Deonath Singh and Others (In Jail) vs State of U.P.

S.K. Agarwal, J.—This criminal appeal has been filed by Deonath Singh, Kamla Singh, Ganga Sagar and Kundan Singh against the order of conviction dated 15.7.1980 passed by the II Additional Sessions Judge, Ballia, in S.T. No. 96 of 1979. By the aforesaid order, each of the accused-Appellants have been sentenced u/s 302/34, I.P.C. to undergo imprisonment for life.. Appellant Kundan Singh has been further convicted u/s 307, I.P.C. and sentenced to undergo rigorous imprisonment for two years. Both the sentences of Kundan Singh have been directed to run concurrently.

The brief facts giving rise to this case are that Appellants Deonath Singh and Kundan Singh were armed with guns and Appellants Kamla Singh and Ganga Sagar along with acquitted accused Babujan were armed with ballam. Babujan was acquitted by the aforesaid order. The incident has arisen as a sequel to some land dispute between P.W. 1 Sagar and Appellant Ganga Sagar. Ganga Sagar was allotted 3 decimals land by the Gaon Samaj in plot No. 453, which P.W. 1 claims to be his and in his exclusive possession. The bone of contention was erection of walls around the piece of land. Litigation between the parties was going on. In their zeal to settle the dispute amicably, a Panchayat was called a few days earlier, but on account of some quarrel between Deonath Singh, Appellant, and deceased, Shivnath Singh, it did not materialize. It is alleged that on that very day the next date for the Panchayat was fixed and it was also settled between the parties that they will come in the next Panchayat with their own Panchas. P.W. 1 Sagar called Shivnath Singh, Gram Pradhan of village Chhitona, Banwari Choudhary, Pradhan of village Bhojaupur, and Basawan Singh on his side, whereas from the side of Ganga Sagar, Appellant, Deonath Singh, Babujan and Kamla Singh were called as panch. The panchayat was to be held on the date of occurrence at 8.00 a.m. A few hours before this appointed time of Panchayat, Sagar set out to call his panchas. He was coming back along with three aforesaid panchas at about 7.00 a.m. When all these persons reached the field of Ram Garib, they saw Deonath Singh, Kundan Singh. Kamla Singh, Babujan and Ganga Sagar all armed with lethal weapons standing at the corner of Bajli courtyard. Seeing these persons coming. Ganga Sagar is said to have exhorted other accused persons that no one should be allowed to escape. Deonath Singh opened fire upon Shivnath Singh from his gun. Shivnath Singh fell down a few steps from the place where he had received the injury near a heap of Puaal. Jagat Mishra. the injured witness P.W. 3 was coming front the side of tube-well of Ramagya. In the meantime Kundan Singh opened fire which hit Jagat Mishra. Afterwards, all the assailants had gone to Shivnath Singh and Kamla Singh, Babujan and Ganga Sagar assaulted him with ballams after he fell down. The witnesses fled to the village and came back in strength after sometime to the spot of incident. It was then learnt by them that the accused-Appellants had taken away injured Shivnath Singh to the house of Chhunni Lai and locked him in the baithka there. Chhunni Lai happens to be the brother of Appellant Ganga Sagar.

The Investigating Officer on his arrival to the scene of occurrence recovered the dead body of Shivnath Singh from this baithka of Chhunni Lai. Sagar, who proceeded for the police station, carried injured Jagat Mishra on a cot. At the outskirts of the village abadi, they stopped a truck, which was passing by that side and placed the cot upon it. They reached the police station. In the way, Krishnabali Singh of Sikarhata also boarded the truck. The first informant narrated the entire incident to him. The informant got his F.I.R. scribed by Krishnabali Singh and presented the same at the Police Station for registration of a case against the Appellants. The F.I.R. is Ext. Ka-1 on the record.

Jagat Mishra was sent to the District Hospital, Ballia, for medical examination. He was medically examined at 6.10 p.m. on 12.1.1979. A Police Constable belonging to P.S. Ubhaon, district Ballia, took him to the hospital. On his person two lacerated wounds of .7 cm. diameter were found on the left side upper arm and left inguinal region. The injury report of Jagat Mishra is Ext. Ka-8 on the record.

The autopsy on the body of Shivnath Singh was conducted on 13.1.1979 at 11.00 a.m. by Dr. Laxmi Narain Singh, P.W. 8. A perusal of the post-mortem examination report and the evidence of P.W. 8 will reveal that the deceased had sustained six punctured wounds, one clear-cut incised wound, and two lacerated injuries out of which surrounding skin was found blackened in injury No. 5. There is a gunshot injury on the lateral side of the chest margins are blackened, i.e., injury No. 7 Underneath injury No. 1, there is fracture of the ''scalp'', as noted in the internal examination caption Head and Neck''. It appears that the Doctor, who conducted the post-mortem examination on the person of the victim, Shivnath Singh, was not aware of the distinction between ''scalp'' and ''skull''. According to The New Lexicon Webster''s Dictionary'', ''scalp'' means the skin on the top and back of the head, whereas ''skull'' means the bony covering of the head of a vertebrate that encloses the brain and the principal sense organs and consists of the cranium, jaws, and sockets for eyes, ears and nose. Thus, it is apparent that Dr. Laxmi Narain Singh did not know the distinction between the ''skull'' and the ''scalp'' and has wrongly shown ''scalp'' in place of ''skull''. There cannot be any fracture of the ''scalp'', and therefore, it ought to be ''skull''. Injury No. 1 is I" x 1/2" x bone deep on the crown of the head. Other two injuries on the head are also of the same dimension, but the Doctor has clearly noted them as ''muscle deep''. What causes concern to us is that even the learned Sessions Judge has failed to note the distinction and elicit any explanation for the same from the Medical Officer, P.W. 8.

