Ram Pal Singh and Others vs State of U.P.

Imtiyaz Murtaza, J.—The criminal appeal has been filed against the judgment and order dated 31.3.1983, passed by Special Judge, Shahjahanpur whereby the Appellant Ram Pal Singh is convicted u/s 302, I.P.C. and sentenced to imprisonment for life and Appellants Shivraj Singh, Ram Singh and Sher Singh are convicted u/s 302 read with Section 34, I.P.C. and sentenced to imprisonment for life.

According to the first information report, lodged by Kundan Singh, he has an old house in village Harpara, and about a year ago, he had built another house to the north west of the village in his agricultural field and started living there. He wanted to remove bricks of his old house, but on being objected to by Appellant Ram Pal Singh, he could not remove the same. In the night preceding the occurrence, it is stated, there was heavy rains and as a sequel to heavy rain, wall of his old house had caved in. With a view to repair the wall, informant Kundan Singh, his brother Gurmaiz Singh and his nephew Hardev Singh started collecting the fallen bricks. At that time Ram Pal Singh armed with a licensed gun of his father and Ram Singh, Shivraj Singh and Sher Singh carrying lathi in their hand, appeared at the place and throwing challenge, they gave exhortation that no one should be allowed to escape unscathed and all be killed. The complainant raised an alarm and bolted towards his house. At that time, hearing the alarm, his father Tara Singh alongwith Mohan Singh and Zail Singh were attracted and rushed to the grove of Gokaran Singh to rescue him. Ram Pal Singh fired from the gun which hit the father of the informant on his head. The remaining persons exhorted that he should be killed. Accused Ram Pal Singh fired second shot which hit on the knee of Tara Singh. It is further alleged in the report that Kundan Singh informant also fired gun shot to save his father and caused minor injuries. Tara Singh injured was brought by the complainant''s brother Jagir Singh on a bullock cart and a report was lodged on 19.7.1980 at 1.30 p.m. u/s 307, I.P.C., P.S. Nigohi, at Case Crime No. 195A. The injured was medically examined on 19.7.1980 at 8.15 p.m. at P.H.C. Nigohi by Dr. K. N. Tewari and following injuries were noted:

(i) One oval lacerated wound of 1 x 1 cm. in the middle of forehead, 2 cm. above the root of nose. Wound is bone deep.

(ii) Abrasion of 3 x 2 cm. with lacerated wound of 1/2 x 1/2 cm. on left patela. Wound is bone deep.

The injury report is Ext. Ka-2.

In the opinion of the doctor, injuries were kept under observations and advised ''X-ray'' and the injuries were caused by fire arm.

Tara Singh expired at 5.45 p.m. on 20.7.1980 and his post-mortem examination was conducted by Dr. S. C. Gupta at 4 p.m. on 22.7.1980. Following anti-mortem injuries were noted:

(i) The gun shot wound of entrance 1/2 cm. diameter x brain deep, circular, with irregular and inverted margins on the middle of fore-head, 1 cm. above the medial end of right eye brow. Direction straight backward. There is no blackening, scorching or tattooing.

(ii) Gun shot wound of entrance 1/2 cm. circular, with irregular inverted margins x bone deep on the front of left knee joint. There is no blackening, scorching or tattooing around wound.

(iii) Abrasion 1 cm. diameter on the front of right knee joint.

The post-mortem report is Ext. Ka-4.

In the opinion of doctor, cause of death was due to Coma as a result of injuries. A metal pellet was recovered from brain and a metallic pellet recovered from left knee joint.

The inquest on the dead body was conducted. Inquest report is Ext. Ka-9, Naksha Lash Ext. Ka-10, Chalan Lash Ext. Ka-11 were prepared. After receiving the post-mortem report, the case was altered from Section 307, I.P.C. to u/s 302, I.P.C. vide G. D. entry No. Ext. Ka-6.

The initial investigation was conducted by S.I., B. S. Yadav. To begin with, he recorded the statement of complainant Kundan Singh and Gurmez Singh at P. S. Nigohi and thereafter, went to the place of occurrence. On 20.7.1980 he recorded the statements of witnesses Zail Singh and Mohan Singh, inspected the spot and prepared the site plan Ext. Ka-5. Subsequent investigation was conducted by S.O. A. P. Pandey P.W. 5. On 10.9.1980 he recorded the statement of accused Ram Pal Singh, while on 12.9.1980 he recorded the statement of Hardev Singh and after completing the investigation, he submitted the charge-sheet dated 12.10.1980, Ext. Ka-3. After submission of charge-sheet, case was committed to the Court of Sessions and charges under Sections 302 and 302/34 were framed against the accused.

