Court No. - 43
Case :- CRIMINAL APPEAL No. - 1973 of 1990 Appellant :- Shyam Singh & Others Respondent :- State Counsel for Appellant :- Ravindra Singh,B.D.Maurya,R.K.Rathore,Sanjeev Kumar Rathore Counsel for Respondent :- D.G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Krishna Pratap Singh,J.
(Delivered by Hon'ble Pankaj Naqvi, J.) This Criminal Appeal is preferred against the judgment and order dated 1.10.1990 passed by Sessions Judge, Mainpuri in S.T. No. 237 of 1989, convicting/sentencing the appellants under Section 302/34 IPC to life imprisonment; under Section 325 IPC to 2 years R.I, and under Section 323 IPC to 6 months R.I, respectively.
The case of prosecution in brief is that on 21.2.1989 at about 5:45 P.M, PW-1 along with his brothers Bhure Khan and Ausan Khan, Alim Khan, Kamruddin, Saeed Khan, Waheed Khan (PW- 3) and Alauddin were watering their fields, sown with garlic, Chhote Khan (PW-2) was smoking a bidi near them, accused Ravindra Singh, Uday Bhan Singh armed with lathi and a countrymade pistol and Shyam Singh with his licensed SBBL gun arrived at the scene to forcibly divert the water-supply into their fields, which was politely objected, but the accused persons refused to pay any heed, accused Shyam Singh exhorted other accused persons that informants be roasted with bullets, they be not spared, informants attempted to flee, followed by indiscriminate firing from countrymade pistol and guns along with lathi and danda blows by accused persons on the informants as a result of which, Chhote Khan (PW-2), Alim Khan and Waheed Khan (PW-3) sustained injuries and fell on the ground. The father of informant, i.e, Saeed Khan in order to rescue himself ran towards the fields of one Baburam, but was nabbed by above three accused, out of whom accused Udai Bhan and Ravindra Singh started assaulting his father and accused Shyam Singh fired a shot from his licensed SBBL gun at his father who died at the spot, accused fled away extending life threats, which attracted the arrival of some persons, who were not examined.
On above allegations, a written report (Exbt-Ka-1) was submitted at the police station, which became a basis of lodging an F.I.R (Exbt-Ka-4) as Case Crime No. 16/1989 under Sections 302/323 IPC at 21:01 P.M, on 21.2.1989 at the P.S, concerned.
After investigation, charge sheet came to be submitted against the appellants, case committed, charges framed against them, under Sections 302, 302/34, 325, 323 IPC, to which they pleaded not guilty and claimed to be tried.
To establish the guilt, the prosecution examined PW-1 / informant, an eye-witness, 2 and 3, injured witnesses, rest are formal. The defence claimed false implication on account of previous enmity and examined DW-1.
During pendency of appeal, appellant no.3 / Uday Bhan Singh died, appeal stood abated qua him on 23.10.2017.
Heard Sri R.K. Rathore, learned counsel for appellants no. 1 & 2 and Sri Santosh Ratan Pandey, the learned A.G.A.
Learned counsel for the appellants submitted that it's a case of false implication, witnesses are interested and inimical, prosecution failed to establish its case beyond an iota of doubt, conviction / sentence is liable to be upset to an acquittal.
Learned A.G.A opposed the submission.
The case is of direct evidence, where motive is not of much consequence. The occurrence on 21.2.1989 at 5:45 P.M, is alleged to have been witnessed by PW-1 to PW-3. F.I.R (Exbt- Ka-4) came to be lodged at 21:01 hours same day, assiging a role to the appellants i.e, of firing a shot at the deceased by accused Shyam Singh and lathi injuries to other two co-accused, i.e, Ravindra Singh and Udai Bhan Singh, F.I.R is prompt, ruling out any possibility of manipulation.
PW-1, son of the deceased, stated that while he along with others including PW-2 and 3 were watering their fields sown with garlic on 21.2.1989 at about 5:45 P.M, accused persons arrived at the scene diverted the water course into their fields, which was resisted by PW-1. Accused Udai Bhan Singh and Ravindra Singh inflicted lathi blows to Chhote Khan (PW-2), Waheed Khan (PW-3) and Alim Khan (not examined), whereas father of informant succumbed to the fire-arm injury at the spot caused by accused- Shyam Singh from his SBBL gun.
