Daya Shankar @ Bhota vs State of U.P.

G. Malaviya, J.—Criminal Appeal No. 2672 of 1981 has been preferred by Daya Shankar alias Bhola and Criminal Appeal No. 3830/1981 has been preferred by Ashok Kumar against their conviction and sentence in Sessions Trial No. 667/1980 by the judgment and order dated 21101981 passed by the Hnd. Additional Sessions Judge, Fatehpur. Both the appellants were convicted under Sections 302/34, Indian Penal Code and were given life imprisonment. However one Rajjan was also tried along with the appellants but was acquitted by the Sessions Judge.

According to a written First Information Report lodged at Police Station Khaga on 981990 at 8.30 p.m. by PW1 Uma Shankar, he as also his uncle''s son Daya Shankar used to reside in village Majhalia, Police Station Khaga in adjacent houses. Uma Shankar had a cultivatory plot of 15 or 16 bighas in Kadihar towards south of the village where Dayay Shankar had also his field, Uma Shankar had sown Urd and Moong in some portion of the said plot. Appellant Ashok Kumar s/o Daya Shankar accused had cut the mend of his plot with the result that the rain water had entered the crop sown by Uma Shankar. When Uma Shankar''s son Ram Babu went to the fields in the morning at about 8 a.m. and saw the fields flooded with water he complined to Ashok Kumar as to why he was ruining his crop? An altercation ensued between Ram Babu and Ashok Kumar appellant. Hearing their altercation Uma Shankar went to that place from his tube well and after pacifying them persuaded Ashok to leave the place. While leaving the place Ashok appellant had threatened Ram Babu with dire consequences. In this background when on the same evening at about 6.30 p.m. Ram Babu was repairing the roof of his house where his younger brother Ram Niwas and younger sister Asha as also his wife''s brother Munni Lal were present, Daya Shankar armed with his licensed gun and Ashok Kumar armed with a country made pistol together with one Rajjan armed with a lathi came in front of his house near the kulia. Rajjan exhorted his companions to kill Ram Babu. Hearing the said exhortation Uma Shankar complainant came out from his house and saw Daya Shankar and Ashok Kumar firing on his son Ram Babu from their licensed gun and country made pistol respectively. Ram Babu fell down of which Daya Shankar exclaimed that he had died and they may leave. Thereafter the three miscreants left the place and went towards south. When Uma Shankar went to the roof he found that shots had hit Ram Babu is his chest, abdomen and the thighs. Ram Babu was unconscious. He immediately put his son Ram Babu on a cot and took him to the hospital, However near Kotadhan Hotel on the G.T. Road his son died. Uma Shankar had collected the empty cartridge which had been fired by Daya Shankar from the place of the incident. Uma Shankar went to the police station and mentioning the fact in the First Information Report that about 2 or 3 years back there was an altercation between him and Daya Shankar in the consolidation courts due to which Daya Shankar etc. were inimical to him he said that it was on account of that enmity that earlier in the morning the accused had first flooded water in his field and due to the altercation in the field all the three persons had come to his house in the evening and had killed his son.

This report which had been scribed by one Awadhesh Singh was lodged at police stationKhaga in presence of PW6 SubInspector Mukhtar Ali when head constable Sukhpal Singh had prepared the chik. The investigation was taken up by SubInspector Mukhtar Ali who, after recording the statement of head constable Sukhpal Singh and after preparing the memo of recovery of the empty cartridge, took the statement of the witnesses of recovery. He also recorded the statement of the first informant Uma Shankar. Thereafter he left the police station to visit the place of occurrence. However he found the dead body of Ram Babu at Katoghan padao near the hotel of Awadhesh Singh on the G.T. Road below a Tamarind tree on a cot. After appointing the witnesses he prepared the inquest and sent the dead body for post mortem examination. He also recorded the statement of Awadhesh Singh, scribe of the First Information Report as also the witnesses of inquest. He left for the village of occurrence at 12 mid night where he reached at 2 O''clock in the mid night, Reaching the place of the incident he recorded the statement of the eyewitnesses Ram Niwas, Asha and Munni Lal and a few others. Thereafter he recorded the statement of the ladies of the complainant''s family. In the morning he tried to apprehend the accused persons who were not found at their residence. He searched the houses of the accused persons but did not find any incriminating article from there. Thereafter he returned to the residence of the complainant and prepared the siteplan on his pointing out. He already sent informers to get the whereabouts of the accused. At about 7 a.m. he got an information about the appellants being present near the G.T. Road. Consequently he reached the G.T. Road from where he arrested all the three appellants. After recording their evidence and after searching them he recovered the licensed gun from accused Daya Shankar along with his belt of cartridge and ten live cartridges. He also took into possession the lincence of the gun from Daya Shankar which had been put in a plastic cover. He prepared their memos. brought the accused to the lockup where the accused were put inside the lockup and the recovered articles put in the Maikhana. He sent the recovered gun along with the recovered cartridges to the ballistic expert Lucknow for comparison. After completing the investigation he submitted the chargesheet against the accused persons.

