Lulu @ Ram Pratap vs State of U.P.

Subhash Chandra Agarwal, J.

Aforesaid two criminal appeals have been filed against the judgment and order dated 27.7.1987 passed by the Sessions Judge, Banda in ST. No. 325 of 1986 whereby appellant Lulu @ Ram Pratap was convicted under sections 302 and 307, IPC and was sentenced to undergo imprisonment for life under section 302 IPC and R.I. for seven years under section 307 IPC Appellant Parson was convicted under sections 302/34 and 307/34, IPC and was sentenced to imprisonment for life under section 302/34 IPC and R.I. for seven years under section 307/34 IPC. Both the sentences awarded to the appellants were ordered to run concurrently.

The incident took place on 6.8.1986 at about 1 p.m. in village Darsedha, P.S Kamasin, Distt. Banda. The FIR (Ext. Ka1) was lodged by the complainant Ram Pratap (P.W,2) the same day at 4.15 p.m. The prosecution story as unfolded in the FIR is that on 6 8.1986 at 1 p.m. Nathu (P.W.3) was going to take bath in the river. In front of the house of Krishna Awtar, appellants caught hold of Nathu (P.W.3) and demanded Rs. 5,000/ from him. On call of Nathu, the complainant Ram Pratap (P.W.1) came there, scolded the appellants who got annoyed. The appellants went away to their house and came back with a gun and coaccused Gaya (brother of Lulu). On the exhortation of Parson and Gaya, appellant Lulu fired at the complainant with intention to kill which hit the complainant and his mother Smt. Ram Sakhia who suddenly came there. Smt. Ram Sakhia died on spot and P.W 2 suffered injuries. The incident was witnessed by Raju and Nathu (P.W. 3).

S.H.O. Sri Ram Autar Singh Yadav (P.W.4) commenced the investigation. He recorded the statement of complainant and sent him for medical examination. He reached the place of occurrence at 8 p.m. and interrogated the witnesses. Next day i.e. on 7.8.1986, he inspected the spot and prepared siteplan (Ext. Ka6). After inquest, the deadbody of deceased was sent for postmortem examination. Appellant Parson was arrested on 12.8.1986. Lulu and Gaya surrendered in the Court. After completing the investigation, the Investigating Officer (P.W.4) submitted the chargesheet (Ext. Ka13) against the appellants and coaccused Gaya.

Dr. Y.S. Sachan (P.W.5) examined the injured Ram Pratap (PW.2) on 7.8.1986 at 10.05 a.m. at P.H.C. Kamasin and found following injuries on his person:

A gun shot injury over anterio lateral position of the right upper limbs, there 12 pellets injuries spread over area of I web of hand to middle of right arm. Each pellet injury size 0.3 cm. x 0.3 cm. covered with clotted blood, 1st web dorsum one number pellet palpable supefficially anterior of forearm 10 each size is same, but depth is variable, one pellet is palpable at upper third of ulna of posterior side no pus. Margins inflamed, swelling over middle third 10 x 13 cm. of forearm present advised Xray right forearm, A.P. and lateral.

Multiple gun shot injuries on front of right thigh 11 in number from 6 cm. above the knee joint to 4 cm. below ingenial ligamant, each injury size 0.3 cm. x 0.3 cm. depth variable 5 pellets are surrounded and swelling 4 cm. x 3 cm. at middle anterior thigh one on medial upper part thigh 1.5 cm. x 1.5 cm. Wounds are covered with dotted blood, margins are inflamed, advised Xray.

A pellet injury 0.3 cm. x 0.3 cm, x 0.2 cm. with swelling on abdominal wall 13 cm. below right nipple covered with clotted blood, margins inflamed.

Four pellet injuries 0.3 cm. x 0.3 cm. x 0.1 cm. on the medial aspect of left thigh 24 cm. above knee joint line covered with clotted blood, margins inflamed.

A pellet injury 0.3 cm. x 0.3 cm. x 4.5 cm. on whole track inflamed 0.6 cm. x 4.5 cm. red pellet is palpable 4.5 cm. behind entry situated at 3 cm. below and 4 cm. behind the left anterior superior iliac spine.

A pellet injury 0.3 cm. x 0.3 cm. x 0.1 cm. 13 cm. below left nipple covered with clotted blood, margins inflamed.

A pellet injury 0.3 cm. x 0.3 cm. x 0.1 cm, 4 cm. behind the left side of noch from coricoid cartilage covered with clotted blood, margins inflamed.

