N.S. Gupta, J.@mdashAccused-Appellants Narain, Lalman and Mohan, who were real brothers, were convicted by Sri Sachidanand, the then
Sessions Judge, Farrukhabad in S.T. No. 384 of 1980 u/s 302 read with Section 34, I.P.C. and further u/s 307 read with Section 34, I.P.C. and
were sentenced to undergo imprisonment for life under the first count and 5 years'' R.I. under second count ; both the sentences were to run
concurrently, as per his judgment and order dated 24.2.1981, have gone up in appeal before this Court.
2. The prosecution story, briefly stated, is as follows :
The complainant Ram Singh P.W. 2 and the accused-Appellants were all residents of village Salempur, P. S. Mau Darwaza, District Farrukhabad.
Kali Charan deceased was son of injured Puttu Lal P.W. 1, Puttu Lal P.W. 1 was a Kishan by caste. The accused-Appellants, as also their
brother Arjun (accused since absconding also during trial) were Jatav by caste. On 14th September, 1979, at about 5.30 p.m., the injured Puttu
Lal P.W. 1 along with his son Kali Charan deceased and Ram Singh P.W. 2 along with others, namely, Premraj, Bishambhar, Sohan and Ram
Prasad were returning from cattle fare to their village. When they reached in village Pooran Nagla, the accused-Appellants Narain, Lalman, Mohan
and Arjun appeared there all of a sudden from the nearby Bajra field. They were all armed with country-made pistols. They surrounded the
complainant, his father and brother deceased Kali Charan. The complainant and his father tried to run away. Kali Charan deceased was caught
hold by accused Arjun. He too got himself released from Arjun and tried to run away. The accused-Appellants as also their brother Arjun opened
fire by means of their country-made pistols causing injuries to Kali Charan and his father Puttu Lal P.W. 1 and ran away. Kali Charan succumbed
to his injuries at Fatehgarh Hospital.
3. An F.I.R. Ex. Ka.-8 about this occurrence was lodged by Ram Singh P.W. 2 at P. S. Mau Darwaza on 14th September, 1979 at about 8.25
p.m., which lay at a distance of about 6 miles from the place of occurrence. S.I. Moti Singh P.W. 3 immediately took up the investigation of the
case in his hands. He recorded the statement of Ram Singh as also Puttu Lal, injured, and referred Puttu Lal for his medical examination to Civil
Hospital, Farrukhabad. Since the doctor was not available at Civil Hospital, Farrukhabad, Puttu Lal was referred for medical examination to
Fatehgarh Hospital, where he was medically examined at about 11.25 p.m. on 14.9.79 by Emergency Doctor, who found the following injuries :
1. Multiple gunshot wound of entrance in an area of 10"" ? 4"" on left arm and left elbow on lateral side. Each of size 1/6"" ? 1/6"" ? muscle, circular in
shape inverted and lacerated margins.
2. Multiple gunshot wound of entrance in an area of 5-1/2"" ? 3-1/2"" on left side chest. Each of size of 1/6"" ? 1/6"" ? depth could not be ascertained
as probing not done, circular in shape, inverted and lacerated margins.
3. Lacerated wound 1/4"" ? 1/4"" ? muscle on upper lip.
In the opinion of the doctor, there was no blackening, tattooing or charring. No wound of exit was present. He advised X-ray with regard to injury
Nos. 1 and 2 for ascertaining bullets. The injury No. 3 was caused by blunt weapon.
4. S.I. Moti Singh visited the District Hospital right in the night with a view to record the statement of Kali Charan but he was not in a position to
give any statement. He inspected the scene of occurrence and prepared site plan Ex. Ka.-10. He recovered certain cartridges of 12 bore and four
ticklies from the place of occurrence and prepared recovery memo Ex. Ka.-11 about the same. He also recovered bloodstained earth and simple
earth and prepared recovery memo Ex. Ka.-12 about the same. He tried to apprehend the accuse persons, but they were not available. The
subsequent investigation into the matter was conducted by S.I. Ram Dutt Srivastava, who after needful investigation into the matter, submitted a
charge-sheet against the accused-Appellants as also Arjun showing him as an absconder.
