Allahabad High Court
Ran Vijay Singh vs State Of U.P. on 30 July, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:121502-DB Reserved on 24.07.2024 Delivered on 30.07.2024 Reserved Case :- CRIMINAL APPEAL No. - 4696 of 2010 Appellant :- Ran Vijay Singh Respondent :- State of U.P. Counsel for Appellant :- Hari Om Khare, Apul Misra Counsel for Respondent :- Govt. Advocate connected with Case :- CRIMINAL APPEAL No. - 4693 of 2010 Appellant :- Udai Narayan Respondent :- State of U.P. Counsel for Appellant :- Hari Om Khare, Apul Misra, Satyendra Prakash Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Siddharth, J.
Hon'ble Brij Raj Singh, J.
(Delivered by Brij Raj Singh, J.)
1. Heard S/Sri Apul Misra and S.P. Srivastava, learned counsel for the appellants and Sri Prem Shankar Prasad, learned AGA for the State and perused the material on record.
2. Both the appeals have been filed against the common judgement and order dated 09.07.2010 passed by the learned Additional Sessions Judge, FTC No.2, Fatehpur in Sessions Trial Nos.34 of 1999 and 36 of 2006, arising out of Case Crime No.48 of 1999, thereby convicting and sentencing both the appellants under Section 302/34 IPC for life imprisonment with fine of Rs.8,000/- each and in default of payment of fine, to further undergo one year additional imprisonment.
3. As per the prosecution case, the complainant Babu S/o Bhudha lodged a report on 17.04.1999 at 19.50 Hrs. mentioning therein that his Nephew, Chandrapal S/o Shiv Balak and Kailsash Katik S/o Jeetan Katik had taken two Bigha land for growing crop on the agreement of Rs.1,400/-. On 17.04.1999, Object 1 2 Chandrapal, Nephew of the complainant, his wife Munni, daughter Smt. Usha Devi, Kailash Katik and his wife Phoolkali were harvesting the crop in the field of Chandrapal. On the western side of the field, Shyamlal, son of Chandrapal was looking after his two buffaloes, who were grazing the grass. The buffaloes went in the filed of accused-appellant Udai Narayan Kurmi and used to eat peachaff, on which accused-appellant Udai Narayan Kurmi took the Buffaloes in his custody and he was bringing them to his house. Chandrapal and his wife tried to stop him, on which accusedappellant Udai Narayan Kurmi started abusing them and on the protest made by Chandrapal, accused-appellant Udai Narayan Kurmi asked his brother, accused-appellant Ran Vijay Singh to bring the licensed Gun from the house and also exhorted to kill them. Accused-appellant Ran Vijay Singh brought the licensed Gun from his house and fired two times at his Nephew Chandrapal, who received two injures on his head and fell on the ground. The accused-appellants ran away from the place of occurrence. Thereafter, the complainant brought Bullock Cart and took his nephew Chandrapal to the Government Hospital, Amauli, where he was referred to the District Hospital, Fatehpur. Thereafter, injured Chandrapal was referred to the King Georges Medical University, Lucknow.
4. Tehrir was written by Chotu Vidyarthi, on the basis of which Chik FIR No.41 dated 17.04.1999 at 19.50 Hrs. was lodged at Case Crime No.48 of 1999, under Sections 307 and 504 IPC and Section 3(2)(V) SC/ST Act. The matter was investigated by S.K. Kaushik, Circle Officer, Bindaki, Fatehpur. The injured Chandrapal died on 20.04.1999 in the King Georges Medical University, Lucknow. Two separate charge sheets were filed under Sections 302 and 504 IPC and Section 3(2)(V) SC/ST Act against both the appellants. The case 3 was committed to the court of sessions on 06.10.1999 and 07.09.2006 respectively. Both the cases were tried together. Charges were framed against the accused-appellants under Sections 307 and 504 IPC and Section 3(2)(V) SC/ST Act. The accused-appellants denied the charges and pleaded for trial.
5. The prosecution to prove its case, produced the following eight witnesses:-
P.W.-1 Babu P.W.-2 Smt. Munni Devi P.W.-3 Shyamlal P.W.-4 H.C. Rama Shanker Pandey P.W.-5 Surendra Kumar Kaushik P.W.-6 Yogendra Nath Pandey P.W.-7 Devendra Kumar P.W.-8 Dr. Pankaj Jain
6. 11 exhibits were also produced by the prosecution to prove its case.
