Kirpal
Singh Vs. State of U.P. [2010] INSC 173 (23 February 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 235
OF 2006 Kirpal Singh ... Appellant Versus State of U.P. ..Respondent
J.M.
PANCHAL, J.
1.
This appeal, by special leave, is directed against judgment dated
July 11, 2005, rendered by the High Court of Judicature at Allahabad in
Criminal Appeal No. 2402 of 1985 by which the conviction of the appellant
recorded under Section 302 IPC and imposition of sentence of life imprisonment
on him by learned V Additional Sessions Judge, Moradabad in ST No. 622 of 1983,
is confirmed 2
2.
The facts emerging from the record of the case are as under: -
Deceased Ram Kumar Singh was resident of village Dudaila, District Muradabad.
Some six months prior to the incident in question, some dispute had taken place
between Ram Kumar Singh who lost his life in the incident and Kallu Singh, i.e.
original accused No.3 over the question of digging and lifting of the earth from
the land of accused No.3 for the purpose of raising of level of a village
pathway which was decided to be constructed by village people at a Shramdan
Yojna held in the village. Ever since the said dispute, the parties were not on
the talking terms with each other. On May 30, 1983 at about 2.00 pm, some
quarrel had taken place between the grandsons of original accused No. 3, i.e.,
Kallu Singh and children of Ram Kumar Singh. The appellant, i.e., Kirpal Singh
who was original accused No.1, Vijay Pal Singh, who was original accused No. 2
and Devender Kumar, who was original accused No. 4, are sons of original
accused No. 3, i.e., Kallu Singh.
Ram Kumar
Singh went to the house of original accused 3 No. 3, i.e., Kallu Singh for
getting the quarrel settled but Kallu Singh and his sons not only abused him
but were found to be ready to assault him. At that point of time Ram Swarup and
others, who were present there, intervened. At about 7.00 pm on the same day,
Ram Kumar Singh, his wife Mrs. Jishna and his son Rupender Kumar were returning
home from the jungle.
Ram Kumar
Singh was slightly ahead of his wife and son. Whey they reached near the house
of the accused, who were standing in front of their house, Kallu Singh is said
to have exhorted his sons to kill Ram Kumar Singh and finish the dispute for
ever, whereupon the appellant fired a shot from his gun at Ram Kumar Singh
which hit his chest. On sustaining the gunshot injury, Ram Kumar Singh tumbled
down on the road. On hearing the cries of Mrs. Jishna, wife of Ram Kumar Singh
and noise of the gun shot, Hari Raj Singh, Rattu Singh and others reached the
place of incident. Another shot at Ram Kumar Singh was fired by original
accused No. 2, i.e., Vijay Pal Singh from his country made pistol, which hit
Mrs. Shanti Devi, wife of Nathu Singh. As the people 4 gathered at the place of
incident, Kallu Singh and his sons made their escape good. Ram Kumar Singh, who
had sustained fire arm injuries, was removed to Government Hospital, Kanth in a
tractor, which was arranged by his wife Mrs. Jishna. Injured Ram Kumar Singh
succumbed to his injuries at the hospital and was declared dead by the Medical
Officer at about 10.15 pm.
Mrs.
Jishna thereafter got a report scribed through one Anand Kumar in the hospital
premises and lodged the same at the police outpost Kanth, at 10.50 pm. On the
basis of the First Information Report, offences punishable under Sections 302
and 307 read with Section 34 of the Indian Penal Code were registered against
the four accused. After necessary investigation, charge-sheet was submitted in
the court of learned Chief Judicial Magistrate, Moradabad. As the offences
punishable under Sections 302 and 307 are exclusively triable by a court of
Sessions, the case was committed to the Court of learned V Additional Sessions
Judge, Moradabad for trial.
3.
The learned Judge framed charge against the appellant under
Section 302 of Indian Penal Code whereas other accused were charged under
Section 302 read with Section 34 of Indian Penal Code. All the four accused,
including the appellant, were also charged under Section 307 read with Section
34 of the Indian Penal Code. The Charge was read over and explained to the
accused, who pleaded not guilty to the same and claimed to be tried. The
prosecution, therefore, examined witnesses and also produced documentary
evidence in support of its case against the appellant and others. After
recording of evidence of prosecution witness was over, the learned Judge
explained to the accused the circumstances appearing against them in the
evidence of prosecution witnesses and recorded their further statements as
required by Section 313 of the Code of Criminal Procedure. In the further
statement the case of the appellant and others was that they were implicated
falsely in the case due to enmity. On behalf of the accused 6 witness Pooran
Singh was examined as DW-1, whereas Mr. Harish Chander, a fire arm dealer, was
examined as DW-2 and Mr. Nihal Chand, arms clerk, was examined as DW-3.
4.
