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Shivnath Singh Vs. State of U.P [1994] INSC 98 (8 February 1994)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)

CITATION: 1994 SCC (2) 563 JT 1994 (1) 423 1994 SCALE (1)460

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by JAYACHANDRA REDDY, J.- All these three appeals arise out of the same judgment of Allahabad High Court. Before the trial court 10 accused were tried for offences punishable under Sections 148, 302, 451, 323/149, 302/149 and 201/149 IPC for committing the murder of one Mohan Lal with guns, axes and iron rod and for severing his bead and taking it away with intention to screen themselves from legal punishment and for breaking over the house of the deceased and taking away his rifle. The trial court convicted all of them and sentenced them to undergo imprisonment for life and also various other terms of imprisonment for other offences. The convicted accused preferred Criminal Appeal Nos. 13, 14 and 15 of 1982 and the High Court dismissed all of them. Questioning the same, these three appeals at( filed by the 10 convicted accused.

2.The prosecution case is as follows. The appellants are all interrelate( and belong to one family. There was a faction between the party of the 565 accused and that of the deceased. On September 13, 1980 at about 4 p.m. while the deceased was sitting at the door of Garikhana, all the accused came there armed with guns, axes and iron rods. Shivnath Singh, A-5 exhorted others to catch hold of the deceased and kill him. On this some of the accused caught hold of Mohan Lal and Ram Nath A-10, Jagdev Singh A-1 and Roop Singh A-3 entered into the house of the deceased and took away his rifle after breaking open the door. Mata Prasad A-9 and Ram Nath A-10 fired gunshots at the head of the deceased. Jagdev Singh A-1, Sahdev Singh A- 2 and Kalloo A-4 gave axe blows and Surendra Pal Singh A-7 beat the deceased with iron rod. Smt Siyawati PW 4, niece of the deceased and his brother's wife tried to intervene and they also received injuries. On hearing the alarm, Vishwanath Singh PW 3, son of the deceased and several other persons came there and challenged the accused-appellants but they did not care. They tied the feet of Mohan Lai and dragged him up to the house of one Durga Singh. There Mata Prasad A-9 and Ram Nath A-10 fired gunshots at the head of the deceased and Ram Babu A-8 and Roop Singh A-3 severed the head of the deceased and pierced it to an iron rod and lifted it up and thereafter the accused persons carried the trunk and the severed head of the deceased up to the Khaliyan of one Jag Ram Singh. There the trunk was left and the head was taken away. PW 3, son of the deceased, went and lodged a report in the Police Station Churkhi, six miles away on the same day at about 6.45 p.m. The case was registered and the investigation was taken up. The trunk of the deceased was sent for postmortem after inquest. On September 15, 1980 the severed head of the deceased was recovered from the water in a river on pointing out by Inder Singh A-6 and the same was also sent for postmortem. The doctor, who conducted the postmortem on the trunk and the head of the deceased found pellet injuries and opined that the trunk and the head belong to the same person. Another doctor, PW 6 examined Smt Siyawati PW 4 and on her, he found two contusions. After completion of the investigation, the charge-sheet was laid. The accused however denied the occurrence and further stated that the deceased had association with dacoits and that he was also quarrelsome and was involved in a number of cases. They also took the defence that the head belonged to some young person and he trunk also was not of Mohan Lai and after recovery of these two parts of body belonging to the two different persons the police have foisted the case against them. The learned trial Judge relying on the evidence of the eyewitnesses PWs 3 and 4 and also on the evidence of PW 2, medical evidence and other circumstances convicted all the 10 accused. The High Court once again considered the evidence of the material witnesses in great detail and agreed with the findings of the trial court and confirmed the convictions and sentences passed against the appellants.

3.Learned counsel appearing for the appellants submitted before us that 11 the material witnesses are interested witnesses and their version on some of the aspects is artificial. The presence of PW 3 is doubtful inasmuch as he ,as not injured though he was also a co-accused in the earlier case along with the deceased and if really as stated by this witness the accused carried.

566 the head in that manner, many supporters of the deceased would not have kept quiet and the medical evidence does not conclusively establish that the head recovered was that of the deceased and there are indications to show that the FIR was brought into existence at a belated stage. It is also lastly submitted that the details of attack are not mentioned and there is no possibility of sifting grain from chaff in the evidence of the eyewitnesses and on such omnibus allegations all the appellants cannot be convicted.

We will first briefly deal with the evidence of the eyewitnesses and then go to the other submissions.

4.PW 1 deposed that at the time of the incident he was present in the Baithak of Ram Adhar which is in front of the house of Durga Singh. Genda Singh and Vakil Singh were also sitting there with him and they were discussing about agricultural matters when he heard the gunshots and cries and came out and witnessed the occurrence. He is a resident of the same village and his name is mentioned in the FIR.

He stated that the accused persons were dragging Mohan Lal at a distance of 4 or 5 cubits from Garikhana of Mohan Lai.

He fully supported the prosecution version as to what happened thereafter and he named all the accused persons.

