Allahabad High Court
Surendra Pratap Singh And Another vs State Of U.P. on 28 July, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 05.05.2022 Delivered on 28.07.2022 Court No. - 1 Case :- CRIMINAL APPEAL No. - 1397 of 2011 Appellant :- Surendra Pratap Singh And Another Respondent :- State of U.P. Counsel for Appellant :- Nisar Ahmad,Abhishek Tiwari,Akhilesh Pratap Singh,Anagh Shukla,K.K. Sharma,Manjusha Kapil,Prakash Pandey,Sachin Pratap Singh,Sajeet Singh Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
( Delivered by Hon'ble Ramesh Sinha, J. )
1. Eight accused persons, namely, Surendra Pratap Singh, Mahendra Pratap, Chunnu alias Hanuman Bux Singh, Shyam Pandey alias Shyam Narayan, Ram Prakash, Shiv Kumar Singh, Ram Baran and Girja Shankar Mishra, were tried by the Additional Sessions Judge/Ex-Cadre-3, Sultanpur in Sessions Trial No. 330 of 1990 : State Vs. Surendra Pratap Singh and 7 others, arising out of Case Crime No. 120 of 1989, under Sections 396, 412 I.P.C., Police Station Kadipur, District Sultanpur.
2. During trial, two accused persons, namely, Ram Baran son of Murli and Girja Shanker Mishra son of Bhulai Mishra, died, hence their trial stood abated.
3. Vide judgment and order dated 02.08.2011, the learned Additional Sessions Judge/Ex-Cadre-3, Sultanpur, acquitted three accused persons, Shyam Pandey alias Shyam Narayan, Ram Prakash and Shiv Kumar Singh and did not proceed with trial of Chunnu alias Hanuman Bux Singh as he moved an application to declare him juvenile. However, two accused persons, namely, Surendra Pratap Singh and Mahendra Pratap Singh, were convicted and sentenced in the manner stated hereinbelow :-
(i) Under Section 396 I.P.C. to undergo imprisonment for life and a fine of Rs.10,000/- each. In default of payment of fine to undergo additional one year's imprisonment.
4. Feeling aggrieved by their conviction and sentence vide impugned judgment and order dated 02.08.2011, Surendra Pratap Singh and Mahendra Pratap Singh have preferred the instant criminal appeal.
5. During pendency of the instant appeal, convict/appellant no.1-Surendra Pratap Singh died, hence his instant appeal stood abated vide order dated 10.03.2022. Now, the instant appeal survives only in respect of convict/appellant no.2-Mahendra Pratap Singh.
6. The prosecution case, in nutshell, is that on 11.04.1989 at 2.45 P.M., an information was given by informant- Brahmadeen Dubey (P.W.1) at the Police Station Kadipur, District Sultanpur to the effect that he was the resident of Kadipur Khurd Pure Bajkoti, Police Station Kadipur, District Sultanpur. In the night, he was sleeping in front of the door of his house. His father was sleeping at machan (an erected platform); and his brother Jagdamba was sleeping at khaliyan (barn). As usual a lantern was lighting at the door. At about 12.30 in the night, 8-9 miscreants armed with lathi, knife, country made pistol and torch came there holding his brother Jagdamba and his father and asked them to get the door opened. They were beating his father to get the door opened, and his father was crying. In the meanwhile, his brother Devtadeen opened the door. After that miscreants demanded keys from his brother Jagdamba and his father, to which his father and his brother Jagdamba told them that keys were not with them. On this one of the miscreants opened fire, due to which his father sustained injuries and the miscreants also started assaulting his brother Jagdamba with knife. As soon as his brother Devtadeen came out, miscreants also stabbed him with knife. Thereafter, the miscreants entered into the house; started robbing; and also assaulted his mother and sister. He ran outside and started shouting. On hearing hue and cry, villager Chavilal, Nihore and Sonare etc. came there with lathis and torches and challenged the miscreants, upon which the miscreants fled away towards the western direction after robbing. He, his father and others recognized some of the miscreants as Surendra Pratap, Mahendra Pratap s/o Ram Raj Singh, Chunnu alias Hanuman Bux Singh s/o Aadha Singh and Shyam Pandey r/o Pandey Ka Purva at Police Station Kadipur. They also saw and recognized other miscreants but did not know their names. His brother Devtadeen died due to the assault made by miscreants and his brother Jagdamba and his father were in critical condition along with whom he had come for information. He further informed the police that he will give the list of articles later and requested to send his brother and father to hospital as they were in critical condition. He further stated that this incident was caused on account of old enmity ensuing with Ramraj and his family.
7. On the basis of aforesaid information, on 11.04.1989, at 02:45 p.m., FIR was lodged at police station Kadipur, district Sultanpur bearing Chik No.60, Case Crime No.120 of 1989, under Section 396 I.P.C. against accused Surendra Pratap, Mahendra Pratap s/o Ram Raj Singh, Chunnu @ Hunuman Bux Singh s/o Aadha Singh, Shyam Pandey and 4-5 unknown miscreants.
8. The evidence of P.W.7- Retd. S.I. Brij Lal Yadav shows that on 11.04.1989, he was posted as Head Moharrir at Police Station Kadipur, District Sultanpur. On the information given by informant Brahmadeen Dubey s/o Parasnath Dubey, he lodged the FIR bearing Case Crime No.120 of 1989, under Section 396 I.P.C. against accused Surendra Pratap etc. The investigating officer recorded his statement.