7. The accused-appellants were confronted under Section 313 Cr.P.C. and they deposed before the court that due to partybandi they were falsely implicated. They also produced D.W.-1, Bhagwan Deen, D.W.-2 Devendra Kumar Gautam to support their case.
8. The trial court after examining the witnesses and adducing the evidence on record, convicted the accused-appellants as mentioned above. Hence, the present appeals have been filed.
9. P.W.-1, Babu has deposed the same facts in his examinationin- chief as has been narrated in the FIR. He further deposed that he had seen the incident and the accused-appellant Ran Vijay Singh fired at his Nephew Chandrapal, who got injuries on his head and fell on the ground. He also deposed that accused-appellants were 4 seen by the wife and daughter of the deceased-Chndrapal, Kailash Katik and his wife Phoolkali. He proved his FIR and signature on the application, which was registered as FIR.
10. P.W.-2, Munni Devi was examined before the court. She deposed that incident took place prior to eight and a half years. On the date of incident, her husband Chandrapal, her daughter Uma Devi, Kailash Katik and his wife Phoolkali were harvesting the wheat crop and her son Shyamlal was looking after the Buffaloes, who were grazing the grass. The Buffaloes went to graze the peachaff in the filed of accused-appellant Udai Narayan, on which he had taken the Buffaloes in his custody and abused Shyamalal. When they protested, accused-appellant Udai Narayan exhorted his brother Ran Vijay Singh and asked him to bring licensed Gun from their house and also exhorted him to kill the deceased. Ran Vijay Singh took the Gun and fired at Chandrapal, who received two injuries on his head. She has categorically stated that the incident was seen by her and she was present at the place of occurrence. She further deposed before the court that her husband died in the King Georges Medical University, Lucknow on 20.04.199 and the inquest was also conducted on the same day.
11. P.W.-3, Shyamlal has also stated the same facts in his examination-in-chief as stated by P.Ws.1 and 2 before the court. He deposed that accused-appellant Ran Vijay Singh shot fire at his father on exhortation by his brother Udai Narayan. He further deposed that his father died in the King Georges Medical University, Lucknow.
12. P.W.-4, Head Constable, Rama Shanker Pandey was examined before the trial court. He deposed that he was posted as Head Moharrir and the report was lodged by the complainant and he 5 lodged the report at Case Crime No.48 of 1999, under Sections 307 and 504 IPC and Section 3(2)(V) SC/ST Act. He also proved the report. P.W.-5, Surendra Kumar Kaushik, Circle Officer, Bindaki, Fatehpur was examined before the trial court. He deposed that he investigated the case and he took the blood stained soil and thereafter the site plan was prepared by him. He also identified the documents. P.W.-6, Yogendra Nath Pandey, police official was examined before the trial court. He has proved the documents. P.W.-7, Devendra Kumar was also examined by the trial court and he deposed that post-mortem was conducted by Dr. Rakesh Kumar and he was posted in the post-mortem room at Lucknow. He also identified the post-mortem report prepared by Dr. Rakesh Kumar. P.W.-8, Dr. Pankaj Jain in his examination-in-chief deposed before the trial court that on 17.04.1999, he was posted as Physician in District Hospital, Fatehpur. Deceased Chandrapal was examined and the injury report was prepared by him. The deceased had received two fire arm injuries on his head. He deposed that injuries no.1 and 2 were caused by fire arm. He proved the injury report, which was prepared by the doctor posted in the District Hospital, Fatehpur.
13. The accused-appellants had produced D.W.-1, Bhagwan Deen Singh before the trial court. He deposed that on 17.04.1999, he was posted as Head Constable in the office of the SPO, Hamirpur. He was given the duty in the court of District Judge, Hamirpur as CD Dispatcher. He further deposed that accused-appellant Udai Narayan was known to him and on the said date, the accused-appellant Udai Narayan was also assigned the duty in the court of District Judge, Hamirpur and he assisted him. He also deposed that accusedappellant Udai Narayan was present in the Court of District Judge, Hamirpur on 17.04.1999 from 10 AM to 5 PM. He further deposed that Sri S.K. Pandey, District Judge, Hamirpur had seen accused6 appellant Udai Narayan in his court, who had also given certificate to the effect that accused-appellant Udai Narayan was present in his court. SPO, Hamirpur had also given certificate that accusedappellant Udai Narayan was performing his duty on 17.04.1999 in the Court of District Judge, Hamirpur.
