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BABU SINGH AND OTHERS versus STATE

High Court of Judicature at Allahabad

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Babu Singh And Others v. State - CRIMINAL APPEAL No. 2344 of 1981 [2005] RD-AH 7066 (7 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Appeal No.  2344  of  1981

1. Babu Singh

2. Khem Karan (Died)

3. Chob Singh  (Died)

4. Laiq Singh.......................................................Accused

     Appellants

Versus

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

Hon'ble M.C. Jain, J.

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

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

This criminal  appeal  has been filed by the accused appellants from judgment and order dated 5th of October, 1981 passed by II Additional Sessions Judge, Etah in Sessions trial No. 92 of 1980 State vs. Babu Singh & others  thereby convicting accused  Babu Singh under sections 302 and 325 IPC and  under section 307  read with 34 IPC and sentencing him  to imprisonment for life, 3 years' and 7 years' rigorous imprisonment respectively  thereudner.   Accused Khem Karan was convicted under section 302 and 325 IPC each read with section 34 IPC and section 307 IPC and sentenced to imprisonment for life, 3 years' and 7 years' rigorous imprisonment respectively thereunder.  Accused Chob Singh and Laiq Singh  were convicted  under section 302, 307  and 325 each read with 34 IPC and sentenced to imprisonment  for life, 7 years' and 3 years' rigorous imprisonment respectively thereunder.

Since accused respondents  Khem Karan and Chob Singh were reported having died their appeal stood abated  vide order dated 29th of July, 2005.

Brief facts giving rise to  this appeal in  nutshell  are that  Babu Singh, Khem Karan and Chob Singh are real brothers  and  accused Laiq Singh  is their nephew residing  in village Khangarpur, police station  Nidhaulikalan, District Etah. The village is mainly  inhabited  by Lodha Rajputs, and there are only four houses of  Faquirs.  Accused Chob Singh, Babu Singh and Khem Karan are persons of criminal mentality as some five years  ago they kidnapped the daughter of Tikam and some four years ago they kidnapped the daughter of one Bhupal.  Thereafter they committed theft at the  house of  Ganga Singh, Shyamlal and Raghubar and thereafter they  also beat  Badan Singh and his son.  The co-villagers were much perplexed  due to  their  activities and wanted that they should  leave the village  and Hamid Khan was one of them.  Therefore, Babu Singh and his associates were nursing grudge against Hamid Khan.  Some four days prior to the occurrence  Hamid Khan had  gone to village  Kheria within the  limit of  police station Jasrana to see his in-laws, and his  wife Smt. Hasina alongwith her mother-in-law Munis @ Muniran and  Devar Saleem aged  about six years were present in the house.  At about 10:00 a.m. on 24th of  September, 1979 Smt. Muniran alongwith  her younger son Saleem was asleep upon the cot in her  chhapar  and Smt Hasina was sitting near her and the Dibbi  was lighted  there that Babu Singh and his brothers Khem Karan and Chob Singh armed with  guns and their  nephew  Laiq Singh  with  half  gun reached there and Babu Singh  fired at  Muniran hitting her at her chest and also causing firearm  injury to Saleem  who was   asleep putting  his hand on the  chest of his mother.  Khem Karan  also aimed his gun  at Smt  Hasina  who raising  hue and cry caught the barrel thereof lowering the same but the shot fired by Khem Karan hit at her left thigh.  On hearing  the hue and cry and  sound of shots Tursi Ram and Mohd Ali residing in the neighborhood  reached   the  scene of occurrence and  saw the miscreants running away from the chhapar of the victims.  Smt. Zinna  who happened to be the  sister of Smt Muniran, the deceased  got awoke and also witnessed  the  occurrence.  Next morning   injured Smt Hasina  got report of the occurrence scribed  by one Than Singh and taking  her  injured Devar went alongwith  Mohammadin in a buffalo cart to the police station Nidhaulikalan situate at a distance of two  miles from village Khangarpur and  handed over written report  to the police there.  The police registered   a crime  on the basis of  written report  handed over  by Smt Hasina  and made  entry regarding registration of the crime  in  GD.  Investigation of the crime  was entrusted to SI Nanak Chand who recorded statements of the witnesses  at the police station itself and  sent  both the injured Smt Hasina and Saleem to the Primary Health Centre, Nidhaulikalan for their medical examination.  Smt Hasina  and Saleem  were medically examined by Dr R.K.Gupta, Medical Officer-in-charge PHC, Nidhaulikalan at 8:00 a.m. and 8:30 a.m. respectively.

