Nar Singh vs State of U.P.

N.A. Moonis, J.—The instant criminal appeal has been preferred by the Appellant against the judgment and order dated 17.5.2000, passed by the Learned Sessions Judge, Shahjahanpur in S.T. No. 294 of 1999 whereby the Appellant has been convicted for life imprisonment u/s 302, I.P.C. and was acquitted of the charge u/s 25 of the Arms Act.

Briefly the facts as disclosed by the prosecution were that the Appellant''s wall had fallen into the agricultural plot of Radhey Shyam who is the cousin of the complainant Asha Ram two days before the occurrence. Radhey Shyam had asked the Appellant to remove the earth of the collapsed wall from his plot for ploughing his own field but the Appellant refused to remove the earth and threatened him with dire consequences. On 18.9.1998 at about 6.30 p.m. Radhey Shyam (the deceased) was coming towards his house from his field. The complainant Asha Ram and co-villagers Mor Pal and Hardwari were also accompanying and as his brother reached in front of the house of Nar Singh Appellant he stopped him and told him that he would teach him a lesson for removing the earth and he would not be spared alive and immediately thereafter he fired from his gun at Radhey Shyam, on account of which he sustained injury over his abdomen and died at the spot. Having heard the hue and cry the villagers reached there and exhorted the Appellant, at this he ran way towards the east from the place of occurrence. The report of this incident was scribed by one Jugender Pal and the same was lodged on 19.9.1998 at 3 a.m., which was registered as Case Crime No. 123 of 1998, u/s 302, I.P.C. at P.S. Jaitipur. After the case was registered the police proceeded to the spot. The dead body was recovered and the inquest was done and the dead body was sent for postmortem. The post-mortem of the deceased was conducted on 19.9.1998 at 5.45 p.m. by Dr. Yogesh Kaul. The Investigating Officer interrogated the eye-witnesses of the occurrence and recorded their statements, prepared the site plan and after completion of investigation the charge-sheet was submitted against the accused/Appellant. The accused/Appellant surrendered before the concerned Magistrate and was taken on remand by the police and at his instance on 16.10.1998 a twelve bore gun and a live cartridge were recovered from the paddy field, which was lying under the bushes and on the basis of the recovery a case was also registered against him u/s 25 of the Arms Act. The investigation of the case was conducted by Mahendra Pal Singh who had submitted the charge-sheet against him.

The charges were framed u/s 302, I.P.C. and u/s 25 of the Arms Act to which the accused/Appellant pleaded not guilty and stated that he has been falsely implicated and in defence he got examined Durga Prasad D.W. 1 and Usman Raza as D.W. 2. Before the trial court the prosecution examined nine witnesses in support of its case. Asha Ram who is the complainant and cousin of the deceased and was also an eye-witness of the occurrence was examined as P.W. 1. Hardwari who is also named in the first information report and was also an eye-witness of the occurrence and had supported the prosecution case as an independent witness was examined as P.W. 2. The formal witness as examined by the prosecution was Dr. Yogesh Kaul P.W. 3 who had conducted the post-mortem of the deceased Radhey Shyam at about 5.45 p.m. on 19.9.1998 and prepared the post-mortem report Ex. Ka-2 on following ante mortem injuries.

(i) Multiple fire-arms wound of entry 7-8 in number over left arm front, spread in an area of 16 cm. x 8 cm. with average diameter of 0.3 cm. with abrasion. Collar and inverted margins.

(ii) Similar featured multiple fire-arm wound of entry 40-50 in number over chest and upper abdomen spread over an area of 25 cm. x 25 cm. with average diameter of 0.3 x 0.4 cm. and with abrasion. Collar and inverted margins. No. tattooing etc. seen.

