Deena @ Deen Dayal Vs. State of Uttar
Pradesh  INSC 129 (11 August 1978)
SARKARIA, RANJIT SINGH
CITATION: 1978 AIR 1605 1979 SCR (1) 107 1978
SCC (3) 540
Indian Penal Code, S. 302 - Murder by convict
serving life sentence for offence u/s 302 I.P.C., while on bail- Imposition of
capital sentence confirmed.
The appellant was convicted for having
committed an offence u/s 302 I.P.C., and was serving a sentence of imprisonment
for life. He was released on bail. and during that period. committed the murder
of a prosecution witness in the earlier murder case. The Sessions Court found
him guilty and imposed the sentence of death on him. The sentence was confirmed
by the High Court in appeal .
Dismissing the appeal, the Court
HELD: The murder was committed by a person
under a sentence of imprisonment for life for an offence under section 302
I.P.C. while he was on bail. The offence was committed for the purpose of
teaching a lesson to a witness who gave evidence against him in the earlier
murder case and was committed after deliberate planning, in the night when the
victim was sleeping. We confirm the sentence of death.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 239 of 1975.
Appeal by special leave from the Judgment and
order dated 17-10-1974 of the Allahabad High Court in Cr. A. No. 1013 of 1974
and Reference No. 18/74.
Badri Das Sharma (amicus curiae) for the
O. P. Rana for the respondent.
The Judgment of the Court was delivered by
KAILASAM J. - This appeal is preferred by Deena alias Din Dayal by special
leave against the judgment of the High Court convicting and sentencing him.
The case for the prosecution is that on the
night of the 20th and 21st June, 1971 the deceased Nainsukh, his brother Hari
Singh, his distant uncle Tika Ram, Chandra Pal, daughter's son of Tika Ram and
Chokhey slept on a platform of the Chaupal in village Jar. According to the
prosecution a lantern was hanging on the platform from the branch of a Neem
tree. In the morning at about 4 a.m. the appellant Deena and four other came to
the Chaupal of Nainsukh. The dogs began to bark as a result of which Hari Singh
(P.W. 1 ) and others were 108 awakened. Deena and his associates carried pistol
and electric torches Deena challenged Nainsukh saying that he would be taught a
lesson for appearing as a witness and fired his pistol striking Nainsukh on his
head. Hari Singh and Chandra Pal shouted for help. They were also injured.
After hearing the alarm Nihal Singh, Panna
Lal and others reached the place of the incident but before their arrival the
accused had made good their escape.
The First Information Report was written by
Bharat Singh on the dictation of Hari Singh. The injured witness Hari Singh and
Chandra Pal then went to Etah Police Station where the report Ex. Ka-4 was
handed over at Police Station Kotwali at 2.05 a.m. On 21st June, 1971. The
Police officer took up the investigation and reached the scene at about 1.30
p.m. He found the dead body of Nainsukh and held the inquest, prepared the site
plan and recovered the material objects. Nihal Singh, P.W. 2, produced the
lantern before the Investigating officer which was burning at the time the
occurrence took place. shell of used cartridge was also recovered from the
Dr. N. K. Mittal (P.W. 13), the Medical
officer of Etah. found two injuries caused by fire-arm on Chandra Pal and one
injury on Hari Singh. The autopsy on the body of Nainsukh was conducted by Dr.
Prasad on 21st June, ]971. He found two gunshot injuries, one on the right side
of head above the right ear and the other was non traumatic swelling on the
back surface of the right hand. On internal examination it was found that the
surface of the scalp of the right side was congested under injury No. 1. The
doctor found a fissured fracture of the right parietal bone, vertically placed
from the suture line to eye-brow. The doctor was of the opinion that the
injuries were sufficient in the ordinary course of nature to cause death.
Apart from the eye-witness P.W. 1 the
prosecution examined P W. 2 Nihal Singh, P.W. 3 Panna Lal who saw the accused
running away after the incident. Reliance was not placed by the courts below on
the evidence of P.Ws 2 and 3.
The conviction therefore solely rests on the
testimony of eye-witness Hari Singh, P.W. ].
Hari Singh P.W. 1 has spoken of the motive.
About 4 or 6 years prior to the occurrence one Ram Chandra was murdered. Deena
was one of the accused in the case. Deena was found guilty of murder and sentenced
to imprisonment for life. In that case the deceased Nainsukh gave evidence
against Deena as an eye-witness. About two months before the murder of
Nainsukh, Deena was released on hail and it was rumoured that Deena was saying
that now when he had 109 come out of jail he would teach a lesson to Nainsukh.
