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PETITIONER: DEENA @ DEEN DAYAL

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT11/08/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SARKARIA, RANJIT SINGH

CITATION:  1978 AIR 1605            1979 SCR  (1) 107  1978 SCC  (3) 540

ACT:      Indian Penal  Code, S.  302 - Murder by convict serving life sentence  for offence  u/s 302  I.P.C., while  on bail- Imposition of capital sentence confirmed.

HEADNOTE:      The appellant  was convicted  for having  committed  an offence u/s  302 I.P.C.,  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  I.P.C. 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]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: 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. 18/74.      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

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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  a.m. the  appellant Deena and  four other  came to  the Chaupal of Nainsukh. The dogs began to bark as a result of which Hari Singh (P.W. 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 Ex. Ka-4 was handed over at Police Station Kotwali at  2.05 a.m. On 21st June, 1971. The Police officer took up  the investigation  and reached  the scene  at about 1.30 p.m.  He found  the dead  body of Nainsukh and held the inquest, prepared  the site  plan and recovered the material objects. Nihal  Singh, P.W.  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  (P.W. 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  P.W.  1  the  prosecution examined P  W. 2  Nihal Singh,  P.W. 3 Panna Lal who saw the accused running  away after  the incident.  Reliance was not placed by  the courts below on the evidence of P.Ws 2 and 3. The conviction  therefore solely  rests on  the testimony of eye-witness Hari Singh, P.W. ].      Hari Singh  P.W. 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 P.W.  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

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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 P.W.  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  P.W. 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 P.W.  1 identifying the  appellant Deena.  It is  common ground that the witness  knew Deena  very well.  The  lantern  that  was burning was  produced by P.W. 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 P.W. 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. P.W.  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  P.W.  1 because of  the contradiction  in the  testimony of  C.W.  1 Chandra Pal.  We are  inclined to  agree with the High Court that Chandra  Pal was won over by the defence. We also agree

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with the  High Court  and find  that the appellant Deena was guilty of an offence under section 302 I.P.C. 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 I.P.C. the  Sessions Court inflicted the extreme penalty. As a charge  under section 303 I.P.C. 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 I.P.C. 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. M.R.                                       Appeal dismissed. 111