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2019 DIGILAW 1928 (ALL)

Shiv Singh v. State of U. P.

2019-08-08

GOVIND MATHUR, VIVEK VARMA

body2019
ORDER : 1. To examine correctness of the judgment dated 19.09.1983 passed by learned IVth Additional Sessions Judge, Etawah in Sessions Trial No. 186 of 1982, instant appeal is preferred. 2. By the judgment impugned, learned trial Court recorded conviction of the accused- appellants for an offence punishable under Section 302/34 Indian Penal Code and awarded sentence to undergo life term imprisonment. Conviction of the accused-appellants for an offence punishable under Section 452 Indian Penal Code has also been recorded and for that, the accused-appellants have been convicted to undergo imprisonment for a term of four years. 3. In brief, factual matrix of the case is that on 21.02.1982, a first information report was registered at Police Station Chakar Nagar, District Etawah at the instance of one Sri Bachchu Singh S/o Puran Singh Thakur. The contents of the first information report are as follows:- "It is humbly submitted the theft had taken place at the places of Judawan Singh and Jageshwar on 11.10.81 in the village of the complainant in which Shiv Singh S/o Lal Singh and Balveer S/o Shiv Singh and Shivnath Nai of the village itself were identified at the time of the theft. They had been challaned in this case and after getting bail they had been living outside at their respective relatives' places. Shiv Singh, Balveer Singh and Shivnath Nai have threatened several times that - we would see you people if you do not compromise in the case. However, we had rejected to compromise. In the evening at about 6.00 pm on 20.02.82 due to this animosity (Sic.) Shiv Singh and Balveer Singh armed with guns and Shivnath Nai accompanied with another man armed with country made pistol came at the house of Parwat Singh and began to assault Parwat Singh. Parwat Singh managed to run away, thereafter, came to the house of Jageshwar and as my brother was sitting at the door, he was challenged. My brother rushed into the house and the accused persons by saying, Aaj sale ko jaan se maar denge. (Today the bastard shall be done to death.), intruded inside. In the meantime the sounds of two bullet shots came from the house and my brother screamed - Mujhe Maar dala. (I have been killed). My brother rushed into the house and the accused persons by saying, Aaj sale ko jaan se maar denge. (Today the bastard shall be done to death.), intruded inside. In the meantime the sounds of two bullet shots came from the house and my brother screamed - Mujhe Maar dala. (I have been killed). On hearing the noise I myself and Judawan Singh s/o Arjun Singh, Badan Singh s/o Judawan Singh, Baijnath s/o Mohan Singh, (sic) s/o Hameer Singh, Parwat Singh s/o Chhattar Singh of my village and my Bhabhi Devkali w/o Jageshwar Singh and Maharani w/o Bachchu Singh and other people of the village reached on the spot while the accused persons namely Shiv Singh s/o Lal Singh and Balveer Singh s/o Shiv Singh and Shivnath Nai and another person of unknown name and address (proof of identity?) emerging out of the house, fled towards the west along the river bank through the Beehad. Though a chase was given but for the fear of gun we returned and going to my brother's house we found that my brother was lying dead in the Kothari (Room). (I) could not come in the night due to fear. I have come to the Police station in the morning. Kindly lodge the report and take proper action. Scribe Ram Singh Kushwah, Chakar Nagar, Etawah. Dated 21.02.82." 4. On basis of the contents aforesaid, the police commenced investigation for the offence punishable under Section 302 Indian Penal Code. During the course of investigation, an inquest report was prepared, the corpus of the deceased Jageshwar Singh was subjected to autopsy, the statement of relevant witnesses were recorded as per provisions of Section 161 Code of Criminal Procedure and other relevant papers were prepared. After completing the investigation, a police report as per provisions of Section 173 Code of Criminal Procedure was filed before the Court competent. The matter being triable by the Court of Sessions was committed to the Sessions Court. After hearing the accused, charges were framed by the Court relating to commission of offence under Sections 452 and 302/34 Indian Penal Code. On denial of the same, the trial commenced as desired. 5. During the course of trial, the prosecution supported its case with the aid of evidence adduced by 6 witnesses and by exhibiting several documents. After hearing the accused, charges were framed by the Court relating to commission of offence under Sections 452 and 302/34 Indian Penal Code. On denial of the same, the trial commenced as desired. 