5. Kali Charan deceased was medically examined at District Hospital, Farrukhabad by Dr. H. C. Gupta, on 14.9.1979 at about 7.45 p.m. He
found the position as under :
G.C. V. V. poor gasping condition unconscious, pulse 130/P.M., feeble irregular.
B. P. 60/92.
C.V.E.--H.S. Feeble irregular.
Resp--Sha-low and jurkey.
Pupils--Rt and left dialated.
Injuries--postponded (due to poor and gasping condition of patient) till condition recovers.
6. The autopsy on the dead body of the deceased was conducted on 15.9.1979 at about 4 p.m. by Medical Officer of District Hospital,
Fatehgarh, who found the position of the deceased as under:
The deceased was aged about 40 years. He died half day back. His body was average built. Rigor mortis was present in upper and lower limbs.
Mouth closed, eyes closed, and blood was coming out from nostrils.
The doctor found the following ante-mortem injuries :
1. Gunshot wound of entry 1/8"" ? 1/8"" ? muscle deep on the left side of the neck, 4"" below the left ear. Margins were inverted, blackening present.
2. Gunshot wound of entry 1/4"" ? 1/4"" ? mouth cavity deep, 1"" just below the left ear. Margins were inverted. 3"" above the injury No. 1.
Blackening present.
3. Gunshot wound of entry 1/8"" ? 1/8"" ? mouth cavity deep on the middle part of the cheek. Margins were inverted. Blackening present.
4. Superficial gunshot wound 1/4"" ? 1/4"" ? scalp deep, 1/2"" just below the injury No. 3.
5. Lateral to left angle of mouth. Margins were inverted. Blackening present.
In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of ante-mortem injuries.
7. After needful committal, the case came up for trial before Sri Sachidanand, the then Sessions Judge, Farrukhabad, who framed charges under
Sections 302/34 and 307/34, I.P.C. against the accused-Appellants. The accused-Appellants pleaded ''not guilty'' and claimed trial. They pleaded
that the complainant and his father Puttu Lal bore enmity with them on account of election of Gram Pradhan and maintained that they have been
falsely implicated in this case. The accused-Appellant Lalman further pleaded that he was not present at the scene of occurrence and was present
at Fatehgarh in connection with the hearing of the case. The accused-Appellant did not adduce any evidence in defence. After needful trial into the
matter, the accused-Appellants were convicted and sentenced as aforesaid ; hence this appeal.
8. We have heard Sri S. A. N. Shah, learned Counsel for the Appellants and Sri. K. C. Saxena, A.G.A. for the State, considered their contentions
and gone through the facts and circumstances of the case.
9. The prosecution in support of its case had examined four witnesses, out of whom Puttu Lal P.W. 1 is the injured eye-witness of the occurrence.
He is the father of the deceased who had unfolded the prosecution story as narrated by P.W. 2 Ram Singh, brother of the deceased who has fully
supported the prosecution version on the point that the deceased Kali Charan was done to death by means of fires made by the accused-
Appellants and their brother Arjun and that his father Puttu Lal, P.W. 1 sustained gunshot injuries at the hands of the accused-Appellants.
10. P.W. 3, S.I. Moti Singh is the I.O. of the case and P.W. 4, S.I. Ram Dutt is another Sub-Inspector of police who submitted charge-sheet
against the accused-Appellants after recording the statement of the accused-Appellants when they surrendered before the Judicial Magistrate.
11. The fact that Kali Charan was done to death by means of gunshot injuries and that Puttu Lal P.W. 1, the father of Kali Charan had sustained a
number of gunshot injuries stands fully proved by the medical evidence on record, viz., injury report Exh. Kha.-1 and post-mortem report Exh.
