Ram Kumar, Danki Singh (died) and Kallu Singh vs State of U.P.

Vijay Kumar Verma, J.—This appeal u/s 374(2) of the Code of Criminal Procedure (in short ''the Cr.P.C''.), has been preferred against the Judgment and order dated 10.12.1982, passed by the Special Judge/Additional Session Judge Fatehpur in S.T. No. 130 of 1982, whereby the appellants Ram Kumar Singh, Danki Singh and Kallu Singh (hereinafter referred to as ''the accused'') have been convicted and sentenced to imprisonment for life u/s 302 read with Section 34 of Indian Penal Code (in short ''the IPC'').

During pendency of the appeal, the appellant Danki Singh has died and hence the appeal has been abated against him.

The incident resulting in the death of Ram Saran, son of the complainant Chandra Pal Singh r/o village Kusumbhi, P.S. Asothar, District Fatehpur, occurred on 26.08.1981 at about 6.00 p.m. The case of the prosecution, as appearing from the first information report Ext. Ka 1, and statement of the complainant Chandra Pal Singh (P.W.1), in brief, is that prior to the incident of murder of Ram Saran, the accused Ram Kumar Singh and Danki Singh had caused obstruction in the chakroad situated behind the house of complainant in the month of Falgun by placing jhankhar and bricks thereon, due to which the ingress and egress of complainant''s family members and their cattle in the chakroad was closed. When the complainant and his son Ram Saran were removing the jhankhar and bricks from the chakroad, the accused Ram Kumar and Danki armed with lathies came there. In the meantime, Ram Saran also brought a lathi and gave one lathi blow to Ram Kumar Singh. The village people intervened in that dispute. The accused Ram Kumar Singh, however, felt annoyed and insulted and vowed to take revenge of his being beaten by Ram Saran and he decided to grow his beard to get it shaved only after he took revenge from Ram Saran. Further case of the prosecution is that when on 26.08.1981 the complainant, his wife Smt. Bhagwana Devi (P.W.3) and his son Ram Saran were cutting fodder in their Khajuriya field, at about 6.00 p.m. prior to the sunset, the accused Ram Kumar Singh armed with gun and accused Danki Singh and Kallu Ahir both armed with tanamcha came there from eastern side of the plot and making exhortation, the accused Ram Kumar fired shot from his gun on Ram Saran which hit at his mouth. When Ram Saran tried to run away, the accused Danki Singh ran after him and fired on his back from close range from tamancha. Ram Saran fell down there in the field and shortly thereafter succumbed to the injuries. Chandra Pal Singh and his wife raised hue and cry, which attracted Babu Singh, Kapoor Singh and other persons, who challenged the accused, on which they fled away towards northern side carrying their respective weapons.

Chandra Pal Singh remained with the dead-body of his son Ram Saran in the night and in the morning of 27.08.1981 he went to P.S. Asothar situated as a distance of about 10 kms. from the place of occurrence. He lodged verbal report at the police station, on the basis of which, the then constable moharrir Ram Autar Singh Bhadauria prepared chik FIR Ext. Ka 1 at 8.36 a.m. and registered a case u/s 302 34 IPC at Crime No. 111/81 against Ram Kumar, Danki and Kallu Ahir and made entry in G.D. at serial. No. 11 vide G.D. extract Ext. Ka 3.

S.I. R.K. Shukla (P.W.5) was posted as Station Officer at P.S. Asothar. The case was registered in his presence. He himself took up the investigation and after recording the statement of constable moharrir Ram Autar Singh Bhadauria and complainant Chandra Pal Singh at the police station itself, proceeded to the place of incident accompanied by S.I. R.N. Yadav, constables Pancham Giri, Shiv Shankar Tiwari and Shiv Narayan Tiwari. After reaching the place of incident, inquest proceeding on the dead-body of Ram Saran was conducted on 27.08.1981 in between 11.45 a.m. to 1.30 p.m., during which inquest report Ext. Ka 4, and connected papers Ext. Ka 5 to Ext. Ka 9 were prepared by him (P.W.5) and thereafter the dead-body in sealed condition was sent for post mortem examination through the constable Shyam Narain Tiwari and village chaukidar Nabbu Singh.

