Chief Justice's Court
Case :- CRIMINAL APPEAL No. - 1778 of 1983
Appellant :- Udai Vir Singh And Others
Respondent :- State of U.P.
Counsel for Appellant :- S.P.Singh,Ajay Kumar Pandey,Amar Saran,Apul Misra,Bhishem Pal Singh,K.R.Singh,R.P. Singh,Rajesh Kumar Srivastava,S.D.N.Singh,Satendra Singh,Vinod Kumar Sharma,Vipin Chandra Pandey,Vivek Kumar Singh
Counsel for Respondent :- Dga
Hon'ble Govind Mathur,Chief Justice Hon'ble Vivek Varma,J.
1. The appellants Udaivir Singh, Virendra Singh, Kshetrapal Singh, Kali Charan and Ram Vir Singh have filed this appeal against the judgement and order dated 29.07.1983 passed by Ist Additional Sessions Judge, Mainpuri in Sessions Trial No. 567 of 1982 convicting them under sections 148, 201 and 302/149 IPC and sentenced each of them respectively, to one year rigorous imprisonment, two years rigorous imprisonment and life imprisonment.
2. The appeal survives for appellants no. 1 (Udaivir Singh), 3 (Kshetrapal Singh) and 4 (Kali Charan). The appeal against appellants 2 (Virendra Singh) and 5 (Ram Vir Singh) has already been abated vide orders of this Court dated 10.08.2016 and 22.12.2016.
3. Prosecution case, in brief, is that on 24.10.1982, the deceased Ram Prakash alias Ramua, on account of threat from his enemies was not living in his village Dhuapur and had gone to live in his sasural (living abode of in-laws) at village Ranipur. On 24.10.1982 Ram Prakash had come to his village Dhuapur to let out his agricultural land on batai. On 25.10.1982 at about 10.00 AM, Ram Prakash, his brother Ram Bilash, Sarnam Singh, Bahadur Singh and Mohar Man Singh were sitting at the house of Bahadur Singh and were talking about the letting of the land on batai. At that time, all the appellants came there armed with guns and pistol and started firing upon the deceased Ram Prakash who died on the spot. The appellants then dragged the dead body to a near by pit and threw the same into it and ran away.
4. The deceased’s brother Ram Bilas lodged a First Information Report (F.I.R.). of the incident on 25.10.1982 at P.S. Jasrana which was registered on the same date at about 12.05 p.m. The police took up the investigation. Inquest report of dead body of the deceased was prepared, samples of plain and blood stained earth were taken from the place of occurrence and also pellets were recovered there from. The doctor on 26.10.1982 conducted autopsy of dead body of deceased. The postmortem report is Ext. Ka-2. After concluding the investigation the police submitted charge-sheet against the appellants for their having committed offences under Sections 147, 148, 149, 302 Indian Penal Code.
5. The Ist Additional Sessions Judge, Mainpuri, framed an additional charge against them under section 201 IPC. Thus the trial court framed charges under sections 148, 302/149 and 201 IPC against the appellants.
6. In the trial the prosecution produced in all five witnesses. Out of these witnesses Ram Bilas(PW-1) and Sarnam (PW-2) are the eye witnesses of the incident. PW-3, Dr. Surendra Singh is the doctor who had conducted autopsy on the body of the deceased and has proved the postmortem report. PW-4, Ali Hasan, is a police constable who had taken the dead body of the deceased to the mortuary for post mortem examination. PW-5, R.S.Solanki, is the Investigating Officer of the case.
7. The appellants in their statements under 313 Cr.P.C. denied the allegations against them and claimed false implication.
8. The trial court thoroughly analyzed the entire evidence and found that the prosecution has proved the case against the appellants beyond all reasonable doubt and accordingly convicted them for the offences for which they were charged.
9. Learned counsel for the appellants has mainly raised three submissions. Firstly, that the two eye witnesses PW-1 Ram Bilas and PW-2 Sarnam are interested witnesses and their versions have not been corroborated by any independent witness. Therefore, the entire eye witness account is based only on the testimony of interested witnesses.
Secondly, that the accused persons had made indiscriminate firing but except the deceased no one else received injuries although the said two eye witnesses and others were also present there and therefore the presence of the said witnesses at the place of occurrence becomes doubtful, and thirdly, that the doctor did not find any mark of dragging on the body of deceased.
10. Refuting the above submissions, the learned AGA submitted that the prompt lodging of the first Information Report is not in dispute and all the accused persons are named in the F.I.R. The place of occurrence has also not been challenged by the defence. The prosecution story as unfolded in the F.I.R. and the same having been corroborated by the substantive evidence on record leaves no room for doubt about the presence of the prosecution witnesses at the time and place of occurrence and in the given set of facts the eye witnesses are the most natural witnesses of the occurrence and as such their testimony cannot be discarded on the ground of their being related to the deceased and as such they are interested witnesses. The trial Court has rightly convicted the appellants.
