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Allahabad High Court · body

2002 DIGILAW 1520 (ALL)

Vijay Singh v. State Of U P

2002-10-11

M.C.JAIN, Y.R.TRIPATHI

body2002
JUDGMENT : - M.C. Jain, J. The appellants, Vijay Singh, Ashok Kumar and Vinod Kumar are real brothers being sons of Sardar Singh. They have been convicted under Section 302 read with Section 34 I. P. C. by judgment dated 7-9-1999 passed by the then II Additional Sessions Judge, Ghaziabad in S. T. No. 71 of 1995. Each of them has been sentenced to life imprisonment. Aggrieved, they have been preferred this appeal. 2. THE matter relates to the murder of one Balbir Singh on 11-12- 1994 at about 4. 45 p. m. at the house of Alam Singh (uncle of the appellants) situate in village Bhikanpur, Police Station Murad Nagar, District Ghaziabad. THE F. I. R. was lodged the same day at 5. 45 p. m. by P. W. 1 Kunwar Pal Singh son of the deceased. THE distance of the police station from the place of occurrence was eight kilometres. The facts as revealed from the F. I. R. and evidence adduced in the trial Court are that on the date of the incident the marriage party of Sandeep (cousin of the informant and nephew of the deceased) had returned to the village at about 3.00 p. m. after wedding. Balbir Singh was sitting at his house and conversing with the guests. At about 4.45 p. m. the appellant Ashok Kumar came to his house and asked the deceased Balbir Singh to accompany him to the house of his uncle Alam Singh for some important talks. Balbir Singh accompanied him and reached the house of Alam Singh, which was just across the lane. Balbir Singh's brother P. W. 3 Rajbir Singh also followed him. P. W. 2 Jai Pal Singh resident of village Saini (husband of the sister of wife of Balbir Singh) was also sitting at the house of Alam Singh. The appellants Vijai Singh and Vinod Kumar were also there consuming liquor. The appellant Ashok Kumar stated that he (Balbir Singh) would pitch his son Kunwar Pal Singh (informant) in the election of Pradhan and, therefore, he be killed. Instantaneously, Ashok Kumar and Vinod Kumar appellants caught hold of the hands of Balbir Singh and the appellant Vijai Singh opened shot on Balbir Singh from a pistol. Balbir Singh, receiving the shot, dropped down dead. All the three appellants then ran away towards their house. Instantaneously, Ashok Kumar and Vinod Kumar appellants caught hold of the hands of Balbir Singh and the appellant Vijai Singh opened shot on Balbir Singh from a pistol. Balbir Singh, receiving the shot, dropped down dead. All the three appellants then ran away towards their house. On hearing the shot, the deceased's son Kunwar Pal Singh reached the spot and found his father lying dead. 3. ON lodging of F.I.R. a case was registered and the police investigated. The Investigating Officer P. W. 7 S. I. Jagdish Singh Yadav reached the spot and after completing necessary formalities sent the dead body of the deceased for post-mortem. Two empty cartridges of. 315 bore were also collected by him from the spot. The evidence is to this effect also that appellant Vinod was arrested on 12-12-1994 and at his instance the country-made pistol of 315 bore with a live cartridge had been recovered. The country- made pistol got recovered by him and two empty cartridges collected from the spot were sent for comparison to Ballistic Expert who too was examined as C. W. 1 Ram Asare Pandey, Assistant Director of Government Laboratory, Agra. ON testing he found that shots had been fired from the country- made pistol in question to which the empty cartridges recovered from the spot belonged. His report is exhibit Ka-19. 4. TO come to the point, the post-mortem over the deadbody of the deceased was conducted on 12-12- 1994 at 2. 15 p. m. by P. W. 5 Dr. M. M. Sharma. The deceased was 55 years of age and one day had passed since he died. The following ante-mortem injury was found on the person of the deceased: "gun shot wound of entry 2-1/2 cm x 2 cm x chest cavity deep present on front of chest slightly left to the midline 14 cm below superasternum left and 9-1/2 cm below and medial to left nipple. Margins of the wound are irregular and inverted with tattooing. Body of sternum and costal cartilage of left fourth rib fractured into pieces underneath. The direction was from left front to right back. A metallic bullet was also recovered from back muscles of right chest. " The cause of death was shock and haemorrhage as a result of ante-mortem injury. 