S. K. Mookerji, J. - (1.) THIS appeal has been filed by Puran Singh who had been convicted under section 302 IPC and sentenced to undergo imprisonment for life.
(2.) PURAN Singh, son of Tej Singh, resident of Village Harakpur, P. S. Gajraula, district Moradabad, then aged about 42 years stood trial under section 302 IPC as on 6th March, 1976 at about 3.00 P.M. infront of the house of Nau Singh in the same village, be committed murder by intentionally causing the death of Nau Singh. It appears from the record that the victim Nau Singh was eldest brother of the appellant. Victim Nau Singh, accused PURAN Singh and Sardar Singh were brothers and used to reside in a house separately. The appellant PURAN Singh was without a wife or children. On 5-3-77 on the occasion of Holi festival the appellant drank heavily and abused his co-villagers. The co-villagers complained about the matter to his eldest brother Nau Singh (deceased). On the next day i.e. 6-3-77 at about 3.00 P.M Nau Singh was placing fodder before his cattle in-front of his residential house. His wife Smt. Ramwati and his son Brij Pal Singh, informant PW 3, and Chandra Pal Singh were in the courtyard of the house. They could see the occurrence without any obstruction. The prosecution case further is that the appellant Puran Singh approached his eldest brother Nau Singh and demanded money from him for purchasing his liquor. When the victim Nau Singh refused and told him that he will not permit the appellant to drink as on the previous day, he had abused the co-villagers who had complained about the matter to the deceased Nau Singh. Nau Singh (deceased) has further stated that on that day he will not allow the appellant to drink. It appears that the victim expostulated the appellant Puran Singh. However, the appellant Puran Singh suddenly whipped out a pistol from fold of his Dhoti and fired a shot on the chest of the victim. Victim Nau Singh fell down and died- The occurrence 'was witnessed by Hem Singh, PW 4, a close neigbour and distant relative of the partus and PW 5 Murari Lal, another neighbour and Sardar Singh The appellant with his pistol ran away from the scene. PW 3 Brijpal Singh scribed the report, exhibit ka-6 and lodged the same at; Police Station Gajraula on the same evening at about 5.00 P M. The first information report exhibit ka-9 was prepared by Head Constable Lala Ram PW 7 on the basis of written report exhibit ka-6 and the case was registered in the Generai Diary vide exhibit ka-10 PW 2 Brahma Pal Singh sub-Inspector happened to be present at the Police Station alongwith the Station Officer Sri Om Prakash Sharma PW 6 when the first information report was lodged. Sri Om Prakash Sharma PW 6 took up the investigation. The statement of constable Lala Ram and Brij Pal Singh PW 2 was recorded at the Police Station. Investigating Officer along with 2 officers and constable reached on the scene of occurrence on the same evening at about 6.30 P M. The dead body was found lying infront of his house and inquest was held on the same day by Brij Pal Singh and the inquest report is exhibit ka-1. Diagram, despatch note and letters, exhibits ka-2 to ka-4, were also prepared. The deadbody of Nau Singh was sealed and was sent for autopsy for mortuary Moradabad through PW 1 constable Jagan, Singh. Dr. K. C. Gangwar PW 8 performed the postmortem on 7-3-77 at 3.00 PM. The probable age of the deceased was assessed at 50 years and the time of death was one day old and deceased was of average built, rigor mortis was present all over and no decomposition was found to have set in. The following ante mortem injuries were noted. 1. Multiple gun shot wounds of entrance 2 cm. x 2 cm. x skin, muscle and cavity deep scattered over the front of both sides of chest. Front of both shoulders upper part infront of both upper arms, front of both sides of the neck front of the face below the eye, 2 cm. on the right ear and one on the left ear; margins of the wound were lacerated and inverted; blackening and scorching was present around the wound. 2. Two exit wounds and one exit wound size .3 cm. x .3 cm. was present on the right and left ear corresponding to the entrance wound ; margins lacerated and averted on the back of external ears. On internal examination doctor found coagulated blood below neck injury. One small shot from the left side of neck from muscle was recovered; membrances were pale, left lung was lacerated at places and six small shots were removed from the lung tissues. Pericardium was lacerated at two places on left side. Stomach contained six ounce semi-digested food and liquid material. Liver and spleen were pale. Death was due to shock and haemorrhage as a result of gun shot injury to chest according to postmortem report exhibit ka-22 as proved by the doctor. The doctor also opined that the aforesaid injury was sufficient to cause death. The