State of U.P. Vs.
Gajadhar Singh & Ors. [2009] INSC 283 (11 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 332-333 OF 2002
State of U.P. ..Appellant Versus Gajadhar Singh and Ors. ..Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in the present appeals is to the judgment of a Division Bench of the Allahabad
High Court allowing the appeal filed by the respondents. The respondents were
found guilty of offence punishable under Sections 302, 307 read with Section
149 of the Indian Penal Code, 1860 (in short the `IPC') by the trial Court. It
is to be noted that two appeals were filed before the High Court by the
convicted accused persons. Criminal Appeal No.2007/1997 was preferred by
Gajadhar Singh (respondent No.1) and Criminal Appeal No.1963/1997 was preferred
by Janardan Singh, Sarvajit Singh, Suresh Singh, Umesh Singh, Mritunjai Singh
and Haribhan Chaudhury. The High Court dismissed the appeal of respondent
No.1-Gajadhar but set aside the conviction so far as appellants in the other
appeal before it. However, so far as Gajadhar is concerned his conviction in
terms of Section 307 read with Section 149 IPC was altered and he was convicted
under Section 323 read with Section 149 IPC. So far as other appellants are
concerned their convictions under Section 302 and 307 both read with Section
149 IPC were set aside and instead they were convicted under Section 323 read
with Section 149 IPC. The conviction under Section 147 IPC was affirmed.
2.
Background
facts in a nutshell are as follows:
The accused Gajadhar
Singh and Umesh Singh are real brothers being sons of Ram Vichar Singh while
Sarvajit Singh accused is son of Janardan Singh. Janardan Singh is the first
cousin of Ram Vichar Singh as their fathers were real brothers. The remaining
two accused, namely, Mritunjai Singh and Haribhan Chaudhury belonged to their
group. Janardan Singh was earlier the Pradhan of Gaon Sabha Bankara Saiyed
Bukhara. In the election scheduled to be held in April, 1995, the office of
Pradhan of the said Gaon Sabha was reserved for a person belonging to backward
caste.
Janardan Singh then
set up Haribhan Yadav (Chaudhary) while Chandra Bhan Singh (hereinafter
referred to as `deceased') set up Ramakant Yadav as candidate for the office of
Pradhan. Janardan Singh himself filed his nomination papers for the membership
of Block Development Committee while deceased Chandra Bhan Singh proposed the
name of Shri Ram Bhar for the said office. The election for the office of
Pradhan commenced in the morning of 7.4.1995 and the polling station was in the
primary school of the village. Chandra Bhan Singh was also the polling agent of
Ramakant Yadav. Shortly after commencement of the polling, Janardan Singh and
some persons of his group started creating disturbance and resorted to rowdism.
Chandra Bhan Singh asked them not to create any disturbance and to allow the
poll to be conducted in a peaceful manner. Janardan Singh then exhorted his
companions that he should be beaten. Thereafter Janardan Singh and Sarvajit
Singh each caught one hand of Chandra Bhan Singh and Gajadhar Singh fired from
a country made pistol upon him and the shot him upon his chest. Shivji Yadav,
Deedan Singh and Keshav rushed forward to save him but the accused Suresh Singh
Umesh Singh, Mritunjai Singh and Haribhan assaulted them with lathis. Chandra
Bhan Singh fell clown and died on the spot. The injured Keshav Singh Shivji and
Deedan Singh thereafter went to the PHC Siyar where medical aid was given to
them and they were also medically examined. Keshav Singh got the FIR of the
incident scribed by Raghav Singh and lodged the same at 12.40 p.m. at Police
Station, Ubhav which is at a distance of 4 miles from the place of occurrence.
Udai Bhan Singh (PW-6), clerk-constable, registered a case in the general diary
on the basis of the FIR lodged by Keshav Singh. Subhash Chandra Sonkar (CW-2),
SI Commended investigation of the case and immediately proceeded for the spot.