The prosecution had examined seven witnesses P.W. 1 Kundan Singh is the informant and an eye-witness, P.W. 2 Hardev Singh, P.W. 3 Zail Singh are also eye-witnesses of the occurrence. P.W. 4 Dr. K. N. Tewari had examined the injuries of the deceased. P.W. 6 Dr. S. C. Gupta had conducted the post-mortem examination on the dead body, P.W. 7 S.I., B. S. Yadav and P.W. 5 A. P. Pandey had conducted the investigation.

The Appellants denied their presence at the scene of occurrence and also their participation in the crime and the Appellants Ram Pal Singh and Sher Singh pleaded that Gokaran Singh (father of Sher Singh and elder uncle of Ram Pal Singh) was the Pradhan of the village and the village being factious, they have been falsely implicated in this case. Appellants Shivraj Singh and Ram Singh stated that they had gone to cut the bandha (barricade) and complainants side had beaten him and falsely implicated in this case. The accused proved papers Ext. Kha-1 to Ext. Kha-7 but did not examine any witness in their defence.

The Sessions Judge after considering the evidence on record, recorded findings that the written first information report of this case lodged by the eye-witness of the occurrence without there being any inordinate delay and the time consumed in lodging the report has been fully explained. The Sessions Judge has further held that prosecution successfully brought home the guilt that Ram Pal Singh fired two shots at Tara Singh on the exhortation of Ram Singh, Shivraj Singh and Sher Singh. The injuries of Tara Singh were sufficient to cause death in ordinary course of nature. Further held that prosecution has successfully proved motive of crime as regard the main occurrence and the defence could not prove plea of self defence and convicted the Appellants as aforesaid.

We have heard learned Counsel for the Appellants Mr. P. N. Mishra, advocate and Mr. Anupam Tripathi, advocate, learned Government Advocate, Mr. D. R. Chaudhary and learned Counsel for the complainant Mr. R. B. Gaur, advocate.

In so far as Appellant Ram Singh is concerned, on the basis of statement made across the bar by the learned Counsel Sri Apul Misra that Appellant Ram Singh is dead, a report was called for vide order dated 25.9.2007 from the C.J.M., Shahjahanpur. No report has been received. When learned Counsel was confronted with the order, he stated across the bar that he is ready and willing to argue the case on merit.

Learned Counsel for the Appellants canvassed inter alia that there is inordinate and inexplicable delay in lodging the first information report ; that there is conflict between direct and medical evidence ; that the Appellants had no proximate motive to commit the offence and further that the role of Ram Singh, Shivraj Singh and Sher Singh is limited to exhortation and the same cannot be made basis for conviction u/s 302, I.P.C. with the aid of Section 34, I.P.C. and further submitted that according to the prosecution case the deceased was fired upon from considerable distance and no offence u/s 302, I.P.C. is made out against the Appellant Ram Pal Singh. in support of his submission the learned Counsel for the Appellants cited the decision of the Apex Court in Raj Kishore Jha v. State of Bihar and others, 2004 (1) ACR 444 (SC). In this case the shot was fired from the distance of 70-80 feet and it was held that it cannot be said that assailants intended to cause the death of the deceased and the case was altered u/s 304(ii), I.P.C. Another decision relied upon by the learned Counsel for the Appellants, is Khem Karan and Ors. v. State of U. P. 1991 ACC 416: 1991 ACR 27. In this case, the shot was fired from the sufficient distance and case was converted to Section 304(ii), I.P.C.

Per contra, learned A.G.A. contended that the prosecution has proved its case beyond reasonable doubt attended with the submission that the ocular testimonies are reliable and find corroboration from the post-mortem examination report. Ultimately, it was contended that the Sessions Judge has rightly convicted under Sections 302, I.P.C. and 302/34, I.P.C.

In order to appreciate the rival submissions of learned Counsel for the parties it is necessary to traverse upon the evidence on record.

