Allahabad High Court
Shankar @ Daddi And Another vs State Of U.P. on 9 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:83536-DB
A.F.R.
Reserved on 2.5.2024
Delivered on 9.5.2024
Court No. - 47
Case :- CRIMINAL APPEAL No. - 2325 of 2010
Appellant :- Shankar @ Daddi And Another
Respondent :- State of U.P.
Counsel for Appellant :- Rakesh Kumar Mishra,Anshul Tiwari,Sanyukta Singh A.C.
Counsel for Respondent :- Govt. Advocate,A.K.Tripathi
And
Case :- CRIMINAL APPEAL No. - 2295 of 2010
Appellant :- Kalloo @ Kalyan Singh And Another
Respondent :- State of U.P.
Counsel for Appellant :- Ashwini Kumar Ojha
Counsel for Respondent :- Govt. Advocate,A.K.Tripathi
And
Case :- CRIMINAL APPEAL No. - 3127 of 2010
Appellant :- Toran Yadav And Another
Respondent :- State of U.P.
Counsel for Appellant :- Anshul Tiwari
Counsel for Respondent :- Govt. Advocate,A.K.Tripathi
And
Case :- CRIMINAL APPEAL No. - 3013 of 2010
Appellant :- Bhan Singh
Respondent :- State of U.P.
Counsel for Appellant :- ,Premnendra Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Arvind Singh Sangwan,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Per Hon'ble Arvind Singh Sangwan,J.)
1. These appeals have been filed against the judgment of conviction dated 16.03.2010 passed by the Additional Sessions Judge/F.T.C. 1st, Lalitpur in Sessions Trial No. 25 of 2009 arising out of Case Crime No. 356 of 2008, under Section 147, 148, 149, 302, 307, 379, 411 IPC, Police Station - Poorakala, District - Lalitpul vide which all the appellants namely (1) Santosh Singh (2) Kalloo alias Kalyan Singh (3) Shankar alias Daddi (4) Ballu alias Balak Das (5) Toran Yadav (6) Rabuvir Yadav and (7) Bhan Singh have been found guilty of offence punishable under Section 147, 148, 302/149 IPC read with Section 149, 307/149 IPC and additionally accused Shankar alias Daddi was held guilty under Section 379 and 411 IPC and the order of sentence dated 17.3.2010 vide which, appellants were directed to undergo substantive sentence of life imprisonment under Section 302/149 IPC with fine of Rs. 10,000/- each, further ten years' rigorous imprisonment under Section 307/149 IPC with fine of Rs.30,000/- each, and one year sentence under Section 147 and 148 IPC each. Shankar alias Daddi was additionally awarded two years rigorous imprisonment with fine of Rs. 500/- under Section 379/411 of IPC and in default of payment of fine, they have to undergo two years more rigorous imprisonment. All the sentences were directed to run concurrently.
2. Trial Court's record is received and paper books are ready. With the help of all the learned counsels for the appellants Sri Sita Ram Patel and Sri Anshul Tiwari and learned A.G.A. for the State, the entire evidence is re-scrutinized and re-appreciated.
3. As per prosecution version, the informant-Bhoori Raja gave a complaint that she is resident of village Chaubara, Police Station - Poora Kala, District - Lalitpur, Her son, Rajbhan Singh alias Baderaja, was having enmity with Santosh Singh and Shankar Yadav who are residents of the same village. Her son had gone to meet his Advocate at Jhansi on a motorcycle about two years ago and he was returning back from Jhansi at about 3:30 pm and while passing near to the Hanuman Temple of the village, Santosh Singh, Bhan Singh and Kalloo @ Kalyan Singh who were on another motorcycle, driven by Santosh Singh had followed and encircled her son Rajbhan Singh. From the other side of the village, Shankar Yadav, Ballu Yadav, Toran Yadav and Raghubir Yadav, carrying axe and country made pistol, came there. Santosh Singh was carrying rifle and opened fire on her son Rajbhan Singh who fell down. Thereafter Shankar Yadav also opened fire on him with his rifle and other accused, in conspiracy with each other, attacked the son of the complainant with their weapon and gave multiple strokes and her son died at the spot. The informant alongwith her daughter-in-law, Rajju, Mulayam Singh and Mohan, resident of village, reached on the spot. Her daughter-in-law lie down on the body of her husband to save him and Santosh Singh also fired on her and she suffered bullet injury on her thigh. While running away the accused-Shankar Yadav took away the red colour "Apache - motorcycle" of her son. She took her daughter-in-law to the hospital and then came to the police station to register the F.I.R..
