{"id":195182,"date":"2010-07-16T00:00:00","date_gmt":"2010-07-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/karua-alias-tej-pal-alias-rajendra-vs-state-of-u-p-on-16-july-2010"},"modified":"2017-05-29T08:03:31","modified_gmt":"2017-05-29T02:33:31","slug":"karua-alias-tej-pal-alias-rajendra-vs-state-of-u-p-on-16-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/karua-alias-tej-pal-alias-rajendra-vs-state-of-u-p-on-16-july-2010","title":{"rendered":"Karua Alias Tej Pal Alias Rajendra vs State Of U.P. on 16 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Karua Alias Tej Pal Alias Rajendra vs State Of U.P. on 16 July, 2010<\/div>\n
Reserved\n\nCRIMINAL APPEAL No. - 500 of 1982\n\n1.Karua @ Tej Pal @ Rajendra\n2.Mahipal Singh                         Appellants\nVersus\nState of U.P.                           Respondent\n\n\n\nHon'ble Yatindra Singh,J.\n<\/pre>\n
Hon’ble Surendra Singh,J.\n<\/p>\n
      (Delivered by Hon’ble Surendra Singh, J)<\/p>\n
1. The challenge in this appeal is the judgment and order dated 30.1.1982 passed<\/p>\n
by 3rd Additional Sessions Judge, Mathura, in ST No.43 of 1981 and ST No.140 of<\/p>\n
1981 convicting and sentencing the appellants under Section 396 IPC for the life<\/p>\n
imprisonment.\n<\/p>\n<\/p>\n
2. Shorn of unnecessary details, briefly stated facts of the case are as follows:<\/p>\n
          \u2022     According to the prosecution on 16.12.1980, at abut 9.10pm, at police<\/p>\n
                station Sahpau, Mathura situated at a distance of one and a half<\/p>\n
                miles to the north of village Nagla Sewa of Dhandhau where the<\/p>\n
                dacoity is alleged to have taken place at about 6.45pm in late<\/p>\n
                morning on the same day, the Informant Lakshman Singh lodged a<\/p>\n
                written report (Ex Ka-1) purported to have been scribed by one,<\/p>\n
                Phulwar Singh of Nagla Sewa, P.S. Sahpau, District Mathura.<\/p>\n
          \u2022     As gleaned from the FIR, on the date of incident in the evening, at<\/p>\n
                about 6.45pm, said Lakshman Singh, his father (Sugreev Singh), Dal<\/p>\n
                Chand S\/o Than Singh, Ramvir S\/o Ram Prasad, Satyavir S\/o Pyare<\/p>\n
                Lal and Bachchi S\/o Shobha Ram were sitting around the fire in front<\/p>\n
                of the exit of their house, then about seven or eight persons came<\/p>\n
                from the side of the village Dhandhau and surrounded them at once
\n                                                          2<\/span><\/p>\n
    and opened fire in order to frighten them thereupon<\/p>\n
    the Informant caught hold appellant no.2 who had<\/p>\n
    fired the shot with a Pauna, knocked him on the<\/p>\n
    ground and at the same time appellant Karua gave a<\/p>\n
    lathi blow on the head of the Informant so that<\/p>\n
    appellant no.2 (Mahipal Singh) was able to free<\/p>\n
    himself from the clutches of the Informant.       After<\/p>\n
    having been free, said Mahipal Singh fired another<\/p>\n
    shot at him but unfortunately it struck to Dal Chand in<\/p>\n
    his stomach.\n<\/p><\/blockquote>\n
\u2022   During this incident, it is alleged that the third<\/p>\n
    miscreant struck his father on the latter’s head with<\/p>\n
    the Pharsa while the remaining miscreants entered<\/p>\n
    into the house and started looting whereupon the<\/p>\n
    Informant and others raised alarm on which one<\/p>\n
    Kaptan Singh S\/o Siya Ram ignited the fire behind<\/p>\n
    the house and Ram Swaroop S\/o Shobha Ram also<\/p>\n
    ignited the fire below the Neem tree in front of the<\/p>\n
    house and thus the sufficient light including the<\/p>\n
    lantern light was provided.\n<\/p>\n
\u2022   It is further alleged that one Juginder Singh S\/o Lal<\/p>\n
    Singh of the village climbed to the roof of the house<\/p>\n
    and started indiscriminate firing from his licensed gun<\/p>\n
    towards the miscreants with the consequence that<\/p>\n
    miscreants lost courage and fled away towards<\/p>\n
    village Dhandhau and during the course of escape<\/p>\n
    from the spot, they fired again causing injury to one
\n                                                                       3<\/span><\/p>\n
                Virendra S\/o Hukum Singh.\n<\/p>\n
            \u2022   It is further specified that appellant no.1, Karua was<\/p>\n
                wearing pant and coat and had a lathi in his hand<\/p>\n
                and others had country made pistols and guns at the<\/p>\n
