KALYAN SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment dated January 20, 1982 passed by the Division Bench of Allahabad High Court in Government Appeal No. 2256 of 1974 preferred against the judgment of acquittal dated June 20, 1974 passed by the learned Sessions Judge, Bareilly in Sessions Trial No.247 of 1973. The four accused, namely, Maharaj Singh, Kalyan Singh, Gaya Singh and Munney Singh were charged under S. 302 read with S. 34, I.P.C. for murdering Narendra Singh on March 6, 1973 at about 9.00 a.m. near the Tiraha of Badaun-Bareilly road. Soon after the acquittal by the learned Sessions Judge, the accused No. 1, Maharaj Singh, was murdered and service against Munney Singh, accused No. 4, not having been effected, the appeal against acquittal against him was separated and the High Court considered the appeal against accused No. 2, Kalyan Singh, and accused No. 3, Gaya Singh, in the said Government Appeal No. 2256 of 1974. It may be stated here that Maharaj Singh and Kalyan Singh were the real brothers and Gaya Singh is the son of Maharaj Singh and Munney Singh is the son-in-law of Maharaj Singh.

(2.) The prosecution case as disclosed in the First Information Report is to the effect that the deceased, Narendra Singh, and his brother, Gopi Singh, who lodged the First Information Report had been coming to Bareilly along with others on bicycles to attend the hearing of the case against Narendra Singh under the Arms Act. Jagdish Singh, Ram Pal Singh and Rajju Singh of Chaubari were also with Gopi Singh and Narendra Singh. When they reached Tiraha at about 9.00 a.m., four persons emerged from their hiding place behind the bushes from the western side of the road. Maharaj Singh and Munney Singh were armed with guns and Kalyan Singh and Gaya Singh were armed with Bhalas. Maharaj Singh declared to Narendra Singh that he had got his son murdered, it would be his chance now. Immediately Maharaj Singh and Munney Singh fired at Narendra Singh and being hit by the gun shots, Narendra Singh fell down. Kalyan Singh and Gaya Singh then struck bhallas to Narendra Singh and Narendra Singh died on the spot. Gopi Singh and the other companions retreated due to fear. At that time, Brij Bhushan Singh and Rampal Singh of village Kaili had also come from the side of Ram Ganga Bridge and they had also witnessed the occurrence. Alaram being raised by Gopi Singh, the accused persons escaped towards east. After that, other co-villagers of Gopi Singh including Brijpal Singh, Rajpal Singh and Rohan Singh also reached the place of occurrence. After leaving the dead body in the charge of other companions, Gopi came to lodge the First Information Report. A case under S. 302 read with S. 34, I.P.C. was registered by the police and the statement of the informant, Gopi Singh, was recorded at the Kotwali itself and the spot was inspected by the Police Officer. Two chappals, two cartridges and three broken teeth of the deceased and some other articles were found lying near the dead body. The said articles and samples of blood stained earth were collected. Inquest was held by the Police Officer and the report was prepared. The dead body was sent for post-mortem examination and Dr. R. S. Rajdhan conducted the post-mortem examination and he noted in the report 11 injuries including gun shot injuries and incised wounds.

(3.) The learned Sessions Judge inter alia came to the finding that the prosecution case had fairly established that the murder had been perpetrated by the accused party. The learned Sessions Judge however held inter alia that the testimony of the eye-witnesses could not be believed about the commission of the offence by the accused although there were great suspicion about the complicity of the accused persons. The learned Sessions Judge noted that as many as six persons including Gopi Singh who lodged the First Information Report had all proceeded by double riding on the bicycles but he held that it was a common feature that one person would drive the bicycle in the village and another person would sit on pillion or on the carrier of the cycle, and there was nothing unusual in such double riding in a village. .The prosecution examined Gopi Singh, P.W. 1, Jagdish Singh, P.W. 2, Rajpal Singh alias Rajju, P.W. 5 who were all eye-witnesses and all the said witnesses were residents of the village Chaubari. The learned Sessions Judge examined three more witnesses as Court witnesses. Such witnesses are Brijpal Singh, CW. 1, Rajpal Singh, CW. 2, Shympal Singh, CW. 3. According to the learned Sessions Judge, the medical evidence revealed that most of the gun shot wounds on the person of the deceased were on the right side. Referring to the account of the eye-witnesses the learned Sessions Judge held that the gun shot injuries were fired at the victim when he had been facing the north. In such-state of affairs, the gun shot injuries found on the right side of the deceased ran counter to the evidence of the eye-witnesses about the manner in which injuries were alleged to have been caused by the accused. The learned Sessions Judge was of the view that the gun shot injuries found on the right side of the deceased being in conflict with the account of occurrence as given by the eye-witnesses, the veracity of the testimony of the eye-witnesses was doubtful. The learned Sessions Judge also noted that Gopi Singh, P.W. went to the police station to lodge the First Information Report on the bicycle on which the deceased had been riding. It was observed by the learned Sessions Judge that it was unusual that instead of leaving it untouched on the spot the bicycle on which the deceased was riding, would be taken by Gopi Singh to lodge the First Information Report. The learned Sessions Judge had also expressed doubt about the veracity of the statement of Gopi Singh in view of the fact that when he went to lodge the First Information Report, he crossed the police station for the purpose of procuring a paper from a shop ahead of Kotwali Police Station for lodging the complaint. The learned Sessions Judge was of the view that the prosecution had failed to establish the case against the accused beyond all reasonable doubts. Accordingly the order of acquittal was passed by him in favour of all the four accused persons.