P.W. 1 Kundan Singh deposed that he was earlier working as Hawaldar Major in army. On 1.9.1981 he was superannuated from the military service. Tara Singh was his father. They were settled in village Harpara in the year 1978. He had purchased some agricultural land and house. He had purchased this house from Sewa Singh, and Kandhara Singh in year, 1978. They stayed in that house about one year and thereafter, he had started living in his agricultural field, which was at a distance of 160 steps from his house. His house was in very bad repairs and flea-bitten due to rains. The house was reduced to a mere skeleton consisting of only bricks and wood. He could not bring those bricks and wood because of objection of Ram Pal Singh. The house of Ram Pal Singh is on the western side of his old house. He further deposed that his father was murdered about one and half year ago at about 9 a.m. He alongwith his brother Gurmez Singh Nephew Hardev Singh were in their old house. They were collecting the bricks which were fallen due to rains. The wall of northern side had caved in. They had collected 20-22 bricks and at that time all the four accused persons reached there. Ram Pal was armed with licensed gun while Ram Singh, Shivraj Singh and Sher Singh were carrying lathi. The accused persons, it is further deposed, commanded them to stop removing the bricks and also issued exhortation to kill. They ran away from the place raising alarm. On hearing their alarm his father ran towards eastern side, Zail Singh and Mohan Singh also ran. When his father was in the grove of Gokaran Singh, Ram Pal fired a shot at his father which hit him on his forehead. The second shot fired by Ram Pal hit his father on knee joint. This shot was fired from near the peepal tree. After receiving the shots his father fell on the ground. He brought his gun and he fired in defence of his father. The shot fired by him hit Ram Singh and Shivraj Singh. He brought his father at his house. He prepared the first information report which is Ext. Ka-1. It is further deposed that he could not escort his father because there was very heavy rain and he was also informed that some relatives of the accused were there blocking the way to police station. His father was admitted in District Hospital, Shahjahanpur and on the next day he expired.

P.W. 2 Hardev Singh supported the prosecution case. He deposed that he was collecting bricks in the house of Kundan Singh alongwith Gurmez Singh. Bricks of the house had caved in due to rain. At that time Ram Pal appeared at the scene, carrying gun alongwith Sher Singh, Shivraj Singh and Ram Singh were carrying lathi. Ram Pal bade them to stop removing bricks. On the exhortation of other accused persons, Ram Pal opened fire which hit the father of first informant. Ram Pal had fired two shots. The first shot hit on the forehead and second shot hit on knee of Tara Singh. In order to rescue his father from further assault, Kundan Singh fired from his gun which it Ram Singh and Shivraj Singh.

P.W. 3 Zail Singh has also supported the prosecution case. He deposed that at about 9 a.m., he was working in the field of Kundan Singh, Mohan Singh was also there. He saw Kundan Singh, Hardev Singh and Gurmez Singh raising alarm, Tara Singh was also seen rushing towards him on hearing the alarm. He and Mohan also followed him. As soon as, Tara Singh reached in the middle of grove of Gokaran Singh, Ram Pal Singh opened fire aiming him which hit Tara Singh on his head. Ram Singh, Sher Singh and Shivraj Singh exhorted him whereupon second shot was fired by Ram Pal Singh which also hit Tara Singh. Other accused were carrying lathi. Kundan Singh also fired to rescue his father from further assault which hit Shivraj Singh and Ram Singh.

P.W. 4 Dr. K. N. Tewari had medically examined the deceased and also Shivraj Singh and Ram Singh accused.

P.W. 5 A. P. Pandey was posted as S. O. in the year 1980. On 27.8.1980, he had started investigation of the case and submitted the charge-sheet which is Ext. Ka-3.

P.W. 6 S. C. Gupta had conducted the post-mortem on the dead body of Tara Singh.

P.W. 7 B. S. Yadav was posted as S. I. He deposed that this case was registered on 19.7.1980 and he had started investigation. He recorded the statement of witnesses, prepared the site plan, Ext. Ka-5. After the death of Tara Singh he converted the case u/s 302, I.P.C. G. D. was prepared which is Ext. Ka-6. Subsequently investigation was transferred to A. P. Pandey.

The learned Counsel for the Appellants began his submission arguing that there is inordinate delay in lodging the first information report. The precise argument of the learned Counsel for the Appellants is that occurrence took place at 9 a.m. on 19.7.1980 while the report was lodged after more than four hours at 1.30 p.m. in the teeth of the fact that the distance of police station was only six miles.

