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2004 DIGILAW 285 (ALL)

SHYAM BABU MAURYA v. STATE OF U P

2004-02-13

M.C.JAIN, M.CHAUDHARY

body2004
M. C. JAIN, J. The three appellants are Shyam Babu, Lavlesh alias Pappu and Ram Bahadur Lohar who have challenged their conviction and sentence under Section 302 I. P. C. recorded by Additional Sessions Judge (F. T. C. No. 1), Fatehpur on 31-1- 2002 in S. T. No. 77 of 2000. Each of them has been sentenced to life imprisonment and a fine of Rs. 10,000. In default of payment of fine, each has to undergo further rigorous imprisonment for one year. 2. The incident occurred on 9-11-1999 at about 5. 00 p. m. near the culvert of minor canal of village Moraon within the Police Station Thariayon, District Fatehpur and F. I. R. was lodged the same day at 9. 15 p. m. by Om Dev Singh PW 1. The distance of police station from the place of occurrence was about 5 Kms. and the deceased of the incident was informants brother Indradeo Singh. Three accused- appellants were allegedly armed with country-made pistols. The prosecution case, as revealed from the F. I. R. and the evidence adduced on record, was that the deceased Indradeo Singh was employed in Electricity department at sub- station Thariayon, but he was also the Manager of a Junior High School situated in the village aforesaid. About ten years before the incident, Ram Bharosey alias Chhedda father of the accused- appellant Shyam Babu was the. Manager of the School. After his death, Shyam Babu wanted to become the Manager. However, the Management Committee had elected Indradeo Singh as the Manager Shyam Babu did not like it and started nurturing grudge against Indradeo Singh. 3. On the fateful day and time, the deceased was returning to his house from the side of Malai Ka Purwa through his fields on Suzuki Motorcycle. Om Deo Singh and his another brother Brahmadeo Singh were following him on tractor after ploughing the field. As soon as Indradeo Singh reached at the culvert of Khaga minor canal, the three accused-persons armed with pistols emerged from their hiding by the side of the culvert and stopped him. Shyam Babu held out that he could not be the Manager during his lifetime and he would occupy that office after murdering him. All the three accused-appellants downed Indradeo Singh from his motorcycle and fired a number of shots on him causing injuries to him. Shyam Babu held out that he could not be the Manager during his lifetime and he would occupy that office after murdering him. All the three accused-appellants downed Indradeo Singh from his motorcycle and fired a number of shots on him causing injuries to him. The informant and his brother rushed up, but the accused-appellants ran away. Indradeo Singh died at the spot. . The incident was also witnessed by Beni Madhao and Rudra Pal who were working in their Khalihans as well as Devendra Singh PW 3 and other passers by. 4. Consequent upon the lodging of F. I. R. , a case was registered. SO. Thariyon Chandra Bhan Singh was informed on R. T. Set and joined by S. I. Ramveer Singh PW 3 on the way to reach the spot. The Investigating Officer Chandrabhan Singh PW 5 busied himself with the activities related to the investigation of the case. Getting prepared the inquest report and other papers by S. I. Ramveer Singh, the dead body was sealed and sent for post-mortem which was conducted by Dr. R. K. Mishra PW 6 on 10-11-1999 at 3. 00 p. m. The deceased was aged about 48 years and nearly a day had passed since he died. The following ante-mortem injuries were found on his person: (1) Wound of firearm entry with inverted and scorched lacerated margins present over right angle of mandible measuring 1 cm x 1 cm x muscle deep with blackening and tattooing around the wound in an area of 3 cm x 3 cm. (2) Wound of firearm exit with everted margins present on jaw near the Right side of angle of mouth measuring 2 cm x 2 cm. When a probe was passed from wound No. (1) it passed through the wound No. (2) which was exit wound of wound No. (1 ). Direction transversly. (3) Abrasion measuring 2 cm x 3 cm over middle x 1/3 of left clavicle on left side of chest. (4) Wound of firearm entry with scorched and lacerated and inverted margins present over right side of back of chest, 4 cm lateral to mid line, 10 cm below the neck with blackening and tattooing in an area of 4 cm x 3 cm around the wound. (4) Wound of firearm entry with scorched and lacerated and inverted