Narendra vs State Of U.P.
2012 Latest Caselaw 3850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 53
 
Criminal Appeal No. 2561 of 2007
 
Narendra                                                           ..... Appellant.
 
Versus
 
State                                                                 ..... Opposite Party.
 
Connection With
 
Criminal Appeal No. 2188 of 2007.
 
Sanjay                                                                ..... Appellant.
 
Versus
 
State of U.P.                                                     .... Opposite Party.
 
Hon'ble Arun Tandon, J.

Hon'ble Ramesh Sinha,J.

These two criminal appeals have been filed against the judgment and order dated 17.3.2007 passed by the Session Court No.9, Meerut in Session Trial No. 71 of 1999, State Vs. Narendra & another. The appellant Narendra has been convicted for an offence under Section 302 I.P.C. and has been sentenced to undergo rigorous imprisonment for life. Sanjay has been convicted for an offence under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced to life imprisonment. Both have been convicted for an offence under Section 307 read with Section 34 I.P.C. and have been sentenced 10 years imprisonment with a fine of Rs. 5,000/- each and in default to undergo one year additional rigorous imprisonment. Both the appellants have also been convicted for offence under Section 452 I.P.C. and sentenced to three years rigorous imprisonment with a fine of Rs. 1000/- each and in default to undergo six months rigorous imprisonment. All the punishment are to run concurrently.

Facts as disclosed by the prosecution are as follows:-

On 11th August, 1999, the informant Pratap is stated to have lodged a First Information Report at police station Sardana, District Mau alleging that his uncle Roop Singh S/o-Jhandu Singh and his wife Smt. Sheela were sleeping at the Chowk of their house. A lantern was burning. At about 3:00 am, three persons with country made pistol in their hands reached at the place where Roop Singh and his wife were sleeping and with an intention to kill opened fire upon them. Roop Singh as well as Smt. Sheela were injured because of the said firing. On hearing the gun shots, the informant and several other persons of the village, namely, Gajendra S/o Hukum Singh, and Ompal S/o- Ram Chander reached the place of occurrence. From the light that was available due to the burning of lantern and torch they saw and identified the assailants, who were running from the site. It was also disclosed in the F.I.R. that the firing has taken place because of enmity which was caused due to certain transactions of land. A First Information Report was lodged on 13.10.1998 being Case Crime No. 387 of 1998 was registered under Section 307/452 I.P.C. was registered and Chik F.I.R. No. 252 was prepared on the same day and recorded in G.D. No.4. Injured Smt. Sheela and Roop Singh were medically examined at the Primary Health Centre Sardana Meerut. The Medical Officer submitted the injury report which was marked as Ex. Ka 3 and 4. Investigation of the offence was done by S.I. C.P. Singh.

On 13th October, 1998, information was supplied at police station Sardana that Roop Singh, who had suffered a gun shot injury on the head and was treated upon at Safdarjung Hospital Delhi and after operation was performed upon him, he was brought to the village on 25.9.1998 and when Roop Singh was again being taken to Delhi for medical examination by Ram Pal and Virendra along with driver Sonu in a vehicle bearing registration no. UHD 8246, he expired because of the injuries earlier suffered by him at 2 p.m. on 13.9.1998. The information of death of Roop Singh was recorded in G.D. No.13 and the offence was converted under Section 302 I.P.C.

Inquest of the dead body of Roop Singh was prepared and marked Ex. Ka 13. The dead body was sent for postmortem.

During investigation, the Investigating Officer recorded the statement of the witnesses and also made spot inspection of the place of incident and from there, he recovered three metalic cartridges and two bullets of 315 bore which was taken into police custody. Recovery memo was prepared and marked as Ex. Ka.9. The site plan was also prepared and marked as Ex. Ka. 8. After investigation was completed, a charge-sheet was filed against the applicants Narendra and Sanjay under Sections 307, 302, 452 I.P.C.

