Lakshman Singh and Others (In Jail) vs State

M.C. Jain, J.—These are two connected appeals and are being decided by this common judgment. The Appellants are Lakshman Singh. Sattey Singh, Phool Singh, Ganga Singh and Ashok Kumar Singh in Criminal Appeal No. 2961 of 1980, whereas Raghuraj Singh is the Appellant of Criminal Appeal No. 2980 of 1980, Phool Singh died during the pendency of the appeal. The appeal abated as against him as per order dated 29.9.1999. All the Appellants have been convicted by judgment dated 22.12.1980 passed by Sri B.B.S. Chaudhary, the then Xth Additional Sessions Judge, Kanpur in S.T. No. 309 of 1979. Raghuraj Singh and Lakshman Singh have been convicted under Sections 148 and 307, I.P.C. read with Section 149, I.P.C. and Section 302. I.P.C. read with Section 149, I.P.C. Each of them has been sentenced to life imprisonment u/s 302 read with Section 149, I.P.C., seven years'' rigorous imprisonment u/s 307, I.P.C. read with Section 149, I.P.C. and one year''s rigorous imprisonment u/s 148, I.P.C. The remaining four Appellants Phool Singh, Ganga Singh, Ashok Kumar and Sattey Singh were convicted under Sections 147 and 307, I.P.C. read with Section 149, I.P.C. and u/s 302. I.P.C. read with Section 149, I.P.C. Each of them was sentenced to life imprisonment u/s 302, I.P.C. read with Section 149, I.P.C., seven years'' rigorous imprisonment u/s 307, I.P.C. read with Section 149, I.P.C. and one year''s rigorous imprisonment u/s 147, I.P.C.

One Kanhaiya Lal was murdered in this incident and two others, namely. Bhagwan Singh P.W. 1 and Tej Singh P.W. 2 sustained injuries. The incident took place on 17.9.79 at about 7.00 p.m. in village Bahera, Police Station Mangalpur, district Kanpur. The report was lodged on 17.9.79 at about 8.45 p.m. at Police Station Mangalpur by Tej Singh P.W. 2 Bhagwan Singh P.W. 1, Tej Singh P.W. 2 and Ram Kishore P.W. 5 have been examined as eve-witnesses. The prosecution case was that accused Raghuraj Singh was the Pradhan of the village. He had sold a green tree of Gram Samaj without obtaining the permission of the members of the Gram Samaj to Sharad Kumar Bajpai for Rs. 700. Sharad Kumar started cutting the tree, but later on some people sprayed into the ears of the Pradhan that he had sold the tree at a very cheap price. The Pradhan Raghuraj Singh accused then stopped Sharad Kumar from cutting the tree. On the day of occurrence, he himself started getting the tree cut. Sharad Kumar along with Gram Samaj member Pyare Lal objected to it, but he did not pay any attention. Pyare Lal then reported the matter to the police. The same day at about 7 p.m., the complainant Tej Singh was sitting on his Chabutra hearing radio. Sharad Kumar, Hari Om, Kanhaiya Lal brother of Pyare Lal, Bhagwan Singh and Ram Kishore were also sitting there. A lantern was glowing. Raghuraj Singh armed with his licensed gun. Phool Singh, Ashok Kumar Singh, Ganga Singh and Sattey Singh armed with lathis and Lakshman Singh (son-in-law of Ganga Singh) armed with muzzie loading gun appeared there hurling abuses. They asked as to where Sharad Kumar and Pyare Lal were. Ganga Singh, Ashok Singh and Sattey Singh shouted that they should not be spared. Lakshman Singh fired from his gun. The persons sitting there went towards the room. Raghuraj Singh then fired two shots one after the other. The shots hit Kanhaiya Lal and Bhagwan Singh. Ganga Singh caused injuries to Tej Singh with lathi. The accused then ran away along with their arms. It was also mentioned in the F.I.R. that Raghuraj Singh and others wanted to kill Sharad Kumar and Pyare Lal due to enmity on account of the dispute of the tree. The report of the incident having been lodged by Tej Singh P.W. 2 at 8.45 p.m., a case was registered. The injured were sent for medical examination to Jhinjhak. The two injured Bhagwan Singh and Kanhaiya Lal were given first aid there and were then advised to be taken to Kanpur. Their injuries were examined there. Later on Kanhaiya Lal died in U.H.M. Hospital and thereafter the case was altered, inter alia, u/s 302, I.P.C. The investigation followed as usual. A charge-sheet was ultimately laid against the accused-Appellants. Initially, Kanhaiya Lal (deceased) was examined by Dr. N. Hasan P.W. 8 on 18.9.1979 at 2.10 a.m. He had received a gunshot injury of entry on right iliac fossa. Margins were inverted. There was no charring or tattooing. The injury was 11 cm. from umbilicus and abdominal cavity deep. After his death, post-mortem over the dead body was conducted by Dr. S.K. Chandra P.W. 4 on 20.9.1979 at 4.15 p.m. He was aged about 25 years. He had died in U.H.M. Hospital, Kanpur on 19.9.79 at 4.10 a.m. He had sustained the following ante-mortem injury:

