Sarju and Others vs State of U.P.

M.C. Jain, J.—The appeal arises out of the judgment and order dated 14.7.80 passed by the then Sessions Judge. Jalaun at Orai in ST. No. 36 of 1980. The Appellants are Kamal, Sarju and Durg who are real brothers, Kamal has been convicted u/s 302, I.P.C. whereas Sarju and Durg have been convicted u/s 302 read with Section 34, I.P.C. All the three accused-Appellants have been sentenced to life imprisonment.

The murder of one Ratan son of Badlu is involved in the case. The incident took place on 3.11.79 at about 3 p.m. in front of the house of Babu Ram Bhattewala in Mohalla Tulsi Nagar, Orai. The report was made by the victim''s father Badlu, an eye-witness, the same day at 4.15 p.m. The case of the prosecution was that on fateful day and time, the informant Badlu, his wife and son Ratan were going to the market. Ratan was going a little ahead to fetch diesel, while Badlu and his wife were going to purchase sundry articles. When Ratan reached in front of the house of Babu Ram Bhattewala in Mohalla Tulsi Nagar, all the three accused, who are the own brothers of Badlu, suddenly stopped and surrounded Ratan. Kamal fired with his pistol severely injuring Ratan. He fell on the ground Sarju and Durg were armed with (athi and axe respectively. Badlu and his wife raised alarm which attracted Babar AH and Siya Ram who rushed to the spot, but all the three accused made their escape good. Badlu got a report of the incident scribed by one Ravindra Singh Sengar and took Ratan to Kotwali, where he handed over report at 4.15 p.m. A case was registered u/s 307, I.P.C. Ratan was immediately sent to Sadar Hospital. Orai, for medical examination and treatment, which was done by Dr. R.K. Khattar P.W. 6. The condition of Ratan being low, a Magistrate was informed for recording his dying declaration, which was done by Sri G.K. Tandon P.W. 5 the same evening and thereafter Ratan was sent to Kanpur for expert treatment but he succumbed to the injuries before reaching the hospital there. The case was converted from Section 307, I.P.C. to Section 302, I.P.C. The investigation was made by Inspector, Deg Raj Singh P.W. 7 and ultimately charge-sheet was submitted against all the three accused-Appellants. On being committed, they are tried. They pleaded false implication.

The prosecution examined eight witnesses in support of its case, out of them Badlu P.W. 1. Siya Ram P.W. 2 and Manni Lal P.W. 3 were the eye-witnesses. Rest were two doctors. I.O. and Head Constable. No evidence was tendered by the accused persons.

It may be stated here that initial medical examination of Ratan was examined by Dr. R.K. Khattar P.W. 6 in District Hospital, Orai, on 3.11.79 at 4.40 p.m. The injuries found on his persons were of fire arm. Post-mortem over the dead body of the deceased was conducted by Dr. A.N. Singh P.W. 8 at Kanpur on 5.1 1.79 at 12.05 p.m. The following ante-mortem injuries were found on his person:

Fire arm wound 1 cm. x cm. x cavity deep 7 cm. below and outer to right scapula on posterior auxiliary line. Blackening and tattooing present.

Fire arm wound multiple 3/10 cm. x 3/10 cm. x muscle deep in area of 9 cm. x 8 cm. on posterior axillary line with blackening and tattooing. Six pellets recovered.

Fire arm exit wound 1 cm. x 1 cm. on the left side of the front of chest near epigastrium 8 cm. below left nipple.

Fire arm wound multiple in area of 5 cm. x 4 cm. on the back of right upper arm with blackening and tattooing above the right elbow.

The death had occurred due to shock and haemorrhage as a result of ante-mortem injuries sustained by the deceased. Learned Sessions Judge believed the prosecution case and evidence. He accordingly convicted and sentenced them as stated in the opening paragraph of this judgement. Aggrieved, they filed the appeal.

On record, the accused-Appellants are represented by Sri Rajesh Ji Verma and Sri P.K. Verma, Advocates, However, none turned up from the side of Appellants to argue the appeal at the time of hearing in spite of repeated calls. We have heard the learned A.G.A. from the side of the State and Sri Sudama Ji Sandilya who has appeared from the side of complainant. We have also carefully gone through the evidence and material on record.

