Brijendra Singh and others vs State of U.P.

Ashok Srivastava, J.—This criminal appeal is directed against the judgment and order dated 20.10.1982 passed by the IIIrd Additional Sessions Judge, Hamirpur in S.T. No. 171 of 1979 through which he convicted all the five appellants under Sections 302 read with 149, I.P.C. and sentenced each of them to undergo rigorous imprisonment for life. They were further convicted and sentenced to undergo two years'' rigorous imprisonment u/s 148, I.P.C. The appellant No. 5, Luliya has died during the pendency of this appeal and the appeal stood abated against him on 18.5.2010.

The alleged murder had taken place on 28.4.1979 in front of the residential house of the complainant Hindupat which is situate in the village Kuchhechha, P. S. Majhgawan, district Hamirpur. On the fateful day a marriage ceremony had to take place in the house of the complainant. His brother Kamta Prasad, the family members and relatives were busy in preparation of the marriage. Kamta Prasad had come out of the house to give certain instructions regarding preparation of the marriage ceremony. He was standing before the main door when all the appellants came out from behind the house of the complainant. They were armed with guns. On the exhortation of the appellant Brijendra Singh, appellant Raju fired at Kamta Prasad which hit the abdomen of the deceased, who fell down on the ground. Immediately thereafter the appellant Jagram released a fire from his gun hitting the right thigh of the deceased. The complainant and other family members raised an alarm whereupon the appellant Sukkha released a fire from his gun which hit the wall of the house of the complainant. Thereafter all the appellants ran away from the scene of occurrence firing in the air. Kamta Prasad died at the spot. The appellants had attacked Kamta Prasad because a couple of years back to the date of the incident one Raghubir Singh, father of the appellant Brijendra Singh was murdered in which Kamta Prasad and the complainant Hindupat were accused. It has been alleged in the F.I.R. that due to previous enmity Kamta Prasad was killed by the appellants who had reached the spot in a pre-planned manner having a common object.

After lodging of the F.I.R. the matter was investigated by the Investigating Officer. The dead body of the deceased was sent for postmortem after completing the inquest report. A charge-sheet was filed and the case was committed to the Court of Sessions. All the appellants were charged for the offences punishable under Sections 148, 302, 149. I.P.C. They pleaded not guilty. The prosecution examined P.W. 1 Hindupat, the complainant, P.W. 2 Constable Balwant Singh. P.W. 3. Constable Shamshad Ahmad, P.W. 4 Constable Shiv Kumar Gupta, P.W. 5, Har Kishan, P.W. 6, Vishwanath, P.W. 7, Dr. A. K. Srivastava, P.W. 8, Manna Singh and P.W. 9 Rajendra Prasad Tiwari, the Investigating Officer of the case. P.W. 7 Dr. A. K. Srivastava conducted the post-mortem and prepared the post-mortem report. P.W. 1, Hindupat. P.W. 5. Har Kishan and P.W. 6 Vishwanath are the witnesses of facts. Rest of the witnesses are of formal nature.

The prosecution had filed as many as 18 papers which have been exhibited and marked.

We have heard learned counsel for the appellants and the learned A.G.A. who has argued the matter on behalf of the State.

It has been submitted from the side of the appellants that the F.I.R. is ante-timed. In support of this contention, learned counsel for the appellants had drawn our attention towards the memos relating to blood stained clothes and spent cartridges and also the post-mortem report and argued that no case crime number has been mentioned on these papers. In this regard we have examined the statement of the Investigating Officer, who is P.W. 9. From perusal of his statement it is clear that the Investigating Officer had prepared Ext. Ka-7 to Ext. Ka-15 in continuity sitting when he visited the place of occurrence on 29.4.1979. He remained there for some 4-5 hours and had come back to the police station in the night at about 9.30 p.m. He had mentioned case crime number on all the documents except two memos through which the blood stained clothes and spent cartridges were taken by him in his custody. On all the remaining documents case crime number is there. The Investigating Officer has not been examined on this point and no suggestion has been made to him challenging the genuineness of these documents and nothing has been stated from the side of the appellants in the course of cross-examination of the Investigating Officer suggesting him that the F.I.R. was ante-timed.

Mentioning of case crime number by the medical officer on the post-mortem report is not required under rules.

