Kaluwa vs State Of U.P.
2022 Latest Caselaw 17 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

					             		        A.F.R.
 
  Judgement Reserved
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 3885 of 2010
 
Appellant :- Kaluwa
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shiv Sagar Singh,Noor Mohammad
 
Counsel for Respondent :- Govt. Advocate
 

 
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Case :- CRIMINAL APPEAL No. - 4528 of 2010
 

 
Appellant :- Shanker
 
Respondent :- State of U.P.
 
Counsel for Appellant :- V.S. Rajpoot,Ajay Kumar Pandey,Rafeek Ahmad Khan,Rama Shankar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Om Prakash Tripathi,J.

(Delivered by Hon'ble Om Prakash Tripathi, J.)

Heard Sri Jayant Prakash Singh and Sri Mohammad Zakir, learned counsel for the appellants, Sri S.A. Murtaza, Additional Government Advocate on behalf of the State and perused the material on record.

The appellants have preferred these criminal appeals aggrieved by the judgment and order dated 22.05.2010 passed by Additional District & Sessions Judge, Court No. 2, Bulandshahr in Sessions Trial No. 1637 of 1999, under Section 302/34 IPC, arising out of Case Crime No. 222 of 1999, Police Station Sikarpur, District Bulandshahr, convicting and sentencing the appellants to undergo rigorous life imprisonment under Section 302/34 of IPC with a fine of Rs.5,000/- each, in default thereof, to undergo one year simple imprisonment, therefore, these appeals are heard and being decided together by this common judgement.

The prosecution case is as follows:

On 06.09.1999 in the morning at 10:00 a.m., the complainant Neeraj Singh, S/o Fem Singh, R/o Village Deeppur, Police Station Sahawar, District Etah filed a written report at Police Station Sikarpur with the prayer that his sister Rajeshwari, belongs to Village Manpur, married with Dalveer Singh. Yesterday, he came to the house of his sister. Prior to the incident, Munesh and others targeted his brother-in-law, namely, Dalveer Singh by means of country made pistol. On 06.09.1999, the complainant, his sister and his brother-in-law were going to Dehli where the brother of Dalveer Singh was residing. When the aforesaid persons reached nearby the field of Gyan Singh at about 7:00 p.m., the accused persons namely, Munesh, Shanakar, Shashi and Kaluwa met, armed with country made pistols (Tamancha). Munesh threatened to brother-in-law that how dare he lodged the First Information Report against him and asked him to withdraw the case. His brother-in-law refused to withdraw the case. The aforesaid persons started indiscriminate firing upon Dalveer Singh as a result of which, he died on the spot.

On the basis of the written report, the police registered a case as Crime No. 222 of 1999, under Section 302 IPC and entry about registration of the case was made in the General Diary on 06.09.1999. Investigation of the case was taken over by the Sub-Inspector R.D. Pathak. He rushed to the spot and recorded the statement of the complainant Neeraj Singh and prepared the site plan.

The postmortem examination was conducted on the dead body of the deceased Dalveer Singh by Dr. B.K. Gaur on 07.09.1999 at 04:15 p.m. As per the post mortem report, the age of the deceased was about 35 years at the time of the death and possibility of death of the deceased was about one and half day prior to the date of the postmortem. After death of the deceased, stiffness was present in the lower part of the body of the deceased but stiffness had gone from upper part of the body. There was no mark of rottenness in the body of the deceased. On internal examination of the deceased, the doctor opined that the deceased died due to coma, shock and haemorrhage due to ante mortem injuries.

During investigation, the Investigating Officer recorded the statements of the witnesses. After completing all formalities of investigation, he submitted the charge sheet (Exhibit Ka.-16) against the appellants in the Court of Chief Judicial Magistrate, Bulandshahr, under Section 302 IPC and cognizance of offence was taken by the Magistrate. The case was committed to the Court of Sessions Judge by the Chief Judicial Magistrate and thereafter, the case was transferred to the Court of Additional District & Sessions Judge, Court No. 11, Bulandshahr. On 07.02.2000, charge was framed against the appellants under Section 302/34 IPC and the accused-appellants pleaded not guilty and claimed to be tried and thereafter trial was transferred to the Court of Additional Sessions Judge, Court No.2, Bulandshahr for trial.

