Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1247 OF 2006
Indra Pal Singh ..... Appellant
Versus
State of U. P. ..... Respondent
WITH
CRIMINAL APPEAL NO. 90 OF 2007
Jagat Singh ..... Appellant
Versus
State of U. P. .....
Respondent
JUDGMENT
Lokeshwar Singh Panta, J.
1. Both these appeals arising out of the common judgment
and order dated 09.12.2005 passed by the Division Bench of
the High Court of Judicature at Allahabad in Government
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Appeal No. 2004 of 1981, were heard together and shall stand
disposed of by this common order. By the impugned order,
the High Court while setting aside the judgment of acquittal
dated June 5, 1981 recorded by the Additional Sessions
Judge, Hamirpur, in Sessions Trial No. 293 of 1980,
convicted the accused under Section 302 read with Section
149 and Section 148 of the Indian Penal Code and sentenced
them to imprisonment for life and two years’ rigorous
imprisonment respectively.
2. Brief facts of the case are that Subedar Singh (P.W. 1)
has got three sons, namely, Jai Karan Singh, Shiv Karan
Singh and Ram Karan Singh. P.W. 1 lodged F.I.R. (Ex. Ka.1)
on 24.07.1980 at 6:15 a.m. at Police Station, Sumerpur
situated at a distance of about 15 kms. from village Patyora,
alleging therein that in the year 1976 dacoity was committed
at the house of his co-villager Lalloo Singh, who doubted that
the offence was committed at the instance of his son Ram
Karan Singh and on that account Lalloo Singh had
entertained grudge against him and his family members. One
Raja bhiah, resident of village Surauli was also involved in the
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said dacoity case and P.W. 1 appeared as a defence witness
for accused Raja bhiah and for that reason also, sons of Lalloo
Singh used to threaten him with dire consequences. He
alleged that on 23rd July, 1980 his son Jai Karan Singh had
gone to the market at Sumerpur and in the evening P.W. 1
went to Yamuna South Bank railway station to receive his
son, who was to bring some essential articles from the market.
At about 7:30 p.m., the train reached at Yamuna South Bank
station. Jai Karan Singh along with Shiv Nath Kewat, Dayalu
(P.W. 4) and many other persons got down from the train. He
took gunny bag containing 15 seers of `khalli’ from Jai Karan
Singh who was carrying one more bag containing 3-4 kgs. of
sugar. All of them proceeded towards the village. At about
8:30 p.m., they took a turn from Link Road for the pathway
going to the village and Jai Karan Singh was going a few paces
ahead of them. Ayodhya Singh son of Lalloo Singh and Indra
Pal Singh son of Prithvi Singh armed with DBBL guns and
Ranvijay Singh son of Lalloo Singh along with one Jagat Singh
son of Rajwa Singh armed with SBBL guns and Ram Bahadur
Singh son of Lalloo Singh who was carrying lathi and torch
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were waiting for the arrival of his son Jai Karan Singh by the
side of the pathway. Ayodhya Singh fired gunshot at Jai
Karan Singh and immediately thereafter Ranvijay Singh, Jagat
Pal Singh and Indra Pal Singh indiscriminately fired rounds at
Jai Karan Singh with their respective guns. Jai Karan Singh,
on receiving fire arm injuries, fell down near the water channel
and ridge of the field of one Brinda Singh towards east side of
the path way. The witnesses present at the spot flashed
torches at the faces of the accused and recognized them in
torch light. The accused, after committing the crime, fled
away from the scene of occurrence.
3. P.W. 1 with the help of his co-villagers took the body of
deceased Jai Karan Singh to his house at village Patyora. He
got FIR scribed from his son Shiv Karan Singh (P.W. 5) at 3:00
a.m. on the following day of the incident and thereafter went
to the Police Station, Sumerpur. He handed over the report to
the H.M. Rajendra Veer Singh (P.W. 6) who prepared Check
Report on the basis of which FIR (Ex. Ka.1) came to be
registered. Sub-Inspector Asha Ram Tripathi (P.W. 7) took up
investigation of the crime in his hand and rushed to the place
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where the dead body of Jai Karan Singh was laid. He drew
inquest proceedings on the dead body and prepared an
Inquest Report (Ex.Ka.5) and other necessary papers (Ex. Ka.6
& Ka. 7) and then handed over the dead body in a sealed cover
(Ex.Ka.9) along with other necessary papers to Constables
Raghuraj Singh and Raja Ram for being taken to the doctor for
post mortem. He also recorded statements of the witnesses.
