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Shishupal v. State - CRIMINAL APPEAL No. 1094 of 1982 [2007] RD-AH 9070 (11 May 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Appeal No.1094 of 1982

Shishupal and others.....................................Appellants

vs.

State of U.P. ..................................................Respondent

Hon'ble K.S. Rakhra, J.

Hon'ble Vinod Prasad, J.

( Delivered by Hon'ble Vinod Prasad J.)

Appellants Shishupal, Ragubir Singh and Bihari were tried by Vth Additional Sessions Judge, Mainpuri in S.T. No. 525 of 1979, State Vs. Shishupal and others for offences  under Sections 147, 302/149, 307/149, 148 I.P.C., P.S. Bhogaon, District Mainpuri who found all the appellants guilty of the charged offences and therefore convicted appellant Shishupal under Section 302 I.P.C. and appellants Raghubir and Bihari under Section 302/149 I.P.C. and sentenced each of them to life imprisonment. All the appellants were also convicted under Sections 307/149 I.P.C. and sentenced  to four years R.I. Appellants Shishupal and Raghubir were also convicted  under Section 148 I.P.C.and were sentenced to one years R.I.and appellant Bihari was convicted under section 147 IPC and was sentenced to 6months RI vide impugned judgement and order dated 20.4.1982. All the sentences were ordered to run concurrently. The aforesaid convictions and sentences have been challenged by the three appellants in this appeal.

The necessary prelude to the above appeal lies in an F.I.R.( Ex. Ka-3) lodged by Pancham Singh informant P.W.6 at police station Bhogaon, district Mainpuri on 21.5.1979 at 4.10 A.M. as crime no. 147 of 1979 for offences under sections 147/148/149/302/307/34 IPC in respect of an incident alleged to have taken place on20/21- 5-79 at about 12 a.m. The allegations levelled in the said F.I.R. were that the informant along with his nephew Surendra Singh and servant Saddique were sleeping on the roof of their house in village Bilon PS Bhogaon District Mainpuri at the time of the incident. His brothers Tilak Singh and Ram Bharose Singh were sleeping in the court yard when 100 watt bulb was lighting. At 12 in the night informant and other persons on the roof  woke up hearing the gun fire and they witnessed that appellant Shishupal armed with gun and rest of the three accused, Rati Pal,Bihari,elder son of Maiku Bahelia ( Later on identified as Raghubir) and one unknown person,  all  armed with country made pistols were standing. Shishupal shot at Ram Bharose. Informant raised alarm and came down. Meanwhile  Tilak Singh encircled Bihari appellant from his hands on which rest of the three appellants fired at Tilak Singh from their country made pistols who sustained injuries   and fell down in the court yard. Veer Mohammad , Sovaran Singh and many other co villagers  collected on the spot and surrounded the accused  but the appellants made their escape good towards south west canal firing towards them. The assailants were identified in the bulb light by the witnesses. Ram Bharose succumb to the injuries at the spot itself. Tilak Singh  was got admitted in the hospital by the informant Pancham Singh who thereafter scribed the F.I.R. and lodged it at police station Bhogaon, district Mainpuri on 21.5.1979 at  4.10 a.m. Chik F.I.R.( Ext. Ka-15) was prepared by head Moharrir Virendra Singh who also prepared G.D. entry ( Ext Ka - 16) and S.I. Durga Prasad Sharma  P.W.8 started the investigation.

