1

Reserved

AFR

Criminal Appeal No.1661 of 1982

Swami Nath Rai ................................ Appellant

Versus

State of U.P....................................Respondent

Connected with

Criminal Appeal No.1663 of 1982

Sachindra Rai........................................Appellant.

Versus

State of U.P. ....................................Respondent.

Hon'ble Vinod Prasad, J.

Hon'ble Pankaj Naqvi, J.

(Delivered by Hon’ble Vinod Prasad J.)

These two connected appeals emanates from the impugned

judgment and order dated 26.6.1982 passed by I

st

Additional

Sessions Judge, Ballia in S.T. No.196 of 1981, State Vs. Sachindra

and others, relating to Police Station Garwar, district Ballia, by which,

learned trial Judge while acquitting third accused Smt. Urmila Devi

wife of Swami Nath Rai, has held appellant Swami Nath Rai (A-1)

and Sachindra Nath Rai (A-2) guilty under section 302/34 IPC and

therefore has convicted them of the aforesaid offence and has

sentenced them to life imprisonment therefor.

Recapitulated briefly, prosecution allegations, as was stated in

Neutral Citation No. - 2012:AHC:116143-DB

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the written F.I.R., Exhibit Ka-2, by the informant Harvansh Rai P.W.1,

narrated during the investigation and testified during the session's

trial by the three fact witnesses Harvansh Rai P.W.1, Shyam Sunder

Rai P.W.3 and Veer Bahadur P.W.4 are that, one Rameshwar Rai was

the resident of village Amdaria, P.S. Garwar, district Ballia. He had

three sons Shiv Nath Rai, Vishwanath Rai and Swami Nath Rai (A-1).

Urmila Devi (acquitted accused) is the wife of(A-1). Informant

Harivansh Rai, P.W.1 and Harishanker Rai(deceased) were real sibling

brothers being sons of Shivnath Rai. Shyam Sunder Rai P.W.3 is the

son of Vishwanath Rai. Thus it is evident that two of the accused,

deceased, informant and witness P.W.3 were related with each other

as uncle and nephew. Informant had an agricultural field one furlong

away from his abode. Four or five years prior to the present

incident, all the collaterals lived together with undivided properties

but thereafter, a family partition took place and they were separated.

Informant was employed in Gadwar block but he often used to visit

his village.

On the incident date 29.10.1981 at 7 a.m. Hari Shanker Rai

(deceased) went to his agricultural field at Chak No.11, of which

informant P.W.1 and appellant (A-1) were joint holders where he

spotted that paddy crop of (A-1) was being irrigated by (A-2) and

acquitted accused Smt. Urmila Devi from the tube-well of (A-1)

through an aqueduct, which ran north - south and then towards

west. Deceased inhibited (A-2) not to irrigate his field from the

aqueduct which, according to the informant's case, was his private

drain. Informant at that time was planting potato seeds in his field.

Deceased thereafter approached the informant and informed him

about the irrigation done by the accused appellants and also told him

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that, since he (deceased) had to irrigate his agricultural field,

therefore, he is going to stop paddy crop irrigation by (A-2). After

the deceased proscribed (A-2) from irrigating his paddy field, (A-1)

and Smt. Urmila Devi retaliated by replying that (A-2) will irrigate his

filed and deceased may do whatever he could. On this, the deceased

barraged the aqueduct and stopped irrigation of ( A-2) crops. On this

(A-1) instigated (A-2) to bring his gun and shoot down the deceased

and he will meet the expenses of the consequences which may

ensued thereafter. Abiding the call (A-2) rushed back to his house at

a distance of one and a half furlong to reappear at the spot after ten

or fifteen minutes. Meanwhile informant continued to sow potato

seeds and the injured/deceased started mudding the water drain.

Ten or fifteen minutes after above verbal tirade, (A-2) armed with

D.B.B.L. gun of his uncle Arunandra Nath Rai @ Tunnu Rai, appeared

at the incident spot. Informant left sowing of his potato seeds ran

towards his brother but when he was twenty five or twenty paces

away from him (A-2) shot at the deceased causing him gunshot

injuries on the left hand and left side chest as a result of which

injured/deceased squatted on the ground. Informant had also

spotted Shiv Muni Rai proceeding towards north from a mahua tree,

which was 8 or 10 paces away from the incident spot. Firing at the

injured/deceased Hari Shanker, (A-2) sprinted away towards north.

