Ayodhya Singh And Others vs State Of U.P.
2022 Latest Caselaw 22185 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Reserved on : 09.11.2022
 
Delivered on: 21.12.2022
 
Court No. - 1
 
Case :- CRIMINAL APPEAL No. - 240 of 1986
 
Appellant :- Ayodhya Singh And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kr. Shanti Prakash,Arun Sinha,Ashish Mishra,Kr. M. Rakesh,Raghvendra Pratap Singh,Riyaz Ahmad,Siddhartha Sinha,Surendra Pratap Singh,Vinay Kumar Singh
 
Counsel for Respondent :- G.A.,Janardan Singh,Suresh Kumar Upadhyay
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Renu Agarwal,J.

(Delivered by Hon'ble Renu Agarwal,J.)

1. This criminal appeal has been filed by the appellants Ayodhya Singh, Lal Ji Singh, Man Bahadur Singh, Bharat Singh, Bhanu Pratap Singh against the judgment and order dated 04.04.1986 passed by the III-Additional Sessions Judge, Gonda in Sessions Trial No. 386 of 1985 State Vs. Ayodhya Singh and others Police Station Kotwali Dehat convicting the appellants and sentencing each of them six months rigorous imprisonment under Section 147 IPC, six months rigorous imprisonment under Section 323/ 149 IPC and to the imprisonment to life under Section 302/149 IPC.

2. During the pendency of appeal, appellant No. 1 Ayodhya Singh and Appellant No. 2 Lal Ji Singh, have died and the appeal stood abated with regard to the appellants No. 1 and 2.

3. Wrapping the facts in brief, on 19.4.1984 at about 2 p.m. Jagannath Singh, lodged a written report that his brother Vishwanath Singh was thrashing wheat in the field and his son Dabbu and one Rudra Prasap son of Ayodhya Singh were playing. Both the boys started quarreling. Rudra Pratap went to his house weeping. After some time Ayodhya Singh, Lalji Singh, Man Bahadur Singh, Bharat Singh and Bhanu Pratap Singh armed with lathies, arrived and started scolding Dabbu Singh. Vishwanath Singh also went there and asked as to what was the matter. The aforesaid accused thereupon started beating Vishwanath Singh with lathi. Vishwanath Singh also plied khodni in his self-defence. On the alarm raised by Vishwanath Singh informant Jagganath Singh and his brother Jagdish Singh, rushed to the spot and tried to save the deceased Vishwanath Singh. Jagdish Singh also sustained injuries. Witnesses Hanuman Singh, Ram Karan Singh alias Ghullur Singh, Jai Prakash Singh, Sipahi Singh and Ram Deo Singh intervened and the accused person then left the spot. Vishwanath Singh was being taken to the hospital by the informant and others, when he succumbed to death due to the injuries sustained by him.

4. A written report (Ex Ka-1) was lodged about the incident on 19.04.1984 at about 4:30 p.m. in the police station which is at the distance of 11 km from the village Lorhiya Ghata. On the basis of written report chick report (Ex Ka-15) was prepared. A case was registered and endorsed in G.D. Investigation was entrusted to Sub-Inspector Satish Chandra Ojha who conducted and prepared the inquest report (Ex Ka-3). He also prepared photo lash and challan lash, sample seal, letter to C.M.O and send the body of the deceased for autopsy. Investigating officer recorded the statement of witnesses of inquest, Munizar Singh-Scribe of the report, Jagganath Singh and other witnesses Jagdish Singh, Hanuman Singh, Ram Karan Singh, Jai Prakash Singh, Siphai Singh, Ram Deo Singh and Dabbu Singh, inspected the spot and prepared site plan, recovered the blood stained and plain earth from the place of occurrence and prepared recovery memo thereof.

5. The case property was sent for chemical examination to forensic science laboratory, Agra through constable Shri Niwas Chaudhari. Thereafter investigation was taken over by Inspector Ram Kripal Tiwari who after satisfying from the investigation conducted by Satish Chand Ojha submitted charge-sheet against the appellants in court.