 On the same day I.O. recorded the statement of the informant Pancham Singh and then performed inquest(Ex. Ka-4) on the dead body and prepared other relevant papers on photlash, challan lash etc. as Ext. Ka.5 to Ka.8 and then handed over the dead body to the Constable Ram Pal and Ramendra Pal Singh for carrying it to mortuary for  the purposes of post-mortem. He thereafter recorded the statements of witnesses Veer Mohammad, Surendra, Saddik, Sovaran Singh etc. prepared the site plan Ex. Ka-9 and conducted spot inspection. He also recovered blood stained earth vide recovery memo Ext. Ka-10. He also recovered blood stained rope  from the cot and beneath it  through recovery memo Ex. Ka-11 and empty cartridge and pellets through Ex. Ka-12. One of the cloth Tahamat (Lion cloth)  was also recovered vide Ext.Ka-13. He arrested Bihari appellant on 22.5.1979. Rest of the two appellants Shishupal and Raghubir surrendered in the court on 6.6.1979.Completing the investigation he submitted charge sheet Ex. Ka.-14 in Court against the three appellants but did not charge sheet Rati Pal accused. The injury of the injured Tilak Singh was examined on 21.5.1979 at 2.25a.m. at  District Hospital Mainpuri by Dr. D.P. Mishra P.W.3 who found following injures on his body:-

1)Lacerated wound 2 cms  x 1 cm x scalp deep on the left side head 5 cms. above left ear.

2)Multiple wounds of wounds of G.S. entrance (four in number) on the front of right shoulder (two are large size 4 cms. x 2.5 cms. Each and lying 2 cms. apart from each other, and two are small each size .5 x .5 cms.) in an area of 8 cms. x 6 cms. The wounds are tissue deep and direction is backwards laterally. Margins are lacerated and inverted. No blackening or tattooing or scorching around the wounds. Kept U.O. Adv. X-Ray.

3)G.S. vs. Of exit four in number in an area of 7 x 6 cms. on the back and outer surface of Rt. Shoulder each size .7 x .7 cms. and are through and through with injury no.2. Margins lacerated and everted.

4)Abrasion 7 cms. X 1.5 cms. on the front of abdomen, lying transversely 2 cms. above the umbilicus. Alleged to have been caused by firearm. No blackening or tattooing or scorching around the wound. Kept U.O. Adv. X-ray to confirm presence of any pellet.  

The autopsy on the dead body of Ram Bharose Singh was performed on 21.5.1979 at 4.00p.m. by Dr. A.N. Saxena P.W.4 who found that the deceased was 17 years of age  and ¾ day had lapsed since his death. He  opined that the death could be caused at the time of the incident. He prepared the post-mortem examination report and proved it as Ext. Ka-2. Doctor  found following injuries on the dead body:-

1)Lacerated wound 24 cm. x 13 cm. brain cavity bone deep extending from Rt. angle of mouth to Lt. Side of occipital C  broken piece of Rt. two incisor & canine of upper jaw. Fracture of Rt. maxilla, palate, Lt. frontal Lt. parietal, Lt. occipital & Lt. temporal, only a part of brain tissue haemorrhage left in cavity. Margins of wound inverted & lacerated. Blackening present over Rt. Side of chin & Rt. Side cheek. Broken pieces of bone present in skull cavity of skull bones.

The tongue of the deceased was lacerated small and large intestine were half full there was faeces and gas in the large intestine. cranial fossa was fractured and membranes lacerated.

After the charge sheet accused were summoned and committed to the court of Session's. V Additional Sessions Judge, Mainpuri  charged  them on 14.7.1980 for respective offences- Bihari appellant was charged under Sections 147, 307/149, 302/149 and rest of the two appellants were charged under Sections 148, 307/149, 302/149 I.P.C. The charge was read over and explained to the accused who denied the same and claimed to be tried.

  The prosecution in support of its case and to  bring home the  guilt  of the accused  examined eight witnesses in the trial out of whom Tilak Singh P.W.1(injured),Saddik P.W.2 (eye-witness),Pancham Singh(informant) P.W.6,  and Sovaran Singh P.W.7 were the witnesses of facts. Dr. D.P. Mishra P.W.3 (who examined the injured), Dr. A.N. Saxena P.W.4, (post-mortem examination doctor), Ramendra Pal Singh P.W.5 Constable (who carried body to mortuary) and S.I. Durga Prasad Sharma (I.O.) P.W.8 were the formal witnesses.

