Allahabad High Court
Indra Kumar Singh vs State Of U.P. on 6 September, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:58591-DB Reserved Court No. 1. Case :- CRIMINAL APPEAL No. - 1583 of 2016 Appellant :- Indra Kumar Singh Respondent :- State of U.P. Counsel for Appellant :- Rajbaksh Singh,Nagendra Mohan Counsel for Respondent :- Govt. Advocate,Aishwarya Mishra,Ali Akhtar Zaidi,Rishad Murtaza,Syed Ali Jafar Rizvi Hon'ble Attau Rahman Masoodi,J.
Hon'ble Ajai Kumar Srivastava-I,J.
Per Hon'ble Attau Rahman Masoodi, J.
1. The appellant-Indra Kumar Singh by means of the present appeal has questioned the legality and correctness of the judgement and order dated 28.9.2016 passed by Additional Session Judge, Bahraich whereby he has been convicted in S.T. No. 44 of 1994 under Section 302 and 307 IPC and sentenced to life imprisonment under Section 302 IPC alongwith fine of Rs. 10,000/- and ten years RI under Section 307 IPC alongwith fine of Rs. 7000/- with default stipulation.
2. Shorn of irrelevant details, the facts of the the case are that the complainant Rakesh Kumar Singh lodged a written complaint at Police Station Kaisarganj, District Bahraich alleging that on 26.4.1992 at about 1.00 pm when he was in his room and his brother Umesh Kumar Singh son of Deshraj Singh and his wife Smt. Neelam Singh in another room, the real brother in law of Umesh Kumar Singh, namely, Indra Kumar Singh son of Balram singh, resident of Madhwapur, PS Haraiya, district Basti who was posted at Police Line Bahraich came and started knocking the door of his brother's (Umesh Kumar Singh) room. Hearing the noise, the complainant came out of his room and his brother also opened the door. Immediately on opening of the door, Indra Kumar Singh (appellant) entered the room, and started firing on Umesh Kumar and his wife Neelam Singh and both of them on sustaining gunshots fell on the ground. Complainant raised alarm loudly whereupon many people of the village including Umresh Singh and Bachchan Singh, Munna Lodh and Master Singh reached the place of occurrence and the appellant ran away from the spot holding the revolver but the villagers chased the appellant. During the pursuit, the appellant fired fired a shot which hit Kallu at left leg and his leg got fractured. However, the complainant and other villagers kept on chasing the appellant. Eventually, the police from Kaiserganj Police Station arrived at the scene and apprehended the appellant.
3. On the written complaint of the complainant, a case on crime no. 83/92 under Section 307 IPC was registered which is entered at report no. 19, time 14.30 dated 26.4.1992.
4. After the case was registered, chitthi majroobi was prepared and the injured were sent to District Hospital, Bahraich where Dr D. Nath medically examined Umesh Kumar Singh and noted the following injuries on the person of the injured:
1. Gunshot wound on the left side of the abdomen, approximately 14 cm away from the umbilicus at 7 O'clock position. The wound measures 0.75 cm X 0.75 cm x depth not probed, and the margins are inverted with blackening present.
2. Gunshot wound on the left side of the back, approximately 9 cm above the left anterior surface iliac spine. The wound measures 0.75 cm x 0.75 cm x depth not probed.
3. Gunshot wound on the left side of the back, approximately 2 cm posterior to the second injury. The wound measures 0.3 cm x 0.3 cm x depth not probed.
The doctor opined that the injuries sustained by Umesh Kumar Singh were caused by firearm shots and were considered fresh at the time of examination. He was referred to a surgeon for further observation and expert opinion.
5. Dr D. Nath also medically examined Smt. Neelam Singh wife of Umesh Kumar Singh at 2.40 pm and noted the following injuries on the person of the injured:
1. Gunshot wound 0.75 cm x 0.75 cm x depth not probed on right side abdomen 4 cm away from umbilicus at 7 O'clock position blackening around wound present.
2. Gunshot wound 0.75 cm x 0.75 cm x depth not probed - 5.5 cm below elbow blackening around would present.
3. Gunshot wound 0.75 cm x 0.75 cm x depth not probed, on left forearm above elbow.
6. On 28.4.1992 Smt Neelam Singh succumbed to the injuries received by her and postmortem on her dead body was conducted by Dr Rajesh Sinha and he noted the following ante mortem injures:
1- Entry wound of a fire arms left forearm which is 75 cm x .75 cm flesh deep 5 cm below left elbow which was associated with bullet exit wound and its size is 1 cm x 1 cm x flesh deep. Hospital bandage was applied on both the injuries.
