Badshah And Others vs State Of U.P.
2019 Latest Caselaw 824 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Judgment reserved on: 13.02.2019 
 
Judgment delivered on:  08.03.2019 
 

 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 1587 of 1984
 

 
Appellant :- Badshah And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ramjee Saxena,Sushil Dubey
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

Delivered by Hon'ble Dinesh Kumar Singh-I, J.

1. Heard Sri Sushil Dubey, learned counsel for the appellants and Sri Gaurav Pratap Singh, learned counsel for the State.

2. This appeal has been preferred against the judgment and order dated 30.05.1984 passed by Additional District Judge, Mainpuri in Sessions Trial No. 192 of 1982 whereby the accused-appellants Badshah, Lakshman Singh, Saudan Singh and Kunwar Pal have been convicted and awarded punishment under Sections 302 read with Section 34 IPC have been awarded with life imprisonment each.

3. According to the first information report, on 06.08.1981 at about 08:00 a.m., the first informant Dalveer Singh son of Kayam Singh, resident of Heerapur Mauja Manauna, P.S. Kurawali, District Mainpuri was sowing the crop of paddy with his father Kayam Singh, all of sudden, four-five persons came there and surrounded his father and started firing. Badshah Singh son of Malikhan, Kunwar Pal son of Sonpal who were armed with pistols, by which they fired upon his father which hit him as a result of which he fell down on the ground, and in the meantime, Laxman Singh son of Jahar Singh who had spear (bhala) in his hand, Saudan Singh son of Raghuvar with lathi and Suresh son of Badshah with a kanta assaulted his father with these weapons repeatedly. After having seen this occurrence, he (informant) became nervous and started shouting there, hearing which his tau Dal Chandra son of Komil Singh, Mahipal son of Lalta Prasad, Talewar son of Gajadhar and others came there and challenged the accused persons due to which they fled from there, but his father had died on the spot, thereafter, he rushed to the village where accused persons came and gave threat that if he goes to lodge the report he would also be killed, hence due to fear he remained concealed in his house and when he got opportunity he came to lodge a report, the dead body of his father was lying in the field on the spot. On the said report, Exhibit Ka-1 Case Crime No. 215-A/81 under Sections 147, 148, 149, 307, 302 IPC was registered at P.S. Kurawali District Mainpuri on 07.08.1981 at 08:00 a.m. against accused persons Badshah, Kunwar Pal, Laxman, Saudan and Suresh, on the basis of which Chik FIR was prepared by head constable Prem Singh (PW-5) which is Exhibit Ka-3 who made entry of the said case in general diary, Exhibit Ka- 4.

4. The investigation of this case was handed over to S.I. Sri S.K Awasthi, who has not been examined in the present case, and in his place the documents which have been prepared by the I.O. have been got proved by getting examined constable Rajveer Singh (PW-6) who had remained posted with him and was conversant with his hand writing which are panchayatnama of the the deceased (Exhbit Ka-7), memo of blood stained and ordinary soil (Exhibit Ka-). Form No.13 (Exhibit Ka-6), letter to Medical In-charge District Hospital Mainpuri for postmortem of deceased (Exhibit Ka-8), and another letter sent to Medical In-charge District Hospital Mainpuri for postmortem (Exhibit Ka-9), Photo Nash (Exhibit Ka-10), and Challan Lash (Exhibit Ka-11). Investigating Officer Sri S.K. Awasthi had handed over the dead body for postmortem to PW-6 and his companion constable Vijay Pal Singh who had taken the dead body to mortuary where the same was produced before the doctor in sealed condition. The Investigating Officer had also prepared the site plan (Exhibit Ka-12) and after full investigation charge sheet was submitted against the above mentioned accused.

5. On the basis of evidence on record, charges were framed against accused Bahshah, Laxman, Suresh and Kunwar Pal on 02.02.1983 under Section 148 and 302 read with Section 149 and against other accused Saudan Singh charges under Section 147 and 302 read with Section 149 were framed on the same date, to which they pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution has examined, informant Dalveer Singh as PW-1, Mahipal Singh eye witness as PW-2, Ranveer Singh son of Kayam Singh as PW-3 who is son of the deceased as well as eye witness, Dr. Suresh Thariyani as PW-4 who has conducted the postmortem of the deceased, Head constable Prem Singh who prepared Chik FIR and General Diary of this case and is a formal witness as PW-5, constable Rajveer Singh who has proved the other challani documents on behalf of Investigating Officer, who could not be traced as PW-6, and thereafter, the prosecution evidence was closed and the statement of accused persons under Section 313 were recorded.

