Sanju & Others vs State Of U.P.
2012 Latest Caselaw 6094 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved
 

 
                   CRIMINAL  APPEAL NO.5036 of 2005
 

 
1. Sanju 
 
2. Balwant 
 
3. Bhoop Singh 
 
    all sons of Bhagwati
 
4. Bhagwati son of Baburam
 
    All residents of village Saindal, Post office Saindal, P.S. Atrauli,
 
    District Aligarh.
 

 

 
                                                                                          ...Appellants
 
	                             Versus   
 

 
State of Uttar Pradesh
 
                                                                                    ...Respondent
 
                          
 
Counsel for the appellants :-Sri Ratan Singh, Advocate
 
                                               
 
Counsel for the respondent:- Sri Rajeev Ojha, Brief holder and
 
                                                   Ms. Usha Kiran, AGA
 
	
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

( Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard Sri Ratan Singh, learned counsel for the appellants, Sri Rajeev Ojha, brief holder and Ms. Usha Kiran, learned AGA and perused the record.

2. This criminal appeal has been filed challenging the validity and correctness of the judgment and order dated 14.11.2005 passed by the Additional Sessions Judge, Court No.8, Aigarh convicting and sentencing appellant no.4, Bhagwati under Section 302/34 IPC to undergo life imprisonment with a fine of Rs.5,000/- and under Section 307/34 IPC to undergo 7 years' RI and fine of Rs.3,000/-. The impugned order further provides that in default of payment of fine of Rs.5,000/- under Section 302/34 IPC, the accused-appellant to undergo a further period of imprisonment of one month and in default of payment of fine of Rs. 3,000/- under Section 307/34 IPC to undergo a further period of imprisonment of 15 days; that further convicting and sentencing appellant no.3, Bhoop Singh under Section 302 IPC to undergo imprisonment for life and a fine of Rs.5,000/-, under Section 307/34 IPC to undergo RI for a period of 7 years with a fine of Rs.3,000/- and in default of payment of fine under Section 302 IPC amounting to Rs.5,000/- to further undergo imprisonment for a period of one month and in default of payment of fine under Section 307/34 IPC amounting to Rs. 3,000/-to further undergo imprisonment for a period of 15 days.

3. The Court below has further convicted and sentenced appellant nos. 1 and 2 namely, Sanju and Balwant under Section 307 IPC to undergo RI for a period of 7 years and a fine of Rs.3,000/- and in default of payment of fine to further undergo imprisonment of 15 days. They have also been convicted and sentenced under Section 302/34 IPC to undergo life imprisonment with a fine of Rs. 5,000/- and in default of payment of fine amounting to Rs.5,000/- to undergo for a further imprisonment of one month. All the sentences were ordered to run concurrently.

4. The judgment and order is challenged on the ground that the conviction of the appellants is against the weight of evidence on record, the conviction of the appellants is bad in law and the sentence is too severe.

5. The prosecution case is that informant Rakesh Kumar and Chandra Pal sons of Mangal Singh are real brothers. The informant in his written report submitted at police station Atrauli, District Aligarh alleged that they had purchased bricks for construction of their house in their village Sahnaul. Due to paucity of space they had got unloaded the bricks and stacked near the well on the land of Gram Samaj. On 11.8.2003 at about 4.30 P.M. Bhagwati son of Babu Ram, Bhoop Singh, Sanju Singh sons of Bhagwati Singh and Balwant Singh himself came to their house armed with country made pistols and started abusing them saying that why complainant's family had illegally stacked the bricks on their land. On this Chandra Pal, the brother of the complainant said to them that they will remove the bricks in 2 to 4 days and no harm is being caused to them by stacking of the bricks. At this Bhagwati Singh exhorted " IN SALO KO JAN SE MAR DO". Hearing this Bhoop Singh fired at the chest of Chandra Pal who died on the spot. Sanju and Balwant then fired upon the complainant in order to kill him but he ran behind the wall to save his life and raised alarm. Thereafter he tried to run inside his house when Bhagwati Singh assaulted him by lathi. On hearing the sound of retort of the firearms Karan Singh son of Chhatrapal Singh, Radhey Shyam son of Bhup Singh, Ram Phal Singh son of Babu Ram and many other persons of the village came,who challenged the accused persons. They flashing their country made pistols ran out of the village.