On consideration, we are of the opinion that the case of accused-Appellant Kamal is distinguishable from other two Appellants. It is a case of single shot. Dr. A. N. Singh P.W. 8 who conducted autopsy on the dead body of the deceased has testified that ante-mortem injury Nos. 1, 2 and 4 could be the result of single shot. A look at the postmortem report would show that ante-mortem injury No. 3 is exit wound. So, the point of the matter is that ocular testimony reconciles with the medical evidence that a single shot had been fired by the accused-Appellant Kamal on the victim. Badlu P.W. 1 was accompanying his son Ratan at the fateful time. Ratan was going a little ahead while he himself and his wife were following him as they were going to purchase sundry articles in the market. Ratan was to purchase diesel. It was also Badlu P.W. 1 who lodged the F.I.R. of the incident without loss of time at 4.15 p.m. the same day. His presence at the spot cannot be doubted. The name of another eye-witness Siya Ram P.W. 2 finds place in the F.I.R. To explain his presence, he stated that he had come to Orai for making purchase and therafter he was going to Badlu''s house at about 3 p.m. He witnessed the occurrence when he reached in front of the house of Babu Ram Bhattewala. He is the real brother of Badlu''s son-in-law, but that cannot be a ground to discard his testimony. He explained that Rath and Orai are at equal distance from his village and he had chosen to come to Orai for making purchases. As mentioned above, his name finds place in the promptly lodged F.I.R. No time gap had occurred between the incident and lodging of the F.I.R. and as such possibility of concoction as to the mention of the name of this witness in the F.I.R. is ruled out. The testimony of Badlu P.W. 1 and Siya Ram P.W. 2 reconciles on the point that it was the accused-Appellant Kamal who had fired fatal shot on the victim.

As regards Manni Lal P.W. 3 his name does not find place in the F.I.R. He had established in the form of a shop a temporary wooden structure near the house of Babu Ram and was doing business at the relevant time. The learned Sessions Judge has rightly observed that he narrated the entire incident in terms of the prosecution case, but tried to help the accused in his cross-examination by saying that they were tying ''safi'' on their faces, but he maintained in another breath that he could see the accused despite it. Even if the testimony of Manni Lal P.W. 3 is ignored, evidence of Badlu P.W. 1 and Siya Ram P.W 2 is fully corroborated from the medical evidence, clinchingly establishing that the assailant was the accused Kamal who had fired the fatal shot on the victim Ratan. Accused-Appellants, Badlu and victim Ratan were close relatives. Some land litigation was going on between the two sides. There was also a case u/s 307, I.P.C. pending against Ratan deceased and his brother Babu who had allegedly assaulted Kamal (present accused-Appellant). It is indicative of the motive on the part of Kamal accused to murder Ratan.

There is an additional factor which leaves not the slightest doubt about the accused Kamal being the assailant of the victim. It is this that dying declaration of Ratan was recorded by Sri G.K. Tandon, S.D.M. Oral P.W. 5 on 3.11.79 itself at 6.15 p.m. Dying declaration is in question-answer form. Ratan stated that he was injured by a ''goli'' and that Kamal, Sarju and Durg with whom he had enmity regarding landed property, were responsible for this act. Reading and interpreting his dying declaration in conjunction with the testimony of eye-witnesses, it was fully established that the main assailant was Kamal. It would be recalled that the consistent case of the prosecution was that the shot had been fired by Kamal. The remaining two accused-Appellants Sarju and Durg had simply exhorted and kept surrounding the victim. Therefore, on thoughtful consideration, we endorse the finding of the learned Sessions Judge that the assailant was Kamal accused who fired the shot killing Ratan.

Now we take up the case against the other two accused-Appellants Sarju and Durg. The case and evidence of the prosecution against them is that Sarju had a lathi and Durg had an axe. There could be no point in their holding such weapons if they did not mean to use them. Besides exhortation, they allegedly surrounded the victim. It is significant to point out that no overt act has been assigned to these two accused-Appellants. Though they were allegedly armed with lathi and axe but they did not make use of the same. The role of surrounding the victim assigned to them sounds bristling against natural human conduct and is in conflict with the inherent probabilities of the circumstances. Accused Kamal had opened fire on the victim Ratan who was a moving object. It does not stand to reason that these two accused Sarju and Durg would have surrounded the victim at the time of firing of the shot by Kamal accused, risking their own lives as there could be every possibility of the shot hitting any of them if they were to surround the victim at the time of shooting. Therefore, our view tuned by the evidence on record and attending circumstances is that the prosecution version against the accused-Appellants Sarju and Durg is not without an element of doubt. Possibility of their false implication cannot be ruled out they being the real brothers of the assailants Kamal and their being the land dispute also between the two parties. The conviction and sentence passed by the Court below against these two Appellants cannot be sustained and they are entitled to be acquitted.

For the reasons mentioned above, we partly allow the appeal. The conviction and sentence passed by the Court below against the accused-Appellant Kamal are maintained and the appeal fails so far as he is concerned. However, we set aside the conviction and sentence passed by the Court below against the remaining two Appellants Sarju and Durg u/s 302/34, I.P.C.

All the three Appellants, namely Kamal, Sarju and Durg are on bail. Kamal shall surrender forthwith to serve out the sentence of life imprisonment passed against him by the learned Sessions Judge. Other two Appellants, namely, Sarju and Durg need not surrender. Their personal bonds and surety bonds are cancelled and sureties discharged.