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Allahabad High Court · body

2012 DIGILAW 176 (ALL)

Gaindan Singh v. State of U. P.

2012-01-18

ASHOK SRIVASTAVA, DHARNIDHAR JHA

body2012
JUDGMENT Ashok Srivastava, J.;- 1. The present appeal preferred by three appellants, namely, Gaindan Singh,Om Prakash and Devi arises out of the judgement of conviction dated 22-9-1982 passed by the learned Sessions Judge, Moradabad in Sessions Trial No. 70 of 1982 by which the three accused persons who were tried together, were held guilty of committing offence under section 302/34 I.P.C. After hearing the appellants on sentence on 24-9-1982 the learned judge directed each of them to suffer rigorous imprisonment for life. 2. One of the appellants Gaindan Singh was reported dead andthat wasconfirmedby the reportsubmitted by the Chief Judicial Magistrate, Moradabad as a result of which an orderof abatementof appealof Gaindan Singh was passed by this Court on 31-8-2003 as a result of which the appeal survived only on behalf ofappellant no. 2 Om Prakash and appellant no. 3 Devi. 3. The prosecution case is containedin thewritten report Ext. Ka-1 filedby PW-1 Ram Singh who happened to benephew of the deceased Ram Bhajan. It was stated by the informant thatin the night intervening24th and 25th October, 1981, the deceased, his wife Smt. Bholi (PW-2) andtheir son Ekandarpal as also the informant were sleeping inthe verandah of the house of deceasedRam Bhajan. It was at about 2: 30 a.m.in the nightthatthe child of the deceasedwoke up toattend to the call of nature and hewas taken by PW-2 Smt. Bholi, his mother, to an appropriate place.When the lady wasin the processof escortingherchildto the right place so that he couldease out, she found the appellantsdescending from the roof top of her houseafter having transgressedit from their own roof top. One of the appellants, Devi, ran tothe mainentrance of the house to unlatchthe doors and at the same time appellant Om Prakash dealtblows withkulhari on thedeceasedwho was sleeping in a cot. Thedeceased-appellant Gaindan Singh fired a shotupon the deceased. 4. It was statedby the informant thaton account ofthe cries of PW-2 Bholihe also woke upand had seen the occurrence. The other villagers namely Kalluand Mohan (PW-3) alongwith othersalsorushed to the the scene of occurrence flashing torch lights. 5. On the basis ofwritten report Ext. Ka-1,F.I.R.of the case (Ext. Ka-3) wasdrawn up byPW-4 constableVijay Singh. 4. It was statedby the informant thaton account ofthe cries of PW-2 Bholihe also woke upand had seen the occurrence. The other villagers namely Kalluand Mohan (PW-3) alongwith othersalsorushed to the the scene of occurrence flashing torch lights. 5. On the basis ofwritten report Ext. Ka-1,F.I.R.of the case (Ext. Ka-3) wasdrawn up byPW-4 constableVijay Singh. Investigationwas taken up by PW-5, Station House Officer, Shish Pal Singh who came to the place of occurrence sometimes in the afternoon on 25-10-1981 and inspected the place of occurrence to prepare the site plan which has been marked Exhibit Ka-11. We find from the details of the evidence of PW-5 as also the site plan that there is no gap between the roof top of appellant Devi and that of deceased Ram Bhajan. We are satisfied that it would have been convenient for the accused persons to have transgressed on to the roof top of the deceased and to have scaled down from the court yard so that one of them could have opened the main entrance door of the campus We further find that the Investigating Officer indicated the places where four different cots were laid in which the deceased and one of his sons, namely, Ekandarpal as also the informant were sleeping in the fateful night. The place where the deceased was hacked to death has also been indicated alongwith the direction in which the accused persons had ejected from the house of the deceased. 6. We further find from the evidence of PW-5 and the relevant records like Ext.-Ka-3 that the lantern which was said to be burning at the place of occurrence and which facilitated the identification of the accused persons was found there and the same was seized and was again handed over to the informant Ram Singh (PW-1). Likewise, the blood stained quilt which was used by the deceased during that particular night was also seized by preparing seizure memo Exhibit Ka-9. Earth was found blood stained at the place of occurrence that appears seized by prepares by Ext.Ka-10, the seizure memo prepared for seizure of blood stained earth. Likewise, the blood stained quilt which was used by the deceased during that particular night was also seized by preparing seizure memo Exhibit Ka-9. Earth was found blood stained at the place of occurrence that appears seized by prepares by Ext.Ka-10, the seizure memo prepared for seizure of blood stained earth. PW-5 had also held inquest upon the dead body by preparing inquest report Exhibit Ka-8 and sent the same alongwith the other relevant records, like, a letter addressed to the Chief Medical Officer and the challan for carrying the dead body by constable V.P. Singh PW-6 for autopsy to be performed by the doctor. PW-5 had recorded the statement of the witnesses and after completing the investigation had sent three accused persons up for their trial. 