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Raghubir Singh v. State Of U.P. - CRIMINAL APPEAL No. 380 of 1982  RD-AH 15145 (1 September 2006)
Criminal Appeal No. 380 of 1982
6.Hardas alias Hadda
11.Kasia alias Kashi
Hon'ble M.C. Jain J.
Hon'ble V.D. Chaturvedi J.
( Delivered by Hon. V.D.Chaturvedi J.)
This criminal appeal is directed against the judgment and order dated 6.2.1982 passed by Sri J.M. Srivastava, the then Special Judge, Lalitpur in Sessions Trial No. 46 of 1979 whereby he convicted the appellants Raghubir Singh, Jagdish, Ram Dayal, Lakhan Singh, Sunderbhan, Pragi Lal, Mohan, Jasua and Imrat under section 147,302/149,452 and 325/149 I.P.C. sentencing them to one year R.I., life imprisonment, 3 years R.I. and 2 years R.I. respectively and convicted the appellants Hardas ,Horal Singh, Deo Singh and Kashi alias kasia under section 148,302/149, 452 and 325/149 I.P.C. sentencing them to 2 years R.I., life imprisonment, three years R.I. and 2 years R.I. respectively. All the appellants were also fined to Rs.100/- for offence u/s 452 I.P.C. and Rs.100/- for offence u/s 325 I.P.C.
The prosecution case as emerged from the F.I.R. (Ex.Ka-6) lodged by Sultan Singh son of Madhav Singh of village Kheradag, P.S. Bar,district Lalitpur at the police station Bar on 26.6.78 at 20.30 hours was that on the date of F.I.R. at about 11 a.m. appellants Raghubir Singh, Jagdish, Deo Singh, Lakhan, Horal, Hardas, Ram Dayal, Sundar Bhan, Pragi Lal, Mohan, Kashi, Jasua and Imrat armed with lathis, knives and guns entered the house of the complainant; that accused Raghubir picked up a Pati of a cot (bed post) and inflicted its blow on the head of Moti Singh (complainant's son) who consequently fell down; that accused Hardas firstly by his stick and thereafter by an axe( which was lying there) inflicted blows upon Moti Singh; that Horal inflicted knife blows and remaining accused inflicted lathi blows on Moti Singh; that he (complainant) asked them not to thrash Moti Singh but in vain; that complainant's son Raja Saheb reached to rescue Moti Singh but they thrashed Raja Saheb also, hence he (Raja Saheb) fled away to save his life. He (complainant) raised hue and cry whereupon witnesses Laxman Singh, Savant Singh and Pyare Raja reached there; that thereafter the accused persons picked up Moti Singh and took him towards Sunpura; that witnesses followed them and brought Moti Singh back from Sunpura and kept him inside the house where he died after a short while. Explaining the delay, the complainant gave two reasons, firstly that he misconceived that Raja Saheb had gone to lodge the report and secondly that accused persons had besieged his village all around. Regarding the motive, he stated in the F.I.R. that one Mithila (daughter of the accused Hardas) had eloped few days back but accused persons suspected that Moti Singh had contributed in her elopement and that a litigation with accused Raghubir Singh and others was pending. Because of such background, they attacked upon his house with the intention to commit the murder of Moti Singh, Raja Saheb and his entire family.
P.W.7 R.K. Singh Chauhan, S.I.(I.O.) reached the spot, prepared the inquest report and other relevant papers and sent the corpse of Moti Singh for autopsy.
P.W.1 Dr. H.M. Srivastava conducted the autopsy on 28.6.78 at 11.40 a.m. and found the following 13 ante-mortem injuries on the deceased's corpse.
1.1.Punctured wound 2cm. X 1cm. X 4cm. on left lower part arm 4 cm above from left elbow outer aspect, clean cut edges almost parallel but slightly curved to each other. Direction side to side, clotted oozed blood present.
2.Contusion 10 cm x 4 cm on left arm in middle outer part, oblique, redish blue colour.
3.Contusion 6 cm x 4 cm with swelling on left knee cap underlying multiple fracture of pattela, lacerated..
4.Contusion 4cm x 4cm on front of left leg middle redish blue.
5.Contusion 4 cm x 2 cm on right knee cap, redish blue colour.
6.Contusion 10cm x 6cm on front of right shoulder, redish blue in colour.
7.Punctured wound 3cm x 2cm 4.5 cm on back of right forearm 2cm below from right elbow verticle, clean cut edged almost parallel but slightly curved to each other, clotted blood present.
8.Contusion 7cm x 5.8 cm on left temporal region of head 4cm in front & above to left ear, redish blue colour.
9.Contusion 6 cm x 4cm on front of left side back of skull, redish blue colour.