14. D.W.-2, Constable Devendra Kumar Gautam was also examined by the trial court. He produced the record of the original attendance register dated 17.04.1999, which was weeded out as per the instructions of the Directorate.
15. The accused-appellants had also produced Ext.Kha-1, letter of the District Judge, Hamirpur dated 21.04.1999 and Ext.Kha-2, letter of the SPO, Hamirpur dated 20.04.1999 to support their case.
16. Learned counsel for the appellants has submitted his arguments, which are given below:-
(i) P.W.-1, the complainant is not an eye witness, which is evident after perusing the FIR itself. In the FIR, the complainant, Babu has stated that after getting information regarding the incident, he came to the place of occurrence with Bullock Cart and had taken his Nephew to the hospital. Learned counsel has further pointed out that P.W.-1 has stated at pages 4, 5 and 6 of his crossexamination that Bullock Cart belonged to Kailash Katik which was brought by him and when he reached to the place of occurrence, he found that Chandrapal was unconscious. He further admitted that wife of the Chandrapal told him about the incident. Therefore, he has submitted that presence of P.W.-1, Babu is highly doubtful at the place of occurrence.
(ii) Learned counsel for the accused-appellants has invited our attention towards Statement of P.W.-2, Munni Devi, wherein she has 7 stated at one point of time that accused-appellant Ran Vijay Singh had Single Barrel Gun, whereas at another point of time, she deposed in the cross-examination that it was Double Barrel Gun, whereas P.W.-3, Shyamlal has stated in his cross-examination that accused-appellant Ran Vijay Singh used Single Barrel Gun. It has been pointed out by the learned counsel that there is contradiction in the statements of P.Ws.2 and 3 regarding the weapon, which was used by accused-appellant Ran Vijay Singh and on the strength of the aforesaid argument, he has submitted that accused-appellants are entitled to get the benefit of doubt.
(iii) learned counsel has further submitted that statements of witnesses have been recorded after two months from the date of incident; thus the entire prosecution case appears to be cooked up.
He has further submitted that P.Ws.2 and 3 are not the eye witnesses and there are various contradictions in their crossexaminations, which show that they were not present at the place of occurrence and the appellants have been falsely implicated in the case due to partybandi.
(iv) Learned counsel for the accused-appellants has further submitted that if this Court comes to the conclusion that accusedappellants are guilty, then the case is utmost falling within the purview of Section 304 Part-II IPC for the reason that Buffaloes of the deceased had grazed the pea-chaff in the field of accusedappellant Udai Narayan, that is why there was altercation between them. On the exhortation of accused-appellant Udai Narayan, accused-appellant Ran Vijay Singh brought the licensed gun from his house and fired at the deceased out of grave and sudden provocation and there is no premeditation and pre-plan to commit the murder. It has also been submitted that there is no intention to 8 kill, rather the situation was out of control due to heated arguments and that is why the incident took place, therefore, conviction and sentence of accused-appellant Ran Vijay Singh may be converted into Section 304 part-II IPC.
(v) It is further pointed out by the learned counsel for the accused-appellants that custody report dated 25.11.2017 issued by the Jailor, District Jail, Fatehpur indicates that accused-appellant Ran Viay Singh had undergone custody of 7 years, 4 months and 17 days as on 25.11.2017 and he was granted bail by this Court on 11.04.2022; thus he had undergone more than 12 years in jail.
(vi) Learned counsel for the accused-appellants has further submitted that accused-appellant Udai Narayan is entitled to get the benefit of doubt because at the time of incident, he was present in the court of District Judge, Hamirpur. The District Judge, Hamirpur had also issued letter, in which he mentioned that accused-appellant Udai Narayan was doing his duty as Constable in his Court. The trial court has also recorded the statements of D.W.-1, Bhangwan Deen Singh and D.W.-2, Devendra Kumar Gautam, who had also deposed before the court that accused-appellant Udai Narayan was present in the court of District Judge, Hamirpur from 10 Am to 5 PM on the date of incident. On the strength of the aforesaid statements, learned counsel for the accused-appellant has submitted that accused-appellant Udai Narayan is liable to be acquitted from all the charges.
