Allahabad High Court
Ravindra Singh And Others vs State Of U.P. on 28 February, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement Reserved on 30.01.2019 Judgement Delivered on 28.02.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 1056 of 1983 Appellant :- Ravindra Singh And Others Respondent :- State Of U.P. Counsel for Appellant :- V.S.Singh,Ajay Kumar Srivastava,Diwaker Shukla,Hardev Singh Sengar,Kamlesh Kumar Tripathi,Rajive Ratn Singh,Mahesh Chand Joshi Counsel for Respondent :- A.G.A.,A.K. Sdachan,Diwakar Shukla,Prashant Kumar Singh,Rajiv Lochan Shukla,Sudhakar Shukla,V.P. Srivastava Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri Dileep Kumar, Sri Mahesh Chand Joshi, Kamlesh Kumar Tripathi, Hardev Singh Sengar, learned counsel for the appellants, Sri Rajiv Lochan Shukla, learned counsel for the complainant, Sri Gaurav Pratap Singh, learned Brief Holder appearing for the State and perused the record.
2. This criminal appeal has been preferred by the appellants Ravindra Singh, Jai Deo Singh, Naresh Singh, Shailendra Singh, Narendra Singh, Rajjan Lal against the judgment and order dated 30.04.1983 passed by 3rd Additional Sessions Judge, Kanpur in S.T. No. 543 of 1980 arising out of Case Crime No.205 of 1980, P.S. Shivli whereby the accused appellants have been convicted and punished and sentenced under section 302/149 IPC by life imprisonment. Accused appellants Ravindra Singh, Naresh Singh and Jai Deo Singh have been held guilty under section 148 IPC and have been sentenced to undergo R.I. for one year; the accused appellants Shailendra Singh, Narendra Singh and Rajjan Lal have been held guilty under section 147 IPC and have been sentenced to undergo R.I. for six months; accused-appellants Shailendra Singh, Narendra Singh, Rajjan Lal and Naresh Singh have been held guilty under section 201 IPC and have been sentenced to undergo R.I. for one year and all the sentences are directed to run concurrently.
3. In brief the prosecution case as given in the FIR is that the informant Harnam Singh son of Mahipal Singh, resident of village Nigoha, P.S. Shivli, District Kanpur along with his nephew Dharmendra Singh son of Iqbal Bahadur Singh were going on motorcycle from his village to Kanpur and when they were proceeding on the patri of Mausana Rajwaha and reached near the agricultural field of Ram Kumar Lodh, resident of Mitanpur, finding Patri broken, the first informant got down and his nephew tried to negotiate the passage on his motorcycle by traveling on his foot for a certain distance. As soon as his nephew reached near the filed of Ram Kumar Lodh at about 12 noon, accused Ravindra Singh son of Shiv Pal singh, Jai Deo Singh son of Bhola Singh, Shailendra Singh, Narendra Singh sons of Guru Bux Singh, Naresh Singh (son-in-law of Lawa Singh), Rajan Lal, son of Nanhoo, Bawan Baghwan Singh son of Mahavir Singh came out from bushes which were by side of Rajwaha and surrounded his nephew and Jai Deo Singh exhorted that he would not be spared and would be killed, on this, all the accused exhorted let him be done to death. Right then, Ravindra Singh, Jai Deo Singh, Bawan Bhagwan Singh by the licensed guns in their hands and Naresh Singh by country made pistol made fire upon Dharmendra Singh which hit him, the other three accused Naresh Singh, Shailendra Singh Rajan Lal who were armed with Lathi. This occurrence was seen by him, Chandrabhan Singh son of Amar Singh, Nagendra Bahadur singh son of Mahipal Singh, Sarnath Singh son of Khan Singh all residents of village Nigoha, Rajjan Singh son of Rama Singh, resident of Gauri, P.S. Shivli, Bal Krishna son of Jaswant Singh, resident of village Kharagpur, P.S. Shivrajpur. Accused Shailendra Singh, Narendra Singh, Rajan Lal and Naresh had thrown the dead body of the deceased in the field of paddy from Patri. His nephew died instantaneously after having received fire arm injuries, who was killed due to enmity because against Jai Deo Singh in a case under section 409 IPC, his nephew was witness and Jai Deo Singh had told him not to depose against him but his nephew did not oblige him and asserted that he would certainly give evidence. Apart from that accused persons Narendra Singh and Shailendra Singh wanted to illegally occupy his land which was in possession of the complainant side. Rest of the accused were friends of these accused persons. When the above-named witness challenged, they fled towards Pratappur.
4. On a written report, Exhibit Ka-1 containing above facts being given at police station Shivli which was at a distance of 10 miles from the place of incident, constable Ram Niwas (P.W. 6) registered the case against all the above-named seven accused persons on 8.9.1980 at 15.25 hours and prepared chik FIR in his handwriting which is Exhibit Ka-4 and also made entry of the said case in the G.D. at report no. 17, time 15.25 hours on the same day which is Exhibit Ka-5. Thereafter, Ram Niwas (PW6) sent a bundle of case property in sealed condition from Malkhana of the police station on 1.10.1981 through Constable No. 1390 Sri Kant to the Office of Civil Surgeon, Kanpur with a direction that the said case property along with a letter of CMO, Kanpur Nagar was to be sent for chemical examination to Agra, regarding which entry has been made in G.D. at report no. 9 which is Exhibit Ka-6. The said constable returned to P.S. on 8.10.1981 alongwith case property in a sealed envelop in the name of CJM, Kanpur Nagar which was deposited at police station, entry of which is made in G.D. No. 23 at 18.05 hours, which is Exhibit Ka-7. He has further stated that chik FIR no. 331 dated 2.9.2015 which is Exhibit Ka-8 has also been numbered by him. In the cross-examination, this witness has stated that after the registration of case no cognizable offence was registered on 8.9.1980 by him. He denied that FIR was prepared with consultation.
5. After registration of the case, investigation was handed over to S.I. Saligram Ratnakar, PW7, who had visited at the said police station on 8.9.1980, who immediately after lodging of report proceeded along with other constable to the place of incident and he found the dead body of deceased Dharmendra Singh at the 10 yards to the north of the northern Patri of Rajwaha Maidan Bhausana in the field of Ram Kumar Lodh, resident of Mittanpur with face up. He prepared inquest report after appointing Panchas which is Exhibit Ka-9 and sent the dead body for postmortem along with copy of FIR and other relevant papers which included Challan-nash Exhibit Ka-10, Photo-nash, Exhibit Ka-11, Chitthi to RI, Exhibit Ka-12, Chitthi to CMO for postmortem Exhibit no. 13, report CMO Exhibit Ka-14, which were prepared in his handwriting and were signed by him. Thereafter, he recorded the statement of first informant at the place of incident and visited the place of occurrence and prepared site plan which is Exhibit Ka-15. At a small distance from the place of occurrence, he recovered one pair of shoes to be worn in rainy season, one 'Tehmat' near the dead body. The recovery memo of which was prepared by him which is Exhibit Ka-16, which is in his handwriting and the shoes were marked as material Exhibit 11 while 'Tehmat' was marked as material Exhibit 12. He also found one motorcycle No. UTZ-4477 on the Patri, which was taken into possession and thereafter was given in supurdugi of Raghuraj Singh, Supurduginama prepared in his handwriting is Exhibit Ka-17. He also collected sample of blood found on the Patri, blood stained soil material Exhibit 13 and plain soil material Exhibit 14 which were kept in a small container and were sealed and its recovery memo was prepared in his handwriting which is Exhibit Ka-15. Thereafter, he came to village in search of the accused persons regarding which the memos were prepared which are Exhibits Ka-19 to Ka-23. He also found one briefcase near motorcycle in which there were clothes meant for being worn by the deceased. The clothes recovered from the body of the deceased i.e. Shirt material Exhibit-15, Sando baniyan material Exhibit-16, underwear material Exhibit 17, Janaiu material Exhibit-18 and after postmortem, these material exhibits were got deposited at the police station. Thereafter on 8.9.1980, he again made search for the accused but they could not be found. He remained at Nigoha at the night and in the morning he called Nagendra Bahadur Singh, Rajjan Singh and recorded their statements. The report was submitted before CJM for issuance of warrants under sections 82 and 83 Cr.P.C. against the accused persons. The said report was given by the brother of the deceased Raghuraj Singh, whereon warrants were issued against the accused persons. The said application dated 11.9.1980 is Exhibit Ka-24 and warrants obtained from the Court of CJM are Exhibit Ka-25 to Exhibit Ka-31. He submitted his report dated 11.9.1980 which is Exhibit Ka-32, whereon CJM issued process under section 82 and 83 Cr.P.C. which is Exhibit Ka-32/1. The processes under the abovementioned sections against Naresh Singh are Exhibit Ka-33 and Exhibit Ka-34 and on the reverse side of them, there is report of S.I. Babu Singh which is Exhibit Ka-33/1 and Exhibit Ka-34/1. The movable property of accused Narendra Singh was attached by S.I. Babu Singh on 17.09.1980, memo of which is Exhibit Ka-35 and its Supurduginama is Exhibit Ka-36. The processes issued under sections 82 and 83 Cr.P.C. against accused Jai Deo Singh are Exhibit Ka-37 and Exhibit Ka-38 and on the reverse of which, the report of S.I. Babu Singh, which is Exhibit Ka-37/1 and Exhibit Ka-38/1 and its memo is Exhibit Ka-39. The processes issued under sections 82 and 83 against accused Ravindra Singh are Exhibit Ka-40 and Exhibit Ka-41 and on the reverse of which, report of S.I. Babu Singh is Exhibit Ka-40/1 and Exhibit Ka-41/1 and the memo of attachment is Exhibit Ka-42. The process issued under section 83 Cr.P.C. against the accused Narendra Singh is Exhibit Ka-43 and on the reverse of it, report of S.I. Babu Singh is Exhibit Ka-43/1. The process issued under section 83 Cr.P.C. against the accused Shailendra Singh is Exhibit Ka-44 and on the reverse of it, the report of S.I. Babu Singh is Exhibit Ka-44/1 and the attachment memos are Exhibit Ka-45 and Exhibit Ka-46 of these two accused. The process issued under section 83 Cr.P.C against the accused Rajjan Lal is Exhibit Ka-47 and on the reverse of it, the report of S.I. Babu Singh is Exhibit Ka-47/1 and the attachment memo is Exhibit Ka-48. The process issued under section 83 Cr.P.C. against the accused Bawan Bhagwan is Exhibit Ka-50 and on the reverse of it, the report of S.I. Babu Lal is Exhibit Ka-50/1 and the attachment memo is Exhibit Ka-51. The memo prepared in respect of sending the cattle of Bawan Bhagwan to cattle home is Exhibit Ka-52. Exhibit Ka-46 is carbon copy of memo of having sent the cattle of Rajju Prasad to cattle house. Similarly, the carbon copy of memo of sending cattle of accused Rajjan Lal to cattle house is Exhibit Ka-53.
6. This witness has stated in cross-examination that he did not know whether accused Bawan Bhagwan used to do vakalat in Kanpur and he could not tell reason why he did not search for him in Kutchery, Kanpur. He did not know his house in Kanpur and from which cattle house, he had got his cattle released, he does not know. He denied suggestion that accused Bawan Bhagwan never absconded and that the articles which were attached, belonged to his father. To a question put to him that as to why he had not recorded the statements of Harnam Singh and Nagendra Bahadur Singh at the police station, he responded that after the report having been registered, when he returned to police station, these people had already left the police station and he did not consider it necessary to make entry on this fact in C.D. He was again put a question as to where Panchayatnama was conducted, to which he responded that first of all when he reached the place of incident, he found the dead body of the deceased in the field of Ram Kumar Lodh and the inspection of dead body was made there only and thereafter dead body was taken by the side of Patri and after lifting the same. In the field there was water but Panchayatnama was done there only.
