital organ also burnt. In the opinion of the doctor the death was caused due to shock as a result of extensive burns about one and a half to two days ago. The doctor also opined that if the injuries were caused by firearm and then the dead body got burnt completely in that case the firearm injuries would not be ascertainable."
9. Thereafter investigation of the crime was entrusted to SI Karamvir Singh, incharge police outpost Sainfni police station Shahabad who after completing the investigation submitted charge-sheet against the accused.
10. After framing of charge against the accused the prosecution examined Gulam Rasool (PW 1), the injured and the first informant as an eye-witness of the occurrence. He deposed all the facts of the said incident from the beginning to the end as stated above. PW 2 Lila Dhar stated that at about 3.00 p.m. the alleged afternoon he was returning from his fields situate by the side of Gangan river to his house at Saddiq Nagar that on the way he saw Ajab Singh and Har Pal Singh sitting at the bank of the river and on going ahead he saw Mahabir Singh and Ram Pal Singh along with one another going on a dunlop bullock cart from Saddiq Nagar towards Jattpura. PW 3 Sajahi stated that at about 3.00 a.m. the alleged night he was going to sugar mill Bilari taking sugar canes; that since token sleep for the sugar cane was missing and he along with his servant Liaqat started searching the token slip and as they reached near Dharam Pur they saw a dunlop bullock cart loaded with 'Binds1 and accused Ajab Singh, Har Pal Singh and Ram Pal Singh along with one another sitting over the cart and as he asked Ajab Singh as to where they were going he told that they were going to Bilari, and that the next morning he learnt that that dunlop bullock cart was burnt and the dead body of Mahabir Singh lying therein also got burnt. PW 4 Netra Pal Singh stated that at about 3.45 a.m. before dawn the alleged night he along with Gaj Ram Singh was going from his house to his fields that he saw a person running away towards Bilari and two oxen tied with a shisham tree and the dunlop bullock cart was burning ablaze and saw Ajab Singh, Ram Pal Singh and Har Pal Singh near the dunlop bullock cart in the light of fire and on sighting them all the three went away towards Makrand Pur. PW 7 Nanhey Singh has been examined as witness of motive imputed for the said crime. He stated that Mahabir Singh, the deceased and Har Pal Singh son of Ajab Singh both were his sons-in-law, that Ajab Singh wanted to marry his elder son Ram Pal Singh with his third daughter Munni, that Rampal Singh though elder to Harpal Singh was unmarried, that he consulted Mahabir Singh thereabout and Mahabir Singh told that he should not marry Munni with Ram Pal Singh and thereafter that marriage proposal could not be materialised and that thereon Ajab Singh had asked him that he will see as to how long he would follow the advice of Mahabir Singh and 2-3 months thereafter he learnt that Mahabir Singh was murdered. Testimony of the remaining witnesses examined by the prosecution is more or less of formal nature. PW 5 SI. Pyrey Lal Sharma, the then HM police outpost Sephni police station Shahabad who after receiving the check report prepared on the basis of the written report handed over at the police station Bilari made entry regarding registration of the crime in GD on 3rd of April, 1978 has proved the GD entry (Ext. Ka2). PW 6 Dr. S.P. Uppal who conducted autopsy on the dead body of Mahabir Singh has proved the post mortem report (Ext. Ka3). PW 8 HM Suraj Pal has proved the check report prepared on the basis of the written report handed over at PS Bilari and GD entry regarding registration of the crime Exts. Ka 4 and Ka 5). PW 10 SI Ram Chandra Sharma who investigated the crime in main has proved the police papers. PW 9 S.I. Karam Vir Singh who after completing the investigation submitted charge-sheet against the accused has proved the paper. PW 11 Dr. Satish Agarwal who medically examined injured Ghulam Rasool has proved the injury report (Ext. Ka 19).
11. The accused pleaded not guilty denying the alleged occurrence altogether and stating that they were got implicated in the case falsely.
12. On an appraisal of the evidence on record and after hearing the parties counsel the learned Additional Sessions Judge found the accused guilty of the charge levelled against them and he convicted them accordingly sentencing each of them as stated above.
13. Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress.
14. We have heard the appellants learned counsel and learned AGA and gone through the record.
15. A perusal of the record goes to show that relying upon the testimony of PW 1 Gulam Rasool, the injured eye-witness corroborated by circumstantial evidence of PW. 3 Liladhar. PW 3 Sajahin and PW 4 Netra Pal Singh the learned Additional Sessions Judge recorded conviction of the accused and we find ourselves in agreement with the findings recorded by the Court below, PW 1 Gulam Rasool, the injured eye-witness narrated all the facts of the incident from the beginning to the end as stated above. He was subjected to gruelling and rambling cross-examination but nothing substantial could be elicited therefrom. His sworn testimony stands corroborated by the testimony of Liladhar (PW 2), Sajahin (PW 3) and Netrapal (PW 4) and the medical evidence. PW 11 Dr. Satish Aggarwal who medically examined injured Gulam Rasool categorically stated that all the injuries found on his person could not be received together by falling down. Duration of injuries given also coincides with the time when the injuries were inflicted upon Gualm Rasool. This witness was not related to the deceased as he was only his servant who was in his employment for the last 8-10 years. There is no reason why he should exculpate the real culprits and implicate the accused falsely. He had no enmity with the accused. Hence this witness appears to be truthful, honest and trustworthy. Further the testimony of PW 2 Liladhar, PW 3 Sajahin and PW 4 Netrapal lends support to the testimony of PW 1 Gulam Rasool, the injured eye-witness. All these three witnesses were subjected to searching cross-examination but nothing useful to the accused could be elicited therefrom.