(vii) In support of his contention, learned counsel for the accusedappellants has placed reliance on the following judgements:-
Rampal Singh Vs. State of Uttar Pradesh, (2012) 8 SCC 289;
9 Deepak Vs. State of Uttar Pradesh (Now Uttarakhand), (2018) 8 SCC 228; and Ankush Shivaji Gaikwad vs. State of Maharashtra, 2013 (6) SCC 770
17. Learned AGA while rebutting the arguments of learned counsel for the appellants has submitted that statements of P.Ws.1, 2 and 3 before the trial court indicate that accused-appellants had committed the offence with intention to kill the deceased. He has further submitted that minor contradictions in the statements of P.Ws.1, 2 and 3 will have no bearing in the present case because the witnesses are the villagers and the minor contradictions may not influence the prosecution case in any manner. The motive is strong and accused-appellant Ran Vijay Singh fired at the deceased on the exhortation done by accused-appellant Udai Narayan, therefore, they are guilty for committing the murder of the deceased. The doctor has also proved the injuries and the cause of death was due to injuries caused by accused-appellant Ran Vijay Singh, therefore, the trial court has rightly convicted them for the offences indicated above.
18. We have heard learned counsel for the parties and the submersions made by them and perused the record.
19. So far the argument of learned counsel for the appellants that P.W.-1 is not eye witness, we find some force in it for the reason that the FIR itself indicates that P.W.-1, the complainant has stated that he reached to the place of occurrence after getting information and had taken the Bullock Cart to take the deceased to the hospital.
It is also admitted in his cross-examination that when he reached to the pale of occurrence, he found that Chandrapal was unconscious. 10
20. So far the argument of learned counsel for the appellants that there are various contradictions in the statements of P.Ws.2 and 3 regarding the description of the weapon used in the crime is concerned, it is to be noted that statements of P.Ws.2 and 3 are unequivocal and they have categorically deposed before the court that accused-appellant Ran Vijay Singh shot fire at the deceased from the close range. The minor contradiction that P.W.-2 has stated at one point of time that accused-appellant Ran Vijay Singh was carrying Single Barrel Gun and at another point of time, stated that accused-appellant Ran Vijay Singh was carrying Double Barrel Gun, has no bearing in the facts and circumstances of the case. Such minor contradiction pertaining to description of weapon used in the crime i.e. Single Barrel Gun or Double Barrel Gun cannot demolish the prosecution case. The minor contradictions in the statements of witnesses are not so serious that it can be said that the prosecution case is demolished. P.Ws.2 and 3 have seen the incident and their statements are categorical and unequivocal. They have established the motive that Buffaloes of the deceased had grazed the pea-chaff in the field of accused-appellant Udai Narayan, on which some heated arguments took place between the parties and on the exhortation of accused-appellant Udai Narayan, accusedappellant Ran Vijay Singh brought his licensed gun and fired at the deceased, who fell on the ground after receiving fire arm injuries on his head; therefore, it cannot be said that the incident has not taken place.
21. The argument of learned counsel for the accused-appellants that statements of the witnesses under Section 161 Cr.P.C. were recorded after two months, has also no legs to stand because it is the duty of the Investigating Officer to record the statements of the witnesses of fact as soon as possible and if he commits any lapse, 11 the prosecution will not be disbelieved on this ground coupled with the fact that P.Ws.2 and 3 are the ocular witnesses and they have deposed before the court that accused-appellant Ran Vijay Singh fired at the deceased in their presence.
22. In the aforesaid circumstances, it is clear that accusedappellant Ran Vijay Singh fired at the deceased by his licensed gun, due to which the deceased died. Therefore, the conviction and sentence against accused-appellant Ran Vijay Singh is uphold. However, we have to see the gravity of the offence in the light of the prosecution case that whether the case is falling within the purview of Section 304 Part-II IPC. The record reveals that Buffaloes of the deceased Chandrapal grazed pea-chaff in the field of accusedappellant Udai Narayan, due to which heated arguments took place between them and the accused-appellant Ran Vijay Singh brought his licensed gun from his house and fired at the deceased. We have also to see the situation, which was prevailing at that time because definitely there would have been heated arguments between the parties as the Buffaloes of the deceased grazed pea-chaff in the field of accused-appellant Udai Narayan. There is no pre-plan or premeditation to commit the murder. The motive had arisen suddenly and the accused-appellant Ran Vijay Singh under the provoked situation, committed the crime; thus we can hold that there is no intention to kill the deceased with any pre-plan or premeditation. Since the crime was done out of grave and sudden provocation, which was not voluntarily, the offence would fall under the exceptions of Section 300 of the Code and is punishable under Section 304 of the Code. The said view has also been expressed by the Hon'ble Supreme Court in the case of Rampal Singh (supra). The relevant paragraph of the aforesaid judgement is extracted herein below:-
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"22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 the Code and is punishable under Section 304 the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed."