The prosecution, in order to support its case, has examined Sagar, Banwari and Jagat Mishra, P. Ws. 1, 2 and 3 respectively. Out of them Jagat Mishra is an injured witness. Apart from these witnesses, some formal witnesses have also been examinee. They are Kalika Singh, who escorted the injured for medical examination as P.W. 4 and Satya Narain Rai, P.W. 5, Head Moharrir of P.S. Ubhaon, who had registered the case and prepared the chick report and other relevant papers. Dr. Kailash Singh, P.W. 6, examined Jagat Mishra''s injuries. Ram Kishan Chauhan, P.W. 7, escorted the dead body of Shivnath Singh for postmortem. Dr. Laxmi Narain Singh, P.W. 8, is the person, who has conducted autopsy on the person of the deceased, Shivnath Singh. Subhash Chandra Srivastava, P.W. 9, is the Investigating Officer in this case. This is the entire evidence led by the prosecution to establish the guilt of the Appellants.

In this connection, the evidence of P.W. 1 Sagar, P.W. 2 Banwari, and P.W. 3 Jagat Mishra is to be closely examined. It has come out clearly from their testimony that about 15-16 days ago, a panchayat was also arranged. In that panchayat, Shivnath Singh, Banwari Choudhary and one other were Panch from the side of P.W. 1 Sagar and some of the Appellants were Panch from the side of Appellant Ganga Sagar. No panchayat could be held on that date because some heated exchange of words between Appellant Deonath Singh and the deceased Shivnath Singh took place. This fact has come out in the examination-in-chief. In the cross-examination also, this fact has been brought about in the statement of this witness. In the cross-examination, it has further been elicited that Deonath had challenged Shivnath Singh. The specific words used were "Dekh Lunga Pichey" (i.e., will be seen latter). He has further stated that Ganga Sagar also sided with Deonath. When two were arguing with deceased Shivnath Singh, he also retaliated that "Humbhi Tumko Dekhenge" (i.e., we will also see you). Somehow or the other, a next date for the panchayat was fixed. Thereafter the parties dispersed on that date. So the motive is apparent. Banwari lends full support to this statement of Sagar. He has not been cross-examined on this point by the defense. Thus, we are of the opinion that sufficient motive to assault Shivnath Singh is available from the record and the argument contrary to the same does not hold any water.

The next contention raised on behalf of the Appellants by their learned Counsel is that the injuries are not stated to be sufficient in ordinary course of nature to cause death by the Doctor and injuries caused by balsam, except injury No. 1, are simple in nature and are on non-vital parts. The import of this argument clearly is to the effect that the conviction u/s 302, I.P.C. is not sustainable. In this connection, it has further been submitted that the Medical Officer, who conducted the autopsy, has opined that the death had occurred as a result of shock and hemorrhage followed by injury Nos. 1, 5 and 7. We have very carefully examined the post-mortem examination report. We have already discussed earlier that the Doctor has noted down fracture of the ''scalp''. It ought to have been ''skull'' and not ''scalp''. Injury No. 1 is a punctured wound. Injury No. 5 is an injury on the right bicep muscle of the dimension of 2" x 1/2" and muscle deep. This injury cannot be the cause of death. To us it appears that by mistake the Doctor has noted down injury No. 5 in place of injury No. 6. Injury No. 6 is a punctured wound 1/2" x 1/2" muscle deep on the front chest and injury No. 7 is a gunshot injury on the right lateral side of chest. Injury No. 7, it appears clearly to us, had not been probed by the Doctor. In the absence of any clarification on this score from the Medical Officer, it is not possible for us to conclude categorically from the medical evidence that this injury was also fatal. Dr. Laxmi Narain Singh in his statement has repeated that the death was the result of shock and hemorrhage due to injuries No. 1, 5 and 7. The carelessness of the trial Judge is shocking. He has made no attempts to seek any clarification from the Medical Officer on these points.

The other punctured wound, we find, are muscle deep, meaning thereby that no internal damage, apparently, was caused under these injuries. According to the Doctor, injury Nos. 1, 5 and 7 cumulatively resulted into the death of the victim. Injury No. 5 appears to have been wrongly denoted for injury No. 6 in the post-mortem examination report as well as in the statement. Injury No. 6 is only muscle deep. Therefore, no importance can be attached. Injury Nos. 1 and 7, thus, could be the only injuries which could be held to be sufficient in ordinary course of nature to cause the death of the victim. It is true, except injury No. 1, all other injuries of the balsam were inconsequential in nature being muscle deep only. It has not been specified in the statement of aforesaid three eye-witnesses as to who was the author of this injury No. 1.