2- One firearm entry wound in the abdomen on the right side 4 cm away from the chin at the position of 7 O'Clock measuring 0.75 cm x 0.75 cm downwards which extended till the right hip bone. Bullet was present inside this wound which was taken out at the time of post mortem from the hip bone.
3. A stitched and bandaged wound was found in the abdomen on the right side 14 cm above and the lower part 10 cm below the umbilicus, on recovering stitches, rectus sheath end peritoneum also found stitched in the same length end line.
4- Rubber drains were lying on both sides under the chin in the stomach.
7. Another injured Kallu alias Ramesh Kumar was medically examined at Community Health Centre, Chinhat, Lucknow by Dr Sudhir Kumar Srivastava who noted the following injuries on his person:
1. Firearm wound of entry 0.75 cm x 0.75 cm x depth not probed on front and middle of left leg 18 cm below knee joint. Blackening and tattooing present. Margins are inverted.
2. Firearm wound of entry 0.3 cm x 0.3 cm x depth not probed on front leg 5.5 cm below injury no. (1). Blackening present.
3. Firearm wound of exit 1 cm x 0.75 cm x depth not probed, on back of left leg 11 cm above ankle joint, margins averted. Blackening not present.
In the opinion of doctor, injuries no. 1, 2 and 3 were caused by firearm. Duration fresh. All injuries were kept under observation.
8. During the course of investigation, the Investigating Officer recorded the statements of the witnesses under Section 161 CrPC. The accused was arrested and thereafter his statement was recorded. The accused appellant Indra Kumar Singh against whom sufficient evidence was collected and sanctioned was also obtained.
9. At the end of the investigation, chargesheet was filed for the offence punishable under Section 302 and 307 of the IPC in the court of learned Magistrate. The learned Magistrate committed the case to the court of session as the offence was exclusively triable by the court of sessions.
10. The accused appellant abjured the guilt and claimed to be tried.
11. To substantiate its version, in all fifteen witnesses were produced by the prosecution.
12. PW-1 the informant Rakesh Kumar Singh (PW-1) is the complainant. In the examination in chief, he stated Umesh Kumar Singh, is his real younger brother who was injured in the incident, and his wife named Neelam Singh has also died. Indra Kumar Singh is the brother-in-law of Umesh Kumar Singh and is a Constable in the police department. The incident occurred on 26th April 1992, around 1 o'clock in the afternoon. When the incident took place, Rakesh was in his room, and Umesh and Neelam were in their respective rooms. Neelam was later discovered to have gone to Kaiserganj for a marriage-related event. Rakesh heard knocking at Umesh's room, and when he went to check, he saw Indra Kumar Singh knocking on the door. Umesh opened the door, and Indra Kumar entered the room. Rakesh returned to his room, and a few moments later, he heard gunshots from Umesh's room. Upon hearing the gunfire, Rakesh rushed to Umesh's room and found his brother and sister-in-law (bhabhi) injured, while Indra Kumar Singh had fled the scene. Rakesh raised an alarm, and villagers from the nearby area, including Kallu alias Ramesh, Riyasat Ali, Bachchan Singh, Master Singh, and Munna Lodh, came to the scene. The villagers, along with Rakesh, chased Indra Kumar Singh. During the pursuit, Kallu was shot in the leg by Indra Kumar Singh. Eventually, the villagers and Rakesh surrounded Indra Kumar Singh and caught him near the grave of Mahmood Shah situated on the Lucknow-Bahraich road. The police also arrived at the scene by that time. The villagers also brought Kallu to the same place where Indra Kumar Singh was apprehended. PW-1, the informant Rakesh Kumar Singh wrote the report in a hotel at Kaisarganj and lodged the same at the police station. At police station, the Constable registered the case and the informant Rakesh Kumar Singh was given a copy of the FIR. Police had brought Indra Kumar Singh alongwith Kallu alias Ramesh to the police station. At police station PW-1 was interrogated. After the witness came out of the police station, he came to know that Umesh Singh and his wife Neelam were taken to the Bahraich hospital. Thereafter, he went to Bahraich hospital and remained there till 4 pm. Since family members had reached the hospital, he came back to his home. In the evening, the Inspector had come to his house and inquired about the place of incident and the road taken by the assailant for running away.
