Jagdish and Ors. vs State of U.P.

S.K. Agarwal, J.—This appeal was preferred by five appellants, viz. Jagdish, Rajendra, Kanhai, Nanhey and Amar Singh. Nanhey and Amar Singh are father and son respectively. Kanhai is another son of Nanhey. Three members belong to same family and other two had enmity with the deceased Darshan Lal and the informant P.W. 1 Sukhdeo Sharma. These persons were convicted by the V Additional Sessions Judge, Budaun, under Sections 302/149 I.P.C. and they were sentenced to imprisonment for life. Under Section 148 I.P.C. Four of them were sentenced to two years'' R.I. Amar Singh, who was holding a Lathi, was convicted under Section 147 I.P.C. also and sentenced to 18 months'' R.I. All the sentences were directed to run concurrently.

In brief, the facts of the case, as reported in the F.I.R. by the informant P.W. 1 Sukhdeo Sharma, are that he and his cousin, deceased Darshan Lal, had gone in the morning on 2551980 (Sunday) to village Ghatiyari and at the time of incident they were returning to their village from the said place. At about 8.00 a.m. they were accosted, as they reached the field of Ganga Ram near his Maind, by the three appellants Jagdish, Kanhai and Rajendra. These persons emerged out from behind the shrubs standing there. A challenge was thrown to Darshan Lal, who was Pradhan of his village for the last 10 years. Rajendra opened first fire upon the victim from his country made pistol. The victim ran to safety towards his village. All the three assailants closely followed him on his heels. When the victim reached the Rahat of appellant Nanhey, he along with his son Amar Singh tried to check any further movement of the victim. At the said time Nanhey was possessing a Khurpi and his son Amar Singh was having a Lathi. Nanhey gave a Khurpi blow upon the victim. This made the victim abandon his route and turn to the field of Roop Ram. In the process shots were repeatedly fired. The deceased fell down in the field of Soberan having suffered firearm injuries. The incident was witnessed by Kirti Singh resident of Bamnausi, Dumber Singh Yadav resident of Chhetu Nagla, Ram Chandra resident of Bhakora. The motive suggested in the F.I.R. was animosity on account of the deceased being the Pradhan of the village and purchase of field of one Manohar Singh Yadav by him. The accused were also equally interested in its purchase.

The F.I.R. of the occurrence was registered at P.S. Kadar Chowk, District Budaun, at about 11.30 a.m. on 2551980. The written report is Ext. Ka1. It was prepared by informant at his house. Gaya Prasad, a resident of the same village, scribed it on his dictation. Thereafter he proceeded for the police station on a cycle to lodge the report.

After registration of the case the appointed Investigating Officer took up investigation and proceeded for the spot where he arrived at 2.30 p.m., according to his own statement. The inquest was performed through its memo Ext. Ka4. Papers from Ext. Ka5 to Ka8 were all prepared in relation to the conduct of autopsy. Blood stained earth and simple earth was taken from the field of Soberan. The spent cartridge was also recovered from the field of Roop Ram. The dead body was despatched to the mortuary through Constable Girish Chand Sharma and village Chaukidar.

P.W. 4 Dr. M.V. Juyal performed the autopsy on the corpus of Darshan Lal. The Medical Officer found the following injuries upon his person:

(1) Three gunshot wounds of entrance 1 cm. x 1 cm. x thickness of left upper arm on front of upper 3rd in an area of 6.5 cm. x 5 cm. with inverted and lacerated margins. Blackening and charring present. The muscles were badly torn out and the shaft of humorous bone was fractured in numerous parts.

(2) Three gunshot wounds of exit 13/4 x 13/4 cm. each in the back of left upper arm upper 3rd in an area of 10 cm. x 8 cm. Margins inverted. No blackening and charring present. These wounds were communicating with wounds of entrance.

(3) Gunshot wound of entrance five in number on lateral aspect of right side abdomen below the margin of ribs. Margins inverted and lacerated. Blackening charring present. Size of each wound was 3/4 x 3/4 cm. x abdominal cavity situated in an area of 8.25 cm. x 63/4 cm.

(4) One gunshot wound of exit 2 cm. x 13/4 cm. x abdominal cavity on the middle 3rd of left side of abdomen outer aspect. Margins inverted and lacerated. No blackening and charring present.

(5) Incised wound 3.5 cm. x .5 cm. x muscle on left side of face just below and front of left ear.