In order to prove the charges framed against the appellants, the prosecution has examined Rajeshwari wife of the deceased (P.W.-1), the complainant, Neeraj Singh, (P.W.-2), Dr. B.K. Gaur, (P.W.-3), Ram Bilas Singh, (P.W.-4), Sub Inspector Surajpal Singh, (P.W.-5).

Eye witness P.W.-1, Rajeshwari, the wife of the deceased had deposed that about one and half year back, I, her husband Dalveer Singh and her brother Neeraj were going to Delhi, i.e., to the house of her brother-in-law (Jeth) Om Prakash. When we reached at the kharanja of Village Naraich, accused Munesh, Shashi, Shankar and Kaluwa met, armed with country made pistols at 7:30 a.m. Munesh said to my husband that how dare you to lodge a criminal case against me. Her husband denied this fact then Munesh threatened that Police will carry you from here. They dragged my husband in the jwar field of Gyan Singh and killed my husband by fire arm from their country made pistols. I and my brother shouted but none came to help. My husband succumbed to death on the spot by fire arm injury and accused persons fled away from the scene of occurrence. Prior to 13 days before the incident, a quarrel took place among my husband and accused persons. In that quarrel my husband received fire arm injuries on his leg which was fired by the accused and due to this enmity, the accused persons committed murder of my husband.

P.W.-2 the complainant Neeraj, brother-in-law of the deceased (Bahnoi) had deposed that I, my brother-in-law Dalveer and my sister Rajeshwari were going to Delhi from Bhanpur. We reached at the kharanja of Village Naraich at about 7:30 a.m. where accused persons Munesh, Shashi, Shankar and Kaluwa met, armed with country made pistols. Accused Kaluwa is resident of Rampur and now living with the accused persons. They all said to my brother-in-law that how dare you lodge a criminal case against them and also asked my brother-in-law to withdraw the criminal case. When my brother-in-law refused, then they said that Police will lift you. Then all of them dragged away my brother-in-law in the field of Gyan Singh and all accused persons shot fire with country made pistols and killed my brother-in-law. We shouted but none was in the field except us and accused persons. My brother-in-law succumbed to death by fire arm injuries on the spot. Prior to 13 days before the incident, accused persons shot fire on my brother-in-law Dalveer and he received one fire arm injury and due to this enmity, they killed my brother-in-law. At the time of the incident, I and my sister intervened but the accused persons did not agree and they fled away from the spot after causing incident. The dead-body was lying on the spot. Then I wrote a report and went to the Police Station Sikarpur and lodged a report. My sister Rajeshwari remained near the dead body of the deceased.

In the cross-examination, eye witness P.W.-2 has stated that I would take vehicle from Karora. Accused Shashi and Munesh were wearing pant and shirts at the time of the incident. All the accused were armed with country made pistols. Accused dragged Dalveer about 35 paces. There were fields of jwar and arahar, where the deceased was dragged. All accused fired on Dalveer; his face was in the east direction. I could not tell that which accused fired on Dalveer from which side. Accused fired from all directions. Dalveer received fire-arm injuries on left ear, near the neck. Second fire arm was below the right eye. Third fire arm was also below the ear. Total eight fire arm injuries was received on the body of the deceased Dalveer. Accused Munesh and other accused loaded the cartridges before me. Accused fired on Dalveer from the distance of 2 feet. I went with the dead-body on tractor. Next day at 08:00 a.m. I went to Bulandshahr with Police personnel and brother of Dalveer who came from Delhi; I made a telephone to his brother from Sikarpur. When the accused dragged Dalveer from the kharanja, I intervened them but they threatened by their country made pistols. It is wrong to say that he does not know the accused persons. Accused Munesh is resident of P.S. Soro, District Etah. I do serve in shoe factory in Delhi. I lodged the report of the incident. In the report, I have not stated that I came to bring my sister and brother-in-law. I came to the house of my sister prior two days prior to the date of the incident. My brother-in-law was wearing tahmad and vest. There were waters in the fields. We proceeded about half kms. The crop of arahar was small in size. Accused dragged the deceased Dalveer in the filed of arahar owned by Ghanshyam. We also moved with the deceased but the accused threatened and we stayed there and shouted but no one came there. When accused shot fire on my brother-in-law and fled away from the spot, then we went near my brother-in-law. At that time, my brother-in-law was wearing vest and tahmad. I found four empty cartridges near the dead-body of the deceased. The dead-body got covered by mud. I and my sister had not lifted the dead-body from the spot. The incident took place at 07:30 in the morning. I and my sister stayed half hours near the body and then I went to the police station and my sister remained near the dead-body and I wrote a written report myself near kharanja. I reached the police station at about 10:00 a.m. by feet. Sikarpur police station is at 4-5 km from the place of occurrence. I returned at about 11:30 a.m. with Police. The dead-body was sealed there at 04:30 p.m. to 05:45 p.m.