13. Kallu alias Ramesh (P.W.2) in his examination-in-chief deposed that he knew Indra Kumar Singh because sister of the accused Indra Kumar Singh was married to Umesh Kumar Singh, who is brother of Rakesh Kumar Singh. After marriage Indra Kumar used to visit his village, therefore, he knew Indra Kumar Singh. Narrating the incident, he stated that the incident had occurred eight and a half year back at 1 O' clock. The witness deposed that he had gone to purchase Bidi and matchbox at one Kallu's shop when he heard sound of three-four gunshots coming from Rakesh's house. PW-2 pointed out the approximate length of the pistol used in the incident to be one foot. There was commotion asking to run and the villagers were chasing Indra kumar Singh. Hearing the hue ad cry, a large number of persons including Riyasat, Munna, and Bachchan Singh of the village had rushed there then all chased Indra Kumar Singh and crossed 8-10 fields. He reached near Indra Kumar Singh and was trying to catch hold of him. Indira Kumar Singh opened fire and fired two gunshots on him which hit his left leg. He collapsed after sustaining gunshot at that very place. Rest of the people kept on chasing Indra Kumar Singh. Indira Kumar Singh was caught by the villagers near Mahmood Shah Mazaar, who kept hold of him. Police personnels in the meantime had also arrived there. Later, he and Indra Kumar Singh were brought to the police station by the policemen. This witness further deposed that he was sent to government hospital at Kaisarganj and the same day they brought him to Government Hospital at Bahraich for treatment. At Bahraich he remained under treatment for a month. At police station his injuries were looked at by the policemen and his statement was also taken. The witness was subjected to grueling cross examination. He withstood with his stand and fully supported the prosecution version.
14. Umesh Kumar Singh (PW-3) in his statement deposed that he has been working in Indian Army and that Neelam Singh was his wife. Accused Indra Kumar Singh is real brother of Neelam Singh. Indra Kumar Singh is posted in the police department at Bahraich. Narrating the incident in question, he stated that the same had occurred on 26.4.1992. He had reached his home about 25 days before the date of incident. At that time he and his wife were in the room. He opened the door at the knocking of the door by the accused-appellant. He asked about well being of the accused and thereafter his wife offered refreshment to him. He went to take a bath and came after 3-4 minutes when the accused said that he wanted to talk. The witness told him that he is going to call the father who is in field but he insisted to talk with him, which he refused. Suddenly, the accused took out his revolver and told PW-3 either to talk to him now or shoot him. The revolver held by the accused was service revolver. PW-3 asked the accused to keep the revolver with him. He told the accused that he will call his father then he would talk. Indra Kumar Singh moved one or two steps back and fired upon him. When accused fired 3-4 gunshots on the witness, he was tying the belt. When his wife stood up, the accused fired on her and as such she fell down on the spot and he was stunned. The gunshots hit both of them. On hearing the sound of firing, his brother Rakesh Kumar Singh entered the room. Accused threatened his brother and ran away. He and his wife were taken to District Hospital where his statement and his wife was recorded by the Magistrate. After two days, his wife expired in the District Hospital.
PW-3 further stated that he had got prepared a bank draft in the name of Indra Kumar Singh for being delivered to his (PW-3) family. Besides, some money of his wife was also with Indra Kumar Singh who was keeping this money with him since one year which has given rise to a dispute with the accused. Since he or his wife was not having any account in Bahraich State Bank, therefore, the draft was prepared in the name of Indra Kumar.
15. Virendra Singh (PW-4), Pharmacist, District Hospital, Bahraich produced the accidental injury register wherein original medical examination report in respect of injured Umesh Kumar Singh, injured Neelam Singh and Ramesh Kumar Singh was entered.
16. Buddhisagar (PW-5) was Pradhan of the village in the year 1992 and was also Pradhan on the date of deposition. He stated that on 26.4.1992, in the evening he alongwith Senior Inspector and Junior Inspector and some constables and witness Master Singh and Ram Ujagar Singh was searching the revolver used by the accused in near village Barkhurdarpur and Mahmood Shah Mazaar and during search they reached in the orchard of Gangadhar Misra. In the Orchard there were some Sheesham trees and Arhar heaps were lying. At the very place a revolver which was kept in a leather case was recovered. Alongwith revolver, five empty cartridges and two live cartridges in leather case were also found. On the spot recovered items were taken into possession by the SI and recovery memo was prepared on which he and other witnesses had made signatures. PW-5 saw the recovery memo alongwith the file and proved the same alongwith his signatures. He also proved the other recovered items. He stated that after recovery he went back to his home and the policemen went to police station alongwith the recovered article.
