Sidh Nath vs State of U.P.

M. M. Lal, J.—This is an appeal against a judgment and order dated 1291978 passed by Sri J. P. Sinha, the then 1st. Addl. District and Sessions Judge, Farrukhabad by which he had convicted Sidh Nath appellant under Sections 302 and 324, I.P.C. and has sentenced him to undergo imprisonment for life and rigorous imprisonment for a period of six months respectively thereunder.

Mathura Prasad has three sons, namely Sidh Nath appellant, P.W. 1 Roop Lal informant and Raja Ram, P. W. 5 Km. Meera, Sadhana injured and Guddi deceased are the daughters of said Roop Lal P. W. 1, P. W. 3 Arvind, Devendra Ravindra and Virendra are the sons of aforesaid Raja Ram, All of them are residents of Nangapurwa, hamlet of village Larhpur, P. S. Gurshaiganj, district Farrukhabad.

The aforesaid Raja Ram had a tubewell. On 431977 the field of one Prakash Jatav was being irrigated from the said tubewell. The irrigation of the said field had commenced from 1.30 p.m. Virendra, son of Raja Ram, after starting the tubewell had gone to Gursahaiganj for some work leaving behind his three brothers Arvind, Ravindra and Devendra to look after the tubewell.

According to the case of the prosecution on 431977 at about 4 p.m. Sidh Nath appellant came to the aforesaid tubewell and told Arvind, Ravindra and Devendra that the water of the tubewell would go to his field and only thereafter the field of Sri Prakash Jatav would be irrigated. The said three sons of Raja Ram did not oblige the appellant whereupon the appellant started hurling abuses on them and with a view to beat them he started chasing the said three boys upto their house. The said three lads went inside their house. The appellant then went inside his house and brought out a country made pistol. The aforesaid three lads in the meanwhile had gone to the roof of their house. The appellant took position by the side of ''Ghur'' in front of their house and from that place started firing towards them. The said three boys had taken shelter under the chhappar on the roof of their house. On hearing the firing Km. Meera, with Km. Guddi aged about 1� years in her lap and accompanied by Km. Sadhna injured, came to the roof of the house of Raja Ram. The fourth shot fired by the appellant hit Km. Guddi as a result of which she died at the spot. Km. Sadhna was also hit by a pellet and she was injured P. W. 1 Roop Lal who had also witnessed the incident came to his house and got report of the occurrence written by his nephew P. W. 2 Virendra. He went to the Police Station Gurshaiganj, situate at distance of one mile, where he handed over the written report of the incident at 5.20 p.m. on the same day. He had also taken the deadbody of his daughter Km. Guddi alongwith him.

In order to prove its case the prosecution examined P. W. 1 Roop Lal informant and three eyewitnesses namely P. W. 3 Arvind, P. W. 5 Km. Meera and P. W. 6 Baboo Ram Dohrey P.W. 2 Virendra was a formal witness. He was scribe of the report, which he had written at the dictation of Roop Lal P. W. 1 P. W. 7 Narno Narain Tiwari constable had taken the deadbody of Km. Guddi for post mortem examination. The post mortem examination of the deadbody of Km. Guddi was conducted by P. W. 4 Dr. Shabbir Husain, the then Medical Officer, District Hospital, Fatehgarh on 531977 at 3 p.m. He found the following antemortem injury on the dead body of Km. Guddi, Gun shot wound of entry 1/10" into grain deep on left side of head .2 above left ear, margin inverted. In the internal examination he found that the bone under the wound was perforated and the membrances of the brain were also perforated. The brain was lacerated and in an area of 1" X 1" the blood had clotted, and the blood clooting was upto spinal chord.

According to the doctor the death of Km. Guddi occurred due to coma as a result of aforesaid antemortem injury.

Km. Sadhna was medically examined on 531977 at 9 a.m. by Dr. S. C. Dubey, Medical Officer Gursahaiganj, and he found the following injury on her person. Punctured wound with lacerated edges 1/5" x 1/10" scalp dee directing back wardinward on left temple 5 cm above ear. The doctor did not find any charring or tattooing around the said injury.

The investigation of this case was conducted by P.W. 8 Sri S. N. Singh, S. I. The case had been registered in his presence. He had prepared the "Panchayatnama" and other relevant documents of the deadbody of Km. Guddi at the Police Station itself, where the said deadbody had been brought by P. W. 1 Roop Lal with him. He had recorded the statements at the Police Station of those witnesses who were present there. He went to the place of occurrence where he recorded the statements of other witnesses. He inspected the place of occurrence and prepared the siteplan thereof. On the next day he had sent Km. Sadhna for her medical examination.

