Radha Mohan Singh @ Lal Saheb & Others vs State Of U.P

These appeals by special leave have been preferred against the judgment and order dated 9.7.2004 of Allahabad High Court by which the appeal preferred by the appellants was dismissed and their conviction under Sections 147, 148 and 323, 324 & 302 all read with Section 149 IPC as recorded by the learned Sessions Judge and the sentences awarded thereunder were affirmed. The appellants were awarded various terms of imprisonment on different counts including sentence of imprisonment for life under Section 302 read with Section 149 IPC.

2. According to the case of the prosecution the incident giving rise to the present appeals took place in Village Sivpur Deeyar Nai Basti in the district of Ballia. The first informant PW-1 Ganesh Singh was residing in the village while his elder brother Hira Singh (deceased) was carrying on business in Calcutta. Five days before the present incident, which took place on 14.3.1979, accused Radha Mohan Singh (A-1), Kaushal Kishore Singh (A-5) and some others had assaulted Udai Narain. PW-1 Ganesh Singh was a witness of the said incident and his statement had been recorded under Section 161 Cr.P.C. The deceased Hira Singh had come to his village home two days before the Holi festival which fell on 14.3.1979. A-1 and A-5 met the deceased and asked him to forbid his younger brother PW-1 Ganesh Singh from giving evidence against them in the criminal case relating to the assault made upon Udai Narain. The deceased, however, told them that as his brother had seen the incident, he would appear as a witness and would depose against them. The accused felt annoyed and threatened that they would teach him a lesson. On 14.3.1979, which was the Holi day, the first informant PW-1 Ganesh Singh and his brother deceased Hira Singh went to the houses of some people in the village for the purpose of 'Holi Milan', as was customary. By evening time they were going on the pathway in front of the house of Nand Kishore, when Radha Mohan Singh (A-1) armed with spear, Tej Bahadur Singh (A-2) and Kapil Dev Singh (A-3) armed with lathis, Devender Singh @ Mutuk Singh (A-4) armed with farsa and Kaushal Kishore Singh (A-5) armed with knife suddenly appeared there. A-1 assaulted Hira Singh with the spear and A-4 assaulted him with farsa and after receiving the injuries he fell down. When PW-1 Ganesh Singh tried to save him, A-2 and A-3 assaulted him with lathis. Two other persons who were also present there, namely, PW-3 Mohan Yadav and PW-6 Ram Pyari tried to intervene and save them but they were also assaulted by A-5 by knife and A-3 by lathi. The accused thereafter ran away from the seen of occurrence. Hira Singh was carried on a cot to the 'bandh', which was at the outskirts of the village and from there he was taken to the district hospital in a tempo where he was medically examined at 9.00 P.M. PW-1 Ganesh Singh was medically examined at 9.50 P.M. and the remaining two injured PW-6 Ram Pyari and PW-3 Mohan Yadav were examined at 11.30 A.M. on the next day. Ganesh Singh lodged a written report of the incident at 10.30 P.M. on the same night at P.S. Kotwali giving a complete version of the incident.

3. After completion of investigation charge sheet was submitted against all the five accused and the case was committed to the court of sessions. The learned Sessions Judge framed charges under Sections 147, 148 and 323, 324 and 302 all read with Section 149 IPC against the accused persons. The accused pleaded not guilty and came to be tried. In order to establish its case prosecution examined five eye witnesses, namely, PW-1 Ganesh Singh, PW-3 Mohan Yadav, PW-4 Ramji Singh, PW-5 Nand Kishore and PW-6 Ram Pyari. PW-1 Ganesh Singh, who is the first informant and had received injuries in the incident, gave complete version of the incident in his deposition in Court. His testimony was fully corroborated by PW-4 Ramji Singh, who was also named as an eye witness of the incident in the FIR. PW-3 Mohan Yadav, an injured witness, supported the prosecution case in his examination-in-chief and in cross-examination. As his cross-examination could not be completed it was continued on the next day when he stated that on account of darkness he could not identify anyone. On the request of the learned State counsel, he was permitted to be cross examined. PW-5 Nand Kishore and PW-6 Ram Pyari did not support the case of the prosecution and they were declared hostile.

4. The learned Sessions Judge, after thorough examination of the evidence on record, held that the prosecution had succeeded in establishing the charges leveled against all the accused and accordingly convicted them under Sections 147, 148 and 323, 324 and 302 all read with Section 149 IPC and imposed sentence of various terms of imprisonment including life imprisonment under Section 302 read with Section 149 IPC. The appeal preferred by the appellants was heard by a Division Bench consisting of Hon'ble S.K. Agarwal and Hon'ble K.K. Misra, JJ. There was a difference of opinion between the two learned Judges. Hon'ble S.K. Agarwal, J. was of the opinion that the appeal should be allowed and the conviction of the appellants and the sentences imposed thereunder were liable to be set aside. Hon'ble K.K. Misra, J. was of the opinion that the appeal was liable to be dismissed and the conviction of the appellants and the sentences imposed by the learned Sessions Judge deserved to be upheld. In view of difference of opinion the appeal was placed for hearing before Hon'ble U.S. Tripathi J., who came to the conclusion that the appeal deserved to be dismissed. In accordance with the opinion of the learned third Judge the appeal was dismissed and the conviction and sentences imposed upon the appellants by the learned Sessions Judge were affirmed by the High Court.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub- divisional Magistrate.

Margins of wound are well defined. Wound is directed downwards and towards the right side.

2. Incised wound 0.5 cm x 0.2 cm x skin deep on the left side of chest in mid axillary line 16 cm behind the axilla and 24 cm left to the mid line.

21. In the result, the appeal filed by Radha Mohan Singh @ Lal Saheb is dismissed with the modification that his conviction is altered from Section 302 read with Section 149 IPC to that under Section 302 IPC. He is sentenced to imprisonment for life under the said Section. The appeals filed by Kapil Deo Singh, Devendra Singh alias Mutuk Singh and Kaushal Kishore Singh are partly allowed. Their conviction under Section 302 read with Section 149 IPC and the sentence of imprisonment for life imposed thereunder are set aside. They are instead convicted under Section 326 read with Section 149 IPC and for the said offence they are sentenced to undergo 7 years RI. The conviction of all the appellants for the remaining offences as recorded by the learned Sessions Judge and the sentences imposed thereunder are affirmed. All the sentences imposed upon the appellants shall run concurrently. The appellants shall surrender forthwith to undergo the sentences imposed upon them. The Chief Judicial Magistrate, Ballia (U.P.) is directed to take immediate steps to take the appellants into custody. After the appellants have been taken into custody, their sureties and bail bonds shall stand discharged.