Bachcha alias Sidha Gopal vs State of U.P.

K.S. Rakhra, J.—These are two connected criminal appeals u/s 374(2), Cr. P.C. against the judgment and order dated 6.10.1983 passed by II Ird Additional Sessions Judge, Hamirpur in Sessions Trial No. 101 of 1980 whereby the Appellant Bachcha alias Sidha Gopal has been sentenced to life imprisonment for committing the offence u/s 302, I.P.C. and Appellants Panna Lal and Shyam Lal have been similarly sentenced to imprisonment for life for committing offence u/s 302 read with Section 34, I.P.C.

The incident relates to murder of Babu Lal son of Brij Lal resident of Pathanpura within circle of police station Rath district Hamirpur. The deceased was a goldsmith. The Appellant Bachcha alias Sidha Gopal and Panna Lal are sons of Appellant Shyam Lal. They are also goldsmith of same mohalla. It is said that about six months prior to this murder, the Appellant Panna Lal after consuming liquor hurled abuses on the wife of the deceased. The deceased had gone to the house of the Appellants in order to show his resentment and make a complaint. On the next morning the Appellants accompanied by Lok Nath went to the house of deceased with fire arm. Bachcha who was carrying a rifle had at that time given threat to eliminate the deceased and his younger son. In this connection a report Ex. Ka-11 was lodged by the deceased against the Appellant under Sections 323, 504 and 506, I.P.C. It was further alleged that in connection with business rivalry too, the relations between the deceased and the Appellants were strained.

According to the prosecution on 3.11.1979 at about 10 a.m. in mohalla Pathanpura of township Rath district Hamirpur the deceased and his son P.W. 3 Ramesh Chand were going on foot towards their shop to open it. Ramesh Chand was walking few paces ahead of the deceased. As soon as they reached near the consolidation office, the three Appellants came from behind. Bachcha was carrying a gun while Panna Lal and Shyam Lal were armed with lathi. Shyam Lal exhorted Bachcha by saying "MAARO SALE KO JANE NA PAWE". On this the Appellant Bachcha opened one after the other, two fires on the deceased Babu Lal who fell down to the ground and died. His son Ramesh Chand who has subsequently lodged F.I.R. Ex. Ka-12 ran way. He alongwith Baladin, Kachauri Lal, Mohan Dhimar, Murlidhar Sonar and Rameshwar (brother of deceased) had seen the occurrence. The report of the incident was lodged by Ramesh Chand P.W. 3 and was registered at Crime No. 177 u/s 302, I.P.C. of police station Rath. The investigation of the crime was originally taken over by Sri Kedar Nath Sharma P.W. 6 but it was subsequently taken over by Sri Kripal Kuril P.W. 12 with effect from 4.11.1979. The first Investigating Officer visited the place of occurrence, held inquest of the dead body found on the spot and after due formalities sent it for autopsy. He also prepared site plan and collected sample of blood stained and plain earth, shoes of the deceased and his clothes and prepared memo of the recovery. He also recorded the statements of first informant and of some other witnesses. He spent about 5 hours on the spot. The second Investigating Officer Sri Kripal Kuril recorded the statement of other witnesses on 4.11.1979 and also found that one Nand Kishore who was not named as eye-witness in the F.I.R. had also seen the occurrence and he recorded his statement too.

