Reserved on 28.08.2018 Delivered on 17.09.2018
Court No. 47
Case :- CRIMINAL APPEAL No. - 4533 of 2005 Appellant :- Pooran Respondent : - State Of U.P.
Counsel for Appellant : -Siddharth Verma, Anubhav Trivedi, Satish Trivedi Counsel for Respondent :- Government Advocate, Preet Pal Singh Rathore Connected with Case :- CRIMINAL APPEAL No. - 5059 of 2005 Appellant :- Shiv Kumar @ Sibba & Another Respondent : - State Of U.P.
Counsel for Appellant : -Anil Srivastava, Awadhesh Kumar Srivastava, Brahm Singh, Keshav Dhar Tripathi, R.P.S. Chauhan, Yogesh Srivastava Counsel for Respondent :- G.A., Anil Tiwari, P.P.S. Rathore Connected with Case :- CRIMINAL APPEAL No. - 5379 of 2005 Appellant :- Jugul Kishor @ Pappu Respondent : - State Of U.P.
Counsel for Appellant : -Anil Srivastava, Ajay Kumar Pandey, Dilip Kumar, Keshav Dhar Tripathi, Satish Trivedi, Yogesh Srivastava Counsel for Respondent :- Government Advocate, P.P.S. Rathore
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Chandra Tripathi,J.
[ Delivered by Ram Surat Ram ( Maurya),J.]
1. Heard Sri Dilip Kumar, Senior Advocate, assisted by Sri Rajarshi Gupta, Sri R.P.S. Chauhan and Sri Awadhesh Kumar Srivastava, for the appellants, Sri Anil Kumar Kushwaha and Sri Nafees Ahmad, A.G.A, for State of U.P. and Sri Preet Pal Singh Rathore, for the complainant.
2. Pooran, Shiv Kumar @ Sibba, Ishrar and Jugul Kishor @ Pappu (the appellants) have filed these appeals, from their conviction and sentence passed by Special Judge (S.C./S.T.(P.A.) Act), Badaun, dated 06.10.2005, in S.T. No. 401 of 1997, State vs. Jugul Kishor and others (arising out of Case Crime No. 299 of 1997, under Section 302, 307, 427 Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and Section 3 (2) (5), S.C./S.T. (P.A.) Act, 1989, P.S. Dataganj, district Badaun, convicting them under 302/34, 324/34 and 427/34 IPC and acquitting them under Section 3 (2) (5), S.C./S.T.(P.A.) Act, 1989 and awarding sentence of imprisonment for life with fine of Rs. 1,00,000/- each under Section 302/34 IPC, two years rigorous imprisonment with fine of Rs. 5000/- each under Section 324/34 IPC and one year rigorous imprisonment with fine of Rs. 3000/- each under Section 427/34 IPC, with default stipulation. All sentences were to run concurrently.
3. On the complaint (Ex-Ka-1) of Sanjeev Kumar (PW-1) FIR (Ex- Ka-6) of Case Crime No. 299 of 1997, under Section 302, 307, 427 IPC and Section 3 (2) (5), S.C./S.T.(P.A.) Act, 1989 was registered at P.S. Dataganj, district Badaun, on 23.07.1997, at 17:35 hours, by Constable Clerk Chhote Lal Sharma, against Jugul Kishor @ Pappu, Pooran, Shiv Kumar @ Sibba and Ishrar (the appellants). It has been stated in the FIR that the informant along with his maternal uncle Jitendra Kumar son of Ram Murti Lal, resident of Papad, PS Dataganj had boarded in Bus No. UP-82-9934 from Papad, for Dataganj. After covering about half a kilometer distance from Papad, stones were lying on the road. It was 04:45 PM. The driver of the bus slowed down the speed of the bus and was trying to pass through the stones. At that time the accused Jugul Kishor @ Pappu son of Ram Bharose Lal, Pooran son of Parameshwari, Shiv Kumar @ Sibba son of Ram Krishna, belonging to Gupta caste and Ishrar son of Azhar Hussain, all residents of Papad, PS Dataganj, district Badaun crashed the glasses of the bus, throwing stones and entered into the bus. Shiv Kumar @ Sibba and Ishrar tried to drag Jitendra Kumar from the bus, which was objected by the informant, Mujeev son of Wajahat Ulla