The postmortem on the dead body of Ram Babu was performed by PW4 Dr. S.P. Pandey on 1091980 at 3.00 p.m. He found the following antemortem injuries on the person of the deceased:

"(1) Multiple gun shot wound of entry over an area of 20" x 12" on front of abdomen and chest, each measuring 1/8" x 1/8" x muscle deep or cavity deep, margins inverted lacerated, no blackening and tattooing present.

(2) Multiple gun shot wounds of entry on front of upper 1/2 of left thigh each measuring 1/8" x 1/8" x muscles deep, margins inverted and lacerated. No blackening and tattooing present.

(3) One gun shot wound of entry on front of rt. shoulder 2" below lip of shoulder measuring 1/8" x 1/8" x muscle deep, margins inverted lacerated. No blackening and tatooing present.

(4) Two gun shot wounds of entry in an area of 1" x 1" on front of left shoulder each measuring 1/8" x 1/8" x muscle deep, margins inverted and lacerated. No blackening and tattooing present.

The accused had pleaded not guilty and claimed to be tried.

To prove the prosecution case, apart from the technical evidence, the prosecution had produced PW1 Uma Shankar, father of deceased, PW2 Asha Devi, sister of the deceased and PW3 Ram Niwas, brother of the deceased as witnesses of fact. The report of the Ballistic Expert dated 24111980 was also tendered in evidence as Ext. Ka. 16 which indicated that since the fire pin of the breach block of the gun appeared to be tampered, consequently it was not possible to compare the marks on the empty cartridge.

On the assessment of the entire evidence, the trial court found appellants Daya Shankar and Ashok Kumar guilty for the offence under Sections 302/34, IPC and awarded them life sentence. However Rajjan was given benefit of doubt since no direct motive to commit murder of Ram Babu was shown against him and according to the Sessions Judge his only fault was that he happened to be the real brother of Daya Shankar. In arriving at this conclusion the Sessions Judge was also impressed by the fact that no overt act had been assigned to Rajjan and there was increasing tendency on the part of the complainants to implicate close relations of the family members of the real culprit in a criminal case.

Aggrieved against their conviction and sentence the appellants have preferred this appeal in the High Court in which we have heard Sri A.D. Giri learned counsel appearing on behalf of the appellants and Sri R.C. Deepak, learned Addl. Government Advocate.

