Munna Singh & Others vs State
2019 Latest Caselaw 5003 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 23.04.2019
 
Delivered on  24.05.2019
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 3084 of 1985
 
Appellant :- Munna Singh & Others
 
Respondent :- State
 
Counsel for Appellant :- T. Rathore,D.B. Mishra,Jitendra 					     Kumar Mishra,Utsav
 

 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

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

1. The present criminal appeal has been preferred against the judgment and order dated 16.11.1985 passed by Sessions Judge, Karvi (Banda) in S.T. No.120 of 1982 convicting the appellants under Sections 302/34 I.P.C. and sentencing them to undergo life imprisonment.

2. The prosecution case in brief is that the informant, namely, Chhatra Mohan Singh submitted a written report at police outpost Bargadh which comes under the police station Mau against five accused persons stating therein that he is a resident of village Kaniyar. He has two brothers, namely, Narayan Singh (deceased) and Madan Mohan Singh and they are also having a house at Bargadh Railway Station. On 7.3.1980 in the morning, Devendra Pratap Singh alias Chhotkawa was taking his cattles for grazing and his cattles entered in the field of the informant and started damaging the crops, on which informant's brother, namely, Narayan Singh had made complaint to Devendra Pratap Singh alias Chhotkawa, scolded and he started taking the cattles to Kanji House by droving them. On which, Sripal Singh and Hammev Singh of his village asked his brother Narayan Singh not to do so as the cattles had entered in the field unintentionally, then his brother heeded the said request, but at that time Sheo Shankar Singh, son of Vishram Singh came there and started abusing Narayan Singh, on account of which a quarrel took place between them, then Devendra Pratap Singh told Narayan Singh as to why he is abusing his father and stated that 'Tumhara Ghamand Utar Doonga'.Thereafter, the informant and his brother went to their house which was situated near Bargadh station and his nephew Udai Veer Singh also went to traders at Allahabad. After some time, the informant and his brother Narayan Singh were going to see the stock of the ashes of coal from their house and when they reached on the road near the stock, they saw that from the opposite direction a tractor red in colour without having any number and trolley came, on which Munna Singh, Surendra Pratap Singh, Devendra Pratap Singh, all sons of Sheo Shankar Singh, resident of village Kaniyar and Balwan Singh son of Sher Singh, resident of village Gujhwar, police station Bara, District Allahabad were sitting. Munna Singh was carrying 12 bore SBBL gun in his hand, Surendra Pratap Singh was having a country-made pistol in his hand, whereas Balwan Singh had a lathi in his hand. They alighted from the said tractor. On the exhortation of Munna Singh that the enemies should be killed and from near the tractor fired shot, which hit his brother who trembled and tried to run away, on which Surendra Pratap Singh shot with his countrymade pistol at his brother from a very close range. Devendra Pratap Singh also fired with his country-made pistol and thereafter Surendra Pratap Singh again fired, on which his brother had fallen down and thereafter Balwan Singh assaulted him with lathi, on account of the said injuries his brother died. The said incident was witnessed by Brij Mohan Singh, Rajendra Singh of Village Kaniyar, Amar Nath Brahmin of Bargadh station, Kailash Chandra Pandey of village Manka and son of the informant Balveer Singh.The informant suspected conspiracy in the murder of his brother by Mahendra Pratap Singh son of Sheo Shankar Singh. Thereafter, the accused fled away by the said tractor by which they had come towards Bargadh turning. His brother had fallen down and Balwan Singh assaulted him with the lathi and on account of the injuries his brother died on the spot. The written report which was submitted by him at the concerned police station is marked as Ext. Ka.1.

3. On the basis of written report submitted by the informant Chhatra Mohan Singh, a First Information Report was registered against the five accused as Case Crime No.29 of 1980, under Sections 302, 120-B I.P.C., Police Station Mau, District Banda on 7.3.1980 at 10.00 a.m. on the same day.

4. The investigation of the case was entrusted to Sub Inspector Asha Ram (PW7) who visited the place of occurrence and conducted the panchayatnama on the dead body of the deceased. He prepared the photo-nash, chalan-nash and other police papers etc. and sealed the dead body after panchayatnama and sent the same for post mortem through Constables Mohd. Mustafa and Om Prakash. Further, he took into custody the clothes of the deceased which were sealed and recovery memo of the same was also prepared. He took the blood stained and simple soil from the place of occurrence and sealed the same in two separate boxes. Thereafter, he prepared the site plan of the place of occurrence. He recorded the statements of the witnesses and made search of the accused. He arrested the accused persons, namely, Munna Singh, Surendra Pratap Singh, Devendra Pratap Singh and Balwan Singh along with tractor and from the possession of accused Munna Singh a single barrel gun and two cartridges were recovered and he prepared the fard recovery memo and also lodged an FIR against accused Munna Singh under Section 25 of the Arms Act. He recorded the statements of accused persons and submitted charge sheet against accused, namely, Munna Singh, Surendra Pratap Singh, Devendra Pratap Singh and Balwan Singh and in the meanwhile he was transferred and rest of the investigation was conducted by S.I. Jugal Kishore who conducted the investigation and submitted the charge sheet against Mahendra Pratap Singh.

5. The trial Court on the committal of the case, framed charges against the accused persons for the offence in question and the accused denied the charges and claimed their trial.

6. The prosecution in support of its case has examined PW1- Chhatra Mohan Singh, PW-2-Amar Nath @ Lallu, PW3-Balveer Singh, PW4-Kailash, PW5-Dr. Shiv Dayal Singh, PW6-Sripal Singh, PW7-Asha Ram.

7. The prosecution in support of its case further relied upon the documentary evidence, i.e., written report (Ext.Ka.1), recovery memo of blood stained and plain soil (Ext. Ka.2), recovery memo of blood stained clothes of the deceased (Ext.Ka.3), post mortem report (Ext. Ka.4), Panchayatnama (Ext. Ka.5), photo-nash (Ext. Ka.6), chalan-nash (Ext.Ka.7), chik report (Ext. Ka.9),chik FIR (Ext. Ka.10), G.D. report (Ext.Ka.11), site plan (Ext. Ka.12 & 14), charge sheet (Ext. Ka.15 & 16), statement of the witness Amar Nath recorded under Section 161 Cr.P.C. (Ext. ka.17) and material exhibit, i.e., clothes found on the dead body of the deceased, i.e., Baniyan and Lungi.