On internal examination both lungs were found punctured, pleura, heart, abdominal walls were found fractured, wall of ribs, cartilage and thoracic were found perforated. 26 small metallic pellets were recovered from the aforesaid injuries. The doctor was of the opinion that the cause of death was haemorrhage and shock on account of ante mortem injuries on chest. He was also cross-examined at length by the defence but nothing could be elicited to create any doubt about the time and manner of death of the deceased. The Investigating Officer Munna Lal Singh was examined as P.W. 4 who had proved the check first information report Ex. Ka-3 conducted the inquest and prepared the inquest report Ex. Ka-5 and prepared other relevant papers viz the site plan where the incident had taken place, which was exhibited as Ex. Ka-10. He had also collected the blood stained earth (Ex. Ka-11), 12 bore empty cartridges and Tikli found at the place of occurrence of which memo was prepared, which was marked as Ex. Ka-12. He interrogated the witnesses who were present at the time of the occurrence and recorded their statements. The accused/Appellant was also taken on remand on 16.10.1998 and at his pointing out a 12 bore gun and live cartridges were recovered from the bushes of the paddy field of which memo was prepared as Ex. Ka-13. The said recovery was made in the presence of public witnesses who were examined as P.W. 5 and P.W. 6, namely, Virendra Pal Singh and Amar Singh respectively.

On the basis of the recovery memo the case u/s 25 of the Arms Act was registered and the first information report was proved by him as Ex. Ka-14. The investigation was handed over to P.W. 7. Mahendra Pal. After completion of the investigation he submitted charge-sheet u/s 302, I.P.C. He had also prepared the site plan of the recovery of the gun, which was recovered at the pointing out of the accused/Appellant, which was exhibited as Ex. Ka-17. The place from where the alleged recovery of gun was made its site plan was also prepared by Mahendra Pal Singh, Investigating Officer as Ex. Ka-18. He had sought the sanction of the District Magistrate to prosecute the Appellant u/s 25, Arms Act and the sanction was accorded by the Magistrate, which is exhibited as Ex. Ka-19. The charge-sheet was submitted by him, which is exhibited as Ex. Ka-20. The Appellant in his statement u/s 313, Code of Criminal Procedure came up that he had been implicated falsely owing to enmity. In support of his defence the Appellant has produced two witnesses D.W.1 Durga Prasad and Usman Raza, Lekhpal as D.W.2 in order to elicit that P.W. 2 Hardwari has No. cultivating land on patta of the Gram Samaj so as to belie the prosecution case that Hardwari was also accompanying with the complainant P.W. 1 from his field on the day of alleged occurrence.

We have heard the Learned Counsel for the Appellant and the Learned A.G.A. for the State.

Learned Counsel for the Appellant Dr. Arun Srivastava has strenuously argued that the Appellant has been implicated in the case falsely. None of the prosecution witnesses were present at the time of the alleged incident. There was an outpost near the place of incident Garhia Rangeen where the first information report could have been lodged and there was No. occasion for the complainant to lodge the first information report at police station Jaitipur. The motive part as mentioned in the first information report that on account of wall collapse in the plot of the complainant the Appellant was asked to remove the same and on account of which the incident had occurred is also not proved by any cogent material as the Investigating Officer had never visited the site where any wall had collapsed. The first information report has been lodged after great delay, which can be said to be an out come of deliberation and consultation and there is No. cogent reason given for the delay in lodging of the first information report. The injuries as mentioned in the post-mortem of the deceased is also inconsistent with the prosecution case where it was the specific case that a single shot was fired by the Appellant but according to the post-mortem report there are two gun shots injuries, which shows in all probabilities that the prosecution witnesses were not eye-witnesses and they were not present at the time of incident to witness as to how the deceased has sustained two gun shot injuries. Therefore, the deceased could have been assaulted by some unknown person. The first information report itself is a forged document as the complainant has put his thumb impression whereas in his evidence it has come that he could write Hindi and has also earlier scribed a first information report in the murder case of one Ram Saran, therefore, there was No. occasion for him to get the first information report scribed by another person and put his own thumb impression. According to the prosecution case the deceased was fired from a very close range but the post-mortem report shows that there is No. blackening or tattooing and as such there is variation and great inconsistency with the medical evidence vis-a-vis the ocular testimony and the statement of the prosecution witnesses. P.W. 2 Hardwari was having No. land to cultivate and whose statement was inconsistent with the statement of the defence witness Usman Raza, Lekhpal who had stated that there is No. patta in the name of Hardwari. Therefore, his presence becomes doubtful with the complainant. Both the alleged eye-witnesses are merely chance witnesses as it is unnatural that the accused/Appellant would wait till the returning of the deceased and other witnesses from their field to the alleged place of occurrence. It has further been submitted that the alleged recovery of weapon at the instance of the Appellant was found to be false by the Learned trial Judge. Due to lack of corroborative evidence with regard to the recovery of gun and live cartridges the Learned trial Judge has acquitted from the charge of Section 25, Arms Act and as such the Appellant''s false implication in the present case is clearly visible. The conviction of the Appellant u/s 302, I.P.C. is unsustainable and the appeal deserves to be allowed.

