Partly allowed

Rai Singh and Others v. State of U.P.

Allahabad HC2 Aug 2023CRLA/1810/2007

Case brief

AI extract

What is this about?

This appeal challenged murder convictions of three accused. The Court affirmed conviction of Rai Singh but acquitted Chet Ram and Mahipal due to inconsistent prosecution evidence regarding their specific roles and lack of incriminating recovery.

What did the court decide?

Conviction and sentence of Rai Singh affirmed with caveat that he is not to be retrained. Conviction and sentence of Mahipal and Chet Ram set aside.

Rai Singh and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:154739-DB

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Court No. - 46

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Case :- CRIMINAL APPEAL No. - 1810 of 2007

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Appellant :- Rai Singh And Others Respondent :- State of U.P. Counsel for Appellant :- R.L. Verma,Apul Mishra,Kamal Kishor Mishra,Nitin Yashartha,Yashartha Counsel for Respondent :- Govt. Advocate

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Hon'ble Ashwani Kumar Mishra,J. Hon'ble Syed Aftab Husain Rizvi,J.

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Accused-appellants Rai Singh and Mahipal sons of Ramesh Pali and Chet Ram son of Gulab have been convicted vide judgment and order dated 24.02.2007, passed by Special Judge (E.C. Act)/Additional District Judge, Budaun in Sessions Trial No. 297 of 2005, arising out of Case Crime No. 332 of 2004, under Sections 302/34, 452 IPC, Police Station Musajhag, District Budaun and sentenced to life imprisonment under Section 302 read with Section 34 IPC; sentenced to two years imprisonment under Section 452 IPC. All the sentences are directed to run concurrently. Aggrieved by their conviction, the three appellants have preferred the present appeal.

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A written report is made by the informant Kishori Lal s/o Ram Lal (PW-1), as per which his brother Chote Lal (deceased) had gone to get bidis on 12.11.2004 at about 6.30 PM when he was suddenly surrounded by the three accused, who started chasing him. The deceased rushed towards his house and informed PW-1 that the three accused are after him. Informant and the deceased thereafter closed the door of their house from inside. The three accused, however, broke open the door and thereafter accused Rai Singh fired from his country made pistol. The bullet hit the deceased on his chest and he died. The accused thereafter fled. The informant tried to chase the accused but they ran towards the village. PW1 sent information of the incident to his village Gauramai and after the family members came, they left for lodging the report in the matter. The

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written report also records that the cousin of accused’s Rai Singh, Mahipal and Chet Ram, namely, Meena was kept as wife by the deceased, on account of which the accused maintained enmity with him. Based upon such written report i.e. Ex.Ka.1, a First Information Report came to be lodged under Section 452/302 IPC at Police Station Musajhag at 3.15 A.M. on 13.11.2003. The distance between the place of occurrence and the Police Station is five kilometres.

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The Investigating Officer came on the spot and collected the plain and blood stained earth which was sealed in two separate boxes and the memo of recovery in that respect has been exhibited as Ka.11. Inquest was also conducted on the next morning and the inquest witnesses found on 14.11.2003 at 7.30 AM the cause of death to be gunshot inquiry. Postmortem was also conducted in which the condition of deceased has been noticed as under:-

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“ (i) Age- About 32 years

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(ii) Time after death- more than one and a half day

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(iii) Average built body.

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(iv) Rigor mortis passed off from upper limbs and from lower limbs

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(v) PM stain present on back of body

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(vi) Eyes and mouth half open.”

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The cause of death as per the autopsy surgeon is shock and haemorrhage as a result of ante-mortem injury. Following three injuries

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have otherwise been noticed in the postmortem report:-

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“ (i) Firearm wound of entry of size 3 cm x 1cm x cavity deep on left side front of chest just near to mid line 6cm away from left nipple at 9’o clock position, margin inverted colar of abrasion present all around wound underneath injury 5^th rib found fractured, muscle, vessels, nerves, left pleura, left lung and heart right chamber found lacerated. One long metallic bullet recovered from muscle of back at 9^th - 10^th rib. About 1.5 litre fluid and clotted blood present in chest cavity.

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(ii) An abrasion of size 3 x 2 cm on top of right shoulder.

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(iii) An abrated contusion of size 5 x 2 cm on left side back of chest. 3 cm lateral from lying just below scapula”

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The accused Rai Singh was later arrested on 18.11.2004 on the basis of disclosure made by the informer and from his possession a

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country made pistol was recovered. A recovery memo has also been prepared in respect of arrest of accused and recovery of country made pistol vide Ex.Ka.13. Statement was recorded of witnesses and ultimately a charge-sheet was submitted against the accused appellants vide Ex.Ka.14. The accused appellants have been charged of offences under Sections 452, 302 IPC.