6. After compliance of Section 207 Cr.P.C, the case was committed to the Court of Sessions, charges were framed and read over to the appellants under Sections 147, 302/149, 323/149 IPC, the appellants abjured from the charges and claimed to be tried.

7. In order to prove the prosecution case the following witnesses were produced by the prosecution:-

(a) P.W.-1 Jaggan Nath Singh.

(b) P.W.-2 Jagdish Singh.

(c).P.W.-3 Hanuman Singh.

(d) P.W.-4 Dr. S.K. Gupta.

(e) P.W.-5 Dabbu @ Brijesh.

(f) P.W.-6 S.I. Satish Chandra Ojha.

(g) P.W.-7 Inspector Ram Kripal Tripathi.

(h) P.W.-8 H.C. C.P. 57 Sultan Ahmad.

(g) P.W.-9 C.P. 246 Lalit Kumar.

(h) P.W.-10 Dr. R.U.Pandey.

8. Beside the ocular evidence, prosecution adduced following documentary evidence:

(I) Written report (Ex Ka-1)

(II) Inquest Report (Ex Ka-3)

(III) Site Plan (Ex. Ka-9)

(IV) Recovery memo (Ex. Ka 11 to 13).

(v) First Information Report (Ex. Ka 15)

(VI) injury report (Ex Ka-2)

(VII) Post mortem report (Ex Ka-18)

(VIII) Forensic Science Laboratory Report (Ex Ka-19).

9. After the conclusion of the prosecution witnesses, statement of accused under Section 313 Cr.P.C were recorded. Accused denied all the allegations levelled against them and stated that Dabbu and Rudra Pratap were playing under the mango tree and both had a quarrel over a dropped mango from a tree. Dabbu complained the incident to his father and uncles who in-turn beat Rudra Pratap Singh with lathies. Hearing the cries of his son, he along with accused reached the place of occurrence then the deceased and his brother started beating them also then they plied lathies in their self-defence and the person from both the sides got injuries. The accused shown their ignorance about the death of the deceased Vishwanath Singh. The accused Bhanu Pratap, Bharat Singh and Man Bahadur claimed him to be alive in the statements under Section 313 Cr.P.C. The appellants were given opportunity to adduce defence which they refused.

10. After perusal of the record, statement of the witnesses, documentary and ocular evidence, trial court convicted and sentenced the accused Ayodhya Singh, Lalji Singh, Man Bahadur Singh, Bharat Singh and Bhanu Pratap Singh for offences under Sections 147, 323/149 and 302/149 IPC. Aggrieved with the conviction and sentence the present appeal has been filed.

11. Heard Shri Vinay Kumar Singh, learned counsel for the appellants and Shri Prabhat Adhauliya, learned A.G.A for the State.

12. It is contended by learned counsel for the appellants that the appellants also sustained injuries in the incident which has not been explained by prosecution and the appellants are falsely roped in this case. The number of assailants have been deliberately increased, it is a clear case of self-defence because the prosecution should not be allowed to have the benefit of weakness and laches in the defence, injuries also indicate that there was no intent to kill. It is not known which was the fatal injury to deceased. The case is covered under Section 325 IPC or at the maximum by Section 304 part II IPC if the prosecution case is taken at its face value. The khodni which allegedly used in self-defence by the deceased Vishwanath Singh was not brought before the Court not even before the police.