The post mortem examination on the dead-body was conducted by Dr. S.C. Srivastava (P.W.4) on 28.08.1981 at 3.00 p.m. According to the post-mortem report Ext. Ka 2, the following ante-mortem injuries were found on the person of deceased:

Lacerated wound 1" x 1/4" x scalp deep over the left parietal region, 5" above the tragus of the left ear.

Lacerated wound 1/2" x 1/4" x scalp deep over the top of the head, 2" away and towards right to injury No. 1.

Lacerated wound 1/4" x 1/4" x scalp deep over the right parietal region, 2" above the right eye brow.

Lacerated wound 1/4" x 1/4" x bone deep over the bridge of the nose.

Abrasion 1/4" x 1/4" over the right side of the nose 1" below injury No. 5.

Abrasion 1/2" x 1/2" over the left cheek 2 1/2 " medial to the left tragus of the ear.

Lacerated wound 1/2" x 1/2" x muscle deep over the upper lip in the middle.

Abrasion 1/2" x 1/2" over the left fore arm in the lateral aspect. 1 1/2" above the right wrist.

Abrasion 1" x 1" over the back of left lower limb 2" below the back of knee joint.

Abrasion 3" x 1 1/2" over the back of left thigh, 4" above the back of left knee joint.

Five fire arm wounds of entry each measuring 1/4" x 1/2" x chest cavity deep, in an area of 1 1/2" x 1 1/2" over the vertebral column in the thoracic region, 8" above the back of root of neck. The margins of each fire arm wounds are lacerated and inverted, with no blackening and tattooing. The direction of the pellets are from backwards then Forwards and interior, Fracture of T-6 vertebra.

In internal examination, nasal bone was found fractured. Brain was liquified. There was fracture of T-6 vertebra. Right side lung and right pleura were lacerated. Pericardium and heart were also perforated and lacerated.

According to Dr. Srivastava, the death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem injuries.

After sending the dead-body for post-mortem examination, the investigating officer (S.I. R.K. Shukla) made further investigation. Before sealing the dead-body one pair of plastic shoes of the deceased (material Ext 1) were taken into possession and fard Ext. Ka 10 was prepared. Blood stained and simple earth were collected from the place where the dead-body was found lying and after placing the same in two separate tin containers fard Ext Ka 11 was prepared. Thereafter spot inspection was made and site plan Ext. Ka 12 was prepared. Statements of other witnesses were recorded and after completion of the investigation, charge sheet Ext. Ka 15 was submitted against all the three accused u/s 302 34 IPC.

On the case being committed to the court of session for trial, charge u/s 302 read with Section 34 IPC was framed against the accused persons, to which they pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case examined six witnesses in all. P.W. 1 Chandra Pal Singh, P.W. 2 Kapoor Sing and P.W.3 Smt. Bhagwana Devi are the eye witnesses of the incident. P.W.1 Chandra Pal Singh is also the complainant, who had lodged the FIR at P.S. Asothar. He has proved chik FIR Ext. Ka 1 in his statement recorded on 17.11.1982. P.W.4 Dr. S.C. Srivastava has proved post-mortem report Ext. Ka 2. P.W.5 R.K. Shukla is the investigating officer. He has proved various papers in his statement recorded on 04.12.1982. P.W. 6 constable Shyam Narain Tiwari is the dead-body carrier, who along-with village chaukidar Nabbu Singh had carried the dead-body of deceased for post-mortem examination.

In their statements recorded u/s 313 Cr.P.C., the appellants-accused denying their participation in the incident have stated that due to enmity, they have falsely been implicated in this case.

After examination of the accused-appellants u/s 313 Cr.P.C., opportunity to lead evidence was given to them, but they neither examined any witness nor produced any documentary evidence in their defence.

The learned Trial court having taken the entire evidence on record into consideration, convicted and sentenced the appellants-accused as mentioned in para (1) above. Hence, this appeal.

We have heard Sri Dharmendra Pratap Singh and Sri Akshya Kumar learned Counsel for the appellants-accused, Sri A.K. Singh learned A.G.A. for the State and gone through the impugned judgement and entire evidence on record carefully.

