Case: KALI PRASAD SINGH Vs. THE STATE OF UTTAR PRADESH

3. Short facts of the case are that the first informant- Rajendra Singh, resident of Baijnath, Police Station Ramgarh, District Bhabhua, Bihar was preparing for civil services at Allahabad and his brothers Surendra Singh and Abhinav Rathore were residing at Varanasi. A week prior to the incident, the first informant had come to Varanasi from Allahabad. His younger brother Surendra Singh-deceased was working with Topkan Opticals Rathyatra. On 18.02.2000 at about 9 p.m., when his brother did not return from work place, Rajendra Singh went to look for him towards Mahavir temple. At about 9.30 p.m. Surendra Singh met him near Mahavir temple and they started walking towards their house. The deceased was walking 5-6 paces behind the complainant along with his bicycle. At about 10 p.m., near the house of Pramod Dubey, the accused- Kali Prasad @ Paintol and Santosh Kumar Singh, armed with country made pistol, came from the side lane, caught hold of his brother-Surendra Singh and fired at his neck and temple (Kanpati). Hearing the shrieks of the complainant, constable Nepal Singh (PW-3) who also resided in the same locality came out of house and challenged the accused, who ran away. Surendra Singh died instantaneously. A number of close by residents arrived at the scene. The complainant was able to recognize the accused in the light of electric bulb. Ram Narayan was alleged to be the master-mind behind the occurrence who had conspired with the accused to eliminate the deceased.4. The prosecution examined as many as eight witnesses. Rajendra Singh was the only eye witness and was examined as PW-1, Sanjay Kumar Rai was examined as PW-2, Constable Nepal Singh as PW-3, Constable Uma Shanker Singh as PW-4, SI R.P. Rai who performed the inquest report was examined as PW-5, Inspector M.S. Chaudhary was examined as PW-6, SI Ashok Kumar Pandey who investigated the matter under Section 25 of the Arms Act was examined as PW-7 and J.P. Tripathi was examined as PW-8.5. Recovery of one country made pistol of 12 bore and 12 bore cartridge was made on 22.03.2000 by the police party led by Ashok Kumar Pandey along with SI Vinod Dubey. Constable Raja Ram Ranjan and constable Sanjay Kumar Ojha received information that one of the accused involved in the murder of Surendra Singh was present in the court campus. He was arrested at 12.10 p.m. and unlicensed arm and cartridge were recovered.6. The Sessions Court vide judgment and order dated 29.01.2002 convicted both the accused under Section 302 IPC and awarded life imprisonment along with a fine of Rs.5,000/- each. In case of default of deposit of fine amount, they were directed to further undergo six months? imprisonment each. Accused Kali Prasad was acquitted from the charges framed under Section 25 of the Arms Act.7. The High Court vide judgment and order dated 09.10.2009, dismissed the appeal(s) of the appellants and upheld the conviction and sentence. Hence the appeals.

Reasoning:
We have gone through the entire deposition anxiously with the help of learned senior counsel for the appellants. We find that his version is quite truthful. He has clearly stated that one week before the incident he had come from Allahabad to Varanasi. He went out strolling to search for his brother and when he reached near Mahavir temple he met his brother Surendra Singh and they both started walking towards home. While they were returning back, he was 5-6 paces ahead of Surendra, his brother. When they reached in front of the house of Pramod Dubey at about 10 p.m. Kali Prasad and Santosh appeared from the Western side street. Both of them were having pistols in their hands. They caught his brother Surendra and fired at his temple and neck. His brother fell down. Thereafter on hearing the hue and cry Constable Nepal Singh came out of the house. He challenged the accused persons and ran towards them to catch them but the accused persons fled away towards north side and disappeared. His brother died on the spot. He went to his house and immediately, reduced the report to writing, then went to the police station and lodged the report in the night itself. In the cross examination, it has been deposed that the reason for killing was that there was enmity between them and the accused Kali Prasad had a doubt that deceased was also involved in murder of his brother. On further cross examination, he has clearly stated that there was a case pending regarding beating incident between the parties also under Section 107, IPC. He has also stated that Pramod Dubey and several other persons came out of their houses after hearing hue and cry. There is nothing brought in the cross examination as to doubt the version given by the witness that is medically corroborated also and substantially corroborated by the version of Nepal Singh (PW-3), who came to the spot immediately after gun shots were fired.16. When we consider the statement of Nepal Singh (PW-3), he has clearly stated that he knew complainant Rajendra Singh. He used to live in the house adjacent to the house where he lived. Rajendra Singh was studying at Allahabad but occasionally he used to stay at Varanasi. The incident took place at about 10 p.m., on 18.2.2000. He was in his house, when he distinctly heard the sound of gun fire, he came out shouting and saw Rajendra Singh (PW-1) was running towards his house and on seeing him complainant, came to him and started narrating the incident. He saw two people running away to the North side. Body was lying in the pool of blood in front of the house of Pramod Dubey. A bicycle was also lying near the body. Thus, he has corroborated version of complainant. He has narrated about the presence of Rajendra Singh at the spot.17.Coming to the question whether there was any source of light,we find that the height of the house of Pramod Dubey was 2-1/2 feet whereas the height of boundary wall of plot of Dr. S.N. Singh was 6-8 feet as is apparent from the depositions of witnesses. The height of house boundary wall of Dr. S.N. Singh is hardly material for the purpose of the case. The fact remains that there was source of light from the house of Pramod Dubey and boundary wall was stated to be 2-1/2 feet which could not have obstructed the light as suggested in cross examination. Thus, as to the visibility and source of light, we have no doubt as to the version ofperusal of the first intimation report dated 18.02.2000 and its receipt indicates that it has been dispatched on 19.2.2000 as it had been sent by post to the Magistrate and received on 21.2.2000. In the circumstances of the case, it cannot be said to be a case of belated intimation particularly, when it was sent by post. In the facts of the case, it cannot be said that the shape has been given to the story later on or that there was delay in receipt of the intimation of the report by the Magistrate. The submission on behalf of accused has no legs to stand in the aforesaid factual matrix of the case.19. Coming to the submission with respect to the non- presence of the blackening powder, it appears that gun shots have been fired from a close range but exact distance has not been put to Rajendra Singh(PW-1) who is eye witness of the incident. It is apparent and was not disputed rightly that considering the nature of injuries the gun shots were fired from a close range; what was the exact distance has not been brought out. Apart from that, since the deceased was wearing a hooded Jacket, obviously the absence of blackening on the skin could not be found. In the case of hooded Jacket, there may be blackening of the Jacket portion only but at the same time the skin may not have marks. That explains the version of the doctor that no blackening marks were found on injuries Nos.1 to 3.20. Thus, we find that the prosecution has proved case beyond reasonable doubt and the High Court and trial Court have rightly convicted the appellants for offence under Section 302, IPC.