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S. SINGH versus STATE OF U.P.

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S. Singh v. State Of U.P. - CRIMINAL APPEAL No. 3074 of 1981 [2005] RD-AH 287 (31 January 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                                   Reserved

                        Criminal  Appeal No. 3074  of 1981

Singhpal Singh...........................................................Appellant

Versus

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

Hon'ble  Imtiyaz Murtaza, J.

Hon'ble (Mrs) M. Chaudhary,J.

             (Delivered by Hon'ble  M.Chaudhary,J.)

This is an appeal filed by the accused appellant from judgment and order dated 8th of December 1981 passed by Sessions Judge Mainpuri in Sessions Trial No. 40 of 1981 State versus Singh Pal Singh convicting him under section 302 IPC and sentencing him to imprisonment for life thereunder.

Brief facts giving rise to this appeal are  that at about 9:30 a.m. on 12th of November 1980 Smt Maya Devi lodged an FIR at police station Bewar  District Mainpuri alleging that at about 8:00 a.m. that very morning her husband Siya Ram was going from his village  Harsinghpur  to town Mainpuri to see his sister and she was accompanying him to see him off. Her co-villagers  Mohar Pal and Nek Ram were also going to Bewar behind them. As they crossed the bridge of Kali river and proceeded towards  Bewar   Singhpal Singh holding his gun on the bicycle reached there and standing 3-4 paces ahead from Siya Ram told him that now he will see the result of taking his land and fired at him with gun and sustaining the firearm injury  Siya Ram fell down and Singhpal Singh ran away on his bicycle towards the village.  Then Maya Devi with the help of Moharpal and Nekram took her injured husband in a private bus to Bewar and before reaching the bus stand she alongwith Moharpal and Nekram  alighted with her injured husband from the bus and  got report of the incident scribed by one Rajeev, resident of her village. Immediately thereafter she taking her injured husband Siya Ram went to the police station Bewar and handed over written report of the occurrence to the police there.  The police registered a crime against the accused under section 307 IPC and  got injured Siya Ram   sent to Bewar Primary Health Centre  but Siya Ram succumbed to the injuries sustained by him  in the said incident by the time he reached the gate of the Hospital. Then on receiving information regarding death of Siya Ram the police altered the crime under section 302 IPC vide GD entry no.16 at 10:15 a.m. the same morning. Station Officer Indrajeet Sharma who took up investigation of the case in his hands went to the Hospital where the dead body of Siyaram was kept and  drew inquest proceedings on the dead body  and prepared  inquest report (Ext Ka 12) and other necessary papers (Exts Ka 13 to Ka 17)  and handed over the dead body in a sealed cover alongwith necessary papers to constables Mohan Singh  and Ishaq Singh for being taken for its post  mortem. Then he recorded  statements of Maya Devi and other eye witnesses and went to the scene of occurrence. He inspected the site and prepared its site-plan map (Ext Ka 18). He also collected blood stained koltar and concrete and simple koltar and concrete  therefrom and prepared its memo (Ext Ka 19).

Autopsy conducted on the dead body of Siya Ram by Dr S C Dubey EMO District Hospital Mainpuri on 12th of November 1980 at 3:45 p.m. revealed below noted ante mortem injury on the dead body:

Firearm wound of entry 3 cm x 3.5 cm x brain cavity deep on left side of forehead 3 cm above left eye brow round shaped with margins inverted. Clotted blood present around the wound. No blackening, tattooing or scorching present around the wound. Direction of the wound downwards and laterally. Bleeding from nostrils and both the ears present.

On internal examination frontal, left parietal, temporal and occipital bones were  found fractured and brain and its membranes lacerated and base of the skull fractured. Stomach contained 3 oz semi digested food material. The doctor removed four deformed pellets from inside the head injury.

The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about more than six hours and less than half a day ago.

After completing the investigation the police submitted charge sheet against the accused ( Ext Ka 22).