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The concerned Magistrate committed the case to the court of Sessions where it got registered as Sessions Trial No. 297 of 2005. The concerned court framed charges under Section 302 read with 34 IPC as also under Section 452 IPC against the three accused. The accused denied the charges and demanded trial.

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At the stage of trial, the prosecution has produced following documentary evidence:-

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“1. FIR dated 17.11.04 as Ex.Ka.3

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Written Report dated 13.11.04 as Ex.Ka.1

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Recovery Memo of blood stained & plain earth as Ex.Ka.11

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Recovery Memo of country made pistol, live cartridge, & arrest of accused as Ex.Ka.13

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P.M. Report dated 14.11.04 as Ex.Ka.2

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Report of Vidhi Vigyan Prayogshala dated 03.09.05

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Report of Vidhi Vigyan Prayogshala dated 13.04.05

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Panchayatnama dated 13.11.04 as Ex.Ka.5”

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In addition to the documentary evidence, oral testimony has also been adduced of prosecution witnesses. Informant Kishori Lal has appeared as PW-1, who has stated the he is originally a resident of village Gauramai but as he had inherited landed property from his maternal side, he started living at village Sarai Pipria. Deceased and his wife Meena Devi were also residing with PW-1. Accused also were from the same village. Wife of the deceased Meena Devi happened to be the cousin of the three accused. In the examination-in-chief, he has stated that Meena Devi had initially gone with her cousin Nanhe but later deceased Chote Lal snatched her from Nanhe and had solemnized marriage with Meena Devi. This was not liked by the accused Rai Singh which has resulted in

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enmity between the parties. This witness has further deposed that brother of accused Rai Singh, namely, Gajju was killed about a year back wherein the deceased was an accused. Accused Chet Ram was a witness in the murder case of Gajju. As per the witness the deceased, however, was falsely implicated in the murder case of Gajju. Deceased Chote Lal was on bail at the time when the incident occurred.

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PW-1 has further disclosed that it was Diwali on the fateful day when the incident occurred at about 6.30. It was not entirely dark and visibility existed. Meena Devi, i.e. wife of deceased had gone to take part in the Diwali Pooja at the house of the Mausi of PW-1. Apart from electricity, light was also available in the earthen lamps. Deceased had gone to get bidis. On the way he was surrounded by the three accused and he rushed to the house and asked PW-1 to shut the door as the three accused were chasing him. The informant closed the door from inside. The accused, however, banged on the door which fell and the accused entered the house. Accused Rai Singh fired on the deceased from his country made pistol. The bullet hit the chest of the deceased. While the accused were fleeing, brother of PW-1, namely, Mahesh also arrived and they saw the accused fleeing from the place of occurrence. The witness sent information to his village Gauramai from where his father, uncle and Yaad Mohammad came. PW-1 has proved the written report. The written report was scribed by Yaad Mohammad.

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In the cross-examination, PW-1 has disclosed that distance between Sarai Pipria and Gauramai is about 30 kilometres. In the crossexamination, the witness has admitted that accused Chet Ram is a witness in the murder trial of Gajju, wherein the deceased was an accused. In his further cross-examination, PW-1 has admitted that in the FIR he has not indicated about the source of light and that such facts are also not recorded in his statement under Section 161 Cr.P.C. He has also admitted that though he had disclosed that Rai Singh shot dead the deceased but

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this fact is not mentioned in his statement under Section 161 Cr.P.C. He further stated that by the time accused were fleeing from the place of occurrence the witness Mahesh (PW-2) had also arrived. He has also admitted that in the written report role of carrying Kanta has not been assigned to the accused Mahipal and Chet Ram. He has further stated that he was perplexed and, therefore, he forgot to mention it in the report. He has also stated that there was electricity at the place of occurrence in which the incident was seen. He has also stated that the information about the incident was given on phone from the PCO belonging to Hulasi to other family members at Gauramai. He claims to have gone to Police Station at about 2.30 AM.

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PW-2 is Mahesh Pal, who also happens to be the brother of deceased and the informant. He has also supported the prosecution case. As per him, he had come to the village to celebrate Diwali and while he was returning home, he saw the three accused coming out of the house. Rai Singh was carrying a country made pistol while the other two accused were carrying knives. The informant came out shouting that Rai Singh has shot dead the deceased. He has also disclosed about the enmity between the parties since the cousin of the accused i.e. Meena Devi had run away with the deceased. He has also stated that he lived separately from the other two brothers. This witness has stated that he called on phone from the PCO of Hulasi to give information of the incident at Gauramai.

