Sher Singh vs State of U.P.

N.S. Gupta, J.—The accused-Appellant Sher Singh who was convicted by Sri C.P. Singh, the then Sessions Judge, Uttarkashi vide his judgment and order dated 20.12.1992 and was sentenced to undergo imprisonment for life u/s 302, I.P.C. has come up in appeal before this Court.

The prosecution story briefly stated was as follows:

The accused-Appellant Sher Singh and the deceased Ram Lal Singh were posted as Hawaldar and Nayak respectively of Indo-Tibet Border Police at Sonam outpost in district Uttarkashi. On 11.12.1991, constable Harendra, P.W. 1 and Ranveer Singh. P.W. 2 went to Sonam I.T.B.P. Outpost in district Uttarkashi for relieving constable Prem Lal and Lalit Girl where the accused-Appellant Shri Singh was working as Hawaldar. They gave their movement order to Sher Singh. On 12.12.1991 accused-Appellant Sher Singh got the movement of Prem Pal and Lalit Girl and Nayak Swaroop prepared by the deceased Ram Lal. In the evening of 12.12.1991 while Harendra, Ranvir Singh and Inder Narayan were taking meals, the accused-Appellant told something to the deceased Ram Pal. Ram Pal said that the accused was a G.D. Hawaldar and that he could do nothing to him. The deceased asked the accused-Appellants not to talk to him through his Hawaldar. The deceased, the accused and the other constables slept in the hut during the night. On the next day viz. 13.12.1991, constable Harendra P.W. 1 and Ranvlr Singh, P.W. 2 prepared breakfast and took the same along with Harendra, Sher Singh. The deceased Ram Pal had gone to take bath. Thereafter they prepared the lunch. The deceased Ram Pal was there with these persons while preparing the lunch. The accused-Appellant was there in his hut. Constable Harendra Singh, P.W. 2, Ranvir Singh, P.W. 2 and deceased Ram Pal took their lunch inside the kitchen. The lunch of the accused-Appellant was kept on his table in the hut. After taking the lunch the deceased Ram Pal lay down on his charpai. The accused-Appellant Sher Singh was sitting on his charpai. The charpai of the accused-Appellant and the deceased were in front of each others. Constable Harendra, P.W. 1, Ranvir Singh, P.W. 2 and Inder Narayan, P.W. 4 were basking in the sun outside the hut. At about 2.00 p.m. they heard the noise of Are. Hearing the same, they went inside the hut and enquired as to how the fire was made. Thereupon the accused-Appellant said that he has shot at the deceased Ram Pal. The accused-Appellant gave his rifle to constable Ranvir Singh, P.W. 2 who kept the rifle near the wall. The accused-Appellant said that whatever he has done, he has done after full understanding and that no harm would be caused to anybody. Thereupon Indra Narayan, P.W. 4 asked Harendra, P.W. 1 to take care of the accused-Appellant. He asked Ranvir Singh, P.W. 2 to take care of the injured Ram Pal who was bleeding. The deceased Ram Pal was crying, he was demanding water and was saying that the accused-Appellant Sher Singh has shot at him. Constable Ranvir Singh brought water but by that time, the deceased became unconscious. Hawaldar Indra Narayan, P.W. 4 flashed a message about this incident to his concerned officers at about 2.30 p.m. Thereafter at about 4.50 p.m. Subedar T. Sumla, P.W. 7 alongwith a medical sepoy and certain others reached there. They brought the deceased and the accused to Naga Post. From Naga Chauki Commander T. Sumla took the deceased to Neelong Chauki for proper medical aid to the deceased. The doctor there declared the deceased Ram Pal as dead.

F.I.R. about this occurrence was lodged by Sri B.S. Paul, P.W. 5 at Police Station Maneri on 13.12.1991 at 7.45 p.m. The police station Maneri lies at a distance of about 118 kms. from the scene of occurrence.

Investigation of the case was immediately taken up by S.I. Shyam Vir Singh, P.W. 11 who was then working as Station Officer at Police Station Maneri, district Uttarkashi. He rushed to the I.T.B.P. outpost, Neelong on 14.12.1991 and got the dead body of the deceased sent to police station Maneri where the inquest report was prepared by S.I. Deepak Singh, P.W. 8. S.I. Shyam Vir Singh went to outpost Sonam on 15.12.1991. He inspected the scene of occurrence and prepared a site plan Ext. Ka-16. He recorded the statement of constable Indra Narayan, P.W. 4. He recovered the empty cartridge from the charpai of the deceased. He prepared the recovery memo Ext. Ka-7 about the same. He recovered blood-stained bed-sheet from the bed of the deceased. He took in his possession the sleeping bag belonging to the deceased as also the blood-stained clothes which the deceased was wearing at the time of the occurrence and prepared recovery memos about the same. He recovered a piece of metal and blood-stained earth from the scene of occurrence. He also took in his possession the rifle bearing No. 6329 which was allotted to the accused and which was used by him in committing the murder of the deceased from inside the hut. On 16.12.1991 he recorded the statement of Commander T. Sumla of I.T.B.P. and S.I. Jaipal Singh, constable Luxmi Prasad, constable Durlabh Singh, constable Ranvir Singh, constable Harendra Singh and other witnesses. On 17.12.1991 he obtained a copy of the wireless message through which the news of making fire by the accused-Appellant was flashed. He also obtained copies of the movement orders of accused-Appellant Sher Singh, Lalit Girt and Prem Pal. On 18.12.1991, he recorded the statement of S.I. Deepak Singh, S.I. Madan Singh. He also obtained a copy of the post-mortem report and submitted a report to the S.D.M. Uttarkashi for recording the statement of the accused u/s 164, Code of Criminal Procedure.