The appellant in a statement denied the case of the prosecution. He, however, further stated that (his father) Mathura Prasad and Roop Lal lived in the same house, that the gun of Mathura Prasad used to remain with Roop Lal, that Roop Lal was cleaning the said gun, which accidentally got fired as a result of which Km. Guddi died an Km. Sadhna sustained injuries. He also stated that his father had divided the agricultural land and that because he had made the land given to him fertile, therefore Raja Ram and others wanted to exchange their lands with the same, to which he did not oblige, and therefore he was falsely implicated in this case. The appellant, however, did not produce any evidence in defence.

The learned lower court believed the case set up and the evidence produced by the prosecution and has accordingly convicted and sentenced the appellant as aforesaid. Aggrieved by the same the appellant has tiled this appeal.

We have heard the learned counsel for the parties and have perused the record carefully.

As already observed, the prosecution, in order to prove its case against the appellant, has examined Roop Lal informant, besides three eye witnesses. P. W. 1 Roop Lal has stated in his evidence that at the time of the incident when he was sitting at the door of his neighbour Chheda, he found the appellant chasing Ravindra, Arvind and Devendra and that whereas the said three boys went inside their house, the appellant on the other hand went to his own nearby house. He further deposed that shortly thereafter the appellant came out of his house carrying a pistol and stood at ''Ghoor'', situate in front of the house of Raja Ram. He also deposed that Ravindra, Arviad and Devendra by that time had gone to the roof of their house and that the appellant had then started firing towards them. On hearing firing Km. Meera, carrying Km. Guddi in her lap, also came there at the roof. Ravindra, Arvind and Devendra had taken shelter by the side of "Chhappar". He further deposed that a shot fired by the appellant had hit Km. Guddi, as a result of which she died at the spot. After getting the report of the incident written from Virendra, he went to the Police Station to hand over the said report. He had also carried the deadbody of Km. Guddi alongwith him to the Police Station. This witness has deposed that it was later on that he came to know that his other daughter Km. Sadhna has also been injured by a pellet.

P.W. 1 Roop Lal had lodged the report of the incident quite promptly, i.e. on the same day itself at 5.20 p.m. at the Police Station Gurshaiganj, situate at a distance of one mile. The said prompt first information report lends corroboration to the version given by P.W. 1 Roop Lal.

P. W. 3 Arvind has deposed that on the date of the incident at 2 p.m. he alongwith his brothers Ravindra and Devendra had gone to the tubewell. At that time the field of Prakash Jatav was being irrigated from the said tubewell. P. W. 3 Arvind has further deposed that at about 4 p.m. his uncle Sidh Nath appellant came there and asked that they should let water go to his field, which request was declined. He also deposed that the appellant then abused them and ran behind him and his two brothers in order to beat them, that they had started running towards their house to be chased by the appellant and that were as they went to the roof of the Louse, the appellant went to his house and brought out a pistol and standing on the ''Ghoor'' he fired towards them. This witness further deposed that on hearing the noise Km. Meera carrying Km. Guddi in her lap had also come at that root and that the shot fired by the appellant bit Km. Guddi and Km. Sadhna, who was also there, and that whereas Guddi died at the spot Km. Sadhna sustained an injury.

P. W. 5 Km. Meera has stated in her evidence that at the time of the incident she, carrying Km. Guddi in her lap and accompanied by her other sister Sadhna was present at the roof of her house and that on hearing the shots she went to the roof of the house of Raja Ram. Ravindra, Devendra and Arvind were standing by the side of "Chhappar" and that the appellant, who was standing at the ''Ghoor'' fired shot towards them, which hit Guddi and Sadhna and that whereas Km. Guddi expired on the spot, Km. Sadhna was injured.

15A. P. W. 6 Baboo Ram Dohre is a tailor. He at the time of the incident was sewing the clothes by sitting at the "Chabutra" of the house of Raja Ram. He has deposed that at that time he found Devendra, Ravindra and Arvind coming running to their house to be followed and chased by the appellant, that whereas the said three lads went inside their house, the appellant went to his own house to bring out a pistol. He has also deposed that thereafter the appellant stood at the ''Ghoor'' aod fired four shots towards the roof of the house, where the said three lads had gone. He also deposed that he then saw Km. Guddi and Sadhna having sustained injuries at the roof and that.Km. Guddi had expired at that time and place.

