Research › Search › Judgment

Allahabad High Court · body

2003 DIGILAW 2536 (ALL)

Suresh v. State of Uttar Pradesh

2003-10-28

M.CHAUDHARY, U.S.TRIPATHI

body2003
U. S. TRIPATHI, J. ( 1 ) THIS appeal has been directed against the judgment and order dated 9-7-1981 passed by Sessions judge, Kanpur (Non Metropolitan Area) in sessions Trial No. 119 of 1979 convicting appellants Suresh and Prakash under Section 302 read with Section 34 IPC and sentencing each of them to undergo imprisonment for life. ( 2 ) THE prosecution story, briefly stated, was as under : The appellants Suresh and Prakash were residents of villages Gabadahawa and dariaganj respectively within P. S. Sheorajpur. Indrapal deceased had his sasural at village Ghanshyampur, P. S. Sheorajpur. He had got landed property in his sasural and therefore was residing in said village for last 10 years from before the occurrence of this case. In the month of February, 1978, a dacoity had taken place in the house of Indirapal deceased at village ghanshyampur. Indrapal deceased had lodged report of said dacoity naming appellants Suresh and Prakash as accused and had cited Vishnudutta (co-accused) as witnesses. Vishnudutta did not support the dacoity case and therefore police submitted final report in the said case. Indrapal deceased had told Vishnudutta that he appeared conspirator of the said dacoity. Vishnudutta told that in case he thought so, he should be careful. Appellants Suresh and Prakash had also told Indrapal deceased that he had falsely implicated them in the dacoity case and they would teach a lesson to him for it. On account of it, the appellants Suresh, Prakash and co-accused vishnudutta accused were having enmity with Indrapal deceased. ( 3 ) VIRENDRA Singh (P. W. 1) younger brother of Indrapal deceased was serving in kanpur City and was residing in Mohalla koparganj, Kanpur City. ( 4 ) ON 3-2-1979 Indrapal deceased had come to Kanpur City to meet Virendra Singh (P. W. 1 ). At about 8. 30 p. m. Indrapal deceased along with Virendra Singh (P. W. 1), manna Singh and Chhunnl Singh started for village Ghanshyampur. They got down of the bus at Chaubeypur crossing and were proceeding on foot to village Ghanshyampur, which was at distance of 5. 6 Kms. from there. Virendra Singh (P. W. 1) and Manna singh were having their three cell torches and night was also moonlit. They got down of the bus at Chaubeypur crossing and were proceeding on foot to village Ghanshyampur, which was at distance of 5. 6 Kms. from there. Virendra Singh (P. W. 1) and Manna singh were having their three cell torches and night was also moonlit. At about 10 p. m. Indrapal deceased, in the company of above persons reached at crossing of Mohani newada Bataha (Kachha rasta) and was about 10-12 paces ahead from persons accompanying him. In the meantime, appellants Suresh, Prakash, co-accused vishnudutta and one unknown person emerged out from Behaya bushes from western side. All the four persons were armed with country made pistols. Flashing torch, vishnudutta co-accused exhorted Indrapal that he would not go alive. Saying it he fired one shot on Indrapal deceased which hit him and he fell down in the Bejhar field of rustam. Virendra Singh (P. W. 1} and other witnesses stopped where they were and raised alarm. Hearing his alarm Surjan singh and Raghubir Singh also reached the spot flashing their torches. On falling of indrapal deceased, appellants Suresh, prakash and co-accused Vishnudutta and unknown persons again fired shots on him from their country made pistols and thereafter ran towards west. Virendra Singh (P. W. 1) and others could not chase the appellants and other assailants due to fear. Indrapal deceased died on the spot. In the meantime, family members of Indrapal deceased also came to the spot. ( 5 ) VIRENDRA Singh (P. W. 1) prepared report (Ext. Ka-1) of the occurrence and came to police out post Chaubeypur, where he lodged report at 2. 30 a. m. on 4-2-1979, chik, f. I. R. (Ext. Ka-4) was prepared by Constable Moharrir Prem Shankar Pandey, who made an endorsement of the same at G. D. report (Ext. Ka-5) and registered a case against Suresh and Prakash appellants, vishnudutta and one unknown person under Section 302 IPC. ( 6 ) THE investigation of the case was taken up by Sri B. D. Singh, I. O. (P. W. 5),fhe proceeded to the place of occurrence in. the night, but could not conduct inquest of the dead body of deceased due to paucity of light. On the next morning he conducted inquest of the dead body of deceased at 7. 