Tej Singh & Ors. vs State Of U.P.

(Per : Jai Krishna Upadhyay, J)

The instant criminal appeal has been preferred against the judgment and order dated 28.05.1987 passed by IInd Additional Sessions Judge, Etah in Sessions Trial No. 378 of 1986 arising out of Case Crime No. 475 of 1985, Police Station Kasganj, District Etah convicting and sentencing the appellant Udai Bhan under Section 302 IPC to undergo life imprisonment and accused Tej Singh and Mehtab Singh were sentenced to undergo life imprisonment under Section 302 read with Section 34 IPC.

According to the prosecution narrative recorded in the written report (Ex. Ka-1) submitted by the informant Prem Kumar (PW-1), the incident occurred in the intervening night between 7th and 8th July 1985 at around 2:00 AM in Village Pathraki, Police Station Kasganj, District Etah. The deceased, Dal Chand, aged about 65 years (father of the informant), along with his wife Smt. Shyama Devi and daughter Savitri Devi, was sleeping on cots inside the enclosure (gher) where a lantern was lit. The informant was sleeping on a separate cot nearby. On hearing the barking of dogs, the informant, his mother, and his sister woke up and saw three persons entering from the northern side towards his father's cot. They were identified as co-villagers Tej Singh (armed with a lathi), Mehtab Singh (armed with a spear), and Uday Bhan Singh (armed with a country-made pistol). When the informant and his family tried to stop them, Tej Singh exhorted Uday Bhan Singh, stating that Dal Chand was harassing them through continuous litigation and should be finished off. Thereupon, Uday Bhan Singh extended his hand and fired a gunshot from his country-made pistol at Dal Chand's chest, causing his death. Upon the family raising an alarm, the assailants ran away towards Village Behta. Shankar (PW-2) and Hari Singh, who were allegedly loading mangoes near a tree on the roadside, claimed to have seen the accused fleeing in the light of their torches. The deceased Dal Chand, Tej Singh, and Mittu were real brothers born to Kalyan Singh. While Tej Singh and Mittu were born to one mother, Dal Chand was born to another. Following the death of Kalyan Singh, agricultural land was mutated in the names of all three brothers. However, Tej Singh and Mittu challenged Dal Chand's parentage, claiming he was not the son of Kalyan Singh, and initiated litigation which was pending before the High Court at Allahabad. Due to enmity and greed over agricultural land, the accused allegedly murdered Dal Chand. The informant stated that due to fear of the assailants in the night and rain, he could not go to the police station immediately.

On the basis of the written report (Ex. Ka-1) presented by Prem Kumar, chick FIR No. 475 of 1985 under Section 302 IPC was registered at Police Station Kasganj on 08.07.1985 at 6:45 AM by Head Moharrir.

Investigating Officer Sub-Inspector, Babu Ram (PW-3) took over the investigation, copied the FIR and GD entries into the case diary, recorded statements of witnesses, and reached the spot. He conducted inquest proceedings over the body of the deceased (Ex. Ka-4) and prepared the accompanying documents, including Chalan Nash (Ex. Ka-5), Photo Nash (Ex. Ka-6), letter to R.I. (Ex. Ka-7), letter to C.M.O. for post-mortem (Ex. Ka-8), and sample seal (Ex. Ka-9). The body was sent to the District Hospital Mortuary, Etah where post-mortem of the body of the deceased was conducted by PW-4. He recorded that death occurred due to shock and hemorrhage resulting from ante-mortem injuries.

The Investigating Officer collected blood-stained string (baan) from the cot, a cardboard wad (tikli) (Ex. Ka-10), blood-stained and simple earth (Ex. Ka-11), seized the burning lantern under Supurdginama (Ex. Ka-12), and inspected the torch of witness Hari Singh (Ex. Ka-13). He prepared the site plan (Ex. Ka-14) and recorded statements of witnesses. Upon completion of the investigation, a charge-sheet (Ex. Ka-15) was submitted against all three accused under Section 302 read with Section 34 IPC.

The case was committed to the Court of Sessions and registered as Sessions Trial No. 378 of 1986. Charges were framed by the VIth Additional Sessions Judge, Etah under Section 302 IPC against Uday Bhan Singh, and under Section 302 read with Section 34 IPC against Tej Singh and Mehtab Singh. The accused pleaded not guilty and claimed trial.

