Allahabad High Court
Bahadur vs State Of U.P. on 14 March, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. 1
Judgment reserved on 13.02.2019.
Judgment delivered on 14.03.2019.
Criminal Appeal No. 2485 of 1983.
Bahadur vs. State of U.P.
Connected with
Criminal Appeal No. 2484 of 1983.
Lakhan Singh & others vs. State of U.P.
Hon'ble Ramesh Sinha, J.
Hon'ble Dinesh Kumar Singh-I, J.
(Delivered by Hon'ble Ramesh Sinha, J.)
1. Both the above mentioned criminal appeals arise out of same judgment and order of the trial court hence, the same are being heard and decided by this Court by this common judgement and order.
2. Both the criminal appeals have been preferred against the judgment and order dated 10.10.1983 passed by Additional Sessions Judge/Special Judge, E.C. Act, Etawah in S.T. No. 111 of 1980 convicting the appellant Bahadur Singh under sections 302 I.P.C. and 148 I.P.C. and sentencing him for imprisonment of life and two years R.I. respectively. Both the sentences were ordered to run concurrently. By the same judgment and order appellants Lakhan Singh, Kaptan Singh, Balram Singh, Mathura Prasad, Shyam Singh and Phool Singh have been convicted under sections 302/149 I.P.C. and 147 I.P.C. and sentenced each of them to imprisonment of life and one year R.I. respectively. Both the sentences were ordered to run concurrently.
3. Criminal appeal no. 2484 of 1983 has been filed by six appellants out of which appellant no. 2 Kaptan Singh son of Devideen and appellant no. 4 Mathura Prasad son of Banslal died during the pendency of appeal. The said appeal on their behalf has already been ordered to be abated by Co-ordinate Bench of this Court vide order dated 13.7.2016 and the said appeal survives with respect to appellant nos. 1 Lakhan Singh, appellant no. 3 Balram, appellant no. 5 Phool Singh and appellant no. 6 Shyam Singh only, hence the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellants along with the connected appeal no. 2485 of 1983 filed on behalf of appellant Bahadur Singh, who is also an accused in the present case.
4. The present F.I.R. was lodged through telegram by the informant Roshan Lal son of Shambhu Dayal alleging that on 24.10.1979 at about 9 a.m., the deceased Prem Autar, who was his nephew, was going to his field from his house and when he reached the crossing, the accused persons, namely Lakhan Singh, Kaptan Singh, Balram Singh sons of Devi Deen, Mathura Prasad son of Banslal, who is the brother of Devi Deen, Shyam Singh, Phool Singh sons of Hari Ram and Bahadur Singh son of Jageshwar Dayal out of whom except Bahadur Singh, who was armed with knife all the accused persons were armed with lathi, danda and dharia, surrounded him and started assaulting him with their respective weapon. On the alarm raised by the deceased, the informant-Roshan Lal, Ram Sewak, Ram Gopal, Ram Autar and some villagers reached at the place of occurrence. Accused Bahadur Singh with an intention to kill his nephew Prem Autar stabbed in his abdomen by knife due to which his intestine came out. The informant along with other persons took his nephew to district hospital Etawah for medical examination. He further alleged that the accused persons because of enmity have committed the incident. He prayed that necessary action be taken against the accused persons.
5. The medical examination of Prem Autar while he was injured was conducted at district hospital Etawah by Dr. C.L. Katiyar-P.W. 1 at 3:45 p.m., who found following injuries on his person:-
"1. Lacerated wound 2.5 cms. x 0.5 cm. x scalp deep on the left side of head over the top 11 cms. above the left ear. Bleeding is present. oblique.
2. Lacerated wound 2.5 cms. x 2 cms. x scalp deep 2.5 cms. on the top of head. 2.5 cms. x 2 cm. back from injury no. 1. Bleeding is present. Oblique.
3. Lacerated wound 3 cms. x 0.5 cm. x scalp deep on the top of the head. 0.5 cm. behind injury no. 2 transversely.
4. Lacerated wound 3 cms. x 0.5 cm. x scalp deep on the back of the head. oblique. Bleeding is present 0.5 cms. behind the injury no. 3.
5. Lacerated wound 4 cms. x 0.5 cm. x scalp deep on the back of the head. Right side, 10 cm. above the right ear. Bleeding is present. oblique.
