Ram Chandra vs State of U.P.

M.C. Jain, J.—Appellant Ram Chandra has preferred this appeal against the judgment and order dated 5.11.1980 passed by Sri B. K. Mishra, the then II Ird Additional Sessions Judge, Shahjahanpur in S. T. No. 68 of 1980. He has been convicted u/s 302, I.P.C. and sentenced to imprisonment for life.

The broad spectrum of the prosecution case as per the F.I.R. and the evidence may be set forth briefly. The accused-Appellant and his brother Amar Singh were living in village Umarsaria, Police Station Paraur, district Shahjahanpur for the last about 10 or 12 years. Their father''s Nanihal was in that village. The accused had purchased the northern portion of the house of Sunder Lal P.W. 2 where he used to live with his brother Amar Singh. The entrance of the house of Sundar Lal P.W. 2 was from the eastern side on which side there was a chabutra. From the chabutra, portion of the accused could be reached only through the portion of the house in possession of Sundar Lal. Zalim Singh P.W. 1, Sundar Lal P.W. 2 and Sikhdar Singh P.W. 3 were also residents of the same village. Accused-Appellant Ram Chandra and his brother Amar Singh had some dispute over property and to resolve the same, a panchayat was being held on 15.1.1980 at about 9 a.m. at the chabutra of Sundar Lal P.W. 2. Accused-Appellant Ram Chandra, his brother Amar Singh, another Amar Singh, Zalim Singh P.W. 1, Sundar Lal P.W. 2, Sikhdar Singh P.W. 3 and deceased Hulasi were present in the panchayat. The deceased Hulasi was the behnoi of Zalim Singh P.W. 1 and he used to live with him. The incident took place during the course of panchayat. When the accused''s brother demanded his share from him, the accused declined to give his share. Hulasi told the accused that he was dishonest and wanted to cheat his brother Amar Singh. The accused became enraged and abused Hulasi. He went in the house of Sundar Lal P.W. 2 and returned with an illicit gun. He opened fire on Hulasi who died thereby. Zalim Singh P.W. 1 lodged an F.I.R. of the incident the same day at 1 p.m. The distance of police station was six miles from the spot. A case u/s 302, I.P.C. was registered against the accused-Appellant Ram Chandra. The investigation was taken up by S. I. Janardan Singh P.W. 5. The dead body was sent for post-mortem. On conclusion of the investigation, a charge-sheet was laid against the accused-Appellant.

The post-mortem over the dead body of the deceased was conducted by Dr. P. S. Verma P.W. 6 on 17.1.1980 at 3.30 p.m. The deceased was aged about 50 years and about 2-1/4 days had passed since he died. The following ante-mortem injury was found on his person:

A firearm wound 6 cm. ? 4 cm. ? chest cavity deep on right side of chest 6 cm. below and laterally from right nipple. Oval in shape, Blackening 1/4 cm. encircling the wound present. Margins inverted. No exit wound present. Direction from downwards to upwards and medially.

Twenty pellets with wadding pieces recovered from right side chest. Eight pellets removed from right lung and fourteen removed from chest cavity. Wadding pieces recovered from (Rt.) lung. Laceration of lung from anterior to posterior was present in the area of firearm injury.

The accused-Appellant pleaded not guilty. At the trial, the prosecution examined in all six witnesses out of whom Zalim Singh P.W. 1, Sundar Lal P.W. 2 and Sikhdar Singh P.W. 3 were examined as eye-witnesses. The learned Additional Sessions Judge, before whom the trial was held, believed the prosecution case and evidence. He accordingly convicted and sentenced the accused-Appellant as stated above.

We have heard Sri P. N. Mishra, learned Counsel for the accused-Appellant and learned A.G.A. from the side of State.

The argument of the learned Counsel for the accused-Appellant is that Sundar Lal P.W. 2 and Sikhdar Singh P.W. 3 turned hostile and the prosecution case rests solely on the testimony of Zalim Singh P.W. 1 who is an interested witness being the brother-in-law of the deceased. It has been urged that the conviction could not be based on his sole testimony. In the alternative, it has been submitted that there was no intention on the part of the accused-Appellant to cause death of the victim and as such the case, at the best, is of culpable homicide not amounting to murder.

