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2016 DIGILAW 462 (ALL)

Girvar v. State of U. P.

2016-02-05

HULUVADI G.RAMESH, SHAMSHER BAHADUR SINGH

body2016
JUDGMENT Shamsher Bahadur Singh, J. 1. The present appeal assails the accuracy of the verdict dated 04.10.1983 passed by IVth Additional Sessions Judge, Budaun in Session Trial No. 316 of 1982 (State Vs. Girvar Singh and others), P.S.-Bilsi, District Budaun, whereby the appellant/ accused Ramesh has been convicted for the offence under Sections 302 and 323/34 IPC and has been sentenced to undergo imprisonment for life for having committed the offence of murder of Shiv Singh punishable under Section 302 IPC and to rigorous imprisonment of one year under Section 323 /34 IPC. By the same judgement accused Girvar and Mahipal have been convicted under Sections 302/34 and 323/34 IPC and sentenced to undergo imprisonment for life under Section 302 /34 IPC and to one year rigorous imprisonment under Section 323 /34 IPC. All the sentences have been ordered to run concurrently. 2. The deceased Shiv Singh and informant Mahendra Singh both are real brothers and residents of village Garhi, P.S.-Bilsi, District Budaun. The accused Girvar Singh and Ramesh are also residents of the same village and accused Ramesh is a nephew of Girvar Singh. Accused Mahipal Singh is resident of village Haidalpur, P.S.-Bilsi and brother-in-law of co-accused Ramesh. 3. The brief facts leading to prosecution of appellants are as follows: On 25.05.1981 at about 2 p.m., when Shiv Singh and Mahendra Singh were picking bacilli from a hoof of their ox, in front of their house, the accused Girvar Singh and Mahipal Singh equipped with 'lathies' (sticks) and Ramesh with a gun came there from eastern side. On the exhortation of Girvar Singh, accused Ramesh fired a gun shot which hit the deceased Shiv Singh and Mahendra Singh causing firearm injuries. Thereafter the accused Girvar Singh and Mahipal Singh also assaulted the deceased and informant Mahendra Singh with 'lathies' (sticks) and also caused injuries thereby. On an alarm raised by the injured Mahendra Singh, the witnesses Shishupal and Amar Singh reached the spot and challenged the accused. Thereafter, the accused flew away from the scene of occurrence. The informant Mahendra Singh managed a bullock cart and took the deceased Shiv Singh along with Matru Chowkidar to the police station and lodged the FIR (Ext. Ka-3) on 25.05.1981 at about 18.45 hours. The information was entered under Section 154 Cr.P.C. on a prescribed format on the dictation of the informant Mahendra Singh. The informant Mahendra Singh managed a bullock cart and took the deceased Shiv Singh along with Matru Chowkidar to the police station and lodged the FIR (Ext. Ka-3) on 25.05.1981 at about 18.45 hours. The information was entered under Section 154 Cr.P.C. on a prescribed format on the dictation of the informant Mahendra Singh. Thereafter, the deceased Shiv Singh and Mahendra Singh were sent to the Primary Health Centre, Bilsi for treatment and the attending Doctor referred them to the District Hospital, Budaun. 4. The deceased Shiv Singh and injured Mahendra Singh were medically examined on 25.05.1981 at 8.30 p.m. and 9 p.m. respectively by the P.W.1, Dr. V.K. Gupta. He found one lacerated wound and four firearm injuries on the person of Shiv Singh and one circular abrasion, one lacerated wound and one contusion on the person of Mahendra Singh. Dr. Gupta prepared the injury reports Ext. Ka-1 and Ext Ka-2. P.W.6 S.I. Bhagwan Das (Ist I.O.) recorded the statements of informant Mahendra Singh and Shiv Singh on 25.05.1981 at Police Station and Bilsi Hospital respectively. The I.O. inspected the spot on 26.05.1981 and drew the site plan Ext. Ka-8 and also recorded the statements of other witnesses. Thereafter, the investigation was taken over by I.O. Kalicharan Sharma. On 26.05.1981 at 12.45 a.m. Shiv Singh succumbed to the injuries and on the information vide G.D. Ext. Ka-5 dated 27.05.1981 the case was altered from the offence under Section 307 IPC to 302 IPC by PW 8, Head Constable Satyaveer Singh. Thereafter, S.I. Sureshveer Singh visited the Mortuary at Sadar Hospital, Budaun and held inquest at 10.55 a.m. on 26.05.1981 vide Ext. Ka-6. Inter alia, he recovered the dead body of the deceased and prepared other relevant documents vide Ext. Ka-11 to Ka-15 necessary for the purpose of post mortem of the deceased. The corpse was sealed and sent for autopsy. Autopsy was conducted by Dr. Om Prakash Chimpa, Medical Officer, District Hospital, Budaun on 26.05.1981 from 4 p.m. onwards and the autopsy report is Ext. Ka-9. 