7. Before proceedings further it would be pertinent to mention here that out of all the accused, accused appellant Badshah and Kunwar Pal Singh have died as a result of which their appeals have been abated vide Court's order dated 25..07.2018, therefore, only two accused appellants have remained, whose appeals are being considered by us i.e. Laxman Singh and Saudan Singh, and it is also clear that Suresh accused has already been acquitted by the trial court itself. Therefore, we are referring the statement under Section 313 Cr.P.C., only of two accused appellants namely, Laxman Singh and Saudan Singh. Laxman Singh has stated that on the date and time of incident, he was not at home because on the occasion of Raksha Bandhan he had gone to bring his sister. He did not hear that earlier disputed land was in possession of the father of the accused Laxman Singh son of Jahar Singh and that the village pradhan had dispossessed Jahar Singh from the said land and its patta was executed in favour of Kayam Singh, pursuant to which Kayam Singh came in the possession of the said field, due to which there was animosity between Laxman and Kayam Singh. He has further stated that the prosecution evidence is false and has further stated that when he returned home, he heard his father was collecting grass on his field and because of that enmity he was falsely implicated. The other co-accused Saudan Singh has also stated the prosecution evidence to be false. Both the accused have not examined any witness in their defence.

8. On the basis of evidence on record, the trial court has convicted the accused appellants and has awarded above mentioned punishment. We have to analyze the evidence of prosecution witnesses in the light of arguments of learned counsel for appellants and see whether there is any infirmity in the judgment of the trial court or not.

9. Learned counsel for the appellants has argued that accused persons have been falsely implicated, nowhere in the prosecution evidence has it been mentioned that PW-3 Ranveer Singh who is son of the deceased was present on the spot. In the FIR, it has not been mentioned as to who had made fire first. He has further been argued that even the presence of PW-1 is suspect on the place of incident because he did not receive any injury. It has further been argued that in the statement of PW-2 Mahipal it has come that the accused side had chased PW-1 and PW-3 also in order to assault them, which is unnatural and suggests that they were not present on the spot, and it could not be possible that so well armed accused side would not be able to catch hold of them. The FIR has been lodged with delay of 24 hours without any justifiable explanation. It is further argued that the explanation which has been extended with respect to delay in lodging FIR that informant had hidden in his house due to fear of the accused also does not seem to be believable because his other brother had gone out immediately after the occurrence. It has been further argued that the incident is alleged to have occurred in the disputed field while the Panchayatnama is found to have been conducted at a different place which also generates suspicion about the incident. It has further argued that according to the prosecution version, the complainant side was sowing crop of paddy but the said crop was not found on the spot by the PW-1 later on. He vehemently argued that this occurrence has certainly happened in some other manner and not in the manner as stated by the prosecution and simply because of the enmity, the accused appellants have been false implicated.

10. It has further been argued that in the site plan it has not been indicated as to from where these eye witnesses have seen the occurrence. It was also pointed out that there are various discrepancies in the statement of witnesses and prosecution documents because at some places, it was stated that there were 6-7 fires made while at others it was stated only two fires were made from the accused side, no blood was found on the clothes of the witnesses i.e. of PW-1 and PW-3 who being sons of the deceased would certainly have tried to embrace the deceased when he was lying in injured condition which is unnatural. He also also argued that gatta was found in the injury of the deceased which shows that the fire would have been made from close range. The contention was also made by the appellants' counsel that the doctor has accepted the suggestion that this occurrence might have taken place in the night at about 2:30 a.m. on 5/6 August 1981. He has further argued that the prosecution has not given any evidence that the patta of said land was executed in favour of Laxman Singh, and therefore, he has argued that accused deserve to be acquitted, and the trial court has committed error in appreciating the evidence on record.