The prosecution further claimed that S. I. Sri Mohd. Rafat Kamal was also posted at police station Rath at that time. Though he was not the Investigating Officer yet he had also visited the place of occurrence alongwith two constables and the purpose of his visit has been to console the members of bereaved family and also to collect relevant information as to the whereabouts of the accused persons. In the course of this exercise he had visited the house of the deceased and met witnesses Murlidhar P.W. 4 and younger son of the deceased Santosh Kumar P.W. 8. He talked to them and then he made assessment of the things at the place of occurrence. It is claimed that he noticed an empty shell of cartridge lying in a drain. In the presence of the witnesses he collected the same and prepared memo Ex. Ka-2 thereof. This happened on 3.11.1979 itself. On 5.11.1979 S. I. Mohd. Rafat Kamal of P. S. Rath was at Hamirpur in connection with some other official business where he happened to meet constable Maharaj and Lallu of P. S. Rath who were there collecting clue of accused persons. After meeting them he also stayed at Hamirpur on 5.11.1979 and on 6.11.1979 on the basis of information collected, he arrested Appellant Bachcha alias Sidh Gopal from Ghat Pateshwar on the bank of river Jamuna at about 8 a.m. and recovered his licensed rifle and five live cartridges from him. Since this rifle was suspected to have been used in the commission of crime it was taken into possession. Accused Bachcha alias Sidha Gopal alongwith rifle and cartridges was brought to the police station Rath and recovered articles were deposited there while accused was lodged in the lock up.

Post mortem examination of the body of the deceased was performed on the same day, i.e., 3.11.1979 at 3.30 p.m. by Dr. A. K. Srivastava P.W. 5. In the opinion of the doctor the victim had died due to laceration of brain and cerebral haemorrhage and death had occurred about half a day ago, which corresponds to the time of occurrence as given by the prosecution. The Doctor also found following ante mortem injuries on the deceased :

Gun shot entry and exit wound 5.5 cm. x 3 cm. x muscle deep on top of left shoulder. Clots present ;

Gun short entry wound 1.2 cm. x 1.2 cm. x brain deep, on the inner end of upper eye lid of left side, clots present ; and

Gun shot exit wound 8.5 cm. x 6 cm. on the occipital region of skull. Brain matter had come out from the wound.

Clearly injury No. 1 was a composite injury caused by entry and exit of bullet from the same opening. Injury was on the shoulder and it appears that bullet after hitting the shoulder one reflected through the same passage. Injuries No. 2 and 3 were communicating to each other.

The Investigating Officer after collecting the autopsy report took notice of empty shell recovered by Mohd. Rafat Kamal. He prepared recovery memo and recorded the statements of the witnesses of recovery. He took notice of rifle and cartridges recovered from Bachcha on 6.11.1979. After completion of investigation charge-sheet was filed by the investigating agency against all the three Appellants.

In the course of investigation, the rifle and the live cartridges recovered from Bachcha on 6.11.1979 were sent to ballistic expert for report. In the opinion of ballistic expert, the shot of which empty cartridge was recovered from the drain on 3.11.1979 by S. I. Mohd. Rafat Kamal was fired from the rifle recovered from Bachcna on 6.11.1979.

Accused Appellants denied all the allegations against them and pleaded that they have been falsely implicated.

In order to prove its allegations the prosecution has examined 12 witnesses in all. No evidence was adduced by the accused in defence.

It may be mentioned here that Baladin named in the F.I.R. had expired after the incident and Rameshwar P.W. 1 who is the brother of deceased and Kachauri Lal P.W. 2 another witness named in the F.I.R. were declared hostile as they failed to support the prosecution version and denied that they had seen the occurrence. In this regard Ram Chand P.W. 3 who is the complainant has stated that there was some dispute between him and P.W. 1 Rameshwar in connection with a house and therefore, Rameshwar had colluded with the accused persons. He also stated that witness Kachauri Lal P.W. 2 and Mohan Dhimar named in the F.I.R. were reluctant to depose truth on account of fear of accused persons.