Khan, resident of Dataganj and Nawal Kishor son of Shyam Bihari, resident of Papad. On which Shiv Kumar @ Sibba inflicted knife blow upon his head with an intention to kill him, which caused serious injuries to him. The accused Jugul Kishor @ Pappu exhorted that what was he watching, kill Jitendra Kumar also. On which Shiv Kumar @ Sibba and Ishrar inflicted knife blow upon Jitendra Kumar and Jugul Kishor @ Pappu opened fire from his country-made pistol with an intention to kill, which caused injury to Jitendra Kumar upon his neck. Jitendra Kumar died on the spot. Smt. Sushila wife of Triveni Sahay Jatav, resident of Gangola, PS Dataganj, who was sitting by the side of Jitendra Kumar, also objected then Pooran opened fire from his country-made pistol, upon her son Titoo aged about six months, sitting in her lap. Due to which Titoo died on the spot. The incident was witnessed by Mujeev Khan, Nawal Kishor and other passengers of the bus. During the incident, dead body of Jitendra Kumar came out from the bus and fell down on the road, which was lying there. Several persons were there. Titoo was being brought by his mother to police station. Bus was standing on spot.
4. After registration of FIR, on 23.07.1997, SI Raj Kumar conducted Inquest (Ex-Ka-17) of Titoo between 8:00 hours and 18:30 hours in compound of police station, Dataganj. He prepared photo lash, letters etc. (Ex-Ka-18 to Ka-21) to the authorities for conducting postmortem of the dead body and dispatched the dead body through Constable Lalloo Singh and Home-Guard Suresh Chandra. SI Sarnam Singh (PW-8) conducted Inquest (Ex-Ka-11) of Jitendra Kumar on 23.07.1997 between 18:00 hours and 19:00 hours at the place of occurrence. He prepared photo lash, letters etc. (Ex-Ka-12 to Ka-16) to the authorities for conducting postmortem of the dead body and dispatched dead body through Constable Sone Lal and Home-Guard Ram Pal.
5. Injured Sanjeev Kumar was sent to CHC Dataganj for medical examination through Constable Chandra Bhan Singh, where his medical examination was conducted by Dr. Kalanidhi Saraswat (PW-5), who prepared Injury Report (Ex-Ka-4) on 23.07.1997 at 5:50 PM.
In Injury Report, two injuries i.e. (i) An incised wound 2.5 cm X . 5 cm X bone deep on right side of face, 2 cm medial to traqus of ear and (ii) An incised wound of 3 cm X .5 cm X mussel deep on right shoulder were found. X-Ray of the injuries of Sanjeev Kumar was conducted by Dr. Mahendra Pal Gangwar (PW-4) on 24.07.1997, who prepared X-ray plate and report (Ex-Ka-3). On the basis X-Ray report, a supplementary Injury Report (Ex-Ka-5) was prepared by Dr. Kalanidhi Saraswat (PW- 5), in which injuries were found simple in nature.
6. Dr. D.S. Mishra (PW-7) conducted autopsy on the dead body of Titoo on 24.07.1997 at 12:00 hours and prepared the postmortem report (Ex-Ka-24) in which the following ante-mortem injuries were noted:-
(i) A gun shot wound of entry on right temporal region sizing 5 cm x 4 cm, including upper part of right ear, blackening around the wound (+). Underneath to this wound, brain matter found lacerated and bone found fractured.
(ii) A gun shot wound of exit on back of skull sizing 2 cm x 2 cm. Underneath brain material coming out and bone found fractured.
In internal examination, heart was empty weighing 60 gm; stomach was empty; small intestine contained gas and large intestine contained fecal and gases; gall bladder was full. According to doctor's opinion cause of death was “shock and hemorrhage as a result of ante mortem injuries”.