4. On the written complaint (Ex-ka-1) , Chick FIR No. 41/08 (Ex-Ka-7) under Section 147, 148, 149,302, 307, 379 IPC and Section 7 of Criminal Law Amendment Act, was registered at 17:15 pm on 24.7.2008. The same was entered vide report No. 21 (Ex-Ka-8) on 24.7.2008 at about 17:15 pm. Thereafter the Inquest/Panchayatnama of the dead body was conducted. Sub Inspector Ghasi Ram reached at the spot and completed Panchayatnama and through constables Jai Prakash and Babulal, the dead body was sent for postmortem and From the place of occurrence bloodstained earth was recovered. Near the dead body of Rajbhan Singh, one brass empty cartridge and three cartridges of small size were recovered in presence of the witnesses and taken in possession vide recovery memo the other documentation was entered in the case diary. During the investigation, the statement of witnesses were recorded. After the arrest of the accused persons, on the pointing out of Raghubir, an axe used in the crime, was recovered vide a separate recovery memo. Thereafter, investigation was conducted by one Balvir Singh, SHO, who submitted the charge sheet (EX-Ka-11) on 25.8.2009. Thereafter, CJM, Lalitpur committed the case to the court of Sessions.
5. Charges under Sections 147, 148, 302 read with Section 149, 307 read with Section 149 of IPC were framed by the Additional Sessions Judge on 1.7.2009. Additional charge under Section 379/411 of IPC was also framed against accused-Shankar Yadav. The accused did not plead guilty and claimed trial.
6. In prosecution evidence, Smt Bhoori Raja (PW-1) appeared and stated on line of information given to the police as recorded in the FIR. She stated that firstly Santosh Singh who was carrying rifle opened fire on her son Rajbhan Singh and her son fell down. Thereafter Shankar Yadav also opened fire on him with his rifle and other accused, in conspiracy with each other, attacked the son of the complainant with axes and multiple strokes were given and her son died on the spot. At that time, PW-1 alonwith her daughter-in-law Basant Raja (PW-2) and three persons of the village namely Rajju, Mulayam Singh and Mohan reached on the spot. Her daughter-in-law Basant Raja lie down on the body of her husband and in her presence, Santosh Singh also fired on her and she suffered bullet injury on her thigh. While running away, accused Shankar Yadav took away the red colour "Apache - motorcycle " of her son.
This witness further stated that she has gone to the police station alongwith her son Jitendra and Basant Raja and on way they met Narayan Singh who wrote the complaint and after it was read over to her, she put thumb impression on the same which is Ex-Ka-1.
7. Thereafter, Trial court opened a bundle received from the Malkhana from which this witness identified the clothes of the deceased i.e. trouser (paint), shirt, underwear, west sleeper, one black string, one ring which was Ex-Ka-1 to Ka-8. She further stated that motive for committing murder of her elder son Rajbhan Singh was that Gajraj, brother of the accused Santosh Singh ,was murdered by the father-in-law of Rajbhan Singh namely Bahadur Singh alongwith Jaibhan, Manohar, Balwant and Mardan Singh and due to that enmity her elder son was murdered. She further stated that Santosh Singh has doubt that Rajbhan Singh was having a hand in murder of his brother Gajraj. Other Brother of Santosh Singh i.e. Rudrapal was having illicit relations with Bua (father's sister) namely Harendra Raja of the deceased and thereafter, Shankar Yadav was keeping her. It was also the reason for keeping grudge with Rajbhan Singh and due to this reason they have committed murder of her son Rajbhan Singh. Santosh Singh and Shankar Yadav who forms a group had even previously fired upon one Chhote Singh who is friend of Rajbhan Singh.
8. In a lengthy cross examination by the accused persons, she has clearly stated about the manner in which occurence took place. She stated that Raghubir was carryng axe, Shankar Yadav was carrying country made rifle and Toran was carrying an axe and after firing upon her daughter-in-law, they ran away. She pleaded ignorance about the cases pending against the deceased Rajbhan Singh. She also pleaded ignorance that Rajbhan Singh faced a trial for committing dacoity at the house of Pancham Theemar of Vrindanvan Bagh at PS-Talbaihat. She also pleaded ignorance that Rajbhan was an accused of looting and attacking on SHO Ramshumar Malik. She stated that she does not know if in the murder of Brijraj Singh, Rajbhan Singh was an accused or not. Regarding identity of Santosh Singh, she stated that even prior to the incident she has seen Santosh Singh in village.
9. She further stated that she had gone to the house of one Hindupat aongwith her daughter-in-law Basant Raja. On specific question as to how much was the distance from the house of Hindupat to the place where dead body of Rajbhan Singh was lying, this witness answered that Rajbhan Singh was murdered in front of her eyes and therefore, dead body was lying in front of her.
10. In further cross examination, she has given details of the clothes worn by Basant Raja who was taken to hospital on a tractor. She denied the suggestions that in conspiracy with other witnesses, Santosh Singh and Kalyan have been falsely implicated.