This leaves us with three eye-witnesses namely Ramesh Chand P.W. 3, Murlidhar P.W. 4 and Nand Kishore P.W. 7. As stated earlier Nand Kishore was not named in the F.I.R. but he is said to have been discovered subsequently. It may further be mentioned here that there is distant relationship between Murlidhar and Santosh Kumar. Wife of witness Santosh Kumar P.W. 8 is from Orai of district Jalaun and one Charan Das is maternal uncle of Murlidhar P.W. 4. Daughter of brother-in-law of Charan Das is married to Santosh Kumar P.W. 8. Further it is established from the record that Murlildhar P.W. 4 Nand Kishore P.W. 7 and his brother Krishna Kumar were together accused in a dacoity case. Nand Kishore P.W. 7 himself was an accused in another case u/s 302, I.P.C. In the light of above, we have to examine the testimony of Ramesh Chand P.W. 3, Murlidhar P.W. 4 and Nand Kishore P.W. 7. All these three witnesses have fully supported the prosecution version. Ramesh Chand P.W. 3 is the son of deceased and was accompanying him at the time of incident. He has stated that when first shot was fired by Bachcha on the deceased which struck on the left shoulder, the deceased took turn. This witness also immediately looked back and within his sight Bachcha opened second fire which struck in the left eye of the deceased. The witness has mentioned the names of Murlidhar and Nand Kishore too who had seen the occurrence and stated that victim died on the spot. He also stated that he went to his house which was at the distance of 4-5 furlongs, to inform his family members and then returned to the place of occurrence whereafter he prepared written report and gave it at the police station. He also stated about the motive for the commission of crime, within reference to incident about which N.C.R. Ex. Ka-11 was registered. His testimony with regard to date, time and place of occurrence as well as manner of assault is fully corroborated by the other two witnesses, as well as by the post mortem examination report and the report of chemical examiner with regard to blood stained and plain earth collected from the place of occurrence. The defence could not elicit any material thing which may render his testimony doubtful.

It was argued by learned Counsel for the Appellants that the key of the shop which was allegedly in possession of deceased was not recovered and therefore, it creates doubt as to whether he was going to the shop for opening the same. Learned Counsel further pointed out that this witness in the F.I.R. Ex. Ka-12 had described the weapon used in this case as a gun while in his deposition before the Court he corrected it by saying that it was rifle. We are of the opinion that both these are very insignificant points in the light of fact that there is direct ocular version by as many as three persons who had deposed in favour of the prosecution about the date, time and place of occurrence as well as manner of assault and author of shot fired at the victim.

Learned Counsel for the Appellants then drew attention of the Court to the fact that in autopsy report Ex. Ka-3 stomach was found containing semi-digested food and large intestine was found full and the bladder of the deceased was also found full. On the basis of this, learned Counsel tried to argue out that incident might have occurred some time in the night at some other place. This argument has absolutely no force because the eye-witnesses have not been given any suggestion that the incident had taken place at some other date, time and place.

The contents of intestine, stomach or bladder in our view mean that the victim had not eased by that time. Although many persons ease in the morning but there cannot be any presumption that every body goes to defecate or answer the call of nature in the morning. We are of the opinion that on the basis of the circumstances pointed out by the learned Counsel no inference can be drawn that the incident took place in the night at some other place. The Investigating Officer had also found bloodstained earth on the spot and the dead body was also found there and the post mortem examination report fully corroborates the prosecution story.

We further find that the statement of Ramesh Chandra P.W. 3 is fully corroborated by the statement of Murlidhar P.W. 4 and Nand Kishore P.W. 7. Murlidhar is resident of same mohalla and his presence on the spot is very natural. Nothing could be shown in his cross-examination as to why he would tell a lie in such a serious matter. It is true that this witness is distantly related to younger son of the deceased, but this relationship, in our opinion, is to a distant to motivate an ordinary person to depose falsely against some one in a murder trial. He and his father both are engaged in manufacturing of ornaments and were working with some other jeweller at the relevant time. As per his statement he was going to jeweller''s shop to deliver ''Payal'' which was prepared by him.

Similar is the position of Nand Kishore P.W. 7. His presence is also very probable. He is a member of "Chakbandi Samiti of Khera" and in that connection he had come to the consolidation office. His presence was, therefore, also probable although he is resident of Khera Silajeet of P. S. Jaria district Hamirpur. Though he was not named in the F.I.R. as a witness yet his presence on the spot has been confirmed by other witnesses. We are of the view that since he was resident of another place and F.I.R. was lodged promptly the omission of his name amongst the witnesses in the F.I.R. is ignorable.