But for the incised wound muscle deep on left side face just in front of trachea, other injuries were gunshot wounds of entry and exit. There were two wounds of entry with its corresponding wounds of exit. Liver and intestine were affected by the shot that entered into the abdomen. This was injury No. 3. It had proved fatal, according to the Medical Officer. Injury No. 1, being upon left arm, had fractured the shaft of humerus bone into many fragments. In the upper third the area that it covered was 6.5 cm. x 5 cm. Three pellets made their exit from the posterior side of this arm. The exit was corresponding to the wound of entry. Similarly, injury No. 3, which is on the abdomen, on its right side, had five entry wounds in the dimension of 3/4 x 3/4 cm. x abdominal cavity. The area that the wound caused is 8.25 cm. x 63/4 cm. The exit wound is probably an amass exit 2 cm. x 13/4 cm. x abdominal cavity on the middle third of left side abdomen. Both the entry wounds had blackening and charring, meaning thereby, as contended by learned counsel for the appellants that both shots were fired from a close proximity from a country made, weapon. Pistols were alleged in the F.I.R. with three of the appellants, Rajendra, Jagdish and Nanhai.

The prosecution in support of its case examined three eyewitnesses. They are P.Ws. 1, 2 and 3, viz. P.W. 1 Sukhdeo Sharma, cousin of the deceased, P.W. 2 Ram Chandra and P.W. 3 Dambar Singh. Both P. Ws. 2 and 3 are not residents of the village of occurrence. They were resident of places 1 Km. or more from the spot. They had though given reasons for their presence near the place of occurrence. P.W. 2 stated that he was going for sale of his watermelon to Bamnausi and in the process he happened to witness the occurrence. P.W. 3 Dambar Singh stated that he was going to Jori Nagla along with Kirat Singh. When he reached near the site accused persons, named in this judgment, were present there with country made pistols first threatening Darshan Lal and thereafter chasing him. Rest of the witnesses are formal witnesses.

As earlier discussed, Dr. M.V. Juyal conducted the autopsy on the person of Darshan Lal. P.W. 5 Puran Chand Pathak is the S.I. and S.H.O., who conducted the investigation of the case and submitted the chargesheet, apart from preparing documents, which have already been referred to by us earlier in our judgment. P.W. 6 Girish Chand Sharma is the escort Constable, who carried the sealed corpus to mortuary for the performance of postmortem. This is entire evidence in the nutshell adduced by the prosecution in the case.

A challenge to the testimony of the ocular witnesses was thrown on the following contentions by learned senior counsel Sri P.N. Misra. The F.I.R. is not only antitimed but antidated as well. According to him, this is clinchingly established from the evidence of P.W. 1 Sukhdeo Sharma itself, apart from it corroboration is furnished for it by the inquest memo. The presence of P.W. 1 Sukhdeo Sharma and the other witnesses at the spot, according to his contention, is a highly doubtful circumstance consequently. According to him, there is partybandi in the village. The informant and the witness belong to the party of Darshan Lal. The incident had taken place in total isolation. It was not witnessed by any one. Therefore, these persons are got up witnesses and are rank liars. Their evidence is not worthy of the paper on which it is printed. Thirdly, the medical evidence'' did not corroborate the prosecution story of repeated shots being fired upon the victim from behind in the process of chase. There is every possibility, according to Sri Misra, of the false involvement of the appellants due to preexisting enmity. The prosecution has not at all established the motive so suggested. It, on the contrary, leads to their probable false implication. Learned A.G.A. argues that the evidence is reliable and also credible. F.I.R. is prompt.

In order to evaluate the submission made by learned counsel for the appellants, we have to thoroughly scrutinise the evidence of star witness of the case Sukhdeo Sharma. If he holds his ground firmly the other eyewitnesses may also be accepted.

P.W. 1 Sukhdeo Sharma is the cousin of the deceased. His house is contiguous to the house of the deceased. His claim was that he had accompanied the deceased from his village Birotiya at about 6.006.30 a.m. to Ghatiyari. The distance of the destination from the place of their residence being 11/2 Kms. They stayed in the said village for about an hour and a quarter. They commenced their return at about 8.00 a.m. At about the said time the evidence shows that they had been at the site of incident, i.e. the field of Ganga Ram. The body was recovered from the field of Roop Ram. The distance the deceased covered on being challenged by the appellants, who were armed with pistols, upto the place where he fell down was 250300 steps. According to this witness, the deceased was persistently chased all along this distance from the field of Ganga Ram. It was Ganga Ram''s field where the first shot was fired. The F.I.R. does not show that this shot struck the victim. However, in the trial Court it had been stated, that the victim suffered injury from the shot fired by Rajendra. After receiving the injury the victim took to his heels and ran towards his village. The assailants who were three in number persuaded him. They were joined by Nanhey and his another son Amar Singh at their field near their Rahat. These two accosted him from the front. Nanhey inflicted a Khurpi blow upon the victim and his son Amar Singh raised his Lathi in order to prevent him from going towards his village. Forced by these events the victim turned towards the field of Roop Ram where ultimately he fell down and died as a consequence of repeated gunshots fixed by the assailants.

