Dina Nath vs State of U.P.

M.C. Jain, J.—The Appellant Dina Nath has been convicted u/s 302, I.P.C. and sentenced to life imprisonment by the judgment and order dated 23.5.1980, passed by Sri K.C. Singh, the then 2nd Additional Sessions Judge, Mirzapur In Sessions Trial No. 202 of 1978. The co-accused Prabhu Nath was acquitted of the charge u/s 302/34, I.P.C. framed against him. The convicted accused Dina Nath has preferred this appeal.

We have heard Sri P.N. Misra, Learned Counsel for the Appellant and learned A.G.A. on behalf of the State.

The murder of one Shiv Jag alias Bode was committed in this incident on 2.7.1978 at about 5.30 p.m. A written report (Ex. Ka-1) was made by Rajesh Giri, P.W. 1 the same day at 6.30 p.m. at the concerned police station Lalganj situated at a distance of one kilometre from the place of occurrence. The informant claimed himself to be an eye-witness. The prosecution case was that on 2.7.1978 at about 5.30 p.m., the victim Shiv Jag alias Bode resident of village Baliha Kalan had come at the informant�s �Zila� to meet him. At about 5.30 p.m., the Appellant Dina Nath accompanied by co-accused Prabhu also came over there and asked for water. The informant provided to them a bucket and tumbler. The co-accused Prabhu brought water from the well and after taking water, the Appellant Dina Nath fired with a pistol on Shiv Jag alias Bode as a result of which he fell down. The firing was witnessed by the informant Subedar, P.W. 2 and Malloo Harijan who were also present there. The Appellant with the co-accused Prabhu ran towards the roadside but they were given a chase and co-accused Prabhu was arrested after being given some beating. However, the Appellant Dina Nath managed to make his escape good with pistol. As Shiv Jag had sustained serious injuries, he was sent to Mirzapur Hospital on a bus where he was declared as dead. The informant took the co-accused Prabhu to the police station where the F.I.R. was lodged by him. Initially, a case u/s 307, I.P.C. was registered and the co-accused Prabhu was admitted in police lock-up Investigation was taken up by S.I. Bal Govind Tiwari, P.W. 6. He reached the spot at about 7 p.m. After interrogating the informant Rajesh Giri, P.W. 1 he prepared site plan and collected blood-stained and simple earth from the spot. At about 8.30 p.m., he reached Civil Hospital, Mirzapur, where he learnt that Shiv Jag alias Bode was dead and his dead body was in the mortuary. The case was then converted into one u/s 302, I.P.C. The Panchayatnama of the dead body of the deceased was prepared by S.I. Ram Dhan Singh, P.W. 3 who was posted at P.S. Kotwali, Mirzapur, where a memo had been received from the District Hospital about the death of Shiv Jag. Investigation was concluded by S.I. Ram Ashish Yadav, P.W. 8.

The post-mortem over the dead body of the deceased was conducted by Dr. Shailendra Kumar, P.W. 7 on 3.7.1978 at 4.30 p.m. it would be appropriate to set out below the outcome of the post-mortem for the sake of clarity with regard to the discussion that would follow. The deceased was about 70 years of age and about one day had passed since he died. The following ante-mortem injuries were found on his person :

(1) Gun shot wound 3 cm. x 3 cm. x abdominal cavity deep on lateral of left side of abdominal wall at level of umbilicus and in between umbilicus and vertebral column, margins scorched, blackened carbon particles were found present and wadding was found plugging at injury.

Skin burnt, blackened all around injury in an area of 20 cm. diameter.

(2) Burnt blackened skin on upper

abdomen in an area 7 cm. x 6 cm.

(3) Burnt blackened skin on back of forearm and hand of left upper limb covering whole of back of forearm and hand.

Eight big irregular pellets underneath abdominal wall in the right side were found and according to the Doctor, the death was due to shock and haemorrhage as a result of ante-mortem injury No. 1 which was sufficient in the ordinary course of nature to cause death.

At the trial, the prosecution examined the informant Rajesh Giri, P.W. 1, Subedar, P.W. 2 and Suresh Kumar, P.W. 4 as the eye-witnesses, besides examining the witnesses named above connected with the post-mortem and the investigation of the case, as also Ram Briksh Singh, P.W. 5 who was Head Constable at P.S. Lalganj at the relevant time and had scribed the chick report and G.D. registering the case on the basis of the written F.I.R. lodged by Rajesh Giri, P.W. 1 and Constable Rang Raj Misra, P.W. 9 who had carried the dead body for post-mortem.