PW-2 is the injured and an independent witness reiterated the testimony of PW-1 as to the nature and sequence of occurrence including the role of appellants. PW-3 is also an injured witness, brother of deceased, who too supported the prosecution version.
Law attaches greater sanctity to the testimony of injured witness, so as to establish their presence at the scene.
Nothing could be elicited during cross-examination of above witnesses, which could affect their credibility.
Injuries of Chhote Khan (PW-2) were examined at the PHC concerned on 21.2.1989 at 11:00 P.M, with following injuries (Exbt- Ka-21) : -
“(1) Lacerated wound 7 cm above the root of the nose, measuring 5 cm x ½ cm x scalp deep margin of the wound on irregular, fresh blood oozing out from the wound.
(2) Lacerated wound over skull left side 7 ½ cm above the Lt. Pinna of ear measuring 30 cm x ½ cm x scalp deep, margin of the wound are irregular, fresh blood oozing out from the wound.
(3) Contusion over medival aspect of Lt knee joing measuring 5 cm x 1 cm in size, swelling and tenderness present over and around the contusion. Colour of the contusion is pinkish blue.
(4) Pt complaining pain over Lt elbow joint but no evidence of external injury.
(5) Pt complaining pain over Rt knee joint but no evidence of external injury.
Caused By – Injury no. 1, 2 and 3 are caused by herd & blunt object.
Duration - Injury no. 1, 2 and 3 are fresh.
Nature - Injury no. 1 and 2 are simple in nature. Injury no. 3 is kept under observation till the report of X-ray of Lt. Knee joint.”
PW-8 is the doctor at the PHC, who on 22.2.1989, examined the injuries of Waheed Khan (PW-3) at 11:00 A.M, Alim Khan at 11:30 A.M. PW-8 noticed the following injuries on the person of both the injured:
Injuries of Waheed Khan (Exbt- Ka-18)
“(1) Abrasion at upper part of left upper arm 2 cm below the left shoulder joint.
(2) Contusion of lower posterior part of left upper arm 9 cm above the left elbow joint, measuring 9 cm x 1.5 cm in size, colour of contusion is red. Swelling around the injury present. Suspected fracture of bone at site of injury, for which x-ray advised.
(3) Contusion over posterior part of left elbow joint, measuring 7 cm x 2 cm in size, colour of contusion is red. Swelling around the injury present. Suspected fracture of bone at site of injury, for which x-ray advised.
(4) Contusion 6 cm below the left scapula extending upto right lumber region.
(5) Abrasion at upper medial part of right scapula, measuring 0.5 x 0.5 cm in size.
(6) Contusion over extenser aspect of lower part of right forearm, measuring 7 cm x 2 cm in size. Colour of contusion is red Swelling around the right wrist joint present. Suspected fracture of bone at site of injury, for which x-ray advised.
(7) Abrasion at outer aspect of left knee joint, measuring 1 cm x 1 cm in size.
(8) Lacerated wound in the interspace between right thumb and right index finger, measuring 2 cm x 0.5 cm / muscledeed, margin of wound are irregular and inverted. Clotted blood in the wound present.
Caused by: Injury no.1 and 5 are caused by friction of hard object. Other injuries are caused by hard blunt object.
Duration: All injuries are about half day old.
Nature: Injury No. 2, 3 and 6 are kept under observation.
Injury No. 1, 4, 5, 7 and 8 are simple in nature.
For x-ray patient referred to District Hospital, Mainpuri.”
Injuries of Alim Khan (Exbt- Ka-19)
“(1) Lacerated wound left side of skull 9 cm above the left ear, measuring 2 cm x 0.5 cm x scalp deep in size, margin of wound one irregular and inverted, clotted blood in the wound present.
(2) Lacerated wound 6 cm above the injury no. 1 measuring 2 cm x 0.5 cm x scalp deep in size, margin of wound are irregular and inverted, clotted blood in the wound present.
(3) Contusion at upper part of left scapula, measuring 12 cm x 2 cm in size color of contusion is red; swelling around the injury present.
(4) Contusion at posterior part of left shoulder joint, measuring 8 cm x 2 cm in size, colour of contusion is red.
(5) Contusion at outer aspect of left scapula, measuring 4 cm x 3 cm in size, colour of size is red.
(6) Contusion at lower part of right scapula, extending up to lower part of left scapula, measuring 23 cm x 2 cm in size color of contusion is red.