Shyam Sunder Rai P.W.3, Veer Bahadur Rai P.W.4, Sangram Rai and

the informant P.W.1 had witnessed the entire episode. Injured had

fainted sustaining gunshot injuries, from which blood had trickled

down on the ground. Injured was transported to his house and a

person was sent to fetch a taxi to Ratsar. In 10 or 15 minutes, the

person brought the taxi, in which injured was carried to Ratsar

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Hospital in an unconscious state.

At P.H.C., Ratsar, injured was examined by Dr. S.D. Srivastava,

Medical Officer. In the emergency register of the P.H.C., it was jotted

down at the serial no. 176 that Hari Shanker Rai was brought to the

P.H.C. at 8.10 A.M. with sustained gunshot injuries. Such an entry so

scribed by the Medical Officer has been proved by pharmacist

Chandra Bhushan Singh, P.H.C., Ratsar, District Ballia P.W. 9 as Ext.

ka -16. The pharmacist had injected the injured with Curamin

injection and had dispatched him to the District Hospital, Ballia. From

Ratsar Hospital, injured was brought to police station Garwar.

Outside the police station, informant P.W. 1 penned down his

FIR Ext. Ka-2 and handed it over to the Head Moharir Aijaz

Mohammad who had registered the crime pursuant to Ext. Ka-2, as

Crime No. 176/81, u/s 307 IPC and had prepared chik FIR Ext. Ka-22

and crime registration GD, Ext. Ka-23 vide Rapat No. 14. Same Head

Moharrir had also prepared conversion GD, converting crime from

section 307 to 302 I.P.C., after demise of the deceased vide Rapat

No.30 on 30.10.1981 at 7.40 P.M. which is Ext. Ka-24.

Investigation into the crime was commenced by the I.O. P.W. 5,

who first of all copied the FIR and the GD and thereafter recorded

161 Cr.P.C. statement of the injured while injured(deceased) was still

inside the taxi. This statement by virtue of death of the

injured(deceased) now is his dying declaration.

From the same transport, injured was brought to the District

Hospital, Ballia, where he was admitted in the emergency ward and

his injuries were examined and his medical examination report, Ext.

Ka-3 was prepared by Dr. Kailash Singh, M.O., Sadar Hospital, Ballia,

PW5 at 10.30 a.m. Injured had sustained following injuries as was

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depicted in his injury report Ext Ka-3:-

Injuries:-

“(1) Gunshot wound of 5cm x 2cm x full arm deep on left upper arm

lateral side 11cm below tip of left shoulder margins inverted with

fresh blood coming through it. Advised X-ray. Wound of entry.

(2) Gunshot wound of exit of 12cm x 10cm x communicating with

injury no. 1 muscle bone pieces coming out of wound. Advised X-ray.

Fresh blood oozing out through it.

(3) Gunshot wound in area of 8cm x 8cm x depth not probed on left

side front of chest lateral to left nipple. Advised X-ray. Fresh blood

oozing though it.

Injury. Nos. (1), (2), (3) are kept under observation. Advised X-ray

are fresh injury produced by fire arm weapon.”

According to the doctor, PW5, above injuries could have been

sustained by the injured at the date and time of the incident and

were possible by a single shot.

Since the condition of the injured was precarious, doctor PW5

had sent a memo,Ext.Ka-5, to S.D.M. Ballia for recording his dying

declaration and as a follow-up action deceased dying declaration,

Ext. Ka-15, was recorded at 11 a.m. same day by Sri M.L. Dwivedi,

S.D.M., Ballia P.W.7, in the presence of Dr. Kailash Singh P.W.5, who

had appended certificate and had put his signature Ext. Ka-6, on the

said dying declaration. The certificate reads “certified that D.D.

recorded at 11 A.M., 29.10.81 patient is fully conscious during giving

D/D.” At the time of recording of the dying declaration, all the

relatives of the deceased were sent out of the ward and the dying

declaration was recorded in the same dialect in which it was spoken

by the deceased. At the time of recording of dying declaration,

deceased was fully conscious, as is apparent from the doctor’s

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certificate.

Deceased, however, could not win over the battle for his life

and expired at 1-2 P.M., the same day and consequently Dr. Kailash

Singh,P.W. 5 had informed police station Kotwali regarding demise of

the deceased vide communication memo, Ext. Ka-4, which was

scribed by a compounder. Resultantly registered crime, vide crime

no. 176 of 1981, was altered from section 307 I.P.C. to section 302

I.P.C. on 29.10.1981. On the basis of said death memo, S.I. Bhanu

Pratap Singh P.W. 6 along with inquest papers left the police station

vide GD No. 30 at 3.05 P.M. which GD was penned down by

constable moharir A.N. Tiwari. PW6 came to the hospital, where he

conducted inquest on the cadaver of the deceased, after appointing

inquest witnesses, and prepared inquest memo Ext. Ka-7. Other

relevant papers viz: copy of sketch of body Ext. Ka-8, Police Form

No. 13 Ext. Ka-9, report for conducting post mortem examination

Ext. Ka-10, report regarding recovery of pellets Ext. Ka-11, report

regarding seizing the attires of the deceased Ext. Ka-12 and seal

impression Ext. Ka-13 were also prepared by P.W.6, who has proved

these documents during the Sessions Trial.