7. The dead body was lifted by the constable with him and the same was placed at a small distance from the place where incident had happened. The place where the dead body was kept, no blood had fallen. Further he has stated that he had not recorded the names of accused in Panchayatnama. The nature of incident has been mentioned in its column and there was no overwriting in the parentage of the person who had given information and it was wrong to say that prior to writing Harnam Singh, earlier there was written Raghuraj Singh and where Mahipal is written, earlier there was written Iqbal. Further, he stated that the dead body was lifted from field and was brought at the Patri where Panchayatnama was prepared although no mention is made in C.D. about this fact. He was again put a question that it was evident from reading the Panchayatnama that the same was prepared where the dead body was found, to which he responded that after having done spot inspection, the dead body was sealed on the Patri and rest of the written work was also done at the Patri. He has further stated that when he had gone to the place of incident, he had met Harnam Singh there, who is an eye witness but regarding rest of them, he could not tell because he had got involved in preparing Panchayatnama and many people were assembled there. After preparation of Panchayatnama, he recorded the statement of Harnam Singh and had also enquired about other eye witnesses, and then he came to know that Nagendra Bahadur Singh had gone from there but regarding others, he did not ask because he had to conduct proceedings of arresting the accused persons. On his own, he further stated that after inquest, he made spot inspection collected soil, inspected motorcycle and gave the same in Supurdagi and thereafter took statement of Harnam Singh. He has further stated that he had proceeded for the village at about 7.30-8.00 p.m. The memo was prepared initially in the light of day and subsequently in the light of torches. There was no other external light. The recovery memo of ''Tehmat' and shoes had already been prepared prior to preparation of Panchayatnama at the places where these articles were found and thereafter Panchayatnama was prepared at the Patri. He has further stated that in Exhibit Ka-10 in column no. 3 he did not consider it important to write the time of incident and made entry in C.D. in the same order in which he had conducted investigation. He has further stated that in memo Exhibit Kha-2, crime number is not mentioned. In Exhibit Kha-1, crime no. 205 is not written by other ink nor any section has been added and the same was written at the same time. Exhibit Kha-1 and Exhibit Kha-2 on one side and memo Exhibit Ka-18 and Exhibit Ka-19 were not written by separate ink although papers are separate. He had not recorded statement of any person who had assembled in the field near the place of incident. The place of occurrence and village Nigoha was in the grip of flood as lot of rain was happening and in Bamba (Irrigation rivulet ) there was one to two inches of water. On both sides of the place of incident, there were bushes but largely they were towards southern side and this kind of bushes were all around the Bamba or not he did not notice. He has not mentioned as to at what distance the place was located where Nali was cut from the eastern Medh of the field of Ram Kumar Lodh. He had not noted the distance of the field from the place of incident which was stated by Nagendra Bahadur Singh to be close to the place of incident. He had seen Kachchi Puliya (Culvert) on Rajwara from a distance but has not mentioned its direction and the distance. There were blood stain on the motorcycle but has not mentioned about the same in its memo nor had he thought it proper to take it in possession. Such blood has not taken after getting it scraped. He also did not consider it necessary to get the motorcycle photographed. Water at the said place where the dead body was lying was little red but he did not consider it necessary to take the same in his possession. The blood at Patri was found at place ''C' and nowhere else on the Patri. The stocks of paddy were found pressed and not crushed and he did not find any pallet or bullet over there. Between the places ''A' and ''B' on the Patri where he had found blood or not, he does not recollect because it was rainy season. He had not considered it necessary to mention as to what clothes were found in the briefcase. He also did not note the spots/dents which were caused on the motorcycle with pallets. The place of recovery of briefcase is shown in the site plan by ''K'. At the place of incident, Patri must have been 7-8 feet wide although its width has not been noted and he has also not shown the distance in the site plan from where ''Tehmat' and shoes were recovered. He has further stated that when investigation was handed over to him, he had tried to take in his possession the guns from the accused persons regarding which he had also interrogated family members of the accused. Witness Harnam Singh had stated to him that Dharmendra Singh after dismounting him from motorcycle, went alone on his motorcycle so as to take it out of the difficult part/broken patch of the passage. He had not stated that Dharmendra Singh was carrying motorcycle dragging the same, after dismounting him. He had also not stated that after surrounding his nephew, the accused had started screaming. He had stated that his nephew fell down after getting fire arm injuries then and there and had also screamed. Witness Rajjan Singh had not told him that he had gone to matrimonial home of her sister nor had he stated that at the house of Luxmi Singh of his village, son-in-law of Lawa Singh was coming for last many days to Nigoha for settling the account for milk. The witness Nagendra Bahadur Singh has not stated that Harnam Singh had given little support to motorcycle(to help it clear the bad patch) nor had he stated that he had also proceeded towards them to give them support believing that they might not succeed in getting the motorcycle out. This witness has also not stated that Naresh Singh was resident of village Arra, P.S. Bighnu nor he had stated that Nagendra Bahadur Singh was dragged by the accused persons from the Patri. He has denied that the first information report was prepared with the consultation of police and under influence of Harnam Singh and Nagendra Bahadur Singh. He has also denied that the case was registered against the accused falsely and that Nagendra Bahadur Singh was a ''Dalal' of accused. He has further stated that Shirt material Exhibit 15 was taken out after cutting right and left shoulder, therefore, it could not be said that whether there were marks of pallet on the same or not. In the back portion of the shirt there were marks at two places which indicates that the same was taken out after cutting the cloth and apart from that there were marks of cuts also at various places. He has further stated that on ''Tehmat' material Exhibit Ka-12, there were two marks indicating that the same was taken out after being cut and there was no other cut on it but there were small hole in the same. He has denied that the statements of witness were recorded with much delay and the names of accused Shailendra Singh and Rajjan were introduced subsequently.
8. S.I. Biri Lal PW 5 who had taken over the investigation of this case from the earlier Investigation Officer Sri S.R. Ratnakar on 10.09.1980 has stated that accused persons Ravindra Singh, Jai Deo Singh, Shailendra Singh, Narendra Singh, Naresh Singh, Rajjan Lal, Bawan Bhgwan Singh were not being found due to which processes under sections 82 and 83 Cr.P.C were obtained from CJM and thereafter accused Narnedra Singh was arrested by S.I. A.K. Upadhyay on 17.9.1980 where-after his statement was recorded in Kotwali Kanpur. The accused Deo Singh, Naresh Singh and Rajjan Lal had surrendered at Lucknow, accused Ravindra Singh had surrendered at Unnao and accused Shailendra Singh and Bawan Bhagwan had surrendered before Court in Kanpur. Thereafter, he submitted charge-sheet which is Exhibit Ka-3 on 24.10.1980 in this case.
9. In cross-examination, this witness has stated that he did not take the guns of any accused in custody although he had made an attempt by writing a letter to the District Magistrate as to whether accused had got the same deposited at the shop of Arms Dealer. The correspondence was made in this regard but there is no endorsement of the same in case diary. With regard to accused Bawan Bhagwan, he has stated that during the investigation, he came to know that he was doing practice in Kutchery at Kanpur and was living in his own house in Gawal Toli but he did not try to find out as to whether on the date of incident, he was in Kutchery or not nor has he made its entry in the case diary. He also does not remember whether this accused had moved an application for inspection of his gun or not nor does he know that he had deposited his gun in court on 18.9.1980 and had denied that he deliberately did not make investigation properly to know that he was available in district court, Kanpur on the date of incident. He has not got identification made of accused persons or witness Bal Kishan.
10. On the basis of evidence on record, charge was framed under Sections 148 and 302 I.P.C. read with Section 149 I.P.C. against accused appellant Naresh Singh, Ravindra Singh, Jai Deo Singh and Bawan Bhagwan Singh on 8.07.1981 and under Sections 147 and 302 I.P.C. read with Section 149 I.P.C. against the accused appellants Shailendra Singh, Narendra Singh and Rajjan Lal on the same day and under Section 201 I.P.C. against accused appellant Shailendra Singh, Narendra Singh, Rajjan Lal and Naresh Singh also on the same day to which all the accused appellants pleaded not guilty and claimed to be tried.
11. From the side of prosecution, Harnam Singh as P.W.1, Rajjan Singh as P.W.2, Nagendra Bahadur Singh as P.W.3, Dr. J.S. Rathore as P.W.4, Biri Lal as P.W.5, Ram Niwas as P.W.6, Saligram Ratnakar as P.W.7, Shahab Singh as P.W.8, S.A. Husaini as P.W.9, Sri Kant as P.W.10 were examined, thereafter, the evidence of the prosecution was closed and the statements of the accused were recorded under Section 313 Cr.P.C. in which accused Jai Deo Singh has stated that father of Shailendra Singh and his own father, Bhola Singh had contested 'pradhani' election and since then there was animosity between them. Further he stated that the relationship was alright but there was no friendship. Accused, Bawan Bhagwan is resident of Nigoha but he used to practice in district court, Kanpur and he is not friendly with him. It has come on record that Surjan Singh, was cousin grand-father of informant Harnam Singh and that he had no child and Surjan Singh had executed sale-deed of his land in favour of accused, Narendra and Shailendra and in proceedings for mutation for which, Dharmendra Singh, deceased had objected; to this he stated that Dharmendra Singh had not made any objection rather objection was made by his father. To another question that the evidence has come on record that informant, Harnam Singh, Surjan Singh, Shailendra and Narendra (accused persons) hadcommon khata of land and at the time of mutation of the land which was sold, the said land was being ploughed by informant, Harnam Singh and deceased, Dharmendra and even after mutation, they used to plough the said land and accused Narendra, Shailendra wanted to grab that land but because of Dharmendra (deceased), they could not forcibly occupy that land because of which they had animosity towards Dharmendra, he responded that they had common agricultural land and were in occupation of their respective shares. To the next question put to him that there was evidence on record to the effect that against accused, Jai Deo, a case was filed under Section 409 I.P.C. in respect of 'Gaon Samaj' land in which deceased, Dharmendra was witness against Jai Deo Singh and Jai Deo Singh had told the deceased not to depose but Dharmendra Singh had insisted that he would give statement and because of that Jai Deo Singh became annoyed with the deceased, he responded that there was no case proceeding against him neither any statement was given by Dharmendra nor any such thing had happened. To another question put to him to the effect that Ms. Sundari Kunwar had been murdered in his village and because of she being without any heir, her land had gone to Gram Samaj regarding which proceeding under Section 146 Cr.P.C. had been initiated in which the possession of the said land was given to accused Bawan Bhagwan Singh which later on was changed to brother of deceased, Dharmendra i.e. Raghuraj. In this regard he stated that the possession of the said land was with him and he was 'pradhan' in those days. Accused Bawan Bhagwan Singh had got an application moved from his brother because of which the possession of the said land had gone to him. Thereafter he moved an application and after proceedings having been drawn under Section 146 and 147 Cr.P.C., possession of the said land had gone to Raghu Raj. Further he denied that on 8.9.1980, no such incident happened as has been stated by the prosecution side and also not happened in the manner in which it is stated to have happened and further he denied that he had caused any injury to the deceased which resulted in his death and that entire evidence produced from the side of prosecution was false. He also denied that informant Harnam Singh (P.W.1), Rajjan Singh (P.W.2), Nagendra Bahadur Singh (P.W.3) and besides them, Sarnam etc. had reached the place of incident and had seen the occurrence and also stated that the report of the incident (Exhibit Ka-1) was got lodged due to enmity naming him therein. He denied that the I.O., Saligram Ratnakar had gone to the place of occurrence and found the dead body of the deceased in the field of Ram Kumar Lodh of village Mitanpur and prepared his inquest report there. He also denied that during investigation, the said I.O. had found any blood lying on patri of Rajwaha and had prepared the recovery memo of plain soil and blood stained soil which were Exhibits Ka-13 and Ka-14. He also denied recovery of motorcycle of the deceased during investigation which was given in possession of Raghuraj and stated it to be wrong that any brief case was found lying at the place of incident belonging to the deceased. He also denied the proceedings under Section 82 and 83 Cr.P.C. against him to have been conducted by the I.O. as he had never absconded and as soon as he came to know of the case having been filed against him, he had appeared. Regarding injuries having been found on the dead body of the deceased by Dr. J.S. Rathore on 9.9.1980 which resulted in his death, he showed ignorance. He denied to say anything in respect of chemical examiner's report, Exhibit Ka-55 and he made additional statements that his father Bhola Singh had initiated a case against informant and his brothers under Section 122-B of U.P.Z.A.L.R. Act because of which there was animosity between two sides although he did not have any enmity with deceased and lastly he stated that all the witnesses belonged to one gang and have stated against him due to animosity.
12. The accused appellant, Naresh Singh has also given the same replies to almost all the questions which were put to him as were given by the co-accused Jai Deo Singh apart from additional fact that Laova Singh had two sons-in-law and both were called Naresh Singh. Laova Singh was an aged man to whom they used to go often. The informant side wants to illegally grab their land because of which he has been falsely implicated and denied his involvement in the present incident and stated that the entire evidence against him is false and has been given due to enmity.
13. Appellant Rajjan Lal has also repeated the same replies as given by the two co-accused named above and stated that he has been implicated due to enmity. In additional statement, he has stated that he, Shailendra and Narendra had got the sale-deed executed of the field of Hari Shankar Mishra which deceased, Dharmendra and Harnam wanted to purchase.
14. Appellants, Narendra Singh, Ravindra Singh and Shailendra Singh have also denied their involvement in the incident and has stated that entire evidence led by the prosecution is false and have been led due to enmity and have answered in the same manner as has been done by the other accused named above.
15. In defence from their side, Sri Krishna Kumar Trivedi son of Chhedi Lal Trivedi has been examined as D.W.1, Dinesh Kumar Shukla, Advocate as D.W.2, Nazir Ali, Advocate as D.W.3, B.P. Gupta, record keeper, police station, Kanpur as D.W.4., Md. Esmail, Lekhpal, Mitanpur as D.W.5, Dr. K.I. Mathrane, Professor and Head of Department of Forensic, G.S.V.M. College, Kanpur as D.W.6.
16. On the basis of evidence on record mentioned above as well as after hearing the arguments of both the sides, learned trial court has held the accused appellants guilty under the afore-mentioned sections.
17. We have to carefully peruse the entire evidence and in the light of the same, we have to appreciate the arguments made from both the sides and have to arrive on conclusion as to whether there is any infirmity in the judgement passed by the court requiring our interference in any manner.
18. P.W.1, Harnam Singh in support of prosecution case has stated in examination-in-chief as narrated in the F.I.R. that the deceased Dharmendra Singh was his real nephew and accused Narendra Singh and Shailendra Singh are brothers. Accused Jai Deo Singh and Ravindra Singh are cousin brothers, all the four of these have friendly relation with each other as they belonged to the same clan. Naresh Singh is son-in-law of Laova Singh but often visits the house of Laova Singh; Laova Singh is resident of his village. Bawan Bhagwan and Rajjan Lal also reside in his village; all the accused have friendly relation with each-other.
19. Surjan Singh was uncle of his father who had no child and had executed sale-deed of his land in favour of accused Shailendra and Narendra and the names of these accused have been mutated. In the said mutation proceedings, deceased Dharmendra had made objections. Further he has stated that Surjan Singh, Shailendra and Narendra, all accused had common 'khata' with P.W.1 and at the time of mutation, the land of Surjan Singh was being ploughed by the P.W.1 and the deceased and even after the mutation proceedings, they continued to plough the same. Accused Shailendra and Narendra wanted them to leave the land of Surjan Singh and intended to grab the same but could not take its possession because of the said land being ploughed since long by the deceased, Dharmendra Singh and because of this reason both Shailendra and Narendra had enmity towards the deceased.
20. He has further stated that one case under Section 409 I.P.C. was lodged against accused, Jai Deo regarding the land of Gram Samaj in which Dharmendra was a witness from the side of prosecution against Jai Deo and Jai Deo had told Dharmendra not to depose against him but he had denied to do so and stated that he would give evidence in the said case. This witness has further stated that Smt. Sudar Kunwar was murdered in his village who was child-less and her land had gone to the Gram Samaj and in respect of that land, the proceeding under Section 146 I.P.C. had been initiated and the possession of the said land was given to co-accused, Bawan Bhagwan and at that time Jai Deo was pradhan. Thereafter, supurdagi of the said land had gone to Raghuraj but he could not tell as to why the said change was made with respect to supurdagi of said land and has stated that Raghuraj and Dharmendra were real brothers.