On appreciation of evidence adduced by the parties the learned
Judge held that it was proved satisfactorily by the prosecution that deceased
Ram Kumar Singh died a homicidal death and Mrs. Shanti Devi was injured in the
incident. The learned Judge noticed that both, i.e., Kallu Singh, original accused
No. 3 and Ram Kumar Singh, the deceased, were brothers-in-law and wives of both
of them were cousins. The learned Judge found that accused Devendra Kumar had
not committed any offence and was entitled to be acquitted. On scrutiny of
evidence the learned Judge found that the evidence tendered by Mrs. Jishna,
widow of Ram Kumar Singh, was trustworthy as well as reliable and the same was
corroborated by her complaint, which was neither ante-dated nor delayed and was
filed promptly. Similarly, the 7 learned Judge found that the testimony of
Rupender Kumar, son of the deceased, was trustworthy and reliable. After
placing reliance on the evidence of these two witnesses, the learned Judge held
that it was established that the appellant had fired a shot at the deceased
because of which the deceased had fallen down and ultimately died. After
analysis of evidence of PW-3 Mishri Singh, the learned Judge held that the
motive, which prompted the appellant to kill the deceased was dispute between
the deceased and original accused No.3 relating to the digging and lifting of
the earth from the field of original accused No.3 for the purpose of raising
level of the road to be constructed for people of the village and quarrel which
took place between the grandsons of the deceased and accused No.3 on the date
of the incident. On assessment of evidence of DW-1, DW-2 and DW-3, the learned
Judge found that the defence that the accused were falsely implicated in the
case due to enmity, was not probablized at all.
8 By
judgment dated September 9, 1985 the learned Judge convicted the appellant
under Section 302 of Indian Penal Code whereas accused Kallu Singh and accused
Vijay Pal Singh were convicted under Section 302 with the aid of Section 34 of
Indian Penal Code and accused Vijay Pal Singh was also convicted under Section
323 of the Indian Penal Code for causing injuries to Mrs. Shanti Devi.
Thereafter,
learned counsel on behalf of the accused and the learned Additional Public
Prosecutor were heard by the learned Judge with reference to the sentence to be
imposed on the accused and by order dated September 9, 1985 the appellant was
sentenced to R.I. for life for commission of offence punishable under Section
302 of Indian Penal Code whereas accused Kallu Singh and Vijay Pal Singh were
sentenced to life imprisonment for commission of offence punishable under
Section 302 read with Section 34 of Indian Penal Code. Further, accused Vijay
Pal Singh was sentenced to R.I. for six months for 9 commission of offence
punishable under Section 323 of Indian Penal Code.
5.
Feeling aggrieved, the accused preferred Criminal Appeal No. 2402
of 1985 in the High Court of Judicature at Allahabad. The High Court noticed
that Kallu Singh, who was rightly convicted under Section 302 read with Section
34 of the Indian Penal Code, had expired during the pendency of the appeal and,
therefore, the appeal by him had abated whereas there was no evidence to
establish that accused Vijay Pal Singh had committed offence punishable under
Section 302 read with Section 34 of Indian Penal Code, but his conviction under
Section 323 of the Indian Penal Code was eminently just. The High Court,
therefore, by judgment dated July 11, 1985, dismissed the appeal filed by the
appellant and partly allowed the appeal filed by Vijay Pal Singh, which has
given rise to the instant appeal.
6.
This Court has heard the learned counsel for the parties at length
and considered the documents forming part of the appeal.
7.
The fact, that deceased Ram Kumar Singh died a homicidal death, is
not disputed before this Court by the learned counsel for the appellant. The
said fact amply stands approved by the testimony of Dr. D.N. Sharma, who was
examined by the prosecution as Prosecution Witness No. 7. The injuries, which
were noticed by the Medical Officer while performing autopsy on the dead body
of the deceased, have been mentioned by him in his substantive evidence before
the court. The injuries are also mentioned by him in the post mortem notes
prepared by him. It is nobody's case that the deceased died an accidental death
or natural death or had committed suicide. Therefore, the finding recorded by
the Sessions Court and the High Court that the deceased had died a homicidal
death deserves to be upheld and is hereby upheld.
8.
Mrs. Jishna, who is the first informant, was examined as PW-1. She
asserted in her sworn testimony that on the date of incident at about 2.00 pm a
quarrel had ensued between children of the two families and, therefore, Ram
Kumar Singh had gone to the house of Kallu Singh with a view to get the matter
reconciled amicably but the deceased was abused. It is further asserted by her
that at about 7.00 pm on May 30, 1983, when she along with her deceased husband
and son Rupender Kumar was returning from jungle, they were accosted near the
house of Kallu Singh, who with his sons, was standing on the road in front of
his house and that the appellant, who was having a gun, had fired a shot at the
deceased as a result of which the deceased had fallen down on the road.