8. The accused in their statements recorded under Section 313 Cr.P.C. have denied the prosecution case.

9. The accused Mahendra Pratap Singh stated that at the time of the incident he was posted in the Court of A.C.O, Allahabad as 'Peshkar' and was present on his duty on the date and time of the incident. He further stated that the informant and his family members are the men of criminal antecedents, whereas the family of the accused persons are well educated and are doing jobs, on account of which they bore enmity. He further submitted that the deceased Narayan Singh and the informant had taken arms licence on forged address and were also doing the work of stolen articles, for which a complaint was made by the accused persons against them and on their complaint, licence of the deceased as well as informant was seized and due to which the accused were after them. The accused persons also refused to give Rs.5000/- to the Station Officer, Mau and being annoyed he submitted final report in the FIR which was registered from of the side of the accused of the present incident.

10. The accused Surendra Pratap Singh stated that prior to few days of the incident, Mahendra Pratap Singh had come with his children along with a gun to his house and thereafter returned back. On the day of the incident at about 10.30 a.m. or 11.00 a.m. Constables Om Prakash and Mohd. Mustafa had gone to his house and asked to see his gun and stated that Station Officer had called him. The accused went along with the said Constables along with his gun and when he reached the Bargadh turning then he came to know that Station Officer had gone to Mau, thereafter the Constables took him to Mau and locked him in jail along with his brothers.

11. The accused Munna Singh stated that on 7.3.1980 at about 10.30 a.m. he was going on his tractor to Bargadh to take sand. The tractor was being driven by Balwan Singh. As soon as the tractor had reached near Bargadh railway station then Narayan Singh, Udai Veer Singh, Chhatra Mohan Singh and Amar Nath and 14 to 15 coal persons surrounded his tractor. Narayan Singh was carrying a rifle in his hand, whereas Udai Veer Singh and Chhatra Mohan Singh were armed with 12 bore gun and 14 to 15 coal persons were having lathis and ballam in their hands. Balveer Singh wanted to take out the tractor from the side but as there was no space, hence the tractor was parked in the middle of the market. On the right side of the tractor in the market, he along with Balwan Singh and Devendra Pratap Singh got down from the tractor and were standing there. Narayan Singh fired which hit Balwan Singh on his chin. Udai Veer Singh also fired which hit Devendra Pratap Singh on his hand and he fell down. Narayan Singh and Udai Veer Singh overpowered them and when 2-3 steps remained then in self defence Munna Singh had fired with a countrymade pistol. With the assistance of the witnesses, Munna Singh turned the tractor and went to Mau and after reaching at Mau at 1.15 p.m. he gave a written report about the incident at Police Station Mau.

12. The accused Devendra Pratap Singh stated that at the time of the incident he was studying in Allahabad University and had come to his house and he too was going on the tractor along with Balwan Singh and Munna Singh for taking the sand. He supported the statement of Munna Singh.

13. The accused Balwan Singh in his statement also supported the statement of Munna Singh and stated that when Narayan Singh stopped the tractor after abusing him, then he jumped from the tractor and tried to escape but since he was surrounded from all the sides, he could not escape. Narayan Singh had fired shot with rifle which hit him on his chin and also hit Devendra Pratap Singh who was near him to support him. On him, Uday Veer Singh also fired. Balveer Singh had fallen down when he was shot hit, he became unconscious and he was taken to the Mau Hospital where he became conscious.

14. The accused Munna Singh lodged a report with respect to the said incident against the informant Chhatra Mohan Singh, Udai Veer Singh and two other persons under Sections 307/34 & 586 I.P.C. at Police Station Mau which was registered on the same day and after investigation,the Investigating Officer submitted final report in the said case. Thereafter, accused Munna Singh on 5.11.1980 had filed a complaint in the Court of C.J.M.,Banda and on the basis of the complaint against them, S.T.No. 552 of 1982 was registered.