Gunshot wound of entrance circular 1 cm. � 1 cm. abdominal cavity deep in upper part of right buttock 11 cm. right lateral to vertebra column, no tattooing. Margins inverted.

The death had occurred due to shock and haemorrhage caused by the aforesaid gunshot injury.

The injured Bhagwan Singh P.W. 1 was medically examined in U.H.M. Hospital, Kanpur on 18.8.1979 at 2.30 a.m. by Dr. N. Hasan P.W. 8. He had sustained the following injuries:

Two gunshot wounds of exit 3 cm. apart 1 cm. � 1 cm. in diameter margin everted lateral side left elbow, advised X-ray.

Two gunshot wounds of entry 3.5 cm. apart 1/2 cm. � 1/2 cm. in diameter each post, aspect. Lower end left arm and elbow. Advised X-ray.

Traumatic swelling left elbow. Advised X-ray.

Another injured Tej Singh P.W. 2 was examined on 18.9.1979 at 10.30 a.m. at P.H.C. Jhinjhak by Dr. M.S. Rathore P.W. 9. He had sustained the following injury:

Contusion 9" � 4" on the lateral aspect of left leg starting from middle portion. Tender.

The Appellants pleaded false implication.

At the trial the prosecution examined nine witnesses out of whom Bhagwan Singh P.W. 1, Tej Singh P.W. 2 and Ram Kishore P.W. 5 were the eye-witnesses. The Appellants also examined one Badan Singh D.W. 1 to prove the alibi of Lakshman Singh and Sattey Singh Appellants. The learned trial court believed the prosecution case and evidence and passed the impugned judgment.

We have heard Sri A.D. Giri, learned Counsel for the Appellants, learned A.G.A. and Sri P.N. Mishra, learned Counsel for the complainant. We have also carefully perused the material and evidence on record.

