Shree Krishna and Others vs State of U.P.

Raghvendra Kumar, J.—Heard Sri S.V. Singh, learned counsel for the appellants and Smt. Ainakshi Sharma, learned A.G.A. for the State of U.P.

Under challenge in the instant Criminal Appeal is the judgment and order dated 9.5.2007 passed by learned Additional Sessions Judge, Fast Track Court No. 2 Mainpuri in S.T. No. 81 of 2004 (State v. Shree Krishna & Others) arising out of case crime No. 180 of 2003, Police Station Kurawali, District Mainpuri whereby the appellants Shree Krishna, Vedram, Rai Singh, Narsingh Pal @ Gajendra have been convicted for the offence under section 304 (1) I.P.C., each of them were sentenced to imprisonment for life and a fine of Rs. 5000/- each, with default stipulation of six months additional simple imprisonment.

The FIR of this case has been lodged by Sri Sudish son of Shyam Singh with police station on 2.7.2003 at 11.00 a.m. with respect to the incident that occurred on 2.7.2003 at 10.00 a.m. As per the F.I.R. version, the complainant along with Jai Hind, Kunwar Pal and Jai Singh were going to Kurawali Bazar at about 10.00 O''clock, as they reached near the chuk-road, adjacent to the field of Maharaj Singh, Shree Krishna, Ved Ram, Rai Singh, Nar Singh Pal, who were having enmity with respect to tractor transaction with Kunwar Pal, who was their well wisher, the accused persons, who were equipped with gun, pistol and lathis, jointly discharged fire shots and assaulted with lathi whereby Jai Singh and Kunwar Pal sustained injuries. The deceased Jai Singh succumbed to the injuries.

The appeal so far as it relates to Ved Ram stood abated vide order of this Court dated 9.9.2005.

After registration of the FIR, the investigation proceeded, inquest of deceased Jai Singh was prepared and certain documentation was done for the purposes of post mortem and corpus was sent for autopsy.

The investigation culminated into filing of police report in the shape of charge sheet. The accused appellants denied charges and claimed trial on merits.

To substantiate charge the prosecution has examined P.W.1 Sudish who has proved Tahriri report Ext. Ka-1. P.W.2 Jai Hind is the cousin of the deceased. P.W.3 Dr. K.C. Bhardwaj, who has conducted post mortem examination on the corpus of the deceased Jai Singh. He has noted he following ante mortem injuries :

"(i) Fire arm pellet wound two in number size 0.3 cm x 0.3 cm. on lateral side of neck 1.5 c.m. Apart each other and 5 cm below to the angle of left side collar and abrasion present, charring present circular shape.

(ii) Fire arm Pellet wound.3 cm x.3 cm x on left side chest 1.5 cm away from left nipple at 2.00 O''clock position. Coller & abrasion present circular shape

(iii) Multiple pallet wound of entry.3 cm x.3 cm.on whole abdomen in area of 26 cm x 17 cm.Coller of abrasion present, charring present.

(iv) Multiple pellet injury 0.3 cm x 0.3 cm circular shape, coller of abrasion and charring on whole left arm, forearm, hands in all side.

(v) Multiple pellet on left side hip anus side upto upper thigh anterior lateral anterior muscle part average size 0.3 cm x 0.3 c.m. Charring present collar of abrasion present.

(vi) Slip fire wound on right side thigh horizontal mid line left side of 12 c.m. above to medial scalp of knee joint.

(vii) Abrasion 1 cm x 1 cm left side face 1 cm. Anterior to right ear

The cause of death was shock and haemorrhage as a result of fire arm injuries."

P.W.4 S.I. Mohd. Shamim Khan has proved execution of chick FIR and relevant entry in the G.D. and the entry regarding enhancement of the offence. P.W.5 is the I.O. who has proved the execution of inquest and has also conducted the investigation and has proved the execution of documents prepared for post mortem examination and also proved the execution of charge sheet.

After prosecution evidence, the accused persons were examined under section 313 Cr.P.C. by putting all the incriminating materials which appeared during the course of trial before them.

The D.W.1 Kunwar Pal Singh has been examined who was also injured in this incident.

After conclusion of the trial, the learned court below recorded the findings of conviction against the accused-appellants.