9. The investigation of the case was conducted by the Sub-Inspector P.N. Rai (P.W.8), who, in his examination-in-chief, had deposed before the trial Court that in the year 1989-90, he was posted as Incharge Inspector at Police Station Kadipur, District Sultanpur. On 11.04.1989, on the basis of information given by informant (P.W.1), Case Crime No. 120 of 1989 under Section 396 I.P.C. was registered against Surendra Pratap Singh and others in his presence. The aforesaid F.I.R. was registered by Head Constable Brij Lal Yadav (P.W.7). On 11.04.1989, investigation of the case was entrusted to him. After taking over the investigation of the case, he recorded the statements of informant Brahmadeen Dubey (P.W.1), Ram Prakash Dubey and Smt. Gyana Devi (P.W.4). After conducting Panchayanama of the deceased Devtadeen Dubey, sealed the deadbody in a cloth and sent that for post mortem examination. On the pointing out of witnesses, he inspected the place of occurrence and prepared site plan (Ext. Ka.16). After that, injured Ram Prakash, Smt. Lal Devi, Smt. Gyana Devi were sent for medical examination through H.C. Hridayram Yadav in a Government Jeep to Primary Health Centre, Kadipur. Thereafter, he collected blood soaked and plain soil from the place where deceased Devtadeen was lying dead, in two different containers and also seized two empty cartridges and one cartridge (rifle) and prepared recovery memo Ext. Ka. 17 and Ext. Ka.18, respectively. He inspected the torches of the witnesses and on inspection, he found that torches were in running condition. Thereafter, he returned the said torches to the witnesses with the direction to keep those and whenever required the same be produced. He prepared the sapurdginama in his handwriting and signature (Ext. Ka.19). Thereafter, he inspected the lantern of injured Ram Prakash Dueby and after inspection, he returned that, with the direction to keep that and whenever required, the same be produced. He also prepared a supurdginama in his handwriting and signature (Ext. Ka.20). On 13.04.1989, he received the injury report of the injured and post-mortem report of the deceased. Thereafter, on 14.04.1989, he went to Swaroop Rani Hospital, Allahabad for recording the statements of injured Parasnath Dubey and Jagdamba Prasad, wherein he found that condition of injured Parasnath Dubey was not good and he was not in a position to give statement, however, he recorded the statement of injured Jagdamba. Thereafter, he obtained order for initiation of proceedings against the accused under Section 82/83 Cr.P.C. from the Court of Chief Judicial Magistrate, Sultanpur but even then he did not find the accused. On 24.04.1989, he perused the statements of injured Parashnath Dubey and Jagdamba Prasad, recorded by Pargnadhikari T.Prasad, before death on 11.04.1989. On the basis of the statements of injured Parashnath Dubey and Jagdamba Prasad, accused Surendra Pratap Singh, Mahendra Pratap Singh, Chunnu alias Hanuman Bux Singh, who surrendered themselves before the Court of C.J.M., Sultanpur on 24.04.1989, were sent to jail. After taking aforesaid accused persons on police-custody-remand, he recorded their statements. On the information given by the informant (P.W.1) regarding death of Parasnath Dubey at Allahabad Hospital on 26.04.1989, he sent a Constable to get the post-mortem report from Allahabad. On 06.05.1989, he went on leave, on account of which, SSI D.R. Singh conducted the investigation of the case during his leave period. On 19.05.1989, he again took over the investigation of the case. On 21.05.1989, he interrogated accused Ram Prakash Singh, who confessed his guilt and also revealed the names of co-accused involved in commission of dacoity. On 24.05.1989, accused Ram Baran, who was detained at Police Station Lamhua in another case, had confessed his guilt in committing dacoity in connivance with co-accused. On 25.05.1989, he arrested accused Girja Shanker Mishra and recorded his statement and on his pointing out, he recovered Hasuli and Payal and prepared recovery memo (Ext. Ka. 22) and also prepared site plan (Ext. Ka.23). On 29.05.1989, he arrested accused Ram Singare alias Singare Mallah and also recorded his statement. Thereafter, on 18.07.1989, he submitted charge-sheet (Ext. Ka.24) against accused Surendra Pratap Singh, Mahendra Pratap Singh, Chunnu alias Hanuman Bux Singh and Shyam Pandey under Section 396 I.P.C.
10. The injuries of injured Jagdamba and Parasnath Dubey were examined on 11.04.1989 at 07:00 a.m. and 07:42 a.m., respectively, in District Hospital, Sultanpur by Dr. R.S. Agarwal (P.W.3), who found the following injuries on their persons :-
"Injuries of Jagdamba son of Parasnath aged about 18 years (Ext. Ka.4)
(i) I/W on Lt. side of chest 5th I.C.S. adjacent to paraspernal area placed vertically. Elliptical in shape 2.3 x 1.1 cm x cavity deep. No fresh bleeding clot seen. 5.5 cm medial & at 8 o'clock position.
(ii) I/W 1.5 cm x .5 cm x S.C. tissue deep. 1.0 cm lateral & above Lt. nipple at 2 o'clock position. No fresh bleeding.
(iii) I/W 2.5 cm x 1 cm x tissue deep at Lt. subcostal marginally 9 cm above and laterally at 1 o'clock position. No fresh bleeding.
(iv) I/W. on Lt. hand metacarpophalangeal joint medial aspect 6 cm x 2 cm x 6 cm deep. 4th & 5th metacarpophalangeal joint cut."
"Injuries of Parasnath Dubey son of Fudki aged about 55 years (Ext.Ka.5)
1. Multiple firearm wound of entry in lower part of abd. below umbilicus 10 cm x 9 cm. Size ranging from .3 x .3 x cavity deep upto 1 cm x 1 cm x cavity deep with abrasion at multiple places.
2. A scar of burn 18 cm x 9 cm above the umbilicus on both side of the abdomen, fresh bleeding present from the wounds. Abd. distended. G.C. w/w low pulse not perceptible, BP not recordable.
11. The evidence of P.W.3-Dr. R.S. Agrawal shows that on 11.04.1989, he was posted as Medical Officer at District Hospital, Sultanpur. He medically examined the injuries of injured Jagdamba s/o Parasnath and Parasnath, who were brought before him by Constable CP No. 144 Mohd. Haneef Khan of Police Station Kadipur. He deposed that on the person of injured Jagdamba, he found four injuries (as enumerated hereinabove). Out of four injuries, injury no.1 was directed to be kept under observation, whereas in respect of injury no.4, he advised for x-ray. He further deposed that all the injuries occurred on the body of injured Jagdamba could be attributable by a sharp edged weapon and was fresh. He further deposed that death of injured Jagdamba could be caused on account of injury no.1. He proved Ext. Ka. 4. He further deposed that he also medically examined the injuries of injured Parasnath Dubey and after examination, he found two injuries (as enumerated hereinabove) on his person. He proved the injury report of Parasnath Ext. Ka.5.
P.W.3 had deposed that injuries of Jagdamba and Parasnath Dubey could be caused in the intervening night of 10/11.04.1989 at 12:30 a.m. and injuries of Jagdamba could be caused by blow of knife, whereas injuries of Parasnath Dubey could be caused by countrymade pistol. He further deposed that the condition of Parasnath was critical, whereas condition of Jagdamba was not critical. He further deposed that injuries no. 1, 2 and 3 could be attributable by different sharp edged weapons. However, both the angles of injury no.1 were not sharp.
12. The post-mortem examination of the deadbody of Devtadeen Dubey was conducted on 11.04.1989 at 04:10 p.m. by Dr. K.N. Pandey, Surgeon, who found the following ante-mortem injuries :-
"Ante-mortem injuries of deceased Devtadeen, aged about 22 years, son of Paras Nath Dubey (1) A stab injury Lt. side chest 2 cm x 1 cm x cavity deep, 4.5 cm below Lt. nipple at 7 O'clock position underlying the 5th ribs sharply cut entirely at their costochondral junction.
