& Ors Vs. State of U.P  Insc 295 (18 July 2002)
Sabharwal, H.K. Sema. Y.K.Sabharwal, J.
Appeal (crl.) 201-202 of 1998
these appeals Arjun Singh, Rakesh, Mahesh, Rajbir and Sarjan Singh are the
appellants. They have been convicted by the impugned judgment of the High Court
for offences under Sections 147 and 302/149 IPC and ordered to undergo one
year's rigorous imprisonment each for offence under Section 147 IPC and life
imprisonment for offence under Section 302/149 IPC. The High Court had, thus,
allowed the State appeal against acquittal in respect of Rakesh, Mahesh, Sarjan
Singh and Rajbir and also the appeal of the State wherein Arjun Singh's
conviction by the Sessions Court under Section 304 Part II/149 instead of
302/149 had been challenged. The Sessions Court had imposed on Arjun Singh the
sentence for a period of five years for offence under Section 304 Part II/149
IPC besides one year for offence under Section 147 IPC. The appeal of Arjun
Singh challenging his conviction by the Sessions Court was dismissed by the
the aforesaid five accused along with Bhanwar Singh who died during the pendency
of the appeal before the High Court were charged, inter alia, for offence under
Sections 302/149 IPC for the murder of Dharam Pal. Along with Arjun Singh, Bhanwar
Singh was also convicted by the Sessions Court for the offence as aforesaid for
which Arjun Singh was convicted and similar imprisonment was imposed on Bhanwar
Raja Ram was an M.L.A. Bhanwar Singh was his brother. Arjun Singh and Sarjan
Singh are the sons of Raja Ram. Rajbir is his nephew. Mahesh was Secretary of
the said Raja Ram. Dharam Pal, deceased in the present case, was accused of
murder of Raja Ram. Dharam Pal was the uncle of Subhash Chand, PW1, who is the
son of one Ambar Singh. Subhash Chand, Dharam Pal and Ambar Singh and one Laik
Singh were four accused in the case of murder of Raja Ram which had taken place
on 20th May, 1973. The incident which is the subject
matter of these appeals took place on 20th February, 1975, when trial against Subhash Chand, Dharam
Pal, Ambar Singh and Laik Singh was pending. They were convicted of the offence
of murder of Raja Ram by Court of Sessions on 9th April, 1977, which was, however, set aside by the High Court in appeal
on 6th November, 1984.
Chand, made a written complaint to the police which is the basis of the
recording of the FIR, that, he accompanied by Dharam Pal was returning from the
house of his Aunt and when they reached near octroi out-post, on pushing of
bicycle by Bhanwar Singh, Rajbir, Arjun Singh, Rakesh, Mahesh and Raja Ram's
younger son, Dharam Pal fell down. These people started beating Dharam Pal and
he took refuge in the lane and kept on looking these persons beating Dharam
Pal. The incident was seen by several persons viz. Rajbir, Ram Khilari (PW2), Kishan
and Partap etc. PW1 requested in his report that Dharam Pal be got released
from the house of Raja Ram lest these people may kill him. Soon after the
report was lodged with S.H.O. Police Station, Ferozabad (South), S.I. Dharam
Pal Singh PW4 went to the place of occurrence and found Dharam Pal lying in the
house of late Raja Ram in precarious condition. The accused Bhanwar Singh and Arjun
Singh were arrested from the place of occurrence. Besides other articles, their
blood stained clothes were also recovered. Dharam Pal was sent to hospital. On
the same day while the investigation was under progress, PW4 received
intimation about the death of Dharam Pal in the hospital. According to Bhanwar
Singh who had also lodged a report with the police, Dharam Pal had come to the
house of Raja Ram to molest widow of Raja Ram.
prosecution examined PW1 Subhash Chand, PW2 Ram Khilari, PW4 Dharam Pal Singh
the Investigating Officer, besides PW3 a formal police witness.
Sessions Court disbelieved the story of Dharam Pal having visited the house of
Raja Ram with a view to molest his widow and on consideration of evidence
convicted Bhanwar Singh and Arjun Singh as noticed hereinbefore. Dharam Pal was
not in possession of any weapon. Their conviction by the Additional Sessions
Judge, however, was not under Section 302/149, the offence for which they were
charged but was under Section 304 Part II/149 IPC. The reason noticed by the
learned Additional Sessions Judge for not convicting them of the offence
charged was that it was not clear as to which of the injuries had proved fatal
and who had caused the injuries. Regarding acquittal of the aforesaid four
appellants, in the view of the Additional Sessions Judge, their identity had
not been established and they were not caught from the place of occurrence like
Bhanwar Singh and Arjun Singh.
