Court No. - 46
Case :- CRIMINAL APPEAL No. - 2762 of 1987 Appellant :- Raja Ram Singh And Another Respondent :- State Of U P Counsel for Appellant :- Anurag Srivastava, Amit Daga, R. B. Sahai, Counsel for Respondent :- A.G.A., Jaichandra Singh
Hon'ble Manoj Misra,J. Hon'ble Sameer Jain,J.
1. Heard Sri Amit Daga, learned counsel for the appellants; Sri J.C. Singh, learned counsel for the informant; Sri H.M.B. Sinha, learned A.G.A. for the State; and perused the record.
2. This appeal was presented by Raja Ram Singh and Kedar Singh against the judgement and order dated 21.11.1987 passed by III Additional Sessions Judge, Fatehpur in S.T. No. 215 of 1987 convicting the appellant no. 2 – Kedar Singh under Section 302 I.P.C. and the appellant no. 1- Raja Ram Singh under Section 302 read with Section 34 I.P.C. and sentencing them to imprisonment for life.
3. Raja Ram Singh (appellant no. 1) died during the pendency of this appeal and therefore, his appeal was abated vide order 26.10.2018.
4. This appeal, therefore, survives only with regard to appellant no. 2 (Kedar Singh)
5. The prosecution case was instituted on a written report (Exb. Ka-1) submitted by Ram Chandra Singh (P.W.1), father of the deceased (Rajendra Singh), which was registered as First Information Report (FIR) (Exb. Ka-3) at P.S. Khaga, District -Fatehpur on 21.6.1986 at 23.30 hours. In the FIR, it is alleged that in connection with drawing electricity wire from over the premises of the informant by the accused Kedar Singh (appellant no. 2), an objection was raised by the deceased Rajendra Singh resulting in altercation and extension of threat by Kedar Singh that he will see as to who dares to remove the wire. It is alleged that today i.e. the date of the incident/ lodging of the FIR, his son, namely, the deceased - Rajendra Singh, had removed the wire and had put it on the roof of Kedar Singh (appellant no. 2). In connection with that incident, appellant no.
2 abused Rajendra Singh. Following that, in the night (of 21.6.1986), at about 10 p.m., when the informant (PW-1), his son Rajendra Singh (deceased) and informant’s younger son (Rajesh Singh) (PW-2) were lying in front of their shop on their respective cots, Raja Ram Singh (appellant no. 1) and Kedar Singh (appellant no. 2) came from east and on exhortation of appellant no.1, appellant no. 2 fired from his country made pistol at the deceased, resulting in his death on the spot. The incident, narrated above, was reported at 23.30 hours on 21.6.1986.
6. On 22.6.1986 at about 7 a.m. inquest proceedings were completed and an inquest report (Exb. Ka-5) was prepared by PW-5. The inquest report also notices the deceased lying dead on a cot.
7. During the course of investigation, the police recovered blood stained earth and plain earth from the spot as also blood stained pieces of cot, clothes of the deceased and prepared seizure memo (Exb. Ka-6). The statement of witnesses were recorded under Section 161 Cr.P.C. Raja Ram Singh (appellant no. 1) was arrested first and, thereafter, charge- sheet (Exb. Ka-13) was submitted against him whereas, the appellant no. 2 i.e. Kedar Singh was arrested later, after proceedings under were Section 82 & 83 Cr.P.C. had to be drawn against him and, thereafter, a charge-sheet (Exb Ka-14) was laid against him. After taking cognizance on the police report, the matter was committed to the court of session. The trial court charged the appellant no. 2 – Kedar Singh for the offence punishable under Section 302 I.P.C. and charged appellant no. 1 – Raja Ram Singh for an offence punishable under Section 302 read with Section 34 I.P.C. Both the appellants (accused) denied the charge and claimed trial, which gave rise S.T. No. 215 of 1987.
8. During the course of trial five prosecution witnesses were examined, namely, P.W. 1 – Informant, Ram Chandra Singh;
P.W. 2 – Rajesh Singh, younger brother of the deceased; P.W. 3 – Mohd. Halim Khan, the Doctor, who prepared the autopsy report; P.W. 4 – Ram Din Tiwari, the head constable who made GD Entry of the FIR and issued chik FIR; and P.W. 5 – Salig Ram Ratnakar, the investigating officer (I.O.), who carried out various stages of investigation up to submission of charge- sheet against the appellant no. 1, Raja Ram Singh.
