Jagmer vs State of U.P.

Huluvadi G. Ramesh, J.—1. This criminal appeal has been preferred by the accused appellant Jagmer against the judgment and order dated 17.2.1982 passed by the learned 5th Addl. Sessions Judge, Muzaffarnagar in Sessions Trial No. 394 of 1980 (State v. Girwar (dead) & another), convicting the accused-appellant Jagmer under Section 302 IPC and has been sentenced to imprisonment for life.

The prosecution case in nutshell, as mentioned in the report lodged by Veer Sen, was that on 2.8.1980 he had come to the "Pukar Office" of the Truck Union and Mahak Singh and Shri Pal were also with him. At about 7:30 PM when Kanwar Pal, his brother, was sitting in the office (Pukar Office) on duty and was chatting with Surendra Singh (PW 2), inside the office, after finishing the last call, that very time Girwar (dead) alongwith his companion (Jagmer) came and both fired at Kunwar Pal, who died and a report was lodged at once at P.S. Shamli at 8:10 PM. S.I. D.S. Sirohi proceeded on the spot, prepared panchayatnama and the dead-body was sent for post mortem. Both the accused surrendered in the Court. Accused Jagmer was identified by the witnesses and hence charge sheet was submitted on 30.9.1980.

In support of the prosecution case, the prosecution examined Veer Sen (PW 1), Surendra Singh (PW2), Shri Pal (PW3) as witnesses of fact alongwith CP/278 Shiam Singh (PW 4), HC/90 Ram Bhagwan (PW 5), S.I. Dharmendra Singh Sirohi, I.O. (PW 6) Sri Bihari Lal, Special Executive Magistrate (PW 7), Dr. D.P. Arora, Medical Officer, Government Hospital, Muzaffarnagar (PW 8), who conducted the post mortem of the deceased, C/118 Satveer Singh (PW 9), C/63 Rishi Pal (PW 10) and H.C./190 Madan Pal as PW 11.

Veer Sen (PW 1) had stated that he and Kunwar Pal (deceased) were real brothers and he had shop of spare parts (Motor) in Shamli Market at a distance of about 150 yards from the office of the Truck Union, Shamli. His brother Kunwar Pal was agent in the Truck Union office, called "Pukar Office" and was on duty on 2.8.1980. After closing his shop, he came to the Truck Union Office, which was in his way, to take his brother Kunwar Pal, while going home. It is stated that three months back, a quarrel had taken place between Girwar (deceased) and Kunwar Pal in a Hotel at Muzaffarnagar in presence of Surendra Singh (PW 2) and from that day, Girwar was annoyed. Accused- appellants Girwar and his companion Jagmer reached at the gate of office and Girwar fired at Kunwar Pal and thereafter accused-appellant Jagmer also followed firing with his pistol. Kunwar Pal died thereafter receiving the bullet injuries. Before they could rush beyond two steps, the assailants Girwar (dead) and his companion went away towards the Railway Station, threatening that none should follow, firing in the air. Thereafter, he went to PS Shamli and lodged a report (Ext. ka 1), thereafter the police came and prepared the panchayatnama. This witness further stated that he saw the assailants from a distance of about 3'' to 4'' for the first time and saw the incident. He denied that he wanted share in the truck and there was internal dispute between him and Kunwar Pal.

Surendra Singh (PW 2), a truck driver, also supported the prosecution case. He stated that on the date of occurrence, he was sitting in the Truck Union office from 6:30 PM. The assailants were firing about 1''-2'' away from the threshold. He further stated that the moment the assailants started filing, he became bewildered and could not cry or shriek and he stood up and took shelter and did nothing. He further said that it was wrong to say that he was not there and he was deposing under the pressure of Veer Sen (PW1).

Shri Pal (PW 3), also a truck driver, deposed that at the time of the incident, inside the room, Kunwar Pal (deceased) and Surendra Singh (PW 2) were talking together. Before they could finish their tea, Girwar alongwith companion (Jagmer) (pointing out towards Jagmer) came at the gate of office at 7:30 PM, where they were sitting on the chabutara. Both the accused took out their pistols from their waist and began to fire on Kunwar Pal, who was sitting on the takhat, which was 6'' away from the gate. The first fire was made by Girwar. Kunwar Pal after receiving the first bullet, tried to save himself, but he received other bullets and died there. Thereafter both the accused ran away and could not be caught. Accused Jagmer was very well recognised in the light of the bulbs, that lay lit outside and inside the office. Thereafter Veer Sen (PW1) lodged the report and the police came.

