Nakli Singh and Another vs State of U.P.

Shri Kant Tripathi, J.—The Appellants Nakli Singh and Om Prakash, who are father and son, have preferred this appeal against the judgment and order dated 29.5.1982 passed by the Sessions Judge, Meerut in S.T. No. 402 of 1981, whereby the learned Sessions Judge has convicted the Appellant No. 1 Nakli Singh u/s 326/34, I.P.C. and Appellant No. 2 Om Prakash u/s 326, I.P.C. and sentenced each of them to undergo rigorous imprisonment of five years.

The Appellant No. 1 Nakli Singh died during the pendency of the appeal, consequently the instant appeal stood abated against him.

I have heard the learned Counsel for the Appellant and the learned A.G.A. and perused the record.

The prosecution story, in brief, is that on 3.10.1981, the complainant''s brother P.W. 2 Madan Pal Singh had gone to Sakauti to meet his elder brother Rajvir Singh, who was serving there as a Chaprasi. The deceased Rajpal Singh had gone to Ghaziabad and on return from there, he also went to Sakauti at the house of his brother Rajvir Singh. It is also alleged that P.W. 2 Madan Pal Singh and the deceased Rajpal Singh were coming back to their village on the bus No. UTG 2941. The witnesses, Shish Pal Singh and Girish Kumar, and one Om Prakash, who is the brother-in-law of the deceased, met the deceased and P.W. 2 Madan Pal Singh at the bus station. They also travelled in the same bus. It is also alleged that both the accused persons, namely, Nakli Singh and his son Om Prakash were already sitting in the bus on a three seat berth. It is also alleged that in the bus, exchange of some hot words between the deceased Rajpal Singh and the Appellant No. 1 Nakli Singh took place in connection with occupation of the seat lying vacant adjacent to the seat already occupied by the Appellants. The passengers, however, intervened and Rajpal Singh, on the request of the bus driver, went towards front side of the bus and sat on the bumper of the engine. When the bus stopped near the culvert situating within the limits of village Sardhana, the Appellant No. 1 Nakli Singh gave exhortation to the Appellant No. 2 Om Prakash to kill the deceased Rajpal Singh. On the exhortation so given by the Appellant No. 1, the Appellant No. 2, who had a licensed gun of his father, fired on the deceased Rajpal Singh, consequently the deceased Rajpal Singh sustained gun shot injury on his thigh. After assaulting the deceased Rajpal Singh, the Appellants fled away. P.W. 2 Madan Pal Singh rushed to his village and arranged a buggi for taking the deceased Rajpal Singh to hospital.

The deceased Rajpal Singh lodged the F.I.R. Exhibit Ka-2 at the police station Sardhana, on which basis, the police prepared Chik report Ex. Ka-4 and registered the case for investigation in the G.D., copy whereof is on record as Ex. Ka-5. Initially the police registered the case u/s 307, I.P.C.

Dr. N. S. Pant (P.W. 3) of P. L. Sharma Hospital, Meerut, medically examined the deceased Rajpal Singh and prepared the injury report Ex. Ka-3. The following injury was found on the person of the injured:

Punctured wound 3 cm. x 2.5 cm. x bone deep, front and outer part of left thigh 17 cm. above knee joint underneath bone was found fractured.

The Doctor opined that the injury was a fresh gun shot wound and the general condition of the deceased was bad and as such he was admitted in the hospital for treatment.

The deceased was, however, referred to the Medical College, Meerut, where he was admitted on 4.10.1981 at about 3.45 p.m. The deceased remained under the treatment and supervision of Dr. Y. Mahendra and was operated upon of his injury on 5.10.1981 at 6 p.m. and foreign metallic body was found in the injury. It was taken out and disposed of. Dr. Y. Mahendra prepared notes relating to the operation stating that the deceased was not suffering from any illness but had complained of distension of abdomen. Dr. V. B. Bhatnagar also examined the deceased. The deceased ultimately died on 8.10.1981 due to shock of the injury.

It may not be out of context to mention that Dr. A. S. Mathur (P.W. 7) of the Medical College, Meerut and Kaptan Singh (P.W. 9), X-ray Technician had done X-ray of left thigh and left hip of the deceased on 5.10.1981 at about 2.30 p.m. On X-ray comminuted fracture involving the shaft of the femur in the upper one third with multiple deformed metallic density shadows with no callous were found. The femur had been broken in many parts. After the death of the deceased, the inquest report was prepared and autopsy on the dead body of the deceased was done by Dr. D. C. Jain (P.W. 1) on 9.10.1981 at 3 p.m., who prepared the post-mortem examination report (Ex. Ka-1). The doctor found the following ante-mortem injuries on the dead body of the deceased:

(i) Stitched wound 10 cm. long having four stitching on the outer side of left thigh, 12 cm. above the knee joint with fracture of femur underneath.

