Criminal Appeal No. 441 of 1986. Case: Mahendra Singh Vs State of U.P.. High Court of Allahabad (India)
| Case Number | Criminal Appeal No. 441 of 1986 |
| Counsel | For Appellant: Tapan Ghosh, V.M. Zaidi, G.S. Hajela, S.K. Dwivedi and P.N. Misra , Advs. and For Respondents: A.G.A. |
| Judges | Vimlesh Kumar Shukla and Om Prakash, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 161; 313; Indian Evidence Act, 1872 - Sections 134, 138, 146; Indian Penal Code 1860, (IPC) - Sections 302, 307, 34, 37 |
| Citation | 2014 (3) ACR 2461, 2014 (6) ADJ 657, 2015(1) ALJ 182 |
| Judgement Date | May 30, 2014 |
| Court | High Court of Allahabad (India) |
Judgment:
Om Prakash, J.
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This criminal appeal has been preferred by the accused/appellants against the judgement and order dated 27.1.1986 passed by the II Additional District & Sessions Judge, Shahjahanpur in Session Trial No. 482/1985 (State v. Shiv Pal Singh and others) convicting and sentencing the appellants for the offences punishable under Section 302 IPC to undergo life imprisonment and for the offence under Section 307 IPC to undergo six years rigorous imprisonment. All the sentences have been directed to run concurrently.
At the outset, it is relevant to mention here that during pendency of this appeal, the appellant No. 1 - Mahendra Singh and appellant No. 4 Virendra Singh have died. Accordingly, vide order dated 23.4.2014, this Court has abated the appeal as against the appellant No. 1-Mahendra Singh and appellant No. 4 Virendra Singh.
Now, we are proceeding to consider the present appeal in respect of rest of the appellants i.e. Shiv Pal Singh and Shri Pal Singh.
The facts of the case are that on 4.8.1985 at about 7.15 p.m. when the informant Shishu Pal Singh alongwith the deceased, who was his real brother, were returning from his field for village, accused appellants Shiv Pal Singh, Shri Pal Singh son of Sikdar Singh, Virendra son of Pratap Singh and Mahendra son of Bhoori Singh, all resident of village Jaura Khurd were coming from the village side and as and when the informant and his brother reached near the field of Buddhu Mehtar, all the above-named accused caught the both brothers. Accused Shri Pal abusing the informant and the deceased told that the father of the informant had given evidence in murder case against them, therefore, they would be killed. All the accused whipped out their tamanchas and in furtherance of their common intention opened fire on the deceased who after receiving injuries fell down on the earth and consequently died on the spot. The informant got free himself from their clutches and ran away. Accused persons also opened fire on him, due to which he also caused injuries in his leg and on his alarm the informant's father and other villager Soran Singh son of Ganga Singh and Rajpal Singh son of Chhattar Singh came there who saw the accused persons and they challenged them and also rescued the informant. All the accused ran way towards western side. The First Information Report (in short 'FIR') could not be lodged on the day of occurrence due to night and also due to injuries sustained by the informant. The dead body of the deceased Dharam Pal was lying on the spot and after arranging the means for transportation informant came to lodge FIR.
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This FIR is of dated 5.8.1985. The offence is said to have been committed on 4.8.1985. The written report scribed by one Suresh Pal Singh is Ext. Ka-3 on the lower Court record. On the basis of written report, Chik FIR, Ext. Ka-6 was got registered on 5.8.1985 at 8.40 a.m. at police station concerned mentioning all the details as had been described in Ext. Ka-3. G.D. Entry was also made, which is Ext. Ka-7.
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The Investigating Officer proceeded to place of occurrence and inquest report and other police papers photo lash, Form No. 13, sample seal, letter to R.I. and other required papers (Ext. Ka-8 to Ext Ka-12) in respect of the deceased were prepared. The Investigating Officer also prepared fard recovery obtaining the sample of simple earth and blood stained earth from the place of occurrence (Ext. Ka-4). Four empty and two live cartridges of 315 bore found on the spot were also taken into custody. The Investigating Officer also inspected the house of accused persons and took search of their houses and fard Ext. Ka-14 and Ka-15 in this regard was also prepared. The dead body of the deceased was sent for post-mortem and autopsy report Ext.Ka-1 was prepared after conducting the post mortem on 6.8.1985 at 4.00 p.m. After making the inspection of the spot, a site plan Ext. Ka-13 was prepared.
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Dr. Ramesh Kumar had conducted the post mortem on the dead body of the deceased. On external examination, the deceased was 19 years old and symptom after the death was about 2 days ago and also the deceased was good built body and the rigor mortis was passed over the body from both the upper and lower extremities. Dead body was identified by constable who had brought it. Purification was started. Eyes were coming out and tongue was tightened between the teeth. There was swelling on the body.
