Babu Singh And Ors. vs State Of U.P.
2019 Latest Caselaw 3480 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 1
 
Judgment reserved on 02.04.2019
 
Judgment delivered on 25.04.2019
 
Criminal Appeal No. 1712 of 1984
 
Babu Singh and others vs. State of U.P.
 
Hon'ble Ramesh Sinha, J.

Hon'ble Dinesh Kumar Singh-I, J.

(Delivered by Hon'ble Ramesh Sinha, J.)

The present appeal has been filed by four accused-appellants out of which appellant no. 1 Babu Singh son of Shiva Singh died during the pendency of appeal. The appeal on his behalf has already been ordered to be abated by Co-ordinate Bench of this Court vide order dated 9.2.2018 and the present appeal survives with respect to appellant nos. 2, 3 and 4, namely, Ashok Singh son of Babu Singh, Ram Pal Singh son of Jai Narain Singh, Surendra Singh @ Pallahar son of Atma Shanker Singh only, hence the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellants.

The present appeal has been filed by the appellants against the judgment and order dated 24.5.1984 passed by IInd Additional Sessions Judge, Kanpur in S.T. No. 196 of 1983 convicting appellant no. 1 Babu Singh (now dead) under section 302 I.P.C. and appellant nos. 2 to 4, namely, Ashok Singh, Ram Pal Singh and Surendra Singh @ Pallahar under section 302/34 and sentencing all the appellants to undergo life imprisonment.

In the nutshell, the prosecution story is that in the night of 9.4.1983 at about 9 p.m., the deceased Sheo Ram Singh-father of P.W. 1 Har Mohan Singh, who is the informant of the case, was reciting Ramayana and the informant along with his mother and brother Raghunath Singh and cousin Rajendra Singh was listening the same in a room the doors of which were opened and in the Verandah lantern was burning on the ottoman (Takhat). At that moment, suddenly Babu Singh, who was armed with country made pistol, Ram Pal Singh son of Jai Narain Singh, Surendra Singh @ Pallahar son of Atma Shanker Singh and Ashok Singh son of Babu Singh, who were his neighbours and used to reside adjacent to his house, entered into the room. Accused Ashok Singh took the gun which was hanging in the room and accused Ram Pal Singh and Pallahar @ Surendra Singh dragged his father out of the room and brought him in the Verandah where accused Babu Singh shot at his father, who shouted and had fallen down. The informant and other people shouted and reached near the deceased. On the alarm raised by them, other persons of the village came at the spot and the aforesaid four accused persons went inside the house of Jai Narain Singh. He further stated that a litigation was going on between his father and Babu Singh, Ashok Singh, Ram Pal Singh and others with respect to an agricultural land on account of which his father was done to death by the accused persons. After the murder, the informant-Har Mohan Singh went to village Sheoli to the house of his aunt, namely, Phoolmati where a written report (Ex. Ka. 1) was scribe and signed by him and thereafter it was handed over at police station Sheoli. P.W. 3-Head Constable Shabbir Ahmad of police station Sheoli received the written report from Har Mohan Singh on 10.4.1983 and prepared the chik F.I.R. (Ex. Ka. 2) at 1:25 p.m. The case was entered by him in the G.D. vide copy (Ex. Ka. 3). The F.I.R. was registered as case crime no. 44 of 1983 under section 394, 302 I.P.C. against four accused persons including the appellants. The investigation of the case was conducted by P.W. 5 S.I. Badri Prasad Mishra. On 10.4.1983, he interrogated the informant Har Mohan Singh and others and recorded their statements under section 161 Cr.P.C. Thereafter, he visited the place of occurrence where the dead body of the deceased was lying in the Verandah. He took the dead body into his possession and drawn the inquest proceedings. Thereafter, the inquest and other police papers, i.e, (Exs. Ka-6 to 9) were prepared by him. After inquest, the dead body of the deceased was sealed and the same was dispatched along with other police papers for post mortem through Constable Raj Bahadur (P.W. 7) and Constable Santosh Kumar. The Investigating Officer prepared the site plan of the place of occurrence at the instance of Har Mohan Singh and proved the same as Ex. Ka-10. The lantern and the lit (Dipak) (material Exs. 1 and 2) which were reported to be the source of light in which the occurrence was seen, were found to be in working condition and a memo (Ex. Ka. 11) of the same was prepared. Material Exs. 1 and 2 were returned to Har Mohan Singh. One empty cartridge was also found in the Verandah near the dead body which was also collected and sealed and a memo (Ex. Ka. 12) was prepared. Blood was lying in the Verandah near the dead body. Blood stained and plain earth were collected from the Verandah and sealed in two separate packets and marked as Ex. Ka. 13. The police tried to search the accused named in the F.I.R. but they could not be apprehended nor gun which was stated to have been looted by accused Ashok Singh was also not recovered. The search memo (Ex. Ka. 14) was prepared by the Investigating Officer. On the same day at about 10 p.m., accused Ram Pal Singh was arrested by the Investigating Officer. The case property and accused Ram Pal Singh were brought to police station for further action. Thereafter, the Investigating Officer Badri Prasad Mishra was transferred and rest of the investigation was taken over by P.W. 6 Sub Inspector Gaya Prasad Maurya. On 26.4.1983, he received an information that accused Pallahar @ Surendra Singh surrendered in the Court. On 4.5.1983, he interrogated other witnesses and after completing the investigation submitted charge-sheet (Ex. Ka. 15) against the accused persons. The case property was sent by the Investigating Officer through Constable Raj Bahadur for chemical examination at Agra. The prosecution in evidence has tendered the report of the chemical examination (Ex. Ka. 16) according to which human blood was found on Baniyan, Janeo and key of the deceased. Blood stains were noticed on the other items sent for chemical examination but definite opinion could not be given. The prosecution has also filed certified copy of the judgment Ex. Ka. 17 given by the XIV Additional Munsif, Kanpur in a suit for cancellation of the sale deed filed by the deceased Sheo Ram Singh and others against accused Ram Pal Singh and others. The case was committed to the Court of Sessions and the trial Court framed charges against the accused persons for the aforesaid offence, who pleaded not guilty and claimed their trial.