                time of incident and that Mahipal Singh was wearing<\/p>\n
                a black coat, a white Pajama and had a tie on and a<\/p>\n
                muffler around his neck. It has been given out that<\/p>\n
                the miscreants were seen and recognized well in light<\/p>\n
                provided by fire and lantern. It has also been given<\/p>\n
                out that the dacoity lasted for about 20 minutes.<\/p>\n
3. On the basis of the said written report, a formal FIR (Ex Ka-16)<\/p>\n
was prepared by the then head moharrir Mewa Ram and<\/p>\n
consequently an entry was made in G.D. at serial no.28, both<\/p>\n
contained signatures of Radhey Shyam (PW-8). On the basis of<\/p>\n
formal FIR (Ex Ka-16), a case under Sections 395\/397 IPC vide<\/p>\n
crime No.192 of 1980 was registered. The injuries sustained by<\/p>\n
Dal Chand, Virendra, Sugreev Singh and Lakshman Singh were<\/p>\n
noted and they were sent for treatment and medical examination<\/p>\n
alongwith       concerned   ‘chiththi   majrubi’   accompanied      with<\/p>\n
Constable, Shripal Singh to PHC Sahpau, Mathura. Injured, Dal<\/p>\n
Chand lost the battle of his life in the mid night of 17.12.1980.<\/p>\n
Consequently, the offence was altered to Section 396 IPC from<\/p>\n
395\/397 IPC vide G.D. entry (Ex Ka-18).\n<\/p>\n<\/p>\n
4. Sri Durga Prasad Sharma (S.I.) was entrusted to prepare<\/p>\n
inquest of the dead body of Dal Chand. S.O. , Radhey Shyam
\n                                                                4<\/span><\/p>\n
was given a list of looted articles (Ex Ka-2) by the Informant,<\/p>\n
Lakshman Singh on the spot on the same day in the morning i.e.<\/p>\n
17.12.1980. He recorded the statement of witnesses Lakshman<\/p>\n
Singh (PW-1), Sugreev Singh (PW-3), Satyavir (PW-4) and Om<\/p>\n
Pkash (PW-5) on 17.12.1980. He made a spot inspection and<\/p>\n
prepared site plan (Ex Ka-19). He collected samples of ash from<\/p>\n
two different places material Ex-I from behind the house and<\/p>\n
material Ex-II from the other places and prepared memo (Ex Ka-<\/p>\n
20). He collected 14 blank cartridges and 7 wads from the spot<\/p>\n
and prepared memo (Ex Ka-21) and sealed them (Ex-III to Ex-XVI<\/p>\n
and XVII to XXIII). He further examined lantern of Sugreev S\/o<\/p>\n
Nihal Singh and found it in order and prepared memo cum<\/p>\n
supurdginama (Ex Ka-22) and handed it over back to Sugreev. He<\/p>\n
recognized writing and signatures of S.I. Sri D.P. Sharma on<\/p>\n
papers concerning inquest report of the dead body of Dal Chand<\/p>\n
(Ex Ka-7 to Ka-13). Exts. Ka-6 and Ka-14, copy of written FIR<\/p>\n
apparently sent alongwith other papers at the time of dispatching<\/p>\n
the dead body for post mortem examination which were duly<\/p>\n
received by the medical officer concerned and the genuineness<\/p>\n
whereof has been admitted.\n<\/p>\n<\/p>\n
5. On completion of investigation and the usual formalities<\/p>\n
associated therewith, S.O. Sri Radhey Shyam (PW-8), the I.O. of<\/p>\n
the case, submitted the charge sheets (Ex Ka-25 and Ex Ka-26)<\/p>\n
against both the appellants, Karua and Mahipal Singh on<\/p>\n
31.12.1980 and 1.3.1981 respectively.\n<\/p>\n
                                                                   5<\/span><\/p>\n
6. Autopsy on the dead body of the Deceased, Dal Chand, was<\/p>\n
conducted on 17.12.1980 at 4.45pm by Dr SP Bhatnagar (PW-7)<\/p>\n
who proved the autopsy report as (Ex Ka-10). In his opinion the<\/p>\n
Deceased was about 40 years of age, having an average built<\/p>\n
body and had died about one day earlier. As per opinion of the<\/p>\n
Doctor, rigor mortis was present all over the body of the Deceased.<\/p>\n
The following ante mortem injury was found on the dead body:<\/p>\n
      (i). Gun shot wound of entrance multiple 33 in number<\/p>\n
      varying in size from 1\/2cm x 1\/2cm to 1\/4cm x 1\/4cm soft<\/p>\n
      tissue and abdominal cavity deep spread over an area<\/p>\n
      19cm x 18cm front of abdomen including lower part of chest<\/p>\n
      right side;\n<\/p><\/blockquote>\n
      (ii). No charring and tattooing present;\n<\/p><\/blockquote>\n
      (iii). Round metallic pellets recovered from soft tissue.<\/p>\n<\/blockquote>\n
In the opinion of the autopsy surgeon the death of the deceased<\/p>\n
was caused due to shock and haemorrhage as a result of injury<\/p>\n
mentioned above.\n<\/p>\n<\/p>\n
7. On internal examination, the Doctor found 14 pellets from the<\/p>\n
dead body. Both the chambers of the Deceased were found empty<\/p>\n
and liver, kidney and intestines were punctured and clotted blood<\/p>\n
