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2020 DIGILAW 1444 (ALL)

Udal Singh v. State of U. P.

2020-12-07

GOVIND MATHUR, SAUMITRA DAYAL SINGH

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JUDGMENT : By the judgment impugned dated 21.02.1990, learned IXth Additional Sessions Judge, Meerut recorded conviction of the accused-appellants Bhagmal and Udal Singh for an offence punishable under Section 302 read with Section 34 Indian Penal Code and awarded sentence to undergo life term imprisonment. 1. As the accused-appellant Bhagmal died during pendency of the appeal. His appeal abated on 22.07.2019. We are examining the merits of the case to the extent those relate to accused-appellant Udal Singh. 2. Precisely, the case of the prosecution is that on 01.02.1987 at 06:45 P.M., a first information report was lodged at Police Station Mowana by Bhunde Singh with an assertion that on the same day, he, Vijay Pal, Bhunde and Ganga Charan had gone to Village Katka for some urgent work. While returning to their native village on a chak road, the accused Shree Chand, Bhagmal and Udal Singh, all sons of Muley Gujar came out from the sugarcane field and intercepted them. All the accused were armed with country-made pistols. Accused Bhagmal shot at Ganga Charan. Thereafter, the accused Shree Chand and Udal Singh also fired, but those shots did not hit Ganga Charan. As a consequence to the firearm injury, Ganga Charan died at the spot. 3. During investigation, the corpus of the deceased Ganga Charan was subjected to autopsy and, according to the report of that (Exhibit Ka-4), cause of death was shock and hemorrhage as a result of injuries sustained. As there was no doubt about the homicidal death of Ganga Charan, a case was registered against the accused persons for commission of an offence under Section 302 Indian penal Code. 4. During the course of investigation, the Investigating Agency recovered a pistol on the basis of disclosure made by the accused Bhagmal. The weapon of offence and the empty cartridges recovered from the spot of occurrence were sent to the ballistic expert for his report. The bloodstained clothes were sent to the Forensic Science Laboratory for their serological examination. 5. After completing the investigation, a police report was filed before the competent Court against the accused-appellant Bhagmal and Udal Singh. No charge-sheet was filed against Shree Chand as he was also murdered on 01.02.1987, itself. The competent Court committed the case to the Court of Sessions, being sessions triable. 6. 5. After completing the investigation, a police report was filed before the competent Court against the accused-appellant Bhagmal and Udal Singh. No charge-sheet was filed against Shree Chand as he was also murdered on 01.02.1987, itself. The competent Court committed the case to the Court of Sessions, being sessions triable. 6. Learned IXth Additional Sessions Judge, Meerut framed a charge against both the accused for commission of offence punishable under Section 302 read with Section 34 Indian Penal Code. On denial of the same, the trial commenced as desired by the accused persons. The prosecution supported its case with the aid of the evidence adduced by six witnesses and by getting certain several documents exhibited. The articles recovered too were produced in evidence. From among the six witnesses, Bhunde (PW-1) and Shiv Kala (PW-2) were cited as eye-witnesses of the incident. 7. Precisely, the issue under consideration is, whether the evidence available on record is sufficient to establish sharing of common intention by accused-appellant Udal Singh with the accused Bhagmal for committing the crime in question. The Court below after examining the evidence adduced by eye-witnesses reached at a conclusion that the accused Udal Singh shared a common intention with Bhagmal. He has been convicted and awarded punishment, accordingly. 8. We have examined the evidence in detail. PW-1 Bhunde stated that on the fateful day, Bhagmal, Shree Chand and Udal Singh intercepted the deceased Ganga Charan on way back from Village Katka. After some heated arguments between the parties, Bhagmal caused a firearm injury to Ganga Charan. After having suffered the fire-arm injury, Ganga Charan tried to run away from the spot, but he fell down near the house of Ramphal near a Banana tree. On alarm being raised, 10-20 persons gathered there. The other eye-witnesses Shiv Kala S/o Jhabba Singh (PW2) also narrated the same event though differently. 