P.W.-3 Doctor B.K. Gaur had conduced the post mortem of the deceased Dalveer Singh on 07.09.1999 at 04:15 p.m. The age of the deceased was 35 years. He was a man of simple structure, rigour mortise was present in the lower portion of the body but passed away from the upper side of the body. There was no sign of rotting on the body of the deceased. Ante mortem Injuries were found on the body of the deceased which are as follows:

"1. Gun shot wound of entry 3 x 3cm x bone deep at the back of left side of neck, 5 cm behind left ear. Margin inverted, blackening all over around the wound were present.

2. Gun shot wound of exit 6 cm x 6 cm x bone deep right side of jaw.

3. Gun shot wound of entry 3 cm x 3 cm x bone deep left side of neck just adjacent to lower part of left ear. Blackening all around the wound were present. Margin inverted.

4. Gun shot wound of exit 6.5 cm x 6 cm x bone deep left side of upper part of face. 6 cm in front of right ear connecting injury no.3.

5. Gun shot wound of entry 3 cm x 3 cm x chest cavity deep front of chest upper part of 8 cm above left nipple. Blackening all around the wound were present.

6. Gun shot wound of entry 3 cm x 3 cm x bone deep back of left shoulder in upper part. Blackening all around the wound were present and 18 metal pellets were found in the wound.

7. Gun shot wound of exit 3 cm x 3 cm x muscle deep in upper part of left forearm. Blacking all around the wound were present.

8. Gun shot wound of exit 4 cm x 4 cm muscle deep upper part of left forearm, inner side connecting the injury no. 6.

9. Gun shot wound of entry 4 cm x 4 cm x muscle deep in the abdomen, 2 cm below from the sternum."

Eyes of the dead-body were closed. Eye-ball of right eye came out due to injury. Mouth was raptured and upper jaw was fractured. Blood was oozing from the nose and mouth and cause of death is haemorrhage and excessive bleeding due to anti mortem injuries.

Post mortem report was prepared by the witness. The witness proved the post mortem report as Exhibit Ka-2. After post post mortem, 74 pellets were retrieved from the dead body of the deceased and three wedding piece were sealed and given in the custody of the Constable. Injuries on the body of the deceased is possible on 06.09.1999 about 07:00 a.m. It is wrong to say that death is not possible by anti mortem simple injuries.

P.W.-4 H.C.P. Ram Vilash Singh has stated that he has prepared Chik FIR on the basis of written report of the complainant Neeraj Singh and proved Chik FIR as Exhibit Ka-3 and also proved original GD as Exhibit Ka-4. Written report was brought by the complainant Neeraj. Jai Pal was also with him. I prepared original GD in about one and quarter hours. It is wrong to say that on the basis of written report of the complainant Neeraj, I have lodged a false report in ante time.

