Ayodhya Singh vs State of U.P.

N. B. Astiiana, J.—Accused Ayodhya Singh has filed this appeal against the judgment and order dated 5582 passed by the then learned Sessions Judge, Banda in S. T. No. 385/81 (Case Crime No. 112 under Sections 302/307, I.P.C., P. S. Pailani, Banda) convicting him for having committed the murder of Amar Singh along with one unknown person 18th July, 1981 at about 1230 p.m. in the Chaupal of Jwala Singh in villageChandwara, P. S. Pailani, Banda and also for causing injuries to Smt. Sushila with the intention of committing her murder at the door of the house of Haura Singh in VillageChandward, P. S. Pailani upon the same date and time as aforesaid and sentencing him to undergo life imprisonment under the first count and seven rigorous imprisonment under the second count.

The prosecution story, in brief, is that Smt. Sharda, widow of Gaya Singh (brother of the appellant) was joint with the appellant. She wanted to have a partition and her share separated. She asked the appellant for the partition but did not listen. On the other hand he started abusing and beating Ver. Smt. Sharda came to PW1, Bhura Singh and wanted his help for getting the partition done. PW1, Bhura Singh, collected some respectable persons of the village. A Panchayat was held in the month of Kwanr about two months prior to the incident in question, in which Smt. Sharda was given her half share. Thereafter Smt. Sharda started visiting the house of PW 1, Bhura Singh. The appellant felt annoyed with PW1, Bhura Singh, for the aforesaid reasons. At the time of alleged incident the complainant PW1, Bhura Singh after taking meal was resting on the roof of his house. His wife PW1, Susheela and their daughter PW5, Santosh Kumari, after taking meals were sitting near the door of their house. Deceased, Amar Singh son PW1, Bhura Singh after taking meals was at the Ciiaupal of Jwala Singh. PW2, Badkn Singh, real brother of PW4, Susheeki, who ha I come to take her to his house, PW6, Hazari cousin of PW1, Bhura Singh, Krishna Pal, Ram Autar, Ram Kishan, Ram Vishal and Shiv Balak were also there. PW2, Badku Singh, deceased Amar Singh, Krishna Pal aad Ram Autar were playing cards while sitting over a cot. PW6, Hazari Lal and Ram Vishal were sitting in the Chaupal while Shiv Balak Singh was sitting on the Chabutra outside the Chaupal. This Chaupal is at a distance of about 50 paces from the house of PW1, Bhura Singh, and is not visible from there.

It was about 1230 p.m. when the appellant armed with a DBBL gun and an unknown person armed with a countrymade pistol came there. Appellant shouted that he will kill Amar Singh and asked other persons over the cot to get a way if their life was dear to them. PW2, Badku Singh, Krishna Pal Ram Autar got off the cot. Deceased Amar Singh was also trying to go away when the appellant fired upon him killing him instantaneously. Both of them, came to the door of the house of PW1, Bhura Singh. They enquired from PW4, Shusheela, as to where PW1, Bhura Singh was. She replied that he had gone somewhere in the village after taking meals whereupon the companion of the appellant said that she be killed as she was not speaking the truth whereupon the appellant fired PW4, Shusheela, causing her injuries. Upon hearing this fire PW1, Bhura Singh came down from the roof, saw his wife lying injured in a pool of blood and the appellant and his companion going briskly towards the western side. PW4, Susheela, told him about this incident. In the meantime PW2, Badku Singh and PW6, Hazari came there and told about the incident at the Chaupal. PW1, Bhura Singh rushed to the Chaupal and found his son dead over the cot. He then returned to his house and started for police station in a cart along with PW4, Susheela P. S. In Pailani one Bhaiya Lal of villageMarakka met him who also accompanied PW1, Bhura Singh, to the Police Station. Out side the police station PW1 Bhura Singh purchased paper from a shop and got written from Bhaiya Lal Ex. Ka1 the F. I. R. of this occurrence. This report was handed over to H. M. Munnu Singh at the police station at 820 p.m. at a distance of 16 Kms. from the place of incident. On the basis of this report H. M. Munnu Singh prepared the chik report Ext. Ka6, made its entry Ext. Ka7 in the G. D. and registered a case. These papers have been proved by PW9 S. I. Rampati Mishra I. O. He also recorded the statements of PW1, Bhura Singh and PW4, Susheela at the police station. He then started for the place of occurrence reaching there at 4.00 a.m. He inspected the deadbody which was laying over a cot in the Chaupal. He appointed Panchas, prepared the Panchayatnama (Ext. Ka8) and other required papers. The dead body was sealed and sent for postmortem examination through PW8, Constable Mohiuddin and Constable Radhan Charan Lal. He collected blood stained and simple earth from the Chaupal as well as from the door of the house of PW1, Bhura Singh. He also collected pieces of broken bangles one mala of Mongra, sealed them in separate packets and prepared memos thereafter. He also prepared the site plan Ext. Ka26. He recorded the statements of the witnesses and searched for the appellant, who was absconding. Proceedings under Sections 82 and 83, Cr. P. C. were also taken. He surrendered in the court on 31081. The investigator also recorded the statements of the witnesses and after completing the investigation submitted chargesheet Ext. Ka25 against the appellant. It appears his companion could not he traced out.