21. Further he has stated with respect to the incident that on 8.9.1980 he was going to Kanpur by motorcycle from his village with Dharmendra (deceased) who was driving the same and he was pillion rider and when they reached on patri of Rajwaha near field of Ram Kumar Lodh of village Mitalpur, the passage there was in bad condition because there were lot of cuts, hence he got down from the motorcycle and Dharmendra also got down from it and dragged it forward. Since the said passage was in bad condition for good amount of distance, Dharmendra started driving his motorcycle at slow pace while he proceeded behind him on foot. When he reached near the field of Ram Kumar Lodh at about 12 noon, all of a sudden, accused Jai Deo Singh, Ravindra Singh, Shailendra Singh, Narendra Singh, Naresh Singh, Rajjan Lal and Bawan Bhagwan came out of the bushes and surrounded Dharmendra. Jai Deo Singh roared that the deceased would not be spared today and would be killed to which all of them stated that he would be killed immediately. Jai Deo, Bawan Bhagwan and Ravindra were armed with gun, Naresh with country made pistol and rest of them were wielding 'lathis'. Those who were having gun and pistols in their hands, made fire upon Dharmendra by their respective weapons which hit Dharmendra as a result of which, he fell down, thereafter Shailendra, Narendra, Rajjan Lal, Naresh dragged Dharmendra towards the paddy field of Ram Kumar about 8-10 yards away towards north of the patri and, thereafter, the accused went towards village Pratapur in the western direction. At the time when the deceased was surrounded by the accused, P.W.1 was about 30-32 paces behind him towards east and he raised alarm. About 8 to 10 paces ahead of him, Sarnam and Chandar were going and even they had stopped. From western side, Rajjan Singh and Bal Kishan had also come. His brother Nagendra Bahadur who was in the field of paddy about 100 paces away from the place of incident towards the east also arrived there and all of them had seen the occurrence. Further he has stated that when the accused had surrounded the deceased, they had raised an alarm. After departure of the accused, he came near Dharmendra where witnesses were also present and saw that Dharmendra had died. After having stayed there for some-time, he had written report himself which is Exhibit Ka-1. He had taken the said written report to P.S. and handed it over there and after sending Rajjan to his home, he gave information, where on all the persons from home also arrived at the place of incident. Nagendra had accompanied him to the police station.
22. In cross-examination, this witness has stated that his grand-father's name was Raja Singh who had four sons i.e. Iqbal Singh, Badri Singh, Jagannath Singh and Mahipal Singh. He himself had four brothers excluding him out of whom, Baijnath Singh and Barnam Singh have died. Barnam Singh had died two to three years ago without any child as he was murdered in Sirsaganj, District Etah; he had not married and has turned to be a saint. Iqwal Singh and Nagendra Singh were brothers who are still alive. Dharmendra Sngh, Deceased and Raghuraj Singh are sons of Iqbal Singh. He himself has four sons i.e. Gajendra Singh, Jogendra Singh, Mahendra Singh and Shivendra Singh. The name of father of accused, Ravindra Singh is Shivpal Singh. The name of father of Jai Deo Singh is Bhola Singh. Ravindra and Jai Deo have a common house in the village. Father of Ravindra used to do service earlier but had retired about two to three years ago from Hardoi and used to go Hardoi even after retirement but did not settle there and was staying in the village. He and his brother Nagendra Singh have a common house but were residing in their separate portions. Iqwal Singh, deceased and his father used to live in one house which was separate from his house. Some of the agricultural land was common between him and Iqwal Singh while some of it was separate. Iqwal Singh was having about 30-40 bighas of land and also owned a tractor. In the share of Nagendra Singh, there was 25-30 bighas of land. Nagendra Singh has studied upto B.A. and was serving in a bank. No case of embezzlement was ever lodged against him but he does not know whether he was getting pension or had left the job. At the time of incident, he had come to village and was there in the village since 4-6 months prior to the occurrence but had not returned to work. He used to go out some times only. Pointing out this piece of evidence, learned counsel for the appellant has argued that accused, Narendra Singh could not have participated in the incident because he was servicing in bank at a distant place and, therefore, his presence on the spot, is doubtful as he has been falsely implicated by saying that he was present in the village on the date of incident.
23. Further this witness has stated that he does not know whether prior to the incident, Dharmendra had got sale-deed of Laova Singh executed in his favour nor does he know as to how much land, Laova Singh had possessed though he was about 50-55 years of age.
24. He has further stated that from the place of incident, village, Nigoha was one mile to the south. From the place of incident, the 'Abadi' of the village is about two furlong away and not just after four fields, rather there are many fields between them. Mitanpur is village belonging to Lodhas which consists two 'purwas' (hamlets). On the patri of Rajwaha on which they were going, the same flows from west to east. The rajwaha is small Bamba which ends at a distance of one km. The Rajwaha is located at the height from the place of incident and land on either side of it is on the lower plane. About two feet below the patri is danger level. The patri towards southern side is high. The surface of the agricultural fields on either side is almost similar. He further stated that it was right to say that in the year 1980, a huge rain had taken place which had never happened earlier in his consciousness. After proceeding from the place of incident, the agricultural fields come to a higher plane. If one travels from the place of incident towards Pratapur straight, one would find some 'Jhavar' near Pratapur and in between, there is barren land. The field of Ram Kumar was about two feet below the patri where the occurrence had taken place. On the date of incident, there was water in the Bamba which could be measured around 2-2 to 3-3 fingers and that in the field of Ram Kumar, there was less than one foot of water. On proceeding towards village, no 'nali' would be found to have been cut from Rajwaha rather the same was found cut where he had got down from the motorcycle. He further stated that it was right to say that the said Rajwaha was cut on various places, there were many pot-holes because of elephant passing through there and at some places, bamba was in running condition while at other it was not functioning and at various places, one had to get down to negotiate the passage.
25. Towards east of Rajwaha at a distance of four furlong, there was 'pucci' culvert and from that culvert, there was circuitous route going towards Nigoha. The distance between 'pucci' culvert and Negoha was about 4-5 furlong. He denied that there was pandav river adjoining their village towards south. The land from Bamba to Nigoha was at the lower plane but it was not that the same was filled with water. The river was flowing up to its bank. There was no kutchcha passage towards west of Nigoha which would meet Baba road. In Nigoha, there is some land at the height and some at the lower plane. Baba road meets at Bela road and Bela road patri (kutcha passage) leads towards Kanpur city and the Baba Road was about one km. away from his village. Further this witness has stated that it was right to say that from the place of incident towards east there is a pucci culvert which was constructed on Rajwaha, about which he had told in spite of that there was no 'pucci' culvert rather the same was 'kuttchi' culvert and he had gone through 'kuttchi' culvert which has now get cut which had become in bad shape about 2-3 days ago. He had also stated about it to the Investigating Officer.
26. In the agricultural field of Ram Kumar, the dead body of his nephew was lying which must have been about 2.5 to 3 bighas in length and breadth. On the other side of Bamba is located the field of Ram Kumar and in the said field, the crop of paddy was 2 to 2.5 feet high. In the field lying towards the east of the southern field of Ram Kumar is situated the field of Gurcharan Dubey, area of which he could not tell. To the east of Gurucharan's land adjoining to Bamba is about 10 to 12 biswas of land belonging to Guru Charan Dubey and to the east of it, there is field of Jai Ram and, thereafter, the field of Vijay is lying and area of both these fields is about one and half. Whether the length and breadth of both the fields of these persons is equal or not, he could not tell.
27. Before proceeding further with the relevant statement of PW-1, it would be proper to take into consideration the site plan as well so that the statement of eye-witnesses may be appreciated better.
28. In site plan Ext. Ka-15, Bhavsana Rajwaha is shown flowing from West to East and to the North of it is the Patri on which the deceased was alleged to be going on motor-cycle. By 'XA' is shown the place where motor-cycle was found lying. By 'XB' is shown the field of paddy which was said to be full of water and wherein, the dead body of the deceased was found lying. The distance between 'XA' and 'XB' is shown to be 10 yards and the direction of 'XB' is to the North of 'XA'. The bushes are also shown on either side of the said Patri, where the assailants are said to be hiding, from where they had came out and surrounded the deceased. By 'XC' is shown the place on the Patri, from where the plain soil and the blood stained soil were collected. By 'XD' is shown the place from where witness Harnam Singh (PW-1) is stated to have seen the accused-appellants assaulting the deceased. By 'XE' is shown the place from where witnesses Chandrabhan Singh and Sarnam Singh had seen the accused assaulting the deceased. By 'XF' is shown the place from where witness Narendra Bahadur Singh (PW-3) had seen the accused assaulting the deceased. By 'XG' is shown the place from where witness Bal Krishnan and Rajjan Singh (PW-2) had seen the accused assaulting the deceased. By 'Arrow' is shown the route by which the accused persons fled after having murdered the deceased Dharmendra Singh and the said direction is shown in the North-West of the place of incident. By 'XH' is shown the field in which Nagendra Bahadur Singh (PW-3) was administering manure in his field of paddy. By 'XI' is shown the place where Patri was found broken and from there the deceased Dharmendra Singh had dismounted Harnam Singh from his motor-cycle. By 'Dots' is shown the place where there were found marks of dragging. By 'XJ' is shown the place where the shoes and Tahmad were found near the dead body. By 'XK' is shown the place where brief case was found near the motor-cycle. In this site plan the village Nigoha and village Gauri are shown to the South-East of the place of incident.
29. Now we want to continue with the remaining part of the relevant statements of PW-1.
30. He has stated that from the field of Nagendra Bahadur Singh, the place of incident is about 175 paces from where the place of incident was visible. There is one Nali between Kachchi Pulia and the place of incident where PW-1 had got down but the said Nali must have been about two to three furlong from Kachchi Pulia. The place of incident must be 70 paces away from the Nali. This nali is carved out of Bamba which was having water and mud. The said Nali would have been two to three feet wide at the top and must have been about two feet in depth. The said Nali is located about 150-175 paces away to the West of Kulawa No. 29. Due to rains, the Patri of Bamba had broken at various places and there was lot of mud.
31. He has further stated that in 1953, he had been implicated in murder of Shiv Charan Chamar in which apart from him, his father Jairam Singh and Jodha Singh were also accused and prior to that murder, his father had also been murdered in which Shiv Charan Chamar had been convicted and sentenced for 20 years. Shiv Charan had appeared in P.S. himself with Gandasa or not he could not say. He does not know whether the nephew of Ujagar had murdered his wife with the help of deceased Dharmendra Singh and he also does not know whether a complaint case was initiated regarding causing disappearance of the dead body of wife of Ujagar upon brother of Deceased Dharmendra namely Raghuraj and witness Rajjan Singh. There is long searching cross-examination made in respect of other criminal cases in an effort to establish the criminal antecedents of the deceased which are not being reproduced here. He has also shown ignorance that deceased Dharmendra Singh used to work of lending money, although he knows that he had got land written in his name of some persons but he does not know that he had lent money in order to realize the interest, he had got the land written in his name. He does not know whether he had got the land written in his name when the amount given on interest was not paid back to him. He has further stated that he does not know Samudri Devi. His son Gajendra resides in Unnao, who was married after this murder in Zodha Kheda, District Unnao but he does not know the name of his wife, although her father's name is Raghunath.
32. About 15 to 20 days prior to the murder, Dharmendra Singh had told him that Jai Deo (accused-appellant) had told him not to give statements against him in case under Section 409 IPC but he does not recollect whether Dharmendra had given evidence in that case or not, although he was a witness in that case. He also does not know that the evidence in that case had been concluded on 6.8.1980 and that 9.9.1980 was fixed for hearing in that case. He has stated that it is right to say that at the time of death of Sandara Kevat, Jai Dev Singh was village Pradhan. He further stated that Sandara Kevat was murdered but on his own he further stated that Jai Deo might have given report in respect of Sandara Kevat's land to be declared unclaimed. Supurdgi of the said land was given to Jai Dev, he does not know. Bawan Kevat had got opposed through brother of Sundar a Kevat namely Durga Singh against Jai Dev. It is right to say that Bavan Bhagwan (co-accused) had got the supurdgi of the said land. He does not know whether moving an application, Jai Dev had got the supurdgi of the said land from Bawan Bhagwan. A case under Section 145 Cr.P.C. might have been contested and in that only under Section 146 Cr.P.C., the brother of Dharmendra Singh namely Raghuraj had got the supurdgi but he does not know that in case under Section 145 Cr.P.C., on one side, there was Bawan Bhagwan and on the other there was Jai Dev or not.
33. The father of accused Jai Deo namely Bhola Singh had once been Pradhan in his times, who died 20 years ago, he does not recollect whether Bhola Singh had got a case filed under Section 122-B of the Zamindari Abolition Act in respect of having taken permission forcibly of the land against him (PW-1) or not, however, his elder brother was doing pairvi in one case and he denied that he had taken possession forcibly.
34. He has further stated that Bhola Singh had not filed case against him, rather Panchayat had filed the case and it was wrong to say that in the said case, there was penalty imposed on him and his brothers and also showed ignorance whether any appeal against the said judgment was filed in which his elder brother was doing pairvi. The said case pertained to six bighas of land upon which, as of now all the three brothers of his, have possession but thereafter stated that the said land was now in the name of his sons. He further stated that the election for Pradhan was held in 1972, which was contested by Jai Deo and uncle of Bawan Bhagwan namely Shivraj and the said election was won by Jai Deo. He denied that at the time of mutation of the land belonging to Sarvan Singh, the deceased Dharmendra Singh was a minor and also stated that the field of Raj Kumar Lodh (in which dead body was found) was in two parts. Further he has stated that he was going for purchasing clothes because his niece was to be sent to her matrimonial home. There was no specific reason for going in the afternoon because farmers go for such purchases whenever they find times. He does not remember the make of motor-cycle, although he did recollect its number and admitted that the said motor-cycle was at home, behind which there was carrier and also for keeping articles, there was one basket on the side of it. Further he has stated that from Kachchi Pulia till the place of incident, apart from Nagendra Bahadur Singh (PW-3), there were others also who were working in their fields but at the time of occurrence, other persons had not come to the place of incident. None from the Abadi of village Milunpur had reached there at the time of incident, although they had reached afterwards. Further he has stated that after the incident, he had gone near the dead body of his nephew accompanied with Narendra and Rajjan, Bal krishnan and Sarnam and Chandra Bhan also reached there. They let dead body lie there and had remained there till the police reached. The dead body was left there in supervision of his brother and other villagers and the brothers of Dharmendra Singh etc.. The wife of Dharmendra had also reached near the dead body. He denied that he had taken out any money from the person of deceased, Dharmendra.