The prosecution in support of its case has examined seven prosecution witnesses, i.e., P.W. 1 Har Mohan Singh-the informant of the case, P.W. 2 Rajendra Singh-eye witness of the occurrence, P.W. 3 Head Constable Shabbir Ahmad, P.W. 4 Dr. V.K. Srivastava, who conducted the post mortem of the deceased, P.W. 5 S.I. Badri Prasad Mishra, P.W. 6 Gaya Prasad Maurya and P.W. 7 Raj Bahadur Pandey.

The documentary evidence relied upon by the prosecution has been marked as Exs. Ka. 1 to 15.

The accused in their statements recorded under section 313 Cr.P.C. have denied the prosecution case and have stated that they have been falsely implicated in the present case.

Accused Babu Singh has stated that he is resident of district Etawah and in the night of occurrence he was at his house in village Baroli, District Etawah. He has been falsely implicated in the present case only on account of enmity with the police and influence of Raghuraj Singh over the police.

Accused Ashok Singh has also stated that he has been falsely implicated in the present case due to Raghunath Singh and the police of the locality.

Accused Ram Pal Singh has stated that he has been implicated in the present case at the instance of Raghunath Singh and also on account of litigation over the agricultural land with Raghunath Singh.

Accused Surender Singh @ Pallhar has stated that he has been implicated on account of police enmity.

The accused in their defence have filed four papers consisting of pass book of accused Babu Singh, two electoral rolls and photo copy of pension paper of accused Babu Singh and in addition to this they have examined two witnesses, i.e., D.W. 1 Ram Kishan and D.W. 2 Constable Ram Swaroop.

P.W. 1 Har Mohan Singh, who is the informant of the case and the son of the deceased has stated that his father Sheo Ram Singh on the date of incident at about 9 pm. in the night was reciting Ramayana in the light of lantern and he along with his brother Raghunath Singh and cousin brothers Raj Kumar and Rajendra Singh were listening the same. The doors of the room were opened and in the Verandah on the ottoman (Takhat) lit was burning. At that moment, accused Babu Singh, Ashok Singh, Ram Pal Singh and Surendra Singh @ Phallar entered into his house. Babu Singh was armed with a gun in his right hand. Ashok Singh was armed with country made pistol and rest of the accused were empty handed. Accused Suendra Singh @ Pallhar had lifted his father, who was reciting Ramayana and Ashok Singh took the gun which was hanging in the room. Accused Surendra Singh @ Pallhar and Ram Pal Singh dragged his father out side the room and brought him in Verandah where the accused Babu Singh shot at his father, who died on the spot. He along with other persons witnessed the incident and raised alarm on which several persons of the village arrived whose name he did not know. The accused after shooting the deceased had gone towards the house of accused Ram Pal Singh. There was litigation going on for several years with respect to an agricultural land between his father and Babu Singh, Ashok Singh, Ram Pal Singh and others on account of which they bore enmity, hence they have murdered his father. Thereafter, he had gone to village Sheoli to the house of his aunt Smt. Phoolmati and get written report prepared under his hand writing and signature (Ex. Ka.1) and submitted the same at police station Sheoli.