11. Basant Raja (PW-2), widow of the deceased Rajbhan Singh stated that on the date of the incident at about 3-3:30 pm, her husband Rajbhan Singh was coming on a motorcycle and near Hanuman Temple he was followed by another motorcycle which was driven by Santosh Singh and Bhan Singh & Kalyan Singh were pillion riders and they encircled her husband Rajbhan Singh and from the side of the village Shankar Yadav, Ballu Yadav, Toran Yadav and Raghubir Yadav carrying axes and country made pistol came there. Santosh Singh was carrying a rifle and opened fire on her husband Rajbhan Singh who fell down. Thereafter, Shankar Yadav also opened fire on him with his rifle and other accused, in conspiracy with each other, attacked the husband of PW-2 by giving multiple strokes with their respective weapons and her husband died on the spot. PW-2 laid down on the body of her husband and Santosh Singh also fired on her and she suffered bullet injury on her thigh. While running away, accused-Shankar Yadav took away the red colour "Apache - motorcycle " of her husband. Thereafter the police admitted her in Talmohar Government hospital and then she was referred to Jhansi medical college for further treatment.
12. This witness further stated that her maternal uncle had committed the murder of Gajraj Singh who was the brother of Santosh Singh, therefore, Santosh Singh used to doubt Rajbhan and because of this enmity, he committed murder of Rajbhan Singh @ Baderaja. She also stated that paternal (Bua) aunt of Rajbhan, namely, Harendra Raja was kept by Rudra Pal, brother of accused-Santosh Singh, and thereafter, Shankar Yadav was keeping her. This was also a reason that the accused were keeping enmity with deceased- Rajbhan. She also stated that one Chotey Singh who used to accompany Rajbhan Singh @ Bade Raja was also assaulted by Shankar Yadav along with Rajbhan, Raghubir Yadav, Kallu @ Kalyan Singh. As Chotey Singh used to help the deceased, accused were keeping enmity with her husband. She stated that she was married to Rajbhan about eight years ago and since then she is residing with her in-laws. She pleaded ignorance about involvement of Rajbhan Singh in criminal cases. She also pleaded ignorance about number of motorcycle, however, she stated that motorcycle was purchased by Rajbhan Singh about three months ago which was returned by the police to her brother-in-law. She stated that after the gunshot injury, she was bleeding and her blouse and sari etc. were soaked in blood. She also stated that one bullet is still inside her body and was not removed.
13. Further in her cross examination, she stated that even the Investigating Officer had seen her injuries. It is also stated that she stayed in the Government Hospital, Jhansi for about four days and her mother-in-law had gone there to see her. After she returned from Jhansi, the Investigating Officer came and recorded her statement.
14. Nepal, S.O.( PW-3) has stated that he knew Rajbhan Singh @ Baderaja and after murder of Rajbhan Singh @ Baderaja, he reached at the spot and then the Investigating Officer and other police officials prepared the Panchanama in which, informant, her son Jitendra, Rajpal Singh, Arvind Singh and Bhuri Raja were 'Panchs' who had signed the same. The Investigating Officer collected the bloodstained earth in two separate plastic box. After 20-22 days, the Investigating Officer came along with Shankar Yadav and informed that Shankar Yadav wants to get the revolver recovered from the place where he had concealed the same. When they reached near a pond abutting the Hanuman Temple, Shankar Yadav told that the revolver used by Santosh was thrown in the water at that place. With the help of some persons, they tried to recover the revolver but the villagers told that as many animals move inside the pond, therefore, due to their foot movement, it is not possible to recover the revolver. Thereafter, Shankar Yadav by reaching near a nursery, recovered the read colour Apachi motorcycle of Rajbhan concealed under bushes.
15. In cross examination, he has stated that there were three injuries on the head of deceased and the blood of Basant Raja and Rajbhan was lying nearby and the Investigating Officer has collected the bloodstained earth of Rajbhan only.
16. Dr. Ajay Bhale ( PW-4), an Eye Surgeon who conducted the medico legal report of Basant Raja, reported that injury no.1 is an abrasion having blue mark 1 x 4.5 cm in red colour, on the right side of the back. Injury No. 2 was a lacerated wound of 2x 1.5 cm. muscle deep on left thigh, 2.4 cm. above the knee on posterolateral. Injury No.3 was near injury no.2, of 2 x 3 cm. with tattooing which is due to burning of gun powder and there was scratch mark. Injury no.4 some hard article was present on the middle of left thigh which is 2/3 on upper side and 1/3 on lower side of the joint of the thigh. He stated that injury no. 3 and 4 can be caused with firearm, again stated that injury no. 2 and 3 can be caused by firearm. He further stated that the injured informed that the injury no. 1 is a gunshot injury. This witness proved the MLR as Exhibit-Ka-4. In his cross examination, he stated that injury no. 1 and 2 can be caused by a lathi and injury no. 4 was not an apparent wound and on checking, it was found that some thing is there inside the body which may be an old bullet. Basant Raja was in senses when she came to the doctor.