35. Citing this piece of evidence, it was argued by the learned counsel for the appellants that it was unusual for a person to go for purchasing cloth etc. relating to ceremonies of marriage without having any money and since there was no money found with the deceased, it shows that the story of prosecution that the PW-1 and the deceased were going for making purchase appears to be false.
36. This witness has further stated that the brief-case was kept on the carrier of the motor-cycle which contained clothes and some papers. He had left the brief case and clothes etc. there only and when he returned from the P.S., he does not recollect whether the brief-case was still there or not, as he had not seen. The dead body was taken away about 5:45-6:00 pm from the place of incident but he did not see the wife of the deceased and his children weeping near the dead body. The wife of the deceased had not reached at the place of incident prior to his going to the P.S., rather had reached there subsequently. After having returned from the P.S., he remained at the place of occurrence till 6:00-6:30 pm and when he started from there, the police had reached and the inspector had also interrogated him, but whether he had communicated others also, he could not tell. When he had gone to lodge the report at the P.S., he had not found inspector there and none had made any interrogation at the P.S.
37. He has studied up to class four and till prior to the occurrence, he had never lodged any report in a case of murder. The report was written by him after sitting on the Patri of Bamba and also stated on his own that he had opened brief-case in which there was paper. He had written with the dot pen and in writing the said report, about 45 minutes to 60 minutes might have been taken. The place where he had written the report Rajjan and other witnesses were not present because Rajjan had been sent to the village, rest of the witnesses were also not there. He could not tell as to whether the witnesses were present, when he was writing the report. After having written report, five minutes thereafter he proceeded to P.S. on foot. P.S. was eight to ten miles away from the place of incident. He had not gone to the P.S. via his village rather had gone straight and he must have taken about 2:30 to 2:45 hours in reaching there.
38. Learned counsel for the appellants has after drawing attention to the above statements, had stated that no Fard was prepared of brief-case and that circumstances in which report is alleged to have been prepared does not inspire confidence because there was lot of water all around place of incident and in such a situation he got a paper as well and a dot pen to write the report with.
39. Further, he has stated that at about 8:00 to 9:00 pm, Nagendra Singh had met him but he had not seen in the said night Chandra Bhan and Sarnam Singh. He does not know whether police had come to the village in night or not. Lantern was burning/glowing near the dead body when it became dark. He does not know whether the panchayatnam of the deceased was done. The dead body was lifted by the police from the place of incident and was kept on the Patri of Bamba.
40. Co-accused Bavan Bhagwan does practice at District Court in Kanpur Kutchehri but mostly he lives in village and does farming because he is not a busy Advocate having good practice but he does not know whether he was practicing for last 10 years. He has further stated that it was right to say that the incident had taken place towards East of the western medh of the Ram Kumar Lodh but he could not tell whether it took place at a distance of about six to seven paces from the said medh. Thereafter, stated that the said distance may have been fifteen to twenty paces from the western medh.
41. Further he has stated that after descending from the Nali, he had walked about 30 to 32 paces and then the occurrence happened. He was proceeding at a slow pace. Chandra Bhan was going eight to ten paces ahead of him and Rajjan were about 20 to 25 paces towards West of the place of incident and they also stopped at some place as soon as firing started which must have been made hardly for about two to four minutes. After falling of deceased, soon thereafter one more fire was made and immediately thereafter, he was thrown in the field of paddy. He had seen injuries of Dharmendra Singh (deceased) which included one bullet injury on his forehead and pallet injuries in his chest and nose. He was lying with face upwards. The assailants were making firing from the Patri of Bamba. The assailants had sprung out of the bushes from both sides of the Patri. The assailants had not stopped while making fire. He had seen them firing but he could not see where the said fire hit. When the first fire was made, at that time, Dharmendra Singh was on motor-cycle driving it slowly but where the said fire hit, he did not pay attention; six-seven fires were made. The question was put to him whether after getting hit by the first fire Dharmendra who was on motor-cycle, had fallen down? to which, he replied that indiscriminate fires were made by which Dharmendra jumped and then fell down. Thereafter, one fire was made at his forehead. The said fire which was made at the forehead, was made from a distance of about one feet. He could not tell as to how many fires were made from behind when the deceased was on motor-cycle and how many were made from the sides.
42. It was argued by the learned counsel for the appellants in the light of above evidence that who had actually made fire upon the deceased from close range, has not been disclosed by this witness and also drew attention to the statement of Dr. J.S. Rathore, who conducted post-mortem, and it was argued that the said shot was contact shot.
43. He has been put several questions by defence side which have been answered separately by this witness in question answer form, out of which relevants answer are being mentioned by us.
44. This witness when asked as to whether the deceased was assaulted by Lathi, he replied that those who were armed with Lathis, had surrounded him but he had not seen anyone assaulting the deceased by Lathi and he could also not say with certainty whether anyone had assaulted him by Lathi but he saw fierce firing. When he had reached the place of incident, he found that Tahmad was lying away in water and towards West of the dead body were lying shoes at a distance of about one to two paces. The water over there was little red and blood was lying on Patri. The crop of paddy had got crushed. He has further stated that near the field of Ram Kumar Lodh, they had got down from the motor-cycle and from there, had proceeded seventy paces ahead, then the assault had started. He also replied in affirmative that as soon as deceased reached near the field of Ram Kumar Lodh, right then accused surrounded him and made fire by pistols. Further he clarified that they were going near the said field and the incident had not happened when they had reached near the field, rather he had got down near the field. He further stated that the motor-cycle of the deceased was parked after getting down from it and he had also given some push to it and also stated that it was not that the deceased single handedly had taken out the motor-cycle, rather he had also given some support in that. He also replied that it was right to say that as soon as his nephew reached near the field of Ram Kumar Lodh, about 12 noon, the accused who were hiding in the bushes of Rajwaha, came out of it and surrounded his nephew and made fire upon Dharmendra, which hit him but he had also written in report about the gun. He was again confronted with the question that in the statement given today by him that incident took place at a distance of 15 to 20 paces towards East of the western medh of the field of Ram Kumar Lodh which is a wrong statement to which, he replied in the negative and stated that his said statement was correct. He also has given reply in affirmative when he was put a question that he had stated to the Investigating Officer that as soon as his nephew reached near field of Ram Kumar Lodh at about 12:00 noon, right then out of bushes by the side of Rajwaha, the accused came out and all of them surrounded his nephew, at the same time, all the accused with their gun and country made pistol made fired upon Dharmendra Singh. Further he was put a question that he has stated earlier that Dharmdendra Singh after dismounting had single handedly taken out his motor-cycle, to which he replied that he does not recollect in this respect and he was asked as to how said statement was recorded by I.O. to which he stated that he could say nothing about it. Thereafter, he was again put a question that he had stated that he had written in the report about the motor-cycle being taken out after dragging the same, whether it was told to I.O. or not, he does not recollect. If the same was not mentioned in the report, he could not tell its reason and if the I.O. had not recorded the same, he could not tell its reason. He responded that the dead body of his nephew was dragged away by the accused and this was written by him in his report.
45. Learned counsel for the appellants has drawn attention of the court towards above statements of this witness and it was argued that a deliberate improvement has been made by this witness to the effect that he was made to get down from the motor-cycle by the deceased so that the prosecution version of the deceased having been fired by fire arm weapons should not get belied because if it would have been a case of prosecution that PW-1 was a pillion rider on the said motor-cycle with the deceased, in that condition upon fire being made upon the deceased, the PW-1 would also have received injuries i.e. the reason why this improvement has been made deliberately that he was dismounted from the said vehicle and the deceased continued to proceed ahead with his vehicle and he kept himself at a distance from the deceased. It is further argued that no one has been specified to have fired upon the deceased specifically and who had actually fired upon the deceased from a distance of one feet which was a decisive shot as a result of which the deceased died, has not been disclosed by this witness. Further he argued that deceased had criminal antecedents and the questions put to this witness in this regard have been denied, therefore, to discredit the testimony of this witness, all the documentary evidence has been filed from the side of defence so that his testimony could be dis-believed. The place of incident has also been shifted by this witness, as it is stated that the dead body of the deceased was found in the field where there was water. It is also unbelievable that despite being close relatives of the deceased, as PW-3 was his real uncle and informant is also his real uncle, they would leave dead body there till arrival of I.O. on the spot and it was argued that lot of improvement has been made in the statement given by this witness before court upon the statement which were made by him before the Investigating Officer.
46. Further this witness has stated that if in the written report it has been mentioned that the accused had dragged the dead body of his nephew, he could not tell its reason as to how the same was written therein. The accused had taken the dead body with face upwards. When the accused had surrounded his nephew, he had screamed loudly which fact was mentioned by him in written report, whether this fact was stated to the Investigating Officer, he does not recollect. Further he stated that if the said fact was not found written in his written report, he could not tell its reason. When the deceased Dharmendra had fallen from the motor-cycle, he had not cried. He does not recollect whether the guns which were with the accused were licensed gun or not and on his own he has further stated that accused Bawan Bhagwan and Jai Deo had license of single barrel gun, Jai Deo had also license of double barrel gun, father of Ravindra i.e. Shivpal had license of double barrel gun and in report he had written that they had licensed gun.
47. The accused had made fire from the northern Patri of the Bamba and not from the right Patri. On either side of Kharanja, there are agricultural fields. The accused had came out from both sides of passage and after having surrounded, had made fires. When he was questioned as to whether when he reached with witnesses there, the accused had fled from there having seen them, he replied in negative and stated that they had fled only after having murdered and having thrown the deceased. Further a question was put to him that he had given statement to the Investigating Officer to the effect that when they (informant side) had challenged all the accused after having reached there, all of them had fled towards village Pratappur to which, objection was raised on the ground that the same was out of context. Again, a question was put as to whether he had given statement to the effect that all the accused persons had murdered his nephew, he and the witnesses had challenged the accused when they were assaulting the deceased and because of that they had fled, he responded in affirmative. He had also stated that Laova Singh had two sons-in-law or not he does not know but he knows one son-in-law by the name of Naresh Singh who is an accused in this case and is resident of Ari place and lives in his village. Laova Singh had two daughters and both have been married but he does not know the name of other son-in-law of Laova Singh and also does not know whether his name is also Naresh Singh. He denied that he wanted to usurp the land of Laova Singh but the same could not be done because of their sons-in-law. He has denied suggestion made from the side of defence in which he has showed ignorance that Sugar Singh was his Khatedar, that no such incident has taken place, that he was not going with deceased Dharmendra to Kanpur and had lodged a false case in collusion with his brother and police. He also denied that his nephew was Dalal (mediator/interlocutor) of police and that in the field of Ram Kumar Lodh, there was paddy crop. It was also denied that the F.I.R. was lodged with the consultation of police and no one had seen the deceased having been murdered at the place and time and date of occurrence and that deceased was a person of bad character.
48. He further stated that the land measuring 33 1/4 bighas which had come to the village of Shailendra Singh etc., was in possession of deceased Dharmendra Singh, in that land, Surtan Singh was co-khatedar while Geeta Singh, Ranjit Singh and Raja Singh were not co-khatedars. He along with five brothers namely Bhola, Rampal, Shiv Pal, Gurubaksh, Sumer were co-khatedars of the said land with Sugar and Surtan Singh and the said khata had been partitioned mutually but not officially. Surtan Singh had executed sale deed of his share of land in favour of Raghunath Singh, Shailendra Singh and his partners regarding which he had filed a case but land is yet to be partitioned and this land comprises seven-eight bighas of grove. He was put a question as to how much bighas of land had come in the name of Shailendra and his brothers to which he stated that the same had not been registered. In some part of the land, Ravindra Singh and Jai Deo (accused) were in occupation. After execution of sale deed in favour of Raghunath and Shailendra etc, a case for mutation was contested in which father of Jai Deo Singh had filed objection. The uncle of Bavan Bhagwan namely Shivraj Singh had given evidence against Shailendra Singh and others or not he does not recollect. The objection in the said case was filed by deceased Dharmendra and his father. Thereafter, he was again put a question as to whether he had filed objection or not, to which he again repeated the same answer as above.
49. He further stated that consolidation proceedings has not been concluded in his village and has also showed ignorance whether Raghunath Singh S/o Samre had lodged any report against him, Ikbal Singh and father of Jai Deo Singh or not.
50. Further he stated that Bavan Bhagwan has two brothers, his younger brother Dharm Pal lives in village and does cultivation work while Bavan Bhagwan lives separate. He does not know whether he does legal practice for last 10 to 12 years or not but further stated that he lives in village and goes to Kanpur only sometimes for practice and further denied the suggestion that he was living in Gwal Toli with his children for last 10 to 11 years and also showed his ignorance about his owning house in Kanpur city.
51. PW-2, Rajjan Singh is stated to be belonging to the informant's clan and it was argued that he was a chance witness. He has stated in examination in chief that after having sent his sister to her matrimonial home, in village Gaur Navada, under P.S. Shivrajpur, he was returning from there and when at about 12:00 pm, he reached just before the field of Ram Kumar Lodh, he saw deceased Dharmendra coming on motor-cycle from the eastern side and as soon as he reached in front of the field of Ram Kumar Lodh, accused Bavan Bhagwan Singh, Rajjan Lal, Ravindra Singh, Jai Deo, Nagendra, Shailendra and son-in-law of Laova Singh, who is Naresh Singh were present in court, came out from the bushes from either side of bushes and surrounded the deceased and Jai Deo Singh exhorted that he should not be allowed to escape and after that, all the accused also endorsed that he should be done to death today and, thereafter, those who were armed with guns and pistols, started making fire upon the deceased Dharmendra. At that time Naresh had a pistol while Ravindra and Jai Deo were armed with guns. Bawan Bhagvan had also gun. Rajjan Lal, Narendra and Shailendra had lathis in their hand. The deceased Dharmendra bounced up in the air and then fell down. He received injuries due to fire and after having fallen accused Naresh Singh, Rajjan Lal, Narendra and Shailendra had thrown him in the paddy filed after holding his hands and legs. At that time, PW-2 was accompanied by Bal kishan of Khadagpur. From the side, from where Dharmendra Singh was coming, from that side, Sarnam Singh, Chandra Bhan Singh and Harnam Singh (PW-1) and Narendra Bahadur Singh were also coming, who all witnessed this occurrence and when the accused were assaulting the deceased, all of them had cried loudly but accused after having murdered the deceased and throwing him in the field, had fled towards Pratappur. When he saw Dharmendra Singh, he was in dead condition.
