Deo Kumar and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Heard Shri Kunwar Mukul Rakesh, learned counsel for the appellants, and Smt. Madhulika Yadav, learned AGA for the State.

Under challenge in the instant criminal appeal is the judgment dated 02.08.1982 and order dated 03.08.1982 passed by II Additional Sessions Judge, Rae Bareli, in Sessions Trial No. 41 of 1981 and Sessions Trial No. 43 of 1981, arising out of Case Crime No. 332 of 1980, Police Station Bachhrawan, District Rae Bareli, whereby all the three appellants were convicted and sentenced as under:-

"Appellant Deo Kumar (Dead)

i) For the offence under Section 302 IPC imprisonment for life;

ii) For the offence under Section 323 /34 IPC, rigorous imprisonment for a period of six months;

iii) For the offence under Section 25 of the Arms Act, rigorous imprisonment for a period of six months.

Appellant Deep Narain

i) For the offence under Section 302 /34 IPC, imprisonment for life, and

ii) For the offence under Section 323 read with Section 34 IPC, rigorous imprisonment for a period of six months.

Appellant Ghisiyawan

i) For the offence under Section 302 /34 IPC, imprisonment for life, and

ii) For the offence under Section 323 IPC, rigorous imprisonment for a period of six months."

All the sentences were directed to run concurrently.

During pendency of the instant appeal, appellant Deo Kumar expired and because of his death, his appeal was abated vide order dated 15.10.2015.

In brief, the case of the prosecution was that on the date of occurrence i.e. 23.09.1980 at about 07.45 PM complainant Ram Suchit and deceased were taking the pair of their bullocks from the thatch to the cattle shed. A lantern was kept lighted at the corner of Chabutara in front of the cattle shed. When complainant Ram Suchit and deceased Devi Saran, who happens to be the son of the complainant Ram Suchit, came over Kharanja in front of Chaupal then all three accused persons appeared. Appellant Deo Kumar (since dead) was armed with a country made pistol, appellant Ghisiyawan was carrying an axe and appellant Deep Narain was bare handed. Appellant Deo Kumar told the complainant that his son had abused him and that he would kill him. Complainant Ram Suchit replied that in case his son had abused him then he may also abuse him. At that time, Rakesh Kumar was standing at his door and Sampati Lal and Nand Kishore, who were passing through the way, also stopped there after hearing altercation. Appellant Deep Narain exhorted that in case Devi Saran has abused them, he may be fired at. On this exhortation, Deo Kumar fired with his country made pistol on Devi Saran, which hit on his chest. When complainant Ram Suchit made an attempt to apprehend Deo Kumar then appellant Ghisiyawan gave a blow of axe to him which hit him on his left knee. Hearing the cries and noise of fire, Sampati Lal, Nand Kishore and several other persons reached there. Appellant Deo Kumar was trying to reload his country made pistol. When all persons rushed towards him then he ran away and all the accused persons made their good escape. Leaving the dead body on the place of occurrence, complainant Ram Suchit got the first information report of this case scribed by Shiv Shankar Verma and the same was lodged on the same day at 2140 hours at police station Bachhrawan, District Rae Bareli.

During course of investigation, inquest proceedings were conducted and the dead body was sent for post-mortem which was conducted on 24.09.1980 at 02.30 PM.

As per post-mortem report, the following ante-mortem injury was found on the body of the deceased:-

"Multiple pellet mark in form of wound of entry on right side front of chest upper part in an area of 15 cm x 7 cm each of 4 mm diameter. Tattooing or charring not present. No blackening."

In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of firearm injury.

Complainant Ram Suchit was also medically examined on 23.09.1980 at PHC Bachhrawan and following injuries were found on his body:-

"(1) Lacerated wound (horizontal and semicircular) 4.5 cm x 1.0 cm x bone deep (up to patella) on the anterior aspect of left knee joint.

(2) Abrasion 6 cm x 2 cm on the anterior and lateral aspect of left knee joint."

In the opinion of the doctor, injury No. 2 was simple in nature and caused by friction against some hard object. Injury No. 1 was kept under observation and it was caused by blunt edged object like Lathi and Danda and it was fresh in duration.