Medical examination  of Smt Hasina  revealed below noted  injuries on her person :

Lacerated firearm  wound of entry 2.5 cm x 3.5 cm        3 cm on medial side  of left thigh 26 cm above the knee  joint with margins inverted  and blackening present.    Gun powder  burn present in an area  of 8 cm  x 6 cm  around the wound. Direction from  the front and  clotted blood present.  On cleaning blood  started oozing.  

Her medical examination also revealed contusion in  area of 6 cm x  6 cm on back of left thigh upper part 24 cm above the popliteal fossa. Colour reddish  blue.    Pellets  not palpable in contused area.

The doctor opined that the injury was caused by firearm and  about ½ day old in duration.  The injury was  kept under observation.  X-ray  of left thigh was advised.  

Medical examination of injured Saleem  revealed belownoted injuries on his person:

1. Lacerated wound 4 cm x 1 cm x skin  deep on lateral side of left index finger.  Wound  is on the  whole length of finger.  Blackening  present around the wound.  Bleeding   present on cleaning  of wound.

2. Lacerated wound 1.5 cm x 1.5 cm on left little finger.  There is complete amputation of middle and distal phalynx.  Only proximal phalynx  remained on the top of which wound is present.  Margins  lacerated and blackening and charring   present.  Bleeding present.

The doctor opined that  both the injuries were  caused by firearm and almost  half a day old in duration.  Injury no. 1 was simple and injury no.2   grievous.

X-ray of left thigh  of Smt. Hasina  revealed  six  radio opaque metallic  shadows in left thigh.

After recording  statements of  witnesses  Smt Hasina  and Mohammadin  the investigating officer went to the place of occurrence and drew inquest proceedings on the  dead  body of Smt Muniran. He prepared  the inquest report    (Ext ka 9) and other  necessary papers (Exts Ka 10 & Ka 13) and  handed over  the dead body  in a sealed cover  alongwith necessary papers   to constables  Satyavir Singh and Sunehri Lal for being taken  for its post mortem.  He also  recorded  statements of other witnesses.  Then he    inspected  Dibbi lit  in the chhapar at the time of the occurrence and prepared its memo (Ext ka 14).  Then he  collected  bloodstained and simple  earth from the scene  of occurrence and prepared its memo ( Ext ka 16).   He also  inspected the site  and prepared its site plan map ( Ext ka 18).

Autopsy on the dead body of Smt Muniran conducted by Dr. P.K. Jain, Medical Officer District Hospital, Etah on 25th of September, 1971 at 5:15 p.m. revealed below noted  ante mortem injuries:

Firearm   wound of  entry 2 cm x  2 cm x chest cavity deep below right clavicle  3 cm lateral to midline.  No blackening  was  found present. Direction backwards  obliquely downwards right  to left.  

On internal examination  2nd rib  on right side was  grossly  fractured. Left  lung and  upper lobes of   right lung  grossly lacerated and  both  the pleurae  grossly lacerated.  The  doctor removed  one  wad and 10 pellets from  right  pleural cavity and 2 wads and 18 pellets from left cavity.  Heart and  peritoneum were grossly lacerated and doctor removed 5 pellets  from pericardium.  Stomach contained  4 oz  of digested food.  Small and large intestine  both were  half full.