Trial proceeded and in order to prove its case on behalf of prosecution, four witnesses, namely, PW-1 Prem Kumar, PW-2 Shankar, PW-3 S.I. Babu Ram and PW-4 Dr. G.C. Agrawal were examined.

In documentary evidence, several documents were proved as Ext-1 to Ext-18.

PW-1, Prem Kumar, informant, testified that on account of persisting litigation over agricultural land between accused Tej Singh and his father Dal Chand, the accused persons came to their gher in the intervening night between 7th and 8th July 1985. He stated that his father Dal Chand, mother Smt. Shyam Devi, and sister Savitri Devi were sleeping on separate cots in front of a thatched room, and he was sleeping on another cot nearby. A lantern was burning at the spot. On hearing dogs bark, his family woke up and saw Tej Singh (armed with a lathi), Mehtab Singh (armed with a spear), and Uday Bhan Singh (armed with a country-made pistol) approaching his father's cot. On the exhortation of Tej Singh that Dal Chand should be killed as he was harassing them with litigation, Uday Bhan Singh fired a shot from his country-made pistol from close range into his father's chest, who died instantly. Upon their alarm, Shankar (PW-2) and Hari Singh saw the accused escaping towards Village Behta in torchlight. PW-1 got the report written by Ram Swaroop and lodged it at 6:45 AM at P.S. Kasganj (Ex. Ka-1).

PW-2, Shankar, testified that on the night of the incident, he along with Hari Singh (whom he engaged on wages) was standing near a Pipri tree on the road with mangoes, waiting for a truck to load them. At about 2:00 AM, hearing dogs barking and noises, he saw accused Uday Bhan Singh, Mehtab Singh, and Tej Singh running from the direction of Dal Chand's Gher, crossing the road, and escaping towards Village Behta. They identified the accused in torchlight. Uday Bhan had a pistol, Mehtab had a spear, and Tej Singh had a lathi. In his cross-examination, PW-2 admitted that there was a mango grove of one Latoori Singh, 2 to 2.5 furlongs North of the spot and claimed the accused ran towards the South-West. He denied suggestions that no such grove existed or that his mother had any dispute in which Kalyan Singh had given evidence against them.

PW-3, S.I. Babu Ram, proved the registration of Chick FIR (Ex. Ka-2) and GD entry (Ex. Ka-3). He detailed the steps taken during investigation, including recording statements of the informant, Head Moharrir, and one Mihi Lal. He proved the preparation of the inquest report (Ex. Ka-4), police papers (Ex. Ka-5 to Ka-9), recovery memos of blood-stained cot string, wad, soil, lantern, and torch (Ex. Ka-10 to Ka-13), as well as the site plan (Ex. Ka-14) and charge-sheet (Ex. Ka-15).

PW-4, Dr. G.C. Agrawal, Medical Officer, conducted the post-mortem examination on the body of the deceased on 08.07.1985 at 5:10 PM (Ex. Ka-16). He estimated the time since death as about half a day old (within 24 hours). Rigor mortis was present in both upper and lower extremities. He opined that death occurred due to shock and hemorrhage resulting from an ante-mortem firearm injury. PW-4 specifically recorded and testified that blackening, scorching, and tattooing were completely absent around the wound.

After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. They denied all incriminating circumstances and claimed complete innocence, stating that they were falsely implicated due to severe land litigation. Accused Tej Singh specifically stated that his father Kalyan Singh married only once (with Mohini) and that only he and Mittu were born to Kalyan Singh. He asserted that the deceased Dal Chand was not Kalyan Singh's son. Dal Chand had filed a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms (UP ZA & LR) Act claiming a share in the land, but failed. Consequently, due to this deep-seated rivalry, the informant falsely implicated Tej Singh and his two sons (Uday Bhan Singh and Mehtab Singh) by fabricating a false FIR and procuring biased witnesses.

The accused led no evidence in defence.

The learned trial court upon scrutiny of the evidence on record concluded that the case of prosecution was proved beyond reasonable doubt against the accused appellants and recorded conviction and sentenced them, as mentioned here-in-above. Hence, this appeal.