Tilak Singh P.W.1 in his deposition before the court stated that the deceased Ram Bharose, deceased,  was the Vice Chairman( UP Pradhan) of the village and one Om Prakash Paliwal a co-villager had  fought litigation with him regarding a Gaon Samaj land because of that Om Prakash Paliwal nurtured animosity with the deceased. Regarding the incident he deposed that at the date and time of the incident he was sleeping near the deceased on a separate cot in the court yard  were a electric bulb was lighting. Hearing the gun fire he had woken up and saw the appellants with their respective weapons. Shishupal had shot at Ram Bharose Singh with his gun on which he  had jumped from the cot and caught hold of appellant Bihari. Rati Pal, Raghubir  and one another person had fired at him causing him injuries. He further deposed that the  informant Pancham, his nephew Surendra, servant Saddik, Veer Mohammand, Sovaran Singh and other neighbours had collected on the spot on which the accused persons ran away. He also stated that the deceased had lost his life on  the spot itself. He had deposed that the accused persons belonged to the party of Om Prakash Paliwal. He further testified that the  informant and his nephew Surendra Singh had brought him to the  Government Hospital, Mainpuri. He also stated that Om Prakash Paliwal had illegally tress-passed into Gaon Sabha land and he and the deceased had stopped him from capturing Gaon Sabha land because of which the accused persons nurtured enmity. He had also deposed that Ram Bharose was fired at from a distance of two feet and the accused who had fired at him was at a distance of four or five paces towards east. He had admitted that the deceased and the informant are his real brothers. He had been subjected to a very lengthy cross-examination regarding land disputes and the topography but nothing material came out from his said cross-examination. He had further stated that night of the incident was dark. At the time of the incident thrasher was functioning and electric bulb was lighting. He also deposed that during the incident two fires were made at an interval of one or half a minute and the informant and the witnesses could not have got down before the second fire was made. He had deposed further that three fires were made at him at the time when he had caught hold of Bihari appellant and he had sustained only gun fire injury . He had further evidenced that none of the accused persons had tried to conceal their identity by covering their faces. He had denied the suggestion that unknown culprits had shot dead the deceased and had caused him injuries and there was no electricity at the time of the incident.

Saddik P.W.2 and  Sovaran Singh P.W.7 turned hostile and did not support the prosecution version. They were cross-examined by the prosecution regarding their earlier statements during the course of investigation under section 161 Cr.P.C. which they denied having made any such statements. They  were given suggestions  that they had sided with the accused and therefore, were not stating the  truth which suggestion they had denied.

Dr. D.P. Mishra PW 3  who had examined the injured proved his  injury report as Ex. Ka-1  and deposed that the injured was brought by his brother with two types of  gun shot injuries and the wound  of entry were larger then the wounds of exist. He had further deposed that assailants must have been towards left side of the injured at a distance of 12 feet. On being questioned by the court he had stated that injury no.1 of the injured could have been caused by gun fire.

 Dr. A.N. Saxena, P.W.4, who had conducted the autopsy on the dead body of the deceased proved the post-mortem examination report Ext.Ka-2 and proved the injuries sustained by the deceased and  had deposed that  the fire must have been made from a distance of three feet. He had showed some doubt regarding injury no. 1 being caused by gun shot.

Ramendra Pal Singh, Constable, P.W.5 had stated that he had carried the body of the deceased for the purposes of post-mortem from the place of the incident to the mortuary and had identified the body to the doctor.