On behalf of the prosecution, Pratap Singh, the informant was examined as P.W.1, Smt. Sheela, the injured wife of the deceased was examined as P.W.2, Dr. M.C. Gulecha, who had performed the postmortem was examined as P.W.3, Dr. Sunil Tyagi, who had examined injured Smt. Sheela as well as Roop Singh earlier was examined as P.W.4, Constable Akhtar Khan, who prepared the Chik F.I.R. was examined as P.W.5, Constable Bane Singh, who had taken the dead body of Roop Singh to the postmortem deposed as P.W.6, S.I. Chandrapal Singh, the Investigating Officer was examined as P.W.7, Dr. Praveen Kumar Rohtagi, who had carried out Radiology test was examined as P.W.8 and Dr. Laxman Das, who had operated upon the deceased at Safdarjung was examined as P.W.9.

The documents which were produced on behalf of the prosecution, namely, the First Information report was marked as Ex. Ka.1, Postmortem report of the deceased Roop Singh was marked as Ex. Ka.2, Injury reports of Roop Singh and Sheela were marked as Ex. Ka. 3 and 4, Chik F.I.R. was marked as P.W.5, Copy of G.D. Entry was marked as Ex. Ka. 6 and G.D. Entry for conversion of the offence under Section 302 was marked as Ex. Ka.7, the site plan was marked as Ka. 8, the bullets and cartridges recovered by the police was marked as Ex. Ka.9, Blood stained earth collected from the site was marked as Ex. Ka.10, The information of death of Roop Singh was marked as Ex. Ka. 11, Copy of G.D. Entry was marked as Ka.12, Inquest report was marked as Ex. Ka. 13, Letter sent to the Regional Inspector was marked as Ex. Ka.14, the letter sent to the Chief Medical Officer was marked as Ex. Ka.15, Photo Nash was marked as Ex. Ka. 16, Police Form Number-13 was marked as Ka.17, Charge sheet was marked as Ka. 18 and Medical report of Roop Singh was marked as Ex. Ka.19 to 25.

P.W.1, informant and eye witness of the incident Pratap Singh specifically deposed that the accused Narendra and Sanjay were known to him and they are the residents of his village. Nearly two years ago at around 3 a.m. when Roop Singh and Smt. Sheela were sleeping at the Chowk of their house, Narendra and Sanjay along with another person entered into their house and with an intention to kill fired upon them. At the time of incident, Ompal, Gajendra and he himself reached at the place of occurrence and they saw the accused persons as there was sufficient light due to the burning of lantern. It was also stated by him that the cause for assault was the enmity pertains to certain land transactions. It was further stated that subsequently Roop Singh had expired because of the injuries suffered by him subsequently. It was stated that the assailant Sanjay was the real brother of the deceased Roop Singh. The report of the incident was recorded in his hand writing and was proved by him as Ex. Ka.1.

P.W.2 Smt. Sheela wife of the deceased Roop Singh and the injured witness had stated that the incident was of about three and half years ago. At around 3 a.m. she and his husband Roop Singh were sleeping in the Chowk of their house. Children were sleeping on the other cot and a lantern was burning. Sanjay, Narendra along with another person who was not known to her came to her house armed with country made pistol and Narendra fired upon her husband Roop Singh with country made pistol and when she tried to got up from the cot, Sanjay had fired upon her. She stated that motive for the incident was that Sanjay had sold his land to Narendra and he was insisting upon Roop Singh to sell his land also to Narendra but Roop Singh did not agree to sale the same, therefore, Sanjay and Narendra both have ill-will against Roop Singh. It was specifically stated that Narendra had fired upon Roop Singh. The bullet had hit him on his forehead and Sanjay had opened fire upon Smt. Sheela with an intention to kill her. On the alarm raised , the witnesses Pratap, Gajendra, Ompal and other villagers reached the place of occurrence. It was further stated that Roop Singh after two months, expired due to the injured suffered by him.

