SOHAN SINGH v. STATE OF UTTAR PRADESH — 1994 DIGILAW 567 (ALL)

V. N. MEHROTRA, J. ( 1 ) THIS appeal has been filed against the judgment dated 4. 2. 1982 by Shri Umesh Chandra, Sessions Judge, Pauri Garhwal convicting the appellant Sohan Singh, for the offence under Section 302 I. P. C. and sentencing him to undergo imprisonment for life. ( 2 ) IT is said that accused Sohan Singh was a resident of village Dwari, Patti Paino district Pauri Garhwal. Deceased Sultan Singh was also a resident of the same village. It is alleged that there was a dispute between the accused Sohan Singh and the deceased Sultan Singh regarding some money transaction. While the accused used to say that the deceased was not paying his dues the deceased did not accept his liability which led to exchange of abuses and quarrels. It is said that in the night of 26/27. 8. 1980 accused Sohan Singh was abusing Sultan Singh and demanding his money loudly. Smt. Tara Devi (P. W. 2), who is the wife of Sultan Singh told him about this fact. It is said that in the morning of 27. 8. 1980 at about 9 A. M. the deceased came to the house of the accused loudly enquiring as to what amount was due from him. It is said that as the deceased was climbing plight of stairs leading to the chhajja of the accused; the latter brought out a gandasa and struck him on the head. The deceased fell down on the steps. The occurrence was seen by Chandan Singh (P. W. 1) and also by Smt. Tara Devi, who was present nearby. On the farm being raised by Chandan Singh a number of persons reached the scene of occurrence. The accused thereafter ran away from his house. A number of villagers then proceeded to trace out the accused but they could not find him. Two of the villagers were then sent to the Kaindalsera to contact the pradhan but he was not available. These persons returned at 1 P. M. and than Chandan Singh wrote out the report (Ext. Ka. 1 ). It was handed over to the Gaje Singh (P. W. 5) who took it to the patwari Yashwant Singh (P. W. 6 ). The case was registered at 7. 00 p. m. on that day. These persons returned at 1 P. M. and than Chandan Singh wrote out the report (Ext. Ka. 1 ). It was handed over to the Gaje Singh (P. W. 5) who took it to the patwari Yashwant Singh (P. W. 6 ). The case was registered at 7. 00 p. m. on that day. The distance between the place of occurrence and the place where the F. I. R. was lodged was 8 miles. Patwari reached the scene of occurrence next day in the morning. He found that the dead body of Sultan Singh was lying on the stairs leading to the house of the accused. He prepared a panchayatnama of the dead body. He took in his possession the blood stained and plain earth and sealed the same and also prepared necessary memos. The Investigating Officer then sealed the dead body and sent the same for post mortem examination alongwith necessary papers. The Investigating Officer also prepared the site plan of the place of occurrence. He recorded the statements of Chandan Singh and Smt. Tara Devi. The accused was arrested at about 6 P. M. on the same day. He was interrogated and at his pointing out blood stained gandasa (Ext. 1) and his blood stained clothes (Exts. 4 and 5) were recovered. Memos (Ext. Ka 3 and Ka 4) were prepared in respect of the same. After completing the investigation charge sheet was submitted against the accused. Blood stained clothes, gandasa etc. were sent to the Chemical Examiner. Ext. Ka 16 is the report received from him. ( 3 ) THE post mortem examination of the dead body was conducted by Dr. S. S. Singhal (P. W. 7 ). He found the following ante mortem injuries:"incised wound on scalp at back 15 cm. x 5 cm. x 12 cm. with tapering ends, vertically placed over midlive. The upper end of the wound 13 cm. from upper attachment of right ear eloffed blood present over the hair around the wound. Multiple depressed, comminuted fractures of both the parietal bones and occipital bones present underneath the wound on removing the fractured bone pieces. These dura matter was found to be tom at several places. Brain underneath found lacerated and partially liquefied coming out of the wound. Semi clotted blood seen over and underneath the fractured bones. Maggots present in the wound. Incised wound 12 cm. x 5 cm. These dura matter was found to be tom at several places. Brain underneath found lacerated and partially liquefied coming out of the wound. Semi clotted blood seen over and underneath the fractured bones. Maggots present in the