13. Learned A.G.A on the other hand has argued that there was a dispute between the son of the deceased Vishwanath and son of accused-appellant No. 1 over having mango dropped from the tree both the children went to have dropped mango and when the son of deceased denied to hand over the mango to Rudra Pratap, he started weeping and complaint to his father and uncle and then the assailants armed with lathies arrived at the place of occurrence and started scolding the son of deceased Vishwanath and when the deceased Vishwanath enquired about the incident all the appellants started assaulting the deceased by lathis. The deceased used khodni in his self-defence but when he sustained injuries on his head he could not used khodni. Thereafter when the witnesses Jagdish and complainant himself tried to save Vishwanath Singh, the appellant assaulted and injured them also. He could not use khodni and his brother Jagdish sustain injuries while saving their brother Vishwanath Singh. It is also submitted by learned A.G.A that all the witness prove guilt of the appellants beyond reasonable doubt, their presence is admitted at the place of occurrence, therefore, the appeal filed by the appellants is liable to be dismissed.

14. Before analyzing the ocular evidence, it is appropriate to recapitulate the statement of witnesses in court.

15. P.W.-1 Jagannath deposed in Court that at about 2 p.m. on the date of incident, he along with his brother Jagdish and Vishwanath, were thrashing the wheat in their khaliyan. In south of the khaliyan there is a mango tree. Dubbu @ Brijesh and Rudra Pratap were playing under the mango tree. A mango dropped and was picked by Dabbu. Rudra Pratap shouted at Dabbu and both of them started quarreling. Rudra Pratap went to the village and Dabbu returned to the khaliyan. After some time the appellants armed with lathies arrived in the khaliyan and started scolding Dabbu. Vishwanath enquired about the matter, the accused started beating Vishwanath Singh. Vishwanath Singh, tried to ply with Khodni and raised alarm. He and his brother reached at the place of occurrence and the accused assaulted them also. When the witnesses of the incident arrived all the accused went away towards the village. Injured Vishwanath was taken by him by tonga when he expired on the way.

16. P.W.-2 Jagdish the injured witness of the incident deposed that when he was present in his kaliyan along with his brother Jaggannath and Vishwanath and was thrashing wheat, son of Vishwanath entangled with Rudra Pratap on account of dropped mango from tree. After some time, the accused appellant armed with lathies arrived in khaliyan and started scolding Dabbu when Vishwanath enquired about the incident, all the appellant started beating him with lathies. He also sustained injuries inflicted by the appellants. Vishwanath died when he was being taken to the hospital

17. P.W.-3 Hanuman Singh who is stated to be eye-witness of the incident stated on oath that while he was thrashing wheat in his khaliyan, he saw that all the appellants were beating Vishwanath Singh with lathies. Vishwanath Singh plight with khodni in his self-defence twice or thrice but when he sustained injuries on his head he could not save himself and died when he was being taken to the hospital.

18. P.W.-4 Dr. S.K.Gupta who had medically examined the injured Jagdish Singh on 19.4.1984 and found following injuries:

1. Lacerated wound, 3 cms x.5cm x scalp deep on the left posterior side of head, 10 cms. Above left ear, fresh blood was present.

2. Traumatic swelling- 3 cms x 0.5 cms on the left forearm, 12 cms above left wrist joint.

3. Complaints of pain on the left him and right side back but no external mark of injury was seen.

19. P.W.-5 Dabbu @ Brijesh aged about 10 years is the star witness who stated on oath that he and Rudra Pratap were playing under the tree when small Tikora (mango) dropped he and Roopal (Rudra Pratap) rushed towards that mango. Dabbu got that mango. Roopal tried to snatch the mango but on being failed abused him and went to his house. He started playing again then all the accused armed with lathies arrived and started scolding and abusing him. His father came and enquired about the matter then all of them started beating his father. His father also tried to ply with khodni in his self-defence but he could not defend for long. Then his uncles Jagdish and Jaggannath tried to save his father but they also sustained injuries in the incident.

