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2014 DIGILAW 1073 (ALL)

Kandhai v. State of U. P.

2014-04-02

RAMESH SINHA, SHEO KUMAR SINGH

body2014
JUDGMENT Ramesh Sinha, J.: - Heard Sri Apul Mishra, learned counsel for the appellant no.2 and Sri K.S. Yadav, learned A.G.A. for the State. 2. The present appeal has been filed against the judgment and order dated 13.2.1986 passed by 4th Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 606/1984 by which the appellant no.1 Kandhai has been convicted and sentenced under Section 302 I.P.C. to undergo imprisonment for life, under Section 307 I.P.C. to 7 years rigorous imprisonment and under Section 25 (1)A of the Arms Act to 2 years rigorous imprisonment and under Section 27 of Arms Act to 5 years rigorous imprisonment and further convicting and sentencing appellant no.2 Shiv Narayan under Section 302 /34 I.P.C. for imprisonment for life and 307/34 to 7 years rigorous imprisonment. 3. The appeal of the appellant no.1 Kandhai, who has died, has been ordered to be abated by this court vide order dated 6.03.2014. 4. The prosecution case in brief is that on 30.9.1984 son of the informant Lal Sahai namely Ajay Pal Singh (deceased) had gone at the shop of the accused Kandhai Lohar for sharpening of Khurpi and Gandasa. The deceased, Ajay Pal Singh, was also accompanied with the nephew (Bhanja) of the informant namely Gajraj Singh. Accused Kandhai refused to sharpen the said items of Ajay Pal Singh then his nephew Gajraj Singh had gone to call the informant, who also came at the shop of Kandhai and questioned him regarding reason for not sharpening the tools on which the accused Kandhai told him that they fail to pay him his money in time on which altercation took place between them. The accused Kandhai went to his house and had brought his father's licensee gun along with him his uncle Shiv Narayan Singh. Shiv Narayan started abusing the son of the informant and further exhorted accused Kandhai to shoot Ajay Pal Singh, on which the accused Kandhai fired a shot at Ajay Pal Singh, which hit his abdomen upon which he fell down. The accused Kandhai fired a second shot which hit his nephew, Gajraj Singh, and to one Ram Saran of the village. Thereafter accused Kandhai and Shiv Narayan went to their house and close the doors. The villagers present at the place of occurrence namely, Kalyan Singh, Laxman Singh, Devi Singh and Sardar Singh had seen the incident. The accused Kandhai fired a second shot which hit his nephew, Gajraj Singh, and to one Ram Saran of the village. Thereafter accused Kandhai and Shiv Narayan went to their house and close the doors. The villagers present at the place of occurrence namely, Kalyan Singh, Laxman Singh, Devi Singh and Sardar Singh had seen the incident. Ajay Pal Singh who was alive at that time was taken to his house along with the injured who were also left in the house and the informant went to the police station to lodge the first information report. 5. The informant Lal Sahai lodged the FIR about the incident at 6.15 p.m. on the same day at police station Nigohi, which was registered as Case Crime No. 196 under section 307/34 I.P.C. The investigation of the case was carried out and on the same day the investigating officer sent the injured for their medical examination and the dead body of the deceased for post mortem examination. The statements of the witnesses were recorded by the investigating officer and thereafter charge sheet was submitted against the accused persons. The Trial Court framed charge aginst accused Kandhai for the offence under Section 302 , 307 I.P.C. and Section 25 (1)A and 27 of the Arms Act and framed charges against the accused Shiv Narayan under Section 302 read with 34 I.P.C. and 307 read with 34 I.P.C. respectively. 6. The accused denied prosecution allegation and pleaded not guilty and claimed to be tried. 7. The prosecution in support of its case has examined nine witnesses such as PW-1 Lal Sahai the informant, PW-2 Ram Saran injured, PW-3 Sardar Singh who is eye-witness of the incident where as PW-4 Raj Bahadur Singh the Station Officer of Police Station Nigohi who has proved the FIR and other police papers, PW-5 S.N. Misra Sub-Inspector who is the investigating officer of the case and submitted charge sheet against the accused, PW-6 Dr. B.P. Sharma, the Radiologist who has conducted post mortem of the deceased, PW-7 Ishwari Prasad who took the dead body of the deceased for post mortem, PW-8 B.P. Verma who is the technician of Sadar Hospital and PW-9 Dr. K.N. Tiwari who has medically examined the injured. 8. B.P. Sharma, the Radiologist who has conducted post mortem of the deceased, PW-7 Ishwari Prasad who took the dead body of the deceased for post mortem, PW-8 B.P. Verma who is the technician of Sadar Hospital and PW-9 Dr. K.N. Tiwari who has medically examined the injured. 8. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied the prosecution allegation and have submitted that they have been falsely implicated in the present case. The accused Kandhai has stated that prior to the incident his father namely Dev Narayan had refused to sharpen the Khurpi and Gandasa of Lal Sahai. He submitted that the shop in question neither belong to him nor he used to work there. On the next day Lal Sahai, deceased Ajay Pal Singh, Ram Saran, Sardar Singh armed with gun and country made pistol came to their house and fired. The informant's father Dev Narayan in order to save himself started running and took shelter of a wall and fired. Sardar Singh and Lal Sahai who are resident of Gusgavahan. Sardar Singh works on the agricultural field of Lal Sahai on 'Batai'. The accused Shiv Narayan has stated in his statement under Section 313 Cr.P.C. that it was the informant and his associates who were the aggressors. 9. PW-1 Lal Sahai has supported the prosecution story and deposed that the accused Kandhai has fired on his son at the exhortation of appellant Shiv Narain due to which his son Ajay Pal Singh died. The second shot has also fired by accused Kandhai which hit his Bhanja, Gajraj Singh, and one Ram Saran of the village. 10. PW-2 Ram Saran who is the injured witness has also supported the prosecution story as has been stated by PW-1. 11. Further PW-3 Sardar Singh who is an eye-witness of the occurrence has reiterated the prosecution version given by PW-1 and PW-2. 12. 10. PW-2 Ram Saran who is the injured witness has also supported the prosecution story as has been stated by PW-1. 11. Further PW-3 Sardar Singh who is an eye-witness of the occurrence has reiterated the prosecution version given by PW-1 and PW-2. 12. PW-4 Raj Bahadur Singh who was the Station Officer of the Police Station Nigohi has proved the lodging of the FIR and the G.D. No. 39 dated 30.9.1984 which was marked as Exhibit-Ka-2 G.D. No. 2 dated 1.10.1984 which has been marked as Exibit-Ka-3, recovery memo of blood stained clothes Exhibit-Ka-4, Chitti-Majrubi of injured Gajraj Sigh and Ram Saran Singh Exhibit-Ka-5 and 6, G.D. No. 1510 of 1984 Exhibit-Ka-7, charge sheet Exhibit-Ka-8, clothes of injured Gajraj Singh and Ram Saran Singh Exhibit-Ka-1 & 2, recovery memo of the gun which was taken from accused Dev Narayan Exhibit-Ka-3 along with license Exhibit-Ka-4, investigating officer started investigation of the witnesses made the spot inspection of the place of occurrence, prepare site plan Exhibit-Ka-10, recovery memo of blood stained simple earth Exhibit-Ka-11, inquest report Exhibit-Ka-12 to Ka-15, recovery memo of Fard Lifafa Exhibit-Ka-16, recovery memo of Khurpi and Gadasa Exhibit-Ka17 and Photo Nash Exhibit-Ka-18. 13. PW-5 S.N. Misra, Sub Inspector has conducted the investigation and has prepared exhibits, recorded the statement of witnesses, prepared site plan, conducted the inquest (Panchayatnama) of the deceased, prepared the recovery memo of Khurpi and Gandasa and has proved the exhibits thereof. 14. Prosecution witness Dr. B.P. Sharma, PW-6 has conducted post mortem of the deceased Ajay Pal Singh on 1.10.1984 at 4.30 pm. and found the following ante-mortem injury on the body of the deceased: - Multiple fire arm injury scattered on front of chest abdomen and thies in an area of 85 cm. X 20 cm. vertically more on left side. They are of different sizes and shapes measuring from 1mm. X 2mm skin to muscle deep to 2mm.X 3.5 mm. skin and muscle deep. No blackening and charring and tattoing present direction from front to back. 15. PW-7 Constable Ishwari Prasad who has taken the dead body under the seal condition for post mortem to the mortuary.. 16. PW-8 B.P. Verma was a technician who had proved the X-ray report prepared by Dr. B.P. Sharma and proved Exhibit-Ka-19 and 20. 17. PW-9 Dr. No blackening and charring and tattoing present direction from front to back. 15. PW-7 Constable Ishwari Prasad who has taken the dead body under the seal condition for post mortem to the mortuary.. 16. PW-8 B.P. Verma was a technician who had proved the X-ray report prepared by Dr. B.P. Sharma and proved Exhibit-Ka-19 and 20. 17. PW-9 Dr. K.N. Tiwari, has medically examined the two injured and found following injuries on the body of injured Ram Saran. 1. Lacerated oval wound of 0.4 x 0.2 cm. on left side of abdomen 11 cm. lateral and below umbilicus at 4 o'clock position. Margins of wound inverted. Probing not done. 2. Lacerated oval wound of 0.3 x 0.2 on outer side of left thigh 6 cm. below and lateral to the Lt. Ant. Sup. Iliac spine. Margins of wound inverted, wound is ½ cm. deep and directed lateral medially. 3. Lacerated oval wound of 0.4 x 0.3 1 cm. on outer side of left thigh 30 cm. above left knee joint. Margins of wound inverted and direction. Lateral medially. 4. Lacerated oval wound of 0.4 x 0.3 x 1 cm. on outer side of left thigh 1.5 cm. above the injury no.3. Margins of wound inverted direction lateral medially. 