Prem Singh (in Jail) vs State of U.P.

M.C. Jain, J.—The accused Appellant Prem Singh has been convicted u/s 302 read with Section 34, I.P.C. and u/s 307 read with Section 34, I.P.C. vide judgment and order dated 25th August, 2000, passed by Sri Awadhesh Rai, the then Special Judge/Additional Sessions Judge, Bulandshahr. The Appellant has been sentenced to undergo life imprisonment for the former offence and seven years'' rigorous imprisonment for the latter. Both the sentences have been ordered to run concurrently.

The Appellant is in jail and the hearing of the appeal has been expedited under the orders of the Hon''ble Chief Justice.

One Rakesh was shot dead in the incident and Anil Kumar P.W. 2 sustained injuries. The incident occurred on 14.1.1997 at about 9.30 a.m. in Mohalla Chaudah Mauza Nehruganj within police station Anoopshahr, District Bulandshahr. The distance of the police station from the place of occurrence was about two furlongs. The F.I.R. was lodged the same day at 3.15 p.m. by Vijay Pal Singh P.W. 1 father of the deceased and the injured. The two parties are neighbours with their houses adjacent to each other. The deceased Rakesh ran a shop of electric goods. About six months before the incident, the accused Appellant had purchased two ceiling fans from him on credit and was not making payment in spite of repeated demands. On the fateful day and time, Rakesh deceased again asked the accused Appellant to make the payment. The accused Appellant became annoyed and angrily held out that he would make the entire payment then and there. He instantly went inside his house and came out with his gun along with his two sons Sanjay armed with country made pistol and Dushyant with an iron rod. They started showering abuses in front of the house of the deceased. When he (deceased Rakesh) and his brother Anil came out from the house. Prem Singh and Sanjay opened fire with their weapons that they held and the Appellant''s another son Dushyant hit Anil with iron rod causing injuries to him. The incident was witnessed by the informant Vijay Pal P.W. 1, Bholi Singh, Ramesh Chandra Sharma P.W. 5, and others. Rakesh and Anil were taken to hospital. Rakesh, however, died on his way to the hospital. Anil was admitted in the hospital in serious condition. The case was registered and investigation followed.

Post-mortem over the dead body of Rakesh was conducted on 14.1.1997 at 4 p.m. by Dr. S. C. Sharma P.W. 7. He was aged about 27 years and about half day had passed since he died. The following ante-mortem injuries were found on his person:

(1) Firearm wound of entry on right side of forehead, just above right eyebrow, 8 cm. - 3 cm. - cavity deep. Brain matter coming out. No tattooing or blackening present.

(2) Multiple firearm wounds of entry on right side of face around injury No. 1, spread from ear to midline of face in an area of 12 cm. - 8 cm., shape oval to spherical and elliptical, size 0.5 cm. - 1.5 cm. - 0.5 cm. - scalp deep.

On internal examination, the base of skull was found fractured. Right side temporal and frontal bones were also fractured. 8 pellets were taken out from the brain matter. The cause of death was shock and haemorrhage resulting from ante-mortem injuries.

It was Dr. S. Garg, P.W. 6 who had medically examined the injured Anil in District Hospital Bulandshahr on 14.1.1997 at 11.40 a.m. The following injuries were found on his person:

(i) Lacerated wound 5.0 cm. - 1.0 cm. - scalp deep on right side head, 9 cm. above right ear. Bleeding was present.

(ii) Multiple (about 8) gunshot wounds of entry in area of 27 cm. - 16 cm. on front and outer side of left chest and abdomen and groin. Size of the wound measuring 0.3 cm. - 0.3 cm., depth not probed. Bleeding present. No surrounding blackening and charring present. Advised X-ray.

(iii) One gunshot wound of entry 0.3 cm. - 0.3 cm. - skin deep on inner side of right thigh upper part.

(iv) One gunshot wound of entry 0.3 cm. - 0.3 cm. - skin deep on front of left thigh lower part.

Injury No. 1 could be caused by hard blunt object such as iron rod and the rest were attributable to firearm. Injury No. 2 was kept under observation and the rest were simple. On X-ray being taken small rounded radio-opaque shadow of metallic density over left side chest and abdomen was detected.

The investigation was taken up by Investigating Officer Virendra Singh P.W. 8 and the panchayatnama etc. had been prepared by S.I. Itwari Lal P.W. 10.