We are not concerned with the Appellant Phool Singh as he died during the pendency of the appeal. The appeal has abated as against him. We first propose to examine the case of Appellants Ganga Singh, Ashok Kumar Singh, Lakshman Singh and Sattey Singh. It has come in the evidence of Bhagwan Singh P.W. 1 that Ganga Singh is the brother of Raghuraj Singh. Ashok Kumar Singh Appellant is the son of Raghuraj Singh. Appellant Laksman Singh is the son-in-law of Ganga Singh and Sattey Singh is the brother of Lakshman Singh. The last two mentioned Appellants hail from another village. No doubt, all these Appellants are named in the F.I.R. and three witnesses have spoken about their participation in this crime. The specific role has also been assigned to Ganga Singh and Lakshman Singh that Ganga Singh had struck a lathi blow on the leg of Tej Singh P.W. 2 and Lakshman Singh had opened fire from the gun. But the case and evidence of the prosecution is that there were two shots fired by Raghuraj Singh that had hit Kanhiaya Lal and Bhagwan Singh P.W. 1. On a careful consideration of the prosecution evidence against these Appellants, we do not find it safe to rely upon the eye-witnesses in so far as they are concerned. There are very strong reasons which render the participation of the Appellants in the incident to be doubtful. It may be pointed out that it was Tej Singh P.W. 2 who had lodged the F.I.It. In the G.D. relating to the registering of the case (Ext. Ka-9), it is mentioned that he complained of swelling and pain in his left leg. Though the injuries of other two injured, namely, Kanhaiya Lal (who subsequently died) and Bhagwan Singh were noted in the G.D., but as regards Tej Singh P.W. 2, there was no mention of his any injury. It was only stated that he complained of pain and swelling in his left leg, meaning thereby that no injury was visible on his left leg at that time. Moreover, Dr. M.S. Rathore P.W. 9 who examined the so-called injury of Tej Singh on 18.9.79 at 10.30 am. clearly stated in his cross-examination that that injury could not have been sustained in standing posture. It would be recalled that it was a contusion on lateral aspect of left leg starting from middle portion that was found on his person. It is pertinent to note that the evidence of all the eye-witnesses is suggestive that he had received this injury in standing posture. Moreover, the prosecution case from the very inception was that the lathi blow had beep struck on Tej Singh after firing. But marked improvement was made during the course of evidence adduced in the Court wherein the eye-witness testified Ganga Singh struck lathi blow on Tej Singh P.W. 2 right in the beginning and it was thereafter that firing took place. The animus allegedly was on the part of Raghuraj Singh against Sharad Kumar and Pyare Lal, member of the Gram Samaj. It sounds to be illogical that start of the incident would have been made by the culprits by simply striking a lathi blow on Tej Singh P.W. 2. Either the culprits would have looked for their targets, or if they intended to indiscriminately attack even the sympathizers of their targets, much more injuries would have been caused to Tej Singh P.W. 2 than a simple lathi blow. It should be remembered that as per the prosecution case, the culprits were as many as six, out of whom three were armed with firearms and other three were having lathis.

So far as Lakshman Singh and his brother Sattey Singh are concerned, they are residents of another village Manikganj. Lakshman Singh is the son-in-law of Ganga Singh. It does not sound to be probable that without any direct motive whatsoever, they would have come from their village to join in this felony.

Exaggeration of the part played in the course of the incident is quite commott. At times, inimical relationship between the prosecution and the accused side serves as an inducement to falsely implicate persons on the other side. Even when only some members of the rival group are involved in the offence quite often one finds a tendency also to falsely rope in some other members. In doing so the story is improved and modified to achieve this purpose. Therefore, the Court has to be circumspect in the appreciation of the evidence so that an innocent person is not wrongly convicted. In the case at hand, having regard to the attending circumstances, the testimony of eye-witnesses is not acceptable as against the Appellants Ganga Singh, Ashok Kumar, Lakshman Singh and Saaey Singh who are close relatives of the main Appellant, Raghuraj Singh (whose case shall be discussed separately herein below) and the evidence against them being extremely doubtful keeping in view the circumstances, benefit of doubt has to be extended to them. The appeal is bound to succeed insofar as they are concerned.