7. Dr. D.S. Mishra (PW-7) conducted autopsy on the dead body of Jitendra Kumar on 24.07.1997 at 12:30 hours and prepared the postmortem report (Ex-Ka-25) in which the following ante-mortem injuries were noted:-
(i) An incised wound on left side of head sizing 3 cm x 0.5 cm x bone deep. Underneath injury haematoma (+).
(ii) An incised wound sizing 3cm x 0.5 cm x bone deep, 3 cm back to injury no. (I). Underneath injury haematoma (+).
(iii) An incised wound in top of head sizing 6 cm x 1 cm x bone deep, 9 cm above to left ear. Underneath injury haematoma (+).
(iv) An incised wound on back of skull sizing 4 cm x 1 cm x bone deep. Underneath injury haematoma (+).
(v) Abrasion on forehead sizing 1 cm x 1 cm, 4 cm above left eye.
(vi) A gun shot wound of entry on right side of neck size 2 cm x 2.1 cm x cavity deep, 2 cm below to right mandible, underneath injury muscle, vessels and veins are badly lacerated.
(vii) A gun shot wound of exit on back of neck size 1.9 cm x 1cm x cavity deep at C-3 level. Underneath injury bone found fractured.
(viii) An incised wound on palm of the right hand (thumb), size 2cm x 0.5 cm x muscle deep. Underneath muscle found cut.
(ix) An incised wound on dorsum of right hand size 11 cm x 1 cm x muscle deep. Underneath muscle found cut.
(x) An incised wound on dorsum of right wrist just, size 4 cm x 1 cm x muscle deep. Underneath muscle found cut.
(xi) An incised wound size 1 cm x 1 cm x muscle deep, 2 cm above to injury no. (x). Underneath muscles found cut.
In internal examination, heart was empty weighing 190 gm; large vessels were collapsed; stomach was empty; small intestine contained gas and large intestine contained fecal and gases. According to doctor's opinion cause of death was “shock and hemorrhage as a result of ante mortem injuries”.
8. Circle Officer of Police, Sher Singh started investigation on 24.07.1997. He copied the FIR in case diary and recorded statement of Constable Chhote Lal Sharma, the informant Sanjeev Kumar and copied his injury report in case diary. He inspected the place of occurrence on the pointing out of the informant and prepared site-plan (Ex-Ka-23). He took broken glasses of the bus from the spot and prepared its recovery memo (Ex-Ka-8). He found one empty cartridge of 315 bore on the spot and prepared its recovery memo (Ex-Ka-9). He took plain earth and blood stained earth from the spot and prepared its recovery memo (Ex- Ka-10). He recorded statement of Ganga Ram, the witness of the spot and SSI Surendra Singh Parihar (PW-8). On 26.07.1997, he copied Inquests in Case Diary and recorded statements of the Panches of the Inquests. He copied postmortem reports in Case Diary. Thereafter, Circle Officer of Police, Daya Chand (PW-9) started investigation, from 29.07.1997. He recorded statements of the informant Sanjeev Kumar and the witnesses Nawal Kishor, Mujeev Khan and Smt. Sushila Devi. The accused surrendered in Court on 29.07.1997 and sent to jail. He recorded statements of witnesses of the spot and witnesses of recovery memo on 31.07.1997. On 07.08.1997, he recorded statements of the accused in district jail. After completion of investigation, he submitted charge sheet (Ex-Ka-26) against all the accused on 24.08.1997, on which cognizance was taken. Blood stained and plain earth, empty cartridge, pieces of glasses taken from the place of occurrence and clothes of the deceased were sent for serological test. Report of serological test (Ex-Ka-2) dated 29.07.1997 has been submitted in which human blood was found except on empty cartridge, pieces of glasses and small towel.