11. Learned AGA has vehemently argued in support of the impugned judgment stating that the same does not suffer from any lacuna as it is a well considered judgment. The trial court has arrived on the finding of appellants being guilty, on the basis of sound proof given by the prosecution side as it is well proved that four assailants had caused serious injuries to the deceased by their respective weapons which led to the death of deceased and the oral testimony is well corroborated by the medical evidence, hence the appeal deserves to be dismissed.

12. We have gone through the entire evidence on record and have heard the arguments of counsel of both the sides.

13. According to the prosecution, the occurrence took place on 06.08.1981 at about 08:00 a.m. when the deceased along with informant Dalveer Singh (PW-1) were sowing crop of paddy in their field, it was then that accused Badshah and Kunwar Pal reached there armed with pistols and made fire upon the deceased due to which he fell down, and soon thereafter, the other accused Saudan Singh armed with lathi, Laxman armed with spear (bhala) and Suresh with kanta started make repeated blows upon the deceased which resulted in his death. In this regard, PW-1 who is son of the deceased and was accompanying him on the date and time of the incident has stated that his father was murdered two years ago. He along with his father and brother Ranveer Singh were sowing crop of paddy in their field, right then accused Kunwar Pal, Badshah, Laxman, Saudan and Suresh came there, Kunwar Pal and Badshah had pistols and Laxman with spear (bhala), Suresh with a kanta and Saudan with a lathi, all of them surrounded his father, and thereafter, Kunwar Pal and Badshah made one fire each upon his father which hit him. When he saw the fire being made, he shouted, and hearing shouting, Mahipal, Talevar, Dalchand and some other persons had come there. After having received fire arm injury his father fell down. Laxman with spear (bhala), Saudan Singh with lathi and Suresh with kanta assaulted his father. When all of them started screaming, the accused persons fled from there, and by that time, Kayam Singh had already died on the spot. Above 10-15 minutes thereafter, he and Ranveer Singh (PW-3) had also run home, and when PW-1 reached home, all five accused had threatened him that if he lodges FIR he would be killed just like his father. Because of fear, he remained hidden in his house, and when at about 04:00 a.m., he got opportunity, he got a report written by Ramlarete (uncle) which is Exhbit Ka-1 and gave it at the police Station Kurawali at about 08:00 a.m. in the morning. It has further been stated that Jahar Singh is father of accused Laxman. The field in which he was sowing crop of paddy, the same was earlier being ploughed by Jahar Singh, but village pradhan had dispossessed Jahar Singh from the said field, and its patta was given in favour of his (PW-1's) father, since then, they were in the possession because of which Laxman and others had started harbouring ill will towards them. All the accused belong to the house of Laxman and have friendly relations with each other. In cross examination, this witnesses has stated that he had not mentioned in FIR that Ranveer Singh was sowing crop of paddy with him because he was nervous. In his report he had not written that 10 to 15 minutes after the occurrence, he and Ranveer Singh had fled but he had written that he had been threatened that if he goes for lodging the report, he would be killed like his father. He did not know that prior to his report the accused side had already lodged any report. He or any of his family members at home had not asked anyone to go and lodge the FIR. He returned home after the occurrence and remained alone while the family members of the house had gone where the dead body of his father was lying. He had left Talebar, Lalta and Mahipal near the dead body. He has further stated that Kunwar Pal, Badshah, Suresh, Saudan and Laxman had encircled him at his house where he had shouted. Near his house, there were houses of Ram Prakash, Ramlarete, Mahipal and Lakhan. He concealed himself in his house because of fear. The accused had surrounded him from the distance of about 4, 6, 10 paces away from his house, though they had not entered his house nor had any one of them come near his house. None of the members of his house had called the police. In the morning at about 08:00 and 08:30 a.m., he had entered his house and came out in the morning next day at about 04:00 a.m. and till then remained confined in his house.

14. He has further stated that he had rightly lodged in his report that the dead body of his father was lying in the field on the spot. The house of Ram Latere and his house are one and the same. When the next day at about 04:00 a.m. Ram Larete came to his house, he was told everything that accused had surrounded him. About 25 to 30 minutes must have been consumed in lodging the FIR. At the same time, when the FIR was lodged, Talebar, Mahipal and Lalta were not present there.