6. The complainant in his written report requested the police for legal action against the accused which was scribed by Sheoraj Singh son of Sri Durga Das resident of village Sahnaul, P.S. Atrauli, District Aligarh. On the basis of which G.D. entry was made at sl. no. 136 and case crime no. 199 of 2003 under Sections 302/307/323 and 504 IPC was registered against Bhagwati son of Babu Ram, Bhup Singh, Sanju Singh and Balwant Singh all sons of Bhagwati Singh, investigation whereof was entrusted to SSI Veerpal Singh.

7. On 14.8.2003 at 4.55 A.M. accused Bhoop Singh, Sanju and Balwant Singh were arrested by the police. A country made pistol 315 bore and a live cartridge 315 bore were recovered from possession of accused Bhoop Singh. On the basis of this recovery case was registered against accused Bhoop Singh son of Bhagwati under Section 25/27 of the Arms Act. This case was investigated by S.I. Sri Radhey Shyam. The Investigating Officer instructed S.I. Asha Ram Yadav to conduct the inquest. He prepared the papers relating to inquest and recovery memo of blood stained and plain earth on 11.8.2003. Injured Rakesh was got examined by Dr. A.K. Purwani, Medical Officer ( Anasthetisa), C.H.C. Atrauli, Aligarh and found following injuries on his person.

1.Contusion 5 cm. x 2 cm. on the left shoulder region 2 cm. below tip of shoulder. Red in colour.

2.Contusion 12 cm. x 3 cm. on the medial aspect of left thigh 8 cm. from knee joint. Red in colour.

3.Contusion 13 cm. x 3 cm. on the medial aspect of left thigh 2 cm. from knee joint Red in colour.

4.Contusion 9 cm. x 2 cm. on back of right side thigh, 13 cm. from knee joint. Red in colour.

5.Contusion 9 cm. x 2 cm. on back of right side thigh, 10 cm. from knee joint. Red in colour.

6.Lacerated wound 0.5 cm. x 0.5 cm. on the medial aspect of left side leg, 6 cm. below knee joint. Red blood clotted present. Margin irregular.

8. The Doctor opined that all the above injuries were fresh, simple in nature and were caused by hard blunt object and could be caused within 12 hours.

9. The post mortem on the cadaver of deceased Chandrapal Singh son of Mangal Singh resident of village Sahnaul, P.S. Atrauli, District Aligarh was conducted by Dr. Heera Singh on 12.8.2003 at about 3.30 P.M. The external examination of the body of the deceased showed that he was a man of average built body. Rigor mortis was present over both upper and lower extremities. Eyes and mouth were closed. On internal examination it was found that left and right side pleura were lacerated, left pleural cavity contained 1/2 litre of blood, right lung,pericardium and heart were lacerated, stomach contained about 100 grams of pasty fluid, small and large intestines contained liquid, gases and faecal matters, gall bladder was 1/2 full, both the kidneys were pale, bladder was half full.

10. Following ante-mortem injuries were found on the person of the deceased.

1.Firearm wound of entry 2 cm. x 1.5 cm. x chest cavity deep on the front of left side chest over the clavicle left bone underlying bone #, 2 cm. outer to the sternum and 9 cm. above the left nipple at 11 'O' clock position. Blackening present around the wound. Scorching and tattooing present in an area of 19 cm. x 16 cm. around the wound.

2.Firearm wound of exit 2.5 cm. x 2 cm. x chest cavity deep on the back of left side chest.3 cm. outer to the mid line and 5 cm. below upper border of chest connected with injury no.1. Direction-posteriorly upward.

11. In the opinion of the Doctor the death was caused due to shock and haemorrhage as a result of the ante-mortem injuries.

12. On submission of the chargesheet in the Court below charges under Sections 302/34 and 307/34 IPC were framed against accused-appellant Bhagwati, Charges under Section 302 and 307/34 IPC were framed against accused Bhup Singh and charges under Sections 307 and 302/34 IPC were framed against accused-appellants Sanju and Balwant by the trial Court to which they pleaded not guilty and claimed to be tried. Accused Bhoop Singh was further charged under Section 25/27 Arms Act and he denied the charge.

13. The prosecution examined nine witnesses namely, Rakesh, P.W.1, Ram Phal, P.W.2, Asharam Yadav, S.O.,P.W.3, Dr. Heera Singh, P.W.4, Dr. Anil Kumar Purwani, P.W.5, Virpal Singh,S.I. P.W.6, Constable Surendra Babu, P.W.7, Anil Kumar Chaudhari, Inspector of P.S. Iglas, P.W.8 and Radhey Shyam Sarswat (retd. S.I.), P.W.9 in support of its case whereas the accused persons were examined under Section 313 Cr.P.C. wherein they stated that they had been falsely implicated in this case due to 'partibandi' and enmity. They have not produced any witness in their defence.