5. The following ante-mortem injuries were found on the person of the deceased: - i. Lacerated wound 5 cm x 0.5 cm x scalp deep at top of the head. Bleeding present. ii. Autopsy was conducted by Dr. Om Prakash Chimpa, Medical Officer, District Hospital, Budaun on 26.05.1981 from 4 p.m. onwards and the autopsy report is Ext. Ka-9. 5. The following ante-mortem injuries were found on the person of the deceased: - i. Lacerated wound 5 cm x 0.5 cm x scalp deep at top of the head. Bleeding present. ii. Two gun shots wound of entry 5 cm x 0.5 cm circular in shape on right side abdomen, one at subcostal region 12 cm below left nipple at 5 o'clock position and second 15 cm away from umbilicus at 3 o'clock position. iii. Multiple gun shots wound of entry right front of abdomen and lateral aspect in an area of 25 cm x 15 cm. Each wound are 0.5 cm x 0.5 cm and circular in shape. iv. Multiple gun shots wound of entry in an area of 20 cm X 12 cm in front of right groin region. Each wound 0.5 cm x 0.5 cm circular in shape. 6. In the opinion of the doctor, the death occurred due to shock and haemorrhage as a result of ante-mortem firearm injuries mentioned above. 7. P.W.7, Kalicharan Sharma (the 2nd I.O.) recorded the statements of Girvar Singh and Mahipal who were arrested by the 1st I.O., S.I. Bhagwan Das. Thereafter, the investigation was transferred to the 3rd I.O., S.I. Virendra Singh who after receipt of injury report and inquest report recorded the statements of witnesses of inquest and submitted the chargesheet Ext. Ka-6. Thereafter, the case was committed to the Court of Sessions on 23.06.1982. To the charges under Sections 302/34 and 323/34 IPC accused pleaded not guilty and attributed their prosecution to enmity with the deceased and witnesses. 8. To bring home guilt of the accused, the prosecution examined as many as 9 witnesses. Out of them P.W. 1, Dr. V.K. Gupta, P.W. 2, Head Constable Satyaveer Singh, P.W. 6, S.I. Bhagwan Das, P.W. 7 S.I. Kalicharan Sharma, P.W. 5 S.I. Virendra Singh, P.W. 8 Dr. Om Prakash Chimpa and P.W. 9 S.I. Sureshveer Singh are formal witnesses and their testimony is confined to the role which they played during the course of investigation. 9. P.W. 3 Mahendra Singh and P.W. 4 Shishupal Singh are the eye witnesses. 10. P.W. 3 Mahendra Singh is the informant of the First Information Report Ext. Ka-3. Om Prakash Chimpa and P.W. 9 S.I. Sureshveer Singh are formal witnesses and their testimony is confined to the role which they played during the course of investigation. 9. P.W. 3 Mahendra Singh and P.W. 4 Shishupal Singh are the eye witnesses. 10. P.W. 3 Mahendra Singh is the informant of the First Information Report Ext. Ka-3. He has also stated that the information of commission of the offence was orally given at police station by him and on that basis First Information Report was written at the police station concerned. He has further proved the motive of commission of the offence which resulted in murder of his brother Shiv Singh and also infliction of injuries by all the three accused to both of them as mentioned in the first information report. 11. P.W. 5 Shishupal Singh corroborated the version of the prosecution and testimony of P.W. 3. 12. After appreciating the evidence available on record, the court below has recorded conviction of the appellants / accused and sentenced them as above. 13. Appellant/ accused Girvar Singh has died during the pendency of this appeal and so far as the appeal relates to him, it has been abated by this Court vide order dated 21.08.2015. 14. Heard Sri R.K. Vaish and Sri Pradeep Kumar Shukla, learned counsel for the appellants and Sri Rajiv Sharma and Sri R.S.Yadav, learned AGA for the State. 