Therefore, the witnesses of fact i.e. PW 1 and PW 3, say that at 7:30 PM, they were sitting at the Gate of the Union Office, "Pukar Office" and were taking tea when accused Girwar and Jagmer came and fired at Kunwar Pal, who died in the office and that there was light and that Surendra Singh (PW 2) was also there inside the office and that report was lodged at once and police came on the spot with no delay.

H.C./90 Ram Bhagwan (PW 5) and PW 4 C/278 Shiam Singh were also examined from the prosecution side.

Dr. D.P. Arora (PW 8) conducted the autopsy on the dead body of Kunwar Pal at 10:30 AM on 3.8.1980 at Muzaffarnagar, which was brought and identified by C/Shiam Singh (PW 4) and C/308 Harendra Singh. Kunwar Pal (deceased) was aged about 30 years in the opinion of the doctor. He found the following injuries on his person:--

"1. Gun shot wound of entry 1/4" x 1/4". No blackening, scorching or tattooing seen on the left side upto the part of left arm upper part with Gun shot wound of exit 1/2" x 1/2" on the right side upper part of scapular region, the margins are inverted at entry, while everted at exit (through & through).

Gun Shot wound of entry 1/4" x 1/4" no blackening, scorching or tattooing seen. It is through & through left arm lower part with Gun shot wound of exit 1/2" x 1/2" on the left side upper of forearm, the margins are do as mentioned above.

Gun shot wound of entry 1/4" x 1/4" with Gun Shot wound of exit 1/2" x 1/2" on the side of left ring finger with fracture of metacarpal proximal bone.

Gun shot wound (1) of entry 1/4" x 1/4" on the left side upper part of chest 1" above the nipple at 12.30 O''clock position. It has pierced the lung on left side, the upper & lower side and to the right side chest piercing to the right lung with Gun shot wound of exit on the right side lower part of abdomen.

Gun shot wound of entry 1/4" x 1/4" on left side lower part of chest, the margins are same as mentioned through & through on the right side lower part of abdomen.

Three Gun shot wound of entry 1/4" x 1/4", one of seven inch on the left side lower part and upper part of abdomen, 41/2" lateral form, mid-exillary lence with 3 Gun shot wounds of exit with no blackening margins are everted measuring 1/2" x 1/2" on the right side abdomen piercing through the lower lobe of liver and intestines."

On internal examination, the doctor found fracture of the 6th rib. The lower and middle lobe of the right lung and the upper and lower lobe of the left lung were punctured due to Gun shot wounds. Four ounces of semi-digested food were present in the stomach. According to the doctor, the death was caused due to shock and haemorrhage, caused by the gun shot wounds and that death occurred about half a day before 3.8.1980. So, according to him, the death occurred at the time of the occurrence, as margin of 1-2 hours was possible in counting the duration. According to Dr. Arora (PW 8), Kunwar Pal died due to Gun shot wounds that he received at the time of the occurrence.

Accused-appellant Jagmer was put for identification and during identification parade, he was identified by Veer Sen (PW1), Shri Pal (PW3), Surendra Singh (PW2) and also by one Jagveer Singh and no mistake was committed by them.

The investigation of the incident was conducted by S.O. Sri D.S. Sirohi (PW 6), the then S.O. Shamli, who after receiving the information, proceeded to the spot. He completed and prepared the panchayatnama (Ext. ka-4) in the office of the Truck Union. He sent the dead body of the deceased for post mortem alongwith photo-lash, challan-lash and letter to the Chief Medical Officer. The dead body was handed over in a sealed cover after completing the panchayatnama. From the spot, he collected used empty cartridges and four bulbs, one ring and prepared the fard. Plain and bloodstained earth were also collected in packets and prepared fard in presence of the witnesses. He searched the accused. The accused-appellant Jagmer surrendered in the court on 29.8.1980 in the Court of Chief Judicial Magistrate, Muzaffarnagar. After completing the investigation, the investigating officer submitted charge sheet against the accused-appellant Jagmer on 30.9.1980.