A close scrutiny of the evidence of this witness reveals that a distance of 1015 steps was persistently maintained between the culprits and the deceased before he fell down in the field of Roop Ram having suffered the firearm injuries. As per this statement the first shot made by Rajendra struck the victim in the field of Ganga Ram itself. This shows that the shot was fired when the victim was already in the process of making his escape good from the spot. A look into injury No. 1 noted amongst the antimortem injuries in the postmortem report makes it clear that the entrance of this injury was in the entire diameter (thickness of left upper third) of the left arm. The area that it covered on the arm was 6.5 cm. x 5 cm. It had blackening and charring. The membrane and the muscles that came in the route of these pellets upto the exit were extensively lacerated. The shaft of humorous bone was fractured in numerous parts. There were three exits also on the back of the left arm upper part. This proves that this shot must have been fired on the victim from a very close proximity and also from the front. Coming to the third injury, which is on the abdomen, it had also five wounds of entry on the right outer side of the ribs, probably near the sternum. The entrance was inverted and also lacerated in its internal course. Blackening and charring was present in this injury also. Every independent wound was 3/4 x 3/4 cm. x abdominal cavity deep. The area that blackening and charring covered was 8.25 cm. x 6.75 cm. This clearly is indicative that the shot was fired upon the victim from the right side, probably in a falling condition. Four large pellets were recovered from the abdominal cavity. Stomach was empty. Small intestine was perforated at eleven places. Large intestine has scant feacal matter. Liver was badly lacerated. This injury was, in the opinion of the Medical Officer, the cause of his death. Thus, the presence of blackening and scorching in both the gunshot injuries clearly proves that the shots were fired after the assailants were in a handshaking situation with the deceased. One of the shot, i.e. injury No. 1, was fired from the front. The other one was also almost from the front from right side of the victim. Thus, the story adhered to and equivocally emphatically stated in the trial Court in his deposition by P.W. 1 stands clearly, falsified that first shot was fired upon the victim while he was running away from the spot from behind. Admittedly, from the very beginning the assailants were a few steps (810 steps) behind the deceased. The story about the challenge being given by the assailants also does not go down our throat in the situation which has already been dealt with by us. It leads clearly to the inference that this had been an ingenuity on the part of the informant and the I.O. so that the presence of the witnesses could be attested. He had not ascribed any reason for his accompanying the deceased to village Ghatiyari. The Sessions Judge has considered the aspect and rejected the defence contention on the ground that though the counsel for the defence had indirectly asked the question about his accompanying the brother to Ghatiyari but had not mustered the necessary courage to put the said question directly to the witness in the trial Court. We do not see eye to eye with the observation made in discarding the contention by the Sessions Judge. In our opinion it was not necessary to make the suggestion clean breast to the witness especially when it was not said by him either in the F.I.R. or in his 161 Cr. P.C. statement. No intelligent counsel is going to invite an answer which may spell danger for him and his client, especially when there is enough material on record on this score to eliminate the truthfulness of this witness. This omission, therefore, on his part upto the trial Court leaves sufficient room to doubt his accompanying the deceased. Moreover, from the very beginning he had been on the run. According to him he lagged behind by 15 20 steps all along. He stood a witness against two of the appellant Rajendra and Jagdish in a 376 I.P.C. case, which was prosecuted against them by one Allah Bux of the said village. There is nothing on the record to suggest that the informant or the deceased was doing pairvi on behalf of Allah Bux or had any affinity with him. The witness was given suggestion too in this regard but he had all along made negative response to the suggestion. Probably for fear of being dubbed as the author of the prosecution due to enmity against the two appellants. Apart from this, the entire tenor of the statement of this witness is negative in its approach. Every suggestion connected with the assailants and this witness was evaded by him except one suggestion. He also evaded suggestions with regard to criminal antecedents of the deceased. He admitted only two cases in which the deceased was prosecuted; one under Sections 395/397 I.P.C, which, according to him; resulted in his acquittal and the other under Sections 399/402 I.P.C. He made evasive response to all other cases of robbery and other small matters. He is inimical to some of these accused persons, therefore, has been prompted by his will to revenge upon.