Autopsy on the corpse of the deceased was conducted by

doctor Abdul Halim, radiologist, PW2, on 30.10.1981 at 10.30 a.m.

The dead body was brought to the doctor by CP 486 Maqsood Alam

and CP 635 Sudershan Yadav P.W. 8, who had identified deceased's

cadaver. According to autopsy doctor twenty four hours had lapsed

since deceased’s demise. He had an average built body and rigor

mortis was present over all his four extremities and his both eyes

were closed. Following external physical injuries, sustained by the

deceased, were noted by the doctor in deceased’s post mortem

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examination report, Ext. ka-1:-

“ANTE MORTEM INJURIES

(1) Gunshot wound of Entry 5 cm x 2 cm x whole breadth left arm

upper part back and lateral side 11 cm below Left shoulder. Margins

irregular inverted through and through wound of exit of Blood

vessels of Deep …. (P.T.) side (inner) …. (P.T.) Bone.

(2) Gunshot wound of exit 12 cm x 10 cm x through and through

wounds of entrance No. (1) Large irregular wound and greatly

Lacerated and ...(P.T) of Deeper tissues, greater damage of tissues

around, margins and averted without blackening and singing. The

wound is 5 cm above elbow joints on inner side about mid part of

muscles and Deep structure ragged and ruptured with small chips of

Bones.

(3) Gunshot wound of Re-entry an area of 8 cm x 8 cm on Left side

front and lateral of chest ….. below Left side nipple (L) multiple

wound of sized ½ cm x … (P.T.) going through and through chest

wall into Lung (L) pellets 11, (Eleven) recovered from Lungs tissue

(L) from different depth, chest wall Lungs effected areas

ecchymosed.

Doctor had further found that chest cavity contained clotted

fluid Blood about 14 oz in Left side and Left parietal bone of the

deceased and pleura were pierced and fractured. His stomach and

small intestine were empty and large intestine had faecal matter. In

the estimation of the doctor, deceased had expired due to gun- shot

wounds, which had caused haemorrhage & shock and his death

might have occurred at or about the incident date and time. PW5,

doctor had further detected and removed pellets embedded inside

the cadaver of the deceased, which were sent to the S.S.P.

8

Reverting to the ensued investigation into the crime, which

was commenced by S.O. Surya Bali Singh, P.S. Garwar district Ballia,

in whose presence the crime was registered, I.O. after recording

injured statement at the police station came to the incident spot,

where, at the pointing out of P.W.3, conducted spot inspection and

prepared site plan map Ext. Ka-17. Blood stained and plain earth as

well as the pellets found at the incident scene were recovered by him

and recovery memos Exts. Ka-18 and 19 were sketched. Blood

stained and plain earth are material Exts.1 & 2. Accused Smt. Urmila

Devi, since acquitted, then was questioned by the I.O., who

thereafter, recorded the statements of the informant and witnesses

Sangram Rai and Veer Bahadur Rai. On 7.11.81, I.O. recorded the

statement of(A-1) and subsequent thereto on 20.11.81 recorded the

statement of(A-2). Concluding investigation, he had charge sheeted

the accused on 26.11.1981 vide Ext. Ka-20.

As an investigatory step, I.O., after obtaining an order from the

Magistrate on 20.4.1981 had sent blood stained apparels of the

deceased and blood stained earth to Forensic Science Laboratory for

testing vide Ext. Ka-21. These attires and the soil have been proved

as material Exts. 3 to 5. Forensic Science Laboratory reports, Exts.

Ka-25 and Ka-26, dated 22.12.81 indicates that the attires of the

deceased contained human blood.

Charge sheeting of the accused vide Ext. Ka-20 resulted in

registration of Criminal Case No. 906 of 1981, State Vs. Sachindra

Rai and others in the Court of I

st

Additional Munsif, Ballia on

4.10.1981. Finding the offence triable by the Court of Session's,

committal court of I

st

Additional Munsif Magistrate, committed the

case to the Session's Court for trial, where it was received on

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23.12.1981 and was registered as S.T. No. 196 of 1981, State Vs.