15. PW1-Chhatra Mohan Singh in his deposition before the trial Court has stated that on the day of the incident in the morning, he along with his brother Narayan Singh had gone to see their agricultural field and they saw that cattles of Devendra Pratap Singh were grazing in his agricultural field.The wheat crop was standing in the field and because of grazing of cattles in the field, the crops were being damaged, on which his brother Narayan Singh made a complaint about the same to Devendra Pratap Singh and asked him to drove the cattles in the Kanji House. Thereafter a quarrel took place between both the parties and at that time Sripal Singh and Hammev Singh came and stated that cattles might have come in the field unintentionally and asked him to leave them, on which his brother heeded to the request of Sripal Singh and Hammev Singh. Thereafter, the father of the accused, namely, Sheo Shankar Singh arrived and stated to his brother that 'Tum Bade Rangbaz Bante Ho, Jaanvar Hamare Kanji House Le Chalo To Dekhe". In the meantime, there was some hot altercation took place between his brother Narayan Singh and Sheo Shankar. Accused Devendra Pratap Singh who came there,stated that as to why Narayan Singh was abusing his father and he uttered 'Mein Tumhara Ghamand Utar Doonga.' On which, the informant and his brother went to their house.The said incident had taken place at 7 a.m. in the morning. They returned back from their agricultural field to their house and after a short time they came to their house near Bargadh railway station. The nephew of this witness, namely, Udai Veer Singh had gone from the house of Bargadh railway station in connection with his work of leaf to Allahabad with a trader. Thereafter the informant and his brother Narayan Singh proceeded to see the stock of ashes of coal and when they reached in front of the seed go-down, then they saw that from the western side a red tractor which was without trolley and number, was coming which was stopped at a distance of 20-25 paces from them. Thereafter, accused Munna Singh who was armed with 12 bore SBBL gun, Surendra Pratap Singh and Devendra Pratap Singh with countrymade pistols and Balwan Singh with lathi came down from the tractor and on the exhortation of Munna Singh by saying to kill the enemies and they cannot leave, accused Munna Singh fired shot at this witness and his brother Narayan Singh. The said fire hit his brother who trembled and tried to escape, on which Surendra Pratap Singh fired shot with country-made pistol from a close range. Thereafter, accused Devendra Pratap Singh also fired with his countrymade pistol from a close range. Surendra Pratap Singh again fired shot with his countrymade pistol and Balwan Singh assaulted his brother with lathi. On the alarm raised by this witness, Amar Nath, Kailash Chandra Pandey and son of this witness, namely, Balveer Singh, Rajendra Singh and Brij Mohan Singh arrived there who chased the accused who had killed his brother, but the accused fled away towards Bargadh turning on the same tractor. When the accused had gone away, he went near his brother and saw that he had received injuries and it was bleeding. The blood was also fallen on the ground and his brother Narayan Singh had died on the spot. He got a report written by Rajendra Singh which was being dictated by him about the incident and after writing the same it was read over to him and he put his signature over the same. The written report was proved by this witness under his signature as Ext. Ka.1. Thereafter, the said report was taken by this witness to police out post Bargadh and submitted the same, where the proceedings were drawn and copy of the report was also given to him from the said outpost, after getting the copy of the report he returned to the dead body of his brother and within 5-6 minutes the Station Officer had arrived at the place of occurrence who conducted the Panchayatnama on the dead body of the deceased and made spot inspection, thereafter sealed the dead body of the deceased and after inspecting the spot he went towards Bargadh turning. This witness identified the clothes of the deceased which he was wearing at the time of the incident when the same was opened in the Court. He stated that the incident had taken place in conspiracy at the instance of Mahendra Pratap Singh.

16. In cross-examination, this witness admitted that the cross case of the present case was also pending and going on in the same Court being S.T.No.552 of 1983 (State Vs. Udai Veer Singh and others. He submitted that Balwan Singh and Devendra Pratap Singh did not receive any injury in the incident. He denied the suggestion that they had received injuries in the incident.

17. This witness denied that he and his brother Narayan Singh lives separately and their houses are also separate but they both lives in one house. Both of them used to do agricultural work and business together. At the time of incident, he used to do the agricultural work and when it was necessary he used to do job. His brother Narayan Singh used to do the agricultural work and at the time of incident he along with his brother used to live at village Kaniyar and also at the house near Bargadh railway station. On the day of incident he had gone to village Kaniyar. On 6.3.1980, he had gone to village Kaniyar from Bargadh and he reached village Kaniyae on 6.3.1980 at about 2-3 p.m. and both of them had gone together. It takes 20-25 minutes from going Bargadh to Kaniyar. He is also having another brother, namely, Madan Mohan who was living at village Kaniyar at the time of the incident and Madan Mohan used to live in village Kaniyar only and he live with them.This witness further stated that he did not show the Investigating Officer his agricultural field. He did not remember that when the Investigating Officer had gone to see his field and when the Investigating Officer had gone to see his field then crops were not cut. The crops were ripe and were standing in the field. Hammev Singh and Sripal Singh had come towards north.

18. This witness denied that he along with his brother had not gone to see the agricultural field nor his field was grazed nor any quarrel took place. He does not remember the khasra number of the filed which was grazed.

19. He further stated that when he had gone to Bargadh police outpost to lodge the report, the Sub Inspector was not present there.The Investigating Officer had come to the place of occurrence at 10.00-10.30 a.m. and first seen the dead body and inspected the spot and it took him about one hour for the same and after inspecting the spot, the dead body was sealed. At about 12.00 in the afternoon the dead body was sent from the place of occurrence which was being sent by tractor. He did not accompany the dead body nor any one of his family had gone with the dead body. The tractor by which the dead body was taken, he does not remember to whom it belonged and no person of his village or relative had gone with the dead body. After the dead body was sealed, he returned to his house. He is not aware of the fact that who was the constable, chaukikar or Sub Inspector or how many people had gone with the dead body.

20. This witness denied that along with him many persons had gone to police outpost Bargadh. He also denied that Santosh Kumar, Surendra Bahadur Singh, Chhatra Mohan Singh and Madan Mohan Singh had gone with him to lodge the report. He further denied that written report was lodged after due consultation at the police outpost. He also denied that his report was lodged after the report of Munna Singh. He did not know where Mahendra Pratap Singh was posted.The deceased Narayan Singh was a licensee of a rifle prior to the incident and he had a rifle with him and this witness was also a licensee of one SBBL gun of 12 bore prior to the incident. Udai Veer Singh was also a licensee of SBBL 12 bore gun prior to the incident and Rajendra was also having a licence of 12 bore SBBL gun prior to the incident. The licence of the witness along with Udai Veer and Rajendra were issued from the office of District Magistrate, Allahabad. He was ignorant of the fact that on 21.7.1977, Mahendra Singh had given an application to S.S.P., Allahabad or not that they got the licence from the Allahabad by giving a wrong address. The licence of the deceased Narayan Singh was issued from the office of District Magistrate, Lucknow prior to the incident and he did not know whether the accused persons had given an application against him also that he had taken the licence by showing wrong address. No official had come to him to enquire regarding complaint in connection with the licence of the weapon issued to them. The gun of Udai Veer Singh was deposited at police outpost Bargarh by the Sub Inspector. The notice was also received for cancellation of gun licence to this witness but he had taken a stay from the High Court, Allahabad. The order for cancellation of gun license was passed, against which he preferred an appeal, which was dismissed by the Court of Commissioner and he cannot tell about the licence of Rajendra Singh. Whether the licence of the gun of Lal Sahab was cancelled or not he is not aware of the same.