14. Upon hearing learned counsel for the parties and after appreciating the evidence on record the trial Court vide its judgment and order dated 14.11.2005 convicted and sentenced the accused-appellants in the manner as stated above in this judgment.

15. The learned counsel for the appellants assailing the impugned judgment and order submits that there is no motive for the incident and in any case the motive of 'partibandi' due to election is insufficient. The case of the appellants is of sudden provocation and therefore, it would fall under Section 304 Part II IPC. The counsel submits that there was no enmity between Bhup Singh and deceased Chandrapal Singh as it is borne out from the record that they were neighbours, working as labourers together in Aligarh and had come together to their village a day before 'Rakshbandan' on 12.8.2003 i.e. a day prior to the incident; that the case of the appellants is of total denial under Section 313 Cr.P.C. wherein they stated to have been falsely implicated due to 'partibandi' and appellant no. 2 to have been falsely implicated due to enmity showing farji injuries and as such lodging of the FIR has been delayed. It is stated that there are discrepancies in the statement of the witnesses as injured witness stated that when he came back after medical examination of his injuries deceased Chandrapal was lying on the spot and the appellants have been falsely implicated by showing fake injuries. However, in evidence it has come out that the police had come at the place of occurrence at 6.30 P.M. and had prepared inquest report and body was taken away by the police at 8.30 P.M. According to him, this contradiction in the statement of injured completely belies the story of the prosecution and in any case,the witnesses are partisan and that witnesses Ram Phal and Rakesh were not even present at the place of occurrence.In this regard he has relied upon the statement of Rakesh Kumar, P.W.1, the relevant extract of which reads thus:-

" eSa jktohj flag eksVj lkbfdy ls Fkkus djhc 6 cts 'kke igqWp x;s Fks tks gekjs xkao ls 6&7 fdyksehVj nwj FkkA djhc 5.30 cts 'kke xkao ls Fkkus dks pys FksA Fkkus ij njksxk th feys FksA fjiksVZ xkao ls fy[kok dj ys x;s Fks njksxk ds iwNus ij ?kVuk ds ckjs esa crk fn;k FkkA Qdhj pUnz ds pcwrjs ij cSBdj fjiksVZ fy[kok;h Fkh ml le; esjs o ys[kd ds vykok ?kVuk ds rhuksa izR;{kn'khZ o dqN vU; yksx Hkh ekStwn FksA Fkkus ij fjiksVZ fy[kkdj ogka ls ge ckil ?kj x;s vkSj ogkW ls djhc 12 cts jkr vrjkSyh vLirky x;k tgkW esjk MkDVjh eqvk;uk gqvkA tc Fkkus ls ykSVdj vk;s rc yk'k ekSds ij iM+h FkhA iqfyl okyksa us ekSds ij fy[kk i<+h dh FkhA iqfyl okyksa us fdlh dkxt ij esjk fu'kkuh vaxwBk ugh yxok;kA -------------------------------------

ckbZ fMQsUl%& ;g dguk xyr gS fd ?kVuk ysdj iqfyl us eq>s vyhx<+ ls cqyok;k gks rFkk ;g dguk Hkh xyr gS fd eSus eqyfteku ds f[kykQ >wBh fjiksVZ fy[kkbZ gksA ;g dguk Hkh xyr gS fd eSus QthZ pksV cuokdj viuk MkDVjh eqvk;uk djk;k gks^^

16. Per contra, Sri Rajeeva Ojha, brief holder submits that the factum of incident has not been denied and the appellants have although challenged their conviction under Sections 302/34 and 307/34 IPC but they have only pleaded for consideration of their case under Section 304 Part II IPC.

17. It is argued by him that no case of sudden provocation has been made out for considering the case of the appellants under Section 304 Part II IPC. He submits that from a plain reading of the FIR it is clear that Chandrapal brother of complainant Rakesh had not given any sudden and grave provocation to the accused persons and had only stated that he will remove the bricks in 2 to 4 days which cannot be said to be a a case of grave and sudden provocation, rather his reply amounts to acceptance of the reason for removing the bricks by him. It is stated that it appears from the record that the land on which the complainant had unloaded their bricks belonged to Gram Sabha which the accused persons were claiming as theirs; that a plain reading of the FIR and the record also shows that there was no dispute amongst the complainant's family and the accused persons with regard to the said land.

