Mahabir And Another vs State Of U.P.
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4								   A. F. R.
 

 
Case :- CRIMINAL APPEAL No. - 164 of 1984
 

 
Appellant :- Mahabir and Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.C. Sharma,R.B. Sahai,Upendra Upadhyay
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Rajiv Gupta,J.

(1) Heard Sri Upendra Upadhyay, learned counsel for the appellant and Sri J. K. Upadhyay, learned A.G.A. for the State.

(2) This appeal has been filed by appellants-Mahabir, Dalveer and Brij Nath against the judgment and order dated 9.1.1984 passed by Special Judge (E. C. Act) Etah in S.T. No. 104 of 1983 (State Vs. Mahabir and two others) by which Mahabir A1 was convicted and sentenced to imprisonment for life under Section 302 I.P.C. Mahabir A1 was further convicted and sentenced to four years rigorous imprisonment under Section 323/34 I.P.C. along with Dalveer A2 and Brij Nath A3.

(3) Record shows that Brij Nath A3 has died during the pendency of this criminal appeal and qua Brij Nath A3 this appeal was dismissed as abated by order dated 28.2.2017 passed by another co-ordinate Bench of this Court comprising of Hon'ble Ramesh Sinha, J. and Hon'ble Krishna Pratap Singh, J.

(4) The prosecution story is as follows :

Accused-Mahabir A1 and Dalvir A2 are the real brothers being son of Brij Pal. Brij Nath A3 is the brother of Brij Pal. These accused intended to construct a house in the land of Gaon Samaj but Sughar Singh and Jograj Singh were objecting to such constructions and had demolised the 'mend' of the accused. The house of informant, Champat Singh P. W. 4 is situated in the abadi of village Nagla Chandi, hamlet of Bhadki, P. S. Aliganj, District Etah. It has its door towards north. There is a Chabutra to the north and west of this house. Jograj Singh was the brother of P. W. 4 Champat. He was issueless. On 3.12.1982 Jograj Singh, P. W. 4 Champat Singh, P. W. 2 Shyam Singh and Jai Singh were sitting on this Chabutra. At about 12 noon, accused-Mahabir A1 armed with a country made pistol and the remaining accused armed with lathis reached the house of P. W. 4 Champat Singh. They were hurling abuses and saying as to how has Sughar Singh broken the "mend". When Jograj Singh intervened and asked as to whom they are abusing, Mahbir A1 stated that Jograj Singh has got the mend broken and is not allowing the accused to complete the house in the land of gaon samaj and that the accused will now deal with Jograj Singh. All the three accused-appellants advanced with a common intention to commit the murder of Jograj Singh and Mahabir A1 fired a shot which hit Jograj Singh in his abdomen. The pellets also hit Sridevi and her husband P. W. 4 Champat Singh who were standing nearby. When P. W. 4 Champat Singh cameforward, accused-Dalvir A2 and Brij Nath (deceased A3) caused injuries to him with lathis. During the occurrence, Jai Singh and Sughar Singh also reached at the place of occurrence and saved P. W. 4 Champat Singh. The accused-appellants went away towards west.

(5) P. W. 4 Champat Singh and others took Jograj Singh to Primary Health Centre, Aliganj where the treatment was given to him. Jograj Singh did not respond to the treatment and succumbed to the injuries at 5 P.M. P. W. 4 Champat Singh dictated the first information report Ext. Ka4 to Virendra Singh and lodged it at police station at 5:15 P.M. Clerk-Constable Ratan Singh prepared the chek F.I.R. Ext. Ka5 and made the general diary entry. The investigation was handed over to P. W. 6 Sub-Inspector Ashok Kumar Rawat, Station Officer, Aliganj, who recorded the statements of P. W. 4 Champat Singh, Constable Ratan Singh and Hamir Singh. He went to Primary Health Centre, Aliganj but could not conduct inquest because it had become dark by that time.

(6) In the morning of 4.12.1982, P. W. 6 Sub-Inspector Ashok Kumar Rawat revisited the hospital, appointed panches and prepared inquest report Ext. Ka6 and allied papers Ext. Ka8 to Ext. Ka11. He sealed the dead body and sent it for postmortem examination with two constables. He also took in possession bloodstained clothes-Angocha Ext. 1, Dhoti Ext. 2, bloodstained quilt Ext. 3 and prepared fard Ext. Ka12. He visited the spot and prepared the site plan Ext. Ka13. He took the bloodstained and simple earth in police custody from the place of occurrence and prepared fard Ext. Ka14 regarding these samples Exts. 4 and 5. He searched the house of the accused-appellants and prepared fard Ext. Ka15. He recorded the statements of remaining witnesses.