PW3 Dr. C. J. Gupta, Medical Officer, District Hospital, Banda, conducted the postmortem examination upon the dead body of Amar Singh. He found the following antemortem injuries:

(1) Gunshot wound entry 2 cm. X 2 cm. chest cavity deep on the right side chest 12 cm. lateral to mid vertebrae spine and at the level of inferior angle of scapula. Margins were lacerated and inverted with abraded collar. No blackening, no charring, no tattooing was found. The direction of the injury was inward and towards left outer side and anterior side underneath. 6th and 7th ribs right side posterior aspect were fractured. Left and right lungs were lacerated and perforated at places.

(2) Gunshot wounds to exit in area 10 cm. X 9 cm. communicating to injury No. 1 each measuring 1.5 cm. X 1.5 cm., communicating to injury No. 1 on left side front of chest, 4.5 cm. above lateral to left nipple at 2o'' clock position. Margins were lacerated and inverted second and third ribs underneath found fractured at the site of the wound.

Upon internal examination pleura was found lacerated and perforated. Left and right lungs were also lacerated and perforated. About a litre free and clotted blood was found present in chest cavity. 100 gms. of semidigested food was found in stomach. According to the doctor, death was caused due to shock and haemorrhage as a result of antemortem injuries. He was examined as PW3. In his statements he proved the postmortem report Ext, Ka4 and gave out that these injuries were sufficient in the ordinary course to cause death and that the deceased may have died on 18781 at 1230 p.m.

The injured Smt. Susheela was examined by PW7, Dr. D. S. Rana on 18781 at 11.30 p.m. He found the following injuries:

(1) Gunshot wound of entry on the back and medial aspect of left hand 2 cm. X 2 cm. hand content deep, margine were inverted, blackening and charring were present. The injury was directed inward, upward and towards lateral aspect of hand and front of the hand thumb and palm with lacerated wound 6 cm. X 5 cm. bone deep in continuation of the injury. Situated 2 cm. below the lower end of also (wrist joint).

(2) Gunshot wound of exit on the front (palm) and lateral aspect of left hand 8 cm. X 6 cm. through and through. Some bone parts were missing and thumb was hanging with skin and soft tissues. Margins were everted. Wound was communicating with injury No. 1.

(3) Seven gunshot wounds of entry on the front and medial upper part of chest and neck on left side of neck each measuring 0.5 cm. X 8.5 cm., chest and neck content deep. Margins were inverted. Abraded collar was found present. No blackening or charring was seen the injury was directed upward and backward in an area of 8 cm. X 5.5 cm.

(4) Four gun shot wounds of entry in an area of 11 cm. X 7 cm. on the right side upper part of chest front and medial side. Each one measured 0.5 cm. chest content deep. Margins were inverted. Abraded collar was present. The wounds were directed inwards and upwards and backwards. No blackening or charring was present.

According to the doctor injuries were about half a day could have been caused on the same day at 1230 p.m. In his examination he proved the injury report, Ext. Ka5.

