SIYA RAM Vs. STATE

JUDGEMENT

(1.) All these appeab arise out of the judgment and order dated 2( December. 1978 passed by Sri S.K. Misra, Addl. Sessions Judge, Jhansi in S.T. No. A-18 of 1976 convicting and sentencing Siva Ram, appellant under Sec. 302/34 I.P.C. for f imprisonment, he was also sentenced under Sec. 307/34 I.P.C. for five years R.I. Both to sentences to run concurrently. The Government Appeal No. 757 of 1979 directed against the same judgment is for 09 hancing the sentence awarded to Si%a Rani by the Sessions Court. Government Appeal No 1042 of 1979 is directed against the same judgment for setting aside the order of acquittal and convicting and sentencing the accused opposite parties Chandrabhan, Gajraj, B mali, Khusi Ram and Narain Das. One Lochan Singh son of Moti Singh adopted son of Ganesh Singh r/o village Barokhari P.S. Samthar Distt. Jhansi lodged an FIR at the police station Samthar, Sub-district Moth Distt. Jhansi on 27.2.1976 at 6.30 p.m. Siya Ram, Narain Das and Chandra Bhan sons of Ram Sahai Lodhi, Banmali son of Bhudhai Ram, Khusi Rain s/o Ram Bharose of the same village informating the police that Girendra Singh and Sri Daval had been murdered by the named accused persons by gun shot, lathi and balllam at 5 p.m. The informant Lochan Singh in the FIR stated that there was a criminal case going on in the Court of C.J.M. Jhansi against Sheo Ram Singh, Girendra Singh and informant. who were returning from Jhansi to village Samthar. Near the village in the way Sri Daval and Kalkain met them. These five persons proceeded to their village on foot. At 5 P.M. when they had reached near the village near the Arhar field of Pali Chamar, the accused Siva Ram, Narain Das, Chandra Bhan sons of Ram Kishan, Gajraj s/o Ram Sahai Lodhi and Ban-mall and Khusi Ram came out of the Arhar field of Pali Chamer where they were hiding themselves. They were armed with lathi, ballam and gun. They pounced. Siva Ram was armed with 12 bore gun, Narain Das armed with ballam and the remaining accused were armed with lathis. They hurled abuses to the complainant-informant and his companions and accosted, surrounded them and beat them. All the five persons of informant side tried to run away. Siva Ram fired on them. Sri Dayal and Girendra Singh were shot by gun and were also assaulted by lathi and ballam who fell there. The remaining three ran reversed raising alarm. Hearing the gun shot sound, persons working in the nearby field and passers by arrived there. Siya Ram loudly said both have been finished. Now run way. All the accused persons escaped to village Paharoura. The informant and his associates reached to the injured and saw that Sri Daval and Girendera Singh were lying there severely assaulted. On account of the gun with the accused persons. informant and his associates could not chase the accused persons. In the FIR it was said that both the dead bodies were lying on the spot. Cases were going on between Banmali. Narain Das and Siya Ram with informant and Sri Dayal. Siva Ram's father was murdered. Deceased Sri Daval was an accused in the said case. On account of the said enmity, the accused persons attacked the informant. his brother Girendra Singh, deceased and Sri Daval and killed them. It was mentioned in the FIR that Siva Ram is a constable in the police in C.I.D. He came from there, formed an unlawful assembly and assaulted, as stated. The six accused persons were charged-sheeted and committed to the Courts of Sessions by the C.J.M. Jhansi. The learned Sessions Judge charged the accused Siva Ram, Chandra Bhan. Gajraj, Khusi Ram and Narain Das under Sections 302/149 IPC, 307/149 and 147 and 148 IPC. Charge under Sec. 302/149 Penal Code was framed against all the six accused, charge under Sec. 307 Penal Code was also framed against accused Siva Ram. The remaining five accused persons were also charged under Sec. 307/149 IPC. The charge under Sec. 148 I.P.C. was framed against the accused Siya Ram. Narain Das. charge under Sec. 147 Penal Code was also framed against accused Chandra Bhan, Gajraj. Banmali and Khusi Ram. The prosecution examined PW 10 Lochan Singh and PW 8 Kalkain as eye-witnesses of the incident. The other eye-witnesses (PW5) Khanju was examined who partly supported the prosecution case and then turned hostile. Besides PW 6 Sukhe was also examined. The prosecution examined PW I Dr. P.N. Awasthy who had conducted the post-mortem examination of Girendra Singh and Sri Daval. PW 2 Ram Adhar, Sub-Inspector of Police who was at the time of the incident, working as Asstt. Sub-Inspector at the P.S. Samthar, PW 9 Sri Nath Chaturvedi. Dy. S.P. (Intelligence). Kanpur who stated that Siva Ram had taken three days leave, just before the incident. The remaining witnesses PW 