15. Learned counsel for the appellants has contended that both the eye witnesses PW 3 Mahendra Singh and PW 4 Shishupal have stated that only one shot was fired by Ramesh from his gun and by a single fire the injuries of the deceased and the informant are not possible. The above suggestion was put to PW 1 Dr. V.K. Gupta who stated that he is not a ballistic expert and therefore he can't say whether firearm injuries on the person of the deceased as well as on the person of injured informant could be caused by a single fire. From the statements of the witnesses of fact and site plan it is crystal clear that a double barrel gun was used by Ramesh from a distance of about 15 steps. The Hon'ble Apex Court in the case of Om Pal Singh Vs. From the statements of the witnesses of fact and site plan it is crystal clear that a double barrel gun was used by Ramesh from a distance of about 15 steps. The Hon'ble Apex Court in the case of Om Pal Singh Vs. State of U.P. , AIR 2011 SC 1562 : 2010 (71) ACC 923 (SC) has held that a single shot from a double barrel gun can cause multiple injuries. In view of the above, the firearm injuries of both are probable in the facts and circumstances of the case, specific nature of weapon used and the distance from where the shot was fired. 16. It has further been contended as to why the gun used by Ramesh and belonging to Girvar Singh was not seized and sent to ballistic expert to ascertain whether any shot was fired from the above gun on 25.05.1981. No question was put to the investigation officers regarding incomplete or defective investigation as contended. The Hon'ble Apex Court in the cases of State of Karnataka Vs. Subarnamma, 2015 (1) SCC 323 and Hema Vs. State 2013 (81) ACC 1 (SC) (Three- Judge-Bench) has propounded that any irregularity or deficiency in investigation by Investigating Officer need not necessarily lead to rejection of the case of the prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution where ocular testimony is found credible and cogent. 17. Further it has been contended that PW 3 Mahendra Singh, being real brother of the deceased, is a related witness and is inimical to the appellants. Moreover, PW 5 Shishupal is also inimical to the appellants. Undoubtedly between the deceased Shiv Singh and Girvar Singh there was a litigation before consolidation authorities regarding the ownership and share in few trees, which ended in favour of the deceased long long back. So far as the animosity with the witness Shishupal is concerned, no believable evidence or material has been brought by the appellants by examining defence witness and by producing documentary evidence. The Hon'ble Apex Court in the cases of (1) Dilawar Singh Vs State of Haryana, (2015) 1 SCC 737 : 2014 (87) ACC 686 (SC), (2) Dhari & others Vs. State of U.P, AIR 2013 SC 308 and (3) Shyam Babu Vs. The Hon'ble Apex Court in the cases of (1) Dilawar Singh Vs State of Haryana, (2015) 1 SCC 737 : 2014 (87) ACC 686 (SC), (2) Dhari & others Vs. State of U.P, AIR 2013 SC 308 and (3) Shyam Babu Vs. State of U.P., AIR 2012 SC 3311 has propounded that the testimony of a witness in criminal trial cannot be discarded merely because the witness is a relative or family member of the victim. In such a case, the court has to adopt a careful approach in analyzing the evidence of such witnesses and if the testimony of the related witness is otherwise found credible, the accused can be convicted on the basis of the testimony of such related witness. Similarly enmity of witnesses with the accused is not a ground to reject their testimony and if on proper scrutiny, the testimony of such witnesses is found reliable, the accused can be convicted. However, the possibility of falsely involving some persons in the crime or exaggerating the role of some of the accused by such witnesses should be kept in mind and ascertained on the facts of each case. 18. Further, the learned counsel for the appellants has contended that as per statement of DW 1 Dr. R.K. Verma, accused Mahipal was examined by him on 28.05.1981 at 5.20 p.m. in District Jail, Budaun. The fracture of right humerus bone along with a contusion in an area 6 cm x 5 cm and other four contusions in different areas were found on his person. The right hand of Mahipal was x-rayed on 03.06.1981 at District Hospital, Buduan by Dr. V.K. Sharma. At the time of statement of Dr. Sharma in the Court the X-ray plate was not before him and on the basis of report prepared, he has stated that humerus bone was found broken. Dr. Verma opined that the injuries were about three days old. Now the question arises as to when the shot was fired by Bhanwarpal Singh (son-in-law of Girvar) who was an employee in police force then what prevented Mahipal to get him