5. Lacerated oval wound of 0.5 cm. x 0.3 cm. x 1 cm. on outer side of left thigh 4 cm. Post to the injury no.3. Margins inverted direction lateral medially. 6. Lacerated oval wound of 0.4 x 0.3 x 2 cm. on outer side of left thigh 7 cm. Post to the injury no. 3 wound's margins inverted direction lateral medially. 18. Dr. K.N. Tiwari, PW-9 has also medically examined the other injured and found following injuries on the body of injured Gaj Raj Singh. 1. Multiple lacerated oval wounds of 0.4 cm. x 0.3 cm. on right side of scalp in 20 x 14 cm. area. Margins of wounds are inverted. Direction Postero-Anteriorly. One F.B. Palpable on right side of scalp 12 cm. above the right ear and 15 cm. above the right eye brow are FB. Palpable on right sided scalp 5 cm. about the lateral end of right eye brow. 2. Lacerated oval wound of 0.4 cm. x 0.3 cm. x 0.5 cm. right side of neck on the lower end of right mastoid process wound. Margin inverted direction Postero Anteriorly. 3. above the right eye brow are FB. Palpable on right sided scalp 5 cm. about the lateral end of right eye brow. 2. Lacerated oval wound of 0.4 cm. x 0.3 cm. x 0.5 cm. right side of neck on the lower end of right mastoid process wound. Margin inverted direction Postero Anteriorly. 3. Lacerated oval wound of 0.4 x 0.3 x 1 cm. on right side of cheek 3 cm. and to the ......of right ear. Margins of wound inverted direction Poitero-Anteriorly. 4. Lacerated oval wounds of 0.6 cm. x 0.4 cm. right side of face 3 cm. Post to the outer .........of right eye. Wound is directed Postori Anteriorly 1 cm. deep. Margins inverted. 5. Lacerated oval wound of 0.4 x 0.3 cm. on right side of face 2 cm. above the Ancle of right mandible. Margins of wound inverted direction Postero Anteriorly 1 cm. deep. 6. Lacerated wound of 0.5 cm. x 0.3 on right ear. Wound is Cartilage deep. 7. Lacerated oval wound of 0.4 x 0.3 on right side of neck 4 cm. above the medial end of right clavicle. Margins of wound inverted. 8. Lacerated oval wound of 0.4 x 0.3 cm. as right sided neck a cm above the lateral end of right clavicle. Margin of wound inverted. 9. Lacerated oval wound of 0.3 x 0.2 on right side of face 3 cm. below the lower eye lid of right eye. Margins of wound inverted ½ cm. deep direction postero anteriorly. 10. Lacerated oval wound of 0.5 x 0.4 cm. on outer side of right fore arm. 8 cm. about the right wrist joint wound is 1 cm. deep direction Postero Anteriorly. Margins inverted. 19. In defence the accused has examined DW-1, Deo Narayan who is the father of appellant no.1 Kandhai. He has stated that he along with his son used to live in one house but in separate rooms and at the time of incident the accused Kandhai was a cultivator and he was doing work of Lohargiri. The incident had taken place at about 3.00 p.m. in the afternoon and at that time shop was closed and he was at his house. The informant Lal Sahai, deceased Ajay Pal Singh, injured Gaj Raj Singh and Ram Saran and one Laxman Singh had come to his house. The incident had taken place at about 3.00 p.m. in the afternoon and at that time shop was closed and he was at his house. The informant Lal Sahai, deceased Ajay Pal Singh, injured Gaj Raj Singh and Ram Saran and one Laxman Singh had come to his house. Lal Sahai was armed with a gun, Ram Saran with Tamancha and others were armed with Kanta. They started abusing and were calling him and his son Kandhai to come out of the house and they would be killed and would not be left out, on which said witness asked them not to abuse and suddenly a shot was fired. The witness also had a licensee gun and he climbed on his roof to save his life and property taking shelter behind a wall shouted to the informant and his associates to leave the place. He asked them not to fire shot otherwise he would also retaliate and fire and when the said people did not paid any heed to his request the said witness also fired a shot. The said persons left away and after some time he came out of the house and found that there was no person at his door and he went back to his house. While he was going from his house along with his gun for lodging the report he was threatened for dire consequences if FIR was lodged against them. At the time of incident appellant Kandhai was stated to be at his field. He further stated that a day before the incident, in the afternoon Lal Sahai and Ajay Pal Singh (deceased) had come for getting the Khurpi and Gandasa sharpen on which he stated to them that as they did not pay any money to him hence he would not sharpen the said items on which there was altercation between them. The deceased Ajay Pal Singh threatened that if the said items were not sharpen then he would not be allowed to live in the village and further threatened consequences of his life. Kandhai was also present at that time and there was some altercation with him also. The deceased Ajay Pal Singh threatened that if the said items were not sharpen then he would not be allowed to live in the village and further threatened consequences of his life. Kandhai was also present at that time and there was some altercation with him also. On next day of the incident the police had come to his house and had taken them to police station when he requested the police to lodge his FIR but it was not registered and he was detained in the police station for a day. The police personnels on the next day informs that a FIR has been lodged against Kandhai and Shiv Narayan Singh. He submitted that he has fired in his self-defence and statement of one eye-witness Laxman Singh was also filed which was marked as Exhibit-Kha-1. 