In all the prosecution examined nine witnesses to prove the guilt of the accused. PW1 is Bhura Singh. In his examinationinchief he corroborated the prosecution story and proved the F. I. R. lodged by him at the police station. He is not an ocular witness of the incident. He stated what was told to him ''by PW4 Smt. Susheela and PW5 Santosh Kumari about the second incident and whatever is said to have told to him by PW 4 Badku Singh and PW6 Hazari about the first incident that took place at PW 2 Chaupal of Jwala Singh. PW2 Badka Singh is the real brother of PW4 Smt. Susheela. He has stated that at the time of the incident he was playing cards at the Chaupal of Jwala Singh. The appellant armed with double barrel gun along with an unknown person armed with Tamancha came there. The appellant fired upon Amar Singh, killing him there. He also stated that he heard the gunshot fired from the side of the house of Bhura Singh whereupon he and PW6 Hazari rushed there and found Smt. Susheela injured at the door of the house. He told PW1 Bhura Singh about the incident at the Chaupal of Jwala Singh. PW4 Smt. Susheela corroborated the prosecution story about the second incident and gave out that PW2 Badku Singh and PW6 Hazari came from the Chaupal and told about the incident there to Bhura Singh. PW5 Santosh Kumari corroborated the statement of PW5. Smt. Susheela, PW6 Hazari in his examinationinchief corroborated the statement of PW2 Badka Singh. PW8 is constable Mohiuddin who had taken the dead body alongwith constable Ram Charan for getting the postmortem done. PW9 is the Investigating Officer S. I. Ram Pati Mishra.

The appellant in his statement denied the allegations made against him and gave out that Bhura Singh had filed a suit against him under Section 222B of Z. A. and L. R. Act. Bhura Singh lost this case. The land is in his possession. In order to take forcible possession over that land he implicated him falsely in this case. He stated that he was not absconding. He was suffering from T. B. and was being treated out of the village. When he came to know that he has been implicated, he surrendered himself in court. DW1 Jitendra Pratap Singh, Record Keeper, Collectorate, Banda was examined to state that the special report of this incident was received in the office of the District Magistrate on 20781. It bears the signatures of Shri R. P. Singh, Additional District Magistrate In his crossexamination he gave out that when the District Magistrate is out of station the report is accepted by the steno or orderly and then it is sent to the Additional District Magistrate for perusal and necessary action. He also stated that the signature of the A. D. M. is dated 20781 and he cannot say on which date the report was received at the residence of the District Magistrate and when it was sent to the Additional District Magistrate.

The trial Court believed the prosecution version of the case and convicted and sentenced the appellant as stated above. Hence this appeal.

We have heard learned counsel for the appellant and learned Additional Government Advocate and have perused the record finally.

The second incident that took place in front of the door of the house of PW1 Bhura Singh in which PW4 Smt. Susheela was injured was not questioned during the course of arguments. The presence of Smt. Susheela cannot be disputed as she is injured. The presence of her daughter Santosh Kumari at the door of the house also appears very much probable. It is in their statements that after taking meals they were sitting at the door of their house when the incident took place. Their testimony finds support from the medicalexamination report and also from the F. I. R. which was lodged without any undue delay. The F. I. R. was no doubt lodged by PW1 Bhura Singh but details of |the incident were narrated to him by injured Smt. Susheela. She would be deemed to be author of the report. PW1 Bhura Singh also saw appellant along with the unknown person briskly walking away after the incident with a double barrel gun. All this evidence clearly proves that .the appellant had fired upon PW4 Smt. Susheela in order to kill her and in this process caused gunshot injuries to her. Trial Court rightly came to the conclusion that this incident took place as alleged by the prosecution.

The involvement of the appellant in the first incident in which Amar Singh was done to death was seriously questioned during the course of arguments. It was urged that PW2 Badku Singh, PW6 Hazari were not present at the Chaupal as alleged by him, that none of the witnesses examined in the case had seen this incident, that some other persons may have committed this crime and on account of enmity the appellant had been falsely implicated.

Before discussing this point it would be relevant to state in order to show the conduct of the complainant PW1 Bhura Singh that he did not describe himself in an ocular witness of any of the two incidents. Had he wanted to create false evidence in the case then there was no difficulty for him to describe himself as an occular witness. Kotha, Chaupal and cattle shed of PW1, Bhura Singh are situated towards the southeast corner of the Chaupal of Jwala Singh. From the Chaupal of PW1, Bhura Singh the Chabutra of his house where the second incident took place can also be seen. He could have very well stated himself to be at this roof of his Chaupal, Kotha or cattle shed (Maveshikhana) and could have deposed that both the incident were witnessed by him. He has been actuated by malice or illwill then he could have also named one of the relations of the appellant or any person inimical to him as having accompanied the appellant to implicate him falsely. The fact that he did not name himself as an ocular witness of the incident and the fact that the person accompanying the appellant was not named in the F. I. R. would be circumstances to indicate that no attempt was made to rope innocent person or to manufacture false evidence in the case. It would not be out of place to point out here that during the course of arguments the date, time and place of the first incident was not questioned. Only the involvement and participation of the appellant was denied and it was argued that the two witnesses, namely, PW2, Badku Singh and PW6, Hazari are cooked up witnesses who were not present at the time of incident and should not be relied upon and that the material and independent witnesses have been withheld by the prosecution, which would indicate oblique motive on its part.