The accused-appellant Jagmer denied the prosecution case and stated that he had been falsely implicated in the offence due to enmity.

After hearing the parties, vide impugned judgment and order, the trial Court convicted and sentenced the accused appellant Jagmer, as above.

Against the said judgment and order, the present appeal has been preferred by the accused appellant Jagmer.

We have heard S/Sri Rajrshi Gupta and Dileep Kumar, learned counsel for the accused-appellant Jagmer and Sri Rajiv Sharma, learned Addl. Government Advocate for the State and have also gone through the entire record.

Learned counsel for the accused appellant have challenged the conviction and sentence of the accused appellant Jagmer on the grounds that the prosecution was not able to bring home the guilt of the appellant from the evidence, but the trial Court has illegally convicted and sentenced the accused-appellant. There are major contradictions in the statements of prosecution witnesses with the medical evidence. The medical version also does not support the prosecution story.

The questions arise for consideration are:

"(i) Whether the prosecution has been able to prove that the deceased-Kunwar Pal died homicidal death as a result of the injuries inflicted upon him during the fight ?

(ii) Whether the prosecution has been able to prove that the accused-Jagmer committed murder of the deceased-Kunwar Pal beyond reasonable doubt and the Trial court was justified in convicting him for such offence ?

(iii) Whether the trial court was justified in convicting accused-appellant suitably for the offences alleged to have been committed by them ?"

Firstly, we would like to take up the case for decision of first and second points.

The prosecution produced as many as eleven witnesses.

Out of eleven witnesses, P.W.-1, P.W.2, P.W.-3 and P.W.-8 are the main witnesses.

P.W.-1, Veer Sen, elder brother of the deceased, in his evidence has stated that he knew accused-Girwar, who was accompanying another accused, not known to him. On the date of the incident, while he was sitting outside the Truck Union''s office, the accused came and attacked the deceased, Kunwarpal, who was sitting with one Surendra, by firing bullet shots. He stated that the accused-Girwar fired bullet shot on the deceased and the other accused accompanying Girwar also fired gun shot. He stated that he identified accused-Girwar, in the light of the Bulb, but could not identified the other accused-Jagram. It has been further stated that the incident occurred due to quarrel between the deceased and the accused-Girwar and the deceased beaten accused Girwar. It is stated by P.W-1 that he seen Jagram first time on the date of the incident and thereafter on identification parade in Jail.

P.W-2, Surendra Singh, in his evidence, has stated that on 2nd August, 1980, when he was sitting with the deceased in the Truck Union Room, the accused persons-Girwar and Jagram came and fired bullet shots. Firstly, accused-Girwar fired gun shots on the deceased and thereafter, his companion, also fired gun shots on the deceased as a result of which the deceased fell down and even then the accused persons fired bullet shots on the deceased. Thereafter, both the accused ran away.

P.W-3, Shri Pal, in his evidence, has stated that when on the date of incident (2nd August, 1980) he was sitting out side the Truck Union Office, alongwith Veer Sen (P.W.-1) and one Mahak Singh on a Cot and taking tea at about 07:00 P.M., the accused-Girwar, alongwith his accomplice came and barged into the Truck Union''s office and started firing bullet shots on the deceased-Kunwar Pal and after few seconds his accomplice also started firing bullet shots on the deceased. He also stated that except on the date of incident and on identification parade, he never seen accused-Jagmer.

Dr. D.P. Arora (P.W.-8) in his report has mentioned that Kunwar Pal died due to the bullet-injuries, which he sustained as a result of the incident of bullets shots fired at him on the date of the occurrence of the incident. In the medical report, Dr. Arora has observed that the cause of the death was injuries caused by the bullet shots. He found eight gun shot wounds, which shows that eight bullet injuries were sustained by the deceased.

Learned counsel for the accused-appellant submits that if the prosecution story is to be believed, how it is possible that P.W.-2, who gave evidence that at the time of the incident, he was sitting with the deceased, remained unhurt by the gun shots. Therefore, it can be presumed that at the time of the incident he was not present and as such the prosecution story cannot be believed.