30 a. m. and prepared Inquest report and other relevant papers. the night, but could not conduct inquest of the dead body of deceased due to paucity of light. On the next morning he conducted inquest of the dead body of deceased at 7. 30 a. m. and prepared Inquest report and other relevant papers. He sealed the dead body and handed over to Constable Bhim Singh (P. W. 3) for postmortem. The I. O. then Interrogated Virendra Singh (P. W. 1) and manna Singh (P. W. 2 ). He inspected place of occurrence and prepared site plan (Ext. Ka-9 ). He collected blood stained and simple earth from the spot. He also collected two empty cartridges of 12 bore, three empty cartridges of 315 bore, 6 pellets, one wad piece and one gutaka from the spot and prepared recovery memo. Shoes, muffler and handkerchief of the deceased were lying near the dead body, which were taken into possession by the I. O. The I. O. inspected torches of witness, found them in working order and gave them in supurdagi of its respective owners. Thereafter, he searched the appellants, but they were not traceable. ( 7 ) AUTOPSY on the dead body of Indrapal deceased was conducted on 5-2-1979 by dr. S. S. Mishra (P. W. 4 ). He found four gun shot wounds of entry and two gun shot wounds of exit on the person of deceased as ante mortem injuries and cause of death due to shock and haemorrhage as a result of ante mortem injuries. He prepared postmortem deport (Ext. Ka-3 ). ( 8 ) THE I. O. completed remaining investigation and submitted charge-sheet against the appellants and Vishnudutta. ( 9 ) COGNIZANCE of the case was taken up by" the Magistrate, who committed the case to the Court of Session. ( 10 ) THE appellants and Vishnudutta were charged vith the offence punishable under sectlori302 IPC. They pleaded not guilty and contended that they were falsely implicated on account of enmity. Appellant Suresh further contended that he was licensee of fair price shop of levy sugar. In the marriage of his niece Virendra Singh (P. W. 1) demanded one bag sugar from him, but he could not provide it to him. Therefore, he complained against him to Block Development Officer. Enquiry was made on the above complaint, but no action was taken. On account of it, virendra Singh (P. W. 1) falsely implicated him in this case. Therefore, he complained against him to Block Development Officer. Enquiry was made on the above complaint, but no action was taken. On account of it, virendra Singh (P. W. 1) falsely implicated him in this case. ( 11 ) VISHNUDUTTA absconded during trial and therefore his case was separated by the trial Court. ( 12 ) THE prosecution in support of its case examined Virendra Singh (P. W. 1), Manna singh (P. W. 2) as witnesses of fact, besides constable Bhim Singh (PW3) (filed affidavit), dr. S. S. Misra (P. W. 4), Sri B. D. Singh, I. O. (P. W. 5), Constable Shiv Narain Singh (filed affidavit) (P. W. 6), Vikram Singh Clerk, c. M. O. Office, Kanpur (filed affidavit) (P. W. 7) and Constable Clerk Prem Shankar pandey (P. W. 8 ). The appellants examined constable A. B. Singh Chauhan (D. W. 1)and Head Constable Ram Narain Singh (D. W. 2 ). ( 13 ) LEARNED Sessions Judge on considering evidence of the prosecution held that prosecution succeeded in proving beyond reasonable doubt the case against both the appellants. With these findings, he convicted the appellants under Section 302 read with section 34ipc and sentenced them as mentioned above. ( 14 ) AGGRIEVED with their above conviction and sentence the appellants have come up in this appeal. ( 15 ) WE have heard Sri Vinay Saran, learned counsel for the appellants, learned a. G. A. for the respondent and have perused the evidence on record. ( 16 ) THE death and cause of death of indrapal deceased are not disputed. Dr. S. S. Misra, (P. W. 4), who conducted autopsy on the dead body of deceased on 4-2-1979 at 11. 30 p. m. found following ante mortem injuries on his person : 1. Fire arm entrance wound 4 cm x 4 cm x bone deep over the right eye, skin burnt around the wound present. 2. Fire arm exit wound 7 cm x 6 cm over the left occipital region of head 6 cm from back of left ear. 3. Fire arm wound of entry 2 cm x 1. 5 cm on the front and upper part of the right side of the neck, 1. 5 cm below the right lower jaw. 4. Fire arm wound of entry 1. 