On 19.12.1991, he recorded the statement of constable Lekhrpj Singh and Sushil Kumar and Preetam Singh of police station Maneri and after concluding his investigation he submitted a charge-sheet against the accused-Appellant on 5.2.1992.

The autopsy on the deadbody of the deceased was conducted by Dr. J.K. Singh, P.W. 6 on 16.12.1991 at about 12.30 noon who found the position of the deceased as under:

The deceased was aged about 23 years. He died about three days back. His body was average-built. Rigor Mortis partially passed off in the neck and was present in the rest of the body.

Ante-mortem injuries:

Wound of entry--margin inverted gunshot wound measuring 1/2 cm. x 1/2 cm. in front of right chest. 2 cm. upward from nipple (right) in the line 2 O''clock posteriorly surrounded by blackening in area 1 cm. around.

Wound of exit--gunshot wound measuring 4 cm. x 3 cm. margin inverted, just left to scapula. Both wounds were corelated, 2nd and 3rd vertiberae broken, 2nd rib broken beneath the wound of exit.

Dr. Singh opined that the deceased had died due to shock and haemarrage which resulted from the aforesaid ante-mortem injuries.

A charge u/s 302, I.P.C. was framed against the accused-Appellant. The accused pleaded ''not guilty'' and claimed trial. After needful trial he was convicted and sentenced as aforesaid. Hence the appeal.

We have heard Miss. N.A. Moonis, amicus curie appointed for accused-Appellant and Shri Shreeprakash Singh, Addl. Government Advocate on behalf of the State; considered their contentions and have gone through the facts and circumstances of the case.

It was argued by the learned amicus curie on behalf of the accused-Appellant that the Court below grossly erred in convicting and sentencing the accused-Appellant. We are unable to agree.

Three witnesses of fact who were working as constables of I.T.B.P. and were posted at Sonam outpost where the deceased and the accused were also working were examined by the prosecution before the Court below. They were Harendra. P.W. 1 Ranvir Singh, P.W. 2 and Indra Narain Singh, P.W. 4. They all have very clearly and consistently stated in their statement on oath before the Court below that on the fateful date of occurrence, i.e., 13.12.1991, at about 2.00 p.m. they were basking in the sun outside the hut of the accused Sher Singh and that on hearing the noise of fire, they went inside the hut and there they found that the accused-Appellant Sher Singh sitting on his charpai along with his rifle and that the deceased Ram Pal was lying injured and that his injuries were bleeding. When asked by constable, Indra Narain Singh, P.W. 4 as to how the fire was made, the accused-Appellant said that he had shot at the deceased. The accused-Appellant thereafter gave his rifle to constable Ranvir Singh. The accused-Appellant also gave the magazine of the rifle saying that there were ten rounds in it, out of which nine cartridges were still alive and that one fire he had made. Constable Harendra, P.W. 1 and constable Ranvir Singh, P.W. 2 have also stated that the deceased demanded water from them. He also said that he was shot at by the accused-Appellant. When constable Ranvir Singh got water from the kitchen, he found that the deceased Ram Pal became unconscious. A message about this incident was flashed on wireless and thereafter the accused and the deceased were taken to Neelong Chauki where the deceased was examined by a doctor and was declared dead.

The fact that the deceased had died because of the gunshot injury caused to him by means of rifle is fully proved by the medical evidence of Dr. J.K. Singh, P.W. 6. It is clearly proved by the evidence of S.I. Shyam Vir Singh that he had recovered an empty cartridge from the scene of occurrence as also the rifle bearing No. 6329 which was allotted to the accused-Appellant. Ext. Ka-22 is the report of the Ballistic Expert who found that the disputed cartridge was fired by means of the rifle No. B-6329 which was allotted to the accused-Appellant and which was taken Into possession by the Investigating Officer, S.I. Shyam Vir Singh during the course of investigation of the case.

