Bhoop Singh vs State of U.P.

J.C. Gupta, J.—Appellant Bhoop Singh alias Bhoopay alias Bhupendra Singh was tried along with Narendra alias Nanda, Ram Autar and Inder Pal for the offence of murder of deceased Kunwar Pal. Though other three accused persons have been acquitted but the Appellant has been found guilty u/s 302 and sentenced to imprisonment for life by the then IIIrd Additional Sessions Judge, Ghaziabad by the judgment and order dated 21.10.1980 in Sessions Trial No. 197 of 1977.

Before we come to the prosecution story, it will be useful to have a look at the following pedigree which will indicate that the witnesses, deceased and the accused persons were related to each other and were descendants of a common ancestor:

PEDIGREE / Sahib Singh Narain Singh Hazari Singh Surjit Singh Lal Singh / / / / / Soran Singh Harnam Dalbir Nain Singh Atar Singh (grand son) / Lakhpat Singh (P.W.7) Gajraj Singh / / (P.W.6) Om Prakash Inderpal / / (P.W.5) (accused) RichhPal Singh/___________________ / / / Jamadar Singh Kunwarpal / (P.W.1) (Deceased) /_________/______ / / Bhoop Singh Narendra (Accused) (Accused)

The prosecution case, as revealed in the first information report, is that about one and half years before the present occurrence Smt. Jogendrawati wife of Shri Vijai Pal had executed a sale deed of six bighas of land in favour of Om Prakash, P.W. 5 which was not liked by Tej Pal and Sheoraj Singh, younger brothers of the husband of Smt. Jogendrawati. Tej Pal and others were suspecting that Kunwar Pal deceased of the present case and his cousin Om Prakash were instrumental in getting the land transferred from Smt. Jogendrawati and on account of this suspicion, they were having a grudge against them. They got objection filed in the mutation proceedings through Smt. Krishna, daughter of Jogendrawati. A day before the present incident, date was fixed before the Dy. Director, Consolidation, Meerut in the mutation case. It is further alleged that on 10.1.1976 at about 9.30 in the morning, Kunwar Pal deceased along with Om Prakash, P.W. 5, Nain Singh, P.W. 7, Gajraj Singh, Ranveer Singh, P.W. 4, Chand Roop Singh P.W. 8 and Jamadar Singh, P.W. 1 were chatting with each other in the ''baithak'' of Nain Singh. Accused Bhoop Singh armed with licensed gun of his father, along with his real brother Narendra alias Nanda, who was armed with a country made pistol came there. They were accompanied by co-accused Ram Autar and Inder Pal. They started abusing P.W. 5, Om Prakash and deceased Kunwar Pal. Kunwar Pal remonstrated and asked the accused persons to stop hurling abuses whereupon accused Ram Autar asked accused Bhoop Singh alias Bhupendra to open fire. Bhoop Singh then fired a shot on the chest of Kunwar Pal which hit him. Kunwar Pal fell on the ground and died an instant death. Thereafter two more shots were fired. Incident was witnessed by the aforesaid persons. Leaving dead body on the spot in the care and custody of villagers, Jamadar Singh, P.W. 1 lodged written report Ex. Ka-1 in the same afternoon at 12.10 p.m.

Sub-Inspector, Jitendra Pal Singh Yadav, P.W. 9 was present at the police out post-Dhaulana when first information report of Jamadar Singh was registered. He took up the investigation and recorded statement of the first informant. Thereafter he proceeded to the scene of occurrence. On reaching there, he found dead body of Kunwar Pal in the courtyard of Nain Singh''s house, which place has been shown by letter ''D'' in the site plan Ex. Ka-7 prepared by him on spot inspection. He also recorded the statements of Nain Singh and Om Prakash. He also collected plain and blood stained earth from near the door of Nain Singh''s house through memo Ex. Ka-3. That place has been indicated by letter ''G'' in the site plan. He further collected and took into his custody three empty cartridges from the lane running in the north of chabutra of Om Prakash, P.W. 5 which place is shown by letter ''H'' in the site plan. In the presence of witnesses the Investigating Officer conducted inquest and got sent dead body of Kunwar Pal to mortuary for post mortem examination. The Investigating Officer then made a search for accused persons but could not find them. Richhpal Singh father of accused Bhoop Singh deposited his licensed gun in the Court of Judicial Magistrate, Hapur. Same was taken into custody and was kept under seal. This gun along with three empty cartridges recovered from the scene of occurrence were sent to ballistic expert and as per the statement of the Investigating Officer given before the trial court, the report of Ballistic Expert was to the effect that the empty cartridges had not been fired from the gun of Richh Pal Singh. However, no report of Ballistic Expert was brought on record from the prosecution side.

