Vijendra Singh vs State Of U.P

2. Filtering the unnecessary details, the facts which are necessary to be adumbrated for the adjudication of the instant appeals are that there was enmity between the accused, Dharam Pal and his family on the one side and Charan Singh, PW-1, on the other. Charan Singh, PW-1, Gajpal, PW-2, Tedha, PW-3 and Nepal Singh belong to village Dastoi, to which the deceased, Badan Pal, the nephew of Charan Singh as well as the accused persons belong. As the prosecution story further unfurls, sometime prior to the occurrence, Gaje Singh, brother of the accused, Dharam Pal, was murdered and Charan Singh, PW-1, along with others had faced trial for his murder and eventually got acquitted. The occurrence leading to the murder of Badan Pal took place in the evening hours of 26.03.1979. Badan Pal was a student and he used to stay overnight at his tube-well which had a shed in the jungle of village Sarva. On the date of occurrence, he was at the aforesaid tube-well. Gajpal, PW-2, and Nepal Singh in the fateful evening while carrying the meals for Badan Pal, on their way, met Tedha, PW-3, who wanted to irrigate his fields from the aforesaid tube-well. All of them reached near the said tube-well about 7.30 p.m. when they heard the sound of a gun fire from inside the “kotha” (shed) of the said tube-well. They reached the place without loss of any time and noticed that all the four accused, namely, Dhani Ram, Dharam Pal, Mahendra and Vijendra, came out of that “kotha”. Dhani Ram and Dharam Pal carried pistols, Vijendra was armed with a ballam and Mahendra carried a lathi. On seeing them, they took to their heels. After they reached the place, they found Badan Pal lying dead with bleeding wounds. The aforesaid witnesses identified the accused persons in the light of the electric bulb fixed on the roof of the tube- well as well as in the torch light. A report of the occurrence was prepared by Devendra Singh with the assistance of Charan Singh, PW-1, and was filed at Police Station Kharkhauda. After the criminal law was set in motion, the investigation was conducted by S.I. Rajveer Singh, PW-8, who after recording the statements of some of the witnesses under Section 161 CrPC between 6 a.m. to 8 a.m. on the next day, prepared the panchanama and the sketch map of the spot and collected blood stained and unstained earth as well as two cartridges. These were sealed on the spot and the dead body was sent for postmortem. On 29.03.1979, the investigation was transferred to S.I. V.P. Saxena and he came to learn on 11.04.1979 that all the accused persons except Dhani Ram had surrendered before the Court and had been sent to custody. Dhani Ram was arrested by S.I. V.P. Saxena at Meerut on 19.04.1979. Eventually after concluding the investigation, charge sheet was laid against the accused persons before the concerned Magistrate.

3. After the matter was committed to the Court of Session, charges were framed under Section 302 read with Section 34 IPC against the accused persons on 10.01.1980. The accused persons abjured their guilt and intended to face trial. The prosecution in order to bring home the charges examined 11 witnesses and marked certain documents as exhibits. Defence chose not to adduce any evidence.

4. The trial court evaluating the ocular and the documentary evidence brought on record found the accused person guilty of the offence under Section 302 read with Section 34 IPC and sentenced them to suffer rigorous imprisonment for life.

5. The conviction and sentence was challenged before the High Court by all the four accused persons. One of the accused, namely, Dhani Ram expired during the pendency of the appeal before the High Court and the appeal qua Dhani Ram stood abated. As far as the other three accused persons, namely, Dharam Pal, Mahendra and Vijendra, were concerned, the High Court concurred with the view expressed by the trial court and resultantly dismissed their appeal. Be it stated here that Dharam Pal has also expired, as has been stated by the learned counsel for the appellant. Be that as it may, there is no appeal at his instance. The present two appeals have been preferred by the two appellants who are aggrieved by the affirmation of the judgment of conviction and order of sentence by the High Court.

32. Tested on the aforesaid parameters, we are unable to accept the submission of Mr. Giri that non-examination of Nepal Singh and other two persons who had been referred to by PW-2 affects the prosecution version or creates any doubt in the mind of the Court. We arrive at such a conclusion since the witnesses examined by the prosecution are trustworthy and the court can safely act on their testimony. There is no justification in the instant case to draw any adverse inference against the prosecution.

35. In view of the aforesaid analysis, we do not find any merit in Criminal Appeal No. 1452 of 2010 preferred by Mahendra Singh and the same is, accordingly, dismissed.

37. Consequently, Criminal Appeal No. 1452 of 2010 is dismissed and Criminal Appeal No. 1448 of 2010 is disposed of treating the appellant- Vijendra Singh as a juvenile and directions issued in that regard as stated hereinbefore.