First, we are taking up the case of appellant-accused Kallu Singh. Regarding the complicity of the accused Kallu Singh in the incident, it was submitted by his learned Counsel that the accused Kallu Singh had no concern with other accused and he was not having any enmity with the complainant party and he has falsely been implicated in this case. It was also submitted in this regard that in the FIR no overt act has been attributed to the accused Kallu Singh, but making improvement in Trial court, the role of exhortation has been assigned to him, whereas there was no whisper in the FIR that the accused Kallu Singh had exhorted other accused to kill the deceased and hence on this ground also benefit of doubt should be extended to the accused Kallu Singh. Having gone through the entire evidence on record carefully, we are of the opinion that benefit of doubt can be extended to the accused Kallu Singh. In the FIR, which was lodged by the father of the deceased, it is nowhere mentioned that the accused Kallu Singh had exhorted other accused to kill the deceased. Although, the name of the accused Kallu Ahir has been mentioned in the FIR, but it is nowhere stated that he had instigated the co-accused Ram Kumar Singh and Danki Singh to cause the death of the deceased Ram Saran. There is nothing on record to show that the accused Kallu Singh belong to the family of other accused. No evidence has been led by the prosecution to show that the accused Kallu Singh was having any enmity with the family of complainant. When the accused Kallu Singh was not having any enmity or ill-will against the family of the complainant and he did not belong to family of the other accused, then why he would accompany other accused to kill a person with whom he had no grudge at all. The motive of causing death of the deceased as mentioned in the FIR is that prior to the incident in the month of Falgun, the accused Ram Kumar Singh and Danki Singh had caused obstruction in the chakroad situated behind the house of the complainant by placing jhankhar and bricks, due to which ingress and egress of the complainant''s family members and their cattle was closed and when the complainant and his son Ram Saran were removing jhankhar and bricks from the chakroad, the accused Ram Kumar Singh and Danki Singh having lathies came there and in that incident Ram Saran had given one lathi-blow to Ram Kumar Singh, on which Ram Kumar Singh decided to grow his beard and he declared that he would shave his beard after taking revenge from Ram Saran. Admittedly the accused Kallu Singh had no concern with that incident also. Therefore, under these circumstances, possibility of false implication of accused Kallu Singh cannot be ruled out. We are well aware that as held by Hon''ble Apex Court in the cases of Anil Sharma and Others Vs. State of Jharkhand, . Babu Lal Bhagwan Khandari v. State of Maharastra LI 2005 ACC 470 and Israr v. State (LI) 2005 ACC 481, for applying Section 34 IPC it is not necessary to show some overt act on the part of the accused and hence in instant case also, non attribution of any overt act in the FIR against the accused Kallu Singh is not very material, but for the reasons which we have mentioned above, benefit of doubt can be extended to the appellant Kallu Singh. Therefore, conviction and sentence of the appellant-accused Kallu Singh is liable to be set aside.

So far as the complicity of the appellant-accused Ram Kumar Singh and Danki Singh is concerned, there is ample reliable and cogent evidence on record to show that murder of the deceased Ram Saran was committed by these accused by causing fire arm injuries to him. P.W.1 Chandra Pal Singh is the complainant and eye witness of the incident. His statement in Trial court was recorded on 17.11.1982. Regarding the motive of committing the murder of his son Ram Saran, P.W.1 Chandra Pal Singh has stated that prior to the incident, the accused Ram Kumar Singh and Danki Singh in the month of Falgun had placed jhankhar and bricks over the chakroad situated behind his house and when he and his son Ram Saran were removing jhankhar and bricks from the chakroad, the accused Ram Kumar Singh and Danki Singh having lathies rushed to assault them, but in the meantime his son Ram Saran also brought a lathi and gave one lathi blow to Ram Kumar Singh, who declared that he would shave his beard only after taking revenge from Ram Saran. Regarding the incident of murder, it is stated by P.W.1 that when on the fateful day he, his son Ram Saran and his wife Smt. Bhagwana Devi were cutting fodder in their Khajuriya field, at about 6.00 p.m. the accused Ram Kumar Singh armed with gun and accused Danki Singh and Kallu Sing both armed with tamanchas came there and on the exhortation of Kallu Singh, the accused Ram Kumar Singh fired from gun on Ram Saran, which hit at his mouth and when sustaining injury, Ram Saran tried to run, the accused Danki Singh fired on his back from tamancha due to which Ram Saran fell down and shortly thereafter, he succumbed to the injuries. It is also stated by Chandra Pal Singh that when they raised hue and cry, the witnesses Kapoor Singh and Babu Singh came there and challenged the accused, on which they fled away towards northern side. It is also stated by P.W.1 that he remained with the dead-body of his son in the night and in the next morning he went to P.S. Asothar and lodged the FIR there.

