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2018 DIGILAW 298 (ALL)

RAM SINGH v. STATE OF U. P.

2018-02-05

BALA KRISHNA NARAYAN, MAHBOOB ALI

body2018
JUDGMENT : (Delivered by Hon'ble Mahboob Ali, J) Heard Sri Ashok Nath Tripathi learned counsel for the appellant and Sri A.N. Mulla, Sri Saghir Ahmad, Sri J.K. Upadhaya and Sri Rajeev Sharma learned A.G.As for the State. 2. This appeal is directed against the judgment and order dated 28.05.1983 passed by Additional Sessions Judge, Non-Metropolitan Area, Kanpur in Sessions Trial no. 297 of 1982 arising out of case crime no. 263 of 1982 under Section 302 IPC by which the appellant has been convicted and sentenced to imprisonment for life under Section 301 and 302 IPC and rigorous imprisonment for five years under Section 307 IPC. 3. Briefly stated the facts of this case are ;- First information report of the incident was lodged by PW-1 Radhey Lal son of the deceased Dulli, at Police Station Bhognipur, District Kanpur. The prosecution story as has been unfolded in the first information report (Ext. Ka-1) is to the effect that in the evening of 19.08.1982, the informant Radhey Lal and his brother Desh Raj were sitting in the court yard in front of the gate and nearby his mother Dulli was sitting on the palang and at the same place his neighbourers Lala Ram and Man Singh were sitting on another cot and the lantern was hanging under the thatched roof, at about 8.00 p.m., appellant Ram Singh holding a tamancha in his right hand came along with co-accused Lala Ram who instigated appellant Ram Singh to kill the informant and his family, on exhortation of Lala Ram appellant Ram Singh shot a fire from his tamancha which hit his mother Dulli in her left breast and she died on spot. The incident was witnessed in the light of the lantern by the informant, his brother Desh Raj, his neighbourers Lala Ram and Man Singh. The appellant and co-accused Lala Ram ran off towards the north side. On hearing the sound of fire, other persons from the neighbourhood also came on the spot and they also saw appellant and co-accused Lala Ram running away. The appellant and co-accused Lala Ram ran off towards the north side. On hearing the sound of fire, other persons from the neighbourhood also came on the spot and they also saw appellant and co-accused Lala Ram running away. The informant has also stated in his written report that about one and a half month before this incident, a scuffle took place between his son Bhan Singh and appellant Ram Singh regarding which a case was registered at Police Station and because of this, appellant Ram Singh and his party-man co-accused Lala Ram came to their house and on exhortation of Lala Ram, appellant Ram Singh shot a fire which killed his mother. On the basis of written report (Ext. Ka-2) an F.I.R. was lodged on 20.08.1982 at 12.30 a.m., in the night at Police Station Bhognipur and on the basis of this chik report the case was registered at Crime No. 263 of 1982 of which relevant entries were made in GD No. 30 (Ext. Ka-3). 4. The investigation of the case was taken over by SSI B.D.Verma, who after inspecting the place of occurrence, prepared the site plan (Ext. Ka-11). He also prepared inquest report (Ext. Ka- 4) and other papers, such as photo lash (Ex. Ka-5), challan lash (Ex. Ka-6), namuna seal, letter to CMO and letter to R.I. Ex. Ka-7, Ex. Ka-8 and Ex. Ka-9 respectively. During inquest one tickli was found on the wound of deceased and 12 pellets were recovered from the palang of which fard Ext. Ka.-10 was prepared. The Investigating Officer also took blood-stained and simple earth from the spot in separate boxes and also blood-stained strips of the palang of which fard Ext. Ka-12 was prepared. Tickli, pellets, blood stained and simple earth, blood stained strips of palang, blood- stained dhoti, thread and pieces of bangle recovered from the spot, were sent to the Forensic Science Laboratory for examination which reports are placed on record as Ext. Ka-19 and Ka-20. The lantern in the light of which the accused were identified, was produced by the complainant of which fard was prepared. The dead body was sent for post-mortem. Dr. P.S.Mishra (PW-6) conducted post-mortem on 21.08.1982 at 12.30 p.m., in Ursala Hospital, Kanpur, Post-Mortem report is Ext. Ka-18. The investigation culminated into filing of police report in the form of charge sheet (Ext. Ka-17) 5. The dead body was sent for post-mortem. Dr. P.S.Mishra (PW-6) conducted post-mortem on 21.08.1982 at 12.30 p.m., in Ursala Hospital, Kanpur, Post-Mortem report is Ext. Ka-18. The investigation culminated into filing of police report in the form of charge sheet (Ext. Ka-17) 5. After filing of the charge sheet, necessary statutory compliance was ensured by the Court of first instance and since the offence against the accused was exclusively triable by the court of Sessions, the case was committed to the court of Sessions. 