The contention of Sri Giri in this appeal is that in this case the prosecution has deliberately changed the place of the occurrence to the roof of the complainant''s house with a view to make the family members as eyewitnesses of the occurrence. According to Sri Giri the murder in fact of Ram Babu had taken place at some different place from where the complainant had brought Ram Babu injured to his house and had taken him immediately for medical treatment but since Ram Babu died on way to the hospital, Uma Shankar leaving the body of Ram Babu on the G.T. Road near the hotel of Awadhesh Singh, went to the police station. According to learned counsel for the appellants thereafter the First Information Report was prepared with due deliberation and in constitution with the Investigating Officer in which place of occurrence was changed to the house of the complainant from the real place of incident. To highlight this aspect Sri Giri had asserted that the gun shots alleged to have been fired from the ground floor at the roof where deceased Ram Babu was standing, could not cause such injuries as were caused to Ram Babu who was standing on the roof, he also said that if at all the shots were fired on the roof they could have caused injuries to the other witnesses alleged to be present there. He also emphasized that pellets ought to have been recovered from the roof which were not found there by the investigating officer. Sri Gin also contended that assertion of the prosecution that the accused were not present in their houses, but were however still present on the road nearby where Daya Shankar was also ''carrying his licensed gun along with cartridges is all a cooked Up story set up by the prosecution. According to him the accused were all along present at their houses and the gun etc, were recovered by the Investigating Officer from the houses of the accused. Sri A.D. Giri also contends that conduct of the accused to remain available on the next morning of the incident is indicative" of their innocence as after committing the murder a person with a guilty mind naturally flees from the place of the incident so that the accused may not be apprehended by the police.

When this appeal was being heard'' Sri A.D. Giri had emphatically argued that, any shot fired from a. distance of about 30 or 35 feel from the ground could not hit a target at some height on the roof. In this connection he had relied upon the following observation of Modi in his book on Medical Jurisprudence?

"...........As the distance increases, the damage caused by a single pellet diminishes, until at about 30 feet, it is only capable of penetrating the clothes and skin of the victim."

It is argued that a shot from a short gun or country made pistol could not cause fatal injuries to any person at a distance of about 35 feet and since as per the evidence and in the site plan it had been clearly mentioned that the point from where the shot was fired was 20 or 25 yards which could be about 35 to 40 feet, entire prosecution case ought to be thrown away on this ground alone. Since such arguments are made very often before the High Court and even in the subordinate courts, we thought it proper to get an authentic report obtained from the Ballistic Expert. Consequently on 971996 the following order was passed in the appeal:

In pursuance of the said order the Ballistic Expert of the U.P. Forensic Laboratory, Agra Sri Ramashrey Pandey appeared before the High Court on 181996 along with all the papers and documents relating to the experiments which had been conducted by him. His statement was recorded in the High Court as H.C.W. 1. He also demonstrated from various sheets as also from the card board placed behind them the type of impact which a pellet makes on the object when a fire is shot from a short distance. Since the evidence of the Ballistic Expert along with his observations, reports and materials brought by him form an important piece of forensic evidence for all the cases in which fire arms are used, we have directed a separate Crl. Misc. Case to be registered along with this appeal in which we are going to discuss the effect of firearms from a shot gun and from a country made pistol on objects from different distances. In this appeal it will be sufficient to observe that in view of the statement of the Ballistic Expert as also the experiments carried out by him, we are satisfied that even if a shot gun or a country made pistol was fired from the place where the prosecution alleges the appellants to be present on the ground floor, the shots could have hit Ram Babu on the roof of the house. Consequently the arguments made by Sri Gin that the shots fired from the ground floor could not cause fatal injuries to Ram Babu on the roof of the house is not tenable and has to be rejected.

This however brings us to consider the next submission made by Sri A.D. Gin viz. that the firing on Ram Babu was not made while he was standing on the roof of his house but at a different place in the darkness when no person could see the real assailants. It is argued that hearing the report of the gun shots and may be shrieks of Ram Babu his family members rushed to that side from which the shot or shrieks had been heard and finding Ram Babu to be injured they brought him first to the residence of the complainant from where he was being taken to the hospital when he breathed his last.

