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State Of U.P. v. Gulab Shukla & Others - GOVERNMENT APPEAL No. 360 of 1996  RD-AH 3627 (1 March 2007)
Government Appeal No. 360 of 1996
State of U.P.---------------------Appellant.
Gulab Shukla and others.-----Accused-Opp. Parties.
Hon'ble Amar Saran, J
Hon'ble R.N. Misra, J
(Delivered by Hon'ble R.N. Misra, J)
This appeal has been preferred by the State of U.P. against the respondents Gulab Shukla, Buddhi Shukla and Hari Shanker Shukla, who have been acquitted of the charges levelled against them, under Sections 302, 307, 336 I.P.C. by Sri K.N. Sinha, the then Ist, Additional District & Judge, Gorakhpur vide judgement and order dated 20.10.1995 in S.T. No. 173 of 1993 ( State Vs. Gulab and others).
The facts giving rise to this case are as under:
The injured Jagdish Narain Shukla, Smt. Savitri Devi and the accused persons were residents of village Mamkhor, Police Station Barhalganj, district Gorakhpur. The deceased Umesh Shukla was the son of injured Jagdish Narain Shukla. There was dispute between the parties regarding Sehan land. The accused persons had made encroachment on a part of Sehan land of the injured and had placed cattle troughs there. On 11.7.1992 at about 6.00 A.M., the accused persons were heaping earth on the Southern side of cattle troughs . They were also collecting bricks there for soling on the earth. The daughter of Jagdish Narain Shukla, namely Km. Bindu informed him about the encroachment being made by the accused persons on the Sehan land. Jagdish Narain Shukla and his wife Smt. Savitri Devi came out of the house and asked the accused persons why they were putting soil in their Sehan land. Some altercations took place between them. The accused Gulab Shukla exhorted his associates to assault Jagdish Narain Shukla, on which, accused Hari Shankar Shukla gave a "Phawra" blow to Jagdish Shukla, but he managed his escaped. The Phawra was left from the hand of Hari Shankar Shukla, therefore, he caught waist of Jagdish Narain Shukla. In the meantime, Gulab Shukla gave Phawra blow to Jagdish Narain Shukla and blunt portion of Phawra hit him. Another co-accused Buddhi Shukla pelted brick bats on him. In the meantime, deceased Umesh Shukla, son of Jagdish Narain Shukla came out of his house and wanted to intervene. He threw Hari Shankar Shukla on earth after separating him from his father. He fell down on his mouth side. He went in side his house and came out with a country made Pistol. The deceased Umesh Shukla moved forward and asked him not to make fire from the country made Pistol. Smt. Savitri Devi caught hold of her son Umesh Shukla from backside to prevent him from the movement towards Hari Shankar Shukla. In the meantime, Hari Shankar Shukla opened fire from his country made Pistol causing injures to Umesh Shukla and Smt. Savitri Devi. Both the injured fell down on the earth and Gulab Shukla exhorted him to kill them. Hari Shankar Shukla was loading his country made Pistol again, but in the meantime, the village people assembled there hearing hue and cry and the accused persons ran away from there. The witnesses Rama Shankar Shukla, Mahendra and others saw the incident.
Umesh Shukla and other injured persons were brought to Gorakhpur for medical aid but before reaching the Medical College, Gorakhpur, Umesh Shukla succumbed to his injuries. Jagdish Shukla and Smt. Savitri Devi were medically examined in the Medical College, Gorakhpur. Their injury reports are ext. Ka-4 and ka-5.
The matter was reported to Barhalganj police by one Bansh Raj, the village Chaukidar. The police registered a case under Section 336, 324, 307 I.P.C at Crime No. 217 of 1992 as is evident from the chik report Ext. ka-2. The Sub-Inspector Onkar Nath Pandey PW-8 investigated the case. During the investigation, he visited the spot, inspected the dead body of deceased Umesh Shukla, prepared inquest report ext. Ka-8, Challan Ext. Ka-9, photo of dead body ext. Ka-10 and sealed it. The dead body was sent for postmortem examination. Dr. Anil Kumar Malhotra PW-5 had conducted the postmortem examination of the deceased, the report of which is ext. Ka-3. Constable Jiya Uddin had brought the dead body to mortuary. The injuries of Jagdish Narain Shukla and Smt. Savitri Devi were examined by Dr. B. Kumar in the Medical College, Gorakhpur, who is PW-6. The Investigating Officer prepared site plan of the place of occurrence, which is Ext. Ka-7. He interrogated the witnesses and after completing the investigation, submitted charge sheet Ext. Ka-11 against the accused-respondents.