The witness in his cross examination has stated that there was litigation going on with respect to debt between his father and one Shiv Kirpal resident of Sitikpur and the decree was in favour of Shiv Kirpal but he did not know whether there was some altercation between his father and Shiv Kirpal on the same or not. The decree had taken place prior to the present incident. He is not aware of the fact that whether there was any litigation of mutation proceedings between his father and Baldev Singh or not. He is not aware of the fact that whether there was good relation between his father and Baldev Singh or not. He did not go to his house. He also did not know that whether there was any litigation between his father and one Rajjo regarding mutation or not. He was also not aware of the fact that whether Rajjo has filed any objection in the same or not. He was also not aware of the fact whether there was any litigation between Memna Dhanuk and one Shyam Lal with respect to agricultural land in which his father had done pairvi and got one and half bigha of the land of Memna. He was also not aware of the fact that whether there was any scuffle between Memna and his father and Memna had lodged a report. He also did not know that on 12.1.1979, his father had gone to the house of Shiv Kumar and did scuffle for which a report was lodged against his father. He does not know whether Babu Singh used to reside in district Etawah and also not aware of the fact that he had got a land there. He had showed his unawareness about the fact that Nanha Singh in the year 1978 had executed a sale deed in favour of accused Ram Pal and his brothers with respect to 8 bighas of land. He also do not know that Yadunath Singh in the year 1978 by way of a 'Will' deed had given all his properties and land of his brother Nanha Singh, which he had inherited, in favour of the sons of Jai Narain. The witness had stated in his cross examination that his father was sitting on a jute bag and the witness along with other persons were sitting on the floor at a short distance from him and in the room there were in all 6-7 persons sitting. Raghunath Singh was sitting near the door. None of the accused have caught hold of Raghunath nor fired shot at him. None has fired shot in the room. The accused have entered into the room from the door. After the accused have entered into the room, the witnesses and other persons could not come out. No one had talked to Raghunath Singh. While his father was dragged by the accused, Ramayana did not fall and it was kept on a small wooden table (Rehal). As soon as accused Ram Pal Singh and Pallhar entered, they dragged his father by holding his chest and leg and took him out. His father tried to get himself rescue. He was 55 years of age. It took half minutes in scuffle. The witness and other persons did not try to save him while he was being dragged out side. Neither, the witness nor any person amongst them tried to go towards the gun. Accused Ashok had immediately taken away the gun from the place where it was hanging. No effort was made by them to snatch the gun from Ashok. While his father was shot, they were standing there but did not resist. When the accused caught hold his father, they raised alarm and uttered 'Bachao' but at that time the accused did not say anything to him or the witnesses. There was no litigation going between accused Babu Singh and his father. Jai Narain had gone to Allahabad. He do not know whether he had returned or not and after he had gone to Allahabad, he did not see him in the village. He do not know whether accused Babu Singh had lodged any missing report at police station Sheoli regarding disappearance of Jai Narain or not. He also do not know whether Babu Singh had named any person in the report or not. He stated that on the Southern side of the village there was a river and after that there was a police chauki. Raghunath Singh has sent information about the incident to police outpost through someone. After half an hour of the incident, 2-3 police personnel had arrived but the Sub Inspector did not arrive. The said police outpost was established 4-6 months prior to the incident to protect the villagers from dacoits. On the alarm raised by them, many persons of the village arrived but neither the persons present there nor any other person of the village went to the house of Jai Narain to apprehend the accused. Constables were told about it that accused have entered in the house of Jai Narain. He stated that he had reached the police station within half an hour, i.e., about 1 o'clock. The house of his aunt Smt. Phoolmati is at a distance of two furlong and he has submitted a report at police station. When he went to police station Station Officer was present, who had interrogated him and on asking he narrated the whole incident to him within 15-20 minutes. Thereafter, the report was registered. He denied the suggestion that he had lodged a false report against the accused in consultation with the police. He further denied the suggestion that the name of Babu Singh was mentioned in the F.I.R. because a missing report with regard to his brother's disappearance was already lodged and witness and his relatives apprehended that in the said case Raghunath may not be entrapped. He further denied the suggestion that rest of the accused were falsely implicated in the present case because of old enmity. He showed his unawareness that prior to the present incident 2-3 dacoits tried to enter into his house and on the wake up of the villagers, they ran away. He denied the suggestion that on the date of incident, at night his father was sleeping on the ottoman (Takhat) in the Vernadah and the dacoits had killed him. He also denied the suggestion that on the alarm raised, the dacoits fled away. He further denied the suggestion that outside the village there was firing between the villagers and the dacoits. People of his village do not collect in groups to guard. The Sub Inspector had arrived at 4:30 a.m. in the morning in the village and at that time Ramayana was kept in the said room where the incident had taken place. The Investigating Officer had prepared the site plan of the place of occurrence where his father was sitting and Ramayana was kept and he told the Investigating Officer about the same. He cannot tell the reason as to why the Investigating Officer has not shown the place where Ramayana and 'Rehal' was kept and the lit which was kept in the Verandah was also shown to the Investigating Office but he did not show the same in the site plan prepared by him. The Investigating Officer had returned the lit to him.