He also witnessed when the accused cut the head of Mohan Lal and carried it and he and other witnesses followed them and that the accused left the trunk at the Khaliyan of Jagram Singh and went towards south along with severed head of Mohan Lal. PW 2 is the son of complainant and grandson of the deceased. He is a boy aged 12 years and he was a student of 8th class. Since it was Saturday he left the school early at about 3.45 p.m. He was inside his house along with his mother and sister and the door of the house was open. Ram Nath A-10, Roop Singh A-3 and Jagdev Singh A- 1 armed with guns and axes entered the house and broke open the door of the Kotha and took away the rifle. He has also given the other details of the occurrence. He further stated that Smt Siyawati PW 4 tried to save Mohan Lal and she also suffered injuries when she was pushed by the accused. He gave the other details of the occurrence and how the accused dragged away the trunk and arrived away the head of the deceased. PW 3 is the complainant. He supported the prosecution case from beginning to the end and gave report to the police at the earliest. PW 4 is the daughter of the brother of the deceased. She also witnessed the occurrence. She also received injuries and her presence at the scene of occurrence cannot be doubted. She also has given the whole account of the occurrence including the accused carrying away the head and the trunk of the deceased after the head was severed. PW 5 is the grandson of the brother of the deceased. He is employed in Municipal Board at Kalpi and he was on leave during this relevant period.

When the occurrence took place, he was in the fields. He deposed that when he came to know about the murder, he came to the village immediately and he wrote the complaint to the dictation of PW 3. All these witnesses were cross-examined at length most of which is on the aspect of interestedness.

Learned counsel for the appellant attacked the evidence of these witnesses on the ground that they were all interested and if they had been present at the scene of occurrence they would 567 have also been killed. We do not agree. The details of the occurrence would show that Mohan Lal was the only target and he has been brutally killed. At any rate PW 4 a lady, also received injuries and her evidence is not at all shaken in any manner. It is contended that the injuries on her person are concocted and a false medical report has been obtained.

There is no ground whatsoever to draw such an inference and the suggestion has no basis. The evidence of the interested witnesses cannot be discarded on the ground that they are close relations of the deceased and what is necessary in such cases is that a closer scrutiny has to be done. Both the courts have carefully examined the evidence of these witnesses and have given good reasons to acceptthe same.

To satisfy ourselves we have also perused their depositions and wesee no grounds to come to a different conclusion.

5.Learned counsel also pointed out some discrepancies which after careful examination, in our view, are not at all material. All the witnesses belong to the same village and they live in the vicinity. If they have not given a correct estimate of time that would be attributable only to their lack of sense of time. In any event the whole criticism is as to the time which they would have taken to reach the place of occurrence. Having regard to the location of their houses it is only a matter of few minutes to reach the place of occurrence and from that alone it cannot be said that they must have come after the occurrence. Some of the witnesses who rushed from their houses have also deposed that they heard the cries and in normal course of events they must have rushed immediately.

6.Regarding the time and place of occurrence there cannot be any doubt. Even in the earliest report, the place as well as the time are mentioned. The evidence of the doctor who conducted the postmortem, also shows that the' occurrence must have taken place round about that time. It must be noted that in this case the occurrence took place at about 4 p.m. The report was lodged at 6.45 p.m. The inquest was held on that very night and the postmortem was conducted at about 9 o'clock next morning. Therefore we do not find any basis to doubt the time of occurrence.

7.Learned counsel also argued that the bloodstains must have been found at the place where the deceased was beaten and also at the place where the head was cut and the investigating officer did not collect the bloodstained earth. Therefore the place of occurrence is doubtful. This aspect has been examined by both the courts below and it has been noticed that presence of bloodstains were noted in the site plan and if the investigating officer did not collect the bloodstains at all the places, that by itself is not an infirmity. Learned counsel vehemently argued that there is a grave doubt whether the recovered head was that of Mohan Lal. In this context reliance is placed on the evidence of PW 6 the doctor, who stated that the trunk of which he conducted the postmortem was stoutly built and that the head was that of a young man. According to the learned counsel the deceased was not a young man and therefore the prosecution has not proved that it was the head of Mohan Lal. In our view this is not at all an infirmity. Even assuming that the prosecution has not conclusively proved that the head which was recovered 568 was that of Mohan Lal, witness after witness has clearly deposed that Mohan Lal was killed and his head was severed and there cannot be any doubt that Mohan Lal was beheaded in the manner stated by these witnesses. As a matter of fact it is also mentioned in the FIR that the head was cut-off.

An argument was advanced regarding the identification of the body on the ground that PW 5 the grandson of the brother of the deceased filed an affidavit that he did not identify the body. We cannot give any weight to this affidavit even if it had been filed in that manner. PW 5 deposed that he came from the fields after hearing about the occurrence and to the dictation of PW 3 he wrote the complaint. He was also a witness to some of the recoveries including the head. This witness was cross-examined at length on several days regarding the recoveries particularly that of the head. We do not find any serious infirmity in his evidence. We have to point out that all the submissions of the learned counsel involve only appreciation of evidence and both the courts below have considered the evidence of the material witnesses in great detail and as already mentioned we have also examined the same and we are satisfied with their evidence.

Learned counsel, however, lastly submitted that it is not possible to separate grain from the chaff in such cases and some of the accused are not attributed any specific overt acts and that the appellants cannot be convicted on such omnibus allegations. The way the crime has been perpetrated would manifest the object of the unlawful assembly and every member of such unlawful assembly would be squarely liable.

8.We see no merits in these appeals and the same are accordingly dismissed.

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