wound. Incised wound 12 cm. x 5 cm. x 12 cm. present at back of scalp trausressely placed adjacent to lower and of injury no. 1 with tapering ends. Musely enweath the wound Gut, bone underneath (occipital bone) fractured, conuniorfed, depressed fractures on removing the fractured, bone pieces. The dura matta was found to be tom at several places. The brain underneath was found to be lacerated. Semi-liquefied coming out of the wound Semi clotted daur blood present over the hair and injured muscle tissues, outer and inner side of fractured bone pieces. Maggots present in the wound. "in the opinion of Dr. Singhal the death was caused due to multiple fractures of skull bones and laceration of brain. The injuries were sufficient to cause death in the ordinary course of nature. According to Dr. Singhal, who had conducted the post mortem examination at 1 p. m. on 30. 8. 1980. The death was caused some three days back. ( 4 ) IN the present case confessional statement of accused Sohan Singh was recorded on 2. 9. 1980 by Shri A. S. Chaudhary, Munsif Magistrate, Lansdowns, Garhwal (P. W. 3 ). ( 5 ) THE prosecution in this case examined eight witnesses. Chandan Singh (P. W. 1) is the informant and is said to be an eye witness of the occurrence. Smt. Tara Devi (P. W 2) is the wife of Sultan Singh. Both these witnesses has supported the prosecution version of the occurrence and have stated that accused Sohan Singh caused fatal injuries to the victim at the stairs of his house on the day and time of the occurrence. Shri A. S. Chaudhary (P. W. 3) has proved the statement of the accused recorded under section 164 Cr. P. C. Chavan Singh (P. W. 4) reached the scene of occurrence on the shouts of Chandan Singh. He saw that the dead body of Sultan Singh was lying on the stairs of the house of the accused. He was also stated that he has seen accused Sohan Singh going away towards the jungle saying that he had killed the deceased. He saw that the dead body of Sultan Singh was lying on the stairs of the house of the accused. He was also stated that he has seen accused Sohan Singh going away towards the jungle saying that he had killed the deceased. He has also stated that he and Chavan Singh tried to search the accused but could not find him and so they returned to the village at 1. 00 P. M. This witness has also stated about the arrest of the accused by the police and the recovery of gandasa (Ext. 1) and clothes at the pointing of the accused. Gaje Singh (P. W. 5) stated that he want to search out the accused but could not find him and that later on he had taken the F. I. R. to the Patwari Satpal Singh (P. W. 6) is also a formal witness. Dr. S. S. Singhal (P. W. 7) had conducted the post mortem examination of the deceased. Patwari Yashwant Singh (P. W. 8) had conducted the investigation in the case. He has stated that he found the dead body of the deceased lying at the stairs of the house of the accused. This witness has also stated about the recovery of gandasa and clothes at the pointing out of the accused. ( 6 ) IN his statement under Section 313 Cr. P. c. the accused Sohan Singh has denied that the gandasa and the clothes were recovered from his house at his pointing out. He has asserted that an amount of Rs. 3,900/- was due to be paid by Sultan Singh to him. He has also stated that he used to ask Sultan Singh to pay the amount but he had not paid the same. The accused has also stated that on the day of the occurrence the wife of Sultan Singh had come to his house at 4. 00 A. M. At that time two or three other ladies reached there and these ladies told Sultan Singh about this fact and due to this reason Sultan Singh used to quarrel him lmd also beat him with stone and lathi. The accused has then stated that on the day of the occurrence Sultan Singh was going to Kaindalsera. He picks stones from the way and threw the same towards his house. He then came to his house and took out the gandasa (Ext. The accused has then stated that on the day of the occurrence Sultan Singh was going to Kaindalsera. He picks stones from the way and threw the same towards his house. He then came to his house and took out the gandasa (Ext. 1) and on which he (accused) snatched the gandasa and struck the deceased on his head. Thus the contention by the accused appears to be that he has strucked the gandasa in exercise of right of private defence. The accused did not examine any witness in his defence. The learned Sessions Judge believed the prosecution case and convicted