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Sarvajit Singh Alias Sobhu v. State Of U.P .

Allahabad High Court
Sep 26, 2003
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Structured Summary of the Opinion

Factual and Procedural Background

This judgment disposes of Criminal Appeals No. 814 of 1981 (Sarvajit Singh @ Sobha v. State) and No. 815 of 1981 (Harihar Singh v. State), which arose from two Sessions Trials (No. 228 of 1979 and No. 164 of 1979) tried by the Sessions Judge, Ghazipur and decided by a common judgment dated 12 March 1981. The appeals were heard together; the latter trial (State v. Harihar Singh) was the leading case.

In the Sessions trials, accused persons (including Harihar Singh, Sarvajit Singh @ Sobhu, Sheo Shankar Singh and Ranjit Singh) were tried for offences punishable under section 302 read with section 34 IPC, and some accused were also charged under section 379 IPC. All were convicted by the trial court: sentences of life imprisonment under section 302 read with section 34 IPC were imposed, and two accused (Sheo Shankar Singh and Sarvajit Singh) were sentenced to rigorous imprisonment for two years under section 379 IPC. The sentences were ordered to run concurrently.

One accused (Harihar Singh) was reported to have died and his appeal abated by order dated 11 February 2002. The remaining convicted appellants sought redress by way of appeal to the court that produced this opinion.

The prosecution case (narrative): on 13 June 1979 at about 3:30 P.M., Lorick (the deceased) and his son Rakesh Kumar were travelling by motorcycle when Ranjit Singh, Harihar Singh, Sarvajit Singh and Sheo Shankar Singh allegedly emerged and attempted to stop the motorcycle. Ranjit Singh is alleged to have fired the first shot, hitting Lorick; other accused are alleged to have pursued and fired at Lorick, who subsequently succumbed to fatal injuries. Ranjit Singh, Sarvajit and Sheo Shankar are said to have fled on the motorcycle left at the scene; Harihar Singh fled separately. An FIR was lodged by Rakesh Kumar on the same evening and the police investigated, conducted an inquest, obtained post-mortem and serology reports, and submitted charge-sheet(s).

Legal Issues Presented

  1. Whether the convictions under section 302 read with section 34 IPC (and under section 379 IPC where applicable) were sustainable on the evidence produced at trial.
  2. Whether the FIR was ante-timed (i.e., fabricated or prepared after the fact) as argued by the appellants, and whether alleged defects in the inquest/check report or the dispatch of papers to the doctor undermine the prosecution case.
  3. Whether the ocular evidence of the two related eyewitnesses (Rakesh Kumar and Ramjit) is reliable and sufficient in the absence of independent witnesses.
  4. Whether medical/scientific evidence (post-mortem and serology) supports or contradicts the ocular account, including the argument that the number and character of firearm injuries do not match the prosecution's account of multiple shooters and shots.
  5. Whether the appellants' alternative contentions — surrender behaviour on being approached by police or an alibi in respect of Sheo Shankar Singh — create reasonable doubt warranting acquittal.

Arguments of the Parties

Appellants' Arguments

  • The FIR is ante-timed: (a) the inquest report lacks mention of crime number and accused names at its top; and (b) a copy of the check report was not sent to the doctor conducting the autopsy — these, appellants argued, indicate fabrication of the FIR the next day.
  • The medical injuries do not correspond to the prosecution's account that all four accused fired at Lorick and that Sarvajit Singh fired several shots; thus the physical evidence purportedly does not commensurate with the prosecution story.
  • Because accused Sheo Shankar Singh did not attempt to evade arrest when the investigating officer visited his house, it should be presumed he was innocent.
  • The incident occurred in broad daylight and many independent bystanders and office-holders were present, yet no independent witnesses were produced to corroborate the prosecution; this absence undermines the prosecution case.
  • Accused Sheo Shankar Singh pleaded an alibi (attendance at a marriage in village Singheri) and called a witness (Kandaiya Singh) to support that alibi.

