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2015 DIGILAW 292 (ALL)

Rajendra Singh v. State

2015-02-13

AMAR SARAN, VIPIN SINHA

body2015
JUDGMENT Vipin Sinha, J. 1. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Sheshadri Trivedi, learned counsel for the appellants, learned AGA for the State and perused the record of the case. 2. This criminal appeal arises out of a judgment and order dated 9.12.1982 passed by Additional Sessions Judge (Special Judge), Fatehpur in S.T. No. 124 of 1982 by which he has convicted and sentenced appellant Nos. 1 and 2, namely, Rajendra Singh @ Rajola Singh S/o. Amar Nath Singh and Gaya Shanker Singh S/o. Kuber Singh to undergo two years rigorous imprisonment under Section148 IPC each and life imprisonment under Section 302 IPC read with Section 149 IPC and further appellant No. 3 Udai Kumar Singh has been convicted and thereafter sentenced to undergo two years rigorous imprisonment under Section 148 IPC and life imprisonment under Section 302 IPC read with Section 301 IPC. 3. Before proceeding with the case of the prosecution, it may be noted that the present appeal was initially filed on behalf of three accused-appellants, namely, Rajendra Singh @ Rajola Singh (appellant No. 1), Gaya Shanker Singh (appellant No. 2) and Udai Kumar Singh (appellant No. 3), however, during the pendency of the appeal, appellant No. 2 Gaya Shanker Singh has expired and accordingly the appeal filed on behalf of him stood abated vide order of this Court dated 15.5.2012. Thus, at present, the present appeal is being considered only with regard to appellant Nos. 1 and 3, namely, Rajendra Singh @ Rajola Singh and Udai Kumar Singh, respectively. 4. The case of the prosecution, as unveiled in the FIR which was lodged on the same day of incident at about 10.45 PM by Shiv Sagar Singh, father of the deceased Ram Swaroop, is as follows : "The incident is said to have taken place in the intervening night of 14/15.7.1981 at about 9.30 PM at the house of late Sri Hakim Singh situated at Mohalla Collectorganj, Fatehpur, PS Kotwali, District Fatehpur. It has been alleged that one Amar Nath Singh son of Kuber Singh, a resident of the same village, was murdered the previous year at Fatehpur in which incident Pratap Singh son of first informant was made an accused and subsequently Pratap Singh was convicted and sentenced. Aggrieved against which, Pratap Singh filed an appeal before the High Court in which he was granted bail. Aggrieved against which, Pratap Singh filed an appeal before the High Court in which he was granted bail. After being released from jail, Pratap Singh along with his father Shiv Sagar Singh (the first informant), Rakesh Singh, Sukhdeo Singh and Ashok Kumar were sitting in a room on the second floor of the house. Five persons after climbing on the stairs reached the said room and stood before the window. Of the said five persons standing before the window, Gaya Shanker Singh S/o. Kuber Singh, Rajendra Singh @ Rajola Singh S/o. Amar Nath Singh were carrying SBBL guns, Udai Kumar Singh S/o. Gyanendra Singh was armed with a rifle and of the two unknown persons one was carrying a torch and the other was armed with a tamancha. Udai Kumar Singh fired at Pratap Singh with his rifle, which shot however missed but struck Ram Swaroop on the head who died on the spot. The son of Ram Swaroop has escaped. On the hue and cry raised by the persons, all the accused appellants ran down the stairs and thereafter made good their escape. Of all the accused persons, three persons, namely, Gaya Shanker Singh, Rajendra Singh @ Rajola Singh and Udai Kumar Singh were recognized in the light of bulb which was available in the room whereas two persons were unknown. The body of deceased Ram Swaroop was lying on the spot." 5. Now before we examine the case of the prosecution, the court would look at certain facts with regard to the motive as has been alleged in the FIR itself. Motive: 6. One Amar Nath Singh S/o. Kuber Singh was murdered at Fatehpur on 27.5.1980. Pratap Singh S/o. first informant Shiv Sagar Singh was the main accused in that case in which case he was convicted and sentenced to life imprisonment vide order dated 29.6.1981. Aggrieved against the said conviction and sentence, Pratap Singh had filed an appeal before the High Court wherein he was granted bail on 14.7.1981. Thereafter, he had come to his village at the house of late Hakim Singh. At this stage, it may be brought on record that Hakim Singh was the son-in-law of the first informant Shiv Sagar Singh. 