7 Bhure Singh, witness of the recovery of the gun of accused Siva Ram, PW II Riazul Hussain, Malkhana Moharrir, PW 12 Badam Singh. Head Constable, PW 13 Sheo Charan Singh, S.I., Investigation Officer, P.W. 14 Sri B. Roy, Arm Expert, PW 16 constable Mohar Singh, PW 17 constable Kunj Behari and PW 18 Constable Kanaju Lal, besides affidavits of formal witnesses Kaushal Kishore, Thakur Dutt Jha, Ramesh Chand, Mohar Singh Yadav and Balal Deen were filed before the Court. The prosecution case and evidence, as led before the Sessions Court shows that the above named six accused persons were members of unlawful assembly in prosecution of their common object committed murder of Sri Dayal and Girendra Singh on 27.2.76 at 5 P.M. near the field of Pali Chamar in village Barokhari. With the common object the accused person Siva Ram fired at Lochan Singh, Shiv Ram Singh and Kalkain with intention to commit their murder, but they did not receive gun shot injuries and escaped death. Sia Ram accused was a constable in police on the date of incident and was posted at L.I.U. office at Kanpur City. He possessed a licence gun which was later during investigation recovered from him hidden in Ghura. The said licenced gun and Siva Ram was shown to have been used in commission of the murder of Sri Dayal and Virendra Singh. Litigation and enmity between the accused and the deceased is said to be the motive of the murder. PW 10 Lochan Singh aged about 29 years r/o village Barokhari stated in the Court that in 1967, his Nana Ganesh Singh adopted him as he had no children except a daughter, mother of Lochan Singh. Lochan Singh after the adoption with his father Moti Singh. brother Girendra Singh came from Mainpuri and started living in the village Barokhari. Girendra Singh had also some land in village Barokhari also. He used to look after the land situated in District Mainpuri also. Rame Sahai, father of accused Gajraj, Suraj Bhan and Mehtab Singh did not want to live with him in village Barokahri. It Has said if Girendra Singh did not live in the village Barokhari, Mahtab Singh would get the land of Ganesh and for this reason Mehtab Singh also wanted that Girendra Singh should not live in village Barokhari. In order to harass the informant Lochan Singh, Mehtab Singh, Suraj Bhan and Ram Sahai got several cases instituted against him. One FIR was got lodged under Sec. 376 Penal Code in 1970 at the instance of Mchtab Singh against the informant but police submitted a final report. Mehtab Singh also got a false and fictitious sale-deed executed from Ganesh in favour of his grand son. A civil suit for cancellation of the sale-deed was filed by Lochan informant against Mehtab Singh and Ram Sahai, father of Gajraj Singh, accused. A criminal complaint under Sec. 376 IPC, was got filed through Urmila Devi to pressurise the informant. so that the civil suit for cancellation may be withdrawn. Lochan Singh, informant had got his name mutated over the land of his Nana. It is said that after the present murder case of Girendra Singh, under compulsion a circumstances, the informant got the civil suit for cancellation dismissed and got the dispute compromised. The informant said that Banmali. accused had filed a criminal complaint tinder Sec. 504/506 Penal Code against the informant and Sri Dayal deceased. The accused Narain Das was a witnesses in the said case. The complainant stated that Banmali, Siva Ram and Narain Das and Ram Naresh had also filed a criminal case against accused Khusi Ram and Sri Daval, deceased, under Sec. 304 [PC in which Narain Das and Ram Sahai, father of accused Gajraj was shown as witnesses. Lochan Singh had said that a civil suit of 1972 was filed by him against the mother of the accused Khusi Ram for recovery of money. That was the case of enmity between Khusi Ram and the informant and deceased Girendra Singh. The immediate motive for the commission of the offence is said to be that Ram Kishan, father of Siva Ram and Narain Das was murdered 11/2-2 years before the murder. Sri Dayal, deceased and his brother were made accused in the case. Girendra Singh, deceased used to to pairvi in the murder cases pending against Sri Dayal, deceased, on account of which the accused Siva Ram and others felt animosity. Accused Banmali and Khusi Ram are the sons of Mama and Phupha and are related as brothers who were also partisan of accused Siva Ram. As regards the present incident PW 10 Lochan Singh stated that on the day of the incident. he alongwith the deceased brother Girendra Singh and Shiv Ram Singh had gone to Jhansi to attend the criminal case. The case was adjourned as the presiding officer was absent. These three persons became free from the court attendance earlier than usual court hours at about l