6. Lacerated wound 2 cms. x 0.5 cm. x scalp deep on the back of left forearm, 3 cms. below elbow joint. Soft fresh clotted blood is present.
7. Abrasion 4 cms. x 1 cm on the inner side of the left upper arm lower part. oblique reddish.
8. Abrasion 3 cms. x 3 cms. on the back and outer side of shoulder. Reddish.
9. Contusion 6 cms. x 2 cms. x on the back of right forearm 14 cms. above the wrist joint. oblique reddish.
10. Abrasion 2 cm. x 0.5 cm. on the back wrist 7 cm. below right elbow joint.
11. Contusion 8 cms. x 3 cms. x on the top of right shoulder outer part. Oblique. Reddish.
12. Stab wound with clean cut margins 10 cms. x 3 cms. x abdominal cavity deep on the right side of abdomen, upper part with the loops of small intestines and omentum coming out of abdomen. Bleeding is present."
6. In the opinion of doctor, injury nos. 1 to 11 had been caused by a blunt weapon and were simple in nature while injury no. 12 was caused by sharp edged weapon and was dangerous to life. The duration of injuries was fresh. The injury report was marked as Ex. Ka. 1.
7. After Prem Autar was admitted in the hospital and was being treated, Roshan Lal left for telegram office and sent a telegram to police station Auraiya. In the meantime, at about 9:10 a.m. a dying declaration of Prem Autar was recorded by Sri Suresh Chandra Upadhyay, who was posted as Naib Tehsildar/Magistrate at Etawah. Before recording of his dying declaration, Dr. C.L. Katiyar, who was posted as Emergency Medical Officer at district hospital Etawah had given a certificate that Prem Autar was in a conscious state of mind and he certified that Prem Autar remained conscious throughout his statement. The said dying declaration was marked as Ex. Ka. 19.
8. Prem Autar died at about 10:40 a.m. on 25.10.1979 in the hospital. P.W. 2 Dr. Sharad Mehrotra sent a memo (Ex. Ka. 3) regarding the death of Prem Autar to police station Kotwali where an entry to this effect was made in the G.D. (Ex. Ka. 7) by P.W. 7 Head Constable Kewal Singh.
9. The inquest proceeding was conducted by S.I. Sarnam Singh (P.W. 10). He prepared the inquest report (Ex. Ka. 4) and other police papers (Exs. Ka. 12, 13, 14 and 15) and sent the dead body of the deceased for post mortem.
10. The post mortem of the deceased Prem Autar was conducted by Dr. P.K. Verma (P.W. 5), who found following injuries on the person of the deceased:-
"1. Multiple lacerated wounds on the top of the vertex in an area of 10 x 8 cms. size of the wounds varying from 1.5 cms. x 0.5 cms. x scalp deep to 4 x .5 cms. x scalp deep.
2. Oblique stitched wound on the right side of abdomen 10 cms. x 1/4 cms. x cavity deep 2.5 cms. from umbilicus.
3. Stitched wound 4 cms. x 1/2 cms. x cavity deep on abdomen (containing rubber drain) 3 cms. below injury no. 2.
4. Lacerated wound on the back of left fore arm 2 cms. x .5 cms x scalp deep and 3 cms. below the elbow joint.
5. Abrasion on the inner aspect of left upper arm in an area of 4 x 1 cms. and 6 cms. from elbow joint.
6. Multiple abraded contusion on the back of left shoulder joint in an area of 4 x 3 cm.
7. Multiple contusions on the back of the right fore arm in an area of 6 x 2 cms. 14 cms. above the wrist joint.
8. Contusion 8 x 3 cms. on the top of right shoulder."
11. In the opinion of doctor, the cause of death was shock and hemorrhage as a result of ante mortem injuries sustained by the deceased.
12. On internal examination, he found the peritoneum to be punctured. Small intestines were punctured at number of places. He prepared the post mortem report and proved the same as Ex. Ka. 6.
13. The telegram (Ex. Ka. 3) sent by Roshan Lal was given to S.I. Shiv Shanker Misra (P.W.8) on 25.10.1979, who went to village Padaria and gave his report (Ex. Ka. 9) on 26.10.1979. 14. The S.H.O. ordered for registration of the case. Chik report (Ex. Ka. 10) was prepared and entry was made in the G.D. copy of which was marked as Ex. Ka. 11. The clothes of the deceased marked as Material Exhibits 1 to 4 were handed over by Roshan Lal at police station Auraiya on 29.10.1979. Recovery memo of blood stained cloth (Ex. Ka. 5) was prepared and the same were kept in a sealed cover. The investigation of the case was entrusted to S.I. Sri T.N. Singh, who prepared the site plan (Ex. Ka. 17) and recorded the statements of witnesses. After completing the investigation, he submitted charge-sheet (Ex. Ka. 18) against the accused persons. Sri T.N. Singh died during the course of trial.
