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PETITIONER: DALEEP SINGH

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       19/11/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T M.K. MUKERJEE, J. 1.   Daleep Singh, the appellant before us, and seven others were  arraigned   before  the   Additional  Sessions  Judge, Moradabad for  rioting, murder  and other  allied  offences. During pendency  of the  trial one of them, namely, Jahangir singh, died. The trial ended with conviction and sentence of the appellant  under Section  302 IPC  and acquittal  of the other  six.   Aggrieved  by  his  conviction  the  appellant preferred an  appeal which  was dismissed by the High Court. Hence this appeal at his instance. 2.   According to  the prosecution  case, at  the  time  the incident, with  which he  are concerned in this appeal, took place a  proceeding under Section 145 Cr.P.C. was pending in the Court  of Sub Divisional Magistrate, Amroha, between the appellant, who  is a  resident of village Bhankori, and Teka Yadav of  village Ram  Sarai. On  May 11, 1977, a date fixed for hearing  of the above proceeding, Teka Yadav accompanied by his  village Pradhan  Sish Raj  Singh  (P.W.4),  his  co- village Ashok  Kumar (P.W.1’s)  uncle Ram Pal (the deceased) and friend Veer Singh (P.W.2) went to Amroha in a car, which belonged to  and was driven by Ram Kumar, for pairvi in that case. On their way back from Court Teka Yadav parted company at amroha  and the other four continued their journey in the same car.  Near the  bust stand of village Umori, One of its tyres got  punctured. Leaving  the car there they got into a bus which  came from  the side  of Amroha.  In that bus they found the  eight accused  persons sitting armed with gun and other weapons.  After they  got into  the bus  the appellant asked the driver to proceed but Ram Pal requested the driver to wait  awhile as one of their men was still to board. Over this issue  a  quarrel  ensued  between  Ram,  Pal  and  the appellant. In  course thereof  the other accused persons got up from their seats and started abusing Ram Pal. Immediately thereafter the  appellant fired  at Ram  Pal who fell on his seat and  died.  The  other  accused  persons  also  started assaulting them  with Kirpans  and other  weapons.  To  save their lives,  when Ashok  Kumar and Veer Singh were about to get down  from the  bus two  or them  fired  at  them  as  a consequence whereof  Veer  Singh  sustained  injury  on  his

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thigh. All the accused persons then run away. 3.   Ashok  Kumar   prepared  a  written  report  about  the incident and  accompanied by Sish Raj Singh and injured Veer Singh went  to Chajlait  Police Station  to lodge  the same. S.I. Anil Kumar registered a case on that report and took up investigation. he  sent Veer Singh to the District Hospital, Moradabad for  treatment and  then proceeded to the scene of occurrence along  with Ashok  Kumar and  Sish Raj  Singh. He held inquest  upon the dead body of Ram Pal, which was lying inside the  bus and  sent it for post-mortem examination. On completion  of   investigation  he   submitted  charge-sheet against the  accused persons  and in due course the case was committed to the court of session. 4.   The  appellant   pleaded  not  guilty  to  the  charges levelled against  him and contended that he had been falsely implicated out  of  enmity.  In  support  of  its  case  the prosecution  examined   14  witnesses  but  no  witness  was examined on behalf of the defence. 5.   Of the  witnesses examined  by  the  prosecution  Ashok Kumar (P.W.1),  Veer Singh  (P.W.2), Sish Raj Singh (P.W.4), and Ram  Nath (P.W.9)  figured  as  eye  witnesses  Mahendra (P.W.7), the  conductor of  the bus  in  question  was  also examined by  the prosecution  to  give  an  account  of  the incident but  he turned  hostile. The  trial Court held that the evidence of P.Ws. 1,2 and 4 so far as it sought to prove that the  appellant fired at Ram Pal as a result of which he died could be safety relied upon as it stood corroborated by the medical  evidence. Since  their evidence  regarding  the roles of the other accused in the assault on Ram Pal was not corroborated by  medical evidence  the Court  gave them  the benefit of  doubt. As  regards the assault on Veer Singh for which a  charge under  Section 307 read with Section 149 IPC was framed against the accused the trial court observed that through there was no doubt that he was fired at while he was getting down  from the  bus, there  was discrepancy  in  his evidence as  to who  fired at  him, for  earlier before  the Magistrate who  recorded his  statement as dying trial named two of  the other  accused persons.  On  far  as  P.W.9  was concerned the  Trial Court   felt that his identification of the appellant,  who was  not known to him from before, could not be relied upon in absence of T.I. Parade held earlier to test his  ability to remember the features of the miscreant. In dismissing  the appeal  of the  appellant the  High Court concurred with all the above findings of the trial Court. 6.   Having regard to testimony of Dr. Manju Rastogi (P.W.8) who claimed  to have  examined Veer  Singh  (P.W.2)  at  the District Hospital,  Moradabad on  May 11,  1977 at 7.30 P.M. and found two gun shot wounds, one of entry and the other of exit, the presence of veer Singh at the time of incident and his having  been fired  at cannot be disputed. Still then we would leave his evidence out of our consideration in view of the material  out  of  our  consideration  in  view  of  the material  contradiction  brought  on  record  regarding  his assailant. 7.   That brings  us to  the evidence  of the other two eye- witnesses, namely, P.Ws. 1 and 4. From their evidence we get that after  an  altercation  that  took  place  between  the accused persons  and the deceased over the string of the bus the appellant  fired at  Ram Pal from his gun as a result of which he fell down inside the bus. We need not however refer to their  evidence relating  to the  subsequent part  of the incident in  view of  the acquittal  of  the  other  accused persons of  all the  charges. Their  evidence so  far as  it seeks to prove that the appellant fired at Ram Pal is clear, consistent and cogent. They were cross examined at length on

