MOTI LAL Vs STATE OF U.P.
Case number: Crl.A. No.-001035-001035 / 2005
Diary number: 22525 / 2003
Advocates: PRADEEP MISRA Vs
RAVI PRAKASH MEHROTRA
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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1035 OF 2005
MOTI LAL & ORS. … APPELLANTS
VERSUS
STATE OF U.P. … RESPONDENT
J U D G M E N T
B. SUDERSHAN REDDY, J.
This appeal by special leave is directed against the
Judgment and Order dated 14th July, 2003 passed by the
High Court of Judicature at Allahabad in Criminal Appeal
No. 2405 of 2002 by which the conviction of the
appellants under Sections 148, 302 read with Section 149,
Section 307 read with Section 149, Sections 452 and 427
of the Indian Penal Code (IPC) recorded by the Sessions
Court in Sessions Trial No. 184 of 1995 is upheld except
in case of appellant Sharda Singh whose conviction
recorded under Section 148, IPC is altered to one under
Section 147, IPC whereas punishment of death sentence
imposed on the appellants Moti Lal, Surendra Singh,
Virendra Singh, Amar Singh and Dhunnan Singh is reduced
to one of rigorous imprisonment for life but other
punishments imposed on all the appellants for commission
of offences punishable under Sections 302 read with
Section 149, Section 307 read with Section 149, Sections
452 and 427 are upheld.
2. The facts leading to the present appeal are that on the
night intervening 24th/ 25th June, 1994 at about 1.45
a.m., one Motilal, Surendra Singh, Virendra Singh,
Sharda Singh, Miyadi @ Ram Miyadi Singh, Dhunnan Singh,
Amar Singh (all are appellants herein) along with Anil
Singh (not approached this Court) and Thagai Singh
(died during trial) armed with deadly weapons entered
the house of one Sita Ram Singh and attacked him and
other family members, resulting instantaneous death of
Sita Ram Singh and his two sons namely Surinder Singh
and Jai Govind and also injuries to the other family
members of Sita Ram Singh. The assailants had also set
fire to a motorcycle parked in the house of the
deceased Sita Ram Singh. In the attack, the appellants
used country made pistols (katta), gun, bomb, iron rod
(ramma), pharsa fitted lathi etc. The cause of attack
is due to rivalry between the family of deceased Sita
Ram Singh and the attacking party over a piece of farm
land in respect of which some cases were pending in the
Civil Courts.
3. Smt. Manju Singh (PW5) is the wife of the deceased Sita
Ram Singh who also sustained the injuries in the said
attack. She is the informant who rushed to the police
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station Hata on the same night and got prepared report
(Ex. Ka-1) based on which the First Information Report
(Ex. Ka-43) was issued at about 2.40 am for the
offences punishable under Sections 147, 148, 149, 302,
307 and 427, IPC against nine persons including the
appellants herein.
4. The injured were immediately sent to Primary Health
Center, Hata where they were medically examined by
Dr. Ghan Shyam Singh (PW8) between 5.30 and 6.30 a.m.
Mr. Umesh Chandra Misra, Investigating Officer (PW9)
visited the place of occurrence and found the dead
bodies of Sita Ram Singh, Surendra Singh and Jai
Govind. He seized the remnants of the burnt motorcycle
(Ext. Ka-37), the blood stained ramma (iron rod with an
edge on one end), empty cartridges, wads and pellets
from the spot (Ext. Ka-34 and Ka-35) and prepared a
site map, recorded statements of the injured and others
who were found to be conversant with the incident,
made inquest report (Ext. Ka-13, Ka-14 and Ka-15) and
sent the dead bodies for post-mortem. On the same day,
he arrested Sharda Singh, Anil Singh, Virendra Singh,
Thagai Singh (died during trial) and Surendra Singh and
also recovered one licensed gun (Ext. Ka-38) from the
house of one Toofani Singh who was found murdered
before half an hour of the present occurrence. Dr. K.
Singh (PW7) conducted post-mortem on 26th June, 1994,
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found ante mortem injuries on the persons of deceased
and opined the cause of death as “shock and
haemorrhage”. The post-mortem reports are Exts. Ka-2,
Ka-3 and Ka-4. The Doctor’s opinion and the details of
ante mortem injuries on the persons of the deceased
need not be referred in detail as they have been
noticed by the Courts below. On completion of
investigation, the I.O. submitted charge-sheet against
Motilal, Surendra Singh, Virendra Singh, Dhunnan Singh,
Miyadi Singh and Anil Singh for commission of offences
punishable under Sections 148, 302 and 307 read
with 149, 452 and 427 IPC whereas Sharda Singh, Amar
Singh and Thagai Singh were charged with the
offences punishable under Sections 147, 302 and 307
read with Section 149, 452 and 427, IPC.