P.W.5 R.D. Pathak, Investigating Officer of the case has stated that the inquest report of deceased Dalveer was prepared by S.S.I. Ghanshyam on my direction and other relevant papers also prepared in the hand writing of Ghanshyam on my direction. I identified the signature of Ghanshyam and this witness proved the inquest report (Exhibit Ka-6), letter CMO (Exhibit Ka-7), letter R.I. (Exhibit Ka-8), Photo Naash (Exhibit Ka-9), Police Form-13 (Exhibit Ka-10). On the pointing of the complainant, spot map was prepared by me in my hand writing which is proved as Exhibit Ka-11. Plain soil and blood stained soil were taken from the place of occurrence and memo was prepared by Ghanshyam which is proved as Exhibit Ka-12 and two empty cartridges 12 bore were also recovered near the dead-body, recovery memo is proved as Exhibit Ka-13. On 01.10.1999 custody remand of the accused Shashi and Munesh were permitted and on 02.10.1999, their statements recorded and mentioned in CD and on the pointing out of accused Munesh, one country made pistol 12 bore was recovered by which, the murder of the deceased Dalveer was committed. On the pointing out of the accused Shashi, nothing recovered. Recovery memo was prepared at 10:15 a.m. by Bachoo Singh in my presence, which is exhibited as Exhibit Ka-14. Recovered country made pistol was sealed on the spot and case under Section 25 of Arms Act was lodged against the accused Munesh. Site plan of the recovery of country made pistol was prepared by me and proved as Exhibit Ka-15 and after collecting the entire evidence, witness submitted the charge sheet against Munesh, Shashi, Shankar and Kaluwa under Section 302 IPC and proved as Exhibit Ka-16. On 10.01.2000, articles recovered in this case were sent to Forensic Laboratory, Agra.

In the cross-examination, the witness P.W.-5 had stated that there was crop of jwar near place of occurrence. In some fields, crop of arahar was also there. The incident took place in the field of arahar owned by Ghanshyam Singh near kharanja. I prepared site plan. The wife and brother-in-law of the deceased were going to Delhi. It is wrong to say that the incident took place in the field owned by some other person. There was no recovery from the accused Shankar and Kaluwa.

The statements of the accused persons under section 313 Cr.P.C. were recorded. Accused Shankar denied the prosecution story and stated that he has been falsely implicated in the case. The witnesses are interested one. My field and the field of the complainant are adjoining and middle common line was broken by tractor. Rajeshwari and Dalveer Singh abused me by my caste. The matter was solved in the Panchayat. Accused Kaluwa has stated that he has been falsely implicated. I belong to the Scheduled Caste and deceased belonged to Thakur Caste. Accused denied the prosecution story and stated that complainant Neeraj and Kaluwa are residents of same village. A quarrel took place among Neeraj, Kaluwa and me. P.W.-2, the complainant Neeraj left the village and started living in adjoining village. The deceased is real brother-in-law of the complainant Neeraj.

So far as the FIR is concerned, learned counsel for the appellants submitted that FIR was ante dated and ante time after due consultation.

P.W.-2, the complainant Neeraj, brother-in-law of the deceased had deposed that he wrote written report himself sitting on kharanja and on the basis of said report, FIR was lodged. Written report was proved by the witness as Exhibit Ka-1. He has lodged the report of the incident. I have not stated in the report that he had come to bring his sister and brother-in-law in Delhi. Although he has stated this fact to the Investigating Officer, if this fact is not written in his statement under Section 161 Cr.P.C., he does not know the reason for this. Paper and pencil was with me. Report was written near kharanja. I reached to the police station by foot which is about 4-5 kms from the place of occurrence. No suggestions have been given to this witness regarding lodging of the FIR ante dating and ante timing it.