Prosecution's Case and Position

  • The FIR was lodged promptly on 13 June 1979 at about 4:00 P.M., about half an hour after the occurrence (which took place c. 3:30 P.M.), at a police station about one mile from the scene; injured Rakesh Kumar was examined medically at the District Hospital at about 4:30 P.M. the same day — these circumstances indicate prompt reporting and investigation.
  • Two eyewitnesses — Rakesh Kumar (son of the deceased and the first informant) and Ramjit (brother of the deceased) — gave direct testimony identifying the events and the accused; other witnesses provided corroborative or formal evidence (investigating officer, medical officers, constable who took the body, serologist, etc.).
  • Medical evidence (post-mortem by Dr. Virendra Srivastava) revealed multiple ante-mortem gunshot injuries (nine gunshot injuries found, including entries and exits), fracturing and brain injury, punctured heart and lungs, and the doctor opined death was due to haemorrhage and shock from antecedent injuries.
  • The investigation included preparation of an inquest report, site plan, seizure and transmission of blood-stained clothes and earth for serological examination (which showed human blood of ‘B’ Group on some items), and submission of a chargesheet.
  • The trial court accepted the evidence, found motive (land dispute and prior enmity) and contemporaneous testimony convincing, and convicted the accused accordingly; the prosecution maintained those convictions on appeal.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court examined the evidence and the arguments of the appellants methodically and explained why each defense contention failed in its view:

  1. Timeliness of FIR and related procedural points: The court observed that although the inquest report did not record crime number and accused names at the top and the check report was not dispatched with the inquest papers to the autopsy doctor, these omissions did not warrant a finding of ante-timing. The incident occurred at c. 3:30 P.M. and the FIR was lodged at c. 4:00 P.M. the same day. Furthermore, the injured was medically examined at c. 4:30 P.M. — a medical examination the court considered could only have been effected after the FIR existed. For these reasons the court rejected the ante-timing argument.
  2. Consistency between ocular and medical evidence: The appellants argued discrepancy between the number of shots allegedly fired and the number/character of injuries. The court found this argument unpersuasive: the post-mortem disclosed as many as nine ante-mortem gunshot injuries including exits, and the court noted it is not necessary that every fired shot must hit the victim; in a fast-moving incident witnesses cannot be expected to recall the exact count of shots with precision. The court concluded there was no real inconsistency sufficient to render the prosecution case unbelievable.
  3. Conduct at arrest as evidence of innocence: The court rejected the contention that Sheo Shankar Singh's lack of flight when visited by police implies innocence, reasoning that behaviour differs among individuals and surrender could be a practical choice rather than proof of non-involvement.
  4. Absence of independent witnesses: While the court acknowledged it would have been preferable for the prosecution to produce independent bystanders, it accepted the explanation that in practice many people avoid court unless compelled and that absence of independent witnesses does not automatically vitiate the prosecution case. The court emphasized that the credibility of the available eyewitnesses must be assessed on its merits.
  5. Credibility of related eyewitnesses: The court scrutinized testimony of the two related eyewitnesses (Rakesh Kumar and Ramjit). Although related, both were subjected to searching cross-examination and the court found their accounts to be truthful and consistent. The court held that truthful testimony by related witnesses, if reliable on close inspection, can sustain a conviction.
  6. Alibi plea: The court found the alibi asserted by Sheo Shankar Singh (attendance at a marriage) was rightly rejected by the trial court; it did not accept the alibi as creating reasonable doubt.
  7. Motive: The court highlighted a strong motive for the accused to commit the murder based on an entrenched land dispute and prior incidents of harassment and violence involving Harihar Singh and the deceased's family; this contributed to the court's acceptance of the prosecution case.
  8. Overall assessment and conclusion: Considering the prompt FIR, eyewitness testimony (deemed reliable), medical evidence (post-mortem corroborative of fatal gunshot injuries), motive, and the trial court's cogent reasons, the appellate court found no reason to disturb the trial court's findings and convictions.

Holding and Implications

Holding:

Both appeals are dismissed; the convictions and sentences imposed by the trial court are upheld.

Direct consequences and implementation instructions contained in the opinion:

  • The conviction of the appellants under section 302 read with section 34 IPC and under section 379 IPC (where applicable) and the sentences (life imprisonment for the murder convictions and rigorous imprisonment for two years for the theft-related conviction) are maintained.
  • Both sentences shall run concurrently.
  • Both appellants were on bail at the time of the judgment; they are to be arrested and lodged in jail to serve the sentences imposed.
  • The court directed that a certified copy of the judgment and record be transmitted to the trial court for compliance, with intimation to the appellate court within two months.

