Aidal Singh And Another vs State
2021 Latest Caselaw 11077 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 27.8.2021
 
Delivered on 09.09.2021
 
Case :- CRIMINAL APPEAL No. - 319 of 1985
 
Appellant :- Aidal Singh And Another
 
Respondent :- State
 
Counsel for Appellant :- Pt.Mohan Chandra,Rajesh Singh,Yogendra Misra,Yogesh Kumar Srivastava
 
Counsel for Respondent :- D.G.A.,A.G.A.
 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

Delivered by Syed Aftab Husain Rizvi, J.

1. Heard Sri Y.K. Srivastava, learned counsel for the appellants and Sri Devendra Kumar Singh, learned AGA.

2. This criminal appeal has been filed against the judgment and order dated 30.1.1985 passed by Vth Additional Sessions Judge, Agra in Sessions Trial No. 348 of 1983 (State of U.P. Vs. Aidal Singh & others), Case Crime No. 67, Police Station - Tundla, District - Agra convicting and sentencing the appellants Aidal Singh and Ram Charan under Sections 302 IPC for life imprisonment.

3. During pendency of this appeal, the appellant no. 1, Aidal Singh has died. Therefore, the appeal stands abated against the appellant no. 1, Aidal Singh.

4. The prosecution case is that on 8.3.1983 at 9:15 a.m., complainant - Nathi Lal son of Chiranji Lal gave an oral information at police station - Tundla, district - Agra that he is resident of village - Garhi, police station - Tundla,. His sasural is in the house of Jagjit son of Chetram, resident of village Nagla Asha. Jagjit has no other issue except his wife Bohri and due to this, he along with his wife and children are living with his father-in-law in his house since seven to eight years and doing agriculture. The real brother of his father-in-law Aidal Singh do no like this and on many occasions there was an altercation between them. Aidal Singh and others were afraid that Jagjit, his father-in-law will transfer the land about 20-25 Bighas to him and his wife. Aidal Singh forbid, his father-in-law Jagjit to keep his daughter and son-in-law in his house and wanted to eliminate him. The previous night at about 11:00 p.m., cousins of his wife, Naimichand, Gyaniram, his wife Bohri and his father-in-law Jagjit were siting in his house under a Chhappar and were talking. Dibbi (Kerosene lamp) was burning, meanwhile, Aidal Singh, Bhagwan Singh holding Lathi in their hands and Ram Jit Lal holding Ballam, Pratap Singh, Dariyav Singh and Ram Charan armed with country made pistols came there and Aidal said that today Jagjit will be taught a lesson for keeping his daughter and son-in-law with him and all of them surrounded us. Ram Charan fired a gun shot upon my father-in-law with a country made pistol which hit his left chest and he fell down on the ground and died. We all made a noise, Aidal Singh and others ran away towards ravine (Beehad) in the South. The witnesses saw and identified the accused in the light of Dibbi (kerosene lamp). In the night, he could not come to the police station due to fear and after sunrise have come at police station leaving family and villagers near the dead body.

5. On the aforesaid oral information Case Crime No. 67 under Sections 147, 148, 149 and 302 IPC was registered against all the six accused named in the FIR. Investigation commenced, investigating officer visited the place of occurrence and took blood stained and plain soil from the place of occurrence, sealed it in separate containers, also took in possession Dibbi (kerosene lamp) and prepared memo thereof and also prepared site plan. Panchayatnama and post-mortem of the deceased was conducted. Investigating officer recorded the statements of complainant and other witnesses and after completion of investigation submitted the charge sheet against all the six accused persons under Sections 147, 148, 149 and 302/34 IPC.

6. Learned trial court framed charges against Aidal Singh, Bhagwan Singh, Ram Ji Lal, Pratap Singh and Darab Singh under Section 302 read with Section 149 IPC against the accused, Aidal Singh and Bhagwan Singh under Section 147 IPC, against the accused Ramji Lal, Pratap Singh, Darab Singh and Ram Charan under Section 148 IPC and against the accused - Ram Charan under Section 302 IPC. Accused denied the charges and claimed for trial. Four witnesses were produced by the prosecution and ten prosecution papers have been Exhibited. Statements of accused were recorded, under Section 313 Cr.PC. Accused denied the prosecution case and stated that they are innocent and have been falsely implicated due to enmity. One defence witness, Gyani Singh - D.W.-1 has also been examined by the accused.

