Moti Lal & Ors vs State Of U.P

No. 2405 of 2002 by which the conviction of the

appellants under Sections 148, 302 read with Section 149,

Section 307 read with Section 149, Sections 452 and 427

of the Indian Penal Code (IPC) recorded by the Sessions

Court in Sessions Trial No. 184 of 1995 is upheld except

in case of appellant Sharda Singh whose conviction

recorded under Section 148, IPC is altered to one under

Section 147, IPC whereas punishment of death sentence

imposed on the appellants Moti Lal, Surendra Singh,

Virendra Singh, Amar Singh and Dhunnan Singh is reduced

to one of rigorous imprisonment for life but other

punishments imposed on all the appellants for commission 2

of offences punishable under Sections 302 read with

Section 149, Section 307 read with Section 149, Sections

452 and 427 are upheld.

2. The facts leading to the present appeal are that on the

night intervening 24th/ 25th June, 1994 at about 1.45

a.m., one Motilal, Surendra Singh, Virendra Singh,

Sharda Singh, Miyadi @ Ram Miyadi Singh, Dhunnan Singh,

Amar Singh (all are appellants herein) along with Anil

Singh (not approached this Court) and Thagai Singh

(died during trial) armed with deadly weapons entered

the house of one Sita Ram Singh and attacked him and

other family members, resulting instantaneous death of

Sita Ram Singh and his two sons namely Surinder Singh

and Jai Govind and also injuries to the other family

members of Sita Ram Singh. The assailants had also set

fire to a motorcycle parked in the house of the

deceased Sita Ram Singh. In the attack, the appellants

used country made pistols (katta), gun, bomb, iron rod

(ramma), pharsa fitted lathi etc. The cause of attack

is due to rivalry between the family of deceased Sita

Ram Singh and the attacking party over a piece of farm

land in respect of which some cases were pending in the

Civil Courts.

3. Smt. Manju Singh (PW5) is the wife of the deceased Sita

Ram Singh who also sustained the injuries in the said

attack. She is the informant who rushed to the police 3

station Hata on the same night and got prepared report

(Ex. Ka-1) based on which the First Information Report

(Ex. Ka-43) was issued at about 2.40 am for the

offences punishable under Sections 147, 148, 149, 302,

307 and 427, IPC against nine persons including the

appellants herein.

4. The injured were immediately sent to Primary Health

Center, Hata where they were medically examined by

Dr. Ghan Shyam Singh (PW8) between 5.30 and 6.30 a.m.

Mr. Umesh Chandra Misra, Investigating Officer (PW9)

visited the place of occurrence and found the dead

bodies of Sita Ram Singh, Surendra Singh and Jai

Govind. He seized the remnants of the burnt motorcycle

(Ext. Ka-37), the blood stained ramma (iron rod with an

edge on one end), empty cartridges, wads and pellets

from the spot (Ext. Ka-34 and Ka-35) and prepared a

site map, recorded statements of the injured and others

who were found to be conversant with the incident,

made inquest report (Ext. Ka-13, Ka-14 and Ka-15) and

sent the dead bodies for post-mortem. On the same day,

he arrested Sharda Singh, Anil Singh, Virendra Singh,

Thagai Singh (died during trial) and Surendra Singh and

also recovered one licensed gun (Ext. Ka-38) from the

house of one Toofani Singh who was found murdered

before half an hour of the present occurrence. Dr. K.

Singh (PW7) conducted post-mortem on 26th June, 1994, 4

found ante mortem injuries on the persons of deceased

and opined the cause of death as "shock and

haemorrhage". The post-mortem reports are Exts. Ka-2,

Ka-3 and Ka-4. The Doctor's opinion and the details of

ante mortem injuries on the persons of the deceased

need not be referred in detail as they have been

noticed by the Courts below. On completion of

investigation, the I.O. submitted charge-sheet against

Motilal, Surendra Singh, Virendra Singh, Dhunnan Singh,

Miyadi Singh and Anil Singh for commission of offences

punishable under Sections 148, 302 and 307 read

with 149, 452 and 427 IPC whereas Sharda Singh, Amar

Singh and Thagai Singh were charged with the

offences punishable under Sections 147, 302 and 307

read with Section 149, 452 and 427, IPC.