21. This witness denied that the accused Mahendra Pratap Singh had made a complaint against the witnesses and their family members for getting the licence of firearm by showing wrong address due to which their weapons were deposited and notice for cancellation of their firearm licence was received by them, on account of which he along with family members bore enmity with the accused and their family members. He does not know whether the accused Munna Singh was having a contract of bricks in the range of Bargadh. He is also not aware of the fact that Munna Singh used to supply the mud outpost side of Bargadh or not. He denied the suggestion that he does not have a contract of the ashes of coal.

22. He further in his cross-examination has stated that at the time of the incident he was not having his gun nor Narayan Singh was carrying his rifle and when he saw tractor, the accused got down from the tractor and exhorted to kill the enemy and when the accused exhorted, he did not run away and Munna Singh fired. All the accused were standing near Munna Singh and his brother Narayan Singh was standing on the north side of Munna Singh when he received gunshot injury. As the first shot which was fired by Munna Singh, his brother trembled and tried to run away, then Surendra Pratap Singh fired and thereafter Devendra Pratap Singh also fired and the fourth fire was made by Surendra Pratap Singh again, on which his brother had fallen down and accused Balwan Singh assaulted his brother with lathi. Surendra Pratap Singh and Devendra Pratap Singh were close to his brother and fired at him. This witness was at a distance of 8-10 paces from his brother. He further stated that the accused Devendra Pratap Singh and Balwan Singh had not received any injuries. Neither this witness nor his brother Narayan Singh had made fire on them. He had not given any statement to the Investigating Officer under Section 161 Cr.P.C. that he fired a shot with his licensee gun on the accused which hit the accused Devendra Pratap Singh on his hand and if the Investigating Officer has written the said fact then he cannot give any reason for the same. He stated that Surendra Pratap Singh was driving the tractor and when the accused fled away on the tractor, the same was also being driven by Surendra Pratap Singh.This witness denied the suggestion that on 7.3.1980 at 10.30 a.m. when accused Munna Singh, Balwan Singh and Devendra Pratap Singh were going on tractor for taking sand, then he along with Udai Veer Singh, Narayan Singh (deceased) and Lallu son of Nana @ Ramesur and 14-15 persons surrounded the accused and indulged in altercation with them. He also denied the suggestion that the fire which was made by Narayan Singh hit the chin of Balwan Singh and Udai Veer Singh with his 12 bore gun fired at Devendra Singh which also hit him. He further denied the suggestion that accused fired at him and the deceased in their self defence. He has shown his ignorance that the accused had gone to police station Mau for lodging a report. He was also ignorant of the fact that on the report of the accused persons, this witness and his family members after due consultation and deliberation had lodged the report thereafter. He did not know whether the people of Kol caste had assaulted with lathis, due to which his brother also received lathi injuries. He also showed his ignorance whether Munna Singh was carrying gun or not.

23. PW2-Amar Nath @ Lallu who was examined as prosecution witness was declared hostile by the prosecution.

24. PW3-Balveer Singh who is the son of PW1 Chhatra Mohan Singh has reiterated the prosecution case as has been stated by PW1 before the trial Court and has supported the same, hence, for the sake of brevity the same is not being repeated.

25. In his cross-examination, this witness has stated that the Station Officer had come at the place of occurrence at 9.45 a.m. and he was also present there when the Investigating Officer had come. The Investigating Officer remained at the place of occurrence for about 1½ hours and thereafter he left. This witness left the place of occurrence immediately the Investigating Officer had arrived. He remained at his house at Bargadh and he did not met the Station Officer nor the Investigating Officer had come for interrogation and on the day of incident the Station Officer did not make any query from him and he is narrating about the incident for the first time before the trial Court. At the time of incident, he was studying in class 8th at Bargadh. He stated that he cannot tell the names of those persons who had witnessed the incident. He did not see any injuries on the accused Devendra Pratap Singh and Balwan Singh. His father was not carrying a gun or had fired at the accused. He had not given any statement to the Investigating Officer and if any such statement has been written then he cannot tell any reason for the same. If the Investigating Officer had written in his statement that his father had fired shot with his SBBL gun then he also cannot tell any reason and if the Investigating Officer also written in his statement that shot hit at the hand of accused Devendra Pratap Sigh then he also cannot tell any reason for the same. Kailash and Rajendra were standing at a distance of 10 paces from the tractor at the place of occurrence and both of them did not come to his house after the incident nor he met them after the incident.

26. PW4-Kailash who also claims himself to be an eye witness of the incident has narrated the prosecution case as has been stated by PW1, hence, for the sake of brevity the same is not been repeated.

27. In his cross-examination, he has stated that he was a resident of village Manka and distance of village Manka from Bargadh is about 6 Kms.His house is at Bargadh railway station adjacent to the police outpost. He further stated that in the year 1968 his father was murdered and Brij Mohan was the witness in the murder case of his father. He deposed that as soon as the Station Officer had reached at the place of occurrence, he got a report written by the informant but he was not dictating the report and along with the Station Officer, there was one Diwan and a Constable. The Investigating Officer recorded his statement on the third day of the incident. He stated that PW1 Chhatra Mohan had not fired shot nor he was carrying gun and he has not given any such statement to the Investigating Officer that Chhatra Mohan Singh had fired at Devendra Pratap Singh which hit his hand and if the Investigating Officer had written the same he cannot tell any reason about the same.

28. This witness denied the suggestion that he did not see the incident nor he was present at the place of occurrence. He denied the suggestion that since Chhatra Mohan Singh was known to him, hence, he is falsely deposing against the accused.

29. PW5-Dr. Sheo Dayal Singh Chauhan who was examined by the trial Court has deposed that on 8.3.1980 he was posted as Superintendent in District Hospital Karvi and on the said date at 1.15 p.m. he had conducted the post mortem on the dead body of the deceased Narayan Singh who was sent by S.I. of police outpost Bargadh through Constable Mohd. Mustafa and Om Prakash of Chawki, who identified the dead body and brought the same in sealed condition. The deceased was aged about 40 years and duration of death was one day. He found the following ante-mortem injuries on his person:-

"1. Gunshot wound 5 cm. x 2 ½ cm. x muscle on abdomen just right to umbilicus. Blackening present around margins, margins inverted.

