HARI SINGH AND ANR.versusSTATE OF UTTAR PRADESH

             [2010] 14 (ADDL.) S.C R. 1079


                 HARi SINGH AND ANR.                            A
                             V.
              STATE OF UTTAR PRADESH
           (Criminal Appeal No. 1312 of 2004)
                  DECEMBER 16, 2010
                                                                B
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                  PRASAD, JJ.]

     Penal Code, 1860: s.302134 - Murder - Two brothers
equipped with a lathi and a country made pistol, entered the    C
house of victim at night - One of the accused fired a shot at
the victim from a close range resulting in his death -
Conviction by courts below - Appeal against conviction - One
of the accused died during pendency of appeal, therefore, his
appeal abated - Held: Deposition of eye-witnesses indicating    Q
previous business rivalry between the deceased and the
accused and threats by accused to the deceased - Both the
parties were well known to each other - While running away,
the two accused passed within an arm's length of the eye-
witnesses - No reason to doubt the testimony of eye-            E
witnesses who stated to have identified the accused in torch
light - Merely because the torch was not taken into
possession would not mean that the statements of the eye
witnesses were not credible ··- Spontaneity of the FIR giving
all relevant details fortified the prosecution story - The      F
medical evidence clearly suggested the use of the pistol from
point blank range - Conviction upheld - Code of Criminal
Procedure, 1973 - s.394.

    The prosecution casa was that the deceased had
purchased a brick kiln three months prior to the incident.      G
The accused was also running a brick kiln nearby. Few
days prior to the incident, the accused and his brother
clandestinely removed a large number of bricks from the

                            1079                                H.
    1080 S~PREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A kiln of the deceased. When the deceased questioned the
  said ac~, they told him that they would not allow his kiln
  to run. On the night of the incident, the deceased was
  sleepin g in the verandah of his house. The accused
          1


  armed with a lathi and his brother with a country made
B pistol ~ntered the house of the deceased and the latter
  fired a shot at the deceased. On hearing the sound, PW-
  1, the son of the deceased, and PW-5 flashed a torch and
  also r~ised a cry attracting PW-6 and another person to
  the spot. These witnesses also saw the accused running
c out of the verandah towards the lane carrying their
  weapons. PW-1 proceeded to the police station and
  lodged the FIR at 5.45 p.m.

      The trial court convicted both the accused under
  Sections 302/34 IPC on the basis of evidence of PW-1
D and PW-5 and sentenced them to life imprisonment. The
  High Court endorsed the testimony of PWs 1 and 5 as
  well as of PW-6, the third eye witness, whose testimony
  had not been accepted by the trial court, and dismissed
  the appeal. The instant appeal was filed challenging the
E order of the High Court. During the pendency of the
  appeal, one of the accused died. His appeal was,
  accordingly, disposed of as having abated under Section
  394, Cr.P.C.

F      Dismissing the appeal, the Court

      HELD: PW-1 had very categorically deposed about
  the b1-1siness rivalry that existed between the accused
  and the deceased and their conflicting interests as both
  the kilns were in close proximity to each other. It also
G came in the prosecution evidence that the accused was
  holdinfj out threats to the deceased and that the threat
  was carried out on the day in question. The perusal of
  the site plan revealed that while running away, the
  accused had passed within an arms length of PW-1 and
H
      HARi SINGH AND ANR v. STATE OF UTTAR               1081
                   PRADESH

 PW-5. As per the evidence on record, the night of the           A
 murder was a moonless one but there is no reason to
 doubt the testimony of the eye witnesses who stated that
 they had identified the accused in the torch light, more
 particularly, as both the parties belonged to the same
 village and were well known to each other. Merely               B
 because the torch was not taken into possession by the
 ASI would not mean that the statements of the eye
 witnesses were not credible. The spontaneity of the FIR
 giving all relevant details fortified the prosecution story.
 The prosecution story was that the accused had fired at         c
 the deceased with a country made pistol from a very
 close range. The doctor PW-2, who had conducted the
 post-mortem examination found one wound of entry
 about 3 cm x 2.5 cm with blackening and charring and
 also recovered 160 pellets and three wads from inside the
                                                                 0
 dead body. The medical evidence clearly suggested the
 use of such a weapon from almost point blank range.
 [Para 6] [1085-B-H; 1086-A-B]

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. 1312 of 2004.                                               E

       From the Judgment & Order dated 27.2.2004 of the High
  Court of Judicature at Allahabad in Criminal Appeal No. 1486
· of 1981.        ··

     Jaspal Singh, Mukesh K. Giri, Vidya Bhardwaj for the        F
 Appellants.