18. As regards motive it is stated that in view of the direct evidence of the incident available on record the motive, which is locked in the mind of the accused looses its significance. Repelling the arguments advanced by the learned counsel for the appellants that Farji injuries of lathis were shown on the body of Rakesh Kumar. He submits that not only injured eye witness has given the account of the incident, in the FIR that he was beaten by lathi but the injuries were found to be noted in the G.D and also proved by his statement which is in consonance with the medical evidence and the alleged discrepancies pointed out by the appellants are not material or fatal and can be attributed to fading memory due to lapse of time between the time of incident and recording of statement of the witness in the court. It is urged that the FIR is prompt and the injured was also sent with Chithi Majrubi where the doctor had found the injuries on his person. Therefore, it cannot be said that by any stretch of imagination that there was any Farji or even self-inflicted injuries. He lastly submits that the witnesses to the incident were present at the place of occurrence and Ram Phal, who is a witness, is not the same person,who had gone to the police station and whose name finds place in the G.D. in the police station or had given his statement under Section 161 Cr.P.C. It is lastly submitted that the Supreme Court has firmly laid down that the statement of a witness who is alleged to be a partisan, if otherwise is reliable, credible and trustworthy cannot be discarded. However, the Court should in that event scrutinize the statement of such witness closely with care and caution before drawing conclusions on the basis of his testimony.

19. After hearing learned counsel for the parties and on perusal of the record as well as the judgment of the Court below we find that the trial Court has come to the conclusion on basis of evidence on record that the incident had taken place on 11.8.2003 at 6.10 P.M.; that case of the prosecution is completely supported by oral evidence of the injured as well as medical evidence of the doctor and papers such as the post mortem examination report of the deceased. Considering the arguments of the learned counsel that witnesses were not present on the spot it has been considered by the court below in the judgment which reads thus.

"vc ns[kuk ;g gS fd D;k oknh o xokg jkeQy ?kVukLFky ij Fks vFkok ugh tSlk fd vfHk;kstu dk dFku gSA vfHk;qDrx.k ds fo}ku vf/koDrk us dgk gS fd ;g nksuksa xokg ?kVukLFky ij ugh Fkh vkSj buds }kjk dksbZ ?kVuk ugh ns[kh xbZ gSA oknh jkds'k dqekj tks pqVSy xokg gS rFkk erd dk HkkbZ Hkh gS] blds ckjs esa ;g vuqeku fudkyk tk ldrk gS fd og ?kVukLFky ij Fkk D;ksafd lkekU;r% pqVSy xokg ds ckjs esa ;g vo/kkfjr fd;k tk ldrk gS fd og ?kVukLFky ij Fkk ijUrq fQj Hkh U;k;ky; ds fy, ;g vko';d gksrk gS fd ,sls xokg dh lPpkbZ dks rksysA vr% xokg jkds'k dqekj dh xokgh dh lPpkbZ dks ns[kus ds lkFk gh mldh mifLFkfr dks Hkh ns[kuk vko';d gksxkA

jkds'k dqekj ih0MCyw0 1 dh vkykspuk vfHk;qDrx.k dh vksj ls bl vk/kkj ij dh xbZ gS fd og e`rdk dk fj'rsnkj Fkk] bl dkj.k ls mldh xokgh ij fo'okl ugha fd;k tkuk pkfg;sA eSa vfHk;qDrx.k ds fo}ku vf/koDrk dh bl cgl ls lger ugh gWw D;ksafd ek= bl vk/kkj ij fd p'enhn xokg e`rdk utnhdh fj'rsnkj gS] mldh xokgh dks ckgj ugh Qsadk tk ldrk] tSlk fd 1996] lh0,0vkj0 ist 297 foysyh vkfn cuke rfeyukMq jkT; esa fn;k x;k gSA blh lanHkZ esa [email protected],l0lh0lh0 ist 21 vkyexhj cuke jkT; esa ;g fn;k x;k gS fd vxj lk{kh dh lk{; fo'oluh; gS rks ek= bl vk/kkj ij mldh lk{; dks ckgj ugh Qsadk tk ldrk fd og e`rdk dk fj'rsnkj FkkA blh lanHkZ esa vfHk;kstu dh vksj ls esjs le{k [email protected],l0lh0lh0ist 456 m0iz0 jkT; cuke txnso vkfn dks izLrqr fd;k x;k gS] ftlesa ;g fl}kUr izfrikfnr fd;k x;k gS fd vxj xokg e`rd ds fj'rsnkj gSa rks ek= muds fj'rsnkj ds dkj.k mudh lk{; dks ckgj ugh Qsadk tk ldrkA

tgka rd e`rd ds HkkbZ jkds'k dqekj ih0MCyw0 1 ds fgrc) lk{kh gksus dk iz'u gS] esjs fopkj ls mldh fj'rsnkjh ds rF; ls mldh lk{; dh dher esa c<+ksRrjh gksxh D;ksafd ,0vkbZ0vkj0]1971 ,l0lh0 ist 296 vaxuw vkfn cuke m0iz0 jkT; esa fn;k x;k gS fd vxj xokg e`rd dk HkkbZ gS rks mldh fj'rsnkjh ls mldh lk{; esa vfHko`f) dj nh D;ksafd HkkbZ dk ea'kk gksxk fd lgh vkneh dks ltk feys vkSj funksZ"k vkneh u QlsA"