Per contra Learned A.G.A. Sri Aurnendra Singh has refuted the contentions of the Learned Counsel for the Appellant and has supported the findings and the judgment passed by the trial court. It has been contended by the Learned A.G.A. that so far as the delay in lodging of the first information report is concerned the reason has already been explained in the first information report wherein a question was put to P.W. 1 who is the complainant and eye-witness of the occurrence. When he was confronted with the question that as to why he has come to lodge the report after delay to this he has stated that after getting the report written he went up to the Behgat river by foot and there after arranging a boat he had gone to lodge the first information report, therefore, when the incident which had taken place at 16.30 p.m. on 18.8.1998 then some distance he has covered by foot and thereafter by making arrangement of boat he reached at the police station to lodge the first information report at 3.05 hours at night on 9.9.1998. It has further been made clear by the complainant that he had reached at the outpost of Garhia Rangeen on the information received from family members. Even if there is some delay in lodging of the first information report that will not belie the entire prosecution case. Secondly there is evidence of eye-witness who had seen the Appellant firing at the deceased with his 12 bore gun and the post-mortem report fully corroborates the injuries sustained by the deceased as many as 26 pellets of country made pistol were recovered from the body of the deceased and which was an out come of one single shot. The victim was hurt by firearm shot on the left arm and that failure to explain this injury would not make presence of the eye-witnesses doubtful at the time of the occurrence. Since the firearm injury was on the front left arm and spreading over the abdomen and upper part of the chest which is a single fire arm shot and has proved fatal. The P.Ws. are not chance witnesses as they were returning from their fields towards their house and the deceased was a little ahead of them when they reached in front of the house of the Appellant they had seen that he had fired from his gun. They are natural witnesses who have fully corroborated the prosecution case. P.W. 2 Lekhpal has specifically stated that there are four plots in the name of Jaggu son of Ahlu and P.W. 2 is the son of Jaggu, therefore, merely because there was No. plot in the name of P.W. 2, it cannot be said that there is any inconsistency in his statement when he has stated that he was returning from his field at the time of incident and was in the company of co-villagers. The Appellant has been assigned a specific role, which is fully corroborated by the medical evidence and ocular testimony and with the recovery of gun at the instance of the Appellant the Appellant has been rightly convicted by the Learned trial court and, therefore, the conviction is liable to be maintained.