The circumstances that the deceased and the accused-Appellant both were posted together at Sonam outpost, that since before the occurrence they were present together Inside the hut; the circumstances that after taking lunch, the deceased Ram Pal was lying on his charpai and the accused-Appellant was sitting there; the circumstances that Harendra, P.W. 1, Ramvir Singh, P.W. 2 and Indra Narain Singh, P.W. 4 were all basking in the sun outside the hut and that they rushed to the hut on hearing the noise of the gunshot and there they found the deceased lying injured and bleeding and the accused-Appellant sitting and saying that he had shot at the deceased and further that the deceased informed these persons that he was shot at by the accused-Appellant fully proved that the accused Appellant was responsible for firing by means of his rifle at the deceased and causing injuries to the deceased with an intention to kill him.

The circumstances that soon after the occurrence, a message was flashed to all concerned authorities that the accused had opened fire by means of his rifle and caused Injuries to the deceased and the circumstances that hearing the said message, Shri T. Sumla, P.W. 7 Commander of Naga Post reached at Sonum outpost with a number of police constables and got the deceased rushed to Neelong Chauki for providing proper medical aid fully go to prove that the accused was responsible for firing at the deceased.

It is important to note here that the accused-Appellant himself had made an elaborate statement u/s 164, Code of Criminal Procedure before Sri R.K. Singh P.W. 10 who was then working as S.D.M. Bhatwari, district Uttarkashi. The accused-Appellant stated therein that on 10th of December, 1991, sometime in the evening, an army officer and two sepoys came to his outpost. After dinner, the deceased Ram Pal and 5-6 boys whose names were not known to him started taking useless things. They were abusing each other. The accused-Appellant stated that he felt that the others would get a poor impression about the members of the police force. He, therefore, tried to advise the deceased on 12.12.1991 but the deceased instead of paying heed to the advice of accused-Appellant hurled abuses upon him. The accused stated that he felt annoyed but tolerated his anger. On 12.12.1991 again at about 8-8.30 p.m. the deceased reopened the topic and said that the accused-Appellant thought himself senior. He stated that the experience which he gained in five years could not be gained by the accused-Appellant in his service of 29 years. The accused-Appellant stated that the deceased warned the accused to do whatever he thought proper but he could not harm him. Next day also his behaviour was the same. He was staring at the accused while going and coming and used to smile. The accused-Appellant stated that he tolerated all these things. He felt annoyed and fired at the deceased. He had a rifle with him.

It has been clearly stated by Sri R.K. Singh, S.D.M. that before recording the said statement u/s 164, Code of Criminal Procedure, he had warned the accused that he was not bound to make any statement and if he made a statement that could be used against him. The said statement was read over to the accused and was verified as correct. Sri R.K. Singh, S.D.M. certified that the said statement was voluntarily made by the accused.

It is important to note here that Sri R.K. Singh before recording the said statement of the accused u/s 164, Code of Criminal Procedure had put certain questions to the accused-Appellant as to why he wanted to make a confession. In reply to the said questions, the accused-Appellant stated that he had committed a crime. He stated that he is to be punished so he is making a statement.

The circumstances that the accused-Appellant was first brought before the learned S.D.M. on 18.12.1991 and the statement of the accused-Appellant u/s 164, Code of Criminal Procedure was recorded after four days, i.e., on 22.12.1996, fully go to show that the accused-Appellant was afforded full and fair opportunity to think about his statement. The elaborate statement which the accused-Appellant made before the S.D.M. lends assurance to the face that the said statement (Ext. Ka-15) was a voluntary and true statement. It deserves to be relied upon and was rightly relied upon by the Court below.

Thus, to sum up, we find that there was direct evidence of as many as three eye-witnesses viz. Harendra P.W. 1, Ranvir Singh, P.W. 2 and Indra Narain Singh. P.W. 4 to the effect that soon after the occurrence, the accused was found sitting with a rifle by the side of the deceased, the deceased was lying injured in a pool of blood; there is evidence regarding extra-judicial confession made by the accused in the presence of all these witnesses on the point that he had shot at the deceased; there was evidence of dying declaration of the deceased made in presence of all these witnesses to the effect that the accused had fired at the deceased and injured him; there was medical evidence on record to prove that the deceased had died because of the injuries caused to him by means of rifle. There was scientific evidence of ballastic expert on the point that empty cartridge recovered from the scene of occurrence by the Investigating Officer was fired by means of the rifle which was allotted to the accused-Appellant. There was also evidence of Judicial confession of the accused-Appellant recorded by the S.D.M. u/s 164, Code of Criminal Procedure. It would thus be seen that there was overwhelming evidence for proving the guilt of the accused-Appellant.

We are accordingly of the opinion that the guilt of the accused-Appellant stands fully proved beyond any shadow of doubt and that the accused-Appellant was rightly convicted and sentenced by the learned Sessions Judge. The appeal has got no force. It is hereby dismissed.