- (1.) THE two appellants father Udai Bhan Singh (A-1) and son Phool Singh (A-2) had committed fratricide /patricide on 27.8.1979 at 8.30 p.m. in village Arka, police station Karari, district Fatehpur by gunning down and inflicting several incised wound to Chandra Bhan Singh, who was none else other than real brother of (A-1) and uncle of (A-2) for which crime both of them were prosecuted, by III Additional Sessions Judge, Allahabad in S.T. No.39 of 1980, State Vs. Udai Bhan and another, and were convicted under Section 302/34 IPC and sentenced to imprisonment for life. Hence this appeal. Pending final outcome of their appeals, appellant Udai Bhan Singh (A-1) expired and his appeal was abated on 11.1.2012. Now only the appeal of appellant Phool Singh (A-2) is to be considered by us.
(2.) COMPLETE narration of the prosecution case was made by the informant Smt. Itwari Devi P.W.1 (widow of deceased Chandra Bhan Singh), Lalloo Singh P.W.2 and Kalyan Singh P.W.4 (both sons of the deceased), during the session's trial. Sketching the gist of their allegations, it is evident that Padua @ Mathura Chamar and Bhagwaniya were the parents of the informant Itwari Devi P.W. 1 and were residents of village Arka, police staiton Karari, district Fatehpur. P.W.2 and P.W.4, Lalloo Singh and Kalyan Singh, are the sons of the informant and the deceased. Appellant Udai Bhan Singh (A-1) and deceased Chandra Bhan Singh were sibling brothers, both being sons of Jai Karan Singh resident of the same village. Appellant Phool Singh (A-2) is the son of Udai Bhan Singh (A-1). Jai Karan Singh had 21 bighas of agricultural land, which was jointly held by him and his two sons as no partition in between them had taken place. Deceased Chandra Bhan Singh impressed upon his elder brother (A-1) to partition the property but (A-1) was not agreeable for it. One month prior to the date of the present incident, 27.8.1979, Jai Karan Singh expired. In those days, consolidation proceedings were going on in the village Arka. Fifteen days prior to the present incident (fifteen days after demise of Jai Karan Singh), Chandra Bhan Singh (deceased) moved an application before the consolidation authorities for separating his share from the joint property. When (A-1) came to now of it, he also filed an application in the consolidation proceedings that he was the only heir of Jai Karan Singh (deceased) and therefore, entire property be carved out in his name. Three days prior to the incident, (A-1) came to the deceased and threatened him to withdraw his application moved in the consolidation proceedings otherwise bear the consequences. Deceased did not succumb to such a threat and rebuffed (A-1) by informing him that he also had a family to foster and refused to withdraw his application. On 27.8.1979 deceased along with his two sons, P.W.2 and P.W.4, were returning to their house from the house of Village Pradhan Ram Kripal to dine and when all the three of them arrived near the 'Sar' of Bachhu washer-man, they spotted the two appellants standing at the cattle feeding mound nearby, which was north east to the entrance door of the deceased house. Spotting the deceased both the accused accosted that they will not spare him and no sooner thereafter (A-1) fired at the deceased from his gun. Hearing gun fire shot and the shrieks raised by P.W.2 and P.W.4, informant P.W.1 came to her door and opened it slightly and from the ventilated portion spotted (A-1) armed with a gun. (A-1) spotting her uttered that she be also annihilated and shot at her. P.W.1 immediately joined door planks resultantly the fired pellets embedded in the door planks of her house. P.W.1 bolted the door from inside and climbed on her attic (roof) through a bamboo ladder, raising hue and cry and from there witnessed that (A-2) was butchering her husband from a spade, which was studded in a wooden handle and both P.W.2 and P.W.4 were raising rescue hue and cries. The shrieks of the sons and the wife attracted village pradhan Ram Kripal, Sunder Lal Pandey, Shiv Pratap at the murder spot. Locating them the two murderers escaped towards west. P.W. 1 came down from her attic and out of her house and went near her husband, who had died meanwhile. Because she was a lady