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SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI, BAHARUL ISLAM AND A. VARADARAJAN, JJ.
State of U.P., Appellant
Versus
Suresh alias Chhavan and others, Respondents.
Criminal appeal No. 503 of 1976
Decided on 5-5-1981
Constitution of India,1950 – Indian penal code,1860 – Section 307 - Section 302 - Section 34 - Special leave – Acquittal - Whether prosecution should have examined some other persons who were present at time of occurrence, but it is whether the evidence of who have been put forward as eye-witnesses is acceptable or not for proving case of the prosecution against the accused - Learned Judges of High Court were not right in doubting time and place of occurrence in this case and observing that occurrence must have taken place much later than 6 p.m. after sun set which had taken place - Evidence of Investigating Officer PW that bloodstained earth was recovered from chabutra of has not been challenged in cross-examination - Case of prosecution was this There was enmity between the throe accused on one hand and deceased victim other - There were a number of criminal cages between accused and - In the last of those cases was convicted by Trial court for murder of one brother of Ram Kishan and Bhajorey; but on appeal was acquitted by High Court - Brother was prosecution witness in that case against - Figured as a prosecution witness in case in which accused was prosecuted for murder of his wife - occurrence in the present case is stated to have taken place in this background - Investigating Officer PW proceeded to scene of occurrence and recovered bloodstained earth from chabutra of autopsy on the body of Virendra Singh and found sixteen wounds including three gunshot wounds of which two were entry wounds on about umbilicus on he left side of abdomen and on left side of the chest incised wounds lacerated wound and abrasions - Thoracic vertebrae were found fractured - Both kidneys were found lacerated and torn - right eye ball was found cut - pleura was found punctured on the right side - Gall-bladder was lacerated - Doctor PW opined that injuries were sufficient in ordinary course of nature to cause death – Held, There is no reason to hold that P W could not have been present during occurrence. evidence of is clear and convincing - There is no reason to suspect genuineness of dying declaration - Evidence of P.Ws. and the dying declaration prove satisfactorily and beyond reasonable doubt that three accused came to scene of occurrence armed with deadly weapons that Suresh fired two shots at deceased with his double barrel gun with intention of killing him and that after fell down on receipt of two gun shot injuries attacked him respectively common intention of murdering him as a consequence of which died at some time before- During the night of - Evidence of the Doctor P.W. Who conducted autopsy on the body of proves that injuries sustained by are sufficient in ordinary course of nature to cause death - In these circumstances we are of the opinion that learned Sessions Judge was perfectly justified in relying upon oral evidence of P.Ws and dying declaration and convicting the accused u/s. 302 r/w S. 34, I.P.C. and that learned Judges of High Court were not justified in rejecting evidence and coming to conclusion that prosecution has not proved time and place of occurrence as well as the guilt of accused beyond reasonable doubt - Appeal allowed
JUDGMENT
VARADARAJAN, J.:— This appeal by special leave is by the State of Uttar Pradesh against the acquittal of the respondents-accused, Suresh alias Chhavan s/o Kalyan Singh (hereinafter referred to as Suresh) and Ram Kishan and Bhajorey sons of Madho Singh, all residents of Miholi village situate within the limits of Auraiya Police Station in Etawah district. Suresh is said to be the first cousin of Ram Kishan and Bhajorey, who are brothers. The learned Sessions Judge, Etawah, who tried these three accused in Sessions Trial No. 140A of 1974, convicted all of them u/s. 302 r/w S. 34, I. P. C. for the murder of Virendra Singh, the husband of Kanti Devi, PW 1 and sentenced Suresh to death and Ram Kishan and Bhajorey to imprisonment for life. The usual reference for confirmation of the sentence of death by the High Court was made by the learned Sessions Judge. All the three accused filed Criminal Appeal No. 2508 of 1974 against their conviction by the Sessions Judge and the sentences awarded to them.
2. The case of the prosecution was this : There was enmity between the throe accused, Suresh Ram Kishan and Bhajorey on the one hand and the deceased victim Virendra Singh on the other. There were a number of criminal cages between the accused and Virendra Singh. In the last of those cases, Virendra Singh was convicted by the Trial court for the murder of one Ram Swarup, the brother of Ram Kishan and Bhajorey; but on appeal Virendra Singh was acquitted by the High Court on 11-12-1972 (vide judgment Ext. Ka-24). Shital, the brother of Suresh was the prosecution witness in that case against Virenda Singh. Virendra Singh figured as a prosecution witness in the case in which accused Ram Kishan was prosecuted for the murder of his wife. The occurrence in the present case is stated to have taken place in this background.
3. On 7-2-1974 Virendra Singh had gone to the Panchayat Bhavan, Miholi for having darshan of Jaini Baba, who appears to have come there with certain Jain pilgrims. Virendra Singhs wife, PW 1, went to that place for having darshan of the Jain pilgrims and also for calling her husband for taking his meals. Virendra Singh was standing at that time on the chabutra of the Panchayat Bhavan. Then Suresh armed with a double barrel gun and Ram Kishan and Bhajorey armed with a Dharia and a Kanta respectively came there at about 6 p.m. Suresh proclaimed that "the enemy is standing alone, kill him" and fired at Virendra Singh with his gun on the back side (arm side). When Virendra Singh turned, Suresh fired a second shot at him and struck him on the front side of the abdomen. Virendra Singh fell down on the chabutra. Thereafter Ram Kishan and Bhajorey attacked Virendra Singh with their respective weapons. Virendra Singh and PW 1 raised alarm, and Chottey Lalla alias Avinash Kumar (PW 5) and Gorey Lal (PW 6) and Ram Sandhani came there and saw the incident. All the three accused ran away towards the south. The injured Virendra Singh was taken by the villagers accompanied by PW 1 to the Government Hospital, Auraiya, situated five miles away at about 8.45 p. m.
4. Dr. Chandrajeet Singh, PW 4, who was in the Hospital at Auraiya, examined Virendra Singh and gave him first aid. As the condition of Virendra Singh was serious, PW 4 sent an intimation to the Tehsildar/Magistrate (PW 3) for recording his dying declaration. PW 3, who received that intimation at about 9.10 p.m. reached the hospital at 9.25 p..m. and recorded Virendra Singhs statement, Ext. Ka-4 in the presence of the Doctor, PW 4, who has certified in Ext. Ka-4A that the patient was conscious throughout. PW 3 obtained the thumb impression of Virendra Singh in the dying declaration Ext. Ka-4. PW 4 referred Virendra Singh to the hospital at Kanpur for further treatment.
5. After Virendra Singh was taken to Kanpur in a mini bus, PW 1 went to the police station at Auraiya, and her First Information Report Ext. Ka-1 was recorded at 9.45 p.m. by the constable, PW 7. Virendra Singh died
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