The accused respondents were charged for the offences punishable under Section 336, 302 and 307 I.P.C. They denied the allegations levelled against them and alleged their false implication due to enmity. The accused Hari Shankar Shukla stated in his statement recorded under Section 313 Cr.P.C. that he had also sustained injuries and DW-1 Dr. D.K. Srivastava examined his injuries which is Ext. Kha-1.
In support of its case, the prosecution has examined Mahendra Shukla PW-1, Bansh Raj PW-2, Smt. Savitri Devi PW-3 Jagdish Narain Shukla PW-4, Dr. A.K. Malhotra PW-5, Dr. B. Kumar PW-6, Head Constable Rama Kant Roy PW-7 and Inspector Onkar Nath Pandey PW-8. Out of these witnesses, Mahendra Shukla PW-1, Smt. Savitri Devi PW-3 and Jagdish Narain Shukla PW-4 were witnesses of fact and PW-2 Bansh Raj was informant. However, he was not the eye witness of the occurrence. Dr. A.K. Malhotra PW-5 had conducted the postmortem examination of deceased, Umesh Shukla and Dr. B.Kumar PW-6 had medically examined Jagdish Narain Shukla and Smt. Savitri Devi. Head Constable Rama Kant Roy PW-7 had prepared chik report Ex. Ka-2 on the basis of oral information of the incident given by PW-2, Bansh Raj. Sub- Inspector Onkar Nath Pandey PW-8 had investigated the case and submitted charge sheet against the accused respondents.
Considering the evidence on record and hearing the parties, the learned trial court found that the charges were not proved beyond all reasonable doubts and by the impugned judgment and order, he recorded acquittal, against which this appeal.
We have heard the learned counsels for the parties and perused the evidence on record.
This is admitted fact that both the parties were residents of same village. The site plan Ext. Ka-7 shows that the houses of the parties were situated in the same vicinity. The house of accused-respondents were situate towards North-West of the house of deceased Umesh Shukla. There was Pathway in between their houses passing from North to Southern which ended in a Talab situate towards North of the house of respondents. There was old Khandahar house of deceased towards East of the house of respondents. PW-4 Jagdish Narain Shukla has stated at page 10 of his statement on oath that his old ancestral house was situate towards East of the house of respondents and in between them, there was a Rasta. He has also admitted this fact that Mahendra Shukla, PW-1 belonged to his family and in Northern portion of that old house, he ( Mahendra Shukla) was living. His Sehan land of old house was situated towards West and South and new house was situate towards North. The new house of PW-4, Mahendra Shukla has been shown towards South-East to the place of occurrence. The Investigating Officer has shown cattle troughs of the accused-respondents in his site plan. The place of occurrence was towards South of cattle troughs shown by cross marks. There was dispute between the parties regarding Sehan land situated towards South of cattle troughs . PW-4 has admitted this fact that the accused-respondents had encroached upon his Sehan land and had constructed cattle trough . A Panchayat had taken place and to avoid further dispute, he did not take any civil or criminal action against them, meaning thereby the injured Jagdish Narain Shukla was not in possession of the land, on which the cattle troughs were constructed. But the prosecution case is that this land situate towards South of cattle troughs was owned and possessed by PW-4 on which soil was being levelled and bricks soling was being done on 11.7.1992 at about 6.00 A.M. by the accused-respondents. PW-4 has stated at page 15 that he did not tell this fact to the Investigating Officer that his daughter had informed him about mischief played by the accused-respondents on his land because the Investigating Officer did not ask him about that fact. He has further admitted this fact clearly that the land situate towards West of Rasta and East of the house of respondents was their Sehan but the land situate towards South of cattle troughs of respondents belonged to him.