6. The learned Trial Court after hearing the parties and perusing the evidence, framed charge against the accused/appellant Ram Singh for the offence under Section 301 read with Section 302 IPC and Section 307 read with Section 34 IPC who abjured the charges and claimed trial. The appellant has stated that he has been falsely implicated on the ground of animosity and claimed himself to be innocent. 7. Prosecution, in order to prove its case, examined as many as six witnesses of whom complainant Radhey Lal PW-1, Man Singh PW-2 and Lala Ram PW-3 are the witnesses of fact and B.D. Verma PW-4, the Investigating Officer, Raghu Raj PW-5, a witness of the inquest and pradhan of the village and Dr. P.S. Mishra PW-6 who conducted autopsy, have been examined as formal witnesses. 8. All the incriminating material was placed before the appellant under Section 313 Cr.P.C. so as to afford him an opportunity for rendering appropriate explanation. He admitted that in the election of village Pradhan, Raghuraj Singh Srivastava who defeated Smt. Ramwati was openly supported by Deshraj son of the deceased and his brother Radhey Lal came for seeking vote for his brother Sunder Lal who later withdrew from the election in favour of Raghu Raj Singh Srivastava but he denied enmity with the first informant Radhey Lal on the ground that Radhey Lal supported Raghuraj Singh Srivastava in the election. The appellant also admitted that criminal cases are pending regarding the scuffle having taken place about a month and half before the present incident between the sons of Radhey Lal and appellant Ram Singh and his brothers. He discarded the questions regarding presence of witnesses on the spot, hanging of lantern under the thatch and his complicity in the crime, as being wrong. He discredited the FIR as fictitious. He discarded the questions regarding presence of witnesses on the spot, hanging of lantern under the thatch and his complicity in the crime, as being wrong. He discredited the FIR as fictitious. He disclaimed knowledge regarding the investigation of the case and other activities being undertaken during the course of investigation. He stated that the evidence of witnesses and his implication in the case is due to animosity. No oral evidence has been adduced in defence, the appellant filed extracts of statements of witness Lala Ram and Radhey Lal given to the Investigating Officer under Section 161 Cr.P.C. as Ext Kha-1 and Kha-2 respectively, copy of the judgment Ext. Kha-3 in which witness Man Singh was convicted under Section 354 IPC regarding which PW-2 Man Singh has denied this fact in his cross-examination that in that case accused Lala Ram had done pairvi against him. 9. Learned Trial Court, after considering the contentions of the parties and scrutinizing the entire evidence on record, convicted the appellant under Section 301 read with section 302 IPC, and section 307 IPC and awarded him the aforesaid sentences. 10. Hence, this appeal. 11. Sri Ashok Nath Tripathi learned counsel for the appellant has contended that ; (i) Appellant has been falsely implicated in this case due to animosity pertaining to the election of village Pradhan and also because of the fact that Ban Singh, son of the first informant Radhey Lal, had scuffle with appellant Ram Singh regarding which police report was lodged against appellant Ram Singh. (ii) The presence of witnesses Man Singh and Lala Ram is doubtful because it was rainy season and the alleged time of occurrence is 8.00 in the night. (iii) Testimony of PW-1 Radhey Lal and PW-3 Lala Ram is not reliable because there are contradictions in their statements under Section 161 Cr.P.C. and their deposition in the Court inasmuch as under Section 161 Cr.P.C. they have stated that when appellant Ram Singh fired at Radhey Lal the latter leapt on the ground whereas in their examination in the Court they have deposed that Radhey Lal in order to save himself took cover of the cot and did not lay prostrate under the cot. (iv) The Investigating Officer has stated that according to the statement of PW-3 Lala Ram shot was fired from 8 to 10 paces from the heap of bricks, thus looking this distance, tickli could not be found on the wound of the deceased but according to the inquest report tickli was found on the wound of the deceased. (v) In the house of Desh Raj, Binda etc. were sitting with the deceased on the palang and while they were seeing a country made pistol, it went off accidentally by Binda and killed the deceased. 