After carefully going through the entire evidence we have no doubt in our mind and it is fully established from the testimony of Ramesh Chand P.W. 3, Murlidhar P.W. 4 and Nand Kishore P.W. 7 that Babu Lal was done to death on 3.11.1979 at about 10 a.m. in mohalla Pathanpura near Chakbandi Office within police station Rath district Hamirpur as alleged by the prosecution. We have also no doubt in our mind that deceased was fired at by Baccha alias Sidha Gopal with his rifle.

There is another set of evidence on which prosecution has placed reliance, in order to support ocular version. Recovery of an empty shell was made from a drain from the place of occurrence, in the presence of Santosh Kumar P.W. 8. This recovery has been made by S. I. Mohd. Rafat Kamal P.W. 11. The prosecution claimed that rifle and five live cartridges of Bachcha were also recovered by Mohd. Rafat Kamal on 6.11.1979 and this rifle alongwith empty shell recovered from the drain at the place of occurrence were sent to ballistic expert and the report of this expert is to the effect that the sell recovered from the drain at the place of occurrence, was fired from the licensed rifle of Bachcha. It is true that absolute reliance cannot be placed on such recovery of shell of the bullet because this recovery was made by Mohd. Rafat Kamal who was neither Investigating Officer nor was associated by any Investigating Officer with the investigation for assistance. The manner in which Mohd. Rafat Kamal is said to have gone to the place of occurrence and the manner in which he alongwith Santosh Kumar P.W. 8 and Murlidhar P.W. 4 proceeded to have an inspection of the place of occurrence and the manner in which he claimed to have recovered the empty shell of bullet from drain are unusual and raise suspicion. In addition to this, the report submitted by ballistic expert, Sri R. A. Pandey P.W. 10 is also not every satisfactory. He had test fired three cartridges in order to compare individual and general characteristic of the cartridges fired from the rifle of the accused. He admitted that he could not procure the bullet of .120 calibre and therefore, he used test bullet of different calibre for comparison. Although he has tried to justify his conclusion by saying that test conducted by him was sufficient to compare its characteristic yet we are of the opinion that use of different calibre of bullet for comparison test and drawing conclusion therefrom would not be wholly dependable. Keeping this circumstance in mind, in the light of manner in which S. I. Mohd. Rafat Kamal is said to have recovered empty bullet shell from the place of occurrence in presence of Santosh Kumar P.W. 8 and Murlidhar P.W. 4, makes the evidence on this point is not safe or dependable.

We therefore, agree with the argument of learned Counsel for the Appellants on the point but we also agree with the contention of the A.G.A. that even leaving apart the evidence relating to ballistic expert and recovery of empty shell., the ocular evidence given by the witnesses being wholly reliable is sufficient to prove the prosecution case against the accused person.

Learned Counsel for the Appellants referring to the post mortem report pointed out that the doctor had mentioned that rigor mortis was not present. We are unable to draw an adverse inference from this fact as desired by learned Counsel, i.e., that the incident had taken place in the night. The doctor had made it clear that rigor mortis had not set in fully and therefore, he had mentioned that it was not present. He made it clear that had the rigor mortis not started at all he must have mentioned that rigor mortis had not started.

Learned Counsel for the Appellant further submitted that F.I.R. is ante-timed. For this he mentioned the fact that "parcha" of case diary was sent to C.O. office on 24.11.1979/8.12.79 but we are of the view that this alone cannot be a ground for inferring that F.I.R. was ante-timed. It is significant to note that the dead body alongwith relevant papers was sent for autopsy on 3.11.1979 and the autopsy was performed on the same date at 3.30 p.m., i.e., within six hours of death. Therefore, there is absolutely no scope for the argument that F.I.R. is ante-timed. Further the F.I.R. was sent to Court under the orders of Circle Officer. It bears endorsement dated 5.11.1979. We therefore, do not find any substance in the argument that the F.I.R. was ante-timed.