2. Contusion 11 cm.x 2 cm. obliquely 1 cm. above umbilicus both sides.

3. Contusion 3 cm. x 2 cm. obliquely across abdomen in epigastrium.

4. Gunshot wound 3 cm. x 2 cm. x chest cavity 3 cm. above right nipple. Blackening and tattooing present on margins. Margins inverted.

5. Gunshot wound 1/2 cm. diameter x chest cavity 8 ½ cm. above right nipple. Margins inverted.

6. Gunshot wound 1/2 cm. diameter x bone on middle of left clavicle. Left clavicle fractured underneath. Margins inverted.

7. Gunshot wound 1/2 cm. diameter x bone at outer end of left clavicle. Margins inverted. Left scapula fractured underneath.

8. Gunshot wound 1 cm. diameter x bone on back of left shoulder lower part. Margins averted. It communicates with injury no.7.

9. Abraded contusion 4 cm. x 1.5 cm. on back of left forearm 7 cm. below left elbow with fracture of alna underneath.

10. Gunshot wound 1 ½ cm. x bone on middle part of left index back. Margins inverted and blackened.

11. Gunshot wound 2 ½ cm. x 1 cm. x bone in front of middle of left index. Margins averted. Second phalanx fractured. This injury communicated with injury no.10.

12. Gunshot wound 1 ½ cm. x 1 cm.x muscle on back of right thumb root. Margins inverted and blackened.

13. Gunshot wound 2 cm. x 1 cm. x muscle on outer aspect of root of right index.Margins averted. This injury communicates with injury no.12."

30. In the opinion of the doctor, the deceased died on account of shock and hemorrhage as a result of ante mortem injuries and he has proved the post mortem report as Ext. Ka.4.

31. In his cross-examination, this witness has opined that the death could have occurred within 6 hours on either side.

32. PW6-Sripal Singh (witness of panchayatnama) has stated that on 7.3.1980 at about 10.30 a.m. the Sub Inspector had gone to conduct the inquest proceedings and inquest on the dead body was performed. Dev Narayan, Maharaj Singh, Raja Singh, Badri Prasad along with him were made panch and they also made signature on the panchayatnama and he has proved the panchayatnama of the deceased Narayan Singh as Ext. Ka.5.

33. In his cross-examination, this witness has stated that he was present upto 11 a.m. at the place where the panchayatnama of the deceased was conducted. The dead body was sent in his presence and after 11 a.m. he had gone his village Kanihar. All the panch witnesses of the panchayatnama including him did not write anything except making signature on it. He had come to village Bargadh between 9.00-9.30 a.m. In village Kaniyar he received information that the deceased Narayan Singh had been killed. The distance of village Kaniyar from the place of occurrence is about 1-1/2 miles and he had gone to the village on foot. From the Bargadh railway station a call was made at his village that Narayan Singh had been killed, the said information was received by telephone. At that time it was about 8.00-8.15 a.m. and as soon as he received information, he proceeded to Bargadh which took time of about ½ hours to reach Bargadh from his village. Rajendra is the nephew of this witness, earlier Rajendra had a licencee gun and he is not aware of the fact whether the licence of Rajendra was suspended prior to the incident or not. Once an application was given prior to the incident for suspending the licence of Rajendra. On the application which was given by the accused for suspending the licence of Rajendra, a query was made but thereafter the licence was reinstated. Chhatra Mohan Singh, Narayan Singh (deceased) and this witness, they all belong to Baghel Thakur. The ancestors of this witness as well as of Narayan Singh were the resident of village Manquar, Tehsil Mau, hence, this witness and deceased Narayan Singh belong to one 'Khandan'. From village Kaniyar he along with Hammev Singh had come together.

34. This witness denied that he had made signature at police outpost. He further denied that being relative of the deceased, he is falsely deposing.

35. PW7-Asha Ram has deposed before the trial Court that he was In-charge of the police outpost Bargadh. On 7.3.1980 at 10.00 a.m. the present case was registered at police out post Bargadh.The FIR was registered by Head Moharrir Chandra Pal Singh and he is acquainted with his hand writing and signature. The chik report which was prepared by H.C. Chandra Pal Singh in his hand writing and signature which is proved by him as Ext. Ka.10. H.C. Chandra Pal Singh also endorsed the chik report in G.D. No.12. The original G.D. dated 7.3.1980 which was in front of him and G.D. No.12 was written H.C.Chandra Pal Singh in his writing and signature and its carbon copy available on the record, was proved as Ext. Ka.11.

36. He further stated that he took over the investigation of the case and reached the place of occurrence and conducted the panchayatnama on the dead body of the deceased Narayan Singh. He prepared photo-nash,chalan-nash and other police papers for post mortem, sealed the dead body of the deceased and sent the same for post mortem through Consstables Mohd. Mustafa and Om Prakash. He proved the panchayatnama as Ext. Ka.4, photo-nash Ext. Ka.6, chalan-nash Ext. Ka.7 and report regarding post-mortem Ext. Ka.8 which was in his hand writing and signature. He also sent copy of the chik Ext. Ka.9 along with a Constable. During panchayatnama, he took into custody blood stained Baniyan, blood stained white Lungi and sealed the same and prepared its material Ext. Ka.3 in the presence of the witness and got their signatures on the same and he has proved the same to be in his hand writing and signature. He further recovered blood stained soil and simple soil from the place of occurrence and kept them in two separate boxes in front of the witnesses and prepared the recovery memo Ext. Ka.2 and got their signatures on the same. He prepared the site plan Ext. Ka.12. He also made search of the accused and arrested the accused at the side of Allahabad road. The accused Munna Singh, Surendra Pratap Singh, Devendra Pratap Singh and Balwan Singh were on tractor. He took into custody a gun from the accused Munna Singh and sealed the same. After arresting the accused persons, he took them to Police Station Mau and registered a case under Section 25 Arms Act against accused Munna Singh. He prepared the recovery memo of gun at Police Station Mau and further conducted the investigation under Section 25 of Arms Act also. Along with the gun two cartridges were also recovered.