On the basis of written report, P.W.-4 H.C.P. Ram Vilash Singh has lodged the FIR as Case Crime No. 222 of 1999, under Section 302 IPC (Exhibit Ka-3). He also proved original GD as Exhibit Ka-4. It is wrong to say that on the basis of written report, false case was registered in ante time. From the evidence, it is proved that incident took place on 06.09.1999 at 07:30 a.m. It is also evident that the complainant and the deceased are labourers and poor. So the complainant went to the police station by feet and reached police station at about 10:00 a.m. and the FIR was lodged at about 10:00 a.m. In the midway to the police station, there was heavy water in the river. Thus, it shows that the FIR was lodged promptly without consultation or legal advise. Natural facts were stated in the FIR. The complainant was the eye witness of the incident and it is evident from the written report that the name of the assailants, type of arms used by the accused persons were categorically disclosed in the written report. Thus, the submissions of the learned counsel for the appellants that the FIR is ante dated and ante time, has no force.

Learned counsel for the appellant submitted that there was no motive. The motive has been stated in brief that the accused Munesh asked my brother-in-law that how dare you lodge the FIR against me and withdraw the same. When the deceased refused, the accused persons threatened that Police will lift you from this place and fired at him.

In the evidence, P.W.-1 Rajeshwari has also stated that prior to 13 days from the date of incident, there was quarrel in between my husband and accused. Fire arm injuries were received by my husband in the said quarrel. Due to this enmity, accused persons killed my husband. In the previous quarrel, no FIR has been lodged. It is also stated that there was no such injury on the leg of the deceased as stated by the witness.

As per the corroborated evidence of P.W.1- and P.W.-2, it is proved that incident was eye witnessed by both of them. From the evidence on record, it is also proved that the incident took place at 07:30 a.m., there was ample light on the spot to recognize the accused persons by the said witnesses. It is a case of direct evidence and in the case of direct evidence, motive becomes insignificant.

In support of above contentions, learned A.G.A. placed reliance on following decisions :

In Pratap Singh and others vs. State of UP 2021, SCC Online All 686, the Court held that :

"motive is not very relevant in a case of direct evidence, where it dependable ocular version is available. Once, there is evidence forthcoming on the basis of an eye witness account that is consistently narrated by multiple witnesses motive is hardly relevant. "

In Abu Thaker vs. State of Tamil Nadu, (2010) 5 SCC 91, the Court held that:

"It is settled legal proposition that even if the absence of motive and if allowed is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime, therefore, in case, there is direct, trustworthy evidence of witnesses as to commission of an offence, the motive part uses its significance. Therefore, if the genesis of motive of occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by reason of absence of motive, if otherwise the evidence is worthy of reliance."

In Bipin Kumar Mondal Vs. State of West Bengal, (2010) 12 SCC 91, the Court held that :

"motive is of no consequence and pales into insignificance when direct evidence establishes the crime. Motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain it. Ocular testimony of the witnesses if reliable cannot be discarded only by the reason of the absence of motive."

Witnesses were present at the place of occurrence. Murder of the deceased Dalveer Singh has been committed by the accused persons before them. Thus, in the presence of direct and reliable evidence, the motive loses its importance. It is apparent from the record that there is no FIR lodged by the deceased against the accused persons. There is also no such report for the previous injuries received on the leg of the deceased. This fact will not affect the prosecution case in the presence of eye witness. Thus, the submissions of the learned counsel for the appellants that murder cannot be caused without motive, has no force.

Post mortem of the dead-body of the deceased was conducted by Dr. B.K. Gaur (P.W.-3) on 07.09.1999 at 04:15 p.m. On the dead-body of the deceased, following ante mortem injuries were found :

"1. Gun shot wound of entry 3 x 3cm x bone deep at the back of the left side of the neck, 5cm behind left ear. Margin inverted, blackening all over around the wound were present.

2. Gun shot wound of exit 6 cm x 6 cm x bone deep right side of jaw.

3. Gun shot wound of entry 3 cm x 3 cm x bone deep left side of the neck just adjacent to lower part of left ear. Blackening all around the wound were present. Margin inverted.

4. Gun shot wound of exit 6.5 cm x 6 cm x bone deep left side of upper part of face. 6 cm in front of right ear connecting injury no.3.

5. Gun shot wound of entry 3 cm x 3 cm x chest cavity deep front of the chest upper part of 8 cm above left nipple. Blackening all around the wound were present.

