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Shri Lal v. State Of U.P. - CRIMINAL APPEAL No. 2912 of 1980  RD-AH 9072 (11 May 2007)
Criminal Appeal No. 2912 of 1980
Shrilal versus State of U.P.
Criminal Appeal No. 2952 of 1980
Amar Singh versus State of U.P.
Hon'ble Mukteshwar Prasad, J.
Hon'ble K. N. Ojha, J.
(Delivered by Hon'ble K.N. Ojha, J.)
Both these appeals arise out of judgment and order dated 16.12.1980 passed by the then VIII Additional Sessions Judge, Agra in Session Trial No. 359 of 1980. Both the appellants have been convicted under Section 302 read with Section 34 I.P.C. and sentenced to life imprisonment. Shrilal is said to be armed with a piece of Kachcha brick while Amar Singh is said to be armed with a knife. The prosecution case is that the appellants along with two others committed murder of Bachchu Singh in the night of 4/5.4.1980 at about 1.00 A.M. near the brick kiln of Durga Prasad in village Pangai Khera Police Station Tajganj, District Agra. The report was lodged on 5.4.1980 at 8.15 A.M. by Shiv Singh P.W. 3. The distance of the Police Station from the scene of occurrence was about 5 Kms.
According to the prosecution, Bachchu Singh deceased and Veerpal were the nephews of informant Shiv Singh P.W. 3 On 4.4.1980 at about 10 A.M. they had gone to see a fair in village Semari Tal. In the fair, at about 1.00 P.M. the appellants teased Km. Malti Devi P.W. 1, sister of Bachchu Singh and Veerpal. Km. Malti Devi complained of it to her brothers Bachchu Singh and Veerpal, who were annoyed on hearing about the teasing by the accused appellants. They gave a beating to the appellants in presence of Udal, Nanhey P.W. 4 and Udaibir Singh P.W. 8. They pacified Bachchu Singh and Veerpal and rescued the accused persons from their clutches. The accused persons threatened that they would kill Bachchu Singh and Veerpal. Bachchu Singh and Veerpal along with Km. Malti Devi went back to their home from the fair. It is said that Bachchu Singh along with some other boys of the village went to fair in the night at about 9.00 P.M. to hear the Holi songs chanted by the villagers in the fair. After hearing Holi Songs, Bachchu Singh was going to his village at about 2.00 A.M. in the night, when he reached near the brick kiln of Durga Prasad, appellants along with two other persons, who were wearing red shirts caused injuries to Bachchu Singh with knife and Kachcha half bricks. On the shrieks of Bachchu Singh, witnesses Dal Chand, Niranjan Singh P.W. 6 and Darab Singh P.W. 7 reached the spot as they were going in the night to hear the Holi Songs. The witnesses challenged the accused persons but accused persons were successful in killing Bachchu Singh and making their escape good towards west from the place of occurrence but they were seen by the witnesses in the light of torches, which were possessed, by the witnesses.
Other two accused persons could not be identified by the witnesses but the appellants were recognized. When the witnesses reached near Bachchu Singh, he was groaning and crying under pain and within a second he breathed his last. Dal Chand informed about the occurrence to the family members of the victim. On receiving the information, the family members of Bachchu Singh reached at the place of occurrence and saw him lying dead in a pool of blood. Due to fear, family members could not make courage to go to the Police Station to lodge F.I.R. in the night. In the morning, three constables who were on duty in fair, reached at the site. Shiv Singh P.W. 3 reached the Police Station and lodged the F.I.R. at 6.15 A.M. The investigation was taken up by S.I. Ram Niwas Misra P.W. 13. He prepared inquest report of the dead body. The dead body was sent for post-mortem examination which was conducted by P.W. 5 Dr. K.P. Singh on 6.4.1980 at 3.00 P.M. The deceased was aged about 18 years and following ante-mortem injuries were found on his person: -
1. Lacerated wound 1" x 2/10" x up to the bone deep upper side head 3" above the left ear.
2. Incised wound 3/10" x 1/10" x 1" on the left (punctured wound) side neck. 1" below on the outer left ear.
3. Contusion 6" x 2 ½" on the left side angle from mandible
extending to the ear.
4. Abrasion 4 ½" x ½" on the right scapular region.
5. Abrasion 2" x 1 ½" on the right side neck 1" above the clavicle.
6 .Abrasion 1" x ½" on the right outer part of the heel.
Both eyes were blue and swollen. On internal examination, a depressed facture of left parietal bone corresponding to injury no. 1 was found. The membranes and brain were congested. The cause of death was coma as a result of injury no. 1.