52. In cross-examination, this witness has stated that the village Nigoha is situated a little less than one mile towards North-West from his village, where he has been going right from inception. He was not visiting the place of Dharmendra and nor he used to talk with Dharmendra, Harnam Singh and Ikbal Singh, only pleasantries used to be exchanged. He has never gone to their house nor have they come to his house. He has further stated that his father Ram Singh's murder was committed at the time when he was 6 to 7 years old and in that case Gajraj Singh and Medhe Singh were accused. When Gajraj Singh came after being released from jail, even he was murdered in which case he (PW-2) was made accused in which he was acquitted. In that case Jai Deo Singh (accused-appellant no. 2) was scribe of the F.I.R.. In Dhakan Purva, the wife of Vikram Kori was murdered, regarding which whether the case was registered against him and his deceased brother Dharmendra and Raghuraj Singh u/s 201 IPC or not, he does not know nor does he know that a report was lodged against him and his brother and subsequently a complaint was also moved. He has further stated that he has never given any statement from the side of police, he does not remember whether any case against Md. Umar and others i.e. case no. 31 (year not mentioned), under Section 323, 353, 357 and 307 IPC, P.S. Bithoor was filed, whether he was a witness or not but he had not gone to the jail for identification of any accused. He also does not know, whether the father of the deceased of this case namely Ikbal Bahadur, Nagendra Bahadur Singh and Jagdish Mishra resident of Nigoha were witnesses in that case or not nor does he know whether Nagendra had also given evidence in that case. He also stated it to be wrong that the above mentioned Jagdish Mishra had filed any case under Section 392 IPC against Jeevan Singh and others in which he (PW-2) and the deceased were witnesses. He also stated it to be wrong that witnesses Nagendra had lodged any case under Section 392 IPC against Jagsaran and Ram Sajeevan, both residents of village Sairpur, in which he (PW-2) was witness. He also denied that Bashir Miya had filed any case under Section 392 IPC against Dharmendra (deceased) and Nagendra (other witness) in a case of dacoity against Ram Narain of his village in which he was a police witness against Subedar and others and also denied that in a mfatter of inquiry of encounter against Raju and Pawan, he had filed an affidavit from the side of police nor did he have any information in respect to the said occurrence. He further stated that in 1981, in a case under Section 107/116 Cr.P.C., P.S. Nawabganj, he was arrested but was granted bail by the court and on his own he stated that compromise had taken place and the case was closed. It is wrong to say that Raja Kaachhi resident of Hirdaypur Shukla had filed a complaint under Section 395/397 against him, Nagendra (deceased) and his brother and father and also showed ignorance in respect of any case in which Dharmendra had beaten Raju Kachchi in court and contempt proceedings were initiated against him and he was released on probation after submitting personal bonds.
53. Indicating the above statements of this witness, it was pointed out by the learned counsel for the appellants that this witness himself has criminal antecedents along with the fact that the deceased had also criminal antecedents and, therefore, the statements of this witness should not be believed and the deceased might have been killed in some other manner, he himself being person of criminal antecedents. He also argued that despite the denial of several facts which have been cited above, they are sought to prove these from the side of defence by filing relevant documentary evidence.
54. Zadepur minor emerges from the present Rajwaha, which passes through village Gauran Navada. From the Jadepur, his village is two and half miles away, but there is no passage to reach there, as there is one river and a Nala between the two places. In rainy season, no body can travel by that route on foot. In those days (when the incident happened), the river was flooded and Nala must have also lot of water as he could guess. If someone travels from Bhavsana Rajwaha to his village, no Nala would fall in between. In front of Nigoha, Rajwaha is left and, thereafter, via Nigoha one can go to his village. Between Nigoha and his village there lies one Nala which is small in size and whenever there is flood in the river, the said Nala gets filled. From village Pratappur through Dilavarpur minor if one would go to his village then no Nala would fall in the way and on his own he further stated that between Bamba and his village, there is lot of water found. From Dilavar minor his village is about two to three furlong and the passage gets inundated with water. From Pratappur towards Bhaujana Rajwaha, there is Pakki road which opens near Minni Purva and from Pratappur his village lies three and three and half miles away. He does not know whether any road goes from Nigoha to Barbar road. He further stated that one day prior to the incident, he had gone to leave his sister and she was taken on a bicycle. He had started from the house of his sister at about 10:00-11:00 am and due to it being month of Bhadon, there was no sun as it was cloudy and he must have taken about 1:30 to 2:00 hours in reaching the place of incident approximately. About 100 paces away from Raj Kumar Lodh's field, he saw a motor-cycle. At that time, Dharmendra (deceased) was four to six yards away from eastern Medh of Raj Kumar Lodh. He also saw that between him and Dharmendra, Chandrabhan and Sarnam had also come and after sometime Dharmendra became ahead of them while the rest of the two fell behind him but he could not tell how far ahead Dharmendra was going there. He did not see any other person other than the above mentioned persons. Thereafter, a question was put to him whether the deceased was surrounded by the accused coming out of the bushes as soon as he reached near the field of Ram Kumar Lodh, he responded by saying that deceased Dharmendra was coming near the said field and when he had reached at the mid point of the said field and was about two to four yards towards him (PW-2), he saw the accused coming out of the bushes and surrounding him. This incident happened about 16 to 17 paces towards east of the western Medh of Ram Kumar Lodh. His statement was recorded one day after incident by the Investigating Officer in Nigoha primary school as a police constable had come to call him. Thereafter, he was again put a question as to whether the above fact that the accused had surrounded the deceased when he reached near the field of Ram Kumar Lodh, he stated by mentioning that the deceased was near the field, he meant that he was on the side of Patri along the side of field. The accused had came out from the bushes from both the sides and had surrounded the deceased and, thereafter, fire was made. He was, thereafter, put a question as to whether, soon after coming out of bushes fire was made to which he stated that within two seconds after having surrounded him, fire was made. Again it was put to him whether fire was made from the same direction, from where they had come out, he responded by saying that the fire was made from the side and from the front after surrounding him. Then again a specific question was put whether fire was made from the sides or not to which he stated that he could not tell about it but fires were made while proceeding. Again a question was put to him that when the deceased bounced off from the motor-cycle, whether engine of his motor-cycle was silent, to which he responded that he does not recollect but did say that when he had fallen, by that time, the engine of the motor-cycle has silenced. Again it was asked that when initially Dharmendra was fired upon, at that time whether engine of the motor-cycle was functioning or not, he responded that when they all had surrounded him, till then the engine was on. Again it was put to him whether the engine of the motor-cycle had silenced on its own or somebody had switched it off to which he responded that it had silenced on its own. The motor-cycle of the deceased had also bounced off and fell towards west from its 'Dole' (appears to be side-stand), meaning thereby it had rested on its Dole. The deceased Dharmendra had fallen down towards the right side. The deceased Dharmendra must have fallen about one to two hands away from where the motor-cycle was. The motor-cycle had blood on it. The water was reddish in the field where Dharmendra was lying and the place from where Dharmendra was taken away, blood was dripping, although the same was not visible. He does not recollect whether the deceased was assaulted with any Lathi & Danda or not. The entire incident happened within 3 to 4 minutes. After fleeing of the accused, Harnam Singh had talk with Bal Kishan of Khadag Singh (appears to be name of some place). He stayed there at the place of incident for about eight to ten minutes. At the instance of Harnam Singh, he had gone to his house for breaking the news in the village. During night he stayed in his house. He had disclosed about this incident to various villagers. He had stated to the I.O. that he had gone to leave his sister but if the same was not recorded in his statement, he could not tell its reason. The statement under Section 161 Cr.P.C. were recorded when he had returned from the matrimonial home of his sister. He had also stated to I.O. that son-in-law of Laova Singh, who was residing in the said village had come in the house of Laxmi Singh for some accounting but the same was not written, he could not tell its reason. He has denied any knowledge that in the murder of Gajraj Singh, his (PW-2's) bail was taken by Raghuraj Singh who was brother of the deceased or not. He had further denied that he had not gone to his sister's place and was returning from there and had not seen the occurrence and only because he belonged to the gang of Dharmendra Singh and others, he was giving false statement. In the case of State Vs. Manipal Singh under Section 436 Cr.P.C. pertaining to P.S. Shivli his name was mentioned as a witness but he had stated before court that he had not seen the occurrence. Further he has stated that he was dealing in the sale of milk for the last one month in Kanpur in Nawabganj. His brother Gaya Singh also used to do the said business for about six to seven months. The brother of Gajraj Singh (whose murder had taken place) namely Subedar Singh, had a licensed gun. In that case, Dharmendra Singh had not got him (PW-2) bailed out nor had he done any pairvi. He had further stated that at the time of incident, water was not flowing in Bamba and the rainy waters hardly two to four fingers was there in the Bamba, on the Patri on which the motor cycle was being driven by the deceased, on the same there was mud at few places. The place where deceased was murdered, there was wet land and there were also potholes, but on Patri, the land had dried but the field in which he was thrown, there was water. Between the place where he (deceased) was assaulted and killed and the place where he was thrown, in between there was field having crop of paddy. The deceased was thrown in the field after holding his hands and legs but he could not tell whether some part of his paddy was got damaged in that process or not. Those, who had held his hands and legs, had held the lathis in other hands. The Tehmad was found lying to the western side at a distance of one to one and half hands away from the dead body and also shoes were lying there and in the meantime till he remained there, apart from the witnesses named above, there no other villagers had passed. After reaching the Patri of Rajwaha, till reaching the place of incident, whether he met any other person or not, he does not recollect, whether in nearby fields, persons were working, no one was found. Whether he met anyone while going from the place of occurrence to his village or not, he does not recollect. After having informed in the village of the deceased, he did not go again to the place of incident. When he was going from village of deceased to his own village, none met him on the way. At the time of incident, he had told accused "khabardar yah kya kar rhe ho" this was uttered by him when Harnam Singh had shrieked. No fire was made towards him (PW-2). Bal Kishan was with him and was standing by the side. The other witnesses, who were standing on the other side, they were also raising alarm but what was said by them, he does not recollect. The firing had started, therefore, he could not understand the whole thing. The firing was not made by the accused on the other side. After having spoken to the father of the deceased in the village, he had returned to his own village, he knew the house of Dharmendra. He does not know whether accused Ravindra Singh, Jai Deo Singh and Bawan Bhagwan were having their own licensed guns or not, although he had stated to the Investigating Officer that they were having guns. He denied the knowledge as to how the Investigating Officer had recorded in his statement that they were having licensed guns and also denied that he was living in Kanpur on the date of occurrence. Further he has stated that it is not correct to say that if one would go to his village via Jadepur minor from Jadepur, the distance would be two miles less, it is not correct to say as there is no such passage. Further he stated that whether Bawan Bhagwan Singh used to do practice law in Kanpur, he does not know although he by and large lives in village. On the date of incident, he had not gone to Kanpur Kutchehry and he denied that on the date of incident, Bawan Bhagwan Singh was in Kutchehry and not on the place of incident.
55. It was argued in respect of this witness that he is not an independent witness and moreover he was not present on the place of occurrence, he was co-accused in many cases regarding which documentary evidence has been given and his statement deserves to be discarded.
56. PW-3 Nagendra Bahadur Singh has stated in examination-in- chief that about one year and one month ago at about 12:00 noon, he was present in his paddy field which was adjacent to the southern Patri of Bhavsana Rajwaha and was sprinkling manure. He saw that his nephew Dharmendra Singh and his brother Harnam Singh were going on motor-cycle towards Kanpur from village Nigoha via northern Patri of said Rajwaha. As soon as they passed by his field and were about to reach near the field of Ram Kumar Lodh, resident of Mitanpur, where Patri was broken, Dharmendra Singh dismounted Harnam Singh from the motor-cycle and Dharmendra Singh, thereafter, dragged his motor-cycle out of that bad patch in which some support was given by Harnam Singh along. He (PW-3) also proceeded towards them thinking that they might not be able to take out their motor-cycle through that bad patch. From the place where, the said Patri was broken, at a distance of about 72-74 paces, Dharmendra Singh was going on the motor-cycle and right then Jai Deo Singh, Ravindra Singh, Bawan Bhagwan Singh and the son-in-law of Laova Singh of his village namely Naresh Singh, Shailendra Singh, Narendra Singh and Rajjan Lal sprung out of the bushes, which were there on Rajwaha and out of them Jai Deo Singh stated that the deceased would not be left alive. Thereafter, all the accused surrounded Dharmendra Singh and all of them also exhorted that he should be killed. At that time, Jai Deo Singh, Ravendra Singh and Bawan Bhagwan were armed with guns and Naresh was having a pistol, while remaining accused were armed with Lathis. Jai Deo Singh and Bawan Bhagwan started firing upon Dharmendra Singh by their weapons by which Dharmendra Singh got hit and he got bounced off his motor-cycle and fell down towards right side i.e. in the northern direction and after his having fallen, one more fire was made by the accused-persons. Thereafter, Shailendra, Narendra, Rajjan Lal and Naresh picking up the deceased as well as dragging him took him to the paddy field of Ram Kumar Lodh and threw him in the northern direction in that field. His nephew had died. When accused had surrounded Dharmendra, he had shouted then Harnam Singh, Sarnma Singh and Chandrabhan Singh came from the eastern side while Rajjan Singh resident of Gauri and Bal kishan resident of Khadagpur came to the spot from the western side and saw incident. All of them challenged accused because of which they fled towards Pratappur in western direction and they could not catch the accused persons because witnesses were armed. He also stated that the accused named above by him, were present in court today. He further stated that he (PW-3) had taken bail of accused Jai Deo Singh in an embezzlement case and about 15 to 20 days prior to the occurrence, Dharmendra had told him that Jai Deo Singh used to sit with miscreants, hence he should get his bail cancelled.
