Rampal Singh vs State of U.P.

Vinod Prasad, J.—Appellant Ram Pal Singh has been convicted u/s 302, I.P.C. with sentence of imprisonment for life for that offence by VII Ith Additional Sessions Judge, Mainpuri, vide his order dated 24.5.1982, passed in S.T. No. 156 of 1979, State v. Ram Pal Singh, P.S. Bewar, district Mainpuriwhich conviction and sentence has been questioned by him in the instant appeal.

Essential facts, eschewing unnecessary details, of the prosecution allegations against the Appellant are that Jograj Singh and Chhatar Singh were uterine brothers. Anurag Singh, Rajesh Singh and Amar Singh are sons of Jograj Singh. Ram Kumar Singh (deceased) was the son of Rajesh Singh and husband of Smt. Sneh Lata (informant) P.W. 1. Ram Pal Singh (Appellant) and Ram Saran Singh (D.W. 1) are the grandsons of Chhatar Singh being sons of Shiv Raj Singh. The deceased and Appellant Ram Pal Singh both were serving in army as Lans Naik. Two months prior to the date of the incident deceased had come to his house on leave from Agra where he was posted at that time, and had erected a ladauri (Cattle Feed pot) on his vacant land and then had went back. Appellant Ram Pal had also come on leave at that time. Ram Pal had broken the ladauri of the deceased and had started throwing garbage on the vacant land of the deceased. Five days before the incident Ram Kumar deceased had returned on leave to his village. On 13.2.1978 at 2 p.m. after finishing his vacation he was returning to Agra on his duty. Meanwhile Amar Singh, uncle of deceased (Uncle-in-law of the informant) came to his house alongwith one person of village Dhaniapur and the deceased started chatting with them. Appellant also reached there and the deceased inquired from him as to why he had broken his ladauri and started throwing garbage on his land on which a tiradic altercation ensued between the two and they grappled with each other. Ram Kumar deceased threw the Appellant on the ground. Meanwhile Ram Saran D.W. 1 reached there and he alongwith Amar Singh separated them. Ram Saran also started talking with deceased who was standing along side a pillar on his verandah. Ram Pal Singh Appellant went to his house and then he climbed on the roof of Muneshwar armed with a rifle and from there he asked his brother Ram Saran to keep away as he will shoot the deceased. On this the deceased remarked that whether he had the courage to shoot him. On this the Appellant shot at the Ram Kumar with his rifle and then ran away. Ram Saran and others helped the injured and called a village compounder who filled the injury of the Appellant with dough. Deceased was carried to Bewar and from there he was brought to Military hospital in Fatehgarh where he was got admitted at 9 p.m. the same day. Major Laxmi Jhingran, P.W. 3, inquired from him about the cause of injury on which she was informed by the deceased that the Appellant had shot him on 13.2.1978 at 2 p.m. in village Hindupur, post Jasmai, district Mainpuri. P.S. Bewar. P.W. 3, Major Laxmi Jhingran sent a memo of the said utterances, Ext. Ka-3, to the police station Kotwali, Fatehgarh which was received at the police station at 9.30 p.m. Ram Shrawan Upadhyay P.W. 4 made an inquiry from the military hospital and finding that offence u/s 307, I.P.C. was disclosed he gave a report that the F.I.R. be allowed to be registered vide Ext. Ka-6. On the said report chik F.I.R. Ext. Ka-7 was registered at the police station at 11.55 p.m. by Shiv Karan Singh Constable and he also prepared the G.D. entry Ext. Ka-8. Subsequently the said F.I.R. was transferred to P.S. Bewar.

Chik report and the G.D. were received at P.S. Bewar at 3.10 a.m. on 15.2.1978, which was entered into G.D. by Amar Singh constable clerk proved as Ext. Ka-15. The same day, 15.2.1978 at 2.50 p.m. Constable clerk Ram Singh registered the case at P.S. Bewar as Ext. Ka-16. S.I. Vedi Singh, P.W. 6, the Investigating Officer, engineered the investigation on 17.2.1978, recorded the statement of the Head constable Amar Singh then on 19.2.1978 he went to the spot where he recorded the statements of many villagers, prepared site plan Ext. Ka-17 and then searched the house of the accused-Appellant Ram Pal Singh. On 1.3.1978, he received the post-mortem report of the deceased, then he proceeded to Fatehgarh where he recorded the statement of Dr. Major Mrs. Laxmi Jhingaran and copied the injury report and dying declaration (Memo) of the deceased. On 17.3.1978, he recovered the blood stained cloths of the deceased and prepared it''s recovery memo Ext. Ka-18. On 26.3.1978, he went to the Army unit of the accused and there he copied the leave certificate of the accused as Ext. Ka-19 and after conducting usual investigation he arrested the accused on 26.7.1978 and then submitted charge-sheet against him which is Ext. Ka-20.