15. After committal of the case by the Magistrate, the trial court framed charges against the accused persons for the aforesaid offence. All the accused pleaded not guilty and claimed their trial.
16. P.W. 1 Dr. C.L. Katiyar, who has examined Prem Autar while he was alive and brought in an injured condition on 24.10.1979 and recorded his dying declaration on the same day, had deposed that Prem Autar was in a fit state of mind and remained conscious while his dying declaration was recorded by Naib Tehsildar on the said date. He has proved the medical examination report of injured Prem Autar as has been referred above.
17. P.W. 2 Dr. Sharad Mehrotra informed at police station Kotwli about the death of the deceased on 25.10.1979 and has proved the memo in this regard referred above.
18. P.W. 5 Dr. P.K. Verma, who was posted as Medical Officer in T.B. hospital at district Etawah on the said date and conducted the post mortem of the deceased. He found ante mortem injuries on the person of the deceased as has been referred above in the post mortem report and has proved the post mortem report of the deceased which has been referred above. P.W. 5 also found all the injuries given by Dr. C.L. Katiyar in his report and further found one more injury mentioned at Serial No. 9 in his report Ex. Ka-6. It is stated by him that the said injury has been made to fix the rubber tube in the hospital. He deposed before the trial court that the deceased had these injuries and also that his death had resulted from these injuries was not challenged.
19. P.W. 6 Abdul Gaffar Khan, who was an employee of postal department was produced before the trial court to prove the telegram sent by P.W. 4 about the incident to police station Auraiya.
20. P.W. 7 Head Constable Kewal Singh is the scribe of injuries in the G.D. of police station Kotwali while P.W. 9 Head Constable Indu Ram and P.W. 11 Head Constable Hargovind have made entries in the G.D. of police station Auraiya.
21. P.W. 8 S.I. Shiv Shanker Misra conducted the enquiry on the telegram.
22. P.W. 10 S.C. Upadhyay, Naib Tehsildar recorded the dying declaration of the deceased and proved the same.
23. There were two witnesses of fact, who were examined by the trial court in support of the prosecution case, i.e., P.W. 3 Roshan Lal and P.W. 4 Ram Sewak.
24. P.W. 3 Roshan Lal deposed before the trial court that accused Lakhan Singh, Kaptan Singh and Balram Singh are three real brothers. They are the sons of Devideen. Bansh Lal and Ghanaram of my village are real brother of Devideen. Accused Mathura Prasad, who is present in the Court is the son of Bansh Lal. The marriage of Hardevi, who is the daughter of Bansh Lal was performed with Jageshwar of village Signapur. Accused Bahadur Singh is the son of Hardevi. Ghanaram had two sons, namely, Hariram and Mahendra Singh. Accused Phool Singh and Shyam Singh are the sons of Hari Singh. Accused Lakhan Singh, Balram Singh, Kaptan Singh, Mathura Prasad, Bahadur Singh, Phool Singh and Shyam Singh are present in the Court. Bahadur Singh is living in village Padariya from one and half year prior to the incident. Prior to one month of the present incident, the son of Ghanaram, namely, Mahendra Singh was murdered. The said murder also took place on the same crossing which is outside the village. Some persons of the village were named in the said murder case and beside them Prem Autar was also suspected to be involved in the said murder. He deposed that on the day of incident at about 9 a.m., he was at the door of his house from where the crossing (Chauraha) which is only crossing in the village is visible. Prem Autar at that time was going to his field from his house. When he reached at the crossing all of sudden he shouted that he has been surrounded and assaulted, hence be saved. On the said alarm he saw that accused of the present case came out from detritus (Khandhar) situated near the crossing and started assaulting Prem Autar. The accused Kaptan Singh and Lakhan Singh were armed with dharia, accused Bahadur Singh was armed with knife and other accused persons were armed with lathi and danda. He rushed to the place of occurrence along with Ram Gopal, Ram Sewak, Sriram, his nephew Ram Autar and other ladies of his family. He saw that accused Bahadur Singh had assaulted Prem Autar with knife in his abdomen on account of which he had fallen down. He deposed that when the accused were assaulting the deceased Prem Autar then accused Lakhan Singh was uttering that the revenge of the murder of Mahendra Singh be taken and Prem Autar be killed. The accused after assaulting the deceased fled away towards South along with their weapons. He got a cot from his house and tied the intestine of Prem Autar with a cloth as the same came out on account of receiving of injuries in his abdomen. He took the deceased in an injured condition to Muradganj on a cot from where he took him to Etawah hospital on bus. On bus also the deceased was lying down. They reached Etawah hospital between 3:45-4:00 in the afternoon. Prem Autar remained conscious all the time. He remained in hospital till 8:30 p.m. where medical treatment was given to Prem Autar. Thereafter when Prem Autar was