7. The defence of the accused persons was same which was alleged as motive for commission of the offence. It was not specifically stated in the written report as to what was the reason the deceased had been murdered for. As regards motive for commission of the offence, nothing was stated by the PW-1 in the written report. It appears in paragraph no. 9 of his deposition that the deceased has got settlement of some land of Gram Sabha which the appellant Devi was also aspiring to get and on that account the murder had been committed. We further find from the cross examination of PW-12 in paragraph 19 that some litigation had gone to some authorities also and the litigation had been filed about two months prior to the commission of the offence. This evidence in paragraph 19 was brought on record by cross examination of PW-1. The accused persons contended that they had been falsely implicated on account of the same reasons. 8. During the course of trial, seven witnesses were examined in support of the prosecution charges out of whom the informant PW-1 Ram Singh and wife of the deceased Smt. Bholi (PW-2) were giving eye witness account of the occurrence. PW-3 Adal was not the eye witness and he stated that when he came to the place of occurrence with his torch light, he found the accused persons ejecting from the gate of the place of occurrence. PW-3 Adal was not the eye witness and he stated that when he came to the place of occurrence with his torch light, he found the accused persons ejecting from the gate of the place of occurrence. We have already noted the part which was played by the police personnel in investigation of the case and we do not want to reiterate their roles individually except that the post mortem examination was held on the dead body of the deceased by Dr. R.K. Jain, PW-7 who prepared post mortem report Ext. Ka-13 in that behalf. 9. As regards evidence of the two witnesses, namely, PW-1 Ram Singh and PW-2 Smt. Bholi, the learned counsel appearing on behalf of the appellants challenged the very presence of the informant by pointing out to us the paragraphs in cross examination of the witnesses in which he has stated that he was sleeping with the deceased in the verandah because he also used to teether his buffalo in the cattle shed of Ram Bhajan. It was pointed out to us that the informant had separate establishment with his house where he was living. But when we were considering that submissions as well as the evidence of PW-1 Ram Singh and PW-2 Smt. Bholi, we could not find out that infact PW-1 had separate cattle shed of his also. The life in rural areas has its own peculiarity. Not only the inmates of the house could be found sleeping at the same place, other villagers may also be found sleeping in any neighbours' house which indicates that interdependence is acceptable with rural society. Here was the case in which good example of interdependence was of the very close relative of the deceased upon him was noticed by us. The informant was the nephew of Ram Bhajan, the deceased and we do not find any dispute in That that he had though had his own separate establishment of the living apartment, he did not have any establishment for his cattle. This was the reason, in our opinion, that the informant was dependent upon his uncle to teether his buffalo in the cattle shed in which four cattles of the deceased were also being teethered. This was the reason, in our opinion, that the informant was dependent upon his uncle to teether his buffalo in the cattle shed in which four cattles of the deceased were also being teethered. The Informant was put some direct questions on his presence in that particular night in the house of the deceased and he was assigning the reason that because his buffalo was being teethered there, it was necessary that he remained there for tending his animal. We accept the reason stated by PW-1 on that account. We do not have any doubt that PW-1 must have remained present in the house in which occurrence was taken place as he had to look after his buffalow there. 10. So far as the presence of PW-2 Smt. Bholi is concerned, it may appear that she was the wife of the deceased and her presence was natural there which could not be doubted under any situation. She was also accompanied by one of her sons, Ekandarpal. The investigating officer while inspecting the place of occurrence had found four cots lying in a series at the place of occurrence and the witnesses were found pointing out to him as to which of the witnesses alongwith the deceased was in which cot and on one of the cots he had found blood stained clothes including the quilt. So far as sufficiency of the light is concerned, there was nothing on record except that PW-1 was cross examined in para 28 when he was telling the court that outside the house of the deceased there was an electric pole and electric bulb was hanging from it. The electric supply was there and the area was sufficiently lighted. In order to verify the above evidence we consulted the site plan appearing at page 91 of the paper book which is also exhibited as Ext. Ka-11. We find that on the worth - eastern corner of the campus of Ram Bhajan, the electric pole was situated and the Investigating Officer had noted that the bulb was put up on that pole. We have our experience that an electric pole carries some height and generally a bulb which is hung up from it. The light coming from a height percolates into the surrounding areas and if it could not light the area brightly, there may be sufficient light in the surrounding area to facilitate proper vision. We have our experience that an electric pole carries some height and generally a bulb which is hung up from it. The light coming from a height percolates into the surrounding areas and if it could not light the area brightly, there may be sufficient light in the surrounding area to facilitate proper vision. Above all, we have already noted that the house of the appellant was situated just by the side of the house of the deceased. They were close neighbour and villagers. The witnesses and the accused persons were known to each other. As such there might not have been any difficulty in identifying the accused persons. Besides, the lantern was found at the place of occurrence and we found from paragraph 10 of the evidence of PW-2 that the same was produced by her during her examination in chief in the court. 