On the arrest of Amar Singh, his bush-shirt was found to be blood stained which was got removed by the Investigating Officer.
The appellants denied their participation in the crime. According to the appellant Amar Singh, there are two factions in the village Pangai Khera, one belongs to Jats and other belongs to Jatavas. It was alleged that he being Jatav and deceased being Jat, has been falsely implicated in the case. Shrilal stated in the statement under Section 313 Cr.P.C. that Shiv Singh and others were jealous of him because he had constructed two-storied Pucca House. Shiv Singh and others started having malice due to his prosperity. Therefore, he was falsely implicated in the crime while no witness had seen the occurrence and F.I.R. was an afterthought, which was lodged in the morning after deliberation and consultation.
The prosecution examined 13 witnesses. The appellants did not examine any witness in defence.
Earlier, the appeal was taken by the court and list was revised but none appeared for the appellants, therefore, the judgment was delivered by the Court after hearing learned A.G.A. and appreciating the evidence on record. The appeals filed by both the appellants were dismissed.
Appellant Amar Singh filed Criminal Appeal No. 925 of 2004 before the Hon'ble Apex Court and Hon'ble Apex Court was pleased to set aside the impugned judgment with the finding that the appeal be heard again and be decided on merits.
After remand of the case, a report was called from the court concerned and it has been reported by Additional Sessions Judge, Court no. 8, Agra that appellant Shrilal had died. Therefore, the appeal filed by Shrilal stood abated.
We have heard Sri V.P.Srivastava learned Senior counsel, assisted by Sri Jag Narain, learned counsel for the appellant and learned A.G.A. and have gone through the record.
In this case, motive is said that Amar Singh put his leg from the backside of Chappal of Km. Malti Devi, who had gone to see fair in Semari Tal, which is a neighbouring village. The occurrence did take place on 4.4.1980 at about 10 A.M. when she made a complaint to her brothers Bachchu Singh and Veerpal, they beat Amar Singh in presence of Udal, Nanhey P.W. 4 and Udaibir Singh P.W. 8. The witnesses had intervened. In support of this incident, the prosecution examined P.W. 1 Km. Malti Devi, P.W. 2 Veerpal and P.W. 8 Udai Veer Singh. They had stated that threatening was extended by the appellants to kill Bachchu Singh and Veerpal within 24 hours. But, it would be significant to note that even though Veerpal and Bachchu Singh, brothers of Km. Malti Devi and the appellants were of same village Pachgai Khera but neither any Panchayat was called for nor F.I.R. was lodged about the incident at the Police Station. The case of the accused is that if really such occurrence would have taken place and after such alleged occurrence, Km. Malti Devi, Bachchu Singh and Veerpal had come back from the fair to their home, Bachchu Singh would not have gone alone again in the night of 4/5 of April, 1980 to see fair. P.W. 2 Veerpal had stated that though his father had asked Bachchu Singh and Veerpal not to go to fair as a dispute had already taken place, Bachchu Singh who was aged about 18 years only, anyhow managed to go to the fair without informing his family members as he was interested in enjoying Holi songs in the night which were being sung in the fair.
Learned counsel for the appellant submits that if this dispute had taken place, whole family members of the deceased had become cautious. Even though Bachchu Singh was of immature age, still he would not have gone alone in the fair as threat of revenge was already extended by the appellants and he would have gone there along with some of his friends. But names of none of his friends has been mentioned in the F.I.R. as witnesses nor any such boy appeared before the Sessions Judge to make statement that he had gone there along with Bachchu Singh to enjoy Holi songs and while coming back, Bachchu Singh was killed by appellants and two others.
