Reserved on 10.9.2018 Delivered on 25.9.2018 Case :- CRIMINAL APPEAL No. - 963 of 1987 Appellant :- Raja Ram And Others Respondent :- State Counsel for Appellant :- Anoop Ghosh, Arvind Kumar Srivastava Counsel for Respondent :- A.G.A.
Hon'ble Sudhir Agarwal,J. Hon'ble Om Prakash-VII,J.
(By Om Prakash-VII, J.)
1. This criminal appeal has been preferred by accused against judgment and order dated 27.3.1987 passed by District & Sessions Judge, Farrukhabad in Session Trial No.73 of 1984 (State vs. Raja Ram Singh and others) convicting and sentencing accused for the offence punishable under Section 302 IPC for imprisonment for life and a fine of Rs. 1000/- each and for the offence under Section 307 IPC to undergo five years rigorous imprisonment and a fine of Rs. 1000/- each. In default of payment of fine for the offence under Section 302 IPC and also for the offence under Section 307 IPC, accused were directed to further undergo one year's rigorous imprisonment on each count. All sentences were directed to run concurrently. It was also directed that if fine imposed above was recovered, a sum of Rs. 2000/- was to be paid as compensation in respect of death of deceased to Sri Raghunath Singh (PW-1).
2. At the outset, it is relevant to mention here that during pendency of this appeal, appellant nos. 1, 3, and 4 (Raja Ram Singh, Narendra Singh and Raghuraj Singh) have died. Accordingly, vide order dated 30.07.2018 this Court has abated the appeal in respect of appellant nos. 1, 3, and 4 (Raja Ram Singh, Narendra Singh and Raghuraj Singh), respectively.
3. Now, Court is proceeding to consider present appeal in respect of rest of appellant, namely, Shiva Ram Singh (appellant No.2).
4. Prosecution case, in nutshell, as unfolded by informant Raghunath Singh son of Chhote Lal in First Information Report (in short 'F.I.R.'), is that a litigation in respect of agricultural land of informant was going on between Bhimsen resident of Kannauj in the court of Assistant Chakbandi Officer and father of informant was having possession over the said land for about 40 years. In this regard Raja Ram Singh and others had threatened to kill, hurling abuses to Himmat Lal, elder brother of informant regarding which he had lodged complaint in police station. On 15.05.1982 at about 8 A.M. in the morning when informant's father Chhote Lal along with his elder brother were sowing maze in the filed, Raja Ram Singh, Shiv Ram Singh sons of Gulab Singh, Narendra Singh son of Raja Ram Singh and Raghuraj Singh son of Kasturi Singh, resident of Veerhar Police Station Thathiya armed with guns reached on the field and exclaimed that “Saale chamaro you have not withdrawn possession from the field, while you were already asked not to enter in the field. You will be killed today. Houses would also be set at fire and you would be dispossessed and also asked to stop the plowing.” (कहा साले चमारो तमने अभी खेत का कब्ज़ा नहीं छोड़ा है. जब की मै पहले भी तुम लोगो से कह चूका हूं. की खेत मे पैर न रखना आज तम्ु हे जान से मर दगं ा. घरो मे आग लगा दगं ा तुम्हे रहने नहीं दगं ा हल छोड़ दो). In the meantime, altercation started and Moti son of Dhanna, Rameshwar son of khushali, Parbhu son of Maiku, Bhaiya Ram son of Salki and many other people gathered there. When father of informant objected, above accused persons armed with guns asked that they would be shown their power/status and started firing which hit father of informant and his brother. When informant with the help of witnesses was bringing both the persons to home, on the door, father of informant succumbed to his injuries, elder brother of deceased had also received injuries on chest, neck and other parts of body. This incident was witnessed by witnesses and other people.
5. On the basis of written report (Ext. ka-1), chik First Information Report (Ext. Ka-4) was registered at Police Station concerned on 15.5.1982 at 10.05 A.M. mentioning all details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time, which is Ext. Ka-5.
