#### •
107
DEENA @ DEEN DAY AL
_v ._
STATE OF UTTAR PRADESH
_August_ 11, 1978
[R. S. SARKARIA AND P. S. KAILASAM, JJ.]
_**Indian Penal Code,**_ **S.** _**302-Murder**_ _**by convict serving life**_ _**sentence**_ _**for**_
_**offence**_ _**u/s**_ **302** _**I.P.C.,**_ _**while on bail-lnzposition**_ _**of**_ _**capital sentence confirmed.**_
**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** **witriess** **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** **impri-**
**sonment for life for an offence under section 302 I.P.C. while he was on** **b1iil.**
**The offence was rommitted for the purpose** **of** **teaching a lesson to a witness**
**who gave evidence against him in** **the** **earlier** **murder** **case** **and** **was** **committed**
**after** **delibera.t:e** **planning,** **in** **the** **night** **when** **the** **victim** **was** **sleeping.** **We**
confirm the sentence of death. [110F-HJ
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.
_0. P._ _Rana_ for the respondent.
The Judgment of the Court was delivered by
KAILA SAM J .-This appeal is preferred by Deena _alias_ Din Dayal
by ~pecial 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 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
**A**
**B**
##### **c**
**D**
**E**
**F**
G
**H**
A
B
##### c
D
E
F
108 SUPREME COURT REPORTS [1979] l S.C.R.
awakened. Deena and his associates carried pistol and electric
torches. Deena challenged Nainsukh saying' that he would be tauglit
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 2.0S 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 N ainsukh 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 QCcnrrence took place. A
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, 1971. He found two gun shot injuries,
one on the right side of head above the rigl;lt ear and the other was
non traumatic swelling on the back surface of the right hand. On
internal examination it wa8 found that the,surface of the scalp of the
right side was congested under injury No. l. 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 vpinion that the
injuries were sufficient in the ordinary course of natnre 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 conrts below
on the evidence of P.Ws 2 and 3. The conviction therefore solely
G rests on the testimony of eye-witness Hari Singh, P.W. I.
Hari Singh P.W. 1 has spoken of the motive. About 4 or 6 years
iJrior to the occurrence one Ram Chandra was murdered. Deena was
one ol the accused in the case. Deena was found guilty of murder
and sentenced to imprisonment for life. In that case the deceased
H Nainsukh gave evidence against Deena as,an eye-witness. About two
months before the murder of Nainsukh, Deena was released on bail
and it was rumoured that Deena was saying that now when he had
### •
###### •
### .. )
DEENA _v._ U.P. _(Kailasam,_ J.) 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. l, 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
anc\ the other accused came,at the Chaupal from the staircase on the
eastern side. After coming over the Chabutra of the Chaupal the
accu.~ed 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 witne'S 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 D
not fuliy 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 E
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 F
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 G
difficulty in accepting the finding of the High Court that the occurrence
took place at the site alleged by th~ 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 ot the motive, it is highly probable H
that N ainsukh, Hari Singh and the family slept with the light burning
on the platform which was the scene of offence. Three shots were
B
##### c
A
B
##### c
110 SUPREME COURT REPORTS [1979] I S.C.R.
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,
Nibal 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. I 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
D 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 with
the High Court and find that the appellant Deena was guilty of an
offence under section 302 l.P.C. in causing the death of Nainsukh.
E The High Court confirmed the extreme penalty of Jaw imposed by
# •
###### •
F
G
H
the Sessions Court. The Sessions Court in imposing the death
sentence founr,I .that the appellant is a desperate character and that
while he was on bail in Ram Chandra murder case he committed the
murder of N ainsukh one of the prosecution witnesses in Ram Chandra
murder case. As the offence was committed by a person nnder a
sentence of imprisonment for life for an offence under section 302
I.P.C. the Sessions Court infiicted 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 diimisseJ._