5. Cognizance of the offences was taken by the Magistrate
who committed the case to the Court of Sessions vide
Sessions Trial No. 184 of 1995. The appellants pleaded
not guilty and preferred trial. The learned Sessions
Judge, upon appreciation of evidence and material
available on record, found that the prosecution has
successfully established its case and accordingly found
the appellants guilty of various offences and sentenced
them vide judgment dated 11th June, 2002. The details of
the conviction and sentence awarded are as under:
Name of Appellan Provisions under Sentence
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the accused
t No. which convicted Awarded
Moti Lal 1 Section 302 read with Section 149, IPC
Death Penalty and a fine of Rs.10,000/- in default, S.I. for 3 years.
Section 307 read with Section 149, IPC
R.I. for 7 years and fine of Rs.2,000/-, in default S.I. for 1 year.
Section 452, IPC R.I. for 1 year and fine of Rs.500/- in default, S.I. for 3 months
Section 427, IPC R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3 months
Section 148, IPC R.I. for 1 year
Surendra Singh 2
Same as shown against Appellant
No.1
Same as shown against Appellant No.1
Virendra Singh 3
Same as shown against Appellant
No.1
Same as shown against Appellant No.1
Amar Singh 4
Same as shown against Appellant
No.1
Same as shown against Appellant No.1
Dunnan Singh 7
Same as shown against Appellant
No.1
Same as shown against Appellant No.1
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Sharda Singh
5 Section 302 read with Section 149, IPC
Life imprisonment and fine of Rs.10,000/-, in default, S.I. for 3 years.
Section 307 read with Section 149, IPC
R.I. for 7 years and fine of Rs.2,000/-, in default, S.I. for 1 year.
Section 452 R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3 months.
Section 427, IPC R.I. for 1 year and fine of Rs.500/-, in default, S.I. for 3 months.
Section 148, IPC R.I. for 1 year
Miyadi Singh
6 Same as shown against Appellant
No.5
Same as shown against Appellant No.5
6. The learned Sessions Judge ordered the sentence to run
concurrently and further referred the matter to the
High Court for confirmation of death penalty as is
required under Section 366 of the Code of Criminal
Procedure. All the convicts jointly preferred Criminal
Appeal No. 2405 of 2002 before the High Court of
Judicature at Allahabad challenging their conviction
under different provisions of I.P.C. and imposition of
sentences.
7. The High Court, by the impugned judgment dated 14th
July, 2003, while rejecting the reference made by the
learned Sessions Judge for confirmation of death
penalty, awarded life sentence to the appellants Moti
Lal, Surendra Singh, Virendra Singh, Amar Singh and
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Dhunnan Singh for the offence committed under Section
302 read with Section 149, IPC and maintained their
conviction recorded under Sections 307 read with
Section 149, Sections 452, 427 and 147, IPC and
sentences imposed by Sessions Court. The High Court
also confirmed conviction of Sharda Singh, Miyadi Singh
and Anil Singh under Section 302 read with Section 149,
Section 307 read with Section 149, Sections 452, 427
and 148, IPC and sentences imposed for commission of
those offences. The High Court further altered
conviction of appellant Sharda Singh under Section 148,
IPC to one under Section 147, IPC while maintaining the
sentence. Aggrieved by the judgment of the High Court,
the appellants preferred the present appeal.
8. We have heard learned counsel appearing for the
appellants as well as the State and considered the
record of the case.
9. The prosecution, in support of its case, mainly relied
upon the evidence of Smt. Manju Singh (PW5) and Smt.
Kaushalya Devi (PW6). Be it noted that Smt. Manju Singh
sustained (1) two round lacerated wound of 0.5 c.m.
Radius each present in an area of 1 c.m. on front of
right thigh, 18 c.m. above right knee joint bone.
Bleeding was present; and (2) two round lacerated
wounds of 0.5 c.m. radius each present at a distance of
4 c.m. from each other in right groin, 10 c.m. above
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injury No.1. Bleeding with clotted blood was found
present. It was found that injuries were caused by
firearm, simple in nature and were fresh in duration.