9. Before we proceed further, it would be useful to have a glimpse at the postmortem report (Exb. Ka. 2) prepared and proved by P.W. 3. The postmortem report reveals that postmortem was conducted on 22.6.1986 at about 5 p.m.. The ante-mortem external injury found was as follows :
1. “Lacerated wound on the left side of chest 2 cm X 1 cm Cavity deep. No blackening or scorching seen. Margins are inverted. Injury is 3 cm. lateral to midline and 2 cm. below the left nipple. No wound of exit is present. One yellowish metallic shot was recovered from the right side of back of the chest about 10 cm above the iliac crest.”
2. The internal examination revealed the brain congested; walls of thorax punctured; left side pleura of the lung punctured; right side of lung congested and lacerated and also punctured; the pericardium lacerated and punctured; heart was lacerated and punctured; Stomach contained four ounce of milky material; small and large intestine were congested and empty; and bladder was empty.
3. According to the Doctor, the death could have been caused three-fourth of a day before as a result of shock and haemorrhage due to ante-mortem firearm injury.
10. The witnesses of fact examined by the prosecution were P.W. 1 and P.W. 2. P.W. 1 in his deposition proved the lodging of the FIR; reiterated the motive as stated in the FIR and gave vivid description of the incident by stating that the deceased;
P.W. 1; and P.W. 2 were all lying in their respective cots, next to each other, in front of their shop, after receiving Baraat of grand daughter of a co-villager, when, at about 10 pm, the accused-appellants came. On exhortation of appellant no. 1, the appellant no. 2 (Kedar Singh) fired at the deceased (Rajendra Singh), resulting in his death on spot. He pointed the location, the direction and the distance from where the shot was fired. He stated that it was moonlit night and in the moonlight he recognised the accused persons. In his cross-examination, a suggestion was put to him that he used to sleep at the Aadar (a place where cattle are tied and kept), which he denied. He, however, admitted that no complaint was made from his end in respect of drawing electricity wire by the accused from over the house of the appellant. He also disclosed the distance and exact spot from where the shot was fired by the accused.
11. P.W. 2, the younger son of the informant (P.W. 1), the younger brother of the deceased, who is stated to be aged about 10 – 12 years, before being examined was put to test to ascertain whether he could be considered as a competent witness. After putting him to those tests and being satisfied that the witness understood the gravity of speaking the truth, oath was administered by the trial Judge and his statement was recorded. PW-2 also deposed that the deceased, his father (P.W. 1) and he (P.W. 2) all had their cots laid next to each other, in the open, in front of their shop, as, during summer month, on account of severe heat it was desirable to sleep that way and, otherwise also, there was constraint of space in the house where the ladies used to sleep. He also supported the prosecution case as also the manner in which the deceased was shot by Kedar Singh (appellant no.2) upon exhortation of appellant no. 1. Certain questions were put to him so as to discredit him on account of there being minor variations in his statement made during the course of investigation but nothing material could come out.
12. P.W. 3, the Doctor, who carried out the autopsy report, proved the autopsy report and gave an opinion that the incident could have occurred on or about the time set out by the prosecution. He was also cross examined with regard to the direction from which the gun shot could have been fired at the deceased to which he clarified by stating that as the gun shot had not made an exit wound he cannot with certainty disclose the direction from which gunshot was fired. He stated that injury was caused from left side. He did not rule out the possibility that the shot might have been fired from the left side closer towards the head side. He also stated that at the time of gun shot it is most likely that the deceased was in a lying position and the shot was fired from a higher position.
13. P.W. 4 proved the registration of the FIR at 23.30 hours. Questions were put to him but nothing much could come out to demonstrate that there was ante timing in registration of the FIR.
14. P.W. 5 proved various stages of investigation such as preparation of inquest, lifting of blood stained earth and plain earth from the spot; collection of blood stained clothes, piece of cots etc. where the deceased had died. He prepared the site plan depicting that there were three cots including the cot of the deceased at the spot. During cross-examination questions were put to him as to when he arrived at the spot. To which he replied by stating that he arrived at the spot by 12.30 am i.e. half past mid night. Question was put to him as to why inquest was not carried out in the night. He stated that it is not appropriate to do so unless and until there is tube light or Petromax light upon which, again, question was put to him as to why he could not arrange for the light by arranging for Petromax light as Baraat was nearby. However, nothing material could come out from his cross-examination.
