Surendra Singh vs State of U.P.

Vijay Kumar Verma, J.—The Appellant-accused Surendra Singh has been convicted and sentenced alongwith co-accused Ajai Pal Singh, Gajendra Singh and Pappu Maharaj alias Vijai Kant to undergo imprisonment for life and to pay a fine of Rs. 10,000 with default stipulation u/s 302 read with Section 34, Indian Penal Code (in short ''the I.P.C.''), and ten years'' rigorous imprisonment and to pay a fine of Rs. 5,000 u/s 307 read with Section 34, I.P.C. by the judgment and order dated 29.7.2008, passed by Sessions Judge, Jalaun at Orai, in S. T. No. 164 of 2006 and connected S.T. No. 165 of 2006. He has challenged his conviction and sentence by means of this appeal and also has made prayer for bail pending appeal.

Jagat Singh (P.W. 1) had lodged an F.I.R. on 25.3.2006 at 2 p.m. at P. S. Kotwali, Kalpi, district Jalaun, where a case u/s 302/307, I.P.C. was registered at Crime No. 198/06 against Surendra Singh (Appellant herein), Ajai Pal Singh, Gajendra Singh and Pappu Maharaj, all residents of village Sarsala situated under the jurisdiction of P.S. Kalpi (Jalaun). Shorn of unnecessary details, the allegations made in the F.I.R., in brief, are that on 25.3.2006 at about 11 a.m. Mangal Singh, brother of the complainant and his nephew Ravindra Singh (P.W. 2) as well as Ram Mohan Singh were going to their khalihan and when they reached in front of the ghera of Surendra Singh, the accused Surendra Singh having his licenced revolver, Ajai Pal Singh armed with licenced rifle, Gajendra Singh having licenced gun of Surendra Singh and Pappu Maharaj armed with country made pistol (katta) came out from the ghera of Surendra Singh and they all fired indiscriminately towards Mangal Singh and his companions, due to which Mangal Singh and Ravindra Singh sustained injuries. As a result of those injuries, Mangal Singh died.

We have heard Sri Subhash Chandra Maheswari senior advocate and Sri S. P. Tiwari advocate appearing for the Appellant, learned A.G.A. for the State and Sri S. S. Rathore advocate appearing for the complainant on the prayer of bail and perused the trial court record including impugned judgment carefully.

A number of arguments touching the merit of case were made by the senior advocate Sri Subhash Chandra Maheshwari in support of the prayer for bail, but his main contention was that the Appellant Surendra Singh did not cause any injury either to the deceased or injured Ravindra Singh and hence on this ground, the Appellant deserves bail. For this submission our attention was drawn towards paper No. 9Ka-2, available in trial court record, in which the statement of injured Ravindra Singh is recorded. Placing reliance on the statement of injured Ravindra Singh recorded by Dr. P. C. Saxena on 25.3.2006 at the time of his admission in Sahara Hospital, Gwalior (M. P.), it was submitted by Sri Maheswari that according to this statement although presence of the accused Surendra Singh at the time of incident has been asserted by the injured Ravindra Singh, but the role of firing has not been assigned to him and according to that statement the shot fired by Ajai Pal Singh is said to have hit the injured, whereas the shot fired by Pappu is said to have hit the uncle of the injured (deceased Mangal Singh). The contention of Shri Maheswari was that merely because the Appellant Surendra Singh is said to be present alongwith other accused persons at the time of incident, he should not be denied the liberty to remain on bail, because the Appellant did not cause any injury either to the deceased Mangal Singh or injured Ravindra Singh.

Next submission made by the learned Counsel for the Appellant was that according to the findings recorded by the learned trial Judge in the impugned judgment, the sole firearm injury to the deceased Mangal Singh was caused by the co-accused-Ajai Pal Singh by .315 bore rifle, whereas according to the statement of injured Ravindra Singh, who is prime witness of this case, the Appellant Surendra Singh is said to be armed with his licenced pistol of .22 bore. It was further submitted by Sri Maheswari that as per injury report Ext. Ka-2, the injured Ravindra Singh had sustained only one firearm wound size 0.5 cm., diameter circular in shape with corresponding exit wound, size 2 cm. x 1 cm. x depth oval in shape, which is not possible to be caused by .22 bore pistol. It was also submitted in this context that the Appellant Surendra Singh was arrested on the day of incident at 10.05 p.m. alongwith his licenced pistol of .22 bore bearing No. 91310 as per recovery memo Ext. Ka-19. The said pistol was sent for ballistic examination to the Forensic Science Laboratory, Uttar Pradesh, Agra alongwith two empty cartridges of .22 bore, which are said to have been recovered from the place of incident by the Investigating Officer at the time of spot inspection, but according to the Ballistic Expert report (paper No. 74A/1 in trial court record), the recovered empty cartridges of .22 bore were not fired from licenced pistol No. 91310 and hence on this ground also the Appellant Surendra Singh deserve bail, because according to the Ballistic Expert report, the licenced pistol of the Appellant was not used in the incident.