P.W. 3, Dr. M.C. Gulecha, who had conducted the post mortem of deceased Roop Singh, had stated that the following ante mortem injuries were noticed on the deceased Roop Singh:-

e`rd :i flg dk iksLVekVZe fjiksVZ

pksV la[;k&1 iqjkuk Bhd gqvk flyk gqvk ?kko dk fu'kku 10 lseh- ftlds flj esa 2 lseh- x 1-5 lseh- lSfIVd ?kko FkkA flj esa nkfguh rjQ HkkSag ls 2-5 lseh- ÅijA

pksV la[;k&2 lSfIVd Hkkx 1.5.x 1.5 x dSfoVh rd xgjk flj ds lkeus nkfgus HkkSag ls 3 lseh- ÅijA

vkarfjd ijh{k.k

1- flj esa pksV la[;k 2 ds uhps 1.5 x 1.5 eki dk Nsn FkkA

2- flj dh gM~Mh esa 10 lseh- o`r dk ,d Nsn pksVs la[;k&1 ls 2 lseh- Åij FkkA Nsn ds mij :bZ dk ,d VqdM+k j[kk FkkA flj dh dSfoVh esa 150 ,e-,y- eokn rFkk [kwu feDl ekStwn FkkA nksuksa QsQM+ks esa Åijh rFkk e/; esa eokn ds ikfdV~l FksA e`rd ds isV esa 250 ,e-,y- v/kipk [kkuk ekStwn FkkA

It was specifically stated by the doctor that the deceased had died due to septicemia as a result of ante-mortem injuries. The post mortem report was prepared in his hand writing and under his signature and he has proved the same as Ex. Ka.2. It was also stated that the deceased had expired on 13.10.1998 at 2 p.m.

P.W.4 Dr. Sunil Tyagi, had examined the injuries of Roop Singh and Smt. Sheela on 11.8.1998 at about 4:50 and 5:15 a.m. respectively. The following injuries were found on the body of injured Smt. Sheela:-

pksV la[;k&1 xnZu ds fupys fgLls esa @[email protected] xksyh

?kqlus dk ?kko 6 x 4 lseh- ds {ks=Qy esa [kky ugh Fkh] fdukjs vUnj dh rjQ eqM+s gq;s FksA xksyh ds ckgj fudyus dk dksbZ fu'kku ugh FkkA

?kko ls rktk [kwu cg jgk FkkA

pksV la[;k&2 lh/kh rjQ dksjc esa nwljh xksyh dk fu'kku lkbZt 3 x 1.5 lseh- ds {ks=Qy esa ftldh xgjkbZ ugh ekih tk ldrhA ?kko ds fdukjs vUnj dh vksj eqM+s gq;s FksA ?kko ds pkjksa rjQ

/kwy ds d.k Fks o isV ds mij Hkh fc[kjs gq;s FksA ?kko ls rktk [kwu cg jgk FkkA ;g ?kko xksyh

?kqlus dk FkkA

pksV la[;k&3 rhljk xksyh dk ?kko ck;h xnZu dh rjQ lkbZt 5 x 3 lseh- {ks=Qy esa FkkA {ks=Qy mDr ls [kky xk;c FkhA fdukjs ckgj dh rjQ FksA /kwy ds d.k pkjks rjQ FksA

pksV la[;k&4 pkSFkh xksyh dk fu'kku lh/kh tka?k ds vUnj dh rjQ ckgjh lrg dks Nwrk gqvk FkkA lkbZt 8 x 4 lseh- {ks=Qy esa Fkk] ftlds pkjksa rjQ /kwy ds d.k yky jax fy;s FksA

It was stated that the injuries were fresh and were caused due to gun shot and the injuries were grievous in nature. The injury report was prepared in his hand writing and under his signature and he has approved the same as Ex. Ka.3. It was deposed that the injuries could have been caused on 11th August, 1998 and could be the result of fire arm.