Pancham Singh, P.W.6 informant of the case supported the prosecution case. He had been subjected to searching cross-examination but nothing material had come out  from it. In all material aspect of the incident he has supported the evidence of the injured Tilak Singh P.W.1. He had further stated that it was wrong to say that there was no electric connection in his house. He had deposed that he, Surendra and Saddik were sleeping at the roof and it had taken them two or three minutes to come down. He had further deposed that injured Tilak Singh had caught hold of accused Bihari when he was fired  at and he had fallen down after sustaining gun shot injury. He had further deposed that form the place of the incident he came to Mainpuri on a tempo and in the way he  had not stopped at P.S. Kotwali while carrying the injured to the hospital as the condition of the injured was serious. He got the injured admitted  and thereafter he had lodged the F.I.R. He had further deposed that none of the accused had veiled their faces and had denied the suggestion that he had not seen any incident and was deposing falsehood.

Durga Prasad Sharma, S.I., P.W.8, I.O. of the crime described various steps under  taken by him as has been mentioned above and had proved the papers, recovery memo, inquest report etc. as exhibits referred to above. In his cross-examination he had deposed that he had conducted the spot inspection at the pointing out of the informant and the witnesses. He had admitted that he had not seized any bulb nor had prepared any recovery memo for the same. He had further deposed that he had not made any report for conducting the test identification parade of Raghuvir Singh appellant as his name was disclosed by the witnesses during investigation. He had further stated that cot of the deceased and injured were at a distance of half feet from a brick paving. He has admitted that he had not sent the recovered blood stained earth for chemical examination. He had denied the suggestion that he had not made any investigation and had falsely implicated the accused persons. He has also proved the blood stained and plain earth as material Ex. 1 and 2, the role of the cot as material Ex.3 and 4, empty cartridges and pellet as  material Ex.5, 6 and 7. He has  further admitted that he has not sent empty cartridges and pellets to the chemical examiner for tallying.  

Appellants in their statement under Section 313 Cr.P.C. took the usual defence of false implication due to enmity and denied their involvement in the incident. They examined Sri V.K. Soti in their defence as D.W.1. Sri V.K. Soti, D.W.1 was the R.G.C. In EDD II, Mainpuri. He had evidenced that electric connection given to the informant and his family members were disconnected. On being cross-examined by the prosecution he had failed to mention as who was the person who had made  entries which he had proved as Ex. Kha-1 and Kha-2 regarding the supply of electric and its disconnection at the house of the informant.  

As has been stated above trial court found the case of the prosecution proved to the hilt and therefore the appellants were convicted and sentenced by it. Hence this appeal.

We have head Sri P.N. Mishra, learned senior counsel in support of this appeal and Sri Danish Iqbal Faridi, learned A.G.A. on behalf of the State.

Sri P.N. Mishra, learned senior counsel contended that it was a night incident and there was no source of light present and the accused persons had not concealed their identity, which is improbable and shows that the appellants were not present on the spot. He further submitted that there is a medical conflict with the ocular version and the prosecution story of catching hold by Tilak Singh P.W.1 of the appellant  Bihari and firing of shots by the other accused persons at that point of time is a cooked up story  and an after thought as no body will take the risk of firing gun shots at the time when his own associate is catching hold the target. He further contended that the F.I.R. is ante-timed and cannot be relied upon and is a belated one. He further argued that there is no independent witness of the incident and the investigation conducted by the I.O. Durga Prasad Sharma is not above board and is full of  anamolies and on the basis of such  half hearted investigation in which no endeavour was made to bring out the complicity of the real culprits in the crime the appellants could not have been convicted. He further submitted that so far as appellant Bihari is concerned no overt act has been assigned to him and therefore, Section 149 will not apply in his case as he had not shared the common object of causing the murder of the deceased and injuring the injured. He further submitted that no x-ray report of injured Tilak Singh was produced by the prosecution during the trial and hence, conviction of the appellants recorded under Section 307/149 I.P.C., in the lack of any evidence that any of the injuries to the injured Tilak Singh was grievous in nature and dangerous to life is bad in law and   has been wrongly recorded. He therefore contended that the appeal of the appellants deserves to be allowed and they be acquitted of the charges.