was found. Four ozs semi digested food with blood was found in<\/p>\n
the stomach in fluid state and its wall was punctured at places<\/p>\n
through and through. Both small and large intestines were also<\/p>\n
found punctured.\n<\/p>\n<\/p>\n
8. Dr Hari Babu Sharma (PW-2) is the doctor who has medically
\n                                                                      6<\/span><\/p>\n
examined Virendra, Sugreev Singh and Lakshman Singh.<\/p>\n
9. Relevant and material details of injury reports are mentioned<\/p>\n
below:\n<\/p>\n
   \u2022     Injury report (Ex Ka-3) of Virendra, aged about 25 years,<\/p>\n
         S\/o Hukam Singh, resident of Nagla Sewa, P.S. Sahpau,<\/p>\n
         District Mathura, examined on 16.12.1980, at 9.30pm;<\/p>\n
         (1). Multiple gun shot wounds (about 9) in area 13cm x 8cm<\/p>\n
         left side of forehead of scalp in left half of forehead and<\/p>\n
         upper part of left cheek and left parietal region, size \u00bc cm x<\/p>\n
         \u00bc cm approximately of each;\n<\/p>\n
         (2). Gun shot wound size \u00bc cm x \u00bccm on posterior surface<\/p>\n
         of upper 1\/3rd of left arm;\n<\/p>\n
         (3). Gun shot wound size \u00bc cm x \u00bc cm in supra sternal<\/p>\n
         region.\n<\/p>\n
Injuries are kept under observation, caused by gun shot.<\/p>\n
Duration fresh.\n<\/p>\n
Pt. is referred to District Hospital Mathura for X-ray left side of<\/p>\n
scalp and eft arm and neck A.P. And lateral view and also for<\/p>\n
treatment.\n<\/p>\n
   \u2022     Injury report (Ex Ka-4) of Sugreev Singh, aged about 50<\/p>\n
         years, S\/o Nihal Singh, resident of Nagla Sewa, P.S.<\/p>\n
         Sahpau, District Mathura, District Mathura on 16.12.1980,<\/p>\n
         at 10pm;\n<\/p>\n
         (1). I.W. 5.5cm x \u00bd cm x scalp muscle deep on right side of<\/p>\n
         scalp about 8cms above the right ear.\n<\/p>\n
                                                                     7<\/span><\/p>\n
   \u2022   Injury report (Ex Ka-5) of Lakshman Singh, aged about<\/p>\n
       28 years, S\/o Sugreev Singh, resident of Nagla Sewa<\/p>\n
       (Mauza    Dhandhau),    P.S.      Sahpau,   District   Mathura<\/p>\n
       examined on 27.12.1980, at 6.30pm;\n<\/p>\n
       (1). Scabbed wound 1\u00bdcm x \u00bd cm on left side of scalp<\/p>\n
       about 12 cm above the left ear.\n<\/p>\n<\/p>\n
10. On the basis of charge sheets (Ex Ka-25 and Ex Ka-26), Chief<\/p>\n
Judicial Magistrate, Mathura summoned the appellants and<\/p>\n
committed the case to the court of sessions            where it was<\/p>\n
registered as    ST No.43 of 1981 and ST No.140 of 1981<\/p>\n
respectively. Since both the session cases have arisen out of the<\/p>\n
same incident as such both of them were consolidated and tried<\/p>\n
together, in accordance with law.\n<\/p>\n<\/p>\n
11. Additional Sessions Judge, Mathura, on 13.3.1981 and<\/p>\n
6.7.1981 charged the appellants for the offence under Section 396<\/p>\n
IPC. Since the appellants abjured the charge, therefore, the trial<\/p>\n
proceeded against them.\n<\/p>\n<\/p>\n
12. In order to cement the charge and establish appellants’ guilt to<\/p>\n
the hilt, the prosecution in all examined 8 witnesses out of whom,<\/p>\n
witnesses, Lakshman Singh (PW-1), Sugreev Singh (PW-3),<\/p>\n
Satyavir (PW-4) and Om Prakash (PW-5) were fact witnesses and<\/p>\n
rest were formal witnesses who included Dr Hari Babu (PW-2)<\/p>\n
(examined the injured persons), Dr SP Bhatnagar (PW-7), Radhey<\/p>\n
Shyam Singh, S.O. (PW-8) and Constable Shreepal (PW-6), (who
\n                                                                  8<\/span><\/p>\n
carried the dead body. Surendra Singh (DW-1) of village Nagla<\/p>\n
Sewa and Vinod Kumar (DW-2) of village Nagla Mani were also<\/p>\n
examined by the witness.\n<\/p>\n<\/p>\n
13. The defence of the accused appellant was that of denial and<\/p>\n
and false implication in connivance between the police and the<\/p>\n
Informant. The trial court vide its impugned judgment and order<\/p>\n
after scrutiny of evidence of the witnesses and other material on<\/p>\n
record, was satisfied that both the accused had committed dacoity<\/p>\n
with the murder of an innocent person, Dal Chand the Deceased<\/p>\n
and the charge was proved beyond doubt and, therefore, held the<\/p>\n
appellants guilty for the offence under Section 396 IPC and<\/p>\n
convicted them to life imprisonment, which has resulted in the<\/p>\n
present appeal.\n<\/p>\n<\/p>\n
14. Heard Sri Anand Kumar Srivastava, holding brief of Sri J.N.<\/p>\n