We do not find the submission loaded with any substance. The Sessions Judge has rightly held that there is no inordinate delay in lodging the first information report and the time consumed in lodging the F.I.R. is fully explained. According to the prosecution case, the father of the first informant sustained serious injuries and he was carried on a bullock cart and they must have taken some time in arranging the cart. The learned Counsel for the Appellants submits that in order to explain delay in lodging the F.I.R., it was mentioned that the relatives of the accused had collected on the way obstructing their way to P. S. Nigohi. In the light of the above argument, we feel called to say that we cannot discount the fact that injured Tara Singh was about 70 years old and his condition was also critical. The informant had prepared the written first information report and thereafter he had to cover a distance of six miles in heavy rains and under these circumstances the Sessions Judge has rightly held that there is no inordinate delay in lodging the first information report.

The next submission of the learned Counsel for the Appellants is that they had no motive for committing the crime. On the question of motive leading to the occurrence, it is worth noticing that informant had come to village Harpara and settled there in June, 1978. It is mentioned that complainant has an old house in village Harpara adjacent to the house of the accused and after sometime, he had built new house in agricultural field and ever since then he was living in the newly built house. He wanted to remove the bricks of his old house but the accused objected to the same and prevented them from removing the bricks. During the preceding night, the village was battered by heavy rain and as a result of which the wall of his house had caved in. The complainant Kundan Singh, his brother Gurmaiz Singh and nephew Hardev Singh had gone to the old house and they were collecting the bricks when the occurrence took place. The house of accused-Appellant Ram Pal Singh was very close to the old house of the informant and there was seemingly some dispute with regard to debris of the house and this furnished the motive for the crime. Moreover, it is a case of direct evidence and motive hardly plays any important role. If the lack of motive as pleaded by the Appellants is a factor, at the same time, it cannot be lost sight of the fact that there is no reason as to why the witnesses, who are close relative of the deceased, would falsely implicate the accused. There was no suggestion of attributing motive for false implication. If the incident in question as projected by the prosecution is to be accepted, the presence of absence of motive or strength of the said motive by itself also will not make prosecution case vulnerable.

In the case of State of Himachal Pradesh Vs. Jeet Singh, the Apex Court had observed "No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended."

It was further submitted by the learned Counsel for the Appellants that the injuries received on the side of the defence are not explained by the prosecution. The injuries on the side of the defence have been proved by P.W. 4 Dr. K. N. Tewari. It is worth noticing that Shivraj Singh and Ram Singh, Appellants had sustained fire arm injuries and they were medically examined by P.W. 4 K. N. Tewari. The doctor aforesaid had examined their injuries on 19.7.1980 between 8.20 and 8.45 p.m. and opined that these injuries could be caused between 8 and 9 in the morning and their injuries could be caused by fire arm. The defence did not adduce any evidence to prop up the version set up by the defence. The defence even did not try to suggest to the witnesses that the deceased sustained injuries in their exercise of right of private defence. There is no gainsaying of the fact that the injuries sustained on the side of defence were precisely spelt out in the first information report. The precise statement contained in the F.I.R. as mentioned by informant is that he had fired shot to safeguard his father from further assault. It is not the case of non-explanation of injuries suffered on the side of defence. The injuries are explained in the first information report and there is reiteration of that explanation by witnesses in their deposition in Court.

Learned Counsel for the Appellants canvassed that conviction of Appellants Shivraj Singh, Ram Singh and Sher Singh u/s 302/34, I.P.C. is unsustainable in law. The role assigned to these three Appellants is only that of exhortation and they were shown to be equipped with lathi only. It is further canvassed that these three Appellants were visited with conviction only on the dint of omnibus statement. Other three persons, proceeds the submission, are attributed the role of exhorting to kill Tara Singh. It was further pointed out that in the first information report, it was mentioned that Shivraj Singh, Ram Singh and Sher Singh had made exhortation after the first shot was fired by Ram Pal Singh which hit the deceased on his head and after their exhortation, second shot was fired which hit the deceased on his knee. In their deposition, P. Ws. 1 and 2 deposed that firing was made by Ram Pal Singh as a sequel to exhortation by three accused. It is submitted that there is conflict between the first information report and deposition made about the time of exhortation and thus, contradiction is writ large. It is further submitted that it is highly improbable that all the three persons would exhort Ram Pal in concern and would blurt out the self same words and further, it is highly improbable for witnesses to hear actual words uttered in exhortation when the accused persons were at a considerable distance. In connection with the above submissions, we must advert to what has been observed and held by the Apex Court in the case of Jainul Haque Vs. State of Bihar, The observations of the Apex Court are excerpted below:

The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant.