The  doctor opined that the death was caused due to shock and hemorrhage as a result of  ante mortem injury about 18 hours ago.

   

After completing the investigation  the police  submitted charge sheet against the accused  accordingly ( Ext ka 19).

After  framing of charge  against the accused  the prosecution  examined  Smt Hasina  (PW1), Smt. Zina ( PW 2), Mohammadin (Pw 3), Tursi Ram (PW4) and Saleem ( PW7) as eye witnesses of the occurrence.  Out of  these five witnesses  Saleem  being  a little child was discharged  as he could not  understand the  nature of questions put up to him.  PW2  Smt Zina and PW3 Mohammadin did not support the prosecution case  as both of them stated that on hearing  hue and cry and sound of shots fired  they woke  up but they did not  see any of the  miscreants  running away from the scene of occurrence.    PW1  Smt Hasina narrated all the facts of the  occurrence  from the  beginning to the end as stated  above.  PW4 Tursi Ram corroborated  her stating  likewise on all material points.  PW5 HC Ram Singh who prepared check report on the  basis of  written report handed over  by Smt Hasina  at the police station and  made entry regarding registration of the crime in  GD  has proved these papers     (Ext  ka 2 and ka 3).  He also proved  special report sent to higher authorities  at  7:45 a.m. that very morning.  PW6 Constable Sunehri Lal to whom   dead body in a sealed   cover  alongwith necessary papers  was handed over  for being taken for its post mortem stated the said fact.  PW8  Dr P.K. Jain  who conducted autopsy on the  dead body  of Smt Muniran  proved the post mortem report (Ext Ka 5).  PW9 Dr R.K. Gupta, Medical Officer  who examined  both  the injured namely Smt. Hasina and Saleem  proved the  injury reports ( Ext Ka 6  & ka 7).  PW10 Jafar Husain, X-ray Technician District Hospital Etah has proved  x-ray  plate and the x-ray report ( Ext Ka 8).  PW11 SI Nanak Chand  who investigated the crime  and after completing investigation submitted  charge sheet  against the accused has proved  the police papers.

The accused  denied  the alleged  occurrence altogether  stating that they  were implicated in the case falsely on account of enmity.  They  did not adduce any  evidence in their defence.

On an appraisal of the  evidence and other  material on record the learned   Additional Sessions Judge  held  the accused  guilty of the charge levelled against them and convicted   and sentenced  them as stated above.

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

We have heard Sri Sudhir Kumar, learned counsel for accused appellants  Babu Singh and Laiq Singh  and the learned  AGA for the State respondent and gone through the record.

Now we shall see if the arguments advanced by the appellants' learned counsel have got any force  in them:

First, it has been vehemently argued by the appellants' learned counsel that since  the occurrence took place at some dark hour in the night, none could see the incident  of firing and the  FIR was lodged  next day after due consultation and confabulation.  PW1 Smt Hasina, daughter-in-law of the deceased  stated  in her examination-in-chief that at about 10:00 p.m. the alleged night   her mother-in-law  Muniran was asleep on a cot  in the chappar and her Devar aged about six years  was also  sleeping by her side  keeping his  left hand on her chest and  she was  sitting on the cot  lying beside the cot of her mother-in-law; that a kerosene Dibbi  was lighted in the nitch in the   wall near the door of kotha diffusing  sufficient light; that Babu Singh, Khem Karan and Chob Singh  armed with guns and   Laiq Singh  with half gun reached there and  Babu Singh fired at her  mother-in-law hitting her  at her chest and also causing injuries at the  fingers  of Saleem; that in the meanwhile  accused Khem Karan  also aimed  his gun towards her  but she got  barrel of the gun leaned downwards but  he fired  hitting her at her  thigh and on hearing   the hue and cry raised  by Smt. Zina,  sister  of the  deceased and her husband  Mohammadin and one Tursi Ram rushed  to the scene of  occurrence  who saw the assailants running  away from the house and  that sustaining fatal injuries Smt Muniran died on  the spot  instantaneously.  She further stated that since her husband Hamid   had gone to  see his in-laws and she was all alone  in the house she  could not go to the police station  soon after the incident because of fear and that the  following morning   she got report of the occurrence  scribed by one  Than Singh who  after  scribing the  same  read  over the report to her and then she affixed her  thumb impressions thereon and  taking injured  Saleem and her  Mausiya Sasur Mohammadin went to the police station Nidhaulikalan and handed over written report of the occurrence to the police there and  then she  and  injured  Saleem were   sent to the Primary  Health Centre  Nidhaulikalan for their  medical examination and x-ray of her thigh  was got done in the  District Hospital, Etah.  She was subjected to  searching and gruelling  cross-examination but nothing  could be elicited  therefrom  advantageous to the accused or to  shake  her credibility.  She has given such a  graphic  description of the occurrence and  stood her cross-examination so firmly  that  it leaves no room for doubting  her testimony.  She appears to be  a truthful and straightforward  witness and her   statement is quite impressive and  emphatic.  Her testimony stands further corroborated by the testimony of PW4 Tursi Ram who  resides in her close neighbourhood.  PW4 Tursi Ram stated that the alleged  night he was  sleeping  at his chaupal situate at a distance  of  some twenty paces  from the house of  Hamid; that at about  10:00 p.m.  he heard the sound of shots fired and immediately ran towards the   house of Hamid and  saw accused   Babu Singh, Khem Karan,  Laik Singh and Chob Singh running   away from the  house of  Hamid and that at that time  Khem Karam, Chob Singh and Babu Singh were armed  with guns and Laiq Singh  with half gun and that thereafter he  saw that Muniran was lying  dead on the cot and Hasina  was lying   injured and Salem  had also received injuries at his fingers.  He also stated that  a Dibbi  was  lighted  there.  He was  subjected to searching  and  rambling  cross- examination  but nothing  tangible  could be brought   on the record to  shake his credibility.

Medical examination has lent  support to the  ocular testimony  of these two eye witnesses so clinchingly and vividly that we can not escape from the   conclusion drawn   by the learned trial  judge. Statement  of PW 1 Smt. Hasina  regarding  injuries  caused to the deceased, distance from which the  shots were fired by the accused  at her and  the deceased  stands corroborated  by medical evidence such as presence of  blackening around the injuries sustained by Saleem, absence of blackening  around  the  ante mortem  firearm injuries sustained by the deceased and presence of blackening  around the  firearm injuries  sustained by her etc.  Statement of PW7 Dr. R.K. Gupta  that the deceased would have taken   food 2-3 hours  before her death as her stomach contained 4 oz of digested food  has lent  support to the  time of occurrence   as 10:00 p.m. stated   by all the eye witnesses.

Secondly,   learned counsel for  the accused   laid much emphasis  that Smt Hasina  did not  know  the scribe and it appears that  report was scribed  by the co-villagers after  due consultation and  confabulation and her thumb impressions were got affixed thereon.  PW1  Smt Hasina  categorically stated that  following morning she got the report scribed by one Than Singh as he  had  come to  some of his relatives in the village and  to her house  at about 5:00 a.m.; that   few co-villagers were also present  at her house; that then she  got  the report  scribed by him  on her dictation which was read over to her after being scribed and then she  put her  thumb impressions thereon and that  then she  taking  her  injured Devar went to the police station with her Mausiya sasur Mohammadin on a Bhainsa Gari and handed over written report of the occurrence to  the police there.  A perusal of the written report of the occurrence  goes to show that  complete address of  Than Singh was  written at the bottom of the report.  A perusal  of the written report goes to show that  it is quite natural and spontaneous and that  since  actual  incident of  firing was witnessed by Smt Hasina  alone then how  the FIR  could be scribed by the co-villagers.  Otherwise too, the fact that  she withstood  her cross-examination firmly and above facts  completely   rule out the plea that  the  FIR  was lodged  after due  consultation and  confabulation.