The Investigating Officer found soil and bricks on the spot at the time of investigation. Learned counsel for the respondents has argued that the land shown by cross marks in the site plan was possessed by the respondents and therefore, they had every right of self defence, even if it is presumed for a moment that it was owned by PW-4. But we see no force in this contention because there is clear evidence by PW-3 and PW-4 that the land situate towards South of cattle troughs was owned and possessed by them, though land owned by them towards North to the place of occurrence was encroached upon by the respondents and the cattle troughs were constructed there. Since this was Abadi land, therefore, there was no land record with either party. Nowhere it has come in the evidence to help the accused persons in holding their title and possession over the land situate towards South of Cattle troughs . The topography of the place as shown in the site plan Ext. Ka-7 proved by PW-8 also show the situation in favour of PW-4 Jagdish Narain Shukla. On the date of occurrence, definitely the accused-respondents were putting soil and bricks towards South of their cattle trough , on which Mar-peet took place. The Investigating Officer also found fresh soil and bricks there, which had been claimed by the accused. PW-1 Mahendra Shukla has also corroborated this fact at page 7 of his statement on oath that on the date and time of occurrence, the accused-respondents were putting soil and bricks on the land situate towards South of cattle troughs . They were leveling soil on the spot. There was a Nali also. PW-4 has admitted the existence of Nali on the spot, though the Investigating Officer has not shown that Nali in the site plan Ext. Ka-7. PW-4 has clearly stated that the land on which the accused persons were putting soil and bricks belonged to him. In his cross examination, he has stated that the electric pole was situated in his Sehan land. The Investigating Officer has shown that pole in the site plan Ext. Ka-7. He has stated at page 10 that this was not public pathway, but was being used by the parties of this case only. Further, he has stated that his Sehan land was situate towards North of his house. At page 11, he has stated that the ''Ghoor' of Mahendra Shukla was situated towards east of cattle troughs , though it was situate in his Sehan land, but this was being used by Mahendra Shukla PW-1 since long and he did not disturb it. The Nali on the spot was forcibly constructed by Ram Bachan, whose house was situated towards West-North of the house of PW-4. That house has been shown by the Investigating Officer in the site plan Ext. Ka-7. Further, on the same page, PW-4 has stated that said Nali passing through his Sehan land and ending in a Talab situate towards North and the cattle troughs of the accused-respondents were situate towards east of that Nali. At page 13, he has stated that since about six years, the respondents occupied a portion of Sehan land and constructed cattle troughs there, but the land situate towards South of cattle troughs was being encroached upon by the respondents on the date of incident. At page 16, he admitted the fact that he had no cattle, therefore, he has no cattle troughs in that Sehan land. Thus, from the evidence on record, it is clear that the land on which, the accused persons were putting soil and bricks on the date and time of occurrence was part of Sehan land of PW-4 and was being possessed by him. There was no right of private defence available to the accused-respondents over this land.
The injury report Ext. Ka-4 and Ka-5 show that Smt. Savitri Devi had sustained firearm injuries and Jagdish Narain Shukla had sustained blunt object injuries. The injuries of Smt. Savitri Devi are described below:
Injuries of Smt. Savitri Devi.
1.Lacerated wound 1/4 cm x 1/ 4 cm x bone deep on Rt. Forehead 1 cm above the outer side of Rt. Eye-brow, bleeding present.
2.Lacerated wounds. 1/ 4 cm x 1/ 4 cm x bone deep, two in number 4 cm away from Rt. Nostril. Bleeding present.
3.Lacerated wounds. 1/ 4 cm x 1/ 4 cm x bone deep on the medial end of Rt. Clavicle, bleeding present.
4.Lacerated wounds. Multiple ( II in number) excluding in area from left shoulder to the left elbow including left breast (size of LW 1/ 4 cm x 1/ 4 cm x bone deep with wound of exit 6 in number on the back of left upper arm, bleeding present.
The doctor had advised X-ray of her injuries. The X-ray report is on the record, which shows no bone injury, but multiple round opec of metallic density were found in the face, chest, left shoulder and left arm. Thus, it was clear that the injuries of Smt. Savitri Devi were caused by firearm. According to Dr. B. Kumar, these injuries were fresh, meaning thereby within six hours. The medical examination was done on 11.7.1992 at 9.00 A.M. whereas the occurrence took place on that date at about 6.00 A.M.
The following injuries were found on the persons of Jagdish Narain Shukla.
Injuries of Jagdish Narain Shukla.