After framing of  charge against the accused the prosecution examined Maya Devi (PW 1) and Nek Ram (PW 2) as eye witnesses of the occurrence.     PW 4 Vijendra Singh  and PW 7 Raj Narayan  were examined as witnesses of the alleged motive.  Testimony of rest of the witnesses is more or less  of formal nature.  PW 3 Dr S C Dubey EMO District Hospital Mainpuri who conducted autopsy on the dead body of Siya Ram proved the post mortem report stating that the ante mortem injuries sustained by him were sufficient to cause his death in the ordinary course of nature.. PW 5  clerk constable  Radhey Shyam  proved check report prepared  by HM Kamal Singh on the basis of  written report handed over by  Maya Devi at the police station and made GD entry regarding registration of the crime  has proved these papers (Exts Ka 3 and Ka 4). He also proved GD entry No. 16 regarding alteration of the crime under section 302 IPC stating that constable Ishaq Singh who had gone with injured Siya Ram taking chitthi mazroobi returned back at the police station at 10:15 a.m. and informed that injured Siya Ram succumbed to the injuries sustained by him by the time they reached at the gate of Bewar Hospital (Ext Ka 5).  He also deposed that special report of the crime was sent to Higher Authorities  at 10:45 a.m. the same day vide GD entry no.18.

PW 6 H C Lakshmi  Narayan  deposed that an  NCR was recorded at the police station on the basis of report lodged by Siya Ram against Singhpal Singh and his father Lal Singh and grand father Prem Singh  under sections 323, 504 and 506 IPC on 28th of June 1980 at 1:30 p.m. and proved GD entry made by clerk constable Ram Sanehi regarding thereto  (Ext Ka 7). He also proved NCR recorded  on the report lodged by  Maya Devi wife of the deceased at the police station against Udaivir and Vishwanath, relations of accused Singhpal Singh on 4th of December 1980 at 4:00 p.m. and GD entry regarding thereto (Exts Ka 8 & Ka 9).  He also proved NCR recorded on the basis of report made by Mohar Pal against Vishwanath and Udaivir, relations of accused Singhpal Singh on 5th of December 1980 and GD entry regarding thereto (Exts Ka 10 & Ka 11).  A perusal of these papers (Exts Ka 8 to Ka 11)  goes to show that Maya Devi and Mohar Pal reported to the police that Udaivir, brother  in-law of Singh Pal Singh  and Vishwa Nath his ''phupha' used to threaten them  with murder if they appeared in the court  and deposed against accused Singh Pal Singh.  PW 8 constable Ishaq  Singh  who alongwith constable Mohan Singh had taken the dead body of Siya Ram in a sealed cover alongwith necessary papers for its post mortem stated the said fact. PW 9 Station Officer Indrajeet Sharma, who investigated the crime has proved the police papers.

The accused denied the alleged occurrence altogether stating that he was  got implicated in the case falsely on account of enmity.

On an appraisal  of  evidence on the record the learned Sessions Judge held the accused guilty of the charge levelled against him and convicted him under section 302 IPC sentencing him to imprisonment for life thereunder.

Feeling aggrieved by the impugned judgment and order the  accused appellant preferred this appeal for redress.

We have heard learned counsel for the appellant and learned AGA for the  State as well.