9. On committal, the case were registered as S.T. No. 401 of 1997, State vs. Jugul Kishor and others. Special Judge framed charges on 24.12.1997 against the appellants. The appellants pleaded not guilty and claimed trial. In order to prove the charges the prosecution examined Sanjeev Kumar (PW-1), the informant and an injured witness, Mujeev Khan (PW-2), an eye witness, Smt. Sushila Devi (PW-3), the mother of Titoo and an eye witness, Dr. M.P. Gangwar (PW-4), to prove X-ray report, Dr. Kalanidhi Sarswat (PW-5), to prove injury report and supplementary injury report of Sanjeev Kumar, Nawal Kishor (PW-6), an eye witness, Dr. D.S Mishra (PW-7), to prove postmortem reports, SSI Surendra Singh Parihar (PW-8) to prove police papers, Inquest etc. and CO Daya Chand (PW-9), second Investigating Officer.
10. All the incriminatory materials and evidence were put to the accused under Section 313 Cr.P.C. They denied the facts and evidence and stated that they were falsely implicated. Jugul Kishor @ Pappu stated that the bus in which incident had happened belonged to his sarhu (wife's sister's husband), Rishipal Gupta. Unknown robbers had looted the bus on the date of incident. At the time of looting, two persons were killed. The police has wrongly shown the incident of loot as an incident of murder. Similar statements were given by the other appellants. The appellants examined Vinod Kumar (DW-1), alleging himself to be the Conductor of bus on the date of occurrence.
11. Special Judge after hearing the parties, by impugned judgment held that charge under Section 3 (2) (5) of S.C./S.T.(P.A.) Act, 1989 is not proved. The accused did not deny the murder of Jitendra Kumar and Titoo in this incident. All the accused were fully known to the witnesses Sanjeev Kumar (PW-1), Mujeev Khan (PW-2) and Nawal Kishor (PW- 6), from whose statements, the occurrence was fully proved. From statement of Smt. Sushila (PW-3) murder of Jitendra Kumar and Titoo in this incident was proved. On these findings, he convicted the appellants under Section 302/34, 324/34 and 427/34 I.P.C. and sentenced as stated above. Hence the aforesaid appeals have been filed.
12. The counsel for the appellants submitted that the prosecution witness Smt. Sushila (PW-3) and defence witness Vinod Kumar (DW-1) have stated that the incident of loot had taken place in the bus at the time of occurrence. There were 10-12 robbers, who had covered their faces and could not be identified. In order to create terror, the robbers assaulted Jitendra Kumar with knife. They opened fire, which caused injury to Jitendra Kumar and Titoo, who died on the spot. From their statement, it is fully proved that it was a case of road holding by unidentified persons. It is admitted to the prosecution witnesses that road holding on this rout was usual. The police has illegally converted the case into a murder case. Smt. Sushila (PW-3) was really an aggrieved person, there was no reason for her to save real assailants. Vinod Kumar (DW-1) was Conductor of the bus at the time of incident and a natural witness, there was no reason to disbelieve him. It is admitted to Sanjeev Kumar (PW-1) that 4 months prior to this incident, a serious dispute had taken place between the deceased and the accused Pooran of which an FIR was registered under Section 307 IPC, in which the father of the appellant Shiv Kumar was a witness. The appellants have been falsely implicated due to previous enmity. The bus belonged to a close relation of Jugul Kishor @ Pappu. If the appellants had caused the incident, then they would not have broken the glasses of the bus, which was not necessary at all. In Inquest of Titoo, which was done at police station, Section 427 IPC and Section 3 (2) (5) of S.C./S.T.(P.A.) Act, 1989 were added by making interpolation in it. This interpolation can, at the most, be explained by SI Raj Kumar, who conducted Inquest (Ex-Ka-17) of Titoo. SI Raj Kumar and Constable Clerk Chhote Lal Sharma, who registered FIR, were not examined in the Court. Valuable right of the appellants to cross-examine them on the point of interpolation and ante- timing of FIR has been violated. Since material evidence has been withheld by the prosecution as such adverse inference is liable to be drawn under Section 114 Illustration (g) of Evidence Act, 1872. FIR has been lodged after due deliberation with the police, ante-timing it at 17:35 hours on 23.07.1997 