6. Investigation of the matter was started by sub-Inspector Sunder Lal Maurya. After registering F.I.R., he immediately recorded statement of informant. Thereafter he proceeded to place of occurrence, inspected dead body of deceased and prepared inquest report (Ext. Ka-6) and also police papers Ext Ka-.7 to Ka-10 keeping the dead body in sealed clothes and preparing the sample seal sent dead body for post mortem. Thereafter, he recorded statement of other witnesses; prepared site plan (Ext. Ka-11 and Ka-12); recovered bloodstained and simple earth from the place of occurrence and also prepared memo Ext. Ka-14 in this regard. He also recovered a Tikli from the place of occurrence and prepared recovery memo Ext Ka-15 about the same. During investigation, Investigating Officer was transferred and Sub-Inspector Ram Manohar Singh took investigation in his hand. He recorded statement of injured.
7. Injured Himmat Lal was medically examined by Dr. A.K. Dubey on 15.05.1982 at 6.30 p.m. at District Hospital Fatehgarh. Following injuries were found on his body:
“(i) Multiple gun shot wound of entry in an area of 5"x 4" on right side of neck measuring 1/8" x 1/8" to ¼" x 1/10" x skin to muscle deep margin inverted and ecchymosed, Bleeding on touch, wound is in front and on lateral side. Advised X-ray, front to back.
(ii) Multiple Gun shot wound of entry in an area of 5" x 6" on front of right side chest from top of shoulder measuring from 1/8" x 1/8", skin to muscle deep margins inverted and ecchymosed advised X- ray. Direction front to back. Bleeding on touch.
(iii) Multiple gun-shot wound of entry in an area of 5" x 2" from top of shoulder to upper part of right upper arm in front, measuring from 1/8" x 1/8" and few measuring ¾" x ¼" margins inverted and ecchymosed. Direction front to back. Bleeding on touch.”
8. According to doctor, injuries were caused by fire-arm. Duration about half day. Patient was hospitalized. Injury report is Ext Ka-16.
9. Autopsy on the dead body of deceased was conducted by Dr. S.C. Gupta on 16.05.1982 at about 4.15 P.M. Autopsy report is (Ext. ka-3).
10. As per post mortem report, deceased was about 55 years old. Rigor mortis passed of from upper extremities and partly passed of from lower extremities. Blisters present in chest and abdomen. Abdomen distend. Faecal matter was present around anus.
11. On examination of dead body of deceased, following ante- mortem injuries were found:
“1. Gun-shot wound of entrance 1½" x 1" x bone deep on left thigh upper front and upper part and on medial side Oval in shape, margins averted, the underlying bone fractured direction right to left and backward.
2. Six slipped gun-shot wound in an area of 1¾" x 1½" just above to medial wound No.1 of size various 1/10" x 1/8" to 1/2" x 1/4" apart.
Above injuries shown blackening tattooing and charring present.”
12. In the opinion of doctor, death was caused due to shock and hemorrhage which resulted on account of ante mortem injuries.
13. After completing investigation, charge-sheet (Ext. ka-2) against all accused was filed. Concerned Magistrate took cognizance and case being exclusively triable by sessions court was committed to Court of sessions.
14. Accused appeared and charges under Sections 302 IPC and 307 IPC were framed separately against them. All accused have denied the charges framed against them and pleading not guilty claimed their trial.
15. Trial proceeded and in order to prove its case on behalf of prosecution, six witnesses, namely, PW-1 informant Raghunath Singh, PW-2 Himmat Lal, injured/eye account witness, PW-3 Ram Manohar Singh, Sub-Inspector who submitted charge sheet, PW-4 Dr. Suresh Chandra Gupta who conducted autopsy on the dead body of deceased and submitted autopsy report, PW-5 Sunder Lal Maurya who investigated the matter upto 27.05.1982 and PW-6 Dr. Anil Kumar Dubey who medically examined injured Himmat Lal.
16. After closure of evidence, statement of accused under Section 313 Cr.P.C. was recorded in which they stated the prosecution case false. Accused Shiv Ram Singh stated that he and Manu etc. were ploughing their fields, deceased Chhote Lal, Himmat Lal, Raghunath and 10-12 other persons came their along with Rama Shankar, who was armed with gun. These persons tried to restrain accused and Manu from sowing the field and assaulted by means of lathies. Rama Shankar opened fire by means of gun towards him. He escaped. Chhote Lal was standing there. He sustained injuries. All the accused persons stated more or less same facts. Accused Raghuraj Singh stated that he has been falsely implicated in this case due to village party-bandi.