The learned Counsel for the complainant and learned A.G.A. vehemently opposed the prayer of bail of the Appellant contending that the injuries to the deceased and injured Ravindra Singh were caused by the accused persons in furtherance of their common intention and hence with the aid of Section 34, I.P.C., the Appellant Surendra Singh is also equally liable for committing the murder of Mangal Singh and making attempt to commit the murder of Ravindra Singh and hence in this heinous crime of day light murder, bail should not be granted to the Appellant Surendra Singh, who had strong motive to commit the murder of deceased Mangal Singh, as there was enmity of election of Block Pramukh, in which the deceased had contested election against the wife of Appellant Surendra Singh prior to this incident. It was also submitted by the learned Counsel for the complainant that when bail to the Appellant and other accused was granted during trial, an SLP was filed by the complainant before the Hon''ble Supreme Court, which was admitted and notices were issued to the accused persons including the Appellant Surendra Singh, but since in the meantime, all the accused persons were convicted by the impugned judgment, hence no order in that case was passed by the Hon''ble Supreme Court and hence on this ground also the Appellant should not be granted bail. It was also submitted by the learned Counsel for the complainant that including the Appellant Surendra Singh, all the accused persons had actively participated in the incident by firing shots from their respective weapons and hence the Appellant Surendra Singh cannot be granted bail merely because the shot fired by him did not hit the deceased or injured Ravindra Singh, because if any criminal act is done in furtherance of the common intention, then by virtue of Section 34, I.P.C. all the persons sharing common intention are liable for the act done by one or more persons and overt act by all the accused is not the requirement of law to attract Section 34, I.P.C. Regarding the statement of injured Ravindra Singh recorded by the Doctor in Sahara Hospital, Gwalior on paper No. 9Ka-2, it was vehemently contended by Sri Rathore, learned Counsel for the complainant, that this statement is not admissible in evidence, as maker of this statement is alive.

Having given our thoughtful consideration to the rival submissions made by the learned Counsel for the parties and keeping in view all the facts and circumstances of the case, we are of the opinion that the Appellant Surendra Singh may be admitted to bail. We entirely agree with the contention of Sri S. S. Rathore, learned Counsel for the complainant and A.G.A. that overt act by all the accused persons is not the requirement of law for applicability of Section 34, I.P.C. and if any authority is required for this well-settled proposition of law, it may be seen in the recent judgment of Division Bench of this Court in the case of Ram Naresh and Ors. v. State of U. P. (63) 2008 ACC 402: 2007 (3) ACR 2947, in which one of us (Vijay Kumar Verma, J.) was member. Numerous judgments of the Hon''ble Apex Court have been cited in the said ruling on this subject. In view of the law laid down by this Court in the aforesaid judgment and by the Hon''ble Apex Court in a catena of decisions, although we find force in the contention of Sri Rathore that overt act by all the accused persons is not essential to attract Section 34, I.P.C. and if any criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as it were done by him alone, but in our considered opinion, applying this principle of law bail should not be refused, if otherwise a case for granting bail is made out. Therefore, on the basis of aforesaid principle of criminal jurisprudence, bail should not be refused in present case to the Appellant Surendra Singh, because according to the first statement of star witness Ravindra Singh (injured), recorded in Sahara Hospital, Gwalior on 25.3.2006 at 11 p.m., the accused Surendra Singh did not fire in the incident. According to Dr. M. P. Baruwa (P.W. 12), the statement of Ravindra Singh was recorded in Sahara Hospital, Gwalior on 25.3.2006 by Dr. P. C. Saxena. The statement recorded on paper No. 9A/2 has been proved by P.W. 12, recognizing the handwriting of Dr. P. C. Saxena. In our opinion, the statement recorded on paper No. 9Ka-2 by Dr. P. C. Saxena on 25.3.2006 at the time of admission of injured Ravindra Singh in Sahara Hospital, Gwalior is admissible as his previous statement under Sections 145 and 157 of Indian Evidence Act. In his statement recorded in trial court as P. W. 2, the injured Ravindra Singh has admitted at page 13 of his statement that paper No. 9Ka-2 bears his signature. It is further admitted by this witness on the same page that doctor had recorded his statement. The following statement finds place in paper No. 9Ka-2:

After aforesaid statement, the injured Ravindra Singh has put his full signature in Hindi and below that signature the following separate statement is also recorded:

Below aforecited statement also, the injured Ravindra Singh has put his full signature in Hindi.

According to the post-mortem report Ext. Ka-3 and injury report Ext. Ka-2, the deceased Mangal Singh and injured Ravindra Singh had sustained one fire arm entry wound each with corresponding exit wound. According to Ballistic Expert report paper No. 74Ka-1, .22 bore empty cartridges, which were recovered on the place of incident at the time of spot inspection, were not fired from licenced .22 bore pistol bearing No. 91310 of the Appellant Surendra Singh. Although according to the first statement of injured Ravindra Singh recorded in Sahara Hospital, Gwalior on paper No. 9 Ka-2, the Appellant Surendra Singh also is said to have surrounded the deceased and injured at the time of incident, but the role of firing has been assigned to the accused Ajay Pal Singh and Pappu only. Therefore, having regard to all these facts, but without expressing any opinion on merit of the case, the Appellant Surendra Singh deserves bail during pendency of the appeal.

Let the Appellant Surendra Singh be released on bail in the above case during pendency of the appeal on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of trial court concerned and depositing the entire amount of fine prior to the release on bail.