P.W.3 Smt. Bhagwana Devi, is the wife of complainant. She is also the eye witness of the incident. Her statement in Trial court was recorded on 17.12.1981. In that statement she has fully supported the statement of her husband Chandra Pal Singh. From the evidence of this witness also, this fact is borne out that murder of her son Ram Saran was committed by the accused Ram Kumar Singh and Danki Singh by causing injuries to him by firing shots from gun and tamancha.

P.W.2 Kapoor Singh has been shown as witness in the FIR. His statement in Trial court was recorded on 17.11.1982. He has stated in his statement that about 14-15 months ago at about 6.00 p.m., he and Babu Singh were going to ease themselves in the jungle and when they reached on northern mend of the field of Guru Prasad, they heard sound of fire and noise and they saw that the accused Ram Kumar Singh having gun and Danki Singh and Kallu Singh having tamanchas were running towards northern side. It is further stated by this witness that Ram Saran in injured condition was lying in his field and his parents also were present there. It is further stated by P.W.2 that Ram Saran died shortly thereafter in their presence.

Lengthy cross-examination has been made from the aforesaid witnesses on behalf of accused persons, but nothing material has been elicited from them so far as the complicity of accused Ram Kumar Singh and Danki Singh in the incident of murder of Ram Saran is concerned. Although, all the three witnesses have also named the accused Kallu Singh, but as we have mentioned above, possibility of his false implication is not ruled out. It has come in the statement of P.W.1 Chandra Pal Singh that accused Kallu Singh used to render help to Ram Kumar Singh and Danki Singh. Therefore, possibility of falsely implicating the accused Kallu Singh on the ground of his being the helper of other accused cannot be ruled out, but so far as the involvement of accused Ram Kumar Singh and Danki Singh in the incident is concerned, on the basis of the testimony of P.W.1 Chandra Pal Singh and P.W.3 Bhagwana Devi it is fully proved beyond reasonable doubt that they had fired on the deceased Ram Saran by gun and tamancha, due to which he died in the field after sustaining fire arm injuries. The testimony of these witnesses finds corroboration from the statement of P.W.2 Kapoor Singh, who had seen the accused-persons fleeing away towards northern side having lethal weapons. There is no material contradiction in the testimony of these witnesses. Hence, there is no reason to disbelieve them, so far as the complicity of the accused Ram Kumar Singh and Danki Singh in the commission of murder of the deceased Ram Saran is concerned.

Regarding the testimony of the witnesses Chandra Pal Singh and Smt. Bhagwana Devi, it was vehemently contended by the learned Counsel for the accused Ram Kumar Singh that the testimony of these witnesses could not be relied upon, because they are interested witnesses being the parents of the deceased. The testimony of P.W.2 Kapoor Singh also has been assailed on the ground that he is cousin brother of the complainant and he is also interested witness. The contention of the learned Counsel for the appellants was that conviction merely on the basis of relative and interested witnesses is bad in law. We are not at all impressed with this contention of the learned Counsel for the accused-appellants. The law is well settled that if testimony of any witness is found worthy of reliance, then his testimony cannot be brushed aside on the ground that he is related to the deceased or victim.

In the case of Dalip Singh and Others Vs. State of Punjab, it has been laid down as under by Hon''ble Apex Court:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts.

The above decision has been followed in Guli Chand and Others Vs. State of Rajasthan, in which Vadivelu Thevar Vs. The State of Madras, was also relied upon.

Again in Masalti Vs. State of U.P., , the Hon''ble Apex Court observed thus:

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

In Israr v. State of U.P. (LI) 2095 ACC 113 rejecting the concept of discarding a witness on the ground of relationship, the Hon''ble Apex Court in para 12 of the judgement held as under:

...Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

The above position has been highlighted again in Galivenkataiah v. State of A.P. (60) 2008 ACC 370, in which reference has been made to some other cases also.

