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2004 Supreme(All) 2376
IN THE HIGH COURT OF ALLAHABAD
M. C. JAIN, K. K. MISRA
PUSHPENDRA SINGH - Appellant
Versus
STATE OF U. P. - Respondents
Criminal Appeal 313 Of 1981
Decided On : 12/22/2004
Apul Mishra, J.N.CHATURVEDI, K.P.SHUKLA, P.N.MISHRA, S.K.Chaturvedi, S.S.Chauhan, V.K.SRIVASTAVA
The dying declaration of the deceased was crucial in establishing the guilt of the appellant and determining the nature of the offense committed.
Headnote:
Dying Declaration - Murder - Section 302, Section 379, I. P. C. - Summary
Fact of the Case:
The appellant, Pushpendra Singh, was convicted under Sections 302 and 379, I. P. C. for shooting and killing Netrapal Singh. The incident took place at a quarter in Agra, where Netrapal Singh was staying with Krishna Kumari, the appellant's sister. The appellant denied the charges, claiming false implication by Krishna Kumari due to personal animosity.
Finding of the Court:
The trial court found the appellant guilty based on two dying declarations of the deceased, which were consistent in accusing the appellant of shooting Netrapal Singh. The court rejected the defense of false implication and denial.
Issues: The main issue was whether the appellant was guilty of murder or culpable homicide not amounting to murder, based on the circumstances of the shooting and the dying declarations.
Ratio Decidendi: The court relied on the dying declarations of the deceased, which were considered admissible under Section 32 of the Indian Evidence Act. The court found that the appellant's actions were provoked by the obscene behavior of the deceased, leading to a finding of culpable homicide not amounting to murder.
Final Decision: The appellant's conviction under Section 302, I. P. C. was converted to Part I of Section 304, I. P. C., and the conviction under Section 379, I. P. C. was maintained. The appellant was sentenced to ten years rigorous imprisonment for culpable homicide and two years rigorous imprisonment for theft, to run concurrently.
( 1 ) THE appellant is pushpendra Singh who has preferred this appeal against the judgment and order dated 31 -1 -1981 passed by Sri M. Wahajuddin, the then Sessions Judge, Agra in Sessions Trial no. 152 of 1980. He has been convicted under Sections 302 and 379,i. P. C. with sentence of life imprisonment for the former and two years rigorous imprisonment for the latter. Both the sentences have been ordered to run concurrently.
( 2 ) THE background facts leading to the trial may be set forth insofar as they are necessary for the decision of the appeal. The incident took place on 7-12-1979 at about 12 O Clock in the noon at A Block Quarter no. 759, Kamla Nagar, P. S. New Agra, District Agra. The F. I. R. was lodged the same day at 1 p. m. by Head Constable Raghunath singh. The deceased was one Netrapal singh. He was then posted as S. O. of P. S. Chobia in District Etawah and had come to agra, staying in the aforesaid quarter which was in occupation of Smt. Krishna Kumari wife of Mahipal Singh, Clerk Constable. At that time Kusum PW-5 daughter of Netrapal singh was also residing with Smt. Krishna kumari receiving education. The accused-appellant Pushpendra Singh, too, was receiving education at Agra and was residing there, being the brother of Smt. Krishna kumari. According to the prosecution, this quarter had two rooms. After taking meals in the courtyard, Netrapal Singh, S. I. was lying on the cot in the second room in the inner side while his revolver was lying in the outer room under the pillow. At about 12 O clock in the noon, taking out the revolver, pushpendra Singh-accused fired a number of shots injuring Netrapal Singh. He then ran away through the main door with the revolver. Smt. Krishna Kumari took Netrapal singh, S. I. to S. N. Hospital, Agra where he was admitted and treated. On that very day, sri Shasi Kant Sharma, Addl. City Magistrate, PW-10 recorded the dying declaration of Netrapal Singh. The Investigating Officer pawan Kumar PW-6 also recorded the statement of Netrapal Singh the same day under section 161, Cr. P. C. which was relied upon as the other dying declaration of the deceased. The prosecution also relied upon verbal dying declaration of Netrapal Singh alleged to have been made before Raghunath singh, S. I. (the then Head Constable at police outpost Kamla Nagar of New Agra) who had lodged the F. I. R. at P. S. New Agra at 1. 00 p. m. that very day. Netrapal Singh ultimately died on 21-1-1980. The case was first registered under Sections 307 and 379, i. P. C. but was later on converted under Section 302 and 379, I. P. C. on the death of netrapal Singh.
( 3 ) A search for the accused continued from 7-12-1979 to 25-12-1979 but he could not be apprehended. He appeared in the court of Chief Judicial Magistrate, Agra on 16-1-1980.
( 4 ) THE defence was of denial and false implication. The accused denied that he was residing with Smt. Krishna Kumari at her quarter aforesaid. He maintained that Smt. Krishna Kumari was inimical to him and she got him falsely implicated, persuading netrapal Singh to give dying declaration against him. He denied to have committed the murder of Netrapal Singh or to have stolen his revolver. According to him, Smt. Krishna Kumari was a lady of bad character. For this reason, her family members had deserted and abandoned her. She was annoyed of him on this score.
( 5 ) THE prosecution in all examined. ten witnesses in the case. The accused also examined one Smt. Mithilesh Saxena in defence. It should also be stated here that netrapal Singh was admitted in the emergency ward of S. N. Medical College, Agra at 1 p. m. on 7-12-1979 by Krishna Kumari and dr. J. K. Kalra PW-3 had then examined him. His general condition was grave. No abnormality was detected in heart. He also made a note that the injuries were hurriedly noted due to the severe condition of the patient. He found the following injuries on his person :1. Firearm wound 1 cm diameter circular on outer side of the
