Indra Pal Singh Vs.
State of U.P. [2008] INSC 2058 (2 December 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1247 OF 2006 Indra
Pal Singh ..... Appellant Versus State of U. P. ..... Respondent WITH
CRIMINAL APPEAL NO. 90 OF 2007 Jagat Singh ..... Appellant Versus State of U.
P. .....
Respondent
Lokeshwar Singh
Panta, J.
1.
Both
these appeals arising out of the common judgment and order dated 09.12.2005
passed by the Division Bench of the High Court of Judicature at Allahabad in
Government 2 Appeal No. 2004 of 1981, were heard together and shall stand
disposed of by this common order. By the impugned order, the High Court while
setting aside the judgment of acquittal dated June 5, 1981 recorded by the
Additional Sessions Judge, Hamirpur, in Sessions Trial No. 293 of 1980,
convicted the accused under Section 302 read with Section 149 and Section 148
of the Indian Penal Code and sentenced them to imprisonment for life and two
years' rigorous imprisonment respectively.
2.
Brief
facts of the case are that Subedar Singh (P.W. 1) has got three sons, namely,
Jai Karan Singh, Shiv Karan Singh and Ram Karan Singh. P.W. 1 lodged F.I.R.
(Ex. Ka.1) on 24.07.1980 at 6:15 a.m. at Police Station, Sumerpur situated at a
distance of about 15 kms. from village Patyora, alleging therein that in the
year 1976 dacoity was committed at the house of his co-villager Lalloo Singh,
who doubted that the offence was committed at the instance of his son Ram Karan
Singh and on that account Lalloo Singh had entertained grudge against him and
his family members. One Raja bhiah, resident of village Surauli was also
involved in the 3 said dacoity case and P.W. 1 appeared as a defence witness
for accused Raja bhiah and for that reason also, sons of Lalloo Singh used to
threaten him with dire consequences. He alleged that on 23rd July, 1980 his son
Jai Karan Singh had gone to the market at Sumerpur and in the evening P.W. 1
went to Yamuna South Bank railway station to receive his son, who was to bring
some essential articles from the market. At about 7:30 p.m., the train reached
at Yamuna South Bank station. Jai Karan Singh along with Shiv Nath Kewat,
Dayalu (P.W. 4) and many other persons got down from the train. He took gunny
bag containing 15 seers of `khalli' from Jai Karan Singh who was carrying one
more bag containing 3-4 kgs. of sugar. All of them proceeded towards the
village. At about 8:30 p.m., they took a turn from Link Road for the pathway
going to the village and Jai Karan Singh was going a few paces ahead of them.
Ayodhya Singh son of Lalloo Singh and Indra Pal Singh son of Prithvi Singh
armed with DBBL guns and Ranvijay Singh son of Lalloo Singh along with one
Jagat Singh son of Rajwa Singh armed with SBBL guns and Ram Bahadur Singh son
of Lalloo Singh who was carrying lathi and torch 4 were waiting for the
arrival of his son Jai Karan Singh by the side of the pathway. Ayodhya Singh
fired gunshot at Jai Karan Singh and immediately thereafter Ranvijay Singh,
Jagat Pal Singh and Indra Pal Singh indiscriminately fired rounds at Jai Karan
Singh with their respective guns. Jai Karan Singh, on receiving fire arm
injuries, fell down near the water channel and ridge of the field of one Brinda
Singh towards east side of the path way. The witnesses present at the spot
flashed torches at the faces of the accused and recognized them in torch light.
The accused, after committing the crime, fled away from the scene of
occurrence.
3.
P.W.
1 with the help of his co-villagers took the body of deceased Jai Karan Singh
to his house at village Patyora. He got FIR scribed from his son Shiv Karan
Singh (P.W. 5) at 3:00 a.m. on the following day of the incident and thereafter
went to the Police Station, Sumerpur. He handed over the report to the H.M.