15. This witness has further stated that the field where the incident had happened, was earlier being cultivated by Jahar Singh and he was in its possession, but it was wrong to say that the same was continuing to be in possession of Jahar Singh and that never ever possession upon the said land was that of PW-1. He has not stated to the Investigating Officer about the enmity.

16. At the time of the incident, Megh Singh, Ajab Singh, Bacharam, Ram Sahai and many others had come there, who had challenged the accused. He has denied the suggestion that when complainant side went to the field of Jahar Singh and forcibly wanted to sow crop paddy then Naresh might have fired upon Mauji. At the time of sowing of crop of paddy, he, Ranveer Singh and his father Kayam Singh were present and were sowing the said crop in south western side, and the accused had come there from eastern side from the side of village on the eastern medh of the accused. The fire was not made from the eastern medh. First of all, the accused had surrounded them and thereafter they started firing after coming near them from the eastern side. When the fire was made, the face of his father and his own face were towards east and at that time, they were in south western corner in the said field in standing position. Their field must be 25 to 30 paces in length and 15 to 18 paces in width and denied the suggestion that it was 150 paces in length and 75 paces in width. He further stated that after receiving the bullet, Kayam Singh fell down receding 4 to 6 paces, on the medh of the filed of Mahipal and his own field. The said medh would have been 4 to 6 paces away from the south western corner of his field. The field of Mahipal was filled with water. Mahipal was ploughing his field. He was fired from a distance of about 10, 15 paces from east while Kayam Singh was about 10 to 15 paces west of the assailants. When 5 to 6 fires had already been made, he shrieked. At the time of fire being made, he and Ranveer were 4, 5 paces away from his father towards south. After receiving two shots of fires his father fell down and at that time he was also in fear due to which he had screamed and upon his screaming, Mahipal, Talebar and Dalchand immediately came there who challenged the accused. When his father was beaten by lathi, witnesses were present there. The accused were assaulting his father from all sides and they (PW-1 and his brother) were also standing there but no injury was received by them. He could not tell as to how big was lathi being wielded by the accused nor could he tell as to how many blows were made on his father of kanta and that of lathi or spear. Marpeet must have been done for 1-2 minutes. He does not know that dead body remained at the place of incident in the same condition when the deceased had fallen till the Investigating Officer had reached there, because Investigating Officer had reached there before him. The Investigating Officer had come by Jeep to the place of incident while he had come on foot from the police station. He had given a written report at the police station, thereafter, having read the same, the Investigating officer had interrogated him and the Investigating Officer had started from police station at about 10:00 a.m. and when he reached back to his village from the police station he did not find the Investigating Officer there, although, he had reached village at about 03:00 p.m., and thereafter, he did not meet the Investigating Officer. He has further stated that the crop of paddy which he was sowing on the day of incident, he did not find the same, but it was wrong to say that the said field was barren and was full of water. He has denied the suggestion that Naresh, Ram Dayal, Kayam Singh, Dalveer Singh, Talevar, Mahesh, Mahendra Pal, Rajendra, Ramdas and Radhey Shyam all came together armed with lathi, ballam (spear) and pistols at about 8 to 9 a.m. at the field of Jahar Singh with common object and had forcibly tried to sow the crop of paddy and when they were denied to do so, they had beaten Jahar Singh and others, and it was also wrong to say that fire was made by Naresh with country made pistol which hit Mauji Ram. He has also denied suggestion that in the said night, some miscreants came to his house and there some dispute/quarrel happened between them with respect to sharing the property, and in this quarrel, his father received bullet injury and it was also wrong to say that because of fear of this incident, he remained at home during night, and after having come to know that from the side of accused, report had been lodged, after making consultations, this false report has been lodged.

17. From the testimony of this witness, it is apparent that very incisive cross examination has been made from the side of defence on various points, but it emerges from his testimony that there was enmity between the complainant and the accused side with respect to the land which initially was in possession of the accused side, but the village pradhan had executed a patta of the same in favour of the complainant side, and pursuant to that the complainant side was trying to sow crop of paddy in the said field, and then the accused side gave effect to this incident by causing injuries to the father of PW-1 with the weapons which the accused were arms with.