Site Plan (Ex. Ka.12) was also prepared and from the place of
occurrence blood-stained sample was taken into possession
vide Memo (Ex. Ka.9). Two empty cartridges and 3 tiklis, etc.
were collected vide Memo (Ex.Ka.10) from the scene of
occurrence. After receipt of the post mortem report (Ex.Ka.5)
from Dr. P.N. Singh (P.W. 2) and on completion of the
investigation, P.W. 7 submitted charge sheet against the
accused persons. They pleaded not guilty to the charges and
claimed trial.
4. The prosecution examined P.W. 1 – Subedar Singh,
father of the deceased and Dayalu P.W. 4 as eye witnesses of
the occurrence; P.W. 2 Dr. P.N. Singh conducted autopsy on
the body of Jai Karan Singh on 25 July, 1980 at 11:00 a.m.;
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P.W. 3 – H.G. Dibiya produced the case papers in the court;
P.W. 5 – Shiv Karan Singh, brother of the deceased, was scribe
of report (Ex. Ka. 1) on the dictation of his father; P.W. 6 –
H.M. Rajendra Vir Singh prepared the check report at the
police station on the basis of the written report handed over to
him by P.W. 1 who made an entry regarding registration of the
crime in G.D. and P.W. 7 Sub-Inspector Asha Ram Tripathi,
Investigating Officer of the case.
5. The accused in their statements recorded under Section
313 of the Code of Criminal Procedure, 1973 denied the
allegations of the prosecution. They pleaded that they have
been framed in a false case due to enmity. The learned trial
judge disbelieved the evidence of the prosecution witnesses
and found the accused not guilty of the charges levelled
against them and accordingly, acquitted them.
6. Being aggrieved by the order of acquittal of the accused
recorded by the trial judge, the State of U.P. filed an appeal
before the High Court. The Division Bench of the High Court
by its impugned judgment and order allowed the said appeal
and convicted the accused persons under Section 302 read
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with Section 149 and Section 148 IPC and sentenced them in
the manner noticed above. The judgment of the High Court
reveals that accused-Ram Bahadur has died, therefore, the
appeal against him stood abated by order dated 03 June,
2005.
7. Feeling aggrieved by and dissatisfied with the judgment
and order of the High Court, Indra Pal Singh and Jagat Singh,
the appellants herein, filed Criminal Appeal No. 1247 of 206
and Criminal Appeal No. 90 of 2007 respectively. It appears
from the record that Ayodhya Singh and Ranvijay Singh have
not questioned the judgment of the High Court holding them
guilty of the charges.
8. We have heard the learned counsel for the appellants
and the learned counsel for the State and they have taken us
through the evidence of the witnesses and other materials on
record.
9. Learned senior counsel for the appellants first submitted
that there was considerable delay in lodging the FIR (Ex. Ka1)
by P.W. 1 therefore, no reliance can be placed on such a
document. On examination of the evidence, it is clearly
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established that the occurrence took place on 23.07.1980 at
about 08:30 p.m. near village Patyora in which the accused
allegedly fired gun shots at Jai Karan Singh and FIR of the
occurrence was lodged at about 6:15 a.m. on the following
morning at Police Station, Sumerpur which is situated at a
distance of about 15 km from the place of occurrence. The
High Court observed in its order that no specific question was
put to P.W. 1-Subedar Singh, the informant, as to why he did
not lodge FIR of the occurrence at police post Surauli which is
quite near to village Patyora. On appraisal of the evidence of
P.W. 1, we find that he has given explanation that due to fear
from the accused and non-availability of conveyance, he could
not promptly go to the police station to lodge FIR of the
occurrence. He stated that after the murder of Jai Karan
Singh by the accused, he with the help of his co-villagers took
the dead body of his son from the place of occurrence to his
house and since they were all wailing and grief stricken he got
the report of the occurrence scribed by his second son Shiv
Karan Singh (P.W.5) at about 3:00 a.m. on the following
morning and then at about 4:00 a.m. he proceeded to the
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police station, Sumerpur and handed over the written report
to the police official present there. In these circumstances,
the explanation offered by P.W. 1-Subedar Singh for not
lodging the FIR soon after the occurrence, in our view, was
quite satisfactory and convincing and there was no deliberate
delay on his part in reporting the crime to the police. The first
contention therefore, cannot sustain.
