Crl. Appeal No. 1026 of 1982 Putti Singh Vs State of UP HON'BLE YATINDRA SINGH, J HON'BLE SURENDRA SINGH, J.
1. This is an appeal against the judgement of the IX th Additional Sessions Judge,
Kanpur (the ASJ) dated 30.3.1982 in ST No. 388 of 1980; State of UP Vs. Kallo
and others under section 302 IPC.
THE FACTS
2. An incident happened on 2.8.1980 between 11:00-12:00 hours. In this incident,
one Nanaka (the Deceased) was injured. He died in the hospital on 12.8.1980. His
cousin Manhgoo (the Informant) lodged the FIR at 15:10 hours on 2.8.1980.
3. The allegations in the FIR are as follows:
The Informant, Sattideen, Dularey, and the Deceased were at the fields of
the Deceased where rice was being planted.
At about 11:00-12:00 hours, Kallu alias Udaiveer and Putti Singh {Kalloo
and Putti Singh (the Appellant) are referred to as the Accused} came to the
fields with barchhi in their hands.
The Accused asked the Deceased why was he flowing water from his
agricultural field in their agricultural fields.
The Deceased answered that raining water was logged and there was no
other way for the water to escape.
The Appellant said that the Deceased was arguing a lot and he should be
punished.
Kalloo Singh hit the Deceased by barchhi. On which the Deceased fell.
When the other villagers namely Ram Singh and Makhan, who were in their
fields, challanged the Accused, they ran away.
4. The dying declaration of the Deceased was recorded by the SDM at 16:10 hours
on 2.8.1980 (Ex K-2). His statement under section 161 was recorded. It was also
proved as a dying declaration (Ex Ka-12).
5. The Deceased died on 12.8.1980 and his post-mortem was conducted on
13.8.1980.
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6. The police investigated the case and submitted the charge sheet. The case was
committed to the session’s court and was registered ST No. 388 of 1980.
7. The ASJ framed charge on 25.8.1981. Both the Accused were charged under
section 307 read with section 34 IPC. Subsequently, the prosecution filed an
application to change the charge. It was allowed on 12.1.1982 and the charge was
altered to under section 302 read with section 34 IPC.
8. Among others, the prosecution filed the following documents:
Copy of the FIR dated 2.8.1980 (Ex Ka-1);
Dying declaration of Nanka before the SDM dated 2.8.1980 (Ex Ka-21);
Fitness certificate dated 2.8.1980 given by the Medical Officer (Ex Ka-15);
Injury report of the Deceased dated 2.8.1980 (Ex Ka-14);
Post Mortem examination report of the Deceased dated 13.8.1980 (Ex Ka-
17);
Affidavit of Sri Srikant Tripathi, constable dated 16.3.1982 (Ex Ka-21): he
had carried the dead body for post-mortem;
Statement of Nanka under section 161 CrPC datd 5.8.1980 that was proved
as dying declaration (Ex Ka-12);
Site plan with the Index dated 3.8.1980 (Ex Ka-2);
9. The prosecution examined the following witnesses.
Mahngoo (PW-1): Informant, cousin of the Deceased, and an eye witness;
Satiram (PW-2): Nephew of the Deceased and an eye witness;
Ram Singh (PW-3): Independent eye witness;
Ajab Singh (PW-4): Investigation Officer (IO);
Dr. Surendra Singh (PW-5): Doctor, examined the injuries and also gave
certificate of fitness before recording dying declaration;
Dr. PN Mathur (PW-6): Doctor, conducted the post-mortem;
Satyanarain Mishra (PW-7): Head constable, prepared the chick;
Jagdish Chandra Adarsh (PW-8): SDM recorded the dying declaration.
10. The statement of Accused under section 313 was recorded on 25.3.1982. They
denied their involvement in the incident and said that they are being involved in the
case due to enmity.
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11. Among others, the Accused filed the map of the agricultural fields (Ex Kha-1)
and also examined the following witnesses.
Sri Har Pratap Singh (DW-1): Deposed about enmity with Ram Singh (PW-
3);
Sri Ramshankar Srivastava (DW-2): Lekhpal, proved the map.
12. The ASJ by his judgment dated 30.3.1982 convicted the Accused under
section 302 read with section 34 IPC and sentenced them to imprisonment for life.
13. The Accused filed different appeals. Kallo Singh filed Criminal Appeal No. 1033
of 1982. He died during pendency of the appeal. His appeal was abated on
11.7.2007. Putti Singh (the Appellant) filed Criminal Appeal No. 1026 of 1982. It
survives for determination.
POINTS FOR DETERMINATION
14. We have heard Sri Ashok Kumar Pandey as a friend of the court for the
Appellant and Sri AK Dwivedi, AGA for the State. The following points arise for
determination.
(i) Whether the Appellant was present and participated in the incident.
(ii) In case the Appellant is guilty then what offence has he committed.