At the outset it is pertinent to note here that the appeal against Tej Singh and Mahtab Singh has already been abated vide order dated 13.03.26 and only appellant no. 3 namely, Udai Bhan is surviving.

We have heard Sri Yogesh Mishra, learned counsel for the appellant no. 3 namely Uday Bhan Singh, Sri Amit Sinha, learned AGA for the State and perused the record of the trial court.

Assailing the impugned judgment on various grounds, learned counsel for the appellant has submitted that the trial suffers from several infirmities that has been overlooked by the trial Court and, therefore, the impugned judgment is not sustainable in the eye of law. It has further been contended that the prosecution has miserably failed to prove the manner of occurrence beyond reasonable doubt as there exist material contradictions and discrepancies in the testimony of witnesses which cast doubt on the case of the prosecution. It has been submitted by the learned counsel by the appellant that there is delay in registration in the FIR as the alleged incident dates back to the intervening night of 07/08-07-1985 at about 2:00 am and the FIR was lodged on 08.07.1985 at 6:45 am. He further submits that there is only one eye witness of the alleged incident i.e. PW-1 and his statement is contaminated by serious contradictions. PW-1 explicitly asserted that Udai Bhan Singh fired at the deceased from point-blank / close range. However, PW-4 (Doctor) categorically testified that blackening, tattooing, and scorching were completely absent, which conclusively refutes close-range firing. He also pointed out that as per the FIR the family could not travel to the police station at night due to heavy rain, yet claims they were all sleeping outdoors in an open Gher, rendering the story highly suspicious. PW-2 was not the eye witness and only chance witness. PW-2's claim of waiting on a road at 2:00 AM to load mangoes is wholly unnatural. His statement under Section 161 Cr.P.C. was recorded after an unverified delay of 5 days, proving he was planted later by the prosecution. The prosecution failed to examine the most crucial witnesses Smt. Shyam Devi and Savitri Devi, mother and sister of the informant respectively who were sleeping on cots right beside the deceased inside the Gher next to the deceased. The deliberate non-examination of these most natural eye-witnesses creates a fatal gap in the prosecution case. Lastly, he submitted that the incident occurred in the darkness of night and was committed by unknown persons not by the appellant herein. The appellant was only named in the FIR due to enmity and civil dispute.

Learned AGA for the State, on the other hand, has submitted that the judgment of conviction and order has been rightly passed. No interference is required by this Court as the prosecution has been able to prove the case beyond reasonable doubt. He further submits that the FIR has been lodged promptly. The appellant is named in the FIR. PW-1 is the eye witness of the incident. His testimony is consistent during trial. Minor medical variations cannot outweigh positive ocular evidence. Therefore, it has been argued that guilt of the appellant has been satisfactory proved by the evidence adduced during the course of trial and there is no infirmity in the judgment of conviction of the trial court.

We have carefully considered the rival contentions made by the learned counsel for the parties, scrutinized the testimony of witnesses and gone through entire record including the impugned judgment and order.

The prosecution case, as deposed by PW-1, is that Appellant No. 3 (Uday Bhan Singh) extended his hand and fired at the chest of Dal Chand from close range. In cases of close-range firing by a firearm, charring, blackening, and tattooing around the entry wound are essential physical characteristics. However, the medical officer (PW-4) explicitly testified that blackening, scorching, and tattooing were totally absent on the deceased's body. Where ocular evidence asserts a close-range shooting, but medical evidence positively rules out close firing due to the absence of blackening or tattooing, the testimony of the sole eye-witness becomes doubtful. Medical evidence here directly contradicts the core ocular version.

In the case of Ram Narain Singh v. State of Punjab, (1975) 4 SCC 497, Supreme Court held that:

In Solanki Chimanbhai Ukabhai v. State of Gujarat [(1983) 2 SCC 174 Supreme Court held that:

In the case of Mani Ram v. State of U.P., 1994 Supp (2) SCC 289 Supreme Court reiterated that:

Next, in the case of Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 Supreme Court stated that:

In the case of Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala, (2022) 18 SCC 683 Supreme Court reiterated that:

From the above-mentioned principles settled by the Supreme Court it is thus a settled proposition of law that where ocular evidence is directly and irreconcilably in conflict with clear medical evidence, rendering the prosecution story improbable, the benefit of doubt must go to the accused.