Learned counsel for the appellants has not assailed the judgment and finding of conviction recorded by the learned Court below but submitted that the learned Trial Court has taken a harsh view in awarding the sentence. The accused persons are incarcerating in jail since 8.5.2007, therefore, a lenient view may be taken by awarding them a sentence of imprisonment as already undergone.

Learned A.G.A. refuted the submission of learned counsel for the appellants. He has stated that it is a case of broad day light culpable homicide.

Being Court first appeal, the findings of conviction recorded against accused appellants are being scrutinized on the basis of evidence and material available on record.

P.W.1 specifically stated that on the date of incident he was going with his brother Jai Singh, Jai Hind and Kunwar Pal Singh as they reached near the chuk-road,adjacent to the field of Maharaj Singh, the accused Shree Krishna, Ved Ram, Rai Singh, Narsingh, who were equipped with fire arms and lathi, fired upon Kunwar Pal and Jai Singh from their weapons and as well lathis. Jai Singh and Kunwar Pal sustained injuries. Subsequently, Jai Singh succumbed to the injuries. He is alleged to be an eye witness. He has fully supported the prosecution version. The attention of the Court has also been drawn towards the trivial variations or contradictions which are of trivial nature. The slight variation with respect to the place of death of the deceased Jai Singh has been mentioned. It is noteworthy that the witness P.W.1 Sudish has not been cross examined on the day when his examination-in-chief was recorded. The cross-examination has been conducted after a lapse of long time.

P.W.2 Jai Hind is also alleged to be an eye witness. He is independent witness and has supported the prosecution version and has corroborated the testimony of P.W.1 that accused Shree Krishna, Ved Ram, Nar Singh, Rai Singh met him on the chuk- road and were equipped with fire arm weapons. All the accused have assaulted by fire arm and lathis. He has simply stated that there was some enmity with respect of abadi land but there was no litigation between P.W.2 and the accused persons. He has also supported the prosecution story.

P.W.3 Dr. K.C. Bhardwaj has mentioned ante mortem pellet injuries and has also stated that metallic particles were recovered. He has proved the autopsy report. The cause of death has been assigned to be shock and haemorrhage as a result of fire arm injuries.

P.W.4 Mohd. Shamim Khan is a formal witness. His testimony is confined to his role as stated in evidence.

While appreciating the testimony of eye witnesses P.W.1 and P.W.2, we have noticed slight variations. Whatever the variations are, if it is to be taken true, it can be said to be minor contradictions. In case there are no contradictions between the examination-in-chief and cross examination of a particular witness or there is no inter-se variation in the testimony of two eye witnesses, it shall be simply inferred that the witnesses are tutored whereas in case of natural witnesses, natural variations are bound to occur which strengthen their testimony even if the contradictions are to be taken true on their face value, since the contradictions are not major and do not go to the root of the prosecution case, the testimony of P.Ws. 1 and 2 is wholly reliable in our estimation.

In view of the reasons stated above we are of the opinion that the trial court has rightly appreciated the testimony and has rightly recorded the finding of conviction. The finding of conviction recorded by the court below does not warrant any interference by this Court.

The learned counsel for the appellants has not assailed the findings of conviction recorded by the court below but has submitted that all the injuries are of pellets, which pierced into the body of the deceased. All the appellants are having their own families. Appellant Shree Krishna is aged about 60 years, Narsingh alias Gajendra has also attained the age of 50 years, Rai Singh has also attained more than 45 years of age. They are illiterate persons and they belong to a poor community. Their income is very meagre. In case the lenient view is taken by the Court and they are released on the basis of the period already gone, they would be able to discharge their social obligations towards their family.

It is a settled proposition of law that punishment should neither be liberal nor harsh one. It should be appropriate to the gravity of offence. It should have leaning towards reformation. Weighing the aggravating and extenuating or mitigating circumstances, we are of the opinion that the quantum of punishment which has been awarded by the trial court warrant interference.

The finding of conviction recorded by the Court below against the appellants Shree Krishna, Rai Singh, Narsingh alias Gajendra are hereby affirmed. The sentence of imprisonment for life is being modified to the extent of 10 years R.I. The amount of fine imposed by learned court below is not being interfered with. The appeal is, thus, partly allowed.

The appeal of the accused appellant Ved Ram stands abated by order dated 9.9.2015. The appellants shall be entitled to benefit of section 428 Cr.P.C..

Let a copy of this judgment and order along with lower court record be transmitted forthwith to the Court concerned for compliance.