9. On the basis of narration of the facts and events by the two eyewitnesses, the admitted position that emerges is that a single fire-arm injury was suffered by the deceased. It was caused by Bhagmal. The categorical testimony of the two eye witness depicts that the deceased Ganga Charan was shot at first by Bhagmal, which caused the fatal injury. Then, according to the Bhunde (P.W.-1), the appellant Udal Singh shot at Ganga Charan some time after, described as two minutes after the first shot had been fired. It was caused by Bhagmal. The categorical testimony of the two eye witness depicts that the deceased Ganga Charan was shot at first by Bhagmal, which caused the fatal injury. Then, according to the Bhunde (P.W.-1), the appellant Udal Singh shot at Ganga Charan some time after, described as two minutes after the first shot had been fired. Undisputedly, that second shot never hit the deceased Ganga Charan and it did not cause any injury to any person. According to his testimony, upon being hit by the shot fired by Bhagmal, the deceased Ganga Charan ran towards the house of Ramphal where he fell near a Banana tree and died. Yet, according to the testimony of the Shiv Kala (P.W.-2), the present appellant was standing two to three steps behind Bhagmal and that the deceased had started running upon being abused by the accused persons and thereafter he had been shot at by Bhagmal. Reading his statement recorded during cross examination creates further doubt whether three shots were fired or only a single shot had been fired, inasmuch as, he described the incident “jab Bhagmal ne goli chalayi” which may be referring to the only one shot being fired. Also, it creates a doubt as to the time and place when that shot was fired i.e. whether the shot was fired first and the deceased started running thereafter or vice versa. In the latter case, it is difficult to accept how, a second shot may have been fired by the appellant, that too with a time gap of two minutes. Then, Bhunde (P.W.-1), in his cross examination, had further admitted the fact that he along with Ganga Charan (the deceased) were accused persons in the murder of Kudwa, a relative of Bhagmal and that the present appellant (Udal Singh) was an eye witness in that case. 10. Then, Bhunde (P.W.-1), in his cross examination, had further admitted the fact that he along with Ganga Charan (the deceased) were accused persons in the murder of Kudwa, a relative of Bhagmal and that the present appellant (Udal Singh) was an eye witness in that case. 10. In such circumstances, as noted above, a reasonable doubt arises as to whether the present appellant has been falsely implicated only on account of the earlier murder charge against the witness Bhunde (P.W.-1) wherein the present appellant was an eye witness, especially since the testimony of the other witness Shiv Kala (P.W.-2) is also not free of doubt whether a single shot or three shots were fired at the deceased and it is not consistent with the testimony of Bhunde (P.W.-1), inasmuch as, according to Shiv Kala (P.W.-2), the deceased was shot at by Bhagmal while he (deceased) was trying to escape though according to Bhunde (P.W.-1), the shot was fired first and thereafter the deceased tried to escape. Undoubtedly, the post mortem report only supports a single fire arm injury having been caused. 11. Other than the above evidence, which is not free from reasonable doubt, no material was brought on record to establish common intention by the appellant Udal Singh with the main accused Bhagmal to cause the murder of Ganga Charan. In absence of any other or corroborative evidence led by the prosecution to establish common intention on part of the appellant to commit the murder of Ganga Charan, in the state of evidence that otherwise exists, the appellant Udal Singh is entitled to a benefit of doubt. 12. Thus, the conviction of the accused Udal Singh with the aid of Section 34 Indian Penal Code, in our considered opinion, is not correct. The accused, as such, deserves to be acquitted. 13. Accordingly, this appeal is allowed. The judgment impugned dated 21.02.1990 passed by learned IXth Additional Sessions Judge, Meerut is set aside to the extent it records conviction of the accused Udal Singh for commission of offence under Section 302 read with Section 34 Indian Penal Code. The accused Udal Singh be released from the State custody forthwith, if not required in any other case.