Therefore, having regard to the observations made by Hon''ble Apex Court in the cases mentioned above, the testimony of P.W.1 Chandra Pal Singh and P.W.3 Smt. Bhagwana Devi cannot be discarded on the ground that they are parents of the deceased, because their testimony is convincing and trust worthy, which finds corroboration from the medical evidence. The testimony of P.W.2 Kapoor Singh also cannot be brushed aside on the ground that he is the cousin brother of the complainant. Kapoor Singh is also natural witness, as in villages people generally go to ease themselves in the jungle in the morning and evening.

The post-mortem on the dead-body of the deceased Ram Saran was conducted on 28.08.1981 at 3.00 p.m. by Dr. S.C. Srivastava (P.W.4). In his statement Dr. Srivastava has stated that ante mortem injuries No. 1, 2, 3, 4 & 7 are possible to be caused by fire arm. Ante-mortem injury No. 11 undisputedly has been caused by fire arm. The post-mortem report shows that the death of the deceased was caused due to shock and haemorrhage as a result of ante mortem injuries. It is also stated by Dr. Srivastava that ante mortem injuries were possible to be caused at about 6.00 p.m. on 26.08.1981. As such the oral evidence of eye witnesses finds corroboration from medical evidence.

It was further contended by learned Counsel for the appellants that there is material inconsistency in oral and medical evidence and hence the prosecution version becomes doubtful. It was submitted in this regard that the prosecution has not furnished any explanation of ante-mortem injuries No. 5, 6, 8, 9 and 10 which are abrasions and were not caused by fire arm. It is true that the prosecution has not furnished any explanation of these ante-mortem abrasions, but in our view, on this ground, the reliable testimony of eye witnesses cannot be brushed aside. From the post-mortem report, it is observed that the some abrasions, which were found on the person of deceased, are of superficial nature. Therefore, it cannot be said that there is any material inconsistency in oral and medical evidence.

Drawing our attention towards external examination of the dead-body as noted in the post mortem report Ext. Ka 2, it was vehemently contended by the learned Counsel for the appellant-accused that murder of the deceased appear to have been committed some time in the night by unknown persons, who left the dead-body in the field and since no person was present with the dead-body in the night, some wild animal had eaten away the skin of the deceased at certain places. This contention is based on the finding recorded in the post-mortem report in which it is noted in external examination that skin of the deceased was peeling off at certain some places. We are not impressed with this contention of the learned Counsel for the appellant-accused. On the basis of oral and medical evidence, it is established that murder of the deceased Ram Saran was committed at about 6.00 p.m. on 26.08.1981. The post-mortem examination of the dead-body was conducted after about 45 hours from the time of death. Therefore, if blisters were found present over the dead-body and skin was peeling off at certain places, then on this ground it cannot be said that murder of the deceased was not seen by the witnesses. On the basis of the blisters which were found over the dead-body at the time of post-mortem examination after about two days from the time of death and peeling off the skin at certain places, it cannot be inferred that some wild animal had eaten away the dead-body. Therefore, the aforesaid contention of the learned Counsel for the appellant-accused had got no force.

Next submission made by the learned Counsel for the appellant-accused was that the FIR was lodged with inordinate delay and since no satisfactory explanation has been furnished by the prosecution for this delay, hence the delay in lodging the FIR is fatal to prosecution. In our opinion, this submission also has got no force. It has come in the testimony of P.W.1 Chandra Pal Singh that he remained with the dead-body of his son in the whole night and in the next morning he went to P.S. Asothar to lodge the FIR. On the basis of prior challenge, murder of the son of the complainant was committed in his presence. Therefore, if being perturbed or due to fear, the complainant did not go to lodge the FIR in the night and remained with the dead-body of his son, then on this basis prosecution version cannot be doubted and due to the delay in lodging the FIR, reliable testimony of the eye witnesses cannot be discarded.

It was further submitted by learned Counsel for the appellants that according to the FIR version, shot was fired by the accused Danki Singh by keeping tamancha on the back of deceased, whereas no blackening and tattooing was found on the person of deceased at the time of post mortem examination and on this basis it cannot be said that the incident was not witnessed by the complainant and his wife Smt. Bhagwana Devi (P.W.3). This contention also has got no force. It is nowhere stated in the FIR that the accused Danki Singh had fired shot on the deceased by keeping tamancha on his back. It is only mentioned in the FIR that when after sustaining gun shot injury caused by the accused Ram Kumar Singh, the deceased Ram Saran tried to run away, the accused Danki Singh fired on him from behind on the back from close range (Lage Se). The FIR was lodged by a rustic village person, who was illiterate, as he has put his thumb impression on the FIR as well as his statement recorded in Trial court. The language "Peeche Se Danki Ne Daurkar Lage Se Peeth Me Tamanche Se Goli Mar Di" does not denote that shot was fired by the accused Danki Singh by keeping the tamancha on the back of deceased. As such in our considered view, there is no inconsistency in the FIR and medical evidence.

