Agnesh Sharma vs State of U.P.

Virendra Saran, J.—Smt. Agnesh Sharma has preferred this appeal against the judgment and order dated 2351979 of the Additional Sessions Judge. Rae Bareli convicting and sentencing the appellant under Section 302/301/149, I.P.C. to imprisonment for life and under Section 147, I.P.C. to one year''s R.I.

The prosecution case is that the appellant was married to Sitaram Sharma. Sitaram Sharma used to reside at Lucknow where he owned a licensed wine shop and visited his wife once a week. Sitaram Sharma was a Hindu. The appellant was a Catholic Christian, but she married Sitaram Sharma who was a Hindu. P.W 1 Anil Singh is son of John Singh. P.W. 2 Rita Singh and Nita Singh are sisters of Anil Singh. David Singh alias Nandu Singh and Aftab Singh are their brothers. They all are Christians. Ftila Singh and Nandu Singh were Catholics whereas the other members of the family were Protestants. The entire family lived in Mohalla Bahrana which lies to the north of the railway station Rae Bareli. P.W. 1 Anil Singh was running a general merchandise shop in Gur Mandi, which is 3 or 4 furlongs away from their house. Deceased Hari Krishna Mehrotra was having business dealings of supplying Modern breads to Anil Singh P.W. 4 Anoop Trivedi had a tea shop in the neighborhood only about 40 paces from Anil Singh''s shop.

As mentioned earlier, appellant Agnesh Sharma alias Munni, who was a Catholic got married to Sitaram Sharma, a Hindu. The prosecution case is that the appellant lived in a rented room of Mucidu Miyan in Baniyan Tola Khatkana. There is a Catholic Church in Mohalla Chhajlapur, Rae Bareli with a residential building within the Church campus with''some of the rooms on the first floor which were occupied by Father A. D''souza.

On 2741975, a Sunday, P.W. 3 Rita Singh had gone to the Church along with her sister Nita Singh and brother David Singh for prayers. The appellant also joined the prayers. After offering prayers, the appellant was going up to the room of Father A. D''souza through the staircase. Since the appellant was a fat lady, P.W. 3 Rita Singh taunted "look how the fat buffalo is going up". The remark hurt the appellant. The same evening, there was a farewell party of one brother Edward Govicous in the church joined by Rita Singh, Nita Singh, Nandu David, appellant Agnesh Sharma and several others. In the party there was and altercation between Rita Singh and the appellant on account of Rita Singh calling the appellant a fat buffalo. The brothers and sister of Rita Singh also joined the quarrel and it is alleged that the appellant slapped Nandu David resulting in a scuffle. Marpeet between accused on one hand and Nandu and his sisters ensued. Father A. D''souza, Newton and other persons intervened and pacified them. Information about the incident was conveyed to informant Anil Singh later on. The prosecution case further is that on the fateful evening i.e. 1051975 at about 5.45 p.m. when informant Anil Singh was at his shop, the accused arrived on two rickshaws. They included the appellant, her husband Sitaram, Sharma and four unknown persons. Siiaram Sharma started abusing Anil Singh and challenged him saying how he dared to say that he would throw acid on the face of his wife (appellant)). In spite of the informant denying the allegation, Sitaram Sharma continued to abuse him. Not only this, Sitaram Sharma whipped out a pistol and pointed it towards the informant. On the arrival of the neighbourers, no untoward happening could take place and the accused went away. At about 6 p.m. informant''s father also arrived at the shop and was tcld about the incident. The informant''s father told that his sisters were also coming to the shop. As the family members of the informant used to pass through the lane running in front of the house of Maddu Miyan, the father of the informant insisted that the informant should look after his sisters lest they may be molested or illtreated by the mischief mongers. At that very time his friend Hari Krishna Mehrotra (deceased) happened to arrive at the shop. The informant in the company of Hari Krishna Mehrotra, Anoop Trivedi proceeded towards the house of appellant (Agnesh Sharma). When the informant and his companions reached in front of the house of Muddu Miyan they found the appellant, her husband Sitaram Sharma and their four unknown associates present there. On seeing the informant, the appellant and her husband Sitaram Sharma started abusing and the unknown associates surrounded them. The abuses attracted Muddu Miyan, his son Ayajuddin and other relatives i.e. Imran Husain etc., who tried to pacify Sitaram Sharma and his associates, but in vain. Appellant Smt. Agnesh Sharma remarked that sweepers of yesterday have become respectable Christians of today and they are daring to throw acid on her face. During the course of the altercation, the appellant enquired from her husband and the other associates as to why they were waiting and asked them to silence him forever. The unknown associates then signaled Sitaram Sharma who whipped out a pistol from the pocket of his pants and fired at Anil Singh. Anil Singh sat down and the shot hit Hari Krishna Mehrolra. Thereafter all the accused escaped.