as the real assailants were not known, which is proved from the facts that Circle Officer of Police Sher Singh started investigation on 24.07.1997 and recorded statements of alleged eye witnesses on that day and special report as required under Section 157 Cr.P.C. was sent on 26.07.1997. There are material contradiction in the statements of the alleged eye witnesses inasmuch as according to Sanjeev Kumar and Mujeev Khan (PWs-1 and 2), the bus was standing on the spot after incident, while according to Nawal Kishor (PW-6), Driver and Conductor have taken the bus towards Badaun i.e. backside of the root of the bus. Nawal Kishor (PW-6) was doing service in IFFCO on the post of Supervisor and posted at Anwala. He has not produced any document to prove that on the date of incident, he was on leave. His presence at the place of occurrence is highly improbable. His conduct was also not natural, inasmuch as he had gone to his village Papad after incident but he had not informed at the house of Jitendra Kumar, regarding his murder. He was not present on the spot as such he had stated that Driver and Conductor have taken the bus towards Badaun i.e. backside of the route of the bus. The injuries of Sanjeev Kumar (PW-1) is simple in nature and manufactured. It appears that after incident, the police of police station Dataganj caught a relation of the deceased Jitendra Kumar, who is a resident of Dataganj and in order to show his presence on the spot a fabricated injury report was procured. These witnesses were interested witnesses and liable to be disbelieved in the light of statements of independent witnesses Smt. Sushila (PW-3) and Vinod Kumar (DW-1). They relied upon judgments of Supreme Court in Bijoy Singh Vs. State of Bihar, AIR 2002 SC 1949, Jagdish Murav Vs. State of U.P., ( 2006) 12 SCC 626, Motilal Vs. State of Rajasthan, AIR 2009 SC 2790, Raju @ Balacharan Vs. State of Tamil Nadu, (2012) 12 SCC 701, Sudarshan Vs. State of Maharashtra, AIR 2014 SCW 3600, Shahid Khan Vs. State of Rajastan, AIR 2016 SC 1178 and Harbeer Singh Vs. Sheeshpal, AIR 2016 SC 4958, judgments of this Court in Shitla Singh Vs. State of U.P., 2015 (10) ADJ 230 ( DB) and Jasbir Vs. State of U.P., 2017 (101) All CC 559 ( DB), in which it has been held that if delay has been caused in recording statements of eye witnesses or in sending special report to Magistrate as required under Section 157 Cr.P.C. then it creates a serious doubt on the prosecution case.
13. We have considered the arguments of the counsel for the parties and examined the record. A three Judges Bench of Supreme Court in Madru Singh Vs. State of M.P., (1997) 11 SCC 506 , has held that “it is no doubt true that the copy of the FIR was received by the Magistrate concerned on 10.8.1984 but that by itself could not be a circumstance to hold that the FIR was antedated and was in fact not lodged on 7.8.1984. The evidence of Ram Kanya (PW 1) is very emphatic on this point and she had asserted that she saw the entire incident and she herself had gone to the police station in the Matador along with the dead body of Peera Singh and lodged the FIR on 7.8.1984 at 6.00 p.m. Despite searching cross-examination, the defence could not elicit any omission or contradiction in this behalf. In this view of the matter merely because the copy of the first information report was received by the Magistrate concerned on 10.8.1984, no conclusion could be drawn that the FIR was not lodged on 7.8.1984 at 6.00 p.m. The courts below were right in rejecting this contention.”
In Sunil Kumar v. State of Rajasthan, (2005) 9 SCC 283, has held that “it cannot be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the Magistrate concerned, the prosecution version becomes unreliable. It would depend upon the facts of each case. In the instant case as appears from the records the investigation was taken up immediately and certain steps in investigation were taken. Therefore, the plea that there was no FIR in existence at the relevant time has no substance. Additionally, no question was asked of the investigating officer as to the reason for the alleged delayed dispatch of the FIR. Had this been done, the investigating officer could have explained the circumstances. That having not been done, no adverse inference can be drawn.”
In Harbeer Singh v. Sheeshpal, (2016) 16 SCC 418, has held that “it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony”.