57. This witness in cross-examination has stated that Dharmendra had spoken to him for cancellation of bail about 15 to 20 days prior to the occurrence but he had not got the bail cancelled because he found it to be immoral. He does not recollect whether the other surety was Raghuraj, who was brother of the deceased, or not. He has further stated that he had studied B.Com and initially, he was working as Supervisor in U.P. Co-operative Union Lucknow, and, thereafter, he was selected as Manager of Land Development Bank and got posted as Manager in Agra. Thereafter, he went to Kheragarh Tehsil and, thereafter, Barabanki and then Kannauj in District Farukkhabad. Thereafter he was appointed Branch Manager in Head Office as Land Valuation Officer and from there he was sent to Tehsil Karvi and District Banda as Branch Manager and from there to Jhasni and was in service even today and had come from Lucknow. He was informed about the date by the constable. He had not received charge in Jhansi, where he was transferred in 1974 and after having joined there he had come home and had fallen sick and did not go to attend duty. He was suspended on 31.3.1975. Thereafter, he was put a question that he had stated above that he was still working, whether the same was correct answer to which, he answered by saying that he had seen notice issued in Dainik Jagran on 12.4.1981 and on that basis he had joined the Jhansi Branch where he was not given the charge. He further stated that in Farrukhabad and Banda, no departmental proceedings had been initiated against him regarding embezzlement.
58. He has further stated that he is real uncle of the deceased and owns 25 to 35 bighas of land, break up of which is given as five bighas 19 bswa and 11 biswansi land in Birecha Mau while two to three bighas of land in Bankati. He could not tell as to how much land is in the name of his son. In Nigoha village, he owns about 15 bighas of land and also owns one part of bullocks and sometimes he gets his field ploughed by tractor also. Initially his family was joint as his brothers were doing agricultural work. During the days when this incident happened, there was scarcity of labourers and because of that, some times they had to do the agricultural work on their own. Whenever he got labourers, they worked in his supervision and denied the suggestion that the cultivation work was being done by his labourers and not by him personally.
59. Learned counsel for the appellants had drawn attention to the above statements of this witness and pointed out that this witness is real brother of PW-1. PW-1 had studied up to only class four while this witness has studied up to B.Com, but even then he being an educated person and on the spot, did not lodge the F.I.R., while fire was lodged by PW-1, who is less educated. The F.I.R. also appears to have been got lodged by some persons having legal knowledge. It is also stated from the prosecution side that F.I.R. was lodged at the place of incident. This witness is highly educated then why he would do agricultural work as he is stating, so it appears to be unnatural and he has made false statement only to show his presence on the place of occurrence so as to falsely implicated the accused persons. Although, in rebuttal, learned A.G.A. has argued that this witness has clearly denied the suggestion that the cultivation work was not being done by the labourers, rather he himself used to do the same, therefore his presence on the place of occurrence is natural.
60. He has further stated that he knew Rajjan (PW-2) for last two to three years, although he does not visit his place in village frequently but comes there sometimes only in respect of the business of milk. Earlier, he had never any talk with Rajjan. He was put a question whether a complaint was filed by Raja Ram Kaachhi of village Hirdaypur Gukula under Section 395 and 357 IPC against him and Dharmendra, to which he pleaded ignorance. Further, he was inquired whether in the above case, Raja Ram Kaachhi was beaten by him in court regarding which contempt proceedings were initiated against him and was convicted, he pleaded ignorance. Again a common question was put to him that whether he and Rajjan had given statement from the side of police in a case State Vs. Md. Umar and Fayaz and others, under Section 395 IPC, P.S. Bithoor, to which he stated that he does not know Fazal etc. and hence, he does not remember about this fact. Further it was questioned whether he was sent to jail along with Rajjan for identification of the accused, to which also he pleaded ignorance. He was further put a question that the father of the deceased namely Ikbal and Jagdeesh Mishra of his village were witnesses in the said case from the side of police, to which he also pleaded ignorance. He was again put a question whether in a case of murder which took place in village Yugrajpur, crime no. 186 Vs. Ram Chandra and others P.S. Shivli, any statement was given from the side of police by him, he gave reply in the negative and also denied that there was any other person by his name and parentage in the said village. He further stated that he had filed a case under Section 392 IPC against Ram Sajeevan and Jagmohan of village Sherpur, in which Rajjan was a witness but his statement has not been recorded but he also stated that he does not know whether the name of Rajjan was included in the list of witnesses or not. Further he stated that he had no knowledge whether Bashir Miyan had filed any case under Section 392 IPC against Rajjan and deceased. He further stated that in the house of Manni Nai of his village a dacoity had taken place in the year 1972 in which Jagroop Singh of his village was an accused but he does not know whether cases under Goonda Act and Misa were initiated against Jagroop Singh, or not.
61. He knew Bhola Singh, when he died, he was village Pradhan and after his death, his son Jai Deo Singh had also become village Pradhan. Bhola Singh had filed a case against him under Section 122-B of U.P. Z.A. & L.R. Act and his brothers or not, he does not remember because he used to do service. He also does not recollect whether at the time of Jai Deo becoming Pradhan, Bhola Singh had filed any case in respect of this land or not, which was contested up to the commissioner's court.
62. In respect of above statement of this witness, learned counsel for the appellants stated that all the denials, which have been made by this witness, are disputed on the basis of documentary evidence adduced from the side of defence, therefore, the testimony of this witness is highly suspicious and untrustworthy and his presence on the spot is wholely doubtful, therefore, his statement should be discarded.
63. Further he has stated that he has seen village Jadepur where a minor goes towards that village which comes from the side of Bela road. There is no river situated between Jadepur village and Gauri village, although there are two Nalas in between, which are fairly big in size. Between Bhavsana Rajwaha and Gauri village, there is one Nala which is small in size. Village Besathi, where his land lies from there Gauri village is about six to seven furlong and from his land, the village Gauri is situated about four to five furlong away. He does not recollect whether village Mitanpur is located about two and two and half furlong from the place of incident, although he did not pay attention as to how many fields and the Abadi area lay between these two places.
64. In the field, when he was sprinkling manure on the date of incident, the said field was below Bamba Patri by two and one to one and half feet. The type of bushes which existed near the place of incident, such type of bushes were not near his field nor near the Bamba, although such kind of bushes are found at some places near Bamba. He denied that there was any bush in this field and in front of that Bamba. Near the place of incident, the bushes towards southern side of it are quite high, which would be more in height than the height of a man, while bushes towards north of it would be around two to 1 and 1/2 feet high. The field in which, he was sprinkling manure, from there the place of incident was visible as his field was situated at a distance of about 150-175 paces away from that place. His field is of ten to twelve bishwas and at the time of incident, his field was having about .75 feet of water. There is no specific period for putting manure in the field, because as and when he would get time he used to do that work. To a question that whether he knows that if the manure is sprinkled in the noon time, that would damage the crop, to which he responded that it was wrong to say, moreover on the said date there were little clouds also. Again a question was put to him, whether he knows that in the field of Paddy, the manure is mixed only when there is dryness in the field and not water up to the level of 2.5 - 3 feet, to which, he responded that it was not essential. He had started from the village at about 11-1/4 a.m. and had reached at the field at about 11-1/2 to 11-1/4 and had taken about 10 kg of manure there in sack. He had gone there on foot having the said sack on his head and by that time, he had already used half the manure when the incident had happened. He saw none else sprinkling the manure, although there were some villagers working at a distance of about 300-400 yards. In the night, it had rained hard and because of that, people had started working in their fields. He did not see any person working near his field nor did he see anyone working in the field situated nearby the place of incident. Except the accused persons and the witnesses, he did not see any other passer-by on the Patri of Rajwaha. After the incident, he had taken away manure there and was not in a position to tell as to what happened of that. He has further stated that for getting a report lodged, he had accompanied his brother and after having got it lodged, he came back to the place of incident. He stayed there till 4:45 pm and, thereafter, left for home because the children were weeping and he had consoled them and had taken home. When he returned to the place of incident, he did not find police there. From the police station to the place of occurrence, he had reached around 4:45 pm and after staying there for just about five to seven minutes, he had taken along the children and till then police was not seen there. When he had left the place of incident, his brother Harnam Singh (PW-1) remained there only but he does not recollect, whether there was any other witness or not.
65. He further stated that the police had come to the village in the night about 7:00 to 7:45 p.m. but did not record his statement, rather the same was recorded on 9.9.1980, which was recorded in Nigoha School. He does not know where the report was written at the place of incident. He remained at the place of incident for about 45 minutes and, thereafter, at the instance of his brother, he accompanied him to the P.S. and during this period, where the witnesses were present, he does not recollect. At the time of occurrence, at the place of incident, only Rajjan was having bicycle. When he returned from the P.S., he found motor-cycle and the dead body at the same place where they had left them. Motor-cycle had blood on it and the place where dead body was lying, water had blood in it. He further stated that it is not correct to say that the deceased had taken out motor-bicycle on his own because he was given some support by one Harnam Singh as well and he also stated that it is not so that Dharmendra had taken out the motor-cycle from the bad patch driving the same. He was put a question as to whether he has stated to the Investigating Officer that his nephew Dharmendra Singh had dismounted him from the motor-bicycle and had taken out the same out of bad patch single handedly, to which he responded that he had also stated apart from the above that Harnam Singh had given little support in that and if the same was not mentioned in his statement, he could not tell its reason. He had not stated to I.O. that the motor-cycle was taken out having been dragged. He had also stated to the I.O. that he (PW-3) had also proceeded towards them believing that they might not be succeeding in taking out the motor-cycle out of the bad patch, but if the same was not recorded by I.O. in his statement, he could not tell its reason.
66. He had stated to the I.O. that Dharmendra Singh had told him many days ago that he (P.W.3) should get the bail of Jai Deo cancelled, which was stated by him on the earlier date. He further stated that Dharmendra had told him for getting the bail cancelled 15 to 20 days ago and not many days ago which statement was given absolutely correct and by saying 15 to 20 days, he meant many days.
67. 'Nali' was existing towards eastern side of the eastern 'medh' of the field of Raj Kumar, which was cut for about 2-3 paces. He had given statement to the I.O. that as soon as his nephew Dharmendra Singh reached near field of Ram Kumar Lodh at about 12 noon, there, out of the bushes situated near Rajwaha, Ravendra Singh came out and all surrounded his nephew which was correct statement. Again he was put a question that he had given statement before court that where the 'patri' was broken, from there at a distance of about 72-74 paces, Dharmendra Singh was going on a motor-cycle, then from out of bushes situated on Bhavsana Rajwaha, Jai Deo Singh and others came out and all the accused had surrounded Dharmendra, to which he stated in affirmative and further stated that the said statement was correct. Further it was asked, the place where he was surrounded and the place where he was murdered, how far is that place located from the western 'medh' of the field of Ram Kumar Lodh. He responded by saying that it was 20-22 paces towards east. On either side out of the bushes, the accused had made fire. Again he was put a question when Dharmendra was surrounded by accused persons, what would have been the distance between Dharmendra and accused, he responded that it must have been 5 to 7 paces and some of them went towards North of them some towards West and some towards South. Again he was put a question, after getting hit by first fire whether the motor-cycle of Dharmendra was got halted, he responded by saying that 6 to 7 fires in a row were made and the motor-cycle got wavered and the deceased was bounced up in the air and fell down towards north and, thereafter, the engine of the said motor-cycle got switched off. In the entire happening hardly 3 to 4 minutes must have been consumed including the time taken in throwing the dead body.
68. He further stated that he had not seen anybody assaulting by 'lathi'. He knew the son-in-law of Laova Singh i.e. Naresh Singh, who is accused in this case because he used to live near him, he does not know the other son-in-law of Laova Singh. He does not know whether the name of other son-in-law of Lauwa Singh was Naresh Singh or not but he had told the I.O. that Naresh Singh was resident of Arra, P.S. Biduna. He had denied the suggestion that he had not seen the occurrence and was making false statement and on the date of incident, the place of incident being near the river, was in the grip of floods. He further stated that he had stated before I.O. that Dharmendra Singh was lifted by accused Shailendra, Narendra, Rajjan Lal and Naresh and also dragged, if the same has not been written, he could not tell its reason.
69. He further stated that he had taken name of accused Narendra Singh among those who had lifted the dead body. He further stated that the manure, he had left behind in the field, he had not shown to the I.O. and the same was kept on the northern patri of his field which was adjacent to the Bamba. To the north of his field, was barren land and at a distance of about 100 paces thereafter in the north, the other fields begin.
70. He has denied that he has taken name of Shailendra, Narendra and Rajjan Lal because of enmity and he never did work of agriculture. He was put a question as to whether Bawan Bhagwan was practicing advocate in Kanpur District Court to which, he responded that he used to see him often in the village but in last two to four days, he came to know that he was practicing at Kanpur but he did not know that he was practicing since last ten years, he was living in village and used to do agricultural work and he stated it to be wrong that on the date and time of incident, he was practicing law in Kanpur.
71. P.W.4, Dr. J.S. Rathore has conducted the post-mortem of the deceased on 9.09.1980 at about 12:30 p.m., the dead body of which was identified by Constable Sahab Singh and Constable Shiv Ram and found following ante-mortem injuries on the dead body:
(i) Lacerated gun shot wound of entry 3 cm x 2 cm on the middle of forehead with blackening & tatooing present along with three wounds of exit in an area of 8 cm. x 4 cm. on the left side of neck, size 1 cm.x 1 cm.
(ii) Multiple pellet wound in an area of 30 cm x 8 cm on the inner aspect of left upper arm and lower arm 18 cm below elbow size ¼ cm x ¼ cm.
(iii) Multiple pellet wound in an area of 18 cm. x 14 cm. on the abdominal wall anterior aspect around the umbilicus size ¼ x ¼.
(iv) Multiple pellet wound in an area of 13 cm x 7 cm on the front of right thigh size ¼ cm x ¼ extending up to knee.
(v) Multiple pellet wound in an area of 17 cm x 6 cm left thigh front 6 cm. above left knee joint size ¼ cm x ¼ cm.
(vi) Abraded contusion 15 cm x 3 cm on the front of right leg upper part.
(vii) Skin abrasion 8 cm x 4 cm front of right leg.
(viii) Multiple pellet wound in an area of 42 cm x 31 cm on the whole of back both sides chest and upper abdomen size ¼ cm x ¼ cm.