Anil Singh left the deadbody in the care of Anoop Trivedi and Muddu Miyan. He first went to his shop and after informing his father proceeded to P. S. Kotwali which was only 3 furlongs away from the spot and dictated the F.I.R. to clerkconstable Ram Pal Misra who prepared chik report Ext. Ka1 and registered the case at 7.10 p.m. Investigation was taken up by P.W. 7 Inspector Sukhpal Singh who reached the spot. The family members of the deceased insisted that the body be sent to the hospital hoping that the deceased might be still alive and hence P.W. 7 carried the dead body to the District Hospital where the doctor examined the deceased at 8.25 p.m., but declared him dead. The body was thereafter sent to the mortury. The Investigating Officer recovered bloodstained and plain earth from the place of the incident and he also found an empty cartridge (Ex. 1) lying at the spot and he took the same in his possession vide recovery memo (Ext. Ka7). The investigating officer thereafter searched the room of the appellant, but no incriminating article was found.

On the next morning i.e. on 1151975, the investigating officer went to the mortuary and prepared inquest report (Ext. Ka 9), photolash (Ext. Ka10). Under the instructions of the investigating officer, SubInspector Basant Kumar Mishra prepared challanlash (Ext. Ka11) and the body was sealed and sent for postmortem to the District Hospital, Rae Bareli where the post mortem examination was conducted by P.W. 5 Dr. N.N. Bhatnagar at 9.30a.m.

P.W. 5 Dr. N.N. Bhatnagar found the following injuries on the person of the deceased:

"Gunshot wound with lacerated black marginsl/2" x 3/10" on the external aspect of the neck in the middle, 1 1/2" below the adam''s apple directing downwards towards left. Margins tattooed all around in an area of one inch."

Death was due to shock and haemorrhage as a result of the injury.

After completion of investigation, a chargesheet was filed .against the appellant. The appellant and her husband Sitaram Sharma surrendered in Court at Lucknow on 261975 and were thereafter transferred to Rae Bareli jail. In due course, the case was committed to the Court of Session. Sitararn Sharma was released on short bail and thereafter he absconded and hence only appellant Smt. Agnesh Sharma remained there to face trial.

At the trial, the appellant denied the charge. She accepted that she was married to Sitaram Sharma and her nick name was Munni. She also admitted that on every Sunday prayers were offered in Chhajlapur Church where Father D''sou''za was the priest and she also used to attend the prayers. She admitted that she was residing in Muhalla Baniyan Tola as a tenant but denied that Muddu Miyan was her landlord. She admitted that on 2741975 Rita Singh, David Singh and Nita Singh had gone to the church and she had also gone there, but she denied the prosecution allegation that she was taunted as a fat buffalo by Rita Singh. The appellant admitted that a farewel party of Brother Edward Govicous was arranged in Chhajlapur church in which Rita Singh, Nita Singh, David Singh and she along with her mother had participated. She denied that there was any altercation between her and Rita Singh or that she slapped David Singh. She further denied the prosecution case regarding the incident which resulted in the murder of Hari Krishna Mehrotra and pleaded alibi stating that she was at Lucknow at the time of the incident. Her defence was that she had incurred the displeasure of the Christian community by marrying herself to a Hindu and attributed her false implication due to above reason. She further stated that she had supported the landlord in a litigation against Muddu Miyan.

In support of its case, the prosecution examined P.W. 1 Anil Singh, P.W. 2 Mohiuddin Ahmad alias Muddu Miyan, P.W. 4 Anoop Kumar Trivedi as eyewitnesses. P.W. 3 Rita Singh has been examined to prove the motive part. P.W. 5 Dr. N.N. Bhatnagar conducted the postmortem examination. P.W. 6, S.I. Ram Pal Misra was the clerkconstable who took down the F.I.R. and P.W. 7 Inspected Sukh Pal Singh had investigated the case. C. W. 1 Imran Khan, who was also named'' as an eyewitness in the F.I.R. was examined as Courtwitness. He did not support the prosecution case and denied having seen the incident. In defence, the appellant D. W. 1 examined Bawara D''souza as D. W. 1 was a young girl and she stated that she used to visit the Catholic church on every Sunday and attended the farewell party at the Church. She further stated that she was also present in the morning prayer, but no altercation had taken place between the appellant and Rita Singh on either of the occasions.

The learned Sessions Judge believed the prosecution case and has convicted the appellant as mentioned above. The appellant has now come up in appeal to this Court.

We have heard Counsel for the appellant and the learned State Counsel and have perused the evidence on record.