(2) An abrasion on lateral aspect of Rt. upper (sic) 6 cm x 4 cm size.
As per opinion of Dr. K.N. Pandey, the deceased died due to ante-mortem injury no.1 leading to haemorrhage and shock. On external examination, Dr. K. N. Pandey found that rigor mortis in both upper and lower limbs were present and eyes were semi open. On internal examination, Dr. K.N. Pandey found that 4th, 5th ribs were sharply divided at costochondral junction and pleura was incised under the stab wound mark.
13. The evidence of P.W.5 Kripa Dayal Srivastava shows that on 11.04.1989, he was posted as Pharmacist at Police Hospital, Police Line, Sultanpur. Dr. K.N. Pandey, Surgeon, was posted at District Hospital, Sultanpur. During his service tenure, he had seen Dr. K.N. Pandey while reading and writing. He is very well conversant with the handwriting of Dr. K.N. Pandey. Paper No.14-K was enclosed with regard to post mortem report no.108/89 dated 11.04.1988 of deceased Devtadeen Dubey. The age of the deceased was about 22 years. The father's name of deceased was Parasnath Dubey r/o Gram Bajgoti Ka Purwa, Kadipur Khurd, Police Station Kadipur, District Sultanpur, who was brought for post-mortem through Constable Deenanath Yadav and Homeguard Ram Karan on the direction of Station House Officer, Police Station Kadipur. The post mortem report in original was in the handwriting and signature of Dr. K.N. Pandey and he verified the same. He further deposed that the papers with regard to post-mortem bearing Paper No.10 Ka-2 and letter to R.I. regarding deceased Devtadeen and letter to C.M.O., Sultanpur, Police Challan Report, photo lash, sample seal and other related papers were signed by Dr. K.N. Pandey, which were verified by him. The post mortem report was Ext. Ka-6, specimen seal (Ext. Ka-7), Challan Report No.13 was Ext.Ka-8, photo nash (Ext.Ka-9), the Report of C.M.O. (Ext.Ka-10),Report R.I., Sultanpur (Ext.Ka-11), Panchayatnama (Ext.Ka-12). He further deposed that he retired from service in the year 1999.
14. It is pertinent to mention here that during treatment, Paras Nath Dubey died on 26.04.1989 at 08:50 p.m. at Swaroop Rani Hospital, Allahabad. The post-mortam of deceased Paras Nath Dubey was conducted on 28.04.1989 at 03:30 p.m. by Prof. (Dr.) U.S. Sinha (P.W.6), who found the following ante-mortem wounds :-
"Ante-mortem wounds of Parasnath Dubey aged about 55 years son of Fudki Dubey (1) Lacerated wound present on the front of abdomen 2" above the umbilicus in area of 2½" x 2½" x abdominal (sic) deep. Multiple puncture of small intestine. No wound of exit present."
As per the opinion of Prof. (Dr.) U.S. Sinha (P.W.6), Paras Nath Dubey died due to septicemia as a result of ante-mortem wound.
15. It is significant to mention that P.W.6 Prof. (Dr.) U.S. Sinha, in his examination-in-chief, had reiterated the aforesaid cause of death of Parashnath Dubey and had deposed before the trial Court that on 28.04.1989, he was posted as Vice-Principal at Moti Lal Nehru Medical College. On the said date, he conducted the post-mortem of Parasnath Dubey, who was identified by Constable Gulab Singh, C.P. No.2088 of Police Station Kotwali, District Allahabad. He deposed that Parasnath Dubey died on 26.04.1989 at 08.50 P.M. in Swaroop Rani Hospital, Allahabad. On external examination, he found that the physique of Parasnath Dubey was average body; after the death, rigor mortis was present on his whole body; blood was oozing out from his mouth and nose; hospital bandage was present on the injuries; and abdominal intestines had come out through injuries. On internal examination, he found that brain and upper membranes were congested; spinal Cord, respiratory system were found congested; heart and its vessels were found empty; stomach was found empty; kidney and spleen were found congested; urinary bladder was found full; genital was found normal. He proved the post-mortem report of Parasnath Dubey (Ext.Ka.3).
16. The case was committed to the Court of Sessions by the Chief Judicial Magistrate, Sultanpur. The IV Additional Sessions Judge, Sultanpur had framed charges against accused Surendra Pratap Singh, Mahendra Pratap Singh, Chunnu @ Hanuman Bux Singh, Shyam Pandey @ Shyam Narain, Ram Prakash, Sheo Kumar Singh and Ram Baran under Section 396 I.P.C. and against accused Girja Shankar Mishra under Section 412 I.P.C. on 28.01.1991. Accused denied the charges and claimed to be tried.
17. During trial, the prosecution, in support of its case, has examined as many as nine witnesses viz. P.W.1 Brahmadeen Dubey, informant of the case, P.W.2 Jagdamba Prasad -injured witness, P.W.3 Dr. R.S. Agarwal, who conducted the medical examination of injured Jagdamba Prasad and Parasnath (during their lifetime), P.W.4 Smt. Giyana Devi, daughter of deceased Parasnath, P.W.5 Kripa Dayal Srivastava, who proved the post-mortem of the deceased Devtadeen Dubey, conducted by Dr. K.N. Pandey at District Hospital, Sultanpur, P.W.6 Prof. (Dr) U.S. Sinha, who conducted the post-mortem of deceased Parasnath, P.W.7 Retd. Sub Inspector Brij Lal Yadav, who registered the F.I.R. of the incident, P.W.8 P.N. Rai, who conducted the investigation of the case, and P.W.9 Tapendra Prasad, ADM, who recorded the dying declarations of injured Jagdamba Prasad and injured Parasnath.
18. P.W.1 Brahmadeen Dubey (informant), in his examination-in-chief deposed before the trial court that his kaccha house is at village Kadipur Khurd, Police Station Kotwali Kadipur, District Sultanpur. He had enmity with Raja Ram Singh of his village prior to incident. Earlier Raja Ram Singh made a bogus complaint for compensation to which he made an objection, due to which the claim of compensation was reduced to Rs.2 Lacs. He further deposed that accused Surendra Pratap Singh, Mahendra Pratap Singh are sons of Ram Raj Singh, whereas Hanuman @ Chunnu is nephew of Ram Raj Singh and accused Shyam Pandey is resident of village Jalalpur.