1.Lacerated wound 4 cm x ½ cm x muscle deep on the top of scalp 10 cm above the Nasal bridge. Bleeding present.
2.Lacerated wound 1-1/4 cm x 1 cm x muscle deep. Rt. Side of area 1-1/2 cm anterior to the tragus of Rt. Ear . Bleeding present.
3.Lacerated wound 1 cm x ½ cm x muscle deep on the Lt. eye brow. Bleeding present.
4.Contusion 3 cm x 1-1/2 cm on the top of Rt. Shoulder. Redish in colour.
5.Lacerated wound 1 cm x ½ cm x muscle deep on the front of Rt. Leg 14 cm below knee.
The x-ray report on the record shows that there was no bony injury to Jagdish Narain Shukla. His injuries were caused by blunt object and were fresh. The prosecution case is also that he had sustained blunt object injuries.
The deceased Umesh Shukla had also sustained firearm and blunt object injuries, which is evident from the postmortem report Ext. Ka-3. The following ante-mortem injuries were found on his dead body.
1.Multiple firearm wound oval about 1.0 x 0.5 cm over both shoulders and front of chest. Three fire arm elliptical 1.5 cm x 1.0 cm wounds over forehead on Lt. side. No tattooing and blackening.
2.Traumatic swelling about 10 cm x 8.0 cm over left temporal region extending over left eyes.
3.Lacerated wound about 3.0 cm x 1.0 cm bone deep on Lt. Parietal region about 5 cm above Lt. ear.
4.Traumatic swelling over Lt. Parieto occipital region 12.0 cm x 10.0 cm.
The doctor holding postmortem examination (Dr. A.K. Malhotra) found Haematoma underneath injury no.2 and 4. Metallic pellet were also recovered. Both the lungs were punctured with round metallic pellet. One round metallic pellet was also found in the left portion of heart. The cause of death was shown as Hemorrhage as a result of ante-mortem injuries. The prosecution case is that the fire was opened by the respondent Hari Shankar Shukla with a country made Pistol. Dr. A.K. Malhotra PW-5 was cross-examined by the accused-respondents, but nothing could be found in his cross examination to support the defence. The doctor clearly opined that the injuries in the lungs were sufficient for the death. The injury nos. 1 and 2 could be caused by firearm and remaining injuries could be caused by fall on the earth . All the eye witnesses produced by the prosecution have clearly stated that Hari Shankar Shukla opened fire from the main door of his house shown by letter ''B' in the site plan Ext. Ka-7. The deceased was standing towards North of cattle troughs . He fell down on the earth after sustaining firearm injuries. Naturally, there was possibility of injury nos. 3 and 4 by fall on the earth.
PW-1, Mahendra Shukla has stated that he was doing business of milk. Rama Shankar Shukla had come to his house to purchase the milk. In the meantime, he heard alarms raised by Jagdish Narain Shukla. However, as we have discussed earlier that the house of Mahendra Shukla was situate towards North of the house of PW-4, he reached the spot and saw that fresh soil and bricks were placed towards South of cattle troughs by the accused-respondents. The accused Gulab Shukla caught hold of Jagdish Narain Shukla. Hari Shankar Shukla made attempt to cause injury on the head of Jagdish Narain Shukla by Phawra, but the Phawra was left from his hand. In the meantime, accused Gulab Shukla gave him Phawra blow which hit him from the blunt side. The co-accused Buddhi Shukla caused injuries to Jagdish Narain Shukla by brickbats. The deceased Umesh Shukla came out of his house and saw his father Jagdish Narain Shukla in the injured condition. At that time, Hari Shanker Shukla had caught hold of Jagdish Narain Shukla. Umesh Shukla dragged away Hari Shanker Shukla to save his father from his clutches. Hari Shankar Shukla fell down on the ground and probably he felt insulted and aggravated. He went inside of his house and came back with a country made Pistol in his hand and opened the fire on Umesh Shukla, who was moving towards him cautioning not to make fire from his country made pistol. Smt. Savitri Devi, the mother of the deceased caught hold of her son from the back side, probably to save him from the possible attempt of Hari Shankar Shukla, but she also sustained firearm injuries and both fell down. As we have described earlier, Umesh Shukla and Smt. Savitri Devi both had sustained firearm injuries supported by medical evidence. PW-1, Mahendra Shukla has stated that he had also accompanied the injured persons to the Medical College Hospital, Gorakhpur, where Umesh Shukla was declared dead. Admittedly, Mahendra Shukla belonged to the family of injured.