10. It was next contended on behalf of the appellants that
the learned trial judge has noticed several contradictions and
omissions in the versions of P.W. 1 – Subedar Singh and P.W.
4 – Dayalu, the alleged eye witnesses and therefore, their
evidence has been rightly rejected by him, but on the contrary
the High Court has mis-appreciated the evidence and found
the accused guilty on unsatisfactory and unbelievable
evidence. In order to appreciate this submission, we have
independently examined the evidence of both the witnesses. It
is the evidence of P.W. 1 that on 23rd July he had sent his son
Jai Karan Singh (deceased) to Sumerpur market by train for
purchasing khalli for the cattle and sugar for household use
and his son was to return to the village in the same evening
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and therefore he went to the South Block railway station
where the train reached at about 8:00 p.m. Jai Karan Singh
got down from the train and he was carrying one gunny bag
containing 15 kgs of khalli and second bag containing 3 kgs.
sugar. He took gunny bag of khalli from his son and started
going to their house along with Shiv Nath, Laali, Dayalu (P.W.
4) and others who also alighted from the same train. Jai
Karan Singh was going few paces ahead of him and other co-
villagers. They left the Link Road and took turn on the
pathway leading to their village and when Jai Karan Singh
reached near the field of one Brinda Singh, Ram Bahadur
Singh (accused-dead) shouted that their enemy had reached
and should be killed. Ayodhya Singh fired at Jai Karan Singh
with DBBL gun followed by Jagat Singh, appellant in Criminal
Appeal No. 90 of 2007; Indra Pal Singh appellant in Criminal
Appeal No.1247 of 2006 and Ranvijay Singh each fired at his
son with their respective guns and on receiving the fire arm
injuries, Jai Karan Singh fell near the water channel of the
field of Brinda Singh. P.W. 1 and other persons accompanying
him recognized all the accused in the torches’ light which they
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were carrying with them and also in the moonlit night. The
accused, after committing the crime, fled away from the scene
of occurrence. He requested Jagani, his co-villager, who was
also coming back from the railway station and going to the
village, to inform the members of his family about the murder
of Jai Karan Singh. He with the help of his companions
present at the place of occurrence took the dead body of his
son to his house.
P.W. 4 – Dayalu fully corroborated the testimony of
P.W. 1. He deposed that he recognized the appellants and
other accused persons clearly in the moonlit night and in the
light of torches flashed by Shiv Nath and Ram Bahadur Singh
at the time of occurrence. The trial judge has disbelieved the
version of P.W. 4 – Dayalu on the ground that the witness only
stated that accused Ram Bahadur Singh and witness Shiv
Nath (not examined) were accompanying P.W. 1 and deceased
Jai Karan Singh and they flashed their torches and no other
person was in possession of any torch, whereas P.W. 1-
Subedar Singh stated that he and Shiv Nath flashed torches
on the faces of the accused. This minor discrepancy
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appearing in the evidences of P.W.1 and P.W. 4 is insignificant
and immaterial to discard the testimony of P.W. 4 that he was
not present at the place of occurrence. P.W. 1 has stated in
the FIR that he and Shiv Nath flashed torches on the faces of
the accused and in the torch light the accused were clearly
recognized who after committing crime, had fled away from the
scene of occurrence. P.W. 1 and P.W. 4 have categorically
stated before the Court that in addition to torch light it was
moonlit night in which the accused were easily recognized by
them. It is the evidence of P.W. 7 that at about 9:30 a.m. on
the following morning of the incident, he took torches from
P.W. 1 and Shiv Nath and on inspection thereof, these were
found in working condition. Thus, the High Court has rightly
held that the trial judge has given undue importance to such
minor inconsistencies appearing in the statements of the two
eye witnesses which are of very trivial nature and the accused
could not have been acquitted on such insignificant
contradictions.