On examining the submissions made by the Learned Counsel for the parties we are satisfied that the prosecution has proved its case beyond all reasonable doubts and there are sufficient materials for establishing the complicity of the Appellant in this case. Cogent reason has been given with regard to the lodging of the first information report by the P.W. 1 at P.S. Jaitipur and not at village outpost Garhia Rangeen as his village did not come within the jurisdiction of the outpost. The medical evidence corroborates the manner of incident as disclosed by the prosecution and proved by the prosecution witnesses. The motive part is also proved by the prosecution witnesses as two days prior to the incident, the wall of the Appellant had collapsed in the plot of the deceased for which he had asked the Appellant to remove but the Appellant did not like it and had stated that he would not remove the earth from the plot and on account of this reason, the Appellant was bearing enmity with the deceased. It is well-settled law that where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of No. importance. The Appellant cannot gain any point by arguing that there was No. motive on his part to commit this crime. This is a case of direct evidence. Both the prosecution witnesses are natural witnesses who had seen the accused/Appellant assaulting the victim in front of his house from where the Investigating Officer had also collected blood. The incident had taken place at 6.30 p.m. on 18.9.1998 and there was clear visibility to identify the person. According to the statements of P.Ws. 1 and 2, they were returning from their agricultural plots and the deceased was also accompanying them, therefore, they cannot be said to be chance witnesses. The P.W. 6 doctor Yogesh Kaul has also proved the injuries of the deceased while conducting post-mortem and he has also deposed before the Court that the shot was fired from a distance of more than three feet and, therefore, there was No. blackening or charring around the injury. It has come in the statement of P.W. 1 that the barrel of the gun of the Appellant was at a distance of one and a half hand from the victim and in such circumstances, it can be said that it was not a close range fire. It has further been stated by the doctor that if there would have been two shots, then two separate shots would have been caused to the deceased. The injury sustained on the chest of the deceased was possible by a single shot which was sufficient in the ordinary course of nature to cause death. It is a case of a single accused and a single shot caused by him to the deceased on the given date, time and place. There is No. discrepancy of the medical evidence with the testimony of the prosecution witnesses. The Investigating Officer and other witnesses have also corroborated the factum of recovery of live cartridges from the place of occurrence but due to doubts created about the evidence of recovery of gun, the Appellant was acquitted of the charge u/s 25, Arms Act. The defence has examined two witnesses in support of their case but the same is not sufficient to disbelieve the prosecution case that Haridwari P.W. 2 was not having any land to cultivate and that he was not returning on the said date of occurrence and, therefore, he could not have seen the incident when the accused/Appellant had fired at the deceased. The genuineness of the first information report was also dealt with by the trial Judge who held that it was prepared by the complainant P.W. 1 alone and it was a fabricated document, is not at all correct. Moreover, he was not at all confronted that the incident of the previous day was deliberately introduced and that the first information report had been fabricated after consultation. The eye-witness account about the manner of incident has fully supported the prosecution case that the Appellant had taken undue advantage and acted in a cruel manner against an unarmed person firing one shot with the knowledge that it was likely to cause his death. The medical evidence has fully supported the prosecution case. The injury inflicted by the Appellant was clearly intended by him and it was not an accidental or unintentional injury. It was sufficient in ordinary course to cause death. The accused-Appellant did commit the offence of murder punishable u/s 302, I.P.C. In his statement u/s 313, Code of Criminal Procedure he came up with a cock and bull story that he had been implicated falsely due to enmity. The possibility of false implication is completely ruled out as No. one would spare the real culprit. The Learned trial court had rightly arrived at the conclusion that the case falls under 1st and 3rd part of Section 300 Indian Penal Code. The test laid down by Vivian Bose, J. in Virsa Singh Vs. The State of Punjab, has neither been doubted nor departed in any case and has uniformly been followed:

The ingredients of clause "thirdly" of Section 300, I.P.C. were brought out by the illustrious Judge in his terse language as follows:

To put it shortly, the prosecution must prove the following facts before it can bring a case u/s 300, "thirdly".

First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved. These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Under clause thirdly of Section 300, I.P.C., culpable homicide is murder, if both the following conditions are satisfied:, i.e., (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury, which in the ordinary course of nature, was sufficient to cause death, viz. that the injury found to be present was the injury that was intended to be inflicted.

Therefore, when the factual scenario is considered in the background of the above legal principles we endorse the finding of conviction recorded by the Learned Sessions Judge, therefore, the conviction of the Appellant is upheld and the appeal stands dismissed. The accused/Appellant shall serve the punishment as awarded.