P.M. and they had started back for their village. They had reached Qasba Samthar at about 4 P.M. there they met eve-witnesses Kalkain and deceased Sri Dayal. These five persons started for their village Barokhari, when they reached near the filed of Pali Chamar at a distance of about 11/2 furlong from their village, It was about 5 p.m. all the six accused persons from the crop of the field suddenly came out from the field. The accused Siva Ram armed with gun, Narain Das with ballam and remaining four accused Khusi Ram. Gajraj. Banmali and Chand Bhan armed with lath is. Siva Ram filed from his gun at Girendra Singh. who fell down after receiving the gun shot injury. The remaining four persons ran for safety towards the village Barokhari Deceased Sri Dayal had run towards the village Paharpura, Thereafter, the accused Siya Ram made a second fire from his gun at the deceased Sri Dayal, who fell down after receiving the gun shot wound near the boundary of Sunder Chamar. The accused Siya Ram ran towards the informant and made a third gun fire on him in order to kill the informant, which did not hit him. The remaining five accused persons reached near the injured Sri Dayal and beat him with their ballam and lathis. The accused Siya Ram said that they s have killed two persons and they should run away. They ran towards village Paharpura. After the accused persons had run away, the informant Lochan, Kalkain and Sheo Ram Singh came near Girendra Singh and Sri Dayal and found that they were dead. Lochan, Shiv Ram and Kalkain went towards the thana for lodging the report. While on way at village Sajokhari, these three persons met Sia Saran and Jagdish Prasad and told them about the incident. Sia Saran and Jagdish Prasad went to the place of murder alongwith Kalkain. Sheo Ram Singh and Lochan went the police station. lodged the FIR., a copy of which has already been exhibited as Ext. Ka 6. naming the accused persons about the incident. After lodging the FIR the informant Lochan Singh went to the village of murder. The other eve-witness PW 9 Kalkain is a resident of village Barokhari. He also stated that six accused persons belong to his village. Sri Daval has met and taken him at Qasba Samthar on the date of incident. Thereafter Lochan Singh, Shiv Ram Singh and Girendra Singh also met him near the motor stand Samthar. All these five persons left for their village. The witness stated that Girendra Singh, Lochan Singh and Shiv Ram Singh were returning from village after attending their case in Jhansi. He stated that when they reached near the arhar filed of Pali Charan, all the six accused persons had suddenly cane out from the field. Accused Siva Ram armed with a gun, Narain Das armed with ballam and remaining four accused armed with lathis at that time. He also stated that accused Siva Ram fired on Girendra Singh who fell down. Therefore, accused Siya Ram fired gun at Sri Dayal and shouted to kill. The remaining five accused then beat Sri Dayal with ballam and lathis. Siya Ram made a third gun fire towards them. The witness stated that Siva Ram had fired at Girendra Singh from a distance of 10 paces. After shooting at two persons, Siva Ram shouted that two persons have been killed, they should run away. They escaped. The witnesses saw that Girendra Singh and Sri Dayal had died. It was stated that Sri Dayal had fallen down at a distance of 80 paces from the place where Girendra Singh had fallen. He gave the time of the incident at 5 P.M. corroborating PW 10 Lochan Singh. He also stated that 11/2 years before the present incident, Ram Kishan. father of accused Siva Ram had/been murdered and deceased Siya Ram were facing trial as accused in that case. Eye-witness Shiv Ram Singh is said to have colluded with accused persons. As such the prosecution did not produce him as witness in the case. PW 13 Shiv Charan Singh stated on oath that on 27.8.76 at 6.30 P.M., the FIR of the incident was lodged in his presence, The-case was registered and he started investigation in the case. He had proceeded to village Barokhari and had reached there at 7.30 p.m. He had reached the village of incident on the spot and found Girendra Singh and Sri Dayal lying dead. Panchayat-nama of the dead body of Girendra (Ext. Ka-16) was prepared, the dead body was sealed in a bundle. The panchayatnama of dead of Sri Dayal was also prepared and marked as Ext. Ka-17 and the dead body was also sealed in cloth bundle. Sketch map of the dead bodies were prepared separately. He proved the aforesaid documents prepared by him in presence of the witnesses. The report for sending the dead body for post-mortem examination was prepared separately which are also proved and exhibited in the Sessions Trial. The dead bodies were sent through