17. Dr Rajesh Sinha (P.W.6) was posted as Surgeon in District Hospital, Bahraich and had conducted postmortem on the dead body of Smt Neelam Singh on 29.4.1992 at 11 am. The ante mortem injuries found on the body of Smt Neelam Singh have already mentioned above. Dr Rajesh Sinha (PW-6) proved the post-mortem report and opined that the cause of deceased was septicemia and toxemia caused due to ante mortem injuries. He further stated that on the direction of the Chief Medical Superintendent (CMS), the viscera was preserved.
18. During cross examination the doctor deposed that while conducting post mortem when the wounds were opened it was found that none of them was decayed, besides pus was found in stomach. Refuting the possibility of poisoning PW-6 deposed that in case of poisoning, particles of poison enters the intestine and the wound, if there is any. Poison does not cause septicemia rather it causes shock. In cross examination, he expressed unawareness as to whether viscera was sent for examination or not.
19. PW-6 was recalled on an application moved by the prosecution who stated on oath that on 26.4.1992 he was posted at District Hospital, Bahraich. On that day the Magistrate had recorded statement of Umesh Kumar Singh and Smt Neelam Singh. PW-6 had medically examined the mental status of both the injured persons before reocrding of statement and found that both of them were fit for making statement. He denied the suggestion that the fitness certificate were wrongly issued by him or that he had issued the fitness certificate under the influence of Rakesh Kumar Singh. He did not even remember whether any person in the name of Rakesh Kumar Singh was posted in the x-ray department at the relevant point of time or not.
20. Dr D. Nath (P.W.7) Senior Chief Orthopaedic Surgeon,Etawah in his examination in chief deposed that on 26.4.1992, he was posted as Emergency Medical Officer at District Hospital, Bahraich. He had conducted medical examination of the injuries sustained by Umesh Kumar Singh and Smt Neelam Singh wife of Umesh Kumar Singh. The injuries received by these persons have already been mentioned in the preceding paragraphs of the judgement. In his opinion, the injuries sustained by both the injured were caused by a firearm and were fresh.
21. Dilwar Saeed CP (PW-8), Police Station Inayat Nagar, District Faizabad has prepared chik FIR on the basis of a written report lodged by the complainant Rakesh Kumar Singh. He had proved the chik FIR and the signatures made thereon.
22. Om Prakash Mani (PW-9) in his examination in chief deposed that on 21.5.1992, he was he was posted as Ballistic Expert at Forensic Science Laboratory. On that day Constable Dinesh Chandra Mishra brought four sealed packets bearing seal like sample seal alongwith the letter of CJM Bahraich for examination. Two sealed packet contained one empty cartridge .38 bore each (Exhibit EB-1), third packet contained one empty cartridge number 16112952 and inside its chamber five empty cartridges and from the revolver's shell two empty and five live cartridges .38 bore were found.