Autopsy on the dead body of Kunwar Pal was conducted by Dr. A. K. Gupta, P.W. 2 on 11.1.1976 at 2.30 p.m. Deceased was aged about 55 years and about one and half days had passed since his death. Deceased was of average built and rigor mortis was present all over the body. Following ante-mortem injuries were found:

(1) Gun shot entrance wound, with blackening on the margins, no tattooing, 3 cm. ? 2 cm. ? chest cavity deep pointing towards left and downward over right side chest medial to nipple, margins inverted.

(2) Gun shot wound exit over left chest mid axillary line, 10 cm. below axilla, 3-1/4 cm. ? 1-1/4 cm. into chest cavity. Margins everted.

(3) Abrasion 1 cm. ? 1 cm. tip of the nose.

(4) Abrasion 1-1/2 cm. ? 1 cm. centre of the fore-head.

(5) Abrasion 1-1/2 cm. ? 1/2 cm. right forehead above eye-brow.

(6) Abrasion 3 cm. ? 1 cm. on the right face below eye near outer angle of eye.

In the internal examination, about 400 cc of blood was found on both sides in the thorax cavity. Lower margins of 3rd and 4th ribs were found lacerated and upper right rib fractured under wound of rib. Left 7th lower and 8th upper margins of ribs were fractured under the wound. Upper lobe lower part of the right lung was found lacerated in an area of 6 cm. ? 4 cm. Left lung was also found lacerated on left lower lobe 7 cm. ? 5-1/2 cm. Pericardium and Heart were also found completely lacerated. Large vessels were also lacerated. Semi-digested food was found in the stomach. Small intestines contained gases while large intestines faecal matter. Bladder was found empty. In the opinion of doctor, death was due to shock and haemorrhage as a result of ante-mortem injuries.

On completion of investigation all the four accused persons were charge-sheeted.

Prosecution, in order to prove its case examined 10 witnesses, namely, P.W. 1 Jamadar Singh, P.W. 2, Dr. A. K. Gupta, P.W. 3 Gangesh, P.W. 4 Ranvir, P.W. 5 Om Prakash, P.W. 6 Lakhpat Singh P.W. 7 Nain Singh, P.W. 8 Chand Roop Singh, P.W. 9 S.I. Jitendra Pal Singh Yadav, Investigating Officer and P.W. 10 constable, Jag Pal Singh, who escorted the dead body to mortuary.

Case of accused persons was of total denial. They produced no witness in defence.

Out of the witnesses examined, P.W. 1 Jamadar Singh, P.W. 3 Gangesh, P.W. 4 Ranvir, P.W. 5 Om Prakash, P.W. 7 Nain Singh and P.W. 8 Chand Roop Singh were alleged eye-witnesses. Excepting P.W. 1 Jamadar Singh, none of the other witnesses supported the prosecution case. They were declared hostile and were cross-examined by the State counsel.

Placing implicit reliance upon the sole testimony of P.W. 1 Jamadar Singh, the learned trial Judge has found the prosecution case proved as far as Appellant was concerned. The other three accused persons have, however, been acquitted, as in the opinion of the trial Judge, case against them was not proved beyond doubt. State has not preferred appeal against their acquittal.

We have heard Shri A. D. Giri, Sr. Advocate for the Appellant and the learned A.G.A. for the State.