The main plank of argument of Sri A.D. Giri learned counsel for the appellants to support his contention of firing being made at a different place is the statement of Uma Shankar, PW1 who, in paragraph 28 of his deposition, admitted that no blood had fallen on the roof from the injuries of Ram Babu nor had any blood trickled down when Ram Babu was being brought down from the roof to the platform on the ground floor and that no blood had fallen either on the durrel which had been placed on the cot or on the cot itself on which Ram Babu had been put immediately after the incident. The witness had also said that no blood had fallen even on the chabutara where the cot on which Ram Babu was lying was put. The argument of Sri A.D. Giri is that Ram Babu had received a large number of pellet injuries all over his body and consequently it was impossible that if he had been immediately put on a cot on which a durret had also been put then the dunet and the cot would not get smeared with blood, Sri Giri has also invited our attention to paragraph 45 of the statement of PW1 Uma Shankar wherein he stated that when he went to the roof the waist and underwear of Ram Babu were smeared with blood. Accordingly it is argued that absence of blood on the cot and its durret as also on the roof and the stairs negatives the claim of the prosecution that the deceased was shot at while he was at the roof and it is argued that only explanation for absence of blood on these places is the fact that Uma Shankar had gone to that other place where Ram Babu had been hit by the gun shots where he had tied his angochha on the main injury of Ram Babu viz. injury No. 1 which was on an area 20" x 12" on the front of abdomen and chest. It is to be noted that Uma Shankar, PW1 had stated before the Court, in paragraph 12, that he had tied his Angochha on the abdomen of Ram Babu. It is. therefore, contended that by the time Ram Babu injured was brought to his house the blood which came out from his wounds, to some extent, clotted and had, to some extentalso dried up in the clothes worn by Ram Babu and because of tying of the injury on the abdomen the blood instead of coming out had gone inside resulting in internal bleeding which is evident by the fact that in the post mortem report it was observed that two and a half pound of blood was found in the thoracic cavity of the deceased.

The argument of Sri P.C. Deepak, learned Addl. Government Advocate on this point is that since the Angochha had been tied against the main injury of the victim, hence it was quite possible that blood would not fall on the durret and would not smear the same. We have considered the various submissions made by the respective counsel, but feel inclined to accept the submissions made by Sri Giri that if injured Ram Babu had been put on a cot, on which a durret was lying, immediately after the incident, the durret as also the cot should have been smeared with blood. However this alone may not be enough to reject the entire testimony of all the witnesses. We, therefore, proceed to consider other submissions which have been made with regard to the other witnesses.

The fact on which Sri Giri laid stress is that the incident had, in any case, not taken place on the roof of the complainant''s house and elaborating this point Sri Giri also laid great stress on the fact that the Investigating Officer M.I. Khan, in his deposition, had admitted that he had not noted down the fact in his inspection note made in the case diary that he had found any dugout soil on the roof, nor had he mentioned this fact in the site plan Ext. Ka. 11. The Investigating Officer also admitted in his crossexamination that he had not asked Km. Asha, PW2 or PW3 Ram Niwas as to where had the mungri by which the soil was broken on the roof had gone away and as to from what instrument the deceased was breaking the soil on the roof. The explanation offered by the Investigating Officer, in this regard, was that he forgot to ask these questions to the witnesses. He could similarly not explain about the absence of Jhauva (basket) on the roof in which the soil was supposed to have been brought up by these witneses. Accordingly it is argued that since admittedly neither blood nor pellets nor any of these articles in fact were found by the I.O. to be on the roof, it is very doubtful that the story which has been set up by the prosecution for the presence of the witnesses on the roof as also the fact that the deceased had received the gun shot wounds on the roof are true and so the prosecution case is not free from doubt. It is, however, emphatically argued that the incident in question had not really taken place on the roof, but at a different place and the place of the incident was deliberately changed to enable the witnesses produced in the court to pose themselves as the eyewitnesses.

