& Ors. Vs. State of U.P.  INSC 1772 (2 December 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1035 OF 2005 MOTI LAL & ORS. ...
SUDERSHAN REDDY, J.
This appeal by special leave is directed against the Judgment and
Order dated 14th July, 2003 passed by the High Court of Judicature at Allahabad
in Criminal Appeal No. 2405 of 2002 by which the conviction of the appellants
under Sections 148, 302 read with Section 149, Section 307 read with Section
149, Sections 452 and 427 of the Indian Penal Code (IPC) recorded by the
Sessions Court in Sessions Trial No. 184 of 1995 is upheld except in case of
appellant Sharda Singh whose conviction recorded under Section 148, IPC is
altered to one under Section 147, IPC whereas punishment of death sentence
imposed on the appellants Moti Lal, Surendra Singh, Virendra Singh, Amar Singh
and Dhunnan Singh is reduced to one of rigorous imprisonment for life but other
punishments imposed on all the appellants for commission 2 of offences
punishable under Sections 302 read with Section 149, Section 307 read with
Section 149, Sections 452 and 427 are upheld.
The facts leading to the present appeal are that on the night
intervening 24th/ 25th June, 1994 at about 1.45 a.m., one Motilal, Surendra
Singh, Virendra Singh, Sharda Singh, Miyadi @ Ram Miyadi Singh, Dhunnan Singh,
Amar Singh (all are appellants herein) along with Anil Singh (not approached
this Court) and Thagai Singh (died during trial) armed with deadly weapons
entered the house of one Sita Ram Singh and attacked him and other family
members, resulting instantaneous death of Sita Ram Singh and his two sons
namely Surinder Singh and Jai Govind and also injuries to the other family
members of Sita Ram Singh. The assailants had also set fire to a motorcycle
parked in the house of the deceased Sita Ram Singh. In the attack, the
appellants used country made pistols (katta), gun, bomb, iron rod (ramma),
pharsa fitted lathi etc. The cause of attack is due to rivalry between the
family of deceased Sita Ram Singh and the attacking party over a piece of farm
land in respect of which some cases were pending in the Civil Courts.
Smt. Manju Singh (PW5) is the wife of the deceased Sita Ram Singh
who also sustained the injuries in the said attack. She is the informant who
rushed to the police 3 station Hata on the same night and got prepared report
(Ex. Ka-1) based on which the First Information Report (Ex. Ka-43) was issued
at about 2.40 am for the offences punishable under Sections 147, 148, 149, 302,
307 and 427, IPC against nine persons including the appellants herein.
The injured were immediately sent to Primary Health Center, Hata
where they were medically examined by Dr. Ghan Shyam Singh (PW8) between 5.30
and 6.30 a.m.
Chandra Misra, Investigating Officer (PW9) visited the place of occurrence and
found the dead bodies of Sita Ram Singh, Surendra Singh and Jai Govind. He
seized the remnants of the burnt motorcycle (Ext. Ka-37), the blood stained
ramma (iron rod with an edge on one end), empty cartridges, wads and pellets
from the spot (Ext. Ka-34 and Ka-35) and prepared a site map, recorded
statements of the injured and others who were found to be conversant with the
incident, made inquest report (Ext. Ka-13, Ka-14 and Ka-15) and sent the dead
bodies for post-mortem. On the same day, he arrested Sharda Singh, Anil Singh,
Virendra Singh, Thagai Singh (died during trial) and Surendra Singh and also
recovered one licensed gun (Ext. Ka-38) from the house of one Toofani Singh who
was found murdered before half an hour of the present occurrence. Dr. K. Singh
(PW7) conducted post-mortem on 26th June, 1994, 4 found ante mortem injuries on
the persons of deceased and opined the cause of death as "shock and
haemorrhage". The post-mortem reports are Exts. Ka-2, Ka-3 and Ka-4. The
Doctor's opinion and the details of ante mortem injuries on the persons of the
deceased need not be referred in detail as they have been noticed by the Courts
below. On completion of investigation, the I.O. submitted charge-sheet against
Motilal, Surendra Singh, Virendra Singh, Dhunnan Singh, Miyadi Singh and Anil
Singh for commission of offences punishable under Sections 148, 302 and 307
read with 149, 452 and 427 IPC whereas Sharda Singh, Amar Singh and Thagai
Singh were charged with the offences punishable under Sections 147, 302 and 307
read with Section 149, 452 and 427, IPC.