In his examinationinchief PW1, Bhura Singh gave out that Baijnath father of Krishnapal is sarpanch of the village. His litigation was going on in the civil courts with the appellant over a piece of land. After the incident the appellant compromised the matter with Baijnath undertaking to leave possession of the land in case Krishanpal did not depose against him. He further stated that the appellant delivered the possession of that land to Baijnath and for that reason Krishanpal is not ready to give evidence. He further stated that he had litigation with Ram Autar and for that reason he is not prepared to give evidence. Ram Vishal is the nephew of Ram Autar, he has also sided with the appellant and is not prepared to give evidence. Nothing has been elicited from him in crossexamination, which may discredit his above statement. We do not, therefore, think that any adverse inference can be drawn against the prosecution for not examinery any of the above witnesses.

The complainant in his examinationinchief gave out that his wife PW 4, Smt. Susheela had told him about the incident while in crossexamination be gave out that he did not have any talks with Susheela and that Santosh Kumari told him about the incident. In his examinationinchief he gave out that while he was going to the police station Bhaiyalal met him and upon his asking he scribed the First Information Report in front of the police station and then along with this report he reached the police station. In his crossexamination he gave out that he reached the police station where he told about the incident to the Head Moharrir, who asked him to give the report in black and white. He thereafter come out side the police station where at a shop Bhaiya Lal was found from whom he got scribed the F. I. R. after taking paper from another shop and then handed it over at the police station. This contradiction in our opinion would not lead to the conclusion that the appellant was not involved in the incident leading to the murder of Amar Singh. He denied the suggestion that he was not at the house at the time of the incident.