5. AT the trial, the prosecution in all examined seven witnesses. The direction was from left front to right back. A metallic bullet was also recovered from back muscles of right chest. " The cause of death was shock and haemorrhage as a result of ante-mortem injury. 5. AT the trial, the prosecution in all examined seven witnesses. P. W. 1 Kunwar Pal Singh was informant and son of the deceased. P. W. 2 Jai Pal Singh was Mausa of the informant, but he turned hostile. P. W. 3 Rajvir Singh-brother of the deceased was eye-witness. Reference has already come above as regards other important witnesses including the Ballistic Expert Ram Asare Pandey who was examined as C. W. 1. 6. THE defence was of denial and of false implication. All the appellants raised the plea of alibi. According to the statement of appellant Ashok Kumar recorded under Section 313 Cr. P. C. , on the date of occurrence he had gone to Upleda (Akabarpur Raina) in the marriage of some Ashok. He suffered there from vomiting and dysentery and returned to his village the next night. Appellant Vijai Singh claimed that on the date of occurrence he was at his workshop. THE appellant Vinod Kumar stated that on the date of occurrence he had gone to Niskauli to purchase a she buffalo and he returned to his village next day after having purchased it. The appellants examined three witnesses also in their defence. D. W. 1 Daya Ram A. D. O. Panchayat came to say that the seat of Pradhan of village Bhikanpur was reserved for a candidate of Scheduled Caste. D. W. 2 Rajendra Kumar came to support the alibi plea raised by the appellant Vinod Kumar that on 11-12-1994 he had gone to him in village Niskauli to purchase she buffalo which he sold to him for Rs. 11,000/ -. According to him, he returned from his village the next day and was present with him on 11- 12-1994 since 1. 30 p. m. to 5. 00 a. m. the next morning. D. W. 3 Kishan Pal is the father of Ashok in whose marriage the appellant Ashok Kumar had allegedly gone on 11-12- 1994. To be short, he has come to support the plea of alibi raised by the appellant Ashok Kumar. 7. 30 p. m. to 5. 00 a. m. the next morning. D. W. 3 Kishan Pal is the father of Ashok in whose marriage the appellant Ashok Kumar had allegedly gone on 11-12- 1994. To be short, he has come to support the plea of alibi raised by the appellant Ashok Kumar. 7. WE have heard Sri G. S. Chaturvedi, learned senior Advocate for the appellants Sri D. N. Wali, learned Counsel for the complainant and learned A. G. A. from the side of the State in opposition of the appeal. WE intend to deal with the arguments advanced before us in the succeeding discussion having regard to the evidence and material on record. 8. THE first argument of learned Counsel for the appellants is that the motive assigned by the prosecution is artificial that the victim was shot dead because he was likely to contest the election of Pradhanship against one of the accused appellants. Reference has been made to the testimony of D. W. 1 Daya Ram, A. D. O. Panchayat that the seat of Pradhan of village Bhikanpur was reserved for the candidate of Scheduled Caste. It has been reasoned that it being so, there could be no question of murder of the victim by the accused appellants so as to remove him from the fray. THE submission does not stand an indepth scrutiny. We note from the cross-examination of D. W. 1 Daya Ram that he could not say as to when the document Ext. Kha-1 (relating to the reservation of the seat) had been issued. There was cutting and overwriting also in this document. Obviously, on the basis of such document, no inferential conclusion could be drawn that it was known to the parties that the seat was reserved for the candidate of Scheduled Caste. Moreover, motive is of no significance in a case of direct evidence as is the present one. THE argument advanced by the learned Counsel for the appellants is lost. It has next been argued for the appellants that the case rests solely on the testimony of P. W. 3 Rajvir Singh brother of the deceased who is an interested and partisan witness. It has been urged that P. W. 1 Kunwar Pal son of the deceased did not see the shooting himself and P. W. 2 Jai Pal Singh turned hostile, not supporting the prosecution case. It has been urged that P. W. 1 Kunwar Pal son of the deceased did not see the shooting himself and P. W. 2 Jai Pal Singh turned hostile, not supporting the prosecution case. It has further been submitted that there could hardly be any reason for P. W. 3 Rajvir Singh to follow his brother Balbir Singh to the house of Alam Singh when the accused-appellant Ashok Kumar allegedly came to call him to have some important talks. We have been taken through the testimony of P. W. 1 Kunwar Pal Singh that the accused-appellant Vijai Singh had also gone in the marriage party of Sandeep Singh which had returned at about 3. 