P.W. 2 Rajendra Singh, who is an eye witness of the occurrence has reiterated the prosecution case as has been stated by P.W. 1 before the trial Court and supported the prosecution case. In his cross examination, he has stated that he was listening Ramayana for half an hours prior to the incident and Ramayana was kept on the 'Rehal' in front of Sheo Ram Singh. In front of the door, three persons were sitting. Raghunath was sitting by the side of door of the room. All the four accused persons as soon as entered into the room, they dashed towards Sheo Ram Singh and accused Ram Pal Singh and Pallahar dragged him. Sheo Ram Singh did not try to resist while he was being dragged by them. 'Rehal' was kept there. He did not see the accused were coming in front of Verandah. None of the accused were abusing. He saw the accused entering into the room but not in the Verandah and saw them in the room only. All of them were sitting and as soon as the accused caught hold of Sheo Ram, the witness and other persons sitting in the room stood up. They did not try to rescue Sheo Ram and accused took Sheo Ram Singh in the Vernadah and the witness and other persons present there did not leave the place. They also did not stop accused Ashok from taking away the gun nor tried to snatch it from him. When the deceased was being dragged, the witness and other persons raised alarm but none of the person of neighbourhood came out. It was summer season and month of April. He was not aware of the fact that during the said month the villagers used to sit outside their house on the platform (Chabutra) and sleep there. He do not hear the dog barking when the accused had come. The accused Babu Singh was living in his village for the last one year. Accused Ram Pal Singh used to live in his house. He denied the suggestion that they used to live in Etawah. The accused Ashok also used to live in the house of accused Ram Pal for the last one year and not at Barauni in district Etawah. The accused did not make any assault at Raghunath Singh. The accused Ashok Singh, who had brought down the gun from the room had not fired at any one. At the time of shooting, the witness and his brother were in front of the door of Vernadah. His brother had sent someone to police out post for informing about the incident which was across the river on which 2-3 constables had arrived but no Sub Inspector or Head Constable had come. The constables were told that the accused were in the house of Ram Pal. He was not aware of the fact that whether the Constables had gone towards the house of Ram Pal or not. The Constables remained there. He was not aware of the fact that whether any person of the neighbourhood have come out after hearing the fire shot or not. Raghunath Singh, Har Mohan Singh and two other persons had gone to police station at about 10 p.m. in the night and had returned at 5 a.m. in the morning along with Sub Inspector and in his presence, the recovery regarding lantern and lit (Dipak) was prepared which was read out to him. He denied the suggestion that the deceased Sheo Ram was sleeping on the ottoman (Takhat) outside and some thieves or dacoit have shot him dead. Panchayatnama was prepared in his presence. The spot inspection was also made by the Investigating Officer and after 15-20 days, the Investigating Officer again came. He denied the suggestion that he could not see the incident and because of being relative of the deceased he is falsely deposing against the accused after being tutored as accused Ashok and Babu Singh used to live in the village and further denied the suggestion that because of influence of Raghunath Singh he is falsely deposing against the accused.