Learned Counsel for the Appellant has neither assailed nor disputed the factum of death of Kunwar Pal by fire-arm injury. Dr. A. K. Gupta, who held the post-mortem examination on the dead body of deceased Kunwar Pal on 11.1.1976 at 2.30 p.m. has proved the post-mortem report as Ex. Ka-2. He, in his deposition before the trial court, has categorically sated that injury No. 1 was wound of entry while injury No. 2 was its exit wound. This ante-mortem injury was the cause of death of deceased while abrasions could be the result of friction from some hard object. From the internal damage which the fire-arm injury had caused, it can safely be inferred that this injury was sufficient to cause death in ordinary course of nature. It is thus fully established that Kunwar Pal died a homicidal death on account of a fire-arm injury.

It is, however, next to be seen whether prosecution has succeeded in proving its case beyond reasonable doubt against the Appellant.

As already pointed out above, the conviction of the Appellant has been based upon the sole testimony of Jamadar Singh, P.W. 1, who is also first informant of the case, as all other witnesses including Om Prakash, P.W. 5 with whom direct enmity with the accused was alleged and Nain Singh in whose baithak the deceased was alleged to be sitting and chatting with other witnesses turned hostile and did not support the prosecution case. P.W. 6 Lakhpat Singh was not a witness of fact. He was a witness of inquest and recoveries of empty cartridges.

Before we proceed to examine the evidence of Jamadar Singh to find out, if his evidence is wholly reliable to base conviction of the Appellant, it has to be kept in mind that there is no rule of law that conviction cannot be based upon the testimony of a single witness. It is not important how many witnesses have been examined, who supported the prosecution case but what is important is the nature and quality of evidence on which the prosecution relies. The evidence of a single witness may even sustain a conviction of death whereas evidence of a host of vulnerable witnesses may not be found sufficient to support a simple charge of hurt. In the present case, Jamadar Singh P.W. 1 is the only witness, who supported the prosecution case in the trial court. It is also not in dispute that Jamadar Singh was a blood relation of Kunwar Pal deceased as both were real brothers. Nain Singh P.W. 7 and Om Prakash P.W. 5 were cousins of Kunwar Pal deceased and they both have not supported the prosecution case. As per the prosecution case itself, incident in question occurred when deceased Kunwar Pal along with Nain Singh, Om Prakash and others were talking to each other in the baithak of Nain Singh. Jamadar Singh P.W. 1 is alleged to have arrived later but as per his statement, he had reached the scene of occurrence before the arrival of accused persons. Since Jamadar Singh P.W. 1 is a close relation of deceased and was also inimical to accused persons particularly to Bhoop Singh alias Bhupendra Singh, his evidence is to be scrutinized with a great care and caution specially when all other eye-witnesses have not supported the prosecution case.

As far as motive part is concerned, the entire motive was against P.W. 5 Om Prakash. In his statement before the Court, he has stated that husband of Smt. Jogendrawati had died about 15-16 years ago. She had a daughter. In the year 1974, he purchased a piece of land from Smt. Jogendrawati for a consideration of Rs. 7,000. Tej Pal Singh and Shiv Raj Singh were brother-in-law of Jogendrawati. They had objected to the sale of the said piece of land and they got an objection filed through the daughter of Jogendrawati in the mutation proceedings. They all wanted to get Jogendrawati declared lunatic but they could not succeed. He further stated that 9.1.1976 was the date fixed in the said mutation proceedings before the Deputy Director of Consolidation. On that date, he along with Nain Singh and Jogendrawati had gone to Meerut. Case was adjourned and nothing proceeded on that day. There had occurred no incident when they came back in the village. P.W. 1 Jamadar Singh also stated that in the mutation case, the devars of Jogendrawati had got objections filed through Krishna, daughter of Jogendrawati. He further stated that Tej Pal Singh and Shiv Raj Singh had good relations with Brij Pal. However, there is nothing on record to show that Appellant Bhoop Singh had any animus or grievance against Kunwar Pal deceased. We thus, find that from the evidence led by prosecution side, it could not be shown that the Appellant had any special or strong motive to commit the murder of deceased Kunwar Pal.