Heading towards another contention of the prosecution, we find that as per the FIR and PW-1's testimony, Smt. Shyam Devi (wife of the deceased) and Savitri Devi (daughter of the deceased) were sleeping on cots immediately adjacent to the deceased inside the gher at the time of occurrence. They were the most immediate, natural eye-witnesses who would have seen the entire event unfold. The witnesses could have materially asserted the Court in determining who was present, whether the appellant was visible and how the incident unfolded and there happened immaterial thereafter. The prosecution offered no explanation whatsoever for withholding these two material witnesses. While the prosecution is not required to examine a multiplicity of witnesses, the failure to examine independent or natural material witnesses who were indisputably present at the scene creates a severe adverse inference against the prosecution. 29. In the case of Habeeb Mohd. v. State of Hyderabad, (1953) 2 SCC 231, Supreme Court held that:

In the case of State of U.P. v. Jaggo, (1971) 2 SCC Apex Court stated that:

In the case of Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC Supreme Court reiterated that:

Relying on the case of Darya Singh v. State of Punjab AIR 1965 SC 328 the Supreme Court in the case of Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434 held that:

Therefore, it is a settled principle of law that where material witnesses who were naturally present at the scene of crime are withheld by the prosecution without any reasonable explanation, an adverse inference must be drawn that their evidence, if produced, would have been unfavorable to the prosecution. In the instant case non-examination of Smt. Shyam Devi (wife of the deceased) and Savitri Devi (daughter of the deceased) who were sleeping on cots immediately adjacent to the deceased inside the gher at the time of occurrence is drawing adverse inference to the case of prosecution.

So far as the argument of delay in lodging the FIR is concerned, we are of the opinion that, the incident had happened in the intervening night of 7/8 th July 1985 at 2:00 am and the FIR was lodged in the same morning at 6:45 am. It was the time of night and also distance of the police station from the place of the incident was about 6 km. Therefore, it cannot be said that FIR was delayed but what is crucial here to observe is that the informant attempted to justify the delay in proceeding to the police station at night by asserting that it was raining heavily, but on the other hand the prosecution insists that four family members were sleeping outdoors in an open gher. These two assertions being inconsistent cast serious doubt on the alleged narrative of prosecution.

Regarding the truthfulness of the testimony of PW-2 (Shankar), we believe that he had not witnessed the incident. His explanation that he was waiting near a tree on the road at 2:00 AM in the night to load mangoes onto a truck is completely uncorroborated and seems to be unnatural. Notably, statement of PW-2 was recorded under Section 161 Cr.P.C. five days after the incident, without offering any explanation for this delay. The unexplained 5-day delay in recording the statement of an alleged chance witness strongly indicates that PW-2 was introduced later as a setup by the prosecution.

On appraisal of the entire evidence, we are of the considered view that the prosecution has failed to establish the guilt of surviving appellant No. 3 (Udai Bhan Singh) beyond reasonable doubt. The conflict between ocular and medical evidence, the non-examination of key material witnesses, the reliance on a delayed testimony of the alleged chance witness, and the existence of deep land enmity surrounding the parties create substantial and reasonable doubt.

In the view of the facts and circumstances discussed above, we are of the opinion that prosecution has failed to establish its case beyond the reasonable doubt. Hence, the benefit of doubt would have to be extended to the accused-appellant no. 3, Udai Bhan Singh, Consequently, the appeal deserves to be allowed regarding appellant no. 3, Udai Bhan Singh and the judgment of the trial court is liable to be set aside.

Accordingly, the criminal appeal is hereby allowed and the judgment and order dated 28.05.1987 passed by the IInd Additional Sessions Judge, Etah in Sessions Trial No. 378 of 1986 is set aside. Appellant No. 3, Uday Bhan Singh, is acquitted of all charges framed against him. He is on bail. He need not surrender. His bail bonds are canceled, and sureties are discharged.

Let a certified copy of this judgment along with the lower court record be transmitted forthwith to the Chief Judicial Magistrate / Trial Court concerned for immediate compliance.