7. Thereafter, he had come to his village at the house of late Hakim Singh. At this stage, it may be brought on record that Hakim Singh was the son-in-law of the first informant Shiv Sagar Singh. 7. As far as the accused persons are concerned, appellant No. 1 Gaya Shanker Singh S/o. of Kuber Singh is the brother of late Amar Nath Singh who was murdered at Fatehpur, appellant No. 2 Rajendra Singh @ Rajola Singh is the son of Amar Nath Singh and appellant No. 3 named in the FIR is Udai Kumar Singh son-in-law of Amar Nath Singh. 8. Dr. Lal Virendra Pratap Singh, who was examined as PW4, had conducted the postmortem on the body of deceased Ram Swaroop and found the following injuries on the body of deceased: "Firearm wound of entry on the left skull. 1'' x 1/2'' x deep to the skull cavity left temporal bone and left parietal bones fractured 1'' above the left ear. Occipital and right parietal bones are fractured. One pellet of metallic flame shape recovered and sent to S.P., Fatehpur through proper channel under sealed envelop." 9. As per the doctor's opinion, the death could have occurred on 14.7.1981 at about 9.30 PM, however, it is evident that only one gunshot wound was found on the body of the deceased. 10. The prosecution in order to prove its case has been successful in producing two witnesses, namely, PW1 Shiv Sagar Singh, father of the deceased and PW2 Pratap Singh. 11. Now if we evaluate the evidence as has been recorded by the prosecution in support of its case vis-à-vis the position which crystallizes is mentioned herein as under: 12. PW1 Shiv Sagar Singh in his statement has stated that He further states that while he was sitting in the room of late Hakim Singh along with Pratap Singh, Rakesh Singh another son of late Hakim Singh, Sukhdeo Singh, Ashok Kumar Singh and Ram Swaroop Yadav, five persons arrived at the window of the room whom he recognized in the light of the bulb which was available in the room. He further stated that. 13. Thus, from the evidence of the said witness, namely, PW1 Shiv Sagar Singh, it is evident that an attempt has been made to implicate all the relatives of late Amar Nath Singh. He further stated that. 13. Thus, from the evidence of the said witness, namely, PW1 Shiv Sagar Singh, it is evident that an attempt has been made to implicate all the relatives of late Amar Nath Singh. As per his own case the incident took place in a split second inasmuch as he reiterates that 14. Thus it is understandable that appellant No. 3 Udai Kumar Singh was recognized by PW1 being the main assailant. Moreover, since appellant No. 3 Udai Kumar Singh had fired close from the window itself he could have been recognized by other persons sitting in the room, however, but by no stretch of imagination can it be said that all the five accused persons, three of whom were known to the other party would come and stand at the window at the same time and if a person is firing from a rifle he would need some space for taking a firing stance and thus it was not possible for all the five accused persons to stand in a row before the window as has been mentioned by PW1 inasmuch as he states that 15. As if it was a case of pretty maidens standing in a row, thus, it is apparent from the evidence of witness i.e. PW1 that he could have seen appellant No. 3 Udai Kumar Singh firing towards room from the window, there was no way that he could have seen the other persons as mentioned in the FIR. Even in the FIR it has been stated that 16. The Court feels that it is highly improbable that all the five accused persons will come and stand before the window and throw a challenge to the other party to recognize them. It is further evident that there were persons living on the ground floor of the said house who were not examined. Moreover, there was no way for the first informant to have known that five persons were climbing the stairs while they were sitting inside the room. In his statement, PW1 Shiv Sagar Singh stated that Sukhdeo and Ashok Kumar had rushed out after the incident but they had seen the accused escaping. Moreover, there was no way for the first informant to have known that five persons were climbing the stairs while they were sitting inside the room. In his statement, PW1 Shiv Sagar Singh stated that Sukhdeo and Ashok Kumar had rushed out after the incident but they had seen the accused escaping. It is also surprising that though Sukhdeo Singh was also a witness to the incident but he did not name the accused persons nor has Ashok Kumar, the other alleged person who was present at the spot, given any name, however, it has also come in evidence that Sukhdeo was subsequently murdered and Ashok Kumar was never examined. 