18. We do not find any such thing in cross examination which could make us believe the testimony of this witness to be suspicious. His presence on the spot is found to be very natural as he was sowing crop with his father. The argument of learned counsel for the appellants that this witness could not be treated to be present on the spot because he did not receive any injury on the spot, though, he has stated himself to present very near the deceased, does not appeal to us because we cannot visualize as to in what position the present witness might have been standing there, from where he has stated to have witnessed the incident. Simply because he did not receive any injury in this incident would not make us believe that his presence on the spot was suspicious.

19. PW-2 Mahipal is an independent eye witness, who has stated in the examination in chief that he knew Kayam Singh, whose field was adjoining to his own field. Two years ago, at about 08:00 a.m. Kayam Singh along with his sons Dalveer Singh and Ranveer Singh were sowing crop of paddy in their field, at that time Kunwar Pal, Badshah, Saudan Singh, Laxman and Suresh came there, and out of them, Badshah and Kunwar Pal had country made pistols, Saudan Singh had lathi, Laxman had bhala (spear) and Suresh had dharia (sharp edged weapon) and all of them surrounded Kayam Singh, and thereafter, Kunwar Pal and Badshah made fire upon Kayam Singh whereon, Dalveer and Ranveer raised alarm, by which, he came running towards accused and apart from him Dalchand and Talewar also reached there and on being challenged by them, the accused fled from there, but the fire which had been made by accused side, hit Kayam Singh, by which, he fell down, and thereafter, the accused Suresh, Laxman and Saudan Singh also made assault on Kayam Singh. In cross-examination, this witness has stated that the field in which, the incident had happened was about 30 paces in length and 20 paces in width bearing area of 2.75 bigha, the south western corner of which was raised a little where there was no water while in the rest of the field some where there was little water somewhere more. At the time of incident, he was 20 paces away from the field of Kayam Singh and one medh of his field was common with the field of Kayam Singh, and at that time he was ploughing his field. His statement was recorded by Investigating Officer. He had told him that he was ploughing his field but if the same has not been written it could be possible that he might have forgotten to write the same. He has denied the suggestion that he was stating the fact only to show his presence near the place of incident. He has further stated that after two fires had been made, his attention got diverted towards Dalveer Singh and Kayam Singh and when he reached near Kayam Singh, Kayam Singh had fallen down, feeling dizzy. To the east of his field also the field was ploughed by Talevar. The field of Talevar would be around 100 yards away from the field of Kayam Singh. When Talevar had reached there, the assault was going on. He cannot tell as to how many blows of kanta and spear were made upon Kayam Singh but has told that he would have received ten injuries but could not tell separately as to how many by spear and how many by kanta as he had not counted.

20. He has further stated that the accused had gheraoed, Kayam Singh, Ranveer Singh coming from the east, and when the deceased was being assaulted from all sides by lathi, danda and spear, Dalveer had slipped out of the said circle. It has been argued by learned counsel for the appellant that this was unnatural that witness Dalveer would have come out of the encirclement unheart.

21. This witness has further stated that no one had caused any injury to Dalveer and Ranveer, although, accused had chased Ranveer and Dalveer with an intention to beat them also but he, Dalchand and Talewar had reached there and shouted, by which, the accused fled from there.

22. This witness has further stated that the accused was about 8 to 10 paces away from eastern medh of Kayam Singh which was not shown by him to Investigating Officer. The place where the accused were assaulting the deceased, from there this witness was about 4 to 5 paces away. He (this witness) had come to the southern side of field in corner, but he did not recollect whether he had shown the said place to Investigating Officer or not and further stated that about the said place the Investigating Officer had not inquired. Talewar was about 10 paces away from the place where the incident happened, and was standing in the field of Ram Vilas at the time of incident. Dalchand was standing at a distance of about 10 paces towards east and was standing in the field of Ram Vilas when incident happened. Dalchand was 10 paces away in the north from the place of incident in the field of Kayam Singh. The field of Dalchand and Talevar there were not adjoining to the field of Kayam Singh.