The dead body of Chandra Bhan Singh was lying in front of the building of
primary school in village Bankara Saiyed Bukhara. He found blood on the spot
and collected plain and bloodstained earth from there and prepared its recovery
memo. He also prepared a site-plan with the assistance of Keshav Singh and his
statement under section 161 of the Code of Criminal Procedure, 1973 (in short
the `Code') was also recorded by him. After completing other formalities, the
body was sealed and was sent for Post-mortem examination. Subsequently, the
investigation was handed over to T.P. Nanda (P.W.7), who recorded statements of
some others witnesses.
After completion of
investigation charge sheet was filed. As the accused persons pleaded innocence,
trial was held.
Prosecution examined
seven witnesses including the three eye witnesses. The accused examined one
witness in support of their plea of innocence. As per the directions of the
Court three persons were examined as court witnesses. The learned Sessions
Judge believed the case of the prosecution and convicted and sentenced the
accused as noted above.
Before the High Court
in the appeals, the primary stand was that the prosecution evidence was not
reliable. The High Court did not accept the stand. The High Court held that it
was established beyond any shadow of doubt that Gajadhar had fired upon the
deceased Chandra Bhan at 7.45 a.m.
on 7.4.1995 in front
of the building of the primary school which resulted in his death. So far as
other accused persons are concerned the High Court noticed that the evidence
was insufficient. The High Court, therefore, was not inclined to believe that
part of the prosecution case wherein the role of catching hands of the deceased
was assigned to the accused Janardan and Sarvajit Singh. So far as remaining
four accused persons are concerned the High Court noted that they allegedly did
not cause any injury to the deceased. They were armed with lathis but they did
not assault the deceased.
They were alleged to
have caused injuries to three persons, but all the injuries caused by them were
found to be simple in nature. In that view of the matter the High Court found
that the common object of the assembly was not to commit the murder of the
deceased and it was the solitary act of Gajadhar Singh which resulted in his
death. So far as conviction under Section 307 read with Section 149 IPC is
concerned after referring to the nature of injuries sustained by three injured
it was held that Section 307 read with Section 149 IPC had no application and
instead appropriate conviction would be under Section 323 read with Section 149
IPC.
Accordingly, it
altered the conviction.
3.
In
support of the appeals, learned counsel for the appellant submitted that the
accused persons had caused injuries. The evidence of PWs had clearly
established the accusations and, therefore, the High Court should not have
altered the conviction as was done by the trial Court.
4.
Learned
counsel for the respondents on the other hand supported the judgment.
5.
It
is to be noted that conviction of Gajadhar for offence punishable under Section
302 read with Section 149 IPC has been affirmed and the conviction for offence
in terms of Section 307 read with Section 149 IPC has been altered. The appeal
filed by the State of U.P. so far as accused Gajadhar-respondent No.1 is concerned
appears to be without any substance. So far as other accused persons are
concerned, the High Court has in great detail referred to the evidence and
directed acquittal of the other accused persons.
6.
The
evidence on record clearly established that the pistol was concealed and was
not visible to anyone. The High Court rightly noted that the evidence adduced
by the prosecution did not establish that remaining accused persons had any
knowledge that Gajadhar was carrying a country made pistol or that he would go
to shoot the deceased. The testimony of PW-2 shows that Janardan was initially
asking the voters not to caste vote for Ramakant Yadav but to vote for his
candidate and subsequently he had resorted to rowdism in order to disturb the
voting process so that Ramakant Yadav may not win the election and that simple
injuries were caused by blunt weapon to three persons. Therefore, as rightly
observed by the High Court the common object of the assembly was not to commit
the murder of Chandra Bhan Singh and it was the solitary act of Gajadhar. PW-2
had also stated that he had not seen the lathis or country made pistol in the
hands of any of the accused persons at the time when Janardan was disturbing
the voters and was asking them not to caste vote in favour of Ramakant Yadav.
PW-4 i.e. Constable
on duty had also stated that there was fight between the parties regarding
disturbance in voting.
7.
In
view of the aforesaid factual position, we are not inclined to interfere in
these appeals which are accordingly dismissed.
........................................J.
(Dr. ARIJIT PASAYAT)
........................................J.
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