medically examined on 25.05.1981 and if his report was not written at the police station then why did he not approach the superior police officer. Now the question arises as to when the shot was fired by Bhanwarpal Singh (son-in-law of Girvar) who was an employee in police force then what prevented Mahipal to get him medically examined on 25.05.1981 and if his report was not written at the police station then why did he not approach the superior police officer. Accused Mahipal has not examined himself in defence and no suggestion has been made to the Head Moharrir, PW 2 Satyaveer Singh to the effect whether Mahipal went to the police station to lodge report on 25.05.1981. In view of the above fact, the defence version that the deceased Shiv Singh and informant Mahendra Singh assaulted Mahipal first and in defence he wielded 'lathi' and Bhanwarpal Singh fired a gun shot to save him, has no legs to stand. Apart from the above, no plausible explanation has been given by the defence for failure of Mahipal to get him medically examined before 28.05.1981 although two sons-in-law of accused Girvar were in police force on the date of occurrence. Except the injury no.1, rest of the injuries of Mahipal are superficial in nature and the Hon'ble Apex Court in the cases of Sukumar Roy Vs. State of West Bengal, AIR 2006 SC 3406 ; and Bheru Lal Vs. State of Rajasthan, 2009 (66) ACC 997 (SC) has propounded that non-explanation of minor or superficial injuries on the person of accused does not help accused where the prosecution evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. In view of above, the conduct of the defence is suspicious compared to ocular and medical evidence led by the prosecution. 19. Lastly, on behalf of the appellants, it has been vehemently argued that as per the First Information Report the witnesses Amar Singh and Shishupal Singh who are residents of the same village reached the spot on hearing the alarm whereas PW 4 Shishupal has stated the entire story from the very beginning including exhortation by Girvar Singh. This contention of the learned counsel for the appellants will be discussed while analyzing the testimony of the two witnesses of fact and statement of the deceased under Section 161 Cr.P.C. recorded on the date of occurrence at Primary Health Centre, Bilsi. 20. This contention of the learned counsel for the appellants will be discussed while analyzing the testimony of the two witnesses of fact and statement of the deceased under Section 161 Cr.P.C. recorded on the date of occurrence at Primary Health Centre, Bilsi. 20. No other argument was either pressed or raised before us. 21. It has consistently been laid down by the Hon'ble Apex Court that while exercising appellate jurisdiction the High Court is expected to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution case can be said to have been proved beyond reasonable doubt by the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubts as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. Above proposition has been propounded by the Apex Court in cases of (1) Padam Singh Vs. State of U.P. reported in 2000 (1) SCC 621 : 2000 (40) ACC 11 (Sum.), (2) Rama & others Vs. State of Rajasthan reported in 2002 (44) ACC 1048 (SC) : 2000 (4) SCC 571, (3) Majjal Vs. State of Haryana, 2013 (6) SCC 798 , and (4) Kamlesh Prabhudas Tanna and Anr Vs. State of Gujarat reported in 2014 Cr.L.J 443. 22. The occurrence took place on 25.05.1981 at 2 p.m. and the first information report was lodged on the same day at 6.45 p.m. The place of occurrence is about 12 km from the police station concerned. P.W. 2 Head Constable Satyaveer Singh has stated that on 25.05.1981 he was posted as Head Moharrir at P.S.-Bilsi and at about 6.45 p.m. on the dictation of Mahendra Singh, the first information report was written by him. He read over the first information report to the informant Mahendra Singh and obtained his thumb impression thereon. P.W. 2 Head Constable Satyaveer Singh has stated that on 25.05.1981 he was posted as Head Moharrir at P.S.