23. Hon'ble Supreme Court in similar circumstances while altering the offence under Section 302 IPC into Section 304 IPC in the case of Deepak (supra) held as under:-
"7. On consideration of the entirety of the evidence, it can safely be concluded that the occurrence took place in the heat of the moment and the assault was made without premeditation at the spur of time. The fact that the Appellant may have rushed to his house across the road and returned with a sword, is not sufficient to infer an intention to kill, both because of the genesis of the occurrence and the single assault by the Appellant, coupled with the duration of the entire episode for 1½ to 2 minutes. Had there been any intention to do away with the life of the deceased, nothing prevented the Appellant from making a second assault to ensure his death, rather than to have run away. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to loud playing of the tape recorder. But in the nature of weapon used, the assault made in the rib cage area, knowledge that death was likely to ensue will have to be attributed to the Appellant."
24. Thus, the conviction and sentence of accused-appellant Ran Vijay Singh is altered to the extent that he is held guilty of the offence under Section 304 Part-I IPC and sentence him for ten years rigorous imprisonment. However, the fine imposed by the trial court is waived of for the reason that accused-appellant Ran Vijay Singh has already served out 2 years more than the actual period of sentence awarded by this Court.
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25. Ordered accordingly.
26. Thus, Criminal Appeal No.4696 of 2010 is partly allowed and the judgement and order dated 09.07.2010 passed by the learned Additional Sessions Judge, FTC No.2, Fatehpur in Sessions Trial No.34 of 1999, arising out of Case Crime No.48 of 1999, is modified to the aforesaid extent.
27. Accused-appellant Ran Vijay Singh is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender unless wanted in any other case.
28. So far accused-appellant Udai Narayan is concerned, D.W.-1, Bhawan Deen Singh was examined before the trial court and he deposed that accused-appellant Udain Narayan was present in the court of District Judge, Hamirpur and the District Judge, Hamirpur issued the letter dated 21.04.1999 to that extent, which is exhibited as Ext.Kha-1. Similarly, SPO, Hamirpur had also given the certificate dated 20.04.1999, which is exhibited as Ext.Kha-2, in which it is mentioned that accused-appellant Udai Narayan was present from 10 AM to 5 PM in the court of District Judge, Hamirpur on the date of incident. Accused-appellant Udai Narayan was working in the office of the SPO, Hamirpur and was doing the work of CD Dispatcher. The prosecution did not controvert the letter issued by the District Judge, Hamirpur and there is no reason to disbelieve the certificate issued by the District Judge, Hamirpur, which mentions that accused-appellant Udai Narayan was present in his Court and was doing the duty pertaining to dispatch work.
29. D.W.-2, Devendra Kumar Gautam was also examined by the trial court, who produced the original attendance register dated 17.04.1999, which was weeded out as per the instructions of the Directorate.
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30. Thus, the presence of accused-appellant Udai Narayn appears to be doubtful and the letter of the District Jude, Hamirpur cannot be ignored in any manner particularly when the same was not controverted by the prosecution to prove otherwise. It appears that the complainant has assigned the role of exhortation to the accusedappellant Udai Narayan in order to rope him in the commission of crime being brother of accused-appellant Ran Vijay Singh.
31. Considering the over all facts and circumstances of the case and the evidence on record, we are of the considered opinion that presence of accused-appellant Udai Narayan at the time of incident appears to be doubtful, therefore, we have no other option except to acquit him of the offence under Section 302/34 IPC.
32. Ordered accordingly.
33. Thus, Criminal Appeal No.4693 of 2010 is allowed and the judgement and order dated 09.07.2010 passed by the learned Additional Sessions Judge, FTC No.2, Fatehpur in Sessions Trial No.36 of 2006, arising out of Case Crime No.48 of 1999, is hereby set aside.
34. Accused-appellant Udai Narayan is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender unless wanted in any other case.
35. Let lower court record be sent back forthwith along with a copy of this judgement and order for compliance. .
(Brij Raj Singh, J.) (Siddharth, J.) Order Date :- 30th July, 2024 Rao/-