N Criminal Appeal No 239 of 1975
Appeal by special leave from the Judgment and order dated 17 10 1974 of the Allahabad High Court in Cr A No 1013 of 1974 and Reference No 1874
Badri Das Sharma amicus curiae for the appellant
O P Rana for the respondent
The Judgment of the Court was delivered by KAILASAM J
This appeal is preferred by Deena alias Din Dayal by special leave against the judgment of the High Court convicting and sentencing him
The case for the prosecution is that on the night of the 20th and 21st June 1971 the deceased Nainsukh his brother Hari Singh his distant uncle Tika Ram Chandra Pal daughter s son of Tika Ram and Chokhey slept on a platform of the Chaupal in village Jar
According to the prosecution a lantern was hanging on the platform from the branch of a Neem tree
In the morning at about 4 am the appellant Deena and four other came to the Chaupal of Nainsukh
The dogs began to bark as a result of which Hari Singh PW 1  and others were 108 awakened
Deena and his associates carried pistol and electric torches Deena challenged Nainsukh saying that he would be taught a lesson for appearing as a witness and fired his pistol striking Nainsukh on his head
Hari Singh and Chandra Pal shouted for help
They were also injured
After hearing the alarm Nihal Singh Panna Lal and others reached the place of the incident but before their arrival the accused had made good their escape
The First Information Report was written by Bharat Singh on the dictation of Hari Singh
The injured witness Hari Singh and Chandra Pal then went to Etah Police Station where the report exhibit Ka 4 was handed over at Police Station Kotwali at 205 am
On 21st June 1971
The Police officer took up the investigation and reached the scene at about 130 pm
He found the dead body of Nainsukh and held the inquest prepared the site plan and recovered the material objects
Nihal Singh PW 2 produced the lantern before the Investigating officer which was burning at the time the occurrence took place
shell of used cartridge was also recovered from the scene
Dr N K Mittal PW 13 the Medical officer of Etah
found two injuries caused by fire arm on Chandra Pal and one injury on Hari Singh
The autopsy on the body of Nainsukh was conducted by Dr Prasad on 21st June 971
He found two gun shot injuries one on the right side of head above the right ear and the other was non traumatic swelling on the back surface of the right hand
On internal examination it was found that the surface of the scalp of the right side was congested under injury No 1
The doctor found a fissured fracture of the right parietal bone vertically placed from the suture line to eye brow
The doctor was of the opinion that the injuries were sufficient in the ordinary course of nature to cause death
Apart from the eye witness PW 1 the prosecution examined P W 2 Nihal Singh PW 3 Panna Lal who saw the accused running away after the incident
Reliance was not placed by the courts below on the evidence of PWs 2 and 3
The conviction therefore solely rests on the testimony of eye witness Hari Singh PW 
Hari Singh PW 1 has spoken of the motive
About 4 or 6 years prior to the occurrence one Ram Chandra was murdered
Deena was one of the accused in the case
Deena was found guilty of murder and sentenced to imprisonment for life
In that case the deceased Nainsukh gave evidence against Deena as an eye witness
About two months before the murder of Nainsukh Deena was released on hail and it was rumoured that Deena was saying that now when he had 109 come out of jail he would teach a lesson to Nainsukh
Nainsukh Hari Singh and their relations took the threat seriously and were living cautiously
On the date of the occurrence according to PW 1 a lantern was burning and at about 4 o clock in the morning he was awakened by the barking of the dogs
Four or five other persons came along with Deena
Deena and one of his companions had torches in their hands and they came flashing their torches
Deena and the other accused came at the Chaupal from the staircase on the eastern side
After coming over the Chabutra of the Chaupal the accused stated Nainsukh beware now I will teach you the lesson for giving the evidence
While flashing the torches on the deceased Deena fired at Nainsukh aiming towards his head
The shot hit Nainsukh on the head
The other shot fired by Deena injured Chandra Pal and the third shot hit the prosecution witness Hari Singh
Hari Singh received an injury on his right shoulder
The plea that was made by the defence on the evidence of PW 1 was that it cannot be safely relied on
It was submitted that the other injured witness Chandra Pal who was examined as a court witness did not fully support the evidence of the prosecution
We have gone through the testimony of PW 1 and witness Chandra Pal and we do not see any material contradiction
