Munna and Another vs State of U.P.

This appeal is directed against the judgment and order passed on 7-9-1978 by Mr. Harish Chandra, the then Sessions Judge of Etah. The learned Judge was disposing of Sessions Trial No. 16 of 1978. He has convicted Munna u/s 302 IPC simpliciter and Kishore u/s 302 read with 34 IPC and sentenced both of them to imprisonment for life, Feeling aggrieved both have come to this Court through this appeal.

The brief facts of the matter are that the deceased Rukum Singh alias Tikam Singh as well as the two accused-Appellants both belong to village Matwaria which lies within the police station Jaithara, district Etah. On 8-3-1977 at about 4 P.M. five persons namely Amar Singh complainant, Karan Singh, Rukum Singh (deceased), Neksey Singh and Master Singh were proceeding towards village Parauli in connection with a fair that was held there. The village was situated as some distance from the Etah-Aliganj road and when the five persons reached there, they were accosted by the two accused persons who were sitting inside a room of one Madho Singh. They called the deceased who went inside the room. He was asked as to which party he will vote for, during the ensuing election. When he gave out that he was a Congress voter, the two accused persons threatened him and told him that he should vote for Janta Party. He did not agree. Then it is said that accused Munna took the gun from Kishore. Feeling apprehensive, the deceased Rukum Singh tried to run away. He could hardly come out of the Kothari and chappar, when accused Munna fired with the gun hitting him squarely on the back and causing him injuries. Rukum Singh fell on the spot. The deceased was still alive when the witnesses namely Amar Singh the first informant, Karan Singh and Master Singh brought him to the Bus Stand, from where he was taken to Jaithara Police Station. When he was taken out of the Bus he was already dead.

Then a first information report was got scribed through Jagdish by Amar Singh which is Ext. Ka. 1 and was taken to the Thana at 5 P.M. the same day.

The post mortem examination on the dead body of Rukum Singh alias Tikam Singh was conducted by Dr. Dhirendra Pratap, Medical Officer Incharge Police and Jail, Etah. The post mortem examination report is Ext. Ka. 11 on the record. A single gun shot wound of entry 2-1/2 cm. x 2-1/2 cm. x muscle and chest cavity deep was found on the right side of the back 2 cm. below the last rib and 2-1/2 cm. right to vertebral column. There were three gun shot wounds of exit in an area of 6 cms. x 5 cms. over right side of the back, 12 cms. above injury No. 1. The wound was oval in shape with everted margins. The doctor also found that two shots had entered the chest cavity and had fractured the 9th, 10th and 11th ribs and had gone in frontal and upwards direction lacerating the lower middle and upper lobe while two other shots were lodged in the muscle of the neck on the right side. These were recovered along with two pieces of wads. The death was due to shock and haemorrhage as a result of fire-arm injuries.

Three eye-witnesses were examined in this case. They are Amar Singh PW 1 who is the lodger of the report also, Master Singh as PW 2 and Neksey Singh as PW 3. It may be mentioned at this stage that Neksey Singh is the first cousin of the deceased and PW 1 Amar Singh, and further that Amar Singh and Master Singh had been co-accused in another murder case, of which a mention has been made by Amar Singh in his statement.

The contention of the accused Munna was that he was not present on the spot when this occurrence took place and hence the whole story is false and that he was attending a meeting of Janta Party on that date some where else.

The contention of the accused Kishore was that he had no concern with this case and has been falsely implicated.

No evidence has been produced in defence.

There can be no dispute or doubt about the fact that Rukum Singh alias Tikam Singh did die as a result of firing at about 4 P.M. on 8-3-1977. Soon after the occurrence, the Investigating Officer, reached the spot, took blood stained and simple earth from there and it was sent for examination to the Chemical Examiner and Serologist and the report Ext. Ka. 12 clearly shows that on the samples of earth as well as banian, towel and dhoti recovered from the dead body, human blood stains were found. In addition there is the sworn testimony of three witnesses namely Amar Singh. Master Singh and Neksey Singh. It is also undoubted that there is no previous enmity between the witnesses and the deceased on the one hand and the accused persons on the other. It however appears that they belonged to two political camps and the only immediate cause for the occurrence was that although the Appellants wanted that Rukum Singh (deceased) should cast his vote for a particular party, Rukum Singh was not willing to oblige them. The mere fact that Amar Singh and Neksey Singh are first cousins and that Amar Singh is the real brother of the deceased will not make their testimony doubtful, or suspicious at all. So far as Master Singh is concerned, he is clearly an independent witness as he has no enmity with the accused-Appellants. The learned Sessions Judge has dealt with the evidence of the witnesses in detail. We have very carefully gone through the statements of the witnesses Amar Singh, Master Singh and Neksey Singh and we do not find that they have been shaken at all in their statements. Their statement regarding how the occurrence took place is consistent except in respect of the role assigned to Kishore. It is established beyond doubt from the evidence on record and the circumstances of the case that it was Munna who fired the fatal shot which resulted in the death of Rukum Singh while he was being transported to the police station and the hospital. Therefore, so far as Munna is concerned, we are in agreement with the learned Sessions Judge that his guilt is established beyond doubt u/s 302 IPC.

The case of Kishore requires a little different consideration. It was his gun which is said to have been used by Munna for causing the murder of Rukum Singh. In the first information report, the clear assertion is that Munna accused took the licensed gun of Kishore and fired with it on the deceased. It is not said in the first information report that Munna asked Kishore to hand over the gun to him and then Kishore acquiesced by handing over the gun. In their statements, the witnesses (except for the statement of PW 1 Amar Singh who says that Munna asked for a gun from Kishore who had handed it over to him), are very clear in saying that Munna took the gun from Kishore, but, they no where said that any option was given to Kishore by Munna to refuse to give him his gun or that Kishore''s action of handing over the gun to Munna was voluntary. Under these circumstances Kishore''s case admits of some doubt. It can not be said that he was a willing person in handing over his gun to Munna, on being asked to do so. It may very well be that Munna just took the gun from him and fired with it before Kishore could realize what was happening and so he could not raise any objection at the spur of the moment.

In our opinion, therefore, so far as Kishore is concerned, he will be entitled to the benefit of doubt.

This being so, the conviction of Munna u/s 302 IPC simpliciter, as returned by the learned Sessions Judge and the sentence for life imprisonment awarded to him shall stand. His appeal is dismissed. The appeal of Kishore is allowed. He is given benefit of doubt and is acquitted on the charge u/s 302 read with 34 IPC. He is on bail. He need not surrender. His bail bonds and sureties stand discharged.

Accused Munna''s bail is cancelled. He shall surrender and be taken into custody to serve out the sentence awarded to him.

A copy of the judgment shall be sent to the Court below forthwith for compliance.