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Dr. D.V. Shakya, who has conducted the autopsy on the deceased has appeared as PW-3 and has proved the postmortem report. As per him, the cause of death was gunshot injury. He has also disclosed that the deceased must have had food about 3-4 hours prior to the incident. As per the doctor the incident could have occurred at 6.30 PM on 12.11.2004.

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PW-4 is Head Constable Rajpal Singh, who has proved the GD entry and other police papers.

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PW-5 is the first Investigating Officer, who has proved the inquest and other police papers. He has also proved the site plan as well as recovery of firearm from the accused Rai Singh. He has admitted that PW-1 in his statement under Section 161 Cr.P.C. had informed him that PW-2 met him outside the lane and the weapon assigned to Mahipal and Chetram was Kanta.

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On the basis of incriminating material placed during the trial by the prosecution, the statement of the accused were recorded under Section 313 Cr.P.C., who denied their implication and also alleged that they have been falsely implicated as accused Rai Singh had lodged the report in respect of murder of Gajju. The accused has further stated that the informant and the deceased were trying to snatch country made pistol on Diwali from each other and the fire accidentally occurred in which the deceased died. Accused Chet Ram stated that just because he is witness in the murder case of Gajju, he has been falsely implicated. Similar defence has been taken by accused Mahipal also. As per him, the country made pistol was accidentally fired which killed the deceased.

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The defence has also produced Hulasi as DW-1, who allegedly was running a PCO shop. He stated that on 12.11.2004 at 5.00 in the evening, he had closed his PCO shop and left for his house at Dalel Nagar. He has denied that any phone call was made from his PCO, as is alleged by the prosecution witness.

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Trial Court on the basis of evidence led in the matter has ultimately convicted all the three accused and sentenced them as per above. The trial court has found the testimony of PW-1 and PW-2 to be reliable and also observed that the oral testimony is corroborated by the postmortem report and the inquest.

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Challenging the judgment of conviction and sentence, Sri K.K. Mishra, appearing for the appellants submits that accused appellants have

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been falsely implicated in the present case on account of previous enmity. He further submits that the incident apparently had not been seen by anyone and it was a case of blind murder in which the three accused have been later implicated on account of previous enmity. Learned counsel further submits that there was neither any source of light nor presence of PW-2 is established at the place of occurrence. He also submits that the weapons assigned to the accused Mahipal and Chet Ram varies from one witness to another and their implication in the present case is not made out at all. Learned counsel further invited our attention to the fact that accused Rai Singh has been prematurely released by the State Government vide Government Order dated 05.07.2022 after he had suffered actual incarceration of 16 years 2 months 8 days whereas with remission the incarceration was 20 years 5 months 29 days.

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Learned AGA for the State, on the other hand, has supported the prosecution case and submitted that the finding of guilt has been returned by the court below upon evaluation of evidence on record which merits no interference.

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We have heard learned counsel for the parties and have carefully perused the materials on record including the trial court records.

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Specific case of prosecution is that on account of prior enmity the three accused surrounded the deceased while he had gone to buy bidi and after the deceased rushed inside the house to save himself, the three accused broke open the door and the accused Rai Singh shot from his country made pistol and the bullet hit on the chest of the deceased and he died. PW-2 and the wife of the deceased Meena Devi are also alleged to have witnessed the fleeing of the accused from the place of incident after the deceased was shot dead. As per the prosecution the motive for commissioning of the offence was the fact that the the deceased had kept

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the cousin of the accused Rai Singh, Mahipal and Chet Ram i.e. Meena Devi as his wife which was not liked by the accused.

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The incident has been proved by the prosecution on the basis of inquest as well as the postmortem report, which have been duly proved. As per the postmortem report the deceased was fired from the front and the bullet hit on his chest, due to which he died on account of shock and haemorrhage. The inquest report also shows that the deceased died on account of gunshot injury. The two prosecution witnesses of fact namely PW-1 and PW-2 have also averred that the deceased received gunshot injury authored by Rai Singh, on account of which he died. From the evidence so produced by the prosecution, it is apparent that the deceased sustained gunshot injury on 12.11.2004, which caused his death. The prosecution, therefore, has proved the death of the deceased to be homicidal.

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Although the postmortem report shows existence of three injuries but the main injury due to which the deceased has died is the gunshot injury. The postmortem report has been proved by PW-3. The other two injuries are in the nature of abrasion and abraded contusion and could have been caused by fall etc.

