State Of U.P vs Gajadhar Singh & Ors

State of U.P. ..Appellant

Versus

Gajadhar Singh and Ors. ..Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in the present appeals is to the judgment of a Division

Bench of the Allahabad High Court allowing the appeal filed by the

respondents. The respondents were found guilty of offence punishable

under Sections 302, 307 read with Section 149 of the Indian Penal Code,

1860 (in short the `IPC') by the trial Court. It is to be noted that two appeals

were filed before the High Court by the convicted accused persons. Criminal Appeal No.2007/1997 was preferred by Gajadhar Singh

(respondent No.1) and Criminal Appeal No.1963/1997 was preferred by

Janardan Singh, Sarvajit Singh, Suresh Singh, Umesh Singh, Mritunjai

Singh and Haribhan Chaudhury. The High Court dismissed the appeal of

respondent No.1-Gajadhar but set aside the conviction so far as appellants

in the other appeal before it. However, so far as Gajadhar is concerned his

conviction in terms of Section 307 read with Section 149 IPC was altered

and he was convicted under Section 323 read with Section 149 IPC. So far

as other appellants are concerned their convictions under Section 302 and

307 both read with Section 149 IPC were set aside and instead they were

convicted under Section 323 read with Section 149 IPC. The conviction

under Section 147 IPC was affirmed.

2. Background facts in a nutshell are as follows:

The accused Gajadhar Singh and Umesh Singh are real brothers being

sons of Ram Vichar Singh while Sarvajit Singh accused is son of Janardan

Singh. Janardan Singh is the first cousin of Ram Vichar Singh as their

fathers were real brothers. The remaining two accused, namely, Mritunjai

Singh and Haribhan Chaudhury belonged to their group. Janardan Singh

2 was earlier the Pradhan of Gaon Sabha Bankara Saiyed Bukhara. In the

election scheduled to be held in April, 1995, the office of Pradhan of the

said Gaon Sabha was reserved for a person belonging to backward caste.

Janardan Singh then set up Haribhan Yadav (Chaudhary) while Chandra

Bhan Singh (hereinafter referred to as `deceased') set up Ramakant Yadav

as candidate for the office of Pradhan. Janardan Singh himself filed his

nomination papers for the membership of Block Development Committee

while deceased Chandra Bhan Singh proposed the name of Shri Ram Bhar

for the said office. The election for the office of Pradhan commenced in the

morning of 7.4.1995 and the polling station was in the primary school of the

village. Chandra Bhan Singh was also the polling agent of Ramakant

Yadav. Shortly after commencement of the polling, Janardan Singh and

some persons of his group started creating disturbance and resorted to

rowdism. Chandra Bhan Singh asked them not to create any disturbance and

to allow the poll to be conducted in a peaceful manner. Janardan Singh then

exhorted his companions that he should be beaten. Thereafter Janardan

Singh and Sarvajit Singh each caught one hand of Chandra Bhan Singh and

Gajadhar Singh fired from a country made pistol upon him and the shot him

upon his chest. Shivji Yadav, Deedan Singh and Keshav rushed forward to

save him but the accused Suresh Singh Umesh Singh, Mritunjai Singh and

3 Haribhan assaulted them with lathis. Chandra Bhan Singh fell clown and

died on the spot. The injured Keshav Singh Shivji and Deedan Singh

thereafter went to the PHC Siyar where medical aid was given to them and

they were also medically examined. Keshav Singh got the FIR of the

incident scribed by Raghav Singh and lodged the same at 12.40 p.m. at

Police Station, Ubhav which is at a distance of 4 miles from the place of

occurrence. Udai Bhan Singh (PW-6), clerk-constable, registered a case in

the general diary on the basis of the FIR lodged by Keshav Singh. Subhash

Chandra Sonkar (CW-2), SI Commended investigation of the case and

immediately proceeded for the spot. The dead body of Chandra Bhan Singh

was lying in front of the building of primary school in village Bankara

Saiyed Bukhara. He found blood on the spot and collected plain and

bloodstained earth from there and prepared its recovery memo. He also

prepared a site-plan with the assistance of Keshav Singh and his statement

under section 161 of the Code of Criminal Procedure, 1973 (in short the

`Code') was also recorded by him. After completing other formalities, the

body was sealed and was sent for Post-mortem examination. Subsequently,

the investigation was handed over to T.P. Nanda (P.W.7), who recorded

statements of some others witnesses.

