BUDHSEN AND ANR. Vs. STATE OF U.P.

JUDGEMENT

(1.) THESE two appeals by special leave arise out of a joint trial of the present appellants and Jagdish and Sugriv. All the four accused were convicted by the trial court; the present appellants were sentenced to death under Section 302 read with Section 34 I.P.C. and Jagdish and Sugriv to life imprisonment under Section 302 read with Section 109, I.P.C. They challenged their conviction by separate appeals to the Allahabad High Court. By means of a common judgment the High Court dismissed the appeal of the present appellants (Crl. A. No. 2623 of 1968) and allowed that of their co -accused Jagdish and Sugriv (Crl. A. No. 2648 of 1968). The sentence of death imposed on the present appellants under Section 302, I.P.C. for the murder of Lala Hazarilal was confirmed.

(2.) ACCORDING to the prosecution story Jugdish and Sugriv related to each other as cousins belonged to village Bidrika. They used to harass the poor inhabitants of that village whereas deceased Hazarilal used to espouse their cause. As a result, there was not much love lost between Jagdish and Sugriv on the one side and Hazarilal on the other. Some years ago Jagdish, along with some others, was prosecuted for forging accounts of a Co -operative Society and was found guilty by the Assistant Sessions Judge, though released on probation under the U.P. First Offenders' Probation Act. Bhoodev, at whose instance, that prosecution was initiated, presented a revision petition in the High Court against the order of the Assistant Sessions Judge challenging the benefit given to Jagdish under the U.P. First Offenders' Probation Act. The High Court allowed the revision on July 26, 1967 and imposed on Jagdish a substantive sentence of rigorous imprisonment for two years. Bhoodev had the support of Hazarilal in the trial court and the revision to the High Court was also preferred by him at the instance of Hazarilal. This further enraged Jagdish and Sugriv and Jagdish is stated to have threatened Hazarilal with death about ten days before his murder. This happened before Jagdish was taken into custody pursuant to the order of the High Court imposing on him the sentence of imprisonment. This was alleged to be the immediate motive for Hazarilal's murder. In 1962 also Jagdish and Sugriv had also been prosecuted by Hazarilal under Section 452/326 and Section 147, I.P.C. but they were acquitted. Ever since then, according to the prosecution, Jagdish and Sugriv had been harbouring ill feelings towards Hazarilal and planning to have him murdered through hired assassins. On September 11, 1967 Ghaziuddin (P.W. 2) is stated to have gone to the house of Jagdish and saw Jagdish and Sugriv in the company of four unknown persons and over -heard Jagdish saying that the said four persons had left the job unfinished though they had visited the village often and telling them that the balance would be paid to them only after the job was accomplished. The following day at about 10 a.m. when it was drizzling Hazarilal was sitting in his Gher also described as Nohara on a cot and his brother Inderjit (P.W. 1) and Kanwar Sen (P.W. 3) were squatting on a heap of fodder nearby. They were all sitting in the Duari because that was the only place which provided protection against rain. Suddenly four unknown persons entered the Nohra through the Duari. Two of them caught hold of Inderjit and Kanwar Sen, one of them sat on the cot of Hazarilal and pressed his legs and the fourth who was carrying a red jhola in his hand, took out a pistol from the jhola and fired at Hazarilal from point blank range. Hazarilal fell down. The fourth man re -loaded his pistol and fired another shot which hit Hazarilal on the chest killing him instantaneously. Inderjit and Kanwar Sen raised alarm. On hearing their alarm and the sound of pistol fire, Ram Singh, Imam Khan and Ranchor (P.W. 4) came to the scene of occurrence and saw the four assailants running away from the Nohra. According to the prosecution, the four unknown assailants murdered Hazarilal at the instigation of Jagdish and Sugriv. First information report was lodged by Inderjit at police station Iglas, about ten miles away from the place of occurrence at 2.35 p.m. the same day (September 12. 1967) On his return from the police station Inderjit met Ghaziuddin (P.W. 2) from whom he learnt, what he (Ghaziuddin) had seen and heard a day previous, at the house of Jagdish. S. K. Yadav, Sub -Inspector with whom the F.I.R, was lodged reached the scene of the occurrence at 6.15 p.m. the same day. He found one discharged cartridge and two wads at the place of the occurrence. He recorded the statements of some witnesses, including Ghaziuddin on the following day. Further investigation was conducted by Sub -Inspector Harcharan Singh (P. W. 21). Jagdish and Sugriv on whom suspicion had fallen were not traceable with the result that warrants for their arrest were made over to Sub -Inspector Yadav. Proceedings under Sections. 87 and 88, Cr. P.C. were started against them but soon thereafter they surrendered themselves in court on September 29, 1967. During investigation the Investigating Officer learnt about the complicity of the present appellants and Naubat was arrested on October 9, 1967. Budhsen, however, was arrested in connection with some other case on October 14, 1967 by Sasni police. Magistrate Pratap Singh (P.W. 20) held identification parade of Naubat on October 21, 1967 and of Budhsen on October 28, 1967.

(3.) ON appeal the High Court re -summoned Lakhan Singh, Head Constable of Thana Sasni, District Aligarh, who had already appeared at the trial as P.W. 14 and recorded his additional statement. Lakhan Singh had taken Budhsen in custody at police station Sasni. His statement as P.W. 14 left some doubts in the minds of the Judges of the High Court to clear which it was considered necessary to examine him again in the High Court. After considering the entire evidence the High Court acquitted Jagdish and Sugriv but maintained the conviction and sentence of Budhsen and Naubat, appellants. The statement made by Ghaziuddin, (P.W. 2) was not believed by the High Court and his version was described as unnatural and improbable. That court also ignored the evidence of Chandrapal (P.W. 5), Girendra Pal Singh (P.W. 7) and Lakhanpal (P.W. 8) on the ground of their being either irrelevant or unreliable. The existence of inimical relations between Jagdish and Sugriv on one side and Hazarilal on the other was not considered to be a sufficiently strong circumstance against Jagdish and Sugriv so as to hold them guilty of instigating Hazari -lal's murder. As against Naubat and Budhsen, appellants in the opinion of the High Court primary evidence consists of their identification by some of the witnesses. The court took into consideration the identification parade for Naubat held by Magistrate Pratap Singh on October 21, 1967 and that for Budhsen on October 28, 1967. It was principally the evidence of Identification on which reliance was placed for holding the present appellants to be responsible for the murder of Hazarilal. The three witnesses on whose evidence in regard to the identification the High Court relied are Inderjit, Kanwar Sen and Ranchor. The additional evidence recorded by the High Court consisted of the statement of Lakhan Singh. That court also inspected the original entries in the general diary of the police as well as their carbon copies. Lakhan Singh stated in the" additional evidence that he had made entry at sl. no. 9 of the general diary of the original report under Section 307, I.P.C. and Section 25 Arms Act made by Pannalal against Budhsen (Ex. Ka. 10). He denied that blank space had been left in the general diary for entering the particulars of the pistol (tamancha) and cartridges etc. In regard to this denial in Lakhan Singh's statement the High Court observed that the weapon of offence with which the offence under Section 307, I.P.C. was said to have been committed by Budhsen was probably a later addition though the court did not consider it proper to record a firm finding to that effect. A major part of the judgment of the High Court is confined to the evidence in regard to the identification parade and to the question whether the identifying witnesses had an opportunity of seeing the appellants before their identification. Holding that there was no opportunity for those witnesses to see the appellants before their identifications the court confirmed their conviction and sentence ap already observed.