P.W.1 had deposed that the incident took place at 12.30 a.m. in the night on 10/11.04.1989. A lantern was lighting at the eastern side of his house. His brother Devtadeen (deceased) was sleeping in the room situated at western side of courtyard, whereas his father Parasnath was sleeping under a neem tree on a machan (raised platform) at eastern side, outside the house. His brother Jagdamba was sleeping in the barn. His mother Lal Dei and sister Gyana Devi and younger brother Ram Prakash were sleeping in eastern side verandah. He was also sleeping in the verandah at southern side. The wife of Devtadeen, namely, Geeta Devi was also sleeping in the room situated at western side. All of them were sleeping after taking dinner. He stated that at about 12.30 a.m., about 8-10 miscreants armed with lathi, knife, country made pistols, torches came at his house; caught his brother Jagdamba and father Parasnath; brought them at the door; and asked them to open the door. His brother Jagdamba and father Parasnath were beaten by miscreants, due to which his father was screaming. In the meanwhile, on hearing the screams, his younger brother Devtadeen opened the door. After that, a miscreant caused a knife blow upon him which hit on his chest, due to which his brother fell down. His father also fell down in the eastern side room after receiving injuries. Thereafter, somehow, he came out from the north door and ran through the verandah towards the village. The miscreants also assaulted his mother Lal Dei, sister Gyana Devi, younger brother Ram Prakash. On being assaulted by the miscreants, his father Parasnath and brother Devtadeen succumbed to their injuries. His brother Devtadeen died on the spot at the time of incident and his father Parasnath died at Swaroop Rani Hospital, Allahabad. The miscreants entered into his house and started robbery. Some miscreants were keeping surveillance outside the house and some were inside. The miscreants were asking keys from his father before committing the robbery. As the keys were not given, the miscreants killed his father with a country made pistol. On hearing his noise, villagers Chhavilal Nihare, Sonare and others came with lathis and torches and challenged the miscreants, then the miscreants fled away from his house towards western side with the looted items. He went to the police station along with his brother Jagdamba and father Parasnath and lodged the oral report by dictation at the police station and also told that he would inform about the list of looted articles to the police later on. He after sometime gave the list of looted jewellery to the Inspector-Incharge, Police Station Kadipur (Ext.Ka-1). He further deposed that the miscreants looted the items viz. (i) girdle of silver (ii) silver anklet three pairs, (iii) one pair of bracelet of silver, choker (hasuli) made of silver, sliver mangalsutra, five thousand rupees, two gold earings, gold choker (hasuli), forehead band and two golden chains.
P.W.1 further deposed that he along with others saw and recognized Surendra Pratap, Mahendra Pratap, Chunnu @ Hanuman Bux Singh and Shyam Pandey among the miscreants. When the miscreants assaulted his father and brother, their (miscreants) faces were uncovered. The night was bright for some time but later on it got dark. His father was hospitalized for about 10-15 days in Swaroop Rani Hospital, Allahabad. He went to the District Jail to identify the miscreants, wherein he identified two of them, namely, Ram Prakash and Sheo Kumar. The police had recovered only hasuli (Ext.Ka-1) and silver anklets (Ext.2 and Ext.3). He further deposed that he recognized the miscreants in the light of torch and lantern.
In cross-examination, P.W.1 had deposed before the trial Court that in the year 1984, he was practicing as Advocate at Kadipur Tehsil. Sukhnandan Singh had three sons, namely, Ramraj Singh, Mata Pratap Singh and Adha Pratap Singh. The sons of Ramraj Singh, namely, Surendra Pratap Singh and Mahendra Pratap Singh are the accused in the present case. Accused Surendra Pratap Singh was also practicing as an Advocate. Accused Surendra Pratap Singh was also the President of Kadipur Bar Association. The real brother of Surendra Pratap Singh were Vrinda Pratap Singh and Rana Pratap Singh. Long before the incident, Vrinda Pratap Singh was murdered. The son of Mata Pratap Singh, namely, Sher Bahadur Singh was APO. He deposed that he did not know whether accused Surendra Pratap Singh and his family members were living separately or jointly and also did not know that accused Surendra Pratap Singh had 85-90 bighas of land. He deposed that Surendra Pratap Singh had a tubewell but he did not know whether he had tractor or not or he had 30 cows and buffaloes.
P.W.1 had further deposed that the house of accused Surendra Pratap Singh and his family members is situated about 100-150 meters away from his house i.e. the place of the incident. He did not remember that he had moved an application before the District Magistrate to the effect that accused Surendra Pratap had land beyond the ceiling limit, which was rejected by S.D.M., Kadipur. He further deposed that at the time of the incident, he had five brothers, Devtadeen (deceased), Devi Prasad, Jagdamba Prasad, Ram Prakash and at that time, his family was a joint family and had 7-8 bighas of land. He deposed that at the time of the incident, he was practicing as an Advocate and none of the family members were earning.
P.W.1 had further deposed in his cross-examination that before the incident, the brother of Surendra Pratap Singh, namely, Rana Pratap Singh, his father Parasnath and others had contested the election of Pradhan, which was won by Rana Pratap Singh. He himself had stated that in the murder of brother of Surendra Pratap Singh, namely, Vrinda Pratap Singh, his father Parasnath was asked to give evidence but his father Parasnath declined. However, he did not remember who had lodged the report in that case nor he had knowledge that Chavilal and Sunder sons of Nihore were the accused in the case of murder nor he had knowledge that father of Chavilal and Sunder, namely, Nihore was the witness of this case or not but he had knowledge that on hearing the noise, these persons came and their names were in the F.I.R. The son of Nihore, namely, Sonare was also mentioned as witness in the F.I.R. He had no knowledge whether Chavilal and Sunder were convicted in the murder of Vrinda Pratap Singh or not, however, he had knowledge that they were convicted but he had no knowledge in which case.
P.W.1 had further deposed that on declining to adduce evidence in the murder of Vrinda Pratap, a scuffle took place with his brother Devtadeen. About that incident, he gave an application but no case was registered. He had stated about enmity to the Inspector but he did not write. He did not know the reason, why it was not written in his report. Before the incident, enmity was going on with accused Surendra Pratap Singh and others. He had two sons and three daughters and at the time of the incident, all his five children he had.