We now intend to take up the case of the remaining Appellant Raghuraj Singh. Learned Counsel for the Appellants has levelled criticism against the eye-witnesses. It has been submitted that version of the eye-witnesses as to the seat of the injury of the deceased Kanhaiya Lal, does not reconcile with medical evidence. It has also been urged that reliance could not be placed on the dying declaration of the deceased recorded by the Investigating Officer in the form of his statement u/s 161, Code of Criminal Procedure as it was not in accordance with Regulation No. 115 of the U.P. Police Regulations. The arguments of the learned Counsel for the Appellants may sound to be attractive at the first blush, but they cannot stand the test of scrutiny. It is to be pointed out that animus was there on the part of Raghuraj Singh Appellant who was annoyed because of Sharad Kumar and Pyare Lal member of the Gram Samaj having objected to the cutting of the tree by him which he had earlier sold to Sharad Kumar. At the time of incident, the eye-witnesses, namely, Bhagwan Singh P.W. 1, Tej Singh P.W. 2 and Ram Kishore P.W. 5 along with the deceased and others were discussing the so-called high handedness of the said Raghuraj Singh Pradhan-Appellant. The discussion was being held at the chabutra of Tej Singh P.W. 2. It is the consistent version of all the three eye-witnesses that it was Raghuraj Singh Appellant who had opened two shots from his gun one after the other, one of which had hit Kanhaiya Lal and the other Bhagwan Singh P.W. 1. Learned Counsel for the Appellants has urged that it has come in the testimony of Bhagwan Singh P.W. 1 himself that Raghuraj Singh had fired from his single barrel licensed gun, but none of the eyewitnesses has stated that he had filled second cartridge in the barrel of the gun after opening first shot on Kanhaiya Lal. To our mind, filling of second cartridge was the job of fraction of a second and it was not necessary to be so stated specifically by the eye-witnesses. It may also be stated that two empty cartridges had been recovered by the Investigating Officer from spot in respect of which the recovery memo Ext. Ka-14 was prepared. Firing of two shots by Raghuraj Singh is the consistent case of the prosecution right from the beginning and as per the testimony of the eye-witnesses. The testimony of the eye-witnesses that Raghuraj Singh Appellant had fired two shots from his gun in quick succession implies that he had filled a second cartridge in the barrel of the gun after opening

first shot. No cross-examination was directed on this aspect of the matter from the defence side as to how two shots were fired by Raghuraj Singh Appellant. Therefore, the testimony of the three eye-witnesses cannot be discarded by resorting to such pedantic exercise.

We also do not find any conflict between ocular version and medical evidence as contained in the post-mortem report of the deceased Kanhaiya Lal and the injury report of Bhagwan Singh P.W. 1. The injuries of Bhagwan Singh P.W. 1 had been caused by some firearm as is clear from his injury report proved by Dr. N. Hasan P.W. 8. The same could have been sustained as a result of one of the two shots fired by Raghuraj Singh Appellant.

The thrust of the argument of learned Counsel for the Appellant with reference to the post-mortem report of the deceased Kanhaiya Lal is that he had received gunshot wound in upper part of right buttock which was abdominal cavity deep. It has been urged that as per Bhagwan Singh P.W. 1, Kanhaiya Lal had received gunshot in his stomach. It has been pointed out that Tej Singh P.W. 2 stated "Kanhaiya Lal ke goli puththe ke uper jahan pet pithi se milta hai wahan lagi thi.... Kanhaiya Lal ke pet mein bhi ghav tha. Yeh nahin malum ki yeh ghav pet mein kaise aaya." The statement of Ram Kishore P.W. 5 has also been referred to who stated, "Kanhaiya Lal ke pet mein goli nahin lagi. Puththe ke uper jahan pet pithi se milta hai goli lagi. Jahan pet pithi se milta hai usko main pet kahta hurt." Thus it has been argued that as per medical evidence, Kanhaiya Lal received gunshot wound on right buttock, but as per the abovenamed eye-witnesses, he received gunshot wound in his stomach. To us, so called contradiction is superficial and is based on hair-splitting. The truth of the matter is that the gunshot injury had been received by Kanhaiya Lal on torso-region which has been described by different persons in different words. When he had been taken to the police station, the constable scribing the G.D. described injury of Kanhaiya Lal in these words: "Dahine taraf pet mein kokh ke pas chot goli khunalood". On his first medical examination in U.H.M. Hospital, Kanpur, on 18.9.1979 at 2.10 a.m. Dr. N. Hasan described the seat of his injury as right iliac fossa, 11 cm. from umbilicus and abdominal cavity deep. The post-mortem report also shows that his gunshot injury was abdominal cavity deep. It was not a through and through injury, but it is certain that it was on torso region in close range of umbilicus. The eye-witnesses, constable writing the G.D. and doctors have not made use of the same set words to describe this injury. The impact of the injury was abdominal cavity deep and as stated above, it was not a through and through injury. On taking realistic view of the matter, there is no contradiction between the medical evidence and the ocular version as regards the injury of Kanhaiya Lal, deceased. It should be kept in mind that discrepancies in the matters of detail always occur in the evidence of eye-witnesses. Such variations creep in because there are always natural differences in faculties of different individuals in the matter of observation, perception and description. We are firmly of the view that the argument of learned Counsel for the Appellants that there is conflict between the medical evidence and ocular, has no force.