14. In the present case, incident took place on 23.07.1997 at 16:45 hours and FIR was registered at 17:35 hours on the same day. Distance of police station from the place of occurrence is 03 KM. Inquest of Titoo was conducted at police station on 23.07.1997 during 18:00 to 18:30 hours and Inquest of Jitendra Kumar was conducted on 23.07.1997 during 18:00 to 19:00 hours at the place of occurrence. Sanjeev Kumar (PW-1) was examined by Dr. Kalanidhi Sarswat (PW-5) on 23.07.1997 at 17:50 hours. Simply for the reason that copy of the FIR was sent to Magistrate on 26.07.1997, entire prosecution story has not become doubtful. The case was registered under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which required investigation by Circle Officer of Police, due to which delay has occurred in recording statements of eye witnesses and sending the report to Magistrate. The appellants admitted date, time and place of occurrence. Only dispute was raised that it was an incident of road holding by unknown miscreants. As such delay in recording statement of eye witnesses and sending of copy of FIR to Magistrate is not fatal. Non- examination of Constable Clerk Chhote Lal Sharma, SI Raj Kumar, SI Sarnam Singh and CO Sher Singh do not affect/violate any right of the appellants. The police papers have been proved by SSI Surendra Singh Parihar (PW-8) and CO Daya Chand (PW-9). In cross-examination, they were not asked any question in this respect. The police papers are not liable to be disbelieved due to cutting/inserting additional sections in it.
15. So far as statements of Smt. Sushila Devi (PW-3) and Vinod Kumar (DW-1) are concerned, they also admitted date, time and place of incident, in which Jintendra Kumar and Titoo were murdered. According to them, the incident was caused by unknown assailants, who stopped the bus throwing stones from out side and entered the bus for looting passengers. Vinod Kumar (DW-1) admitted that there was no loot from him. These witnesses could not give the name of any person from whom any thing was looted. According to Vinod Kumar (DW-1), he was conductor in the bus. But his bag was not looted. Admittedly, Vinod Kumar (DW-1) was an employee of close relation of Jugul Kishor. As such these witnesses tried to convert the case of murder in a case of loot. In view of the fact that no passenger, driver or conductor were looted, their testimony has been rightly disbelieved by the Court below.
16. Constitution Bench of Supreme Court in State of Bihar v. Basawan Singh, AIR 1958 SC 500, has held that “it is thus clear there is no any universal or inflexible Rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such Rule can be laid down; for the value of the testimony of a witness depends on diverse factors, such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases, where the court will as a matter of prudence look for independent corroboration. It is wrong, however, to deduce from that decision any universal or inflexible Rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available.”
Same view has been taken in Jarnail Singh Vs. State of Haryana, 1993 SCC ( Cri) 869 and State of U.P. Vs. Kishan Chand 2004 SCC (Cri) 2013.
17. In order to prove the case, the prosecution examined four witnesses of the facts, namely, Sanjeev Kumar (PW-1), Mujeev Khan (PW-2), Smt. Sushila Devi (PW-3) and Nawal Kishore (PW-6). Smt. Sushila Devi (PW-3) is mother of the deceased Titoo. She stated that on the date of incident, she was traveling in the bus from Dhaharpur to Gangola as she had gone to Dhaharpur for taking medicine to her child Titoo. Speed of the bus was slowed down between Papad and Gangola and some persons started boarding in the bus. 10-12 robbers, covered with their faces entered the bus and caused the incident. A part of the incident was proved by Smt. Sushila Devi (PW-3).