5. During the course of trial, the prosecution supported its case with the aid of evidence adduced by 6 witnesses and by exhibiting several documents. Out of the 6 witnesses, 2 witnesses, namely, Bachchu Singh (PW-1) and Smt. Maharani Devi (PW-2) were cited as eye-witness. The testimony of Lal Mani Gautam (PW-3) was also examined being the Investigating Officer. This witness narrated the details relating to the steps taken during the course of the investigation. Suffice to state that though the post mortem report dated 22.02.1982 was exhibited as Exhibit Ka-3 but the doctor who conducted autopsy was not called in witness box. 6. After completing the prosecution evidence, opportunity was given to the accused- appellants as per provisions of Section 313 Code of Criminal Procedure to explain adverse and incriminating circumstances appearing in the prosecution evidence against them. The accused while refuting correctness of the prosecution evidence state that they had normal relations with the deceased and, as a matter of fact, sureties were also extended by the deceased in favour of one of the accused-appellant in some other case. No evidence in defence was adduced on behalf of the accused-appellants. Learned trial Court after hearing learned counsel appearing on behalf of the accused and learned Public Prosecutor held the accused-appellants guilty for the offence punishable under Section 452 Indian Penal Code and for the offence under Section 302/34 Indian Penal Code. 7. In appeal, the argument advanced by learned counsel appearing on behalf of the appellants is that the instant one is a case of no evidence, but the trial Court failed to appreciate this aspect of the matter. It is further stated that neither Bachchu Singh nor Smt. Maharani Devi witnessed the incident and, therefore, they are not at all eye-witness. Whatever stated by them, even if accepted in entirety, no case is made out for recording conviction under Section 302/34 Indian Penal Code. It is further stated that neither Bachchu Singh nor Smt. Maharani Devi witnessed the incident and, therefore, they are not at all eye-witness. Whatever stated by them, even if accepted in entirety, no case is made out for recording conviction under Section 302/34 Indian Penal Code. It is asserted that if the two eye-witness abovenamed were not the eyewitness, then the entire case is of circumstantial evidence and the circumstances available on record are not at all sufficient to form a complete chain of facts to arrive only at one conclusion about commission of murder of Late Jageshwar by the accused persons. 8. Per contra, learned AGA states that narration of definite facts by the eye-witnesses is sufficient to arrive at the conclusion about commission of the crime by the accused- appellants only. It is asserted that Bachchu Singh (PW-1) as well as Smt. Maharani Devi (PW-2), in quite specific terms, stated that the accused persons came to the residence of Jageshwar and killed him with the aid of fire-arms. 9. Heard learned counsels and examined the entire record. 10. At the threshold, we would like to mark our displeasure with the manner and fashion in which the entire investigation has conducted. The prosecution in the instant matter did not chose to produce the doctor who conducted the autopsy on the corpus of the deceased Jageshwar in evidence. No effort at all was made by the Investigating Agency to recover the arms which were said to be used for commission of crime. Not only this, the report of inquest is having over-writings and scoring of words which are of serious nature. 11. A perusal of the inquest report discloses that at the first instance, the time of lodging first information report was shown as 12:00 hours and that was by overwriting changed as 08:00 hours. Overwriting is also made while referring distance of the place of occurrence from the police station. The explanation given by the Investigating Officer (PW-3) is also not at all satisfactory. 12. As already stated, the case of the appellants is that neither Bachchu Singh (PW-1) nor Smt. Maharani Devi (PW-2) witnessed the incidence and, therefore, they are not eye-witness. If they are not eyewitness of the incident, then the prosecution case is required to be examined on basis of other circumstantial evidence available on record, which as per learned counsel is not at all available. If they are not eyewitness of the incident, then the prosecution case is required to be examined on basis of other circumstantial evidence available on record, which as per learned counsel is not at all available. 13. Sri Bachchu Singh (PW-1) happens to be brother of deceased Jageshwar. As per this witness in a case relating to theft, Shiv Singh, Balveer and Shivlal Nai were facing trial. On their release on bail, they were making efforts to enter into an agreement with Jageshwar who was victim in the case of the theft. On being failed to arrive at compromise, accused persons committed murder of Jageshwar. For ready reference, it would be appropriate to quote the statement made by PW-1 Bachchu Singh which is as follows:- "22 months ago, theft was committed at Jageshwar and Judawan Singh. The three persons, Shiv Singh, Balveer and Shivlal Nai, were the accused. These three were challaned. On coming after bail, these three accused persons stated "Lets decide the matter of theft" Judawan and Jageshwar did not agree to compromise. Balveer, Shiv Singh and Shivnath threatened that if they do not get ready to compromise, they will not spare them. Jageshwar was my real brother. He was murdered around 16 months ago. It was 5:30 or 6 pm. Shiv Singh, Balveer and Shivnath Nai and another person, total four persons came there. Accused Shiv Singh and Balveer were armed with guns, Shivnath was armed with katta and the forth one was also armed with katta. First of all, these four persons came at Parvat's house. They started beating Parvat. Parvat fled away on getting chance. Jageshwar was sitting at entrance of his house. Then, those four persons came at Jageshwar's house. Jageshwar went inside some other room of his house because these three accused persons and their one companion were