margins present over right side of back of chest, 4 cm lateral to mid line, 10 cm below the neck with blackening and tattooing in an area of 4 cm x 3 cm around the wound. (5) Wound of firearm exit present over right side of front of chest with everted margins on the medial side of right clavicle bone. The bone underneath was fractured. On exploration of wound No. (4), it corresponds to wound No. (5) when a probe was passed. Hence wound No. (5) was exit wound of wound No. (4 ). Right lung and pleura were lacerated and ruptured and Right chest cavity was filled with blood. The direction of wound was from backward to forward obliquely. (6) Wound of firearm entry present over back of right shoulder measuring 1 cm x 1 cm with lacerated, inverted and scorched margins with blackening and tattooing in an area of 4 cm x 3 cm around the wound. (7) Wound of firearm exit with everted margins present over tip of right shoulder when a probe was passed from wound No. (6) it corresponded to wound No. (7), hence wound No. (7) was exit wound of wound No. (6 ). The bone underneath Right scapula, head of right humer and olecranon process was fractured. Direction of wound from below to upwarded and from post to anterior obliquly upward. (8) Wound of firearm entry with scorched, lacerated and inverted margin present in part of right side of abdomen 1-2 cm away from umbilicus. Blackening and tattooing present in an area of 9 cm x 5 cm. (9) Wound of firearm exit measuring 2 cm x 2 cm with everted margins present over posterior axillary line. On exploration the wound No. (9) corresponded to wound No. (8 ). When probe was passed, it corresponded to wound No. (9) which was exit wound of wound No. (8 ). 5. On internal examination, left lung was found ruptured and lacerated. The stomach contained 150 gms. of semi digested food, rice could be identified. Small intestine was half-full and large intestine was full. Death had occurred due to shock and haemorrhage owing to the ante-mortem injuries sustained by the deceased. 6. The defence was of denial and false implication. 7. 5. On internal examination, left lung was found ruptured and lacerated. The stomach contained 150 gms. of semi digested food, rice could be identified. Small intestine was half-full and large intestine was full. Death had occurred due to shock and haemorrhage owing to the ante-mortem injuries sustained by the deceased. 6. The defence was of denial and false implication. 7. The prosecution relied upon the testimony of the eye-witnesses Om Deo Singh PW 1 and Devendra Singh PW 2 apart from the evidence relating to the investigation and post-mortem. No oral evidence was adduced by the accused-appellants in defence, but they filed a few documents. Holding the guilt to be proved, the trial Judge passed the Impugned judgment. 8. We have heard Sri G. S. Chaturvedi, learned Senior Advocate assisted by Sri Raghu Raj Kishore from the side of the appellants and Sri K. P. Shukla learned A. G. A.- assisted by Sri S. S. Misra Counsel for the complainant. The record of the lower Court has been summoned before us which we have carefully examined. It has been argued for the accused-appellants that the motive assigned by the prosecution was very weak; Om Deo Singh PW 1 was a chance witness and Devendra Singh PW 2 was an interested one. It has been urged that actually none of them was present at the spot and gave evidence on the basis of their imagination only. 9. Taking up the motive first, the submission of the learned Counsel for the accused-appellants is that the factum of the election to the office of Manager of the school was challenged by them and it did not at all provide sufficient motive to the accused-appellants to have joined hands to commit the murder of Indradeo Singh as alleged by the prosecution. We should say that motive is not a sine qua non for the commission of a crime. Motive also becomes Insignificant when there is direct evidence regarding the commission of a crime by a particular accused. There was emphatic testimony of Omdeo Singh PW 1 that four years before the incident his brother Indradeo Singh had been elected as manager of the school defeating Shyam Babu. Devendra Singh PW 2 was also a member of the Committee of Management of the school and he refuted the suggestion that Indradeo Singh had been elected unopposed. There was emphatic testimony of Omdeo Singh PW 1 that four years before the incident his brother Indradeo Singh had been elected as