Cognizance of the offences was taken by the Magistrate who
committed the case to the Court of Sessions vide Sessions Trial No. 184 of
1995. The appellants pleaded not guilty and preferred trial. The learned
Sessions Judge, upon appreciation of evidence and material available on record,
found that the prosecution has successfully established its case and
accordingly found the appellants guilty of various offences and sentenced them
vide judgment dated 11th June, 2002. The details of the conviction and sentence
awarded are as under:
Appellan Provisions under Sentence 5 the t No. which convicted Awarded accused
Moti Lal 1 Section 302 read Death Penalty and a with Section 149, fine of
Rs.10,000/- IPC in default, S.I. for 3 years.
307 read R.I. for 7 years and with Section 149, fine of Rs.2,000/-, IPC in
default S.I. for 1 year.
452, IPC R.I. for 1 year and fine of Rs.500/- in default, S.I. for 3 months
Section 427, IPC R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3
months Section 148, IPC R.I. for 1 year Surendra Same as shown Same as shown
against Singh 2 against Appellant Appellant No.1 No.1 Virendra Same as shown
Same as shown against Singh 3 against Appellant Appellant No.1 No.1 Amar Singh
Same as shown Same as shown against 4 against Appellant Appellant No.1 No.1
Dunnan Same as shown Same as shown against Singh 7 against Appellant Appellant
No.1 No.1 6 Sharda 5 Section 302 read Life imprisonment and Singh with Section
149, fine of Rs.10,000/-, IPC in default, S.I. for 3 years.
307 read R.I. for 7 years and with Section 149, fine of Rs.2,000/-, IPC in
default, S.I. for 1 year.
452 R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3 months.
427, IPC R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3 months.
148, IPC R.I. for 1 year Miyadi 6 Same as shown Same as shown against Singh
against Appellant Appellant No.5 No.5
The learned Sessions Judge ordered the sentence to run
concurrently and further referred the matter to the High Court for confirmation
of death penalty as is required under Section 366 of the Code of Criminal
Procedure. All the convicts jointly preferred Criminal Appeal No. 2405 of 2002
before the High Court of Judicature at Allahabad challenging their conviction
under different provisions of I.P.C. and imposition of sentences.
The High Court, by the impugned judgment dated 14th July, 2003,
while rejecting the reference made by the learned Sessions Judge for
confirmation of death penalty, awarded life sentence to the appellants Moti
Lal, Surendra Singh, Virendra Singh, Amar Singh and 7 Dhunnan Singh for the
offence committed under Section 302 read with Section 149, IPC and maintained
their conviction recorded under Sections 307 read with Section 149, Sections
452, 427 and 147, IPC and sentences imposed by Sessions Court. The High Court
also confirmed conviction of Sharda Singh, Miyadi Singh and Anil Singh under
Section 302 read with Section 149, Section 307 read with Section 149, Sections
452, 427 and 148, IPC and sentences imposed for commission of those offences. The
High Court further altered conviction of appellant Sharda Singh under Section
148, IPC to one under Section 147, IPC while maintaining the sentence.
Aggrieved by the judgment of the High Court, the appellants preferred the
We have heard learned counsel appearing for the appellants as well
as the State and considered the record of the case.
The prosecution, in support of its case, mainly relied upon the
evidence of Smt. Manju Singh (PW5) and Smt.
Devi (PW6). Be it noted that Smt. Manju Singh sustained (1) two round lacerated
wound of 0.5 c.m.
each present in an area of 1 c.m. on front of right thigh, 18 c.m. above right
knee joint bone.
was present; and (2) two round lacerated wounds of 0.5 c.m. radius each present
at a distance of 4 c.m. from each other in right groin, 10 c.m. above 8 injury
No.1. Bleeding with clotted blood was found present. It was found that injuries
were caused by firearm, simple in nature and were fresh in duration.
the crucial witness and the entire case mainly centres around her evidence.
She, in clear and categorical terms, stated that her husband Sita Ram Singh and
two sons Surendra Singh and Jai Govind were murdered. On the fateful day, they
were sleeping in the house in the Chhappar of Dalan. The appellants Ram Miyadi,
Amar Singh, Moti Lal, Surendra Singh, Virendra Singh, Dhunnan Singh, Sharda
Singh along with Anil Singh and Thagai Singh (since died during trial) barged
into her house. Anil Singh was holding gun, Sharda Singh was having lathi,
Miyadi was having bomb and Moti Lal was holding katta (country made pistol).