19. P.W.2 Jagdamba Prasad, in his examination-in-chief, had stated that on 10/11.04.1989, at about 12.30 in night, he was sleeping in the barn in front of his house after dinner. In his northern side, his father was sleeping on a machan (raised platform). Other family members were sleeping inside the house. In the midnight, 8-9 miscreants came to his house and caught him and his father and brought to the door of their house, beat them and asked to get open the door. When his father did not say anything, then, they assaulted his father, and his father started crying. The miscreants covered their faces by cloth (angocha) and when they assaulted them, their faces were opened. One of the miscreant fired upon his father with country made pistol. He was assaulted by knife by accused Surendra Pratap and while assaulting him, his face got opened, and he saw him and recognized. In the meanwhile, his brother Devtadeen, who was inside the house, came outside after opening the door and then he was also assaulted with knife. The miscreants entered into the house and started looting. Brahmadeen (P.W.1) rushed to the village and raised noise. The miscreants kept looting for about half an hour and fled away with the looted goods from his house when the people of the village reached there on hearing noise. He further deposed that at the time of incident, a lantern was lighting in the verandah of his house and he recognized the miscreants in the light of lantern and torch. There was an old enmity with family of accused Surendra Pratap Singh. He and his father were brought to hospital by a jeep, wherein his statement was recorded by S.D.M. Before going to hospital, they went to the police station. He further deposed that he went to jail to identify the accused wherein he identified the accused Sheo Kumar. He further stated that his statement was recorded by police in Swaroop Rani Hospital, Allahabad. He also identified the looted articles, i.e. 'hasuli' and anklet, which were recovered by the police. He further deposed that except Surendra and Sheo Kumar he could not recognize other accused persons.
In cross-examination, P.W.2 had deposed that the house of Surendra Pratap Singh is at a distance of 200 Meters from his house. Surendra Pratap Singh was practicing as an Advocate at Kadipur prior to his brother Brahmadeen (P.W.1). He did not say whether Surendra Pratap Singh had 80-85 bighas of land or not. However, Surendra Pratap Singh is a man of status of his village. At the time of the incident, he appeared in examination of 10th class; he was aged about 14-15 years; and the examination was over.
P.W.2 had further deposed that on the date of the incident, he was sleeping alone in the barn without taking any torch. Out of 8-9 miscreants, two miscreants caught him and brought him in front of his house. His father was standing at the door of exist and he was standing 1-2 steps ahead of eastern side of his father. The miscreants asked his father to get open the door and fired upon him with countrymade pistol, as a consequence of which, his father fell down. Thereafter, he raised noise, then, cloth (anguacha) of the miscreants got opened. He sustained injuries. The cloth (angucha) of Sheo Kumar also got opened. Before the cloth (angucha) got opened, only eyes of the miscreants were visible and nothing else. On the night when he was beaten, one miscreant caught his shoulder and one caught his upper portion of hand. He could not do anything because he was caught. He also did not see Devtadeen being assaulted. He did not know till date that with which weapon, other members of his family were assaulted. He was assaulted inside the house. He told the Inspector when Surendra Pratap Singh assaulted him with knife, his cloth (angucha) got opened but he did not tell the reason as to why the same had not been written by the Inspector. After 5-6 minutes when the miscreants ran away, Brahmadeen (P.W.1) came along with villagers. No conversation occurred between him and Brahmadeen (P.W.1). He did not tell Brahmadeen, after running away of miscreants that Surendra Pratap Singh had covered his face with cloth (angucha) and he was assaulted by him with knife and while assaulting, his cloth (angucha) got opened and he recognized him. When he and his father raised noise, then, Brahmadeen (P.W.1) ran from north door towards Jeep raising alarm. When he was caught in barn, he did not raise alarm as miscreants threatened him to shoot and assault with knife. When he reached in verandah, he was assaulted. Two of the miscreants carried him inside the verandah and other miscreants entered behind them. He denied the suggestion that he did not see any of the miscreants. He also denied that he falsely deposed against Surendra Pratap Singh on account of previous enmity. After 2-2½ months of the incident, accused were arrested. He went to police station Kadipur in respect of the incident. He went to identify the accused after 3-4 months of their arrest. He denied that he did not identify any of the miscreants. He also denied that there was no source of light at the place of the incident.
20. P.W.4-Smt. Gyana Devi, in her examination-in-chief, had deposed before the trial Court that her father was resident of village Chhotki Kadipur Khurd Bajkothi ka Purwa, Kadipur Khurd, Sultanpur. The incident occurred 20 years ago. The time was about 11:00 -12:00 in the night. At that time, she was married but her gauna was not performed. She was at her father's home. At the time of incident, she was sleeping with her mother in verandah. Her younger brother Ram Prakash was also sleeping there. Her elder brother Brahmadeen (P.W.1) was sleeping at a cot in northern side. Devtadeen (deceased) was sleeping inside the room. Her father was sleeping at machan (raised platform) outside the door of house. Her brother Jagdamba was sleeping in barn. In the night of incident, 8-9 miscreants armed with lathis, pistols, knives, torches, rifles came by holding her brother Jagdamba and father Parasnath near verandah and assaulting them to get open the door. Her father and brother were crying. They (P.W.4 and family members) also started crying. Upon hearing hue and cry, her brother Devtadeen opened the door and came outside in verandah. As soon as he came out, one miscreant Surendra Pratap Singh stabbed him with knife. He fell down holding his chest. A lantern was lighting in the verandah. All the miscreants started beating his brother Devtadeen with kicks and asking for keys from her brother and father. Her father told them that he was not having keys. On hearing the same, one of the miscreants, namely, Hanuman fired at her father with country made pistol, which hit her father and he fell down. Thereafter the miscreants started assaulting her brother Jagdamba with knives. Upon hearing hue and cry of her, accused Mahendra and Surendra hit on her head with knife. Accused Mahendra had also assaulted Jagdamba with knife. After beating them all the miscreants entered the house and started looting. Her elder brother Brahmadeen (P.W.1), who was lying in the adjacent verandah, rushed to the village and raised alarm. Upon hearing the same, villager Chavilal and Nihore came there, at the place of incident, all the miscreants fled away. In the alleged loot, the miscreants had taken away her gold including bindiya, ear rings, necklace, nose pin, chain and ornaments of sliver, i.e. a pair of anklet, hasuli etc. At the time of incident she saw the faces of 5-6 miscreants, out of them she recognized the accused Surendra, Mahendra and Hanuman. When the miscreants fled away, she came outside climbing the wall from inside as she was locked inside by the miscreants. She saw, her brother Devtadeen had died and was lying on the floor. Her father was rolling in injured condition. She deposed that her father succumbed to his injuries after 10-15 days of incident in hospital at Allahabad. She stated that she went to District Jail, Sultanpur to identify the accused where she identified the accused Sheo Kumar, Ram Prakash and Ram Baran and all of them were involved in the alleged incident. She also identified her anklet. She further deposed that the total number of miscreants were 8-9. All the miscreants were having country made pistols, lathis and knives. One was having country made pistol and three miscreants were having lathis. She, however, could not see the weapon in the hands of the rest. All the miscreants had covered their faces. When they assaulted, their faces were uncovered every now and then, but they covered again. She was beaten by 3-4 miscreants with kicks, hands and knives. The said miscreants also assaulted her mother and her brother Ram Prakash. She could not see how many miscreants assaulted her brother Jagdamba Singh. All of them were beaten at the same place, i.e. verandah where she was beaten.