17. Dr. Pankaj Tripathi ( PW-5), Eye Surgeon, who conducted the postmartum of Rajbhan Singh, found the following injuries : -
"1- Lacerated wound 4 x 1 cm, deep to bone, on the back side of skull.
2- Lacerated wound 4 x1 cm x deep to bone, 3 cm below and distant to injury no. 1.
3- Incised wound 5 x 1.5 cm x deep to bone, behind left ear on skull.
4- Incised wound 5 x 3 cm, running through and through above left ear.
5 - Incised wound 5 x 1.5 cm, deep to bone, right side on forehead.
6- Mark of contusion with swelling of size 15 x 12 cm, irregular in movement above left cheek.
7- Entry wound of bullet, size 1 x 1 cm x deep to muscle, on chest 2 cm below to collar bone having trajectory downwards.
8- Entry wound of bullet, 1 x1 cm in circle form, around which black marks of charring were present which was deep to muscles, situated on the back side of left elbow.
9- Entry wound of bullet, 1 x 1 cm deep to muscles, on medial part of left hand below injury no. 8.
10- Entry wound of bullet, 1 x 1 cm deep to muscles, around which black marks of charring were present, whose trajectory was medio superior (sic), ahead to injury no. 8.
11- Exit wound of bullet, 2.5 x 2.5, deep to muscles, on anterior medial aspect of left hand, 6 cm above left elbow.
12- firearm wound of exit 1.5 cm x 1.5 cm x muscle deep on pedial aspect above 2 cm from injury no. 11"
18. This witness stated that the cause of death was the injuries sustained by the victim .
19. During recording the statement of this witness, it was noticed that the original postmortem report was not there, therefore, the photocopy of the same was proved by this witness as Exhibit-Ka-5 and the objection regarding admissibility of the secondary evidence was kept open. This witness stated that injury nos. 1, 2, 13 and 14 can be caused by sharp edged weapon. In cross examination, he stated that the bullets which were removed from the body of the deceased, are not shown to him in the Court at the time of recording his statement.
20. Ghasiram (P.W.-6), Sub Inspector, stated about the registration of the FIR and the manner in which the investigation was conducted and the Panchayatnama was prepared. The dead body was sent for postmortem. This witness also stated that from the spot one empty cartridge made of brass and three small bullet cartridges were recovered in the presence of witnesses, Rajbhar and Rajpal Singh Singh and were sealed in an empty match box which is Exhibit- 7 Ka/2. He also stated that one riffle 315 bore, one empty cartridge and one live cartridge were recovered from Santosh Singh on 1.8.2008 during the police encounter when police tried to arrest accused persons and a separate case was registered. Copies of chick report, rapat, panchayatnama, recovery of bloodstained earth, empty cartridges and the case diary were exhibited as Exhibit-Ka-9 to Ka-11. In cross examination, this witness stated that in a bundle opened in the Court, rifle and bullets are same which were recovered which and were sealed. He further stated that one cartridge kept in a bottle is of 315 bore and five empty cartridges and one cartridge on a plastic bag are of 315 bore. This witness stated that the documents, Exhibit Ka-7/1 and Ka-7/2 neither bear time nor signature / thumb mark of any witness.
21. Constable Bharat Singh (PW-7) stated that he recorded the chick FIR No.41/08 which is in his handwriting, the same was proved as Exhibit Ka-7. In his cross examination, he stated that Bhuri Raja alongwith Basant Raja ( injured ) came with her son Jeetu @ Jitendra, and FIR was recorded. This witness denied that Rajbhan Singh was a history sheeter.
22. Constable Jai Prakash ( PW-8) proved that he was deputed by Sub-Inspector Ghasiram Sonkar to take the dead body for postmortem and he had taken the dead body to mortuary on 25.7.2008 where the postmortem was conducted. In cross examination, this witness reiterated the version given in the FIR.
23. Surendra Singh, SHO, Pali, District Lalitpur ( PW-9) stated that naksa nazri (site plan) was prepared by him, photocopies of which is Exhibit Ka-8, however, he do not know where the original naksha nazri (site plan) is, as it may be lost . This witness further stated about recording the statement of the witnesses, arrest of the accused, recovery effected and the recovery of axe recovered on pointing out of accused-Raghubir Yadav along with other accused in a police encounter on 1.8.2008. The recovery memo of Axe was marked as Exhibit Ka-9. A bundle was open and the axe which was recovered from accused Raghubir Yadav was identified by this witness as Exhibit -Ka- 12. In cross examination, this witness stated that the original naksa nazri is not on record and the photocopy which is on record, was not certified by S.O. Balveer Singh in his presence. However, two carbon copies of naksa nazri were prepared.