As already pointed out above all other witnesses, who as per prosecution case had witnessed the incident, turned hostile and did not support the prosecution case. We are thus left with the sole testimony of P.W. 1 Jamadar Singh. On perusal of his statement, we find that he has made several improvements in his statement recorded before the trial court. In his statement before the Court, this witness stated that in the morning of 10.1.1976 he had gone to the baithak of Nain Singh. 10-15 minutes after his arrival at about 9.30 a.m., present Appellant Bhoop Singh, Nanda alias Narendra, Ram Autar and Inder Pal came there in the dagra (path way) and started hurling abuses. Deceased Kunwar Pal accosted them and asked why they were abusing. On this, Ram Autar asked Bhoop Singh to fire. Bhoop Singh fired from a double barrel gun. Kunwar Pal died on the spot. Due to fear, he and other persons present in the baithak ran way. He concealed himself behind a pillar. Two more shots were fired afterwards. Kunwar Pal on receiving fire-arm injury fell down after retreating 2-4 paces. When all the accused persons tried to take away the dead body, Gangesh and Gayatri came out of their house and did not permit accused persons to remove the dead body. When the accused persons fled away, aforesaid Gangesh and Gayatri then removed the dead body of Kunwar Pal to the court- yard of their house. It may not be out of place to mention here that when the Investigating Officer visited the scene of occurrence, he had found the dead body in the court-yard of the house of Nain Singh. This place has been indicated by letter ''D'' in the site plan Ex. Ka-7. The place where deceased is alleged to have received fire-arm injury has been shown by letter ''B''. The place where deceased fell down after receiving injury has been shown by letter ''C''. The distance from ''B'' to ''C'' was 8 paces and between ''C'' and ''D'', it was 20 paces. The place from where firing was made has been shown by letter ''A'' which was removed by 6 paces from letter ''B''. According to this witness, firing was made by the Appellant when he was present in ''dagra''. This firing was made by a double barrel gun. In the first information report, he has specifically mentioned that the Appellant was carrying licensed gun of his father and had fired from the same gun. This licensed gun was taken into possession and sent for comparison to Ballistic Expert along with three empties collected from the scene of occurrence. However, for the reasons best known to the prosecution, the Ballistic Expert''s report was withheld. Learned Counsel for the Appellant rightly urged before us that an adverse inference should be drawn against the prosecution for not bringing the report of Ballistic Expert on record. According to him, since this report was against the prosecution, the same has been obliquely withheld.

From the post-mortem report, Ex. Ka-2, it is evident that the deceased had sustained only one gun shot injury. The entry wound measured 3 cm. ? 2 cm. ? chest cavity deep. There was blackening along the margins of the wound. This shot had made exit over left chest middle auxiliary line. The measurement of the exit wound was 3-1/4 cm. 2-1/4 cm. From the prosecution side, a question was put to Dr. A. K. Gupta, P.W. 2, if the single gun shot injury of the deceased could be caused by a double barrel gun of 12 bore, Dr. Gupta replied that he was unable to give any opinion and the question could be replied only by Ballistic Expert. Why still the report of Ballistic Expert was withheld is a question which has remained unanswered by the prosecuting agency. It may also be ''pertinent to point out here that from the perusal of the record, it also transpires that on 23.8.1980, an application was moved from the side of accused before the trial court stating therein that only today gun and empty cartridges, which were under seal, have been produced before the Court and since the report of Ballistic Expert was against the prosecution, hence gun and cartridges be again sealed. This application was allowed by the trial court. It is also evident from the perusal of the record that the Superintendent of Police, Meerut, had sent double barrel gun No. 04117 and 3 empty cartridges found at the place of occurrence to Superintendent of Police, Mahanagar, Lucknow, for test and comparison. It is further to be found from the record that on 30.11.1980, an application was made on behalf of the accused persons before C.J.M., Ghaziabad, stating that the copy of report of Ballistic Expert has not been furnished to the accused persons inspite of specific orders and, therefore, appropriate action be taken. The Court asked the A.P.P. to report the reasons. The A.P.P. reported that in the case diary on 4.6.1976 S.I. Jitendra Singh Yadav has mentioned that the Ballistic Expert has reported that the empty cartridges recovered from the scene of occurrence had not been fired from the gun sent to the Ballistic Expert. It further appears that after the receipt of report of Ballistic Expert, the owner of the gun Richhpal Singh moved an application before the C.J.M. for the return of his licensed gun but the learned Magistrate observed that the said question could be decided by the trial court. Therefore, an application was moved before the Sessions Judge, Ghaziabad. That application was also rejected on the ground that the Magistrate had no jurisdiction u/s 457, Criminal Procedure Code regarding the disposal of seized property during investigation of a case but no objection was raised from the State side that the report of Ballistic Expert was positive. It is also pertinent to note that while granting bail to the accused applicant, the learned Sessions Judge had observed in his order dated 27.2.1976:

no doubt the prosecution allegation is that the applicant fired a shot from his father''s licensed gun to cause the gun shot injury found on the person of the deceased but the post-mortem examination report shows that the size of the injury is 3 cm. ? 2 cm. ? chest cavity deep. It is doubtful if either a pellet or a bullet used in cartridge of 12 bore arm can cause a wound of such a size. Certainly this matter would be finally decided after the report of ballistic expert is received but for the present, this fact entitles the applicant to bail.

All these factors cumula-tively suggest that the prosecution purposely with an oblique motive withheld the production of the report of Ballistic Expert. Having faced with this difficulty, P.W. 1 Jamadar Singh had to make a twist in his statement. He stated that since Appellant fired from a double barrel gun and his father was having a licensed gun, he thought that he must have fired from the licensed gun of his father. This statement is wholly contradictory to the averment made in the F.I.R. and the statement given by this witness to the Investigating Officer during investigation. If we have a look at the size of the entrance wound and the size of exit wound, it certainly creates a doubt if the fire-arm injury of the deceased was caused by a double barrel gun of 12 bore and, therefore, this vital discrepancy renders the presence of P.W. 1 Jamadar Singh doubtful at the time of occurrence.

As per the statement of P.W. 1 Jamadar Singh, the Appellant had fired the shot from the dagra (path way) and at that time, the Appellant was present at the chabutra of the baithak. According to him, Kunwar Pal was then in a standing posture. The post-mortem report indicates that the entrance wound was going towards left and downwards over the right side chest. Therefore, in case shot was fired by a person standing in the dagra upon the deceased, who was standing on the chabutra, the direction of the shot could never have been downwards. Faced with this situation, P.W. 1 Jamadar Singh introduced a development in his statement that the place in the dagra from where the accused had fired had a raised platform of debris of a fallen wall. In the site plan, no such debris has been indicated by the Investigating Officer and the Investigating Officer admitted in his statement that neither in the site plan nor in the inspection note prepared by him, there was any mention that in the dagra, the place shown by letter ''A'' was having any height due to collection of debris. Neither in the F.I.R. nor in the statement recorded u/s 161, Criminal Procedure Code P.W. 1 Jamadar Singh had stated, this fact. In any view of the matter, apart from the fact that the theory that the dagra was having a raised platform of about 2 feet due to collection of debris, the direction of the gun shot could not have been downwards when the firing was made upon the deceased particularly when he was in a standing posture on the chabutra. It is also noteworthy that the distance between place ''A'' from where the firing was made and point ''B'' where the deceased had sustained gun shot injury has been shown as 6 paces meaning thereby, it was about 15 feet. In that event, blackening would not have been found over the margins around the wound. It is also significant to note that when the Investigating Officer visited the scene of occurrence he found the dead body of the deceased in the courtyard of the house of Nain Singh. This place has been indicated by letter ''D'' in the site plan. In the F.I.R., there is no mention that dead body of Kunwar Pal had been removed from place ''C'' to the courtyard of Nain Singh by female inmates of the house of Nain Singh. The definite case of the prosecution in the F.I.R. was that at the time when firing was made, Kunwar Pal was on the chabutra and on receiving gun shot on his chest, he fell down there on the ground. When no blood was found at point ''B'' where the deceased was alleged to have received injury, P.W. 1 developed the case that on receiving injury the deceased moved 2-4 paces backwards. This place has been indicated in the site plan by letter ''C''. The distance between the place where deceased sustained fire-arm injuries and the place where he was alleged to have fallen down has been shown as 8 paces in the site plan. It is doubtful if the deceased would have been able to move 8 paces after receiving serious gun shot injury over his chest whereby left lung was fully lacerated, pericardium and heart as well as large vessels were also lacerated. The Investigating Officer has admitted in his statement that he did not find any blood at the place shown by letter ''B'' where the deceased was alleged to have sustained the gun shot injury. He has further admitted that he also did not find any blood drops in between the places shown by letter ''B'' and ''C'' and from ''C'' to ''G''. If the incident had occurred in the manner as alleged by P.W. 1 Jamadar Singh that deceased had received gun shot injury at point ''B'' and then fell down at point ''C'', some blood should have been, found at points ''B'' and ''C'' and also at the places in between ''B'' and ''C''. Not even a drop of blood was also found between ''C'' and ''G''. It is thus highly doubtful that deceased had received fire-arm injury at the place and in the manner as alleged by P.W. 1 Jamadar Singh. We have already pointed out above that all other witnesses alleged to be sitting on the chabutra have not supported the prosecution case. In this view of the matter, it will be most unsafe and risky to base conviction on the solitary testimony of P.W. 1 Jamadar Singh, who by no stretch of imagination could be said to be an independent witness. The learned Sessions Judge has acquitted other remaining accused persons on the reasoning that there was no corroboration of the evidence of P.W. 1 Jamadar Singh, but has convicted the Appellant applying a different yard stick which in our opinion, could not be safely applied.

