Gulab and Others vs State

V.P. Mathur, J.—The four Appellants of this appeal have been convicted by Sri J.S. Singhal, the then Vth Addl. Sessions Judge, Azamgarh, vide his order dated 20th June, 1978. Gulab has been convicted u/s 302 IPC and has been sentenced to undergo imprisonment for life, Ram Harakh alias Harakh, Dwij and Kharpattu have been similarly convicted u/s 302 read with Section 34 IPC and have been sentenced to undergo imprisonment for life.

The prosecution story revolved round the murder of one Ramdhari resident of village Bankra Buzurg which lies within the Police Station Ghosi, district Azamgarh. This murder took place at about 1 A.M. on 24-6-1977 and the first information report was lodged in Police Station Ghosi situate at a distance of 6 kms the same morning at 6.30 A.M. by Chandrapati. This Chandrapati is the step brother of the deceased, their mothers being the same and their fathers being different. The murder took place in front of the ''Baithaka'' of Ramdhari deceased. The allegation are that Ramdhari was sleeping on a ''Charpai'' and nearby on another ''Charpai'' Chandrapati was also sleeping. There was some previous litigation between Ramdhari on one hand and Dwij and Harakh on the other hand with respect to agricultural land. An attempt was made to hold the village ''panchayat'' for the settlement of this dispute but it aborted and this settlement could not be made. It is also contended that Ram Harakh and Dwij had threatened Ramdhari with dire consequences and hence this occurrence took place. It is contended that Gulab and Kharpattu were armed with ''Addhas'', Ram Harakh was armed with a lathi and Dwij had a spear. Before we proceed further it may be mentioned that Gulab is the son of Dwij and Harakh is the son of a cousin of Dwij while Kharpattu is his brother in law''s brother. They were thus closely related and had an interest in putting an end to the life of Ramdhari.

It was a dark night and the witnesses are credited with torches. It is stated that on the arrival of the accused-Appellants, Chandrapati woke up and he lighted his torch and saw the four culprits with their weapons and before he could do anything Gulab fired with his ''Addha'' on the chest of the deceased. Then Chandrapati raised a cry and witnesses Chhotey Lal PW 2 and Faujdar PW 3 who have their houses at a distance of 120 paces according to the Investigating Officer and site plan, from the scene of occurrence and were sleeping in front of their house, got up and with their torches went towards the scene of occurrence. The prosecution story is that Chandrapati was the only eye witness of the actual offence and it is contended that before the culprits went Out of the ''Baithaka'' of the deceased, a second shot was fired at the deceased by Kharpattu from very close range of two ''Angul'' which hit him on his lip. The two other witnesses, namely, Chhotey Lal and Faujdar simply say that when they rushed with their lighted torches and reached in front of the ''Baithaka'' of Ramdhari deceased, they saw the accused-Appellant running away towards north. They further deposed that when they gave a chese to the culprits, they were threatened and so they had to return back.

The post mortem examination in this case was done by Dr. R.R. Rai PW 7 on 25-6-1977 at 10.30 A.M. Significantly he does not mention the injury on the lip of the deceased and the only injury he has noted is "six gun shot wounds in an area of 2 1/2" x 2" on the right side of the chest lower part 4" below the nipple. This injury had a blackening in an area of 2 1/2". The right lung had been lacerated at one place under this injury and so also pleura. The liver was also lacerated at one place and the death was due to shock and haemorrhage. Four irregular metalic pieces were recovered from the body of the deceased, one from the liver, another from the right lung and two from the chest muscle. The doctor''s opinion is that this injury could have been caused and the death taken place at about 1 A.M. on 24-6-1977.

There is only one eye witness namely Chandrapati PW 1. He seeks corroboration from the testimony of Chhotey Lal PW 2 and Faujdar PW 3 who are said to have reached the place of occurrence immediately after the occurrence. All other witnesses including the doctor and the Investigating Officer are formal witnesses and need not be commented upon here.