Sachindra Rai and two others.

Learned trial Judge/ I

st

Additional Sessions Judge, Ballia, after

perusing the case diary and after hearing the submissions of the

prosecution and the accused, vide order dated 2.2.82, charged all

the accused with offence under section 302/34 IPC, which charge

was read out and explained to the accused who denied the same and

claimed to be tried and consequently, to establish their guilt,

session's trial procedure was resorted too by the learned trial court.

Prosecution in it's efforts to establish accused's guilt relied

upon oral testimonies of ten witnesses, out of whom informant

Harvans Rai P.W. 1, eye witness Shyam Sunder Rai P.W. 3 and Veer

Bahadur P.W. 4 were the fact witnesses. Dr. Abdul Halim, post

mortem Doctor P.W. 2, Dr. Kailash Singh, who had examined the

injured deceased in district hospital P.W.5, S.I. Bhanu Pratap Singh,

who had conducted inquest on the cadaver of the deceased P.W. 6,

M.L. Dwivedi, SDM, Ballia, who had recorded the dying declaration

P.W. 7, C.P. Sudershan Yadav, who had carried the dead body for

autopsy purposes P.W.8., pharmacist Chandra Bhushan Singh, who

had proved notings in the emergency register of PHC Ratsar, Ballia

P.W.9 and I.O. Surya Bali Singh,S.O. Police station Ratsar P.W. 10

were the formal witnesses.

Besides, oral testimonies of aforesaid witnesses, prosecution

relied upon various documentary evidences in the form of various

exhibits and some material exhibits, which has already been

mentioned herein above, while describing background facts,

prosecution version and investigatory steps, and hence are being

eschewed from being re-produced.

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Incriminating circumstances appearing against the accused in

the prosecution evidences were put to them u/s 313 Cr.P.C. wherein,

all the accused admitted the relationships, as were divulged by the

fact witnesses, but denied rest of the circumstances. They further

denied the water channel drain to be a private aqueduct and took

the defence of false implication because of enmity. P.W.2 narrated

the specific defence that the deceased was murdered in the night

and after due consultation, and deliberation, prosecution had

concocted a feigned story and had nailed them. Rest of the

accused(A-1) and his wife, however, did not plead any specific

defence.

Learned trial Judge after analysing the prosecution evidences,

both oral and documentary, summating the facts and circumstances

concluded that guilt of Smt. Urmila Devi wife of(A-1) has not been

established and therefore, she is entitled for acquittal and

consequently acquitted her of all the charges. It further disbelieved

evidence of fact witness Veer Bahadur P.W.4 and in his respect

recorded a finding, “I am also of the opinion that this witness must

not being present at the time of the occurrence. He appears to be a

got up one.” Inspite of disbelieving PW4 and recording above

finding, learned trial Judge found that prosecution has anointed

appellants' guilt clear of all doubts to the hilt for charges under

section 302/34 IPC and therefore, convicted and sentenced them, as

already noted above, vide impugned judgment and order and

resultantly, challenged has been made to the aforesaid conviction

and sentence in this appeal by the two appellants.

When the appeal was called out for hearing, nobody appeared

for appellant (A-1). Way back in 2007 warrant were issued against

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him but no report in his respect has been received. The appeal

cannot be kept pending on the dockets of this Court and therefore,

we appointed Sri Raghuraj Kishore Mishra as amicus curiae on his

behalf. We have heard Sri Raghuraj Kishore Mishra learned amicus

curiae for(A-1), Sri Brijesh Sahai, learned advocate for (A-2) and Sri

Sangam Lal Kesherwani, learned AGA for the prosecutor State and

have perused the entire trial court's record including oral and

documentary evidences and the impugned judgment.

Snipping the conviction and sentence of the appellants, it was

canvassed by learned counsel for the appellants that the prosecution

story is the outcome of fabrication after discovery of the dead body

of the deceased in the morning. There was no reason for the

appellants to involve themselves in a crime and the motive, as

alleged by the prosecution to indulge into the crime, was trivial in

nature. It was further submitted that the reason for false implication

lied with the prosecution and cause for accused to involve

themselves in the murder was totally absent. Because of business

rivalry, the accused were framed in feigned story, submitted

appellants' counsel. It was further submitted that water channel,

which was blocked was at the junction of BC and AD, as depicted in

the site plan map, which lied towards west and north of the tube-

well of Swami Nath (A-1). Deceased and informant P.W.1 had not

been shown having any field towards that direction and therefore,

blocking of the water channel by the deceased is a cooked up story.