(7) The police sent P. W. 4 Champat Singh for medical examination and he was immediately examined at District Hospital Etah by P. W. 2 Dr. O. P. Vaidya at 12:15 P.M. On 4.12.1982, P. W. 3 Dr. O. P. Vaidya found a lacerated wound on the back of the left ear, an abraded contusion on the back of the neck and a traumatic swelling on the dorsal aspect of right hand of P. W. 4 Champat Singh. All these injuries were simple in nature and caused by blunt object. He prepared report Ext. Ka2.

(8) Injured-Sridevi was medically examined by P. W. 1 Dr. Raja Ram at Primary Health Centre, Aliganj at 1:30 P.M. on 6.12.1982. P. W. 1 Dr. Raja Ram found one firearm wound 0.25 cm x 0.25 cm in between the ring and middle finger of the left hand and corresponding wound of exit on the opposite side of the left hand. The injuries were simple in nature and caused by some firearm about three days back. He prepared injury report Ext. Ka1.

(9) The postmortem examination on the dead body of deceased-Jograj Singh was conducted by P. W. 3 Dr. G. C. Agarwal, Medical Officer, District Hospital Etah at 4 P. M. on 4.12.1982. The doctor found following antemortem injuries on the body :

(i) Multiple firearm wounds of entry each 0.25 cm x 0.25 cm. Some of these wounds were skin deep while others were muscle deep and some were cavity deep. They were spread on the whole of the right side of abdomen and the upper third part of the right thigh.

(ii) Abraded contusion 6 cm x 3 cm on the upper left scapular area.

(10) Hematoma was present in the layers on the right side of abdomen. Peritoneum was lacerated. Abdominal cavity contained 2 Oz of free and clotted blood. 17 pellets were recovered from abdominal cavity while 9 pellets were recovered from the muscles of thigh and abdomen. On probe of injury no. 1, 6 Oz of semi digested food was found in the abdomen, intestines and gallbladders were lacerated. Faecal matter was present in large intestine. In the opinion of the doctor, the death was caused due to shock and haemorrhage resulting from antemortem injury no. 1 about one day before the postmortem examination. The doctor prepared the postmortem report Ext. Ka3 and sent the clothes found over the dead body and 26 pellets recovered from the dead body to the police.

(11) After concluding investigation, P. W. 7 Ashok Kumar Rawat, I.O. of the case filed charged sheet Ext. Ka16 against all the accused on 17.1.1983 before C.J.M. Etah.

(12) Since the offences mentioned in the charge sheet were triable exclusively by the Court of Sessions, C.J.M. Etah committed the case for the trial of the accused to the Court of Sessions Judge, Etah where their case was registered as S.T. No. 104 of 1983 and made over for trial from there to Special Judge (E.C. Act) Etah who on the basis of the material collected during investigation and after affording opportunity of hearing to the prosecution as well as the accused framed charge under Sections 302, 307 and 323 read with Section 34 I.P.C. against Mahabir A1 while the charge under Sections 302/34, 307/34 and 323/34 I.P.C. against Dalvir A2. The accused-appellants abjured the charge and claimed trial.

(13) The prosecution in order to prove its case examined two eye-witnesses namely P. W. 4 Champat Singh and P. W. 5 Shyam Singh. Besides, the prosecution examined P. W. 1 Dr. Raja Ram, P. W. 2 Dr. O. P. Vaidya, P. W. 3 Dr. G.C. Agarwal, P. W. 6 Constable Prabhu Dayal, who took the dead body for postmortem exmination and P. W. 7 Ashok Kumar Rawat, I.O. of the case as formal witnesses.

(14) The accused-appellants in their statements recorded under Section 313 Cr.P.C. pleaded not guilty and alleged false implication due to enmity and party bandi. They further stated that deceased-Jograj Singh had given his land to the appellants which was not appreciated by informant, P. W. 4 Champat Singh and became inimical towards them. When some unknown persons committed the murder of Jograj Singh, P. W. 4 Champat Singh filed false report against the appellants. The accused-appellants did not examine any witness in defence.

