Zahoor, Subrati and Baboo (In Jail) vs State of U.P.

M. Chaudhary, J.—This is a criminal appeal filed on behalf of the accused appellants from judgment and order dated 14th of October, 1982 passed by III Additional Sessions Judge, Fatehpur in Sessions Trial No. 115 of 1980 State v. Babu and ors convicting accused Babu u/s 302 IPC and accused Zahoor and Subrati u/s 302 read with Section 34 IPC and sentencing each of them to imprisonment for life thereunder.

Brief facts giving rise to this appeal are that Mahipal Singh @ Puttan and Suraj Pal Singh were real brothers being sons of Zalim Singh and Ramesh Singh is the son of Suraj Pal Singh. Wazid, Sajjad and accused Subrati are real brothers. Zahoor is son of Sajjad and Shakoor that of Wazid. Accused Babu is son of Shakoor. Thus Subrati is real uncle of Shakoor and accused Zahoor. Sagir is the behnoi of Shakoor. Since marriage party of the son of Sagir was to go from Dhayemau to Ghanghaul Zahoor engaged tractor-trolley of Mahipal Singh @ Puttan therefore on payment of Rs. 300.00. At about 8:30 a.m. on 18th of May, 1979 marriage party returned in the tractor-trolley to Dhayemau. The tractor-trolley was parked in front of the house of Sagir and luggage was being unloaded. In the meanwhile Zahoor, Subrati and Babu took Mahipal Singh @ Puttan at their place for payment of hire charges. A few minutes thereafter Ramesh Singh and Jagdish also reached there. At that time Mahipal Singh @ Puttan was sitting on a cot in the chhappar of Zahoor and talks were going on regarding payment of hire charges. Puttan was demanding Rs. 350.00 on the pretext that tractor-trolley had to go on kachcha way in excess and Zahoor and Subrati were insisting on payment of Rs. 300.00 as hire charges. In the meanwhile at the exhortation of Zahoor and Subrati Babu who was already armed with his lather''s licenced gun as he had taken the same in the marriage party fired with gun at Mahipal Singh @ Puttan from close range and sustaining the gunshot injuries at his chest Mahipal Singh @ Puttan fell on the cot and died instantaneously. Then Ramesh Singh alongwith Jagdish taking the tractor-trolley went to his village Chheechha and narrated the incident to his family members. Immediately Ramesh Singh scribed report of the said incident and handed over the same to his father Suraj Pal Singh who taking the written report went to police station Bindki situate at a distance of some eight miles from village Dhayemau and handed over written report of the occurrence to the police at 1:30 p.m. the same noon. The police registered a crime against the accused accordingly and started the investigation.

SI Brijnandan Lal Gangwar to whom investigation of the crime was entrusted recorded statements of the witnesses at the police station itself and then went on the spot. He took a countrymade pistol with an empty cartridge in its barrel in the left hand of the deceased and prepared its memo. Then he drew inquest on the dead body of Mahipal Singh @ Puttan and handed over the dead body in a sealed cover to Constable Sukh Lal and village Chawkidar PrithviPal for being taken for its post mortem. He also got bloodstained surface of the wall scrapped and bloodstained earth collected from the ground in the chhappar, sealed them in a container and prepared their memo. He also got bloodstained twine cut from the cot and sealed the same in a packet and prepared its memo. He picked up socks and shoes of the deceased kept there and sealed them in a packet and prepared their memo. Then he inspected the site and prepared its site plan map. He also recorded statements of the witnesses and did other necessary things. Autopsy on the dead body of Puttan was conducted by Dr P. Joshi, Pathologist District Hospital Fatehpur on 19th of May, 1979 at 2:30 p.m. which revealed belownoted ante mortem injuries:

Gunshot wound of entry 1" x 1" x chest cavity deep, at 9 o'' clock position on left side of chest slightly away from midline 3" apart from left nipple, blackening and tattooing present. Margin lacerated and inverted. Fracture of sternum, 2nd and 3rd ribs on left side at costochondral junction, clotted blood present underneath.

Gunshot wound of exit two in number ''1/4" x 1/4" x chest cavity deep on left side of chest posteriorly back 1" apart from each other 1" downwards and medially to inferior angle of left scapula. Blackening and tattooing absent. Margins lacerated and everted. Fracture of 5th and (P ribs on left side.

Abrasion 1/2" x 1/2" on right side forehead 1/2" above the eyebrow.

Abrasion 1/4" x 1/4" on right little finger terminal phalanx dorsal aspect.

Abrasion 2" x 1" on the left elbow posterior aspect.

Abrasion 1" x 1/4" on the left thigh middle third part front side.