24. Balbeer Singh-SHO, Police Station Jakhaura ( PW-10) stated that he has undertaken the investigation and accused-Shankar surrendered on 8.8.2008 and thereafter on 11.8.2008 by taking permission from Chief Judicial Magistrate, Lalitpur, statement of Shankar was recorded in jail, in which he stated that he can get recovered the country made pistol from a pond near the Hanuman Temple as well as motorcycle of Rajbhan Singh and thereafter, he was taken in police custody (in remand) and was taken to the pond as well as other place from where the revolver could not be recovered however, the motorcycle was recovered.
25. He further stated that on 15.8.2008, accused-Shankar alias Daddi was taken on police remand and Section 411 of IPC was added. On 17.08.2018 he recorded the statement of injured-Basant Raja and the other witnesses of Panchayatnama. After preparing khaka/plan of the recovered articles, the articles were sent to Forensic Science Laboratory, Agra through Constable Jai Prakash and submitted charge-sheet against the accused persons. He also took the Postmortem report and Medico Legal Report from the hospital.
26. This witness stated that on 11.09.2008, he sought permission from Chief Judicial Magistrate that pages nos. 1 to 9 of the original Case Diary, during the custodial investigation of Shankar were misplaced as these were given to the prosecution officer and, therefore, he sought permission of the C.J.M. to prepare certified copy of the same which was granted by CJM, Lalitpur on 11.9.2008 which is Ex.Ka-12. This witness also proved the recovery of bloodstained earth and the weapons. In cross examination, this witness stated that one axe was recovered from the accused. In lengthy cross examination by the defence about the manner of committing the offence, this witness stated on the line as informed by the informant and no dent could be made on the deposition of this witness.
27. In cross examination, this witness further stated that deceased-Rajbhan Singh alias Bade Raja is having criminal history of 21 cases in Police Station Purakala which was regarding murder, attempt to murder, N.S.A., Dacoity, Gangster Act and under Gundas Act apart from making an attempt to commit murder of one SHO Ramshumar Malik.
28. Thereafter, the Trial Court closed the prosecution evidence and the statement of accused persons under Section 313 Cr.P.C. was recorded and all the incriminating evidence was put to the accused. In his statement, accused-Santosh Singh denied that the gun was recovered from him and stated that he has been falsely implicated by the complainant as deceased-Rajbhan Singh was a history-sheeter and was murdered by some other person having enmity with him. Similar is the statement of all other accused persons.
29. Shankar alias Daddi with regard to a question that he got recovered the motorcycle, denied the same and stated that he has been falsely implicated. However, no defence evidence was led.
30. Thereafter, the Trial Court vide impugned judgment of conviction and order of sentence held the appellants guilty offences as discussed above and awarded them life sentence with fine. Thereafter, the present four appeals were filed challenging the impugned judgment dated 16.3.2010 and order of sentence dated 17.3.2010.
31. The argument of all the learned counsels for the appellants have been heard. The common argument raised by all the counsel is that deceased-Rajbhan Singh was having criminal antecedents as it has come in the statement of PW-10 that he was involved in 21 criminal cases regarding murder, attempt to murder, N.S.A., Dacoity, Gangster Act and under Gundas Act and, therefore, he was having enmity with many persons and only after he was murdered by some unknown persons, the informant has falsely named the appellants.
32. It was also argued that both PW-1 and PW-2 are not eye-witnesses and they had reached the spot after the incident. Counsel argued that there is huge distance between the house of the appellant and place of occurrence and, therefore, the story put forward by PW-1 and PW-2 that they immediately reached at the spot and had witnessed the occurrence is not sustainable. Reference is drawn to the cross examination of the witnesses to submit that they have admitted that their house is far away from the place of occurrence which is near the temple.
33. It was also argued by all the counsels that the injuries sustained by Basant Raja (PW-2) are self inflicted injuries and she is also not an eye-witness. Counsel further argued that reason for falsely implicating the appellant is that it has come in the statement of PW-1 and PW-2 that the real paternal aunt (Bua) namely, Harendra Raja was illegally kept by Rudrapal, the real brother of accused-Santosh Singh, and thereafter Shankar Yadav was keeping her and due to this reason, the appellants have been falsely implicated.
34. Counsel for the appellants, Kallu alias Kalyan Singh, Ballu alias Balakdas, Toran Yadav, Raghubir Yadav and Bhan Singh, have argued that no motive or enmity was attributed towards them and, therefore, there was no occasion for them to commit murder of Rajbhan. It was also argued on behalf of aforesaid five accused that even as per the F.I.R. version, first Santosh Singh opened fire on Rajbhan Singh and thereafter Shankar Yadav had opened fire. Counsel submits that deceased-Rajbhan Singh died due to firearm injuries which were given by Santosh Singh and Shankar Yadav.
35. It is also submitted that it has come in the statement of PW-10 that Rajbhan has even made an attempt of life of one SHO Ramshumar Malik and therefore he had criminal antecedents of many cases.