Nainsukh, Hari Singh and their relations took
the threat seriously and were living cautiously. On the date of the occurrence,
according to P.W. 1, a lantern was burning and at about 4 o'clock in the morning
he was awakened by the barking of the dogs. Four or five other persons came
along with Deena. Deena and one of his companions had torches in their hands
and they came flashing their torches. Deena and the other accused came at the
Chaupal from the staircase on the eastern side. After coming over the Chabutra
of the Chaupal the accused stated "Nainsukh, beware, now I will teach you
the lesson for giving the evidence". While flashing the torches on the
deceased Deena fired at Nainsukh aiming towards his head. The shot hit Nainsukh
on the head.
The other shot fired by Deena injured Chandra
Pal and the third shot hit the prosecution witness Hari Singh. Hari Singh
received an injury on his right shoulder.
The plea that was made by the defence on the
evidence of P.W. 1 was that it cannot be safely relied on. It was submitted
that the other injured witness Chandra Pal who was examined as a court witness
did not fully support the evidence of the prosecution. We have gone through the
testimony of P.W. 1 and witness Chandra Pal and we do not see any material
contradiction. The enmity between Deena on the one side and the deceased and
his family on the other side is not seriously contested. The deceased Nainsukh
gave evidence against Deena in the murder case in which Ram Chandra was killed.
When Deena was released on bail he wanted to teach a lesson to the witness
Nainsukh who had appeared against him. This resulted in Deena shooting the
deceased to death. The motive as alleged by the prosecution stands amply proved.
So far as the scene of the offence is
concerned it was not seriously disputed before the High Court. It was submitted
before us that no blood stains were scrapped from the scene which circumstance
would show that the occurrence took place at some other place. It is seen that
there was a bundle of straw and a cot at the scene. The strings of the cot and
as well as the straws were stained with blood. The Serologist had found human
blood on the straws. We do not find any difficultly in accepting the finding of
the High Court that the occurrence took place at the site alleged by the
The only question that requires consideration
is whether there was sufficient light at the scene of occurrence to enable the
witness to recognise the accused.
Because of the motive, it is highly probable
that Nainsukh, Hari Singh and the family slept with the light burning on the
platform which was the scene of offence. Three shots were 110 fired and there
could have been no difficulty in P.W. 1 identifying the appellant Deena. It is
common ground that the witness knew Deena very well. The lantern that was
burning was produced by P.W. 2, Nihal Singh, as soon as the Investigating
officer came to the scene of occurrence. The witness was sleeping to the south
of the deceased person at a distance of few feet and we do not think there
could have been any difficulty in identifying the assailant. The High Court has
fully considered the question as to whether P.W. 1 would have identified the
assailant and has come to the conclusion that the prosecution has established
that the lantern was burning and the assailants used torches which enabled the
recognition of the accused at the time of the incident. P.W. 1 Hari Singh is a
natural witness and his presence cannot be disputed as he had sustained a gunshot
injury. He had no particular motive for falsely implicating Deena the accused.
The court witness Chandra Pal did not fully
support the prosecution except that the incident took place at the chaupal as
alleged by the prosecution. But we do not feel any justification for rejecting
the testimony of P.W. 1 because of the contradiction in the testimony of C.W. 1
Chandra Pal. We are inclined to agree with the High Court that Chandra Pal was
won over by the defence. We also agree with the High Court and find that the
appellant Deena was guilty of an offence under section 302 I.P.C. in causing
the death of Nainsukh.
The High Court confirmed the extreme penalty
of law imposed by the Sessions Court. The Sessions Court in imposing the death
sentence found that the appellant is a desperate character and that while he
was on bail in Rare, Chandra murder case he committed the murder of Nainsukh
one of the prosecution witnesses in Ram Chandra murder case. As the offence was
committed by a person under a sentence of imprisonment for life for an offence
under section 302 I.P.C. the Sessions Court inflicted the extreme penalty. As a
charge under section 303 I.P.C. was not framed and as the parties are not able
to tell us the result of the appeal filed by Deena in Ram Chandra's case, we
refrain from invoking the provisions of section 303 I.P.C. Regarding the
sentence after giving our serious and anxious consideration, we find ourselves
unable to come to any different conclusion from that arrived at by the trial
Judge and the High Court.
The offence was committed after deliberate
planning in the night when the victim was sleeping. It was for the purpose of
teaching a lesson to a witness who gave evidence against the accused. We do not
see any extenuating circumstance. We confirm the sentence of death and dismiss
M.R. Appeal dismissed.