6. Gun shot wound of entry 3 cm x 3 cm x bone deep back of the left shoulder in upper part. Blackening all around the wound were present and 18 metal pellets were found in the wound.

7. Gun shot wound of exit 3 cm x 3 cm x muscle deep in the upper part of left forearm. Blacking all around the wound were present.

8. Gun shot wound of exit 4 cm x 4 cm muscle deep upper part of left forearm, inner side connecting the injury no. 6.

9. Gun shot wound of entry 4 cm x 4 cm x muscle deep in the abdomen, 2 cm below from the sternum."

Cause of death was shock, hamerouge and excessive bleeding due to anti mortem injuries. Nine gun shot injuries were found on the body of the deceased. Injury nos. 1,3, 5 and 7 were entry wounds where blackening was found. This fact shows that fire arm injuries were inflicted on the body of the deceased from a very close range. Thus, the evidence of the witnesses of the fact that injuries were inflicted by indiscriminate firing caused by the accused persons, is supported/corroborated by medical evidence.

The main question before us is that whether the injuries received by the deceased was caused by the accused persons through fire arm or not?. From the post mortem report, it is proved that there was nine fire arm injuries on the body of the deceased.

P.W.-1 the wife of the deceased has supported the prosecution case and stated that she, his brother Neeraj were going to Delhi with her husband Dalveer Singh. When they reached in the Village Nairaich on the kharanja, accused Munesh, Shashi, Shankar and Kaluwa met, armed with country made pistols. Munesh asked to my husband that how he dared to lodge criminal case against me. My husband forbade, then Munesh threatened that you will be lifted by the Police from this place. Accused dragged my husband in field of Gyan Singh and there were jwar crops in the field. The accused persons caused indiscriminate firing on my husband and he died on the spot. All the four accused fired. I was present on the spot.

P.W.-2 complainant Neeraj, brother-in-law of the deceased (Bahnoi) also supported the prosecution case and has stated that I, my brother-in-law Dalveer and my sister Rajeshwari were going to Delhi from Bhanpur. We reached at the kharanja of Village Naraich at about 7:30 a.m. where Munesh, Shashi, Shankar and Kaluwa met and armed with country made pistols. Accused Kaluwa is resident of Rampur and now is living with the accused persons. They all said to my brother-in-law that how dare you lodge a criminal case against them and also asked my brother-in-law to withdraw the criminal case, when my brother-in-law refused to withdraw the case, they said that Police will lift you. Then all of them dragged away my brother-in-law in the field of Gyan Singh and all accused persons shot fire with country made pistols and killed my brother-in-law. We shouted but none was in the field except us and accused persons. My brother-in-law succumbed to death by fire arm injuries on the spot. Prior to 13 days before the incident, accused persons shot fire on my brother-in-law Dalveer and he received one fire arm injury and due to this enmity, they killed by brother-in-law. At the time of the incident, I and my sister tried to intervene but the accused persons did not agree and after firing, the accused persons fled away from the spot. The dead-body was lying on the spot. Then I wrote a report and after writing a report, went to the Police Station Sikarpur and lodged a report. My sister Rajeshwari remained near the dead body of the deceased.

In the detailed cross-examination, there is no reason to discard the evidence of eye witnesses. There was no motive to falsely implicate the accused persons. The evidence of the witnesses of fact is cogent and credible and fully reliable. Their presence at the place of the occurrence is proved. Thus, from the evidence on record, it is proved beyond all reasonable doubts that in furtherance of common intention, the accused persons committed gruesome murder of the deceased Dalveer Singh.

Learned counsel for the appellants also submitted that P.W.1 is wife of the deceased and P.W.-2 is brother-in-law of the deceased both are the related witnesses so their evidence are not reliable.