(iii) In case the answer to the aforesaid question is in affirmative then what
punishment should be awarded to him.
1ST POINT: APPELLANT PARTICIPATED IN THE INCIDENT
15. In order to prove its case, the prosecution examined eight witnesses. Out of
these eight, three namely the Informant (PW-1), Satiram (PW-2) and Ram Singh
(PW-3) are witnesses of facts. They are eyewitnesses. The rest of them are formal
witnesses.
16. The eyewitnesses namely the Informant (PW-1), Satiram (PW-2) and Ram
Singh (PW-3) have deposed that:
There was altercation between the Deceased and the Accused for flowing
water through their fields;
The Appellant had exhorted to hit the Deceased;
Kalloo Singh hit the Deceased with barchhi.
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17. There is no contradiction in their statement. There is nothing to disbelieve
them.
18. Among others, the prosecution has also produced two dying declarations, one
was recorded by the SDM (Ex Ka-21) and the other was the statement recorded by
the IO and was proved as a dying declaration (Ex Ka-12).
19. Dr. Surendra Singh (PW-5) had initially examined the injuries of the Deceased.
He has recorded the following injuries in the injury report (Ex Ka-14).
Penetrating wound in shape 2 cm x 1 cm x visra deep over left upper
abdomen epigastic region just at the sight of spleen. Fresh bleeding present
margins are clear out. Injury is kept under observation margins are inverted.
Penetrating wound in shape 2 cm x 1 cm x viserdeep over left abdomen
about 5 cm lateral umblious. Fresh bleeding present injury is kept under
observation Margins are clear out margins are inverted.
Penetrating wound 1/2 cm x 1/4 cm (wound of exit of injury no. 2) over the
left side of back just above the illac crest 2 cm from vertebral column,
margins are everted fresh blood chop present. Injury is kept under
observation.
20. Dr. Surendera Singh (PW-5) had given fitness certificate regarding mental
condition of the Deceased for recording dying declaration by the SDM. He has also
deposed that the Deceased was in a fit condition to make dying declaration.
21. In our opinion, the presence of Appellant and the role assigned to him of
exhortation is proved beyond reasonable doubts.
2ND POINT: GUILTY UNDER SECTION 304 PART- II IPC.
22. There is no evidence on the record that there was any prior enmity between the
parties. In the statement before the IO (that was proved as the dying declaration), it
is recorded that there was no enmity between the two.
23. The eyewitnesses (PW-1 to PW-3) have deposed that the altercations started
because the Deceased was flowing rainy water from his fields into the fields of the
Accused. There was no prior enmity. It appears it was on the spur of the moment.
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24. Dr. Surendra Singh (PW-5) and Dr. PN Mathur (PW-6) have deposed that the
injuries were sufficient to cause the death in the normal course. However, there is
no evidence of pre mediation to commit murder. In fact, there in nothing on record
to show that there was any intention on the part of the accused to commit the
murder. It appears that the incident happened in the sudden fight in the heat of
passion without taking undue advantage. There is nothing to show that they acted
in the cruel manner.
25. In our opinion, the Appellant is guilty under section 304 part II read with section
34 IPC rather than 302 IPC read with section 34 IPC.
3rd POINT: PUNISHMENT
26. The Appellant also had barchhi in his hands, yet he never hit the Deceased by
barchhi. The only role assigned to the Appellant is of exhortation and the injuries
were caused by Kalloo the other accused.
27. There is also nothing to show that the Appellant ever intended that the death
be caused to the Deceased. There was also no pre meditation to commit the crime.
Considering the entire evidence on record, in our opinion, the Appellant be
awarded 3 years’ rigorous imprisonment.
CONCLUSIONS
28. Our conclusions are as follows:
(i) The appellant is acquitted under section 302 read with section 34 IPC. He is
convicted under section 304 part-II read with section 34 IPC. His conviction is
altered accordingly.
(ii) The Appellant is awarded 3 years’ rigorous imprisonment.
29. In view of our conclusions, the appeal is partly allowed. The conviction and
sentence of the Appellant dated 30.3.1982 in Session Trial No. 388 of 1980 passed
by IXth Additional Sessions Judge, Kanpur (the ASJ) is altered. The Appellant is on
bail. His bail is cancelled. He will be taken into custody to serve out the remaining
part of his sentence.
Date: 1.7.2010
SKS
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Crl. Appeal No. 1026 of 1982
Putti Singh Vs State of UP
HON’BLE YATINDRA SINGH, J
HON’BLE SURENDRA SINGH, J.
We have heard Sri Ashok Kumar Pandey as friend of the court for the appellant
and Sri AK Dwivedi, AGA for the State. The appeal is partly allowed.
For detailed orders, see our orders of date passed on separate sheet of papers
attached with the memo of appeal.
Sri Ashok Kumar Pandey will be entitled to one day fees alogwith expenses from
the High Court Legal Services Committee, Allahabad.
Date: 1.7.2010
SKS