20. Sri Apul Mishra, learned counsel for the appellant no.2, Shiv Narayan Singh, has submitted that the role which has been assigned to the appellant is of exhortation on which the co-accused Kandhai, has fired at the deceased which hit him on his chest and abdomen and due to which he succumbed to his injuries and further the accused Kandhai also fired a shot which hit the two injured viz. Gaj Raj Singh and Ram Saran, who also received pellet injuries on their person and on the x-ray of the said two witness multiple radio shadow was also found. He submitted that the co-accused Kandhai has died during the pendency of the appeal and his appeal been ordered to be abated by this court. 21. He further urged that the appellant being the uncle of co-accused Kandhai has been falsely implicated in the present case and the role of exhortation has been given to him by the informant as well as by the injured though the appellant had made no overt act in the incident. He submitted that the conviction of the appellant by the trial Court with the aid of Section 34 I.P.C. is against the evidence on record, as from the evidence it is clear that there was no pre-mediation of mind between the two accused either before the incident or at the spur of moment. In support of his argument he has placed reliance on the judgment given by the Apex Court in the case of Hem Raj & Ors. Vs. Raja Ram & Ors. In support of his argument he has placed reliance on the judgment given by the Apex Court in the case of Hem Raj & Ors. Vs. Raja Ram & Ors. Reported in (2004) 9 SCC18 and has drawn attention of the court towards paragraph 11of the judgment which is quoted here in below: "11. Keeping in mind fully that this being an appeal against acquittal, this Court ought to be slow in reversing the same, we considered the evidence of the witnesses and the other relevant facts of the case. We are of the view that the prosecution successfully proved that the accused Raja Ram and Pappu @ Raj Kumar fired bullets at Mota Ram and caused his death. As regards the involvement of Hari Padam, we have serious doubts. Exhortation made to kill the deceased Mota Ram is attributed to him and that by itself is not a strong evidence to prove his complicity. He has to be given the benefit of doubt and we accordingly do so. Though a charge was framed against the accused persons under Section 25 and 27 of the Indian Arms Act, no conviction was entered against them despite the recovery of weapons from them and the proved fact that these weapons were used for the commission of the offence. The evidence on record was not discussed in detail and no no conviction was entered against them for that offence. So we do not want to express and opinion on that count. 22. He has further placed reliance on the judgment of Apex Court given in the case of Zahoor & Ors. Vs. State of U.P. passed in 2011 Law Suit (SC) 605 and has drawn the attention of the court towards para 3 and 4 of the judgment which is quoted herein below: 3. We have heard the learned counsel for the parties and find no reason to interfere with the conviction recorded by the High Court in so far as the appellant-Babu is concerned. However, in the light of the fact that the other two appellants i.e. Zahoor and Subrati have been brought in with the aid of Section 34 of the IPC, their conviction and sentence cannot be maintained as the vicarious liability under Section 34 cannot be fastened as Section 34 deals with common intention which pre-supposes some prior planning or pre-concept of minds even during the incident. Moreover, we find that Zahoor and Subrati had not caused any injury to the deceased or to anybody else and the only allegation against them that they had exhorted their co-accused to shoot at the deceased Puttan. In other words no overt act has been attributed to them. 4. We also see from the record that the appellant-Babu was of tender age on the date of the incident. The incident happened in the year 1979 which would now make him about 60 years of age as of now. We quite appreciate that one man has been shot dead but in the overall picture we feel that the ends of justice would be met if the sentence is reduced from 10 to 5 years under Section 304 Part-I of the IPC. The appeal against Zahoor and Subrati is allowed in toto but insofar as the appellant-Babu is concerned, the appeal is dismissed with the reduction in the sentence. 