Dharambir (in Jail) vs State of U.P.

Y.R. Tripathi, J.—This appeal has been preferred against the judgment and order dated 9.7.1981, passed by Sri B. D. Agarwal, the then Sessions Judge, Kanpur, whereby he having convicted the Appellant u/s 302, I.P.C. has sentenced him to imprisonment for life.

The facts necessary for appraisal of discussion made hereinafter are that 8/9 days prior to the date of incident which took place on 6.2.1981, there had been some clash between the habitants of village Sen Pashchimpara on the one hand and the police personnel on the other, in which a policeman had been shot at. Sri Kant and Laxmi Kant both real brothers and one Dharmraj, brother of the Appellant with others had been arrayed as accused in that incident and Anant Singh, brother of the informant, along with others had been named as a witness. Some of the witnesses of that case had filed their affidavits disowning the prosecution case and pressure was built on Anant Singh also to file his affidavit as had been done by other witnesses. It is said that Anant Singh did not succumb to the pressure brought on him, which caused annoyance to the accused of that case, who nursed grudge against Anant Singh and his family members. With these antecedents in the background, it is alleged that on 6.2.1981 at about 10.30 a.m. when Shishupal Singh (deceased) and his brother Shiv Pal Singh P.W. 1, both brothers of Anant Singh, were on way on bicycles to Kanpur from their village Sen Pashchimpara, P. S. Bidhuna to sell milk and had reached about a furlong ahead of Mardanpur culvert, the Appellant, Sri Kant, Laxmi Kant and Virendra Kumar, out of whom the Appellant was armed with a country made pistol and the rest with hockey sticks intercepted them and on the exhortation of Sri Kant, Laxmi Kant and Virendra Kumar to kill Shishu Pal Singh, who was a little ahead of his brother Shiv Pal Singh at that time, the Appellant fired at Shishu Pal Singh, who on being hit by the shot fell down from his bicycle and died instantaneously, Shishu Pal Singh at that time was carrying milk on his bicycle in two containers which got split. It is also said that the three companions of the Appellant, Sri Kant, Laxmi Kant and Virendra Kumar gave a chase to Shiv Pal Singh with a view to assault him, but Shiv Pal Singh ran away and managed to escape unhurt. Mangal Singh P.W. 2, Raj Pal Singh P.W. 3 and some other persons including Prahalad Singh and Nawal Kishore (not produced) who were coming from Kanpur and were present nearby were attracted to the scene of the incident whereupon the Appellant and his companions took to their heels. After the incident, Shiv Pal Singh prepared a written report Ext. Ka-1 and went to the police station, Sachendi, which lies at a distance of six miles to the west of the place of incident and made over the written report there, on the basis of which constable Lallan Singh then posted there drew a chick report Ext. Ka-14 at 12.20 p.m. on that very day and registered a case vide G.D. Ext. Ka-15. Investigation of the case was entrusted to S. I. Subedar Singh, who at that time was posted at Patarsa outpost established in Panki Industrial Area situate at a distance of one mile from the place of occurrence. After registration of the case at police station, Sachendi, the relevant papers were sent through constable Abdul Haleem P.W. 6 to S.I. Subedar Singh P.W. 5 who held an inquest of the dead body and completed other formalities and after sealing the dead body, handed it over to Abdul Haleem P.W. 6 and a home guard Raj Kumar (not produced) for being taken to mortuary. Constable Abdul Haleem and Raj Kumar, in their turn, took the dead body to mortuary and produced it before Dr. R. C. Tripathi P.W. 4, then posted as Medical Officer in E.S.I., Babupurwa, who conducted autopsy on the dead body and found the following ante-mortem injuries on the person of the deceased:

(1) Wound of gun shot entrance 8 in number in an area of 9 cm. - 9 cm. placed over Rt. side lower part of chest (Rt. Hypracamdum region) 16 cm. below right side axilla. Each entrance is in size of 1 cm. - 1 cm. with presence of blackening 1/2 cm. around each, wound margins enverted.

(2) Wound of gun shot exit 1.5 cm. - 1 cm. present over back of upper part of abdomen 16 cm. above to median part of buttock.