Kha.-2, the genuineness of which was very much admitted by the accused-Appellants before the trial court. Exh. Ka.-3 is medical examination
report of Kali Charan who was done to death. He was examined at 7.45 p.m. on 14.9.79 at District Hospital, Fatehgarh, the genuineness of this
report too was never disputed by the accused-Appellants before the trial court. On perusal of these medical examination report and post-mortem
report, it is clear that Puttu Lal, P.W. 1 had sustained a number of gunshot wound of entry as also lacerated wound and that the deceased Kali
Charan too had sustained a number of gunshot injuries because of which he ultimately died on the intervening night of 14/15.9.1979. Thus the
factum of the death of Kali Charan by means of injuries inflicted upon him by means of weapons like country-made pistols and that Puttu Lal, P.W.
1 too sustained a number of injuries by means of similar weapons stands fully proved by the medical evidence on record.
12. Now the only question which arises for our determination is to see as to whether the injuries found on the person of Puttu Lal P.W. 1 and Kali
Charan deceased were caused by the accused-Appellants or by some strangers who tried to rob Puttu Lal P.W. 1 and his son as was suggested
by the learned Counsel for the defence.
13. Puttu Lal P.W. 1 is the injured eye-witness of the occurrence and is the unfortunate father of the deceased Kali Charan, who was done to
death. He stated in his statement on oath before the Court below that the accused-Appellant Lalman, Narain, Mohan and Arjun (accused since
absconding) and one Sarju were all sons of Banwari Jatav and were residents of his village. He stated that Sarju was killed in connection with a
theft which had taken place at the house of Smt. Menka Devi. Arjun, the brother of the accused-Appellants and the accused since absconding was
prosecuted in connection with the said theft case. He after being released on bail was absconding. He stated that his son Kali Charan deceased
was a prosecution witness in connection with the said theft case which was committed at the house of Smt. Menka Devi. While giving the version
of the occurrence, he stated that on the date of the occurrence at about 5.30 p.m. he along with his son Ram Singh P.W. 2, deceased Kali Charan
and other villagers of his village, namely, Premraj, Ram Prasad, Sohan and Bishambhar were returning to their village from a cattle fare of Faizbag
and when they came near the village Pooran Nagla about a distance of 1-1/2 furlongs towards Mohammad Pur, the accused-Appellants along with
their brother Arjun emerged out from a nearby Bajra field. They were all armed with country-made pistols. They surrounded the deceased and
when the deceased tried to run, Arjun caught hold of him. Kali Charan got himself released and tried to run towards him, Arjun and his brothers,
viz., accused-Appellants opened fire by means of their respective country-made pistols, causing injuries to Kali Charan and himself. Kali Charan
had fallen down after 4-6 paces. Few other persons also came on the spot. Arjun and the accused-Appellants ran away towards west. He stated
that after running away of the accused-Appellants, he and his son Ram Singh P.W. 2 went near Kali Charan but he was unable to speak. He was,
therefore, sent to Fatehgarh Hospital along with one Kamta Prasad and Ors. for treatment. He stated that he along with his son Ram Singh went to
police station Mau Darwaza where Ram Singh lodged a written report about the occurrence of this case. During the course of his cross-
examination before the Court below, this witness stated that the cattle fare of Faizbag was situate at a distance of about 7 miles from the place of
occurrence. He stated that he could not purchase any cattle in the cattle fare although he was having a sum of Rs. 2,000-2,500 with him. He stated
that the cattle fare is held from 8 O''clock in the morning and from 10-11 O''clock, the sale starts. He stated that he reached the cattle fare at about
9.30 a.m. and saw a number of bullocks till 2 p.m. but he could not purchase any. He stated that he had gone to cattle fare by Motor Bus but
while returning, he came on foot because a number of other persons had joined him while going on foot. He stated that Kali Charan was removed
to the hospital on a Charpai which was brought on the spot from the villagers of Pooran Nagla, by Baburam, Dharma Pal, Genda Lal, Rameshwar,
Durga Vijai, Kamta and Rajpal. He stated that he did not accompany Kali Charan on Charpai because he too had sustained injuries. Subsequently
the bullock-cart was brought ; then he along with his son Ram Singh P.W. 2 went to the police station Mau Darwaza. He stated that the road on
which he and his sons were going at the time of occurrence was about 1 yard wide. There were Bajra field on one side on that way and on the
other side, there was straw. He stated that at the time of the occurrence, he heard the noise of four fires. When the fires were made, he and the
deceased Kali Charan were running towards Mohammadpur. The accused-Appellants and their brother Arjun were following them at a distance
of 2-4 paces from towards left side from the fields of Bajra. He stated that Kali Charan was wounded by means of first fire. When Kali Charan
had fallen down, he was fired upon. He stated that Ram Singh had lodged a written report at P. S. Mau Darwaza.