shifted in the room between 8-8:30 p.m., he went to post office situated near the station and sent a telegram to police station Auraiya stating therein about the incident. The said telegram was read over to him. He admitted the same and it was stated by him before the trial court that Prem Autar died on the next day between 9:30-10:00 a.m. Thereafter, the inquest proceedings were conducted by the police and he was one of the Panch of the inquest. He has also proved the same as Ex. Ka. 4. Thereafter, the dead body of the deceased was sealed by the Sub Inspector. The clothes which Prem Autar was wearing at the time of incident were handed over to him by the staff of the hospital and he deposited the same at police station Auraiya. He proved the clothes of the deceased as material Exs. Ka. 1 to 4 which were also sealed in his presence and he had signed the same as Ex. Ka. 5. He deposed that after 5-6 days, the police for the first time came to his village and inspected the place of occurrence but did not take any statement either of his or any other witnesses and thereafter it did not come again. He also gave an application to the Superintendent of Police after one month of the incident. He deposed in his cross examination that there was no enmity between him and the deceased Prem Autar and they used to live together. There was no enmity between him and any person of the village except the accused persons. He further stated that beside the witnesses regarding whom he has stated to have reached the place of occurrence there were 6-10 other persons, who also reached the place of occurrence on which the accused fled away. He has further stated that he made it sure that while leaving the village after taking the injured Prem Autar to Etawah for his medical treatment that he would report the incident from Etawah by sending the telegram about the incident to police station Auraiya, hence he did not send any person to inform about the incident to police station Auraiya. He stated that 5-6 persons, who accompanied him to Etawah with Prem Autar out of whom there were ladies also but the male persons, who were with him had not seen the incident, hence he did not ask them to do the telegram about the incident. He further deposed that near the Etawah hospital Kotwali is situated but as his police station was Auraiya and the report can be lodged there, he did not lodge the F.I.R. at Kotwali, Etawah and sent a telegram to Auraiya police station. He further deposed that he was aware of the fact that the Superintendent of Police is at Etawah but as the report is to be lodged at police station Auraiya, hence he did not send any report to Superintendent of Police Etawah. He further deposed in his cross examination that while leaving for Etawah he made it sure that he shall send information about the incident to police station Auraiya by telegram from Etawah as he was in a hurry to get Prem Autar medically treated, hence he did not ask anyone to inform about the incident at police station Auraiya. He could not come to police station Auraiya as he had no time and he did not send any other person to Auraiya for lodging the report as he apprehended that no names of the accused be wrongly mentioned as he had seen the incident and he further apprehended that how and what report may be lodged by him whom he sent for lodging the F.I.R. He further stated that he had a private counsel in the present case and he had come to know that the Officer has wrongly recorded his statement under section 161 Cr.P.C. but he is not aware of the fact that what statement was recorded by the police. He was also not aware of the fact that whether the police has recorded the statements of other witnesses correctly or not. He denied the suggestion that he has given any statement under section 161 Cr.P.C. to the Investigating Officer, hence he stated that the police has wrongly recorded his statement under section 161 Cr.P.C. He after performing the last rites of deceased Prem Autar returned to his house and after one day he deposited the clothes of deceased Prem Autar at police station Auraiya. He has further given explanation for not mentioning some of the fact in the telegram on account of the fact that telegram has to be given in brief as it was told to him that if he sent a long telegram then he would have to pay some more money and if reduce some content then lesser money would be paid by him. He denied the suggestion that he had not witnessed the incident. He admitted in his cross examination that he did not have any conversation with Prem Autar regarding lodging of the F.I.R. or the names of the accused and the weapons with which they were armed and when he had gone to post office for making the telegram from the hospital then he came to know that some Magistrate had come and recorded the statement of Prem Autar. He stated that Prem Autar was recognizing him and he knew that the witnesses Vasdev and Smt. Satyawati had seen the incident as he know them. The statement of Prem Autar was not recorded in his presence as he had gone for doing the telegram. He denied the suggestion that the place, manner, time and accused which he had mentioned are not correct.