According to Dr. Tripathi, the deceased had died as a result of shock and haemorrhage on account of ante-mortem injuries. In his opinion the injuries had been caused by fire arm including country made pistol and were sufficient in ordinary course of nature to cause the death of the victim. He has also opined that the victim on sustaining his injuries could have died instantaneously. S.I. Subedar Singh P.W. 5 conducted major part of the investigation and the charge-sheet Ext. Ka-13 was submitted by his successor, which resulted in the trial of the Appellant and his three other associates.

The Appellant and his associates pleaded their innocence and attributed their false implication to enmity.

The prosecution to prove its case examined Shiv Pal P.W. 1, the informant, Mangal Singh P.W. 2, Raj Pal Singh P.W. 3, are witnesses of fact, Dr. R. C. Tripathi P.W. 4, the then Medical Officer, E.S.I. Babupurwa, who conducted the post-mortem examination of the deceased, S.I. Subedar Singh P.W. 5 the Investigating Officer, who started and conducted part of the investigation of the case, Constable Abdul Haleem P.W. 6, who along with Raj Kumar took the dead body of the deceased to the mortuary for its post-mortem examination, Babu Lal Tiwari P.W. 7, who on the date of incident was posted as Head Constable at P. S. Sachendi and in whose presence the F.I.R. of the incident was lodged and the case was registered.

The learned Sessions Judge, on conclusion of the trial, found the case proved only against the Appellant. He accordingly acquitted three of the accused and convicted and sentenced the Appellant as aforesaid, dissatisfied from which the Appellant has come up in this appeal.

Learned Counsel for the Appellant has assailed the conviction of the Appellant mainly on the ground of insufficiency of motive and incredibility of the prosecution evidence.

True, motive plays an important role as it impels the offender to commit the crime, but it is not necessarily so in each and every case. In a case in which there is direct evidence of proving beyond doubt the involvement of the accused in the commission of the offence, proof of motive is relegated to secondary position and hardly affects the merit of the case. In the instant case, the prosecution has assigned a specific motive to the Appellant and has also led evidence to prove it. A perusal of the written report Ex. Ka-1 would show that mention of the motive was made in it and it was alleged that 8-9 days prior to the incident, their had been some clash between the habitants of village Sen Pashchimpara and the police personnel in which a policeman was shot at and Sri Kant, Laxmi Kant and Dharm Raj among others were arrayed as accused and Anant Singh, brother of the informant, along with others was named as a witness. It was also alleged in it that some of the witnesses of that incident had filed their affidavits and pressure was being built on Anant Singh also to file his affidavit in favour of the accused of that case, but Anant Singh was not aggreable to it resulting in annoyance to the accused of that case. Shiv Pal Singh P.W. 1 deposed about that fact which has not been challenged. What has been argued is that if the brother of the Appellant was an accused in that case, how the Appellant could have nursed any grudge against the deceased and his brother Shiv Pal Singh to have thought of avenging his enmity by killing Shishu Pal Singh and launching an assault on the informant on the date of incident. This argument, to our mind, does not sound appealing. If the Appellant can be said to have had no motive for avenging his enmity because of Anant Singh not filing his affidavit in favour of his brother, who had been arrayed as an accused in the case in which the police personnel had been shot at, how Shiv Pal Singh P.W. 1 can be said to have any motive against the Appellant to implicate him falsely in this case. Learned trial court has examined this aspect of the prosecution case at length and has held that the proof of the motive in this case was not a ''sine qua non'' for success of the prosecution. The fact, however, remains that the prosecution in this case has assigned a motive to the Appellant for committing the crime complained of and has also led evidence to prove it and the evidence of Shiv Pal Singh P.W. 1 on this point being not challenged sufficiently proves the motive on the part of the Appellant.