The injuries suffered by Roop Singh was found by him during medical examination on 11.8.1998 are as follows:-

pksV la[;k&1 xksyh ?kwlus dk ?kko ekFks ds e/; esaA ?kko ds fdukjs vUnj dh rjQ eqM+s gq;s FksA rktk [kwu cg jgk FkkA xksyh ds ckgj fudyus dk fu'kku ugh FkkA bl pksV ds vykok vU; dksbZ pksV dk fu'kku ugh FkkA :i flag dh [kksiM+h dk ,Dl&js bykt vkfn ds fy;s I;kjs yky 'kekZ vLirky] esjB jSQj fd;k x;kA

It was stated by the doctor that the injuries could be caused at the date and time mentioned above and the injuries so caused could be dangerous to life.

P.W.7, retired S.I. Sri Chandrapal Singh, the Investigating Officer in his statement has approved the case dairy, chik F.I.R. and the statements which were recorded as well as the site plan prepared by him. He also stated that he collected the blood stained earth from the site as well as empty cartridges and bullets. Recovery memos were prepared in his handwriting and under his signature and he has proved the same as Ex. Ka. 9 and 10. He also approved the entry made in the medical examination report of Roop Singh and Smt. Sheela on 14.8.1998. On the same day, the statements witnesses Ompal and Constable Rajpal were recorded. On 22.8.1998, the statement of Roop Singh was recorded. On 2.9.1998, the medical report of Smt. Sheela was recorded in G.D.

Dr. Praveen Kumar Rohtagi, who was posted as Radiologist in the Yashlok Hospital Safdarjung, Delhi was examined as P.W.9. Dr. Rohtagi had conducted the X.ray of the head injury of Roop Singh at Safdarjung hospital. According to the x-ray report, there was indication of operation having been performed and it has been pointed out that multiple radio opaque was also seen. There was gas in the brain venticular system. It was opined that there could be the possibility of operation being performed on the head of the deceased and injury could have been caused due to fire arm. The doctor has proved the said report as Ex. Ka.19.

P.W.9 Dr. Laxman Das, who had performed the operation of Roop Singh had stated that at the time of admission, the condition of the deceased was not well. He was not in his senses and some times responds to the voice only. The injuries were on the mid frontal region of the head of the deceased and the size of the wound on the mid frontal region of the head of the deceased was 2 c.m. X 2 c.m.. He was operated upon after receiving the C.T. Scan X-ray and other reports on 15.9.1998 and the bullet was recovered from the Supra Cellar region of the head. The injuries were serious and that injuries were caused by fire arms and were dangerous to life. It was stated that the deceased was discharged on 25.9.1998 from the hospital. The documents relating to the treatment of the deceased was proved by him.

The statements of the accused Sanjay and Narendra were recorded under Section 313 Cr.P.C. It was their case that they have been falsely implicated in the present case and witnesses were falsely deposing against them because of enmity.

Accused Sanjay had stated that on the date of incident, he was at his sister's house in Muzaffarnagar and on the date of incident his mother was also sleeping at the Chowk of her house, his brother Roop Singh and Bhabhi Smt. Sheela were sleeping at the roof and at night two unknown miscreants had fired upon his brother Roop Singh. He stated that the informant Pratap Singh had made Roop Singh addict of liquor and it was the informant who had shot at his brother. It is further stated by him that Pratap Singh had also got a sale deed executed by Roop Singh in his favour and his brother's wife Smt. Sheela was under the influence of Pratap Singh and she had started living with Pratap Singh and at his instance she has falsely implicated them.

Accused Narendra in his statement has submitted that he has been falsely implicated and it was his case that Pratap wanted to purchase his land and since he refused to sell the same, he falsely implicate him in the present case.

The accused in support of their defence produced one Ompal as D.W.-1.