(ii) Lacerated wound 4.5 cm. x 3 cm. x muscle deep over the left buttock.

According to Dr. D. C. Jain, the cause of death was shock as a result of acute hepatitis. After the death of the deceased, the case was converted u/s 302, I.P.C.

The Investigating Officer, after completing the investigation, submitted the charge-sheet against the Appellants.

The learned lower court charged the Appellant No. 2 Om Prakash u/s 302, I.P.C. and the Appellant No. 1 Nakli Singh under Sections 302/34, I.P.C.

Both the Appellants denied the charges levelled against them and claimed to be tried.

The prosecution examined as many as twelve witnesses in support of its case.

P.W. 1, Dr. D. C. Jain, who had done post-mortem examination on the dead body of the deceased, has proved the post-mortem examination report. Ex. Ka-1 and the ante-mortem injuries sustained by the deceased.

P.W. 2 Madan Pal Singh is the real brother of the deceased Raj Pal Singh. He had gone to Sakauti to meet his brother Rajvir Singh, who was serving as a Chaprasi in Sakauti. This witness has stated that he was coming back to his village on the aforesaid bus alongwith the deceased. This witness has supported the prosecution story in its entirety.

P.W. 3 Dr. N. S. Pant was posted as a Medical Officer in P. L. Sharma Hospital, Meerut and had medically examined the deceased Rajpal Singh. This witness has not only proved the injuries sustained by the deceased but has also proved the injury report Ex. Ka-3. He has further proved that the injury sustained by the deceased could be caused with a fire arm.

P.W. 4 Satya Pal is the scribe of the F.I.R. He has stated that he scribed the F.I.R. on the dictation of the deceased. This witness has proved the F.I.R. Ex. Ka-2.

P.W. 5 Girish Kumar has also given an eye-witness account of the occurrence. He was travelling in the bus and had witnessed the occurrence.

P.W. 6 Ratan Kumar was posted as Head Constable at the police station Sardhana. He has proved the chik report Ex. Ka-4 and copies of the G. D. Exs. Ka-5 and Ka-6.

P.W. 7 Dr. A. S. Mathur had done X-ray of left thigh and left hip of the deceased Rajpal Singh. This witness has proved the X-ray plate Ex. Ka-1 and X-ray report Ex. Ka-7. On X-ray he had noticed comminuted fracture on the left leg of the deceased. He has further noticed the presence of deformed metallic density shadows and opined that the presence of Metallic density shadows reveals that the deceased was shot with a fire arm.

P.W. 8 Dr. Y. Mahendra was posted as Orthopaedic Surgeon in the Medical College, Meerut. He has proved the bed head ticket relating to the deceased. According to this witness, the deceased was admitted in the Medical College on 4.10.1981 and died there on 8.10.1981. This witness has further proved that he had operated upon the injury of the deceased on 5.10.1981 at about 6 p.m. and foreign metallic body was found in the injury.

P.W. 9 Kaptan Singh was posted as X-ray Technician in the Medical College, Meerut. He had done the X-ray under the supervision of P.W. 7 Dr. A. S. Mathur.

P.W. 10 Hukum Singh was the driver of the bus. This witness has given eye-witness account of the occurrence and has supported the prosecution story.

P.W. 11 Vijay Pal Singh had brought the dead body of the deceased in a sealed condition for post-mortem examination.

P.W. 12 Godam Singh is the Investigating Officer. He had interrogated eye-witnesses of the occurrence and inspected the concerned bus and took in his possession the bloodstained seat and bloodstained rubbish from the floor of the bus and prepared the Fard Exs. Ka-16 and Ka-17. This witness has also proved the charge-sheet Ka-21 and has given evidence of formal nature.

Both the Appellants were examined u/s 313, Cr. P.C. They denied the allegations made against them and stated that they have been falsely implicated due to enmity.

The Appellants have not adduced any evidence in defence.

