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2013 DIGILAW 822 (ALL)

GORE SINGH v. STATE OF U. P.

2013-03-14

DHARNIDHAR JHA, PANKAJ NAQVI

body2013
Dharnidhar Jha and Pankaj Naqvi, JJ.:- 1. The present appeal questions the correctness of findings recorded by the VIIIth Additional Sessions Judge, Kanpur N.M.A. dated 25.9.1982 recorded in Sessions Trial No. 298 of 1981 by which the three appellants in the two connected appeals were held guilty of committing offence under Section 302 /34, I.P.C. and each of them was directed to suffer rigorous imprisonment for life. The prosecution case is based on written report Ex. Ka-1 of P.W. 1, Rajesh Singh, who happened to be the son of deceased Raghuraj Singh. It was stated by him that while his father was coming from the old house to his newly constructed house, and in that course, when deceased Raghuraj Singh had reached near the house of certain Ambika Nai, the three appellants appeared there. Appellant Buchau @ Ram Kripal was armed with a D.B.B.L. gun while appellant Gora Singh was armed with a S.B.B.L. gun and the third appellant Jabbar Singh was having a barchhi in his hand. Both appellants Buchau and Gora Singh fired at the father of the informant, i.e., deceased Raghuraj Singh as a result of which he fell down on the ground whereafter appellant Jabbar Singh dealt a barchhi blow and his father died instantaneously there. The uncle of the informant, namely, Chandra Pal Singh ( P.W. 2) and others who were around the place of occurrence had seen the occurrence and had also seen the three appellants running away towards the fields. 2. The informant further stated that his uncle Murli Singh and cousin Hansraj Singh alongwith Surendra Singh were working in the field. One Gore Singh was also grazing his catties near the field ( khaliyan) of the informant. Surendra Singh came and informed the informant that appellant Buchau Singh armed with axe came there and at the remonstration of one Sukhdeo Singh to kill Murli Singh and Hansraj Singh, committed the murder of above noted two persons by firing at them as also by giving blows with barchhi. The informant stated that his brother Surendra Singh stated that he ran away to save his life and that the second part of the incident which had taken place in khalihan located amidst the fields was witnessed by Surendra Singh and Gore Singh. The informant stated that his brother Surendra Singh stated that he ran away to save his life and that the second part of the incident which had taken place in khalihan located amidst the fields was witnessed by Surendra Singh and Gore Singh. The informant stated that dead body of his father was lying in front of the darwaja of Ambika Nai and dead bodies of his uncle Murli Singh and Hansraj Singh were lying in the field. 3. The motive for the occurrence as alleged by the informant was that on 17.4.1981 one Thande Singh and another had been killed and his cousin Mathuru Singh, Hansraj Singh and Shiv Badan @ Kallu Singh were accused in the case and the three were lodged in Kanpur Jail and since after the murder of Thande Singh, his brother Sukhdeo Singh and his sons had turned inimical towards the informant and others and as such had committed the offence. 4. On the basis of the written report of the informant, the case was registered as may appear from the evidence of P.W. 4, Purshottam Singh, who also made the relevant entries in the general diary and thereafter created copies of both the F.I.R. and written report to transmit the same to higher rank officers. After the case had been instituted, the investigation was taken up by P.W. 6. He stated that he had copied the written report and the F.I.R. in the case diary and recorded the further statement of the informant at the police station and taking the case diary and other relevant records came to the place of occurrence where he held inquest upon the dead body of deceased Raghuraj Singh and prepared inquest report in that behalf. The inquest report has been marked Ex. Ka-5 which was also signed by witnesses who had been associated with the inquest proceedings. P.W. 6, thereafter, prepared the dead body challan ( Ex. Ka-6) and handed over the dead body to P.W. 5, constable Shayam Lal Tiwari, who took the same to the mortuary. P.W. 6 inspected the place of occurrence and seized the blood stained earth alongwith six pellets which were found near the dead body by preparing seizure memo in presence of the witnesses, besides seizing the banyan from the dead body. P.W. 6 inspected the place of occurrence and seized the blood stained earth alongwith six pellets which were found near the dead body by preparing seizure memo in presence of the witnesses, besides seizing the banyan from the dead body. He went to the place where the dead bodies of Murli Singh and Hansraj Singh were lying and carried out the investigation in that connection. P.W. 6 recorded the statements of witnesses, prepared the site plan, Ex. Ka-13, and after receiving the post-mortem report and finding the material sufficient sent up the three appellants for their trial. It appears from paragraph 6 of the impugned judgment that the learned Sessions Judge who was holding the trial thought that the two incidents having taken place at two different places of occurrence should be tried separately. Accordingly, the trial in respect of occurrence relevant to the murder of Raghuraj Singh was taken up separately from the trial in respect of the two deceased, namely, Murli Singh and Hansraj Singh which ultimately ended in the impugned judgment. 