It is own case of the prosecution that there was no previous enmity between the parties and the incident was the outcome of another incident of 2741975 in which P.W. 3 Rita Singh had taunted the appellant as a fat buffallo. According to the case of the prosecution on 1051975 all the accused had gone to the shop of P.W. 1 Anil Singh in two Rickshaws and one of them ; Sitaram Sharma hurled abuses at Anil Singh as to how Anil Singh dared to say that he would throw acid on the face of his wife. The prosecution case further is that Sitaram Sharma whipped out a pistol, but he did not fire and the accused returned on the intervention of people who had gathered there. Once again, it is own case of the prosecution that thereafter Anil Singh in the company of deceased Hari Krishna Mehrotra and Anoop Kumar Trivedi had gone to the house of the appellant and there the present incident took place. The prosecution has tried to explain the going of Anil Singh and his companions to the house of the appellant by saying that Anil Singh was informed by his father that his sisters were about to pass that very way. However, P.W. 3 Rita Singh, sister of Anil Singh, stated that she did not go on the way from near the house "f the appellant on the date of the incident. The circumstances of the case go to show that after the incident at the shop of Anil Sigh, Anil Singh had collected his own men including deceased Hari Krishna Mehrotra and Anoop Kumar Trivedi and had gone to the house of the appellant and had picked up quarrel there resulting in the shooting of Hari Krishna Mehrotra. If the accused had intended to kill P.W. Anil Singh, the murder could have been accomplished at the shop of Anil Singh itself as it would not have taken much time to fire a shot with a pistol, but it is hot the case. Even at the house of the appellant, there was a wordy quarrel lasting about 810 minutes. P.W. 2 Anil Singh has categorically stated that the firing was preceeded by a wordy quarrel at the house of the appellant for about 810 minutes. If the accused has assembled there with the avowed object of committing murder of Anil Singh, they would not let 810 minutes to pass in a wordy quarrel. All this goes to show that the accused had not preplanned any murder, but on the other, Anil Singh and his companions had gone to the house of the appellant and invited trouble. Even though Anil Singh had denied that he, deceased Hari Krishna Mehrotra and P.W. 4 Anoop Kumar Trivedi belonged to one gang, which was indulging in Marpeet with people, it does appear that Anil Singh was not so simple a man and he had been flexing muscles. He has admitted in his cross examination that in 1973 a report was lodged against him and his father for beating a Mohammaden and he has further admitted that he was facing prosecution for beating up one Asish Kumar of his Mohalla. He has further admitted that proceedings under Section 107/116, Cr. P.C. were going on between him and Mausi. In our opinion, the prosecution evidence that Anil Singh and his companions had gone to the house of the appellant for an innocent purpose of seeing that no problem arises to his sisters who were about to pass from the way in front of the house of the appellant has to be taken with a pinch of salt. According to the prosecution case, deceased Hari Krishna Mehrotra was having only business terms with Anil Singh, but the circumstances emerging from the evidence show that he, Anil Singh and Anoop Kumar Trivedi were quite intimate to each other and feeling offended with the accused quarreling with Anil Singh at his shop, they themselves went to the house of the appellant in a group to pick up a quarrel. P.W. Anoop Kumar Trivedi has admitted in reply to a Court question that he was friend of Anil Singh and he was friend of Hari Krishna Mehrotra for the last 78years.

Thus, the evidence show that firing was done in a quarrel which ensued between Anil Singh and his companions on the one hand and the accused on the other hand. Since accused Sitaram Sharma is not before this Court, we are not going into the question whether the had fired the shot. So far as the appellant is concerned, she has not been assigned he role of firing and the allegation against her is that she exhorted the other accused and in turn the other accused made a gesture to Sitaram Sharma to fire to silence Anil Singh for ever. However, we are not impressed by the prosecution evidence on this score. Since the unfortunate incident had its moorings with the earlier incident in which the appellant had been taunted as a fat buffalo, it was quite natural to drag her also in the incident by making this sort of an embellishment. We have already expressed our doubts regarding the reason of the presence of Anil Singh and his companions at the house of the appellant. Since Anil Singh and his companions had themselves gone to the house of the appellant to pick up a quarrel, it is not a case of formation of unlawful assembly by the accused and the shooting was also not in pursuance of any unlawful common object of the accused. In a case of this nature, it is very easy to put some words in the mouth of the appellant to implicate her in the crime, but we are not prepared to accept this part of the prosecution case. That being so, the appellant cannot be held to be vicariously liable and her conviction cannot be sustained.

Accordingly this appeal is allowed. The conviction and sentence of the appellant under Section 302/301/149, I.P.C. and Section 147, I.P.C. are set aside. The appellant is on bail. She need not surrender. Her bail bonds are discharged.