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Ram Narain Singh (In Jail) vs State

High Court Of Judicature at Allahabad|19 December, 2002

JUDGMENT / ORDER

JUDGMENT Y.R. Tripathi, J.
1. This criminal appeal is directed against the conviction and sentence recorded by Sri Usha Kant Verma, the then IIIrd Addl. Sessions Judge, Kanpur in S.T. No. 8 of 1980 State v. Ram Narain Singh, whereby he having convicted the appellant-Ram Narain Singh S/o Ayodha Singh r/o village Fattepur Gohi P.S. Bidhuna District Kanpur of the charge under Section 302. I.P.C. has sentenced him to undergo imprisonment for life.
2. The appellant and the deceased are residents of village Fattepur Gohi, which lies within police station Bidhuna District Kanpur at a distance of 8 miles to the northwest of the Police Station, To the south of the house of the deceased there is 2-2 1/2 paces wide path way running from east to west. To the south-west of the house "of the deceased after the said path way existed the house of one Toothi Chamar. The house of Toothi Chamar opened in his sahan to the west. There existed two cattle troughs adjacent to the south of the path way lying to the south of the house of the deceased. The two cattle troughs were at a distance of 5-6 feet from each other and the space between them was in the form of Chabutra having raised level.
3. With the aforesaid topographical situation, the prosecution case in short, was that on 27-10-1979 at about 6 p.m. an altercation took place between the deceased and Ram Narain Singh over some earthen wine ware which resulted in exchange of abuse from both the sides. While the wordy duel between the deceased and appellant was going on the deceased was present on the south-east corner of the roof of his house and the appellant at the Chabutra lying in between the two aforesaid cattle troughs to the south of the deceased's house. On hearing alarm the family members of the deceased including his brother Mangal Singh P.W. 1 and wife Smt. Sumitra Devi P.W. 2 also came on the roof of their house and stood by the side of the deceased. Some villagers including Jageshwar and Basdeo Singh (both not produced) were also attracted on the scene and they stood nearby the appellant. It is said that Mangal Singh P.W. 1 intervened in the quarrel and forbade his brother Ram Pratap Singh from abusing the appellant, but his persuasion went unheeded and the deceased continued hurling abuses on the appellant. In the meantime the appellant threatened the deceased to keep restraint on himself and suddenly fired hitting him on left side of his chest. The deceased on sustaining fire arm injury fell down on the roof of his house and died instantaneously. Overtaken by the sudden incident, the informant and his family members were gripped by grief and they started weeping. After about 2-2 1/2 hours or so when some of the sympathisers asked Mangal P.W. 1, the brother of the deceased to make a report of the incident to the police, he at about 8.30 p.m. set out for the police station in the company of one Anoop Singh (not produced). On his way to Police Station, he came across one Ghanshayam Tiwari (not produced), an acquaintance from whom he got scribed a written report of the incident on his dictation and on reaching at the police station made it over to Constable No. 724 Ram Asrey Singh, who on the basis of that written report prepared a chik F.I.R. and registered a case at Crime No. 280 under Section 302, I.P.C. against the appellant. The police of Police Station Bidhuna swung into action held inquest on the dead body and after completing other formalities, despatched the dead body through Constable Chandrika Prasad and Kaleemuddin (both not produced) for its postmortem examination, which was conducted by Dr. A. B.L. Gupta, then posted as Medical Officer in E.S.T. Dispensary Gawaltoli Kanpur at 4.30 p.m. on 28-10-1979. According to Dr. Gupta P.W. 4 deceased was aged about 25 years. He found a gun shot wound of the size of 1 cm. x 1 cm. on the left side of chest of the deceased, 6 cm. below his right nipple above the 9th rib. He noticed tattooing present. He further found lower lob of lung punctured through and through and pericardium ruptured. He extracted one pellet from the body of the deceased from the muscle of the back of the right side of chest below the right scapula. In his opinion, the deceased had died about half a day before due to shock and haemorrhage as a result of his ante-mortem injuries.
4. The police of Police Station Bidhuna after due investigation presented a charge-sheet against the appellant which culminated into his trial.
5. The prosecution during the course of trial examined Mangal Singh P.W. 1, brother of the deceased Smt. Sumitra Devi, P.W. 2 wife of the deceased (both witnesses of fact), Constable Ram Asrey Singh P.W. 3, who prepared the chik F.I.R. and registered the case at the Police Station, Dr. A.B.K. Gupta P.W. 4, who held the autopsy on the dead body and S.I. Ram Sagar Yadav, the Investigating Officer who after completing the usual formalities of investigation presented the charge-sheet.