It was harangued by Sri Sahai that in fact deceased was murdered in

the wee hours of the morning when he had gone to attain the

natures call and, later on, the entire prosecution story was cooked

up. It was further submitted that the Investigating Officer in the site

12

plan map has nowhere shown the places from where the witnesses

and the informant had seen the incident, which unerringly is

appointer towards the fact that they were not present at the spot

during the incident. No tube-well of P.W.3 has been shown in the site

plan map, which also creates a dent in the prosecution story

submitted learned counsel for the appellants. It was also submitted

that no place and direction from where the injured deceased was

fired upon has been shown in the site plan map, which reveals that

the prosecution version is an afterthought and a mendacious version.

It was next argued that there was no reason for(A-2) to fire upon the

deceased, as he belonged to a different pedigree and therefore, he

has been falsely implicated because he had left irrigating his field

from the tube-well of PW1 and had started using the tube-well of (A-

1), after paying him the charges for water irrigation. It was next

argued that in any view of the matter proven crime, from the

evidences on record, will not fall outside the purview of Section

304(II) I.P.C. and consequently recorded conviction under Section

302 IPC is unsustainable. Dying declaration recorded by the

Magistrate is suspect and cannot be believed as, before recording the

dying declaration, doctor’s certificate regarding fit mental condition

of the injured was not obtained and in this respect Magistrate had

himself deposed that after he had recorded the dying declaration

that he had obtained the certificate from the doctor, which was

appended on the dying declaration. Primary on these submissions, it

was urged that prosecution had failed to successfully bring home

guilt of the accused and therefore appellant’s appeal deserves to be

allowed and they be acquitted of the charge. Another submission

was in respect of non- sustainability of conviction u/s 302 I.P.C.

13

wherefor it was urged that proven crime against the appellant shall

not fall outside purview of Section 304(II) I.P.C. and they could be

convicted only for that crime and therefore their sentence also

deserves to be diluted suitably especially considering the fact that

the incident had occurred more than three decades ago when( A-2)

was a young boy of 20 years of age. For( A-1), it was urged by

amicus curie that he must have been dead and if not since, he

should be above 90 years of age, as of now, therefore in the matter

of his sentence, a sympathetic approach be adopted.

Learned AGA argued to the contrary submitted that it is a day

light incident with consistent medical reports and an eye-witness

account and therefore, there is no reason to absolved the appellants

of their guilt. At the instigation of (A-1), (A-2) had shot the

deceased causing him fatal injuries and therefore, the guilt of the

appellants fall within the ambit of Section 302 IPC as,(A-2) after

instigation had retreated to his house and had reappeared at the

incident scene armed with a lethal weapon, which he had wielded to

cause fatal injuries to the deceased. It was next argued that the

surrounding circumstances and other proven facts establishes the

prosecution story beyond all reasonable doubt and therefore, both

the appeals lacks merit and deserves to be dismissed.

We have considered the rival submissions in the light of oral

and documentary evidences and have collated and vetted them.

From the critical analyses to unravel the truth, it is discernible that

some vital aspects of the case, as was alleged by the prosecution,

remained unchallenged by the defence. These facts include the date

and place of the incident. The only challenge is to the time of the

murder, which according to the defence suggestion was wee hours of

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the morning, whereas prosecution alleged it to have occurred at 7

a.m. It was the month of October and hence there does not seems

to be much of difference between both the versions and defence

argument does not improbablises prosecution story. It is also

admitted to the defence that the deceased was shot dead and

therefore, use of gun or a firearm in the crime is also beyond doubt.

Consequently the residue remains to be judged is circumscribed

within a small area of analysis as to whether it were the appellants

who had perpetrated the crime or somebody else had orchestrated

it. To put it differently, it is to be adjudged as to whether the

prosecution version of the deceased being shot dead by (A-2) at the

instigation of(A-1) is a credible allegation or not?

On the above aspect, when oral and documentary evidences are

tested on the anvil of probability and acceptability, it emerges that

both the witness have toed the prosecution story with consistency

and clarity and they have not budged even slightly. They have not

faltered in narration of facts about genesis and manner of happening

of incident in it’s main substratum. It is their categorical depositions

that the incident had occurred because of blocking of water flow to

paddy crop of (A-2) through aqueduct by the deceased. At that

moment informant was sowing his potato seeds. Initially all the three

appellants were present at the tube-well of (A-1) from which,(A-2)

was irrigating his paddy field. Genesis of the incident was engineered

by the deceased when he had forbade (A-2) to stop irrigating his

paddy field and had blocked the water channel through which(A-2)