16. Some discrepancies in the statements of the witnesses have been pointed out by the appellants' learned counsel; and they have been dealt with by the trial Court and discarded for cogent and convincing reasons. It is a matter of common experience that a witness though truthful is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mixes up all facts, gets confused regarding sequence of events or filling up details from imagination on the spur of the moment. Hence discrepancies which do not go to the root of the matter and shake the basic version of the witnesses should not be attached undue importance.
17. Motive imputed for the alleged crime appears to be adequate. PW 7 Nanhey Singh, father-in-law of accused Harpal Singh stated that accused Ajab Singh, father of accused Harpal Singh proposed his elder son for his third daughter Munni, that he consulted his eldest son-in-law Mahabir Singh about that proposal and Mahabir Singh told that he should not marry her with the elder son of Ajab Singh and thereafter he refused to marry his daghter Munni with the elder son of Ajab Singh and thereon Ajab Singh told him that he would see as to how long he would follow the advice of Mahabir Singh and that 2-3 months thereafter he learnt that Mahabir Singh was murdered. There is no reason to disbelieve the testimony of PW 7 Nanhey Singh deposing against his daughter's father-in-law Ajab Singh. That constitutes an adequate motive for the alleged crime. Though in the case of direct evidence motive is not of much significance but it provides a link in the probabilities of the commission of offence by the accused if the ocular evidence points that way.
18. The appellants' learned counsel has advanced the following arguments assailing the judgment of the trial Court and now we would see if any of them has got any force.
19. The appellants' learned counsel vehemently, argued that the FIR is much delayed as the dead body of Mahabir Singh was allegedly burnt at about 3 or 3.30 a.m. and FIR of the occurrence was lodged at police station Bilari at about 9.35 a.m. whereas police station Bilari is situate at a distance of 2-3 miles only from the place where the accused allegedly ignited fire to the 'Poolas' kept in the Dunlop bullock cart. He further contended that PW 1 Gulam Rasool admitted in his cross examination that after being relieved by the accused he went to his village Chandpur and police station Bilari fell on his way; and if he had witnessed the incident he should have lodged FIR at the police station then and there. The explanation offered by this witness is that since he was perturbed at that time he went away straight to his village. The explanation offered by PW 1 Gulam Rasool appears to be probable and convincing as under the stressful circumstances of the said incident he must have got terrified and afflicted and he might have thought it proper to go to his village first. And hence we find no substance in the said argument advanced by the appellants' learned counsel.
20. The appellants' learned counsel further argued that there is inconsistency between ocular and medical evidence as according to the medical evidence extensive burns found on the dead body were ante mortem whereas PW 1 Gulam Rasool stated that first Mahabir Singh was shot dead and some 3-4 hours thereafter they placed the dead body on the 'Poolas' in the bullock cart and went towards Bilari and fire was ignited to the 'Poolas' kept in the bullock cart on which the dead body was kept. He further contended that the doctor conducting postmortem did not find any gunshot injury on the dead body. In our opinion the said argument advanced by the appellants' learned counsel has got no substance because a perusal of the post mortem report goes to show that the dead body was completely burnt and the doctor found 4th to 6th degree burns thereon. Scalp and face muscles with skin were completely burnt. Only chest muscles were partially burnt. It is not known as to which part of body of Mahabir Singh the shots hit. The investigating Officer collected a handful of ashes from the place where the body of Mahabir Singh was burnt and burnt pieces of tyre, axle, rim etc. were found lying. The entire ashes were not sieved and sifted so that pellets etc. would have been available. The doctor also stated that extensive burns found on the body were ante mortem. In our opinion after receiving . gunshot injuries Mahabir Singh might have gone in coma and in that state a layman who was horror stricken would say that sustaining the firearm injuries Mahabir Singh died. The said argument therefore has got no life and is repelled.
21. After considering carefully all the arguments advanced by the appellants learned counsel In the light of evidence on the record and circumstances attending the case we do not find any merit in any of them. The learned trial Court has given cogent and convincing reasons for finding the accused guilty of the charge levelled against them and we are in complete agreement with the findings recorded by the trial Court against the accused appellants. The appeal has got no substance and is liable to be dismissed.
22. The appeal is hereby dismissed. The conviction of accused appellants Har Pal Singh under Sections 302 and 201, IPC and Section 323 read with Section 34 IPC and of accused Ram Pal Singh under Section 302 read with Section 34, IPC, Section 201 IPC and Section 323 read with Section 34, IPC and sentence of imprisonment for life, five years' rigorous imprisonment and one year's rigourous imprisonment respectively thereunder awarded to each of them are maintained. All the sentences shall run concurrently. The appellants are on bail. They shall be arrested and lodged in Jail to serve out the sentence imposed upon them.
23. The office shall send certified copy of the judgment along with the record of the lower Court to the Court concerned to ensure compliance under intimation to this Court within two months.