-Bilsi and at about 6.45 p.m. on the dictation of Mahendra Singh, the first information report was written by him. He read over the first information report to the informant Mahendra Singh and obtained his thumb impression thereon. The first information report was promptly lodged on the same day at 6.45 p.m. It mentions the name of the accused, a gun and two 'lathies' used in commission of the offence, the date, time and place of occurrence, the motive of crime and the witnesses present at the time of incident. Thus, the first information report corroborates the version of the prosecution. The medical evidence (statement of PW 8 Dr. Om Prakash Chimpa and the autopsy report Ext. Ka-9 prepared by him) establishes the fact that the deceased died of multiple firearm injuries and his death was neither natural nor accidental. 23. The First Information Report, ocular evidence of the eye witnesses and evidence of the investigating officers, coupled with the site plan leave no room for doubt that the injuries were caused to Shiv Singh in front of his house and he succumbed to the injuries on 26.05.1981. The date, time and scene of occurrence have not been challenged by the defence. 24. After conclusion of prosecution evidence, the statements of accused-appellants have been recorded under Section 313 Cr.P.C. All the incriminating material which appeared during the course of trial was placed before them and they have been extended an opportunity to explain. The accused have mostly denied the facts placed under Section 313 Cr.P.C., disclaimed knowledge about the execution of the FIR and stated that out of enmity the witnesses have deposed against them. They have jointly filed a written defence dated 19.09.1983. Vide the above written defence the accused have denied the incident and stated that the deceased and the informant were not invited to 'Terahi' (a thirteenth day bhoj ceremony on account of death of a person) ceremony of the wife of accused Ramesh because Shiv Singh married the wife of one Brijpal who was ousted by him and Ramesh married off his maternal aunt (Mausi) to one Shukhpal, brother of Brijpal. The wife of Shiv Singh took it ill and on this score Shiv Singh and Mahipal harboured enmity. The wife of Shiv Singh took it ill and on this score Shiv Singh and Mahipal harboured enmity. On the date of incident when Mahipal, brother-in-law of co-accused Ramesh, was passing through the village, he was assaulted by Shiv Singh and the informant Mahendra Singh with 'lathies'. Mahipal wielded 'lathi' in his defence. By that time one Bhanwarpal Singh, son-in-law of accused Girvar Singh, who was employed in police force, discharged a shot from his gun and injured the deceased to save Mahipal. The Head Moharrir of the police station refused to record the FIR against Bhanwarpal Singh. Instead on the report of Mahendra Singh with the intervention of one Bhikham, who too harboured enmity with appellants and also at the instance of the Head Moharrir, Ramesh was implicated as shooter. The witness Shishupal was inimical with Girvar Singh and others, and therefore, he has deposed against them. The accused were disturbed and when they went to lodge the FIR, their report was not recorded and instead they were arrested. Accused Mahipal managed his medical examination through the doctor in jail on 28.05.1981. Accused Girvar Singh was in Government service and had installed a tube well and 'chakki' (flour mill) in his village. The deceased Shiv Singh and others were deriving undue advantage from the said installations. After retirement Girvar Singh settled in his village and took control of his property and this blighted the game of Shiv Singh, Bhikham, Mahendra and Shishupla. The accused have been falsely implicated. There had been a litigation under Section 107 Cr.P.C. between Bhikham and Girvar Singh and Girvar Singh had also lodged a report against Bhikham. That's why Girvar Singh has been falsely implicated. 25. The litigation with the deceased during consolidation in respect of trees has not been specifically denied by the appellants/ accused and to support the above facts set up in the written defence, no evidence has been adduced. In view of the above, entire defence is only a wishful thinking devoid of any concrete substratum. 26. PW 6, S.I. Bhagwan Das had recorded the statement of deceased Shiv Singh under Section 161 Cr.P.C. on the date of occurrence at P.H.C., Bilsi and has proved it as Ext. Ka-7. A perusal of the above statement reveals that the deceased Shiv Singh had corroborated the prosecution case as set up in the First Information Report. 