Munna Lal vs State Of U.P.
2019 Latest Caselaw 521 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on : 06.12.2018
 
Delivered on : 06.03.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 3161 of 2013
 

 
Appellant :- Munna Lal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail, Rahul Mishra (Amicus Curiae) 
 
Counsel for Respondent :- A.G.A., Nikhil Chaturvedi
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Ram Krishna Gautam,J.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This appeal under Section 383 of Code of Criminal Procedure, has been filed by convict-appellant Munna Lal, through District Legal Services Authority by Senior Superintendent of Jail, Pilibhit, against judgment of conviction and sentence dated 13.06.2013 passed by Court of Sessions Judge, Pilibhit in Sessions Trial No.240 of 2010 under Section 302/34, 452 IPC in Case Crime No.144 of 2010, P.S.Bisalpur, District-Pilibhit. By the impugned judgment appellant Munna Lal has been convicted for offences under Section 302 and 452 IPC. He has been sentenced with life imprisonment, alongwith fine of Rs.10,000/- under Section 302 IPC and in case of default of payment of fine, he has to undergo further imprisonment of one year. Under Section 452 IPC, he has been sentenced to one year's rigorous imprisonment alongwith fine Rs.2000/- and in case of default in payment of fine, he has to further undergo imprisonment for three months. Both sentences were directed to run concurrently.

2. Prosecution case in brief, as per Informant, Sher Singh (PW-1) is that Amit Kumar and Sushma Devi, who are brother-in-law and sister of Informant, respectively, had come to his house and on 05.02.2010 at about 11.00 P.M., Harivansh Singh (Informant's father), Ganga Devi (Informant's mother), Amit Kumar and Sushma Devi were talking with each other, sitting on a bed (takht) lying in verandah of their house. At that very moment, Munna Lal, Chhote Lal, Roop Lal and Pyare Lal came in courtyard of Informant's house getting down from roof of the house by stairs. All four persons held pistols in their hand. They asked Informant's father Harivansh Singh to return vehicle of Munna Lal, which was refused by him. On this, they used filthy language and opened fire aiming at him in presence of Informant, which hit him on his head and as a result thereof Informant's father died instantaneously. Further case of prosecution is that battery operated tubelight was glowing in Informant's house. After assault, all the above named four accused persons fled away by opening door of the house. Thereafter, leaving dead body of his father at the spot, Informant (PW-1) went to lodge First Information Report (hereinafter referred to as 'FIR') at police station on the same day i.e. 05.02.2010 at 23.50 hours.

3. After submission of Written Report (Exhibit Ka 1), Chik Report Exhibit Ka 3 was prepared by PW-4 Constable Clerk, Roshan Lal and case was registered at Case Crime No.144 of 2010 under Section 452/302 IPC against accused Munna Lal and three others. Relevant entry of incident was also made in General Diary at Serial No.35 at 23.50 hours at 05.02.2010, (carbon copy whereof is Exhibit Ka 4). After registration of case, investigation was handed over to PW-5, S.I. Ashok Kumar Singh, In-Charge Inspector, P. S.Bisalpur. After obtaining necessary documents, i.e. copies of Chik Report, statement of Informant etc., he proceeded for place of occurrence. He prepared Site plan, Exhibit Ka 5; recorded statements of witnesses Gaurav and Jamanti Prasad; took into possession blood stained pillow (Material Exhibit 1); took sample of blood stained earth (Material Exhibit 2) and simple earth (Material Exhibit 3) from spot and sealed them in separate bottles and prepared recovery memo (Exhibit Ka 7); prepared Inquest (Exhibit Ka 8) and also recovery memos, Exhibit Ka 9 to Ka 13, in respect of Challan Nash, Photo Nash, Specimen Seal, Letter to Regional Inspector and Letter of concerned Chief Medical Officer with request to Post Mortem Examination respectively.

4. After conclusion of investigation, PW-5 submitted charge sheet Exhibit Ka 14 in Court. Cognizance of offence was taken by Chief Judicial Magistrate, Pilibhit on 07.05.2010. Case being exclusively triable by Court of Sessions, it was committed to Sessions Court on 26.06.2010 and registered as Sessions Trial No.240 of 2010.