On internal examination hematoma was found present under injuries No. 1 & 2 and left lung was found lacerated and perforated at places. Heart and pericardium were also found lacerated and perforated. Stomach contained semi-digested food 3 1/2 oz.

The doctor found three gunshots of large size present on posterior wall of chest in an area of 3" x 4" which he removed. He also removed two wadding pieces from heart.

The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.

The investigating officer got bloodstained clothes of the deceased alongwith his socks and shoes, bloodstained surface of wall and earth and bloodstained twine of the cot sent to Forsenic Science Laboratory Agra for serologist''s opinion.

After completing investigation the police submitted charge sheet against the accused. A perusal of the serologist''s report goes to show that bloodstained bushirt, undergarments, socks and twine contained human blood, and blood on bloodstained trousers, belt and earth were found to be disintegrated. Shoes contained no blood stains. After framing of charge against the accused the prosecution examined Jagdish (PW 4) and Ramesh Singh (PW 5) as eye witnesses of the occurrence. PW 6 Suraj Pal Singh who taking written report of the occurrence scribed by his son Ramesh Singh went to police station Bindki and handed over the written report to the police there at 1:30 p.m. the same noon proved the written report deposing the said facts. PW 2 HC Raj Kumar Misra who prepared check report on the basis of written report handed over to him and made entry regarding registration of crime in the GD proved these papers (Exts ka 2 and ka 3). PW1 Dr P. Joshi who conducted autopsy on the dead body of Mahipal Singh @Puttan proved the post mortem report (Extka 1) deposing that ante mortem gunshot injuries sustained by the deceased were sufficient to cause the death in ordinary course of nature. PW 3 Constable Sukh Lal to whom dead body of Mahipal Singh Puttan in a sealed cover alongwith necessary papers was handed over for being taken for its post mortem stated the said feet. PW 7 SI Brijnandan Lal Gangwar who investigated the crime and after completing investigation submitted charge sheet against the accused proved the police papers.

The accused denied the alleged occurrence altogether stating that they were got implicated in the case falsely at the instance of village Pradhan Suraj Bali due to enmity. However, this much is admitted that Zahoor engaged tractor-trolley of Mahipal Singh @ Puttan for taking barat of the son of his behnoi Sagir from Dhayemau to Ghanghaul on payment of Rs. 300.00 and that the tractor-trolley taking the marriage party returned to Dhayemau on 18th of May, 1979 at about 8:30 a.ra The defence case is that since tractor-trolley driven by Mahipal Singh @ Puttan went out of order at Fatehpur on the way some altercation took place between the baratis on one hand and Puttan on the other; that Puttan fired at one barati Murad with countrymade pistol and that Murad fired at Puttan in his self-defence. The accused did not adduce any evidence in their support.

On an appraisal of evidence on record the learned trial judge held the accused guilty of the charge levelled against them and convicted and sentenced them as stated above. Feeling aggrieved by the impugned judgment and order the accused appellants preferred this appeal for redress. Heard Sri V.P. Srivastava, learned Counsel for the accused appellants and Sri S.S. Yadav, learned AGA for the State respondent.

After going through the impugned judgment and record of the case we are of the view that the learned trial judge has given cogent and convincing reasons for holding the accused guilty. PW5Ramesh Singh, nephew of the deceased stated all the facts of the occurrence from the beginning to the end as narrated above deposing that Zahoor had engaged the tractor driven by Mahipal@ Puttan for taking barat of the son of Sagir; that the marriage party returned back from Ghanghaul next evening i.e. 17th of May but in the night dynamo of the tractor light went out of order and hence barat had to stay for the whole night near the octroi at Fatehpur; that next day early in the morning they proceeded and the marriage party reached the house of Sagir at about 8:30 a.m.; that as the luggage kept in the tractor was being unloaded Zahoor, Subrati and Babu took Puttan at their place for payment of hire charges; that since Puttan was insisting for payment of Rs. 350.00 as the tractor had to go through Kachcha way in excess whereas Zahoor and Subrati were insisting on payment of Rs. 300.00 which was agreed between them and an altercation ensued between them; that in the meanwhile Subrati and Zahoor got infuriated and at their exhortation Babu who was already armed with the licenced gun of his father as he had taken the gun in the barat fired at Puttan from close range hitting him at his chest and sustaining the firearm injuries Puttan who was sitting on the cot fell thereon and died on the spot. He further deposed that at that time he alongwith Jagdish was sitting there at the charahi at a distance of 4-5 paces from the cot on which Puttan and Subrati were sitting. PW 4 Jagdish corroborated him on all material aspects of the case deposing likewise. Both the eye witnesses were subjected to gruelling and searching cross-examination but nothing tangible could be elicited therefrom to shake their credibility. Both the eye witnesses appear to be truthful, honest and straightforward witnesses. Their sworn testimony stands corroborated by FIR of the occurrence lodged at the police station without losing any time and medical evidence. PW 5 Ramesh Singh, nephew of the deceased stated that Babu fired at his uncle Puttan with gun from a close range hitting him at his chest. A perusal of the post mortem report goes to show that the doctor conducting autopsy on the dead body revealed an ante mortem gunshot wound of entry 1"x 1"x chest cavity deep on left side of chest and blackening and tattooing was found present around the wound. Shorn of few contradictions and inconsistencies in the statements of the two eye witnesses which are of insignificant and trivial nature there is no discrepancy of vital nature which may affect the credibility of these witnesses. However the learned defence counsel advanced following arguments assailing judgment of the trial court.