manager of the school defeating Shyam Babu. Devendra Singh PW 2 was also a member of the Committee of Management of the school and he refuted the suggestion that Indradeo Singh had been elected unopposed. Rather he was elected on contest and that Shyam Babu accused had approached him to support him for managership. It is also found that a suggestion was made to Omdeo Singh PW 1 that there was enmity between Shyam Babu on the one hand and this witness and his brothers on the other from long before over the issue of election. Therefore, it could not be denied that there was bad blood between Shyam Babu on the one hand and the deceased on the other since before the incident and they were at daggers drawn. It was also suggested to Omdeo Singh PW 1 in his cross-examination that Shyam Babu was Pradhan from 1989 to 1995, was continuing as member of B. D. C. since 1995 and further that he was Adhyaksha of Sadhan Sahkari Samiti from 1997 to 1999, and in all such elections the deceased had been opposing him. It gives a hint that the deceased was a tough opponent of Shyam Babu. He had become the Manager of the school, blocking Shyam Babuss way to occupy that chair. Shyam Babu could, therefore, have well thought of liquidating the obstacle from his way for all times to come with his associates. 10. It is also to be kept in mind that the prosecution can only allege and prove what is known to it. There can be no direct evidence as to how the mind of a culprit works. The truth of the matter is that the informant disclosed about enmity between Shyam Babu and the deceased over the issue of election in the F. I. R. and he and other witness Devendra Singh PW 2 adduced evidence too in this behalf in the Court. The enmity, as pointed out, is admitted to the accused Shyam Babu also as we pointed out referring to suggestion made to Omdeo Singh in his cross- examination. 11. The enmity, as pointed out, is admitted to the accused Shyam Babu also as we pointed out referring to suggestion made to Omdeo Singh in his cross- examination. 11. Sri Chaturvedi then argued that it was not mentioned in the F. I. R. by Omdeo Singh PW 1 that he and his brother Brunmadeo were ploughing in their field and were coming behind Indradeo (who was going on a motorcycle) on tractor. According to him, it was developed later on by him that he and Brahmadeo were ploughing in their field and when Indradeo Singh was returning home from the side of Malai Ka Purwa towards home, they also started back journey behind him on tractor. Suffice it to say in this regard that F. I. R. is not an encyclopaedia of every minute detail. Broad essentials of the prosecution case, i. e. the time and place of the incident, the names of the accused with weapons, the manner in which the incident took place and the names of the witnesses were mentioned in the F. I. R. Further, the F. I. R. was lodged by the eye-witness Omdeo Singh PW 1 a little after the incident. He had seen the ghastly crime with his own eyes. He was an ordinary man with no legal acumen who could know the art of litigation. The recital of the F. I. R. rather indicates its spontaneity. 12. It has next been urged by the learned Counsel for the accused appellants that it was also not stated in the F. I. R. that Indradeo Singh had also reached the field and was returning therefrom to the house, the fact that he (Omdeo Singh) spoke in his testimony before Court. It does not seem to be so. The recital in the F. I. R. is: "yah GHATNA 9-11-1999 KI HAI. SAMAYA 5. 00 BAJE SHAM KI HAI. US SAMAYA HAMARE BHAI KHETO SE MALAI PURWA SE MOTORCYCLE SE GHAR AA RAHE THAI. US SAMAYA MAIN VA MERA BHAI BRAHMADEO KHETO ME JUTAI KAR RAHE THAI VA JAB VEY CHALE TO HAM LOG BHI TRACTOR SE PICHHE PICHHE CHALE. " 13. The referred recital in the F. I. R. is impregnant of the fact that Indradeo Singh had also reached the field. Omdeo Singh PW 1 very well explained the position in his testimony before Court that his cultivation was at three places. " 13. The referred recital in the F. I. R. is impregnant of the fact that Indradeo Singh had also reached the field. Omdeo Singh PW 1 very well explained the position in his testimony before Court that his cultivation was at three places. His two chaks were in the south of the village and one in the western side. The site plan shows that Malai Ka Purwa is situated in the south of village Moraon. He also stated that he had a field after intervention of four fields in the southern side (beyond Malai Ka Purwa) and another Chak after intervention of eight fields. At the time of the incident, he was working in the field situated after the intervention of four fields of Malai Ka Purwa in the southern side. The deceased was also returning from that side and there is no room to question that the F. I. R. did not say that the deceased had also visited the field. 