D.W.-1 Ompal in his statement has stated that there is only one wall between his house and the house of Roop Singh and Sanjay and on the date of incident after hearing the noise of gun shots, he also reached the place where the incident has taken place. The children and mother of Roop Singh were sleeping just below where Roop Singh and Smt. Sheela were sleeping. Due to the injury, Roop Singh has become unconscious. It was further stated by him that Roop Singh was taken to the police station by a tractor. Pratap Singh met him on the way. The house of Pratap Singh is at a distance of one kilometer from the place of incident. It was further stated that no complaint was written at the police station. After going to the police station they took Roop Singh to the hospital from where he returned to his house. It was further stated by him Pratap Singh was interested to purchase the land of Sanjay and Roop Singh since Sanjay refused to sell the same, he has implicated him. It was further stated by him that the wife of deceased, Smt. Sheela is residing with Pratap Singh since then.

No further evidenced was led by the accused.

The session court after analyzing the evidence brought on record including the prompt F.I.R., the evidence of the eye witnesses as well as injury reports which were fully corroborated by the medical evidence, found the accused guilty of the offence under Section 307, 352 I.P.C. as detailed above.

Challenging the order so passed, Sri P.N. Mishra, learned Senior Counsel assisted by Sri P.S. Pundir, learned counsel for the appellants has contended before this Court that the statement of Roop Singh was recorded by Investigating Officer and was also marked as exhibit but for the reasons best known to the prosecution it was not proved and, therefore, an adverse inference should be drawn in the matter and the trial court has committed an error in passing the impugned order. It was then stated that the presence of P.W.-1, the informant, who was the nephew of the deceased was doubtful as he was a resident of village 300 yards away from the place of incident and that he is stated to have reached at the site on hearing the gun shot which does not appear to be probable keeping in view the distance. It is then stated that in the F.I.R. there was no mention of any source of light and, therefore, because of sufficient light being not available identity of real assailants become doubtful and, therefore, the prosecution has not been able to establish their case beyond reasonable doubt. The presence of the accused at the site or they having assaulted the deceased and injured Smt. Sheela was not proved and that the Investigating Officer had showed the burning of lantern in the site plan but no recovery memo of it was prepared. It is stated that the doctor, namely, Laxman Das in his statement has stated that the operation had been performed and Roop Singh was discharged from the hospital on 25.9.1998 and at the time of discharge he was in a good condition and there was no threat to his life. It was lastly contended contended that the death has occurred after more than two months of the incident and, therefore, even if, the entire version of the prosecution is accepted, it could not be said that the cause of death of the deceased was the result of the injury caused by the accused.

Learned A.G.A. in response to the aforesaid arguments of learned counsel for the appellants has pointed out that the F.I.R. has been lodged within one and half hours of the incident wherein the accused have specifically been named by the informant Pratap Singh and Smt. Sheela P.W.2, who was the eye witness of the incident. It is further submitted that P.W.2 Smt. Sheela, who is the injured being the wife of deceased was naturally present at the place of incident and there is no reason to doubt the testimony of the said witness. He further submitted that the evidence was corroborated by the medical examination report that was prepared at the time of examination by the doctor on 11.8.1998 at the Primary Health Centre as well as from the postmortem report and the other medical reports pertains to the treatment of Roop Singh at Safdarjung hospital. He further submitted that the recovery of bullets from the head of the deceased itself sufficient to establish that the injury inflicted by the deceased Roop Singh was in itself sufficient to cause death and, therefore, the death of the deceased due to septicemia after two months of assault can be possible and, therefore, no adverse inference can be drawn against the prosecution. He lastly points out that in the testimony of the injured witness that lantern was burning and she had identified the assailants in its light cannot be doubted. It is urged that the assailant Sanjay is the real brother of the deceased Roop Singh and being a family member, his identification by the injured witness in the facts of the case need not be doubted by this Court. He lastly submitted that the motive for the assault has also been established in the facts of the case and, therefore, there is hardly any scope for this Court to interfere in order passed by this Court.

From the facts which have been narrated hereinabove, it is clear that the incident is said to have occurred at 3:00 a.m. on 11th August, 1998. The F.I.R. was lodged by the nephew of the deceased, who was examined as P.W.1 and had proved the said report, on 4:30 a.m. on 11th August, 1998, i.e. one and half hours of the incident. The F.I.R. was prompt and consequently it rules out the possibility of deliberation, false implication or exaggeration of the offence.