(15) The learned Special Judge (E.C. Act) Etah after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record both oral as well as documentary convicted the appellants under the aforesaid offences and awarded aforesaid sentences to them.

(16) Hence this appeal.

(17) Learned counsel for the appellants submitted that the prosecution having failed to prove the motive for the appellants to commit the murder of Jograj Singh, hence the recorded conviction of the appellants cannot be sustained. The false implication of the appellants in the murder of Jograj Singh at the behest of P. W. 4 Champat Singh who was admittedly inimical towards the accused after some unknown persons had shot dead Jograj Singh is apparent on the face of the record. He lastly submitted that it is proved from the evidence on record that the incident was neither preplanned nor premeditated and the murder was committed in the heat of moment and hence the offence if any committed by the appellants does not travel beyond Section 304 part II I.P.C. and in view of the above the recorded conviction of the appellants is liable to be altered to one under Section 304 part II I.P.C. and the sentence of life imprisonment awarded to them palliated to a lesser period of imprisonment.

(18) Per contra Sri J. K. Upadhyay, learned A.G.A. appearing for the State-respondent submitted that it is proved from the evidence on record that Jograj Singh was murdered by the appellants in pursuance of the common object and hence neither the recorded conviction of Mahabir A1 under Sections 302, 323/34 I.P.C. while Dalvir A2 under Section 323/34 I.P.C. nor the sentences awarded to them are liable to be altered. This appeal lacks merit and is liable to be dismissed.

(19) Following questions are arising for our consideration in this appeal :

(i) Whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not ?

(ii) Whether after the prosecution case as spelt out in the F.I.R. and later testified by the two witnesses of fact is liable to be accepted to be true or not ?

(iii) Whether even in the event of the entire prosecution case the recorded conviction of the appellants under Sections 302 is liable to be altered to one under Section 304 part II I.P.C. and the sentence of life imprisonment awarded to them palliated to a lesser period of imprisonment ?

(20) According to the evidence of P. W. 3 Dr. G. C. Agarwal, the death of Jograj Singh was caused about one day before the postmortem examination which was conducted at 4 P. M. on 4.12.1982. He further deposed that there could be maximum variation of four hours in his estimate time of death. This fact supports the prosecution version that death took place roughly around the time mentioned in the F.I.R. The postmortem report of the deceased Ext. Ka3 indicates the presence of semi digested food in the abdomen faecal matter in the large intestine while the small intestine were empty. This shows that deceased had taken food about 4-6 hours before his death. This also supports the prosecution version that the death took place about 5 P.M. Although it has been argued on behalf of the appellants that the occurrence had taken place in the night while the deceased and the witnesses were returning from some where and they had not identified the assailants but the aforesaid argument does not have any merit. According to the prosecution version the death took place about 5 hours after the deceased had received gunshot injuries. No suggestion has been given to P. W. 3 Dr. G. C. Agarwal that the injuries sustained by the deceased were of such nature that the death would have been caused immediately. The postmortem report of the deceased shows that the pellets did not cause any damage to her lung or brain and the possibility of instantaneous death was thus remote. P. W. 3 Dr. G.C. Agarwal further shows that the deceased was alive and he was taken to the hospital and was wearing only a dhoti and a vest at the time of the occurrence. The inquest report of the deceased does not indicate that the deceased was wearing any shirt at the time of inquest. Thus, the appellants' contention that the deceased was shot while he was returning with the witnesses from somewhere has no merit. The medical evidence on record thus fully corroborates the time of incident mentioned in the F.I.R.

(21) The evidence of P. W. 4 Champat Singh is of utmost importance in view of the fact that he had also received injuries in the occurrence. We have very carefully gone through the evidence of P. W. 4 Champat Singh and P. W. 5 Shyam Singh.

(22) P. W. 4 Champat Singh in his evidence has fully supported the prosecution case as spelt out in the F.I.R. which finds full corroboration from the testimony of P. W. 5 Shyam Singh. Both P. W. 4 Champat Singh and P. W. 5 Shyam Singh have stated that the shot was fired at the deceased from a distance of about 8 steps and this fact finds full support from the medical evidence. Their statements show that when the appellants came to Chaupal, the deceased-Jograj Singh and Sridevi who were basking under the sun in the month of december stood up, deceased-Jograj Singh was standing in the north of P. W. 4 Champat Singh and Sridevi was in the east of P. W. 4 Champat Singh with their faces northwards, deceased-Jograj Singh had turned towards his east little when the shot was fired which hit him in his abdomen. The postmortem report also indicates the direction of injury was found to be straight and backward. The seats of the various firearm wounds found on the dead body of Jograj Singh and on the person of Sri Devi support the version of the prosecution.