with no male member in the house and having only two minor children, that, she could not muster enough courage to approach the police station during the night and consequently following day morning, she, accompanied with village watchman Madhav Pasi, came to police station Karari where she orally dictated her FIR, which was scribed by head moharir Raj Kishore Srivastava P.W. 8. Fir of the informant was registered on 28.7.1979 at 8.10 A.M. vide rapat no. 15 by P.W. 8, by preparing chik Fir Ext. Ka-1. GD entry prepared immediately thereafter has been proved by P.W. 8 as Ext. Ka-6. Special report regarding the murder was dispatched through constable Bheem Singh at 9.30 A.M. the same day vide rapat no. 16, which is Ext. Ka-7. P.W. 8 has further proved deposit of blood stained and plain earth, empty cartridge, pieces of door planks by the I.O. Kamal Singh P.W. 9 at the police station and the GD entry in that respect vide Ext. Ka-8, which was recorded vide rapat no. 15 at 10.30 A.M. by constable moharir Bhola Nath Shukla. The gun in question brought from Rana Firearm Dealer, Civil Line, Allahabad by S.O. Kamal Singh was also deposited at the police station vide rapat no. 30 sketched by the same Head Moharir Bhola Nath Shukla on 22.10.1979 at 11.45 A.M. vide Ext. Ka-9. The said gun was sent for ballistic examination to the Forensic Science Laboratory, Lucknow through CP 1065 Basdev Singh along with a bundle of empty cartridge on 6.11.1979 at 4 P.M. vide rapat no. 21 prepared by P.W. 8 and the GD entry in that respect is Ext. Ka-11. Investigation into the crime was commenced by S.O. Kamal Singh, P.W. 9, immediately after registration of the case. I.O. first of all recorded 161 Cr.P.C. statement of the informant and then accompanied by S.I. Devesh Pratap Singh, four constables and the informant came to the murder scene and deputed the said S.I. to conduct inquest on the cadaver of the deceased. I.O. P.W. 9 recorded 161 Cr.P.C. statements of Lalloo Singh P.W. 2 and Kalyan Singh P.W. 4. He, thereafter collected blood stained and plain earth (material Exts. 11 and 12) and prepared its recovery memo Ext. Ka- 11. The lantern (material Ext. 1), which was alleged to have been burning at the door of the informant was inspected by the I.O., who seized it, prepared its recovery memo Ext. Ka-12 and then handed over the said lantern to the informant. An empty cartridge (material Ext. 2) was recovered by the I.O. and recovery memo Ext. Ka-13 was penned down. The pieces of wooden door planks in which three pellets were embedded were also seized by the I.O. and recovery memo Ext. Ka-14 in that respect was sketched by him. Accused persons were searched but could not be found and in that respect, search memo Ext. Ka-15 was prepared by P.W. 9. Spot inspection was conducted and incident spot map Ext. Ka-16 was sketched by the Investigating Officer. On 19.9.1979, the two culprits were interrogated by the I.O. in Central Jail, Naini. On 22.10.1979, I.O. came to Allahabad from where, he recovered SBBL Gun No. 16989 from the gun shop of Rana Pratap Singh, which belonged to (A-1), sealed it and prepared the recovery memo Ext. Ka-17. Aforesaid gun is material Ext. 3. Investigating Officer thereafter recorded 161 Cr.P.C. statement of Rana Pratap Singh and Devi Din Mistri. Gun was deposited at the police station. I.O. further collected two applications from the court of C.O., Manjhanpur moved by the deceased and (A- 1), which are Exts. Ka-18 and Ka-19. Through constable Basdev Singh empty cartridge and gun were dispatched to Forensic Science Laboratory, Lucknow for examination on 10.11.1979. On 27.11.1979 through the aforesaid constable the blood stained earth was also sent for chemical examination to Agra. Both the appellants were charge sheeted on 22.10.1979 by P.W. 9 vide Ext. Ka-20. Inquest on the cadaver of the deceased was performed by S.O. D.P. Singh on 28.8.1979 and inquest memo Ext. Ka-21 was penned down by him. Other relevant papers of photo lash, challan lash, letter to C.M.O. and R.I. etc., Exts. Ka-22 to Ka-26 were also prepared by P.W. 11 simultaneously. The dead body was handed over to constables Hari Ram Upadhyay P.W. 10 and Maha Nand Singh to be carried to the mortuary for autopsy purposes.