P. W. 1 Roop Lal, P. W. 3 Arvind, P. W. 5 Km. Meera and P. W. 6 Baboo Ram Dohrey have given consistent evidence. There is no contradiction in their evidence regarding any material detail of the incident. Their evidence inspires confidence. P. W. 1 Koop Lal is the real brother of the appellant Sidh Nath. P. W. D Km. Meera and P. W. 3 Arvind are the brother''s children of of appellant. They had no previous enmity whatsoever against the appellant P. W. 6 Baboo Ram Dohrey also appears to be an independent witness. No doubt he has stated that he was sewing the clothes while sitting at the "Chabutra" of Raja Ram yet his close relation, if any with Raja Ram would not have persuaded him to falsely implicate and depose against the appellant because after all Raja Ram was also the real brother of the appellant, as already observed, there was no previous enmity between the brothers. We are of the view that had this incident not taken place, there was no question for these witnesses to falsely implicate and depose against the appellant.

Learned counsel for the appellant has argued before us that, Mathura Prasad, i. e. father of the appellant, Roop Lal, and Raja Ram, had a licensed gun, that while Roop Lal was cleaning the gun, it accidentally got fired as a result of which Km. Guddi and Sadhna sustained injuries. The said suggestion given by the defence does not appear to be either convincing or ressonable. We are of the view that had the gun been accidentally fired by Roop Lal, then it does not stand to reason that he would have thought of fabricating a murder case against his own brother, against whom he had no previous litigation or enmity. The only thing which the appellant could say in this regard was that although his father had divided agricultural land among the brothers but because he had made the land alloted to him more fertile and he was not prepared to exchange the same land with his brothers, hence they got him falsely implicated in this case. Roop Lal P. W. 1 has deposed that the said division of property had taken place about 2025 years ago. In our view if the division of property had taken place as early as two decades ago, the suggestion of the appellant that till now his brothers were harbouring any enmity with respect to the same, does not appear to be true. Then Mathura Prasad, i.e. father of the appellant, is still alive. In case there had been any substance in the aforesaid plea made by the defence, then he would have atleast come forward to depose about it. Not to say of the same the defence went a step forward and gave a suggestion, during the crossexamination of P. W. 1 Roop Lal, the Mathura Prasad, who had retired as a teacher, since long, used to go even upto Kannuaj to teach the children of Sri S. N. Singh I. O., meaning thereby that he might have influenced the investigation of this case against the appellant. In our view it is difficult to imagine that a father would go all the way to influence the investigation against his own son even when the case against him was fabricated by others.

Learned counsel for the appellant has also urged before us that when at the tubewell the appellant was bare banded, the aforesaid these young lads would not have allowed themselves firstly to be abused and then to be chased by the appellant. In our view the said argument looses its force when it is taken into consideration that the appellant was not a stranger to those boys but was their real uncle living in their neighbourhood. When P. W. 3 Arvind was confronted with the said matter in his crossexamination he gave an explanation that they did not beat the appellant because he was elder. We find the said explanation quit satisfactory.

Learned counsel for the appellant has further urged before us that in the f. I. R. there was no mention of any injury having been sustained by Km. Saahna. It appears that when after this incident P. W. 1 Roop Lal found that his daughter Km. Guddi had succumbed to the injury, he, after getting the report of the incident written, immediately went to the Police Station, alongwith the deadbody. He did not at that time see that Km. Sadhna as well had suffered any injury. He has, therefore, stated in his evidence that it was only later on that he came to know that Km. Sadhna had also been injured by a pellet. It may not be out of place to state here that in his statement recorded under Section 303, Cr. P. C, the appellant stated that from the shot accidentally fired from the gun, both Km. Guddi and Sadhna had sustained injuires. therefore, it is not denied that Km Sadhna had also been hit by the pellet. The case of the prosecution or the evidence of P. W. 1 Roop Lal informant is not belied if in the aforesaid context he did not refer to the injury of Km. Sadhna in the F. I. R.

Learned counsel for the appellant has also referred to us the evidence of P. W. 1 Roop Lal where he stated that Km. Guddi was in the left lap of Km. Meera, that at the time when the firing was done, the face of Km. Meera was towards west and that the face of Km. Guddi was towards southwest and on basis of the said statement a rgued that in the said position Km. Guddi would not have sustained the fire arm injury on the left side of her head. In our opinion the said argument is misconceived because it was difficult to visualise that Km. Meera or Km. Guddi would have stood at that time, when the firing was being made, like a statute. This position was got cleared by the defence itself during the crossexamination of P. W. 5 Km. Meera, who stated that her cousin brother had at the time of the incident advised her to run away and that when she took a turn, the fire arm injury was sustained. She further stated that when the fire arm injury was sustained, her face and the face of Km. Guddi were towards north. In our opinion Km. Guddi would have sustained the fire arm injury on the left side of her body in that position.