It was also submitted by learned Counsel for the appellants that as per FIR version, the complainant Chandra Pal Singh, his wife Smt. Bhagwana Devi and son Ram Saran were cutting fodder at the time of incident in their Khajuria field, but the fodder, which was cut by these persons was not found lying in the field at the time of spot inspection, as in site plan no fodder has been shown to be found lying. It was also submitted by learned Counsel for the appellants that instruments of cutting fodder were also not found lying at the place of incident, as those instruments were not taken into possession by the investigating officer. On this ground it was submitted by learned Counsel for the appellants that the incident did not occur in the manner as alleged by the witnesses. We are not at all impressed with this submission. Merely because the investigating officer at the time of spot inspection did not find any fodder lying in the field and also did not notice the instruments of cutting fodder, it cannot be said on this ground that the incident did not occur in the field, in which the dead-body of the deceased was found lying. The record shows that blood- stained and simple earth which were collected by the investigating officer from the place where the dead-body of the deceased was found lying, were sent to Forensic Science Laboratory Agra. Ext. Ka 15 is the report of the Forensic Science Laboratory, which shows that blood was found on the earth (item No. 1), and wearing cloths (item No. 2 to 4) and shoes (item No. 5) as well pellets (item No. 6). Therefore, it cannot be said that the murder of the deceased was committed in some other manner or at some other place. It has come in the statement of Chandra Pal Singh P.W.1 that the fodder, which was cut by them was taken away by village people for being eaten by their cattle. Although P.W.1 has stated that the fodder which was cut by the deceased Ram Saran was lying in the field, when investigating officer had came on the spot, but if in the site plan this fact is not mentioned by the investigating officer, then on this basis it cannot be said that the deceased was not cutting the fodder prior to the incident. It is well settled principle of law that if the prosecution version and the evidence led in support thereof are found worthy of acceptance, then due to any lapse or negligence on the part of investigating officer, the prosecution case cannot be brushed aside.

No other point worth mentioning was urged before us by the parties counsel.

In view of the foregoing discussion, we come to the conclusion that the prosecution has successfully brought home the guilt against the appellants-accused Ram Kumar Singh and Danki Singh and they have been rightly convicted by the learned Trial Court. Hence, no interference is required in their conviction and sentence, but for the reasons which we have mentioned herein-above, benefit of doubt can be extended to the appellant-accused Kallu Singh, who is liable to be acquitted.

Before parting with this judgment, we must point out that the learned Trial court has committed patent illegality in passing the sentence. No fine has been imposed by the learned Trial court, whereas it is mandatory to impose fine in addition to the substantive sentence of imprisonment for the offence punishable u/s 302 IPC, as the language used in Section 302 IPC is "and shall also be liable to fine". Where the expression used by the legislature in any Section is "and shall also be liable to fine", the Court is under obligation to impose fine also in addition to the substantive sentence of imprisonment. No discretion is left to the Court to levy or not to levy fine and imposition of both imprisonment and fine is imperative in such case, as held by Hon'' Apex Court in the case of Zunjarrao Bhikaji Nagarkar Vs. U.O.I. and Others, in which reference has been made to the case of Rajasthan Pharmaceutical Laboratory, Bangalore and Others Vs. State of Karnataka, . But since the State of U.P. has not preferred any appeal for enhancement of sentence, hence we are not inclined to enhance the sentence imposing fine.

Consequently, the appeal of the appellant-accused Kallu Singh is allowed. His conviction and sentence are set-aside and he is acquitted of the offence punishable u/s 302 read with Section 34 IPC. He shall be set at liberty, if not required to be detained for some other case.

The appeal of the appellant-accused Ram Kumar Singh is dismissed. He is undergoing sentence in jail. He shall be kept there to serve out the remaining sentence.

Appeal against the appellant-accused Danki Singh stands abated due to his death.

The office is directed to return the Trial court record expeditiously along with a copy of this judgment for necessary action.