20. P.W.-6 Sub-Inspector Satish Chandra Ojha, appeared and deposed in Court that he started investigation of the case, prepared and proved the inquest report (Ex Ka-3), prepared photo lash and challan lash, specimen seal, letter to CMO and sent the relevant papered (Ex Ka 4 to Ka-8) and send the dead body for autopsy along with the copy of FIR and G.D recorded the statement of witnesses, scriber of FIR and statement of Jagannath Singh on the same date. P.W.-6 recorded statement of Jagannath and Jagdish on 20.04.1984 investigated and prepared site plan with index (Ex Ka-9) prepared recovery memo of blood strain (Ex Ka-10) and plain earth (Ex-Ka-11). Investigating Officer sent the case property for chemical examination to Agra on 03.06.84 by Constable Shri Niwas Chaudhari. Recorded the statement of Rudra Pratap Singh.

21. P.W.-7 Inspector Ram Kripal Tripathi submitted charge sheet on the basis of the investigation conducted by P.W-6.

22. P.W-8 Head Constable C.P. 57 Sultan Ahmad proved chick report (Ex Ka-15) and G.D (Ex. Ka-16) and G.D No. 27 endorsed on 19.04.84 is proved as Ex. Ka-17.

23. P.W.-9 Lalit Kumar C.P. 246 deposed in court that he carried the dead body of deceased in sealed condition at 6:30 p.m. on 20.04.84 and handed it over to doctor. During this period the dead body remained in sealed condition.

24. P.W-10 Dr. R.U. Pandey conducted autopsy of deceased of deceased Vishwanath aged about 28 years and found the following antemortem injuries:

1. Lacerated wound-1.5 cm x 1cm x bone deep on right side top of head, 10 cms above right ear.

2. Lacerated wound- 3.5 cms.x 1 cm.x bone deep on left side head 7 cms above left ear.

3. Abrasion 2 cmsx .5 cm on the top of left shouldeer.

4. Abrasion 1.5 cms x .5 cm on the top medical aspect of left forearm, 13 cms below left elbow.

5. Abrasion 1 cm. X 1 cm on the front part of right leg 3 cms below right knee.

25. On internal examination, the doctor found hematoma in an area of 22 cms x 10 cms with 16 cms long line fracture of occipital bone under injuries nos. 1 and 2. The membranes were deeply congested and blood clottings were present. Brain was also congested. Abdomen was full of undigested rice food material. Small intestines contained pasty material and large intestines contained faecal matter. In the opinion of the doctor, death was caused due to come as a result of ante mortem head injuries nos 1 and 2.

26. D.W.-1 Dr. D.A. Khan stated on oath that he had examined and prepared the injury report of appellant Lalji and found following injuries:

1. Lacerated wound 3.5 cm x ½ cmx bone deep (infected) on the top of left side head, 12 cms above left ear.

2. Abrated contusion 6 cmsx 2 cms on the right side back, scapular region upper part.

3. Contusion 4 cmsx 1.5 cms on right side back, scapular region lower part.

4. Contused swelling on lower half of right calf muscle.

5. Abrasion 1 cm x 1 cm on front of right knee at lower and of patalla bone.

27. All the injuries were simple in nature and were caused by hard object and were about five days old. The following injuries were found on the person of Ayodhya Singh:-

1. Lacerated wound on right side head, 3 cms x .5 cmx muscle deep with scabs formation, 6 cms above right eye brow.

2. Contused swelling 8 cms x 4cms on outer side left thigh, 8 cms above knee joint.

3. Contused swelling 10 cms x 8 cms on dorsum of right foot.

4. Diffused swelling 6 cmsx 4 cms on outer and backside of left forearm, 5 cms above wrist joint.

5. Diffused swelling 8 cms x 8 cms on back left side scapular region, middle part.

The injuries were caused by some blunt object and were about 6-7 days old. Their nature was simple.

