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PETITIONER: MOHAN SINGH

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT:       20/11/1997

BENCH: G.T. NANAVATI, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 20TH DAY OF NOVEMBER, 1997 Present:              Hon’ble Mr. Justice G.T. Nanavati              Hon’ble Mr. Justice G.B. Pattanaik R.C. Kaushik,  Sat pal  Singh and  D.K. Garg, Advs., for the appellant A.S. Pundit,  Alkhil Kaushik  and R.K.  Singh, Advs. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: NANAVATI, J.      This appeal  is directed against the judgment and order passed by  the Allahabad  High Court  in Criminal Appeal No. 754 of 1978.  The High Court confirmed the conviction of the appellant under section 302 IPC.      The appellant was tried with four other accused for the murder of  Vijay Singh,  son of Jang Bahadur Sing of village Burchuni.  All the five accused, because of previous enmity, were alleged  to have  gone to  the house  of Vijay Singh on 7.7.1976 at  about 3.30  p.m.   They then  climbed over  the Varandah of  his house where Vijay Singh was lying on a cot. They first  abused him.   Thereafter  some of  them exhorted Mohan Singh, the appellant to kill him as he was the root of all the  litigation.   Thereupon, the appellant fired a shot from his  gun which  hit Vijay  Singh who was sitting in the kitchen about  10 feet  away from  the cot  of the  deceased raised an  alarm as  a result  of which  Man Singh,  PW2 and Pratap Singh,  PW4 came there running.  They saw the accused running a way from the roof.      In the  Trial Court, the prosecution had examined these three witnesses.  The Trial Court found the evidence of PW3, Chandrakali fully reliable.  The Trial Court also found that her evidence received support from the evidence of the other two witnesses  who had  been the  accused running  away soon after the  commission of crime and stood corroborated by the medical evidence.   However, it gave benefit of doubt to the other four  accused on  the ground  that the  possibility of their being  falsely implicated  could not  be ruled  out in view of the enmity between the parties.      The High  Court  or  re-appreciation  of  the  evidence

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agreed with  the finding  recorded by  the Trial Court.  The High Court found that no material contradiction was found in the evidence  of Chandrakali  and the  other witnesses.   We have also  carefully considered the evidence of Chandrakali. We find  that at  the time  of commission of the offence she was in  the kitchen  which was  in the Varandah itself where her son  was lying on a cot.  The evidence further discloses that before  firing the  shot the  accused had  abused Vijay Singh and there was exhortation to the effect that he should be killed  as he was the cause of all the litigation between them.   The abuses and the exhortation were bound to attract the attention of Chandrakali who was sitting at the distance of only  10 feet.  therefore, her evidence that she had seen the accused standing near the cot of her son and that out of the five  accused the  appellant  had  fired  the  shot  and injured her  son deserved  to be accepted.  It was submitted by  the   learned  counsel   for  the   appellant  that  the complainant to whom she had narrated the incident soon after it  was  committed,  has  not  specifically  stated  in  his evidence that  her aunt  had told  him that  appellant Mohan Singh had  fired the  shot.   In the FIR it was specifically stated by  him that  the shot was fired by Mohan Singh, i.e. the appellant.   His only source of information was his aunt who had  disclosed to  him how  the incident  had  occurred. Therefore, this  omission cannot  create any doubt regarding the evidence of Chandrakali PW3.      It was next urged the learned counsel for the appellant that according  to the  medical evidence  the death of Vijay Singh could  have taken  at about 6.00 a.m. and that appears to be  more probable  because Doctor who performed the post- mortem examination  has stated  that the large intestine was found full  of faecal matter.  The High Court has considered this aspect  and pointed  out that the medical evidence does not necessarily  lead to  that conclusion.   Vijay Singh was ill and  all the  while lying in a bed.  Moreover, there was no evidence  to show  when he  had taken his last meal.  The High Court  has rightly  observed that if really Vijay Singh had died at 6.00 a.m. then his dead body would not have been kept in the house till 4.00 p.m.      No other point was urged by the learned counsel for the appellant.   We find no infirmity either in the appreciation of the  evidence or in the reasoning of the High Court.  We, therefore, see  no reason to interfere with the judgment and order passed  by the High Court.  This appeal is, therefore, dismissed.   The appellant  shall surrender  to  custody  to serve out the remaining part of the sentence.