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