11. We have considered rival submissions of the counsel for the parties and have perused the record.
12. It is an admitted fact that at the relevant time the deceased Ram Prakash alias Ramua was not living in his village and a day before the incident he had come to his village to let out his agricultural fields on batai to some one of his village and it was in this connection that he had gone to talk to one Bahadur Singh of his village along with his brother Ram Bilas, (PW-1). This part of the prosecution story that the deceased wanted to let out his agricultural land on batai is found stated in the F.I.R. and is also corroborated by PW-1 in his testimony before the trial court. There is nothing inherently improbable in this pre-incident factual scenario. Nor there is, even otherwise, any material on record to doubt it. It is a matter of common knowledge that agriculturists do let out their agricultural land on batai. The other part of the prosecution story that PW-1 had accompanied the deceased to the house of Bahadur Singh and was with the deceased when the incident had taken place also cannot be doubted, as there is nothing improbable in it. Even otherwise nothing has been elicited in the cross-examination of the eye witnesses PW-1 and PW-2 which may create a slightest doubt about the presence of PW-1 at the time and place of occurrence. The next segment of prosecution case relating to the fact of lodging of the F.I.R. by the PW-1 is also unblemished. The F.I.R. was lodged by PW-1 at the police station on the date of the incident at about 12.05 p.m., i.e., it was lodged just after two hours of the incident. The police station is only 5 miles away from the place of occurrence. The F.I.R. was thus promptly lodged. The PW-5 has proved the chik report Ex.Ka-3. This witness has also proved G.D. entry Ex.Ka-4 relating to registration of the case at Crime no. 189 at 12.05 p.m.
13. PW-1, in his testimony has stated that when he was sitting at the house of Bahadur Singh along with his deceased brother and PW-2 Sarnam the appellants came there armed with fire-arms and all of them fired at the deceased and killed him and thereafter they also dragged the dead body to a nearby pit and threw the same in it. This witness has fully supported his earlier version of F.I.R. in totality. We have closely examined the testimony of this witness but we could not find any material to discredit his testimony. The only suggestion given to this witness by the defence was that the deceased was killed in the darkness of night and no one had seen the incident, which was denied by him. This witness has clearly stated in his cross-examination that none of the appellants had fired towards him or others. The testimony of this witness is of such an impeccable nature that we have no option but to hold him a wholly reliable witness. The submission of the Counsel for the appellants that since this witness is a brother of the deceased his testimony needs corroboration by an independent witness has no substance. The legal position in regard to appreciation of testimony of interested and relation witness is well settled. Relationship is not sufficient to discredit a witness unless there is motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. In State of Punjab Vs. Hardam Singh reported in 2005 SCC (Cr.) 834, it has been held that ordinarily relations of deceased would not depose falsely against innocent persons so as to allow real culprit to escape unpunished, rather such witness would always try to secure conviction of real culprit. Similar view has been taken in HarbansKaur Vs. State of Haryana reported in 2005 SCC (Cr.) 1213. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. We may also add here that if the presence of such a witness at the time and place of occurrence is otherwise natural and probable his testimony should not be discarded only on the ground of his being related or interested witness. Since we have already held that the presence of this witness along with the deceased at the place and time of occurrence is natural and probable, we have no hesitation in believing his testimony.
14. So far as the eye witness PW-2,Sarnam Singh, is concerned he is a collateral of PW-1. The PW-1 has admitted the fact of his said relationship with PW-2. This witness has stated in his examination-in- chief that he resided at a distance of 10-15 paces from the house of Bahadur Singh, thus he is a resident of a place which is quite close to the place of occurrence and as such his presence at the time and place of occurrence cannot be said to be in any manner improbable. Even otherwise, there is not even a suggestion by the defence in the cross- examination of this witness that he was not present at the place and time of occurrence. This witness has fully corroborated the prosecution version relating to participation of the appellants in the incident. We do not find any reason to disbelieve the testimony of this witness.
15. The submission of the learned Counsel for the appellants that since the accused persons had made indiscriminate firing from their fire-arms but no one else, except the deceased, had received injuries is suggestive of the fact that the alleged witnesses were not present at the place of occurrence other-wise they would also have received injuries has no substance. Inasmuch as, it is an admitted fact that the deceased alone was the main enemy of the assailants and therefore they targeted him only and not others. Therefore, it was not a case of indiscriminate firing but an act of targeted killing of the deceased alone by the appellants.
15. The submission of the counsel for the appellants that since no dragging marks were found by the doctor on the body of the deceased, the prosecution case that deceased was dragged by the appellants, is false, has no substance. Inasmuch as, unless there is evidence of the manner in which the body was dragged and the kind of surface against which it was dragged it may not be possible to ascertain whether abrasions or dragging marks on the body could be caused or not. There is since no evidence in this regard as such the submission of the counsel cannot be accepted.
16. In view of our above discussion we are of the considered opinion that the prosecution has proved its case against the appellants beyond all reasonable doubts and the trial court rightly convicted them. We also find that punishment imposed upon accused-appellants by the court below is just and not excessive, in any manner.
17. The appeal of appellants Udaivir Singh, Kshetrapal Singh and Kali Charan is hereby dismissed. The conviction and sentence of these appellants in Sessions Trial No. 567 of 1982 under Section 148, 201, 302 read with Section 149 IPC, is affirmed. These three appellants are stated to be on bail. Their personal and surety bonds are cancelled and sureties are discharged. They be taken into custody forthwith to serve out the sentences imposed upon them.
18. Let a copy of this judgment alongwith Lower Court Record be sent to Court concerned for necessary compliance. A compliance report be sent to this Court.
Order Date :- 28.11.2019 Ashish