and sentenced the accused as mentioned earlier. ( 7 ) THIS appeal has been argued by Shri Shakil Ahmed, who has been appointed amicus curiae on behalf of the accused. The learned counsel has asserted that the evidence produced by the prosecution was not reliable and in any case it was shown that the accused had acted in exercise of right of private defence while hitting the victim with gandasa. The learned counsel had further argued that at best it could be a case of exceeding the right of private defence, even if the prosecution evidence is relied upon and believed. ( 8 ) WE have heard the learned counsel for the appellant and have examined the record of the case. As will appear from the post mortem report and the statement of Dr. S. S. Singhal (P. W. 7), Sultan Singh had died as a result of the ante mortem injuries received by him. Both these injuries were of very serious nature and it appears that great force have been used while hitting the victim with a sharp edged weapon on his head. The post mortem report also indicates that the injuries to the victim could have been caused by a gandasa. As mentioned earlier, the victim had died about three days before the post mortem examination, which took place at, 1. 00 P. M. on 30. 8. 1980. Dr. Singhal has also stated that there could be difference of about six hours in the duration of the death stated by him. From this statement it will appear that Sultan Singh had died at about 7. 00 A. M. on 27. 8. 1980. 00 P. M. on 30. 8. 1980. Dr. Singhal has also stated that there could be difference of about six hours in the duration of the death stated by him. From this statement it will appear that Sultan Singh had died at about 7. 00 A. M. on 27. 8. 1980. ( 9 ) IT is not disputed in this case that the incident took place at the house of accused Sohan Singh when the deceased had come to that place at about 7. 00 A. M. on 27. 8. 1980. The prosecution assertion is that the deceased had gone to the house of the accused to remonstrate against the hurling of abuses and demanding of money by the accused. It is said that the accused used to assert that the deceased was indicated to him but was not paying the amount due. It is also asserted that this had led to frequent quarrels between the two sides. This assertion has been made by Chandan Singh (P. W. 1) as well as snit. Tara Devi (P. W. 2 ). The accused himself has stated that money was due to be paid by the deceased and he used to ask the deceased to pay the same but he has not done so. It is thus obvious that there was a dispute between the accused and the deceased relating to the alleged non-payment of money by the deceased. ( 10 ) CHANDAN Singh (P. W. 1) has stated that on the day of the occurrence he was going to Kaindalsera in order to bring big wooden box of Trilok Singh from that place of his village. He has also stated that deceased Sultan Singh was also proceed for Kaindalsera for that purpose. When the witness reached near the water post which is situated very near the house of the accused, Sultan Singh told him that he is going to the house of the accused to ask him as to why he used to abuse him daily. Sultan Singh then went to the house of the accused when he heard the shouts of Sultan Singh he saw that the accused was hitting the deceased with his gandasa, while the deceased was lying on the stairs of the house. This witness has also stated about the presence of Smt. Tara Devi at the water post. ( 11 ) SMT. This witness has also stated about the presence of Smt. Tara Devi at the water post. ( 11 ) SMT. Tara Devi (P. W. 2) has also supported the prosecution case. She also stated that she was present at the water post in order to bring water from there. She has also stated that the deceased then went to the house of the accused saying that he will ask as to what amount was payable. According to this witness while the deceased was climbing the stairs the accused hit him on the head with the gandasa, as a result of which the deceased fell down there and died. The statement of Chandan Singh (P. W. 1) is also corroborated by Chavan Singh (P. W. 4 ). He has stated that at about 7. 30 A. M. on 27. 8. 