Rajendra Veer Singh (P.W. 6) who prepared Check Report on the basis of which
FIR (Ex. Ka.1) came to be registered. Sub-Inspector Asha Ram Tripathi (P.W. 7)
took up investigation of the crime in his hand and rushed to the place 5 where
the dead body of Jai Karan Singh was laid. He drew inquest proceedings on the
dead body and prepared an Inquest Report (Ex.Ka.5) and other necessary papers
(Ex. Ka.6 & Ka. 7) and then handed over the dead body in a sealed cover
(Ex.Ka.9) along with other necessary papers to Constables Raghuraj Singh and
Raja Ram for being taken to the doctor for post mortem. He also recorded
statements of the witnesses.
Site Plan (Ex. Ka.12)
was also prepared and from the place of occurrence blood-stained sample was
taken into possession vide Memo (Ex. Ka.9). Two empty cartridges and 3 tiklis,
etc. were collected vide Memo (Ex.Ka.10) from the scene of occurrence. After
receipt of the post mortem report (Ex.Ka.5) from Dr. P.N. Singh (P.W. 2) and on
completion of the investigation, P.W. 7 submitted charge sheet against the
accused persons. They pleaded not guilty to the charges and claimed trial.
4.
The
prosecution examined P.W. 1 - Subedar Singh, father of the deceased and Dayalu
P.W. 4 as eye witnesses of the occurrence; P.W. 2 Dr. P.N. Singh conducted autopsy
on the body of Jai Karan Singh on 25 July, 1980 at 11:00 a.m.;
6 P.W. 3 - H.G.
Dibiya produced the case papers in the court; P.W. 5 - Shiv Karan Singh,
brother of the deceased, was scribe of report (Ex. Ka. 1) on the dictation of
his father; P.W. 6 - H.M. Rajendra Vir Singh prepared the check report at the
police station on the basis of the written report handed over to him by P.W. 1
who made an entry regarding registration of the crime in G.D. and P.W. 7
Sub-Inspector Asha Ram Tripathi, Investigating Officer of the case.
5.
The
accused in their statements recorded under Section 313 of the Code of Criminal
Procedure, 1973 denied the allegations of the prosecution. They pleaded that
they have been framed in a false case due to enmity. The learned trial judge
disbelieved the evidence of the prosecution witnesses and found the accused not
guilty of the charges levelled against them and accordingly, acquitted them.
6.
Being
aggrieved by the order of acquittal of the accused recorded by the trial judge,
the State of U.P. filed an appeal before the High Court. The Division Bench of
the High Court by its impugned judgment and order allowed the said appeal and
convicted the accused persons under Section 302 read with Section 149 and
Section 148 IPC and sentenced them in the manner noticed above. The judgment of
the High Court reveals that accused-Ram Bahadur has died, therefore, the appeal
against him stood abated by order dated 03 June, 2005.
7.
Feeling
aggrieved by and dissatisfied with the judgment and order of the High Court,
Indra Pal Singh and Jagat Singh, the appellants herein, filed Criminal Appeal
No. 1247 of 206 and Criminal Appeal No. 90 of 2007 respectively. It appears
from the record that Ayodhya Singh and Ranvijay Singh have not questioned the
judgment of the High Court holding them guilty of the charges.
8.
We
have heard the learned counsel for the appellants and the learned counsel for
the State and they have taken us through the evidence of the witnesses and
other materials on record.
9.
Learned
senior counsel for the appellants first submitted that there was considerable
delay in lodging the FIR (Ex. Ka1) by P.W. 1 therefore, no reliance can be
placed on such a document. On examination of the evidence, it is clearly
established that the occurrence took place on 23.07.1980 at about 08:30 p.m.
near village Patyora in which the accused allegedly fired gun shots at Jai
Karan Singh and FIR of the occurrence was lodged at about 6:15 a.m. on the
following morning at Police Station, Sumerpur which is situated at a distance
of about 15 km from the place of occurrence. The High Court observed in its
order that no specific question was put to P.W. 1-Subedar Singh, the informant,
as to why he did not lodge FIR of the occurrence at police post Surauli which
is quite near to village Patyora. On appraisal of the evidence of P.W. 1, we
find that he has given explanation that due to fear from the accused and
non-availability of conveyance, he could not promptly go to the police station
to lodge FIR of the occurrence. He stated that after the murder of Jai Karan
Singh by the accused, he with the help of his co-villagers took the dead body
of his son from the place of occurrence to his house and since they were all
wailing and grief stricken he got the report of the occurrence scribed by his
second son Shiv Karan Singh (P.W.5) at about 3:00 a.m. on the following morning
and then at about 4:00 a.m. he proceeded to the police station, Sumerpur and
handed over the written report to the police official present there. In these
circumstances, the explanation offered by P.W. 1-Subedar Singh for not lodging
the FIR soon after the occurrence, in our view, was quite satisfactory and
convincing and there was no deliberate delay on his part in reporting the crime
to the police. The first contention therefore, cannot sustain.