3. Fire arm wound of entry 2 cm x 1. 5 cm on the front and upper part of the right side of the neck, 1. 5 cm below the right lower jaw. 4. Fire arm wound of entry 1. 5 cm x 1 cm Just above and towards the inner end of the right clavicle with skin burnt around the wound. 5. Fire arm wound of entry 1. 5 cm x 1 cm on the left scapular region with blackening and tattooing around it. 6. Fire arm wound of exit 2. 5 cm x 2 cm on the lower one third of the sternum notch. ( 17 ) HE further stated that internal examination showed there was fracture of nasal bone, right cheek bone and frontal bone under injury No. l. Left temporal, left parietal and occipital bones were also fractured under injury No. 2. Membranes were lacerated under injuries Nos. 1 and 2. Brain was lacerated and clotted blood was present. Base of skull was fractured under injury no. 1. Second, third and fourth cervical vertebra were fractured under injury No. 3, 7th cervical vertebra was fractured under injury no. 4. One pellet was recovered from 7th cervical vertebra. Spinal cord was lacerated under injuries Nos. 3 and 4. Pellets were recovered from injury No. 3 from the muscle and cervical vertebra. Muscles of skin, intercostal space was fractured under injury No. 1 sternum was fractured under injury No. 1. Pleura was lacerated under injury No. 5 and left chest cavity contained one litre blood. Upper lobe of left lung was lacerated through and through under injury No. 5. Large vessels were ruptured and clotted blood present. Stomach contained serni digested food materials. Small intestine was empty and gases were present. Large intestine contained faecal matters with gases. 30 small pellets, 11 pellets, 4 wad pieces and one bullet were recovered from the body. Cause of death was due to shock and haemorrhage as a result of fire arm wounds. ( 18 ) THE appellants have not challenged above medical evidence. The above medical evidence established that Indrapal deceased died due to gun shot injuries sustained by him. ( 19 ) THE date, time and place of occurrence are also not disputed. Cause of death was due to shock and haemorrhage as a result of fire arm wounds. ( 18 ) THE appellants have not challenged above medical evidence. The above medical evidence established that Indrapal deceased died due to gun shot injuries sustained by him. ( 19 ) THE date, time and place of occurrence are also not disputed. According to prosecution occurrence took place on the night of 4-2-1979 at about 10 p. m. in village Ghanshyampur on the crossing of kachha rasta leading to village ghanshyampur. The F. I. R. of the occurrence was lodged on 2. 30 a. m. in the same night and distance of police out post chaubepur was 5 km. from the place of occurrence. Informant Virendra Singh (P. W. 1) clarified in his evidence that after the occurrence family members of deceased also came to the spot and at about 10. 30 p. m. he prepared report of the occurrence and came to police station. That he started for police out post at about 10. 45 p. m. Considering the distance of police station and manner in which the report was prepared, it cannot be said that there was any delay in lodging the report. Dr. S. S. Misra (P. W. 4) who conducted autopsy on the dead body of deceased stated that deceased would have died at about 10 p. m. in the night of 3-2-1979. The I. O. had also reached the spot in the night of occurrence. The evidence of Head constable Ram Narain Singh (D. W. 2) shows that special report of the case was received in the office of Circle Officer at 6. 38 a. m. on 4-2-1979. All these evidence established that f. I. R. was lodged at 2. 30 a. m. The I. O. found dead body of the deceased on the spot and had also collected blood and empty cartridge and wad pieces from the spot. The above articles were sent to Chemical Examiner and Serologist for analysis and report. The report of Public Analyst and Serologist (Ext. Ka-28) and (Ka-32) disclosed that above articles contained blood. ( 20 ) THE above evidence established date, time and place of occurrence. The above articles were sent to Chemical Examiner and Serologist for analysis and report. The report of Public Analyst and Serologist (Ext. Ka-28) and (Ka-32) disclosed that above articles contained blood. ( 20 ) THE above evidence established date, time and place of occurrence. ( 21 ) THE motive alleged by the prosecution was that in the month of February, 