21. P.W.9 Tapendra Prasad, Joint Managing Director, U.P.S.I.D.C., Kanpur stated on oath that on 11.04.1989 he was posted as Pargana Officer Kadipur, District Sultanpur. In Case No.120 of 1989 under Section 396 I.P.C. registered at Police Station Kotwali Kadipur against accused Surendra Pratap and others, he had recorded the dying declaration of injured Jagdamba Prasad Dubey s/o Parasnath Dubey and Parasnath Dubey s/o Fudki r/o Kadipur Khurd, Police Station Kadipur, District Sultanpur, in accordance with the rules and the same is in his handwriting on which the thump impression of both injured persons were affixed. He certified the said statements, which were exhibited as Ext.Ka-27 and Ext.Ka-28.
22. The statements of the accused were recorded under Section 313 Cr.P.C., wherein accused Surendra Pratap Singh stated that his identification was not done and witnesses had given false statements due to enmity and being from the side of prosecution. He gave a written statement in which he stated that since 1983 he is practicing as an Advocate in Tehsil Kadipur and remained President of Lawyers Association. His family remains with him. He was having 80-85 bighas of land, tubewell and tractor. Informant Bramhadeen Dubey had given an application before the District Magistrate stating therein that accused Surendra Pratap Singh was having land more than the ceiling limit against that his father filed an objection, and the application of informant was rejected. Since then the enmity is going on between with his family and the family of Brahandeen Dubey (informant). Prior to the incident he built his own new house at Pakki Road, Kadipur Banda. He also got electricity connection and he was living in new house along with his wife and children. He further deposed that prior to the incident his brother contested and won the election of Gram Pradhan against informant's father Parasnath after that the family of informant was having inimical terms with his family and due to previous enmity they had been falsely roped in, in the present case. He also stated that he was not previous convict in any case.
23. Accused Mahendra Pratap Singh and Chunnu @ Hanuman Bux Singh also stated that they have been implicated in the instant case due to enmity and stated that statement of Surendra Pratrap should be read as their statement. Accused Shyam Pandey @ Shyam Narain also stated that he was implicated due to enmity whereas accused Ram Prakash stated that the case was a fake one; he was detained at police station and shown to the witness while coming to court. The accused was recognized by the witness with the help of police personnel. Accused Sheo Kumar Singh stated that the statement of accused Ram Prakash shall be read as his statement.
24. The trial Court, after appreciating the evidence on record, believed the evidence of P.W.1 Brahamadeen Dubey, P.W.4, Smt. Gyana Devi and considering the dying declaration of deceased Parasnath Dubey and injured Jagdamba Prasad (P.W.2) (who later on survived) convicted and sentenced the appellants in the manner stated in paragraph-3 hereinabove.
25. Hence the instant appeal.
26. Heard Ms. Manjusha Kapil, learned Counsel for the appellant no.2 and Shri Pankaj Tiwari, learned A.G.A. for the State and perused the impugned judgment as well as lower Court record.
27. It has been argued by learned Counsel for the appellant no.2 that convicts/appellants, Surendra Pratap Singh and Mahendra Pratap Singh, along with six others were put to trial, out of which no charges were proved against four accused persons, namely, Shyam Pandey @ Shayam Narain Pandey, Ram Prakash and Sheo Kumar Singh. So far as other accused, namely, Girja Shankar Mishra is concerned, only some articles of dacoity were recovered from him, hence charge sheet was submitted against him for offence under Section 412 I.P.C. She further submits that during the course of trial, accused Ram Baran and Girja Shankar Mishra died, hence their trial was ordered to be abated by the trial Court. She further pointed out that appellant no.1-Surendra Pratap Singh, who is the real brother of Mahendra Pratap Singh (appellant no.2) died during the pendency of appeal, hence his instant appeal has already ordered to be abated by this Court. Thus, the instant appeal survives only on behalf of convict/appellant no.2-Mahendra Pratap Singh.
28. Learned Counsel for the appellant no. 2 has next argued that there are two dying declarations; one of injured Jagdamba Prasad (P.W.1) s/o Parasnath Dubey; and another of injured Parasnath (succumbed to injuries) s/o Fudki, at Primary Health Centre, Kadipur on 11.04.1989. In the dying declaration of Jagdamba Prasad (P.W.2), the involvement of appellant no.1-Surendra in the dacoity along with 8-9 miscreants in the house of the informant P.W.1 Brahmadeen has been mentioned, whereas in the dying declaration of Parasnath Dubey, names of appellant no.2-Mahendra Pratap Singh and his brother/appellant no.1-Surendra Pratap Singh along with 8 miscreants have been mentioned in the incident. She further argued that as per the dying declaration of deceased Parasnath Dubey, presence of appellant no.1-Surendra Pratap Singh along with his brother appellant no.2 Mahendra Pratap Singh only, has been mentioned, but in his dying declaration, no overt act had been assigned to the appellant in the incident. She further submits that as per dying declaration of Jagdamba Prasad (P.W.1), it was appellant no.1-Surendra Pratap Singh, who had assaulted Jagdamba Prasad (P.W.2) with knife and along with him, there were two other persons who brought him to his house. She argued that at the time of recording the aforesaid dying declaration, injured Parasnath (died subsequently) was not in a fit state of mind as P.W.3-Dr. R.S. Agarwal, who examined the injured Parasnath, had deposed before the trial Court that the general condition of Parasnath was critical; and his pulse rate and blood pressure was not recordable. Thus, the trial Court has failed to consider the fact that the aforesaid dying declaration was not true and voluntary.
29. Learned Counsel for the appellant no.2 has next argued that as per the prosecution case, the incident is said to have been witnessed by one Chhavi Lal, Nihore, Sonare and others in the torch light, but none of them had been examined by the prosecution in support of its case. Her submission is that no independent witnesses have been examined by the prosecution and only interested and partisan witnesses have been examined by the prosecution to prove its case. To substantiate her submission, she argued that P.W.1-Brahmadeen is the brother of deceased Devtadeen and son of deceased Parasnath; P.W.2-Jagdamba Prasad is the brother of informant Brahmadeen (P.W.1) and deceased Devtadeen, and son of deceased Parasnath. Smt. Gyana Devi (P.W.4) is the sister of P.W.1, P.W.2 and deceased Devtadeen and daughter of deceased Parasnath. Thus, the trial Court has erred in placing reliance upon the testimonies of P.W.1, P.W.2 and P.W.5 and also not considering the fact that though independent witnesses were available at the place of the occurrence the prosecution has failed to produce them to prove its case beyond reasonable doubt.