6. The case of the appellant was that of denial and false implication. According to him Anoop Singh had involved him in a case under Section 307, I.P.C. in which the police submitted final report. Anoop Singh, thereafter, filed a complaint which was pending at the time of occurrence. He also stated that Mangal Singh P.W. 1 had been challaned under the Excise Act and he had suspicion about appellant being behind his prosecution. The appellant further stated that on the date of occurrence he was present in village Gambhirpur in district Ghazipur where he owned some landed property. In nut shell, he pleaded that he was falsely implicated in this case as a result of his enmity with Anoop Singh. The learned trial Court on appraisal of the evidence found the prosecution case proved and it accordingly convicting the appellant of the charge under Section 302, I.P.C. sentenced him aforesaid, dissatisfied from which the appellant has preferred this appeal.
7. We have heard Sri P. N. Misra, counsel for the appellant and the learned A.G.A. and have gone through the materials on record.
8. It has first of all been argued that from the evidence it is borne out that some villagers were also present on the scene of the incident and had witnessed the occurrence, but they have deliberately been withheld by the prosecution and only interested witnesses who are closely related to the deceased have been produced. True, that some other persons of the village were present at the time of occurrence, but the reason for their non-production is not far to seek. The learned trial Court has also addressed to it on this issue and has rightly held that the appellant being person of criminal background and involved in several heinous crimes it was likely that independent witnesses might not have dared to depose against him. The evidence shows that the appellant was involved in the murder of the brother of Hakim Singh and Ujagir Singh and also for making attempt on the life of Anoop Singh. It is a matter of common experience that independent witnesses are often reluctant to appear as a witness in criminal case for the fear of procuring enmity. It is, therefore, not improbable if independent witnesses did not muster courage to come forward and depose against the appellant, having a criminal history at his credit. The question that crops up here is whether the testimonies of Mangal Singh P.W. 1 brother of the deceased and Smt. Sumitra Devi P.W. 2, wife of the deceased could or could not have been acted upon in absence of corroboration from an independent quarter. The learned trial Court has dealt with this aspect of the case elaborately and by citing certain rulings in support of his view has concluded that there is no rule of law that the evidence of such witnesses should not be relied upon. True, that the evidence of interested witnesses has to be approached with care and caution but once it stands the test of such scrutiny there is no legal bar in relying upon the testimonies of such witnesses as it is natural that such witnesses will necessarily be interested in bringing the real offenders to book rather than screening them at the cost of innocent ones. The incident is said to have taken place at the house of deceased, hence the brother and wife of the deceased were most natural and probable witnesses and if their presence on the place of occurrence is found established, there would be no justification to discard their testimonies only on the ground of their being related to the deceased. The learned trial Court after a thoughtful scrutiny of their evidence has concluded about their presence on the spot at the time of incident, we find no reason to hold otherwise.
9. It has next been contended that the F.I.R. is highly belated and there is every chance of its having been prepared and lodged after deliberation and consultation. The evidence shows that the Police Station Bidhuna lies at a distance of 8 miles from the place of occurrence. The incident as is borne out from the evidence took place around 6 p.m. on 27-10-1979. Naturally the informant must have been overtaken by shock on sudden killing of his brother and it would have taken some time for him to cool down and recover from it. The informant has stated that for about 2 or 2 1/2 hours he and his family members kept on weeping and it was only after some of his sympathisers asked him to make a report, he set out for the Police Station in the company of Anoop Singh. He has also stated that he got a written report prepared on his dictation at Naubasta, on his way to Police Station, by one Ghanshyam Tiwari with whom he was somewhat acquainted and thereafter went to Police Station Bidhuna with that report and made it over there. He has further stated that from his village Fattepur he had gone on foot to Naubasta and from Naubasta also he could not get any conveyance and had to settle the distance of Police Station on foot. He has, therefore, satisfactorily accounted for the time taken by him in making the F.I.R. and when viewed from correct point of view, the time taken in lodging the F.I.R. cannot be said to be unreasonable. A person placed in a situation like that of the informant who had lost his real brother, could not have thought of rushing to the Police Station for making the F.I.R. leaving his family members crying and waiting under reign of terror. Thus, to our mind, time taken in making the F.I.R. by Mangal Singh P.W. 1 cannot be held unreasonable so as to term the F.I.R. as belated or tainted by deliberation.