In the opinion of Dr. Sachan, the nature of injuries was simple, duration about one day and the injuries were caused by firearm injury report is Ext. Ka14.

Autopsy on the deadbody of Smt. Ram Sakhia was performed on 8.8.1986 at 9 a.m. by Dr. ML. Verma, (P.W.I), in the opinion of Dr. Verma, the deceased was about 60 years of age and died about two days back. Rigour mortis had passed off from both extremities. Decomposition had started. The following antemortem injuries were found on the deadbody:

Multiple gun shot wounds of entry on right lateral aspect of chest, abdomen and upper l/3rd of right thigh in an area of 40 cm. x 26 cm. x chest and abdominal cavities deep each measuring 2x2 cm. x cavities deep. Underlying right pleura, right lung, small intestine, large intestine, right kidney were lacerated and congested. Direction was from right to left side. Pellets were found in Thoracic cavity, abdominal cavity and thigh.

Multiple gun shot wounds of entry on the extensor aspect of right forearm and right wrist each measuring.2 x.2 cm. x bone deep in an area of 20 x 8 cm. Direction was right to left side. Two pellets recovered.

About 100 ml semidigested food was found in the stomach. Both intestines were lacerated and contained faecal matter in the opinion of the doctor, trie death was caused as a result of shock and haemorrhage is a result of injury No. 1. Postmortem report is Ext. Ka1.

Learned Sessions Judge framed charge under sections 302 and 307 IPC against appellant Lulu @ Ram Pratap and under sections 302/34 and 307/34 IPC against appellant Parsan. The appellants denied the charge and claimed to be tried.

Prosecution examined five witnesses in support of its case. Ram Pratap (P.W.2) and Nathu (P.W.3) were examined as witnesses of fact. Dr. M.L. Verma (P.W.I) had performed the autopsy on the deadbody of deceased. Dr. Y.S. Sachan (P.W.4) has proved the injury report of Ram Pratap (P.W.2). Ram Autar Singh Yadav (P.W.4) is the Investigating Officer.

Appellants in their statements under section 313 Cr.P.C. denied the prosecution allegations and claimed that they had been falsely implicated due to enmity. They did not adduce any evidence in defence.

Relying upon the prosecution version and the evidence adduced on behalf of prosecution, learned Sessions Judge convicted and sentenced the appellants as aforesaid. However, coaccused Gaya was given the benefit of doubt and acquitted.

We have heard Sri Sunil Kumar Srivastava, learned amicuscuriae for appellant Lulu, Sri V.K. Sharma, learned Counsel for the appellant Parson, Sri R.K. Singh, learned AGA for the State and perused the Trial Court record.

Learned amicuscuriae appearing on behalf of appellant Lulu, has not challenged the finding of fact recorded by the learned Trial Judge. His submission is that the appellant Lulu had no intention or motive to cause death of Smt. Ram Sakhia who suddenly came in between the appellant Lulu and Ram Pratap (P.W.2). The occurrence took place in the course of sudden quarrel and in the heat of passion, a single fire was shot by Lulu at P.W. 2 without any intention to kill but simply to teach him a lesson but suddenly the deceased came in between them and sustained injury. It was submitted that under these circumstances, section 302 IPC has no application and the case falls within the forecorners of Part I of section 304 IPC.

Learned Counsel for the appellant Parson submitted that no overt role having been assigned to Parson and his case being at par with coaccused Gaya, he should have been acquitted by the Trial Court as there was no evidence of common intention on his part to kill the deceased or P.W.2.

In reply, learned AGA submitted that looking into the factual scenario and nature of injury inflicted to the deceased, the Trial Court was justified in recording conviction under sections 302 and 307 IPC.

We have considered the rival submissions of the learned Counsel for the parties.

We have examined the judgment of the Trial Court and find that the finding of fact recorded by the Sessions Judge is based on proper appreciation of evidence. Ram Pratap (P.W.2) is the injured witness and son of the deceased. He has stated that Lulu and Parson were demanding money from Nathu (P.W.3). When he intervened, appellants were annoyed and went away to the house of Lulu. Immediately thereafter, Lulu armed with a gun and accompanied by his brother Gaya and friend Parson came there and fired a single shot at him. His mother came in between, sustained injury and died. The statement of Ram Pratap (P.W.2) is corroborated by Nathu (P.W.3). Both these witnesses of fact were crossexamined at '' length, but nothing worthwhile could be elicited to impair their testimony. The statements of the eyewitnesses have been corroborated by the medical evidence and prompt FIR. Thus it has been established beyond doubt that, appellant Lulu fired a single shot towards the complainant causing injury to complainant and his mother Ram Sakhia who died on spot. Thus the finding of fact recorded by learned Sessions Judge regarding appellant Lulu @ Ram Pratap does not require any interference by this Court.