12. Countering the said submissions Sri A.N. Mulla, Sri Saghir Ahmad, Sri J.K. Upadhaya and Sri Rajeev Sharma learned A.G.As, on the other hand, contended that enmity is a weapon which can be used either way and undisputedly the appellant has animosity with the first informant and his family which impelled him to commit the crime and there is direct evidence to prove the incident and there is no contradiction in the testimony of witnesses of fact. Learned A.G.As have also proceeded to contend that there is no cross-examination on the point of date, time and place of the occurrence and the appellant has rather admitted that deceased was killed by gun-shot injury when a suggestion was given on behalf of the appellant to PW-1 Radhey Lal that a country made pistol was being seen in the house of Desh Raj by Desh Raj, Binda and others which went off accidentally and killed Dully. It has also been contended by learned A.G.As that eye-witness account has been consistent to state that the heap of bricks was at about a distance of 5-6 paces and the shot was fired advancing from that heap. 13. It has also been contended by learned A.G.As that eye-witness account has been consistent to state that the heap of bricks was at about a distance of 5-6 paces and the shot was fired advancing from that heap. 13. How the appellate jurisdiction is to be exercised by the High Court while adjudicating criminal appeals, it has, time and again, been highlighted by the Hon'ble Apex Court in catena of cases ;- In Padam Singh Vs State of U.P. 2000 (1) SCC 621 , the principle laid down by the Apex Court is extracted below: It is the duty of an appellate Court 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 can be said to have been proved beyond reasonable doubt on 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. The relevant para containing the guidelines issued by the Apex Court in Rama & others vs State of Rajasthan, 2002 (4) SCC 571 , is quoted as under : "It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under law." In the case of Majjal Vs. Upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under law." In the case of Majjal Vs. State of Haryana, 2013 (6) SCC 798 , three Judges Bench of Hon'ble Supreme Court, making certain observations, issued following guidelines : "It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter." The aforesaid observations and the principles laid down in the above cases have been reiterated by the Apex Court in Kamlesh Prabhudas Tanna and Another Vs. State of Gujarat, 2014 Cr.L.J 443. 14. From the case-laws cited above, the legal positions so crystallizes that the High Court is expected to critically appraise the evidence available on record on the basis of which the finding of conviction has been recorded by the Trial Court. At the same time, the High Court is not expected to be influenced by the findings of conviction recorded by the learned Court below, bearing in mind the basic principle of criminal jurisprudence that the accused is innocent unless otherwise established in accordance with law and this presumption of innocence continues until the accused is held guilty by the final court of appeal. 15. Having perused the record and after scrutinizing the evidence carefully, it is clear that this case is based on direct evidence which is in the form of eye-witness account of PW-1 Radhey Lal, the first informant who is the son of the deceased Dulli, PW-2 Man Singh and PW-3 Lala Ram (neighbourers of the deceased) who were present at the place of occurrence at the relevant time. 16. 16. Much emphasis has been laid on the fact that the applicant has been implicated in this case due to animosity. Enmity is a double edged weapon which can be used either way and it has clearly come in the evidence that appellant and his family members had been nourishing grudge against the first informant Radhey Lal and his family members because of village parti-bandi which came on surface in the Pradhani election of the village in which Sri Raghu Raj Srivastava who was supported by Radhey Lal and his family defeated Smt. Ramvati who was being supported by the appellant and his family and such ire swelled on account of a scuffle (incident of maarpeet) which took place between the son of the first informant Radhey Lal and appellant Ram Singh about one and a half month before this incident for which police reports were filed and criminal cases are admittedly pending against both the parties. Thus, there has been a case of ire on account of village parti-bandi and pardhani election which was further aggravated by an undisputed incident of marpeet between the parties only a month and half before the present incident due to which such ire swelled in the mind of the appellant and rendered a sufficient motive to impel him to commit such a crime which has been substantiated by direct evidence adduced by the prosecution. 