Much will depend upon the testimony of Chandrapati PW 1. He claims that he was sleeping on a separate ''Charpai'' near the ''Charpai'' of the deceased and was awaken by the sound of the foot-fall of the accused-Appellants and then he saw the entire occurrence including the second shot fired by Kharpattu. His testimony, however, becomes extremely doubtful. His father was one Dhulli of village Reyaon which is atleast six miles (3 Kos) away from the scene of occurrence. Dhulli left some agricultural land and a house in village Reyaon in respect of which some litigation between Chandrapati and other family members is going on. Chandrapati was examined in that case and he clearly gave statement that he was living in village Reyaon in his own house and he was not living in village Baniyapar. Now he seeks to deny the truth of that statement by saying that he made that statement in that case on the advice of his Counsel. It however, appears that the truth is that he was a resident of Reyaon and had nothing to do with Baniyapar. This is further supported by the fact that in his deposition for the first time he stated that the second shot was fired by Kharpattu from a distance of only two ''Angul'' over the lip of the deceased. He does not make any mention of it in the first information report and he does not speak about this fact in his statement recorded by Investigating Officer u/s 161 Code of Criminal Procedure. The story is, therefore, a figment of imagination. Strangely, the doctor did not find any gun shot injury on the lip of the deceased. If we peruse the first information report and the inquest memo, then it will appear that there was some sort of injury on the lip of the deceased and perhaps one of the teeth had come out and was found lying near the dead body. What injury was it, is however, not clear. In any view of the matter it would not have been a gun shot wound because from a distance of only two ''Angul'' when a ''Addha'' or ''Katta'' is fired, the whole of the jaw and mouth is expected to get shattered and merely a small injury which was even so small that it could not be perceived at the time of the post mortem examination, could not have been a result of firing with a ''Katta''. It may be that this injury was caused as a result of a blow of a ''Lathi'' or even a fist. It may also be that this injury was not caused at the time of this occurrence and had been caused some time earlier. There is nothing on the record further to show that at the time of the post mortem examination it was found that the deceased was missing one tooth. Therefore the connection of this tooth with the deceased is also not made out. In any view of matter the story put forth by Chandrapati regarding the second firing by Kharpattu is absurd and it has only been manufactured in order to explain the injury which he had earlier mentioned in the first information report. It appears, therefore, that Chandrapati was not present on the spot when the occurrence took place and in all probability he was brought from village Reyaon to have a first information report scribed at a later time. The occurrence took place at 1 a.m. The first information report was lodged at 6.30 a.m. after a gap of five hours and more, and the distance which the first informant has to cover was only six kms. It is in his testimony that he reached the ''Thana'' within two hours. Thus there is no explanation of the delay in lodging the first information report and the suggestion given by the defence that this delay was caused because the police got this witness from village Reyaon which is six miles away and then made him to get the first information report scribed, is quite weighty. We come to the conclusion that the presence of Chandrapati is doubtful. The eye-witness of occurrence, thus, goes off.

As regards the remaining two witnesses namely PW 2 Chhotey Lal and PW 3 Faujdar, Chhotey Lal has admitted that Faujdar''s wife and his own wife are cousin sister. It means, therefore, that Faujdar is very closely related to this witness although he denied this fact when he enters the witness box as PW 3 and so far as Chhotey Lal is concerned he admits that Faujdar is his uncle. These two witnesses are related inter-se and are also related to the first informant. Chandrapati appears to have been brought in the evidence to support a case, of which actually there was no witness. Chhotey Lal says that he was sleeping at the door of his house and he got up when he heard the firing of the shot and then he heard the cry of Chandrapati. He took up his torch and went towards the ''Baithaka'' of Ramdhari deceased. Similar is also the statement of Faujdar who was also sleeping outside his house. He woke up on the firing of the gun and then he took up the torch and ran towards the scene of occurrence. The Investigating Officer has found the distance between the scene of occurrence and the house of Faujdar PW 3 to be 120 paces and 5 paces more is the house of Chhotey Lal. Therefore, these two witnesses have to cover 120-125 paces before reaching the scene of occurrence. It is a big distance and it is highly improbable that the culprits after accomplishing their object by firing at the deceased would have still remained standing as Faujdar insists, and started to run away as Chhotey Lal says, just to expose themselves to the witnesses. Then again both these witnesses say that when the accused were running away they were facing north and north west while these witnesses viewed them from their south. Only their (culprits) backs could have been visible and their faces could not have been seen. This is specially so when it is admitted case of the prosecution that it was a dark night and the only light available was of the torches of the witnesses. PW 3 Faujdar at one place says that when he reached the scene of occurrence, he saw the accused persons running away but immediately thereafter he insists that the accused persons were still standing near the ''Charpai '' of the deceased and had not started running. This is an attempt to ward off the truth that while they were running away and these two witnesses rushed on the spot from a distance of 120-125 paces, they could never have seen the accused at all.

An analysis of the evidence of these two witnesses will, therefore, show that they were both made up and actually saw nothing. They are wholly unreliable and conviction u/s 302 IPC cannot be sustained on their testimony.

In the result the appeal has got to be allowed. The conviction of Gulab u/s 302 IPC and Kharpattu, Dwij and Ram Harakh u/s 302 IPC read with Section 34 IPC is set aside and so also the sentences of life imprisonment awarded to them. They all are on bail. They need not surrender to their bail bonds which hereby stand discharged.