Complainant Ram Suchit was again medically examined on 27.09.1980 at District Hospital Rae Bareli and the following injuries were reported by the doctor:-

"(1) Stitched wound 4.5 cm long, semicircular in shape on front of let knee in patella region (five stitches present), surrounded by inflammatory swelling. On a little pressure small amount of pus came out through one of the stitches of the wound present.

(2) Abrasion 6 cm x 2 cm on the anterior-lateral aspect of left knee just below and lateral to patella. Part of abrasion covered by dry firm reddish black scab and part of abrasion raw."

No definite opinion could be given regarding cause of injury No. 1 and injury No. 2 was reported to be caused by friction against hard object. Duration was reported to be four days old.

During investigation, appellant Deo Kumar was taken on police custody remand and on 28.09.1980 on his pointing out, the weapon of offence i.e. country made pistol was recovered from the thatch of his house. Accordingly, its recovery memo was prepared and on the basis of this recovery memo, a separate case under Section 25 of the Arms Act was registered against appellant Deo Kumar, which was also tried as Sessions Trial No. 43 of 1980 along with the main offence.

After completing the investigation, charge sheet was filed against all the appellants.

The case of the defence was of total denial and their false implication because of enmity.

In order to prove its case, the prosecution has examined PW-1 complainant Ram Suchit, PW-2 Sampati, PW-3 Rakesh Kumar - as witnesses of fact. PW-4 is Mohd. Irfan Khan, who has prepared Chik Report and GD of this case. PW-5 is Dr. K.N. Mehrotra, who has conducted the post-mortem on the body of the deceased. PW-6 is Vrij Kishore, who is a witness of recovery of country made pistol on the pointing out of appellant Deo Kumar (since dead). PW-7 SI Daya Nand Singh is the initial Investigating Officer of this case. PW-8 SI Vijay Bahadur Singh is the Investigating Officer of case under Section 25 of the Arms Act. PW-9 SO Kamla Prasad is the subsequent Investigating Officer of this case. PW-10 is Dr. G.K. Srivastava who has examined complainant Ram Suchit on 27.09.1980. PW-11 Butul Ray is the Government Ballistic Expert who has examined the recovered country made pistol. PW-12 Vrijendra Pal is a formal witness who had taken the recovered weapon in sealed condition to scientific section, CID, UP, Lucknow. PW-13 is Dr. S.C. Gupta who had initially examined Ram Suchit the complainant of this case on 23.09.1980.

In defence, on behalf of appellants some documents were filed to show enmity with witnesses.

Learned trial court, after appreciating the evidence on record, convicted the appellants, as above, hence the instant appeal.

Submission of learned counsel for the appellants was that appellant Deo Kumar, who was assigned main role of firing and causing death of the deceased Devi Saran, has expired and the role assigned to appellant Ghisiyawan was that he gave a blow of axe to complainant Ram Suchit. But no such injury caused by sharp edged weapon was found on the body of the complainant. Accordingly, appellant Ghisiyawan was convicted under Section 323 IPC and not under Section 324 IPC. Appellant Deep Narain was assigned the role of exhortation. Submission of learned counsel for the appellants was that there is no evidence on record to indicate that there was any common intention for the appellants from the very beginning to commit the murder and it was all of a sudden that appellant Deo Kumar fired on the deceased causing his death. Hence, the appellants cannot be assigned common intention to commit murder but the trial court has not considered this aspect of the matter in correct perspective and has convicted the appellants also with the aid of Section 34 IPC. Such approach of the learned trial court has rendered its judgment unsustainable under law.

Learned AGA has submitted that learned trial court has appreciated the evidence in correct perspective and has rightly held that all three accused persons had a common intention and in furtherance of their common intention, appellant Deo Kumar fired and caused death of the deceased. So, the finding of the learned trial court needs no inference as the judgment of the learned trial court is well reasoned.

The only point raised in the instant appeal is that the main assailant Deo Kumar has expired and there is nothing on record to indicate that the appellants had common intention. The only role assigned to appellant Deep Narain was of exhortation and the role assigned to appellant Ghisiyawan was of causing injury with axe.