Learned counsel for the appellant has also urged before us that the gun shot injury of Km. Guddi was not such as would have been sustained by her on the roof from a assailant standing on the ground. In our view the said argument is also without merit because there is nothing in the post mortem examination report or the evidence of Dr. Shabbir Husain P. W. 4, who conducted the post mortem examination of the deadbody of Km. Guddi, that the aforesaid injury to Km Guddi could not have been caused from a shot fired from the ground. It is needless to emphasis that the testimony of eye witness is preferable unless the medical evidence completely rules out the eye witness version. In this case we do not find anything given by the eye witnesses.

Learned counsel for the appellant has also urged before us that in this case neither any empty cartridge nor a pellet was recovered from the place of occurrence and that this deficiency also makes the case of the prosecution doubtful. In our view the said argument is also without force. With regard to the empty cartridges P.W. 3 Arvind has deposed that the appellant took them away, and with regard to the pellet we are of the opinion that if the pellet flew away and the same, therefore, could not be traced, the case of the prosecution was not weakened in any way.

Learned counsel for the appellant also drew our attention to the fact that P.W. 5 Km. Meera and P. W. 6 Baboo Ram Dohrey had denied that the f. O. had recorded their statements. In our view if these two witnesses, who are residents of a village, without understanding the significance and importance of the statements which are recorded by the I. O., did not realise that meeting with the I. O. resulted in interrogation denied the same fact, the same cannot go so far to belie the version given by these witnesses in the court specially when it is not the case of the defence that there was any contradiction with regard to any material details of the incident between the statements made by them before the I. O. and in the trial court.

We are, thus of the opinion that it was the appellant and the appellant alone who had caused the fatal injury to Guddi and a simple injury by tire arm to Km. Sadhna.

Learned counsel for the appellant has further urged before us that even if the case of the prosecution was to be accepted that while standing on the �Ghoor" the appellant had fired towards the roof of the house of Raja Ram, the offence under Section 302, I.P.C. could not be made out against him because the said circumstance simply shows that he was firing towards the roof only to scare away the aforesaid three lads. In our view the said argument has no merit. We are of the opinion that the intention of the appellant to cause the death is borne out from the four circumstances, firstly, that the appellant at the tubewell not only entered into an altercation but also abused the aforesaid three, lads, secondly, that he had chased them upto their house, thirdly, that when the said three lads had gone in their house, the appellant wont to his own house and brought out a pistol and, fourthly, that standing near the house of Raja Ram he had fired not one, two or three but four shots one after another towards the roof where the said three boys had taken shelter. We are of the opinion that the only intention of the appellant was to cause the death because otherwise he would not have behaved in such a fashion.

Learned counsel for the appellant further urged before us that when the said three boys had taken cover by the said of "Chhappar" injuries to them would not have been caused in any manner. We find no force in the said argument because there was no ''mundair'' on the sides of the roof of the house of Raja Ram, and, therefore, the appellant went on firing shots one after one hoping that the said boys or any of them would be hit in some manner. Otherwise too, we are of the opinion that even if in place of said three boys Km. Guddi was fatelly injured, the offence of murder against the appellant was made out in view of Section 301,I. P. C. which lays down that a person would be guilty of culpable homicide by causing the death of a person other than the person whose death was intended.

Learned counsel for the appellant has also referred to us AIR 19b3 SC 652Sital Singh v. State of Punjab and has argued that because there was no premeditation in this case, it could possibly be a case under Section 304, I.P.C. and not under Section 302, I. P C. In our view the said argument has got no force and the said ruling does not apply to the instant case. In that case before the Supreme Court the victim had sustained the gun shot wound on his upper right thigh. In view of this matter and also in view of the matter that there was no premeditation, it was held that the said case was covered by Section 304, I.P.C. This is not the case here In this case Km. Guddi was hit on the vital part of her body, i e head. Besides, the appellant did not leave the boys even after they had entered their house. The appellant after giving them a chase went to his house, from where he brought out a pistol and then he had fired four shots one after another, till the result was achieved.

These facts bring out the case of the appellant under Section 302, I.P.C. imtead of Section 304,I. P. C.

In the result, therefore, we are of the opinion that the learned Sessions Judge has rightly convicted and sentenced the appellant both unoer Section 302, I. P. C. for causing the death of Km. Guddi and under Section 324, I. P. C. for causing injuries to Km. Sadhna. This appeal, therefore, has got no force and is liable to be dismissed.

Accordingly, this appeal is dismissed and the conviction and sentence of the appellant Sidh Nath under Sections 302 and 324, I. P. C. are upheld. He it, t D bail and he that be taken into custody forthwith so that he may serve out the sentence of life imprisonment under Section 302, I. P. C. and six months R. I under Section 324, I. P. C.