37. He further submitted that he took statements of witnesses of panchayatnama and also inspected the field where the animals had entered and were grazing, on account of which quarrel took place. He prepared the site plan of the said place and proved the same as Ext. Ka.13. He took the statements of witnesses, namely, Hammev Singh, Rajendra Singh, Brij Mohan Singh on 13.3.1980. He also took statement on 21.3.1980 of the witnesses of recovery of the gun, i.e., Umesh Kumar, Indra Kumar, Narendra Singh, Surendra Singh, Balveer Singh, Udai Veer Singh and Chhatra Mohan Singh. He prepared the site plan of the place of occurrence from where the gun was recovered and proved the same as Ext. Ka.14 and on 2.6.1980 after completing the investigation he submitted charge sheet against accused Munna Singh, Surendra Pratap Singh, Devendra Pratap Singh and Balwan Singh. Investigation against accused Mahendra Pratap Singh was pending and thereafter he was transferred. He proved the charge sheet dated 2.6.1980 which was before him and proved the same as Ext. Ka.15. Against accused Mahendra Pratap Singh, charge sheet was submitted by S.I. Jugal Kishore Tripathi, who has died and this witness was conversant with his hand writing and signature and he proved the charge sheet dated 16.7.1980 as Ext. Ka.16.He further stated that witness Amar Nath had supported the prosecution case and he has recorded his statement under Section 161 Cr.P.C. and proved the same as Ext. Ka.17.

38. In cross examination, this witness has stated that he had proceeded from the police outpost on 7.3.1980 at 10 a.m. and reached at the place of occurrence at 10.30 a.m. The place of occurrence from the police outpost was about 2 furlong. He did not record the statement of Head Moharrir of police outpost. The informant was present at the police outpost for about 20-25 minutes.The informant remained present at the place of occurrence till the other witnesses were present. The informant was present with him at the place of occurrence for about 1 ½ hours. The witnesses remained present at the place of occurrence till the informant was present. Prior to the spot inspection, he did not record the statements of the informant or the witnesses as he did not think it proper to record the same. He did not meet the informant after the spot inspection on 7.3.1980 and 8.3.1980 respectively. On 9.3.1980 and 10.3.1980 he did not record the statement of the informant.

39. This witness denied the suggestion that he had prepared the case diary of the present case in one day and further denied that in collusion with the informant, he lodged a false prosecution against the accused and also denied the suggestion that all the papers which were prepared, have been fabricated.

40. DW1-Dr.Shyam Lal Gupta has stated that on 7.3.1980 he was posted as Medical Officer, PHC, Mau. He further stated that on 7.3.1980 at 1.30 p.m. he conducted the medical examination of accused Devendra Pratap Singh at who was brought to him by Constable Gulab Singh and he found the following injury:-

"1. Gunshot wound of entry ½ cm. diameter x 2 cm. on the back side of left forearm 13 cm. below the wrist joint. Redness in margin present. Blood was oozing out of wounds. Margins inverted. There was no exit wound present. Swelling was present around the wounds which was extended from wound towards elblow.

2. Abrasion 2 cm. x 1 cm. on the phalanx of the middle finger of right palm."

41. Injury no.1 was kept under observation and was advised X-ray. Injury no.2 was simple in nature and was caused by some hard and blunt object. Both the injuries were 6 hours old.

42. On the same day at 2.10 p.m. he also examined the accused Balwan Singh who was also brought by Constable Ram Khelawan Mishra and identified him. He found the following injuries on his person:-

"1. Abraded contusion 6 cm. x 4 cm.x 2 cm. towards the 3 cm. below the inner base of chin and 4 cm. above the Thyroid bone. Blood was oozing out of the wound."

43. He has proved injury report Ext. Kha.4 & 5. Both the injured could have receive the injuries on the said date, i.e., on 7.3.1980 at 10.30 a.m. The injury which was caused to accused Balwan Singh could be caused if the shot goes raising through the wound. He denied that injury no.1 could be caused by gun or countrymade pistol and injury no.2 could be caused by fall. He denied that the injury which has been caused to accused Balwan on his chin could be caused by rifle.

44. DW2-Om Prakash has stated before the trial Court that on 7.3.1980 Ram Gopal Tiwari was Head Constable of police station Mau and posted there, he was acquainted with his hand writing and signature. On 7.3.1980 Zild chick and Zild G.D. which was put to him of police station Mau dated 7.3.1980 at 13.20 p.m., written report of Munna Singh, son of Sheo Shankar was registered against Narayan Singh and others, on the basis of which chik FIR was prepared by Ram Gopal Tiwari and has proved the same as Ext. Kha.6 and on the basis of the FIR, Ram Gopal Tiwari, Head Moharrir, had endorsed the same in G.D.No.18 on 7.3.1980 at 13.20 p.m. against Narayan Singh, Chhatra Mohan Singh and Udai Veer Singh under Sections 147, 148, 307 I.P.C. and has also proved the copy of G.D. No.18 in his hand writing and signature which is the copy of original G.D. and has proved the same as Ext. Kha.7. He is not aware of the fact that whether Ram Gopal Tiwari has been transferred to another District.

45. In his cross-examination, he has stated that G.D.Rapat No.17, there is a report under Section 25 Arms Act against Munna Singh son of Sheo Shankar Singh and he has filed copy of G.D. No.17 and proved the same as Ext. Ka.18 and the said G.D. has been written by H.M.Ram Gopal Tiwari who is known to him.