72. He further stated that he found the lacerated scalp under injury no. 1 and there were multiple fractures on both parietal and occipital bones and also there are multiple fractures on skull. Clotted blood weighing 4 ozs. was found in the skull and membrane and brain were ruptured; two wadding pieces were found in brain matter. In thorax wall, multiple pallets were found embedded in soft tissues; from chest wall, 9 pallets were extracted; pleura was ruptured; both lungs were fractured through and through; three pallets were found in right lung and two pallets in left lung; pericardium was ruptured; two pallets were also recovered from heart; 11 pallets were recovered from vertibra column; abdomen had multiple ruptures; 16 pallets were recovered from the abdominal wall. Peritonium was ruptured through and through; nine pallets were recovered from it. Oesphagus had multiple ruptures; stomach had also multiple ruptures. Semi digested food weighing 6 ozs. was present with clotted blood. Mucus membrane was ruptured; 14 pellets were recovered from the stomach; small intestine was empty and six pallets were recovered from it. Large intestine was half full and 8 pallets were recovered from it. Liver had multiple fractures through and through and four pallets were recovered; spleen was ruptured through and though and three pallets were recovered; from skull, three big pallets were found out of which one was found in occipital region and two at the base; two wadding pieces, three big pallets and 87 small pallets were recovered from the dead body and were sealed and handed over to the constable along with one under-wear, banyan, one shirt and jeans. The deceased had been killed about one day before and and cause of death was shock and hemorrhage as a result of above-mentioned injuries. He further stated that except injury nos. 6 and 7, other injuries were of fire arms while the injury nos. 6 and 7 were caused by blunt object and the deceased might have died on 8.09.1980 at 12 noon. The post-mortem report, Exhibit Ka 2 has been proved by him.
73. In cross-examination, this witness has stated that there could be variation in death of about six hours on either side. The injury Nos. 6 and 7 were ante-mortem. There is difference between ante-mortem abrasion and contusion and post-mortem abrasion and contusion. To the question put to him as to whether injury nos. 6 and 7 could have been caused to the deceased by falling on wet-land, he gave reply in negative and, thereafter, he was again put a question whether the said injuries could have been caused to by falling from the motor-cycle to which he responded in affirmative. He was again put a question as to whether after receiving injuries in chest cavity and abdominal cavity which have been found on the dead body of the deceased, could the deceased be able to bounce off the motor-cycle to which he responded that after receiving the said injuries, the deceased could have fallen but whether he would fall after bouncing off or not, he could not tell. With respect to injury no. 6, he explained that the same was possible to be received by blunt object and also by friction but there would be more probability of the said injury being caused by blunt object. With respect to injury no. 7 when he was asked whether the same could be caused by dragging the deceased, he responded that there was small possibility of his having received the said injury on being dragged because in that condition, the deceased would have received other injuries on his person.
74. He further stated that he did not find any indication that the dead body of the deceased kept lying in water for long and further stated it was not essential that if the dead body remains in water for four to five hours, in chest and abdominal cavity, water would be found, this would happen because in chest and abdominal cavity, there are small pores but because of the obstruction of muscles, water would be obstructed from getting into the body. Both the lungs and esophagus might have ruptured because of injury no. 8. The injuries received in liver spleen, stomach, in both intestines and gall-bladder might have been caused by injury Nos. 3 and 8. The injury No. 8 might have been caused from behind, if the deceased was upon the motor-cycle. Again a question was put to him as to how injury no. 2 could have been received by the deceased, if he was driving the motor-cycle, he responded that it would have been caused from the back side. With respect to injury no. 3, it was questioned as to from which direction the same would have been caused, he replied that it must have been caused from front. He also stated that in 1/3 of the upper part of the deceased and in the lateral part of thigh, he did not find any injury nor did he find injury on the right palm and on question as to whether injury nos. 4 and 5 could have been caused if the deceased was riding the motor-cycle to which he responded in negative. With respect to injury nos. 4 and 5, he was put a question as to whether this could have been received by him in case, he was standing straight. He replied that these injuries were possible to be received only if he was lying on the ground. Thereafter, he was again questioned whether the said injury might have been received when he was lying on the ground, he responded in affirmative. He has further stated that injury no.1 might have been caused from distance of about three feet which was further explained that the distance must have been not more than three feet and not less than one feet while rest of the injuries could have been caused from distance of more than six feet, thereafter, the Court itself put a question as to whether injury no. 8 could have been caused by single fire and injury nos. 2, 3, 4 and 5 could also have been caused by one fire each, to this he replied that injury nos. 4 and 5 might have been caused also by single fire. Injury no. 2 was stated by him to have been caused from the left side.
75. After having cited the above statement of this witness, learned counsel for the appellants has argued that injury no.1 shows that it must have been caused from close range as it was hit in fore-head; injury no. 2 might have been caused from distance; injury no.3 could have been caused by stray pallets but he has mainly emphasized on the point with respect to injury no. 1 as to who had caused that injury despite the prosecution version that there were three eye-witness of the occurrence. He again argued that none of the injury corresponds to oral version given by the witness. Injury nos. 2 and 8 must have been caused by one fire arm shot. It is the prosecution case that the deceased fell down and, thereafter again he was shot from the front. It was also pointed out that not a single thing has been recovered from the place of incident though entire brain material would have spread on the road if these kind of injuries which are stated to have been received by the deceased, were caused. Further it was argued that the place of occurrence has been varied by the prosecution side because on the one hand, it was stated that the assault was made when he was on the patri while the dead body is being found in the field which was away from the patri. Thereafter he again argued that this was a case of maximum three shots and not more than that; large number of these injuries might have been caused by the same weapon and could be possible that one man only might have caused these injuries and the worst case could be that there might have been two persons who caused him these injuries. Simultaneously it was also argued that all the eye-witnesses are interested witnesses who are closely related and the third witness is also closely known person to the complainant side and besides that deceased had criminal antecedents and it was quite possible that some unknown persons might have killed him and the incident did not happen in the manner which has been alleged by the eye-witness. It was also argued that the accused were stated to have come out of the bushes from the sides of patri and started firing on both sides but if that would be true, the kind of injuries which are found on the deceased, could not have been caused.
76. In rebuttal, the learned A.G.A. and counsel for the complainant side, Sri Rajiv Lochan Shukla has argued that who would be right person to decide as to whether it was one shot or multiple shot. On record, only on the basis of suggestion given from the side of accused, it could not be determined that these injuries were caused by one shot or multiple shots because for this, expert opinion was required. It was argued on behalf of accused that the injury no.1 was a contact shot but that gets belied because in the said injury, charring has been found which is possible only when there is little gap between object and the weapon by which the said injuries were caused, hence, the injury no.1 could not have been treated to be a contact shot. He also argued that judicial notice could be taken by the Court regarding diameters of the injuries. There is no evidence on record that only one gun was used in commission of this offence, therefore, the injuries found to have been caused by pallets, could not be determining factor in respect of whether one fire arm had been used or multiple fire-arms. The case which has been set up in the F.I.R. is a plausible one and attention was drawn of the Court towards the replies given by the doctor for which he stated with respect to injury Nos. 1 and 3 having been caused from approximately distance of about 1 to 3 feet while with respect to injury no. 2, 4, 5 and 8, he stated that they could have been received by one fire each and argued that this would suggest that it is admission on the part of accused side that two fire shots were made at the least, because reliance was placed by them upon the said replies given by the said witness. It was also pointed out that no suggestion was given from the side of accused that these injuries were caused by single shot. Lastly in this regard, it is argued that when the fire arms are being used for assaulting a person involving many accused, it is difficult to trace as to which particular accused was making fire on which side which hit the deceased on which side. It is not natural that such detailed description would be given by any witness, therefore, the line of argument taken by the defence appears only to misguide the court. In this regard it is argued that in-fact, the occurrence did happen which accused only have caused, it is only these accused who have caused said injuries to the deceased which is witnessed by the three eye-witnesses who have been examined from the side of prosecution.
77. P.W.8, Constable Sahab Singh has stated that on 8.09.1980 at about 6:00 a.m., he had taken the dead body of the deceased in sealed condition along with necessary documents with his companion constable Shiv Ram and for the purposes of post-mortem, handed them over to the doctor in sealed condition on 9.9.1980 at 12:30 p.m. He is formal witness, hence nothing much is required to be discussed about his statement. P.W.9 is clerk of office of C.M.O., Kanpur who has simply stated that he put sealed bundles in wooden box and sealed the box with special Medico Legal Seal in presence of the of the C.M.O., Kanpur and dispatched the said box on that very day to the Chemical Examiner, Agra, U.P. He is also a formal witness.
78. P.W. 10, Constable 1390, Sri Kant has stated that on 1.10.1981, he had brought four sealed bundles related to section 302 I.P.C. from P.S. Shivli to U.H.B. Hospital and after necessary action, the said material was taken to chemical examiner; he is also formal witness.
79. Learned counsel for the appellants has given main thrust to the argument on the point that the deceased has died in mysterious circumstances in some other manner not as stated by the prosecution and that witnesses P.W.1 and P.W.3 are real brothers who are uncles of the deceased and, therefore, they are highly interested witnesses who have deposed deliberately against the accused, in fact, they were not present on the spot. With respect to P.W.3, it is argued that he is also closely known to the prosecution side and was a chance witness who was shown to be present in his field administrating manure to his crop when, he states that, he saw the deceased coming on a motor-cycle and was assaulted in the manner by the accused as has been stated by the prosecution, therefore, his testimony was also discardable.
80. It was next argued that place of incident is not proved by the prosecution side because it is stated that the incident happened on the patri of 'Rajwaha' but the dead body was found at a distance in the field of Ram Kumar Lodh where there was a lot of water present. It was also argued that the dead body of the deceased lay in the said field for about five hours before it was taken by police in custody and despite this, there was no presence of water found in the body of the deceased in post-mortem report which raises doubt about the manner in which the incident happened. It was further argued that P.W.1 who is father of the deceased and stated initially that the deceased was on motor-cycle and when the broken patch of patri was reached by them, he got down so that the deceased could take out his motor-cycle through the bad patch, the said story has been developed by the prosecution only to meet the situation that no injury was found to have been caused to P.W.1 and also to make him an eye-witness of the incident who subsequently stated to be following the deceased from behind and because of their being certain distance between the deceased and P.W.1, the accused persons have stated to have fired upon the deceased while P.W.1 was left behind to witness the said occurrence. The normal course would be that both of them would be sitting together in the motor-cycle and had P.W.1 been on the spot in that situation, he also would have received fire arm injuries. It was also argued that there are various discrepancies in the statement of three eye witness examined from the side of prosecution with respect to the manner in which the incident took place and the dead body having been thrown in the field of Ram Kumar Lodh, which would indicate that none of these witnesses were actually present on the spot. It is also argued that there was enmity of the deceased with various persons and he was also involved in various cases because of which it was quite possible that he could have been killed by some other person because of enmity.
81. From the side of learned A.G.A., it was argued that there was sufficient motive for the accused persons to kill the deceased because the deceased was a witness in case of Section 409 I.P.C. against accused Jai Deo Singh and Jai Deo Singh had told him not to give any statement against him in that case but that has been declined by him and besides that Narendra Sigh and Shailendra Singh also wanted to forcibly occupy his land which was in the name of the deceased and were also in possession thereof. Rest of the accused were friends of these accused appellants. In pursuance of this motive, this occurrence has taken place on the alleged date and time which is given effect by accused appellants and the same has been witnessed by P.W.1 and P.W.3 who are real uncles of the deceased and P.W.2 who has also seen the occurrence as he was present on the spot at that time. In their testimony nothing has come out which would make their testimony untrustworthy. Whatever discrepancy are pointed out from the side of prosecution are ignorable because they do not go to the root of the incident and it was also argued that simply because P.W. Nos. 1 and 3 were related witnesses, it could not be said that they were not stating true facts and their testimony be discarded because they were related witnesses. All that is required is that scrutiny of their statements should be made minutely and meticulously ignoring the discrepancies which are not relevant and if their testimonies are assessed on the touch stone of principles of sifting grain from the chaff, it would clearly prove that they have proved the prosecution case to the hilt against the accused appellants and their testimonies are also corroborated by the medical evidence on record, therefore, the trial court's judgement needs to be upheld and appeal deserves to be dismissed.
82. As per FIR, the prosecution version is that the deceased along with PW1 who is uncle of the deceased was going on motorcycle on the date of incident at about 12 noon as soon as they reached near the field of Ram Kumar Lodh of Mitanpur, they found the patri which was by the side of Bhausana Rajwaha was broken because of which the PW1 was dismounted from motorcycle so that the deceased could take out his motorcycle through the bad patch and when the deceased moved further ahead on the said patri and reached near the place shown by the Investigating Officer in the site plan as 'XA', the accused-appellants, who were hiding behind the bushes on either side of the said patri surrounded the deceased and started making fires upon him, as a result of which the deceased died and his body was thrown by them in the paddy field of Ram Kumar Lodha which was in the north side of the said patri at a distance of about 10 yards and the accused fled away towards north western direction. The Investigating Officer in the site plan has shown the broken patri by 'XI' where the PW1 had got down from the motorcycle and by 'XA' is shown the place where the motorcycle was found lying and by XB is shown the place where dead body of the deceased was lying in the field of Ram Kumar Lodh and the distance between XA and XB is shown 10 yards. By XC is shown the place from where plain soil and blood stained soil were collected. By XD is shown the place from where PW1 Harnam Singh had seen the incident; by 'XE' is shown the place from where witnesses Chandar Bhan Singh and Sarnam Singh had seen the deceased being assaulted by the accused-appellants, but these two witnesses have not been examined from the side of prosecution. By 'XF' is shown the place from where witness Nagendra Bahadur Singh, PW3 who is uncle of the deceased had seen the accused-appellants assaulting the deceased, who was prior to that in his field administering manure and had reached there when he saw that the deceased and PW1 were finding difficult to take out their motorcycle from bad patch, in order to assist them. By 'XG' is shown the place from where witness Bal Krishna (not examined) and Rajjan Singh (PW2) had seen the accused-appellants assaulting the deceased. By arrow is shown the direction in which the accused-appellants had fled after having murdered the deceased Dharmendra which is in north western direction towards the filed of Shambhu Mishra. By 'XH' is shown the field of PW3 Nagendra Bahadur Singh where he was sprinkling manure in his field; by 'XI' is shown the place where the deceased had dismounted PW1 as he had found the patri broken. By dots is shown the place where signs of dragging were found; by 'XJ' is shown the place near the dead body where shoes and Tahmat were found lying. By 'XK' is shown the place near the motorcycle where briefcase was found lying.