Learned counsel for the accused-respondents has argued that PW-1 was the interested and related witness and his testimony could not be relied upon. He pointed out some discrepancies in his statement. The Investigating Officer had interrogated Mahendra Shukla after a long gap. Mahendra Shukla has stated at page 6 that the Investigating Officer met him after two months and then his statement was recorded. He had told the Investigating Officer about the occurrence. Before giving statement to the Investigating Officer, he had told about the occurrence to the Gram Pradhan also. In his cross examination, he has stated that when he heard alarms, raised by injured persons, he was taking out milk. At page 9 of his statement, he has stated that when the accused persons were putting soil and bricks on the spot, they were unarmed but when Jagdish Narain Shukla reached there and forbade them from doing so, they came out with Kudal in their hands. All the accused persons assaulted Jagdish Narain Shukla by Kudal He has also stated that the accused Gulab had exhorted the other accused persons to kill Umesh Shukla. At page 11 of his statement on oath, he has stated that Jagdish Narain Shukla was assaulted by brickbats also. The prosecution case is that only two accused persons namely Hari Shankar Shukla and Gulab Shukla made attempt to cause Phawra injuries to Jagdish Narain Shukla, but as against this, PW-1 has stated that all the three accused persons had caused injuries to Jagdish Narain Shukla by Kudal. In the statement of Jagdish Narain Shukla also, somewhere, there is mention of Kudal. On this ground, the learned counsel for the accused-respondents has argued that the entire case was based on surmises and conjectures because at some places, the prosecution assigned Phawra to the accused persons and at some places assigned Kudal.But this discrepancy is not so material to disbelieve the entire prosecution case. This discrepancy might have come in the statement of prosecution witnesses due to lapse of time also because there statements were recorded after a gap of about two years of the incident.
In a catena of cases, it has been held that the evidence of related or interested witnesses cannot be rejected solely on this ground, but their evidence is to be scrutinized with caution. In the case of Ravi Vs. State of U.P. 2004 (11) SCC 266, the Hon'ble Apex Court has opined as under:
"It is well settled in a catena of cases that the evidence of eye witnesses cannot be rejected merely because they are related. The relatives will not exonerate real culprits and falsely implicate others".
It has further been argued by learned counsel for the respondents that one independent witness, namely, Rama Shankar Shukla who was quoted in the F.I.R was not produced in the Court, therefore, the prosecution story is doubtful. But, we do not find force in this contention because the case is not decided on the basis of quantum of evidence, but it is decided on the basis of quality of evidence. The trend of society is that no one come forward to give evidence for others taking risk to the safety of his person and property. In the case of Krishna Mochi Vs. State of Bihar 2002 (6) SCC 81, following observations have been made by the Hon'ble Apex Court:
" It is a matter of common experience that in the recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power".
PW-3, Smt. Savitri Devi and PW-4 Jagdish Narain Shukla are injured witnesses. They have all along corroborated the prosecution case. There is nothing in their cross examinations which can help in disbelieving their testimonies. Some contradictions have been pointed out by the learned counsel for the accused-respondents in the statement of these witnesses, recorded by the police under Section 161 Cr.P.C. and before the Court, but those are not very material. A witness cannot be disbelieved merely on the ground that he did not tell a particular fact to the Investigation Officer and depose the same for the first time in the Court.
In the case of State of Gujarat Vs. N.D. Patel and others 1983 SCC (Crl) 590, the following observations have bee made by the Hon'ble Apex Court:
" The mere fact that a witness did not disclose a particular fact before the police but disclose it before the Court is not the ground to discard his testimony particularly when he is injured and his presence on the spot was doubtless".