deceased could have expired instantaneously on receiving the aforesaid injuries which could have been inflicted from a distance of four feet, according to doctor P.W. 8. The Investigating Officer recorded statement of the witnesses Hem singh, Murari Lal, Chandra Pal, Smt. Ramwati and Sardar Singh. Blood stained earth exhibit ka-3 and unstained earth exhibit ka-4 were seized and sealed from below the dead body and memo exhibit ka-11 was prepared. The accused could not be available despite a search conducted for him. on 7-3-77. However it appears that he surrendered before a Court on 23-3-77 The chemical examiner submitted his report and found blood stained earth Exihibit ka-3, Kurta exhibit 1, Tehmat exhibit 2 and pellet stained with blood vide report exhibit ka-23 tendered in evidence by prosecution. On completion of the investigation, charge, sheet exhibit ka-17 was submitted against the accused The accused pleaded not guilty He conceded that he Is real brother of victim Nau Singh and Sardar Singh, He further concaded that he and Sardar Singh lived in the same house but added that there was a partition wall between the two portion of the house. He further conceded the topography. He denied to have indulged in a brawl with his brother on 6-3-77 at about 3-00 PM He further stated that he is a teetotaller. He denied to have drunk liquor sines 5-3-77. He also denied to have demanded money from his elder brother Nau Singh on 6-3-77 at 3.00 P.M. for drinking liquor. He denied altercation in that connection He also denied firing of three shots and killing victim on the spot.
(3.) WE have heard the learned counsel for the parties. The prosecution has examined PW 3 Brij Pal Singh, son of the deceased, PW 4 Hem Singh and PW 5 Murari Lal as eye witnesses. It is necessary to point out that PW 5 Murari Lal was declared hostile. Others are formal witnesses regarding whom, details have already been narrated above. PW 5 Murari Lal is a close neighbour. He had expressed that Puran Singh did not commit the murder of Nau Singh in his presence and, therefore ; he was declared hostile. The evidence of PW 3 Brij Pal Singh is important in this case He gave pedigree connecting himself with the accused and his uncle. He also stated that Puran Singh accused was his real uncle. Sardar Singh was also his real uncle. Sardar Singh and Puran Singh appellant were living in common house. The deceased Nau Singh was the eldest of all the brothers, namely, Puran Singh and Sardar Singh. He further stated that the occurrence has taken place on 6-3-77 at about 3.00 P M. After giving the details he immediately stated that Puran Singh appellant has approached his further and demanded money for purchasing liquor but his father Nau Singh retorted that he would not give any money to him for purchasing liquor nor he would allow him to drink. He also stated that his father Nau Singh had also told Puran Singh that on 5-3-77 i.e. on the date of Holi Puran Singh has consumed liquor and had used abusive language to the co- villagers. The villagers protested against his conduct to his elder brother Nau Singh. There was altercation on this issue. Puran Singh immediately whipped out a country made pistol (Tamancha) from the fold of his Dhoti and fired from close range on deceased Nau Singh. Nau Singh received fire arm injuries on the chest and fell down. Thereafter, Puran Singh, the appellant, run away. PW 3 Brij Pal Singh further stated that this fact was witnessed by Hem Singh PW 4, Murari Lal PW 5, Sardar Singh (his uncle), his brother Chandra Pal and his mother Smt. Ramwati besides himself. He further deposed that Puran Singh had sent him letters from the Jail. He tendered those letters in the evidence and the letters were exhibited as ka-7 and ka-8. PW 3 proved the letter by stating that he recognised the handwriting of Puran Singh, the appellant and the above letters were written by him. He further submitted that his uncle Sardar Singh was won over by Puran Singh and was not prepared to give evidence. The land of Puran Singh was also cultivated by Sardar Singh. PW 3, in his cross-examination also stated that appellant Puran Singh was all alone without wife or children. He further submitted that Puran Singh was separated in mess but admitted that before the occurrence his father Nau Singh had a cordial relationship with the appellant Puran Singh and they were also in talking terms. He clarified in his cross-examination that Puran Singh approached his brother and demanded money for purchasing liquor for himself but his brother refused to give him money and further replied that he would not allow Puran Singh to drink because on a day preceding the date of occurrence Puran Singh had used abusive language to the co-villagers who had lodged complaint against his conduct to his brother Nau Singh deceased and in this context his brother Nau Singh