Learned Counsel for the appellants vehemently argued that since PW 5 Ramesh Singh, nephew of the deceased was not an invitee for the barat his presence at the scene of occurrence is doubtful. Said argument advanced by the appellants'' learned Counsel has got no substance. PW 5 Ramesh Singh was real nephew of deceased Puttan and the tractor belonged to his grand father Zalim Singh and hence there can be no doubt if Ramesh Singh being nephew of Puttan driving the tractor accompanied him while he was taking the marriage party in the tractor-trolley. This witness has given such a vivid and picturesque description of the occurrence that his presence at the scene of occurrence can not be doubted. Had he not seen the occurrence with his own eye he could not have stated the facts which he deposed. He deposed that Babu fired at Puttan with the gun from a close range hitting him at his chest which is substantiated by medical evidence. This witness Ramesh Singh also mentioned this fact in the report of the occurrence scribed by him. This piece of evidence is very clinching and impeccable. Under the circumstances we have no doubt about presence of PW 4 Ramesh Singh at the scene of occurrence when his uncle Puttan was fired by accused Babu.

Learned Counsel for the appellants further argued that since PW 5 Ramesh Singh is nephew of the deceased and PW4Jagdish was cleaner at the tractor, their interested testimony should not be relied upon. Both the eye witnesses have been subjected to searching and rambling cross-examination but nothing could be elicited therefrom to shake their credibility. After careful scrutiny their testimony has been found to be reliable and trustworthy. Relationship is not a factor to affect the credibility of a witness as ordinarily the close relative would be the last person to screen the real culprits falsely implicating innocent persons. So far as PW 4 Jagdish is concerned, at the time of appearing in the witness box he was residing at his village Kindhauli. It appears that after the said incident he left the job of cleaner at the tractor of Suraj Pal Singh as he stated in his examination-in-chief that some three years ago he used to work as cleaner at that tractor. Since at the time of appearing in the witness box Jagdish (PW 4) was not employed at the tractor of Suraj Pal Singh he can not be termed to be an interested witness. Thus testimony of PW 5 Ramesh Singh stands well corroborated by the testimony of PW 4 Jagdish who had no animus against the accused appellants.

Lastly the appellants'' learned Counsel vehemently argued that the plea of firing by Murad in his self-defence set up by the accused should also be taken into consideration. In the instant case, defence of the accused as revealed from the suggestion made to the prosecution witnesses in their cross-examination was that since tractor-trolley in which the barat was returning went out of order at Fatehpur on the way, some altercation took place between the baratis on one hand and Puttan on the other as the former had to face inconvenience at Fatehpur; that Puttan fired at Murad with countrymade pistol and that thereon Murad fired at Puttan in his self-defence. Even an iota of evidence is not on the record to show that any altercation took place between the baratis including Murad on one hand and deceased Puttan on the other muchless any firing between them. Dead body of Puttan was lying at the house of the accused but no FIR of the alleged occurrence of firing by Murad at Puttan was lodged by Zahoor or any of the accused at the police station. PW 7 Brijnandan Lal Gangawar, the investigating officer stated in his cross-examination that he found a countrymade pistol entangled in the fingers and thumb of left hand of the deceased. Had the accused fired with the countrymade pistol that should have been in the right hand of the deceased and only index finger at the trigger. PW 4 Jagdish was also questioned thereabout in his cross-examination, and he categorically stated that at the time of occurrence he did not see any country made pistol in the hand of Puttan but when he returned back to the scene of occurrence from village Chcheechha at about 4:00 p.m. the police was also there and at that time he saw a countrymade pistol in the hand of the deceased and that he could not say as to how it happened. In this case there is ample evidence that soon after the occurrence efforts were made to manipulate and manoeuvre the evidence. PW 5 Ramesh Singh stated in his examination-in-chief that at the time of occurrence Puttan was putting on socks and shoes. A perusal of the serologist''s report goes to show that socks of the deceased contained human blood. But a perusal of the site plan map goes to show that cot on which the deceased was sitting at the time of occurrence was kept at a distance of some 34 paces from the chhappar where it was lying at the time of occurrence and shoes and socks of the deceased were kept at point ''B'' (Ext ka 22). Further, PW 7 SI Brijnandan Lal Gangwar deposed that there were bloodstains on the wall on which the chhappar was kept and there was lipai on the ground under the chhappar but blood was visible on the ground. A perusal of the serologist''s report goes to show that scrapped blodstained surface of wall and the bloodstained earth in the sealed container contained blood but the bloodstains were disintegrated. However the bloodstained twine cut from the cot contained human blood. Further, a perusal of the post mortem report goes to show that the autopsy revealed two firearm wounds of exit, but the investigation officer did not find any gunshots or pellets at the scene of occurrence. Thus evidently the ground under the chhappar of Zahoor was cleaned after the occurrence as the investigating officer deposed that there was lipai. Hence the possibility can not be ruled out that a countrymade pistol with an empty cartridge in its barrel was placed in the hand of the deceased so as to create defence. Moreover, plea of right of self-defence can be available to the accused only. Such a plea of self-defence to someone else is not permissible. Therefore, the defence version regarding plea of exercising right of private defence deserves outright rejection.