In support of the above contentions, the learned A.G.A. placed reliance on the decisions in following cases :

In Mohd. Rojali Ali and others vs. State of Assam (2019) 19 SCC 567, the Court held that :

"A related witness cannot be said to be an interested witness merely by virtue of being a relative of the victim, a witness may be called interested only when he or she drags some benefit from result of litigation which is in the context of a criminal case would mean that witness has a direct or indirect interest in seeing accused punished due to prior enmity or other reasons and thus has a motive to falsely implicate the accused."

In Laltu Ghosh Vs. State of West Bengal (2019) 15 Supreme Court Cases 344, the Court held that :

"Related witness cannot be said to be an interested witness merely by virtue of being the relative of the victim. The scrutiny of evidence of related witness should be more caution."

Both the witnesses of fact witnessed the occurrence, their evidence is supported by medical evidence. There is no other injuries except fire arm injuries. Thus, ocular evidence is supported by medical evidence. There is no grudge to falsely implicate the accused persons. Thus, the submissions of the defence that witnesses are related one and their evidence is not credible, is not tenable.

The defence taken by the accused Shankar is that the field of P.W.-1 and accused are adjoining and the boundary line of fields are broken by the tractor, then the wife of the deceased Rajeshwari and Dalveer Singh abused me with filthy language using my caste and the matter was solved in Panchayat. I belonged to the Scheduled Caste Community and accused belonged to Thakur Community, so they implicated falsely. No evidence has been adduced with regard to Panchayat.

Accused Kaluwa has stated that P.W.-2 Neeraj and Kaluwa belonged to the same village. A quarrel took place between them. The deceased is a real brother-in-law of Neeraj. He has been falsely implicated. No evidence has been adduced by the accused in defence. The next defence taken by the accused is that when the deceased went for natural call, some criminal persons committed his murder. This defence is not tenable in presence of reliable evidence of eye witnesses, so defence taken by the accused, is not probable.

So far as section 34 of I.P.C. is concerned, the act of accused persons were done in furtherance of common intention to kill the deceased Dalveer. It is very difficult to know the mental status of a person, common intention should be gathered by the act and conduct of the accused persons. All the accused persons Shankar and Kaluwa and other co-accused were hiding in the field of jwar, armed with deadly weapons i.e., country made pistols. They jointly dragged the deceased from kharanja and put him in the field of jwar and jointly began to fire on the corpus of the deceased. The deceased received nine fire gun shot injuries and consequently died on the spot. All the accused persons fled away from the place of occurrence after committing the murder of the deceased. Thus, the act and conduct of the accused persons shows the common intention to kill the deceased Dalveer Singh. The place of occurrence is not disputed by the defence.

Thus, in view of the above discussion, we come to the conclusion that on the basis of fully reliable evidence of P.W.-1 and P.W.-2, the prosecution has been able to prove its case beyond all reasonable doubts. The accused Shanker and Kaluwa with other co-accused had committed the homicidal death of the deceased Dalveer Singh at the time, place and in the manner as alleged by the prosecution and the charge under Section 302/34 IPC is very well established against the accused Shankar and Kaluwa.

On the basis of above discussion, we are of the view that judgment and order of the trial Court dated 22.05.2010 passed by Additional Sessions Judge, Court No.2, Bulandshahr in Sessions Trial No. 1637 of 1999, arising out of Case Crime No. 222 of 1999, Police Station Sikarpur, District Bulandshahr, convicting and sentencing the appellants Shanker and Kaluwa to undergo rigorous life imprisonment under Section 302/34 IPC with fine of Rs.5,000/- each and in default to undergo, one year additional simple imprisonment by each, is liable to be confirmed and is hereby confirmed.

It is evident that accused Shashi died during trial and case against him was abated. Accused Munesh participated in the trial after framing the charge, but accused Munesh absconded and his file was separated from the present case as Sessions Trial No. 1637-A of 1999.

During trial, the accused appellant Shankar and Kaluwa remained in judicial custody. Accused are directed to serve out the remaining period of their sentence.

The appeals are devoid of merits and liable to be dismissed. The appeals are, accordingly, dismissed.

(Om Prakash Tripathi, J.)     (Manoj Kumar Gupta, J.)
 

 
Order Date : 07.01.2022
 
Monika