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behalf of  the accused  person but nothing could be elicited to discredit them except that they were inimical towards the appellant. It  was suggested  to both of them that they were not present  at the  time of the incident but the suggestion was denied. it is trite that enmity is a double-edged weapon as it  may provide  a motive for the crime as also for false implication. However, in view of the admitted enmity between the parties  we have  carefully scrutinised  the evidence of these two  witnesses and  sought for  its corroboration. Our such exercise  leads us  to conclude  that  not  only  their evidence is  trustworthy but  their  evidence  stands  amply corroborated. Their claim that they had gone to the court of the Sub  Divisional Magistrate,  Amroha for attending to the case under Section 145 Cr.P.C. is borne out by the certified copy of  the order (Ext.Ka.20) passed in that proceedings on that day  (May 11,  1977). The  order  indicates  that  they lawyers for  the parties  were  present  but  the  case  was adjourned as  the concerned magistrate had gone to Moradabad in  connection   with   some   election   duty.   The   next corroboration of their evidence is furnished by the evidence of P.W.7,  the bus conductor. It is, of course, true that he was declared  hostile as  he  did  not  support  the  entire prosecution case but he testified that the bus (UPM 3265) of which he  was the  conductor on the date in question reached Umori bus  stand at  or about  2.45 P.M. He next stated that after the bus stopped there, the passengers started boarding it but  he could not say how many passengers boarded the bus as he  had gone  to the nearby hotel. When he along with the driver of  the bus  was sitting  in the  hotel a firing took place in  the bus  in which  one of the passengers died. The evidence of  P.W.1 next  gets ample  support from the FIR he lodged  at  the  police  station  within  one  hour  of  the incident.  In   the  FIR   THE  entire   substratum  of  the prosecution case  finds place including the presence on Sish Pal Singh (P.W.4) in the bus along with him. 8.   Coming now  to the  medical evidence  we find  that Dr. Dinesh Mohan  (P.W.11) held post mortem examination upon had dead body of Ram Pal on may 12, 1977 and found the following injuries on his person:-      "1. Guns shot wound 3 cm. * 1 cm. *      thoracic cavity  deep over  lateral      end of  right collar  bone. Margins      were inverted. There was blackening      and charring around the wound.      2. Contusion  3  cm.  *  2cm.  over      lateral side  of the front of chest      2 cm. below left nipple."      According to  the doctor  Ram Pal died due to shock and haemorrhage caused  by the  gun shot injury. The evidence of the doctor, therefore, fully supports the testimonies of PWs 1 and 4. 9.   Having carefully  gone through  the entire  evidence on record we  are of  the opinion  that both the learned Courts below were  fully justified in concluding that P.Ws. 1 and 4 were reliable witnesses and we find no reason to differ with the view  so expressed.  Their evidence along with the other evidence  discussed   above  conclusively  proves  the  case against the appellant. 10.  In the  result we  do not find any merit in this appeal and the  same is  dismissed. The  appellant, who is on bail, will now  surrender to  his  bail  bond  to  serve  out  the remainder of the sentence.