5. The defence of the accused persons was that it was out and out a case of false implication on account of serious enmity and none had really seen the killing of deceased Raghuraj Singh. 6. The prosecution examined as many as six witnesses in support of the charge out of whom P.W. 1 Rajesh Singh the informant of the case and P.W. 2 Chandra Pal Singh had given eye-witness account of the same. Dr. D.P. Gupta had held post-mortem examination and had issued the report Ex. Ka-2. We have already noted that P.W. 4 was the Head Moharrir who drew up the F.I.R. on receipt of the written report and P.W. 5, Constable S.L. Tiwari, had taken the dead body to the mortuary. Besides, the case was investigated into by P.W. 6, S.I. Ram Prakash Singh. 7. Arguing the two appeals Sri P.N. Mishra, learned senior counsel assisted by Sri Rahul Mishra, advocate appearing on behalf of the appellants took us through the evidence of the witnesses and submitted that the motive to kill the deceased was not present in the mind of any of the accused, because if there could have been any motive to kill anyone it could have been the informant who also appeared equally inimical on account of the earlier murders which were allegedly committed by his brother or cousin. As such, the killing of Raghuraj Singh does not fit into the pattern of motive. It was contended that the evidence of witnesses indicated that the shots could have been fired from a distance of not less than about 30 feet, but the doctor was recovering pieces of wads from the wounds of entry which definitely indicated that the distance between the deceased and the assailant was very close if not as close as to cause singing and charring. This improbablised not only the presence of witnesses, but also rendered them untrustworthy on the manner of occurrence. It was next submitted that the two witnesses were themselves giving contrary statements at the place from where each of them was seeing the assailants firing the shots and this again improbablized their presence there. Submission also was that in spite of having seen his father being killed the informant remained sitting for more than an hour when Surendra Singh came to inform him about the second incident in connection with two murders in the field and he was not taking any steps for lodging the report. It was, lastly, submitted that the purpose for which both P.Ws. 1 and 2 were claiming their presence on or about the scene of occurrence appears unworthy of acceptance and on that score alone their evidence has to be discarded. 8. Sri Akhilesh Singh, learned Government advocate and Sri A.N. Mulla, learned A.G.A., appearing for the State, were submitting that there was no unusual aspect in the evidence of P.Ws. 1 and 2 so as to rendering both the witnesses unworthy of credence. Submission was that it was an occurrence taking place at about 10:00 a.m. and the purpose for which the two witnesses came around the scene of occurrence does not appear unusual and as such their eye-witness account was credit worthy. Submission was that the accused persons had serious motive for committing the murder and merely finding the wads inside the injuries could not render the manner of occurrence as narrated by witnesses inconsistent with the medical opinion and unacceptable therefore. 9. On consideration of the evidence of P.W. 3, Dr. D.P. Gupta, there could not be any doubt that Raghuraj Singh was killed by gun shots. P.W. 4 stated that he had found the following anti-mortem injuries on the dead body: 1. 9. On consideration of the evidence of P.W. 3, Dr. D.P. Gupta, there could not be any doubt that Raghuraj Singh was killed by gun shots. P.W. 4 stated that he had found the following anti-mortem injuries on the dead body: 1. Six gun shots wounds of exit 1-1/2 c.m. above right nipple in an area of 7 c.m. x 5 c.m. x chest cavity deep each measuring 1 c.m. x 1-1/2 c.m. 2. Five gun shot wounds of exit 10 c.m. above umbilicus on the right side of abdomen 7 c.m. x 6 c.m. in area each measuring 1 c.m. x 1/2 c.m. x cavity deep. 3. Gun shot wound of entry 4 c.m. x 3 c.m. x cavity deep. 3 c.m. right in the middle of the back 2.14 c.m. above the right upto hip bone. 4. Gun shot wound of entry 4 c.m. x 3 c.m. x cavity deep, 5 c.m. above and right to injury No. 3. 5. Penetrating wound size 1-1/2 c.m. x 1 c.m. x cavity deep, 3-1/2 c.m. above and right to injury No. 4. 