Though
this witness was cross-examined searchingly, nothing could be elicited to
establish that the appellant and others were falsely implicated in the case
because of enmity. Her testimony gets complete corroboration from the 12
contents of FIR lodged by her. The courts below, on appreciation of evidence,
have held that the FIR was neither ante-timed nor delayed and that the same was
filed promptly. It is well settled that when soon after the occurrence the FIR
is lodged at the police station, false story being cooked up and/or false
implication of accused stands ruled out. The testimony of wife of the deceased
also gets complete corroboration from the testimony of witness Rupender Kumar,
who is son of the deceased and examined as PW-2. Witness Rupender Kumar has
also stated that the appellant had fired a shot from his gun at the deceased as
a result of which the deceased had died. Though this witness was cross-examined
at length, no dent could be made in the assertion made by him that the deceased
had died because of the gun shot fired by the appellant. It is well to remember
that Mrs. Jishna PW-1 is the wife of the deceased whereas Rupender Kumar,
examined as PW-2, is the son of the deceased. They, being the 13 close
relatives of the deceased, would not allow the real culprits to go scot free
and implicate the appellant falsely in the case. As noticed by the High Court,
Kallu Singh was brother-in-law, i.e., husband of the sister of Mrs. Jishna.
Therefore, she would never make an attempt to implicate the appellant falsely
in the case, as the appellant is closely related to her. It was easy for her to
mention in her FIR and before the court that the shot was fired either by Kallu
Singh, i.e., her brother-in-law or by Vijay Pal Singh or by Devender Kumar. But
she has not made any such attempt and attributed the firing of the shot only to
the appellant. The trial court, which had advantage of observing demeanour of
the witnesses, has rightly placed reliance on the testimony of Mrs. Jishna and
Rupender Kumar for the purpose of coming to the conclusion that the appellant
had fired a shot at the deceased due to which the deceased lost his life. The
appreciation of evidence by the trial court and the High Court is 14 neither
perverse nor unreasonable. It could not be pointed out by the learned counsel
for the appellant that any material piece of evidence on record was ignored
either by the trial court or by the High Court before coming to the conclusion
that the appellant was guilty under Section 302 of the Indian Penal Code.
Therefore, the finding that the appellant caused death of the deceased deserves
to be upheld.
9.
The contention, that after drawing adverse inference against the
prosecution for not examining injured witness Mrs. Shanti Devi, the prosecution
story should have been disbelieved as improbable has no substance. As observed
earlier, the prosecution has satisfactorily established that a quarrel between
the children of the two families, i.e., family of the deceased and the family
of Kallu Singh, had ensued on the day of the incident at about 2.00 pm and,
therefore, in order to see that the disputes were settled amicably, the
deceased had gone to the house of Kallu Singh, but he was 15 humiliated by
Kallu Singh and his sons and invectives were hurled at him and, therefore, he
had to come back. The evidence further shows that the accused had decided to
liquidate Ram Kumar Singh and were, therefore, standing in the front of their
house with weapons and the appellant had killed the deceased by firing shot
from the gun at him. The eye witnesses, i.e., Mrs. Jishna and Rupender Kumar,
have narrated the whole incident before the court on oath in a simple manner
without any material improvement. The testimony tendered by the eye witnesses
was subjected to great care, caution and circumspection by the High Court as
well as by the trial court because the eye witnesses were found to be closely
related to the deceased as well as the accused. No major discrepancy could be
brought to the notice of the court by the learned counsel for the appellant,
which would make the testimony of the eye witnesses unreliable. The finding
recorded by the trial court as well as by the High Court on 16 the question of
motive could not be successfully assailed by the learned counsel for the appellant.
Though
the defence had examined three witnesses, the evidence of none of them was of
any assistance for establishing the innocence of the appellant.
DW-1
Pooran Singh had tried to suggest that there was no way for coming to the house
of the deceased from his chak, but to a court question he had to admit that the
deceased Ram Kumar Singh was going to his field from his open land, which was
situated in the front of house of the appellant.
Similarly,
the evidence of DW-2 Harish Chander was of little assistance to the defence.
The evidence tendered by DW-3 Nihal Chand that the deceased was also having a
gun licence has no consequence whatsoever because it is nobody's case that the
appellant had fired a shot from the gun belonging to the deceased. Thus, the
examination of defence witnesses was futile and could not probablize the
defence of the accused that they were innocent and were falsely 17 implicated.
10.
On the facts and in the circumstances of the case, this Court
finds that the conviction of the appellant under Section 302 of Indian Penal
Code as well as imposition of sentence of life imprisonment is well-founded and
no case is made out by the learned counsel for the appellant to interfere with
the same. The appeal, which lacks merit, deserves to be dismissed.
11.
For the foregoing reasons the appeal fails and is dismissed.
..............................J. [B. Sudershan Reddy]
..............................J. [J.M. Panchal]
New Delhi;
February 23, 2010.
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