10.Contusion 6 cm x 4cm on front of left shoulder, redish blue colour
11.Punctured wound 3cm x 2 cm x 4.5 cm on back of right arm, 3 cm above right elbow.
12.Contusion 6cm x 4cm on front of right thigh upper part, oblique redish blue colour.
13.Multiple contusions in whole of back and buttock average 8 cm x 4cm, 4cm x 4cm, redish blue in colour, 12 to 14.
The Doctor opined that duration of death was about 48 hours and the cause of death was coma as a result of head injury.
P.W.2 Dr. V.K. Jain examined injured Raja Saheb on 27.6.78 at 6.00 p.m. opining that the injuries were one and half day old. He found the following injuries:-
1.Lacerated wound 6.5 cm. x 0.5 cm. x scalp deep about 20 cms. away from the root of nose on the middle of skull, about 12 cms. away from left ear.
2.Abrasion 2.5 cm. x 0.1 cm. on the right middle part of skull about 7 cms away from injury no.(1) ,scabs present.
3.Abraded contusion with swelling in an area of 9 cm. x 4 cm. bluish red in colour, scabs present on the back of right forearm about 10 cms. above the right wrist joint. Injuries kept under observation(Contusion size- 6 cms. x 2 cms abrasion- 9cm x 0.1 cm.)
4.Abrasion 3 cm. x 0.1 cm on the back of left forearm about 7 cms away from left wrist joint, scabbing present. Swelling present in an area surrounding 10cm x 4 cms.
5.Abrasion 1 cm x 1cm on the back of left elbow, scabs present.
6.Abrasion 1cm x 0.5 cm on the front of left knee joint, scabs present.
7.Contusion 9 cms x 2cm on the back of right shoulder joint.
8.Abrasion 2 cms x 0.5 cm on the back of right shoulder joint & in the middle of contusion.
9.Contusion 7 cms x 2 cm bluish red in colour on the right chest near sic the nipple
P.W.3 Dr. K.C. Jain Radiologist, opined that there were fractures of middle shaft of ulnas of both the hands of Raja Saheb. He proved his report Ex.Ka 4.
P.W.7 R.K. Singh (I.O.), after recording the statements of the witnesses and after the usual investigation, submitted the chargesheet against all of the accused persons.
The accused persons denied the charges framed against them.
The prosecution produced as many as seven witnesses and also filed affidavits of seven other witnesses. P.W.4 Raja Saheb and P.W.5 Jagdish were witnesses of fact whereas remaining witnesses were more or less of formal nature. The witnesses filing the affidavits were also of formal nature.
After the scrutiny of the evidence, the trial Judge convicted and sentenced the appellants as stated above.
We have heard Sri P.N. Misra, senior Advocate assisted by Sri Apul Misra Advocate on behalf of the appellants and Sri R.K. Singh, the learned A.G.A. for the State. We have also carefully examined the evidence on record.
Before discussing the arguments raised by learned counsel for the appellants it will be in the fitness of the circumstances that the gist of the evidence be looked into. The gist of the material evidence is as under:-
P.W.4 injured witness Raja Saheb ( real brother of deceased Moti Singh) deposed that on the date of occurrence at about 11 a.m. he reached the house of Pyare Raja where his(witness's) father Sultan Singh, sister Sushila, Jagdish (brother-in-law of Pyare Raja) and deceased Moti Singh were present and were conversing; that he also joined them in conversation; that after a short while, accused persons Raghubir Singh, Jagdish Singh, Deo Singh, Lakhan Singh, Horal Singh, Hardas, Ram Dayal, Sundarbhan, Pragi Lal, Mohan, Kasia, Jasua and Imrat reached there and started hurling abuses; that Hadda was armed with a stick, Deo Singh and Kasia were armed with guns, Horal Singh was having a knife and the remaining accused but Raghubir were having lathies; that Raghubir Singh picked up a Pati of a cot from the thatch and inflicted its blow on Moti Singh; that accused Hadda firstly by stick and thereafter by an axe (which was lying there) inflicted blows on Moti Singh; that accused Deo Singh and Kasia assaulted Moti Singh by the butt side of their guns; that remaining accused persons blew their lathies; that he was also beaten by the accused persons when he rescued Moti Singh; that in order to save his life he ran away and returned next day. In cross-examination he told that accused Raghubir Singh was real brother of Sultan Singh (complainant) and was father of accused Jagdish Singh; that accused Horal Singh was son of Suraj Singh (deceased -who was another brother of Sultan Singh); that one sister of Horal Singh was married with accused Deo Singh; that the division of property among the complainant and his (complainant's) brothers had taken place; that on 15.11.77 he gave an application to S.P. Lalitpur against his deceased brother Moti Singh.. He denied the suggestion that said application contained the allegations that Moti Singh was having 20 acres of land in Madhya Pradesh and was not giving his (witness's) share with intention to misappropriate it.