5. Cognizance of the offences was taken by the Magistrate

who committed the case to the Court of Sessions vide

Sessions Trial No. 184 of 1995. The appellants pleaded

not guilty and preferred trial. The learned Sessions

Judge, upon appreciation of evidence and material

available on record, found that the prosecution has

successfully established its case and accordingly found

the appellants guilty of various offences and sentenced

them vide judgment dated 11th June, 2002. The details of

the conviction and sentence awarded are as under:

Name of Appellan Provisions under Sentence 5

the t No. which convicted Awarded accused Moti Lal 1 Section 302 read Death Penalty and a with Section 149, fine of Rs.10,000/-

IPC in default, S.I. for 3 years.

Section 307 read R.I. for 7 years and with Section 149, fine of Rs.2,000/-, IPC in default S.I. for 1 year.

Section 452, IPC R.I. for 1 year and fine of Rs.500/- in default, S.I. for 3 months

Section 427, IPC R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3 months

Section 148, IPC R.I. for 1 year

Surendra Same as shown Same as shown against Singh 2 against Appellant Appellant No.1 No.1 Virendra Same as shown Same as shown against Singh 3 against Appellant Appellant No.1 No.1 Amar Singh Same as shown Same as shown against 4 against Appellant Appellant No.1 No.1 Dunnan Same as shown Same as shown against Singh 7 against Appellant Appellant No.1 No.1 6

Sharda 5 Section 302 read Life imprisonment and Singh with Section 149, fine of Rs.10,000/-, IPC in default, S.I. for 3 years. Section 307 read R.I. for 7 years and with Section 149, fine of Rs.2,000/-, IPC in default, S.I. for 1 year.

Section 452 R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3 months.

Section 427, IPC R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3 months. Section 148, IPC R.I. for 1 year

Miyadi 6 Same as shown Same as shown against Singh against Appellant Appellant No.5 No.5

6. The learned Sessions Judge ordered the sentence to run

concurrently and further referred the matter to the

High Court for confirmation of death penalty as is

required under Section 366 of the Code of Criminal

Procedure. All the convicts jointly preferred Criminal

Appeal No. 2405 of 2002 before the High Court of

Judicature at Allahabad challenging their conviction

under different provisions of I.P.C. and imposition of

sentences.

7. The High Court, by the impugned judgment dated 14th

July, 2003, while rejecting the reference made by the

learned Sessions Judge for confirmation of death

penalty, awarded life sentence to the appellants Moti

Lal, Surendra Singh, Virendra Singh, Amar Singh and 7

Dhunnan Singh for the offence committed under Section

302 read with Section 149, IPC and maintained their

conviction recorded under Sections 307 read with

Section 149, Sections 452, 427 and 147, IPC and

sentences imposed by Sessions Court. The High Court

also confirmed conviction of Sharda Singh, Miyadi Singh

and Anil Singh under Section 302 read with Section 149,

Section 307 read with Section 149, Sections 452, 427

and 148, IPC and sentences imposed for commission of

those offences. The High Court further altered

conviction of appellant Sharda Singh under Section 148,

IPC to one under Section 147, IPC while maintaining the

sentence. Aggrieved by the judgment of the High Court,

the appellants preferred the present appeal.

8. We have heard learned counsel appearing for the

appellants as well as the State and considered the

record of the case.

9. The prosecution, in support of its case, mainly relied

upon the evidence of Smt. Manju Singh (PW5) and Smt.

Kaushalya Devi (PW6). Be it noted that Smt. Manju Singh

sustained (1) two round lacerated wound of 0.5 c.m.

Radius each present in an area of 1 c.m. on front of

right thigh, 18 c.m. above right knee joint bone.

Bleeding was present; and (2) two round lacerated

wounds of 0.5 c.m. radius each present at a distance of

4 c.m. from each other in right groin, 10 c.m. above 8

injury No.1. Bleeding with clotted blood was found

present. It was found that injuries were caused by

firearm, simple in nature and were fresh in duration.

