PRATAP SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Criminal Appeal No. 2355 of 1979 has been filed by Pratap Singh, Jitendra Singh, Chandra Pal Singh and Kishan Pal Singh and Criminal Appeal No. 2422 of 1979 has been filed by Narendra Singh and Radha Kishan against the judgement and order dated 9-8-1979 of IV Addl. Sessions Judge Kanpur in S. T. No. 484 of 1978 by which they were convicted under Section 148, 307/149 and 302/149 IPC and were sentenced to 1 year's R. I., 7 years' R. I. and imprisonment for life respectively. The sentences having been ordered to run concurrently.

(2.) The case of prosecution, in brief is that Narendra Singh and Jitendrea Singh are brothers being sons of Pratap Singh and Chandra Pal Singh and Kishan Pal Singh are brothers. The house of Pratap Singh accused is towards south of the house of Lakhan Singh (deceased) and is adjoining the same. Sometime before the occurrence Pratap Singh had fixed a window in his Northern wall which opened towards the Court yard of Lakhan Singh but the said window was got closed. Lakhan Singh had constructed a wall immediately adjoining to the back wall of the house of Pratap Singh but when thesaid wall had reached up to the height of the window, Pratap Singh had got the construction stopped with the result that the wall remained incomplete. In the morning of 8-5-1978 at about 7.30 a.m. Lakhan Singh was making preparation to construct his wall. At that time Pratap Singh and Kishan Pal Singh armed with double barrel guns, Narendra Singh armed with rifle, Jitendra Singh, Chandrapal Singh and Radha Kishan armed with pistols, arrived there and climbed over the roof of the house of Pratap Singh. Pratap Singh told Lakhan Singh that in case he constructed the wall, he would be killed. Lakhan Singh retorted that he would certainly construct the wall in his own courtyard. Pratap Singh than instigated others that before he constructs the wall, he should be killed. Hearing the exchange of words, the complainant Amarpal Singh, his son Ram Babu, Jai Pal Singh, Munni Singh Ravindra Deo and some other persons came to the spot. The six accused then fired from their weapons upon Lakhan Singh who fell down in the passage in front of his house after receiving gun shot injuries. The persons who had arrived there proceeded towards Lakhan Singh in order to save him. Pratap Singh then again instigated that no one should be left alive to give evidence and every one should be killed. The six persons then again fired towards those persons due to which Ram Babu, Munni Lal, Jaipal and Ravindra Deo received injuries. The accused fired again towards the house of Lakhan Singh and ran away towards southern side firing their weapons. Lakhan Singh died on the spot. The four injured were taken to the hospital where they were medically examined. A written FIR of the incident was lodged by Amar Pal Singh at 10 a.m. on 8-5-1978 at P. S. Gajner which is 7 miles from the place of occurrence. Ram Babu, injured, succumbed to his injuries shortly after he was admitted in the hospital. PW 7 Ram Shankar Misra S. O. reached the village at 12 a.m. and took necessary steps towards the investigation of the case. After completing investigation he submitted charge-sheet against the six accused. The committing Magistrate committed the case to the Court of sessions for trial. The prosecution in support of its case examined seven witnesses including three eye witnesses and filed some documentary evidence. Jitendra Singh and Radha Kishan in their statements under Sections 313 Cr. P.C. set up a counter-version but the remaining four accused denied their presence on the spot. The accused examined two witnesses in support of their case. The learned Sessions Judge believed the prosecution version of the incident, disbelieved the defence set up by the accused and convicted and sentenced them as mentioned earlier.

(3.) P.W. 1 Amarpal Singh is the first informant of the case and he had lodged a written FIR of the incident at 10 a. m. on 8-5-1978 at P. S. Gajner which is 7 miles from the place of occurrence with regard to the incident which had taken place at 7.30 a. m. in his village Karsa. He is father of Ram Babu (deceased). In examination-in-chief he has given details of the prosecution case and the firing done by the six accused, first upon Lakhan Singh and then upon the remaining four injured. He has stated that the four injured were sent to P. H. C. Sarwan Khara by a bullock cart. He has proved the FIR Ex. Ka 1 which he had lodged at the police station. He has stated that initially the relations of Pratap Singh and Lakhan Singh were cordial but one year before the occurrence the former had constructed a window in his wall which opened towards the court-yard of the latter. Lakhan Singh had then got the window closed. About 1-2 months thereafter Lakhan Singh had constructed a wall adjoining to the wall of Pratap Singh but when the said wall reached up to the level of windows, the latter got the construction stopped. There were three windows in the wall of Pratap Singh. On the date of incident, Lakhan Singh was making preparations to complete the wall. In his cross-examination, he has stated that the population of Karsa village was about 2500 and the houses of Lakhan Singh and Pratap Singh were almost in the middle of the village. He has admitted that the marriage of Shashi Prabha daughter of Lakhan Singh had taken place 2-3 months before the date of occurrence and in the wedding card the name of Pratap Singh was also mentioned. He has stated that Lakhan Singh was gradually constructing a new house and the new construction had commenced 3-4 years before. He had constructed the new wall adjoining the wall of Pratap Singh in the month of May-June and the construction went on for four days but thereafter it was stopped. There was an old kuchcha house at that place and after demolishing the same, a pucca construction was being raised. In the Kuchcha house, Lakhan Singh used to keep cattle fodder and tie his cattle. After the wall had been raised upto the height of 6-7 cubits and was 23 bricks level below the window, its construction had been stopped. When the construction had been stopped, a panchayat had taken place. Pratap Singh had said in the panchayat that on account of construction of the wall, his windows would be closed while Lakhan Singh's stand was that on account of the windows, the privacy of his house was effected and therefore, he was constructing the wall so as to create an obstruction. Lakhan Singh used to reside in the adjoining portion. After the panchayat, no talksregarding the construction of wall had taken place between the two. He has further stated that when he reached near the chabutara of Prayag Narain two accused were taking aim in a sitting posture and two were taking aim in standing posture while two others namely Narendra Singh and Chandra Pal Singh were standing behind them. All the accused were standing closely and had pointed their weapon towards Lakhan Singh. The accused were at a distance of about 40 paces from Lakhan Singh. After Lakhan Singh had fallen down in the passage, the witnesses present there rushed to rescue hint and as soon as they had proceeded little further the accused fired upon them at the instigation of Pratap Singh.