was irrigating his crop. It is also established with sufficiently

convincing evidences that gun fire shot was fired at the deceased by

(A-2) at the instigation of (A-1). In spite of lengthy and searching

15

cross-examinations, defence has not been able to dislodge the

aforesaid allegations by the fact witnesses. P.W.1 had even deposed

that he had not endeavoured to save the deceased when (A-2) had

arrived at the incident scene carrying DBBL gun, because he could

not have imagined that he (A-2) will shot at the deceased on such a

trivial dispute of irrigating the field. Role of (A-1) was also spelt out

with sufficient clarity from the very beginning by prosecution

witnesses. It is recollected that (A-1) was closely related with the

deceased and the informant as he (A-1) being their real uncle and

his wife Smt. Urmila Devi (acquitted accused) being their aunt. It is

also clear from the pedigree that Shyam Sunder Rai P.W. 3 is the

cousin brother of the deceased and the informant and real nephew

of(A-1). These witnesses, thus could not have any motive to create a

false story against the appellants, if they were not the actual

perpetrators of the crime. It will be puerile and absurd to cogitate

that the nephew will fabricate a concocted story against their own

uncle regarding the murder of their real / cousin brother without any

rhyme or reason. The defence suggestion that because of business

dispute regarding income from irrigation, that the appellants were

implicated, is such a facetious and unappealing submission that it

does not require any detailed deliberation and deserves to be

repelled outright and we do hereby reject it as such.

Interdicting prosecution case for another reason that the

deceased had no field towards west of the tube-well of ( A-1) and,

therefore, there was no reason for the deceased for blocking the

aqueduct, we find said submission also bereft of any merit. Site plan

map, on which a heavy reliance has been placed by appellants'

counsel, itself shows the place at which the water channel was

16

blocked. It is just two paces away from where the deceased was

fired upon. Thus, the presence of the deceased, blocking of aqueduct

and place of incident are all an established facts. This incident had

occurred in day light with eye witness account of close relatives and

hence there is total absence of any viable reason not to lend

credence to such a version on such unconvincing argument. There

was no ostensible reason for the fact witnesses, in absence of any

ulterior motive and previous animosity to state a fabricated version

before the Court. From the cross examination of the witnesses,

defence has not been able to bring on record any material or

evidences to indicate that, but for appellants, anybody else could

have committed the crime. It also transpires that on the incident day

(A-2) was irrigating his paddy field for the first time from the tube-

well of (A-1) and, therefore, there could not have been any reason to

harbour feeling of business rivalry regarding payment of irrigation

money. Contention of appellants' counsel, therefore, is unappealing

and is rejected for the above mentioned reasons.

Prosecution story is credibly supported by the two dying

declarations. First one is in the form of 161 Cr.P.C. statement of the

injured, subsequently deceased, which, from the perusal of the case

diary, was recorded at 9.15 a.m. The aforesaid statement under

section 161 Cr.P.C., by virtue of death of the deceased, is now his

dying declaration covered under section 32 of the Evidence Act.

Perusal of it indicates that the deceased had narrated that at 7a.m.,

he had gone to his field where he spotted that from his drain,(A-2)

was irrigating his paddy field from the tube-well of (A-1) and other

two accused (A-1) and his wife Smt. Urmila Devi were present there.

Injured/ deceased inhibited (A-2) not to irrigate his field from

17

aqueduct because he had to irrigate his field, on which (A-1) & Smt.

Urmila Devi replied that (A-2) will irrigate his field from the same

duct. Injured/deceased had further stated that thereafter (A-1) gave

an instigation call to bring the gun from the house and murder the

injured on which (A-2) had brought a DBBL gun from his house and

fired upon him which had caused him gunshot injuries on his left

hand and left side chest and thereafter (A-2) had escaped from the

spot. This 161 Cr.P.C. statement/dying declaration was corroborated

by the other dying declaration recorded and proved by SDM, P.W.

7,wherein injured/deceased had conspicuously stated that he was

fired upon by (A-2) at the instigation of (A-1). This dying declaration

was recorded in the local dialect by the SDM as was dictated to him

by the injured/ deceased. Though there is some discrepancy

regarding the fact as to whether (A-2) had brought the gun from his

house or whether he was only given a cartridge at the spot and he

was already carrying a gun with him, but the main substratum of the

incident regarding firing at the injured/ deceased by (A-2) at the

instigation of (A-1) remains unaltered, which corroborates earlier 161

statement/ dying declaration and the prosecution version. We do not

find any reason to disbelieve the said dying declarations and,

therefore, are of the view that so far as participation of (A-1) & (A-2)

in the incident is concerned it is well anointed without any ambiguity

and doubt and consequently of the view that the conviction of both

the appellants is well merited and cannot be set aside.