It appears from the perusal of the record that the co-accused of the felony, namely, Sanjay and Dushyant (sons of the present Appellant) remained absconders and only the Appellant could be charge-sheeted who was put on trial. The prosecution in all examined ten witnesses out of whom, Vijay Pal P.W. 1, injured Anil Kumar P.W. 2 and Ramesh Chandra Sharma P.W. 5 were eye-witnesses of fact.

The accused Appellant came up with a counter version. According to him, a drain abuts the houses of the parties, which are adjacent to each other. As per the statement of the accused Appellant u/s 313, Cr. P.C. a quarrel had taken place on 13.1.1997 over the issue of flowing dirt in the drain. On the fateful day, the deceased Rakesh, injured Anil, informant Vijay Pal, Bholey and Ram Shree Hema barged into his house and Vijay Pal informant and Anil opened fire on him. His son also opened fire in self defence. He also examined three doctors of Medical College, Aligarh, in his defence concerning the injuries allegedly sustained by him in the incident. Thus, in short, the right of private defence was advanced by him. We shall deal with this aspect of the matter a little later at appropriate stage.

The theory of private defence was rejected by the trial court. Believing the prosecution case and evidence, the impugned judgment was rendered which is assailed in this appeal.

We have heard Shri V. C. Tiwari, learned Counsel for the Appellant, learned A.G.A. Shri A. K. Verma as also Sri M. D. Misra assisted by Sri R. B. Sharma as counsel for the complainant. The record of the case has been summoned before us which we have carefully examined.

It has first been argued by the learned Counsel for the Appellant that no documentary proof has been produced by the prosecution in token of the purchase of two ceiling fans on credit by the Appellant from Rakesh (deceased). We do not think that it is of any importance. Admittedly, the deceased Rakesh and Appellant Prem Singh were neighbours. It has come in the testimony of Vijay Pal P.W. 1 that the fans were of local make. There is nothing unusual or unnatural if the two ceiling fans worth Rs. 1,200 were sold by Rakesh to his neighbour Prem Singh Appellant on credit without any writing in this behalf.

The next argument of the learned Counsel for the Appellant is that Vijay Pal P.W. 1 was not at all present at the scene of the incident. To put it the other way, his presence is challenged. As a matter of fact, this argument is self-defeating and against the own defence case of the accused Appellant. It should be pointed out that in his statement u/s 313, Cr. P.C. itself, the accused Appellant admits his presence (though with a different version) that he had barged in his house with the deceased and injured and had opened fire on him. Not only this, it was suggested also to Vijay Pal P.W. 1 in his cross-examination from the defence side that on the fateful day at about 9.30 a.m. he with a country made pistol (with others) had trespassed into the house of Prem Singh Appellant and indulged in firing and assault there. Vijay Pal P.W. 1 is the father of the deceased and of the injured. The incident took place at about 9.30 a.m. His presence at his house at that time was natural. It was he who took Rakesh and Anil first to Primary Health Centre Anoop shahr and thereafter to District Hospital Bulandshahr. The report was also lodged by him. All factors considered his presence at the spot is beyond pale of doubt.

To dislodge the testimony of Vijay Pal P.W. 1, it has next been urged that he did not give his blood stained clothes to the Investigating Officer, though he admitted in his cross-examination that the blood of his injured sons had stained his clothes. We are of the view that it does not affect the merits of the case that he did not hand over his blood stained clothes to the Investigating Officer.

Learned Counsel for the Appellant then submitted that Ramesh Chandra Sharma P.W. 5 is a chance witness and is incapable of belief. We do not find any substance in this argument. His name as an eye-witness is mentioned in the F.I.R. He has no enmity with the accused Appellant. It has also come in his testimony that the place of occurrence was only at a distance of 200 yards from his house. He could, therefore, well reach the spot on hearing the shouts emanating therefrom.

We are in agreement with the learned trial court that the testimony of the three eye-witnesses, which was in conformity with medical evidence, inspired judicial confidence. One of them, Anil Kumar P.W. 2 is himself the injured of the felony and, obviously, his evidence carries great weight having been corroborated by two others, namely, Vijay Pal P.W. 1 and Ramesh Chandra Sharma P.W. 5.