She is the crucial witness and the entire case mainly

centres around her evidence. She, in clear and

categorical terms, stated that her husband Sita Ram

Singh and two sons Surendra Singh and Jai Govind were

murdered. On the fateful day, they were sleeping in the

house in the Chhappar of Dalan. The appellants Ram

Miyadi, Amar Singh, Moti Lal, Surendra Singh, Virendra

Singh, Dhunnan Singh, Sharda Singh along with Anil

Singh and Thagai Singh (since died during trial) barged

into her house. Anil Singh was holding gun, Sharda

Singh was having lathi, Miyadi was having bomb and Moti

Lal was holding katta (country made pistol). Surendra

Singh and Virendra Singh were also having kattas. Amar

Singh was having pharsa fitted with lathi. Anil Singh

and Virender Singh were sons of Sharda Singh. Dhunnan

Singh was armed with ramma. At the relevant time, the

lights were on in the house. Smt. Kaushalya Devi (PW6)

was also sleeping inside the house. Immediately upon

entering into the house, the appellants started abusing

the inmates and indulged in attack during which she

also sustained injuries on her body. The appellants hit

her husband and two sons with the weapons in their

hands. It is in her evidence that her husband and two 9

sons died on the spot due to the injuries inflicted

upon them by the appellants. She also stated that

amongst others, Smt. Kaushalya Devi (PW6) had also

witnessed the occurrence. She also deposed that the

appellants set fire to the motor cycle that was parked

in the house. Upon hearing the sounds of bomb, guns and

shrieks neighbours came to the spot and witnessed the

occurrence. That immediately after the occurrence, she

went to police station, Hata and got prepared report

(Ext. Ka-1) from one Dwarika Tiwari, resident of Hata

and lodged report at police station. The appellants

were in inimical terms with Bichari Singh Vakil who

belonged to her family and there was a litigation

pending between them in respect of a piece of farm

land. It is also in her evidence that few minutes

before the incident, one Toofani Singh was murdered.

She explained that the other witnesses Smt. Vijai

Laxmi, Smt. Bela Devi, Ram Lachhan Singh and Ram Bilas

were won over by the appellants. Though this witness

was subjected to intense cross-examination, nothing

could be brought on record to impeach her credibility.

During her cross-examination, minor discrepancies with

reference to her earlier statement recorded under

Section 161, Cr.P.C. were brought on record which are

trivial in nature and the Courts below rightly ignored

them. She herself was injured in the incident, 10

therefore, her presence at the time and place of

incident can hardly be doubted.

10.Smt. Kaushalya Devi (PW6), wife of Bichari Singh Vakil

corroborated the statement of Smt. Manju Singh (PW5).

She stated that she was sleeping inside her house and

woke up upon hearing the sounds of bomb blast. She

heard the appellants shouting that the deceased killed

Toofani singh and therefore, no one in his family

should be spared of their life. It may not be necessary

to repeat and recapitulate what has been stated by her

except to notice that she broadly corroborated the

statement of PW5. It is in her evidence that her

sister-in-law--Smt. Manju Singh (PW5) went to police

station, Hata to lodge report to police. She also

stated that there was enmity regarding a piece of farm

land between her husband Bichari Singh and Toofani

Singh and it so happened that Toofani Singh was

murdered in the same night. Her evidence is fully

corroborated by the testimony of PW5 and as well as the

other evidence available on record.

11. Be it noted, the appellants have not disputed the date

and place of occurrence. According to the prosecution,

the incident took place on the intervening night of

24th/25th June, 1994 at about 1.45 a.m. The report of

occurrence was lodged at 2.40 a.m. on the same

intervening night. The police station is at a distance 11

of about five kilometres. It is in the evidence of Smt.

Manju Singh (PW5) that she went to police station on a

cycle of an unknown person. The fact remains that she

and other injured persons were examined between 5.30

and 6.30 a.m. on 25th June, 1994. Dr. Ghanshyam Singh

(PW8) who examined the injured persons, in clear and

categorical terms, stated that the injuries could have

been caused at 1.45 am in the same night. In the

circumstances there is nothing on record to disbelieve

her evidence.

12.In this appeal, Shri Nagendra Rai, learned senior

counsel appearing on behalf of the appellants

strenuously contended before us that the appellants

have been falsely implicated due to enmity between the

parties. According to him, the first information report

was not lodged at 2.40 a.m. as alleged by the

prosecution but it was lodged during day time after due

deliberations to falsely implicate the appellants. The

contention was that no crime number was mentioned in

the injury report as well as inquest and it is clearly

apparent even to a naked eye that there was

interpolation in the first information report as

regards the timing which makes claim of Smt. Manju

Singh highly unbelievable that in that atmosphere, she

went to the police station on the bicycle of an unknown

person and lodged the first information report. Another 12

aspect highlighted by the learned counsel was that

Dwarika Tiwari who is stated to be the scribe of the

report was not examined. These factors according to the

learned senior counsel cast a shadow and doubt on the

prosecution story.