Now we come to the dying declaration of Kanhaiya Lal recorded by the Investigating Officer Mata Din Verma P.W. 7 in the form of his statement u/s 161, Code of Criminal Procedure at the police station where he had been taken at the time of the lodging of the F.I.R. in the night of 17.9.1979 itself. The gist of the objection of learned Counsel for the Appellants is that it cannot be relied upon for the reason it was not taken in the presence of two witnesses as required by Regulation 115 of the U.P. Police Regulations. He also did not obtain his signature or thumb mark as also of the witnesses at its foot, though he (Investigating Officer) stated before the Court that condition of Kanhaiya Lal was serious. Further, it is pointed out that so called dying declaration is a long statement with all the details which could not be expected to be made by a person suffering serious injury with likelihood of death. Rather it is the brainchild of the Investigating Officer. It is also pointed out that in the said dying declaration as well, Kanhaiya Lal stated that he had received gunshot injury in his stomach, whereas the injury was sustained by him on right buttock. It is argued that all the circumstances show that no such statement was made by Kanhaiya Lal.

Learned Counsel for the Appellants has relied on the case of Balak Ram Vs. State of U.P., , wherein it was held that it is not prudent to base conviction on a dying declaration made to Investigating Officer, particularly when it is not signed by declarant or the witnesses. Another case cited before us is Dalip Singh Vs. The State of Punjab, . The Apex Court has held as under in the said case:

Although a dying declaration recorded by a police officer during the course of investigation is admissible u/s 32 of the Indian Evidence Act in view of the exception provided in Sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor.

The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It is not that such dying declaration are always untrustworthy, but better and more reliable methods of recording dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.

Another case cited for the Appellants is Mohar Singh and Others Vs. State of Punjab, , in which it was observed that dying declaration giving detailed account of occurrence made by a seriously injured person, smacks of concoction and cannot be relied on.

We have carefully gone through the above referred rulings and find that they cannot come to the rescue of the Appellant Raghuraj Singh in view of the facts and evidence of the present case. One has to proceed with caution that observations made with reference to the facts of particular case cannot always be transplanted on another case, facts whereof stand on different footing. In the present case, it is not simply the dying declaration of the deceased Kanhaiya Lal which is being relied upon as against the accused-Appellant Raghuraj Singh. There is clear, satisfactory and clinching ocular evidence also against him contained in the testimony of as many as three eye-witnesses that he was the assailant of Kanhaiya Lal. The dying declaration of the deceased is simply an additional factor lending credence to the ocular version delivered by the eye-witnesses. It would also not adversely affect the dying declaration that the Investigating Officer recorded it in a traditionally long form with all the details of the offence. He having died, the statement made by him to the Investigating Officer u/s 161, Code of Criminal Procedure has become admissible u/s 32 of the Indian Evidence Act in so far as it relates to the cause of injury sustained by him. The cause of injury disclosed by him is that the Appellant Raghuraj Singh had opened fire on him. As we said, the case against the Appellant Raghuraj Singh does not solely rest on the dying declaration of the deceased Kanhaiya Lal. Rather it is an additional factor providing support to the ocular version of the eyewitnesses. Even if worst is assumed for the prosecution and this dying declaration of Kanhaiya Lal is ignored, then also the Appellant Raghuraj Singh does not gain any point. The reason is that there is trustworthy evidence of as many as three witnesses to prove to the hilt that the gunshot injury had been caused to him by shot fired by the present Appellant. So far as the seat of the injury spoken by Kanhaiya Lal at stomach is concerned, we observed little earlier that it was not a through and through gunshot injury. The injury had been sustained by him in torso-region in the neighbourhood of umbilicus. It was abdominal cavity deep. To say shortly, the impact of the injury was in the stomach and it cannot be taken as a contradiction to the factual position if Kanhaiya Lal stated in his statement before the Investigating Officer that he had received gunshot wound in the stomach.