Learned A.G.A. on the other hand contended that in this case the appellants and the prosecution witnesses were co-villagers and  therefore there  was no difficulty in identifying the appellants. He further submitted that the defence has not been able to establish lack of adequate light at the place of the incident so as to make the identification of the assailants impossible. He further argued that in the  melee of crime it was difficult for the witnesses to see each and every part of the incident and the witnesses who  were on the roof they must have taken some time to come down  and consequently all the part of the incident was not witnessed but since in all material aspects of the incident informant has corroborated the evidence of  injured Tilak Singh therefore, the participation of the appellants is well established. He further submitted that medical report is consistent with the ocular version and no discrepancy has been brought forth in them and hence the guilt of the appellants is well established. He further submitted that the investigation  was conducted fairly and the lapses on the part of the investigating officer doesn't discredit the otherwise acceptable and creditworthy evidence of the witnesses of fact. He concludingly contended that the appeal lacks merit and deserves to be dismissed and the conviction and sentence recorded by the trial court deserves to be affirmed.

We have considered the submissions raised by both the sides and have gone through the evidence and other material on the record of the trial court as well of this appeal. It was stated at the bar by Sri P.N. Mishra, learned Senior counsel that one of the appellant Raghuvir Singh had died. A report was called from the C.J.M. concerned but the same has not been received as yet. Since the appeal was of the year 1982 we thought it fit not to postpone the hearing of the appeal any further for the said  reason and therefore, proceeded to hear the appeal.

From the evidence on record as has been discussed above we find that in this case the prosecution side knew the appellants very well. The incident had occurred in the month of mid May and the F.I.R. was lodged promptly at 4.10 A.M. at P.S. Bhogaon by the informant Pancham Singh. In the incident Ram Bharose Singh had lost his life and Tilak Singh had sustained injures. This being an incident of night the informant Pancham Singh must have taken some time in making arrangement for the tempo to carry injured  Tilak Singh to the hospital to save his life. After carrying Tilak Singh to the hospital and getting him admitted there with the help of his nephew Surendra then the informant scribed the F.I.R. and lodged it at the police station Bhogaon, which was at a distance of 7 kilometres. Looking to all these facts  we are of the opinion that there is no delay in lodging the F.I.R. by the informant and it cannot be said that it is an outcome of concoction and embellishment. The contention of learned counsel for the appellants that the F.I.R. in this case is delayed and therefore, the prosecution version is the outcome of concoction and deliberation therefore does not appeal to us and we repel the said contention. We also take this view because from the injury report of Tilak Singh it is well established that he was brought by Pancham Singh informant to the hospital at 2.25 A.M. were he was got admitted. Consequently, it is established that before lodging the F.I.R. informant was busy in saving the life of the injury which was the most natural conduct on his part.

Further from the medical evidence nothing has been culled out by the defence to indicate that the  injured and the deceased had not sustained firearm injuries. All the accused persons were alleged to have been armed with firearm. Resultantly, the injury report and the post-mortem report fully supports the prosecution version that the injuries were caused to the injured and the deceased with firearm and therefore, medical evidence is consistent with the ocular testimony.

The third submission raised by learned senior counsel for the appellants  that the incident had occurred in night and nobody had seen the incident also does not commend itself to us for the simple reason that both the sides were co-villagers and were known to each other from before. If the appellants were not present at the spot there was no reason for the prosecution side to falsely implicate them in the case of the murder of their near and dear relative. From the prosecution evidence it is clear that the enmity of the Gaon Sabha land  was with Om Prakash Paliwal. Had the prosecution desired to cook up a false case it could have made Om Prakash Paliwal also a main assailant in the crime which it did not endeavour. This fact clearly indicates that no concoction and embellishment was desired by the prosecution nor was endeavoured. Further from the evidence of defence witness the appellants have not been able to successfully established that there was such pitch dark at the time of the incident so as to make identification of the appellants impossible. Tilak Singh had caught hold of Bihari Singh at the time when he shot at.  This must have facilitated Tilak Singh to identify Bihari and the two appellants who were only at a distance of four or five paces form him. It cannot be said that Tilak Singh had no opportunity for identifying the appellants. So far as informant is concerned he had come down from the roof and since the assailants had been well known to him it would have posed no difficulty for him to identify them. The informant would have identified them even from their glimpse and gestures. We have not found any statement by which we can arrive at a conclusion that there was no opportunity to identify the assailants by the two witnesses of fact. The defence has failed to discredit their testimony and make them unreliable witnesses. Tilak Singh P.W.1 himself being an injured his presence on the spot can not be doubted. We find no reason while Tilak Singh  will spare his real assailants and deposed falsely against the appellants. In such a view we do not find that the submissions raised by learned counsel for the appellants can be treated as well merited and therefore, we reject the same as well.