23. Megh Singh, Ram Sahai, Anar Singh, Bachha Ram, Ram Prakash had also reached there on the place of the incident and had challenged the accused. He has further stated that when Kayam Singh received injury of firearm, his face was towards sky and the dead body was lying in the field by the side of medh in south western corner. After falling of Kayam Singh, he was assaulted by lathi, kanta and spear (bhala). He has further stated that after the accused had fled away from the spot, he did not have any talk with Ranveer and Dalveer, although, Dalveer Singh had stated to him that he was going to lodge the report. Near the dead body, Ajab Singh, Bachha Ram, Ram Sahai, Megh Singh, Ram Prakash and he himself had stayed, and left this place when the mother of the Dalveer Singh had reached there. The police had not reached on the same day rather came next day in the morning at about 11:00 a.m.. The Investigating Officer remained near the dead body and did the necessary writing work, and thereafter, he came to Nagra on the road from where, the dead body was taken away. The dead body was picked up at about 05:00 O'clock to Nagra. The Investigating Officer had investigated the place of incident, in which, he spent around half hour to 45 minutes where the incident had happened. The dead body was taken away by Ajab Singh, Bacharam, Kamta and Siyaram etc. from the field on a cot. He has denied suggestion that he was not present on the spot and was giving false statement.

24. We find that the testimony of this witness believable as he is an independent witness who has stated to have seen the incident and has stated that when the deceased had fallen on the ground after having received firearm injury, the accused Laxman and Saudan had assaulted him with bhala and lathi respectively. In cross-examination, though he could not tell as to how many blows were made by them as he did not count but in all about 10 injuries were caused to the deceased. His testimony appears to be natural as he has stated to be present in the nearby field where he was busy in agricultural work, and it was very natural that on hearing the fire shot, he would have reached there and must have seen the occurrence. Whatever exaggerations are found in his statement with respect to occurrence are not found to be such which would make us disbelieve his testimony.

25. Ranveer who is the son of deceased, is also an eye witness who has been examined as PW-3 and has stated in examination-in-chief that about two years ago at about 08:00 a.m., he was sowing crop of paddy with his brother and deceased father Kayam Singh in his field and it is then that, the accused named above came there, and out of them Badshah and Kunwar Pal who had pistols, Suresh who had kanta, Laxman who had bhala and Saudan who had lathi surrounded his father, and thereafter, Badshah and Kunwar Pal made fire on his father, and after getting hit, his father fell down on the ground. After having seen fire being made he and his brother stepped aside about 5 paces from their father and raised alarm, whereon other witnesses namely the Mahipal and Dalveer Singh etc came there, and upon their challenge, the accused had fled from there. He has stated that after his father fell down, Suresh, Laxman and Saudan assaulted his father by kanta, bhala and lathi. After the accused fled away he saw his father. His father died due to injuries, and thereafter, he went home with his brother and when his brother was getting ready to lodge the report, accused surrounded him and gave threat that if he goes for lodging the report he would also be killed, therefore, because of fear, his brother did not go to lodge report. About this incident, he had told all persons at home whereon his mother and his aunt (chachi) had reached near the dead body. His brother on the next day had gone to lodge report at about 04:00 a.m. and when Dalveer his brother had gone to lodge report, he had brought the dead body of Kayam Singh near the road in the village because they had apprehension that the accused could make effort to conceal the dead body.

26. In cross-examination this witness has stated that on the day of incident at about 06:00 a.m., onwards he was in his field. At that time, Lalta and Ram Vilas were also sowing paddy in their field. At the time when the fire was made, Dalveer was near his father, and when fire was made they were sowing the crop of paddy. When the said fire was made they must have been about 3 to 4 paces towards east from the south western corner of their field. The accused would have been about 8 to 10 paces away towards east at the time of firing. Dalveer and he himself had stepped aside about 4 to 5 paces after his their father had received firearm injury. The witness Talevar, Dalchand and Mahipal had reached there soon after their father received firearm injury, within two minutes. Also from the nearby field, witnesses Megh Singh, Ram Prakash, Ajab Singh, Bacharam, Ram Sahai had also come.