5. Charge was framed by Sessions Judge on 13.07.2010 which reads as under :-

"मैं अनिल कुमार शर्मा, सत्र न्यायाधीश, पीलीभीत आप -

1. मुन्ना लाल

2. छोटे लाल

3. रूप लाल

4. प्यारे लाल

पर निम्नलिखित आरोप लगता हूँ :-

प्रथम:

यह कि दिनांक 05.02.2010 को रात्रि लगभग 11.00 P.M.मोहल्ला दुर्गा प्रसाद थाना बीसलपुर जिला पीलीभीत के क्षेत्र में आप लोगों ने वाड़ी शेर सिंह के आवासीय गृह में उसके पिता हरिवंश सिंह की हत्या करने के आशय से घुस कर गृह अतिचार किया. इस प्रकार आपने धारा 452 भा. द. सं. के अंतर्गत दंडनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है

द्वितीय :

यह की उपरोक्त दिनांक, समय व स्थान पर आप सभी लोगों ने सामान्य आशय से वादी शेर सिंह के पिता हरिवंश सिंह की गोली मरकर उसकी हत्या कर दी . इस प्रकार आप लोगों ने ऐसा कृत्य किया जो भा. द. सं. की धारा 302 सपठित धारा 34 के अंतर्गत दंडनीय अपराध है एवं इस न्यायालय के प्रसंज्ञान में है .

मैं, एतदद्वारा आपको निर्देशित करता हूँ की आपका विचारण उक्त आरोपों के आधार पर इस न्यायालय द्वारा किया जायेगा " (emphasis added)

"I, Anil Kumar Sharma, Sessions Judge, Pilibhit charge you-

1. Munna Lal

2. Chotey Lal

3. Roop Lal

4. Pyare lal

as follows :-

First,

that on 05.02.2010 in the night at about 11.00 PM by entering residential house of Informant Sher Singh at Mohalla-Durga Prasad, P.S.Bisalpur, District-Pilibhit with intention to commit murder of his father Harvansh Singh, you committed offence of house trespass. Thus, you have committed an offence punishable under Section 452 IPC which is within cognizance of this Court.

Second,

that on aforesaid date, time and place you all in furtherance of common intention committed murder of Harvansh Singh, father of Informant Sher Singh by shooting him. Thus, you all have committed offence punishable under Section 302 read with Section 34 IPC and within cognizance of this Court.

I, hereby, direct you all to be tried for aforesaid charges."

(English Translation by Court)

6. Charge was read over and explained to accused, who pleaded not guilty and claimed for trial.

7. After framing of charge, accused Chottey Lal died, therefore, Sessions Trial in respect of him stood abated vide order dated 04.09.2012 passed by Sessions Judge.

8. To prove its case, prosecution examined, in all, six witnesses, out of whom PW-1, Informant Sher Singh and PW-2 Ganga Devi, are witnesses of fact. Rest are formal witnesses. PW-3 is Dr. Satyapal Singh, who conducted post mortem examination. PW-4, Constable Roshan Lal is Scribe of Chik Report and entry of crime in General Diary. He has proved Chik Report, Exhibit Ka 3 and copy of General Diary, Exhibit ka 4. PW-5 is S. I. Ashok Kumar Singh who is Investigating Officer of the case and has proved Site plan (Exhibit ka 5), recovery memo in respect of blood stained pillow (Exhibit ka 6) and recovery memo in respect of blood stained and simple earth (Exhibit ka 7). He has also proved Inquest Report (Exhibit ka 8), Challan Nash (Exhibit ka 9), Photo Nash (Exhibit ka 10), Specimen Seal (Exhibit ka 11), Letter to Regional Inspector (Exhibit ka 12) and Letter to Chief Medical Officer making request for post mortem examination (Exhibit ka 13). He has proved material exhibits also.

9. Autopsy over dead body of deceased Harvansh Singh was conducted by PW-3 Dr. Satya Pal Singh on 06.02.2010 at 4.00 PM. He found that deceased was about 50 years of age and about 3/4 day had passed since his death. Rigor mortis was present in both extremities; P M stains found present in back of chest and abdomen; Mouth and eyes were closed. He found following ante mortem injury :-

Firearm entry wound of size 1.5 cm x 1.5 cm x brain cavity deep. Blackening and tatooing present around wound and track margins inverted. Bone under the wound has been driven into track. Wound of firearm entry present on midline of back of head, 13 cm above from right ear. Underneath injury meringue and brain matter lacerated. 100 ml fluid blood present in cranial cavity. Four metallic bullets cylindrical in shape were recovered from cervical vertebrae. Direction of track was downward and backward.

(emphasis added)

10. On internal examination, both chambers of heart were found empty; stomach contained 600 gm undigested food material containing rice; small intestine filled with chyme and gases; large intestine contained faecal matter and gases; gall bladder was empty. Cause of death has been assigned to shock and haemorrhage due to firearm injury (ante mortem injury). PW-3 proved Post Mortem Examination Report as Exhibit Ka 2.