18. Sanjeev Kumar (PW-1) in his statement has stated that the accused who were residents of Papad were known to him. On 23.07.1997, he had gone to Papad to see his maternal uncle. He was returning from Papad on the bus. When he was boarded in the bus, Jitendra Kumar the deceased, who was cousin of his maternal uncle had also boarded in the bus from Papad, for Dataganj. After covering about half a kilometer of distance from Papad, stones were lying on the road. The driver of the bus slowed down the speed of the bus and was trying to pass through the stones. At that time the accused Jugul Kishor @ Pappu, Pooran, Shiv Kumar @ Sibba and Ishrar threw stones on the bus and crashed the glasses of the bus. They entered the bus. Jugul Kishor exhorted Ishrar and Shiv Kumar @ Sibba to kill Jitendra Kumar. Then Ishrar and Shiv Kumar started assaulting Jitendra Kumar through the knife, which caused injuries to him. He, Mujeev Khan and Nawal Kishor, who were traveling in the bus, objected. On which Shiv Kumar @ Sibba inflicted knife blow upon him, which caused injuries to him. Jugul Kishor was standing in front of them, he opened fire which caused injury to Jitendra Kumar. Jitendra Kumar died on the spot. Smt. Sushila Devi was also traveling in that bus, also objected then Pooran opened fire from his country-made pistol, which caused injury to her son Titoo, who was sitting in her lap. Due to which Titoo died on the spot. The incident was witnessed by Mujeev, Nawal Kishor and other passengers of the bus. Thereafter he came to police station Dataganj and after scribing the complaint from Hemchandra, he lodged FIR. Thereafter he was sent for medical examination, where his injuries were examined by the doctor.
In cross-examination, he stated that Jugul Kishor entered into the bus from driver side and remaining three accused entered into the bus from rear gate. Jitendra was sitting after one seat of driver's seat on three seater. After entering into the bus Ishrar and Shiv Kumar started assaulting Jitendra. The driver neither objected Jugul Kishor and other accused nor he tried to run away from the spot after throwing stones on the bus. As soon as the bus was stopped, the driver and conductor run away from the spot, leaving the bus. Sushila was sitting by the side of Jitendra. He pushed the accused through his hand on which Shiv Kumar caused knife injury upon him. Sushila came to police station along with dead body of her son at that time. His medical examination was done between 6:00 to 7:00 PM.
19. Mujeev Khan (PW-2) is resident of Dataganj and is an independent witness. He has stated that on the date of incident, he was traveling from Badaun to Dataganj in the bus. Jitendra, Sajeev and other passengers were boarded in the bus, from Papad, for Dataganj. After some distance from Papad towards Gangola, stones were lying on the road. The driver of the bus slowed down the speed of the bus and was trying to pass through the stones. At that time the accused threw stones on the bus and crashed the glasses of the bus. Jugul Kishor entered the bus from driver side. Shibba, Pooran and Ishrar entered into the bus from rear gate. Jugul Kishor exhorted to kill Jitendra Kumar, which was objected by Sanjeev. On which Ishrar and Shiv Kumar caused knife injury to Sanjeev. Jugul Kishor opened fire, which caused injury to Jitendra. Pooran opened fire, which caused injury to a child sitting in the lap of a woman. Jitendra Kumar and the child of the woman died on the spot.
In cross-examination, he stated that the accused used to come in his market as such he was knowing them. He did not know the parentage of any accused. Mahfugee father of Gudda was driver of the bus. He did not know the name of the conductor. The driver and conductor did not object the accused in throwing the stones upon the bus and entering the bus. He was sitting on seat lying by the side of bonnet. Jitendra was sitting on three seater seat behind the seat of driver. He could see as to whether, they were objected by any passenger. He ran away from the spot on foot and did not go to police station.
20. Nawal Kishor (PW-6) stated that on the date of incident i.e 23.7.1997, he was present in the bus. As soon as, the bus started from village Papad and covered about ½ km of distance, then on the road, stones were lying due to which the driver decelerated the bus to cross the stones. At that time, four accused started pelting stones due to which the bus was stopped. Accused Jugal Kishore entered into the bus from the gate near to the driver and other three accused entered into the bus from the rear gate. The accused Ishrar and Shiv Kumar tried to drag Jitendra out side the bus for assaulting him to which he opposed then Shiv Kumar inflicted knife blows on Sanjiv and thereafter Jugal exhorted him to kill Jitendra. Thereafter Ishrar and Shiv Kumar inflicted knife blows on Jitendra, which was opposed by Shushila Devi, who was sitting in the bus, then Pooran fired from his country-made pistol, by which her six -seven months' old son, who was sitting in her lap, received injury and died on the spot. The accused Jugal Kishore fired from his country-made pistol which hit on the neck of Jitendra Kumar and he also died on the spot. Thereafter accused dragged Jitrendra to out side the bus. The incident was witnessed by Mujeev Khan (PW-2) and Sanjeev Kumar (PW-1) along with other co-passengers of the bus. The driver sped away the bus and took it towards Budaun. The incident was of 04:45 PM.