To add strengh to his arguments Sri Giri also relied on certain portion of the statements of the eyewitnesses to emphasise that the witnesses in fact had not seen the incident. So far as the evidence of PW1 Uma Shankar is concerned Sri Giri argued that admittedly he was inside the house and the only reason for his coming out from the house is the alleged exhortation by Rajjan made to his companions to kill Ram Babu. Relying on the fact that Rajjan has been acquitted by the trial Cour, Sri Giri has contended, that no person coming near the house of the victim would give an exhortation as that apart from wasting time would give an opportunity to the victim to duck and save himself from being made a target. Uma Shankar, PW1 in paragraph 21 of his deposition had admitted that he had not mentioned int he First Information Report that after the fire had been shot, Munni Lal, Ram Niwas and Asha raised alarm to save Ram Babu nor was it mentioned in his statement under Section 161, Cr PC. In paragrpah 22 the witness has also admitted that he had closed the door of his room in which he was sitting. In paragraph 24 he had also admitted that in the First Information Report he had mentioned that the accused had run towards south which, according to him, was put down in the First Information Report as PW2 Asha Devi and PW3 Ram Niwas had told him this fact. It is important to mention here that as per the statement of this witness in the Court he had said that the accused had run towards the east. In paragraph 30 of his statement this witness had admitted that the roof which was being repaired, was made of cement and when the SubInspector had visited the roof there was neither any cement, sand, morang or water on the roof, Sri Giri consequently argued that there was no question of a cemented roof being repaired by ground soil and therefore, even the suggestion of repair of the roof by soil being preposterous deserves to be rejected. The witness of course denied the suggestion that Ram Babu was shot at in the evening some where away from the village where he got unconscious and from where he had brought Ram Babu to his house and put him on the platform with the result that neither he nor PW2 Asha Deva nor PW3 Ram Niwas had seen the incident. This witness, in paragraph 40 of his statement, has also admitted that Mauji, GurdayaL Awadh Bihari and Ganesh resided just close to his house but none of these persons had come out to see Ram Babu right up the time of his departure from the place of the incident.

All these facts which have been elicited in the crossexamination of PW1 Uma Shankar lend weight to the submissions made by learned counsel for the appellants that the incident had not really taken place in the manner as has been suggested by the prosecution in this case.

The statements of PW2 Asha Devi and Ram Niwas, PW3 are no better either, PW2, in her deposition had said that since in the night it had started raining, therefore, on the advice of her mother she had gone to the roof and had brought down MUNGRI and DALLIA. However she admitted that she had not disclosed this fact to the Investigating Officer in her statement. PW3 Ram Niwas, in his crossexamination had said that by the time his brother had been shot at the soil, which they had brought on the roof, had been broken by the deceased. However he said that he did not notice whether any blood had fallen on the roof or not. The manner in which these witnesses have deposed about the incident in this case coupled with the fact that there were independent witnesses living in the close vicinity who have not come to support the prosecution case gives a strong impression that the incident had really not taken place on the roof or near the house of the complainant as is claimed by the prosecution. Coupled with this is yet another fact regarding the dramatic arrest of all the three persons on the very next morning by the police along with licensed gun of Daya Shankar which also hints that the appellants had not really left the village which persons with guilty mind normally do. The fact that the appellants were inimical to the complainant and his son is not disputed. Under the circumstances the possibility of Ram Babu being shot at some where away from the house outside the village by some persons who could not be seen, can not be ruled out. In this connection the fact that even the empty cartridge found from the spot could not be confirmed by the Ballistic Expert to have been fired from the Daya Shankar''s licenced gun, makes a dent in the prosecution case. It is not really possible for any person to damage his own licenced gun and still keep it with him only in anticipation that fired cartridge may not be got compared and found to have been fired from his gun. There is force in the contention of Sri A.D. Giri that if Daya Shankar could be so careful and apprehensive about his identity as an assailant being fixed on account of his using his licenced gun and could consequently tamper with the Pin etc. of his gun, he could with much lesser effort keep the empty cartridge in his own pocket instead of his taking out the bullet from the gun and throwing it on the platform in front of the house of the complainant. The fact that an empty cartridge was found by the complainant could be found by him somewhere near the dead body where Ram Babu might have been done to death. In any case the fact that the prosecution could not prove that the empty cartridge which was found, was in fact fired from the licenced gun of Daya Shankar is yet another point of weakness in the prosecution case.

The result is that from the evidence on record it is not conclusively proved that the death of Ram Babu was caused at the place alleged and on account of firing by Daya Shankar and Ashok Kumar. The possibility of their false implication in this case can not be ruled out. A serious doubt about the prosecution story has been created from the evidence on record with the result that the appellants are entitled to benefit of doubt.

Accordingly both the appeals are allowed. Daya Shankar alias Bhola and Ashok Kumar are on bail. They need not surrender. Their bail bonds are discharged.