17. In support of its case, defence examined Manu as DW-1 and also filed documents i.e. extract khasra and khataunies, extracts of Akar Patra-45, copy of judgment of S.O.C., copy of telegram, copy of judgment of Naib Tehsildar, copy of judgment of S.D.O., original sale deed executed by Mahendra Narayan, Upendra Narayan and Devendra Narayan sons of Bhimsen in favour of Smt. Shanti Devi wife of accused Raja Ram Singh, injury reports of Mataru Singh and Manoo Singh, certified copy of the judgment and order passed by S.D.M. Court.
18. Having heard learned counsel for parties and going through the record, trial court has found that prosecution has fully succeeded in bringing home charges against accused appellants beyond reasonable doubt warranting their conviction and sentence. Hence this appeal.
19. We have heard Shri Arvind Kumar Srivastava, learned counsel for appellant and Shri Rishi Chaddha, learned AGA for State at length.
20. It was submitted by learned counsel appearing for appellant that appellant is innocent and has not committed present offence. Findings recorded by Trial court in the impugned judgment and order are perverse. In fact, informant's side themselves reached on the spot and illegally tried to dispossess accused side from their peaceful possession over the disputed property and caused injuries to persons belonging to accused side. At this juncture, learned counsel appearing for appellant to substantiate this fact referred to Non Cognizable Report and other documentary evidence adduced in support of plea. It was next contended that deceased and injured belonging to informant's side have received injuries in the present matter due to firing made by Rama Shankar. Informant lodged F.I.R. on the basis of false facts. Submission is also that appellants' side have purchased disputed property from legal heirs of Bhimsen and they were in actual cultivatory possession over the disputed property. Hence, findings recorded by trial court in the impugned judgment and order are illegal. Medical evidence also does not support prosecution case. Injuries found on the body of deceased and injured could not come in the manner and style stated by prosecution witnesses. PW-1 is not eye account witness. Attention of the court was also drawn toward post mortem report and injury report of injured and argued that specific role has not been assigned to accused- appellant. Prosecution has also not proved its case from its evidence as to who caused injuries to deceased and injured.
F.I.R. was delayed as plausible explanation has not been given regarding delay occurred in lodging F.I.R.. There are major contradiction in prosecution evidence on material points. Investigation is also perfunctory. Impugned judgment and order suffers from infirmity and illegality warranting interference by this Court.
21. On the other hand, learned A.G.A. argued that prosecution has proved its case beyond reasonable doubt. PW-1 & PW-2 both were present at place of occurrence and this fact has been admitted by accused side in the statement recorded under Section 313 Cr.P.C. itself. Presence of deceased on the date, time and place of occurrence is also admitted to accused. Since prosecution side was in continuous peaceful possession over disputed property, they were sowing maize on the day of occurrence, accused person came there and tried to stop informant's side, altercation took place between them. Thereafter, accused who were armed with deadly weapons opened fire upon deceased and injured. Medical evidence fully supports oral version. Findings recorded by trial court regarding date, time and place of occurrence as also about involvement of accused-appellant in the present matter are based on correct appreciation of facts and evidence. Accused-appellant was also armed with fire-arm weapon and he had also opened fire. Hence, finding recorded by trial court about guilt of accused- appellant for the offence under Sections 302 & 307 IPC is in accordance with law. It was further argued that if Section 34 I.P.C. is not mentioned in the charge and conviction of the accused appellant was passed only under Sections 302 & 307 I.P.C., findings of trial court in the impugned judgment and order cannot be set aside. All ingredients to attract provisions of Section 34 I.P.C. in the present matter have been proved. There is no illegality or infirmity in the impugned order warranting interference by this Court.
22. We have considered rival submissions made by learned counsel for parties and have gone through entire record carefully.