She is the crucial witness and the entire case mainly
centres around her evidence. She, in clear and
categorical terms, stated that her husband Sita Ram
Singh and two sons Surendra Singh and Jai Govind were
murdered. On the fateful day, they were sleeping in the
house in the Chhappar of Dalan. The appellants Ram
Miyadi, Amar Singh, Moti Lal, Surendra Singh, Virendra
Singh, Dhunnan Singh, Sharda Singh along with Anil
Singh and Thagai Singh (since died during trial) barged
into her house. Anil Singh was holding gun, Sharda
Singh was having lathi, Miyadi was having bomb and Moti
Lal was holding katta (country made pistol). Surendra
Singh and Virendra Singh were also having kattas. Amar
Singh was having pharsa fitted with lathi. Anil Singh
and Virender Singh were sons of Sharda Singh. Dhunnan
Singh was armed with ramma. At the relevant time, the
lights were on in the house. Smt. Kaushalya Devi (PW6)
was also sleeping inside the house. Immediately upon
entering into the house, the appellants started abusing
the inmates and indulged in attack during which she
also sustained injuries on her body. The appellants hit
her husband and two sons with the weapons in their
hands. It is in her evidence that her husband and two
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sons died on the spot due to the injuries inflicted
upon them by the appellants. She also stated that
amongst others, Smt. Kaushalya Devi (PW6) had also
witnessed the occurrence. She also deposed that the
appellants set fire to the motor cycle that was parked
in the house. Upon hearing the sounds of bomb, guns and
shrieks neighbours came to the spot and witnessed the
occurrence. That immediately after the occurrence, she
went to police station, Hata and got prepared report
(Ext. Ka-1) from one Dwarika Tiwari, resident of Hata
and lodged report at police station. The appellants
were in inimical terms with Bichari Singh Vakil who
belonged to her family and there was a litigation
pending between them in respect of a piece of farm
land. It is also in her evidence that few minutes
before the incident, one Toofani Singh was murdered.
She explained that the other witnesses Smt. Vijai
Laxmi, Smt. Bela Devi, Ram Lachhan Singh and Ram Bilas
were won over by the appellants. Though this witness
was subjected to intense cross-examination, nothing
could be brought on record to impeach her credibility.
During her cross-examination, minor discrepancies with
reference to her earlier statement recorded under
Section 161, Cr.P.C. were brought on record which are
trivial in nature and the Courts below rightly ignored
them. She herself was injured in the incident,
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therefore, her presence at the time and place of
incident can hardly be doubted.
10.Smt. Kaushalya Devi (PW6), wife of Bichari Singh Vakil
corroborated the statement of Smt. Manju Singh (PW5).
She stated that she was sleeping inside her house and
woke up upon hearing the sounds of bomb blast. She
heard the appellants shouting that the deceased killed
Toofani singh and therefore, no one in his family
should be spared of their life. It may not be necessary
to repeat and recapitulate what has been stated by her
except to notice that she broadly corroborated the
statement of PW5. It is in her evidence that her
sister-in-law—Smt. Manju Singh (PW5) went to police
station, Hata to lodge report to police. She also
stated that there was enmity regarding a piece of farm
land between her husband Bichari Singh and Toofani
Singh and it so happened that Toofani Singh was
murdered in the same night. Her evidence is fully
corroborated by the testimony of PW5 and as well as the
other evidence available on record.
11. Be it noted, the appellants have not disputed the date
and place of occurrence. According to the prosecution,
the incident took place on the intervening night of
24th/25th June, 1994 at about 1.45 a.m. The report of
occurrence was lodged at 2.40 a.m. on the same
intervening night. The police station is at a distance
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of about five kilometres. It is in the evidence of Smt.
Manju Singh (PW5) that she went to police station on a
cycle of an unknown person. The fact remains that she
and other injured persons were examined between 5.30
and 6.30 a.m. on 25th June, 1994. Dr. Ghanshyam Singh
(PW8) who examined the injured persons, in clear and
categorical terms, stated that the injuries could have
been caused at 1.45 am in the same night. In the
circumstances there is nothing on record to disbelieve
her evidence.
12.In this appeal, Shri Nagendra Rai, learned senior
counsel appearing on behalf of the appellants
strenuously contended before us that the appellants
have been falsely implicated due to enmity between the
parties. According to him, the first information report
was not lodged at 2.40 a.m. as alleged by the
prosecution but it was lodged during day time after due
deliberations to falsely implicate the appellants. The
contention was that no crime number was mentioned in
the injury report as well as inquest and it is clearly
apparent even to a naked eye that there was
interpolation in the first information report as
regards the timing which makes claim of Smt. Manju
Singh highly unbelievable that in that atmosphere, she
went to the police station on the bicycle of an unknown
person and lodged the first information report. Another
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aspect highlighted by the learned counsel was that
Dwarika Tiwari who is stated to be the scribe of the
report was not examined. These factors according to the
learned senior counsel cast a shadow and doubt on the
prosecution story.