27. It has further been stated that Suresh, Saudan and Laxman were assaulting their father by lathi, bhala (spear) and kanta and when they were challenged by the above mentioned witnesses the accused stopped assaulting. He, his mother and aunt had reached near the dead body of his father while his brother remained hidden in the house. Their house was about 1½ paces away from the place of the incident. He along with his mother and aunt had reached within half an hour of the incident, and at that time there might have been 10 to 20 persons assembled there. He has not given any such statement to the Investigating Officer that after having seen his father in dead condition, he, his brother ran home, then accused had surrounded them and gave threat and because of fear they remained inside their house. Soon after reaching of the Investigating Officer there, the constable had taken away the dead body. He had not taken away the dead body. He has denied that no such occurrence had taken place in front of his eyes and was given false statements due to enmity.

28. Learned counsel for the appellants has argued with respect the testimony of this witness that his name has not been given in FIR by the informant as one who was present on the place of incident, but subsequently a modification has been made in the prosecution version that he was also accompanying the informant and his father at the time when the deceased was sowing crop of paddy in the field where the occurrence had taken place. Therefore, his presence on the place of incident must be discarded as he has been deliberately made an eye witness to strengthen the prosecution case. The same argument has also been made about him that if he was present near the place of incident, he would also have been assaulted by the accused persons and would have received injuries, but no injury had been found on his person which would show that he was not present at place of incident.

29. We are not inclined to accept this argument of learned counsel for the appellant because it could be possible that his name might have been omitted from being mentioned in FIR due to mistake because it is settled law that all the details need not be mentioned in FIR. If any witness appears before the trial court who has been subsequently made witness by the Investigating Officer, would not mean that his presence would be doubtful only on this count that his name did not find mention in the FIR. The narration made of the incident by this witness is so meticulous that it would not be possible to give such graphic details unless he was present on the spot and had seen the occurrence.

30. PW-4 Dr. Suresh Thariyani, who has conducted the postmortem of deceased has stated that on 08.08.1981 when he was posted at District Hospital Mainpuri, at about 01:00 p.m., in the afternoon Vijay Pal Singh had brought the dead body of deceased Kayam Singh son of Jahar resident of Haripur, PS. Kurawali in sealed condition which was identified by him. He had found the deceased to have died about 2 ¼ day before conducting his postmortem. The postmortem rigor mortis had passed off from his body. The following antimortem injuries were found on his persons-;

(i) lacerated wound 3cmx1cm scalp deep on the top of scalp, left side 7cm above the eyebrow.

(ii) Lacerated wound 9cmx2cm bone deep on the left parietal region, 5cm above the left ear, fracture under neck bone transverse.

(iii) Lacerated wound oblique 5cmx2cm x bone deep, 1cm inside to injury no.2 over left side scalp, fracture under neck bone.

(iv) Lacerated wound transverse 4cmx2cm, bone deep at the root of nose, fracture in nasal bone.

(v) Lacerated wound 2cmx1cm bone deep, on the back of root of index finger of left hand, fracture in bone.

(vi) Gun shot wound of entry 1cmx1cm on the inner side of the left thigh, 15cm above knee joint, margins are lacerated inverted, skin was peeled off, this injury was connected with the exit wound.

(vii) Gun shot wound of exit 2cmx2cm on the back of the left thigh, 6cm above the knee joint, margins lacerated everted, skin around the wound peeled off. Directions of the wound are downwards and backwards, connected with the wound of entry no.6.

(viii) Penetrating wound 2cmx1/2cm on the front of chest left side, 5cm below clavicle penetrating sharp angles at both ends.

(ix) Gun shot wound of entry 2cmx2cm front of chest left side just above the left nipple cavity deep with fracture of 4th rip, margins lacerated, inverted. Blackening, tatooing and singeing present.

(x) Gun shot wound 1½ cmx1½cm on the front of chest, right side near sternum, cavity deep margins lacerated, inverted. Blackening, totooing and singeing absent.

(xi) Gun shot wound of exit left side back just below costal margins, 4cm left from midline, 3cmx3cm through and through with injury no.9 and 10, margins everted and lacerated. Directions being right to left downwards and obliquely.

31. It is also mentioned that cause of death was mentioned to be hemorrhage as a result of antimortem injuries. This witness has proved his report Exhibit K-2 and has stated that the deceased had died on 06.08.1981 at about 8 to 9 a.m by the said injuries. The entry wound had been caused by some firearm and the punctured wound have been caused by sharp edged or pointed weapon. In cross-examination, this witness has stated that the deceased could have died in the intervening night of 5/6 August 1981 at about 2-3 a.m. The injuries could have been received by three fires. The injury in which card board ('gatta') has been found could have been possibly made from a distance of within three feet. It is evident from the statement of this witness that the injuries which have been received by the deceased would have been caused by sharp edged weapon as well as lathi and firearm.