We have carefully examined the testimonial assertions of both the eye witnesses and other witnesses and gone through the record. We are of  the view that there is no reason whatsoever to doubt or discard the testimony of both the eye witnesses.  PW 1 Maya Devi  wife of the deceased narrated all the facts of the occurrence from the beginning  to the end as disclosed in the FIR. She also deposed that six months prior to the occurrence her husband Siya Ram  had purchased five biswas of land from Lal Singh father of accused Singh Pal Singh for Rs 800. 00 and had taken possession of  the land after paying Rs 800. 00 and that thereafter he constructed a shanty over two biswas out of five biswas  of land purchased and started residing therein along with his family, but subsequently the accused started insisting  upon Siya Ram that he should return that land to him.  Lal Singh, father of the accused also sowed ''Lahi' crop on the  remaining  three biswas of land which was in possession of Siya Ram but that matter was got compromised by the co-villagers. She further stated that two months prior to Siya Ram's murder  Singh Pal Singh alongwith his father Lal Singh  and grand father quarreled with Siya Ram and beat him and that Siya Ram lodged a  report of that incident with the police (Ext Ka 7). She also deposed that some eight days prior to Siya Ram's murder accused Singh Pal Singh set her shanty constructed over the land purchased by Siya Ram on  fire, and all her household goods kept therein burnt to ashes  but Siya Ram did not lodge any FIR of that incident too as the co-villagers got that matter compromised. She further deposed that after her  husband  Siya Ram's murder Udai Pal brother- in-law of accused Singh Pal Singh  and his ''phupha'  Vishwanath used to threaten her  with murder if she appeared in the court in that murder case and deposed against the accused (Exts Ka 8 and Ka 9).  PW 2 Nek  Ram corroborated her  stating likewise on all the material points.  Name of PW 2 Nek Ram finds place in the FIR of the occurrence lodged promptly by Maya Devi wife of the deceased at the police station.  PW 2 Nek Ram had given plausible and acceptable reason for his presence at the spot at the time of assault. He stated that he resided in the same village, that the alleged morning   he was going to the market and that   he also accompanied injured Siya Ram  alongwith his wife Maya Devi to the police station. His name also finds place in GD entry regarding registration of the crime among persons accompanying Maya Devi, the  first informant.  The incident took place on the road in the broad day light. Testimony of the two eye witnesses stands corroborated  by FIR lodged promptly and medical evidence.  We find ourselves in agreement with the findings recorded by the Court below against the accused. However the appellant's learned counsel has advanced the following argument in order to discard the prosecution case and evidence. And now we would deal with them one by one and see if any of them has got any force:

First, the appellant's learned counsel argued that the FIR is ante timed as PW 4 Vijendra Singh, resident of same village  Harsinghpur stated in his cross- examination  that early in the morning the fateful day one Lakhan  Singh informed the co- villagers that Siya Ram was lying dead at a distance of some 7-8 furlongs from the village ; that at that time Maya Devi wife of the deceased was at her parents' house and that on receiving the said information she was got fetched from her parents' house.  This witness was cross-examined by the State Counsel  with the permission of the Court . A perusal of the statement of this witness Vijendra Singh goes to show that he was examined by the prosecution to prove the paper regarding compromise arrived at between Lal Singh father of the deceased on one hand and Siya Ram on the other regarding dispute over land purchased by the latter from the former.  This witness does not appear to be a truthful and straightforward witness  as he stated in his examination-in-chief that Siya Ram and Lal Singh both put their signatures on the compromise and that compromise paper was read over to him and then he put his signatures thereon whereas he deviated therefrom in his cross-examination  by the defence counsel and stated that this compromise paper  was scribed after murder of Siya Ram and that he and Lal Singh put their signatures on that paper. However again in his cross- examination by the prosecution with the permission of the Court  he stated that the compromise paper bears the signatures of Siya Ram and Lal Singh.  This witness Vijendra Singh is an educated person  as he stated that he studied upto   X class. It all goes to show that he has given inconsistent and incongruent statements  on such  a point on which he should have  been firm had he been  a  fair and impartial witness.   Thus in our considered opinion he is not a reliable witness and his said statement that early in the morning that alleged day one Lakhan Singh informed to the co- villagers that dead body of Siya Ram was lying at a distance  of some 6-7 furlongs from the village and that at that time Maya Devi wife of Siya Ram was at her parents' house and on receiving the information she was got fetched from her  parents' house  is not believable and hence no reliance can be placed thereon particularly in view of the following facts:   The incident took place on 12th of November 1980 at about 8:15 am or so and then Maya Devi with the help of others taking her injured husband went to the police station and lodged an FIR of the occurrence there and the crime was registered at 9:30 a.m. promptly on the basis thereof under section 307 IPC  and then the injured accompanied with the constable Ishaq Singh  was sent to Bewar Hospital  for his medical examination and treatment  but  succumbed to the injuries by the time he reached the gate of the Hospital  and then on the information of constable Ishaq Singh  at the police station the case was altered under section 302 IPC at 10: 15 a.m. the same morning vide GD entry no.. 16 (Ext Ka 5). Inquest proceedings on the dead body of Siya Ram  were drawn by station officer Indrajeet Sharma  investigating officer (PW 9) and were completed at 12:00 noon and the dead body of Siya Ram in a sealed cover  alongwith necessary papers including copy of FIR was handed over to constable Ishaq Singh and Mohan Singh for being taken for its post mortem (Ext Ka 12).   The dead body of Siya Ram was sent from police headquarter to the District Hospital Mainpuri  for its post mortem at 1:47 p.m.  Post mortem on the dead body of Siya Ram was conducted by Dr S C Dubey, EMO District Hospital Mainpuri at 3:45 p.m. the same day and the doctor conducting autopsy mentioned in the post mortem report that stomach contained  3 oz semi digested food and small intestine was half full and large intestine also   half full.. It goes to reveal that after taking some food in breakfast  Siya Ram proceeded from his house at about 8:00 a.m. and  succumbed to the fatal injuries sustained by him at about 10:00 a.m. Mention of the fact in post mortem report that stomach contained 3 oz of semi digested food falsifies the defence case that early in the morning ( ''subah tadke' means at the time of  dawn before  sunrise) it was informed by  one Lakhan Singh in the village that dead body of Siya Ram was lying  at a distance of some 6-7 furlongs from the village. However the defence did not produce  and examine that Lakhan Singh in its support. All the police proceedings initiated from recording of FIR on the basis of the written report  handed over by Maya Devi wife of injured Siya Ram till post mortem conducted by the doctor in District Hospital Mainpuri  go a long way  to falsify the defence case and reveal  the genuineness of the prosecution version. Furthermore  PW 1 Maya Devi, wife of the deceased  and the first informant  was not given a suggestion even in her cross-examination by the defence counsel  that at the time of murderous assault  at her husband she was at her parents' house.  For the above the said argument advanced  by the appellant's learned counsel has got no life and is repelled.