13.Both the Courts below found that there is some
overwriting in the original report (Ka-1) and Chick FIR
(Ka-43) as regards the timing. Initially, it was
written as 1.30 a.m. in the night and subsequently some
re-writing was made and time of occurrence was shown as
1.45 a.m. There is no dispute that Toofani Singh was
murdered at about 1.30 a.m. in the same night and the
present incident admittedly has taken place subsequent
to the murder of Toofani Singh. It is thus clear that
the occurrence had taken place after 1.30 a.m.
Admittedly, the murder of Toofani Singh and occurrence
in the present case had taken place one after the other
in that sequence at different places. It is not in
dispute that the houses of Toofani Singh and deceased
Sita Ram Singh are not adjacent to each other. In the
circumstances, there cannot be any doubt whatsoever
that the incident had taken place at about 1.45 a.m.
after the murder of Toofani Singh at about 1.30 a.m. As
rightly observed by the Courts below, the police in
some confusion, initially treated the present case as
the cross case of Crime No. 151 of 1994 concerning the
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murder of Toofani Singh and accordingly registered the
case as Crime No. 151A of 1994. It is evident from the
evidence of Umesh Chandra Misra, the Investigating
Officer (PW9) that it was a mistake on their part to
register the present case as a cross case. Having
regard to the facts and circumstances of the case, the
corrections, if any, made by the Investigating Officer
or the Station House Officer, as the case may be, in
the first information report do not have any vital
bearing on the case of the prosecution. On that score
lodging of the first information report itself cannot
be doubted. Once it is conceded that the occurrence had
taken place after the murder of Toofani Singh at about
1.30 a.m. on the same intervening night, the
overwriting in first information report, if any, itself
has no material bearing on the prosecution’s case.
14.An analysis of the sequence of events apparent from
the record would reveal that admittedly there was
enmity between the appellants and Bichari Singh Vakil
who is none other than the elder brother of deceased
Sita Ram Singh with regard to some landed property.
Toofani Singh, who is none other than the real brother
of appellant Sharda Singh was murdered at about 1.30
a.m. on the same intervening night and the appellants
suspected that the murder was committed by Bichari
Singh and his family members. The suspicion entertained
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by the appellants about the involvement of the deceased
led to the murderous attack on deceased Sita Ram Singh
and his family members. Bichari Singh Vakil escaped
from the wrath of the appellants as he was not in the
village on that particular day. These facts are
clearly evident from the evidence of Smt. Manju Singh
(PW5) and Smt. Kaushalya Devi (PW6). In the
circumstances, the alteration, if any, made in the
first information report as regards the time of
occurrence is not of much significance.
15. Secondly, the distance between the place of occurrence
and the police station is about five kilometres. Smt.
Manju Singh (PW5) was not seriously injured. She
explained that her husband and two sons were killed on
that fateful intervening night of 24th/25th June, 1994
and there was no male members left in the house and it
was under those circumstances she had to muster her
courage and reach the police station to lodge first
information report. We find no reason whatsoever to
doubt her statement in this regard. It is true that she
admitted in her evidence that apart from the other
injured persons, one Uday Singh who was not injured was
also present in the house, but it is not brought on
record as to who this Uday Singh was. There is nothing
strange in Smt. Manju Singh securing the help of a
person who dropped her at the police station on his
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bicycle. Non-examination of the said person and equally
the non-examination of the scribe of the first
information report, in our considered opinion, are not
that fatal to doubt the entire prosecution story. There
is nothing unnatural and improbable in Smt. Manju Singh
reaching the police station and lodging the first
information report at about 2.40 a.m.
16.The omission on the part of the Investigating Officer
in not mentioning the case number in the injury report
and inquest is not a ground by itself to doubt the
reliable and clinching evidence adduced in this case by
the prosecution. The Investigating Officer may have
committed an error in registering the first information
report lodged by PW5 as a cross case initially to that
of Toofani Singh’s murder case which he rectified
subsequently. The Investigating Officer may not have
been that diligent that led to making some corrections
in the first information report but that is no reason
to reject the evidence of Smt. Manju Singh (Pw5). The
courts below rightly appreciated the evidence available
on record and found the so-called interpolation in the
first information report, if any, itself was no ground
to doubt the prosecution’s story.