     Manoj Kumar Mishra, Praveen Swarup for the
 Respondent.
                                                                 G
     The Judgment of the Court was delivered by

     HARJIT SINGH BEDI, J.

     This appeal arises out of the following facts:
                                                                 H
    1082 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A        1. The accused Hari Singh of village Suthari was running
    a brick kiln on the outskirts of the village. Subsequently, one
    Randhir Singh installed another brick kiln nearby. Hari Singh
    and his brothers, however, did not allow Randhir Singh to run
    his brick kiln effectively and ultimately Randhir Singh sold his
B   brick kiln to Guiab Singh deceased some three months prior
    to the incident. About 15 days prior thereto, Hari Singh and his
    brother Mohar Singh clandestinely removed a large number of
    bricks from Guiab Singh's brick kiln and on being questioned
    by him they told him that they would not allow his kiln to run. On
c   the night intervening 7th and 8th June, 1980 at about 1.00 a.m.
    Guiab Singh was asleep in the verandah of his house when Hari
    Singh armed with a lathi and Mohar Singh with a country made
    pistol entered the house and the latter fired a shot at Guiab
    Singh. On hearing the sound, Prem Pal PW-1, the son of the
    deceased and Kalu @ Anand Swarup PW-5, flashed a torch
0
    and also raised a cry attracting Jagdish PW-6 and one Mukhara
    to the spot. These witnesses also saw the accused running out
    of the verandah towards the lane carrying their weapons. Prem
    Pal then made his way to Police Station, Muradnagar at 5.40
    a.m. and lodged the FIR at 5.45 a.m. A case under Section 302
E   was, accordingly, registered against the accused. Sub-
    Inspector Hari Raj Singh, the SHO of Police Station
    Muradnagar, along with a police force went to the scene of
    occurrence whereafter Sub-Inspector Pooran Singh recorded
    the inquest proceedings on the dead body. Sub-Inspector Hari
F   Raj Singh, however, recorded the statements of the witnesses
    and after inspecting the site, prepared the site plan Ex. Ka.14.
    He also picked up a blood stained 'khes' and a bed sheet from
    the bed where Guiab Singh had been shot. The dead body was
     also dispatched for its post-mortem which was carried out by
G    Dr. M.K.Goel at 4.30 p.m. on the 8th of June 1980 and the
     examination revealed an ante-mortem firearm wound of entry
     3 cm x 2.5 cm on the lower part of the left side of the chest
    with blackening and tattooing around the wound. The doctor
     also removed 160 small pellets and three wads from the body.
H
     HARi SINGH AND ANR v. STATE OF UTTAR                  1083
        PRADESH [HARJIT SINGH BEDI, J.]

On the completion of the investigation, the accused were            A
charged for an offence punishable under Section 302/34 of the
IPC and as they pleaded not guilty, they were brought to trial.