    Secondly,  it has been argued by the appellant's learned counsel  that the prosecution version  is not in consonance  with the medical evidence as the doctor conducting autopsy on the dead body of Siya Ram stated  that after receiving the injury the victim would have died instantaneously  or survived for half an hour. According to the prosecution case as disclosed in the FIR Siya Ram alongwith his wife  proceeded from his house at about 8:00 a.m. and after crossing the bridge of Kali river  as they were proceeding towards Bewar Siya Ram was fired at by Singh Pal Singh with gun. Thus the incident would have  taken place at about 8:15 a.m. or so and not before that.  He succumbed to the injuries sustained by him  by the time he reached at the gate of the hospital; and thus would have died at about 10:00 a.m.  as constable Ishaq Singh accompanied him went back to police station and  thereafter on his information the case was altered under section 302 IPC  at 10:15 a.m.   In our view   according to medical opinion  after receiving the fatal injuries the victim could have  survived for half an hour. It depends upon the stamina and endurance power etc which differs from person to person and if he was a man of  strong will  power he could have survived for one and half hour even after receiving the fatal injuries.  PW 9 Station Officer Indrajeet Sharma, the  investigating officer  when questioned in his cross-examination by the defence counsel  as to why he did not record statements of Maya Devi the first informant  and injured Siya Ram at the police station itself soon after registration of the case replied that since condition of the injured was too serious he thought it proper to send him first to the Hospital for his treatment and medical examination which is quite natural and spontaneous.  Evidently Maya Devi, the first informant being wife of injured Siya Ram was to accompany her seriously injured husband to the Hospital. Genuineness of GD entries (Exts Ka 4 and ka 5)  maintained by the officials  in the ordinary course of their official duties can not be doubted unless proved otherwise.