17.Learned senior counsel further submitted that presence
of PW6 (Smt. Kaushalya Devi) at the place of occurrence
is highly doubtful since her name is not mentioned in
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the first information report lodged by Smt. Manju Singh
(PW5). It is well settled that the first information
report need not contain every minute detail about the
occurrence. It is not a substantive piece of evidence.
It is not necessary that the name of every individual
present at the scene of occurrence is required to be
stated in the first information report. It is true that
Smt. Kaushalya Devi (PW6) admitted in her cross
examination that she was residing in Gorakhpur in
connection with the education of her minor daughter.
But she also stated that she very often comes to her
village to look after cultivation of lands and
household affairs. It is in her evidence that she came
to the village about 4 – 5 days prior to the
occurrence. It is an admitted fact that deceased Sita
Ram Singh and Bichari Singh, husband of Smt. Kaushalya
Devi are real brothers and residing in the same house
in the village, but in separate portions. Bichari Singh
has interest in the lands possessed by the family in
the village. There is nothing improbable in Smt.
Kaushalya Devi frequently visiting the village and
staying in the house at her own convenience. It is
relevant to note that the Investigating Officer (PW9)
stated that on 26.6.1994, he visited the spot and
examined PW6 along with other witnesses. Therefore,
there is no reason to disbelieve her statement that she
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was very much present on that fateful night at the
scene of occurrence.
18.Learned senior counsel further contended that absence
of injuries on the person of Smt. Kaushalya Devi (PW6)
makes her presence at the scene of occurrence doubtful.
This aspect of the matter has been clearly explained by
PW6 who was subjected to very rigorous cross
examination that when she came out of her room to see
as to what was happening, the appellants Moti Lal and
Virendra Singh after spotting her, chased her and she
ran away and re-entered into her room and bolted the
doors from inside. Two shots were fired aiming at her
out of which one hit the door and the other went
through the window hitting the inner wall of the room.
She saved herself from those two shots aimed at her. We
do not find any reason to disbelieve her evidence in
this regard as to how she escaped from getting injured
in the melee.
19.It was lastly contended that even if the prosecution’s
case is to be accepted, the appellants Sharda Singh and
his son Anil Singh are entitled to benefit of doubt.
The submission was that their presence at the scene of
offence is highly doubtful in view of the categorical
admission made by the Investigating Officer (PW9) that
both of them were present in the police station at 2.10
a.m. to lodge information about Toofani Singh’s murder
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that had taken place in the same intervening night. We
express our inability to accede to the submission made
in this regard. The occurrence took place in the
midnight at about 1.45 a.m. The distance between the
police station and the place of occurrence is only
about five kilo meters which could easily be covered
within 10-15 minutes. May be the said appellants went
to the police station to inform about the murder of
Toofani Singh and they may have been present in the
police station at about 2.10 a.m. Their presence in the
police station at 2.10 a.m. does not rule out their
presence at the scene of offence at about 1.45 a.m. The
eye-witnesses Smt. Manju Singh and Smt. Kaushalya Devi,
in specific terms, stated in their evidence about
presence of these two appellants at the scene of
offence. They may have been present at the police
station at about 2.10 a.m., but on that count, their
participation in the murderous attack on the deceased
at about 1.45 a.m. cannot be ruled out.
20.The ocular evidence of PWs 5 and 6 and the medical
expert’s (PW7) evidence leads us to an irresistible
conclusion that the appellants are guilty of all the
charges levelled against them and the Courts below
rightly convicted all of them for the charged offences.
21.No other point is urged.
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22.For the aforesaid reasons, we do not find any error
whatsoever to have been committed by the High Court.
The High Court properly re-appreciated the entire
evidence available on record, considered all the
submissions that were made and arrived at the correct
conclusion to confirm the conviction of the appellants
under various Sections mentioned hereinabove. This
Court, in exercise of its jurisdiction under Article
136 of the Constitution, normally does not interfere
with such concurring finding of facts arrived at the
Courts below upon proper appreciation of evidence
available on record unless it is shown that such
appreciation suffers from any manifest error resulting
in miscarriage of justice. In the present case, we are
satisfied that the Courts below properly appreciated
the evidence and rested their conclusions mainly
relying upon the evidence of PWs 5 and 6 and the
evidence of forensic expert Dr. K. Singh (PW7). We
accordingly find no merit in this appeal.
23.The appeal shall accordingly stand dismissed.
…………………………………………….J. (B. SUDERSHAN REDDY)
NEW DELHI, ………………………………………………J. DECEMBER 2, 2009. (J.M. PANCHAL)
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