23. Kailash Nath Singh (PW-10), Inspector-Incharge, P.S. Kapilvastu, District Siddharthanagar stated on oath that on 26.4.1992 he was posted on the post of Station Officer, P.S. Kaisarganj. On 26.4.1992, on a written report given by Rakesh Kumar Singh son of Devraj Singh resident of Guthiya, P.S. Kaisarganj, District Bahraich, a Case Crime on No. 83/92 under Section 307 IPC was registered. On that day, he was not present and was on leave. Investigation of the case was conducted by SI Mata Prasad Shukla till 28.4.1992 and thereafter he took up the Investigation on 29.04.1992. On 28.4.92 on receiving telephonic information about the death of Smt Neelam Singh at District Hospital, the case was converted to Section 302 IPC. The case diary prepared by the earlier IO was perused which contained the proceedings conducted earlier. PW-10 stated that he had recorded the statement of accused Indira Kumar but due to illness it could not be recorded. On asking about the statement of Neelam Singh, who was on death bed (dying declaration) it was informed by the concerned clerk that the same would be available by 4 pm. On information being gathered, it was reported by Assistant Writer Paras Nath Singh posted in the office of RI that departure (rawangi) of Indira Kumar Singh dated 17.2.1992 was handed over vide report no. 7 at 7.50 with revolver no. 161/12952 and 30 cartridges for discharging duty of Shadow (Gunner) of State Minister Sri Mayankar Singh. The witness also stated that on 1.5.1992 a report for discharge of accused from hospital was furnished and recording of statement was attempted but the Medical Officer Rajesh Sinha informed that due to his health condition the recording of statement was not advisable. On 9.5.1995 original panchnama of deceased Neelam Singh was copied, and statement of inquest witnesses was recorded. On 22.5.19992, he recorded the statement of Deshraj Singh and Umesh Kumar Singh both resident of Guthiya. With respect to the case material Constable had informed that the same was delivered to Forensic Science Laboratory. On 27.5.1992, the comments were sent to the appointing authority for prosecution sanction. On 15.6.1992 on the basis of supplementary parcha statement of Rakesh Singh was recorded. On 30.6.1992 PW-10 recorded the statement of Umesh Singh and on 23.7.1992 statement of Ram Mohan Singh was recorded. On 26.4.1992 the revolver used in the incident and hanging holster were recovered and fard of the same was prepared by the then SI N.D. Pandey on the dictation of PW-10. On 24.5.1992 charge sheet no. 82/92 under Section 307/302 was issued on which his inscription and signatures were made.
24. PW-10 was subjected to grueling cross examination but nothing substantial could be elicited so as to controvert the prosecution's story.
25. J.P. Singh (PW-11) is the Branch Manager, State Bank of India, Agriculture Branch, Bahraich who deposed that the bank draft to the tune of Rs. 10,000/- was issued in the name of Indra Kumar Singh and it came to his branch from Main Branch for clearance. He proved the comments written by R.S.S. Tiwari and his signatures over paper no. B-41.
26. Mata Prasad Shukla (PW-12), SI in his examination stated that on 26.4.1992 he was posted at police station Kaisarganj. The case was registered in his presence and he was assigned the investigation thereof. He had made a mention of copy of chik FIR and GD in the case diary. He recorded statement of Ramesh alias Kallu at the police station and thereafter reached the place of occurrence where he recorded statements of Riyasat, Master Singh, Munna Lodhe, Bachchan Singh. He also took the blood-stained soil and plain soil from the spot and also prepared the site-plan. On the same day, he recorded the witnesses of recovery Jitendra Pratap Singh and Kaushalendra Singh and conducted spot inspection. He proved the site plan and his writing and signatures on the khasra. This witness further deposed that on the same day, during site inspection he recovered 0.38 bore small bullet cartridge and its memo was prepared by him on the spot which bears his writing and signatures. He also collected blood stained and plain earth from the spot and prepared the memo thereof. On the same day according to the witness a report of suspension of the accused Indra Kumar Singh was dispatched. He could not record statement of injured Umesh Kumar and his wife Neelam as their treatment was going on and they were not in a position to record their statement. He also recorded statement of Master Singh, Buddh Sagar and Ujagar Singh etc. Thereafter investigation was taken over by Station Officer, himself.
27. Sudhir Kumar Srivastava (PW-13), Superintendent, Community Health Centre deposed that on 26.4.1992, he was posted as Medical Officer in the District Hospital, Bahraich. He has conducted medical examination of injured Ramesh Kumar who was brought by Constable 182 Manik Ram Verma. The injuries found on the body of Ramesh Kumar have already been mentioned.
28. Ahmad Jalal Zaidi (PW-14), Senior Sub Inspector in his examination deposed that on 28.4.1992 he was posted as SI at Police Station Kotwali Nagar. On that day the sweeper posted in the Sadar Hospital delivered the memo of death of Neelam Singh at Police station reference of which was entered on the GD of the same day at report no. 22 at 14.55. He further stated that on the same day inquest on the dead body of deceased Neelam Singh's was conducted by him after reaching to the Sadar Hospital, Bahraich. At the same time, letter for postmortem, CM and RI were prepared by him in his own handwriting and made signatures thereon. Challan Lash and photo lash was also prepared by him in his hand writing and under his signatures. The corpse was thereafter sealed and given to the custody of Constable Sanjiv Kumar and Homeguard for getting the postmortem conducted.