00 p. m. after wedding. It is contended that under such a scenario, it was against natural probabilities of the situation that Balbir Singh would have been called to the house of Alam Singh by accused- appellant Ashok Kumar for some important talks. We are of the opinion that things cannot be viewed in such a superfluous manner as sought to be approached from the side of the accused- appellants. There is no rule of law that the testimony of an interested or partisan witness cannot be believed. The Court, however, looks for corroboration as a rule of caution, depending upon the circumstances of the case. In the present case, P. W. 3 Rajvir Singh though the brother of the deceased, is most natural witness of the incident. The marriage party of the nephew of the deceased and this witness had returned to the village a little earlier after wedding. Everybody, was in a relaxed and care-free mood with no serious business to pursue at the given time. There was assemblage of guests, relatives and villagers at the door of the deceased and P. W. 3 Rajvir Singh, engaged in chit-chatting and gossiping. The house of Alam Singh was just across the lane where Balbir Singh deceased went when Ashok Kumar accused-appellant came to call him to have some important talks. The distance was only 25-30 paces from the place where Balbir Singh was engrossed in conversation at his door as stated by P. W. 1 Kunwar Pal. The said distance has been estimated to be about 35-40 feet by Rajvir Singh. The distance was only 25-30 paces from the place where Balbir Singh was engrossed in conversation at his door as stated by P. W. 1 Kunwar Pal. The said distance has been estimated to be about 35-40 feet by Rajvir Singh. Therefore, there was nothing unusual that Rajvir Singh followed his brother Balbir Singh to the house of Alam Singh when accused appellant Ashok Kumar came to call him for some talks. It has to be recalled that the report of the incident was lodged with promptitude barely an hour after the occurrence and the distance of the police station was 8 kilometres. This witness P. W. 3 Rajvir Singh had accompanied the informant P. W. 1 Kunwar Pal to the police station when he went of lodge the F. I. R. He is also the witness of the inquest report. Thus, there cannot be the slightest doubt of his presence at the time of incident and he must be believed that he followed his brother-Balbir Singh to the house of Alam Singh where he was shot dead in his presence by the accused- appellant Vijai Singh. His version is that the shot had been fired by Vijai Singh from a very close range (an arm's distance). It is in conformity with the medical evidence inasmuch as a bullet had been recovered from inside the wound and there was tattooing around the wound. It is noted from the testimony of P. W. 5 Dr. S. M. Sharma that the shot must have been fired only from a distance of 4 or 5 feet. 9. IT is also not correct to say that there is no other corroboration to the testimony of P. W. 3 Rajvir Singh. Besides the fact that his testimony is in conformity with medical evidence and that he was the most natural witness whose presence cannot at all be doubted, the point of the matter is that P. W. 1 Kunwar Pal Singh has also rendered evidence, which is of res gestae nature admissible under Section 6 of the Indian Evidence Act. Though he did not see the shooting himself, but his version is that he had reached the spot on hearing shot and had instantaneously been informed by those present there including P. W. 3 Rajvir Singh that the accused- appellant Vijai Singh had shot dead his father who was lying dead there. Though he did not see the shooting himself, but his version is that he had reached the spot on hearing shot and had instantaneously been informed by those present there including P. W. 3 Rajvir Singh that the accused- appellant Vijai Singh had shot dead his father who was lying dead there. The learned Counsel for the appellants levelled criticism that this factum of such disclosure made to the informant at the spot immediately on his reaching is not found mentioned in F. I. R. We are of the opinion that it rather ensures the spontaneous character of the F. I. R. that it had been lodged without any deliberation or concoction. Indeed, P. W. 1 Kunwar Pal Singh (informant) son of the deceased must have been in a state of great shock after the incident of the murder of his father and could not be expected to meticulously write down each and every minute detail in the F. I. R. He was not a legal expert and could not be supposed to scribe the F. I. R. with a legal eye. Broad essential features of the incident were recited by him therein. Res gestae evidence delivered by him is corroborative of the testimony of P. W. 3 Rajvir Singh. 