30. Learned Counsel for the appellant no.2 next submitted that as per the FIR, at the place of occurrence, a lantern was lighting. The incident is said to have been taken place in the house of the informant at about 12:30 in the night in which 8-9 miscreants armed with lathis, knives, country made pistols, had caught and brought his brother Jagdamba Prasad (P.W.2) and father Parasnath Dubey (deceased), who were sleeping in the khaliyan (barn) and adjacent to the house respectively and after that, the miscreants tried to get opened the door of the house. On hearing the hue and cry of father Parasnath Dubey (deceased) and brother Jagdamba Prasad (P.W.2), Devtadeen (deceased) s/o Parasnath Dubey opened the door, whereupon he was assaulted by knife blow by the miscreants. Thereafter, the miscreants went inside the house and looted the articles and started abusing the informant P.W.1 and his family members. The miscreants had covered their faces with cloth. Her submission is that in such circumstances, it was quite improbable to identify the miscreants due to no proper source of light.
31. Learned Counsel for the appellants has next argued that there is no motive on the part of the appellants to commit the incident. Her submission is that the appellants were implicated in the present case on account of previous enmity with the family of the informant P.W.1. She argued that prior to the incident, the brother of the appellant, namely, Rana Pratap Singh had contested the election of Pradhan. In the said election of Pradhan, father of informant, namely, Parasnath (deceased) along with other candidates had also contested. The said election of Pradhan had been won by Rana Pratap Singh, brother of appellant. Furthermore, in the murder case of brother of the appellant (Vrinda Pratap Singh), pressure was exerted upon the father of informant (Parasnath Dubey) to give evidence in the said murder case, but he refused to do so. Her submission is that other co-accused persons, namely, Ram Prakash, Sheo Kumar Singh and Shyam Pandey were also named in the FIR, but no charges were proved against them, but so far as accused Girja Shankar Mishra is concerned from whom the articles of dacoity were recovered, he was charge sheeted for offence under Section 412 I.P.C. only. Thus, the appellants who had no concern with the co-accused persons were falsely roped in, in the present case on account of enmity.
32. Learned Counsel for the appellant no.2 has further argued that no recovery of any incriminating looted article was made at the pointing out or from the possession of appellant no.2. She submitted that from the dying declaration of deceased Parasnath Dubey, it is evident that only the name of the appellants Surendra Pratap Singh and Mahendra Pratap Singh figured whereas no overt act has been assigned to them. Furthermore from the evidence of P.W.1 informant Brahmadeen Dubey and P.W.2 Jagdamba Prasad, P.W.4 - Smt. Gyana Devi, it is apparently clear that no role has been assigned to the appellant no.2 for causing any injuries to the deceased or the injured person with any weapon and only general allegations have been levelled that the dacoits/ miscreants were armed with knives, lathis and country made pistols and one of the assailants fired at the deceased Parasnath Dubey whereas the miscreants assaulted the deceased Devtadeen Dubey with knife. Hence the trial Court has failed to consider the fact that the prosecution has not proved its case beyond reasonable doubt.
33. Learned A.G.A., on the other hand, has rebutted the argument of learned Counsel for the appellant no.2 and submitted that P.W.2 Jagdamba Prasad, who is an injured witness and brother of deceased, had deposed against the appellant no.2 and had categorically stated before the trial court that the appellant no.2 Mahendra Pratap Singh along with his brother Surendra Pratap Singh and other co-accused persons had participated in the incident and appellant no.1-Surendra Pratap Singh had inflicted knife blows on him. He further pointed out that from the evidence of P.W.1 - Brahmadeen Dubey and P.W.3 - Gyana Devi, the involvement of the appellant in the incident has also been found. Moreover, in the dying declaration of deceased Parasnath Dubey, the presence of appellant no.2-Mahendra Pratap Singh along with his brother Surendra Pratap Singh (appellant no.1) and other miscreants had been shown. Thus, the trial court has rightly convicted and sentenced the appellants for the offence in question, hence the appeal being devoid of merit is liable to be dismissed.
34. We have examined the submissions of the learned Counsel for the parties and gone through the lower Court record as well as evidences available on record.
35. It is apparent from the FIR that the appellants, Surendra Prasad Singh and Mahendra Pratap Singh along with Chunnu @ Hanuman Bux Singh, Shyam Pandey and 4-5 unknown persons were named in the FIR. The incident took place at 12:30 A.M. in the night which was witnessed in the light of lantern, which was lighting at the place of occurrence and also in the light of torches, which the witnesses were carrying, who rushed to the place of occurrence and raised alarm. After that the miscreants/accused fled away from the place of occurrence. The FIR of the incident was registered by P.W.1 Brahmadeen Dubey on 11.04.1989 at 2:45 P.M. at police station Kadipur, District Sultanpur which was at a distance of 4 kms. away from the place of occurrence.
36. Admittedly, there appears to be two dying declarations. One of Jagdamba Prasad (who survived), which was recorded on 11.04.1989 at 4:15 A.M. at Primary Health Centre, Kadipur while he was brought in injured condition, in the presence of doctor who gave him a fitness certificate, whereas the dying declaration of Paras Nath was also recorded in the presence of doctor who gave a fitness certificate by S.D.M. Kadipur at Primary Health Centre on 11.04.1989 at 4.00 A.M. who died subsequently.