4 After completion of investigation charge sheet was filed. As the

accused persons pleaded innocence, trial was held.

Prosecution examined seven witnesses including the three eye

witnesses. The accused examined one witness in support of their plea of

innocence. As per the directions of the Court three persons were examined

as court witnesses. The learned Sessions Judge believed the case of the

prosecution and convicted and sentenced the accused as noted above.

Before the High Court in the appeals, the primary stand was that the

prosecution evidence was not reliable. The High Court did not accept the

stand. The High Court held that it was established beyond any shadow of

doubt that Gajadhar had fired upon the deceased Chandra Bhan at 7.45 a.m.

on 7.4.1995 in front of the building of the primary school which resulted in

his death. So far as other accused persons are concerned the High Court

noticed that the evidence was insufficient. The High Court, therefore, was

not inclined to believe that part of the prosecution case wherein the role of

catching hands of the deceased was assigned to the accused Janardan and

Sarvajit Singh. So far as remaining four accused persons are concerned the

High Court noted that they allegedly did not cause any injury to the

5 deceased. They were armed with lathis but they did not assault the deceased.

They were alleged to have caused injuries to three persons, but all the

injuries caused by them were found to be simple in nature. In that view of

the matter the High Court found that the common object of the assembly

was not to commit the murder of the deceased and it was the solitary act of

Gajadhar Singh which resulted in his death. So far as conviction under

Section 307 read with Section 149 IPC is concerned after referring to the

nature of injuries sustained by three injured it was held that Section 307

read with Section 149 IPC had no application and instead appropriate

conviction would be under Section 323 read with Section 149 IPC.

Accordingly, it altered the conviction.

3. In support of the appeals, learned counsel for the appellant submitted

that the accused persons had caused injuries. The evidence of PWs had

clearly established the accusations and, therefore, the High Court should not

have altered the conviction as was done by the trial Court.

4. Learned counsel for the respondents on the other hand supported the

judgment.

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5. It is to be noted that conviction of Gajadhar for offence punishable

under Section 302 read with Section 149 IPC has been affirmed and the

conviction for offence in terms of Section 307 read with Section 149 IPC

has been altered. The appeal filed by the State of U.P. so far as accused

Gajadhar-respondent No.1 is concerned appears to be without any

substance. So far as other accused persons are concerned, the High Court

has in great detail referred to the evidence and directed acquittal of the other

accused persons.

6. The evidence on record clearly established that the pistol was

concealed and was not visible to anyone. The High Court rightly noted that

the evidence adduced by the prosecution did not establish that remaining

accused persons had any knowledge that Gajadhar was carrying a country

made pistol or that he would go to shoot the deceased. The testimony of

PW-2 shows that Janardan was initially asking the voters not to caste vote

for Ramakant Yadav but to vote for his candidate and subsequently he had

resorted to rowdism in order to disturb the voting process so that Ramakant

Yadav may not win the election and that simple injuries were caused by

blunt weapon to three persons. Therefore, as rightly observed by the High

Court the common object of the assembly was not to commit the murder of

7 Chandra Bhan Singh and it was the solitary act of Gajadhar. PW-2 had also

stated that he had not seen the lathis or country made pistol in the hands of

any of the accused persons at the time when Janardan was disturbing the

voters and was asking them not to caste vote in favour of Ramakant Yadav.

PW-4 i.e. Constable on duty had also stated that there was fight between the

parties regarding disturbance in voting.

7. In view of the aforesaid factual position, we are not inclined to

interfere in these appeals which are accordingly dismissed.

........................................J. (Dr. ARIJIT PASAYAT)

........................................J. (ASOK KUMAR GANGULY) New Delhi, February 11, 2009

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