11. At the instance of Trial Court, one Constable Jagat Singh Rajpoot has been examined as CW-1. He was assigned with duty of service of warrant of arrest upon accused Chottey Lal, but when he went to house of aforesaid accused, he found him murdered and FIR in respect of that incident had been entered at Case Crime No.469 of 2012 under Section 364/302/201 IPC. Report regarding death of accused is endorsed on the back of warrant and this witness has proved the same, which has been marked as Exhibit Ka 15.

12. After closure of prosecution evidence, accused persons were examined under Section 313 Cr. P. in which they stated that they have been falsely implicated. Charge sheet has wrongly been submitted against them by Investigating Officer, who has not conducted proper investigation. Witnesses PW-1, Sher Singh i.e. Informant and PW-2 Ganga Devi have deposed falsely against them due to previous enmity. Accused Munma has produced a copy of half yearly Khatauni of Khata No.164, Village-Bannai Keshopur, Tehsil-Faridpur, District-Bareilly. No other evidence in defence was adduced by accused-appellant.

13. After hearing counsel for parties and going through entire evidence available on record, Trial Court finding charges against accused Roop Lal and Pyare Lal under Section 302/34 and 452 IPC not proved, acquitted them of said charges. Accused-appellant Munna Lal has been found guilty of charge under Section 302 and 452 IPC, convicted and sentenced for aforesaid charges as mentioned above.

14. Trial Court has found that accused-appellant Munna Lal is real maternal uncle of informant Sher Singh and he was well acquainted with him. He has also proved that at about 11.00 PM on 05.02.2010, he, his father Harvansh Singh, mother Ganga Devi, sister Sushma and brother-in-law Amit Kumar were all sitting together and in conversation. At this point of time, accused-appellant came getting down from staircase and asked Harvansh Singh to return vehicle of Munna Lal whereupon Harvansh Singh said his money should be refunded whereafter vehicle may be taken away. Harvansh Singh had purchased a used Tata Sumo from Munna Lal for Rs.90,000/-. Since, Harvansh Singh talked of refund of money, accused persons abused Harvansh Singh and Munna Lal fired from country made pistol towards Harvansh Singh. Other accused persons also fired from their country made pistols but did not hit Harvansh Singh. This incident was witnessed by Informant, his mother, sister and brother-in-law, in the light of battery operated tubelight. Thereafter, accused persons fled away opening the door. Informant's father Harvansh Singh died instantly. This statement of Munna Lal was corroborated by PW-2 Ganga Devi, mother of Informant and wife of deceased Harvansh Singh. Munna Lal, accused-appellant is the real brother of PW-2 Ganga Devi and, therefore, there could not have been any mistake in identity of accused-appellant. Death of Harvansh Singh by firearm hitting his head is duly corroborated by Post Mortem Examination Report and statement of PW-3 Dr. S. P. Singh. PW-5 Dr. Ashok Kumar Singh investigated the matter, collected blood stained soil sample from spot and proved the place of incident. Report was lodged at 11.50 in the night and time of incident is 11.00 PM. Distance of police station is about ½ km and, therefore, report lodged within 15 minutes of the incident cannot be said to be belated and no evidence of other pellet shots were found, therefore, Trial Court did not find any sufficient evidence against Roop Lal and Pyare Lal, but accused-appellant Munna Lal was clearly said to have fired from his country made pistol upon Harvansh Singh causing his death and there was corroboration in statement of PWs-1 and 2, which was not shown to be substantively contradicted, hence, Trial Court has held accused-appellant Munna Lal guilty of offences under Section 302 and 452 IPC and passed judgment as aforesaid.

15. Being aggrieved by aforesaid judgment and order of his conviction and sentence, he has come to this Court in this appeal.

16. Heard Sri Rahul Mishra, learned Amicus Curiae appearing on behalf of appellant and Sri Nikhil Chaturvedi, learned Additional Government Advocate for State.