The case of the accused-appellants therefore, would not fall within the ambit of Section 304 Part II IPC as from a plain reading of the FIR and the statement of injured eye-witnesses of facts no case of grave and sudden provocation is made out. Moreover, if that would have been the case, there was no occasion for the appellants to have come to the house of deceased Chandrapal armed with country made pistols and lathis. This not only shows the intention of the accused-appellants but also the knowledge of common object for which they had come when they had opened fire upon the complainant's family falsely alleging stacking of bricks by them on the land of the appellants. The contention of learned counsel for the appellants therefore that there was no motive or premeditation for committing the crime is incorrect and is not acceptable. The motive lies in the mind of the accused. It is apparent that the appellants had come in a preplanned manner to commit the crime and had not only fired upon the deceased but had also fired at the injured and had beaten him with lathi. The seat of injury on his chest at the heart caused to the deceased was fatal which is supported by the record as well as the ocular version account of the occurrence.

20. Accused Balwant in his statement under Section 313 Cr.P.C. stated that he has been falsely implicated in the case due to enmity whereas accused persons Sanju, Bhup Singh and Bhagwati Singh had pleaded false implication due to 'partibandi'. Therefore, it can safely be said that there was 'partibandi' and enmity admitted by the accused-appellants for the occurrence.

21. There may not have been enmity between the accused-appellants and the complainant and his family. However, the cause of the incident seems to have arisen from discontent stamped-out from the facts that the complainant had stacked bricks on the land of the Gram Sabha which the accused-appellants claimed to be theirs. The complainant had no intention of having any quarrel and they had informed the appellants that they will remove the bricks within 2-3 days and it is not in dispute whether there was Gram Sabha land or the land of the complainant. In the facts and circumstances of the case, it cannot be said that the case of the accused-appellants is of sudden provocation and would fall under Section 304 Part II IPC. The discrepancies pointed out by the learned counsel for the appellants are not material discrepancies and can be attributed to lapse of time between the incident having taken place and the time when the statement was given. It has come out from the record that the police had come at the place of occurrence at 6.30 P.M. and the body of the deceased was taken out by the police at 8.30 P.M. after inquest. Therefore, the FIR cannot be said to be ante-timed of even delayed as the incident is said to have taken place on 11.8.2003 at about 4.30 P.M. We have carefully perused the record and found that even though the witnesses are relatives, they have stood firmly by their deposition in the cross-examination conducted by the appellants' counsel. It may be noted that the appellants had stated 'partibandi' and one of them also stated enmity for lodging of the FIR against them. From the examination of the accused under Section 313 Cr.P.C. it is apparent that they had some motive, concealed in minds to have made them came at the residence of the complainant and fired upon them without any grave or sudden provocation. In view of the ocular evidence of the incident the motive becomes irrelevant. The factum of firing by the accused-appellants upon the complainant and his brother is established. In our considered opinion, The case of the appellants for consideration of Section 304 part II IPC is beyond the ambit of this Section and the accused-appellants have rightly been convicted and sentenced under Sections 302/34,307/34, 302 and 307 IPC by the trial Court.

22. No cogent reasons have been shown by the accused-appellants for their false implication in this case. In our opinion, the case of the appellants does not fall under Section 304 Part II IPC, therefore, they have rightly been convicted under Sections 302/34 and 307/34 IPC.

23. For the reasons stated above, the appeal fails and is accordingly, dismissed.

24. Appellants, Sanju, Balwant and Bhagwati are on bail granted by this Court vide order dated 23.11.2005. Their bail is cancelled. The C.J.M. concerned is directed to take them into custody to serve out the sentence awarded by the trial Court. Appellant Bhup Singh is in jail. He shall serve out the remaining sentence awarded by the trial Court.

25. Let a certified copy of this judgment be sent to the Court concerned for its immediate compliance which should be reported to this Court within two months.

Dated 18.12.2012

CPP/-