also said that under no circumstance he was going to pay to Puran Singh on that day. Puran Singh had insisted for money which was denied by deceased Nau Singh. He further deposed that apart from above fact, no other altercation took place. The conversations might have taken one or two minutes. PW 3 was present in the nearby home and could see the occurrence. He also stated that he had never gone to him (Puran Singh) in Jail. One letter from Puran Singh was brought by the uncle (Mausa) of PW 3 who had gone to meet Puran Singh in Jail. The second letter was brought by another uncle (Mausa). PW 3, Brij Pal Singh, son of the deceased was student of B.A. (final) at the time of hit deposition. He had clearly stated that he had gone with the written report to the police Station and the police Inspector has takea his statement at the Police Station. Theteafter, the Police Inspector had come on the place of occurrence. The prosecution, thereafter, examined Hem Singh PW 4. He has corroborated PW 3 Brij Pal Singh as far as the prosecution case in respect of shooting the victim by the appellant Puran Singh, is concerned. He had also stated that both Nau Singh and Puran Singh were maintaining cordial relationship before the present occurrence. He also stated that there were exchange of abuse between the accused Puran Singh and Nau Singh. This witness Hem Singh PW 4. however, given a peculiar story regarding lading of the first information report. He has stated that the Investigating Officer had got the report written by Brij Pal Singh. The report was placed before Hem Singh but he could not identify the same as he clearly stated that he is illiterate. He also stated that Darogaji was dictating and Brij Pal Singh was writing the report. From the above stand taken by PW 4 Hem Singh, the learned counsel for the appellant urged that Hem Singh cannot be relied upon as he was not at all present. We have examined the statement of Hem Singh. Hem Singh has certainly supported the prosecution case and corroborated the statement of PW 3 Brij Pal Singh in respect of the fact that accused Puran Singh wanted money from the deceased Nau Singh which was refused and Nau Singh had told him that he will not Pay Puran Singh for purchasing liquor nor allow him to consume the same in view of the fact that on the previous day of Holi, Puran Singh in a drunken state, had abused co- villagers and the co- villagers had corn plained about his conduct to the deceased Nau Singh. Immediately, thereafter, the appellant Puran Singh whipped out his pistol from the fold of his Dhoti and fired on his eldest brother Nau Singh resulting into his instonteneous death. We have also examined the evidence of Dr K. C. Gangwar PW 8 and have also examined the post mortem report wherein, no doubt, the prosecution case as disclosed by PW 3 Brij Pal Singh, has fully been corroborated by medical evidence. PW 4 Hem Singh is illiterate man and. therefore, he had made certain strange statement in respect of the fact of the lodging of the first information report. His statement in respect of the fact that the Investigating Officer had dictated the first information report to PW 3 Brij Pal Singh, is not only incorrect but has been made under some confustion In any case, we are in a position to dissect this part of his statement from the deposition made by Hem Singh PW 4. In the alternative even if we discard the evidence of PW 4 Hem Singh, the statement of PW 3 Brij Pal Singh duly corroborated by the first information report and the medical report on record, shall prove the prosecution case beyond all reasonable ground against the appellant Puran sing. PW 5 Murari Lal has been declared hostile and as such we are not placing any reliance on his evidence. The prosecution case has also been corroborated by the report of the Chemical Examiner in respect of the blood soaked earth recovered from the place of occurrence and also Kurta and Tahmat exhibit, 1 and 2 of the deceased, The court below has recorded a finding that these was cogent ocular testimony of Brij Pal Singh, and Hem Singh who are natural witnesses ahout the occurrence. The statement of Brij Pal Singh found firm corroboration from the first information report and medical evidence and other circumstances that the accused is none else than his own uncle and he does not stand to gain by getting his uncle convicted for the murder of his father. The court below also held that the time, date and place and the manner of occurrence have been established on the aforesaid evidence on record beyond all reasonable doubt against the appellant. We fully agree with the findings of the courts below and hold the appellant guilty. The courts below has also referred letters mentioned above exhibit ka-7 and 8 and has relied upon them as a circumstance to hold that the appellant was guilty of the offence in the present case.;