10. P.W. 3 found that the 6th and 9th ribs on the right side of the back were fractured and the pleura of that side alongwith the lungs were lacerated. Peritoneum, the large intestine, liver and gall bladder were all lacerated with the right kidney and the death had occurred on account of excessive bleeding due to the above noted injuries and further, that those injuries were sufficient in the ordinary course of nature to cause death. P.W. 3 stated that three pieces of wads were recovered from the thoracic cavity and one wad was recovered from liver while one pellet was also recovered from liver which were sealed and handed over to the constable in a sealed packet. Thus, there could not be any doubt that the deceased had been shot and killed but that by itself may not be sufficient for any Court to hold any set of accused guilty unless the evidence showing their participation in commission of the offence is accepted as creditworthy. 11. This is the reason that we have proceeded to examine merits of the contentions and the claim of witnesses as regards their presence at the scene of occurrence. 11. This is the reason that we have proceeded to examine merits of the contentions and the claim of witnesses as regards their presence at the scene of occurrence. In the above connection, we have first taken up the evidence of P.W. 2 for scrutiny, especially, in the light of the criticism that the very claim of the witnesses on account of the reason for which he was present near the place of occurrence was not acceptable. P.W. 2 had stated that he had come to the well which was situated near the house of one Hansadhwaj and which also belonged to Hansadhwaj. It has come in the evidence of P.W. 2 himself that there was a very big well situated contiguous East to his own house and the well which was belonging to Hansadhwaj to which he come to draw water on the day of occurrence was about 70 to 80 steps away from his house. The site plan which had been marked as Ex. Ka-13 in the case is available at page 82 of the paper book. P.W. 1, as we may find from his evidence at page 18, stated that in the older house in addition to the informant, Surendra Singh, Chandra Pal Singh ( P.W. 2) and Murli were still residing. P.W. 2 had further stated that he usually drew water from the well which was situated near his house and we don't have any bit of hesitation in accepting that it could be fit in with the normal conduct of a human being as men or women are always inclined to access the nearest things as a matter of convenience and comfort and nobody shall be travelling as longer a distance as of 70 to 80 steps to access a well to draw water. The other reason which appears from the evidence of P.W. 2 which may improbablize his presence around the scene of occurrence was his own admission that the women of his family never came out of the house to draw water. This is available at page 24 of the paper book. But, what P.W. 2 was telling to the Court was that he had drawn two buckets-full of water from the well situated near the house of Hansadhwaj and one of the two had been taken away by a woman of his house. This is available at page 24 of the paper book. But, what P.W. 2 was telling to the Court was that he had drawn two buckets-full of water from the well situated near the house of Hansadhwaj and one of the two had been taken away by a woman of his house. This evidence of P.W. 2 is extremely incompatible to his own statement that the women-inmates of his house had never come out of his house to draw water in the public view. What we have found on a general reading of the evidence of P.W. 2 was that his family was enjoying some degree of respect in the village and as such it may not be an improbable and untrue statement that ladies of such a house would come out to draw water or to take away the bucket-full of water in public view by crossing public thoroughfare which was passing in between the house of P.W. 2 and well of Hansadhwaj. This is the reason that we have great hesitation in agreeing to the submission of the learned Government advocate that P.W. 2 might be present at the scene of occurrence. 12. The second reason upon which we discard the claim of P.W. 2 of remaining present at the scene of occurrence is that in his evidence he was stating that as soon as he saw the accused persons following his brother, the deceased, he thought that they will kill his brother and as such, he also followed the accused persons. He said that he came on to the road at a particular place from where he saw the accused persons firing the shots. Further, clarifying his position, P.W. 2 was pointing out at page 22 of the paper book that the accused persons were standing at the trisection of the road and he was standing 10-12 steps away from them when they have fired the shots. But during cross-examination, the witness stated that he saw the occurrence from a point situated South of the house of Miliyat Singh and in the next he was pointing out that he was standing at the place situated North-East of the house of the said Miliyat Singh. But during cross-examination, the witness stated that he saw the occurrence from a point situated South of the house of Miliyat Singh and in the next he was pointing out that he was standing at the place situated North-East of the house of the said Miliyat Singh. On attempting to fix the two points, as per the above evidence of P.W. 2 which appears at page 24 of the paper book, we found that the two points should be opposite to each other and this contrary evidence of the witness on his position from where he was seeing the occurrence was making it very dangerous for this Court to hold that he could have been present at the seen of occurrence. If these are the reasons which appears from the evidence of P.W. 2 then he could not be said to be ever present at on around the scene of occurrence to have seen deceased Raghuraj Singh being fired at and given blows with a barchhi so as to be killed. We had no faith in P.W. 2 so as to relying upon him as a trustworthy witness. 