10.
It
was next contended on behalf of the appellants that the learned trial judge has
noticed several contradictions and omissions in the versions of P.W. 1 -
Subedar Singh and P.W. 4 - Dayalu, the alleged eye witnesses and therefore,
their evidence has been rightly rejected by him, but on the contrary the High
Court has mis-appreciated the evidence and found the accused guilty on
unsatisfactory and unbelievable evidence. In order to appreciate this
submission, we have independently examined the evidence of both the witnesses.
It is the evidence of P.W. 1 that on 23rd July he had sent his son Jai Karan
Singh (deceased) to Sumerpur market by train for purchasing khalli for the
cattle and sugar for household use and his son was to return to the village in
the same evening and therefore he went to the South Block railway station where
the train reached at about 8:00 p.m. Jai Karan Singh got down from the train
and he was carrying one gunny bag containing 15 kgs of khalli and second bag
containing 3 kgs. sugar. He took gunny bag of khalli from his son and started
going to their house along with Shiv Nath, Laali, Dayalu (P.W. 4) and others
who also alighted from the same train. Jai Karan Singh was going few paces
ahead of him and other co- villagers. They left the Link Road and took turn on
the pathway leading to their village and when Jai Karan Singh reached near the
field of one Brinda Singh, Ram Bahadur Singh (accused-dead) shouted that their
enemy had reached and should be killed. Ayodhya Singh fired at Jai Karan Singh
with DBBL gun followed by Jagat Singh, appellant in Criminal Appeal No. 90 of
2007; Indra Pal Singh appellant in Criminal Appeal No.1247 of 2006 and Ranvijay
Singh each fired at his son with their respective guns and on receiving the
fire arm injuries, Jai Karan Singh fell near the water channel of the field of
Brinda Singh. P.W. 1 and other persons accompanying him recognized all the
accused in the torches' light which they were carrying with them and also in
the moonlit night. The accused, after committing the crime, fled away from the
scene of occurrence. He requested Jagani, his co-villager, who was also coming
back from the railway station and going to the village, to inform the members
of his family about the murder of Jai Karan Singh. He with the help of his
companions present at the place of occurrence took the dead body of his son to
his house.
P.W. 4 - Dayalu fully
corroborated the testimony of P.W. 1. He deposed that he recognized the
appellants and other accused persons clearly in the moonlit night and in the
light of torches flashed by Shiv Nath and Ram Bahadur Singh at the time of
occurrence. The trial judge has disbelieved the version of P.W. 4 - Dayalu on
the ground that the witness only stated that accused Ram Bahadur Singh and
witness Shiv Nath (not examined) were accompanying P.W. 1 and deceased Jai
Karan Singh and they flashed their torches and no other person was in
possession of any torch, whereas P.W. 1- Subedar Singh stated that he and Shiv
Nath flashed torches on the faces of the accused. This minor discrepancy
appearing in the evidences of P.W.1 and P.W. 4 is insignificant and immaterial
to discard the testimony of P.W. 4 that he was not present at the place of
occurrence. P.W. 1 has stated in the FIR that he and Shiv Nath flashed torches
on the faces of the accused and in the torch light the accused were clearly
recognized who after committing crime, had fled away from the scene of
occurrence. P.W. 1 and P.W. 4 have categorically stated before the Court that
in addition to torch light it was moonlit night in which the accused were
easily recognized by them. It is the evidence of P.W. 7 that at about 9:30 a.m.
on the following morning of the incident, he took torches from P.W. 1 and Shiv
Nath and on inspection thereof, these were found in working condition. Thus,
the High Court has rightly held that the trial judge has given undue importance
to such minor inconsistencies appearing in the statements of the two eye
witnesses which are of very trivial nature and the accused could not have been
acquitted on such insignificant contradictions.