In the light of the submissions and regard being had to the observations of the Apex Court (supra), it appears to us that the submission advanced across the bar has a measure of substance and therefore we feel called to say that it would not be safe to convict these three Appellants with the aid of Section 34 u/s 302, I.P.C. only on the basis of exhortation. The allegations that all the three persons exhorted to kill the deceased is too stilted for approval and does not inspire confidence. Thus, we feel constrained to hold that there is no reliable evidence brought on record to prove that the Appellants also shared common intention to murder the deceased and in absence of such evidence, the Appellants could not be convicted for offence punishable u/s 302 read with Section 34, I.P.C. The Appellants Shivraj Singh, Ram Singh and Sher Singh deserve to be purged of the charges levelled against them.

So far as Appellant Ram Pal Singh is concerned, evidence on record is consistent about his role that he fired twice at the deceased resulting in his death. The prosecution has brought home the guilt to Ram Pal Singh beyond reasonable doubt and we must say that the Sessions Judge has rightly convicted him u/s 302, I.P.C. We are also not impressed by the submission of learned Counsel for the Appellants that the shots were fired from a distance of more than 80 yards by this reckoning, the offence is not made out u/s 302, I.P.C. It is the case of prosecution from the very inception that the first shot fired by Ram Pal Singh hit the deceased on head and thereafter, he fired second shot which hit the deceased on his knee. Therefore, there was clear intention on the part of Ram Pal Singh to kill the deceased. On the point, we advert to the decision of the Apex Court in Raj Kishore Jha (supra) and in paragraph 16, it was laid down ; "Taking into account the fact that the only shot was fired from a considerable distance in this case, application of Section 302, I.P.C. is ruled out, though there cannot be any rule that whenever one shot is fired from a distance, Section 302, I.P.C. would not be applicable. It would depend upon the nature of the gun, the position of the assailant and the victim, obstructions from any intermediary object which may cause deflection of the shot and several other relevant factors."

In the facts and circumstances of the case, we feel called to say that the case of Khem Karan (supra) as relied upon by the learned Counsel in vindication of his case, is not attracted for application as the facts of that case are entirely different and thus the same is distinguishable. The distinguishing features of that case are observable from what has been stated by the Apex Court which is excerpted below:

In the present case the accused had not arrived on the scene of occurrence with any determination and prior concert, but they were already present there, working in their field and the deceased when he was passing that way accosted them as to why they abused his children and thereupon at the behest of Khem Karan Tukman had wielded a lathi blow and subsequently when the deceased tried to escape, at the behest of Tukman Gulta had fired shot. Considering the facts of the case that there could not by any prior determination or concert to kill the deceased, but when the deceased had virtually reprimanded by protest to the accused why they had abused his children the act was committed and Gulta at the behest of Tukman had fired the shot from a sufficient distance with a country made pistol. Under the circumstances the intention to cause death be difficult to infer, but it can safely be inferred that Tukman had knowledge that fire with the pistol was likely to cause death and, therefore, under the circumstances of the case in our view conviction of Tukman for the offence of murder u/s 302 read with Section 34, I.P.C. should not be upheld, but he is liable to be convicted for the offence u/s 304, Part II read with Section 34, I.P.C.

We are therefore, of the view that Sessions Judge has rightly convicted the Appellant Ram Pal Singh u/s 302, I.P.C. In the above perspective, we also lend affirmance to his conviction u/s 302, I.P.C.

In view of the above, the appeal on behalf of Appellants Shivraj Singh, Ram Singh and Sher Singh is allowed. They are acquitted of the charges levelled against them. They are on bail. Their bail bonds are discharged and they need not surrender.

Coming to the appeal preferred by Ram Pal Singh, it is accordingly dismissed. His conviction and sentence recorded by the trial court are affirmed. He is on bail, He bail shall stand cancelled. He is directed to surrender forthwith. C.J.M., Shahjahanpur is directed to take him into custody forthwith to serve out sentence awarded by the trial court and affirmed by us.

Office is directed to communicate this order to C.J.M., Shahjahanpur for necessary compliance within two months.