Broader implications: The opinion does not announce any new legal principle or precedent; it upholds the trial court's factual findings and convictions on the particular evidence and circumstances of this case.

Show all summary ...

(Mrs.) M. Chaudhary, J.:— Criminal Appeal No. 814 of 1981 Sarvajit Singh @ Sobha v. State having arisen out of judgment and order passed in Sessions Trial No. 228 of 1979 State v. Sarvajit Singh @ Sobhu and Criminal Appeal No. 815 of 1981 Harihar Singh v. State from judgment and order passed in Sessions Trial No. 164 of 1979 State v. Harihar Singh both the Sessions Trials decided by common judgment dated 12th of March, 1981 by Sessions Judge, Ghazipur latter being the leading case both the appeals have been heard together and are being disposed of by common judgment.

2. In Sessions Trial No. 164 of 1979 State v. Harihar Singh accused Harihar Singh and Sheo Shankar Singh and in Sessions Trial No. 228 of 1979 State v. Sarvajit Singh @ Sobha accused Sarvajit Singh faced trial for the offence punishable under section 302 read with section 34 IPC and accused Sheo Shankar Singh and Sarvajit Singh also under section 379 IPC and all of them were held guilty of the charge levelled against them and convicted accordingly and each of them sentenced to undergo imprisonment for life under section 302 read with section 34 IPC and accused Sheo Shankar Singh and Sarvajit Singh to undergo rigorous imprisonment for two years under section 379 IPC.

3. Since accused Harihar Singh has been reported having died his appeal stood abated vide order dated 11th of February, 2002.

4. Prosecution case in nutshell is that at about 3.30 P.M on 13th of June, 1979 Rakesh Kumar was going on his motor cycle no UTH 1287 from his house to Badhwa Chau Muhani on kachcha road by the side of the godown of Irrigation Department and his father Lorick was sitting on the pillion seat and as they reached near the hovel of Vinod, Ranjit Singh alongwith his father Harihar Singh, brother Sarvajit Singh @ Sobhu and cousin Sheo Shankar Singh emerged from the hovel and pounced for making the motor cycle stop by catching hold of its carrier but Rakesh Kumar tired to drive fast. Then Harihar Singh exhorted his associates to kill and immediately Ranjit Singh fired a shot hitting Lorick at his back and receiving the injury Lorick jumped from the motor cycle and ran shouting for his life. As Lorick jumped from the motor cycle Rakesh Kumar lost the balance and fell down with the motor cycle receiving injury at his left leg. Then Ranjit Singh armed with revolver and the remaining three with country made pistols chasing Lorick fired at him with their respective weapons and receiving the injuries he fell down a few paces ahead. Then Ranjit Singh again fired at Lorick and he succumbed to the fatal injuries sustained by him instantaneously. Immediately Ranjit Singh alongwith his brother Sarvajit Singh and cousin Sheo Shankar ran away on the motor cycle of Rakesh Kumar lying there, and Harihar Singh fled away. On hearing the hue and cry Ramjit and Shyam Raj uncles of Rakesh Kumar and one Sheo Narain and some others reached the scene of occurrence and witnessed the incident.

5. Immediately Rakesh Kumar, son of the deceased lodged an FIR of the said occurrence at police station, Ghazipur Kotwali situate at a distance of about one mile from the place of occurrence at 4.00 P.M the same evening (Ext Ka-1). The police registered a crime and made entry regarding registration of the crime in the general diary (Exts. ka-12 and ka-13).

6. SI Kamta Nath Ojha to whom investigation of the crime was entrusted went to the placed of occurrence and drew inquest proceedings on the dead body of Lorick. He prepared the inquest report (Ext. ka-14) and other necessary papers (Exts. ka-15 to ka-17), and handed-over the dead body in a sealed cover alongwith the necessary papers to constable Ram Bilas and another to be taken for its postmortem. The investigating officer inspected the site and prepared its site plan map (Ext. ka-19). He also recorded statements of the witnesses and did other necessary things.