P.W.5 Jagdish deposed that on the date of occurrence at about 11 a.m. he was present at the house of Pyare Raja (witness's brother-in-law)where he was living for about two years; that on the date of occurrence Pyare Raja had left for Lalitpur; that accused Deo Singh and Kashi armed with guns, Horal armed with knife, Hadda (Har Das) armed with a stick, Raghubir unarmed and accused Jagdish, Ram Dayal, Lakhan Singh, Sundar Bhan, PragiLal, Mohan, Jasua and Imrat armed with lathies reached there; that accused Raghubir Singh by a Pati (which was kept on the thatch) inflicted a blow upon Moti Singh; that thereafter other accused started assaulting Moti Singh; that accused Hadda firstly by stick and thereafter by an axe ( which was kept there) inflicted blows on Moti Singh; accused Horal Singh inflicted knife blows whereas accused Kashi had assaulted by the butt of his gun. The remaining accused assaulted Moti Singh by lathies; that Raja Saheb protected Moti Singh but he was also beaten by the accused persons, hence Raja Saheb fled away to save his life; that accused persons lifted Moti Singh and took him to Sunpura; that witness Pyare Raja, Savant Singh and Laxman Singh followed the accused persons on the behest of Sultan Singh and on their request the accused persons brought back Moti Singh (in injured condition) and kept him in PAUR and ran away; that the occurrence was witnessed by Raja Saheb, Sushila and Sultan Singh also. The witness also proved the memos of stick, knife, pati, blood stained Rajai and blood stained clothes of the deceased.
The accused examined Pyare Lal as D.W.1. He deposed that he resided in village Khairagaon where the occurrence took place; that a quarrel regarding the property took place between Moti Singh (deceased)and his brother Raja Saheb; that next morning Sultan Singh ( father of Moti Singh) summoned Laxman Singh, Savant Singh and him; that after reaching there he saw that the dead body of Moti Singh was kept there; that there was a dispute between Moti Singh and his brothers on the issue that Moti Singh declared that he would get the partition of the land situated in village Khaira whereas Raja Saheb's plea was that he would not permit the division of the said land because Moti Singh had left the village Khaira and started living in village Jamunia where he had taken the land; that he saw one incident of quarrel which had taken place between them ( Moti Singh and his brothers) few days back from the date of occurrence ; that Moti Singh never stayed at the house of Raja Saheb but always stayed at the house of his another brother Pyare Raja during his visits to village Khaira; that Raja Saheb resided with his father in one house whereas Pyare Raja resided separately in another house.
Learned counsel for the appellants drew our attention to the defence plea suggested to P.W.2 and argued that Moti Singh and Raja Saheb were at daggers drawn over the issue of some land. He urged that on the alleged date, time and place of occurrence, an incident of severe marpeet took place between these two in which they assaulted each other by the Pati, knife,stick, axe etc. and both sustained injuries in the said occurrence; that Moti Singh who sustained severe injuries ran towards Sunpura to save his life but Raja Saheb still chased him with an axe upto Sunpura where Moti Singh fell-down and died, hence Raja Saheb, being guilty conscious, concealed himself in the house of Laxman Singh of same village and remained there till next morning until his father assured him that report was lodged against others and not against him.
He argued that it was for this reason alone that the blood stained knife and stick allegedly held by appellants were recovered from the place of occurrence; that the axe which was lying in the house was allegedly picked up and used by appellant Hardas, was carried by Raja Saheb, hence it could not be placed there due to the presence of police and thus the axe, unlike pati was not recovered from the place of occurrence; that Raja Saheb in order to avert his arrest by the police neither resorted to medical assistance for his injuries and fractures nor reached to see his dead brother during these 22-23 hours; that Smt. Sushila & Pyare Raja were more affectionate to their deceased brother Moti Singh, hence they declined to step into the witness box for supporting the false prosecution version; that it took a long time to cook all moonshine story to save Raja Saheb and the report could be lodged after a delay of 9 hours.
He added to his arguments that it was highly improbable that Raghubir, the head of the assailants, reached there unarmed; that it was not probable that 13 assailants assaulted two persons by lathies, pati, axe, stick, knife etc. in a courtyard of the size of 5 arms x 5 arms; that it was improbable and meaningless too, for the appellants to lift and carry Moti Singh to village Sunpura and thereafter to bring him back to the place of occurrence; that the admission by P.W.4 Raja Saheb that he gave an application (Paper No.87-B) dated 15.11.77 to S.P. Lalitpur against Moti Singh is supportive of the defence plea.
