- (1.) The prosecution story is as under: 1.1 Chhoti - P.W. 1, the complainant in the case was earlier married to Kallu Singh of village Tendwar, P.S. Maholi, District Sitapur and had three sons from him namely, Virendra, Surendra and Mahendra. Kallu Singh aforesaid had an uncle named Ram Singh and Ram Singh had a son named Lallu Singh. Kallu Singh owned a house in village Tendwar. A short distance there from was the residential house of Vikram Singh -P.W. 5 nephew of Kallu Singh. Kallu Singh aforesaid was murdered about 12 years before the date of the present incident and as per the prosecution story a partition had been effected between Kallu Singh and Lallu Singh with regard to the mango grove in Khasra No. 165 which jointly belonged to them. The story further goes that Lallu Singh sold his portion of the grove to Kailash, the appellant herein, in the year 1970 as he was living with him at that time. It also appears that Lallu Singh did not pay any amount to Chhoti or the sons of Kallu Singh though they claimed a share in this property as well. It further appears that two years after the murder of Kallu Singh, Chhoti -P.W. started living with Deep Singh in her house as her second husband and it was Deep Singh who continued to look after the properties of Kallu Singh and his sons born from Chhoti. Deep Singh, who also happened to be a distant cousin of Kallu Singh, had two brothers Vikram Singh and Lakhan Singh. In the year 1976, Kallu Singh's sons from Chhoti i.e. Virender, Surender and Mahender had filed a suit claiming the land covered by Khasra No. 165 which Lallu Singh had sold to Kailash Nath appellant and it was Deep Singh who had pursued the matter in court on behalf of the plaintiffs. A few days before the incident negotiations took place between the appellant and Lallu Singh about the proposed sale of yet another mango grove covered by Khasra No. 243 in which Kallu Singh's family also claimed a share. Deep Singh, on receiving this information, and in deep consternation went to the appellant and protested against the proposed sale. This fact annoyed the appellant and he told Deep Singh that he would one day kill him as he had been an obstacle in all his transactions. It appears that this latest incident was the fall out of some earlier incidents where the parties had quarrelled over property or other matters and Deep Singh in fact had moved applications before the DIG and the Superintendent of Police apprehending danger from Kailash and his associates. 1.2 At about 1:00 a.m. on the 17th June, 1980, Deep Singh and Chhoti were sleeping on the roof of the Baithak in their house in village Tendwar on one cot, on which a quilt had been spread out. A lantern was also kept burning on the railing of the roof of the baithak. Kallu Singh's sons Virender and Surender were sleeping on their cots in a part of the baithak adjoining the main residential house whereas the other ladies of the family were sleeping inside and Vikram Singh in his home a short distance away, Chhoti was, however, rudely awakened on hearing the sound of a gun shot and she saw Deep Singh lying besides her with a gun shot injury and bleeding profusely. She immediately got up and noticed that accused Balwant Singh (since dead) was present near the cot and re-loading his weapon whereas Kailash Nath, Rampal and five others were standing close by. Chhoti, thereupon, fell to her knees and pleaded with the appellant not to harm her husband but he nevertheless fired a shot killing him at the spot and also caused injuries to Chhoti. The noise which came about attracted P.W.'s 4 and 5 to the place of incident on which the accused ran away but before they did so they were identified by the witnesses in the light of the torch which they were carrying. Vikram, P.W. thereupon wrote (on the dictation of Chhoti) a report Exhibit Ka-1 at about 5:00 a.m. and reached the Police Station, Maholi at about 7:15 a.m. on which a formal FIR was lodged at that time. After recording the FIR, Kesho Prasad Rai, P.W. 8, Inspector of Police and the SHO, reached the place of incident and sent Chhoti for her medical examination to the Primary Health Centre, Maholi. He also made the necessary spot investigation, recovered one spent .12 bore cartridge, a blood stained lathi, a blood stained quilt and also a portion of the blood stained cot, which were duly sealed and deposited in the Malkhana in the police station. Dr. Habib Ahmad, P.W. 3, also examined Chhoti at 10:30 a.m. on the 17th June, 1980 and detected 2 gun shot injuries with blackening and charring thereon and on an x-ray examination found some pellets embedded in her body as well. On the completion of the investigation, all the accused, 8 in number, were charged for offences punishable under Sections 302/147/148/149 of the IPC. It appears that accused Balwant died before commencement of the trial. The trial was, accordingly, held with respect to the remaining 7 accused, who were convicted for offences punishable under Sections 302/149 of the IPC and sentenced to life imprisonment and under Section 307/149 IPC to three years rigorous imprisonment. An appeal was thereafter filed in the High Court. During its pendency, appellant Ratnu also died. The High Court went into the matter with respect to five of the appellants and observed that as four out of them had caused no injuries to the deceased and as there was a long history of animosity between the parties it could be a case of false implication of some of them. The High Court, accordingly, gave the benefit of doubt to four but dismissed the appeal of the appellant herein, Kailash Nath, who is now the only person left in the fray.
(2.) Mr. K.V. Vishwanathan, the learned senior counsel for the appellant has raised three basic arguments during the course of hearing. He has first pointed out that in the light of the fact that Chhoti P.W. 1 had not seen the shot being fired by Balwant as she had been asleep at that time and had woken up in alarm and seen that Deep Singh had already been injured and as only one injury had been suffered by the deceased as per the prosecution, the story of a second shot by the appellant was not believable. Elaborating this argument, Mr. Vishwanathan has pointed out that the fact whether one shot or two shots had been fired had to be determined from the pellet holes in the clothes that the deceased and the injured had been wearing but as the clothes had not been taken into possession, a presumption should be drawn against the prosecution and it must be held that one and not two shots had been fired which would clear the appellant. It has also been pleaded that there appeared to be no apparent motive for the incident and the suggestion with regard to the animosity on account of the various land transactions etc. which had been spelt out by the prosecution, had been found by the High Court to be unacceptable and the High Court had accepted the story given in Ex Ka. 5 to K. 7. He has also pointed out that as the complaints allegedly made by Deep Singh long before his death that he apprehended danger at the hands of the appellant and his associates had seen the light of the day for the first time in court, their veracity was doubtful. It has finally been pleaded by Mr. Vishwanathan that animosity between the parties was admitted and in the light of the observations of the High Court, the appellant too was entitled to the benefit of doubt which had been given to the other accused.
(3.) Mr. Ratnakar Dash, the learned senior counsel representing the State of Uttar Pradesh has, however, controverted the arguments raised by Mr. Vishwanathan. He has pointed out that though the motive had been proved beyond doubt but in the face of the direct evidence in the person of Chhoti, P.W. 1 who was also an injured eye witness, the absence of motive would have no effect on the prosecution story. He has pleaded in elaboration that the place of incident, the time of the incident and the weapons used in the crime have not been disputed by the defence and in the light of the fact that the FIR had been recorded by 7:15 a.m. at the Police Station which was situated 12 miles away from the place of the incident, supported the prosecution story in its entirety. He has also pointed out that as per the doctor's evidence the injuries had been caused with a shotgun.;