17. PW2 Pratap Singh, in his statement, has stated that 18. Thus, in the evidence of PW2 Pratap Singh, it has clearly come that it was appellant No. 3 Udai Kumar Singh who had fired the shot from the window. He, however, also says that all the three persons, namely, Gaya Shanker Singh, Rajendra Singh @ Rajola Singh and Udai Kumar Singh were standing at the window which again is not possible because if Udai Kumar Singh was firing from his rifle then he would need some space at the window to take a firing stance. There were iron pores in the window and thus a person would have to take a clear stand before the window right in the center for the rifle barrel through the window and then attempt a shot. There was no way for 3-4 persons to stand simultaneously and come at the window because if that was a case then a rifle could not be fired. 19. Thus, in view of the aforesaid evidences i.e. PW1 and PW2, it could be safely presumed that appellant No. 1 Rajendra Singh @ Rajola Singh was not present at the spot and has been implicated only on account of the fact that he was the brother of Amar Nath Singh and since appellant No. 3 Udai Kumar Singh was seen and recognized and was assigned the main role, appellant No. 1 was falsely implicated by presumption that he must also have been there and thus apparently it is case of false implication. As far as appellant No. 1 Rajendra Singh @ Rajola Singh is concerned, it may also be appreciated that neither any recovery has been made from him nor there any corroborative evidence with regard to his presence nor has he been assigned any role in the said incident in which the main role has been assigned to appellant No. 3 Udai Kumar Singh. 20. At this stage it may also be appreciated that DW1 Anand Swaroop, who happens to be the real younger brother of deceased Ram Swaroop, has clearly stated on oath that 21. It may further be appreciated that said plea of alibi or the statement of DW1 has been rejected by the court below in a very cavalier manner, however, if the evidence itself is unable to show effectively the presence of Rajendra Singh @ Rajola Singh at the place of occurrence then he could not have been convicted by taking the aid of Section 149 IPC and thus, his very presence is doubtful at the place of occurrence. This Court has no hesitation in extending the benefit of doubt to appellant No. 1 Rajendra Singh @ Rajola Singh in view of the aforesaid evidence on record. This Court has serious doubts about the presence of appellant No. 1 Rajendra Singh @ Rajola Singh at the place of occurrence and, thus, it will not be safe to uphold his conviction and sentence as awarded by the court below. Accordingly, the conviction and sentence of appellant No. 1 Rajendra Singh @ Rajola Singh is set aside and his appeal is allowed. 22. As far as appellant No. 3 Udai Kumar Singh is concerned, learned counsel for the appellant has strongly contended that no offence under Section 302 IPC would be made out on the facts and circumstances. However, the fact remains that Section 301 IPC enacts a principle that a man shall be punished for offence committed in same manner as he intended it and knew himself to be likely to commit. This section embodies what the English Author described as the doctrine of transfer of malice or transmigration of motive. Under this section, if A intends to kill B but kills C whose death he neither intends nor knows himself to be liberty to cause, the intention to kill C is by law attributed to him and thus, the said argument is misconceived and is accordingly rejected. Under this section, if A intends to kill B but kills C whose death he neither intends nor knows himself to be liberty to cause, the intention to kill C is by law attributed to him and thus, the said argument is misconceived and is accordingly rejected. Hence, as far as appellant No. 3 Udai Kumar Singh is concerned, there is sufficient evidence on record to show his presence on the spot and also he being the main assailant of firing from his rifle, a fact which has been corroborated by the medical evidence according to which there is a rifle injury on the body of the deceased. Accordingly, the conviction and sentence of appellant No. 3 Udai Kumar Singh is confirmed and his appeal stands dismissed. 23. Consequences to follow. 24. The copy of the order be communicated to the CJM concerned for onward compliance.