P.W. 9 Digamber Singh was examined by prosecution, who stated that he is Pradhan of village Pangai Khera and a fair is held at temple of Goddess in the neighbouring village Semari Tal. On 4.4.1980, a fair was held at the temple of Devi and he had gone there to hear the songs. Besides him, Pappu, Bachchu Singh and Hari Singh were also sitting there to enjoy songs. In the night, Pappu Singh and Bachchu Singh had told him that they were going to take water. Amar Singh and two persons in red shirt had asked Bachchu Singh that brother of Bachchu Singh was calling for him. In the morning at 8.40 A.M. he heard that Bachchu Singh was killed near the brick kiln and his dead body was lying there. But his statement is not supported by the F.I.R. or statements of P.W. 2 Veerpal or two witnesses. P.W. 6 Niranjan Singh, P.W. 7 Darab Singh have stated that at the shrieks of Bachchu Singh, they ran to the spot and saw the appellants causing injuries and running away. If Bachchu Singh had gone there with Pappu son of Samandar Singh and Gajjo Singh, the names of these boys would have been stated by the witnesses that accused had run away when one or two witnesses were present on the spot and they also narrate story that injury was caused by appellants and two others. The defence case of the appellant is that there was two faction in the village and P.W. 6 Niranjan Singh and P.W. 7 Darab Singh were of the faction of P.W. 9 Digamber Singh of village Pangai Khera who was Pradhan of the village at the time of occurrence. Thus, even though threatening of killing was extended to Bachchu Singh, still he preferred to go alone from his house to fair is a fact which creates doubt about his visit all alone in the fair. If he would have gone, he must have gone with some boys and at least one or two such boys were natural witness about whom the prosecution is silent. No F.I.R. was lodged about the earlier threatening in respect of incident of misbehavior with Km. Malti Devi. It may be stated that Bachchu Singh was immature that is why in spite of being asked not to go to fair, he went there but the fact can not be ignored that already a dispute had taken place. Even though he was a boy of immature age, he must have fear of threatening in his mind that he would not go to fair in the night alone. Therefore, the real witnesses may be the persons who had gone with him to enjoy the fair but they have not been examined in this case and have not been disclosed by the prosecution.
The occurrence is said to have taken place in the night of 4/5 April, 1980 at about 1.00 A.M. The Police Station is about 5 Kms. from the place of occurrence. PW 6 Niranjan Singh and PW 7 Garab Singh along with Dal Chand are said to be the eyewitnesses of the occurrence. It is also stated by Niranjan Singh, and Garab Singh that Dal Chand was sent to the residence of victim to inform about the murder of Bachchu Singh. The place of occurrence is less than 1 Km. from the residence of the victim. The accused had already run away from the place of occurrence. In the said circumstances, the family members of victim or Shiv Singh would have immediately proceeded for the Police Station to lodge the F.I.R. against Amar Singh, Shrilal and others so that they could be arrested. But, the F.I.R. was lodged on 5.4.1980 at 6.15 A.M. It was the month of April. The fair was going on through out the night. The atmosphere was not solitary and accused had run away. Therefore, there was no such terror that it may be believed that due to fear, the F.I.R. could not be lodged in the night. The case of the accused is that the real culprits could not be seen by any person while in the morning, the dead-body of Bachchu Singh was found near a Nala beside the path. F.I.R. was lodged against the appellants.
The question is that whether statements of two witnesses PW 6 Niranjan Singh and PW 7 Darab Singh deserve to be believed. Both the witness had deposed that the fair was held at the temple of Goddess in the village Semari Tal where religious songs are sung through out the night. This fair takes place in the night. PW 6 Niranjan Singh stated that he was aged about 55 years at the time of occurrence. Darab Singh was aged about 60 years. PW 6 Niranjan Singh had stated that Darab Singh is his uncle. Shiv Singh and Darab Singh are brothers. Shiv Singh is the person who lodged the F.I.R. against the appellants. He has been examined as PW 3. Thus, in this case, the informant and two eyewitnesses are of one family of the same village Pangai Khera. PW 6 Niranjan Singh stated that in the night of 4/5 April, 1980, he Darab Singh and Dal Chand of his village started from his village at about 1.35 A.M. from his village. He was having lathi and torch in his hand. Darab Singh and Dal Chand also had lathies and torches in their hands. When they reached near the field of Nathi Lal at about 1.45 A.M. they heard shrieks of a boy from a distance of 220 steps. When they reached at a distance of 10 or 20 steps from the victim, they heard groaning of the victim. They saw from a distance of 10 or 5 steps that Amar Singh and a person in red shirt were causing injuries to Bachchu Singh with knives. But Shrilal was not there. He also stated that two other persons were also causing injuries with brickbats. Seeing witnesses, they ran away towards west but Bachchu Singh died on the spot. He could not say anything. Niranjan Singh and Darab Singh remained on the spot and sent Dal Chand to inform the family members of the victim. Thereafter, the village persons and family members of the victim came there but no talk could take place for lodging the F.I.R. till morning. He also stated that two accused were armed with knives and in his presence, they caused injuries once or twice. Village Semari Tal is at the distance of 1 or 1½ Kms. from his village and occurrence had taken place in the midway of two places. In his statement, he deposed that he