Thirdly,  great emphasis  has been  laid by the learned  counsel for the  accused appellants that  since both  eye witnesses are   interested and partisan witnesses, no reliance should be placed on their testimony.  No doubt,  PW1 Smt Hasina  is the  daughter-in-law  of the deceased and PW4  Tursi Ram is also a partisan witness but their sworn  testimony could  not be  discarded or thrown over board merely because one of them  is  a relative witness and another is a partisan witness as according to PW4 Tursi Ram accused  Laiq Singh had kidnapped  the daughter  of his cousin  Tikam Singh and she was not traceable till then.  On close  scrutiny  their testimony is found to be above reproach  of suspicion.  There is apparently no reason for doubting their sworn testimony nor the  trial court  which  had  an opportunity to watch the demeanour of these two witnesses  castigated their testimony in any manner.  Moreover, if the witness is related  to the deceased  it would  add to the value  of  his or  her testimony  if found reliable  because he or she would  naturally be interested in  ensuring  that  real culprits are  punished  and not  screened.

Lastly, it has also  been argued by the appellants' learned counsel that the accused had  no motive  to  commit  the murder  of the  elderly lady as they had  animus with her son Hamid and not with her.  In the case  of direct  evidence  like  the present  one the  motive pales into insignificance.  However, we are of the view that the  accused appellants committed the  murder of  Smt. Muniran, the elderly lady with  a view to overawe and  terrorize  the villagers  and to compel  Hamid  to leave  the village  because admittedly Hamid  alongwith his companions  used to chalk out plans to harm them so that they might  leave  the village as they were  ruffians and used to commit the offences such as abduction, theft etc.  They might have guessed  that  till Smt Muniran, mother of Hamid  was alive  he may not leave the village as  his mother  would not like to  leave the village  because her  sister Smt Zina  used to  reside  in her close neighbourhood and  otherwise too, elderly persons  do not like to leave  their  old and cherished house.  Thus,  they thought to  liquidate the  elderly  lady in  absence of her son Hamid  thinking that  after  her  murder  feeling  terrorized and  detached from that  place he would leave the village  and then they  would  be  free to live  there according to their  wishes. And they succeeded in their  mission.  As  it has come in evidence that after  the occurrence Hamid  sold his house and  left the village and he alongwith  his family shifted to Firozabad.

Thus, on a global consideration of the evidence  and concomitant circumstances, we   endorse  the impugned judgment rendered  by the  court below regarding  accused  Babu Singh  who has been held guilty of the offence punishable under section 302 and 325 IPC.  We are unable to  find that he shared common intention with Khem Karan who fired at Smt Hasina  thereby causing  firearm injuries to her.  Since  no  overt act has been assigned  to accused Laiq Singh who happens to be  the son of  their cousin Hetram he is given benefit of doubt and therefore entitled to acquittal.

The appeal is  allowed in part setting aside the  conviction of accused Laiq Singh. Accused  Laiq Singh is hereby acquitted of the charge levelled against him.  He is  on bail.  His  bail bonds are hereby discharged. Since accused appellants Khem Karan  and  Chob Singh  were  reported having died their appeal stood abated.  Conviction of accused  Babu Singh under sections 302 and 325 IPC and sentences  awarded   to him to undergo imprisonment for life and three years'  rigorous imprisonment  respectively  thereunder are affirmed.  Both   the sentences shall run  concurrently. Accused  Babu Singh is on bail. Chief Judicial Magistrate, Etah shall get him arrested and lodged in  the jail  to serve  out  the sentences imposed upon him.

Let the judgment be certified to the court below.  Record of the case be transmitted  to the court concerned  immediately for necessary  compliance under intimation to this court within two months.

Dt. 7th  of  December, 2005

Crl Appeal No.2344 of 1981/P.P.


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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