constables Kamta Prasad and Baladeen alongwith the dead bodies. Before preparing the panchavatnama, the investigating officer had removed the blood stained pyjama, kurta, mufler shoes etc. from the dead bodies of Girendra Singh and Sri Dayal. The said items were sealed and marked as Ext. before the Sessions Court. Three pallets emitted from gun was found near the place of the dead body of Girendra Singh and two dead cartridges and a broken keal was found there, which were also taken into custody and kept in a bundle and sealed. Near the dead body of Sri Dayal. two pieces of bones, three pieces of broken teeth and one button were also recovered by the investigation officer. The blood stained earth and earth were recovered from both the places where the dead bodies of Girendra Singh and Sri Daval were found. The accused persons were searched but could not be traced out. The Investigating Officer. recorded t statements of the witnesses of panchavat-nama, inspected the place of occurrence and prepar the site map of the place of incident. The I.0. at the time of his inspection at about 70-80 paces from the place of incident recovered empty cartridges from the land which was also taken into custody, sealed and memo was prepared. The I.O. recorded the statements of Khunju and Sukhey of village Bangri. Statements of Lochan Singh and Shiv Ram Singh could not be recorded on that day as they have gone with the dead bodies of the deceased persons. The I.0. had recorded the statement of PW 10 Lochan Singh and Shiv Ram Singh also under Sec. 161 Cr.P.C. The I.O. reached Kanpur to arrest Siva Ram A.S.I. Sri Ram Adhar had brought from Kanpur the papers regarding the application of Siya Ram accused for leave which was also proved before the Sessions Judge. PW 7 Bhurev Singh was examined to prove recovery of the gun of Siva Ram which was recovered from the back of the house of Bhagirath. father of Narain Das and Siva Ram. The gun and the belt of cartridges were recovered from the ghura wrapped in dair. Memo was prepared. The gun and live cartridges were proved as material Ext. Before the Sessions Judge. PW 14 Sri Ram. Fire Arm and Ballistic Expert of U.P. Government was examined by the prosecution, who had stated that he has examined the items namely the 12 bore gun, empty cartridges sent to him for expert opinion, Before examining the said items. he had verified and examined that the seal on the articles were intact and similar to the specimen, seal sent alongwith the said articles. The single barrel gun was also received by him alongwith the belt of cartridges for 8 live cartridges with it. The gun was examined by him to give opinion whether TC 1, TC 2 and TC 3 were fired from the said gun, He had marked the cap of the cartridges of TC 1 to TC 3 to find out firing pin marks. After examining the same, he submitted the opinion that the gun was used for firing the said cartridges. The photograph of the firing pin etc. was taken by him, the record of the same was filed and proved before the Sessions Court. The original report was sent by him to the Police Supdt. Jhansi. carbon copy was prepared at the time, which was brought by the witness in the court. The expert stated that the gun marked Ext. 24 was received by him on sealed condition in a cloth along with tat patti belt. In cross-examination, this witness PW 14 Sri Ram stated that three cartridges TC I to TC 3 were Indian made cartridges with pervasion cap made of copper and parcasion cap of dispersal cartridges Ext. 23 was made of brass. PW 6 Sukhy stated that he was. cutting grass in the filed in Moja Bazar at 5.30. P.M. when he is said to have seen all the accused persons of village Barokhari going towards Girgaon and then described the various arms they were holding at that time. He stated that he heard Siva Ram accused saying that he had taken the revenge of his father's murder and Siva Rant was also saving that Girendra Singh has been unnecessarily killed, He also said that accused Gajraj stated that there is no harm in killing of Girendra Singh because the same punishment will be given for two murders which is given for one murder. Another witness PW 5 Khanju was examined in the Court. He was declared hostile. This witness could not correctly identify Siya Ram. He named Siva Ram that said that he was armed with ballam. He correctly identified Banmali, Gajraj and Narain Das. He had also stated that accused Jhusai was armed with lathi and had pointed to Khusi Ram as Jhusai. The prosecution examined PW I Dr. P.N. Awasthi who conducted the post-mortem examination of the two deceased persons Girendra Singh and Sri Dayal who had conducted the post-mortem of Girendra Singh at 12 noon and Sri Dayal at 2 p.m. respectively and found the following injuries:-