Mahendra Pratap Singh vs State of U.P.

Heard learned Counsel for the Appellant, learned AGA and perused the record.

This appeal has been preferred against the impugned judgment and order dated 25.3.2010 passed by the learned Additional Sessions Judge Court No. 9, Varanasi in S.T. No. 1039 of 1998, State v. Ramesh Kumar Singh and Ors. S.T. No. 1039 of 1998, whereby, he convicted and sentenced the accused/Appellant Mahendra Pratap Singh under Sections 147, 148, 302/149 & 307/149 IPC and awarded imprisonment for life as maximum sentence along with payment of fine.

According to prosecution, due to previous enmity, on 25.7.1989, at about 6.00 p.m., Ramesh Singh armed with gun and Guddu Singh, Lallu Yadav, Kallu Yadav and Mahendra Pratap Singh armed with country made pistols came along with Gorakh Nath Singh at the general store shop of the informant Tribhuwan Narain Singh. On the exhortation of Gorakh Nath Singh his nephew? Mahendra Singh told that "Ramesh Bhaiya Aapke Mana Karne Ke Bawjud Bhi Nahi Mane Aur Quarter Ka Safai Kara Liye Aur Mere Chacha Ke Khilaf Gram Pradhan Chunav Ka Petition Lad Rahe Hai. Inka Man Kafi Badh Gaya Hai. Ye Sab Aaj Bade Mauke Se Mile Hain. Aaj Inhe Saf Kar Dena Hai." In the meantime, Ramesh Singh opened fire on the informant''s father, Girja Prasad Singh and the other accused also started firing indiscriminately. The informant''s father died at spot and his relative Jwala Prasad Singh and other persons sustained firearm injuries. The incident was seen by Kamla Singh, Janardan Singh and other persons. The FIR was lodged on the same day at 7.00 p.m.

The prosecution examined 10 witnesses including Tribhuwan Singh PW1, Janardan Singh PW2 and Jwala Prasad Singh PW3, eye-witnesses of the incident, in support of its case.

The accused Guddu Singh and Lallu Yadav have expired. Accused Ramesh Singh and Kallu Yadav have absconded. After considering the evidence available on record, the learned trial Court has acquitted the accused Gorakh Nath Singh, but has convicted and sentenced the accused/Appellant Mahendra Pratap Singh, as referred to above.

Learned Counsel for the Appellant has submitted that no specific role has been assigned to the Appellant and it is alleged that he had done hawai firing

State of West Bengal Vs. Vindu Lachmandas Sakhrani alias Deru,

Jamuna Das and Ors. v. State of U.P. 2004(1) JIC 973

Gorakh Pandey and Ors. v. State of U.P. 2010(1) JIC 51

Learned AGA has opposed the prayer for bail and submitted that the ocular witnesses have supported the prosecution version and their testimonies have been corroborated by the medical evidence and there is no sufficient ground to enlarge the Appellant on bail.

The post-mortem report of the deceased Girja Prasad Singh indicates that he had sustained four injuries, namely two gun shot wounds of entries and two multiple gun shot wounds of entries. During the incident, Kamla Singh and Jwala Prasad Singh PW3 were also injured. Kamla Singh had sustained one firearm injury. He has not been examined in evidence by prosecution. Jwala Prasad Singh PW3 had sustained four gun shot wounds of entries. Dr. P.D. Singh PW8 has opined that his injury No. 1 was caused on the vital part and it could be dangerous to life. Tribhuwan Singh PW1, Janardan Singh PW2 and Jwala Prasad Singh PW3 are the natural ocular witnesses of the incident and they have supported the prosecution version. Their testimonies have been corroborated by the medical evidence. The FIR was lodged promptly i.e. after about one hour of the incident. The place of occurrence lies at the distance of 8 Kms. from the police station.

The offence was committed by the Appellant along with co-accused in prosecution of the common object of the unlawful assembly and it was neither possible for the ocular witnesses to assign specific role to each and every accused nor it was legally required.

Learned Counsel for the Appellant has drawn our attention towards the statement of Jwala Prasad Singh PW3 to the effect that the other persons were firing in the air by country made pistols. In continuation of said statement, he has also stated that he had sustained injuries by firing of the said persons. He was also admitted in the hospital, after medico-legal examination. It is well settled proposition of law that a single sentence of a witness cannot be read in isolation and the statement of the witness has to be read as a whole.

In the case of State of West Bengal (supra), the husband and wife were charged with an offence u/s 302 read with Section 34 of the IPC. The wife was acquitted by the Hon''ble Supreme Court on the ground that the trial Court has acquitted her husband and no charge u/s 302 IPC simpliciter was framed against her. The para 4 of the judgment of the Hon''ble Supreme Court may be quoted as under:

We see force in the argument advanced by the learned Counsel. Both husband and wife were charged with an offence u/s 302 read with Section 34, IPC. The charge which was based on the common intention of the two failed with the acquittal of the husband and there being no charge u/s 302 simpliciter against the wife she could not be convicted. In any case there is no evidence on the record to show that she independently committed the offence.

In the instant case, the Appellant has not been charged under Sections 302 and 307 read with Section 34 IPC. Instead of it, he has been charged under Sections 302 and 307 read with Section 149 IPC. The principles underlying for applicability of Section 34 or Section 149 IPC are quite different. Hence, the Appellant is not entitled to get any benefit on the basis of the said decision of Hon''ble Supreme Court.

In the case of Jamuna Das and Ors. (supra), the judgment was rendered by the Division Bench of this Court at the time final disposal of the appeal. It is distinguishable on facts and at the time of disposal of bail application, it is of no help to the Appellant.

In the case of Gorakh Pandey and Ors. (supra) five accused were involved and the co-accused Ramji Pandey opened fire by country made pistol on the deceased, on the exhortation of other co-accused and the deceased had sustained a single fire-arm injury. Whereas, in the instant case the deceased had sustained two gun shot wounds of entries and two multiple gun shot wounds of entries and Jwala Prasad Singh PW3 had sustained four gun shot wounds of entries and Kamla Singh had also sustained one fire-arm injury. The present case is distinguishable on facts and hence the said decision is of no help to the Appellant.

After considering the record and the submissions made on behalf of both the parties, without expressing any opinion on the merits of the case, we do not find any sufficient or valid ground to enlarge the Appellant Mahendra Pratap Singh on bail. The bail application is rejected accordingly.

Let the paper book be prepared and hearing of the appeal may be expedited.