GAJENDRA SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellant Gajendra Singh has been convicted under Section 302 and sentenced to death as also under Section 307 I.P.C. and sentenced to ten years' rigorous imprisonment. The High Court on appeal has affirmed the conviction and sentence passed on the appellant Gajendra Singh. Accused Raj Bahadur Singh father of the appellant who was convicted by the Sessions Judge under Section 302/34 has been acquitted of that charge but his conviction under Section 323 and sentence for one year's rigorous imprisonment has been affirmed by the High Court. There was the third accused before the Court of Session, namely, Bisharam Singh who has been acquitted because the prosecution produced no evidence against him. The appellant has filed the present appeal by special leave against the order of the High Court affirming the conviction and sentence passed on him.

(2.) Briefly put the prosecution case is that on August 10, 1971 some time about the noon the deceased Badam Singh who was accompanied by his cousin Shyampal Singh found that the accused were grazing their she-buffaloes in his field at Abrewala where Jawar had been grown and the crop was being damaged by the she-buffaloes belonging to the accused. The deceased Badam Singh protested against the highhanded act of the accused in trying to damage his crop which fell on the deaf ears and the accused continued to graze their she-buffaloes in the field in spite of the remonstrance by the deceased. Being fed up with the unwanted conduct of the accused in persisting with the mischief Badam Singh and Shyampal Singh rounded up the she-buffaloes and proceeded to take them to the cattle-pound. The path to the cattle-pound, it appears, passed in front of the house of the accused Raj Bahadur Singh. The prosecution case is that while deceased Badam Singh and Shyampal Singh were passing in front of the house of Raj Bahadur Singh, Raj Bahadur Singh gave a lathi blow on the head of Badam Singh and the appellant Gajendra Singh ran inside the house and brought out a gun. Thereafter Raj Bahadur Singh ordered his son Gajendra Singh to kill Badam Singh and Shyampal Singh, for having had the courage to take the she-buffaloes to the cattle-pound. On his exhortation Gajendra Singh is alleged to have fired twice on Badam Singh and Shyampal Singh causing serious injuries to their person. Attracted by the altercation at the spot, Hari Ram Sukhendra Singh , and Anangpal Singh eye-witnesses reached the scene of offence and witnessed the murderous assault. Sukhendra Singh, the father of P.W. Shyampal Singh and uncle of Badam Singh lodged a written report of the incident at police out-post Amritpur of Police Station Rajeypur, and a case against the accused was registered by the police at 6 P.M. During the incident Smt. Rambeti wife of Raj Bahadur Singh and the mother of the appellant Gajendra Singh, was also found to have received gun-shot injuries and counter report appears to have been lodged at the police out-post Amritpur at 5 P. M. an hour earlier than the F.I.R. lodged by Sukhendra Singh. This counter F.I.R. forms the subject-matter of the cross case which ended in the acquittal of the accused persons in that case, namely, the prosecution party here. After the report was lodged the two injured persons, namely, Badam Singh and Shyampal Singh were sent for medical examination to District Hospital, Fatehgarh, but Badam Singh succumbed to his injuries before he could reach the hospital and died on August 11, 1971. Thereafter the dead body of Badam Singh and the injured Shyampal Singh were taken to the District Hospital, Fatehgarh where Dr. R. P. Chaudhary examined Shayampal Singh and performed autopsy of the deceased Badam Singh. After usual investigations the police submitted chargesheet which ended in the ultimate conviction of the accused as indicated above. The gist of the F.I.R. lodged by Bisram Singh in the counter case forms the main part of defence in this case. It was alleged by the accused that in fact Sukhendra Singh, Nanku, Badam Singh and Shyampal Singh entered the house of Raj Bahadur Singh, hurling filthy abuses on him and chased Raj Bahadur Singh who ran to his house. It was further alleged that Sukhendra Singh and Nanku were armed with Lathis, whereas Badam Singh had a rifle and Shyampal Singh had a double-barrel breach loading gun. It was also alleged that a Single barrel breach loading gun of Virpal Singh son of Bisram singh which was hanging on a peg under the tin shed was picked up by, Shyampal Singh and handed over to Nanku. Smt. Rambeti the other of the appellant Gajendra Singh protested on which Shyampal Singh fired at her which resulted in serious injuries on her person and she fell on the ground. A report of this incident was lodged by Bisram Singh at the police out-post Amritpur at 5 P.M.

(3.) The learned Sessions Judge as well as the High Court of Allahabad after full consideration and detailed discussion of the evidence and circumstances of the case came to the conclusion that the, prosecution case against the accused was fully proved and the High Court accordingly affirmed the conviction and sentences passed on the accused. The High court, however, did not believe the allegations of the prosecution that Raj Bahadur Singh had given the orders to the appellant Gajendra Singh to kill the deceased and accordingly Raj Bahadur Singh was given the benefit of doubt of the charge under Section 302/34 1.P.C. It seems to us that the High Court lured by the attractive, ingenious, daring and dexterous defence taken by the accused proceeded to deal with the defence case even before giving its finding on the truth or otherwise of the prosecution case against the accused. Such an inter-twined approach appears to have provided sufficient material for argument by learned counsel for the appellant that the High Court had made a completely wrong approach to the case put forward by the prosecution in the instant appeal. After going through the judgment of the High Court we are, however, satisfied that the discussion of the defence case before the prosecution case has not resulted in any material prejudice to the accused and therefore although the High Court should have dealt with the prosecution case before touching the defence version, the error committed by the High Court is not of any consequence.