36. Next argument raised by the counsels are that it has come in the statement of Balbir Singh, IO, (PW-10) that all the accused persons except Shankar Yadav were arrested during a police encounter, however, with regard to police encounter, no evidence has come on record to show that the police personnel were present at the alleged place of encounter and his oral statement to prove this fact is not sufficient.
37. It is next argued that as per the cross examination of Balbir Singh, IO, (PW-10), only one gun was recovered on the identification of Santosh Singh and one axe was recovered from Raghubir Singh and Motorcycle from accused-Shankar Yadav. Therefore, the allegation against other accused are not proved beyond doubt.
38. It is also argued that it has come in the statement of PW -9 SHO Surendra Singh that no axe was recovered from accused-Raghubir Yadav. Counsel further submitted that statement of injured witness Basant Raja was recorded by Investigation Officer (PW-10) on 17.8.2008 as admitted by Balbir Singh, IO, (PW-10) in which he has stated that he when the investigation was transferred only on 8.8.2008.
39. Counsel submitted that statement of Basant Raja was recorded after about 26 days of the incident i.e. 24.7.2008 and, therefore, she has made improvements in her statements.
40. Counsel further submits that there are material discrepancies in the statement of PW-1 and PW-3 regarding the place of occurrence, clothes worn by the deceased, recovery effected from the spot and regarding recovery of bloodstained earth. PW-2 had failed to give description of motorcycle used by deceased-Rajbhan.
41. It is thus argued that both PW-1 and PW-2 are not the eye-witnesses rather they reached at the spot after incident had taken place and have falsely implicated the appellants.
42. It is also argued that it has come in the statement of PW-4 Dr. Ajay Bhale, an eye surgeon, who conducted the medico legal report that injury no.4 was an old injury as no fresh injury was seen. A reference is drawn to the cross examination of this witness who has stated that injury No.3 and 4 are caused by firearm and injury No.2 & 3 are caused by firearm. In further cross examination, this witness stated that injury No.1 and 2 can be caused with a lathi blow whereas injury no.4 is relating to some old bullet inside the body and she has not suffered any injury on the vital part.
43. It is submitted that both Dr. Ajay Bhale (PW-4) and Dr. Pankaj Tripathi (PW-5) who conducted the medico legal report of Basant Raja and postmortem report of Rajbhan Singh are eye surgeons and are not expert to give opinion about the weapon with which the injuries were caused. A reference is drawn to the statement of PW-5 who conducted the postmortem of deceased Rajbhan who has stated that injury No.1 and 2 and 13 & 14 were cause with sharp edged weapon (Kundalaya).
44. In reply, learned A.G.A. for the State has argued that both the eye witnesses i.e. PW-1 and PW-2 have not only supported the prosecution version but also clearly deposed about the manner in which the incident took place.
45. Learned A.G.A submits that both the witnesses have stated that accused Santosh Singh and Shankar Yadav were having enmity with deceased Rajbhan Singh and on account of the same, they committed his murder.
46. Learned counsel submits that though it is argued by the learned counsel for the appellants that PW-1 and PW-2 are not eye witnesses and they reached after the incident had taken place. However, in cross examination of both the witnesses i.e. PW-1 and PW-2, no suggestion has been given by either of the accused that they were not present at the spot or they have not witnessed the incident.
47. Learned counsel submits that a prompt FIR has been registered by the prosecution and the ocular version of the prosecution is duly supported by medical version. Prosecution witnesses have explained about the injuries sustained by the deceased and even by PW-2, an injured eye witness.
48. Learned counsel submits that trial court has granted permission to record the secondary evidence vide Ex. Ka-11 and only thereafter, some document shows the original version were duly proved by PW-9, the Investigating Officer.
49. Learned counsel also argued that the deceased suffered as many as 14 injuries, out of which, injury nos. 7, 8, 9, 10, 11 and 12 are firearm injuries and injury nos. 3, 4 and 5 are incised wounds which are caused by sharp edged weapon like axe and injury no.1 and 2 are lacerated wound and, therefore, it is proved that same were caused by the country made pistol and from the sharp edged side of axe or from the blunt side of the axe.
50. Learned counsel submits that mere fact that the deceased was having criminal history is no ground to hold that prosecution version is false as it is duly supported by two prosecution witnesses out of which PW-2 herself is an inured witness, who suffered firearm injury on her thigh.