29. Jitendra Kumar (PW-15), Secretary, U.P. Human Rights Commission was posted as Joint Magistrate in district Bahraich on 26.4.1992. On that day, he visited District Hospital, Bahraich and had recorded statement of injured Umesh Kumar Singh at about 4.15 pm. On the said day, he recorded the dying declaration of Smt. Neelam Singh wife of Umesh Kumar Singh at about 4.50 pm. Before the statement was recorded, Dr Rajesh Sinha who was on duty at that time certified that both the injured were in a position to record their statement. After asking other people present there to leave, he firstly recorded the statement of Umesh Kumar Singh and thereafter his wife Neelam Singh. Whatever they stated, the same was mentioned by him word by word in inverted comma. After their statement was recorded, the doctor certified that both the injured were mentally fit during the course of statement. He proved the statements which were shown to him and verified the same to be the same statements which were made by Umesh Kumar in injured condition and by Smt Neelam Singh in her dying declaration dated 26.4.1992 which were recorded by him. He proved his handwriting and signatures over the statements and verified their veracity.
30. Overall, the witness testimonies highlight the sequence of events leading to the injuries sustained by Umesh Kumar Singh and the death of Neelam Singh. The witnesses' statements suggest that Indra Kumar Singh was involved in the incident, and he was later apprehended by the villagers and handed over to the police.
31. After conclusion of prosecution evidence, the statement of accused under Section 313 Cr.P.C. was recorded in which he stated that the witnesses have deposed against him due to enmity. In his additional statement he stated that there was enmity with Umesh Kumar Singh on account of demand of dowry and Motorcycle. He himself has sustained injuries and has been falsely implicated in the case.
32. In his defense, he produced Police Constable Paras Nath Singh (D.W.1) working in the office Circle Officer, Kadipur, Sultanpur who stated that from 1984 to 2000 he was posted in District Bahraich and on 13.07.1999, he was posted as Munshi in the office of Reserve Inspector (RI). Accused Indra Kumar Singh was known to him and they both were having family relations. Indra Kumar Singh had informed him that Umesh Kumar Singh used to harass her sister for dowry. Umesh Kumar Singh also threatened the appellant and sent letters of threat, which the accused had shown to him.
33. Anil Kumar Singh (D.W.-2), who is the real brother of the accused-appellant stated that Neelam Singh (deceased) was his real sister. Neelam was married to Umesh Kumar Singh resident of Guthiya Police Station kaiserganj, District Bahraich. After the marriage, Umesh Kumar Singh used to demand Enfield India 350 Motorcycle in dowry through letter though no such settlement was entered at the time of marriage. Umesh Kumar Singh by the letter dated 08.06.1990 demanded new Enfield India 350 Motorcycle by the last week of November otherwise and threatened that otherwise relation will may proved costly to both of them. He further deposed that his sister has also informed through letter on 15.04.1992 that she was reprimanded every now and then for the motorbike. Indra Kumar Singh was called to village Guthiya for Panchayat (settlement of dispute). There he was beaten. At the house of Umesh Kumar Singh, two other people were also sitting who had fired on Indra Kumar Singh, but Neelam Singh ran to save Indra Kumar Singh and as such it hit Neelam Singh and Umesh Kumar Singh as accused-appellant went behind Umesh Kumar Singh to protect himself. His brother has been implicated through conspiracy.
34. The trial court after scrutinizing the evidence on record, the testimony of two injured witnesses and medical reports including the dying declaration came to the conclusion that the prosecution has successfully proved its case beyond reasonable doubt against the accused-appellant. Accordingly, the trial court convicted and sentenced the accused-appellant by judgement and order dated 28.9.2016 as referred to above which has given rise to the present appeal.
35. Learned counsel for the appellant has vehemently argued that findings of guilt recorded by the trial court are wholly perverse and erroneous and are not based on correct appreciation of evidence on record. The trial court has fell into error in giving too much weight to the testimony of the prosecution witnesses and especially that of Rakesh Kumar Singh (P.W.-1) overlooking the fact that he is a partisan and interested witness. It has also been argued that the learned trial court has committed an error in discarding the testimony of Umesh Kumar Singh and the dying declaration of Smt. Neelam Singh.