Since the F.I.R. was prompt and the accused-Appellants were named in the F.I.R. with specific role attributed to them we, in absence of any material contradiction, come to the conclusion that on 3.11.1979 as alleged by the prosecution, near consolidation office in mohalla Pathanpura P. S. Rath district Hamirpur Bachcha had fired at the victim Babu Lal who died.

A question would however arise, whether for the act of Bachcha the other two accused Panna Lal and Shyam Lal can be held responsible vicariously. It is significant to note that so far as Panna Lal is concerned, absolutely no role, even of exhortation, was attributed to him. The motive for the commission of crime was an incident which took place six months ago in which Panna Lal hurled abuses on the wife of deceased and some quarrel had taken place. It was not such an incident which could prompt an ordinary prudent person to eliminate the aforesaid Babu Lal after six months. No immediate provocation had taken place nor was there any altercation or fight between the deceased and the accused persons at the time of incident. Both Panna Lal and Shyam Lal were armed with lathi but they did not use their lathi to cause any injury to the victim or to any body else. It is further to be noted that the Appellant had not ambushed the victim. It appears that they found the victim incidentally going towards his shop. None of the Appellants was carrying any illicit arm and the rifle used by Bachcha alias Sidha Gopal was supposed to be normally with him as he was licensed holder thereof.

In the circumstances of the case we are of the view that there was absolutely no common intention to cause death of Babu Lal. At the most Shyam Lal can be held guilty of exhorting Bachcha to cause hurt but there is absolutely nothing to hold Panna Lal responsible for the act of Bachcha Lal or Shyam Lal.

Panna Lal is therefore, liable to be acquitted. His appeal has to be allowed.

So far as Shyam Lal is concerned it appears that he had instigated Baccha alias Sidha Gopal only to belabour the victim. As mentioned earlier there was no immediate provocation nor there was any prior planning to commit the murder. The motive established in this case by the prosecution was also not sufficient to motivate Shyam Lal to instigate Bachcha for eliminating the victim. Irrespective of the words used by Shyam Lal for instigating Bachcha to attack Babu Lal, the fact remains that Shyam Lal himself did not open any attack on the victim although he was carrying a lathi. We are, therefore, of the opinion that Shyam Lal can be held guilt of instigating and abetment for belabouring Babu Lal. By virtue of Section 110 of the I.P.C. Shyam Lal would therefore, be liable to be punished only with such punishment as is provided for the offence which would have been committed if the act had been done with intention or knowledge of the abettor Shyam Lal, i.e., for the offence punishable u/s 323, I.P.C. It is true that the offence of abetment is a separate offence and no charge has been framed against Shyam Lal for the same but the abetment for causing hurt is a minor offence of the same class for which he was charged and no prejudice is likely to be caused to Shyam Lal for want of framing of appropriate charge. The appeal of Shyam Lal is liable to be partly allowed and his conviction u/s 302/34, I.P.C. and sentence passed therein are liable to be set aside and are set aside. He is, instead held guilty and convicted of the offence punishable u/s 109 read with Sections 110 and 323, I.P.C. and sentenced to rigorous imprisonment for a term of one year.

In the result, the appeal of Panna Lal (Criminal Appeal No. 2397 of 1983), is allowed and his conviction u/s 302/34, I.P.C. and sentence of life imprisonment are set aside. He is acquitted of all the charges.

Appeal of Shyam Lal (Criminal Appeal No. 2397 of 1983), is partly allowed. His conviction u/s 302/34, I.P.C. and sentence of life imprisonment passed thereon are set aside. Instead he is sentenced to one year''s rigorous imprisonment for the offence u/s 109 read with Sections 110 and 323, I.P.C.

Appeal of Bachcha alias Sidha Gopal (Criminal Appeal No. 2470 of 1983), is dismissed. His conviction u/s 302, I.P.C. and sentence of life imprisonment passed on him is hereby confirmed.

Let a copy of this judgment be certified to the trial court for information, compliance and execution.