High Court, as already noticed, overturned the acquittal of the four accused
and along with Arjun Singh they were held to be guilty for the offence of
murder of Dharam Pal under Section 302/149 IPC.
have heard Mr. Sushil Kumar, learned senior counsel in support of appellants Rakesh
and Mahesh, Mr. Bhardwaj for Rajbir, Sarjan Singh and Arjun Singh and Mr. Praveen
Swarup for the State.
up the case of Arjun Singh first it is evident that the Sessions Court
altogether lost sight of the injuries which were admittedly found on Dharam
Pal. Since post mortem report was admitted, the formal proof was dispensed with
on the consent of counsel for all the accused and that is the reason of
non-examination of any doctor in the Court. The following ante-mortem injuries
were found on the body of Dharam Pal.
Lacerated wound- 4 cm x 1.5 cm x bone deep on the right side of the head in
front side about 7 cm above the eye brow.
Lacerated wound- 4 cm x 0.5 cm x bone deep on left side of head 8 cm above the
Contusion- 0.5 cm x 0.1 cm on the fore front of the nose towards down side. The
inner bone was broken.
Lacerated wound- 1.5 cm x 1 cm on left cheek, 4 cm from the angle of mouth.
Many lacerated wounds which were crossing each other on the back from neck to
buttock out of which the big wound was 24 cm x 2 cm and the small wound 2 cm x
1 cm in the area of 30 cm west.
Mark of contusion slanting 4 cm x 2 cm on the back of left shoulder.
Lacerated contusion- 4 cm x 5 cm left side of the neck on the lower side.
Lacerated wound- 1 cm x 0 cm x bone deep on left arm towards lower side as a
result the fore arm bone was broken.
Lacerated wound- 2 cm x 1 cm x bone deep which was 0.5 cm below injury No.8 in
Lacerated contusion mark- 10 cm x 1 cm on the left arm above the injury No.8.
Lacerated contusion marks 4 in numbers the biggest one was 7 cm x 2 cm to 20 cm
x 1 cm on the back side of left fore arm.
Scratch 1 cm x 1 cm on the left small finger joint.
Lacerated wound- 2.5 cm x 5 cm x bone deep on left elbow backside.
Lacerated wound 1.5 cm x 0.5 cm x bone deep on the upper side of right elbow as
a result thereof the lower bone was found broken and it came out.
Lacerated wound 1 cm x 1 cm x bone deep on the back side of left arm pit
Lacerated contusion mark 13 cm x 4 cm in the middle of right arm.
injury- 4 cm x 1 cm on the back side middle of right finger of right hand.
Mark of contusion which was on the whole case of the back of both the hands.
Lacerated wound- 5 cm x 4 cm on the left thigh which was on the area of 6 cm
above the knee.
Scratch 1.5 cm x 0.5 cm upper side of left knee.
Six lacerated wounds out of which 2 cm x 1 cm x bone deep as a result thereof
the lower bone was broken and it came out.
lacerated wound on right leg each having the area of about 3 cm x 1.5 cm x bone
Scratches on the backside of left knee.
Lacerated wound 0.5 cm x 1 cm x bone deep on left knee of left side injury
of the injuries are clearly deep injuries on head. The Sessions Court did not
consider the impact of these injuries and instead convicted accused Arjun Singh
for offence under Section 304 and not under Section 302 on the ground that it
was not clear as to which of the injuries had proved fatal. The High Court has
given valid and justifiable reasons for setting aside the conviction under
Section 304 and convicting the accused for offence under Section 302/149 IPC.
Regarding the reason as to who had caused injuries, the Sessions Court lost
sight of the fact that the accused has also been charged for offence under
Section 302/149 IPC. The view of the Sessions Court was clearly perverse and
the High Court rightly convicted Arjun Singh as aforesaid.
to the appeals of the other four accused, Rakesh, Mahesh, Rajbir and Sarjan
Singh, the Additional Sessions Judge after rejecting the defence story of Dharam
Pal having visited the house of late Raja Ram to molest his widow held that Bhanwar
Singh along with Arjun Singh and some other persons whose identity had not been
properly established were concerned in the matter. In view of the identity not
being established these four accused were acquitted by the Additional Sessions
Judge who held that there might be some other Rajbir and some other Rakesh and
some other Mahesh though undoubtedly Mahesh was the Secretary of Raja Ram and
was involved in getting the bail of PW1 cancelled in the murder case against
him. No specific role was established against him and insofar as Sarjan Singh
is concerned his name was not mentioned in the FIR and for these reasons they
were entitled to benefit of doubt, their identity having not been established.