Now adverting towards the second limb of the argument as to

what offence has been committed by the appellants, we are of the

considered opinion that from the proven facts and surrounding

circumstances, appellants cannot be said to have carried with them

18

an intention to commit murder of the deceased and hence no

offence punishable under section 302 I.P.C. is disclosed against

them. Our reasons for drawing such an opinion are firstly, that there

was no enmity in between the deceased and the appellants since

prior to the incident and hence there was absence of any previous

motive to indulge into the crime. Secondly, that the incident had

occurred all of sudden without any premeditation and according to

the prosecution case itself (A-2) was empty handed when the

deceased picked up the quarrel. Thirdly, that the occurrence was

engineered by the deceased and it seems that he was hot headed.

He firstly came to his field and saw that (A-2) was irrigating his field

from the tube well of (A-1), which was going on since more than one

hour. He did not act immediately and went to P.W. 1 to inform him

about that and also informed him that he was going to block the

irrigation activity by (A-2). This certainly was an act which must have

rankled the appellants especially (A-2). It was a voluntary act of the

deceased without any provocation from the two appellants. Fourthly,

that deceased not only forbade(A-2) to stop irrigation but he erected

mud obstruction to stop irrigation of (A-2) paddy crop, which

requires lots of watering otherwise it well get destroyed. This self-

created mischief by the deceased, considering the loss, which (A-2)

would have suffered from destroying of his paddy crops, had enough

potentiality to infuse grave and sudden provocation to (A-2), who

was in his youth aged about 20 years of age and having agriculture

as his only source of livelihood. Fifthly, mischief had not ended when

(A-2) had brought the gun , but it continued even when firing was

made as erected mud obstruction was not removed by then, by the

deceased, and hence mischief by the deceased was a continuing act

19

of grave and sudden provocation, as the fear of drying up of paddy

seedlings never ended. Sixthly, that retreating back to his house and

returned to the incident scene after fifteen or twenty minutes, on the

facts and circumstances of the appeal, is no reason to aggravate the

crime committed by the appellants as provocation and mischief was

still continuing and it had not dissipated. At no point of time (A-2)

was relieved of his anguish of destroying of his crops because of the

mischief done by the deceased. Seventhly, only a single shot was

fired without any repetition. Eigthly,(A-1) and another acquitted

accused( his wife) remained bare handed throughout entire episode

and hence it cannot be said to have carried an intention to commit

murder. Ninethly, that there was no preconcert of minds to commit

murder since prior to the occurrence and, at the spur of the moment

also, it never developed and there is lack of evidence of census-id-

idum for committing murder of the deceased. A single shot in the

wake of extreme anguish of destroying of his crops by an

agriculturist youth is not necessarily indicative of possessing an

intention to commit murder.

Our above opinions are based on the evidences that the

prosecution witnesses had deposed that from both the tube-wells,

belonging to P.W.3 as well as (A-1),farmers used to irrigate their

crops using the same water channel since quite a long time. (A-2),

therefore, was not doing something new on the incident date. He

was following the routine course of irrigating his field from the same

aqueduct. It has also been deposed by the witnesses that the

irrigation charges for irrigating the crops from both the tube-wells

were the same. It is also proved, through the prosecution evidences,

that (A-2) was irrigating his field since wee hours of the morning and

20

the incident had occurred after he had already irrigated his field for

more than two hours. Deceased was not present at the spot when

(A-2) had started irrigating his field. He subsequently came to the

spot and just to create mischief and to show criminal force that he

proscribed (A-2) to stop irrigating his crops as he wanted to irrigate

his own agricultural land. Injured deceased did not stop there, he

even blocked the flow of irrigating water channel towards the field of

(A-2). At the time of the incident, (A-2) was less than 20 years of

age and was in a prime youth. There was enough reason for (A-2) to

go into a rage of anger. (A-2) seems to be a poor farmer agriculturist

whereas (A-1) seems to be a moneyed person as his instigation call

was that he will spend money if the deceased is shot at. The

circumstances, which have been stated by the fact witnesses projects

that before the fire was made there must have been verbal

onslaught between both the factions. For a youth to control his fit of

anger in such a situation must have been very difficult. There is

nothing on record to indicate that (A-2) had other members in the

family. What can be said without ambiguity and with certainty that

(A-2) acted in hot haste only to teach a lesson to the deceased with

whom he had no animosity at all prior to the incident. A single shot,

in the facts and circumstances of the case, to us, does not seems to

imbibe an intention to commit murder and therefore, we are of the

opinion of the guilt of the appellant will not travel beyond 304 Part

(II) I.P.C., for which crime alone appellants could be held guilty. At

the beginning of the incident, according to the prosecution case

itself, both the appellants, were bare handed and this also indicates

that he had no intention to commit murder.