It has also been argued that there is inconsistency between the medical evidence and ocular testimony as both the eye witnesses deposed that Siya Ram was fired at by Singh Pal Singh with gun on the road  from his front whereas according to medical evidence direction of the wound was downwards  and PW 4 Vijendra Singh  stated in his cross-examination that the deceased was taller than the accused. Implicit reliance can not be placed upon the said statement of PW 4 Vijendra Singh who was examined by the prosecution as a witness of the alleged compromise  as we have observed above that he is not a truthful and straightforward witness.  However PW 1 Maya Devi, wife of the deceased stated in her cross-examination that accused Singh Pal Singh was taller than her husband Siya Ram. She is an illiterate lady who could not have anticipated as to why this question was  being put up to her had no reason to tell a lie on the point. Otherwise too her statement is quite impressive as she does not appear having told a lie anywhere in her deposition.  She has been subjected to searching and gruelling cross-examination  but credibility of this witness has not been impaired and her testimony  is above the reproach of suspicion. Further it is a matter of common knowledge that immediately after a bridge upto a considerable  distance level of the road constructed remains uneven as on its sides  the road may be little higher at some places and the shot fired hit Siya Ram at his forehead causing wound measuring  3 cm x 3.5 cm 3 cms above left eyebrow  resulting in fracture  of frontal left, left parietal temporal and occipital bones . The doctor removed four big deformed pellets from inside the wound.  In view of the above situation  how the doctor could say that direction of the wound was downwards is incomprehensible. Moreover shot was fired with gun; and if the barrel of gun gets very slightly downwards at the time of firing direction of the wound would be downwards. Hence the said argument advanced by the learned counsel for the appellant has got no life.

Thirdly, the appellant's learned counsel argued emphatically that testimony of the two  eye witnesses examined by the prosecution should be discarded  as their presence at the scene of occurrence is doubtful.  PW 1 Maya Devi wife of the deceased who taking her injured husband went to the police station and handed over written report of the occurrence to the police there promptly and the crime was registered on the basis thereof under section 307 IPC was not given a suggestion  even in her cross-examination by the defence counsel that at the time  of murderous assault   at her husband  Siya Ram she was at her parents' house and after the occurrence she was got fetched therefrom . As observed above she withstood  the test of cross-examination firmly and her credibility could not be impaired in her cross-examination.  PW 2 Nek Ram who corroborated her stating likewise  on all the material points deposed that the alleged morning he alongwith Mohar Pal  was going from his village to the market at Bewar to purchase cloth  etc. Bewar market is at a distance of 2-3 miles from village  Harsinghpur. There is nothing strange or unbelievable  if at about 8:00 a.m. the alleged morning  he was going to the market at Bewar.  Maya Devi wife of the deceased and the first informant mentioned in the report  that the alleged morning she and her husband Siya Ram were going towards Bewar and Nek Ram alongwith Mohar Pal were  coming  few paces behind them that after crossing the bridge of Kali river  the incident took place (Ext Ka 1). In GD entry regarding registration of the crime presence of Nek Ram among the persons accompanying Maya Devi is mentioned (Ext Ka 3).  This witness Nek Ram too was subjected to searching and rambling cross-examination but nothing useful to the accused appellant  could be elicited therefrom.  It is a case of broad day light murder.  PW 1 Maya Devi , wife of the deceased would be the last person to screen the real culprit implicating the accused falsely.  Medical evidence leaves no room for doubt  as to the factum of the occurrence and the prosecution case with regard to its time and the manner of assault. The place of occurrence is also fixed by recovery of blood from the scene of occurrence.  PW 9 Station officer Indrajeet  Sharma, the investigating officer deposed that he visited the scene of occurrence, inspected the site and prepared its site plan map. A perusal of the site plan map goes to show that  much blood was found lying on the road when he inspected the scene of occurrence (Ext Ka 18).  For the above, we find no substance in the said argument advanced by the appellant's learned counsel.

After carefully considering all the arguments advanced by the appellant's learned counsel in the light of evidence on the record and circumstances attending the case  we do not find any merit in any of them. The learned trial Court  has given cogent and convincing reasons for finding the accused guilty of the charge levelled against him and we are in complete agreement with the findings recorded by the trial court against the accused appellant.  The appeal has got no substance and is liable to be dismissed.

       The appeal is hereby dismissed.  Conviction of the accused appellant under section 302 IPC and sentence of imprisonment for life awarded to him thereunder are maintained. The appellant is on bail.  He shall be arrested and lodged  in Jail to serve out the sentence imposed upon him.

The office shall send certified copy of the judgment alongwith  record of the lower court to the Court concerned to ensure compliance under intimation to this Court within two months.

Dated: 31st of Jan, 2005

Dks/Cri A3074-1981


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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