(7) Contusion 2 cm below the injury no. 6, measuring 20 cm x 2 cm in size, injury is parallel to injury no. 6, colour of contusion is red.
(8) Contusion 2 cm below the injury no. 7, measuring11 cm x 2 cm in size, injury is parallel to injury no.7, colour of contusion is red.
(9) Contusion of upper outer part of right upper arm 6 cm below the right shoulder joint, measuring 8 cm x 2 cm in size, colour of contusion is red.
(10) Contusion at mid outer part of right upper arm, measuring 9 cm x 2 cm in size, colour of contusion is red, swelling around the injury present.
(11) Contusion of lower outer part of right upper arm 7 cm above the right elbow joint, measuring 5 cm x 2.5 cm in size, colour of contusion is red.
(12) Contusion at upper outer aspect of left fore arm 4 cm below the left elbow joint, measuring 3 cm x 2 cm in size, colour of contusion is red.
(13) Complain of pain at left thigh, but no evidence of external injury present, caused by – all injuries are caused by hard blunt object.
Duration -All injuries are about half day old.
Nature – All injuries are simple in nature except injury no.10 which is kept under observation and X-ray advised.”
PW-8 was stating that in so far injuries no.1 to 5 to Waheed Khan could be an outcome of a blunt object, which is compatible with the occular account of the use of lathis, as alleged by prosecution. PW-8 was finally stating that injuries of both the injured Waheed Khan (PW-3) and Alim Khan could be caused on 21.2.1989 at 5:45 P.M, attributable to the use of lathi, which is the case of prosecution. PW-8 was not subjected to any cross-examination.
PW-5 is the Radiologist of District Hospital, Mainpuri, who on 23.2.1989 carried out radiological examination of the injured Chhote Khan (PW-2) and Waheed Khan (PW-3) who on the basis of their x-ray plates prepared Report nos. 93 and 94 (Exbt- Ka-2 and 3), under his signatures, reported a fracture of left Patella in report no.93 (Chhote Khan) and that of the fracture of lower end of right radius (injury no.6 of Exbt Ka-18) of Waheed Khan (PW-3), PW-5 was also not subjected to any cross examination.
PW-7 the doctor, conducted the autopsy (Exbt-Ka-17) of the deceased Saeed Khan on 22.2.1989 at 4:45 P.M, with following ante-mortem injuries: -
“1. Contusion 15 cm x 2 cm on middle 1/3rd of left buttock.
2. Contusion 12 cm x 2 cm on back of middle 1/3rd of right thigh.
3. Gun shot wound of entrance 3 cm x 2.5 cm x cavity deep on right side chest, 5 cm below to right nipple at 4 o'clock position, margins of the wound were lacerated, inverted, blackening present around the wound, margins direction downward and backward. No tattooing, no scorching.
4. Gun shot wound of exit on back of right side chest 12 cm above to iliac crest and 13 cm below to inferior angle of scapula and 17 cm from midline, wound is 1 cm x 0.8 cm x cavity deep, direction of wound is upward. Margins are lacerated and everted. No tattooing no scorching and no blackening.”
PW-7 opined that injuries no. 1 and 2 could be an outcome of lathi injuries 3 and 4 due to single firearm shot. He also probabilised time of death on 21.2.1989 at 5:45 P.M. The defence sought to challenge the autopsy on the ground that as the size of exit wound of a gunshot was small as compared to the entry wound to which PW-7 gave a plausible explanation that in the event, number of pellets exiting the body are less than the number entering the body size of exit wound would be smaller than the size of entry wound.
DW-1, a Pradhan (1982-1988), uncle of appellants claimed false implication, as he had issued notices to the informants over encroachment of Gram Sabha land does not inspire confidence. We on above evidence find that F.I.R is prompt, eye-witnesses are credible, medical evidence is compatible with occular account of using incriminating weapons, i.e, lathi and firearm. The prosecution successfully established its case beyond any reasonable doubt.
The appeal is devoid of merit, is liable to be dismissed.
The appeal is dismissed. The appellants are on bail. Their bail stands cancelled. They shall forthwith surrender before the court concerned to serve out the remainder sentence.
Let a copy of this judgement along with record of lower court be sent to the learned District & Sessions Judge, Mainpuri for ensuring its compliance.
Order Date :- 5.9.2018 N.S.Rathour
(Krishna Pratap Singh,J.) (Pankaj Naqvi.J.)