P.W. 3 Head Constable Shabbir Ahmad has stated that on 10.4.1983 he was posted as Head Moharrir at police station Sheoli and on that date he prepared the chik F.I.R. (Ex. Ka.-2) on a written report submitted by the informant in his handwriting and signature. He endorsed the same in G.D. No. 2 at 1:25 a.m. and proved the same as Ex. Ka. 1. He has also proved Ex. Ka. 4 in his writing and signature by which the case property was submitted at the police station and has endorsed the same in G.D. No. 10 at 8:30 a.m. He denied the suggestion that the F.I.R. was an ante time document.

P.W. 4 Dr. V.K. Srivastava has deposed that on 11.4.1983 he was posted as Medical Officer at E.S.I. Chamanganj and on the said date he had conducted the post mortem of the deceased Sheo Ram Singh whose dead body was brought by Constable Raj Bahadur Yadav and Santosh in a sealed condition. He found following ante mortem injuries on his person:-

1. Gun shot wound of entry 2 cm. x 1 1/2 cm. 2 cm. above the left illiac rest. Margin inverted. Blackening tatooing and charing present around the wound in area of 7 cm. x 6 cm. No wound of exit was present.

He conducted autopsy on the dead body of the deceased on 11.4.1983. According to him the deceased died about one and half day before.

Upon internal examination the vessels were found punctured and half litre clotted blood was present. Multiple punctured wound were also found on the membrane and peritonium. Half litre clotted blood was present in the abdomenal cavity. 2 ounce semi-digested food material was present in the abdomen. Multiple punctures wound were noticed in the small intestine. Multiple wound in the right lobe of gallbladder were also found. Left hip bone was found fractured. The post mortem report Ex. Ka. 5 was prepared by him. In his opinion, the cause of death of the deceased was hemorrhage and shock on account of fire arm injury.

Injury no. 1, according to him was sufficient, in the ordinary course of nature to cause the death of the deceased. He has further deposed that the deceased could have died on 9.4.1983 at 9 p.m. He also found three wadding and 20 pellets in the body of the deceased the same were handed over to the police constable. Dhoti, Banyan, Janeo and key of the deceased were also handed over to the police Constable.

P.W. 5 S.I. Badri Prasad Mishra has stated that he was posted as Senior Sub Inspector at police station Sheoli on 10.4.1983 and was entrusted with the investigation of the present case. He prepared the inquest report of the deceased after reaching the place of occurrence and sealed the dead body and sent the same for post mortem. His evidence has been discussed above and for the sake brevity it is not repeated.

P.W. 6 S.I. Gaya Prasad Maurya has stated before the trial Court that he had taken over the investigation from the earlier Investigating Officer Badri Prasad Mishra and on 26.4.1983, he received an information that accused Pallahar had surrendered in the Court. He recorded the statements of the witnesses on 4.5.1983. He completed the investigation on 11.5.1983 and submitted charge-sheet against the accused persons in his signature.

He in his cross examination has stated that he after thorough investigation has submitted charge-sheet against the accused persons. He denied the suggestion that in the night, the dacoit have attacked the village for the purpose of dacoity and a false case of murder had been registered on account of which he did not record the statements of Constables of police out post and other persons of nearby place.

P.W. 7 Constable Raj Bahadur Pandey has stated that after the panchayatnama, the dead body of the deceased was handed over to him in a sealed condition by S.S.I. Badri Prasad Mishra along with police papers. He took the same for post mortem and handed over to the doctor in a sealed condition and in the meanwhile he did not let any person to touch it.

