KIRPAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) This appeal, by special leave, is directed against judgment dated July 11, 2005, rendered by the High Court of Judicature at Allahabad in Criminal Appeal No. 2402 of 1985 by which the conviction of the appellant recorded under Section 302 IPC and imposition of sentence of life imprisonment on him by learned V Additional Sessions Judge, Moradabad in ST No. 622 of 1983, is confirmed

(2.) The facts emerging from the record of the case are as under: Deceased Ram Kumar Singh was resident of village Dudaila, District Muradabad. Some six months prior to the incident in question, some dispute had taken place between Ram Kumar Singh who lost his life in the incident and Kallu Singh, i.e. original accused No. 3 over the question of digging and lifting of the earth from the land of accused No. 3 for the purpose of raising of level of a village pathway which was decided to be constructed by village people at a Shramdan Yojna held in the village. Ever since the said dispute, the parties were not on the talking terms with each other. On May 30, 1983 at about 2.00 pm, some quarrel had taken place between the grandsons of original accused No. 3, i.e., Kallu Singh and children of Ram Kumar Singh. The appellant, i.e., Kirpal Singh who was original accused No. 1, Vijay Pal Singh, who was original accused No. 2 and Devender Kumar, who was original accused No. 4, are sons of original accused No. 3, i.e., Kallu Singh. Ram Kumar Singh went to the house of original accused No. 3, i.e., Kallu Singh for getting the quarrel settled but Kallu Singh and his sons not only abused him but were found to be ready to assault him. At that point of time Ram Swarup and others, who were present there, intervened. At about 7.00 pm on the same day, Ram Kumar Singh, his wife Mrs. Jishna and his son Rupender Kumar were returning home from the jungle. Ram Kumar Singh was slightly ahead of his wife and son. Whey they reached near the house of the accused, who were standing in front of their house, Kallu Singh is said to have exhorted his sons to kill Ram Kumar Singh and finish the dispute for ever, whereupon the appellant fired a shot from his gun at Ram Kumar Singh which hit his chest. On sustaining the gunshot injury, Ram Kumar Singh tumbled down on the road. On hearing the cries of Mrs. Jishna, wife of Ram Kumar Singh and noise of the gun shot, Hari Raj Singh, Rattu Singh and others reached the place of incident. Another shot at Ram Kumar Singh was fired by original accused No. 2, i.e., Vijay Pal Singh from his country made pistol, which hit Mrs. Shanti Devi, wife of Nathu Singh. As the people gathered at the place of incident, Kallu Singh and his sons made their escape good. Ram Kumar Singh, who had sustained fire arm injuries, was removed to Government Hospital, Kanth in a tractor, which was arranged by his wife Mrs. Jishna. Injured Ram Kumar Singh succumbed to his injuries at the hospital and was declared dead by the Medical Officer at about 10.15 pm. Mrs. Jishna thereafter got a report scribed through one Anand Kumar in the hospital premises and lodged the same at the police outpost Kanth, at 10.50 pm. On the basis of the First Information Report, offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code were registered against the four accused. After necessary investigation, charge-sheet was submitted in the court of learned Chief Judicial Magistrate, Moradabad. As the offences punishable under Sections 302 and 307 are exclusively triable by a court of Sessions, the case was committed to the Court of learned V Additional Sessions Judge, Moradabad for trial.

(3.) The learned Judge framed charge against the appellant under Section 302 of Indian Penal Code whereas other accused were charged under Section 302 read with Section 34 of Indian Penal Code. All the four accused, including the appellant, were also charged under Section 307 read with Section 34 of the Indian Penal Code. The Charge was read over and explained to the accused, who pleaded not guilty to the same and claimed to be tried. The prosecution, therefore, examined witnesses and also produced documentary evidence in support of its case against the appellant and others. After recording of evidence of prosecution witness was over, the learned Judge explained to the accused the circumstances appearing against them in the evidence of prosecution witnesses and recorded their further statements as required by Section 313 of the Code of Criminal Procedure. In the further statement the case of the appellant and others was that they were implicated falsely -in the case due to enmity. On behalf of the accused witness Pooran Singh was examined as DW-1, whereas Mr. Harish Chander, a fire arm dealer, was examined as DW-2 and Mr. Nihal Chand, arms clerk, was examined as DW-3.