11. The manner of occurrence was narrated by PW-1 and that gave support to PW-2. PW-1 has stated that PW-2 had awaken on the cries of the child who was needed to attend to the call of nature. The lady, PW-2, had escorted the child upto an appropriate place for the purpose, when she found the three accused persons jumping into her court yard after having transgressed on to the roof-top of her house, and one of them, Om Prakash unlatched the main door. The lady stated that she started shouting when Devi rushed to the place where deceased was sleeping and started giving blows with his weapon. The lady stated that she also rushed back to the place where her husband was lying and attempted to push back the assailants, when she herself was pushed back as result she fell down. This fact has been found corroborated by the informant PW-1, especially that particular fact that when PW-2 intervened she was pushed back by the assailants and she fell down. We could find this evidence from paragraph 25 of PW-1. Thus, we find that there is a consistent support on all material parts of the prosecution story both from PWs. 1 and 2. 12. The last argument of the learned counsel for the appellants was that the medical evidence of PW-7, Dr. We could find this evidence from paragraph 25 of PW-1. Thus, we find that there is a consistent support on all material parts of the prosecution story both from PWs. 1 and 2. 12. The last argument of the learned counsel for the appellants was that the medical evidence of PW-7, Dr. R. K. Jain was not corroborating the manner of occurrence as three incised wounds found by PW-7, were not sufficient in the ordinary course of nature or even sufficient enough to damage any vital part of the body of the deceased so as to causing his death. We find that PW-7 had found 3 incised wounds, first of which was measuring 5.5 cm x 1 cm x bone deep on the left side of the chest 3 cm above the left ear. The learned trial court had wrongly recorded chest in place of head and we correct the error by recording that it was an inadvertent error. The other incised wounds were measuring 2.5 cm x 1/2 cm x scalp deep on the outer side of right eye brow. The third incised wound measured 5 cm x 1 cm x scalp deep was on the right side of his head about 9 cm above the right ear. Besides, the three incised wounds, PW-7 had found one superficial injury measuring 3 cm x 1 cm on the front right leg in its middle. The solitary gunshot wound of entry was measuring 1.5 cm x 5 cm on the mastoid bone at left side just below the left ear. The wound was directed transversely inwards and it reaches upto the mastoid bone of right side. There was blackening around the wound. While giving final opinion as to the cause of death, PW-7 was pointing out that the death occurred due to comma on account of the injuries. In addition of the above, he was pointing out that the parietal bone was fractured and membrane of brain was ruptured which was reciprocal to the gunshot wound. It was contended by the learned counsel that the injuries were too trivial to be sufficient in the ordinary course of nature to cause death. We respectfully disagree from the submission which was raised before us. We find that the opinion of the doctor was that the three incised wounds were not found dangerous as one may anticipate them to be. We respectfully disagree from the submission which was raised before us. We find that the opinion of the doctor was that the three incised wounds were not found dangerous as one may anticipate them to be. However, as regards the death of the person, the doctor had found them sufficient enough to be caused by such injuries. Not only that, he was very categori-cal in recording his finding that parietal bone was fractured and membranes of the brain ruptured. We are sure that the medical evidence which was lending support to the oral testimony was certainly indicating as to what sort of weapon was used to assault the deceased. Cumulative effect of dealing blows in the opinion of the doctor, which opinion we also entertain, was ultimate cause of death of the deceased. 13. Thus what we find is that the prosecution had succeeded in bringing the charge home against the accused. 14. It was submitted, lastly, by the learned counsel appearing on behalf of appellants that the appellant Om Prakash was not assigned any role. We could have considered that argument but for the sharing of common intention by the mode committing the offence. The manner in which they had scaled down from the roof top and had unlatched the entrance of the campus gives us a clear picture that they were definitely sharing common intention and that was do away with the life of the deceased on that fateful night. 15. Considering these circumstances, we find that conviction of the appellants was rightly recorded by the learned Sessions Judge. In the result we do not find any merit in the present appeal and the same is dismissed. Appellants are on bail. Their bail bonds are cancelled and they are directed to be taken into custody for serving out the sentence, in case they do not surrender to their bonds.