10. LEARNED Counsel for the appellants built a criticism on this aspect also that Vijai Singh had gone in the marriage party and it was unnatural that Balbir Singh would have been called to the house of Alam Singh a little after the return of the marriage party, on the pretext of holding important talks and would have been shot dead there. We do not see anything unusual in it. Rather, it would have been more bizarre if he had shot dead Balbir Singh during marriage. He better concealed his scheme and shot him dead later after reaching home. Moreover, the prosecution cannot be excepted to prove as to how the mind of the culprit worked in particular circumstances. It can only place before the Court truthfully and in unalloyed terms as to what actually happened. The prosecution has successfully discharged this burden, establishing fully that the deceased had been shot dead on the date time and place and in the manner as alleged. So far as P. W. 2 Jai Pal Singh is concerned, it is true that he turned hostile and disowned to have witnessed the shooting himself. The prosecution has successfully discharged this burden, establishing fully that the deceased had been shot dead on the date time and place and in the manner as alleged. So far as P. W. 2 Jai Pal Singh is concerned, it is true that he turned hostile and disowned to have witnessed the shooting himself. It would be futile to speculate the reason for the same. It may, however, be mentioned that he is a common relative of both the parties as has come in the testimony of P. W. 3 Rajvir Singh. But the fact is there that place and time of incident is the same as per his evidence also. He admitted that the marriage party had returned and after sitting for some time at the door of Balbir Singh he had gone to the house of Alam Singh. After some time, Balbir Singh had come there. He also admitted that on the date of return of marriage party, Balbir Singh had been murdered in the room of the house of Alam Singh. Of course, he insisted that he did not see the murder himself. May be that because of relationship with both the parties, he was hesitant to stand by the side of the prosecution in full measure, but he could not deny the factum of the murder of Balbir Singh in the room of the house of Alam Singh. 11. ON subjecting the evidence produced by the prosecution to judicial scrutiny, we find ourselves in complete agreement with learned trial Court that it was accused-appellant Vijai Singh who had shot dead the deceased at the given time, place and manner. 12. YET another argument of learned Counsel for the appellants is that as per the post-mortem report, the stomach of the deceased was found empty which could not be possible at the time of incident the marriage party having returned the same day after wedding at about 3.00 p. m. According to the learned Counsel, the condition of the stomach of the deceased was indicative of the fact that the incident took place some time in the night somewhere else and the dead-body was placed in the room of the house of Alam Singh to plant a false case. This hypothesis is completely unfounded and imaginary. There is nothing to speculate as to on what time the deceased had consumed eatables. This hypothesis is completely unfounded and imaginary. There is nothing to speculate as to on what time the deceased had consumed eatables. Therefore, it cannot be presumed on the basis of the condition of his stomach at the time of post-mortem that the incident took place some time in the night. The logic would be at a discount in accepting the submission that his dead body could be placed in the room of the house of Alam Singh after picking it from somewhere else. It was almost impossible that Alam Singh would have permitted the prosecution side to bring the dead body of the deceased Balbir Singh and place it inside his house. The last argument of the learned Counsel for the accused- appellants is that the metallic bullet recovered from the dead body of the deceased was not subjected to scientific analysis and comparison with country-made pistol allegedly got recovered at the instance of accused-appellant Vinod Kumar though two empty