The learned Additional Sessions Judge believed the testimony of eye-witnesses, namely, Rajesh Giri, P.W. 1 and Subedar, P.W. 2 as against the present Appellant Dina Nath, but discarded the testimony of the third witness Suresh Kumar, P.W. 4. The reason assigned for discarding the testimony of Suresh Kumar, P.W. 4 as mentioned in paragraph 25 of the judgment of the lower Court was that he was not an eye-witness of actual firing and was also not named in the F.I.R. Further, he was interrogated after a week on 10.7.1978, though he was the brother of the wife of Rajesh Giri, P.W. 1. Learned Additional Sessions Judge observed in paragraph 24 of the judgment that the testimony of Subedar, P.W. 2 required corroboration. He seemingly formed the opinion that the te�stimony of Subedar, P.W. 2 found corroboration from that of Rajesh Giri, P.W. 1. To be short, he found the case proved as against the present Appellant Dina Nath but acquitted the co-accused Prabhu, holding that he did not say or act in any manner to indicate that he shared the common intention of Dina Nath when the latter took out pistol from the folds of his Dhoti and opened fire on Shiv Jag alias Bode. As regards his running and capture at the spot, it was observed that the same might have been influenced by fright.

The first argument of Learned Counsel for the Appellant is that the F.I.R. was ante-timed. He tried to support this argument by the recital in the F.I.R. to this effect �Prabhu Ko ham saath lekar Thane aaye hain.� In our opinion, it cannot be inferred by the above recital in the F.I.R. that it was ante-timed. It is further to be noted that Rajesh Giri, P.W. 1 has satisfactorily explained in his cross-examination that as Prabhu Nath Singh was to be immediately taken to the Police Station along with the F.I.R., he had written in his report that they had come at the police station along with Prabhu. His categorical statement is that he had written the F.I.R. at the spot itself which he had taken to the police station along with Prabhu on foot. It is not at all possible to infer by the above stray sentence occurring in the F.I.R. that it was ante-timed. We reject this argument of the Learned Counsel for the Appellant.

It has next been argued by the Learned Counsel for the Appellant that there is serious conflict between the ocular testimony and the medical evidence and in this view of the matter, the Appellant could not be convicted on the strength of the testimony of Rajesh Giri, P.W. 1 and Subedar, P.W. 2. It is urged that as per the testimony of Rajesh Giri, P.W. 1 and Subedar, P.W. 2, only one shot had been fired by the Appellant, whereas according to the medical evidence contained in the testimony of Dr. Shailendra Kumar, P.W. 7 the gunshot injuries found on the person of the deceased were the result of two shots. It has also been vehemently argued by the Learned Counsel for the Appellant that as per the ocular version, the shot had been fired by the Appellant on the back of the victim from point blank range but there was no gunshot injury on the back of the deceased.