The result is that none of the arguments of the learned Counsel for the Appellants succeeds so far as Raghuraj Singh Appellant is concerned. Justice cannot be defeated when clinching, satisfactory and trustworthy evidence is there against him that he murdered Kanhaiya Lal by shooting and attempted murder of Bhagwan Singh P.W. 1 by another shot causing injuries to him. It is well known that justice should be administered in a common-sense way on a reasonable and logical interpretation of the evidence in the light of attending circumstances.

At this stage, we wish to say a few words to clear the mist as to how testimony of eye-witnesses is capable of acceptance as against Appellant Reghuraj Singh, despite its being not worthy of acceptance as against the remaining Appellants. In each case the Court has to appraise the evidence to see to what extent it is worthy of acceptance and merely because in one respect, the Court considers it insufficient to rely on the testimony of a witness, it does not necessarily follow as a matter of law that it must be discarded in all respects. The experience has shown that there is tendency on the part of witnesses to exaggerate the guilt of the opposite party and then the imperfection of human memory and of observation also shows that the broad rule that the witnesses who have been disbelieved in respect of the acts imputed to some accused cannot be relied upon for convicting the other accused cannot be laid down as a sufficient guide for all the cases. The Court has to sift the evidence with care in each case and on full consideration of all relevant material circumstances to come to a decision, which part of the testimony of the witnesses is to be accepted and which is to be rejected. In other words, the witnesses cannot be branded as liars in to to and their testimony rejected outright even if parts of their statements are demonstrably incorrect or doubtful. The Court has to separate grain of acceptable truth from the chaff of exaggerations and improbabilities which cannot be safely or prudently accepted and acted upon. One hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In the case at hand, on a judicial scrutiny the testimony of eye-witness has been found to be doubtful as against the Appellants other than Raghuraj Singh. It does not mean that they have spoken lies. But the situation, in fact, is that having regard to the attending circumstances, their testimony as against the Appellants other than Reghuraj Singh is found to be of doubtful nature and, therefore, it has not been accepted against them. There is a difference between falsehood and doubtful. The eyewitnesses have been disbelieved as against the Appellants other than Reghuraj Singh as their participation in the crime appears to be doubtful and not because the testimony of the eye-witnesses as against them has been found to be false. The benefit of the fact that the testimony of the eyewitnesses against them as doubtful would go to them only and not to the accused-Appellant Raghuraj Singh.

In view of the above discussion, the Appeal No. 2961 of 1980 in respect of Appellants Lakshman Singh, Sattey Singh, Ashok Kumar Singh and Ganga Singh deserves to be allowed. Appellant Phool Singh having died, the appeal has abated as against him.

Appeal No. 2980 of 1980 filed by Appellant Raghuraj Singh fails. He is criminally liable for his individual act of murdering Kanhaiya Lal and attempting the murder of Bhagwan Singh.

In the result, we set aside the conviction and sentence passed by the lower court against the Appellants Lakshman Singh, Sattey Singh, Ashok Kumar Singh and Ganga Singh. They are acquitted. They are on bail. They need not surrender. Their personal bonds and bail bonds are hereby cancelled.

The appeal filed by Appellant Raghuraj Singh is dismissed. He is guilty of the offences punishable under Sections 302 and 307, I.P.C. He accordingly, stands convicted and sentenced to life imprisonment u/s 302, I.P.C. and seven years'' rigorous imprisonment u/s 307, I.P.C. Both the sentences shall run concurrently. He is on bail. He shall surrender forthwith to serve out the said sentences.