7. Autopsy conducted on the dead body of Lorick by Dr. Virendra Srivastava, bone Specialist District Hospital, Ghazipur on 14.6.79 at about 12.45 noon revealed (ix) following ante mortem injuries:

(i) Lacerated wound 8 cm. × 3 cm. just above right ear including upper ⅓ of right ear pinna horizontally placed with piece of skin loosely attached to the anterior end, irregular in shape with uneven surface, right mastoid bone fractured in three irregular pieces and clot of blood present in meanings and in the brain at the site of fracture.

(ii) Gun shot wound of entry 1 cm. × .5 cm. on left side chest in the line of anterior axillary fold 5 cm. below the anterior end of axillary fold with inverted and irregular margins. Direction on probe in right and lateral and slightly lower down. No tattooing or singeing. Rib on left side fractured.

(iii) Wound of exit 2.5 cm. × 1 cm. on right chest wall semi circular in shape 2.5 cm. lateral to right nipple with everted and lacerated margins.

(iv) Elliptical wound of exit 2.5 cm. × 1 cm. on right side thigh vertically placed 3 cm. above right greater trochanter with everted margins (communicating to injury No. 5).

(v) Gun shot wound of entry 1 cm. × 1 cm. in the middle of right back 6 cm. above right hip bone with inverted margins (communicating to injury No. (4).

(vi) Gun shot wound of entry 1 cm. × 0.5 cm. at the back and outer aspect of right wrist just above the wrist with inverted margins, no tattooing.

(vii) Wound of exit 1.5 cm. × 1.5 cm. on middle and anterior aspect of right wrist 3 cm. above the joint line with irregular margins (communicating to injury No. 6).

(viii) Gun shot wound of entry 1 cm. × 1 cm. on middle and anterior aspect of left wrist with inverted margins. On dissection the doctor removed a big metallic pellet embedded in the fractured bone.

(X) Abrasion ¼ cm. × ¼ cm. on the medial aspect of back lower end of the scapula with irregular margins. Abraded contusion 4 cm. × 3 cm. just below the left knee with irregular margins.

8. On an internal examination dot was found present in the brain and haomotoma at the site of the injury. One rib on left side was found fractured. Both the lungs were found perforated and pericardium and heart punctured. Stomach was empty and both the intestines semi full. The doctor opined that death was caused due to haemorrhage and shock as a result of reputed heat and ante mortem injuries about one day ago.

9. After completing the investigation the police submitted charge-sheet against the accused.

10. It appears that blood stained clothes and earth were sent to the Scientific Laboratory for the Serologist's opinion. According to the Serologist's report the blood stained clothes towel, vest and ‘kurta’ contained human blood of ‘B’ Gropu and blood stains on soil and underwear were found disintegrated (Exts. ka-32 andka-33).

11. After framing of charge against the accused the prosecution examined Rakesh Kumar, son of the deceased and the first informant (FW-1) and Ramjit, brother of the deceased (PW-3) as eye-witnesses of the occurrence. Evidence of the remaining witnesses is more or less of formal nature. PW-2 Dr. P.N Tandon, Medical Officer District Hospital, Ghazipur who medically examined injured Rakesh Kumar on 13.6.79 ait about 4.30 P.M has proved the injury report (Ext. ka-4). PW-4 Dr. Virendra Srivastava, Bone Specialist District Hospital, Ghazipur who conducted autopsy on the dead body of Lorick has proved the postmortem report (Ext. ka-11) stating that ante mortem injuries found on the dead body were sufficient to cause death in the ordinary course. PW-5 Constable Ram Bilas is one of the two constables to whom dead body of Lorick alongwith necessary papers was entrusted to be taken for postmortem. PW-6 HM Lalta Yadav who prepared the check report and made entry regarding registration of the crime in the GD has proved these papers (Exts. ka-12 and ka-13), PW-7 SI Kamta Nath Ojha who investigated the crime has proved the police papers. PW-8 Nem Narain Rai from whom Lorick had purchased motor cycle UTH 1287 has proved the receipt (Ext. Ka-29).

12. The accused pleaded not guilty denying the alleged occurrence altogether and stating that they were implicated in the case falsely on account of enmity. Accused Sheo Shankar Singh also stated that the alleged day of occurrence he had gone to attend the marriage at the house of Kan-haiya Singh at village Singheri within the limits of police station Nandganj, District Ghazipur.