Chaturvedi, counsel for the appellants and Sri VK Mishra AGA for<\/p>\n
the State. We have also gone through the evidence and other<\/p>\n
material placed on record.\n<\/p>\n<\/p>\n
15. Learned counsel for the appellants has raised following<\/p>\n
contentions:\n<\/p>\n
   \u2022   The Prosecution has not been able to prove the guilt of the<\/p>\n
       appellants beyond reasonable doubt, thus the appellants<\/p>\n
       are entitled for acquittal;\n<\/p>\n
   \u2022   The FIR of the incident was false, fabricated and ante-timed<\/p>\n
       and lodged in collusion with the police concerned;
\n                                                                  9<\/span><\/p>\n
   \u2022   The prosecution has not produced any independent witness<\/p>\n
       of the incident rather independent and uninterested witness<\/p>\n
       could have been produced. Thus the testimony of such<\/p>\n
       witnesses produced in support of the prosecution cannot be<\/p>\n
       relied upon;\n<\/p>\n
   \u2022   There are certain infirmities in the deposition of the<\/p>\n
       witnesses which go to root of the matter and shakes the<\/p>\n
       basic version of the prosecution;\n<\/p>\n
   \u2022   Informant Lakshman Singh was medically examined on<\/p>\n
       27.12.1980. Apparently, the prosecution has produced<\/p>\n
       forged and fabricated evidence to the effect that he<\/p>\n
       received injury during alleged incident.\n<\/p>\n
   \u2022   The case has been initiated against the appellants due to<\/p>\n
       enmity at the instance of one Charan Singh.\n<\/p>\n
   \u2022   The prosecution has completely failed to consider the<\/p>\n
       defence set up by the appellants, thus their conviction and<\/p>\n
       sentence is bad in law.\n<\/p>\n<\/p>\n
16. All witnesses of fact have unerringly supported the prosecution<\/p>\n
case and there is nothing in their statements, which belies the<\/p>\n
prosecution version.    The testimony of these witnesses is of<\/p>\n
unimpeachable character. There is no merit in the appeal as<\/p>\n
prosecution has successfully proved the appellants to be guilty of<\/p>\n
the murder. The appeal is liable to be dismissed.<\/p>\n
17. The prosecution has placed reliance upon the oral evidence of<\/p>\n
the prosecution witnesses examined during the course of trial as
\n                                                                   10<\/span><\/p>\n
well as documents and material exhibits and reliance was also<\/p>\n
placed upon the circumstances governing the case.<\/p>\n
18. For adjudicating the correctness of the submission made and<\/p>\n
judging the guilt or of the innocence of the accused, a synopsized<\/p>\n
discussion of material evidence of both the prosecution and the<\/p>\n
defence is necessary.\n<\/p>\n<\/p>\n
19. The harbinger of prosecution evidence were Lakshman Singh<\/p>\n
(PW-1), Sugreev Singh (PW-3), Satyavir (PW-4) and Om Pkash<\/p>\n
(PW-5). In defence two witnesses have been examined. One was<\/p>\n
Surendra Singh (DW-1) and another was Vinod Kumar (DW-2) as<\/p>\n
mentioned above.\n<\/p>\n<\/p>\n
20. During the trial the Informant\/Injured Lakshman Singh (PW-1)<\/p>\n
besides narrating his allegations contained in the written report (Ex<\/p>\n
Ka-1) further testified giving out entire details of the alleged<\/p>\n
occurrence and proved written report (Ex Ka-1) and list of the<\/p>\n
property given by him (Ex Ka-2).       He has further clearly and<\/p>\n
specifically deposed that he knew the appellants from before and<\/p>\n
when he caught hold the appellant Mahipal Singh, Karua gave him<\/p>\n
lathi blow on his head and soon after Mahipal Singh fired second<\/p>\n
shot at him, which hit Dal Chand, who succumbed thereafter to his<\/p>\n
injuries. It is observed from his cross-examination that defence<\/p>\n
has not been able to prove to shake his testimony. He further<\/p>\n
narrated that the report was scribed by one, Phulwar Singh after<\/p>\n
the dacoits had left the place and that he had signed the same
\n                                                                   11<\/span><\/p>\n
after it was read over to him and the said report was lodged at<\/p>\n
about 9.10pm on the same day.\n<\/p>\n<\/p>\n
21. Sugreev Singh (PW-3) is another witness, who was injured in<\/p>\n
the incident and who went to the police station alongwith<\/p>\n
Lakshman Singh (PW-1), the Informant. He belongs to the family<\/p>\n
whose house was looted. His presence was natural and most<\/p>\n
likely. The defence from his cross-examination has not been able<\/p>\n
