TMI Blog2013 (7) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... cused were charged for an offence under Section 302 read with Section 34 of Indian Penal Code The present Appellant in Crl. A. No. 1020 of 2004, as well as the Appellant in Crl. A. No. 1021 of 2004 were further charged for an offence under Section 379 of Indian Penal Code All the three accused were awarded life imprisonment for the charge under Section 302 read with Section 34 of Indian Penal Code And the present Appellants in these two appeals were further awarded two years rigorous imprisonment for the charge under Section 379 of Indian Penal Code When Crl. A. No. 815 of 1981 was pending before the High Court, the first Appellant Harihar Singh expired and his appeal, therefore, stood abated as against him as per the order of the High Court dated 11.02.2002. 3. It is in the above stated background, as on date, the appeal relating to Sheo Shankar Singh, the Appellant in Crl. A. No. 1020 of 2004 and Sarvajit Singh @ Sobhu, Appellant in Crl. A. No. 1021 of 2004, only survive for consideration. 4. As the story of the prosecution goes, on 13.06.1979 at 3.30 p.m. At Badhwa Chau Muhanion Kachcha Road, by the side of the godown of the Irrigation Department near the hovel of Vinod, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 4.30 p.m. And the injury report was marked as Ex. Ka4. The postmortem report issued by P.W. 4 Dr. Virendra Srivastava, was marked as Ex. Ka11. In the Section 313 questioning, while all the other accused pleaded not guilty and claimed to be falsely implicated on account of enmity, accused Sheo Shankar Singh contended that on the date of occurrence, he had gone to attend a marriage in the house of D.W. 1 Kanhaiya Singh at Singheri village, falling within the limits of Madganj Police Station, Ghazipur district. 7. Based on the evidence placed before the Trial Court, the Trial Court convicted the accused. Aggrieved over the same, they preferred appeals before the High Court in Crl. A. Nos. 814 and 815 of 1981 and the High Court having dismissed the appeals, the Appellants are before us. 8. We heard Mr. Mahavir Singh, learned senior Counsel appearing for the Appellant in Crl. A. No. 1020 of 2004 and Mr. Nagendra Rai learned senior Counsel appearing for the Appellant in Crl. A. No. 1021 of 2004. The State was represented by Mr. Vivek Vishnoi learned Standing Counsel for the State. 9. The sum and substance of the submissions made on behalf of the Appellants was that the non-rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for appreciating the submissions. 13. As far as the motive is concerned, according to the prosecution, one Raja of Ausanganj, a Zamindar, owned huge properties with whom one Mukhchand, father of the deceased Lorik, was employed as a gardener. On being satisfied with the services of the said Mukhchand, the Zamindar gave him a land for raising construction. Further as salary could not be paid to the said Mukhchand by the Zamindar, the Zamindar allowed him to segregate six bighas of land from the forest belonging to the Zamindar for cultivation. The said Mukhchand cleared off six bighas of land from the forest and stated to have started cultivating the same and after his death, his son one Basu, started working with the Zamindar. Since the price of the land increased by metes and bounds, the Zamindar wanted to reclaim the land, which ended in a prolonged litigation and ultimately the deceased and his brother stated to have succeeded in retaining the land. Irked by the above result, the Zamindar who was nurturing a grievance stated to have set up the accused who were local gundas to get rid of the deceased, his brother and his family members from the lands. It is stated that the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to disclose their names and that having regard to the background of the accused party who were notorious criminals, none of them were prepared to risk their life and give evidence in the Court. The Trial Court has also noted that the crime committed by the Appellants in shooting the deceased to death in the broad day light was so gruesome, there was a fear complex set in the minds of the people around that place and, therefore, mere non-examination of the other independent witnesses in the absence of any lacuna in the evidences of P. Ws. 1 and 3, cannot be held to be disastrous to the case of the prosecution. The said view was fully approved by the High Court and, in our considered opinion, there is no reason to take a different view than what has been held by the Courts below. The said submission of the learned senior Counsel, therefore, stands rejected. 17. It was then contended that the material evidence viz., the motorcycle in which the deceased is stated to have travelled as a pillion rider along with his son P.W. 1, was not produced and that in that context, the evidence of P.W. 8 was not properly appreciated by the Courts below. 18. When we refer to the evidence of P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plea of alibi, which was rightly rejected by the Courts below. 21. We have perused the evidence of D.W. 1. We find that his evidence was not precise in its substance in order to rely upon the same for accepting the plea of alibi. According to D.W. 1, his daughter got married on 12.06.1979 and that the marriage party had arrived on 12.06.1979 and left his house on 14.06.1979. As far as the Appellant in Crl. A. No. 1020 of 2004 is concerned, according to D.W. 1, though he was not related to him, his acquaintance was through his grandfather and his father and because of the said long standing friendship, the Appellant stayed in his house at 12.30 hours on 13.06.1979 and left his house only by 5.00 P.M. On the said date. D.W. 1 was tendered for examination on 03.03.1981 i.e., nearly 11/2 years after the date of occurrence. In the cross examination, he admitted that nearly 400 people attended the wedding and that he is not in a position to state as to who came at what time and remained in the premises, where the wedding was held. He would further admit that from the village to which the Appellant belonged viz., Ghazipur, except the Appellant, nobody else were known to him. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e found as regards the registration of the F.I.R. 26. The trial Court has noted that while the prosecution claimed that the occurrence took place at 3.30 P.M., the medical records and the evidence of P.W. 2 Dr. P.N. Tandon, discloses that P.W. 1 was examined by him on the same day viz., 13.06.1979 at 4.30 P.M. The Doctor has noted that the injury was fresh and that it could have occurred within six-hour duration. The Doctor also specifically answered to a question put to him that the injury could have happened at 3.30 p.m. On that day. In the course of cross examination, when the Doctor was asked as to how he was so very definite as to the freshness of the injury, the Doctor explained by stating that the freshness of the swelling can be known by the difference in the temperature at the spot of the swelling, as compared to the temperature in the rest of the portion of the body. The Doctor who is an independent witness/officer can have no inner reason to depose against the Appellants. In the said circumstances, there can be no reason to doubt the registration of the F.I.R., as contended on behalf of the Appellants. The said contention of the Appellants also, therefore, do not meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled. Accepting the said version of P.W. 3, we find that there was a specific statement made to the effect that the deceased was made to run by all the four accused who were holding weapons and all the four of them were firing towards the deceased. He would further state that while initially all the four were firing towards the deceased, subsequently two of them viz., Ranjit Singh and Shiv Shankar Singh, continued to fire towards the deceased and at the end, Ranjit Singh alone fired indiscriminately in order to ensure that the deceased succumbed to the injuries. Therefore, it is not as if P.W. 3 has merely stated that except two of the accused, the others did not fire at the deceased. According to him, all the four accused opened fire towards the deceased, who started to run and after the initial firing, two of the accused continued to fire pursuant to which the deceased fell down and finally, Ranjit Singh ensured that the deceased lost his breath. 29. Therefore, invoking of Section 34 was fully made out and the submissions to the contrary cannot be countenanced. The decision relied upon by the learned senior Counsel, therefore, does not in any way support the case of the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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