Injury report of Ram Kumar Singh injured was prepared on 13.2.1978 at about 21 hours as Ext. Ka-2 by major Laxmi Jhingaran P.W. 3 which indicated that the injured/deceased had sustained a gun shot wound on right side abdomen 5 cm. in diameter with an exit wound of 1 cm. diameter. Injured was got admitted in the hospital by his cousin. Ram Kumar Singh injured died on 17.2.1978 at 7 a.m. in the hospital and his inquest was conducted by S.I. V. D. Tiwari which was proved as Ext. Ka-9 and other relevant papers of Chalan lash, Photo lash, etc. as Exts. Ka-10 to Ka-12.

The post-mortem examination report of the deceased dated 17.2.1978 conducted at 4.30 p.m. Ext. Ka-1 indicate that the deceased Ram Kumar Singh had expired in Military Hospital on 17.2.1978 at 7 a.m. and the cause of his death was shock and toxemia as a result of sustained ante-mortem injuries.

After the charge-sheet the accused-Appellant was summoned by the trial court and his case was committed to the Court of Sessions for trial. On 3.3.1981, charge was framed against him by the II Additional Sessions Judge, Mainpuri which was read over and explained to the accused-Appellant who denied the same and claimed to be tried.

To bring home the charge and prove the guilt of the accused-Appellant, prosecution examined six witnesses in the trial. Out of these witnesses P.W. 1 Smt. Sneh Lata is the wife of the deceased and is an eye-witness and P.W. 5 Veerendra Singh is the father-in-law of the deceased to whom the deceased had made an oral dying declaration that he was shot at by the accused-Appellant. Rest of the witnesses Dr. A.K. Rastogi P.W. 2, Major Laxmi Jhingaran P.W. 3, S.I. Ram Swaroop Upadhyay P.W. 4, and Vedi Singh S.I. the Investigating Officer P.W. 5 all are formal witnesses.

Smt. Sneh Lata P.W. 1, wife of the deceased testified before the Court regarding the relationship inter se and she further deposed regarding topography of the place of incident. She further deposed that her deceased husband and the accused were Lans Naik in the Army. She had further deposed regarding the erection of ladauri and it''s demolition by the Appellant and his throwing of garbage in his vacant space. She has further stated that her husband had come on casual leave five days prior and was going to join his duties on the date of the incident when Amar Singh alongwith one other person had come and while the deceased was chatting with them that the accused came there and on the inquiry being made by the deceased an altercation ensued between them and in the duel deceased threw Appellant on the ground. Meanwhile Ram Saran D.W. 1 reached on the spot and he and Amar Singh separated them and the Appellant thereafter went to his house. Ram Saran and Amar Singh started talking with the deceased who was standing along a pillar of his verandah. Appellant Ram Pal Singh meanwhile climbed on the roof of Muneshwar towards south of the house of the deceased armed with rifle and from there he accosted his brother Ram Saran to keep away from the deceased, as he will shoot down the deceased. Ram Saran snubbed him not to be insane. On this the deceased remarked that the Appellant did not have the courage to shoot at him. On this the Appellant shot the deceased as a result of which deceased Ram Kumar Singh fell down. The accused-Appellant got down from the roof and ran away. Ram Saran and others helped the deceased, called the village compounder who filled the injury with flour. Deceased was carried to the Military Hospital Fatehgarh through Bewar where he was got admitted. Four or five days subsequent to the said incident deceased lost his life. P.W. 1 further testified that she had brought the cloths of the deceased alongwith her and had handed it over to the Investigating Officer. She had further stated that the roof of the house of Muneshwar was six to ten feet high. She was cross-examined regarding some affidavits given by her which is not material. She further testified that she is educated up to class IV or v. and the Appellant was slightly shorter than her husband. She stated that the house of Muneshwar is 7 or 8 paces away from her house and lot of blood had spilled at the place of the incident. She had further stated that her husband had a rifle where as the accused had got 12 bore gun as well as a rifle and he had fired from the roof of Muneshwar which had a boundary of around about 1 feet high. She had denied the defence suggestion that the accused had made a fire from 12 bore gun and not from rifle. She has further deposed that before the incident relations between the accused and deceased were very cordial and the Appellant used to address her as daughter-in-law (bahu). She had also stated that land over which the altercation took place was claimed by the deceased as well as by the Appellant and after her husband had thrown the deceased on the ground, they both were separated by the persons present on the spot. She had further deposed that she does not remember every thing regarding the presence of witnesses etc. as her husband was shot at. The witness was subjected to through cross-examination but nothing material had come out in her evidence.