Apart from the above pointed out weaknesses, we are also not fully satisfied that the F.I.R. in the present case was lodged at the time it purported to be and there is a great deal of doubt in this regard. There is an over-writing in the crime number in the inquest report Ex. Ka-5, Challan dead body, Ex. Ka-9 and Photo Lash, Ex. Ka-10 as well as in the letters addressed to the C.M.O., whereby request was made for post-mortem examination. The learned Session Judge has described these over-writings as bona fide mistakes. In the circumstances of the case, we are not prepared to accept this inference of the learned Sessions Judge. The incident had occurred in the morning of 10.1.1976. The report, as per the prosecution case, was lodged at the police station at 12.10 p.m. Dead body after inquest was then entrusted to the constables at 4.30 p.m. on the same day. The distance of Head Quarter was 8 kms. yet the dead body reached the mortuary on the next day at 12.40 p.m. and papers were received in the mortuary at 2 p.m. Constable Jag Pal Singh, P.W. 10 stated that he had reached the police lines with the dead body at 3 a.m. Why then there was such a great delay in the receipt of papers in the mortuary remains unexplained. The Investigating Officer stated that he had reached the place of occurrence at about 4.30 p.m. Had the report been lodged at 12.30 p.m., the Investigating Officer must have reached much earlier. The copy of F.I.R. was received by superior officers on 14.1.1976. There is a column in the inquest report for describing the weapon with which as per F.I.R. assault was made upon the deceased. In the F.I.R. of the present case, it was clearly mentioned that the Appellant had fired upon the deceased from the licensed gun of his father. It was argued by the Appellant''s counsel that had the F.I.R. come into existence before the inquest and the police officer was having its copy with him, then in the relevant column, it would have been clearly mentioned that as per the F.I.R. licensed double barrel gun had been used, on the contrary the inquest report simply mentions ''goli mar kar maut karna''. This endorsement in the relevant column coupled with other attending facts and circumstances create a reasonable doubt if the F.I.R. had come into existence prior to the inquest proceedings. The first information report thus loses its corroborative value.

For the reasons given above, we are of the view that the prosecution has not succeeded in establishing the guilt of the Appellant beyond reasonable doubt and he is also entitled to get the benefit of doubt as has been extended to other accused persons by the trial court.

Appeal is, therefore, allowed. Conviction and sentence of the Appellant are set aside. He is acquitted to the offences charged for. He is on bail, he need not surrender. His bail bonds are cancelled and sureties discharged.