17. The testimony of PW-2 Man Singh and PW-3 Lala Ram has been sought to be criticized on the premises that their presence is doubtful at the place of occurrence because it was a rainy season and the time of incident is 8.00 in the night. PW-1 Radhey Lal has stated that there was only drizzling and no rains at the time of incident and witnesses Man Singh and Lala Ram were sitting with him since 10-15 minutes before the incident. PW-2 Man Singh and PW-3 Lala Ram has also stated that when the incident took place it was about 8.00 p.m. in the month of bhado. PW-3 Lala Ram has also proceeded to state that there was no rains at that time nor there was any clouds in the sky and about an hour before it drizzled. PW-2 Man Singh and PW-3 Lala Ram has also stated that when the incident took place it was about 8.00 p.m. in the month of bhado. PW-3 Lala Ram has also proceeded to state that there was no rains at that time nor there was any clouds in the sky and about an hour before it drizzled. The defence has no where stated that at the time of incident there were rains so as to confine the people in their houses, only a suggestion was given to PW-3 Lala Ram that the day of incident was a day of heavy rains which suggestion has been refuted by the witness and except this bald suggestion nothing has come from the side of the appellant to show that there were heavy rains at the time of incident. Normally, in the villages, this is about the time when village- people sit together and chat discussing many things such as their crops, their fields and some party-politics as well. As the witnesses are the neighbourers of the first informant Radhey Lal, and the time had not advanced so much in the night, thus, it was quite natural and probable for them to sit in the neighbourhood and chat after finishing their work and meals and their presence at the place of occurrence cannot be doubted. 18. The testimony of PW-1 Radhey Lal and PW-3 Lala Ram has also sought to be impeached on the premises that in their statement given to the Investigating Officer under Section 161 Cr.P.C. they have stated that on exhortation of Lala Ram, when Ram Singh fired at Radhey Lal he leapt under the cot whereas in the court both the witnesses have deposed that when the fire was released, Radhey Lal kneeled down and did not lay down under the cot. This is not a contradiction at all because when a shot is fired everyone tries to save his life and it hardly matters whether Radhey Lal kneeled down or laid down to save himself, besides this, PW-1 has clearly stated that when the appellant released fire he kneeled down, PW-3 has also stated that when Radhey Lal was shot at, he kneeled down, this witness has proceeded to further clarify that he never gave this statement to the Investigating Officer that Radhey Lal laid down under the cot. Moreover, such contradiction can't render the testimony of witnesses as unreliable. 19. Learned counsel for the appellant has also pointed out that as per the inquest report tickli was found on the wound of the deceased which is not possible looking at the distance where the fire was shot from, i.e., 8-10 paces as stated by PW-3 Lala Ram in his statement under Section 161 Cr.P.C. 20. PW-3 Lala Ram has clearly testified in his cross-examination that accused were standing near the heap of bricks at a distance of 5 to 6 paces and when the Investigating Officer inspected the spot he had pointed out to him the place from where the fire was released, this witness has further proceeded to state clearly that he has no reason to say as to why the Investigating Officer has mentioned that the shot was fired from 8 to 10 paces. It is pertinent to mention here that PW-1 Radhey Lal has also stated that he had shown to the Investigating Officer the place from where the shot was fired and the fire was released advancing 1 or 2 steps from the heap of bricks. He emphatically denied the fire being made by the appellant from 8 to 10 paces. PW-2 Man Singh has also stated that heap of bricks was about 5 to 6 paces from the sahan and he had told to the Investigating Officer that on the exhortation of Lala Ram, shot was fired by appellant Ram Singh advancing 2-3 paces from the heap, he also clearly and rather emphatically stated that he had pointed out to the Investigating Officer the place where the fire was released from. 21. Thus, it is clear that all the three witnesses have been consistent to state clearly that they had never told the Investigating Officer that shot was fired from 8 to 10 paces from the heap of bricks. The defence has failed to point out any inconsistency in the statements of witnesses in this regard, nor has there been any cross-examination on this point from the Investigating Officer who prepared the inquest report or the Doctor (PW-6). 22. The defence has failed to point out any inconsistency in the statements of witnesses in this regard, nor has there been any cross-examination on this point from the Investigating Officer who prepared the inquest report or the Doctor (PW-6). 