In cross-examination, he has stated that he was working on the post of Supervisor in IFFCO factory Anwala, where his duty was from 6:00 AM to 2:00 PM. But on the date of occurrence, he was on leave. He had also taken permission to leave Anwala, which was granted by Lakshman Singh, the Manager. He had to construct a house at his village Papad as such he was going to Dataganj to arrange a mason and labourer. After incident, the bus driver took turn of the bus towards Badaun. He came to Papad after incident but he had not gone to the house of Jitendra to inform them about the incident. In between the house of Jitendra and his house, 8-10 houses were situated. Family members of Jitendra also met on the way but he did not talk with them. He did not inform to maternal uncle of Sanjeev. He returned to Anwala and reached there at 07:00 to 7:30 PM on the date of incident. He met to Investigating Officer after 5- 6 days of the incident. He was traveling in standing position in the bus. Jitendra was sitting after one seat, on three seater. Sushila was sitting by his side. The accused did not rob any passenger. He admitted that he was also shown as an accused in the case lodged by Pooran against Jitendra.
21. From the statements of Sajeev Kumar (PW-1), Mujeev Khan (PW- 2) and Nawal Kishor (PW-6), the charges against the appellants are fully proved. Sanjeev Kumar (PW-1) is an injured witness. His injuries has been promptly examined by Dr. Kalanidhi Sarswat (PW-5). His presence cannot be doubted. Sanjeev Kumar (PW-1) is resident of Datagnaj. His maternal uncle was residing at village Papad i.e. the village of the accused as such he was fully recognizing the accused. Mujeev Khan (PW-2) is a resident of Dataganj, who has stated that as the accused used to go Dataganj, where he had seen them as such he was recognizing them. At the time of incident, two shots of fire arm was done by Jugul Kishor @ Pappu and Pooran. The other accused namely Shiv Kumar @ Shibba and Ishrar were assaulting Jitendra Kumar and Sanjeev Kumar. Terror was created inside the bus. Although there were small contradictions. The passengers in began to run away from the bus. As such it was not possible for any passenger to describe an exact picture of the incident. In such circumstances small variation in the statements of the witnesses are probable. Nawal Kishor (PW-6) stated that he also run away towards village Papad after incident as such his part of statements that the driver and conductor had taken turn of the bus and went towards Badaun is incorrect. Supreme Court in Rana Pratap Vs. State of Haryana, 1983 SCC ( Cri) 601 has held that presence of any witness cannot be judged by any preconceived notion of how he should have reacted at the time of occurrence. Every person react in his own way. Kameshwar Singh Vs. State of Bihar, 2018 ( 103) ACC 602 ( SC) has held that reaction of witnesses differs from man to man. Expecting uniformity in their evidence would be unrealistic. Maxim “falsus in uno falsus in omnibus” is not applicable in India.
22. So far as the motive of the incident is concerned, it is admitted that in March, 1997, a quarrel had taken place between the parties, in which the accused Pooran had lodged an FIR under Section 307 IPC against Jitendra Kumar. This fact has been admitted.
23. In the result, the appeals have no merit and are dismissed . Jugal Kishore @ Pappu, the appellant in Criminal Appeal No. 5379 of 2005 is on bail; his bail bonds are cancelled. He shall be taken into custody forthwith and be sent to jail to serve the sentence as awarded by the court below. Rest of the appellants namely Pooran, Shiv Kumar @ Sibba and Ishrar are in jail. They shall serve the sentence as awarded by the court below.
Office shall communicate this order to Chief Judicial Magistrate concerned forthwith to take consequential action under intimation to this Court. Original records be also returned.
Order date: 17.09.2018 Rahul/-
[Umesh Chandra Tripathi,J.] [ Ram Surat Ram (Maurya),J.]