51. After hearing learned counsel for the parties, we find no merit in appeals of Shankar Yadav alias Daddi, Santosh Singh, Kalloo alias Kalyan Singh, and Raghubir Yadav, however, we find merit in the appeals of Ballu alias Balak Das, Toran Yadav and Bhan Singh for the following reasons:
(a) We find no merit in the argument advanced on behalf of the accused persons that PW-1 - Bhoori Raja and PW-2-Basant Raja are not the eye witness. Firstly, both the witnesses, in clear terms, have stated that they reached the spot and found that the accused persons namely Santosh Singh, carrying rifle, Shankar Yadav carrying country made gun and another accused, carrying axe, encircled deceased Rajbhan Singh. Santosh Singh opened fire with the rifle which hit Rajbhan Singh and he fell down. Thereafter, Shankar Yadav opened fire with his rifle to Rajbhan Singh and other accused gave axe blow to Rajbhan Singh. Presence of both these witnesses on the spot is also proved from the fact that when PW-2 Basant Raja tried to save her husband deceased Rajbhan Singh and lie down on the body of her husband. Santosh Singh again opened fire that hit PW-2, Basant Raja on her thigh. Morever, in cross examination of both the witnesses no suggestion was given by either of the accused that neither they are the eye witnesses nor they were present on the spot. Therefore, the argument raised by the learned counsel for the appellant is not sustainable.
(b) The medical evidence ie. post mortem report of deceased Rajbhan Singh prove that he sustained as many as 14 injuries out of which, injury nos. 7, 8, 9, 10, 11 and 12 are firearm injuries and injury nos. 3, 4 and 5 are incised wounds which are caused by sharp edged weapon like axe and injury no. 2 is lacerated wound and, therefore, it is proved that same was caused by the country made pistol and from the sharp edged side of axe or from the blunt side of the axe which shows that on pre meditated mind, the accused persons firstly opened fire on deceased Rajbhan Singh, and then gave him multiple axe blows.
(c) Even the statement of PW-4 , Doctor, who conducted the MLR of PW-2 Basant Raja prove that she suffered firearm injury which as per ocular version was caused by Santosh Singh from his rifle when she tried to save her husband.
(d) Recovery of rifle from Santosh Singh is also proved from the statement of PW-6, the Investigating Officer, in whose presence, sealed parcels were opened and chick report, inquest report, recovery of blood stained earth, empty cartridge and case diary i.e. Ex-Ka-9 to K-11 and the rifle of 315 bore with bullets were recovered and he proved that these weapons are the same which were recovered from Santosh Singh.
(e) The police, during investigation, on the pointing out of Shankar Yadav alias Daddi, tried to recover the gun used in the crime which was thrown in a village pond, but despite best efforts could not recover the same. However, on the same date, the motorcycle of the deceased which was taken away by Shankar Yadav was recovered as proved by PW-10, who after seeking permission from the Chief Judicial Magistrate, took his custody and recovered motorcycle.
(f) The argument raised by the learned counsel for the appellant that original document of the investigation were not produced, is also not correct as it has come in the statement of PW-10 that vide order dated 11.9.2008, the Chief Judicial Magistrate had granted permission to lead secondary evidence recorded on page no. 128 of the original case diary and the order was produced on record as Ex-Ka-12, and thereafter, the prosecution has led the secondary evidence.
(g) It is also proved on record by PW-1 and PW-2 that accused Santosh Singh and Shankar Yadav were having enmity with deceased Rajbhan Singh. Gajraj Singh, elder brother of the accused Santosh Singh was murdered by father-in-law of Rajbhan Singh namely Bahadur Singh alongwith three other persons and Santosh Singh having a doubt that even Rajbhan Singh was also involved in the murder of his brother, and was keeping enmity with the deceased. Santosh Singh even fired upon Basant Raja (PW-2) who is the daughter of Bahadur Singh. Accused-Kalloo alias Kalyan Singh is real brother of Santosh Singh and both came together on one motorcycle.
(h) It has also proved on record that Shaankar Yadav was having illicit relationship with real Bua namely Harendra Raja (father's sister of the deceased) and, therefore, even Shankar Yadav was having enmity with the family of Rajbhan Singh.
(i) The argument raised by the learned counsel for the appellant that FSL report is not proved, though may be an instance in favour of the appellants, however, PW-10, Investigating Officer, has duly proved the weapon of offence which were recovered by him from the accused persons, by opening sealed parcel, he proved that the articles recovered, are the same which were recovered from Santosh Singh and from Shakar Yadav and Raghubir Yadav. Therefore, the primary evidence proves the recovery of weapons of offence from the accused persons.
(j) The argument raised by the counsel for the appellant that statement of PW-2 was recorded after much delay of the incident is also of no consequence as it has come on record of the Medical college, Jhansi that she has suffered firearm injury and only when she returned home, her statement was recorded. Moreover, in a lengthy cross examination, her testimony regarding description of offence and the manner in which the offence was committed, could not be shattered by the defence.
(k) The argument raised by the appellant that no evidence of police encounter is on record is also misplaced as it has come in the statement of prosecution witness that a separate case was registered regarding the police encounter. No further cross examination was offered on this point.