It was then urged that PW 2 Badka Singh was not present at the Chaupal of Jwala Singh. In his crossexamination he gave out that the subInspector did not come in the night and that in the morning he went to Banda to see his sister and then he went to his village. He returned to Banda the next morning and remained there for one and half a month attending his sister in the hospital. He stated that the investigating officer met him after about two months when he was going to village Chandwara, took him to the police station and there recorded his statement. The investigating officer in his crossexamination gave out that the statement of this witness was recorded on 3091991. He did not offer any explanation as to why the statement was not recorded earlier nor he was given any opportunity in crossexamination to explain this delay. It has also been argued that the conduct of the PW 2, Badka Singh is also not natural. His sister had been seriously injured and his sister''s son had been killed. According to the argument the normal conduct have been to stay in the village to look after his sister from the very beginning and to participate in the last rites of Amar Singh. It was argued from the other side that he had gone to tell his family members about this ghastly incident and that he come next day to attend his sister and looked after her for about two months in the hospital. It has been argued that this witness gave out that he had gone to Chandwara about two days prior to the incident to order to take his sister and that there was no occasion for him to stay in the village. We do not think this conduct is improbable. He was not asked anything in crossexamination as to why he stayed in the village for two days. It was his sister''s house and we do not think there was any improbability in his staying for two days there. It was also argued that he did not tell the investigating officer about the purpose of his visit to village Chandwara. He may or may not have been present at the time of the incident but in view of the fact that his statement was recorded late and he did not tell the investigating officer about the purpose of his visit to village Chandwara. We are of the opinion by way of abundant precaution that it may not be safe to rely upon his testimony. This should not lead one to conclusion that this witness is liar and that this testimony is unworthy of any credence or that the prosecution has tried. To lead his cooked up evidence in the case. PW 6 Hazari is a resident of villageChandwara. The incident is said to have taken place in the month of July. It is in the evidence of PW 1, Bhura Singh as well as in the statement of the investigating officer that it was raining in those days. In the rainy season nobody works in the field and, therefore, it is not improbable that PW 6. Hazari, after taking meals came to the Chaupal of Jwala Singh where other persons were also sitting in order to while away time. Between his" house and house of Bhura Singh only one house intervenes. He also gave out that it was his routine to come to the Chaupal and stay there for some time after taking meals. His statement was recorded on the next day of the incident. The investigating officer came to the spot on the next day. He also stated that at the time the investigating officer came to the village, he was looking after the dead body. To the same effect is the statement of the investigating officer in crossexamination. The presence of the witness in the circumstances cannot be doubted at the time of occurrence. In his crossexamination this witness gave out that after the accusedappellant had left a number of persons of the neighbourhood came there. He was unable to tell their names. He gave out that for five minutes he kept on weeping on account of the murder of his nephew and for that reason he did not notice as to who were the persons collected there. In his crossexamination he gave out that the appellant had asked him as to where PW 1 Bhura Singh was and he had replied that he did not know. This statement was not given by him to the investigating officer. In his crossexamination he also gave out that he had told the investigating officer that the appellant had told that in case his life was dear to him then he should stay away as he was going to kill Amar Singh and that Amar Singh took a turn when he was shot at by the appellant. This statement was not given by him to the investigating officer. He further gave out in the crossexamination that he had Badka Singh went to the door of the house of PW 1, Bhura Singh when they saw that Santosh Kumari was sitting at the Chabutra while his sisterinlaw Smt. Susheela was lying injured by the side of the wall and that he had told PW 1, Bhura Singh that Amar Singh had been shot at the Chaupal. This statement was also not given by him to the investigating. This witness denied that when PW 1, Bhura Singh came to the Chaupal he told him for the first time about the incident. He also denied having the statement to investigating officer that when PW1, Bhura Singh came to the Chaupal he told him about the incident, he maintained that after hearing the shot he went to the house of PW 1, Bhura Singh and told him about the incident. He also gave out that he had told the investigating officer that he had heard a shot being fired at the house of PW 1, Bhura Singh. This statement was also not found recorded by the investigating officer. On the basis of the above omissions in the statement of this witness and on the basis of the statement given in crossexamination and not found in the statement under Section 161, Cr. P. C. it was argued that this was not at all present at the scene of occurrence officer. These omission in our opining would not discard the veracity of this witness. In his statement to the investigating officer he had supported in main the essentials of the prosecution story. Ha was not expected to tell him each and everything which could have been asked in crossexamination. These omissions are not on material point in so far as the involvement of the appellant in the crime in question is concerned He is an illiterate person. He was in agony due to death of his real nephew. If in these circumstances he did not tell all the details to investigating officer, we do not think that this witness can be termed a liar and undependable. His testimony finds support from the fact that the date, time and place of occurrence have not been disputed before us and also from the fact that PW 4 Smt. Susheela and PW 5, Santosh Kumari heard a shot being fired at the Chaupal of Jwala Singh and immediately thereafter the appellant and his companion appeared at the door of their house and enquired about PW 1, Bhura Singh. The fact that the shot was heard being fired at the Chaupal of Jwala Singh and Immediately thereafter the appellant appeared at the house of P W 1, Bhura Singh armed with a gun would in our opinion be an important circumstance to corroborate the statement of PW 6, Hazari. We are of the opinion that the trial Court was fully justified in placing reliance upon the testimony of PW 6, Hazari to come to the conclusion that the murder was committed by the appellant. It was also argued that the investigating officer could not find out as to which was the wound of entry and which was the wound of exit and, therefore, after postmortem examination witnesses started saying that the deceased tried to take a turn whereupon he fired. We do not think this would effect the merits of the case. This statement if at all one be said to be an improvement is not of any important aspect of the case.

It was then urged that medical evidence does not support the statement of this witness. The doctor recovered one weded place from right side chest cavity. This witness in his statement gave out that the appellant came to the entrance of the Chaupal enquired from him as to where PW 1, Bhura was and then after warning the other persons present in the Chaupal fired upon A mar Singh. The investigating officer in his crossexamination gave out that the entrance of the Chaupal is at a distance of about seven paces from the place where the dead body was found. We do not find anything on the record to indicate that the appellant that the appellant fired from the entrance of the Chaupal. It may be that he came forward one or two steps and then fired from the gun in order to ensure that his shot does not miss the target, the length of the gun which is about four feet has also to be taken into consideration. Dr. G. J. Gupta, PWs 3, in his statement gave out that no charring or blackening was found around the wound and that had the shot been fired from a distance of about 4� feet then blackening around the wound was possible in case he was not wearing any clothes. The doctor removed one paijama and one underwear from the dead body. It would indicate that the deceased was not wearing any clothes at the place of injury. Had the shot been fired from a very small distance than at least blackening would have been found around the wound. There is nothing on the record to indicate that the factory made cartridge was used. In our opinion, therefore, the mere fact that a waded piece was found inside the chest cavity would not lead to the conclusion that the shot was fired from a very close range and that PW 6. Hazari was not present at the time of occurrence.

In view of the discussion above we are of the opinion that the appeal lacks merit and is, accordingly dismissed. The appellant is in jail. He would serve out the sentence awarded to him by the trial Court.