15. The trial court upon finding that prompt lodging of the FIR was proved; and there was nothing to doubt the ocular testimony which found corroboration from the medical evidence, recorded conviction and sentenced the appellants as above.
16. Assailing the judgment and order of the trial court, Sri Amit Daga, learned counsel for the appellant, submitted that the motive for the crime, as set out by the prosecution, appears flimsy. Otherwise also, the motive could not be substantiated as there was no recovery of the wire alleged to have been drawn over the house of the deceased which, according to the prosecution, was removed by the deceased and put on the roof of the accused parties’ house. He submits that in absence of recovery of wire, motive, which otherwise also was flimsy, could not be established and therefore, there was no cogent reason for the crime. He further submits that admittedly the incident is of night and the place where the deceased and the witnesses were allegedly sleeping is not a natural place to sleep and, therefore, it appears no body witnessed the incident and the FIR appears to have been lodged later, by doing guess-work. This possibility gains strength from the circumstance that the inquest was conducted in the morning otherwise there was no occasion not to hold the inquest in the night if the FIR had been lodged. He submits that both witnesses are close relatives and therefore are untrustworthy more so when their presence at the spot is not natural. He submits that according to the doctor there was possibility that bullet was fired from the head side whereas, the site plan prepared at the instance of prosecution witnesses suggest that it was fired from the feet side therefore the ocular account is rendered doubtful. He further submits that it is a strange case where no independent witness has come forward to support the prosecution case because, admittedly, from the testimony of P.W. 1, at a short distance from the place of occurrence, there was a marriage party and there would have been people available at the spot therefore, absence of those witnesses to support the prosecution case casts a serious doubt as to its authenticity. He, therefore, submits that this a case where the trial court has not properly tested the prosecution evidence and has accepted the same as gospel truth to record conviction. Hence, he submits that it is a fit case where the trial court's judgement and order be set aside and the appellant no. 2 be acquitted of the charge for which he had been tried.
17. Learned counsel for the first informant as well as learned A.G.A. submitted that this is a case where prompt lodging of FIR has been proved not only by the prosecution witnesses of fact but also by the constable who made entry in G.D.; that there is no such material contradiction in the medical evidence and the ocular account so as to render the ocular account untrustworthy; that the motive for the crime was proved by oral evidence and otherwise also in a case where prosecution story is supported by ocular account, the non-existence of motive pales into insignificance. They further submit that there is no effort on the part of the defence to dispute non-existence of sufficient light as according to moon chart it was full moon on 21.06.1986. Further, though there was an effort on the part of the defence to demonstrate that the witnesses were not sleeping with the deceased at the time of incident but that effort failed as it was proved that all the three cots were laid next to each other and the witnesses were in close proximity to each other and the deceased to have ample opportunity to witness the incident, which stands confirmed with prompt lodging of the first information report. They further submit that it has been proved beyond doubt that the incident occurred in front of the shop of the deceased and sleeping of male members of the family in the open was quite natural as it was peak summer night and to avoid humidity of a room, people sleep out. It is submitted that the prosecution case is supported by ocular account which finds corroboration from medical evidence as well as the material collected during the course of investigation and, therefore, the charge against the appellant of causing death of Rajendra Singh with the use of firearm stands proved beyond any doubt. Hence, the conviction recorded by the trial court calls for no interference.
18. Having considered the rival submissions and having perused the record carefully, we find that as regard the motive for the crime, the oral testimony of the prosecution witnesses has proved that there was a dispute in respect of drawing of electricity wire from over the roof of the deceased in connection with which altercation had taken place; and that, on the date of the incident, the wire drawn by the accused party from over the roof of the informant party was taken off and put on the roof of the accused party. No doubt, the wire might not have been recovered but that is not sufficient to discard the oral testimony because otherwise also, when the prosecution case is based on ocular account, if the ocular account is reliable, existence or non-existence of motive pales into insignificance. Moreover, motive is a mental condition which is never easy to gauge. Because as to what may be enough for one to react in an offending manner might not affect the other. Thus, when there is an ocular account of the incident, lack of motive loses its importance, more so, where the ocular account is trustworthy and reliable.