83. We would like to first analyze as to whether on the basis of eye witness account, the manner in which the incident is said to have taken place stands proved or not. PW1 in this regard has stated that on 8.9.1980 when he was going with the deceased on motorcycle sitting behind him and reached near the field of Ram Kumar Lodh of Mitanpur village on the patri of Rajwaha, he found the said patri broken because of which he got down from the motorcycle while the deceased also after getting down from it, tried to drag it ahead and thereafter again having sat on that started to proceed ahead slowly while he himself kept moving on foot. When the deceased reached near the field of Ram Kumar Lodh at about 12 noon, accused Jai Deo Singh, Ravindra Singh, Shailendra Singh, Narendra Singh, Naresh Singh, Rajjan Lal and Bawan Bhagwan Singh came out from the bushes and surrounded the deceased and on exhortation of Jai Deo Singh that they would not leave the deceased alive and further all of them exhorted to kill the deceased, pursuant to that Jai Deo Singh, Bawan Bhagwan Singh and Ravindra Singh who had guns in their hands and Naresh Singh who had pistol while rest of the three who had lathis, started assaulting the deceased with their respective weapons, as a result of which, Dharmendra Singh had fallen down and thereafter Shailendra Singh, Narenedra Singh, Rajjan Lal and Naresh Singh dragged the deceased Dharmendra Singh and had thrown his dead body in the field of Ram Kumar Lodh at a distance of 8-10 yards towards north and fled towards west in the direction of Pratappur village. He had seen this occurrence from a distance of about 30-32 paces away towards east of the place of incident and raised alarm. From a distance of about 8-10 paces Chandra Bhan Singh and Sarnam, had seen the occurrence and from the western side Rajjan Singh PW2 and Bal Krishna also reached there. His brother Nagendra Bahadur Singh, PW3 who was about 100 paces away from the place of incident in his paddy field also reached there and all of them had seen the incident. It is apparent from the above statement that the same is in consonance with the site plan mentioned above, however, the Investigating Officer has not recorded in the site plan the distance from where these witness saw the occurrence.
84. It was vehemently argued by the learned counsel for the appellants that this witness was, in fact, not present on the spot because there was no reason why he would allow the deceased to proceed ahead on his motorcycle and would leave himself behind only to be a witness of this occurrence although both of them were stated to be going together on the motorcycle. It was concocted by the prosecution that because of patri being broken, the deceased dismounted the PW1 and thereafter did not allow him to sit again back on the motorcycle and PW1 allowed the deceased to proceed ahead on motorcycle individually only to create a situation in which PW1 would be a witness of this incident. Had he been traveling on the motorcycle with the deceased, he would certainly had received injuries. Moreover, it was also argued that had he been so closed behind the deceased even he would not be spared by the accused-appellants and would have been killed. It is not made clear by prosecution as to where he was hiding to witness this incident.
85. Learned A.G.A. vehemently rebutted that when such occurrence happen in which large number of accused armed with deadly weapons are assaulting the deceased in prosecution of their common object to murder the deceased, the witness of the said occurrence would naturally try to conceal himself somewhere or the other and these things cannot be visualized as to how the witness PW1 might have defended himself. Only because, his presence on the spot was not made clear by this witness, would not make his testimony impeachable.
86. We are in agreement with the argument of the learned A.G.A. and find that the details which are given by this witness of having seen the occurrence are totally in consonance with the site plan and according to him, he had seen the incident from a distance of about 30-32 paces from behind the deceased. We do not find any infirmity in his statement despite the fact that elaborate cross-examination has been made from the side of the accused. His presence on the spot seems to be believable and simply because he did not accompany the deceased soon after he negotiated the bad patch of the patri which was broken, does not mean that he was not present on the spot and was trying only to make himself an witness of this occurrence.
87. The PW3 who is also an eye witness and uncle of the deceased had stated that on the date of incident at about 12 noon he was sprinkling manure to his field and then he saw that on the patri of Bhausana Rajwaha a motorcycle was coming which had passed by the side of his field and when it reached near the field of Ram Kumar Lodh, the patri was found broken and on the said motorcycle Harnam Singh and deceased Dharmendra Singh were going and Harnam Singh was dismounted from the said motorcycle while deceased Dharmendra Singh tried to pull out his motorcycle through broken patri while Harnam Singh gave little help in that regard. PW3 also proceeded towards them thinking that they might not be able to take out their motorcycle. When he reached about the place from where the said broken patri was left about 72-74 paces away, he saw that accused Jai Deo Singh, Ravindra Singh, Bawan Bhagwan Singh and son-in-law of Lawa Singh of his village Naresh Singh, Shailendra Singh, Narendra Singh and Rajjan Lal sprung out of the bushes which were on Bhausana Rajwaha and Jai Deo Singh exhorted that the deceased would not be spared alive and thereafter all the accused surrounded the deceased Dharmendra Singh and thereafter all the accused shouted that he should be done to death and pursuant to that Jai Deo Singh, Ravindra Singh, Bawan Bhagwan Singh armed with guns and Naresh Singh armed with pistol and rest of them armed with lathis, started assaulting the deceased with their respective weapons by which the deceased after getting hit bounced off the motorcycle and had fallen down towards north. After his having fallen, one fire was made by accused and thereafter Shailendra Singh, Narendra Singh, Rajjan Lal and Naresh Singh dragged the dead body of the deceased Dharmendra Singh and had thrown him in the paddy field of Ram Kumar Lodh towards north. His nephew Dharmendra Singh had died. He further stated that when the accused had surrounded Dharmendra Singh, he had shouted and on his shout Harnam Singh (PW1), Sarnam Singh and Chandra Bhan Singh came from east and western side. Rajjan Singhh and Bal Kishan of Kharakpur had also seen the occurrence. When he and the witnesses challenged the accused, they fled towards Partappur in the western direction and they could not catch the accused because they were unarmed. He identified all the accused in court. A long cross-examination has been made by the defence side but nothing much could be found so as to make his testimony untrustworthy. Whatever, he has stated above, has been found to be totally in accordance with the site plan which has been made by the Investigating Officer. His presence on the spot is found proved because otherwise he could not have given graphic description of the occurrence that he had seen, although he is related witness but that would not make any dent on his testimony as after close scrutiny of his statement, nothing much is found to disbelieve him.
88. Rajjan Singh who is PW3 of this occurrence has stated that after having left his sister in her matrimonial home, he was returning to his village and when he reached near Bhausana Rajwaha at about 12 noon, he saw that Dharmendra Singh deceased who was on a motorcycle coming from the eastern side reached near the filed of Ram Kumar Lodh, right then the accused Bawan Bhagwan Singh, Rajjan Lal, Ravindra Singh, Jai Deo Singh, Narendra Singh, Shailendra Singh and son-in-law of Lawa Singh namely Naresh Singh who were present in court, came out from the bushes which were on the either side of the patri and ''gheroued'Dharmendra Singh and Jai Deo Singh exhorted that he should not be left alive and on this, all the accused shouted that today he would be slain to death and the accused who were armed with guns and pistol in their hands started making fire upon the deceased. Naresh Singh was having pistol while Ravindra Singh, Jai Deo Singh and Bawan Bhagwan Singh were armed with guns and RajjanLal, Narendra Singh and Shailendra were having lathi in their hands. After getting hit by fire arm injuries, the deceased Dharmendra Singh bounced off the motorcycle and fell down and thereafter one more fire was made upon him. Thereafter, Naresh Singh, Rajjan Lal, Narendra Singh and Shailendra Singh lifted him and had thrown in the field of paddy holding his hands and legs. At that time Sarnam Singh and Chandra Bhan Singh, Harnam Singh (PW1), Nagendra Bahadur Singh (PW3) were also coming there and they had also seen the occurrence. All of them had shouted when occurrence happened and the accused fled towards Partappur. His testimony is also found to be in accordance with the site plan because his presence has been shown in the site plan at the place XG towards west of the place where the deceased was assaulted by the accused-appellants by their respective weapons.
89. Learned counsel for the appellant has argued that he is a chance witness who simply stated in favour of the prosecution to falsely implicate them, there was no occasion for him to be present there.
90. Long cross-examination has been made by this witness but nothing such has emerged out of it which would make his testimony doubtful. We do not find any substance in the argument that he was a chance witness, hence he cannot be present there. He has specifically stated that he was returning after leaving her sister in her matrimonial home and therefore such circumstance that he was returning through that passage, may not be disbelieved.
91. Testimony of PW4 Dr. J.S. Rathore has found as many as eight injuries on the body of the deceased which have been mentioned-above and all the injuries except injury nos. 6 and 7 are found of fire arms while these two injuries are found to have been caused by hard and blunt object. It is the prosecution case that three accused namely Shailendra Singh, Narendra Singh and Rajjan Lal were armed with lathis while remaining accused were armed with fire-arm weapons, therefore, the injuries which are found on the body of the deceased stand corroborated by the statement of the abovementioned witness and it could be possible that injury nos. 6 and 7 might have been caused by lathis which were being wielded by the above named three accused.
92. Much argument was made by the learned counsel for the appellants that it has come in evidence that one last shot was made by accused on the forehead when the deceased had fallen down but who had actually made that fire, was not stated by any eye witness and that would make their presence unbelievable because had they been present at the spot, they would certainly have pointed out the name of the specific accused who had caused injury. It was also argued that the injuries which are found on the person of the deceased were caused by either one shot or two shots at the most but we do not want to go into this aspect of the matter whether the injuries were caused by one fire shot or two fire shots because fire arms injuries are found six in number and large number of pallet wounds have also been found, therefore, in our opinion it would be difficult to make out as to how many shots were made by the accused by which these injuries were caused. Assailant who were having fire arms were four in number, out of whom one Bawan Bhagwan has been given benefit of doubt by the learned trial court on account of plea of alibi because it is held that on the date and time of the incident he was in Kanpur as he was practicing there as an advocate. Appeal filed by the State against the acquittal of the said accused has also been dismissed. Therefore, we have Criminal Appeal pending before us only of six accused named above. Therefore, three accused are found to have held fire-arm in their hands and caused injuries to the deceased which are six in number. It could not be disbelieved that these injuries might have been caused by three accused namely Ravindra Singh, Jai Deo Singh and Naresh Singh. We also do not find any substance in the argument that the prosecution has failed to prove as to who made last shot at the forehead of the deceased when he had fallen down, it would not create any doubt in our mind that it was common object of all the accused appellants in prosecution of which after being armed with deadly & ordinary weapons; they caused injuries to the deceased which resulted in his death and thereafter together they had thrown the dead body in the filed of Ram Kumar Lodh in order to remove the evidence of murder having been committed.
93. It would also be pertinent to take up the point of motive for committing this offence. The version of the prosecution in this regard is that in FIR itself it was clearly stated by the informant that Narendra Singh, Shailendra Singh wanted to forcibly occupy the land which was being tilled by the PW1 and deceased Dharmendra and was in their possession because they had got the said land mutated after its sale having been made by Surjan Singh who was issueless in favour of Shailendra Singh and Narendra Singh. At the time of mutation proceedings, the deceased Dharmendra Singh had raised objection and due to this enmity this occurrence was given effect to. Apart from it, other enmity has also been stated in the FIR that in a case under section 409 IPC against the accused Jai Deo Singh, the deceased Dharmendra Singh was a witness who had been spoken by the said accused not to depose against him but the same was refused and hence both these enmities were sufficient to give effect to this occurrence. It is also on record that the said enmity has been proved in testimony by PW1 by clearly stating in examination in chief that Surjan Singh was uncle of his father who was issueless and had sold his land in favour of Shailendra Singh and Narendra Singh and in mutation proceedings their names had been mutated, in this proceedings deceased Dharmendra Singh had filed his objection. Khata of Surjan Singh, Shailendra Singh and Narendra Singh was common and at the time of mutation proceedings on the land of Surjan Singh, PW1 and deceased Dharmendra Singh were ploughing the land and even after the mutation proceedings, they continued to plough the said land. Shailendra Singh and Narendra Singh wanted that they should leave the land of Surjan Singh in favour of them but they could not occupy the said land because Dharmenedra Singh was ploughing it since long because of this there was deep enmity between two sides. He has also proved the enmity between the accused Jai Deo Singh and deceased Dharmendra Singh on account of deceased being a witness in a case under section 409 IPC against Jai Deo Singh. We find that the said animosity between the two sides could be the reason for committing this offence. Moreover, we would like to clarify the legal position in this regard that in a case where there is a direct evidence of eye witness, no motive is required to be proved. But in the present case, we find that not only eye witnesses have proved the occurrence rather motive has also been proved because of that motive, this occurrence could easily have been given effect to.
94. One more point which was repeatedly argued by the learned counsel for the appellants was that the body of the deceased was stated to have been thrown in a field of Ram Kumar Lodh which was having water in it, therefore, it was argued that the dead body of the deceased was in water, in the postmortem report, some water should have been found in the dead body of the deceased which is not the case in the present matter, therefore, it was stated that the postmortem report would not corroborate the incident. We are not in agreement with the said argument because the doctor has clearly stated that it is not essential that if the dead body was kept long for 4-5 hours in water, the water would have been found in chest and abdominal cavity. We are also of the view that no such evidence has come on record which indicates that there was so much water in the said field that the dead body was wholly submerged in the same, hence there is nothing abnormal in not finding any water in the body of the deceased in postmortem report. This circumstance does not belie the incident which is distinctly proved by the eye witnesses that the deceased was assaulted by the appellants in prosecution of their common object to murder him and ultimately he was killed and his body was thrown in the file of Ram Kumar Lodh.
95. In view of the aforesaid, we are of the view that there is no infirmity in the judgment and order of the trial court dated 30.04.1983 holding the accused-appellants namely Ravindra Singh, Jai Deo Singh, Naresh Singh, Shailendra Singh, Narendra Singh and Rajjan Lal guilty under the afore-mentioned offences. The appeal deserves to be dismissed and is accordingly dismissed.
96. Since the accused-appellants are on bail, their bail bonds are cancelled. Let the accused-appellants be taken into custody and they shall serve the sentence.
97. Let lower court record be sent back to the trial court along with a copy of this judgment with a direction that it shall ensure that the accused-appellants are taken into custody and serve out the sentence in accordance with law.
(Dinesh Kumar Singh-I,J.) (Ramesh Sinha,J.) Order Date:- 28.02.2019 A.U./A. Mandhani/A.P. Pandey