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So far as the role of accused appellants in committing the offence is concerned, the prosecution witnesses are consistent in implicating the accused appellant Rai Singh of firing the deceased from his country made pistol. The doctor has also opined that the cause of death is ante-mortem gunshot injury. PW-1 in his testimony has specifically disclosed the manner in which the incident occurred. PW-1 has specifically assigned the role of firing on the accused Rai Singh. As per the site plan the incident has occurred inside the house of the deceased. The presence of PW-1 at the place of occurrence cannot be doubted. His testimony regarding implication of accused Rai Singh of firing upon the deceased is specific

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and even in the cross-examination this witness has remained consistent. The witness has also stated that there was electricity light available at the place of occurrence, and as the accused were from the same village so he could easily recognize them.

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PW-2 allegedly arrived at the gate of the house when the three accused were exiting after committing the offence. PW-2, therefore, has not seen the incident with his own eyes. This witness, however, has heard PW-1 yelling that Rai Singh has shot dead the deceased.

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The testimony of prosecution witnesses as well as documentary evidence led on record clearly shows that the deceased died on account of gunshot injury caused by the accused appellant Rai Singh. Enmity has also been specifically alleged on part of the accused Rai Singh, as his cousin Meena Devi had married the deceased after leaving Nanhe. Upon evaluation of the evidence in its entirety, we are, therefore, in agreement with the view taken by the trial court, as per which the prosecution has succeeded in establishing the guilt of the accused appellant Rai Singh of firing upon the deceased, which caused his death. The conviction of the accused appellant Rai Singh is, therefore, affirmed.

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So far as accused appellants Mahipal and Chet Ram are concerned, the prosecution witnesses have alleged that they had accompanied accused Rai Singh in chasing the deceased inside his house. However, in the first information report there is no specific role assigned to Mahipal and Chet Ram either of carrying any firearm or causing any injury to the deceased. The prosecution witnesses have not been consistent on the aspect relating to possessing of weapon by these two accused. PW-1 in his statement made before the trial court has alleged that Mahipal and Chet Ram were carrying Kanta. There is, however, no injury of Kanta on the deceased, nor any Kanta has been recovered from them. PW-2, however, has alleged that Mahipal and Chet Ram were carrying knives. There is no

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injury of knife also caused on the deceased and no knife has otherwise been recovered from the accused Mahipal and Chet Ram. The injuries, which have been caused on the deceased are three in number. The first injury is a gunshot injury of which the author is accused Rai Singh, as per the prosecution witnesses. The other two injuries apparently have not been caused either by Kanta or by knife and possibility of such injuries being caused on account of fall etc. cannot entirely be ruled out. When we evaluate the prosecution evidence with regard to implication of accused Mahipal and Chet Ram, we find that the prosecution witnesses are not consistent with regard to the role imputed to these two accused. The weapon held by them are also differently specified by the two eye witnesses. We also find that Chet Ram was a witness in the murder case of Gajju, wherein the deceased Chote Lal was an accused. The possibility of false implication of Mahipal and Chet Ram, who happens to be the brother of accused Rai Singh, cannot thus be ruled out in the facts of the present case. We are persuaded to take such a view keeping in view that fact that though the incident occurred about 6.30 pm but the FIR has been lodged at 3.15 am, which is almost after 9 hours. The distance between the place of occurrence from the police station is only 5 kilometres. It is otherwise the prosecution case that all other relatives were called from the other village and only after due deliberation the FIR was lodged. As the enmity between the families is admitted to the prosecution, the possibility of implication of the brother of the accused Rai Singh could be as a result of consultation and an afterthought. We are, therefore, of the considered opinion that the prosecution has not been able to establish the guilt of the accused Mahipal and Chet Ram on the basis of evidence led in the matter, particularly as neither any specific role in the commissioning of offence is assigned to them, nor any recovery etc. has been made from them. The conviction and sentence of the accused appellants Mahipal and Chet Ram, therefore, cannot be sustained. The appeal, at the instance of

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accused appellants Mahipal and Chet Ram, therefore succeeds and is allowed.

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In view of the discussions and deliberations held above, we dismiss the appeal filed at the instance of accused appellant Rai Singh and the judgment of conviction and sentence dated 24.2.2007, as against such appellant, is affirmed. However, as the accused appellant Rai Singh has already been released, prematurely, by the State vide Government Order dated 5.7.2022, he shall not be taken in custody nor would be required to undergo the sentence in terms of the judgment and order passed by the court below dated 24.2.2007.

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So far as the accused appellants Mahipal and Chet Ram are concerned, since the appeal on their behalf has been allowed, the judgment of conviction and sentence dated 24.2.2007 is set aside at their instance. They shall be set free unless they are wanted in any other case, subject to compliance of section 437-A Cr.P.C.

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Order Date :- 2.8.2023 RA

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(Syed Aftab Husain Rizvi, J.) (Ashwani Kumar Mishra, J.)

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Digitally signed by :- RAZIQ ALI High Court of Judicature at Allahabad

Rai Singh and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

Rai Singh and Others v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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