As regards appellant Parson, he did not participate in the killing of Smt. Ram Sakhia. His mere presence at the time and place of occurrence with coaccused Lulu who shot the deceased is not sufficient to find him guilty vicariously with the help of section 34 IPC, though he was present at the time when altercation took place with Ram Pratap (P.W.2). When Lulu came out of the house with a gun, Parson and Gaya remained on the chabutara in front of house of appellant Lulu and did not go any further as is evident from the site plan Ext Ka6 Ac

" cording to eyewitnesses (P.W.2 and P.W.3), Gaya and Parson exhorted the appellant Lulu to kill the informant but evidence relating to exhortation in respect of coaccused Gaya was not relied upon by the Trial Court and Gaya was given the benefit of doubt and was acquitted. The same evidence of exhortation cannot be relied upon in respect of appellant Parson. We are in agreement with the submission of learned Counsel for the appellant Parson that evidence relating to exhortation is a weak type of evidence and that there is no evidence to suggest that appellant Parson shared a common intention with coaccused Lulu to commit murder of deceased. He was not armed with any weapon and was empty handed. Thus charge under sections 302/34 and 307/34 IPC against Parson is not proved beyond reasonable doubt and he is entitled to be acquitted.

In the case of V. Sridhar v. State of Kerala, 1992 SCC Criminal 1952 where a sudden quarrel took place at home and appellant running after the deceased for about 181 feet, gave him fatal blow by stopping him on road, it was held by the Apex Court that under the facts and circumstances infliction of a single blow was the result of provocation, which the appellant got in the heat of passion upon the sudden quarrel, hence the appellant was guilty of culpable homicide, not amounting to murder and convicted the appellant under section 304 (1) I.P.C. and sentenced him to seven years R.I. with a fine of Rs. 2000/ and in default further R.I. of one year.

In another case of Gali Venkataiah v. Andhra Pradesh, 2008 (60) ACC 370 (SC) the accused and the deceased were brothers. There was sudden quarrel and the occurrence took place all of a sudden and the accused inflicted a stab wound by knife resulting in death. It was held by Hon''ble Supreme Court that the offence was covered under section 304, Part 1 I.P.C. and custodial sentence of 10 years R.I was awarded.

The deceased Smt. Ram Sakhia was the mother of the informant. Appellant Lulu had no intention to kill her or the informant. Before the shooting, there was altercation between appellants and Ram Pratap (P.W.2) Lulu wanted to teach him (P.W.2) a lesson for interfering in the.demand of money from Nathu (P.W.3). Lulu was enraged and went inside his house and brought out a gun and fired towards P.W.2. The deceased suddenly came in between and got hit. Unfortunately she died on spot. Injuries sustained by complainant were simple.

Obviously, the incident took place without premeditation in a sudden fight, in the heat of passion. In these circumstances, Exception 4 to section 300 IPC is attracted and the case is covered by Part I of section 304 IPC. Thus the conviction of appellant Lulu under sections 302 and 307 IPC cannot be sustained and is liable to be setaside.

Considering the factual background, we are of the view that the appropriate conviction would be under section 304, Part I and section 308 IPC instead of sections 302 and 307 IPC.

Regarding sentence, we cannot loose sight of the fact that appellant Lulu surrendered in Court on 11.8.1986 and is in jail since then. He has already spent a period of more than 23 years in jail. This period spent by him in jail is sufficient to meet the ends of justice.

We therefore, allow the appeal No. 2415 of 1987 partly. The judgment and order of conviction of appellant Lulu @ Ram Pratap for the offence under sections 302 and 307 IPC is altered to the offences under Part I of sections 304 and 308 IPC and he is sentenced to undergo R.I for the period already spent by him in jail (more than 23 years). The appellant shall be released from jail forthwith if not wanted in any other case.

Appeal filed by appellant Parson is allowed. He is acquitted for thp offences under sections 302/34 and 307/34 IPC. He is on bail. His bail bonds are cancelled and sureties are discharged, He need not surrender.

Let the copy of this judgment be certified to the Lower Court within a week for compliance. The compliance report shall be submitted by the Chief Judicial Magistrate, Barida to this Court within a month. The original record be sent back to the Court below immediately.