to shake his testimony at all and has failed to elicit any material<\/p>\n
contradiction in his statement from that of PW-1.<\/p>\n
22. Satyavir (PW-4) is another witness of fact.         He was an<\/p>\n
immediate neighbour named in the FIR and thus the natural and<\/p>\n
most probable witness. He has fully supported the couple<\/p>\n
witnesses in all material aspects of the incident, thus his testimony<\/p>\n
cannot be ignored and discarded.\n<\/p>\n<\/p>\n
23. So far as Om Pkash (PW-5) is concerned, he is an<\/p>\n
independent witness and belongs to village Gadh Anta, P.S.<\/p>\n
Saidabad, District Mathura.      He has given out a reason or<\/p>\n
explanation for his presence in village Nagla Sewa. Indisputably,<\/p>\n
his name was not disclosed in the FIR, although he is a witness of<\/p>\n
charge sheet. He has been examined in corroborative support of<\/p>\n
the case. He has deposed that he knew the appellants very well<\/p>\n
from before and had seen them at the scene of occurrence on the<\/p>\n
relevant date and time.\n<\/p>\n
                                                                 12<\/span><\/p>\n
24. However, testimony of Vinod Kumar (DW-2) makes to believe<\/p>\n
regarding his presence at the scene.\n<\/p>\n<\/p>\n
25. Constable Sripal (PW-6) is a formal witness. The then S.O.<\/p>\n
Radhey Shyam (PW-8), has stated about the details and manner<\/p>\n
of the investigation conducted by him.\n<\/p>\n<\/p>\n
26. Sri Hari Babu Sharma (PW-2) has also given medical evidence<\/p>\n
in support of prosecution case.        He had medically examined<\/p>\n
Virendra, Sugreev Singh and Lakshman Singh.\n<\/p>\n
27 All the formal witnesses have given supportive evidence as<\/p>\n
referred above. They testified the facts of the prosecution case<\/p>\n
and they were cross-examined at length but no material has been<\/p>\n
brought on record to make their testimony suspected and<\/p>\n
unbelievable.\n<\/p>\n<\/p>\n
28. Another argument by the learned counsel for the appellants is<\/p>\n
that the FIR was false and fabricated and lodged in collusion with<\/p>\n
the police concerned is wholly unappealing. We reject it outrightly<\/p>\n
as being wholly unmerited. Ex Ka-16 shows that the report was<\/p>\n
lodged at 9.10pm on 16.12.1980 and that the occurrence had<\/p>\n
taken place at 6.45pm on the same day. Ex Ka-16 and Ex Ka-17<\/p>\n
disclose that the distance between the alleged place of occurrence<\/p>\n
and police station Sahpau was only one and half miles. It is not<\/p>\n
disputed that a person had lost his life during the alleged<\/p>\n
occurrence. The formal FIR (Ex Ka-16) does bear on its top crime
\n                                                                13<\/span><\/p>\n
No.192, under Sections 395\/397 IPC. The said crime of Indian<\/p>\n
Penal Code also finds place in the copy of the corresponding entry<\/p>\n
made in G.D. (Ex Ka-17). (Ex Ka-17) shows that the Informant,<\/p>\n
Lakshman Singh had gone to lodge the report, he was<\/p>\n
accompanied with Dal Chand (Deceased) and the injured. Ex Ka-<\/p>\n
3 and Ex Ka-4 (Chiththi majrubi) bear Sections 395\/397 IPC noted<\/p>\n
thereon. The injury reports were prepared at 9.30pm and 10pm on<\/p>\n
the date of the incident and and amongst the document prepared<\/p>\n
earliest. Crime number is also shown in chiththi majrubi at the<\/p>\n
back of Ex Ka-3 and Ex Ka-4. Further Ex Ka-14 shows that copy<\/p>\n
of the FIR lodged was sent alongwith papers which reached the<\/p>\n
medical officer concerned alongwith the dead body. Recital in post<\/p>\n
mortem report (Ex Ka-15) corroborates this fact. Site plan (Ex Ka-<\/p>\n
19) also bears crime number and Section 396 IPC. The papers<\/p>\n
(Ex Ka-6 to Ex Ka-14) accompanying the dead body are on record.<\/p>\n
Inquest report (Ex Ka-7 to Ex Ka-9), challan nash (Ex Ka-10),<\/p>\n
photo nash (Ex Ka-11) go to show that crime no.192, under<\/p>\n
Section 396 IPC was mentioned therein. The recitals behind the<\/p>\n
back of the injury reports (Ex Ka-3 and Ex Ka-4) and copy of First<\/p>\n
Information Report, dated   16.12.1980 showing crime no. 192,<\/p>\n
under Sections 395\/397 IPC was also indicated. Sugreev Singh<\/p>\n
(PW-3) was injured whose injury has been shown as Ex Ka-17 and<\/p>\n
he accompanied with Lakshman Singh (Informant) reached to the<\/p>\n
police station concerned at or about 9.15pm and there was no<\/p>\n
good and sufficient reason as to why statement of this witness in<\/p>\n
this regard cannot be believed as correct keeping in view of the<\/p>\n
entire oral and documentary evidence placed on record.