Surendra Singh and Virendra Singh were also having kattas. Amar Singh was
having pharsa fitted with lathi. Anil Singh and Virender Singh were sons of
Sharda Singh. Dhunnan Singh was armed with ramma. At the relevant time, the
lights were on in the house. Smt. Kaushalya Devi (PW6) was also sleeping inside
the house. Immediately upon entering into the house, the appellants started
abusing the inmates and indulged in attack during which she also sustained
injuries on her body. The appellants hit her husband and two sons with the
weapons in their hands. It is in her evidence that her husband and two 9 sons
died on the spot due to the injuries inflicted upon them by the appellants. She
also stated that amongst others, Smt. Kaushalya Devi (PW6) had also witnessed
the occurrence. She also deposed that the appellants set fire to the motor
cycle that was parked in the house. Upon hearing the sounds of bomb, guns and
shrieks neighbours came to the spot and witnessed the occurrence. That
immediately after the occurrence, she went to police station, Hata and got
prepared report (Ext. Ka-1) from one Dwarika Tiwari, resident of Hata and
lodged report at police station. The appellants were in inimical terms with
Bichari Singh Vakil who belonged to her family and there was a litigation
pending between them in respect of a piece of farm land. It is also in her
evidence that few minutes before the incident, one Toofani Singh was murdered.
explained that the other witnesses Smt. Vijai Laxmi, Smt. Bela Devi, Ram
Lachhan Singh and Ram Bilas were won over by the appellants. Though this
witness was subjected to intense cross-examination, nothing could be brought on
record to impeach her credibility.
her cross-examination, minor discrepancies with reference to her earlier
statement recorded under Section 161, Cr.P.C. were brought on record which are
trivial in nature and the Courts below rightly ignored them. She herself was
injured in the incident, 10 therefore, her presence at the time and place of
incident can hardly be doubted.
Smt. Kaushalya Devi (PW6), wife of Bichari Singh Vakil
corroborated the statement of Smt. Manju Singh (PW5).
stated that she was sleeping inside her house and woke up upon hearing the
sounds of bomb blast. She heard the appellants shouting that the deceased
killed Toofani singh and therefore, no one in his family should be spared of
their life. It may not be necessary to repeat and recapitulate what has been
stated by her except to notice that she broadly corroborated the statement of
PW5. It is in her evidence that her sister-in-law--Smt. Manju Singh (PW5) went
to police station, Hata to lodge report to police. She also stated that there
was enmity regarding a piece of farm land between her husband Bichari Singh and
Toofani Singh and it so happened that Toofani Singh was murdered in the same
night. Her evidence is fully corroborated by the testimony of PW5 and as well
as the other evidence available on record.
Be it noted, the appellants have not disputed the date and place
of occurrence. According to the prosecution, the incident took place on the
intervening night of 24th/25th June, 1994 at about 1.45 a.m. The report of occurrence
was lodged at 2.40 a.m. on the same intervening night. The police station is at
a distance 11 of about five kilometres. It is in the evidence of Smt. Manju
Singh (PW5) that she went to police station on a cycle of an unknown person.
The fact remains that she and other injured persons were examined between 5.30
and 6.30 a.m. on 25th June, 1994. Dr. Ghanshyam Singh (PW8) who examined the
injured persons, in clear and categorical terms, stated that the injuries could
have been caused at 1.45 am in the same night. In the circumstances there is
nothing on record to disbelieve her evidence.
In this appeal, Shri Nagendra Rai, learned senior counsel
appearing on behalf of the appellants strenuously contended before us that the
appellants have been falsely implicated due to enmity between the parties.
According to him, the first information report was not lodged at 2.40 a.m. as
alleged by the prosecution but it was lodged during day time after due
deliberations to falsely implicate the appellants. The contention was that no
crime number was mentioned in the injury report as well as inquest and it is
clearly apparent even to a naked eye that there was interpolation in the first
information report as regards the timing which makes claim of Smt. Manju Singh
highly unbelievable that in that atmosphere, she went to the police station on
the bicycle of an unknown person and lodged the first information report.