26. PW 6, S.I. Bhagwan Das had recorded the statement of deceased Shiv Singh under Section 161 Cr.P.C. on the date of occurrence at P.H.C., Bilsi and has proved it as Ext. Ka-7. A perusal of the above statement reveals that the deceased Shiv Singh had corroborated the prosecution case as set up in the First Information Report. He succumbed to the injuries on 26.05.1981. His statement recorded by the investigating officer is admissible in evidence as dying declaration in view of the law laid down by this Court in the case of Gulab Singh Vs. State of U.P., 2003 (47) ACC 161 Ald (DB). In the above case, it has been held that if the victim dies after recording of his statement under Section 161 Cr.P.C. and the statement is supported by ocular and medical evidence, then on proof by the investigating officer, the statement of the victim is worthy of reliance. 27. PW 6 Bhagwan Das in his evidence, has proved the above statement of the deceased and stated that it was recorded by him on dictation of Shiv Singh on 25.05.1981 and reproduced in the case diary. 28. Besides above, PW 3 Mahendra Singh (injured and informant of the first information report Ext. Ka-3) has stated that on 25.05.1981 at about 2 p.m. when he along with Shiv Singh were picking bacilli from a hoof of their ox in front of their house, the accused Girvar and Mahipal equipped with 'lathies' and Ramesh with gun came there from eastern side and on exhortation of Girvar Singh, accused Ramesh fired a gun shot which hit the deceased Shiv Singh and Mahendra Singh causing firearm injuries, and thereafter, the accused Girvar Singh and Mahipal also assaulted the deceased Shiv Singh and him with 'lathies' and caused injuries. On an alarm raised by him, the witnesses Amar Singh and Shishupal Singh reached the spot. PW 4 Shishupal Singh has also stated that on hearing noise he rushed towards the house of Shiv Singh and found Girvar Singh and Mahipal equipped with 'lathies' and Ramesh with a gun. On exhortation of Girvar, Ramesh fired a gun shot which caused injuries to Shiv Singh and Mahendra Singh. At the time of alarm PW 4 Shishupal Singh had moved towards his house from the 'chakki' of Girvar Singh which is about 60 steps towards south from the place of occurrence. On exhortation of Girvar, Ramesh fired a gun shot which caused injuries to Shiv Singh and Mahendra Singh. At the time of alarm PW 4 Shishupal Singh had moved towards his house from the 'chakki' of Girvar Singh which is about 60 steps towards south from the place of occurrence. Although, the investigating officer has not shown the 'chakki' in the site plan, but the movement of PW 4 Shishupal and the topography of the place of occurrence reveal that he had an occasion to see the incident from the place where he was at that time and for the above reason, the last contention advanced by the defence counsel in this regard has no legs to stand. After a searching cross-examination, the defence was not successful in extracting any material to discredit the testimony of the two witnesses. 29. To appreciate the testimony of an eye-witness, it has to be kept in mind whether the witness is credible and his presence on the spot is probable and he has seen the incident. In this background, the witnesses examined by the prosecution are consistent in their version despite searching cross examination and there is no material contradiction or inconsistency which may militate against their credibility or trustworthiness. Further, the evidence of the eye witnesses is strengthened by the medical evidence on record as the cause of death is due to ante-mortem injuries as stated by PW 8 Dr. Om Prakash Chimpa. The prosecution has proved its case beyond reasonable doubt and the verdict of conviction is legally and factually justified by the evidence on record. 30. The conscience of the Court is convinced of the commission of the crime by the culprits before us, the judgment of the trial court is perfectly correct, the appeal is sans merit and deserves to be dismissed and is hereby dismissed. The conviction and sentence awarded by the trial court against the appellantsccused Ramesh and Mahipal is confirmed. 31. The appellants/ accused Ramesh and Mahipal shall surrender before the trial Court immediately to serve out the sentence awarded by the trial Court. 32. A copy of the Judgment and the entire record be transmitted back to the learned trial court for compliance.