17. Sri Rahul Mishra, learned counsel appearing for appellant contended that Munna Lal is real brother of PW-2. Body of Harvansh Singh was found wearing only undergarments and it is not expected that in that condition he was sitting and talking with his daughter and son-in-law and this creates reasonable doubt about the manner in which incident is said to have taken place by PWs-1 and 2. Prosecution could not prove as to how accused-appellant entered the house which was otherwise locked and single fire shot by Munna Lal having hit Harvansh Singh in middle of his head, is not believable since it shows that deceased did not make any attempt to save himself and it appears that a third person killed him when he was sleeping. Prosecution story is very unnatural, improbable and there is every possibility of murder having been caused by a third person and not in the manner as prosecution has told. No motive could be shown. Both witnesses are relatives. Manner of occurrence and Medical Report are not cogent. Blood is found only on pillar or on floor and not on the cot or any bedsheet etc. No other pellet was found though firing was alleged to have been done by others also. Two accused persons have already been acquitted on same set of evidence, hence, accusation and conviction of appellant Munna Lal is clearly erroneous. Prosecution has failed to prove its case beyond reasonable doubt and Trial Court has erred in fact and law by holding accused-appellant guilty, convicting him and sentencing by judgment in question.

18. Learned A.G.A. on the contrary submitted that accused-appellant is near relative of two witnesses as well as deceased, hence, well acquainted to them and there could not have been any error in his identity. There is no reason to falsely implicate accused-appellant in this case. They have clearly watched the incident in the light of battery operated tubelight and their ocular version has not been shown to contain any substantial or material irregularity as nothing could have been extracted in cross-examination, hence, Trial Court has rightly convicted accused-appellant and mere fact that two others have been acquitted, accused-appellant cannot get any advantage thereon.

19. We have examined rival submissions advanced on behalf of both parties and also perused the record.

20. Incident has taken place at the residence of Informant PW-1 and PW-2, who is mother of Informant as also deceased who was father of PW-1 and husband of PW-2. All were sitting and talking around 11.00 PM of 05.02.2010 in Verandah. Deceased Harvansh Singh was sitting on a 'Takht'. Sister and brother-in-law of Informant were also there, therefore, it was a small family meeting and gathering where talking and conversation was going on in night, which is quite natural, particularly when, married daughter of family alongwith her husband, have come. At around 11.00 PM accused-appellant and three others, came down from the roof from staircase, in open space (aangan). They talked about return of vehicle of Munna Lal, which according to Informant was purchased by his father from Munna Lal for consideration of Rs.90,000/-. It was a used Tata Sumo Vehicle. Deceased Harvansh Singh had also got it repaired after purchase. He insisted for return of money before giving vehicle back to Munna Lal. In the FIR, it is said that all the accused-appellants started firing which hit Informant's father in the head and he died instantly. This has been clarified by Informant in his deposition that firstly, Munna Lal fired aiming at his father who sustained gun shot injury in his head and died instantly. Shots of other accused persons did not hit Informant's father, therefore, as per FIR version read with oral deposition of PW-1, it is Munna Lal who caused death of Harvansh Singh. The manner in which the incident has taken place as stated by PW-1 has been duly corroborated by PW-2 also. Both statements are consistent in this regard.

21. So far as question of wearing only undergarment by deceased is concerned, infact learned counsel for appellants has misread statement, inasmuch as, PW-1 has stated that his father was wearing half sleeve woolen banyan and an underwear. In rural areas, an underwear is not like 'V' shaped underwear as we are well convergent in urban areas, but rural people used to wear a kind of nicker made of cotton and these clothes are quite common in villages. Therefore, we find nothing unusual and unnatural in this regard. The gun shot injury is in middle of head which is duly corroborated by PW-3 also in his statement and Post Mortem Report and such an injury could have been sustained when deceased was in sitting condition. If he would have been sleeping, there should have been some blood on 'Takht' also, which has not been found. In sitting condition Harvansh Singh was hit by bullet on head and fell down on the ground. Infact, record shows that accused-appellant himself did not make any attempt to place his defence and neither requested for appointment of Amicus Curiae nor cross-examined the witnesses.

22. In these circumstances, we find that offence under Section 302 IPC against accused-appellant Munna Lal has been proved by prosecution beyond doubt and findings of Trial Court warrants no interference. With regard to offence under Section 452 IPC since, Munna Lal entered the house with intention to commit crime without any permission from owner of the house and crime under Section 302 IPC has been found proved against him, his conviction under Section 452 IPC also stands confirmed.

23. So far as sentence regarding appellant Munna Lal is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

24. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant, but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

25. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant Sanjay Kumar by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon him.

26. In the result, this appeal merits lacks merit. It is dismissed accordingly. Impugned judgment of conviction and sentence dated 13.06.2013 passed by Sessions Judge, Pilibhit, in S.T. No.240 of 2010, is hereby affirmed.

27. Certified copy along with record be sent to Court concerned for follow up action. Copy of this judgment be also supplied to accused-appellants through concerned Superintendent of Jail.

28. Sri Rahul Mishra, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs.11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Rahul Mishra, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

Order Date : 06.03.2019

Manish Himwan