Dr. A.K. Rastogi, P.W. 2 had conducted the autopsy on the body of the deceased on 17.2.1978 at 4.30 p.m. who had expired in the Military Hospital on the same day at about 7 a.m. and had found following injuries on his person:

Stitched wound 7" long with 14 stitches present obliquely placed on the Rt. Iliac fossa. Drainage tube is also present. Achimosis of the skin below and around in upper end of the stitched wound.

Circular wound 3/4" x 3/4" with everted margins x abdominal cavity deep. Directed upward, forward, toward, the left drainage tube present right side back on lower part (stitched region).

Abrasion 1" x 1/2" on the back of right elbow.

Multiple abrasion 3" x 2" on the back of the left elbow. Fracture of the right iliac bone.

On the internal examination he found that the peritoneum was swelled and was stretched and the cause of the death was toxemia, as a result of sustained injuries. This witness has proved his post-mortem examination report as Ext. Ka-1. Nothing material had come out from his cross-examination.

Dr. Major Laxmi Jhingaran, P.W. 3 deposed that in the month of February, 1978, she was M.O. Incharge Military Hospital Fatehgarh. On 13.2.1978 at about 9 p.m. Ram Kumar Singh, injured (deceased), was admitted in military hospital brought by his cousin brother. She had intimated Lieutenant Colonel Basu regarding the admission of the injured Ram Kumar Singh in the hospital. She had examined the injuries of the injured which have already been mentioned above. She had deposed that the injuries of the injured could have been caused at the time of the incident. She had further stated that injured was conscious and was speaking. She had further deposed that from the nature and the direction of the injuries it was perceptible that the assailant was on the height and injured was below. She had deposed that injured had given his statement that the Appellant had shot him that day at 2 p.m. which was noted and signed by her which she proved as Ext. Ka-3. She has sent a memo to the police station. She had proved the signature of Lieutenant Colonel Basu and had stated that at the time of giving statement (dying declaration) injured was in a fit state of mind. She had proved the said statement which is in the nature of the dying declaration of the deceased as Ext. Ka-4. In her cross-examination she had further confirmed that from the direction of the injuries it was clear that the assailant was on height and if barrel of the gun is pointed towards below then such an injury as has been sustained by the deceased, could have been caused. She had further stated that dying declaration was recorded in the presence of Devendra Singh. Nothing material has come from her cross-examination.

Ram Shrawan Upadhyay, P.W. 4 Sub-Inspector deposed before the Court that on the date of the incident he was posted at P.S. Kotwali, Fatehgarh where the memo from the Military Hospital Ext. Ka-3 was received. He himself had inquired about the incident by going to the Military Hospital and finding the incident to be true he had made a report Ext. Ka-6 for registering the F.I.R. and it was on his report that on 13.2.1978 at 11.55 a.m. Shiv Karan Singh had prepared the chik F.I.R. in the presence of S.O. Mahendra Singh which is Ext. Ka-7. The G.D. entry of registration of the F.I.R. was proved by him as Ext. Ka-8. He had further deposed that S.I. V. D. Tiwari was posted alongwith him at the said police station who had conducted the inquest on the dead body of the deceased on 17.2.1978. He had proved the inquest report Ext. Ka-9 and the relevant papers as Exts. Ka-10 to Ka-12. He had stated that he had left the hospital after conducting the inquiry at 10 p.m. in the night.