14. As stated above, P.W. 2, Ram Singh is the son of Puttu Lal P.W. 1 and is brother of deceased Kali Charan. He has fully supported the
statement of his father Puttu Lal in material particulars.
15. The fact that Puttu Lal P.W. 1 had sustained a number of gunshot wounds in the occurrence in question proves his presence on the spot
beyond any shadow of doubt. It is a normal feature of the villagers that when a villager goes to make purchases of any cattle, etc., he takes his
sons and relations along with him. Therefore, there is nothing unnatural or improbable in the prosecution story as set up by Puttu Lal on the point
that on the fateful date of the occurrence, he had gone to purchase cattle in the cattle fare and while returning from there, the incident of this case
had happened. The mere fact that a number of villagers namely, Premraj, Ram Prasad, Sohan and Bishambar, etc. who were coming with him and
were present at the time of the occurrence were not examined by the prosecution does not discredit the solemn testimony of Puttu Lal an injured
eye-witness of the occurrence as also his son Ram Singh P.W. 2.
16. It was suggested on behalf of the accused-Appellant that Ram Singh P.W. 2 was working as a teacher in a school and that according to his
own statement, he had gone to school on the date of the occurrence also. Ram Singh P.W. 2 stated in his cross-examination before the Court
below that at the time of the occurrence, the timings of his school hours were noon hours only and that he had taken an hour leave when his father
Puttu Lal and brother Kali Charan deceased had come there and that along with them, he had gone to cattle fare. It is important to note here that
this witness had accompanied his father Puttu Lal also to police station, which lay at a distance of about six miles from the place of occurrence and
had lodged a written report there at about 8.25 p.m.
17. The circumstance that Kali Charan was sent to the Hospital on a Charpai right from the place of occurrence and was medically examined at
7.45 p.m. on 14.9.1979 at District Hospital, Fatehgarh but his detailed medical examination could not be carried out since his general condition
was very very poor. He was gasping and unconscious. It fully goes to show that the occurrence of this case had taken place at about 5.30 p.m. on
14.9.79 in village Pooran Nagla which was situate at a distance of six miles from P. S. Mau Darwaza.
18. The circumstances that one of the brothers of accused-Appellants, namely, Suraj was earlier killed in connection with the theft which was
committed at the house of Smt. Menka Devi and that their another brother Arjun was prosecuted in connection with the said theft case and further
that the deceased Kali Charan was a prosecution witness in the said theft case afforded well-founded motive to the accused-Appellants and his
brother Arjun to take the revenge of the death of their brother Suraj and the involvement of another brother Arjun who has since been absconding
by taking the law into their own hands in the manner stated by Puttu Lal P.W. 1 and Ram Singh P.W. 2.