1978, a dacoity had taken place in the house of Indrapal, in which he had named the appellants as accused and had also cited vishnudutta co-accused as prosecution witness. Vishnudutta did not support the case and therefore police submitted final report in the said case. Thereafter, Indrapal told vishnudutta that he had also appeared to have conspired in the dacoity. This was not tolerated by Vishnudutta and he told that in case he thought so, he should be careful. That the appellants have also threatened him that he had falsely implicated them in the case of dacoity and they would teach him a lesson. The appellants have admitted that dacoity had taken place in the house of indrapal in the year 1978 and Indrapal had named them in the F. I. R. It is not dispute d that no case was initiated regarding said dacoity and therefore, the appellants had ground to nourish grudge against the deceased. Therefore, the motive alleged by the prosecution has also not been challenged and is established. ( 22 ) THE learned counsel for the appellants contended that eye-witness of the occurrence Virendra Singh (P. W. 1) is the sole eye-witness and he had no occasion to be present on the spot, as he was residing in kanpur City. There was no source of light on the spot and there are discrepancies in the evidence of sole witness and therefore he is not reliable. ( 23 ) BEFORE adverting to the above contentions, we would like to give the gist of ocular testimony. ( 24 ) VIRENDRA Singh (P. W. 1) after stating about motive, further stated that on 3-2-1979 Indrapal deceased had come to meet him at Kanpur City, where he was residing and in the night at about 8. 30 they proceeded to village Ghanshyampur along with manna Singh (P. W. 2) and Chhunni Singh. That they got down of the bus at Chaubeypur crossing and proceeded to village ghanshyampur on foot. He and Manna singh were having three cell torches. 30 they proceeded to village Ghanshyampur along with manna Singh (P. W. 2) and Chhunni Singh. That they got down of the bus at Chaubeypur crossing and proceeded to village ghanshyampur on foot. He and Manna singh were having three cell torches. When they reached at the crossing of Mohani newada Bataha at about 10 p. m. , the appellants, Suresh and Prakash along with vishnudutta and one unknown person, all armed with country made pistols, emerged out from Behaya bushes. Vishnudutta flashng his torch on the deceased told that he would not be spared alive. Saying it he fired one shot on the deceased, due to which he fell down in the Bejhar field of Rustam. Thereafter, the appellants and unknown person again fired on him and Indrapal died on the spot. He prepared report of the occurrence and went to police out-post chaubeypur, where he lodged the report. ( 25 ) MANNA Singh (P. W. 1) brother-in-jlaw of Indrapal deceased, has not supported the prosecution case and he was declared hostile. Therefore, his testimony is of no avail to us. Therefore, in this case, there is sole testimony of Virendra Singh (P. W. 1 ). ( 26 ) THE Apex Court relying on the decision in Vadivelu Thevar v. State of Madras, air 1957 SC 614 held in the case of Lallu Manjhi v. State of jharkfeand, 2003 AIR SCW 308 : ( AIR 2003 sc 854 ), that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely; (i) wholly reliable; (ii) wholly unreliable; and (ill) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. ( 27 ) CONSIDERING the evidence of Virendra singh (P. W. 1) we find that he is not wholly unreliable witness. It is, therefore, to be considered whether he is wholly reliable or neither wholly reliable nor wholly unreliable. ( 27 ) CONSIDERING the evidence of Virendra singh (P. W. 1) we find that he is not wholly unreliable witness. It is, therefore, to be considered whether he is wholly reliable or neither wholly reliable nor wholly unreliable. ( 28 ) THE learned counsel for the appellants contended that admittedly the witness resided in Kanpur City and therefore had no occasion to be present on the spot at odd hours of night at about 10 p. m. But Virendra singh (P. W. 1) has clarified in his evidence that he was residing in Kanpur City in connection with his service, and he used to go to Ghanshyampur, where his brother was residing on every week end. He further stated that on 3-2-1979, the date of occurrence, indrapal deceased had come to meet him in kanpur City and in the evening he along with Indrapal deceased, Manna Singh (P. W. 2) and Chhunni Singh proceeded to village ghanshyampur. He also clarified that he boarded City Bus at about 8. 