11. The learned senior counsel then contended that the
statement of P.W. 4 was recorded by the Investigating Officer
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after about 7-8 days from the date of occurrence which would
also prove that P.W. 4 was not present on the spot as
projected by the prosecution. It is the evidence of P.W. 4.
that in the early morning of the following day of occurrence, he
had gone to Hamirpur for doing work and stayed there for
about 7-8 days. The trial judge disbelieved the testimony of
this witness on the ground that the witness could not disclose
the name of the shop keeper from whom he purchased blade
for his randdha at Sumerpur market on the day of occurrence.
We are of the considered view that the approach of the trial
judge in appreciating the evidence of the eye witness was
wholly unwarranted and uncalled for. The presence of P.W. 4
at the time of the incident has been fully proved on record and
his evidence is consistent and trustworthy to prove that the
accused persons had fired gun shots at Jai Karan Singh on
the day of occurrence when he along with deceased Jai Karan
Singh; his father P.W. 1, and other co-villagers were returning
from the railway station to their village. The trial judge
observed that as per the post mortem report deceased Jai
Karan Singh was a young man of 35 years of age and of good
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built and, therefore there was no need for P.W. 1-Subedar
Singh to go to the railway station to take a bag of khalli from
his son and carry the same from the railway station to the
village. It has come in the evidence of P.W. 1 that his son Jai
Karan Singh was a patient of asthma and therefore he used to
be vigilant that his son should not take much physical strain
and because of that reason he went to the railway station to
share with his son the burden of the load of one bag
containing 15 kgs. of `khalli’. We do not find anything wrong if
P.W. 1 had gone to the railway station for extending some help
to his son. Thus, The entire approach of the trial court in
appreciating the evidence of the eye witnesses is perverse and
grossly improper.
12. Learned senior counsel for the appellants next contended
that the ocular testimony of P.Ws. 1 and 4 has been rightly
discarded by the learned trial judge as their testimony is at
variance with the medical evidence. It was contended that
both the eye witnesses have stated that 4 gun shots were fired
at the victim, but a perusal of the post mortem report would go
to show that P.W. 2 – Dr. P.N. Singh found only 3 fire arm
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wounds on the body of the deceased. We have examined the
evidence of Dr. P.N. Singh, who at the relevant time, was
posted as Surgeon at District Hospital, Hamirpur, and
conducted autopsy on the dead body of Jai Karan Singh on
July 25, 1980 at about 10:00 a.m. and found the following
ante mortem injuries:-
1. Gun shot wound of entry 4.5 cm X 4 cm X
brain deep on the left side of head near the
external ear, upper part of external ear was
lacerated, the brain matter was seen coming
out of the wound, tattooing was present all
around, fracture of left temporal bone was
present.
2. Gun shot wound of entry 2.5 cm X 2 cm X
bone deep on the left side of upper part of the
neck near the ear lobule, lower part of the
external ear with ear lobule was lacerated,
tattooing was present.
3. Gun shot wound of exit 14 cm. X 6 cm X brain
deep on the left side of forehead and face,
extending to the left eye, nose and right eye.
4. Gun shot wound of entry 1.5 cm X 1.5 cm X
chest cavity deep on the right side of the chest
in mid-auxiliary line.
5. Gun shot wound of exit 2 cm X 2 cm X chest
cavity deep on left side of chest, lower part in
posterior auxiliary line 16 cm below and
behind the left nipple.
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6. Gun shot wound of exit 3 cm X 3 cm X
abdominal cavity deep on the left side of back,
4 cm outer to mid-line.
Face was disfigured due to injuries and left eye destroyed
completely and the right eye was collapsed. On internal
examination of the dead body, Dr. P.N. Singh – P.W. 2
observed that there was fracture of left temporal, parietal,
frontal and left lower jaw and both upper jaw bones.
Membranes of the brain were torn and lacerated at several
places. The brain was pulpy and seen coming out of the
wound. The bone of the skull was fractured. Five small
rounded pellets were recovered from the cranial cavity.