Crucial circumstance occurring in the testimony of the three eye-witnesses named above, that stares at the face of the defense, is the removal of the dead body from the spot of occurrence to their own house. From the cross-examination of P.W. 2 Banwari, it transpires clearly that the intention behind the removal of the dead body was to create a defense of right of private defense by the Appellants. It has come in the evidence of this witness that he had stated to the Investigating Officer that the Appellants have damaged the door of the house meant for the females with the above intention. But, it appears, the pressure from the villagers mounted shortly after the removal of the dead body and they fled from the spot and could not dare to take that defense. Injured P.W. 3 Jagat Mishra has also made a similar statement during the course of investigation to the Investigating Officer, which has been put to him in his cross-examination by the defense. The circumstances clearly indicate the intention of the Appellants in laying the assault upon the victim, Shivnath Singh. It has not been disputed that Shivnath Singh died in their house and the Investigating Officer recovered his dead body, soon after the registration of F.I.R., from the house of the Appellant, Ganga Sagar''s brother, Chunni Lai. This further goes clearly to suggest that the injuries sustained by the victim, Shivnath Singh, were sufficient, in ordinary course of nature, to cause his death. It further establishes that the intention behind this assault was certainly to commit his murder.

All the eye-witnesses have clearly stated about the role of Deonath Singh and Kundan Singh, Appellants. Deonath Singh is said to have opened fire upon the deceased, Shivnath Singh, which hit him on the chest. As a result of this injury, the deceased fell down near the Puaal, a few steps from the place of receiving the injuries. Kundan Singh''s fire resulted in the injury to Jagat Mishra, P.W. 3. There is no dispute that Jagat Mishra has sustained firearm injuries. Not only the medical examination report, Ext. Ka-8, but also the testimony of P.W. 6 Dr. Kailash Singh fully corroborates this circumstance. He has categorically stated in this regard in his statement in paragraph No. 2.

Thus, despite the ignorance of the Doctor, there are circumstances, which clearly indicate that the common intention of the Appellants was to kill the deceased. This inference is further fortified from the weapons that have been employed in the assault by the Appellants. The deceased initially was fired upon and thereafter on his falling down he was further assaulted by other Appellants, holding ballads, is further an indication of the nature of vengeance with which they have launched the assault upon the deceased, Shivnath Singh. May be that out of fear and panic, they were not able to land blows as effectively as could be expected of them from bedlams.

It is a broad daylight incident. No challenge has been laid against the time of incident. It was the month of January and the incident had taken place at 7.30 a.m. By this time, sun must have clearly come out. Therefore, there is no possibility of any mistake in identification of the assailants by the witnesses. The motive was clearly there. Shivnath Singh was Pradhan of a village and on the earlier occasion, some hot exchange of words and extension of threat had already taken place. From the facts and circumstances, it transpires clearly that he was a thorn in the flesh of the Appellant in the settlement of the dispute between Sagar, P.W. 1, and Appellant Ganga Sagar. The other Appellants, Deonath Singh, Kamla Singh and Kundan Singh were also siding with him. The Appellant, Ganga Sagar summoned Deonath Singh and Kundan Singh along with Babujan, to stand Panch on his behalf in the Panchayat. By keeping the dead body in their house, the Appellants ensured that the victim must bleed to death. They were lying in wait from before. They were sure of their arrival. These circumstances must prevail over any deficiency that had occurred due to ignorance and incompetence of the Doctor in medical evidence.

14.Expert evidence is never conclusive in nature. In any case where medical evidence is cryptic, the Courts are not left hapless. The Courts still can look to the circumstances. If from the circumstances, a pre-meeting of mind or pre-concert to kill can safely be gathered, the Courts are not precluded from doing so. The present set of facts and circumstance impel us to conclude that the assault was pre-planned with the intention to kill Shivnath Singh. He was found dead inside their house with lock latched to doors of the room where he was kept. The incident had taken place at 7.00 a.m. The weapons used were lethal. Assault was continued even after the fall of the deceased. They had been lying in wait from before. These circumstances taken cumulatively does not leave any room for any doubt in our mind that the common intention was to kill and their offence, therefore, squarely falls within the ambit of Section 302, I.P.C. and not u/s 304, Part I, I.P.C, as argued on their behalf.

In view of the aforesaid discussions, we are of the opinion that an offence u/s 302, I.P.C. is clearly made out against the Appellants with the aid of Section 34, I.P.C. So far as conviction of Kundan Singh u/s 307, I.P.C. is concerned, his conviction u/s 307, I.P.C. for causing injury to Jagat Mishra is also sustainable.

In the result the appeal fails and is accordingly dismissed. The conviction of the Appellants u/s 302/34, I.P.C. is confirmed and the sentence awarded to is affirmed. Conviction andsentence of Kundan Singh u/s 307, I.P.C. is also confirmed. Both the sentences of this Appellant, Kundan Singh, shall run concurrently. All the Appellants are on bail. Their bail bonds are cancelled. They shall be taken into custody forthwith to serve out their sentences.