On our giving anxious consideration to the arguments advanced at the bar and on a scrutiny of the evidence on record, we do not find any substance in the first argument of the learned Counsel for the accused-Appellant. It is worthwhile to state that a close relative of the deceased would be most reluctant to spare the real assailant and falsely substitute some-one else for him. It is a case of single shot, single accused and single deceased. No doubt, Zalim Singh P.W. 1 is the brother-in-law of the deceased, but that alone does not justify the rejection of his testimony. He has no enmity with the accused whatsoever. It does not stand to reason that by giving a clean chit to the real culprit, he would falsely substitute the present accused-Appellant for him. It goes without saying that it is the quality of evidence, and not the quantity, that matters. Zalim Singh P.W. 1 is also the maker of the F.I.R. He has withstood the test of cross-examination firmly. He had a plausible reason for his presence at the time of incident. This witness was also one of the participants in the panchayat that was being held at the chabutra of Sundar Lal P.W. 2 to resolve the property dispute between the accused-Appellant and his brother Amar Singh. Though Sunder Lal P.W. 2 and Sikhdar Singh P.W. 3 turned hostile, but it is established by their testimony as well that the incident took place at the chabutra of one of them Sundar Lal and that Hulasi died of gunshot injury. The time of the incident stated by them is also the same as spoken by Zalim Singh P.W. 1. Sundar Lal P.W. 2 even admitted that blood had fallen down on his chabutra. The blood-stained earth had been collected by the I.O. Janardan Singh P.W. 5 from the chabutra as spoken by him in his testimony. Sundar Lal P.W. 2 and Sikhdar Singh P.W. 3 were also participants in the panchayat. It is obvious that these two witnesses crossed over to the side of the accused-Appellant and, therefore, did not support this part of the prosecution case that the shot killing Hulasi had been fired by the accused-Appellant Ram Chandra. Zalim Singh P.W. 1 has made the graphical narration as to how the incident occurred and what he stated inspires judicial confidence. During the course of panchayat, when the accused-Appellant declined to give the share of his brother Amar Singh, Hulasi called the accused-Appellant to be dishonest. The accused-Appellant then flew in anger and hurling abuses on Hulasi went inside the house of Sundar Lal, instantly returning with a gun and opening shot. He also stated that Sundar Lal tried to stop the accused-Appellant from firing and caught hold of him by his waist. Hulasi had also stood up to stop the accused-Appellant, but the accused fired. Of course, Zalim Singh P.W. 1 stated in his cross-examination that the accused-Appellant wanted to fire shot on his brother Amar Singh ; Hulasi was trying to save Amar Singh and as soon as Hulasi stood up in front of the accused-Appellant, the latter fired shot. Learned Additional Sessions Judge has rightly observed in his judgment that it could only be the guess of Zalim Singh P.W. 1 that actually the accused-Appellant wanted to shoot his brother Amar Singh. Really speaking, this aspect of the matter does not have much relevance that the accused-Appellant wanted to murder his brother Amar Singh, but the shot opened by him hit Hulasi. The reason is that the criminal liability would not be lessened even if it is accepted that the accused-Appellant wanted to murder his brother but in the process shot opened by him hit Hulasi. So, we are of the view that it is proved by the evidence on record that the accused-Appellant Ram Chandra shot dead the deceased Hulasi. We accordingly reject the first argument of the learned Counsel for the accused-Appellant made in an attempt to secure acquittal.

However, we find substantial force in the second argument of the learned Counsel for the accused-Appellant and we are in agreement with him that it was a case of culpable homicide not amounting to murder. It is clear from the prosecution case that it was not a preplanned or premeditated shooting. Trouble started all of a sudden when panchayat was being held at the chabutra of Sundar Lal P.W. 2 to resolve the dispute between the accused-Appellant and his brother Amar Singh. The deceased was also participating in the panchayat and exchange of hot words had taken place between him and the accused regarding giving of the share of the latter of his brother Amar Singh. Enraged the accused-Appellant had gone inside the house and brought a gun whereby he opened fire, killing Hulasi. Thus, it was a sudden fight and in the heat of passion, the accused-Appellant opened fire killing Hulasi who was simply participating in the panchayat. In these circumstances, it is proper to hold that the offence committed by the accused-Appellant was culpable homicide not amounting to murder covered by the first part of Section 304, I.P.C.

In view of the above discussion, we are in judgment that the accused-Appellant Ram Chandra is guilty, of committing culpable homicide not amounting to murder, covered by the first part of Section 304, I.P.C. and he was to be convicted and sentenced accordingly, instead of for murder as has been done by the learned Additional Sessions Judge, who held the trial.

In the result, we partly allow the appeal and modify the conviction and sentence of the accused-Appellant Ram Chandra as under:

Accused-Appellant Ram Chandra is convicted for culpable homicide not amounting to murder punishable under first part of Section 304, I.P.C. and he is sentenced to rigorous imprisonment for ten years. Accused-Appellant Ram Chandra is on bail. He shall surrender forthwith to serve out the sentence as modified by us.