In the FIR though name of Sarjan Singh was not mentioned but person concerned
was mentioned as younger son of Raja Ram. The High Court on thorough scrutiny
of the evidence has reversed the judgment of acquittal of these accused and in
our opinion rightly. The doubt in the story of the prosecution has to be
reasonable and not imaginary.
stands established that Rajbir is the son of sister of Raja Ram. Mahesh was his
Secretary. He was responsible for getting the bail of Subhash Chand cancelle d.
Sarjan Singh is the younger son of Raja Ram. The names of these three along
with Rakesh are mentioned in the FIR. The learned Additional Sessions Judge ha
s also disbelieved the defence that injuries on Dharam Pal were the result of
hi s fall. The omission to mention the parentage of the accused and the
witnesses in the written report of PW1 did not show that the FIR was written
facts of the case, it rather lends assurance to the testimony of Subhash Chand.
The report was lodged within minutes. The anxiety of PW1 was to save Dha ram
Pal from being beaten by the accused. He wanted immediate action. The con duct
of Subhash Chand was even held by Additional Sessions Judge to be natural.
Additional Sessions Judge also observed that it was natural for Subhash Cha nd
not to intervene in view of the armed persons who were beating Dharam Pal. D espite
this evidence these four were given benefit of doubt on the ground of the ir
identity not being established. The High Court very rightly held that on the
testimony of PW1 corroborated from other records it stood established that thes
e persons had committed the murder of Dharam Pal. They were found guilty of the
charge under Section 302/149 and Section 147 IPC. The dispute about the identi ty
was only a red herring. It was only a smoke screen. Mr. Sushil Kumar submit ted
that the High Court was under a wrong impression that Mahesh was son of dece ased
Raja Ram, for the reason that the name of the father of Mahesh was also Raj a
Ram although it was Raja Ram Vaish and the name of the deceased was Raja Ram Yadav.
It does seem that the High Court has wrongly noticed that the Mahesh is the son
of deceased Raja Ram. That mistake, however, is of no consequence in the facts
and circumstances of the present case. Mahesh was identified by PW1 and PW2. He
was responsible for getting the bail of PW1 cancelled. He was the Secretary of
Raja Ram. There could be no question of PW1 and PW2 taking some other Mahesh as
the Mahesh accused. Enmity between the two groups was admitted and fully
established. The doubt that on account of the said enmity PW1 may name these
four accused could only mean that the court may, on material aspects, look for
corroboration to the testimony of PW1. In the present case the testimony of PW2
also lends credence to the prosecution story. PW2 was also one of the persons
to have witnessed the occurrence and was named in the FIR. He has deposed to
have seen all the six accused beating Dharam Pal and four having left before
arrival of police. Bhanwar and Arjun Singh were found by police on spot. He has
also identified all the accused. PW2 having not intervened or shouted was
explained by him. He deposed that seeing the incident, he was frightened as
earlier Raja Ram had been murdered. The conduct of PW2 was very natural. He was
friendly with accused Rakesh and used to visit his house. He did not know any Rakesh
other than the accused Rakesh. He also knew Mahesh and Rajbir. It was not
suggested that he had seen any other Mahesh or Rajbir. Mr. Sushil Kumar,
learned counsel, referring to the testimony of Investigating Officer submitted
that despite perusal of case diary he could not mention the parentage of the
accused persons in the site plan. It would only show that the parentage of
these accused persons was not mentioned in the site plan. In the facts and
circumstances of the case that is of no consequence having regard to the
testimony of PWs1 and 2.
present case is not of mere substitution by High Court of its view for that of
the Sessions Court as contended by Mr. Sushil Kumar and Mr. Bhardwaj. Clearly
the view of the Sessions Court was perverse. On material on record and in the
facts and circumstances of the case it was not a reasonable view to take that
identity of the four accused had not been established. We have gone through the
evidence. In our view no other reasonable view than what was taken by the High
Court was possible. The High Court has for just and cogent reasons reversed the
judgment of acquittal passed by the Additional Sessions Judge.
the aforesaid reasons we find no substance in any of these appeals. All the
appeals are accordingly dismissed. The conviction and sentence imposed by the
High Court on all the appellants is confirmed. The appellants who are on bail
shall be taken into custody forthwith to serve the remaining part of their