All the three main prosecution''s witnesses in their evidence have made similar statements. In the evidence of P.W.-1 (Veer Sen), stated that while he was sitting on a cot outside the office of the Truck Union, alongwith P.W.-3 (Sri Pal), the accused-Girwar, alongwith his accomplice-Jagmer, came and entered in the Truck Union office and firstly accused-Girwar bullet shots at deceased-Kunwar Pal, who was sitting in the Union Office with P.W.2 (Surendra) and thereafter accused-Jagmer also fired gun shots at the deceased. P.W-2 (Surendra), who was sitting with the deceased-Kunwar Pal, in the Union Office, when the incident took place, in his evidence corroborated evidence of P.W.-1. Likewise, P.W.-3, Sri Pal, who was sitting outside the Truck Union Office, in his evidence also made similar statement as has been made by P.W.-1 and P.W.-2 corroborating their evidence.

The evidence of P.W.-1, P.W-2 and P.W.-3 is further corroborated by the evidence given by Dr. D.P. Arora, Medical Officer, who examined the injuries sustained by the deceased-Kunwar Pal. In the medical report, Dr. Arora opined that the death has been caused by the gun shots fired at the deceased-Kunwar Pal. Therefore, the evidence given by P.W.-1 (Vir Sen), P.W.-2 (Surendra) and P.W. 3 (Sri Pal) stood corroborated from the medical report given by Dr. D.P. Arora (P.W.-8).

Learned Addl. Government Advocate has placed reliance on the decision in the case of Kripal Singh v. State of Haryana (, 1951 Cr.L.J. 1517) wherein the Punjab & Haryana High Court dismissed the appeal of the appellant and confirmed the death sentence of the appellant. The relevant portion in paragraph No. 13 is being quoted below:

"13. ...To constitute a premeditated killing it is necessary that the accused should have reflected with a view to determine whether he would kill or not; and that he should have determined to kill as the result of that reflection; that is to say, the killing should be a pre-determined killing upon consideration and not a sudden killing under the momentary excitement and impulse of passion upon provocation given at the time or so recently before as not to allow time for reflection. Premeditation may be established by direct or positive evidence or by circumstantial evidence. Evidence of premeditation can be furnished by former grudges or previous threats and expressions of ill-feelings; by acts of preparation to kill, such as procuring a deadly weapon or selecting a dangerous weapon in preference to one loss dangerous, and by the manner in which the killing was committed. For example, repeated shots, blows or other acts of violence are sufficient evidence of premeditation. Premeditation is not proved from the mere fact of a killing by the use of a deadly weapon but must be shown by the manner of the killing and the circumstances, under which it was done or from other facts in evidence."

In the present case, sequence of events of the incident of killing of deceased-Kunwar Pal clearly goes to show that the accused-persons Giriwar and Jagmer came to the Truck Union''s office and fired bullet shots incessantly on the person of the deceased with the intention only to kill the deceased. This act was not all of a sudden out of some provocation or momentary excitement, impulse of passion. The intention of the accused persons was to kill the deceased Kunwar Pal and therefore they came at the place of the incident carrying deadly weapons and fired bullet shots upon the person of the deceased Kunwar Pal. Thus, it can be safely inferred that the act of the accused persons was premeditated.

If the witness examined in the Court is otherwise reliable and trustworthy, facts sought to be proved by that witness, need not be further proved through other witnesses. The other witnesses could have been examined. Court can convict an accused on the statement of sole witness even if he is relative of the deceased. Non-examination of independent witness is not fatal.

Now we take up the case for determination of points No. 3rd.

From the discussions made herein above, it may be said that the trial Court did not commit any error or illegality in awarding the aforesaid conviction and sentence for life and therefore, sentence imposed on the accused appellant needs no interference.

Accordingly, the appeal filed by the appellant Jagmer is hereby dismissed and the judgment and order dated 17.2.1982 passed by the learned 5th Addl. Sessions Judge, Muzaffarnagar in Sessions Trial No. 394 of 1980 (State v. Girwar (dead) & another), convicting the accused-appellant Jagmer under Section 302 IPC and sentencing him imprisonment for life is affirmed. Since the appellant is on bail, the Chief Judicial Magistrate, Muzaffarnagar is directed to take the appellant into custody and send him to jail for serving out the sentence as awarded by the Court below.

The Office is directed to communicate this order to the C.J.M. concerned for compliance within a period of one month.