2002 ALL SCR (Cri) 729

SUPREME COURT OF INDIA

Appeal (Crl.) 530 of 1991

18th December, 2002

M.B. SHAH, J.

D.M. DHARMADHIKARI, J.

2

STATE OF UTTAR PRADESH

RAM SEWAK AND ORS.

Penal Code (1860)

Criminal P.C. (1973)

Section 148 Penal Code (1860)

Section 302 Penal Code (1860)

Section 313 Criminal P.C. (1973)

Accused, Child, Education, Fire Arms, Motive, Police, Sentence, State, Witness

DHARMADHIKARI, J.:- The facts revealed in this case by the evidence produced for the prosecution should be taken as a reminder to the Legislative Bodies and Social Reformers that penal laws howsoever deterrent are inadequate to prevent crimes unless there is change brought about in the way of life, thinking and outlook of the members of the communities against each other in village and cities of this country. Such a social change can be realised not only by making laws but imparting sound moral education and spiritual upliftment of the people.

2. This opening comment is prompted by the tragic facts of this case. A young newly married boy of only twenty two years of age, named, Ram Sudhar Singh was shot dead. The motive for the crime alleged against the accused person is that they formed a faction in the village of influential Thakur community and were insisting that Jograj Singh (examined as a Court Witness) should give his daughter in marriage to a boy of the choice of the accused party. Against the wishes of the members of the accused party, Jograj Singh gave his daughter in marriage to deceased Ram Sudhar Singh.

There were other factional rivalries between the members of the accused and the complainant party on past criminal incidents as well as election contest which have been highlighted by the accused in their separate defence plea recorded at the end of the trial under Section 313 of the Code of Criminal Procedure.

3. The Trial Judge, i.e., First Additional Sessions Judge, Shahajhanpur, by his judgment dated 9-2-1979 and order of sentence dated 14-2-1979 convicted five accused who are respondents in this appeal before us and sentenced them to life imprisonment for offence under Section 302 read with Section 148 I.P.C. and imprisonment for two years for offence under Section 148 I.P.C. The other ten co-accused were acquitted.

4. In the appeal preferred by the five convicted accused, the High Court vide judgment dated 7-5-1991 acquitted all the accused against which on grant of leave by this Court appeal has been preferred by the State of Uttar Pradesh.

5. On the night between 26th and 27th May, 1978 at the house of Jograj Singh, in Village Raghunathpur, P.S. Jalalabad, District Sahajhanpur deceased (being his son-in-law) and Chandrabhan Singh, PW1 (brother of the deceased) along with other guests were present to participate in Chatti ceremony on the occasion of 8th day of the birth of a child in that family. After dinner was over at about eight in the night, Chandrabhan Singh, PW1 and Jograj Singh were conversing with each other on a platform in front of their house where a gas lantern was burning. Sometime in the midnight Nanheylal, son of Jograj Singh came running and alerted them that accused persons with fire arms were approaching towards their house to avenge the past enmity between the two factions. The allegation is that the accused were armed with fire arms like guns and pistols and Bhalas. They formed an unlawful assembly. On being alerted by Nanheylal, Chandrabhan Singh (PW1) and Court Witness Jograj Singh ran towards the house. They saw the accused taking position in the open space in the 'front of their house. The accused started firing. About 15 to 20 rounds were fired. The deceased and other persons standing on the roof of the house raised an alarm. Thereupon, accused Ram Sewak fired from his gun and the bullet hit the deceased. In defence, one Pehelwan Prasad of the village also fired from his licensed gun. Thereafter, the assailants ran away from the scene. The first information report of the incident (Exhibit KI) was lodged by Chandrabhan Singh, PW1 in Police Station Jalalabad at six in the morning. The police station was five miles away from the place of incident. The F.I.R. was lodged by a written complaint. The deceased who suffered bullet injury was taken to Primary Health Centre, Jalalabad where Dr. R.C. Asthana, PW3 examined his injuries vide Injury Report (Exhibit k-4) at 8.20 a.m. in the morning. The same Doctor certified him fit for recording dying declaration.

6. The dying declaration (Exhibit K 5/2) was recorded at 8.20 a.m. in Primary Health Centre, Jalalabad by Shri R.S. Mathur, Tehsildar Magistrate, PW4. In the dying declaration the deceased clearly named accused Ram Sewak to be the assailant who fired at him with the gun causing bullet injuries on left side of his neck and shoulder. The deceased in the dying declaration also mentioned names of the four other accused who are respondents before us as the assailants who fired at the complainant party. The deceased in the dying declaration described the cause of incident as village factions (parts bandi). In Primary Health Centre, Jalalabad his condition was found serious. After recording dying declaration the deceased was sent for treatment to District Hospital, Shahjhanpur where he died on the same day i.e., 27.5.1978 at 2 p.m. The postmortem was conducted by Dr. Sudhir Singh, Medical Officer, District Hospital, Shahjhanpur who found the following two gun shot injuries on the person of the deceased.

1. Gun shot wound of entry on left side of neck lower part 5 c.m. above and laterally from medial and of left clavicle 2.5 c.m. x 2.3. c.m. x muscle. Margins are inverted.

2. Gun shot wound entry on interior aspect of left shoulder 4.7. c.m. away and outward from left acromio-clavicular joint 2.2 c.m. x 2 c.m. x chest cavity deep.

7. In the opinion of the doctor the death was due to shock and haemorrhage as a result of the injuries sustained.

8. One big matellic shot was recovered from muscle of upper throasic vertebra.

9. Another one big and small matellic shot pieces were recovered from right side of survical vertebra.

10. The accused abjured.