23. Hence on the strength of the said two judgments, he submitted that the conviction and sentence of the appellant awarded by the Trial Court be set aside. 24. Learned A.G.A. on the other hand has argued that the incident has taken place in a broad day light and one person has lost his life and two persons received injuries namely Gaj Raj Singh and Ram Saran Singh out of which PW-2 Ram Saran was brought before the trial Court who has supported the prosecution story and has deposed that at the exhortation of the appellant no. 2, Shiv Narayan Singh, the accused Kandhai shot fire at the deceased on account of which he succumbed to the injuries and further the accused Kandhai also shot at the two injured who also received injuries of fire arm. He submitted that the trial Court has rightly convicted the appellant Shiv Narayan Singh with the aid of Section 34 I.P.C. Hence his conviction and sentence is justified by the trial Court. 25. Considering the submission advanced by the parties and perused the record. 26. From the entire evidence on record it is admitted case of prosecution that it was the appellant who had instigated the co-accused Kandhai to fire a shot at the deceased which hit him on his chest on account of which the deceased died. 25. Considering the submission advanced by the parties and perused the record. 26. From the entire evidence on record it is admitted case of prosecution that it was the appellant who had instigated the co-accused Kandhai to fire a shot at the deceased which hit him on his chest on account of which the deceased died. Thereafter accused Kandhai fire second shot which hit two injured who also received injuries on their person and further when the x-ray was performed and multiple radio opaque shadow was also found on their person. 27. From the evidence of PW-1 and 2 it is clear that the presence of appellant Shiv Narayan at the place of occurrence cannot be doubted but taking into account the entire prosecution story there appears to be some exaggerated version regarding participation of the appellant in the present incident. It cannot also be ruled out that the appellant being the uncle of the accused Kandhai has been false implicated in the present case though he had no dispute with the deceased and the main dispute was between accused Kandhai and his father Dev Narayan. 28. It appears from the evidence that when the incident took place, several persons of the village had arrived and the appellant who was the uncle of the accused Kandhai and real brother of Dev Narayan, who is the father of co-accused Kandhai may have gone to the place of occurrence and there also appears to be his falsely implication in the present case by the informant. The appellant at the time of incident was about 40 years of age and at present he is stated to be of 70 years. 29. Therefore, the conviction of the appellant by the trial Court taking the aid of Section 34 I.P.C. appears to be unreasonable as there is no evidence to show that there was pre-mediation of mind between the appellant and co-accused Kandhai or pre-concept of mind even during the incident to commit the murder of the deceased. The aforesaid two judgments of the Apex Court which has been relied upon by the learned counsel for the appellants in support his argument to show that exhortation made to kill the deceased Ajay Pal Singh which has been attributed to the appellant that by itself is not a strong evidence to prove his complicity, is acceptable. 30. The aforesaid two judgments of the Apex Court which has been relied upon by the learned counsel for the appellants in support his argument to show that exhortation made to kill the deceased Ajay Pal Singh which has been attributed to the appellant that by itself is not a strong evidence to prove his complicity, is acceptable. 30. Hence the appellant has to be given the benefit of doubt and we accordingly do so. As the appellant had not caused any injury to the deceased or anybody else and the only allegations against him is that he had exhorted the co-accused to shoot at the deceased in other words no overt act has been attributed to him. 31. We further see from the record that the appellant was aged about 38 years on the day of incident and the incident is of the year 1984 which would now make him about 70 years of age. Hence we give benefit of doubt to the appellant. 32. In view of the aforesaid discussions, the impugned judgment and order passed by the trial Court convicting and sentencing the appellant no.2 Shiv Narayan is hereby set aside. The appellant is acquitted of the charges. He is stated to be on bail. He need not surrender and his bonds and sureties are discharged. 33. The appeal stands allowed.