25. P.W. 4 Ram Sewak, who is another eye witness of the occurrence deposed before the trial court that on the day of incident at about 9 a.m. he was present at the door of his house from where the crossing of the village was at a distance of 20-25 paces on account of which the same can be seen clearly from there. He saw Prem Autar coming from the village and when he reached at the crossing accused Lakhan Singh, Kaptan Singh, Balram Singh, Mathura Prasad, Phool Singh, Shayam Singh and Bahadur Singh surrounded him. Accused Kaptan Singh and Lakhan Singh were armed with dharia and rest of the accused were armed with lathi and danda. When the accused persons surrounded Prem Autar and started assaulting him, he asked them not to quarrel and went to the place of occurrence. Beside him, Ram Gopal, Roshan Lal and Vasdev also reached the place of occurrence and they also asked the accused not to quarrel but the accused did not pay any heed to their request. Bahadur Singh inflicted a single blow of knife in the abdomen of Prem Autar on which Prem Autar had fallen down and the accused fled away towards the West. Prem Autar sustained injuries and blood had fallen at the place of occurrence. Prem Autar though sustained injuries but was conscious. He was taken by Roshan Lal and Ram Autar to Muradganj. Ram Autar is the brother of Prem Autar. One and half months prior to the incident, Mahendra Singh of his village, who was cousin brother of Lakhan Singh, was murdered. He too was murdered on the same crossing and when Prem Autar was being assaulted by the accused persons then Lakhan Singh was uttering to take revenge of the murder of Mahendra Singh. In his cross examination, the witness has stated that he is not the witness of the murder of Mahendra nor he has seen the same. He has told the accused not to quarrel. Neither he nor Prem Autar or any witness have any lathi and danda with them. Neither the Investigating Officer had recorded his statements under section 161 Cr.P.C. nor interrogated him about the incident. He deposed that he did not give any statement to the Investigating Officer stating that Prem Autar was defending himself by a small danda. The house of Prem Autar is at a distance of 30-40 paces from the place of occurrence. The alarm was heard up to his house. In the house of Prem Autar ladies were also used to live, who after his reaching at the place of occurrence, arrived there and when the ladies had reached the place of occurrence, the accused had left and they saw Prem Autar. When the ladies had arrived at the place of occurrence none of the accused were present. He did not give any such statement to the Investigating Officer that beside him at the place of occurrence some persons of his village and Smt. Sudha wife of Ram Sewak Awasthi and other ladies of the house of Prem Autar, namely, Krishna Kumar, Satyawati also reached there and started weeping after embracing the body of Prem Autar and the accused fled away. He stated that he could not give any reason as to how the Investigating Officer has written his statement. When Roshan Lal had reached the place of occurrence then the accused were assaulting Prem Autar till then Prem Autar had not fallen. Roshan Lal was the uncle of Prem Autar and he too also scolded the accused not to beat Prem Autar. The scuffle took place for about one and two minutes and thereafter the accused had left the place of occurrence and after the accused had left the place Prem Autar was taken to Muradganj by Ram Autar and others and in his presence there was no conversation for reporting about the incident and only it was said that the injured should be taken quickly. At the place of occurrence there is no agricultural field of the accused and agricultural filed of Mahendra Singh is situated after passing through two agricultural fields from the place of occurrence. In the agricultural field of Mahendra Singh there was crop of benincasa hispeda (Petha). He denied the suggestion that in the field of Mahendra Singh there was crop of millet (Bajra) and crop of millet (Bajra) was there in the filed of other persons also. He denied the suggestion that he did not see the incident and on account of village partybandi he is deposing against the appellant.
26. The accused in their defence have admitted in the statement under section 313 Cr.P.C. that they are related to each other as suggested by the prosecution and also that Mahendra Singh had been murdered whereas rest of the prosecution case has been denied by them.