13. Accused Sheo Shankar Singh examined Kandaiya Singh (DW-1) in his support. He stated that there was marriage of his daughter on 12.6.79 and marriage party had gone back on 14.6.79 and that Sheo Shankar Singh attended the marriage at his house and he was at his house also on 13th of June, 79. He also stated that Ghazipur city is situate at a distance of about ten miles from his house.

14. On an appraisal of the parties' evidence and after hearing the parties' Counsel learned Sessions Judge found the accused guilty of the charge levelled against them and they were convicted and sentenced as stated above by the impugned judgment and order.

15. Feeling aggrieved by the impugned judgment and order the accused preferred these appeal for redress.

16. We have heard learned Counsel for the appellants and the learned AGA for the State and also gone through the record.

17. Though in the case of direct evidence motive is not of much significance, still in the instant case there was strong motive on the part of the accused appellant to commit the murder of Lorick. All the four accused are closely related with each other as accused Ranjit Singh and Sarvajit Singh are sons of accused Harihar Singh and accused Sheo Shankar Singh is the son of Harihar Singh's real sister. Harihar Singh happened to be the real maternal uncle of Sheo Shankar Singh. Admittedly there was deep rooted enmity between the parties. PW-3 Ramjit, brother of the deceased stated that Raja Ausanganj was a Zamindar who owned huge properties; that Mukh Chand, father of Lorick was employed by him as a gardener and being pleased with the services rendered by Mukh Chand, Raja Saheb gave him land for raising constructions; that subsequently he could not pay the salary to Mukh Chand and he allowed him to cut six bighas of land from his Forests in lieu thereof and cultivate the same; that Mukh Chand cleared off six bighas of land from the Forests for himself and started cultivating the same and after his death his son Basu started working with Raja Saheb; that subsequently prices of the land shot up and Raja Saheb wanted to get the said land back to him and the litigation went on between them but Raja Saheb could not succeed in his mission and then he engaged accused Harihar Singh who was a known ‘gunda’ as his ‘Qarinda’. He further stated that as Harihar Singh ‘Qarinda’ of Raja Saheb threatened Lorick, brother of Basu and his family members to give up the land aforesaid, now and then quarrel took place and not words exchanged between them and Lorick and his brother Ram Deo gave several applications to the Higher Authorities complaining about the activities of Harihar Singh threatening Lorick with dire consequences if he and his family members did not give up their claim over six bighas of land and seeking protection of their person and property. It has also come in evidence that feeling harassed on 13th of August 1974 Lorick alongwith his associates beat Harihar Singh, and on the FIR lodged by Harihar Singh criminal case was launched against Lorick and others and when that Sessions trial was pending the said incident occurred. In our view that constituted sufficient motive for Harihar Singh and his associates for committing the murder of Lorick.

18. Now coming to the arguments advanced by the appellants' learned Counsel, it has first been argued by the appellant's learned Counsel that the FIR is ante timed and it was framed document prepared next day of the occurrence. His argument on the point is two fold (i) there is no mention of crime number, names of the accused etc. at the top in the inquest report and (ii) copy of the check report alongwith the papers was not sent to the doctor conducting autopsy on the dead body; and that from these two circumstances the appellants' learned Counsel wanted that it should be concluded that the FIR is ante, timed. No doubt crime number and names of the accused are not mentioned at the top of the inquest report and PW-7 SI Kamta Nath Ojha admitted that copy of the check report was not sent alongwith other papers of the inquest to the doctor though with the qualification that it was not necessary to send copy of the check report alongwith other papers. In our opinion from the above it is not possible to conclude that the FIR is ante timed. The incident took place on 13th of June, 1979 at about 3.30 P.M and FIR of the occurrence was lodged at police station Ghazipur Kotwali situate at a distance of about one mile from the place of occurrence at about 4.00 P.M and accused Harihar Singh was arrested by the investigating agency and interrogated by the investigating officer the same evening. In view of this very circumstance the said argument advanced by the learned Counsel for the appellants has got no substance. Further, the police got injured Rakesh Kumar medically examined at District Hospital, Ghazipur where he was medically examined by Dr. P.N Tandon at about 4.30 P.M the same evening. This medical examination of the injured at the District Hospital at about 4.30 P.M completely dislodges the plea that the FIR was ante timed. The injured could be got medically examined by the police only after the FIR came into existence. Thus, the argument advanced by the learned defence Counsel that the FIR is ante timed holds no water and is liable to be rejected.