(l) However, there is merit in the contention raised by the learned counsel on behalf of Toran Yadav, Bhan Singh and Ballu alias Balak Das. Firstly, neither any motive nor any enmity is attributed to these three accused persons by PW-1 and PW-2. Secondly, no recovery has been effected from them and thirdly nothing has come on record that they, a meeting of mind with the above four accused persons had committed murder of Rajbhan Singh. PW-1 and PW-2 have not specifically stated how they have exactly caused injuries to Rajbhan Singh even during their custodial investigation nothing was recovered from them.
(m) Counsel for these appellant has relied on the judgment of Supreme Court in Suresh Sakharam Nangare Versus State of Maharashtra, (2012) 9 Supreme Court Cases 249, wherein it is held as under :-
"21. Since the conviction of the appellant is based only with the aid of Section 34 of IPC, it is useful to refer the same:
"34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." A reading of the above provision makes it clear that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a pre-arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds."
(n) Counsel for the appellants submits that from the prosecution evidence neither the common intention of the appellants, namely, Toran Yadav, Bhan Singh and Ballu alias Balak Das is there with the remaining four accused persons nor their active participation is proved.
(o) Reliance is also placed on the decision of Supreme Court in Chhota Ahirwar Versus State of Madhya Pradesh, (2020) 4 Supreme Court Cases 126, the Supreme Court has observed as under :-
"25. Mere participation in crime with others is not sufficient to attribute common intention. The question is whether, having regard to the facts and circumstances of this case, it can be held that the Prosecution established that there was a common intention between the accused appellant and the main accused Khilai to kill the complainant. In other words, the Prosecution is required to prove a premeditated intention of both the accused appellant and the main accused Khilai, to kill the complainant, of which both the accused appellant and the main accused Khilai were aware. Section 34 of the Indian Penal Code, is really intended to meet a case in which it is difficult to distinguish between the acts of individual members of a party and prove exactly what part was played by each of them."
(p) Learned counsel for the appellants submits that the statements of PW-1 & PW-2 only states that the other accused has caused injuries to the deceased without assigning specific roll and in absence of common intention between two sets accused persons, the appellants cannot be held guilty.
(q) Counsel for the appellant has relied on the judgment of Supreme Court in Vinod and Others Versus State of U.P., 2023 0 Supreme( All) 1217, wherein it is held as under :-
"38. Thus, in such facts and circumstances, the ingredients of Section 34 I.P.C., i.e. the common intention to kill the deceased Om Prakash is not established from the evidences. At best, as per prosecution case, the exhortation was to beat. No evidence was led by the prosecution that during the course of alleged beating, any of the accused appellants herein have exhorted or instigated the accused Rekhpal Singh to kill the deceased Om Prakash. In such facts and circumstances, even if it is assumed that the accused Rekhpal fired by his licensed DBBL gun to kill Om Prakash, then it was an unilateral act of the accused Rekhpal. Thus, the alleged gun shot injury allegedly caused by the accused Rekhpal to the deceased Om Prakash, is not in furtherance of common intention shared by the accused appellants Vinod and Pramod. In the absence of any common intention of the accused anterior in time to kill the deceased, showing a pre-arranged plan and prior concert. No evidence could be led by the prosecution to establish a prior conspiracy or pre-meditation or common intention formed either prior to or in the course of occurrence of the crime, to kill the deceased Om Prakash. In the absence of meeting of minds or sharing of common intention by the accused appellants to kill the deceased, Section 34 I.P.C. could not be invoked. Consequently, the accused appellants cannot be convicted under Section 302 I.P.C. inasmuch as it is not the case of the prosecution that the accused appellants have killed the deceased Om Prakash. "
Learned counsel for the appellants submits that in absence of clear evidence from the prosecution regarding meeting of minds or sharing of common intention by all the accused to kill the deceased, Section 34 IPC cannot be invoked.
52. In view of the judgments in Suresh Sakharam Nangare's Case (Supra), Chhota Ahirwar Case (Supra) and Vinod and others' Case (Supra), we find that charge against appellants-Toran Yadav, Bhan Singh and Ballu alias Balak Das under Section 302/34 of IPC is not proved.
53. In view of above, we dismiss the appeal for Shankar Yadav alias Daddi, Santosh Singh, Kalloo alias Kalyan Singh and Raghubir Yadav However, we allow the appeal on behalf of Toran Yadav, Bhan Singh and Ballu alias Balak Das as these three appellants were convicted in the aid of section 34 of IPC and therefore they are acquitted of the charges. All the three appellants-Toran Yadav, Bhan Singh and Ballu alias Balak Das are on bail. Their bail stands discharged. The impugned judgment of conviction and order of sentence shall stand modified to the aforesaid extent.
54. Record and proceedings be sent to the Trial Court forthwith.
Order Date :- 9.5.2024
SKS/Mukesh/DKS