28. It transpires from FIR and the statement of witnesses that quarrel started over a small unripe mango fruit dropped from the mango tree between two children Rudra Pratap and Dabbu @ Brijesh. This quarrel between the children ultimately resulted in death of a young boy aged about 28 years. The date of the incident and proximate time thereof is not in dispute as the accused have admitted that they sustained injuries by khodni inflicted by the deceased. Prosecution produced witnesses of fact as well as produced the injury report of the injured and post mortem report of the deceased respectively. From the perusal of the postmortem report and injury report time of occurrence is fixed between 1 to 2 p.m. on 19.04.1984. Dr. Satish Kumar Gupta who examined the injured Jagdish Singh, Dr. U.N. Pandey who conducted the post mortem had fixed the time of incident at about 2 p.m. on 19.04.84. The ocular witnesses Jaggannath, Jagdish, Hanuman Singh and the child witness Dabbu @ Brijesh deposed that the incident occurred at 2 p.m. on 19.04.1984. The fact is also confirmed by the defence version as they stated to have sustained injuries by khodni inflicted by the deceased and they are examined on 24.04.84 at 9:00a.m. by Dr. D.A. Khan in jail. Dr. Khan opined that all the injuries were caused by some blunt object and were about 6 to 7 days old. That also proved that the incident occurred on 19.04.1984. Therefore, the time opined by doctor also corroborate the time of occurrence and proximate thereof.

29. P.W.-5 Dabbu @Brijesh is examined by the prosecution who is the witness of that incident which lead to marpit. He deposed in court as child witness and stated that he entangled with Rudra Pratap on account of mango and thereafter father of Rudra Pratap armed with lathies attacked his father who succumbed to death on account of injury sustained by him.

30. Learned counsel for the appellant argued that the testimony of child should not be placed much reliance because a child may cramp up fact and may deposed on being tutored.

31. Supreme Court in the Case of Suryanarayana Vs. State of Karnataka reported at (2001) 9 SCC 129:

"..... The evidence of child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidene with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of child witness. .....corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence."

32. In the case of Panchhi Vs.State of U.P. reported at (1998) 7 SCC 177, Supreme Court has held thus:

"that the evidence of the child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what other tell him and thus an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon, as the rule of corroboration is of practical wisdom than of law."

33. Evidence of child witness is not to be thrown away at its threshold. The only rider is that the child testimony weight that it must got corroborated from other evidences also. In the instant case Dabbu @ Brijesh is the only witness who was present at the spot and the dispute arose between Rudra Pratap and Dabbu about the unripe mango fruit. This fact is admitted by the defence also. Therefore, the evidence of Dabbu cannot be rejected at the very outset.

34. P.W.-1 Jagganath Singh is an injured witness who also sustained injuries in this incident and whose presence is admitted by the appellants. He corroborated the prosecution case. Evidence of Dabbu is the genesis of marpit. Hanuman Singh and informant are eye-witness of the incident as well. It is also pertinent to mention here that as per the prosecution version deceased Vishwanat Singh plied with khodni caused injuries to Ayodhya Singh, Lal ji Singh. The injury report is proved in court but no FIR was lodged by the appellants. Learned counsel for the appellants argued that the injuries of the appellants are not explained. If we go through the FIR itself which was lodged by Jagganath Singh who also sustained injuries during this incident had deposed that the deceased also used khodni in self-defence thus, we are not in agreement with the contention of learned counsel for the appellants that the injuries of the appellants are not explained by the prosecution. No FIR was lodged by appellant however, they sent an application Ex. Kha-1 to the Superintendent of Police. That application is typed one and there over-writing on the date. Previously it was typed as ''25' and later on retyped as ''20' by over writing. It is stated in the application that "Lal Ji and Ayodhya Singh were injured and Ayodhya Singh went to lodge a report but he did not come back. The appellant remained under search and today he came to know that Ayodhya Singh surrendered and went to jail." The above mentioned accused surrendered in Court on 24.04.1984 as per records, therefore, it can be concluded that the applicant got the information of the surrender of Ayodhya Singh and Lalji Singh on 24.04.1984. Therefore, the date of application i.e. 20.04.1984 is certainly ruled out. Therefore, this application is moved after pre-planning, delebration, concoction in order to save the appellants.