19. It was vehemently argued by Sri S. A. N. Shah learned Counsel for the Appellants that all the injuries found on the person of Puttu Lal P.W. 1
and the deceased Kali Charan were on front side. It was further argued on behalf of the Appellants that if it was a fact that the accused-Appellants
had opened fire upon Puttu Lal and his son Kali Charan while they were running away, all the injuries should have been caused on the back side of
Puttu Lal and the deceased Kali Charan. We are unable to agree. It was elicited by the learned Counsel for the defence during the course of
cross-examination of Puttu Lal P.W. 1 in paragraph 17 that when he and his son Kali Charan were running towards Mohammadpur for saving
themselves from the clutches of the accused-Appellants, the Appellants and their brother Arjun were following them at a distance of about 2-4
paces towards left in a Bajra field. The circumstance that the injuries found on the person of Puttu Lal were on left arm and left side chest and
further that the injuries of Kali Charan were on left side, neck and mouth and scalp lends assurance to the statement of Puttu Lal P.W. 1 on the
point that the assailants had fired upon him and his son deceased Kali Charan from towards left side while they were running away and while the
accused-Appellants and his brother Arjun was chasing them and had opened fire. Thus the ocular evidence of Puttu Lal P.W. 1 and Ram Singh
P.W. 2 finds full corroboration by the medical evidence on record and we find nothing wrong on the part of the learned Sessions Judge in believing
and convicting the accused-Appellants on the basis of the said evidence.
20. Sri Shah, learned Counsel for the accused-Appellants on the basis of the statement of accused-Appellant Mohan argued that Mohan has
stated his age as 16 years at the time of his examination u/s 313, Cr. P.C. which was recorded on 17.2.1981. It was further argued that the
occurrence of this case had taken place on 14.9.79 and at that time the accused-Appellant Mohan must have been aged about 14 years or so. It
was, therefore, urged before us that the accused-Appellant Mohan deserves the benefit of Children Act and is not liable to imprisonment. We are
unable to accede to the submission made by the learned Counsel for the accused-Appellant for the obvious reason that the accused-Appellant
never took this plea that he was a child at the time of the occurrence either before the committal Court or before the trial court. It was laid down
by the Apex Court in State of Haryana v. Balwant Singh 1993 SCC 251, that when no plea was raised on behalf of the accused that he was a
child before the Committal Magistrate or the trial court, it cannot be believed simply on the basis of his examination u/s 313, Cr. P.C. that he was a
child on the date of the occurrence of the case. That being so, the accused having not taken any such plea before the Court below, it is not
possible for us to appreciate the argument built up by the learned Counsel for the Appellant and to give any benefit of the Children Act to the
accused-Appellant Mohan.
21. The circumstance that the Investigating Officer, S.I. Moti Singh P.W. 3 found certain cartridges and ticklies on the spot at the time of his spot
visit fully proves that the occurrence of this case had taken place at the time and place mentioned by Puttu Lal P.W. 1, that is, in village Pooran
Nagla on 14.9.1979 at 5.30 p.m.
22. Under the circumstance, we find no error in the finding of fact recorded by the Court below regarding guilt of the accused-Appellants
punishable u/s 302/307/34, I.P.C. Thus the finding of fact recorded by the Court below on this score is accordingly affirmed.
23. Coming on the point of sentence, we find that a young man of 40 years of age was done to death and that the old man aged about 65 years
who was the father of the deceased was attempted to murder by means of fires made upon him, thus the imprisonment for life inflicted by the Court
below u/s 302/34, I.P.C. and 5 years'' R.I. u/s 307/34, I.P.C. appears to be quite appropriate. It warrants no interference by this Court. Thus the
conviction and sentence of the accused-Appellants are accordingly sustained. The appeal has got no force. It is hereby dismissed. It is directed
that the bail granted to the accused-Appellants is hereby cancelled. Let the accused-Appellants surrender before the Court below within a period
of 15 days from the date of this order, failing which the Court below shall take all sorts of coercive measures to procure attendance of the
accused-Appellants and to commit them to prison for serving out their sentences according to law.
24. Let the record of the case be sent to the Court below along with the copy of this judgment for needful compliance. The Court below is
directed to report compliance within three months.