Learned Counsel for the Appellant then urged that the prosecution evidence on fact consists of testimony of interested, partisan and chance witnesses, which can hardly be held reliable and sufficient for founding the conviction of the Appellant. Taking us through the evidence of Shiv Pal Singh P.W. 1, Mangal Singh P.W. 2 and Raj Pal Singh P.W. 3, he submitted that Shiv Pal Singh is real brother of the deceased Anant Singh and had sufficient animous to support the prosecution case. He further pointed out that Mangal Singh P.W. 2 was a witness against Chandrabhan Singh, father of the Appellant in the case of murder of one Ram Singh, which ended in acquittal. Thus, both the aforesaid witnesses, are highly partisan and interested and their evidence should not have been relied upon. True it is that Shiv Pal Singh is the brother of the deceased and P.W. 2 Mangal Singh was a witness against the father of the Appellant, but on that count alone, their evidence cannot be brushed aside. In a faction-ridden society, it is difficult to find an independent witness, as an independent person is hardly inclined to give evidence for the fear of procuring enmity. There is also no rule of law that the evidence of a witness, howsoever reliable it might be, should be discarded merely on the ground of his being an interested witness. The law discussed by the learned trial court shows that the evidence of such a witness is only required to be approached with caution. The learned trial court was fully conscious of this legal position and it has scrutinised the evidence of the said witnesses cautiously and carefully and has for cogent and convincing reasons has held the same reliable.

Shiv Pal Singh P.W. 1 was allegedly accompanying the deceased, separately on a bicycle and he has given an eye account of the incident. His evidence finds full support from the prompt F.I.R. and the medical evidence. Mangal Singh P.W. 2 has corroborated his evidence on all material particulars. On the fateful date of the incident, Mangal Singh P.W. 2 was returning from Kanpur, where he had gone to purchase a she buffalo on the evening of the day preceding the date of occurrence. He has stated that the Appellant and his associates were a little ahead of him when the incident took place. A futile attempt has been made to show that he belongs to the family of the deceased and is cousin brother of the deceased. There is however no material to support this fact. We thus find nothing in his evidence to disbelieve his presence on the place of occurrence. The evidence of both the witnesses Shiv Pal Singh P.W. 1 and Mangal Singh P.W. 2 corroborated by the testimony of Raj Pal Singh P.W. 3 on certain points proves the date, time and place of the occurrence. Learned Counsel for the Appellant laying much emphasis on the use of certain words by Shiv Pal Singh P.W. 1 in his written report Ext. Ka-1 such as "Nivedan", "Mahoday", "Adhyaksha" etc., urged that Shiv Pal Singh himself admits that he does not know the meaning of these words. He thus maintained that the F.I.R. appears to have been prepared after deliberation and consultation with some one and, therefore, it loses its corroborative value. It is true that P.W. 1 Shiv Pal Singh has admitted that he does not know the meaning of the aforesaid words, but he has stated that he is aware of their use. He has also denied a specific suggestion put to him that he prepared the written report on the dictation of the Investigating Officer. The aforesaid words used in the written report are very common in use and there is nothing improbable. If Shiv Pal Singh P.W. 1 without knowing their exact meaning used them. Even assuming for the worst that Shiv Pal prepared the F.I.R. with the aid of someone, we do not agree that for this reason alone the written report can be held to be got up, losing its evidentiary value. It is hardly believable that Shiv Pal Singh on the advice of any one else would have screened out the real culprits to implicate the Appellant falsely. His main concern at that time certainly would have been to bring the actual authors of the crime to book which he did with promptitude and not to avenge his enmity with a person with whom he had a remote grievance. The learned trial court thus, to our mind, has rightly relied upon the evidence of Shiv Pal Singh P.W. 1, Mangal Singh P.W. 2, which finds corroboration from the medical evidence and the evidence of Raj Pal Singh P.W. 3. Further, the learned trial court as an abundant caution has also for cogent and convincing reasons acquitted the three associates of the Appellant giving them benefit of the doubt ruling out even the remotest possibility of any false implication. Thus, on an overall consideration of the material on record, we find that the learned trial court has on proper appraisal of the evidence rightly concluded about the complicity of the Appellant. The Appellant having fired at the victim from country made pistol from close range could have had no other intention but to cause his death. The conviction of the Appellant u/s 302, I.P.C., therefore, suffers from no infirmity and life imprisonment being the minimum punishment for that offence is fully justified.

In view of what we have said above, we find no merit in this appeal and it is, accordingly, dismissed.

The C.M.M., Kanpur Nagar, shall cause the Appellant Dharambir arrested and sent to jail to serve out the sentence of life imprisonment awarded to him. He shall also submit compliance report within two months.