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On internal examination of the dead body of the deceased, following ante-mortem injuries were found:
"1. Gunshot wound of entry 1 cm X 1 cm over posterior side of chest left side 10 cm below left acromid calcicular joint directing being downwards and forward.
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Gunshot wound of entry 1 cm x 1 cm over left side back of chest 7 cm below injury No. 1. Direction was downward.
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Gunshot wound of exit 2 cm x 2 cm over posterior side of left half chest 6 cm below injury No. 2.
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Gunshot wound of entry 1 cm. X 1 cm. Over posterior side of chest left half direction being forward and slightly downward.
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Gunshot wound 1 cm x 1 cm over left side of abdomen 15 cm below injury No. 4.
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Gunshot wound of exit 2 cm x 1-1/2 cm over front side of chest left side 3 cm below left nipple.
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Gunshot wound of exit 2 cm x 2 cm over front side of chest left side 3 cm below injury No. 6.
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Gunshot wound of entry 1 cm x 1 cm over lateral side of left upper arm 15 cm below left acromind calvicular joint.
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Gunshot wound of exit 2 cm x 1 cm over left upper arm 3 cm below injury No. 8.
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Abrasion 2 cm x 3 cm over left side of chest 6 cm below injury No. 4.
According to the doctor plura and left lung were raptured at places and pericardium heart and abdominal walls were also raptured. 500 ml blood was found present. Membranes was raptured. In the cavity one metallic pellet and one litre blood was recovered. There was no defect in the abdomen and about 250 ml unidentifiable food particles were found. Small intestine was empty. In large intestine faecal matter was found present but there was no any defect.
In the opinion of doctor, the death was caused due to shock and haemorrhage as a result of ante-mortem injuries. Further, the death took place at the alleged time of incident and that the ante mortem injuries caused by gunshot being numbers 1 to 7 were sufficient in the ordinary course of nature to cause death.
Informant Shishu Pal Singh has also been medically examined on 5.8.1985 at Primary Health Centre and injury report Ext. Ka-2 was prepared, which is as under:
Fire-arm wound of Entry 3 cm to 1 cm x depth not clear, muscles are protruding out through wound. Margins are blackish. Swelling present on whole left foot. Wound is situated in front of left leg and 6 cm above left foot. Movements are restricted.
As per the doctor examining the injured, the above noted single injury was caused by some fire-arm weapon, duration of it was about 1 day old. Nature of wound was kept under observation and advised X-ray of left leg (lower part) and foot at Distt. Hospital Shahjahanpur.
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The Investigating Officers have recorded the statements of witnesses and arrested the accused persons and after completing the investigation, charge-sheet against all the accused appellants under Sections 302 IPC and 307 IPC was filed. The case being exclusively triable by session Court, was committed to the Court of sessions.
Accused/appellants appeared and charges under Sections 302 IPC and 307 IPC were framed in the trial Court against them mentioning the fact that all the accused had committed the murder of Dharam Pal in furtherance their common intention and also hurt to the informant Shishu Pal Singh in furtherance of their common intention. All the accused have denied the charges framed against them and claimed for trial.
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Trial proceeded and on behalf of prosecution, six witnesses have been examined, wherein PW-1 Ramesh Kumar, who has conducted the post mortem and prepared the post mortem report, PW-2 Dr A.K. Tripathi, who has examined the informant and prepared the injury report, PW-3 Shishu Pal Singh, who is stated to be an eye-witness of the incident, PW-4 Raj Pal Singh, who is also stated to be an aye witness, PW-5 Nawab Singh, Investigating Officer, PW-6 Jitendra Prakash Mishra, Head Constable, who has prepared the chik.
After closing of evidence, statement of accused/appellants under Section 313 Cr.P.C. was recorded.
Accused appellant Shiv Pal Singh has denied the contents of the FIR accepting the address of the informant, deceased and the accused appellants. He has also stated that Police has made a false investigation and present case has been started on the basis of enmity. Police has submitted a false charge-sheet. The same statement has been made by Shri Pal that has been made by Shiv Pal Singh stating that they were accused in a murder of Ganga Singh and Meham Singh but father of the informant was not in that case.
To substantiate the case, no oral evidence was adduced by the defence but only the dispatch register maintained at police station concerned for sending the special report has been summoned on the request of the defence in the lower Court.
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Having heard the learned counsel for the parties and going through the record, the tried Court has found that the prosecution has fully succeeded in bringing home the charges against the accused/appellants beyond reasonable doubt and the accused/appellants have been convicted and sentenced, hence this appeal.
We have heard Shri G.S. Hajela, learned counsel for the appellants, and Shri Narendra Kumar Singh Yadav, learned AGA for the State at length, and perused the entire record carefully.
Castigating the impugned judgement and order, learned counsel for the appellants has made the following submissions before us:
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There was no motive to commit the alleged offence and the motive stated by the prosecution has not been established and, thus, the appellants have been falsely implicated in this case.
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