\n                                                                 14<\/span><\/p>\n
29. There is virtually no worthwhile evidence showing that either<\/p>\n
Informant, Lakshman Singh and the police concerned had any<\/p>\n
motive or enmity with the appellants due to which they have been<\/p>\n
implicated in the present crime. Even there is no iota of evidence<\/p>\n
that Charan Singh also reached the police station before or after<\/p>\n
the FIR was lodged. Satyavir (PW-4) was an immediate neighbour<\/p>\n
named in the FIR and he is natural and most probable witness.<\/p>\n
Sugreev Singh (PW-3) is one of the injured witnesses. He went to<\/p>\n
the police station alongwith Informant Lakshman Singh as he<\/p>\n
belonged to the family whose house was looted. His presence on<\/p>\n
the spot cannot be disbelieved. Any omission             or minor<\/p>\n
contradiction on any unimportant facts by him will not be fatal for<\/p>\n
the prosecution.    It is settled law that at any rate any minor<\/p>\n
inconsistencies regarding details not affecting the real matter in<\/p>\n
controversy would be of no avail. As far as production of any<\/p>\n
independent witness is concerned, it cannot be expected that in<\/p>\n
the late winter evening persons near by villages to reach on the<\/p>\n
spot soon after the incident particularly when the firing was<\/p>\n
involved. Thus we find that the witnesses cannot be said partial<\/p>\n
and interested against the accused or under the thumb of police,<\/p>\n
and\/or inimical to the accused because nothing material has been<\/p>\n
brought and shown on record to warrant any of such inferences<\/p>\n
discredited their testimony.\n<\/p>\n<\/p>\n
30. To the argument that independent witness and uninterested<\/p>\n
witnesses could have been produced but were not examined, we<\/p>\n
would like to point out that the case has to be decided on the
\n                                                                    15<\/span><\/p>\n
evidence of witnesses examined only and the prosecution is free<\/p>\n
to produce any of the witnesses to whom he thinks fit and proper.<\/p>\n
The prosecution cannot be compelled to produce some particular<\/p>\n
witness as pointed out earlier in the instant case on the ground<\/p>\n
that the witnesses who have been examined, cannot be said to be<\/p>\n
independent and uninterested witnesses.\n<\/p>\n<\/p>\n
31. So far as the next submission of the learned counsel for the<\/p>\n
appellants that there are certain infirmities in the deposition of the<\/p>\n
witnesses is concerned only this will be suffice to say that the<\/p>\n
witnesses have given graphic account of the incident and is<\/p>\n
convincing and acceptable apart from minor discrepancy.<\/p>\n
32. It would be of no avail as there is neither any material<\/p>\n
contradiction nor any important omission. At any rate any minor<\/p>\n
inconsistency regarding details not affecting the real matter in<\/p>\n
controversy carries no weight. It is established law that over much<\/p>\n
importance cannot be given to minor discrepancies which do not<\/p>\n
go to the root of the matter and shake the basic version of the<\/p>\n
witnesses, therefore, cannot be annexed with undue importance.<\/p>\n
33. Regarding the submission of the learned counsel for the<\/p>\n
appellants that the prosecution has produced forged and<\/p>\n
fabricated evidence to the effect that Lakshman Singh, the<\/p>\n
Informant has received injuries during the alleged incident.<\/p>\n
Indisputably, Dal Chand has lost his life during the commission of<\/p>\n
the dacoity, moreover, the prosecution had nothing much to gain or
\n                                                                   16<\/span><\/p>\n
loose if he had shown injury to himself. The injury sustained by<\/p>\n
the Informant cannot ordinarily be self-inflicted. The fact must not<\/p>\n
be lost sight of that Ex Ka-17 copy of corresponding entry made in<\/p>\n
G.D. entry shows that Lakshman Singh had blood stained injury on<\/p>\n
his head.   Moreover, the delay in medical examination of the<\/p>\n
Informant Lakshman Singh would not reject his credibility.<\/p>\n
34. Apparently, both the appellants have denied the truth and<\/p>\n
correctness of the prosecution in their statements recorded under<\/p>\n
Section 313 CrPC and both have categorically stated that they<\/p>\n
were not at all present at the place given out on the relevant date<\/p>\n
and time and have claimed that they have been wrongfully and<\/p>\n
falsely implicated in the present case. They further disclosed that<\/p>\n