36. Learned counsel for the appellant has argued that before the trial court, the evidence regarding the demand of dowry by Umesh Kumar Singh was brought on record but it was disbelieved and discarded by the trial court and as such the trial court has committed an error in not scrutinizing the evidence in its correct prospective.
37. During the course of arguments, learned counsel for the appellant has vehemently argued that even if the entire case of the prosecution is believed to be true, the case at the most would be that of culpable homicide not amounting to murder as the same falls within the purview of Exception 4 to Section 300 of the IPC.
38. To substantiate his above argument, the learned counsel for the appellant has relied upon the Supreme Court's judgement rendered in the case Sanjay Vs State of Uttar Pradesh (Criminal Appeal No. 11 of 2016: Decided on 6.1.2016).
39. In the backdrop of the aforesaid argument, the learned counsel for appellant prays that since the trial court has committed an error of law in appreciation of the evidence, the appeal deserves to be allowed and the appellant be acquitted of all the charges leveled against him. In the alternative, it is prayed the conviction may be altered from Section 302 IPC to Section 304-I IPC by giving extending the benefit of Exception 4 to Section 300 of the IPC.
40. On the other hand, learned Additional Government Advocate appearing for the State has submitted that the judgement and order rendered by the trial court is based on correct appreciation of facts and does not suffer from any legal infirmity. According to State counsel the prosecution has successfully been able to prove its case on the basis of clinching and direct evidence against the appellant which has been fully corroborated by the medical evidence.
41. It is further submitted that the trial court has rightly believed the testimony of injured witnesses and the dying declaration to be true and trustworthy. No error much less an error of law could be said to have been committed by the trial court in holding the appellant guilty of the offenses he was charged with.
42. The accused-appellant has failed to prove by giving any concrete evidence that he was assaulted by the complainant and other persons.
43. Having heard learned counsel for the parties, the question for consideration before us is as to whether the learned trial court has committed any error in holding the appellant guilty and awarding sentence.
44. The incident in question has occurred on 26.4.1992 at about 1 PM and three persons namely Umesh Kumar Singh, Kallu alias Ramesh Kumar and Smt. Neelam Singh received serious injuries on their person, which have been mentioned hereinabove. Injured Smt. Neelam Singh who is the wife Umesh Kumar Singh (injured) passed away on 28.4.1992.
45. The law is well settled that the evidence of the injured witness has greater evidentiary value and unless compelling reasons exist, the statements are not to be discarded lightly. Further, the evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
Recently, the Hon'ble Supreme Court in the case of Balu Sudam Khalde and another Vs The State of Maharastra reported in 2023 SCC OnLine SC 355 (decided on 29.3.2023), enunciated the principles with regard to placing reliance on the testimony of the injured witness which read as under:-
"(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
46. Scrutiny of evidence on record shows that Umesh Kumar Singh had sustained gunshot injuries in the same incident. He in his statement stated that Indira Kumar Singh (appellant) fired three-four shots upon him and when his wife came she was also shot upon, and fell down on the spot. Kallu alias Ramesh (PW 2) who has also sustained injuries in the incident had stated that when he heard the gunshot sound, he went to the house of Rakesh and in the meantime Riyasat, Munna, Bacchan and other villagers also reached on account of alarm being raised. He and other villagers chased Indra Kumar Singh in order to catch him but in the pursuit, Indra Kumar Singh fired on him as a result of which he fell down. In his cross-examination this witness deposed that his house is situated after five to six houses of Umesh Kumar. This witness in his cross-examination has also stated that he alone was not running but several other villagers were also running to catch Indra Kumar and he received gunshot injury in a field. Close scrutiny of the evidence shows that both the witnesses namely Kallu alias Ramesh (PW-2) and Umesh Kumar Singh (PW-3) have made clear and cogent statement that on the day of incident the appellant had caused injuries to them. Both the witnesses have been subjected to cross-examination but no major contradiction or inconsistency could be elicited. Even Smt. Neelam Singh (deceased) in her dying declaration has stated about the injuries caused by his brother (appellant herein).
47. In the instant case the evidence of both the injured eye-witnesses, Kallu alias Ramesh (PW-2) and Umesh Kumar Singh (PW-3) appears credible as the same has been supported by other witnesses and is corroborated by medical evidence as well.
48. As regards the assertion of the appellant with regard to application of Exception IV to Section 300 IPC and converting the case into a case of culpable homicide not amounting to murder, it would be useful to to have a glance over Exception IV which reads as under:-
"Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
49. A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4:
(i) it was a sudden fight;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.