The F.I.R. was lodged by village Chaukidar, Bansh Raj PW-2. Learned counsel for the respondents has further argued that if there had been such incident as narrated by the prosecution side, the F.I.R. would have been lodged by the injured persons or any of their family members. This argument of learned counsel for the respondents is not legally tenable. The criminal law is very clear that any one can move criminal machineries, even the police can take cognizance suo-moto, if any offence is committed in their knowledge. PW-2 has stated that he came to know about the incident from the village people and went to the spot, but the injured persons had already been shifted to the Hospital and the accused persons had left the place of occurrence. He informed the police what was narrated to him by the village people. In his cross examination, he has stated that he heard the firing from his house. PW-4, Jagdish Narain Shukla, one of the injured persons has clearly stated before the Court that when the Investigating Officer visited in the Medical College Hospital, Gorakhpur, he (I.O.) told him that the F.I.R. had been lodged at the police station. However, this witness has stated that he did not try to know contents of the F.I.R or the persons named as accused therein. Since he had a talk with the Investigating Officer regarding occurrence in question, therefore, there was no need to have fresh F.I.R. The police had already taken cognizance and started investigation. At page 27 of his statement on oath, PW-4 has stated that when he was going to Medical College, Gorakhpur, the police station Gagaha, Belipar, Cantt Gulariha were found in the way. Learned counsel for the accused-respondents has argued that PW-4 could easily lodge the F.I.R. on said police stations. But this is not the sound argument. As we have discussed earlier that there were three injured persons, out of which, two had sustained firearm injuries and the condition of one of them was critical, therefore, there was no occasion to stop the journey in the way and spoil the valuable time. The immediate medical aid was very much necessary and in such circumstances, any wise person could do same thing, which was done by PW-4. Even after so much hurry, one of the injured could not be saved. Therefore, on the point of F.I.R also, the prosecution case is not weak.
The postmortem report Ext. Ka-3 shows that semi-digested food was found in the stomach of the deceased. PW-3, Smt. Savitri Devi has stated at page 5 of her statement on oath that
the deceased Umesh Shukla had taken Choora and Dahi at about 5.30 A.M, because he had to go Gorakhpur for some personal works. After eating Choora-Dahi, he was wearing cloths, but in the meantime, the incident took place and only after five minutes of taking the food, he was assaulted by the accused. PW-4 Jagdish Narain Shukla has also stated at page 15 of his statement on oath that the deceased had taken Dahi-Choora in the morning at 5.30 A.M. The incident had taken place at about 6.00 A.M. Both these witnesses were villagers and were not quite literate persons.
In the case of State of Gujarat Vs. N.D. Patel and others(supra), the Hon'ble Apex Court made following observations.
" The villagers cannot be expected to state exact time. A margin of about an hour can be given especially when they were stunned by gruesome murder.
Moreover, the process of digestion starts immediately as soon as food reaches to the stomach. According to these witnesses, the deceased had taken food at 5.30 A.M and the incident taken place at 6.00 A.M and he died in the way to the Hospital. According to Dr. A.K. Malhotra, the death might have taken place after 20 or 25 minutes of the occurrence. Thus, the finding of doctor that semi-digested food was present in the stomach of the deceased was quite natural and on that basis, time of incident could not be diverted.
In the defence, Dr. D.K. Srivastava DW-1 has been examined by the accused persons, who has proved the injuries of accused-respondent Hari Shankar Shukla. The injury report is Ext. Kha-1. He was examined in District Hospital, Gorakhpur on the next day of the incident. The following injuries were found on his person:
1.Incised wound 2.5 cm x .5 cm x scalp deep on the Rt. Side forehead. 3.5 cm above lateral of Rt. Eyebrow, margins irregular. Clot present serum discharge on cleaning the wound.
2.Incised wound 1 cm x .25 cm x skin deep present on the left side forehead. 2 cm above middle of Lt eyebrow . Margins clean cut, blood clot present, serum discharge on cleaning the wound.
3.Contusion 7 cm x 5 cm on the back of tip at Lt. shoulder joints. Blackish red in colour.
4.Contusion 5 cm x 2 cm on the front of middle of left arm. blackish red in colour.
5.Abrasion 2 cm x 1.5 cm on the front of middle of Rt. Leg, scab present.
In the opinion of doctor, all the injuries were simple and caused by blunt object except injury no.1 and 2, which could be caused by sharp edged weapon. In his statement, recorded under Section 313 Cr.P.C, the accused Hari Shankar Shukla has stated only this much that he had also sustained injuries. Nowhere, it has been stated that these injuries were caused by prosecution side in the same incident. PW-3 and PW-4 have denied causing injuries to the accused. Therefore, no such explanation was necessary. Even if it is presumed for a moment that these injuries were caused during the incident in question, the presence of accused Hari Shankar Shukla on the spot becomes proved.