23. In the present matter, as is evident from the record, F.I.R. was lodged on 15.5.1982 at 10.05 hours in morning. Incident is said to have taken place at 8.00 A.M. Prosecution case is that informant's side were sowing maize in disputed plot, accused armed with gun came on the spot and threatened to informant's side to leave the field and when informant's side denied, accused-appellant and his associates, opened fire on them which hit deceased and injured. If plea taken by accused- appellants in their defence and in the complaint filed by Gulab Singh as well as statement under Section 313 Cr.P.C are taken into consideration, it is clear that date, time and place of the occurrence is admitted to both sides. Presence of deceased and injured as well as informant on the date, time and place of occurrence is also admitted to accused, which is clear from the answer given by accused Raja Ram Singh (since died) in question No.12 put under Section 313 Cr.P.C. Thus, there remains only to scrutinize as to which version taken by prosecution or accused is correct. It is made clear at this stage itself that F.I.R. was not lodged regarding incident in question on behalf of appellant side. A complaint was filed which was dismissed under Section 203 Cr.P.C. finding no prima facie case.
24. Prosecution case is that deceased Chhote Lal and injured Himmat Lal both were sowing maize in the disputed field on the date and time of occurrence. PW-1 informant, Raghunath Singh to provide breakfast to them had also gone there. Accused with deadly weapon (fire-arms) came there and asked informant's side to vacate the field and when they denied, they opened fire which hit deceased and injured. Defence plea is that while accused were cultivating land, informant side along with many other people reached there and interfered in peaceful possession of accused over disputed land and caused injuries to persons belonging to appellant's side. It is also case of defence that accused had purchased disputed land from legal heirs of Bhimsen in the name of Smt. Shanti Devi and her names has been recorded in the revenue record and they were in actual possession over disputed land. Reliance has also been placed by accused on said sale-deed and order passed by courts in consolidation proceeding as well as extract Khataunies.
25. Trial court was of the view that informant's side was in cultivatory possession over disputed land and on the date & time of occurrence they were sowing maize in the disputed plot.
Accused armed with fire-arm weapons (guns) gathered there and tried to dispossess informant's side and when they denied, all the accused opened fire on deceased and injured. Injuries said to have been sustained by persons belonging to accused- appellant's side, in fact, were never caused by informant's side. Injury reports relied on by defence are fictitious and fake documents. The defence set-up by accused-appellant's side was found false and accused were also found aggressor in the matter. Trial court was also of the view that presence of PW-1 on the spot is also established from prosecution evidence. Alternative plea taken by accused side that one Rama Shankar caused fire-arm injuries to deceased and injured is false.
26. In light of the above factual backdrop, if evidence adduced by both parties are minutely analyzed in consonance with findings recorded by trial court in impugned judgment and order, no illegality or infirmity is found. Findings of trial court are based on correct appreciation of facts and evidence. It may be mentioned here that presence of PW-1, deceased and injured at the place of occurrence has been admitted by defence, as mentioned here-in-above, in the statement recorded under Section 313 Cr.P.C.. Medical evidence fully supports prosecution case. Doctor, who has conducted post mortem of deceased Chhote Lal, has clearly stated that injuries found on the body of deceased could be caused in the manner and style stated by PW-1 and PW-2. It may also be mentioned here that in villages people for providing breakfast used to go to field. If time of incident is taken into consideration, presence of PW-1 on the spot for providing breakfast to deceased and injured cannot be said to be improbable and unbelievable. Deceased and injured both were standing at the place of occurrence at a gap of about seven to ten paces and accused were also standing few paces away from deceased and injured. Hence, in such a situation if fire were made from the place where accused were standing, symptoms found on injuries of deceased and injured are natural and could come, wads could also be found in the injuries of injured and deceased. On close scrutiny of entire prosecution evidence and comparing the same with the statement of PW-1 and PW-2 in its entirety, no contradiction between oral and medical evidence is found in the present matter. Thus, findings recorded by the trial court on these issues also need no interference.
27. Prosecution case is clear and consistent that PW-2 was sowing maize along with deceased Chhote Lal. Prosecution case is also clear and consistent on this point that informant's side were in cultivatory possession over disputed land at the time of occurrence. At no point of time they were dispossessed from disputed land. Mere execution of sale-deed by legal heir of Bhimsen in favour of Smt. Shanti Devi belonging to accused family, it cannot be held that possession over disputed land was actually handed over to accused. It may also be mentioned here that there is vast difference between de jure and de facto possession. Hence, submission raised by learned counsel appearing for accused-appellant is not acceptable. Prosecution case is also not doubtful on the ground that PW-1, PW-2 both are closely related to deceased because presence of PW-1, PW- 2 and deceased at the date and time of occurrence is admitted to defence. PW-2 has received injuries in the same incident. Mere relation of a witness with the deceased will not be sufficient to discard his testimony especially when oral version is supported by medical evidence.