7. Learned trial court by the impugned judgment acquitted accused - Bhagwan Singh, Ramji Lal, Pratap Singh and Darab Singh from all the charges and convicted accused - Aidal Singh and Ram Charan for charge under Section 302 IPC only and sentenced them for life imprisonment.

8. Post-mortem of the Jagjit was conducted by Dr. Keshaw Singh on 9.3.1983 at 1:00 p.m.. According to the post-mortem report, Exhibit Ka-1 rigor mortis present, eyes half open, the following anti-mortem injuries were found on the body (i) gun shot wound of entry 4 cm x 4 cm cavity deep on the left side of the chest and 3 cm below and lateral to the nipple. Blackening and tattooing present. Margins inverted.

In internal examination, left lung and pericardium were lacerated, heart was punctured and empty, clotted blood was present in chest cavity, stomach was empty, semi digested food material present in small intestine, faecal matter present in large intestine, liver was lacerated. Duration of death is about one and a half day and cause of death was due to shock and haemorrhage as a result of anti-mortem injury. The post-mortem report has been proved as Exhibit Ka-1 by Dr. Keshaw Singh P.W.-1.

9. The prosecution case is based on direct evidence and there are two eye witnesses, namely Nathi Lal and Bohri. According to the prosecution, Nathi Lal (P.W.-2) is the complainant. In his examination-in-chief, he has narrated the version of the first information report and has supported it and has also proved the FIR as Exhibit-Ka-2. He has also said that police station is 5 to 6 kms away from his village. He being alone could not go the police station in the night.

10. Bohri (P.W.-3) is the wife of the complainant and the daughter of the deceased. In her examination-in-chief, she has said that she was living in his Mayaka (village - Nagla Asha) at the time of murder of her father. Her father's name is Jagjit and Aidal Singh is her uncle. Near one year and nine months ago at 12:00 p.m. in the night her father Jagjit was sleeping under the Chhappar of the house. She was sleeping inside the house. The house is built at thar. When she came outside, her father was lying dead. She has not seen anyone. She knows all the six accused, namely Bhagwan Singh, Ram Charan, Pratap Singh, Ramji Lal, Aidal Singh and Daryav Singh. They are present in the court. She has not seen them at the spot. This witness has not supported the prosecution case and on request of the prosecution, the witness was declared hostile and cross examined by the prosecution. In her cross-examination, the witness has denied her statement under Section 161 Cr.PC. She has further said that she was sleeping and no Dibbi (kerosene lamp) was burning. She woke up after hearing the sound of gun shot. She has also contradicted the suggestion given by the prosecution that she has entered into a compromise with her uncle and due to this she is not giving correct statement. On further examination by the defence, she again reiterated that she was sleeping inside the house and her husband was sleeping at the door. She and Naimichand and Gyaniram came outside after hearing the sound of gun shot and till then no one told the name of the person who fired the gun shot. It was dark night.

11. Constable - Nahar Singh, P.W.-4 is a formal witness who has proved the other prosecution papers, like Chik FIR, copy of the G.D., Panchayatnama and related papers, the site plan and charge sheet by secondary evidence.

12. Out of the two eye witnesses examined by the prosecution, one witness, P.W.-3 Bohri has become hostile and has not supported the prosecution case and now the prosecution case rests on the sole testimony of eye witness - Nathi Lal (P.W.-2). Although, he has supported the allegations of the FIR, but his oral testimony is not inspiring. The prosecution case is that deceased along with his son-in-law, Nathi Lal (P.W.-2) and his wife and Nemichand and Gyan Chand were sitting under the Chhappar which is outside the house and were talking. It does not seem natural and probable because the village people believes in the principle of early to bed and early to rise. They take their dinner just after sun set and go to bed early. It is also pertinent to mention that incident is of first week of March, the winter season. It has also come in evidence that the house of deceased, Jagjit is one furlong away from the village and after some distance the ravines begin. So sitting and talking under Chhappar outside the house at 11:00 p.m. does not appear to be probable. It is also the prosecution case that the accused persons armed with lathi, ballam and country made pistols came there while deceased, her two brothers, son-in-law and daughter were sitting under the Chhappar. Accused, Ramcharan fired a single shot which hit the deceased and all accused ran away. None of the persons present on the spot even tried to pacify or intervene or save the deceased. No scuffle has taken place. No other person has received any kind of injury and all accused made good there escape just thereafter without causing any harm to the complainant or his wife. This story also not seem probable. There are other contradictions also in the oral statement of Nathi Lal (P.W.-2). In his cross examination, he has said that Dibbi (kerosene lamp) was kept in tidwall of the northern wall while in the site plan (Exihibit Ka-7), it is shown in the eastern wall and not in the northern wall as stated by Nathi Lal (P.W.-2). The witness has further stated in his cross examination that there was no other cot in the south of Jagjit's cot but in the site plan (Exibit Ka-7) three cots have been shown in the south of cot where dead body of the deceased was lying.