Learned counsel for the appellants has also submitted that as per the prosecution case the fire was shot from a close range but neither blackening nor tattooing nor scotching was found in the postmortem. So, the fire was shot from a sufficient distance. The incident had taken place in the night. It is a case of hit and run and present two appellants have been falsely implicated.

Appellants Deo Kumar (dead) and Deep Narain were real brothers and appellant Ghisiyawan is said to be their friend. Appellant Ghisiyawan has been convicted for the offence under Section 323 IPC only on the ground that injuries were reported by the doctor to have been caused by blunt object like Lathi and Danda. So, the submission of learned counsel for the appellants has force that the role of giving blow with axe stands falsified because appellant Ghisiyawan has not been convicted for the offence under Section 324 IPC and this aspect of the matter also creates doubt regarding the presence of appellant Ghisiyawan. It is submitted that the possibility, that while chasing the main assailant Deo Kumar, complainant Ram Suchit might have fallen due to which such injuries were received by him cannot be ruled out.

So far as appellant Deep Narain is concerned, he has been assigned the only role of exhortation. Evidence of exhortation is a weak type of evidence. Therefore unless and until there is reliable evidence to establish the presence of such appellant on spot and also his common intention to commit murder, his involvement in the offence remains under doubt because there is a general tendency to falsely implicate other close relatives by assigning them only role of exhortation.

Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Jainul Haque Vs. State of Bihar, , at page 545 and Hon''ble Apex Court has observed as under:

"The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the prosecution evidence on the point that the appellant had joined in the assault on Leyaquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that the appellant had exhorted the other accused to assault Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence under Section 323 read with Section 114 of the Indian Penal Code. The High Court has found the evidence of the eyewitnesses to be unsatisfactory. It has also found that the eyewitness were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."

Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Anand Mohan Vs. State of Bihar, and Hon''ble Apex Court has observed in para 69 as under:

"69. This Court has held in Jainul Haque v. State of Bihar (supra) that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim and unless the evidence in this respect is a clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant."

Learned counsel for the appellants and learned AGA have taken us through the evidence on record and on the strength of certain statements of the witnesses, learned counsel for the appellants has stated that there was no common intention to commit the offence. The witnesses have admitted that there was no prior enmity of the complainant with the appellants. PW-1 complainant Ram Suchit has given following statement in his cross examination:-

This statement of the witness shows that altercation was going on between both the sides. Thus, it transpires that during this altercation, fire was shot by appellant Deo Kumar and not on the exhortation of co-accused.

PW-2 Sampati has stated that Deo Kumar fired on the deceased from a distance of three paces. Appellant Deo Kumar moved forward about two paces to fire. So, this statement of the witness shows that the fire was shot by appellant Deo Kumar from a close range but this part of the statement does not stand corroborated by the medical evidence as no blackening, tattooing or charring was found on the body of the deceased. This witness has stated that 3-4 minutes time was consumed in the entire incident.

PW-3 is Rakesh Kumar. Our attention was drawn towards the reply of the following question given by this witness:-

He has further stated that after the fire, he ran inside the house. So, the subsequent part of the incident could not be witnessed by this witness i.e. the role of appellant Ghisiyawan. He says that fire was shot. But the above answer does not indicate that fire was shot on the exhortation of Deep Narain.

In the peculiar facts of the case this statement of the witness that assumes great importance because this statement shows that the fire was not the result of any exhortation. As stated earlier, the case of the prosecution regarding causing injury to complainant Ram Suchit with axe also does not find support from the medical evidence.

The main accused Deo Kumar, who had fired on the deceased and had caused his death, has already expired and as discussed earlier, the prosecution''s case regarding surviving two appellants comes under the shadow of doubt for the reasons mentioned in the earlier part of the judgment.

Accordingly, the appellants Deep Narain and Ghisiyawan become entitled for benefit of doubt and their appeal deserves to be allowed. Hence, this appeal is hereby allowed. Appellants Deep Narain and Ghisiyawan are hereby acquitted of all the charges levelled against them. They be set at liberty. They are on bail. They need not to surrender. Their bail is cancelled and sureties discharged.

Office is directed to communicate this order to the court concerned forthwith and to send back the lower court record.