heard groaning of the victim but he did not hear any specific utterance of the victim. While PW 7 Darab Singh deposed that he heard that the victim was saying " MARDALA MARDALA MUJHE BACHAO". Niranjan Singh and Darab Singh both stated that they had seen Amar Singh having a knife. PW 7 Darab Singh further deposed that physical condition of his uncle Niranjan Singh was not good, therefore, he along with him went back to his village. But he did not state this fact to Investigating Officer under Section 161 Cr.P.C. PW 7 Darab Singh also stated that when he heard shrieks "MARDALA MARDALA BACHAO BACHAO", they had made exhortation that they were reaching the spot. PW 7 Darab Singh further specified that in their presence, one knife injury was caused by Amar Singh and another knife injury was caused by co-accused who was wearing red shirt and injuries were caused by Shrilal Lal and another person in red shirt with brickbats. Thus, while PW 6 Niranjan Singh states that only groaning of specific utterance were heard, PW 7 Darab Singh states that " MARDALA MARDALA BACHAO BACHAO" was being clearly stated by the victim. The witnesses stated that when they were at a distance of about 220 steps, they heard the shrieks of the victim. It means all the four accused started causing injuries to Bachchu Singh when Niranjan Singh and Darab Singh were at a distance of 220 steps and they continued to cause injuries when both these witnesses reached at a distance of 10 or 5 steps from the place where the victim was being injured. The witnesses stated that once or twice the knife injuries were caused by two accused persons including appellant within their sight. It means more knife injuries would have been caused by each of the two accused persons including Amar Singh before the victim and accused persons came within their sight. Thus, there should have been many more injuries caused by knives on the body of the victim. The witnesses were aged about 55-60 years. PW 7 Darab Singh stated that health of Niranjan Singh was not normal. But, a perusal of the postmortem report shows that out of six injuries, one lacerated wound on head caused death according to the doctor conducting postmortem examination. Three injuries are in the nature of abrasion and one injury is in the nature of contusion and only one incised wound was found on the dead body of Bachchu Singh, which is injury no. 2. It was 3/10" x 1/10" x 1" on the left neck. If one or two knife injuries were caused by two accused persons each and many other knife injuries would have been caused when Niranjan Singh and Darab Singh covered the distance when they were at a distance of 220 steps before arrival at the spot, only one incised wound would not have been caused by two accused persons including Amar Singh, appellant, who were having knives in their hands. The witnesses have also not specified who caused injury no. 2 in the nature of incised wound whether it was Amar Singh or another person who was wearing red shirt. Thus, the statement of eyewitnesses Niranjan Singh and Darab Singh is not consistent with the number of knife injuries, alleged to have been caused by Amar Singh or one more accused. Considering the age and health of these witnesses, they had challenged the accused persons from a distance of 220 steps in the night, the real culprits would have run away from the scene of occurrence by the time these witnesses reached the spot and could really see as to who were the real persons causing injuries. Therefore, the possibility cannot be ruled out that some persons caused injuries to the victim in the night and they had left the place prior to arrival of these witnesses on the spot and these witnesses could not be the real culprits.
In view of these facts and circumstances, the lodging of the F.I.R. in the following morning while other villagers remained beside the dead body till morning creates doubt about the truthfulness of the statement of the alleged eyewitnesses that they had really seen the appellant Amar Singh causing knife injuries to Bachchu Singh. If Amar Singh had really threatened to commit murder of Bachchu Singh, Amar Singh and all other accused persons would have gone with deadly weapons and Kachcha brick, which was lying at brick kiln, would not have been used in causing abrasions and contusions.
In this case, Niranjan Singh and Darab Singh are said to be interested witnesses. Dal Chand, an independent witnesses, is said to have seen the occurrence and had gone to inform the family members of the victim that murder was committed by the appellant and his associates but Dal Chand has not been examined by the prosecution.
The occurrence is of night and F.I.R. was lodged in the morning. There are contradictions in the statements of witnesses Niranjan Singh and Darab Singh about the words uttered by the victim, which were heard by the witnesses. There is contradiction in the number of injuries, which would have been caused according to the statement of witnesses, and which were really found on the dead body of the victim in the post mortem examination report.
Considering all the facts and circumstances of the case, it becomes a matter of doubt as to whether Amar Singh had participated in the commission of murder of Bachchu Singh, therefore, he is entitled for the benefit of doubt.
The appeal filed by Amar Singh is allowed. The judgment and order-dated 16.12.1980 passed by VIII Additional Sessions Judge, Agra in S.T. No. 359 of 1980 under Section 302 read with Section 34 I.P.C. is set aside. Appellant Amar Singh is acquitted of the charge. Let him be released forthwith.
Office of this Court is directed to send a copy of the judgment immediately to Chief Judicial Magistrate, Agra for sending order to the Jail for releasing Amar Singh.
The appeal filed by Shrilal has already stood abated, as he is no more alive.
Dated: 11.5. 2007
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