From the side of accused D.W. 1 Ram Kishan was examined. He deposed before the trial Court that Sheo Ram Singh used to live in his village and a dacoity took place in his house. It was about 10-11 p.m. in the night and his house is at a distance of 2-3 houses towards the house of Sheo Ram. He heard the fire shot but he could not reach his house and was out side. Thereafter he did not go to any place. From the rifle of the villager shots were being fired. The rifle was of Devi Deen. The police arrived within 5-6 minutes when the dacoity had taken place. The police had also fired. The police had gone to the house of Sheo Ram Singh, who was lying dead in his room. Accused Ram Pal was present there. Accused Babu Singh and Ashok do not live in his village as they are resident of Etawah. The police out post was established for the purpose of security of the villagers from dacoits. In his cross examination, he has stated that he is nephew (Bhanja) of Smt. Rajjo. He is not aware of the fact that there was any litigation between Smt. Rajjo and Sheo Ram Singh. Smt. Rajjo had sold her land to Sheo Ram Singh on which litigation had taken place and Sheo Ram Singh had won the same. His house is situated at 50-60 paces from the house of Sheo Ram Singh and not at a distance of 400 paces. He was not aware of the fact that how many dacoits have come and how much property was looted from the house of Sheo Ram Singh. From both sides 10-11 fires were shot in which Sheo Ram Singh was the only injured and he has seen only one empty cartridge at the place of occurrence. The empty cartridge was found in the Verandah of Sheo Ram Singh. He had not entered into the room. He denied the suggestion that he was not present in the village at night and was at Kanpur and also not aware of the fact that any person had lodged an F.I.R. for dacoity or not. There was no rumor that the dacoits have taken the gun and other items. He does not go in the house of Ram Pal and he could not tell whether Ram Pal was in his house or not. He was not aware of the fact that when Babu Singh used to come in the village where he stayed. He also does not know whether Babu Singh is the uncle of Ram Pal. He did not see Babu Singh at any point of time and whether he is present in the Court today or not, he cannot tell. He denied the suggestion that he is falsely deposing in favour of the accused.

D.W. 2 Constable Ram Swaroop has stated that he was posted at police station Sheoli where Shabbir Ahmad was posted as Head Moharrir. On 13.10.1982, he proved the G.D. No. 14 at 10:45 hours of the said date in which a report was lodged by Babu Singh and Jagdish which is endorsed in the writing and signature of Shabbir Ahmad (Ex. Kha. 1).

The trial Court after examining the prosecution case and the defence version found the accused appellants to be guilty of the offence and has convicted and sentenced them for the offence in question, hence the present appeal.

Heard Sri Sanjay Srivastava, learned counsel for the appellants, Sri G.P. Singh, learned A.G.A. for the State, perused the impugned judgment and order as well as lower Court record.

Learned counsel for the appellants submits that as per the prosecution case admittedly, it was accused Babu Singh, who had shot dead the deceased, who was reciting Ramayana and P.W. 1 and 2 along with his wife and other relatives were listening the same whereas the other three accused-appellants, namely, Ashok Singh had taken away the gun which was hanging in the room of the deceased and accused Pallahar @ Surendra Singh and Ram Pal Singh have dragged the deceased out of the room and brought him in the Verandah where he was shot dead by accused Babu Singh. He submits that accused Babu Singh, who was the main shooter, died during the pendency of the appeal. So far as other appellants are concerned, they being the son, nephew and neighbour of accused Babu Singh, have been falsely implicated in the present case because of enmity and influence of Raghunath Singh, who was present at the place of occurrence. He has drawn the attention of the Court towards the fact that it is a categorical case of the prosecution that accused Ram Pal and Pallahar @ Surendra Singh have dragged the deceased from the room and brought him in the Verandah where he was shot dead by accused Babu Singh but from the post mortem report of the deceased it is apparent that there is no mark of dragging found on his body which goes to show that the allegation which have been levelled against them is absolutely false and the deceased received only one single shot, hence the ocular testimony of P.W. 1 and 2 that the deceased was dragged outside by these two accused appears to be an exaggeration and false one. He further submits that so far as appellant Ashok Singh, who happens to be the son of accused Babu Singh is concerned, he is said to have taken away the gun hanging in the room but no recovery of the same was made from him nor it has been found during the course of investigation thus he submits that as per the evidence of P.W. 1 and 2 it is apparent that there was enmity between the parties, hence the implication of accused Ashok Singh, Pallahar @ Surendra Singh and Ram Pal Singh appears to be false one as their role has been exaggerated as it was accused Babu Singh only, who shot dead the deceased, who died on account of single shot no other injuries were found on his person, hence their false implication in the present case cannot be ruled out. He submitted that the village in which the incident has taken place was a dacoity affected area and the dacoits used to come in the village for committing dacoity and loot which is also evident from the prosecution as well as defence evidence as the police out post was created to protect the people from dacoits, hence possibility that the deceased was shot dead by dacoits also cannot be ruled out though the trial Court has rejected the said version of the defence, hence the conviction and sentence of the appellants Ashok Singh, Pallahar @ Surendra Singh and Ram Pal Singh by the trial Court be set aside and they may be acquitted by this Court.