19. Secondly, it has been argued by the appellants learned Counsel that according to the prosecution case Lorick was fired at by all the four accused with firearms and accused Sarvajit Singh fired several shots at him but the firearm injuries received by him do not commensurate thereto. In our view, the said argument advanced by the appellants' a learned Counsel has not got much substance in it as PW-1 Rakesh Kumar son of the deceased stated that in-all 8-9 shots were fired at Lorick and the postmortem revealed as many as nine ante modern gun shot injuries on the dead body including three gun shot wounds of exit. It is not necessary that each and every shot fired at the running person must have hit him. Apart from it, in view of the facts and circumstances of the case the entire incident would have occurred within a minute or so and it would be impossible for any of the witnesses to remember with absolute precision and accuracy the number of shots inflicted. In fact, there is no real inconsistency between the ocular and medical evidence to render the prosecution case unbelievable and unacceptable.

20. Thirdly the appellants' learned Counsel has laid much emphasis upon the fact that as stated by PW-7 SI Kamta Nath Ojha, the investigating officer accused Sheo Shankar Singh did not make any effort to evade his arrest by the police when he visited his house and it should be presumed that he was innocent. In our view the said argument is fallacious as it differs from person to person as to how one behaves in a set of certain circumstances. Having no option accused Sheo Shankar Singh would have considered best course to surrender before the investigating officer with dignity. But it would never mean that if an accused person surrendered before the investigating officer quietly he was innocent. The said argument has therefore got no merit.

21. Lastly, the appellants' learned Counsel emphatically argued that the said incident occurred in the broad day light at the place where several offices were situate and several persons were present there in the office hours and the murder was witnessed by many of them but no independent witness entered the witness box to support the prosecution case. No doubt it would have been better if the prosecution would have examined any of the independent witnesses but if any of them could not be examined by the prosecution in its support it would not affect the prosecution case adversely because it is a matter of common knowledge that generally the people keep themselves away from the Courts unless it is inevitable. It is unfortunate but it is everywhere there in the villages, towns or cities. We cannot ignore this handicap with which the investigating agency has to discharge its duty.

22. It is true that PW-1 Rakesh Kumar being son of the deceased and PW-3 Ramjit, brother of the deceased both are related witnesses but on that score alone their sown testimony cannot be thrown over board if on a close and careful scrutiny their testimony is found to be above reproach of suspicion. Both these witnesses were subjected to searching and gruelling cross-examination but nothing useful to the accused could be elicited therefrom. Both these witnesses had given a truthful and honest account of the occurrence witnessed by them; and once the evidence of these two witnesses is believed non-examination of independent witness would not go to demolish or introduce an element of doubt in the prosecution case.

23. Plea of ‘alibi’ taken by accused Sheo Shankar has been rightly repelled by the learned Trial Court for obvious reasons.

24. After considering carefully all the arguments advanced on behalf of the appellants in the light of evidence and the circumstances attending the case, we do not find any merit in any of them. It was a broad day light murder and the FIR was lodged promptly. The accused had strong motive to commit the crime. Both the eyewitnesses have given a truthful and honest account of the occurrence witnessed by than and the learned Trial Judge has given cogent and convincing reasons for finding the accused guilty of the charge levelled against them and we are in complete agreement with the findings recorded by the Trial Court against the accused appellants. Both the appeals are devoid of any substance and are liable to be dismissed.

25. Both the appeals are hereby dismissed. The conviction of the accused appellants under section 302 read with section 34 IPC and section 379 IPC and the sentence of imprisonment for life and rigorous imprisonment of two years respectively thereunder are maintained, Both the sentences shall run concurrently. Both the appellants are on bail. They shall be arrested and lodged in the Jail to serve out the sentences passed against them.

26. A certified copy of the judgment and record of the case be transmitted to the Court below for compliance under intimation to this Court within two months.