We have given our serious thought to the points raised by the learned counsel for the appellants.
According to prosecution case, the appellant Raghubir the head of assailants went unarmed to commit the occurrence of murder of Moti Singh. He picked up a pati, lying there, and inflicted its blow on Moti Singh. It does not suit to reason that Raghubir Singh, the head of the assailants went unarmed to commit the murder. It makes his presence doubtful.
The knife held by accused Horal and the stick held by accused Hadda were recovered from the place of occurrence in bloodstained condition. No culprit would commit mistake of leaving his weapon at the spot. The number of the accused persons was as large as 13. It is strange that they had ample time to carry Moti Singh unnecessarily to Sunpura, but had no time to pick up their own weapons. There was no pressure upon the appellants to leave their weapons at the spot. This material point that appellants left their weapons (knife and stick) at the spot was neither mentioned in the F.I.R. nor was ever explained. It also casts a doubt upon prosecution story.
The axe did not belong to the accused , yet it was not recovered from the place of occurrence. There was no mention in the F.I.R. that it was taken away by any of the accused. No witness explained as to where this axe had gone. Such unexplained disappearance of the axe also goes against the prosecution.
P.W.4 Raja Saheb in para 26 of his statement stated that the courtyard of the house (where the occurrence took place) was 5 arms in length and was of similar width. It means its size was not more than 10ft. x 10 ft. It is highly improbable that 13 accused persons had assaulted and caused aforesaid number of injuries to two persons by wielding lathies, knife, axe, pati etc. in a small courtyard of above mentioned size. More surprising is that neither CHULHA situated in courtyard, nor the thatch was found damaged at the time of spot inspection by the police. It further gives a jolt to prosecution story.
P.W.4 Raja Saheb stated in his examination in chief that he ran away to save his life and kept himself hidden in the house of Kalyan Singh till the police arrived at 9 or 10 A.M. in the next morning i.e., for about 22-23 hours. During this period he neither went to see the condition of his critically injured brother Moti Singh(who later died) nor resorted for medical treatment of his own injuries and fractures nor accompanied his father to the police station to lodge the report. What had forced him to keep him hidden for a period of 22-23 hours goes unexplained. It also casts doubt upon the truthfulness of the prosecution story.
The occurrence took place at the house of Pyare Raja son of Sultan Singh, hence Pyare Raja was most natural and prominent witness but he was not produced. His absence at his house at the time of occurrence was not mentioned in the F.I.R. It also suggests that Pyare Raja son of Sultan Singh was deliberately withheld by the prosecution. Likewise Smt. Sushila, the sister of the deceased who was present at the spot was also not produced. The non-examination of the real brother and sister of the deceased assumes more importance in the wake of the defence plea that Moti Singh lost his life in a quarrel with his brother Raja Saheb.
The admission by P.W.4 Raja Saheb in para 9 of his statement that he earlier gave an application dated 15.11.77 to Superintendent of Police, Lalitpur against his deceased brother Moti Singh is in tune with the defence plea.
In para 4 of his statement P.W.4 Raja Saheb deposed that a partition of property had taken place between his father and father's brothers Raghubir Singh and Suraj Singh and they were cultivating the land of their respective shares. This statement suggests that there was hardly any reason for the litigation between complainant Sultan Singh and accused Raghubir Singh.
The occurrence took place at 11 a.m. but its report could be lodged at 8.30 p.m. i.e. nine hours after the occurrence. However, an explanation about such delay was given in the F.I.R. but in view of the circumstances discussed above, the said delay also raises a doubt regarding the truthfulness of the prosecution.
It is stated in the F.I.R. that accused persons lifted and carried Moti Singh towards Sunpura wherefrom the witnesses brought him back. P.W.5 Jagdish stated that the witnesses had persuaded the accused persons whereupon accused persons brought Moti Singh back to the place of occurrence and put him in the Paur (a room at the entry of the house). It does not appear probable that accused persons firstly carried Moti Singh with them to Sunpura and thereafter took the risk in bringing him back to the place of occurrence.
It is not the effect of one, two or few of the circumstances discussed above but is the cumulative effect of all the above circumstances that creates a very strong doubt regarding the reliability and truthfulness of the prosecution story. This doubt assumes more importance in view of the defence plea referred to above. We, therefore, do not find it safe to uphold the finding of conviction and the sentences passed by the trial court against the appellants.
We, therefore, allow this appeal, setting aside the impugned judgment of conviction and sentences passed by the trial court. We acquit all the appellants of the charges framed against them. All the appellants are on bail. They need not to surrender.
Certify the judgment to the trial court to incorporate necessary entry of the result of this appeal in relevant register The compliance be reported to this court within two months.
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