On the other hand, learned A.G.A. has vehemently opposed the arguments of learned counsel for the appellants and submitted that it is true that accused Babu Singh, who was the main shooter had died during the pendency of the appeal but the participation of the others appellants cannot be ruled out as it appears from the evidence of P.W. 1 and 2, who are the eye witnesses of the occurrence that they had common intention to commit the murder of the deceased and their role has also been specified as Ashok Singh said to have taken away the gun which was hanging in the room and accused Pallahar and Ram Pal Singh have dragged the deceased from the room and brought him out in the Verandah where accused Babu Singh shot him dead, hence the trial Court has rightly convicted and sentenced the other appellants for the offence in question.

Considered the submissions advanced by learned counsel for the parties and perused the record.

It is admitted from the prosecution case that the deceased Sheo Ram Singh was murdered in his house by a gun shot injury. The incident was witnessed by his two sons, i.e., P.W. 1 and 2 respectively. The post mortem report of the deceased shows that he received one single shot on his person and except the same there was no other ante mortem injury found on the dead body of the deceased. P.W. 1 and 2 have stated that Ashok Singh had taken away the gun which was hanging in the room of the deceased whereas accused Ram Pal Singh and Pallahar @ Surendra Singh have dragged the deceased outside the room and brought him in the Verandah where the accused Babu Singh shot him with a country made pistol on account of which he died instantly. From the evidence of P.W. 1 and 2, it is apparent that though they were present at the place of occurrence but they did not make any effort to save the deceased from the accused-appellants nor they even tried to make any effort to stop the accused Ashok Singh from taking away the gun. The conduct of the said two witnesses and other witnesses, who were said to be present at the place of occurrence appears to be not of a prudent man as they were only mute spectator of the incident. The reason given by the trial Court regarding the same that the accused were armed with fire arm weapon and they could not dare to raise any objection or resist the accused persons cannot be said to be a reasonable one because from the evidence of P.W. 1 and 2 as well as from the F.I.R. it is evident that it has been categorically stated that as soon as the accused entered into the room where the deceased was reciting Ramayana and other witnesses were listening him they pounced at the deceased Sheo Ram Singh and accused Ashok took away the gun which was hanging in the room and accused Pallahar @ Surendra Singh and Ram Pal Singh dragged the deceased from the room and brought him outside where he was shot dead by accused Babu Singh but the said prosecution version is not borne out from the post mortem report of the deceased as no mark of any injury of dragging was found on the body of the deceased excepting one fire arm injury which hit him above left illiac, crest. Margin inverted. Blackening, tattoing and charring were also present above the wound. Thus the allegation of the prosecution that the deceased was dragged by the said accused persons is not found proved from the prosecution evidence. Moreover, the gun which was hanging in the room and is said to have been taken away by Ashok as it is apparent from the prosecution case, was also not recovered that also creates doubt regarding the origin and genuineness of the prosecution as against the appellants, therefore the participation of the accused appellants appears to be doubtful and their conviction and sentence by the trial Court is against the evidence on record, hence they are entitled for benefit of doubt as their false implication in the present case cannot be ruled out.

In view of the foregoing discussion, the conviction and sentenced of appellants Ashok Singh, Pallahar @ Surendra Singh and Ram Pal Singh by the trial Court is hereby set aside as the prosecution has failed to prove its case beyond reasonable doubt against the appellants.

Their appeal deserves to be allowed and is accordingly, allowed.

The appellants Ashok Singh, Pallahar @ Surendra Singh and Ram Pal Singh are stated to be on bail. They need not surrender. Their bail bonds and sureties stands discharged.

It is further directed that the appellants shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.

Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.

	(Dinesh  Kumar Singh-I, J.)    (Ramesh Sinha, J.)
 
Dated:-25.04.2019
 
Shiraz.