11.
The
learned senior counsel then contended that the statement of P.W. 4 was recorded
by the Investigating Officer after about 7-8 days from the date of occurrence
which would also prove that P.W. 4 was not present on the spot as projected by
the prosecution. It is the evidence of P.W. 4. that in the early morning of the
following day of occurrence, he had gone to Hamirpur for doing work and stayed
there for about 7-8 days. The trial judge disbelieved the testimony of this
witness on the ground that the witness could not disclose the name of the shop
keeper from whom he purchased blade for his randdha at Sumerpur market on the
day of occurrence.
We are of the considered
view that the approach of the trial judge in appreciating the evidence of the
eye witness was wholly unwarranted and uncalled for. The presence of P.W. 4 at
the time of the incident has been fully proved on record and his evidence is
consistent and trustworthy to prove that the accused persons had fired gun
shots at Jai Karan Singh on the day of occurrence when he along with deceased
Jai Karan Singh; his father P.W. 1, and other co-villagers were returning from
the railway station to their village. The trial judge observed that as per the
post mortem report deceased Jai Karan Singh was a young man of 35 years of age
and of good built and, therefore there was no need for P.W. 1-Subedar Singh to
go to the railway station to take a bag of khalli from his son and carry the
same from the railway station to the village. It has come in the evidence of
P.W. 1 that his son Jai Karan Singh was a patient of asthma and therefore he
used to be vigilant that his son should not take much physical strain and
because of that reason he went to the railway station to share with his son the
burden of the load of one bag containing 15 kgs. of `khalli'. We do not find
anything wrong if P.W. 1 had gone to the railway station for extending some
help to his son. Thus, the entire approach of the trial court in appreciating
the evidence of the eye witnesses is perverse and grossly improper.
12.
Learned
senior counsel for the appellants next contended that the ocular testimony of
P.Ws. 1 and 4 has been rightly discarded by the learned trial judge as their
testimony is at variance with the medical evidence. It was contended that both
the eye witnesses have stated that 4 gun shots were fired at the victim, but a
perusal of the post mortem report would go to show that P.W. 2 - Dr. P.N. Singh
found only 3 fire arm 15 wounds on the body of the deceased. We have examined
the evidence of Dr. P.N. Singh, who at the relevant time, was posted as Surgeon
at District Hospital, Hamirpur, and conducted autopsy on the dead body of Jai
Karan Singh on July 25, 1980 at about 10:00 a.m. and found the following ante
mortem injuries:-
1. Gun shot wound of
entry 4.5 cm X 4 cm X brain deep on the left side of head near the external
ear, upper part of external ear was lacerated, the brain matter was seen coming
out of the wound, tattooing was present all around, fracture of left temporal
bone was present.
2. Gun shot wound of
entry 2.5 cm X 2 cm X bone deep on the left side of upper part of the neck near
the ear lobule, lower part of the external ear with ear lobule was lacerated,
tattooing was present.
3. Gun shot wound of
exit 14 cm. X 6 cm X brain deep on the left side of forehead and face,
extending to the left eye, nose and right eye.
4. Gun shot wound of
entry 1.5 cm X 1.5 cm X chest cavity deep on the right side of the chest in
mid-auxiliary line.
5. Gun shot wound of
exit 2 cm X 2 cm X chest cavity deep on left side of chest, lower part in
posterior auxiliary line 16 cm below and behind the left nipple.
6. Gun shot wound of
exit 3 cm X 3 cm X abdominal cavity deep on the left side of back, 4 cm outer
to mid-line.
Face was disfigured
due to injuries and left eye destroyed completely and the right eye was
collapsed. On internal examination of the dead body, Dr. P.N. Singh - P.W. 2
observed that there was fracture of left temporal, parietal, frontal and left
lower jaw and both upper jaw bones.
Membranes of the
brain were torn and lacerated at several places. The brain was pulpy and seen
coming out of the wound. The bone of the skull was fractured. Five small
rounded pellets were recovered from the cranial cavity.
There was fracture of
the left 8th rib behind and right 7th rib in the front. Pleura were lacerated
at several places. The right lung was lacerated and lower lobe at two places.
