Happu and Others vs State of U.P.

Vijay Kumar Verma, J.—The appellants named above were tried in S.T. No. 1155 of 1998 (State vs. Happu & others), by Additional Sessions Judge, Fast Track Court No. 3 Budaun, who by the judgement and order dated 20.01.2006, convicted and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 20, 000/ each under section 302 read with section 34 IPC, with further rigorous imprisonment for ten years and to pay a fine of Rs. 5, 000/each, under section 307 read with section 34 IPC. They have challenged their conviction and sentence by means of this appeal and have made a prayer for granting bail pendentilite.

An FIR was lodged by Sukhpal son of Bal Kishan on 18.02.1998 at P.S. Binawar, District Budaun, where a case under section 302/307 IPC was registered at Crime No. 42/98 against the appellantsaccused. The allegations made in the FIR, in brief, are that on 18.02.1998, Naresh and Rajvir were going on dunlop to bring their engine from the field and when at about 5.00 p.m. they reached near the field of Damodar, the accused Happu, Rishipal, Afsar and Kallector fired on them by illicit guns and tamanchas, due to which Naresh sustained injuries and died instantaneously and Rajvir also sustained fire arm injury.

We have heard Sri Manish Tiwary learned counsel for the appellants, Sri V.K. Mishra learned Additional Government Advocate for the State and perused the record.

Although arguments touching the merit of the case including anti timing of FIR and doubt about the presence of the complainant Sukhpal (P.W.1) and Rajendra (P.W.3) at the time of alleged incident were made by Sri Manish Tiwary learned counsel for the appellants, but his main contention was that there is material inconsistency in oral and medical evidence, which can not be reconciled and hence the appellants deserve bail in this case, because due to the material inconsistency in oral and medical evidence, reliance cannot be placed on the testimony of the witnesses examined by the prosecution. The contention of the learned counsel was that according to the FIR version, only fire arms were used in the alleged incident and the deceased Naresh is also said to have sustained fire arm injuries only, but at the time of postmortem examination, in addition to fire arm injuries, some other antemortem injuries which could not be caused by fire arms were also found on the person of deceased. Our attention was drawn towards the postmortem report Ext. Ka 15, which was proved by P.W.7 Dr. D.K. Saxena, who had conducted autopsy on the dead body of deceased on 19.02.1998.

Regarding the inconsistency in oral and medical evidence, it was further submitted by the learned counsel for the appellants that according to Dr. D.K. Saxena (P.W.7) antemortem injuries no. 1 is possible to be caused by the blow of very heavy and big size blunt object like hathaura, ghan or stone and this injury can also be caused by successive blows of lathidanda also, but it is not the case of prosecution either in the FIR or in the oral evidence of the eyewitnesses including injured Rajvir that the deceased was assaulted by any heavy and big size blunt object like hathaura, ghan, or stone or lathidanda and hence due to this material inconsistency in oral and medical evidence, the case of the prosecution as contained in the FIR and in the statements of the witnesses becomes false. It was also submitted in this regard that due to this material inconsistency in oral and medical evidence, the presence of P.W.1 and P.W. 3 (alleged eyewitnesses) at the time of the incident becomes doubtful.

It was further submitted by the learned counsel for the appellants that although the presence of P.W.2 Rajvir at the time of alleged incident is not doubtful, because he also sustained fire arm injuries, but his statement also is not worthy of reliance, as according to him the deceased Naresh is said to have sustained only fire arm injuries due to which he died then and there, but according to the postmortem report, the deceased had sustained five other antemortem injuries also which were not caused by fire arms and hence due to this material inconsistency in his statement and medical evidence, implicit reliance cannot be placed on his testimony. The contention of Sri Manish Tiwary was that the injured Rajvir has concealed the real facts and he has made false statement just to support the FIR version.

Next submission made by the learned counsel for the appellants was that seeing the weakness of prosecution version as contained in the FIR, an improvement was got made by the prosecutor at the time of examination of P.W.1 Sukhpal, who has stated in his examinationinchief that after causing fire arm injuries to Naresh, the accused Happu and Rishipal had assaulted him by the buts of guns. It was submitted by the learned counsel for the appellants that the statement of P.W.1 Sukhpal regarding assaulting the deceased by the accused Happu and Rishipal by the buts of guns is an improvement, because this fact was neither mentioned in the FIR lodged by this witness, nor such statement was made by him during investigation and hence, no reliance can be placed on the aforesaid statement of this witness.

The learned AGA on the other hand submitted that in the day light incident, the appellantsaccused committed the murder of deceased Naresh, hence they should not be admitted to bail.

Having given our thoughtful consideration to the rival submissions made by the parties counsel, we find substance in the above mentioned submissions made by the learned counsel for the appellants. The prosecution has miserably failed to furnish any satisfactory explanation regarding antemortem injury nos. 1, 4, 5, 6 and 7. The antemortem injury no. 1 is abraded contusion 14cm x 10cm of right side face extending from right side forehead front to parietal region up to right (illegible) mandible. On dissection, right parietal bone, frontal bone, temporal bone, zygomatic arch and right mandible were found fractured at places and underneath meninges on forehead side and brain were lacerated. This injury is not possible to be caused by falling down on the earth, because right parietal bone, frontal bone, temporal bone and right mandible were fractured. Dr. D.K. Saxena (P.W.7) also has stated in his crossexamination that in ante mortem injury no. 1, many parts of the head and face were fractured and this injury can be caused by one blow, if the object of assault is very heavy and big like hathaura, ghan or stone and this injury can be caused by lathidanda also, if successive blows are given at the same places. According to Dr. Saxena, antemortem injuries no. 4 to 7 are also possible to be caused by lathi blows. It is not the case of prosecution either in the FIR or in the statement of injured Rajvir and so called eyewitnesses Sukhpal and Rajendra that any hathaura, ghan, stone or lathidanda was used in the alleged incident. The injured Rajvir (P.W.2), whose presence at the time of alleged incident is not doubtful, has not stated in his statement that after causing injuries by fire arms to the deceased, he was assaulted by the accused Happu and Rishipal by the buts of the guns as stated by P.W.1 in his examinationinchief. Therefore, the statement of P.W.1 Sukhpal that after causing injuries to deceased by fire arms, the accused Happu and Rishipal had assaulted him by buts of guns is not worthy of reliance, being clear improvement and after thought during trial.

Therefore, in view of the facts mentioned hereinabove, but without expressing any final opinion about these facts on merit, the appellantsaccused, who are in jail since 20.01.2006 after their conviction, deserve bail.

Let the appellants Happu s/o Kishipal Yadav, Rishipal s/o Sipptor, Afasar s/o Gulab Yadav and Kallector s/o Gulab Ydav be released on bail on their executing a personal bond of Rs. 25, 000/ and furnishing two sureties each in the like amount to the satisfaction of the trial court concerned and depositing one forth amount of fine. Realization of the remaining fine amount shall remain stayed pending appeal.