On consideration, we find substantial force in the argument of the Learned Counsel for the Appellant that there is apparent and serious conflict between the ocular testimony and medical evidence. The categorical statement of Rajesh Giri, P.W. 1 is that the Appellant Dina Nath had fired shot on Shiv Jag putting the pistol on his back. At that time, he was only at a distance of five hands. He is very emphatic on this point that only one shot had been fired by the Appellant on the victim in this manner. The statement of Subedar, P.W. 2 is also to the effect that only one shot had been fired by the Appellant on the victim, but he has made a little varied statement that the Appellant had not fixed the pistol on the back of the deceased but had fixed the barrel of the pistol in the lower side of his left armpit and had fired. On the other hand, the testimony of Dr. Shailendra Kumar, P.W. 7 is that there was no injury on the back of the deceased. He categorically stated that ante-mortem injury No. 1 could not have been sustained if the shot had been fired fixing the fire-arm on the back, i.e., from point blank range. The Doctor also stated that ante-mortem injuries No. 1 and 3 could be the result of one shot but injury No. 2 could not have been sustained by the same shot, meaning thereby that the three ante-mortem injuries found on the person of the deceased were the result of the two shots. A look at the post-mortem report of the deceased would indicate that the first fatal gunshot injury was abdominal cavity deep on lateral side of left side of abdominal wall at the level of umbilicus between umbilicus and vertebral column. The third injury was burnt blackened skin on the back of fore-arm and hand of left upper limb. It is pure common knowledge also that the deceased could not have escaped gun shot injury on the back if shot had been fired from point blank range putting the pistol on his back. But it is a fact that he did not sustain injury on his back. The learned Additional Sessions Judge lightly brushed aside the apparent and serious conflict between the ocular testimony and medical evidence by observing that the Doctor was not a ballistic expert and being influenced by the testimony of Subedar, P.W. 2 that shot had been fired by the Appellant fixing the pistol in the lower side of the left armpit of the deceased. It cannot be appreciated that as to how could the testimonial assertions of Rajesh Giri, P.W. 1 and Subedar, P.W. 2 get corroboration from each other when there was serious contradiction between the testimony of the two as to the seat of the body of the deceased where the shot had been fired by the Appellant. Rajesh Giri, P.W. 1 was emphatic that the shot had been fired by the Appellant fixing the pistol on the back of the deceased whereas Subedar, P.W. 2 made a different statement that the shot had not been fired by the Appellant on the deceased fixing the pistol on his back. Rather he had fired the shot fixing the pistol in the lower side of his left armpit. It may also be observed that Rajesh Giri, P.W. 1 was only at a distance of about 5 hands from the Appellant and victim when the shot had been fired (the place of his presence shown by letter �B� in the site plan) whereas Subedar, P.W. 2 was sitting at the parapet of the wall (shown by letter �D� in the site plan) which was at a distance of about 15 paces from the spot �A� where the deceased received the shot. The distance between points �A� and �B� was only four hands as per the site plan prepared by the I.O. It is apparent that as per the own case of the prosecution, Rajesh Giri, P.W. 1 was much nearer to the Appellant and the victim than Subedar P.W. 2 and was, therefore, in a better position to watch the incident. It may be stated at the risk of repetition that the categorical statement of Rajesh Giri, P.W. 1 is that the shot had been fired by the Appellant from point blank range fixing the pistol on the back of the deceased. It is wholly irreconcilable with the medical evidence, as the victim did not sustain any injury on his back. There is apparent contradiction too between the testimonial assertions of Rajesh Giri, P.W. 1 and Subedar P.W. 2 in this behalf. The theory of only one shot having been fired as per the evidence of Rajesh Giri, P.W. 1 and Subedar, P.W. 2 is also in marked conflict with the medical evidence as contained in the post-mortem report and statement of Dr. Shailendra Kumar, P.W. 7 to the effect that the ante-mortem injuries No. 1 and 3 could be sustained as a result of one shot but ante-mortem injury No. 2 could not be the result of the same shot. A careful glance on the seats of three ante-mortem injuries sustained by the deceased itself indicates that they could not be the result of one shot and the testimony of Dr. Shailendra Kumar, P.W. 7 is acceptable in this behalf.

The resultant effect is that the evidence of two eye-witnesses, namely, Rajesh Giri, P.W. 1 and Subedar, P.W. 2 believed by the learned Additional Sessions Judge to convict the Appellant is contradictory instead of being corroborative of each other. There is also serious conflict between the ocular version and the medical evidence which strikes at the bottom of the prosecution case put forth through Rajesh Giri, P.W. 1 and Subedar, P.W. 2 examined as eyewitnesses. It goes without saying that the Court is to be guided by legal evidence adduced before it. No doubt, the deceased Shiv Jag alias Bode was victim of violence but the Appellant could not be convicted on the basis of the evidence adduced at the trial in the face of the contradiction in the evidence of two eye-witnesses and serious conflict between the ocular testimony and medical evidence, going to the root of the matter. Therefore, in our opinion, the learned Additional Sessions Judge could not convict and sentence the accused-Appellant.

In view of the foregoing discussion, we allow the appeal and set aside the conviction and sentence passed by the learned Additional Sessions Judge u/s 302 I.P.C. against the accused-Appellant Dina Nath by the judgment and order under appeal. The Appellant is hereby acquitted. He is on bail and need not surrender. His personal bond and bail bonds are cancelled and the sureties discharged.