27. Accused Lakhan Singh stated that he was not present at the place of occurrence on the date and time of incident.
28. According to accused Shyam Singh, Prem Autar was not suspected in the murder of Mahendra Singh. When he was coming from his field Prem Autar, Pradhan Gopal Pandey and others met him.
29. Accused Balram Singh has stated that he was not present at the time of incident.
30. According to accused Kaptan Singh at about 12 noon, when he, Mathura Prasad and Shyam Singh were coming from their field about 15-20 persons surrounded them and Ram Sewak, Ram Gopal, Roshan Lal and Prem Autar started beating them.
31. In defence, the accused have not filed any documentary evidence.
32. The trial court after examining the prosecution evidence and the defence version found the accused-appellants to be guilty of committing the murder of the deceased Prem Autar and has convicted and sentenced them for the aforesaid charges. Being aggrieved by the same, the appellants preferred the instant appeals.
33. Heard Sri Apul Mishra, learned counsel for the appellants, Sri Anurag Shukla, learned counsel for the complainant, Sri J.P. Tripathi, learned A.G.A. for the State and perused the record.
34. Learned counsel for the appellants submits that so far as the dying declaration of the deceased Prem Autar is concerned, he has named all the six accused persons excepting appellant Bahadur Singh, who are said to have assaulted him with lathi, danda, dharia and knife on the day of incident at about 9 a.m. and further the incident was witnessed by Ram Sewak, Ram Gopal, Vasdev and others whereas P.W. 3 Roshan Lal has sent the information about the incident through telegram to the concerned police station Auraiya that all the accused persons have assaulted the deceased with lathi, danda and dharia whereas appellant Bahadur Singh inflicted knife blow in the abdomen of the deceased on account of which his intestine started exuding out. It was further argued that the presence of P.W. 3 Roshan Lal has also not been disclosed in the dying declaration of the deceased which was recorded by the Tehsildar and fitness certificate was given by Dr. C.L. Katiyar P.W. 1. He next submitted that the presence of P.W. 3 at the place of occurrence appears to be doubtful. It appears that he had not seen the incident and falsely deposed against the accused-appellants including appellant Bahadur Singh by giving specific role of assaulting the deceased with knife in his abdomen. He further submitted that all the accused are inter-se related to each other. The appellant Bahadur Singh was the son of Hardevi, who was the daughter of Banshlal whose son Mathura Prasad is also an accused in the present case. He further submitted that accused appellants have no motive to commit the murder of the deceased Prem Autar and moreover, the motive which was suggested that the deceased was suspected to be an accused in the murder case of Mahendra Singh, who was the son of Ghanaram in which there were some accused persons named in the F.I.R. of the said case. The accused Phool Singh and Shyam Singh are the sons of Hari Singh whose real brother Mahendra was murdered prior to one month of the present incident. It was submitted that so far appellant Balram Singh is concerned he cannot be said to have any direct motive with the other accused for the murder of Prem Autar. In this regard, he has further pointed out towards the evidence of P.W. 3 and has argued that after the incident, P.W. 3 Roshan Lal had taken the deceased while he was injured to Muradganj and thereafter Etawah hospital for his medical treatment and he did not send any person to lodge the F.I.R. of the incident at police station Auraiya apprehending that they might commit mistake in naming the accused and further apprehending that what report would they lodge about the incident. He stated that the said conduct of P.W. 3 shows that he tried to make it sure that he would name the accused involved in the present case according to his own mind and there may not be any mistake in implicating the accused which he wanted to falsely implicate, hence he after the medical examination of the injured on 24.10.1979 had gone to telegram office for making of telegram naming the accused and narrating about the incident. It was vehemently argued that the injuries which are said to be caused to the deceased are 12 in number and the same have been caused by blunt object and sharp edged weapon with which the accused were said to be armed with and injury no. 12 which was sustained by the deceased Prem Autar shows that it was a stabbed wound in the abdomen on account of which the intestine came out from the abdomen. The author of the said injury is not known and it cannot be said whether it was caused by a knife or by dharia thus he submitted that the appellant Bahadur Singh has been falsely implicated in the present case by P.W. 3 giving specific role of assaulting the deceased with knife but the said fact was not disclosed by the deceased in his dying declaration and the deceased has only stated while he was assaulted by the accused persons with lathi, danda and dharia he was also assaulted with knife in his abdomen but the name of the accused, who assaulted him with knife in his abdomen has not been disclosed by him. With regard to the involvement of the other accused appellants in the present case, it is argued by him that the accused, who were armed with lathies were said to have assaulted the deceased but so far as injury nos. 1 to 11 are concerned, it has been opined by the doctor that the same can be caused by danda and lathi and in ordinary course of nature, the same were not sufficient to cause death and the said injuries were simple in nature. He stated that so far as the injury no. 12 is concerned, the same can be caused by dharia also which has been assigned to appellants Lakhan Singh and Kaptan Singh, hence the author of the said injury is not known and the three accused be given benefit of doubt. So far as P.W. 4 Ram Sewak is concerned, he submitted that his presence at the place of occurrence appears to be doubtful and he at the instance of P.W. 3 has deposed against the accused persons and both the witnesses cannot be said to be wholly reliable. Thus he argued that the judgment and order passed by the trial court convicting and sentencing the appellants is liable to be set aside by this Court.