19. In so far as the ocular account of the incident is concerned, the testimony of P.W. 1 and P.W. 2, whose presence could not be doubted by cross-examination, is consistent. P.W. 1, who is the father of the deceased, and was having his cot next to the deceased in front of his own shop, has clearly deposed that on the exhortation of appellant no. 1 (Raja Ram Singh ), appellant no. 2 (Kedar Singh) fired from the country made pistol from about 7 – 8 paces from a position which falls north east of the cot of the deceased. The position of the deceased, as per the site plan, and as would appear from the inquest report, would be with his head towards west and his feet towards east. Therefore, if a shot is fired at him from north east side, it would enter left side of the deceased. The postmortem report also discloses the entry wound on the left side of the chest of the deceased. Further, as, according to the ocular account, the shot was fired from a distance of around 7 – 8 paces no blackening and scorching was found present around the entry wound. Thus, over all the medical evidence corroborates the ocular account.
21. The contention of the learned counsel for appellant that presence of the metallic bullet within the body at around the iliac crest would suggest that the shot was fired from the head side does not appeal to us because admittedly the shot had not made an exit wound therefore deflection of the bullet from the bony structure cannot be ruled out. The doctor also stated that because there was no exit wound, he cannot say with certainty as to from which direction the short had been fired. But, he did say with certainty that the shot was fired at the deceased while he was in a lying position which again corroborates the ocular account as the deceased, as per ocular account, was lying on his cot. No doubt, the doctor did not rule out the possibility of the shot being fired from towards the head side but that by itself would not be sufficient to discredit the ocular account because in the beginning itself the doctor had clarified that as the bullet did not make an exit wound he cannot say with certainty as to the direction of the shot.
22. The other contention of the learned counsel for the appellant that the inquest was conducted in the morning would be indicative of there being no first information report in existence before midnight, is not at all acceptable because the I.O. had clarified that at night unless there is a tube light or Petromax light it is not advisable to conduct inquest. Under the circumstances, it is possible and probable that the I..O. might have waited for the day to break to enable him to carry out inquest proceedings. This circumstance, by itself, thus, cannot doubt prompt registration of the FIR, lodging of which, at 11.30 pm, was otherwise proved not only by the witnesses of fact but also by the police witness (PW-4) who made G.D. entry of the written report and against whom no mala fides are alleged.
23. The submission of the learned counsel for the appellant that absence of independent witness is fatal to the prosecution case is also not acceptable because more often than not independent witnesses do not turn up as they avoid to become a witness, may be out of fear or for the reason that they do not wish to get involved in litigation, which may give rise to enmity. Therefore, where family witnesses are available and their presence at the spot cannot be doubted, absence of an independent witness is not fatal to the prosecution case. No doubt, an effort was there to doubt the presence of the eyewitnesses at the spot but that effort has failed as PW-2 has explained why all three male members of the family were to sleep in front of the shop, that is, because it was peak summer month, inside the room it was hot and humid, and that there was insufficient space inside the house wherein women folk use to sleep. Otherwise also, during investigation, three cots were noticed and their presence was reflected in the site plan. Thus, when the presence of the eye witness has been established and is confirmed by prompt lodging of the first information report; and the ocular version is not in conflict with medical evidence, rather is corroborated by medical evidence, we are of the considered view that the prosecution has succeeded to prove the guilt of the surviving appellant beyond the pale of doubt. Not only that, we also notice from the testimony of P.W. 5 (Investigating Officer) that the appellant no. 2 (Kedar Singh) could not be promptly arrested and coercive steps had to be undertaken to secure his arrest, which also speaks of his conduct.
24 For all the reasons recorded above, we find that the conviction recorded by the trial court does not suffer from any infirmity. The conviction and sentence awarded to the appellant no.2 (Kedar Singh) by the trial court is affirmed. The appeal of appellant no.2 (Kedar Singh) is dismissed. If the appellant No.2 (Kedar Singh) is on bail, his bail bonds shall stand cancelled. He shall be taken into custody forthwith, if not arrested already, pursuant to our earlier orders dated 4.11.2020 and 23.10.2021, and shall be made to serve out the sentence awarded by the trial court.
25. Let a copy of this order along with lower court record be sent to the trial court concerned for information and compliance.
Order Date :- 21.12.2021 nd