Coming to the next contention of the  learned counsel for the appellants that prosecution version of firing at Tilak Singh at the time when he was catching hold appellant Bihari is concerned we are of the opinion that Tilak Singh was shot at while  he was attempting to catch hold Bihari and therefore, we do not find any discrepancy in the prosecution version from the naturality. We have not been able to find any reason why the prosecution will introduce such a story if it was not a fact.  

Coming to the next  submission of learned senior counsel for the appellant  that no independent witness has been examined in the trial and all the witnesses are related and the two independent witnesses P.W.2 Saddik and Sovaran Singh P.W.7 turned hostile we are of the view that merely because the witnesses of fact are related with the deceased their testimony cannot be thrown out of consideration. The law in this respect is well settled. We only need to repeat the same that if a witness is related inimical or interested his deposition is to be judged with caution for testing the veracity of the statement made by them in the Court and merely because they are related and interested witnesses they cannot be dubbed as untruthful witnesses. It will be travesty of justice to ignore the statement of related witnesses in respect of an incident in which they had no reason to falsely implicate the accused persons. It will be wholly unjust to the prosecution if merely on the basis of relationship the edifice of the prosecution version is blown to crumble down. Further we have not found any reason for the injured Tilak Singh and informant Pancham Singh  to falsely implicate the appellants and to spare the real assailant and spare their arch enemy Om Prakash Paliwal to whom they could have implicated as a real assailants in such an incident which occurred in the night. In such a view we are not in agreement with the contention raised by learned senior counsel that no independent witnesses have been examined and therefore, the implication of the appellants is false. We consequently do not accept the said contention of the accused  as well.

Coming to the last submission raised by learned senior counsel in respect of  Bihari appellant we only need to say this much that he was the  accused  who was caught by injured Tilak Singh when he was shot at. His presence on the spot is not doubtful nor it is doubtful that he was not armed with a country made pistol. He appeared at the seen of the incident along with all the appellants and facilitated in the execution of the crime and then ran away with the appellants firing in the air.  By his conduct he had made himself the member of an unlawful assembly. Being a member of unlawful assembly one the appellant had commit murder and the two others caused injuries to Tilak Singh and therefore, he can be held guilty with the aid of Section 149  I.P.C. as he is presumed to have shared the common object to commit murder. His name is not mentioned in a casual manner as a silent spectator. In such a view we do not find anything favourable in his respect and we also hold him guilty  of the offence with the aid of Section 149 I.P.C.

From the discussions made above we do not find any merit in this appeal, which is liable to be dismissed and we do dismiss the appeal. The appellants are stated to be on bail. They are required to surrender to their bail bonds and surety bonds forthwith. C.J.M. Mainpuri is directed to take immediately steps for their arrest. As soon as the appellants are arrested they shall be sent to jail to serve out the sentence awarded to them by the impugned order and confirmed by us in this appeal. As soon as the appellants are arrested or they surrender before the C.J.M. concerned their surety and bail bonds shall be cancelled.

In the event appellant Raghubir is reported to be dead, C.J.M. Mainpuri is directed to discharge his bonds and sureties and he  need not proceed further in his respect.

Dt.

Rk

 


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