Learned Counsel for the Appellant then vehemently argued that the prosecution has not explained the injuries of the accused Appellant Prem Singh. He reasoned that the accused Appellant acted in the exercise of right of private defence and as per Section 100 of the Indian Penal Code, his such right could go to the extent of killing. We have given our anxious thought to the theory of private defence advanced by the accused Appellant and we find it to be wholly misplaced and unfounded. Really speaking, it has no basis at all. It is simply a desperate attempt on the part of the accused Appellant to get away from the legal consequences of serious criminal offence committed by him. We wish to elaborate our point.

It has categorically come in the statement of Vijay Pal P.W. 1 and Anil Kumar P.W. 2 that none on the side of the prosecution had any weapon and further that no injury had been seen by anyone of them on the person of Prem Singh or his wife. The truth of the matter is that the deceased, injured Anil Kumar and the witnesses present on the scene were totally unarmed. Therefore, the question of right of private defence would not arise at all. Rather the accused Appellant and his two sons were aggressors who had become annoyed on the demand of his money made by the deceased Rakesh.

The law is well-settled that before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of the accused, it must reasonably be shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. It all depends upon the facts and circumstances of each case.

In the present case, not the slightest doubt is left that in an over-zealous attempt to create false defence, the accused Appellant Prem Singh got fabricated fictitious medical examination and CAT scanning report regarding himself from J. N. Medical College, Aligarh. He made a request to P.H.C. Anoopshahr for being referred to District Hospital, Bulandshahr. He was referred to District Hospital, Bulandshahr. Instead, he was purported to have been taken to J. N. Medical College, Aligarh and medically examined there at 10.40 a.m. In his medical examination report of J. N. Medical College, Aligarh, proved by Dr. Harsh Kumar D.W. 2 his identifi cation mark is not noted. Nor is there his thumb impression or signature. There is no thumb mark or signature even of the person who took him to the said hospital. It is shown that he was taken there by his wife Smt. Vimla. The distance of Anoopshahr (place of occurrence) from Aligarh is about 65 kms. It spills beyond comprehension as to how could he be present there at 10.40 a.m. Two falsehoods fight between themselves and it appears to be for this reason that the medical examination report and the statement of Dr. Harsh Kumar D.W. 2 are inconsistent. He stated that he examined Prem Singh on 14.1.1997 at 12.40 a.m. Three linear injuries on the left part of the skull, 1" in size are reported. He, however, could not say about the nature of the injuries whether they were abrasions, lacerated wounds, incised wounds or punctured wounds. He could not say whether he had examined him in the day or in the night. The investigation and close scrutiny completely exposed the falsity of defence case. In the cross F.I.R., there was no mention of the Appellant having received firearm injury. His wife Vimla had appeared at 7 a.m. in P.H.C. Anoopshahr on 14.1.1997, i.e, even before this incident occurred and had remained there under treatment from 14.1.1997 to 17.1.1997. Therefore, it was completely falsified that she could take her husband Prem Singh to J. N. Medical College, Aligarh, on 14.1.1997 and produce him there at 10.40 a.m.

Dr. Hem Chand D.W. 3, who professed to have done CAT scanning of Prem Singh on 14.1.1997 at 1.12 p.m. in J. N. Medical College, Aligarh could not say as to on whose reference he did the CAT scanning. It was suggested to Dr. Harsh Kumar D.W. 2 that medical examination of Prem Singh was fictitiously done under the influence of Dr. Suraj Bharti who was a relation of Appellant Prem Singh. Of course, he denied the fictitious medical examination, but could not say whether Dr. Suraj Bharti was relation of the Appellant, though he knew Dr. Bharti who was very senior to him. It is certain that the accused Appellant Prem Singh availed of the weight of some influential person in getting manufactured and fabricated spurious medical examination report and CAT scanning report regarding himself in a wild attempt to create false defence.

For the reasons stated above, we reject the defence version as did the learned trial court.

To come to close, we do not find any merit in this appeal. The accused Appellant Prem Singh has rightly been convicted and sentenced for both the offences u/s 302 read with Section 34, I.P.C. and u/s 307 read with Section 34, I.P.C.

The appeal is hereby dismissed. The Appellant Prem Singh who is in jail shall serve out the sentences passed against him by the lower court.

The office shall send a copy of this judgment along with record to the court below for needful compliance under intimation to this Court within two months.