14. Sri Chaturvedi then argued that the statement of Omdeo Singh PW 1 was not consistent as to whether they were ploughing in the field or had completed the ploughing. We do not think that it makes much difference. It is not possible to make any capital by playing with the words. It was the time of about 5. 00 p. m. in the month of November and it was natural that after ploughing Omdeo Singh PW 1 decided to return back on tractor when his brother Indradeo Singh having visited the field, left the same on motorcycle for home. There is no meaningful inconsistency in the statement of Omdeo Singh PW 1 on the factum of ploughing. We do not notice any such omission either in the recital of the F. I. R. which could give a jerk to the prosecution case. The argument is not acceptable that Omdeo Singh PW 1 was a chance witness, he having given a plausible explanation for witnessing the incident. 15. The learned Counsel for the accused-appellants then argued that Omdeo Singh PW 1 excluded the presence of Devendra Singh PW 2 because he stated in his cross-examination that accused- appellants stopped the motorcycle of his brother: he kept standing for a minute then fell down on receiving the shot injuries and that he himself raised shouts when the motorcycle was stopped by the accused and that Devendra. Singh came after three minutes. He also urged that this wit-ness Omdeo Singh PW 1 also did not see the accused appellants because his statement was that when he reached near his deceased brother, the accused- appellants had run away. 16. We should say as a passing reference that the place of incident is not in dispute for two reasons it was suggested to Omdeo Singh PW 1 in his cross-examination that his brother was killed under the cover of darkness at Rajwaha when he was returning from Kallu Singhs annakoot programme. He denied this suggestion. What is important to notice is that the place of incident because of such suggestion is not disputed from the side of the accused. Further, blood stained motorcycle of the deceased as also a pair of his chappals and a bullet had also been recovered by the Investigating Officer from the spot where the incident took place as per the prosecution. The said spots have been depicted by the Investigating Officer in the site-plan with the letters X1, X2 and X3. The scene of the crime is just in the north of the culvert of the minor canal towards Moraon, Malai Ka Purwa being in the southern side from which side the deceased on motorcycle and Omdeo Singh PW 1 on tractor were coming. The statement of Omdeo Singh PW 1 is there that he was at a distance of 16 paces in the southern side from his brother Indradeo Singh when the incident took place. There was no obstructive in between. Darkness had not set in. He could, therefore, very well see the incident with his own eyes. The fact that by the time he reached near his deceased brother, the assailants had run away, does not mean that he had not witnessed the incident. His testimony, in our opinion, also does not exclude the presence of Devendra Singh PW 2. Time is not the essence of life of illiterate rustics. The time of three minutes spoken by him cannot and should not, therefore, be calculated with mathematical accuracy. 17. The other witness Devendra Singh PW 2 whose name finds place in the F. I. R. , also gave a convincing explanation for his presence at the spot that at that time he was going to engage for work one Ram Deen Chamar in Malai Ka Purwa. 