Ram Bilas Singh and Another vs State of U.P.

J.C. Gupta, J.—This appeal arises out of judgment and order dated 6.8.1980 passed by Sri R. C. Gupta, the then I Ind Additional Sessions Judge, Shahjahanpur in S.T. No. 303 of 1979 whereby Appellant No. 1, Ram Bilas Singh has been convicted and sentenced to life imprisonment u/s 302, I.P.C. and to undergo R.I. for two years u/s 324/34, I.P.C. and Appellant No. 2, Subedar to life imprisonment u/s 302/34, I.P.C. and two years'' R.I. u/s 324/34, I.P.C. Both the sentences have been ordered to run concurrently. Accused Jagannath Singh and Gannu Singh were also tried along with the Appellants but they have been acquitted. Accused Ram Nath Singh could not be sent to trial as he was killed before that.

The incident in question is alleged to have committed at about 8 a.m. on 16.3.1979 in village Pakaria within the area of police station Nigohi district Shahjahanpur. It is alleged that the deceased Brij Raj Singh along with his brother Sri Pal Singh and Nanakau Singh were preparing fodder for their cattle at the Charni near their house. It is alleged that Subedar Singh came there and abused deceased Brij Raj Singh and his brOrs.. Brij Raj Singh protested to this conduct of accused Subedar Singh whereupon the latter went to his house abusing. It is alleged that soon after, Subedar Singh armed with a spear, Ram Bilas Singh with a licenced double barrel gun, Jagannath Singh with a single barrel gun, Ram Nath with a rifle and Gannu Singh with single barrel gun came there and they all started abusing the deceased Brij Raj Singh and challenged him. Brij Raj Singh requested them not to abuse and go away but the accused did not leave. Witnesses Jaibir Singh (P.W. 3), Ram Sewak Singh (P.W. 4) and Ors. were also attracted to the scene of occurrence. It is further alleged that on exhortation given by the Appellant Subedar Singh, accused Ram Bilas Singh fired a shot on Brij Raj Singh which caused injury and Brij Raj Singh fell down and died on the spot. Ram Nath Singh is also alleged to have made a fire from his rifle but it is said that none has received injury from his rifle. It is further case of the prosecution that when witnesses challenged, all the accused persons holding firearms opened fire towards them whereby Jaibir Singh also received firearm injury.

Sri Pal Singh lodged written report at the police station in the same morning at 11.45 a.m., case was registered and police came into action. The Investigating Officer, Harpal Singh (P.W. 5) took up investigation. After arriving at the scene of occurrence he prepared site plan, collected plain and blood-stained earth and recorded the statements of witnesses. Inquest was also held and dead body of Brij Raj Singh was sent to mortuary for post-mortem examination.

Dr. V. C. Paul (P.W. 2) conducted autopsy on 17.3.1979 at 5 p.m. and found only one following ante mortem injury:

One circular gun shot wound 3/4 cm. ? 3/4 cm. ? chest cavity-left side of chest 5 cm. below and left to left sterno clavicle joint.

In the opinion of Doctor, cause of death was due to shock and haemorrhage as a result of ante mortem injury. Post-mortem report is Ext. Ka-2.

Injuries of Jaibir Singh were examined by Dr. Rajnesh Kumar (P.W. 6) on 17.3.1979 at 12.45 p.m. and following injuries were found:

Soft scabed circular wound 0.2 cm. ? 0.2 cm. on left side of face 1.5 cm. below the inner end of left orbit. Ad. X-ray.

Contusion 2 m. ? m. on left malae bone 1 cm. below the middle of left lower eye lid.

Soft scabed circular wound 0.2 m. ? 0.2 m. on upper part of right leg 4 cm. below the outer side of right knee. Ad. X-ray.

Injury report of Jaibir Singh is Ext. Ka-11.

After completion of investigation charge-sheet was submitted against the Appellants and Gannu, Jagannath and Ram Nath.

At the time of trial, prosecution produced seven witnesses, of whom (P.W. 1) Sripal, (P.W. 2) Jaibir Singh, (P.W. 4) Ram Sewak Singh were witnesses of fact.

Accused denied prosecution allegations and stated of their false implication due to enmity. They produced no witness in defence.

At the outset, we may point out that as per the report of C.J.M., Shahjahanpur, Appellant Ram Bilas Singh principal accused, has died during the pendency of the appeal. None of his legal representatives has applied for continuation of appeal under proviso to Sub-section (2) of Section 394, Cr. P.C. Accordingly appeal filed by Ram Bilas Singh abates.

So far as Appellant Subedar Singh is concerned we have heard Sri P. N. Misra, Senior Advocate on his behalf and learned A.G.A. Sri Pradeep Pandey for the State.

As far as death of Brij Raj Singh on account of ante-mortem firearm injury is concerned, the same has neither been challenged nor disputed before us by the learned Counsel for Appellant. It is also not disputed that Jaibir Singh (P.W. 3) also received firearm injuries on account of stray pellets.

The submission of the learned Counsel for the Appellant Subedar Singh is that though Appellant is said to be armed with spear but is not alleged to have made use of the same during the entire incident and he has been assigned role of exhortation only. It is further submitted that though Jagannath and Gannu were alleged to be armed with single barrel gun and as per the evidence of the prosecution witnesses, they had opened fire on the witnesses but they have been acquitted and, therefore, the case of Appellant Subedar Singh stands on a much better footing than that of acquitted accused persons.

We have carefully examined the statements of three witnesses produced from the side of the prosecution and find that the submission of the learned Counsel for Appellant is not devoid of force. It is of common knowledge that the evidence of exhortation in the very nature of things is a weak type of evidence. Our experience is that there is quite often a tendency to implicate innocent person in addition to the actual culprit by attributing to that person role of exhortation, therefore, Court should be very careful and cautious while dealing with the evidence relating to exhortation and unless the evidence is succinctly clear, cogent and wholly reliable, conviction should not be recorded more particularly where the parties are on inimical terms. Undisputedly enmity was existing between the deceased party and the Appellants from before the incident. The main shooter even as far the prosecution case was Ram Bilas Singh. The Appellant Subedar is his brother. The evidence further is that Subedar Singh arrived at the scene of occurrence along with other accused persons and was armed with a spear, yet it is nobody''s case that he made any attack by the said weapon either on the deceased or on any witness. If he had come prepared to assault Brij Raj Singh with whom he was alleged to have exchanged hot words prior to the incident it does not sound to reason that he would not have made use of the weapon which he was holding. It also does not seem reasonable that when all the accused persons had arrived well prepared to commit murder of Brij Raj Singh with a preplan, Subedar Singh would ask his companions to kill him. In our opinion, there could be no occasion for the Appellant to have exhorted Ram Bilas Singh. All the three prosecution witnesses were having some sort of enmity to depose against the Appellant who is undisputedly brother of the main shooter Ram Bilas Singh. The evidence of these witnesses was not found sufficient and satisfactory against co-accused Jagannath and Gannu by the trial Judge himself. We have also examined their evidence closely and in our opinion, there is no reason why the same benefit should not be given to the Appellant, especially when the aforesaid accused persons were assigned specific role of firing towards the witnesses whereas the Appellant was not assigned any overt act of assault. On an examination of evidence and consideration of facts and circumstances, we find it safe to give Appellant Subedar Singh the benefit of doubt and accordingly he is acquitted.

For the reasons stated above, the appeal of Subedar Singh is allowed. The order of conviction dated 6.8.1980 as far as Appellant Subedar Singh is concerned, is set aside. He is acquitted of the offences charged for. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.

The appeal of Ram Bilas Singh is dismissed as having abated.