Another 12 aspect highlighted by the learned counsel was that Dwarika Tiwari
who is stated to be the scribe of the report was not examined. These factors
according to the learned senior counsel cast a shadow and doubt on the
Both the Courts below found that there is some overwriting in the
original report (Ka-1) and Chick FIR (Ka-43) as regards the timing. Initially,
it was written as 1.30 a.m. in the night and subsequently some re-writing was
made and time of occurrence was shown as 1.45 a.m. There is no dispute that
Toofani Singh was murdered at about 1.30 a.m. in the same night and the present
incident admittedly has taken place subsequent to the murder of Toofani Singh.
It is thus clear that the occurrence had taken place after 1.30 a.m.
the murder of Toofani Singh and occurrence in the present case had taken place
one after the other in that sequence at different places. It is not in dispute
that the houses of Toofani Singh and deceased Sita Ram Singh are not adjacent
to each other. In the circumstances, there cannot be any doubt whatsoever that
the incident had taken place at about 1.45 a.m. after the murder of Toofani
Singh at about 1.30 a.m. As rightly observed by the Courts below, the police in
some confusion, initially treated the present case as the cross case of Crime
No. 151 of 1994 concerning the 13 murder of Toofani Singh and accordingly
registered the case as Crime No. 151A of 1994. It is evident from the evidence
of Umesh Chandra Misra, the Investigating Officer (PW9) that it was a mistake
on their part to register the present case as a cross case. Having regard to
the facts and circumstances of the case, the corrections, if any, made by the
Investigating Officer or the Station House Officer, as the case may be, in the
first information report do not have any vital bearing on the case of the
prosecution. On that score lodging of the first information report itself
cannot be doubted. Once it is conceded that the occurrence had taken place
after the murder of Toofani Singh at about 1.30 a.m. on the same intervening
night, the overwriting in first information report, if any, itself has no
material bearing on the prosecution's case.
An analysis of the sequence of events apparent from the record
would reveal that admittedly there was enmity between the appellants and
Bichari Singh Vakil who is none other than the elder brother of deceased Sita
Ram Singh with regard to some landed property.
Singh, who is none other than the real brother of appellant Sharda Singh was
murdered at about 1.30 a.m. on the same intervening night and the appellants
suspected that the murder was committed by Bichari Singh and his family
members. The suspicion entertained 14 by the appellants about the involvement
of the deceased led to the murderous attack on deceased Sita Ram Singh and his
family members. Bichari Singh Vakil escaped from the wrath of the appellants as
he was not in the village on that particular day. These facts are clearly
evident from the evidence of Smt. Manju Singh (PW5) and Smt. Kaushalya Devi
(PW6). In the circumstances, the alteration, if any, made in the first
information report as regards the time of occurrence is not of much
Secondly, the distance between the place of occurrence and the
police station is about five kilometres. Smt. Manju Singh (PW5) was not
seriously injured. She explained that her husband and two sons were killed on
that fateful intervening night of 24th/25th June, 1994 and there was no male
members left in the house and it was under those circumstances she had to
muster her courage and reach the police station to lodge first information
report. We find no reason whatsoever to doubt her statement in this regard. It
is true that she admitted in her evidence that apart from the other injured
persons, one Uday Singh who was not injured was also present in the house, but
it is not brought on record as to who this Uday Singh was. There is nothing
strange in Smt. Manju Singh securing the help of a person who dropped her at
the police station on his 15 bicycle. Non-examination of the said person and
equally the non-examination of the scribe of the first information report, in
our considered opinion, are not that fatal to doubt the entire prosecution
story. There is nothing unnatural and improbable in Smt. Manju Singh reaching
the police station and lodging the first information report at about 2.40 a.m.
The omission on the part of the Investigating Officer in not
mentioning the case number in the injury report and inquest is not a ground by
itself to doubt the reliable and clinching evidence adduced in this case by the
prosecution. The Investigating Officer may have committed an error in
registering the first information report lodged by PW5 as a cross case
initially to that of Toofani Singh's murder case which he rectified
subsequently. The Investigating Officer may not have been that diligent that
led to making some corrections in the first information report but that is no
reason to reject the evidence of Smt. Manju Singh (Pw5). The courts below
rightly appreciated the evidence available on record and found the so-called interpolation
in the first information report, if any, itself was no ground to doubt the
Learned senior counsel further submitted that presence of PW6
(Smt. Kaushalya Devi) at the place of occurrence is highly doubtful since her
name is not mentioned in 16 the first information report lodged by Smt. Manju
Singh (PW5). It is well settled that the first information report need not
contain every minute detail about the occurrence. It is not a substantive piece
It is not
necessary that the name of every individual present at the scene of occurrence
is required to be stated in the first information report. It is true that Smt.