46. DW3-Kuber Singh has stated that he knows Chhatra Mohan Singh, Udai Veer Singh and Lallu of his village. Lallu is also known as Amar Nath. The incident had taken place five years ago and he was at the seed go-down of the railway station at 3.25 p.m. A tractor was coming from the western side and on the said tractor accused Munna Singh Devendra Pratapk Singh and Balwan Singh were sitting. Accused Munna Singh and Devendra Pratap Singh were the resident of village Kaniyar whereas the accused Balwan Singh was of Allahabad. Balwan Singh and Munna Singh are cousin brother. When the tractor reached in front of seed go-down, then Narayan Singh, Chhatra Mohan Singh Udai Veer Singh, Amar Nath and 10-15 persons of coal had arrived there. Narayan Singh was carrying a rifle, Chhatra Mohan and Udai Veer Singh were carrying SBBL gun of 12 bore and others were with lathi and ballam. The said persons were abusing Munna Singh and other. Narayan Singh shot at Balwan Singh which hit his chin, whereas Udai Veer Singh shot fire from his gun which hit Devendra Pratap Singh in his hand and blood was oozing out from the wounds of the two persons who received injuries. When they proceeded towards Munna Singh, then Munna Singh fired from his country-made pistol. The incident was witnessed by him along with Ram Krishan and the shot which was fired by Munna Singh hit the Narayan Singh and he had fallen down, then Munna Singh seated on the tractor and took Devendra Pratap Singh and Balwan Singh and thereafter this witness returned without taking medicine.

47. In his cross-examination, this witness has stated that he remained at the seed go-down up to 10.45 a.m. He did not go near Narayan Singh. Narayan Singh was palpitating but not died. Narayan Singh had fallen on the ground by the side of the tractor and this was at a distance of 10-15 from Narayan Singh. He did not ask him to indulge in marpeet or not to fire from gun and pistol. No other person also objected to it. When Devendra Pratap Singh and Balwan Singh received fire shot, they were standing on the ground by the side of the tractor. Narayan Singh fired shot by rifle at Balwan Singh from a distance of 4-6 paces. Narayan Singh fired shot at Balwan Singh from its front. Balwan Singh was wearing pant and the shot of rifle hit his pant and shirt. A little bit blood was coming out. The place where Balwan Singh was standing, whether blood was fallen on the ground or not he could not see. On the right side of Balwan Singh at a distance of 4 paces, Munna Singh was standing. Devendra Pratap Singh was in between the Balwan Singh and Munna Singh. When Devendra Pratap Singh was hit by a shot then the person who had fired shot at Devendra Pratap Sigh was at a distance of 2-4-6 paces and the shot was fired from front at Devendra Pratap Singh. Devendra Pratap Singh was wearing shirt and pant and the shirt was half sleeves. The pant and shirt of Devendra Pratap Singh was blood stained but he could not see whether the blood was fallen on the ground or not. He saw Munna Singh firing shot once. When Munna Singh was returning by taking tractor till then no one else had fired at Narayan Singh and thereafter on the same day he came to know that Narayan Singh had died. He further stated that a sale deed was executed between him and Brij Mohan of a land.

48. He denied that at the instance of Munna Singh he is falsely deposing. He further denied the suggestion that on the day of incident at 9.30 a.m. Munna Singh and others had murdered Narayan Singh by firing shot by country-made pistol and also assaulted him with lathis. He further denied the suggestion that Munna Singh and others were not assaulted by any one and their injuries were fabricated.

49. Heard Sri P.C.Srivastava, learned counsel for the appellants and Sri Irshad Hussain, learned AGA for the State and perused the impugned judgment and order as well as lower court record.

50. Learned counsel for the appellants has vehemently argued that the presence of PW1, PW2 & PW3 at the place of occurrence is highly doubtful. He further submitted that the prosecution has suppressed the origin of the incident and has not come with the clean hands. Moreover, the injuries which have been sustained by the accused Devendra Pratap Singh and Balwan Singh have also not been explained by the prosecution. He next submitted that it was the complainant party and the deceased who had assaulted with firearm weapon on the accused persons, on account of which the accused Devendra Pratap Singh received injuries on his hand and accused Balwan Singh also received injuries on his chin and they both were medically examined by DW1-Dr. Shyam Lal on the same day.

51. It was further pointed out that the cross report of the incident was lodged against Udai Veer Singh and others of the complainant side under Section 307 I.P.C. in which final report was submitted by the police and thereafter a complaint was filed which was registered as S.T.No.552 of 1983 against Udai Veer Singh and others who belong to the complainant party which was tried by the present trial Court and has ended in acquittal, but on the non-explanation of the injuries on the side of the accused Devendra Pratap Singh and Balwan Singh goes to show that the incident had happened in some other manner and not as stated by the prosecution.

52. He has further pointed out that there was animosity going on between the accused side and complainant party as accused Mahendra Pratap Singh had made several complaints against the deceased and complainant for getting the arm license cancelled, for which some proceedings were initiated for cancellation of their firearm licence and on account of which the complainant party has assaulted the accused persons in which they received injuries and in self defence the accused Munna Singh fired with his gun on the deceased Narayan Singh to save himself and his family members.

53. He next submitted that the trial Court has misread the evidence on record and convicted the appellants, namely, Munna Singh, Surendra Pratap Singh, Devendra Singh and Sheo Shankar Singh, who are real brothers, whereas the accused Mahendra Pratap Singh against whom allegation of conspiracy was levelled, has been acquitted by the trial Court and accused Balwan Singh was convicted under Section 323 I.P.C. but he too was convicted but he was released from jail on the basis of period undergone. The impugned judgment and order passed by the trial Court, thus, is liable to be set aside and the the appellants be acquitted.

54. Learned counsel for the appellants has lastly argued that even if the prosecution case is taken to its own face value, it can be a case of exceeding the right of private defence, hence, the case would not travel beyond Section 304 Part-I I.P.C.

55. In support of his argument, learned counsel for the appellants has placed reliance upon the judgement reported in Suresh Singh and Others Vs. State of Haryana,reported in 1999 SCC (Cri) 560, Moti Singh Vs. State of Maharashtra, 2003 SCC (Cri) 1226, Subramani and Others Vs. State of Tamil Nadu, 2002 SCC (Cri) 659 & Darshan Singh Vs. State of Punjab and Another, (2010) 2 SCC (Cri 1037

56. Learned AGA on the other hand, has vehemently argued the submissions advanced by learned counsel for the appellants and submitted that as per the defence taken by the appellants for their presence at the place of occurrence has been admitted as they have stated that in self defence they shot dead the deceased as the two persons from the side of the accused appellant, i.e.,Devendra Pratap Singh and Balwan Singh also received injuries in the incident. He next argued that the defence which has been taken by the accused appellant, was found to be false as cross case which was registered from the side of the accused against the complainant party has resulted into their acquittal and no appeal was preferred by the accused persons against the judgement and order passed by the trial Court. He argued that the injuries which have been sustained by the accused Devendra Pratap Singh and Balwan Singh were simple in nature and no X-ray was performed due to which the trial Court disbelieved the same as it could be self inflicted also.