As to the offence made out, learned Counsel for the appellants strenuously argued that since all of a sudden altercation took place between Puttan on one had and the accused appellants on the other over the issue of excess payment of Rs. 50.00 only as hire charges and in the heat of passion Babu who was already having licenced gun of his father fired at Puttan, offence punishable u/s 302 IPC is not made out, and Section 34 IPC is also not applicable. Learned Counsel for the accused appellants placed reliance on Lachman Singh Vs. State of Haryana, . In our view the facts of the instant case are almost identical to that of Lachman Singh''s case relied upon by learned Counsel for the accused appellants. Since in the instant case altercation took place between the accused on one hand and Puttan on the other over payment of excess hire charges of Rs. 50.00 as Puttan claimed that the tractor-trolley had to pass through long kachcha way and in the course of altercation the accused got infuriated and in the heat of passion at the exhortation of Zahoor and Subrati accused Babu fired with gun which he was already keeping with him as he had taken the same in the marriage party and sustaining the firearm injury at his chest Puttan died on the spot. The assault was not premeditated. Hence we are of the view that accused appellant Babu is liable to be convicted u/s 304 Part I IPC. Regarding accused appellants Zahoor and; Subrati, liability of one person for an offence committed by another in the course of criminal act perpetrated by any person arises u/s 34 IPC if such a criminal act is done in furtherance of common intention by the persons who joined in committing the crime. Zahoor is real nephew of Subrati and Babu is real nephew of Zahoor. Admittedly Zahoor had engaged the tractor-trolley driven by Puttan for taking the barat on payment of Rs. 300.00. Subrati is real uncle of Zahoor and all of them resided together and both of them returned back together with the marriage party. It has come in evidence that as the luggage was being unloaded from the tractor-trolley Zahoor, Subrati and Babu took Puttan to their place situate at a distance of some 40-50 paces from the house of Sagir where the tractor-trolley was parked and since Puttan insisted on '', payment of Rs. 350.00 as hire charges and Zahoor wanted to pay Rs. 300.00 as agreed upon between them altercation took place between them and in the course of altercation the accused got infuriated and at the exhortation of Zahoor and Subrati accused Babu fired at Puttan with gun hitting him at his chest resulting in his death. Hence we find that accused appellant Zahoor and Subrati commited arfoffence punishable u/s 304 Part I read with Section 34 IPC.

The appeal is allowed in part and accused appellant Babu is convicted for offence punishable u/s 304 Part I IPC instead u/s 302 IPC and accused appellants Zahoor and Subrati u/s 304 Part I read with Section 34 IPC instead Section 302 read with Section 34 IPC and each of them is sentenced to ten years'' rigorous imprisonment and a fine of Rs. 10,000.00 (Rs. ten thousand) respectively thereunder and in default of payment of fine within one month from today the defaulter accused appellant shall further undergo imprisonment for two years. If the fine imposed upon each of the accused appellant is so deposited Rs. 25,000.00 (Rs. twenty five thousand) shall be paid to the legal representatives of deceased Mahipal Singh @ Puttan as compensation and remaining Rs. 5,000.00 (Rs five thousand) shall go to the State Exchequer. Accused appellants Zahoor, Subrati and Babu are on bail. Their bail is cancelled. Chief Judicial Magistrate, Fatehpur is directed to get all the three accused appellants arrested and send them to jail to serve out the sentence imposed upon each of them.

Office is directed to send certified copy of the judgment alongwith record of the lower Court to the Court below immediately for ensuring compliance under intimation to this Court within one month from today.