     2. The prosecution in support of its case relied primarily
on the evidence of PW1 Prem Pal, PW-5 Kalu and PW-6
                                                                    B
Jagdish, PW-2 Dr. M.K.Goel, who had conducted the autopsy
on the dead body, and of PW-7 Sub-Inspector Hari Raj Singh,
the main investigating officer. The accused when questioned
under Section 313 of the Cr.P .C, denied the allegations levelled
against them and pleaded that they had been implicated due
to party faction in the village. They also examined Constable       C
Satya Pal Singh as DW-1 who proved the report lodged by
Randhir Singh on the 25th May 1980 at 1.30 p.m. at Police
Station Muradnagar, against Guiab Singh and one Ramesh
under Sections 504 and 506 of the IPC.
                                                                    D
      3. The trial court relying on the evidence of PW-1 and PW-
5 convicted the accused for the offence punishable under
Section 302/34 and sentenced them to imprisonment for life.
An appeal was thereafter taken to the High Court. The High
Court endorsed the testimony of PW's 1 and 5 as well as of          E
Jagdish PW-6, the third eye witness, whose testimony had not
been accepted by the trial court, and dismissed the appeal. The
Court observed that though all the three eye witnesses had been
subjected to a gruelling cross-examination they had withstood
the same and not crumbled thereunder. The Court also found          F
that the suggestion that the accused had been falsely roped in,
was not acceptable for the simple reason that the FIR had been
lodged within a short time in the facts and circumstances of the
case. It was pointed out that the incident had happened at about
1.00 a.m. of the night intervening 7th and 8th of June 1980 and     G
as per the statement of PW-1, the family members had been
completely shattered by what had happened and that PW-1 had
left for Police Station, Muradnagar 11 km. away on foot and
lodged the report at 5.45 p.m. The Court, accordingly, observed
that the very manner in which the FIR had been lodged spoke
                                                                    H
    1084 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A volumes about its authenticity. The Court also rejected the
  argument that as the special report had allegedly been delivered
  late, it appeared that the FIR had been ante-time, as being
  without substance. The appeal was, accordingly, dismissed.
  The present appeal was filed by the two accused. During the
B pendency of the appeal, however, Mohar Singh has passed
  away. The appeal of Mohar Singh is, accordingly, disposed off
  as having abated under Section 394 of the Cr.P.C. We are,
  accordingly, called upon to examine only the appeal pertaining
  to Hari Singh.
c      4. Mr. Jaspal Singh, the learned senior counsel, has raised
  primarily one argument during the hearing of this matter. He has
  pointed out that as per the evidence of Prem Pal and Kalu,
  PWs., they had been fast asleep at some distance from the
  deceased when the fatal shot had been fired at him and as the
D accused had immediately run away into the street, it appeared
  that their identification could not have been made. It has been
  emphasized that the prosecution story that the accused had
  been identified by these two witnesses in the light of a torch,
  could not be believed as the site plan prepared by the ASI did
E not indicate so and as there was no evidence to show that any
  torch had been taken into possession by the investigating
  officer. It has also been pleaded that Jagdish was sleeping in
  his house some distance away at point "E" in the site plan and
  as such it would have been difficult for him to have got up and
F to have seen the accused running away within such a short
  time.

       5. These arguments have been strongly refuted by the
  learned counsel for the State. He has been pointed out that the
  factum of the torch had been mentioned by Prem Pal not only
G in the FIR but even by the other witnesses in their statements
  under Section 161 of the Cr.P.C. and merely because the torch
  had not been taken into possession by the ASI would not lead
  to the inference that no torch had, in fact, been available. it has

H
     HARi SINGH AND ANR v. STATE OF UTTAR                   1085
        PRADESH [HARJIT SINGH BEDI, J.]

been pleaded that the FIR having been registered promptly            A
spoke volumes of the prosecution story.

      6. We have heard the arguments advanced by the learned
counsel for the parties very carefully. PW-1 has very
categorically stated to the business rivalry that existed between    B
the accused and the deceased and their conflicting interests
as both the kilns were in close proximity to each other. It has
also come in the prosecution evidence that the accused had
been holding out threats to the deceased and it appears that
the threat had been carried out on the day in question. We have      C.
also perused the site plan Ex.Ka. 14 and the same is, indeed,
revealing. Point "A" in the site plan is the place where the
deceased Guiab Singh had been shot and killed. Point "BB"
is the place where Prem Pal and Kalu PWs. had been lying
asleep. This shows that while running away, the accused had
passed within an arms length of these two witnesses. The site        D
plan also marks the route that the accused took while escaping
from the murder site and it shows that after firing the shot at
 point "A" the two accused had skirted and run past point "BB",
 across the door of the residence of Jagdish at point "E" and
 then to the rasta adjoining the chabutra of the house of Ram        E
 Singh. It is true, that as per the evidence on record, the night
 of the murder was a moonless one but we have no reason to
 doubt the testimony of the eye witnesses when they say that
 they had identified· the accused in the torch light, more
 particularly as both the parties belonged to the same village and   F
 were well known to each other. We are of the opinion that
 merely because the torch had not been taken into possession
 by the ASI would not mean that the statements of the eye
 witnesses were not credible. We find, also, that the spontaneity
 of the FIR giving all relevant details fortifies the prosecution    G
 story. The prosecution story is that the accused had fired at the
 deceased with a country made pistol from a very close range.
 The doctor PW-2, who had conducted the post-mortem
 examination found one wound of entry about 3 cm x 2.5 cm with
                                                                     H
    1086 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   blackening and charring and also recovered 160 pellets and
    three wads from inside the dead body. The medical evidence
    clearly suggests the use of such a weapon from almost point
    blank range. There is, thus, no merit in the appeal. It is,
    accordingly, dismissed.
B
    D.G.                                    Appeal dismissed.