57. He further stated that as per the prosecution case, the deceased received gunshot injuries made by the three accused persons with their respective firearms and the deceased received as many as 13 injuries on his person which included 8 gunshot injuries and the injuries sustained by the deceased also goes to show that the injuries which were sustained by the deceased were fired from close range as blackening and tattooing was present around the wounds margins were inverted. Moreover, the deceased also received contusions including abraded contusions which could be the result of blunt object also. The ocular testimony completely corroborates the post mortem report of the deceased, hence, conviction and sentence of the appellants by the trial Court is fully testified and may not be interfered with by this Court.

58. We have considered the submissions advanced by learned counsel for the parties and have also perused entire evidence along with the lower court record as well as the impugned judgement and order passed by the trial Court.

59. It appears from the prosecution case that the deceased received several gunshot injuries on his person which were fired from a close range also as blackening and tattooing was found all around the wounds and margins were inverted. The three accused appellants who were armed with firearm weapons are stated to have fired shot at the deceased one after other as per the evidence of PW1, PW3 and PW4 and their testimony fully corroborates the post mortem report of the deceased.

60. Learned counsel for the appellant has tried to dislodge the presence of PW1, PW3 and PW4 demonstrating from the evidence but the said argument of learned counsel for the appellants is not at all acceptable for the simple reason that the accused appellants in their statements under Section 313 Cr.P.C. have categorically taken the defence that they fired shot at the deceased in their self defence as they apprehended danger to their lives as two accused Devendra Pratap Singh and Balwan Singh received injuries at the hands of the complainant party but the injuries sustained by the two accused persons were not found to be proved to have been received in the said incident and cross case which was lodged by the accused party, also found to be not proved and resulted into acquittal of the complainant party. The injuries which have been sustained by the accused Devendra Pratap Singh and Balwan Singh shows that they were simple in nature and could easily be manufactured and they are superficial injuries. Moreover,no X-Ray was also performed of the injuries of the said two accused Devendra Pratap Singh and Balwan Singh. The PW1, PW3 and PW4 have categorically stated that neither the deceased nor PW1 were carrying firearm weapon nor they fired shot on the said two injured, which goes to show that PW1 and deceased Narayan Singh were empty handed and because of quarrel which had taken place in the morning on the day of incident where the cattle of the accused had gone in the field of the complainant, on which the deceased Narayan Singh objected and tried to drive away the cattle to the Kanji House and father of the accused appellant, namely, Sheo Shankar intervened and there was some altercation took place between the complainant and the deceased. The said dispute was settled by Hammev Singh and others and thereafter the complainant and the deceased Narayan Singh went to their house at Bargadh near railway station from village Kanihar and the accused came there and assaulted the deceased with firearm weapons, on account of which he succumbed to his injuries and died on the spot.

61. PW1 immediately lodged a report at police outpost Bargar under the jurisdiction of police station Mau, FIR was registered and police arrived at the place of occurrence and panchayatnama of the deceased was conducted and dead body was sent for post mortem by the Station Officer after completing the other formalities. The incident had taken place at 9.30 a.m. and FIR was lodged promptly at 10.00 a.m. at police outpost which was only one furlong from the place of occurrence, hence, there appears to be no ambiguity in the prosecution case in which the real culprits, i.e., the accused appellants who are involved in the incident and named FIR was lodged against them by PW1.

62. The last contention of learned counsel for the appellants that even if the prosecution case is taken at its face value, it can be a case of exceeding right of self defence by the appellants and the case would not travel beyond Section 304 Part-I I.P.C., is also not acceptable as it was the accused appellants who had gone to the house of the complainant and the deceased near Bargadh Railway Station, while the two were going to see their stock of ashes of coal and when they reached on the road near the stock, on the exhortation of appellant Munna Singh that the enemies should be killed he fired shot which hit the deceased on which he trembled and tried to run away, on which Surendra Pratap Singh shot with his countrymade pistol at his brother from a very close range. Devendra Pratap Singh also fired with his countrymade pistol and thereafter Surendra Pratap Singh again fired at the deceased, on which he had fallen down and subsequently he was assaulted by lathi by the accused Balwan Singh. Thus, the said act and conduct of the appellants shows that they were the aggressor and had gone with an intention to kill the deceased and had murdered him in broad day light who died on account of ante mortem injuries received on his person which is a cold blooded murder and they have been rightly convicted under Section 302/34 I.P.C. by the trial Court.

63. The case laws which have been relied upon by learned counsel for the appellants are distinguishable on the facts and circumstances of the present case and cannot be made applicable in the present case in view of the incident being admitted by the appellants.

64. The finding recorded by the trial Court for conviction and sentence of the accused appellants is based on cogent evidence and is supported by sound reasons, which does not require any interference by this Court. Hence, the conviction and sentence of the appellants awarded by the trial Court requires to be upheld by this Court, which is hereby upheld accordingly.

65. The appeal lacks merit. It is, accordingly, dismissed.

66. The accused appellants Munna Singh, Surendra Pratap Singh and Devendra Pratap Singh are on on bail, their bail bonds and sureties are cancelled.They shall be taken into custody forthwith to serve out the sentence, as has been awarded by the trial Court.

67. Let a copy of this order along with the lower court record be sent to the trial Court concerned for its immediate compliance forthwith.

   (Dinesh Kumar Singh-I, J.)    (Ramesh Sinha,J.)
 
Order Date :- 24.05.2019
 
NS