In view of our above discussions, we come to the conclusion that the prosecution has been able to prove its case against the accused-respondents beyond all reasonable doubts and the learned trial court was not correct in disbelieving the prosecution case and giving benefit of doubt to the respondents.
In the last, the learned counsel for the accused-respondents has argued that in the worst case, it was covered under Section 304 Part-II of Indian Penal Code, because there was no intention to kill and mar-peet had taken place on sudden provocation. But we see no force in this contention. In alternative, he argued that this case could be covered under Section 304 Part-I of Indian Penal Code also. The evidence on record justifies this argument of learned counsel for the defence. The statement of PW-3 and PW-4, who are injured witnesses also say that initially , the Mar-peet had taken place by Phawra and brickbats and when Hari Shankar Shukla was dragged by the deceased on the earth, he had caught waist of PW-4. The accused Hari Shankar Shukla went inside the house and came back with a country made pistol and made fire from it. This shows that in the starting of Mar-peet, there was no firearm and probably there was no plan to cause injuries by firearm. It appears that Hari Shankar Shukla felt annoyed and aggravated when he was pulled down on the earth by the deceased and then he suddenly made up his mind to take firearm from the house and use it. Thus, at that time, the other co-accused Gulab Shukla and Buddhi Shukla had no common intention to kill the deceased Umesh Shukla or injured Smt. Savitri Devi. This was a sudden act of Hari Shankar Shukla, who had caused injuries to the deceased and PW-3 by firearm. It cannot be said that he was not aware of the consequences of firing.
The culpable homicide has been defined under Section 299 I.P.C. according to which, "whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide". The culpable homicide is punishable under Section 304 I.P.C. The respondent Hari Shankar Shukla was thus, responsible for culpable homicide of Umesh Shukla which did not amounts murder and in doing so, the other co-accused Gulab Shukla and Buddhi Shukla had no common intention, but when all the three accused persons were doing Mar-peet with Phawra and brick bats etc, they had common intention to cause injuries. In such circumstances the accused Hari Shankar Shukla was guilty for the offence, punishable under Section 304 Part-I of Indian Penal Code for the death of Umesh Shukla and making attempt to cause death of Smt. Savitri Devi by casing injuries punishable under Section 307 I.P.C. The other co-accused Gulab Shukla and Buddhi Shukla had caused simple injuries to Jagdish Narain Shukla PW-4 in furtherance to common intention of all, therefore, Hari Shankar Shukla was also liable to be punished for the offence, punishable under Section 323 read with Section 34 I.P.C, but for their simplicitor role, the co-accused Gulab Shukla and Buddhi Shukla were guilty for the offence punishable under Section 323 I.P.C. only.
In the result, the appeal is allowed and the judgment and order of acquittal recorded by learned trial court are set aside. The accused Hari Shankar Shukla is held guilty and convicted for the offence punishable under Section 304 Part-I of Indian Penal Code and sentenced to undergo R.I for ten years and fined Rs. 5000/( five thousand only). In default of payment of fine, he shall undergo additional R.I. for six months. He is further convicted for the offence punishable under Section 307 I.P.C and is sentenced to undergo R.I. for a period of three years and fined Rs. 2000/(two thousands only). In default of payment of fine, he shall undergo additional R.I. for three months. He is further convicted for the offence punishable under Section 323 read with Section 34 I.P.C and is sentenced to undergo R.I. for six months. The accused-respondent Gulab Shukla and Buddhi Shukla are convicted for the offence punishable under Section 323 I.P.C. and are sentenced to undergo R.I. for six months. All the sentences shall run concurrently.
The accused-respondents are on bail. Their bail bonds are cancelled and sureties are discharged. The C.J.M. Gorakhpur is directed to issue non-bailable warrants of arrest against accused-respondents and ensure compliance so that they may be sent to jail to serve out the sentences awarded above. The compliance report within a month on receipt of copy of this order.
Let a copy of this judgment and order be sent to the C.J.M., Gorakhpur within seven days for compliance.
Date: March 1st ,2007
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