1980 he heard the shouts of Chandan Singh saying that Sohan Singh killed Sultan Singh. He then reached the house of the accused and found the dead body of Sultan Singh lying on the stairs. He has also stated that he saw Sohan Singh going away towards the Harijan Basti saying that he has killed the Pahalwan. The statements of these witnesses found quite convincing and there is nothing to show that they have any reason to speak falsely. The statements of the witnesses are further corroborated by the fact that the blood stained gandasa and also blood stained clothes were recovered from the house of the accused. By the patwari on his pointing out Chavan Singh (P. W. 4) and Yashwant Singh, Patwari (P. W. 8) have stated about this occurrence. ( 12 ) WE have examined the statements of these witnesses and we find that there is no reason to disbelieve them on this point. It has been fully established that the gandasa and the blood stained clothes were recovered from the house of the accused on 28. 8. 1980 by the Patwari at the pointing out of the accused. These articles alongwith other blood stained articles were sent to the Chemical Examiner, Lucknow. According to the report of the Chemical Examiner the gandasa as well as the clothes of the accused were found to be stained with human blood. This fact also corroborates the prosecution evidence. 8. 1980 by the Patwari at the pointing out of the accused. These articles alongwith other blood stained articles were sent to the Chemical Examiner, Lucknow. According to the report of the Chemical Examiner the gandasa as well as the clothes of the accused were found to be stained with human blood. This fact also corroborates the prosecution evidence. ( 13 ) APART from the evidence produced by the prosecution, there is also confessional statement of the accused Sohan Singh on 2. 9. 1980 by Munsif Magistrate, Lansdowne Shri A. S. Chaudhary (P. W. 3 ). In this statement the accused has asserted that he did not hit Sultan Singh immediately but first Sultan Singh had slapped him two or four times and also he hit by stones on which he (the accused) asked the deceased to listen to him on which he called his wife saying he will cut him down on which he (the accused) hit the deceased by gandasa, as a result of which he died about one and a half hour later. The accused has also stated that at first the deceased had entered his room on which he pushed him out and that he had hit the victim on the stair case. This confessional statement indicates that the injuries on the head of the victim were caused by the accused with his gandasa. In this circumstance the accused has assaulted the deceased but at first the deceased had slapped and also threw one or two stones. There is absolutely no material to support this assertion. There is no medical report to show that the accused had received and injury at the time of the occurrence. The deceased had admittedly died on the stairs of the house. It appears that he has no occasion to enter the room of the accused and or to slap him or to cause any other injury to him. In his statement under Section 313 Cr. P. C. the accused has tried to aggravate the alleged role assigned to the deceased. He has asserted that when the deceased was going to Kaindalswera he picked up stones and threw some at his house on which he came inside the house. Sultan Singh then came to the house and beat him. The deceased also took out the gandasa (Ext. 1) and hit the accused on his hand. He has asserted that when the deceased was going to Kaindalswera he picked up stones and threw some at his house on which he came inside the house. Sultan Singh then came to the house and beat him. The deceased also took out the gandasa (Ext. 1) and hit the accused on his hand. He then snatched the gandasa and hit the victim on his head. It is obvious that the version given in the statement under Section 313 Cr. P. C. is totally different from the version given in the statement under section 164 Cr. P. C. As mentioned earlier, there is nothing to prove that the accused had received any injury during the occurrence or there was any apprehension that the deceased will cause any grievous injury to him. It appears that when the deceased came to the house of the accused to remonstrate, the accused killed him by hitting him on the head with gandasa. We are unable to accept the assertion made on behalf of the appellant that he had any right of private defence, in view of the facts and circumstances of the present case. ( 14 ) ON a close examination of the entire material on record we are of the view that the prosecution has fully established the guilt of the accused beyond reasonable doubt. This appeal is accordingly dismissed. An amount of Rs. 1100/- be paid as fee to Shri Shakil Ahmad, Advocate as amicus curiae. Appeal dismissed. .