The learned Sessions Judge was of the view that no offence u/s 302, I.P.C. was made out against the Appellants in view of the fact that the deceased died due to Hepatitis and not on account of the injuries sustained by him. The learned Sessions Judge further held that the acts done by the Appellants do not constitute any offence u/s 307, I.P.C. Keeping in view the facts and circumstances of the case, the learned Sessions Judge was of the view that the facts as proved made out the offence u/s 326, I.P.C. against the Appellant No. 2 Om Prakash and the offence u/s 326/34, I.P.C. against the Appellant No. 1 Nakli Singh. He has accordingly convicted and sentenced both the Appellants.

The State has not filed any appeal against the finding recorded by the learned Sessions Judge, so far as the acquittal of the Appellants u/s 302, I.P.C. is concerned.

In view of the fact that the Appellant No. 1 Nakli Singh has died, it is not necessary to examine the prosecution case in regard to the allegations made against the Appellant No. 1 Nakli Singh.

The learned Counsel for the Appellant No. 2 Om Prakash pressed the appeal only on the point of sentence and submitted that the finding of guilt recorded by the learned Sessions Judge is correct and based on proper appraisal of the evidence on record and he has nothing to say against that finding.

In the instant case, the F.I.R. was lodged by the deceased himself, which was scribed by P.W. 4 Satyapal Singh. It may be mentioned that the F.I.R. Ex. Ka-2 has been fully proved by P.W. 4 Satya Pal Singh. The F.I.R. was not only promptly lodged on the same day at about 9 p.m. but was also complete in all respect. The role of firing with a gun on the deceased Rajpal Singh was assigned in the F.I.R. to the Appellant No. 2 Om Prakash. Presence of witnesses P.W. 2 Madan Pal Singh, P.W. 5 Girish Kumar and P.W. 10 Hukum Singh at the time of the incident has also been very specifically stated in the F.I.R. No material addition or alteration in the prosecution story, as stated in the F.I.R. was made during the trial. In this way the F.I.R. Ex. Ka-2 corroborates the prosecution story, which has been proved by the eye-witnesses P.W. 2 Madan Pal Singh, P.W. 5 Girish Kumar and P.W. 10 Hukum Singh. The statements of these witnesses find corroboration from the medical evidence adduced by witnesses, namely, P.W. 1 Dr. D. C. Jain, P.W. 7 Dr. A. S. Mathur, P.W. 8 Dr. Y. Mahendra and P.W. 9 Kaptan Singh. The medical evidence has fully established that the deceased had sustained fire arm injury which corroborates the eye-witness account of the aforesaid three eye-witnesses. The eye-witnesses had been subjected to lengthy cross-examination but nothing material could be brought on record to discredit their testimonies. Blood stains were found on the seat on which the deceased was sitting in the bus at the time of the incident. The Investigating Officer had taken in possession the blood stained Rexine seat and prepared its fard. Blood was also found in the rubbish lying on the floor of the bus. The Investigating Officer had also collected the rubbish and prepared its fard. These material evidence, duly proved by P.W. 12 Godam Singh further supports the prosecution story. There does not appear to be any reason for false prosecution of the Appellant No. 2. In my opinion, the learned Sessions Judge has rightly believed the prosecution story. There does not appear to be any reason to take a different view. The deceased had sustained a fire arm injury on his left thigh as well as fracture of femur. In this way, the Appellant No. 2, being author of the fire arm injury sustained by the deceased, caused grievous injury to the deceased with fire arm and as such the finding of the learned Sessions Judge that the offence u/s 326, I.P.C. was proved beyond all reasonable doubts against the Appellant seems to be perfectly correct and requires no interference. I therefore, uphold the conviction of the Appellant No. 2 Om Prakash u/s 326, I.P.C.

On the quantum of sentence, the learned Counsel for the Appellant submitted that the incident in question took place on account of a sudden quarrel. The Appellant No. 2 is not a professional offender. The occurrence in question had taken place in the year, 1981 and since then about 28 years have elapsed. The Appellant was not in any way responsible for causing the death of the deceased. In view of these factual aspects of the matter, the sentence of five year rigorous imprisonment was excessive and unreasonable. Keeping in view the facts and circumstances of the case and the submissions of the learned Counsel for the Appellant, I consider it just and expedient to reduce the sentence from five years rigorous imprisonment to three years rigorous imprisonment.

The appeal is partly allowed. The conviction of the Appellant No. 2 Om Prakash u/s 326, I.P.C. is confirmed. The sentence of five years rigorous imprisonment awarded against the Appellant No. 2 is reduced to three years rigorous imprisonment. The sentence awarded by the learned Sessions Judge stands modified accordingly.

The Appellant shall be extended the benefit of set off as contemplated by Section 428, Cr. P.C.