13. Gyan Singh named as Gyani in the FIR has been produced by the accused in defence as D.W.-1 and who is the cousin of the deceased. He has said that Jagjit was murdered two years ago in midnight in the fields. He also went there. Nemi, Nathi, Bohri and brothers of Jagjit also reached there. We all reached there after the murder. No one has seen the occurrence. Nathi went to lodge a report in the morning and till then name of the culprits were not known. In cross examination, this witness has contradicted his statement recorded by the investigating officer under Section 161 Cr.P.C. and has also denied the suggestion that he is giving false evidence due to compromise.

14. P.W.-3, Bohri is the daughter of the deceased and the wife of the complainant Nathi Lal although she has not supported the prosecution case and has become hostile but her oral statement cannot be ignored on this ground. She has said that when her father was murdered, she was living in her Mayaka. She has further said that it was 12:00 p.m. in the night her father was sleeping under the Chhappar at the door of the house and she was inside the house. In her cross examination, she has said that on hearing the sound of fire, she came out. She has also said that she was sleeping and no Dibbi (kerosene lamp) was burning, she woke up on hearing the sound of fire. She has further said that her husband was also sleeping at the door. So the statement of this witness appears to be natural and probable and from the evidence on record it appears that the incident has occurred in the dead of night in darkness when all were asleep. It is a hit and run case and no one had opportunity to see and identify the assailant. The statement of defence witness gets support from the oral statements of P.W.-3, Bohri and statements of these witnesses contradict and belie the oral testimony of P.W.-2, Nathi Lal. There are major contradictions and discrepancies in the statement of Nathi Lal. His oral testimony is not reliable. Learned trial court has erred in placing reliance on sole testimony of Nathi Lal (P.W.-2).

15. Learned AGA contended that oral evidence of Nathi Lal

(P.W.-2), complainant and eye witness is consistent and is also supported with medical evidence. Bohri (P.W.-3) has become hostile and has not supported the prosecution case due to fear so it will not adversely affect the prosecution case and reliability of Nathi Lal (P.W.-2). These arguments are not convincing. As discussed above, the oral testimony of Nathi Lal (P.W.-2) is not inspiring and reliable. Bohri is the wife of Nathi Lal (P.W.-2), who has lodged the FIR and has named accused persons and also deposed against them in Court. Hence, it cannot be considered that wife of Nathi Lal out of fear has become hostile and has not supported the prosecution case. Contrary to it, from material on record, it appears that her statement is more natural and probable and it also gets support from defence witness - Gyan Singh who is named as eye witness in the FIR.

16. From appreciation of evidence on record, it appears that incident has occurred in the night while all were asleep and a single shot was fired by someone who made good his escape from the spot before anyone can notice the incident.

17. From the aforesaid discussion, it is clear that the sole testimony of Nathi Lal (P.W.-2) is not reliable and there is no other witness to corroborate his oral version. The learned trial court has failed to appreciate the evidence properly and the finding of conviction recorded by it is not sustainable. The appeal is liable to be allowed.

18. The criminal appeal is allowed. The conviction of the appellant no. 2, Ramcharan under Section 302 IPC and consequent sentence of rigorous imprisonment is set aside. Appellant no. 2 / accused, Ramcharan is acquitted from charge under Section 302 IPC. Appellant / accused is in jail. Appellant / accused be released forthwith if not wanted any other case.

19. Lower court record along with copy of the judgment be transmitted to the learned trial court immediately.

Order Date :- 09.09.2021

Arif