The enmity between Deena on the one side and the deceased and his family on the other side is not seriously contested
The deceased Nainsukh gave evidence against Deena in the murder case in which Ram Chandra was killed
When Deena was released on bail he wanted to teach a lesson to the witness Nainsukh who had appeared against him
This resulted in Deena shooting the deceased to death
The motive as alleged by the prosecution stands amply proved
So far as the scene of the offence is concerned it was not seriously disputed before the High Court
It was submitted before us that no blood stains were scrapped from the scene which circumstance would show that the occurrence took place at some other place
It is seen that there was a bundle of straw and a cot at the scene
The strings of the cot and as well as the straws were stained with blood
The Serologist had found human blood on the straws
We do not find any difficultly in accepting the finding of the High Court that the occurrence took place at the site alleged by the prosecution
The only question that requires consideration is whether there was sufficient light at the scene of occurrence to enable the witness to recognise the accused
Because of the motive it is highly probable that Nainsukh Hari Singh and the family slept with the light burning on the platform which was the scene of offence
Three shots were 110 fired and there could have been no difficulty in PW 1 identifying the appellant Deena
It is common ground that the witness knew Deena very well
The lantern that was burning was produced by PW 2 Nihal Singh as soon as the Investigating officer came to the scene of occurrence
The witness was sleeping to the south of the deceased person at a distance of few feet and we do not think there could have been any difficulty in identifying the assailant
The High Court has fully considered the question as to whether PW 1 would have identified the assailant and has come to the conclusion that the prosecution has established that the lantern was burning and the assailants used torches which enabled the recognition of the accused at the time of the incident
PW 1 Hari Singh is a natural witness and his presence cannot be disputed as he had sustained a gun shot injury
He had no particular motive for falsely implicating Deena the accused
The court witness Chandra Pal did not fully support the prosecution except that the incident took place at the chaupal as alleged by the prosecution
But we do not feel any justification for rejecting the testimony of PW 1 because of the contradiction in the testimony of CW 1 Chandra Pal
We are inclined to agree with the High Court that Chandra Pal was won over by the defence
We also agree with the High Court and find that the appellant Deena was guilty of an offence under section 302 IPC in causing the death of Nainsukh
The High Court confirmed the extreme penalty of law imposed by the Sessions Court
The Sessions Court in imposing the death sentence found that the appellant is a desperate character and that while he was on bail in Rare Chandra murder case he committed the murder of Nainsukh one of the prosecution witnesses in Ram Chandra murder case
As the offence was committed by a person under a sentence of imprisonment for life for an offence under section 302 IPC the Sessions Court inflicted the extreme penalty
As a charge under section 303 IPC was not framed and as the parties are not able to tell us the result of the appeal filed by Deena in Ram Chandra s case we refrain from invoking the provisions of section 303 IPC
Regarding the sentence after giving our serious and anxious consideration we find ourselves unable to come to any different conclusion from that arrived at by the trial Judge and the High Court
The offence was committed after deliberate planning in the night when the victim was sleeping
It was for the purpose of teaching a lesson to a witness who gave evidence against the accused
We do not see any extenuating circumstance
We confirm the sentence of death and dismiss this appeal
MR Appeal dismissed


Summary:
The appellant was convicted for having committed an offence us 302 IPC and was serving a sentence of imprisonment for life
He was released on bail
and during that period
committed the murder of a prosecution witness in the earlier murder case
The Sessions Court found him guilty and imposed the sentence of death on him
The sentence was confirmed by the High Court in appeal 
Dismissing the appeal the Court  HELD The murder was committed by a person under a sentence of imprisonment for life for an offence under section 302 IPC while he was on bail
The offence was committed for the purpose of teaching a lesson to a witness who gave evidence against him in the earlier murder case and was committed after deliberate planning in the night when the victim was sleeping
We confirm the sentence of death
110F H