Virendra Singh P.W. 5, father-in-law of the deceased, had stated that he had received the information at 8.30 p.m. on the date of the incident that the deceased had been shot at on which he had rushed to the Military Hospital where the deceased had informed him that he has been shot at by the Appellant because of his inquiry regarding breaking of ledauri and dumping of garbage. He had further deposed that he had brought his daughter Smt. Sneh Lata to his house after the incident. He had proved two letters written by the deceased as Exts. Ka-13 and Ka-14. He had further proved the signature of the deceased on Ext. Ka-4. This witness had not been cross-examined at all by the defence inspite of the opportunity given.

S.I. Vedi Singh Sub-Inspector P.W. 6 who is Investigating Officer of the case deposed various steps taken by him during the investigation referred to above and had stated that the case was registered against the Appellant at P.S. Bewar. In his cross-examination he had stated that the accused had fired from height of 10 or 12 feet but he had not measured it and no blood was collected by him from the spot where the deceased had fallen down nor he had sought the serologist report.

The Appellant-accused in his statement u/s 313, Cr. P.C., recorded on 29.5.1982, denied the prosecution allegations and took the defence that he had a fight with the deceased Ram Kumar Singh who had thrown him on the ground and was pressing his neck when some body shot him and he could not see the shooter. In his defence he had examined his real brother Ram Saran Singh as D.W. 1.

Ram Saran Singh D.W. 1 in his deposition before the Court stated the defence of the Appellant and testified that at the time and date of the incident he had heard the shrieks of Ram Pal and had come out of his house and saw that the deceased was pressing the neck of the Appellant who was groaning. As soon as he reached near them he heard a gunfire, which has caused injury in the abdomen of the deceased. He had picked up the injured and had brought him under the chhappar. He had called the compounder who had done the dressing of the wound and had filled dough in the injury. By bullock cart he had brought the injured to Bewar and from there had carried him to the Military Hospital, Fatehgarh. He had further deposed that at the time of incident Madan Pal was also present at the spot and he could not see who caused the injury to the deceased. In his cross-examination he had clearly deposed that ledauri was erected by the deceased. He had further deposed that at the time of the incident only Madan Pal was near the deceased and the accused and Amar Singh was coming towards them. He had further stated that but for the persons present on the spot there was no body else and after the incident Madan Pal had ran away from the spot. He has been cross-examined by the prosecution in which he had stated that he does not know from which side the gunfire sound had emanated and from which side the shot was fired. He had deposed that from right hand the deceased had pressed the Appellant and from the left hand he was slapping him when he was shot at.

Trial court found that the case of the prosecution was proved to the hilt and guilt of the Appellant was established and therefore it convicted him for culpable homicide amounting to murder u/s 300, I.P.C. and sentenced him u/s 302, I.P.C. for life imprisonment vide his impugned judgment and order dated 24.5.1982, the correctness of which is to be judged in this appeal.

On the above factual matrix we have heard Sri Dilip Kumar, learned Counsel for the Appellant in support of this appeal and Sri Syd. Ali Murtaza learned A.G.A. in opposition.

Learned Counsel for the Appellant raised only two arguments in support of this appeal to canvass that the prosecution version is false and the appeal must succeed. Firstly, he harangued that injury sustained by the deceased had entrance wound of 5 cm. in diameter which cannot be caused by the rifle from a roof and secondly, that the defence of the Appellant clearly shows that he had exercised his right of private defence of person in the duel when he was pressed by neck. To save himself he had shot at the deceased. He further half-heartedly contended that the prosecution examined only related and interested witnesses to prove the guilt which shows that the defence of the Appellant may be correct that the deceased had sustained injuries from a close contact. He had also submitted that prosecution had suppressed the genesis of the incident and the entry wound is much larger then the exit wound, which is only 1 cm. in diameter, because of close contact shot and therefore the prosecution allegation of shooting from the roof is false. He further stated that at the worst taking to the prosecution case to be correct, offence of the Appellant will not travel beyond the scope of Section 304, Part I and therefore conviction of the Appellant u/s 302, I.P.C. and sentence of life imprisonment is not sustainable in law. Concludingly, he submitted that the appeal of the Appellant deserves to be allowed and his conviction and sentence deserves to be set aside and he be acquitted.