cartridges allegedly recover from the spot were compared therewith and the report of C. W. 1 Ram Asarey Pandey, Ballistic Expert is that the same had been fired from the said country- made pistol. It has also been submitted that it being the case of single shot, alleged recovery of two empty cartridges from the spot is fabricated. Suffice it to say in this regard that clear version of P. W. 3 Rajvir Singh is that one shot had been fired by Vijai Singh on Balbir Singh and the other one in the air. Therefore, the recovery of two empty cartridges from the spot is well explained. True, the prosecution omitted to get compared the metallic bullet recovered from the dead body of the deceased with the country-made pistol in question, but this lapse on its part does not affect the merits of the case in the face of other clinching evidence to prove the guilt of the accused-appellant Vijai Singh that it was he who shot dead Balbir Singh. Therefore, we do not attach any importance to this aspect of the matter. 13. HOWEVER, an element of doubt persists as to the participation of the accused-appellant Ashok Kumar and Vinod Kumar in murdering Balbir Singh. They allegedly caught hold of the hands of the victim at the time of shooting by Vijai Singh. It was a case of single shot. 13. HOWEVER, an element of doubt persists as to the participation of the accused-appellant Ashok Kumar and Vinod Kumar in murdering Balbir Singh. They allegedly caught hold of the hands of the victim at the time of shooting by Vijai Singh. It was a case of single shot. The instinct of self-preservation is strongest in the all living beings. When aimed at to be shot, the victim is most likely to stir to escape unhurt and to evert the danger. In a case of shooting, there is always the possibility of the shot hitting the person who catches hold of the victim. Nobody would ordinarily take such a risk. We, therefore, think that benefit of doubt should be afforded to the accused- appellants Vinod Kumar and Ashok Kumar. 14. THE net result would be that the appeal would be partly allowed. THE accused-appellants Vinod Kumar and Ashok Kumar would be acquitted. However, conviction of the third accused-appellant Vijai Singh is perfectly sustainable and it shall be affirmed. He has rightly been found to be guilty for the murder of Balbir Singh and sentenced to life imprisonment. Before parting, however, we would place it on record that as per clear case of the prosecution right from the beginning Vijai Singh was the main shooter. He ought to have been charged under Section 302 I. P. C. simpliciter. One Sri Riyazuddin, the then XIV Additional Sessions Judge, Ghaziabad framed charges against all the three accused-appellants including Vijai Singh under Section 302 I. P. C. read with Section 34 I. P. C. Obviously, he was unmindful of the fact that Vijai Singh being the main shooter, should have been charged under Section 302 I. P. C. simpliciter. The judgment was delivered by another Presiding Officer, namely, Km. Ujjwala Garg, the then II Additional Sessions Judge, Ghaziabad. She was equally careless and negligent in sentencing all the three accused-appellants under Section 302 I. P. C. read with Section 34 I. P. C. The lapse pointed out by us relates to the theoretical aspect with no practical complication as to the merits of the decision. Nevertheless, clarity of legal concepts is expected from the Officers of H. J. S. Rank. Nevertheless, clarity of legal concepts is expected from the Officers of H. J. S. Rank. We would direct the Registry to find out the present posting of the abovenamed two Additional Sessions Judges and to send a copy of the judgment to both of them for their guidance and to remain cautioned in future. 15. FINALLY, we partly allow this appeal. It succeeds in respect of accused-appellants Vinod Kumar and Ashok Kumar. They are acquitted. The appeal however, fails in respect of the third accused-appellant Vijai Singh. He stands convicted under Section 302 I. P. C. and his sentence of life imprisonment is affirmed. The C. J. M. Ghaziabad shall cause him to be arrested and lodged in jail to serve out the sentence passed against him. 16. THE office is directed to send a copy of this judgment along with the record of the case to the Court below for needful action. A copy of the judgment shall also be sent to each of the two officers, namely Sri Riyazuddin and Km. Ujjwala Garg by the Registry after locating their present posting as per the direction contained a little earlier. Compliance be reported within one month. Appeal partly allowed.