There are few other circumstances for our aforesaid conclusions

21

to palliate the crime and those are that prosecution story regarding

actual incident, prior to firing of gunshot and what really happened

remains in a realm of uncertainty and are contradictory. According to

the FIR version, which was reiterated during the trial by the

informant, that (A-2) went back to his house and returned at the

incident scene armed with a gun. This is what was stated by the

deceased also to the I.O., under his interrogatory statement u/s 161

Cr.P.C. but when, the SDM P.W. 7 recorded his dying declaration, the

deceased narrated altogether the different story. According to the

dying declaration, Ext. Ka-15, (A-2) was already carrying a D.B.B.L.

gun along with him from the beginning of the incident which

belonged to Sachindra @ Gyani and it was Shiv Muni Rai son of Jung

Bahadur, who had given (A-2) a cartridge only, which he had filled in

the barrel and had fired. Shiv Muni Rai was neither made an accused

nor was prosecuted. Why this inconsistency and incongruities had

occurred in the prosecution version is not known to us. Thus,

happening before the firing lies in a state of uncertainty and we do

not know what actually transpired.

Lastly, turning towards the quantum of sentence, we find that

the incident had occurred on 29.10.1981 more than three decades

ago at the spur of the moment by the mischief generated by the

deceased himself. At that time (A-1) was 65 years of age whereas

(A-2) was 20 years of age. As of now (A-1) must be 95 years of age

and (A-2) must be 51 years of age. (A-2) must have settled in life. In

such a view, the period undergone between the incident and today

as well as keeping their ages and totality of circumstances, and also

considering that both the appellants had no criminal background or

criminal proclivities to their credit, we are of the opinion that a fine

22

of Rs.40,000/- on (A-1) and 5 years R.I. with fine of Rs.40,000/- and,

in case of default, to undergo one year R.I. to (A-2) u/s 304( II)

I.P.C. with a compensation of Rs. 40000/= to the deceased family

out of fine to assuage their feelings and sentiments will meet the

ends of justice.

In the net result appeal is allowed in part. Conviction of the

appellants under section 302/34 IPC and imposed sentences of life

imprisonment therefor are scored out and instead both the

appellants Swami Nath Rai (A-1) and Sachindra Nath Rai (A-2) are

convicted under section 304( II) I.P.C. and for the said crime,

appellant Swami Nath Rai(A-1) is imposed with a sentence of fine of

Rs. 40,000/-. In case of default in payment of said fine (A-1) shall

serve 1 year R.I. as default sentence. Sachindra Nath Rai (A-2), for

the aforesaid offence u/s 304 (II) I.P.C., is sentenced to 5 years R.I.

with fine of Rs. 40,000/-. In default of payment of fine, he shall

undergo 2 years further R.I. as default sentence.

In case the fine is deposited by both or any of the appellants,

Rs.40,000/- out of it, shall be awarded as compensation to the

deceased family by the learned trial Court, after noticing them. Both

the appellants are allowed a month’s time to deposit the fine

imposed herein above.

Swami Nath Rai (A-1) is on bail. He need not surrender for the

aforesaid period of 1 month. If he fails to deposit the fine within the

permitted period, learned trial Judge will take him into custody and

will send him to jail to serve out the default sentence. It is further

directed that in case appellant Swami Nath Rai (A-1) is found to

have been expired, the above sentence imposed upon him shall not

be executed against him, and this appeal in his respect shall be

23

deemed to have been abated.

Sachindra Nath Rai (A-2) is also on bail. His bail bond and

surety bonds are cancelled and he is directed to be taken into

custody and send to jail forthwith to serve out his sentence imposed

herein above.

Let the copy of this judgment be certified to learned trial Court

for it's intimation and further action.

Dt.14.09.2012

Rk/Arvind/Tamang

24

Hon'ble Vinod Prasad,J.

Hon’ble Pankaj Naqvi, J.

Sri Raghuraj Kishore Mishra, learned Amicus Curiae has rendered

valuable assistance in deciding the appeal, which was pending since last

three decades and, therefore, he is directed to be paid Rs. 8,000/- as his

fees by the office of this Court.

Dt.14.09.2012

Rk/Arvind/Tamang