13.Both the Courts below found that there is some

overwriting in the original report (Ka-1) and Chick FIR

(Ka-43) as regards the timing. Initially, it was

written as 1.30 a.m. in the night and subsequently some

re-writing was made and time of occurrence was shown as

1.45 a.m. There is no dispute that Toofani Singh was

murdered at about 1.30 a.m. in the same night and the

present incident admittedly has taken place subsequent

to the murder of Toofani Singh. It is thus clear that

the occurrence had taken place after 1.30 a.m.

Admittedly, the murder of Toofani Singh and occurrence

in the present case had taken place one after the other

in that sequence at different places. It is not in

dispute that the houses of Toofani Singh and deceased

Sita Ram Singh are not adjacent to each other. In the

circumstances, there cannot be any doubt whatsoever

that the incident had taken place at about 1.45 a.m.

after the murder of Toofani Singh at about 1.30 a.m. As

rightly observed by the Courts below, the police in

some confusion, initially treated the present case as

the cross case of Crime No. 151 of 1994 concerning the 13

murder of Toofani Singh and accordingly registered the

case as Crime No. 151A of 1994. It is evident from the

evidence of Umesh Chandra Misra, the Investigating

Officer (PW9) that it was a mistake on their part to

register the present case as a cross case. Having

regard to the facts and circumstances of the case, the

corrections, if any, made by the Investigating Officer

or the Station House Officer, as the case may be, in

the first information report do not have any vital

bearing on the case of the prosecution. On that score

lodging of the first information report itself cannot

be doubted. Once it is conceded that the occurrence had

taken place after the murder of Toofani Singh at about

1.30 a.m. on the same intervening night, the

overwriting in first information report, if any, itself

has no material bearing on the prosecution's case.

14.An analysis of the sequence of events apparent from

the record would reveal that admittedly there was

enmity between the appellants and Bichari Singh Vakil

who is none other than the elder brother of deceased

Sita Ram Singh with regard to some landed property.

Toofani Singh, who is none other than the real brother

of appellant Sharda Singh was murdered at about 1.30

a.m. on the same intervening night and the appellants

suspected that the murder was committed by Bichari

Singh and his family members. The suspicion entertained 14

by the appellants about the involvement of the deceased

led to the murderous attack on deceased Sita Ram Singh

and his family members. Bichari Singh Vakil escaped

from the wrath of the appellants as he was not in the

village on that particular day. These facts are

clearly evident from the evidence of Smt. Manju Singh

(PW5) and Smt. Kaushalya Devi (PW6). In the

circumstances, the alteration, if any, made in the

first information report as regards the time of

occurrence is not of much significance.

15. Secondly, the distance between the place of occurrence

and the police station is about five kilometres. Smt.

Manju Singh (PW5) was not seriously injured. She

explained that her husband and two sons were killed on

that fateful intervening night of 24th/25th June, 1994

and there was no male members left in the house and it

was under those circumstances she had to muster her

courage and reach the police station to lodge first

information report. We find no reason whatsoever to

doubt her statement in this regard. It is true that she

admitted in her evidence that apart from the other

injured persons, one Uday Singh who was not injured was

also present in the house, but it is not brought on

record as to who this Uday Singh was. There is nothing

strange in Smt. Manju Singh securing the help of a

person who dropped her at the police station on his 15

bicycle. Non-examination of the said person and equally

the non-examination of the scribe of the first

information report, in our considered opinion, are not

that fatal to doubt the entire prosecution story. There

is nothing unnatural and improbable in Smt. Manju Singh

reaching the police station and lodging the first

information report at about 2.40 a.m.

16.The omission on the part of the Investigating Officer

in not mentioning the case number in the injury report

and inquest is not a ground by itself to doubt the

reliable and clinching evidence adduced in this case by

the prosecution. The Investigating Officer may have

committed an error in registering the first information

report lodged by PW5 as a cross case initially to that

of Toofani Singh's murder case which he rectified

subsequently. The Investigating Officer may not have

been that diligent that led to making some corrections

in the first information report but that is no reason

to reject the evidence of Smt. Manju Singh (Pw5). The

courts below rightly appreciated the evidence available

on record and found the so-called interpolation in the

first information report, if any, itself was no ground

to doubt the prosecution's story.