17. The other witness Devendra Singh PW 2 whose name finds place in the F. I. R. , also gave a convincing explanation for his presence at the spot that at that time he was going to engage for work one Ram Deen Chamar in Malai Ka Purwa. He being the resident of village Moraon, the place of incident fell on his way to Malai Ka Purwa. He saw the incident from the northern side depicted by alphabet d in the site plan which was at a distance of about 60-65 passage from the place of occurrence. The two spots being straight to each other, he could have very well seen the incident and the assailants. It has been argued that as per Omdeo PW 1, Devendra Singh PW 2 saw the incident from Khalihan which was at variance from what this witness stated. The place wherefrom the incident was seen by this witness could be spoken by him alone. Therefore, no importance can be attached to the above pointed statement of Omdeo Singh PW 1. Moreover, Devendra Singh PW 2 stated that when he first saw the accused, he was at a distance of 40-45 paces from the Khalihan of Beni Madhao. The Khalihan of Beni Madhao was in the eastern side of point d. There was no intervention between point d and the Khalihan of Beni Madhao. Therefore, the statement of Omdeo Singh PW 1 is not at noticeable variance either from that of Devendra Singh PW 2 in saying that he saw the incident from the Khalihan of Beni Madhao. 18. The testimony of Devendra Singh PW 2 has then been criticized on the premise that he admitted in his cross-examination that his father Kedar Singh had contested the election of Pradhan against Shyam Babus father Ram Bharosey. On this premise, he has been sought to be dubbed to be an inimical witness. However, the statement of this witness cannot be ignored that such election took place 20-25 years before the incident. Consequently, on the basis of an eventuality taking place about 20-25 years before the incident, this witness could not be deemed to be inimical to Shyam Babu. It has been another argument from the side of the accused-appellants that he being the supporter of Indradeo Singh and a member of Management Committee of the School, was an interested witness. Consequently, on the basis of an eventuality taking place about 20-25 years before the incident, this witness could not be deemed to be inimical to Shyam Babu. It has been another argument from the side of the accused-appellants that he being the supporter of Indradeo Singh and a member of Management Committee of the School, was an interested witness. There is no rule that the testimony of an interested witness is to be thrown overboard outrightly. On being tested through the instrument of cross-examination, the core of the testimony of this witness has remained intact that he saw the incident of shooting of the deceased by the three assailants on the given date, time and place. 19. It has next been urged from the side of the accused- appellants that there was no common bond amongst the three accused-appellants which could unite them to join to commit this crime. Actual thickness amongst the accused-persons and the reasons for the same could be known to them alone. The prosecution is not supposed to guess and find out the reason for the assailants to have joined in committing this felony. A suggestion was made to Omdeo Singh PW 1 from the side of the accused-Ram Bahadur Lohar that there had been litigation under Section 107 Cr. P. C. between him and Shyam Babu. Omdeo Singh PW 1 showed ignorance about it but the said Ram Bahadur Lohar relied upon a report dated 8-1-2001 under Sections 151/107/116 Cr. P. C. in which Shyam Babu (son of Ram Bharosey) and others are shown as first party and Ram Bahadur and others are shown as second party. The said paper is 44-B. We find that in his statement under Section 313 Cr. P. C. , Ram Bahadur Lohar disclosed his fathers name as Ram Nath. Therefore, Ram Bahadur named in the report- paper 44-B is not connected to Ram Bahadur Lohar son of Ram Nath accused in this case. The document relied upon by Ram Bahadur Lohar to prove himself to be belonging to the opponent group of Shyam Babu carries no weight. It appears that he has been roaming in the dark in an attempt to get away from the legal consequences of this heinous crime committed by him. In his statement before Court under Section 313 Cr. The document relied upon by Ram Bahadur Lohar to prove himself to be belonging to the opponent group of Shyam Babu carries no weight. It appears that he has been roaming in the dark in an attempt to get away from the legal consequences of this heinous crime committed by him. In his statement before Court under Section 313 Cr. P. C. , he stated that he was a carpenter and that the police personnel had got prepared jangala from him for which they did not pay. They again wanted him to prepare a jangala for them without payment which he declined. For this reason, he was falsely implicated in this case. The suggestion given to Devendra Singh PW 2 (who was also a member of the Committee of Management of School) was that the deceased Indradeo Singh had got