35. Investigating Officer Satish Chandra Ojha stated in his statement that he enquired about the Ex Kha-1 also and found the defence version untrustworthy. Thus, conduct of the appellant shows that the defence version was not trustworthy and the application was moved only as a counter blast.

36. Learned counsel for the appellant also disputed the place of occurrence and argued that it was the complainant who arrived in their khaliyan and injured them in their khaliyan but the defence version with regard to the place of occurrence is not reliable as the Investigating Officer collected the blood strain and plain earth from the khaliyan from the place shown in the index by word ''X'. The Investigating Officer stated that he did not found blood from any other place, however, he inspected the spot and the mango tree as well. Therefore, the place of occurrence cannot be any other place than the place shown by letter ''X' in the site plan.

37. In the post-mortem report two lacerated wound and 3 abrasions were found on the body of the deceased which goes to corroborate the prosecution version that the appellants assaulted Vishwanath Singh by lathis. On internal examination hematoma in an area of 22 cms x 10 cms with 16 cms long line fracture of occipital bone under injuries nos. 1 and 2 was found. Abrasion was congested and cause of death opined by the doctor was result of ante mortem head injury No. 1 and 2, therefore, the prosecution version is corroborated by injury report also.

38. It may be noted here that witness Jagannath Singh (P.W.-2) also sustained two injuries which is sufficient proof that witness was present at the place of occurrence and he saw the incident and the accused could not continue with the assault any further due to his intervention.

39. It is also admitted by the learned counsel for the appellant that there was no intention to kill anybody at most the accused can be convicted under Sections 323, 304 II IPC. This Court has also discussed that the trial court with precision had held that the appellant came to the place of occurrence armed with lathi and started scolding Dubbu @ Brijesh on account of his quarrel with Rudra Pratap over a mango. There was no need to arrive at the place of occurrence armed with lathis and unlawful assembly was formed by all the four appellants with common object and gave sufficient blows. The death of the deceased is the result of action of appellants. The appellants started plying lathies on deceased without even answering the query of deceased on the petty cause of quarrel and they voluntarily caused injuries to Vishwanath who died due to the injuries and Jagdish Singh and Jagganath Singh sustained injury while saving Vishwanath.

40. In view of the above discussions P.W.-1 Jagganath Singh, P.W.-2 Jagdish Singh, P.W.-3 Hanuman Singh and P.W-4 Dabbu @ Brijesh succeeded in proving the case beyond reasonable doubt that about 2 p.m. on 19.04.1984 the incident took place in the khaliyan of Ram Karan and the accused committed assault on the deceased Vishwanath Singh at the place denoted by letter ''X' in the site plan leading to the death of Vishwanath Singh.

41. Prosecution also proved that the genesis of quarrel occurred in drop unripe mango between Dabbu and Rudra Pratap. Dabbu took that mango and Rudra Pratap complaint about the same to his parent who arrived at the place of occurrence armed with lathi and started scolding Dabbu. When the deceased Vishwanath Singh asked about the matter then they started assaulting Vishwanath Singh.

42. Learned trial court discussed all the material evidence on record, place of occurrence and with a very clear finding arrived at the conclusion of guilt of the accused/appellants. The judgment passed by the learned trial Court is convincing. We do not find any good ground to interfere with the findings of conviction recorded by the trial court. The judgment passed by the trial court is liable to be upheld and is confirmed and the appeal is accordingly dismissed.

43. The appellant No.3 Man Bahadur Singh, appellant No.4 Bharat Singh and appellant No.5 Bhanu Pratap Singh are in jail since 16.10.2018 and shall serve out the sentence as awarded by the trial court and confirmed by this Court.

44. Office is directed to send a copy of this judgment along with lower court record to the trial court concerned for necessary information and follow up action.

(Mrs. Renu Agarwal,J.)    (Ramesh Sinha,J.)
 
Order Date:-21.12.2022 
 
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