Kaushalya Devi (PW6) admitted in her cross examination that she was residing in
Gorakhpur in connection with the education of her minor daughter.
also stated that she very often comes to her village to look after cultivation
of lands and household affairs. It is in her evidence that she came to the
village about 4 - 5 days prior to the occurrence. It is an admitted fact that
deceased Sita Ram Singh and Bichari Singh, husband of Smt. Kaushalya Devi are
real brothers and residing in the same house in the village, but in separate
portions. Bichari Singh has interest in the lands possessed by the family in
the village. There is nothing improbable in Smt. Kaushalya Devi frequently
visiting the village and staying in the house at her own convenience. It is
relevant to note that the Investigating Officer (PW9) stated that on 26.6.1994,
he visited the spot and examined PW6 along with other witnesses. Therefore,
there is no reason to disbelieve her statement that she 17 was very much
present on that fateful night at the scene of occurrence.
Learned senior counsel further contended that absence of injuries
on the person of Smt. Kaushalya Devi (PW6) makes her presence at the scene of
aspect of the matter has been clearly explained by PW6 who was subjected to
very rigorous cross examination that when she came out of her room to see as to
what was happening, the appellants Moti Lal and Virendra Singh after spotting
her, chased her and she ran away and re-entered into her room and bolted the
doors from inside. Two shots were fired aiming at her out of which one hit the
door and the other went through the window hitting the inner wall of the room.
herself from those two shots aimed at her. We do not find any reason to
disbelieve her evidence in this regard as to how she escaped from getting
injured in the melee.
It was lastly contended that even if the prosecution's case is to
be accepted, the appellants Sharda Singh and his son Anil Singh are entitled to
benefit of doubt.
submission was that their presence at the scene of offence is highly doubtful
in view of the categorical admission made by the Investigating Officer (PW9)
that both of them were present in the police station at 2.10 a.m. to lodge
information about Toofani Singh's murder 18 that had taken place in the same
intervening night. We express our inability to accede to the submission made in
this regard. The occurrence took place in the midnight at about 1.45 a.m. The
distance between the police station and the place of occurrence is only about
five kilo meters which could easily be covered within 10-15 minutes. May be the
said appellants went to the police station to inform about the murder of
Toofani Singh and they may have been present in the police station at about
2.10 a.m. Their presence in the police station at 2.10 a.m. does not rule out
their presence at the scene of offence at about 1.45 a.m. The eye-witnesses
Smt. Manju Singh and Smt. Kaushalya Devi, in specific terms, stated in their
evidence about presence of these two appellants at the scene of offence. They
may have been present at the police station at about 2.10 a.m., but on that
count, their participation in the murderous attack on the deceased at about
1.45 a.m. cannot be ruled out.
20.The ocular evidence of PWs 5 and 6 and the medical expert's
(PW7) evidence leads us to an irresistible conclusion that the appellants are
guilty of all the charges levelled against them and the Courts below rightly
convicted all of them for the charged offences.
No other point is urged.
For the aforesaid reasons, we do not find any error whatsoever to
have been committed by the High Court.
Court properly re-appreciated the entire evidence available on record,
considered all the submissions that were made and arrived at the correct
conclusion to confirm the conviction of the appellants under various Sections
mentioned hereinabove. This Court, in exercise of its jurisdiction under
Article 136 of the Constitution, normally does not interfere with such
concurring finding of facts arrived at the Courts below upon proper
appreciation of evidence available on record unless it is shown that such
appreciation suffers from any manifest error resulting in miscarriage of
justice. In the present case, we are satisfied that the Courts below properly
appreciated the evidence and rested their conclusions mainly relying upon the
evidence of PWs 5 and 6 and the evidence of forensic expert Dr. K. Singh (PW7).
We accordingly find no merit in this appeal.
The appeal shall accordingly stand dismissed.