35. Learned counsel for the complainant on the other hand refuted the argument of learned counsel for the appellants and submitted that the incident has taken place at 9 a.m. in the morning. The deceased Prem Autar, who was assaulted by accused persons with hard and blunt object and sharp edged weapon, has sustained as many as 12 injuries on his persons including injuries of hard and blunt object as well as sharp edged weapon. There is a dying declaration of the deceased corroborating the prosecution case which was recorded by the Naib Tehsildar-P.W. 12 and fitness certificate was given by Dr. C.L. Katiyar P.W. 1, who has stated before the trial court that the deceased remained conscious when his statement was being recorded by the Naib Tehsildar. He further pointed out towards the evidence of P.W. 3 and 4, who have also narrated the prosecution case, hence the trial court has rightly convicted the appellants and sentenced them for the aforesaid charges.
36. Learned A.G.A. has also refuted the arguments of learned counsel for the appellants and adopted the arguments of learned counsel for the complainant.
37. We have considered the submissions advanced by learned counsel for the parties and perused the record.
38. In the present case it is admitted that the deceased Prem Autar while being injured was taken to Etawah hospital by P.W. 3 and others where he was medically examined on 24.10.1979 at 3:45 p.m. by P.W. 1 Dr. C.L. Katiyar and 12 injuries were found on his person as is evident from Ex. Ka. 1. A dying declaration of the deceased was recorded by Naib Tehsildar P.W. 12 on 24.10.1979 at 9:10 p.m. and fitness certificate was also given by P.W. 1 Dr. C.L. Katiyar, who was posted as Emergency Medical Officer, who in his statement has stated that the injured Prem Autar was in good sense and remained conscious throughout the dying declaration. In the dying declaration, Prem Autar has specifically named six accused persons, namely, Lakhan Singh, Kaptan Singh, Balram Singh, Mathura Prasad, Phool Singh and Shyam Singh, who have assaulted him with lathi, danda and dharia and he has stated that on the exhortation of Mathura Prasad, the said accused started assaulting him and he was empty handed. He further stated that there were some more persons. He was also assaulted with knife in his abdomen. On his alarm Ram Sewak, Ram Gopal etc. had arrived at the place of occurrence and then accused fled away. The said dying declaration of the deceased was challenged by learned counsel for the appellant but could not dislodge the same and only argued that even if the said dying declaration be believed by this Court then too the participation of appellant Bahadur Singh in the present incident appears to be doubtful as he has not been named in the dying declaration by the deceased and only P.W. 3 in his statement and in the telegram sent by him to police station Auraiya named appellant Bahadur Singh along with other accused persons, who were armed with lathi, danda and dharia. The appellant Bahadur Singh was stated to have inflicted knife blow in the abdomen of the deceased which appears to be an afterthought after due deliberation and consultation as it appears from the evidence of P.W. 3 Roshan Lal, who had made it sure that he did not let any other person lodge the F.I.R. at police station Auraiya when he was taking the deceased, while he was injured, to Etawah hospital as he apprehended that the person to whom he may send may wrongly mention the name of accused and also apprehended what narration of the incident would be made by him in the report. It transpires from the evidence of P.W. 3 that the accused are inter-se related to each other as appellant nos. 1, 2 and 3 are real brother, appellant Bahadur Singh is the son of Hardevi, who is the daughter of Banshlal whose son Mathura Prasad is also an accused in the present case. Banshlal is the real brother of Ghanaram whose son Mahendra Singh was murdered one month prior to the present incident and appellants Phool Singh and Shyam Singh are the sons of Hariram and happens to be the nephew of Mahendra, who was earlier murdered thus there was apprehension that Bahadur Singh could be involved in the present case along with other accused persons or not, hence his false implication in the present case by P.W. 3 whose presence has also not been disclosed by the deceased in his dying declaration, cannot be rule out. Learned counsel for the complainant also could not give any explanation about the presence of P.W. 3 Roshan Lal in the dying declaration of the deceased Prem Autar that whether he was present at the place of occurrence or not. So far as not naming of appellant Bahadur Singh by the deceased in his