BRIJPAL SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is a regular appeal under section 379 Cr.P.C. read with section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. There are six appellants. They alongwith one Kalyan Singh who died during the trial, were tried for offences punishable under section 302 read with section 149 I.P.C. by the Additional District & Sessions Judge, Shahjahanpur and were acquitted. The State preferred an appeal against the remaining six accused. The High Court allowed the appeal. However, two of them A -5 Prem Pal Singh and A -6 Shyam Pal Singh who were children, were not awarded any sentence and the remaining four accused were sentenced to imprisonment for life. They were also convicted under sections 324/149 and 148 and sentenced to two years and one year R.I. respectively. The sentences were directed to run concurrently. All of them have preferred this appeal. The prosecution case is as follows:

(2.) ALL the accused are related to each other and the Thakurs by caste while the deceased Sripal and the injured witnesses are Kachuwahas and all of them belong to the same Village Deshpur. The Village is predominantly inhabited by thakurs and there was animosity between the accused and the deceased. It is alleged that in the year 1933 Narpat, the father of Sikdar, P. W. 1 was murdered and the relations of the accused Kalyan Singh were charged for that murder and were convicted. In 1967 one Premwati and Muthu were joint owners of land and Premwati sold her share to Sikdar and Muthu objected to the mutation but plutation was allowed. Muthu having got annoyed mortgaged his half share in favour of Kalyan Singh with a view to harass Sikdar. It is further alleged that Kalyan Singh damaged the crop of Sikdar as a result of which proceedings under section 145 Cr.P.C. were initiated and the land purchased by Sikdar was attached. On 8.3.74 at about 10 A.M. Sikdar was passing near the attached land when he saw Prem Pal Singh, A -5 and Brij Pal Singh, A -1 damaging the pea crops. Sikdar made a complaint to Jai Singh, Superdar, P.W. 3 and went to the spot alongwith him. Superdar P.W. 3 reprimanded Prem Pal Singh and Brij Pal Singh which they did not like. The present occurrence took place at about 4 P.M. on 8.3.74. Sikdar was sitting on the chabutra of Ram Singh in front of Chopal alongwith Sheda and Rameshwar. Gokaran and Ram Lal, brothers of Sikdar and Sheoraj son of Sripal were also standing in front of their houses. It was a. Holi festival and offerings were to be made to the Holi fire as per the custom. Vijay Singh, a close relative of Kalyan Singh asked Sikdar to come and make offerings in the Holika i.e. Holi fire but Sikdar declined. Shortly thereafter Kalyan Singh and Deep Singh, A -4 armed with lathis, Prem Singh A -5 armed with a gun, Brij Pal Singh, A -1, Ram Pal A -2 and Shiv Mangal Singh, A -3 armed with country -made pistols came from the south. It is alleged that Kalyan Singh and Deep Singh accused pointed to Sikdar and his family members and said that they should be killed. Thereupon Prem Pal Singh, A -5 fired his gun which hit Sripal son of Gokaran who fell down. The accused persons armed with country -made pistols fired at Sikdar and other members of his family and caused injuries to Sikdar, his brother Ram Lal, P. W. 2 and Gokaran and his son Sheoraj. This occurrence was also witnessed by Rameshwar P.W. 4, Sheda, Mulaiam and Raghunath. When the witnesses remonstrated the seven assailants ran away towards south. Sikdar, P. W. 1 arranged to take the injured to the Police Station but he was informed that the accused persons were lying in ambush on the way to Mirzapur, upon which Sikdar decided to proceed to Police Station Jalalabad instead of going to Mirzapur. Sripal, however, died due to the injuries on the way before reaching the Police Station. Sikdar, however, gavean FIR on 9.3.74atabout6.30 A.M. and the papers were transferred to Police Station Mirzapur as the case related to the jurisdiction of that Police Station. An inquest was held over the body of the deceased and the injured persons Sikdar P.W. 1 and Ram lal, P.W. 2 and others were examined by the Doctor, Civil Dispensary, Jalalabad. Dr. Pratap Narain, P.W. 6, who conducted the post -mortem, found as many as 14 gunshot injuries and one contusion. He opined that the death was due to coma' and shock as a result of the gun -shot injuries. P.W. 9 the Investigating Officer proceeded with the investigation and arrested the accused. After completion of the investigation the charge -sheet was laid. In the trial Court the prosecution examined 10 witnesses. Out of these, P. Ws 1, 2 and 4 figured as eye -witnesses. P.W. 3 was examined in connection with the motive. The accused denied participation in the incident and alleged a false implication on account of enmity. They examined Ganga Charan, Priest, D.W. 1 who performed Puja before the lighting of Holika.

(3.) SO far as the motive aspect is concerned, it is true that the murder of the father of Sikdar was committed in the year 1933. That itself shows that there was hostility between the family of Sikdar, P.W. 1 and the family of the accused. However, the prosecution has also adduced evidence to show that there was immediate motive. Smt. Premwati and Muthu were joint tenure holders but Smt. Premwati sold away her share to Sikdar, P.W. 1 though an objection was raised by Muthu. Muthu created trouble by handing over the possession of his share to Kalyan Singh accused which led to initiation of proceedings under section 145 Cr.P.C. and then attachment of the land was there. These facts are not in dispute. Then there was also a grievance that the crop was damaged and when Sikdar, P. W. 1 protested they were threatened by the accused saying that they would be killed. These are all circumstances which speak about the immediate motive also. Therefore the reasoning of the learned Sessions Judge that there was no immediate motive is wholly incorrect. However, when there is evidence of the direct witnesses, the motive aspect does not assume much importance. The learned Sessions Judge also very much commented about making offerings of Akshat in the Holika. He was under the impression that no Akshat would be made at 4 P.M. We do not think that there is any hard and fast rule in this regard. As a matter of fact, D. W. 1 admitted in his deposition that so long as the fire is there Akshat can be made into it. However, this is a very minor circumstance. The most important aspect of the case is the appreciation of the evidence of the eye -witnesses. No doubt, Sikdar, P.W. 1 and Ram pal, P.W. 2 are interested witnesses but they are injured witnesses and their presence cannot be disputed. Merely because of interestedness their evidence cannot be rejected out rightly. The learned Sessions Judge rejected the evidence of P. Ws 1 and 4 on the ground of involvement in some criminal and civil cases in the past but that can hardly be a ground to reject their evidence. P.Ws 1, 2 and 4 are important witnesses in the case. Sikdar, P.W. 1 an injured witness has given a detailed account of the occurrence. P.W. 2 who is also injured has supported him. P.W. 4, a close neighbour had also witnessed the occurrence and he also supported the prosecution case. P. W. 1 deposed that Prem Pal Singh, A -5 fired from his gun which hit Sripal, deceased who fell down. He added that except Prem Pal Singh, who was towards the south, all the accused were towards the South -east. The shots fired by those accused hit him, Ram Lal, P. W. 2 and two others. On hearing the noise, Rameshwar, P. W. 4 and others came to the place of occurrence. Then the assailants ran away. In the cross - examination some minor con traditions were elicited. The learned Sessions Judge did not believe P. W. 1 because in his opinion the place of presence of Sri pal, was not the same as was given out by this witness.