(23) P. W. 4 Champat Singh and P. W. 5 Shyam Singh have further deposed that the appellants had constructed their house on the land of gaon samaj to which Jograj Singh and others had objected. Jograj Singh and Sughar Singh demolished the kutcha foundation raised by the accused-appellants which enraged them and they came abusing Sughar Singh and went towards the house of Sughar Singh, Sughar Singh was not present and when Jograj Singh intervened he was shot dead.

(24) Thus, from the evidence of P. W. 4 Champat Singh and P. W. 5 Shyam Singh, it is established that Mahabir A1 was the author of the injuries which resulted in the death of Jograj Singh but at the same time from their evidence inter alia proved that there were no enmity between Jograj Singh and the accused-appellants; that they were enraged on coming to know that kutcha foundation had raised by them on gaon sabha land had been demolished by deceased-Jograj Singh and Sughar Singh; that at the first place they were going towards the house of Sughar Singh abusing him but they did not find Sughar Singh in his house and when Jograj Singh intervened he was shot dead; that although Sughar Singh came afterwards but the accused-appellants shot at Mahabir A1. They did not wait to cause any injury to Sughar Singh and ran away. Thus, it is apparent in the background of the foregoing discussion that the murder was committed in the heat of moment in view of the same, was neither preplanned nor premeditated. The postmortem report of the deceased shows multiple area of firearm wound of entries over an area of 0.25 cm x 0.25 cm on right thigh and right side of the stomach of the deceased which is on non vital part. No second shot was fired. The firing was not repeated. As far as the firearm injuries received by P. W. 4 Champat Singh and Sridevi are concerned, it is apparent from the evidence of P. W. 4 Champat Singh and P. W. 5 Shyam Singh that the dispersal pellets from the bullets fired by Mahabir A1 at Jograj Singh caused firearm injuries to Sridevi. Dalvir A2, according to the witnesses he was armed with lathi and he had wielded lathi blows but the postmortem report of deceased-Jograj Singh and the injury report of Sridevi indicate that they had not received any lathi injury and it was injured-Sridevi alone whose injury report indicates one firearm wound 0.25 cm x 0.25 cm in between the ring and middle finger of the left hand and corresponding wound of exit on the opposite side of the left hand. The injuries were simple and caused by some firearms about three days back.

(25) Thus, upon a wholesome consideration of the facts and circumstances of the case and a critical evaluation of the evidence on record, we find that although the prosecution has succeeded in proving that the incident had taken place in the manner as narrated in the F.I.R. and as well as the participation of the accused-appellants but at the same time it is also proved from the prosecution that the incident was neither preplanned nor premeditated and hence the conviction of Mahabir A1 recorded under Sections 302 I.P.C. cannot be sustained and is liable to be altered to one under Section 304 part II I.P.C. The three questions framed by us are decided accordingly.

(26) Since the conviction of Mahabir A1, under Sections 302 I.P.C. has been altered to one under Section 304 part II I.P.C., we palliate the sentence of life imprisonment awarded to him by the trial court to seven years rigorous imprisonment.

(27) As regards the conviction of Mahabir A1 and Dalveer A2 recorded under Section 323/34 I.P.C. and the sentence awarded to them for their conviction under the aforesaid sections, are affirmed.

(28) The appeal accordingly succeeds and is allowed in part qua Mahabir A1. As far as Dalveer A2 is concerned, the appeal stands dismissed.

(29) Record further shows that the appellants are on bail. Their sureties and bail bonds are discharged. They shall be taken into custody and sent to jail for serving out the remaining part of their modified sentences. The impugned judgment and order stands modified to the extent indicated hereinabove.

(30) However, keeping in view the provisions of Section 437-A Cr.P.C., appellants are directed to forthwith furnish a personal bond in the sum of Rs. One lakh and two reliable sureties in the like amount before the trial Court, (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the Instant Judgment or for grant of leave, the appellants on receipt of notice thereof shall appear berfore the Hon'ble Supreme Court.

Order Date :- 18.5.2018

SA