50. On a plain reading of Exception IV, it transpires that the same can be invoked if death is caused (a) without premeditation (b) in a sudden fight (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within the ambit of Exception IV all the ingredients mentioned therein must be present.
51. In the foregoing paragraphs of the judgement, we have noted the injuries suffered by Kallu alias Ramesh (PW-2), Umesh Kumar Singh (PW-3) and deceased Smt. Neelam Singh. Having regard to the nature of the injuries by firearm on the vital parts of the body, there is no escape from the conclusion that it is a case of Section 302 of IPC. Therefore, it is very difficult for us to accept the submissions of the learned counsel appearing for the appellant that the case would be of culpable homicide not amounting to murder and such benefit must be extended to the accused.
52. The acceptability of the dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silent and a person is induced by the most powerful consideration to speak only truth. In the case at hand, the dying declaration of Smt. Neelam Singh is read as under:-
"श्रीमती नीलम सिंह W/o श्री उमेश कुमार सिंह ने आज दिनांक 26/4/92 को 4.50 PM पर जिला अस्पताल बहराइच में मेरे समक्ष यह बयान दिया -" जब मेरा पति नहाने गया था मैं भाई के साथ बैठी थी। तब वह घर की बात कर रहा था। विदाई के लिए कहा। जब मेरा पति नहा के आया था मेरे भाई से कहा मैं पिताजी को लेकर आता हूं तब बात होगी। मेरे भाई ने पति को कहा अभी बात करो। फिर खड़ा होकर रिवाल्वर निकाल कर मेरे पति को कहा यह लो और हमें गोली मार दो। मेरा पति बोला यह तुम ही रखो हमको नही चाहिए। फिर मेरा भाई गोली चला दिया मेरे पति पर। तब मैं चिल्लाई फिर हमारे पर भी गोली चला दिया। आवाज सुनकर मेरे जेठ अन्दर आए। वह आने में थोड़ा हिचके तब तक मेरा भाई बाहर भाग गया।"
52. As regard the reliance having been placed on the dying declaration of Smt. Neelam Singh by trial court, we would like to refer a recent judgement rendered by the Hon'ble Supreme Court in the case of Irfan @ Naka Vs The State of U.P. reported in 2023 SCC OnLine SC 1060 (decided on 23.08.2023).
53. In the case of Irfan @ Naka (supra) the Hon'ble Supreme Court has laid down the certain features in order to determine the admissibility of the dying declaration. The relevant paragraph 62 reads as under:-
"62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -
(i) Whether the person making the statement was in expectation of death?
(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly? (vi) Whether, the dying declarant had opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person's imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?"
54. In the instant case, the incident took place on 26.4.1992 in which Smt. Neelam Singh received injuries and she succumbed to injuries on 28.4.1992. Her dying declaration was recorded on 26.4.1992 at 4.50 PM by the Joint Magistrate, Bahraich at District Hospital. It has come on record that before recording the dying declaration as well as after recording the statement, the deceased was fully examined by the doctor that deceased was mentally fit to record statement. It is important to mention that the Doctor who gave the certificate and the Magistrate who recorded the statement proved the same before the court as has been mentioned by the trial court in its judgement. Therefore, the dying declaration inspires full confidence and has rightly been relied upon by the trial court.
55. Here it is important to mention that a perusal of dying declaration also belies the theory of demand of dowry by Umesh Kumar Singh as set up by the defense. Smt. Neelam Singh in her dying declaration has stated in unequivocal terms that gunshot was fired by the appellant upon her and also upon her husband. There was no occasion for the deceased to discharge her husband had she been subjected to mental torture for fulfillment of dowry. We can only imagine the pain she would have suffered while taking name of her real brother who caused serious injuries to her and her husband.
56. For the reasons aforesaid, we find no infirmity or illegality in the impugned judgement of the trial court and the same is here by affirmed. The appeal being devoid of merit is hereby is dismissed. The appellant- Indra Kumar Singh, who is on bail shall immediately surrender before the court concerned to serve out the remaining period of sentence awarded to him.
57. Let a copy of this judgement along with lower court record be sent to the court concerned for compliance and the compliance report be submitted to the Senior Registrar of this Court.
Dated: Sept. 6, 2023 Fahim/-