In our opinion not mentioning the case crime number on Ext. Ka-10 and Ext. Ka-14, the two papers prepared by the Investigating Officer and on the post-mortem report prepared by the medical officer concerned is not of so importance so as to give an indication that the F.I.R. was ante-timed.

The next argument which has been advanced from the side of the appellants is that the post-mortem report does not corroborate the F.I.R. version. It has been argued from the side of the appellants that from perusal of the post-mortem report it is clear that the rigour mortis was present on the body of the deceased when the post-mortem was conducted on 29.4.1979 at about 4.00 p.m., i.e., after a lapse of some 24 hours. In this continuation the learned counsel for the appellants further contended that if the post-mortem report is taken to be true, the time of alleged murder does not coincide with the time mentioned in the F.I.R.. In our opinion this contention of the learned counsel for the appellants does not hold water. From perusal of the post-mortem report it is evident that the brain matter of the deceased was found to be soft and pulpy and his abdomen was distended. In the light of such fact we have examined the cross-examination of P.W. 1 in which in the most natural way he had stated that the deceased had taken his meals just before the Incident. In this regard we have again examined the post-mortem report which indicates that 60 gm. of undigested food was present in his stomach. These facts as contained in the post-mortem report indicate that the observation of the medical officer was not proper as far as his opinion regarding rigour mortis is concerned. Rest of his findings goes to show that the probable time of the death of the deceased satisfactorily coincides with the time mentioned in the F.I.R.

The next argument advanced from the side of the appellants is that the directions of the injuries do not corroborate the facts mentioned in the F.I.R. or the statements of the witnesses of facts recorded during the course of trial. We have examined the post-mortem report keeping in view the contention of the learned counsel for the appellants.

From perusal of the site plan Ext. Ka-11 and the statements of the witnesses of facts and also of the Investigating Officer we find that there may be certain points in front of the house of the complainant which had a higher level and rest of the portions were on a lower level. Learned counsel for the appellants had argued that some unknown persons were hiding themselves on the tree situated in front of the house of the complainant and they had fired from the top of the tree and the fires hit the deceased. This contention is altogether baseless. The direction of the gun shot wounds are not of the kind as suggested by the learned counsel for the appellants. The direction of none of the injuries is so sharp which may be caused when a person fires from a height of 15-20 ft. towards the ground. Therefore, we find ourselves unable to accept the contention of the learned counsel for the appellants.

In the instant case motive is there. It is admitted that the deceased and the complainant were accused in a murder case in which one Raghubir Singh father of the appellant Brijendra Singh was killed.

Learned counsel for the appellants had further argued that there exist a number of anomalies and contradictions in the statements of witnesses of facts. But we find that the anomalies and contradictions towards which our attention has been drawn are not material and do not go to the root of the case. They are natural variations.

We have examined with caution the statements of the witnesses. From perusal of the statements and other papers available on record It is evident that all the appellants went to the residence of the complainant in a pre-planned manner with a specific object to kill Kamta Prasad, the deceased. They were armed with guns. There was a clear cut motive to kill the deceased. All the witnesses of facts are trustworthy and we have not found any inner inconsistency or contradictions of such a nature which may indicate that the witnesses were not present at the spot when the murder of the deceased was committed. It clearly transpires that all the witnesses of facts had seen the actual incident of murder. We do not find that there is any force in the contention from the side of the appellants that there was no opportunity for the witnesses of facts to see the incident as they were hiding themselves behind the shutters of the door. All the witnesses of facts have stated that though they were hiding themselves behind the doors but they had seen the entire incident of shooting through its crevices. It is a broad daylight murder. All the appellants were well known to the complainant and other witnesses of facts since before the incident. They had remained at the scene of the occurrence for not less than ten minutes and all the witnesses of facts had full opportunity to see and recognize them and their actions and inactions.

After considering all the aspects of the case we are of the considered opinion that there is no force in this appeal and therefore, it is dismissed.

All the appellants are directed to surrender before the Court of the learned trial Judge immediately to serve out their sentences.

Let a copy of this order be sent to the learned Sessions Judge concerned for its onward transmission to the learned trial court. If the appellants fail to surrender immediately, the learned trial Judge shall take coercive action against them to ensure their appearance before him and thereafter all the surviving appellants shall be sent to jail with the conviction warrants to serve out the sentences awarded by the learned trial court. Let a copy of this judgment be sent to the learned Sessions Judge concerned immediately and by fax also.

Dharnidhar Jha, J.

I agree.