The pericardium was punctured at 4 places, two in front and two behind. The
heart was empty and punctured at four places, corresponding to that in the
pericardium. There was about half litre blood in the right chest cavity. Two
wadding were recovered from the left side chest cavity and three pea sized 17
pellets were recovered from one in between 6th and 7th ribs on the left side
and one pellet in between 3rd and 4th rib on the left side and near the lower
part of sternum with the fracture of sternum.
In the opinion of the
doctor, the death of Jai Karan Singh was as a result of head injuries and
cerebral laceration and shock and those injuries were sufficient in the
ordinary course of nature to cause his death. A perusal of the post mortem
report would go to show that gun shot wounds of exhibit nos. 5 and 6 were
corresponding to gun shot wounds of entry nos. 2 and 4. Injury no. 3 -
lacerated gun shot wound of exit 14 cm X 6 cm X brain deep on left sides of
forehead and face extending on left eye nose and right eye was corresponding to
injury no. 1 - lacerated wounds (gun shot wound) of entry 4.5 cm X 4cm X brain
deep on left side head near external ear, upper part of internal ear lacerated,
brain matter coming out of the wound. Looking to the size of both the wounds
i.e. one of entry and one of exit (injury nos. 1 and 3) which would appear with
two shots fired from gun hitting the deceased on his head over lapping on left
side of his head because in that 18 position only the size of the wound of
exit may be 14 cm X 6cm X brain deep. On internal examination of the deceased,
left temporal parietal and frontal bones were found fractured.
Left lower jaw was
also found fractured. The brain was pulpy and seen coming out of the wound. The
bone of the skull was also found fractured. Thus, the High Court has rightly
held that there was no real inconsistency between the ocular testimony of eye
witnesses and medical evidence. The finding of the learned trial judge on this
point was contrary to the proper appreciation of the eye witnesses' account
corroborated by the medical evidence and the High Court is right in rejecting
the said finding of the trail court.
13.
The
learned senior counsel for the appellants then contended that there was no
motive for the accused to commit the murder of Jai Karan Singh because as per
the prosecution evidence, the accused, if any, bore grudge against Ram Karan
Singh, the brother of the deceased at whose instance dacoity was committed at the
house of Lalloo Singh and P.W. 1 Subedar Singh appeared as a defence witness
for accused Raja bhiah. The learned counsel also contended that since the 19
deceased was a member of the gang of dacoits, there was every possibility that
he might have been killed in a gang rivalry and the appellants have been
falsely implicated in the present case. There is no evidence on record to
support this contention and it deserves to be rejected. It was urged by the
learned senior counsel that P.Ws. 1 and 4 are interested witnesses and as such
no implicit reliance can be placed on their testimony connecting the appellants
with the commission of the crime. It is no doubt true that P.W. 1 is the father
of the deceased. P.W. 4 is a co-villager of P.W. 1 who has corroborated the
testimony of P.W. 1 on all material aspect of the case and has clearly
recognized the accused persons who on the day of occurrence committed the
murder of Jai Karan Singh. The testimony of P.Ws.1 and 4 has been found to be
satisfactory, consistent and credible by the High Court. Both the witnesses
have been subjected to searching cross-examination by the defence, but nothing
tangible material has been extracted from their evidence to create any shadow
of doubt to disbelieve and discard their truthful testimony.
14.
It
is well-settled that if the eye witness is related to the deceased, his
evidence has to be accepted if found to be reliable and believable because he
would honestly be interested in ensuring that real culprits are punished. We do
no find any merit in any of the submissions of the appellants; therefore, we
confirm the convictions.
15.
On
our examination of the judgment of the High Court, we find that the High Court
has subjected the prosecution evidence to critical scrutiny and has reached the
conclusion that so far the appellants herein are concerned, the charges under
Sections 302 read with Section 149, IPC and Section 148, IPC are fully
established against them. We are, therefore, satisfied that the prosecution has
successfully proved its case against the appellants.
16.
We,
therefore, concur with the view of the High Court and affirming the conviction
and sentence of the appellants, dismiss these appeals.
........................................J.
(Lokeshwar Singh Panta)
........................................J.
(Aftab Alam)
New
Delhi,
December
02, 2008.
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