(3.) DR. Vijai Pal P.W. 3 performed autopsy on the dead body of the deceased Chandra Bhan Singh on 29.8.1979 at 2.30 P.M. in Moti Lal Nehru Hospital, Allahabad which was brought to him by the aforesaid constables Hari Ram Upadhyay and Maha Nand Singh. Deceased was found to be 50 years of age and had expired prior to quarter to two days. Rigor mortis was absent on his upper torso but was present in the lower part. In the sustained injuries maggots were present. No pellets or any piece of wad was recovered from inside the dead body. Skull bones were fractured at its base and structure in front of the neck and soft tissue of mouth were cut. Heart and left lung were lacerated extensively at several places. Left diaphragm had ruptured, stomach, small intestine, urinary bladder all were empty and large intestine had faeces. Cause of deceased death was shock and haemorrhage due to ante mortem injuries. From the cadaver of the deceased, a loin cloth and a towel (gamchha) were taken out by the doctor, which were sealed and handed over to the constables. Post mortem examination report of the deceased was prepared by P.W. 3, which is Ext. Ka-3. All the incised wound sustained by the deceased could have been caused by spade and the injuries could have been inflicted on him at or about the time of the incident and were sufficient in ordinary course of nature to cause his death. Following ante mortem injuries were sustained by the deceased on his body:- "1. Incised wound 4" x 3/4" x 1" right side of face cutting middle of right ear and bone below. 2. Incised wound 6" x 2" x bone deep right side and front of neck upper part cutting vertical spine below 2nd cervical vertebra and spinal cord completely. 3. Incised wound 5" x 1-1/2" x bone deep sub manelitules region below chin, cutting bone underneath. 4. Incised wound 4-1/2" x 1-1/2" x bone deep left face, middle cutting bone underneath. 5. Incised wound 1" x 1/4" cutting left ear in the middle. 6. Incised wound left face oblique from upper lip to upper part of nose 4" x 1/4" x cutting bone underneath. 7. Incised wound 6" x 1-1/2" top of left shoulder cutting bone underneath. 8. Incised wound 4" x 1" top of right shoulder cutting bone underneath. 9. Incised wound 4" x 1" x 1/2" left leg upper and inner part. 10. Incised wound 2" x 1/2" x 1/2" left leg upper and front. 11. Incised wound 1" x 1/2" x 1/2" right thigh outer and lower part. 12. Firearm wound of entrance on right side of chest and inner part 2" x 1-1/2" x thoracic cavity deep. Margins are inverted black, scorched and tattood. Underlying 4th, 5th, 6th ribs and sternum are fractured. 13. Firearm wound exit in left sided axillary region upper part 8 in number varying each 1/4" x 1/4" x chest cavity deep to 3/10" x 3/10" x chest cavity deep. Margins are everted, not black, not tattooed, nor scorched. Underlying 5th, 6th, 7th and 8th ribs are fractured. No pellets or any piece of wadding recovered from body. Skull bones fractured on its base in front. Soft tissue of mouth, structures on front of neck were cut. Heart and left lung were lacerated extensively in several pieces left diaphragm ruptured. Stomach, small bowel, urinary bladder all empty. Left bowel has faces." Constable Basdev Singh P.W. 5 had carried two bundles of articles to the chemical examiner, Agra on 27.11.1979. The same constable had carried the gun and cartridge to Ballistic Expert, Lucknow on 6.11.1979. So long as the aforesaid articles were in his possession, he did not allow anybody to tamper with them. Rana Pratap Singh P.W. 6 is the arms dealer and owner of firearms shop and it was at his shop that SBBL Gun No. 16989 having Indian Licence No. 30(II), which was deposited for repair by (A-1), was seized by the I.O. Kamal Singh, P.W. 9. The aforesaid weapon was deposited on 4.9.1979 at 2.30 P.M. at serial no. 526. P.W.7 B. Rai, Government Ballistic Expert, Forensic Science Laboratory, Lucknow, U.P. had tested the gun and the cartridges and vide his report Ext. Ka-5, dated 29.10.1979, he had found the recovered cartridges EC1 to have been fired from the aforesaid gun. Forensic Science Laboratory report regarding the blood stained soil, dated 30.11.1979, indicate that human blood was present in the soil. Charge sheeting of the accused culminated in registration of a criminal case against the accused and finding the offence triable by Court of Session's, Committal Court of CJM, committed the case to the Court of Session's, where it was received on 6.2.1980 and was registered as S.T. No.39 of 1980, State Vs. Udai Bhan Singh and others. The aforesaid trial was transferred to the court of IVth Additional Session's Judge for trial who, on 1.7.1980 charged both the accused with offence under section 302/34 IPC, which charges were read out and explained to the accused who denied the same and claimed to be tried and consequently, their trial commenced. In the trial prosecution examined in all eleven witnesses out of whom informant Itwari Devi P.W.1 and her sons Lalloo Singh P.W.2 and Kalyan Singh P.W.4 were the fact witnesses. P.W. 3 Dr. Vijai Pal is the post mortem doctor, P.W.5 constable Basdev Singh had taken the firearm to Ballistic Expert, Agra, P.W.6 Rana Pratap Singh, is the owner of firearm shop, where the gun of accused (A-1) was deposited by him, P.W.7 B. Rai is the Ballistic Expert, P.W.8 head Mohrir R.K. Srivastava had recorded the crime by preparing chik FIR and GD Entry, P.W. 9 S.O. Kamal Singh Yadav is the Investigation Officer, P.W. 10 Constable H.R. Upadhyay, had carried the corpse to the mortuary and P.W. 11 S.O. D.P. Singh had conducted inquest on the dead body of the deceased, were the formal witnesses. As has already been referred to herein above learned trial Judge, vide impugned judgment, held both the appellants guilty under section 302/34 IPC and therefore, convicted and sentenced them, which conviction and sentences is under challenge in the instant appeal. Since, (A-1) has already demised and his appeal stands abated, hence we deal with the appeal of only appellant (A-2). In the aforesaid background, we have heard Sri Patanjali Mishra, amicus curiae appointed by us, who was, later on, joined by Sri V.P. Srivastava, learned senior counsel. We heard both of them in support of the appeal and Smt. Raj Laxmi Sinha, learned AGA for the respondent State and have critically and analytically perused the trial Court record including oral and documentary evidences. ;