dying declaration is concerned, he has drawn the attention of Court towards his statement and pointed out that he stated that there were some other persons involved in the incident but from a perusal of the same it is apparent that the deceased only mentioned the names of six accused persons to be involved in the present case including other persons which have been referred by learned counsel for the appellants. P.W. 4 Ram Sewak though appears to be an independent witness and his presence at the place of occurrence has also been mentioned by the deceased in his dying declaration has stated the involvement of appellant Bahadur Singh in his statement before the trial court for the first time along with other accused persons and he assigned specific role of assaulting the deceased by knife to appellant Bahadur Singh whereas other accused assaulted the deceased with lathi, cannot be said to be wholly reliable on account of the fact that the deceased has failed to name the appellant Bahadur Singh in his dying declaration. As regard the other arguments of learned counsel for the appellants with respect to other appellants is concerned, accused persons, who were armed with lathi, danda and dharia out of which appellant Balram Singh, Mathura Prasad, Shyam Singh and Phool Singh were armed with lathi and danda and appellants Lakhan Singh and Kaptan Singh were armed with dharia and they all assaulted the deceased with their respective weapon. There appears to be 12 injuries sustained by the deceased out of which injury nos. 1 to 11 were said to be caused by lathi and danda and the death cannot be caused by the same and were simple in nature. So far as injury no. 12 which proved to be fatal is concerned, it could be caused by a sharp edged weapon, i.e., dharia and knife. The author of the said injury is not known and the conviction of other appellants, who were armed with blunt object and sharp edged weapon is against the evidence on record and is liable to be set aside, is not acceptable as in the dying declaration of the deceased it is apparent that all the accused with a common object had formed an unlawful assembly and in pursuance of the common object had assaulted the deceased with their respective weapons, who received injuries of hard and blunt object as well as sharp edged weapon, hence their participation in the incident cannot be ruled out. So far as the motive with respect to commission of the offence is concerned, it is well settled that in a case of direct evidence motive looses its significance. After examining the evidence of P.W. 3 Roshan Lal, uncle of the deceased and P.W. 4 Ram Sewak, who claimed to be the eye witness of the incident, it cannot be said to be wholly reliable witness particularly with respect to the involvement of appellant Bahadur Singh is concerned whose name, presence and involvement has not been disclosed in the dying declaration of the deceased. So far as their evidence with respect to other appellants is concerned, they also cannot be said to be wholly reliable as in the dying declaration, presence of P.W. 3 is not mentioned but so far as P.W. 4 is concerned, he can be said to be partly reliable being an independent witness as his evidence with respect to other appellant is also corroborated by the version given by the deceased in the dying declaration. Moreover, the dying declaration of the deceased is a substantial piece of evidence against other appellants except appellant Bahadur Singh which is duly proved by the prosecution. The dying declaration of the deceased in which the participation of all the accused persons being actively shown cannot be discarded as the same is corroborated by the medical report of the deceased, hence their conviction by the trial court is hereby upheld excepting the conviction of appellant Bahadur Singh whose presence or participation in the present case has not been disclosed, hence he is entitled for benefit of doubt as the evidence of P.W. 3 and 4 cannot be said to be wholly reliable one.
39. The appeal on behalf of appellant Bahadur Singh stands allowed.
40. The appellant Bahadur Singh is stated to be on bail. He need not surrender, his bail bond and sureties stand discharged.
41. It is further directed that the appellant Bahadur Singh shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.
42. The appeal on behalf of appellant Lakhan Singh, Balram Singh, Shyam Singh and Phool Singh is hereby dismissed.
43. They are stated to be on bail. They shall be taken into judicial custody forthwith and sent to jail to serve out the sentence as has been awarded by the trial court and affirmed by this Court.
44. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Dated:-14.03.2019
Shiraz.