13. The above brings us to consider the merits of the claim of the P.W. 1 as an eye-witness to the occurrence. Similar were the reasons which were addressed to us in respect of the claim of the P.W. 1's presence at the scene of occurrence as were in case of P.W. 2. It was submitted that he could never have been at the scene of occurrence as the very reason of accompanying his father does not appear fit in with the ordinary conduct of daily business of a human being. In that connection our attention was drawn to the evidence of P.W. 1 who stated at page 18 that only on 22nd of April, 1981 the marriage of his full-sister had been solemnized, the month of April does not appear in his evidence, but by co-relating the day of occurrence to the date 22nd which was given out by P.W. 1, we could infer that it could have happened only in that month. There is no dispute in it that the family was having two different houses, one was an older one which has been described in the site plan situated East of the trisection of the road to further East of the house of the Miliyat Singh, whose name and the situation of his house we have discussed while considering the evidence of P.W. 2. The evidence of P.W. 1 indicated that many guests had come to participate in the celebration of marriage of his full sister and the lady visitors or invitees had been put into the older house. The witness was pursued in cross-examination as to whether any maintenance work or anything to we do up the house had been done, when the witness stated that it had not been and only cleaning of the house had been carried out and the guests had been put into that house. We could simply refer to Section 114 of the Evidence Act to note that Courts have always raised inferences taking into account the common course of natural event, human conduct and public and private business. When the Evidence Act talks of the business. It must not be meant something which could be in terms of money transaction and sale or purchase of any article. Business as may appear from the illustrations which are appended to that particular section may include the ordinary course of conducting one's businesses to pursue one's daily vocation as also to pursue ones daily life style, besides, to do anything which could be necessary to be done under any particular circumstance or reason. The marriage was to be solemnized of a daughter in the house who was none-else than the daughter of the deceased. The guests were to be received and were to be put in a particular place. This is common experience that in such a situation places where the main celebrations are to be held or those where persons assemble or live or put in are spruced up to give a healthy, pleasing look as a mark of respect to the guests who were likely to arrive. This is common experience that in such a situation places where the main celebrations are to be held or those where persons assemble or live or put in are spruced up to give a healthy, pleasing look as a mark of respect to the guests who were likely to arrive. If no sprucing up or face lift, as Sri K.N. Bajpayee was pointing out to us, was given or done to the house prior to the main celebrations, then one could simply have many thoughts not only the second thought in accepting the evidence of the prosecution that the sprucing up of the house or the face lift of the same was being carried out many days after the marriage had been solemnized. This is not our surmise; it comes from the evidence of P.W. 1 at page 18 of the paper book that on that particular day while he was coming back from the older house with his father, the occasion was that his father had gone to supervise or to take stock of the sprucing up exercises which were being carried out in that house. The reason appears simply illogical as it does not fit in to the ordinary business-conduct of a family. We have all the reasons to note that there could never have been any occasion for the deceased to go to the house as we cannot that there was no sprucing up going on that particular day which was after many days of the main occasion of celebrating the marriage of the daughter of the house. If this is doubted as we do, then the very presence of P.W. 1 falls into some serious doubts. P.W. 1 was cross-examined as to from where and which direction he reached the place of occurrence or he was coming. On the same page 18 of the paper book P.W. 1 stated that while accompanying his father and following him by a few steps, he came from South of the house of Miliyat Singh. The further sequence which appears from the evidence of P.W. 1 was that his father was ahead of the accused persons and he was at some distance away from the accused persons while moving in the same direction when the accused persons ran and killed his father. The further sequence