exhorting "Today we will kill the bastard." Jageshwar asked for help "Please save me, else these persons will kill me." We heard the sound of firing. I heard sound of two fires. After the sound of firing and noise, we heard hail of the accused. The accused persons ran towards Jamuna river in west. Having heard the noise, I, Devkali, Maharani Devi, Parvat Singh, Judawan Singh, Nandan Singh, Baijnath Singh, Vijay Singh and others came there. We had seen these accused persons and their companion coming out of Jageshwar's house. After the sound of firing and noise, we heard hail of the accused. The accused persons ran towards Jamuna river in west. Having heard the noise, I, Devkali, Maharani Devi, Parvat Singh, Judawan Singh, Nandan Singh, Baijnath Singh, Vijay Singh and others came there. We had seen these accused persons and their companion coming out of Jageshwar's house. We chased the accused persons a little but we did not chase further due to fear. We saw inside the house that Jageshwar was lying dead in the room." 14. It is clear from perusal of the statement quoted above that the incidence of killing Jageshwar was not seen by this witness. As per the statement of this witness (PW-1), he heard sound of firing, some other noise and then movement of accused persons towards river Jamuna. This narration of facts is not sufficient to arrive at the conclusion that Jageshwar was killed in presence of this witness. These facts stated at the most may be sufficient to establish criminal trespassing to cause hurt. 15. The other eye-witness Smt. Maharani Devi (PW-2) also stated that killing did not took place in front of her eyes but in a room. As a matter of fact, the statement given by this witness is in the same tune as of the witness Bachchu Singh (PW-1). 16. It is also pertinent to notice that this witness on being confronted with her statement recorded during the course of investigation stated that she was knowing the accused persons and also disclosed their names to the Investigating Officer, but the same were not mentioned in her statement. This aspect of the matter is having significance for the reasons that as per prosecution story the accused-appellants were well-known to the deceased and also to her other family members including both the witnesses, namely, Bachchu Singh and Maharani Devi. The nondisclosure of the names by PW-2 Maharani Devi creates a little doubt about truthfulness of her statement. 17. Be that as it may, there is no doubt that neither Bachchu Singh nor Smt. Maharani Devi are eye-witness of the incident of killing of Jageshwar. No other evidence is available on record to corroborate the version of facts stated by Bachchu Singh (PW-1) and Smt. Maharani Devi (PW-2). 17. Be that as it may, there is no doubt that neither Bachchu Singh nor Smt. Maharani Devi are eye-witness of the incident of killing of Jageshwar. No other evidence is available on record to corroborate the version of facts stated by Bachchu Singh (PW-1) and Smt. Maharani Devi (PW-2). At this stage, it can also be said that these persons witnessed the fact that in a room deceased Jageshwar along with the accused persons were present and after their movement Jageshwar found killed, as such, onus was upon the accused to disclose their special knowledge as to what happened in the room. But, no effort in this regard was at all made by the prosecution during the course of trial. No material is available on record to establish availability of these persons only in the room. On the contrary, the prosecution cited PW-1 and PW-2 as eyewitness. In such circumstances, there was no question to disclose the special knowledge. 18. At the cost of repetition, we would like to state that no weapon was recovered by the prosecution during the course of investigation. The inquest too is having serious scores and cuttings. The time of lodging first information report appears to be prepulled and further even the doctor who conducted the autopsy was not called in the witness box. 19. In entity, there is no chain of circumstances to establish commission of the crime that is of murder of Jageshwar by the accused persons beyond a reasonable doubt. 20. In view of that, we are of considered opinion that the trial Court erred while convicting the accused-appellants for the offence punishable under Section 302/34 Indian Penal Code. The evidence adduced by Bachchu Singh (PW-1) and Smt. Maharani Devi (PW-2), though is adequate to establish that the accused-appellants trespassed and entered in the house of Jageshwar with a preparation for hurt and assault. 21. In view of it, the conviction of the accused-appellants under Section 452 Indian Penal Code is justifiable. 22. Accordingly, this appeal is partly allowed. Conviction of the appellants for the offence under Section 302/34 Indian Penal Code is set aside. The appellants are acquitted from the charge aforesaid. 21. In view of it, the conviction of the accused-appellants under Section 452 Indian Penal Code is justifiable. 22. Accordingly, this appeal is partly allowed. Conviction of the appellants for the offence under Section 302/34 Indian Penal Code is set aside. The appellants are acquitted from the charge aforesaid. However, their conviction for an offence under Section 452 Indian Penal Code is affirmed, but the sentence awarded by the trial Court is modified and is reduced for a period that has already been undergone in prison by them during the course of trial and also subsequent thereto.