Learned A.G.A. on the contrary submitted that it was responsibility of the Appellant to establish his right of private defence on preponderance of probability but the Appellant had taken contradictory defences at various stages which shows falsity of his version. He contended that the two dying declarations of the deceased one to Major Laxmi Jhangania P.W. 3 and other oral dying declaration to Virendra Singh P.W. 5 are reliable, consistent and very natural and cannot be discarded. He further submitted that there was no reason for falsely implicating the Appellant in day light incident with an eye-witness account and therefore, the appeal is meritless. He further submitted that the Appellant was a relative of the deceased and hence there was no chance of his mistaken identity. He further submitted that P.W. 1 will never falsely implicate the Appellant in the murder of her own husband in front of her eyes and spare the real culprit. Concludingly he submitted that in this case medical report is consistent with the prosecution version and therefore the appeal lacks merit and deserves to be dismissed.

We have given our anxious consideration on the rival submissions raised by both the sides and have perused the record of the appeal and evidences ourselves.

The narration of facts of the incident establish that it is day light incident in which some facts are admitted to both the sides. The relationship between Appellant and the deceased, time, date and place of incident, scuffle between the deceased and the Appellant and that the deceased sustained firearm injury all these facts are admitted to both the sides.

In such a background when we examined the first contention of Sri Kumar that the shot was fired from a close range and not from the roof of Muneshwar the same does not commend to us. It is the consistent case of the prosecution from the very beginning that the shot was fired from the roof from the rifle. P.W. 1 wife of the deceased who had no animous with the Appellant had clearly stated that the Appellant had fired from the roof. Her said statement is well supported by the evidence of her father P.W. 5 Virendra Singh who had stated the deceased had also told him that the Appellant had shot him from the roof of Muneshwar. This was the earliest version of the injured given by him in the hospital. He was got admitted in the hospital by D.W. 1 himself who is the real brother of Appellant and therefore the deceased had no time to cook up a story and introduce the facts in the actual incident. It will be ludicrous to cogitate that an injured will introduce a fact which may damage his own version. P.W. 3, Dr. Major Laxmi Jhingran was also cross-examined on this aspect of the matter. She has clearly deposed in her deposition, more than once, that the assailant was on a height and the deceased was below. There is nothing on record to disbelieve these statements by the three witnesses who had no reason to falsely implicate the Appellant. The evidence of the doctor and the statement of the deceased given to his father-in-law which is in the nature of his oral dying declaration, cannot be doubted and are reliable. These evidences also falsify the defence version that the deceased was above on the Appellant and he was beneath him when he shot him to save his life as has been suggested by the Appellant''s counsel. According to Sri Kumar the shot was fired as a contact shot but the injury report and post-mortem report does not indicate any gun power wad etc. embedded inside the injury. No gas etc. has been found by Dr. Major Laxmi Jhingaran P.W. 3. These facts run counter to the argument raised by learned Counsel for the Appellant. If the shot was not fired from a contact range without the muzzle being pressed against body of the deceased then according to Dilip Kumar learned Counsel himself there would nave been blackening, charring and tattooing present in the injury but no such sign was found by Dr. Major Laxmi Jhingaran who had examined the injured at the earliest. Before his medical examination by this witness the deceased was all through in the company of the D.W. 1 Ram Saran and therefore there was no opportunity to manipulate the injury report as well. Consequently we are unable to accept the first contention of Sri Kumar. Dr. Laxmi Jhingaran who is the most independent witness had no reason or malice to falsely implicate the Appellant by deposing falsely against him. In this respect we may refer the dying declaration and the note made by the said Doctor regarding the utterances made by the deceased wherein he had stated that it was the Appellant who had shot him. We have not been able to appreciate at all that the deceased will spare the real assailant and will falsely implicate his relative with whom he had no enmity prior to the incident. The two dying declarations vide Exts. Ka-3 and Ka-4 are truthful evidences of the statement of the deceased and without any hitch implicit reliance can be placed on them. These two statements are concise well worded and to the point. Such types of statements are guarantee of their truthfulness. These statements are well proved by the independent witnesses and therefore we have not been able to distract ourselves from the two dying declarations at all. Moreover we have not found anything in the testimony of P.W. 1 Sneh Lata from which we can say that her testimony is uncreditworthy and cannot be acted upon. Her deposition before the Court is straightforward, without any embellishment and indicates that she has not made any endeavour to depose falsely. We have not been able to find any element of falsehood in her deposition. She had no reason to cook up facts and introduce story of roof firing when this fact was not going to further establish her case. In this respect we may point out that that the Appellant had taken contradictory stands at various stages. According to his statement u/s 313, Cr. P.C. some unknown person had shot the deceased whereas D.W. 1 tried in vain to prove that it was Madan who had shot the deceased albeit in appeal before us it was canvassed that the Appellant shot the deceased in exercise of his right of private defence. These contradictory defense versions are conspicuous proof of it''s falsehood. We may remind here that while judging the guilt or innocence of an accused we can legitimately take into consideration his defence also to separate the grain from the chaff.