There was fracture of the left 8th rib behind and right 7th
rib in the front. Pleura were lacerated at several places. The
right lung was lacerated and lower lobe at two places. The
pericardium was punctured at 4 places, two in front and two
behind. The heart was empty and punctured at four places,
corresponding to that in the pericardium. There was about
half litre blood in the right chest cavity. Two wadding were
recovered from the left side chest cavity and three pea sized
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pellets were recovered from one in between 6th and 7th ribs on
the left side and one pellet in between 3rd and 4th rib on the left
side and near the lower part of sternum with the fracture of
sternum.
In the opinion of the doctor, the death of Jai Karan Singh
was as a result of head injuries and cerebral laceration and
shock and those injuries were sufficient in the ordinary course
of nature to cause his death. A perusal of the post mortem
report would go to show that gun shot wounds of exhibit nos.
5 and 6 were corresponding to gun shot wounds of entry nos.
2 and 4. Injury no. 3 – lacerated gun shot wound of exit 14
cm X 6 cm X brain deep on left sides of forehead and face
extending on left eye nose and right eye was corresponding to
injury no. 1 – lacerated wounds (gun shot wound) of entry 4.5
cm X 4cm X brain deep on left side head near external ear,
upper part of internal ear lacerated, brain matter coming out
of the wound. Looking to the size of both the wounds i.e. one
of entry and one of exit (injury nos. 1 and 3) which would
appear with two shots fired from gun hitting the deceased on
his head over lapping on left side of his head because in that
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position only the size of the wound of exit may be 14 cm X
6cm X brain deep. On internal examination of the deceased,
left temporal parietal and frontal bones were found fractured.
Left lower jaw was also found fractured. The brain was pulpy
and seen coming out of the wound. The bone of the skull was
also found fractured. Thus, the High Court has rightly held
that there was no real inconsistency between the ocular
testimony of eye witnesses and medical evidence. The finding
of the learned trial judge on this point was contrary to the
proper appreciation of the eye witnesses’ account corroborated
by the medical evidence and the High Court is right in
rejecting the said finding of the trail court.
13. The learned senior counsel for the appellants then
contended that there was no motive for the accused to commit
the murder of Jai Karan Singh because as per the prosecution
evidence, the accused, if any, bore grudge against Ram Karan
Singh, the brother of the deceased at whose instance dacoity
was committed at the house of Lalloo Singh and P.W. 1
Subedar Singh appeared as a defence witness for accused
Raja bhiah. The learned counsel also contended that since the
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deceased was a member of the gang of dacoits, there was
every possibility that he might have been killed in a gang
rivalry and the appellants have been falsely implicated in the
present case. There is no evidence on record to support this
contention and it deserves to be rejected. It was urged by the
learned senior counsel that P.Ws. 1 and 4 are interested
witnesses and as such no implicit reliance can be placed on
their testimony connecting the appellants with the
commission of the crime. It is no doubt true that P.W. 1 is the
father of the deceased. P.W. 4 is a co-villager of P.W. 1 who
has corroborated the testimony of P.W. 1 on all material
aspect of the case and has clearly recognized the accused
persons who on the day of occurrence committed the murder
of Jai Karan Singh. The testimony of P.Ws.1 and 4 has been
found to be satisfactory, consistent and credible by the High
Court. Both the witnesses have been subjected to searching
cross-examination by the defence, but nothing tangible
material has been extracted from their evidence to create any
shadow of doubt to disbelieve and discard their truthful
testimony.
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14. It is well-settled that if the eye witness is related to the
deceased, his evidence has to be accepted if found to be
reliable and believable because he would honestly be
interested in ensuring that real culprits are punished. We do
no find any merit in any of the submissions of the appellants;
therefore, we confirm the convictions.
15. On our examination of the judgment of the High Court,
we find that the High Court has subjected the prosecution
evidence to critical scrutiny and has reached the conclusion
that so far the appellants herein are concerned, the charges
under Sections 302 read with Section 149, IPC and Section
148, IPC are fully established against them. We are, therefore,
satisfied that the prosecution has successfully proved its case
against the appellants.
16. We, therefore, concur with the view of the High Court
and affirming the conviction and sentence of the appellants,
dismiss these appeals.
………………………………….J.
(Lokeshwar Singh Panta)
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………………………………….J.
(Aftab Alam)
New Delhi,
December 02, 2008.