It may be recorded that the injured wife Smt. Sushila and her husband Roop Singh were medically examined by P.W. 4 at 5:15 a.m. on 11th August, 1998. The injuries suffered by the husband and wife had specifically been recorded in the report as indicated above. Roop Singh had suffered gun shot injuries on the forehead while Smt. Sushila had suffered four gun shot injuries. P.W. 4 in his statement has categorically stated that the injuries were fresh and that the injuries could in normal course of things would result in death of injured Roop Singh, who after his treatment at Delhi had expired due to Septicemia which was caused due to the injury which he had suffered on his forehead. The post-mortem report which was proved by P.W.3 specifically mentioned that death was caused due to septicemia and shock as a result of ante-mortem injuries. We thus find that the F.I.R. is prompt. The occular evidence of P.Ws. 1 and 2, who are the eye witnesses is fully corroborated by the medical evidence, therefore in view of the above, we are of the opinion that the prosecution has not been able to establish its case.

Now coming to the contention which have been raised on behalf of the appellant regarding the sufficiency of light is concerned, it may be noticed that in the F.I.R., it was specifically stated that Lantern was burning. Similarly, in her testimony, P.W.2 had specifically deposed that there was sufficient light due to burning of lantern and even otherwise the appellant Narandra is residents of same village and appellant Sanjay is the real brother of deceased Roop Singh and, therefore, in such circumstances, the identification of the accused by the eye witnesses cannot be doubted. No recovery memo of lantern prepared by the Investigating Officer, cannot be said to be fatal in the circumstances so as to dislodged the prosecution story.

So far as the second ground raised on behalf of the appellant that the Investigating Officer had recorded the statement of the deceased Roop Singh while he was admitted in a hospital at Delhi but for the reasons best known to him had not produced the same and, therefore, adverse inference should be drawn. The said contention also does not appeal to this Court specifically in view of the statement of P.W. 9 Laxman Das, the doctor, who attended Roop Singh at Delhi had stated that the gun shot injury caused on the forehead of the deceased was dangerous to life and the patient was not in complete senses and responded to the voice calls occasionally only. It was only after the operation of the patient, he became conscious and thereafter discharged but it can hardly be said that the injured was in such a condition to give any statement.

Now coming to the last plea raised on behalf of the appellant qua the deceased having been discharged from the hospital and coupled with the statement of the doctor P.W.9 that at the time of discharge, there was no threat to his life. The doctor had categorically opined that on 15th September, 1998 when the patient was brought to the hospital a bullet had entered in the frontal region of the head of the deceased Roop Singh and that the injury was caused by fire arm. After C.T. Scan, operation was performed and the bullet was recovered from the Supra Cellar region of his head. The injury caused to the deceased was in ordinary course of nature was sufficient to cause death. Although Roop Singh was discharged from the hospital but he expired due to Septicemia which was caused only because of the bullets injuries suffered on his head. Therefore, merely Roop Singh was discharged from the Delhi, does not mean that the cause of death of Roop Singh cannot be said to be caused due to the injuries suffered by him. Even otherwise, we may record that under Section 300 I.P.C. any injury which may in normal course of things may result in death culpable homicide is a murder. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is cause or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

From the averment what has been noticed in the medical report, the nature of gun shot injury suffered by Roop Singh, in ordinary course of nature would have resulted in his death.

In view of the aforesaid, we have no hesitation to hold that the finding of conviction and sentence recorded by the trial court is based on correct appreciation of evidence on record. The ocular evidence is fully supported by the medical evidence. We find no good ground to interfere with the impugned judgment and order of the trial court.

The appellant Narendra is already in jail and he shall serve out the sentence as awarded by the trial court. So far as appellant Sanjay is concerned, he is on bail. His bail bond is cancelled and sureties are discharged and he shall be taken into custody and confined to jail to serve out the sentence as awarded by the trial court.

The appeal fails and is accordingly dismissed.

Dated 30.8.2012

Shiraz