28. So far as involvement of present accused-appellant in present matter is concerned, prosecution case i.e. statement of PW-1 and PW-2 both are also consistent and clear that accused- appellant was also armed with gun. Accused-appellant and other accused started hot-talk with informant's side at the place of occurrence to vacate disputed land. The attending circumstances at the place of occurrence from the evidence adduced by prosecution clearly show the meeting of mind of accused persons to commit present offence. Present occurrence was committed in furtherance of common intention of all accused. Appellant had also opened fire upon deceased and injured. If prosecution was not able to establish this fact that as to who caused injuries to whom, it is not sufficient to discard prosecution evidence. Fire-arm has been assigned to accused- appellant, used pellet has also been recovered from the place of occurrence. Medical evidence fully supports prosecution case, injuries found on the body of deceased and injured could also be caused with the weapon assigned to accused-appellant, thus, findings recorded by the trial court about involvement of accused-appellant in the present matter is also based on correct appreciation of facts and evidence. Impugned judgment and order can also not be interfered with on this ground that there are some variations or contradictions in the prosecution evidence on trivial issues. If submission raised by learned counsel appearing for appellant on this aspect is scrutinized in light of evidence available on record, we are of the view that such variations and contradictions do not affect the core question of the matter and same are not fatal to prosecution case on material points.
29. As regards non framing of charge for the offence under Section 302 read with Section 34 I.P.C. is concerned, it is evident from record that trial court vide impugned judgment and order has convicted and sentenced accused-appellant for the offence under Sections 302 and 307 I.P.C. simpliciter. It is settled legal position that if accused appellant had ample opportunity to cross examine the witnesses and to lead evidence in support of his case, findings recorded by trial court about guilt of accused-appellant only for the substantive offence without mentioning provisions of Section 34 IPC, the conviction and sentence on this ground cannot be set aside and accused cannot be acquitted. It is pertinent to mention that punishment is imposed according to punishment provided in substantive Section, charge framed against accused reveals all the details of crime and ingredients of Section 34 IPC. However, said findings recorded in impugned judgment and order can be modified to this extent and accused-appellant can be convicted and sentenced in the present matter taking recourse to the provision of Section 34 I.P.C..
30. In the circumstances, on close scrutiny of entire evidence and discussion made herein above, we are of the view that prosecution was able to prove its case against the accused- appellant beyond reasonable doubt. Accused-appellant along with his companions has committed present offence. Medical evidence fully supports prosecution case. Though trial court has convicted and sentenced accused-appellant for the offence under Section 302 and 307 I.P.C., yet the appellant is convicted and sentenced for the offence under Section 302 I.P.C. read with Section 34 I.P.C. and 307 I.P.C. read with Section 34 I.P.C. and modify the impugned judgment and order to this extent. On close scrutiny of entire evidence, we are also of the view that sentence imposed upon the accused-appellant is adequate, proper and to conscience of society as well as court.
31. Considering the entire aspects of the matter and looking to the circumstances, under which the present offence has been committed, this Court is of the opinion that impugned judgment and order dated 27.3.1987 passed by trial court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove the guilt of accused appellant beyond reasonable doubt. As such, impugned judgment and order passed by trial court is liable to be upheld with the modification, as above, and appeal having no force is liable to be dismissed.
32. Accordingly present Criminal Appeal is dismissed. Conviction and sentence imposed upon accused appellant vide impugned judgment and order is affirmed with modification that appellant is convicted and sentenced for the offence under Sections 302 IPC read with Section 34 IPC and 307 I.P.C read with section 34 I.P.C. Sentence imposed upon the accused-
appellant is maintained. Accused-appellant, if not in custody in this matter, is directed to surrender before Court below immediately to serve out remaining sentence imposed by trial court vide impugned judgment and order as modified by this Court. Bail bonds are cancelled and sureties are discharged from their liabilities.
33. Copy of this judgment alongwith lower court record be sent forthwith to the Sessions Judge, Farrukhabad for compliance and a compliance report be sent to this Court.
Order Date :- 25.09.2018 safi/A.N.Mishra