30 p. m. and got down of the bus at Chaubeypur crossing and thereafter along with deceased manna Singh and Chhunni Singh was proceeding to Ghanshyampur on foot and reached the spot at about 10 p. m. where the occurrence took place. Therefore arrival of the witness on the spot in the night of occurrence was not simply a chance. Since he used to visit village Ghanshyampur oh every week end and on the evening of occurrence, Indrapal deceased had also come to meet him, which was week end (Saturday ). Therefore, in all probabilities he must be going to village Ghanshyampur with the deceased. The witness had also lodged report of the occurrence at police out-post chaubeypur at 2. 30 a. m. and he was interrogated by the I. O. on the spot on the next morning at about 7. 30 a. m. The witness had faced lengthy cross examination, but there is nothing in his cross examination to disbelieve his presence on the spot. Had the witness not been present on the spot at the time of occurrence, he would have not been in a position to lodge the report on the night of occurrence at 2. 30 a. m. ( 29 ) IT was contended by the learned counsel for the appellants that the witness had not sustained any injury, which falsify his presence on the spot. 30 a. m. ( 29 ) IT was contended by the learned counsel for the appellants that the witness had not sustained any injury, which falsify his presence on the spot. The witness has explained absence of injuries on his person by stating that in the way when the deceased reached on the spot he was 10-15 paces behind him and the appellants and other accused started firing and threatened the witnesses that in case any one dared to come forward he would also be shot at and therefore he and other witnesses stopped. Therefore, the absence of injuries on the witness has also been explained. This explanation appears convincing as the appellants and other accused had enmity with the deceased alone and they had no animus with Virendra singh (P. W. 1 ). ( 30 ) IT was further contended that there was no source of light on the spot and therefore the appellants could not be recognized. In the F. I. R. it is mentioned that Virendra singh (P. W. 1) and Manna Singh were having three cell torches and night of occurrence was moonlit and assailants were seen in the light of torches and moon light. Virendra Singh (P. W. 1) also stated above source of light in his evidence. The I. O. had inspected the torches of Virendra Singh (P. W. 1) Manna Singh {p. W. 2) Raghubir Singh and Surjan Singh and found them in working order. Virendra Singh (P. W. 1) and the deceased had to travel up to village ghanshyampur in the night and it was natural that they would have taken torches with them. The fact that night of occurrence was moonlit has not been challenged in the cross examination of Virendra Singh (P. W. 1 ). As such, there was sufficient light on the spot. The appellants and Vishnudutta were well known to Virendra Singh (P. W. 1) from before and therefore he could easily recognize them in the light of torches and moon light specially when he was only at a distance of 10 paces from them at the time of occurrence. ( 31 ) THE next contention of the learned counsel for the appellants was that in the f. I. R. role of firing was assigned only to vishnudutt and not to the appellants. ( 31 ) THE next contention of the learned counsel for the appellants was that in the f. I. R. role of firing was assigned only to vishnudutt and not to the appellants. This contention is misconceived because in his evidence Virendra Singh (P. W. I) assigned role of firing to appellants also. It was mentioned in the F. I. R. that the appellants, vishnudutta and one unknown person, who all were armed with country made pistols, emerged out from Behaya bushes. Vishnudutta flashing torch on the deceased exhorted that he would not be spared alive. Saying it, Vishnudutta fired from country made pistol on the deceased. The informant and other witnesses stopped and raised alarm. Indrapal Singh sustained injuries and fell down in the Bejhar field of Rustam. On the alarm raised by the informant and other witnesses Surjan Singh and Raghubir singh came flashing their torches. Vishnudutta, Suresh, Prakash and their associate Jointly fired from country made