17.Learned senior counsel further submitted that presence

of PW6 (Smt. Kaushalya Devi) at the place of occurrence

is highly doubtful since her name is not mentioned in 16

the first information report lodged by Smt. Manju Singh

(PW5). It is well settled that the first information

report need not contain every minute detail about the

occurrence. It is not a substantive piece of evidence.

It is not necessary that the name of every individual

present at the scene of occurrence is required to be

stated in the first information report. It is true that

Smt. Kaushalya Devi (PW6) admitted in her cross

examination that she was residing in Gorakhpur in

connection with the education of her minor daughter.

But she also stated that she very often comes to her

village to look after cultivation of lands and

household affairs. It is in her evidence that she came

to the village about 4 - 5 days prior to the

occurrence. It is an admitted fact that deceased Sita

Ram Singh and Bichari Singh, husband of Smt. Kaushalya

Devi are real brothers and residing in the same house

in the village, but in separate portions. Bichari Singh

has interest in the lands possessed by the family in

the village. There is nothing improbable in Smt.

Kaushalya Devi frequently visiting the village and

staying in the house at her own convenience. It is

relevant to note that the Investigating Officer (PW9)

stated that on 26.6.1994, he visited the spot and

examined PW6 along with other witnesses. Therefore,

there is no reason to disbelieve her statement that she 17

was very much present on that fateful night at the

scene of occurrence.

18.Learned senior counsel further contended that absence

of injuries on the person of Smt. Kaushalya Devi (PW6)

makes her presence at the scene of occurrence doubtful.

This aspect of the matter has been clearly explained by

PW6 who was subjected to very rigorous cross

examination that when she came out of her room to see

as to what was happening, the appellants Moti Lal and

Virendra Singh after spotting her, chased her and she

ran away and re-entered into her room and bolted the

doors from inside. Two shots were fired aiming at her

out of which one hit the door and the other went

through the window hitting the inner wall of the room.

She saved herself from those two shots aimed at her. We

do not find any reason to disbelieve her evidence in

this regard as to how she escaped from getting injured

in the melee.

19.It was lastly contended that even if the prosecution's

case is to be accepted, the appellants Sharda Singh and

his son Anil Singh are entitled to benefit of doubt.

The submission was that their presence at the scene of

offence is highly doubtful in view of the categorical

admission made by the Investigating Officer (PW9) that

both of them were present in the police station at 2.10

a.m. to lodge information about Toofani Singh's murder 18

that had taken place in the same intervening night. We

express our inability to accede to the submission made

in this regard. The occurrence took place in the

midnight at about 1.45 a.m. The distance between the

police station and the place of occurrence is only

about five kilo meters which could easily be covered

within 10-15 minutes. May be the said appellants went

to the police station to inform about the murder of

Toofani Singh and they may have been present in the

police station at about 2.10 a.m. Their presence in the

police station at 2.10 a.m. does not rule out their

presence at the scene of offence at about 1.45 a.m. The

eye-witnesses Smt. Manju Singh and Smt. Kaushalya Devi,

in specific terms, stated in their evidence about

presence of these two appellants at the scene of

offence. They may have been present at the police

station at about 2.10 a.m., but on that count, their

participation in the murderous attack on the deceased

at about 1.45 a.m. cannot be ruled out.

20.The ocular evidence of PWs 5 and 6 and the medical

expert's (PW7) evidence leads us to an irresistible

conclusion that the appellants are guilty of all the

charges levelled against them and the Courts below

rightly convicted all of them for the charged offences.

21.No other point is urged.

19

22.For the aforesaid reasons, we do not find any error

whatsoever to have been committed by the High Court.

The High Court properly re-appreciated the entire

evidence available on record, considered all the

submissions that were made and arrived at the correct

conclusion to confirm the conviction of the appellants

under various Sections mentioned hereinabove. This

Court, in exercise of its jurisdiction under Article

136 of the Constitution, normally does not interfere

with such concurring finding of facts arrived at the

Courts below upon proper appreciation of evidence

available on record unless it is shown that such

appreciation suffers from any manifest error resulting

in miscarriage of justice. In the present case, we are

satisfied that the Courts below properly appreciated

the evidence and rested their conclusions mainly

relying upon the evidence of PWs 5 and 6 and the

evidence of forensic expert Dr. K. Singh (PW7). We

accordingly find no merit in this appeal.

23.The appeal shall accordingly stand dismissed.

....................................................J. (B. SUDERSHAN REDDY)

NEW DELHI, ......................................................J. DECEMBER 2, 2009. (J.M. PANCHAL)