So far as the entry wound and exit wound and their sizes are concerned we say only this much that it was not the prosecution case that the rifle was a factory made weapon and not a local gun and that neither P.W. 1 nor the doctor was cross-examined on this aspect of the matter. No question was put to P.W. 3 Major Laxmi Jhingaran whether the entry wound and exit wound can be caused by rifle or not? Moreover what type of weapon was termed, as rifle by P.W. 1 is also not known.

On consideration of an over all view we are of the opinion that the prosecution allegation that the deceased was shot at from the roof is well established and cannot be turned as false.

Coming to the second contention of Sri Dilip Kumar that the Appellant has acted in exercise of right of self-defence, we find the said contention also wholly unmerited. Leaving aside the prosecution evidence from the defence evidence of D.W. 1 Ram Saran, who is the real brother of the Appellant itself it is clear that from one hand the deceased was slapping the accused and from one hand he was pressing the Appellant. Both hands of the Appellants were free and when the deceased was empty handed there was no reason for him to shoot the deceased from a point blank range, as has been suggested by the defence. There is no right of private defence against an unarmed person. Moreover the Appellant could have taken the help of other persons present on the spot. There was no enmity between Appellant and deceased prior to the incident. Even according to the version of the defence the deceased had not said any thing prior to the incident to the accused-Appellant and had not even questioned him. On such facts where was the danger to the life of the Appellant at the hands of the deceased. Right of private defence, which one of the most sacrosant of all the rights cannot be wielded to wreck vengeance. The evidence of D.W. 1 itself dissipate the defence argument of right of private defence to commit the murder or causing such bodily injury as was sufficient in the ordinary course of nature to cause death. Further the prosecution evidence is clear, cogent and reliable that after the fight both the deceased and the Appellant were separated by Amar Singh and D.W. 1 Ram Saran. The evidence of P.W. 1 Smt. Sneh Lata in this respect is believable and this is no reason to castigate her evidence in this respect. Moreover we have believed the prosecution version of firing shot from the roof and this shows that the deceased and the Appellants were separated. Thus, the adumbrated edifice of defence case that the Appellant had shot the deceased when he was trying to throttle him diminishes in view of trustworthy and reliable evidence of prosecution witnesses. Resultantly we are not in agreement with the submissions of Sri Dilip Kumar that it is a case of right of private defence of person.

Moreover we also repel the submission that it is a case u/s 304, Part I, I.P.C. for the simple reason that once two wrestlers were separated then there was no reason for the Appellant to climb on the roof and shoot the injured. He had sufficient time to calm down. In this view of the matter we have not been able to appreciate the contention that it is a case of grave and sudden provocation covered u/s 304, I.P.C. There was no reason for the Appellant to be affronted, as the fight was sudden without any intention to insult. The defence suggestion of right of private defence is an imagination for fishing out a defence and is a false story.

Concludingly we found that the prosecution has been able to successfully establish the guilt of the Appellant to the hilt and his conviction u/s 302, I.P.C. and sentence of life imprisonment, as recorded by the trial court, is well founded.

We do not find any merit in this appeal it is dismissed.

Chief Judicial Magistrate, Mainpuri is directed to take necessary measures to get the Appellant arrested forthwith. As soon as he is arrested his bail bonds and sureties bonds shall be cancelled and he be sent to Jail to serve out the sentence as has been awarded on him. C.J.M., Mainpuri is directed to report compliance of this order to this Court within three months.

Let a copy of this order be certified to the lower court for its intimation and necessary action.