prepared jangala from Ram Bahadur Lohar and he did not pay for the same. He wanted to get prepared more janglas for him which he declined and he was falsely implicated. Of course, Devendra Singh PW 2 Jenied this suggestion. The point that we wish to make is that Ram Bahadur Lohar was unsuccessfully putting up different pleas to make a dent in the prosecution case. 20. It is not understandable that Omdeo Singh PW 1 would have falsely implicated Ram Bahadur Lohar at the instance of the police and Devendra Singh PW 2 would have readily agreed to back him in his evil design. Really speaking, no reason could be shown which could have actuated the informant Omdeo Singh PW 1 and Devendra Singh PW 2 to have falsely implicated any of the accused-appellants. 21. It has next been urged by Sri Chaturvedi that as per the post-mortem report of the deceased, the stomach contained 150 gms. of semi-digested food and rice could be identified. He referred to the statement of Omdeo Singh PW 1 that the deceased had taken food with him at 9. 00 a. m. The statement of Dr. R. K. Misra PW 6 was also referred to that the stomach condition of the deceased indicated that he must have taken food four hours before the incident. The accused-appellants cannot gain any point by the argument advanced. There is nothing to indicate that the deceased did not take anything after 9. 00 a. m. The statement of Dr. R. K. Misra PW 6 was also referred to that the stomach condition of the deceased indicated that he must have taken food four hours before the incident. The accused-appellants cannot gain any point by the argument advanced. There is nothing to indicate that the deceased did not take anything after 9. 00 a. m. Omdeo Singh PW 1 was also not questioned as to what was contained in the meal taken by the deceased at 9. 00 a. m. Omdeo Singh PW 1 had not remained with the deceased throughout from 9. 00 a. m. onwards till the incident took place. The deceased could have eaten again in the day as a result of which 150 gms. of semi-digested food was found in his stomach with rice being identifiable. We should also point out that as per the post-mortem report, the deceased sustained four gun shot wounds of entry and four of exit on different parts of his body with an abrasion. All the gun shot wounds of entry had blackening and tattooing, meaning thereby that they had been fired from close range. The abrasion could be sustained by fall. The three accused-appellants fired shots on him and the evidence of Omdeo Singh PW 1 was that each of them fired one or two shots. The accused-appellants had emerged from their hiding all of a sudden and surrounded the deceased opening shots on him from close range. The gun shot wounds sustained by him are compatible for the prosecution case of there being three assailants. We also note from the testimony of Dr. R. K. Misra PW 6 that the shots had been received by the deceased from different directions. It is a pointer that to prevent the escape of the victim and to be sure to achieve the desired result of transporting him to the other world, the accused-appellants surrounded him and opened shots from different directions. Our point is that the medical evidence is in conformity with the ocular version and the eye-witnesses have rightly been believed by the Court below for the detailed discussion made by us. The accused-appellants were acting in concert sharing the common intention of one another. Our point is that the medical evidence is in conformity with the ocular version and the eye-witnesses have rightly been believed by the Court below for the detailed discussion made by us. The accused-appellants were acting in concert sharing the common intention of one another. They committed an offence under Section 302 I. P. C. read with Section 34 I. P. C. The trial Court should have convicted them thereunder instead of Section 302 I. P. C. simpliciter. But it makes no material or practical difference. 22. Resultantly, we see no merits in this appeal. It is hereby dismissed 23. The accused-appellants Shyam Babu, Lavlesh alias Pappu and Ram Bahadur Lohar are on bail. The Chief Judicial Magistrate, Fatehpur shall cause them to be arrested and lodged in Jail to serve out the sentences passed against them which shall be under Section 302 I. P. C. read with Section 34 I. P. C. He shall send compliance report to this Court within three months from the date of receipt of a copy of this judgment. Appeal dismissed.