there was enmity between them and some villagers and the report<\/p>\n
was lodged in collusion with the police concerned by the Informant<\/p>\n
at the instance of one, Charan Singh, resident of village Chobara,<\/p>\n
who bears enmity towards them. Each of the accused appellants<\/p>\n
stated that earlier to the present case Charan Singh had initiated a<\/p>\n
case against them for dacoity but it was converted into a case of<\/p>\n
marpeet and they were charge sheeted accordingly and it is still<\/p>\n
pending for disposal.     They further pointed out that the said<\/p>\n
Charan Singh and one, Shiv Charan, both belonged to village<\/p>\n
Chobara and they suspected that the appellants had some illicit<\/p>\n
relationship with the ladies of their family, and that was the reason<\/p>\n
behind their false implication earlier and inasmuch as the<\/p>\n
suspicion continued, in order to take revenge from them they have<\/p>\n
again got them implicated in the instant case in connivance with
\n                                                                 17<\/span><\/p>\n
the Informant.\n<\/p>\n<\/p>\n
35. Apart from this, accused appellant no.1, Karua pleaded that his<\/p>\n
plot as well as those of Informant are irrigated from one and the<\/p>\n
same Kulaba and on account of that the disputes between them<\/p>\n
often take place as such, that was one more reason why they have<\/p>\n
been wrongfully and falsely implicated.\n<\/p>\n<\/p>\n
36. In defence as many as two witnesses, namely, Surendra Singh<\/p>\n
(DW-1) of village Nagla Sewa and Vinod Kumar (DW-2) of village<\/p>\n
Nagla Mani, have been examined. Surendra Singh (DW-1) had<\/p>\n
deposed that after the commission of alleged dacoity, some<\/p>\n
persons from village Chobara, including Charan Singh had<\/p>\n
reached on the spot and he had told Sugreev Singh and Informant<\/p>\n
Lakshman Singh that on the way he had seen the accused<\/p>\n
appellants, Karua and Mahipal Singh going back after committing<\/p>\n
dacoity at their house. The deposition of another defence witness,<\/p>\n
Vinod Kumar (DW-2) was recorded on 19.6.1981 and deposed<\/p>\n
that he was married seven years before and that he was not<\/p>\n
married again, and that Om Prakash or Khemchand or any other<\/p>\n
person of village Anta Garhi had never gone to his house with the<\/p>\n
proposal of his marriage. He further deposed that his wife was<\/p>\n
alive and therefore, there was no question of putting any proposal<\/p>\n
to him for the marriage.\n<\/p>\n<\/p>\n
37. Thus, in a nutshell, the defence put up on behalf of accused<\/p>\n
appellants appear to be that aforesaid Charan Singh and others of
\n                                                                   18<\/span><\/p>\n
village Chobara had reached on the spot after the alleged dacoity<\/p>\n
and poisoned the minds of the victims of dacoity against accused<\/p>\n
appellants, Karua and Mahipal Singh on account of prior strained<\/p>\n
relationship between Charan Singh and others of village Chobara.<\/p>\n
The accused appellants and the local police, therefore, got<\/p>\n
prejudiced and influenced against them at the instance of<\/p>\n
aforesaid Charan Singh etc.       and acted in collusion with the<\/p>\n
victims of dacoity and got the FIR registered against them.<\/p>\n
Indisputably, there is no evidence that aforesaid Charan Singh etc.<\/p>\n
reached the police station.   A perusal of the FIR shows not only<\/p>\n
implication of the accused appellants in the present case under<\/p>\n
Section 396 IPC but it also discloses particular roles said to have<\/p>\n
been played by them. It is hard to conceive that simply because of<\/p>\n
minds of the victims of the dacoity having been prejudiced against<\/p>\n
the accused, the Informant would go so far not only to implicate<\/p>\n
them falsely but would also be so much prejudiced against them<\/p>\n
so as to attribute particular roles to each of them and also describe<\/p>\n
in the FIR the clothes worn by them. Even at the instance of the<\/p>\n
police the earlier criminal case was initiated against the accused<\/p>\n
appellants under Section 395 IPC and later on it was converted<\/p>\n
into lesser offence, which transpires that police was not prejudiced<\/p>\n
against them and if it was so the argument that the police went so<\/p>\n
far in collusion with the Informant while implicating the appellants<\/p>\n
in the present case carries no force. However, it is difficult to<\/p>\n
accept that the police would go to the extent to implicate the<\/p>\n
appellants in heinous offence under Section 396 IPC.