22. So far as the submission advanced on behalf of the appellant to the effect that in the house of Desh Raj, Binda and others while sitting with the deceased in the palang, were seeing the country made pistol which went off accidentally and hit the deceased, is concerned, the defence has not set up this case any where not even in the examination of the appellant under Section 313 Cr.P.C. and only a suggestion to this effect was given to PW-1 Radhey Lal which has been clearly controverted by the witness as being wrong and no evidence has been adduced by the appellant to prove this factum, thus, by merely putting a bald suggestion to a witness, which has been emphatically discarded as being wrong, cannot fetch any benefit to the defence side. 23. Eye-witness-account in the form of statements of PW-1, PW-2 and PW-3, as mentioned below, would go to show how the prosecution case stands proved by this cogent evidence ; 24. PW-1 Radhey Lal who is also the first informant of this case, supporting the version of FIR stated that they were in the sahan of the house, his mother was sitting on the newad palang, he and his brother Desh Raj were sitting on the ground towards the south and witnesses Lala Ram and Man Singh were sitting there in another cot, a lantern was litting under the thatch, that at about 8.00 p.m. the appellant and co-accused Lala Ram came there and on the exhortation of Lala Ram, accused/appellant Ram Singh fired at him with his pistol but the target was missed and the fire hit his mother who died on the spot and the accused ran off towards the north side. 25. PW-2 Man Singh, corroborating the version of PW-1 Radhey Lal has stated that he knows appellant Ram Singh and co-accused Lala Ram who are his villagers, he also knows Radhey Lal (the first informant) who also lives in the same village with his parents and brothers. 25. PW-2 Man Singh, corroborating the version of PW-1 Radhey Lal has stated that he knows appellant Ram Singh and co-accused Lala Ram who are his villagers, he also knows Radhey Lal (the first informant) who also lives in the same village with his parents and brothers. He has further proceeded to state that the incident took place at about 8.00 p.m. around six months before his examination in the Court on 16.03.1983, when Dulli mother of Radhey Lal was sitting on a palang in the court yard, Desh Raj and Radhey Lal were sitting on the ground near the palang, he and another witness Lala Ram were also sitting nearby in another cot, that accused persons came from north side and on the exhortation of Lala Ram from the heap of bricks, appellant advancing 2-3 steps, shot fire from his tamancha, which fire missed the target (Radhey Lal) and instead hit his mother who died on the spot and the accused persons ran off towards the north. 26. PW-3 Lala Ram also supporting the prosecution version and corroborating the statements of PW-1 Radhey Lal and PW-2 Man Singh, has proceeded to state that the incident took place at about 8.00 in the evening in the month of bhado, about five and a half to six months before his deposition in the court on 17.03.1983, in the sahan of Radhey Lal where he and another witness Man Singh were sitting in a cot, Dulli (mother of Radhey Lal) was sitting on palang, Desh Raj and Radhey Lal were sitting nearby on the ground, at that time accused Ram Singh and Lala Ram came from the north side and on the exhortation of Lala Ram from the heap of bricks appellant Ram Singh advancing forward, released fire from his tamancha which fire instead of hitting Radhey Lal, hit his mother who died on the spot and accused persons ran away towards the north side. 27. 27. Having scrutinized the statements of witnesses of fact, it becomes clear that they have all through been consistent in their deposition to the effect that they were sitting with the deceased Dulli, at the place of occurrence and at about 8.00 p.m. the appellant and co-accused Lala Ram came there and on exhortation of Lala Ram appellant Ram Singh shot fire from his tamancha aiming at Radhey Lal which fire missed the target and instead hit Dulli, the mother of Radhey Lal who sustained injuries and died on the spot. There is no material contradiction in the statement of these witnesses nor any such inconsistency or discrepancy, whatsoever, has been pointed out or established by the defence. It is also pertinent to note that the suggestion of defence given to PW-1 Radhey Lal that some country made pistol was being seen in the house of Desh Raj which went off accidentally and killed the deceased Dulli, goes to show that the appellant has admitted that Dulli died of the fire-arm injury at the time, date and place of occurrence which factum has been proved and clearly established by the cogent and direct evidence adduced by the prosecution in the form of testimony of PW-1 Radhey Lal, PW-2 Man Singh and PW-3 Lala Ram. Dr. P.S. Mishra (PW-6) who has conducted the postmortem of the dead body of the deceased, has stated that anti- mortem injuries were fire-arm injuries and the cause of death was shock and haemorrhage due to gun-shot injuries and this witness has further proceeded to state that the death is possible to have been caused at 8.00 p.m. on 19.08.2012, which is the date and time of the occurrence. Thus, oral testimony is also corroborated by the medical evidence. 28. Once such is the factual situation that testimony of PW-1, PW-2 and PW-3 has been consistent and graphic picture has been given by them that nails the accused/appellant and the said eye-witnesses account is duly corroborated by the medical evidence, then appeal is rendered devoid of any force. 29. Consequently, this criminal appeal is dismissed. Conviction recorded by the Trial Court is affirmed.