32. We are of the view that since many lacerated wounds have been found by this witness on the deceased, therefore, it could not be ruled out that the injuries might have been caused by weapons like lathi also, apart from sharp edged and firearm weapons.

33. The rest of the witnesses are formal hence their testimonies do not require any discussion at length nor any argument is made by the learned counsel for the appellants in that behalf.

34. We find that the accused appellants namely Laxman and Saudan have been found to be armed with spear (bhala) and lathi respectively along with three others, out of whom, one Suresh has been acquitted because no injury was found to have been caused by kanta by the trial and there is no appeal preferred against his acquittal from the side of State, while other two accused namely Badshah and Kunwar Pal have already died and the appeals preferred by them have already therefore abated, only two appellants namely, Laxman and Saudan remain before us, it has come on evidence that they have caused injuries to the deceased by bhala (spear) and lathi respectively when deceased had fallen after getting hit by the fires made by accused Badshah and Kunwar Pal who were armed with country made pistol. Therefore, these two co-accused appellants had assaulted the deceased by lathi and bhala (spear) which resulted in the above mentioned injuries, which ultimately caused death of the deceased. There is no infirmity in the statements made in this regard by PW-1, PW-2 and PW-3 what are found to be believable in this regard, even though, the Investigating Officer has not been examined from the side of prosecution, but all the challani documents have been got proved by PW-6. In the site plan, place where the incident happened has been shown by 'B-B' which is on the medh of the said disputed field which is found to be correct by the testimonies of above mentioned eye witnesses. It is also proved by the prosecution that there was enmity between the accused and the informant side with respect to the disputed plot which has been discussed above as the same was earlier in possession of the accused side which later on was given on patta in favour of the informant side and pursuant to that informant side was sowing crop of paddy in the said field which was being opposed from the opposite side i.e. accused, which led to this incident. The said motive is found to be sufficient for giving effect to this incident.

35. We do not find any substance in the arguments made by learned counsel for the appellants including the one that there was no mention made in FIR in respect of the presence of PW-3 on the spot, hence, his presence should be treated to be doubtful, because all the details need not be mentioned in the FIR. There is sufficient explanation given for delay in lodging the FIR also because it has been clearly stated by the prosecution side that after PW-1 returned home from the seen of occurrence, accused had surrounded him and threatned him that if he goes to lodge report he would also to be killed, because of which the informant could not lodge the report on the same day and stayed at home till next day in the morning and when he got opportunity, he lodged the report. Another argument that the complainant side would have left the dead body of the deceased in the field unattended, for almost one day his panchayatnama was conducted by the police, is unnatural, we may mention that it has come in evidence on record that the mother and other persons of the house of the deceased had reached place of the incident and stayed there near dead body till the police arrived, therefore, it could not be said that the dead body of the deceased was left unattended. Other discrepancies in respect of whether two fires were made or 6 to 7 fires, we find them to be not very material contradictions in statement of witnesses so as to convince us to disbelieve their testimony.

36. We, therefore, on the basis of evidence on record come to the conclusion that the learned trial court has not committed any error in making evaluation of the statement of witnesses of prosecution and has rightly concluded that the accused appellants Laxman and Saudan were guilty of offence under Section 302 read with Section 34 IPC as they had gone to place of incident in prosecution of their common intention to murder the deceased armed with weapons, and in prosecution of the same caused injuries to the deceased which ultimately resulted in his death.

3.7. Accordingly, the appeal is dismissed.

38. The accused Laxman and Saudan are on bail, their personal bond and bail bonds are discharged. Both the accused shall be taken into custody to serve out the remaining sentence.

39. Let copy of this judgment be transmitted to trial court with directions to ensure that the accused appellants serve out the remaining sentence in accordance with law.

 
Order Date :- 08.03.2019
 
M. ARIF
 

 
(Dinesh Kumar Singh-I,J.)         (Ramesh Sinha, J.)