\n                                                                   19<\/span><\/p>\n
38. Now it is necessary to examine whether accused appellants<\/p>\n
had any prior enmity with the concerned local police or not. The<\/p>\n
record does not show at all that either or both of the accused<\/p>\n
appellants had been challaned and got convicted earlier at the<\/p>\n
instance of Sahpau police for any serious or heinous offence. The<\/p>\n
mere fact that the accused appellants were challaned in some<\/p>\n
minor case in the year 1979 would not be any consequence,<\/p>\n
particularly when it is not shown that they were convicted therein.<\/p>\n
The defence has failed to show that the appellants had any enmity<\/p>\n
with any particular police personnel. Even the defence has not at<\/p>\n
all put or suggested to any prosecution witnesses regarding any<\/p>\n
enmity or strained relationship between the appellants and the<\/p>\n
Informant, Lakshman Singh and others, thus no inference or<\/p>\n
conclusion that the FIR was lodged later on in consultation or in<\/p>\n
collusion with the local police implicating the accused appellants.<\/p>\n
39. Hence in the light of the above, the defence set up appears to<\/p>\n
be false and unappealable. Apparently, Surendra Singh (DW-1)<\/p>\n
has clearly stated that he did not know appellants, Karua or<\/p>\n
Mahipal Singh and cannot say whether they were involved or<\/p>\n
participated in the dacoity or not.      He has stated about the<\/p>\n
poisoning or prejudicing of mind by Charan Singh, and he has<\/p>\n
further acknowledged that he had never told anything about it to<\/p>\n
any one earlier nor had approached higher authorities disclosing<\/p>\n
the true case thereof so his statement is of no value in this regard.<\/p>\n
Vinod Kumar (DW-2) has been examined to devalue the testimony<\/p>\n
of Om Prakash (PW-5), who had given out a reason or explanation
\n                                                                 20<\/span><\/p>\n
behind his presence in village Nagla Sewa where the dacoity took<\/p>\n
place but DW-2, Vinod Kumar has not supported his version. The<\/p>\n
assertion of DW-2 that he was already married about seven years<\/p>\n
back and has not remarried, and he had children and his wife is<\/p>\n
alive goes a long way to cast considerable doubt on the value and<\/p>\n
credibility of testimony of Om Prakash (PW-5). Moreover, during<\/p>\n
the investigation, Sugreev Singh had named Om Prakash while<\/p>\n
Lakshman Singh had not disclosed his name. Hence the trial court<\/p>\n
has rightly declined to give face value to his testimony.<\/p>\n
40. We have cogitated over rival submissions and in that light have<\/p>\n
perused the entire record and our findings and conclusions are as<\/p>\n
follows:\n<\/p>\n
       \u2022 On summation of evidence critically on contentious issue,<\/p>\n
       we find     that three fact witnesses PW-1, PW-3 or the<\/p>\n
       injured witnesses while PW-4 is an independent and<\/p>\n
       immediate neighbour named in the FIR, have fully<\/p>\n
       supported the prosecution version;\n<\/p><\/blockquote>\n
       \u2022 All the formal witnesses have given supporting evidence;<\/p>\n
       \u2022Time, place and date of the incident were not disputed by<\/p>\n
       the defence and, therefore, those facts are proved beyond<\/p>\n
       any pale of doubt;\n<\/p><\/blockquote>\n
       \u2022Inconsistent defence plea does not inspire any confidence.<\/p>\n
       The trial court has rightly ignored to consider the defence<\/p>\n
       set up by the accused;\n<\/p><\/blockquote>\n
       \u2022The accused appellants have not been able to prove any
\n                                                                   21<\/span><\/p>\n
      enmity with the Informant or witnesses and have failed to<\/p>\n
      bring on record any material evidence which is indicative of<\/p>\n
      the fact that the Informant or witnesses have any reason to<\/p>\n
      implicate them in the instant heinous crime;<\/p>\n
      \u2022The prosecution has been able to prove and establish the<\/p>\n
      truthfulness and correctness of the facts and make out guilt<\/p>\n
      of the accused appellants to the hilt and bring home charge<\/p>\n
      against them beyond shadow of reasonable doubt.<\/p>\n<\/blockquote>\n
41. On an over all consideration, the intrinsic merit of the evidence<\/p>\n
in the instant case, was clearly indicative of the guilt of the<\/p>\n
accused appellants.\n<\/p>\n<\/p>\n
42. The appeal lacks merit. It is accordingly dismissed. Both the<\/p>\n
appellants, Karua @ Tej Pal @ Rajendra and Mahipal Singh are<\/p>\n
on bail. Their bail is cancelled. The CJM Mathura shall cause the<\/p>\n
appellants to be arrested and lodged in jail to serve out the<\/p>\n
sentence.\n<\/p>\n
16\/07\/2010
\nMt\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Karua Alias Tej Pal Alias Rajendra vs State Of U.P. on 16 July, 2010 Reserved CRIMINAL APPEAL No. – 500 of 1982 1.Karua @ Tej Pal @ Rajendra 2.Mahipal Singh Appellants Versus State of U.P. Respondent Hon’ble Yatindra Singh,J. Hon’ble Surendra Singh,J. (Delivered by Hon’ble Surendra Singh, J) 1. The challenge in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-195182","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nKarua Alias Tej Pal Alias Rajendra vs State Of U.P. on 16 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/karua-alias-tej-pal-alias-rajendra-vs-state-of-u-p-on-16-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Karua Alias Tej Pal Alias Rajendra vs State Of U.P. on 16 July, 2010 - 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