pistols on the deceased. Thus, it is clear from the F. I. R. version that firstly Vishnudutta fired on the deceased, due to which, he fell down in the field of Rustam and thereafter, the appellants, Vishnudutta and unknown persons simultaneously fired on the deceased. The number of gun-shot injuries sustained by the deceased shows that more than one shot was fired on him. As such, the above contention has no force and role of firing has also been assigned to the appellants in the F. I. R. ( 32 ) THE next contention of the learned counsel for the appellants was that other witnesses were not examined and Manna singh (P W. 2) has not supported prosecution case. It is true that Manna Singh, who was brother-in-law (Sala) of the deceased had not supported the prosecution story and other witnesses were not examined. But non examination of other witnesses will not affect the prosecution case, as the law does not require any particular number of witnesses to be examined to prove the case. The facts and circumstances of this case show that the relative of deceased had turned hostile and probably because of fear of appellants and other witnesses namely surjan Singh and Raghubir Singh would have not preferred to involve themselves in the matter. ( 33 ) VIRENDRA Singh (P. W. 1) is no doubt real brother of the deceased and may be said relative witness. ( 33 ) VIRENDRA Singh (P. W. 1) is no doubt real brother of the deceased and may be said relative witness. But relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. Thus ground that the witnesses being a close relative and consequently being a partisan should not be relied upon has no substance (vide Gangadhar Behera v. State of Orissa AIR 2002 SC 3633 . ( 34 ) IN the cross examination of the witness no enmity, ill-will or grudge with the appellants had been suggested. No ground for false implication of appellants was suggested to the witness. The witness had faced a lengthy cross examination but nothing could be elicited to discredit his testimony. However, subsequently in his statement under S. 313 Cr. P. C. appellant Suresh contended that he was licensee of levy sugar and in the marriage of his niece Virendra singh (P. W. 1) had demanded one bag sugar from him which he could not provide. That virendra Singh made complaint to B. D. O. and the matter was enquired into. His working was found correct. On this account virendra Singh falsely implicated him and gave evidence against him. But no such question was put to the witness in his cross examination nor any evidence has been adduced by the appellant on this point. Therefore, above alleged enmity has not been established. Appellant Prakash had said nothing against Virendra Singh (P. W. 1) in his statement under Section 313 Cr. P. C. regarding his false implication. Thus, no foundation of plea of false implication has been laid or proved. Therefore, relationship of virendra Singh (P. W. 1) with the deceased is not a factor to affect his credibility. ( 35 ) FROM the above observations and discussions we find that Virendra Singh (P. W. 1) is wholly reliable witness. P. C. regarding his false implication. Thus, no foundation of plea of false implication has been laid or proved. Therefore, relationship of virendra Singh (P. W. 1) with the deceased is not a factor to affect his credibility. ( 35 ) FROM the above observations and discussions we find that Virendra Singh (P. W. 1) is wholly reliable witness. Assuming that the witness was not wholly reliable and was neither wholly unreliable nor wholly reliable and we have to look for corroboration before acting upon his testimony there is corroboration of his testimony from medical evidence, F. I. R. and other circumstances. Therefore, his testimony was rightly relied on by the Trial Court for basing the conviction of the appellants. In this way, we find no force in the appeal. ( 36 ) THE appeal is, accordingly, dismissed and the conviction and sentence of appellants are confirmed. ( 37 ) THE appellants are on bail. They shall surrender before the C. J. M. concerned to serve out the remaining sentence. The c. J. M. Kanpur Dehat is also directed to issue non bailable warrants against the appellants to procure their attendance and send them to jail for serving out the sentence awarded by the Trial Court. ( 38 ) COPY of the order be sent to C. J. M. Kanpur Dehat for compliance and report. Appeal dismissed. . .