10. It was further contended that the deceased had a criminal history and had also been challaned for manufacturing illicit liquor and it was not unlikely that he might have been done to death by some unknown persons in some other manner. This argument in the facts and circumstances of the present case carries no conviction. The appellant is not shown to have had any enmity with the family of the deceased. He being Phupha of Smt. Sumitra Devi P.W, 2 appears to be related to the deceased. It, therefore, does not stand to reason that he would have been involved falsely in this case.
11. The learned counsel for the appellant then taking us through the postmortem report contended that the Medical Officer conducting the autopsy on the dead body of the deceased had found tattooing present around injury No. 2, which suggests that in all probabilities the shot hitting the deceased had been fired from a distance of not more than 8 feet. Referring to the statements of Mangal Singh P.W. 1 and Smt. Sumitra Devi P.W. 2 learned counsel for the appellant tried to show that the appellant is shown to have fired the shot from a distance of more than 20 feet hence his participation in the incident stands belied from the medical evidence and the eye account given by Mangal Singh P.W. 1 and Smt. Sumitra Devi P.W. 2 also stands falsified. Having carefully scrutinised the evidence of Mangal Singh P.W. 1, Smt. Sumitra Devi P.W. 2 and S.I. Ram Sagar Yadav P.W. 5, we find this argument untenable for not being based on facts deposed by the eye-witnesses. From the evidence, it would be borne out that the roof of the house of the deceased was about 12 feet high: To the south of the southern wall of the deceased's house there was a 2-2 1/2 paces wide path way. The width of that path way works put roughly to 6-7 feet. Just to the south of this path way there existed a raised Chabutra about 2 1/2-3 feet high from the level of the ground. The appellant is said to have fired from that Chabutra. Naturally at the time of firing of the shot the appellant must have stretched his hand upwards. The aerial distance between the appellant and the deceased at the time of firing the shot, therefore, must have been considerably reduced and in no case it would have been more than six feet. The medical evidence thus in no way can be said to be inconsistent with the oral account of the incident given by Mangal Singh P.W. 1 and Smt. Sumitra Devi P.W. 2, The learned trial Court has dealt with this aspect of the case in great detail with reference to the evidence of factual witnesses Mangal Singh P.W. 1 and Smt. Sumitra Devi P.W. 2 and has rightly found the evidence of factual witnesses credible, reliable and in consonance with the medical evidence.
12. Thus on an overall scrutiny of the materials on record, we do not find any infirmity in the conclusions arrived at by the learned trial Court on the points of time and place of occurrence as also the complicity of the appellant.
13. Now adverting to the offence proved to be committed by the appellant, it was contended by the learned counsel for the appellant that from the evidence it emerges that Mangal Singh P.W. 1 had during the course of incident persuaded his brother to refrain from abusing the appellant, but the deceased did not pay any heed to it and continued abusing the appellant. He has thus urged that the use of filthy abuses by the deceased might have provoked the appellant and it was very likely that in such a situation the appellant might have had lost the power of self-control and fired the fatal shot at deceased. This argument does not appear to be without force. The appellant is said to have resorted to violence when abuses have been exchanged from both the sides. To our mind, in the facts and circumstances of the present case, it would have been quite just and safe to hold the appellant guilty of the charge under the 1st part of Section 304, I.P.C. instead of Section 302, I.P.C. After having been anxious thought to the facts and circumstances found proved in this case we are of the opinion that as an abundant caution the appellant should have been held guilty of the offence under Part I of Section 304, I.P.C. instead of Section 302, I.P.C. We therefore alter the conviction of the appellant accordingly.
14. Adverting to the sentence to be awarded to the appellant we are of the view that the appellant having been convicted of the charge under Section 302, I.P.C. and sentenced to imprisonment for life hag suffered mental agony and strain since his conviction. Sentence of ten years R.I. for the offence found proved against him, therefore, besides being just and proper would adequately serve the ends of justice. We therefore, allow this appeal partly and altering the conviction of the appellant from Section 302, I.P.C. to Ist part of Section 304, I.P.C. sentence him to undergo ten years R.I.
15. Let a copy of this judgment be sent to C.M.M. Kanpur Nagar for compliance. He shall submit his compliance report within three months.
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Title

Ram Narain Singh (In Jail) vs State

Court

High Court Of Judicature at Allahabad

JudgmentDate
19 December, 2002
Judges
  • M Jain
  • Y Tripathi