37. It would be apt to reproduce at this juncture the dying declaration of both the injured i.e. Jagdamba Prasad and deceased Paras Nath, which are as under :-
"Dying Declaration of injured Jagdamba recorded on 11.04.1989 by SDM, Kadipur LFkku izkFkfed LokLFk dsUnz dknhiqj Jh txnEck izlkn nqcs S/o ikjl ukFk nwcs mez 18 lky fuoklh dknhiqj [kqnZ us c;ku fd;k fd vkt jkr dks 8&9 cnek'k ?kj ij esjs ywVikV djus ds fy, vk;sA blesa ls lwjsUnz S/o jkejkt flag tks esjs xkao ds gS dks tkuk igpkukA igpkuus ij lqjsUnz us pkdw ls ekjk muds lkFk ml le; 2 vkSj FksA eS Qjokj esa lks;k Fkk ogka ls idM dj eq>s ?kj ij ys vk;sA eq>s vkSj dqN ugh ;kn ughA Dying Declaration of Paras Nath son of Fuduki Jh ikjl UkkFk S/o Qqnqdh fuoklh dknhiqj [kqnZ mez 55 o"kZ us cgyQ c;ku fd;k fd vkt jkr 12&1 cts eSa ekapk ij vius ?kj ds ckgj lks;k gqvk FkkA yxHkx 8 yksx vk;s] txkdj fdokM [kksyus dks dgs vkSj dgs fd /khjs /khjs cksy cksy dj fdokMk [kqyok;ksA fdokMk [kqyus ij dgs fd pqi jgks vkSj dqath nksA dqUth u nsus ij isV ij Qk;j dj fn;sA eS mu cnek'kks esa egsUnz flag tks jkejkt dk iq= gS vkSj esjs xkao dk gS tkurk igpkurk gwW pqUuw v/kk izlkn flag ds yMds RkFkk lqjsUnz izrki S/o jkejkt flag tks eqag ij diMk cka?ks Fkk dks igpkukA vkSj lHkh eqag cka/ks Fks eS igpku u ldkA lqjsUnz izrki dks blfy, igpkuk fd tc os ekjus yxs rks muds eqag ij ca/kk vaxkSNk fxj x;kA fQj ekj ls eS csgks'k gks x;k vkxs eq>s dqN irk ughA eq>s vkSj dqN ugh dgukA fQj dgk esjs yMds nsorknhu dk vyx ys tkdj ekj MkysA D;kasfd muls igpku ij dgk Fkk ''dk gks' vkSj dqN ugh dguk gSA"
38. From a perusal of dying declaration of Jagdamba Prasad, it transpires that the trial Court found his dying declaration admissible under Section 157 of the Indian Evidence Act as Jagdamba Prasad survived. In his depositions recorded before the trial Court, Jagdamba Prasad (P.W.2) had stated about the aforesaid dying declaration. Jagdamba Prasad (P.W.2) stated that 8-9 persons had entered into his house and committed dacoity on 11.04.1989 and he identified Surendra Pratap Singh (appellant no.1) s/o Ram Raj Singh, who belonged to his village, and when Surendra Pratap Singh assaulted him with knife, there were two other person with him. He further stated that he was sleeping at his khaliyan (barn) from where the miscreants caught him and brought him at home. He further stated that he did not remember anything else.
39. So far as the dying declaration of Parasnath (deceased) is concerned, he had stated that between 12:00 to 1:00 in the night he was sleeping at his house at machan (raised platform) and at that time, about eight persons came to his house and asked him to get the door opened quietly and when he got the door opened, then, they asked for keys from him and when he refused to give the same, a fire was shot at his abdomen. Out of the said miscreants, he recognized Mahendra Pratap Singh (appellant no.2) s/o Ram Raj Singh who belongs to his village and knew him along with Chunnu s/o Adha Prasad Singh and Surendra Pratap s/o Ram Raj Singh who was concealing his face by a cloth. As all the miscreants had concealed their faces with cloth, he could not recognize them. He recognized Surendra Pratap Singh because when he started assaulting him, then his cloth (agocha) had fallen. Thereafter he became unconscious and he did not know what happened thereafter. He further stated that his son Devtadeen was separated from there and done to death. This dying declaration of the deceased Parasnath was recorded by the SDM in the presence of doctor on 11.04.1989 at 4:00 A.M.
40. From the dying declaration of deceased Parasnath, it is evident that he has named Mahendra Pratap Singh (appellant no.2). It is apparent to accept that he (Parasnath) has not assigned any overt act to Mahendra Pratap Singh (appellant no.2). Moreover, if Mahendra Pratap Singh (appellant no.2) was known to him then definitely the said accused would have taken all the precaution to conceal his identity and probably it appears that he had concealed his identity as the deceased Parasnath had stated in the dying declaration that all the miscreants had concealed their faces with cloths and when he assaulted him, his cloth (angocha) had fallen down, meaning thereby, that it was hardly possible for the deceased Parasnath to identify Mahendra Pratap Singh (appellant no.2) if he had also concealed his face with cloth. Moreover, in the statement given by the witness P.W.2- Jagdamba Prasad on 11.04.1989 at 4:00 A.M., which was treated to be his dying declaration, the name of the appellant no.2 Mahendra Pratap Singh does not find place. There appears to be a doubt about the participation of the appellant no.2 Mahendra Pratap Singh in the alleged incident. Moreover, though the statement of P.W.2 Jagdamba Prasad, was an injured witness, was recorded by the trial Court and he had also named the appellant no.2 Mahendra Pratap Singh along with Surendra Pratap Singh and other co-accused persons, but the same appears afterthought, hence cannot be relied upon by this Court as there was previous enmity with the family of the informant and the appellant, as is also evident from the evidence of P.W.1- Brahmadeen, who is real brother of P.W.2-Jagdamba Prasad as it has been stated that in the murder of Vrinda Prasad, the real brother of the appellant no.2-Mahendra Pratap Singh and appellant no.1-Surendra Pratap Singh, the deceased Parasnath was being pressurized by the accused to give evidence, but he refused, hence the possibility of false implication of the appellant no.2 cannot be ruled out.
41. Similarly, the evidence of P.W.1 - Brahmadeen, who is the brother of deceased Devtadeen and son of deceased Parasnath as well as P.W.4 Smt. Gyana Devi, who is the daughter of the deceased Parasnath and sister of Devtadeen, would go to show that there appears to be no specific allegation against the appellant no.2 for assaulting any of the deceased (Devtadeen, Parasnath) or of the injured Jagdamba Prasad and only general allegations have been levelled against the miscreants for assaulting the two, i.e., deceased and the injured. The four accused persons named in the FIR, namely, Surendra Pratap, Mahendra Pratap, Chunnu @ Hanuman and Shyam Pandey could not be identified by P.W.1, P.W.2 and P.W.3 during identification, hence their involvement was not proved, therefore, it is quite possible that the appellant no.2 was implicated by the informant P.W.1, P.W.2 and P.W.3 because of the previous enmity between the two families. Moreover, there appears to be no recovery made at the pointing out or from possession of the appellant no.2-Mahendra Pratap Singh.
42. In view of the foregoing discussions, this Court is of the view that the participation of appellant no.2-Mahendra Pratap Singh in the present incident has not been proved by the prosecution beyond reasonable doubt, hence his conviction and the sentence for the offence under Section 396 I.P.C., thus, is liable to be set aside.
43. Accordingly, the conviction and sentence of appellant no.2-Mahendra Pratap Singh by the trial Court for offence punishable under Section 396 I.P.C. by means of the impugned order dated 02.08.2011 is hereby set-aside. He is acquitted for the charges under Section 396 I.P.C. He is reported to be in jail. He shall be released forthwith unless otherwise wanted in any other criminal case.
44. Appellant No.2-Mahendra Pratap Singh is directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of the Code of Criminal Procedure, 1973, within ten days from today.
45. The instant appeal insofar as it relates to appellant no.2-Mahendra Pratap Singh is allowed.
46. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for information and compliance.
(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 28.07.2022
Anand Sri.