which appears from the evidence of P.W. 1 was that his father was ahead of the accused persons and he was at some distance away from the accused persons while moving in the same direction when the accused persons ran and killed his father. P.W. 1 further stated that he was at the South of the house of Miliyat Singh when his father was killed. But what we find from the evidence of P.W. 1 himself is that he said that he was in the backyards of the house of Miliyat Singh. This line of evidence has come in the first line at page 19 of the paper book. If we fix that position as per the evidence of P.W. 1 then the vision of P.W. 1 could be obstructed by the very situation of the house as the incident had taken place at a place which has been shown by the Investigating Officer on account of finding the dead body at point 'X' which is encircled in the site plan. On these reasons, we find that it is not safe also to accept the claim of P.W. 1 that he could have been standing at the place or present at the place of occurrence from where he could have seen the occurrence. 14. Further Improbability in the case which makes accepting the evidence of the two witnesses unsafe emerges from their description of the evidence and different distance from where the accused persons had fired the shot. It is almost consistent in the evidence of both P.Ws. 1 and 2 that the two shots were fired by the two accused persons, namely, Bachau and Gora Singh from a distance of about 12-15 steps. We have considered the distance on its minimum side and even that calculation could bring the total distance in terms of feet to somewhere around 30 feet. We have already noted that P.W. 3 the doctor who held post-mortem examination was recovering three wads from the thoracic cavity-the right thoracic cavity-and one wad from the liver. The recoveries of four wads from two organs of the dead body could be properly giving out a picture as to what was the force which had been generated by the shot which was driving the pieces of wads to enter into the human body to such depths. The recoveries of four wads from two organs of the dead body could be properly giving out a picture as to what was the force which had been generated by the shot which was driving the pieces of wads to enter into the human body to such depths. In our opinion, the shot might not have been fired from as closure a range as not to cause any charring and singing but it was fired from sufficiently closure distance as to force the wads enter inside the human body through the entry which was created in such miniscule area as described by the doctor. The entry wounds which had been described at serials Nos. 3 and 4 of the evidence of the doctor were 4 c.m. x 3 c.m. upto cavity deep. The pellets were also there whereas some of the pellets came out of the body of the deceased as six of them were found lying at the place of occurrence itself. If the witnesses had been following the accused persons from such close distance as was claimed by them then they could have definitely pointed out the approximate distance from which the shots were fired. In our opinion, the D.B.B.L. gun or a S.B.B.L. gun which was allegedly used by the two appellants in inflicting one shot injury each could not have been a weapon which could put into transitory the wads of a cartridge to pierce into the human body. We have doubt as regards the weapons which were allegedly used by two appellants Bachau and Gora Singh. We are of the opinion that the force which was generated by the shots from the distance which was definitely not short, must have been generated by weapons which could have its barrel either rifled or something of special type which could have propelled the wads into the human internal cadaver. In addition to the above reasons, what we find is that there is admission by P.W. 1 at page 17 that the village was deeply faction ridden. There were two groups, one was lead by one Nanka Singh and the other by Sukhdeo Singh. In addition to the above reasons, what we find is that there is admission by P.W. 1 at page 17 that the village was deeply faction ridden. There were two groups, one was lead by one Nanka Singh and the other by Sukhdeo Singh. Where the village is a faction ridden village and where there is serious enmity between the parties, as appears in the present case on account of repeated incidents of murders taking place on regular intervals, it is highly unsafe to place reliance upon such interested witnesses like P.Ws. 1 and 2 whose presence at the seen of occurrence we have already doubted in the earlier discussion. Not untrue that Raghuraj Singh was killed. He was definitely murdered, but the quality of evidence which was produced by the prosecution on all aspect of the case appears not convincing and we are of the opinion that it is not safe that we should uphold the Judgment of conviction passed by the learned trial Judge. In the result, the two appeals are allowed. The judgment of conviction and order of sentence passed by the learned trial Judge are hereby set aside. The appellants are acquitted of the charge. They are on bail. They shall stand discharged from the liabilities of their respective counts.