The F.I.R. in the case further strikes a nail into the coffin of this witness and his testimony. The F.I.R., according to this witness, was registered at P.S. Kadar Chowk at 11.30 a.m. The distance of the police station, according to him, is 13 Kms. He started from his village at about 9.00 a.m. and to cover the distance he took about 2 hours to be there at 11.30 a.m. From his own statement it is apparent that the F.I.R. was not prepared by him at the village. It was not scribed by Gaya Prasad on his dictation at his house. The F.I.R. was clearly prepared at the police station. He admitted that he had reached his village or his house at about 9.15 a.m. after the occurrence. He stayed at the place of occurrence in village Bhatiyari (field of Roop Ram) for half an hour. It took him another half an hour in preparing the report. He failed to recollect drafting of any other report in the past. When he was questioned about preparation of the report at his home his response was that even if he would gone the police station without written report the police officer must have asked him to prepare the report, therefore, he drafted it at his home. The explanation for taking over an hour and a half, in reaching the police station, offered by the witness was that the route upto Kader Chowk was Kachcha Road was bad. It was sandy. Therefore, it took him this much time. When the report was prepared by him, he and Gaya Prasad, who scribed the report, were alone at his house. No villager was there. According to him, before he started preparing the written report, the villagers had proceeded to the spot where the dead body was lying. They did not make any enquiry from him nor he revealed the facts to any one before transcription of the said report. Who was the assailant of his brother was never told to anyone. According to him, he disclosed the names of the assailants for the first time to Gaya Prasad while dictating the report. It is further admitted by him in paragraph No. 28 that when he was proceeding from the spot towards the village a crowd of the villagers was proceeding for the spot. They made enquiries from him as to who were the assailants, but he did not reveal it to any one till of the F.I.R. was dictated by him.

According to the I.O., he reached the spot around 2.30 p.m. The dead body, according to informant, was despatched from the village in the night around 9.10 p.m. But according to I.O. it was despatched from the spot at about 4.00 p.m. This witness (P.W. 1) was a witness of the inquest. There is no mention in the inquest memo of the use of a Khurpi. The inquest memo only contains the cause of death as �Goli Markar Hatya Kar Diya.� If he was an eyewitness, certainly the weapons ought to have been in the inquest memo. Check report was made available to I.O. already at the time of inquest. It contained all the weapons used in the incident. Three of the assailants were possessing country made pistols and Nanhey had Khurpi and Amar Singh had a Lathi, but total omission of these weapons in the inquest leaves no room for maneuvering its omission in memo of inquest for the prosecution. The I.O. tried to get over the difficulty with regard to the omission of Khurpi and Lathi by saying that amongst the injuries noted in the inquest an incised wound was noted other than gun shot. The evidence on record is suggestive of the fact that these injuries were noted after the postmortem was conducted. P.W. 4 Dr. M.V. Juyal has clearly admitted that in the postmortem he, by mistake, has shown this injury to be on the right side cheek. As a matter of fact the injury was on the left side. The S.I. has noted this injury at Sl. No. 2 in the inquest memo amongst the injuries in the same manner as it was disclosed in the post mortem report. Thus, it clearly indicates that inquest memo was partly prepared. Some of the columns were left blank and were filled in after receipt of the postmortem examination report. We are fortified in our discussion and observation from the fact that in the inquest memo the all such entry is indifferent ink except the date 2551980 and time of registration of the F.I.R. as 11.30. We have circled the said writing with a pencil. We have also underlined the noting with regard to the weapons �Goli Markar Hatya Kar Diya� made in the inquest. At the cost of repetition it is again stated that this witness Sukhdeo is a witness of inquest at Sl. No. 2. Thus, in view of the above facts and circumstances there remains no doubt in our mind that this F.I.R. is antetimed. Body was sent for mortuary by 9.10 p.m. too has some bearing. We are, therefore, reluctant to place any reliance on the testimony of this eyewitness. We are in full agreement with the contention of learned counsel that the evidence of this witness is not worth the paper on which it had been printed. He is a rank liar and a got up witness. Enmity was in the root of his deposition.

The occurrence was not witnessed by any one. It occurred in complete isolation. This is fully corroborated by the medical evidence. Therefore, his testimony is discarded fully by us. Once we discard the evidence of this witness, as we have already said, the evidence of other two witnesses, who were his bench men, will automatically be disbelieved because they are supporting fully the version brought forth by this witness. P.W. 2 Ram Chandra is the person who claimed that he was going to sell his watermelon to Bamnausi and he proceeded for Bamnausi on the said date at about 11.00 a.m. and returned at about 2.30 or 2.45 p.m. On his return he did not find the I.O. present on the spot. He left for his village at about 3.00 p.m. He neither stayed at the place of occurrence till the arrival of the informant and the S.O. nor returned to the place of occurrence all along the night. The murder occurred at 8.00 a.m. He claimed that he set out for Bamnausi at 1.00 a.m. It is sufficient to discard him. The reckless attitude of this witness towards the incident is incomprehensible. He came to the spot only when summoned through the constable by the S.I. the next day at about 11.00 a.m. He was available to the S.I. for recording of his statement. He had categorically admitted that he was not aware of his nomination in the F.I.R. This version of his and the story culled out by P.W. 1 that the F.I.R. was prepared at his residence by him does not stand our scrutiny at all. The presence of the Chaukidar at the police station when this witness reached for the registration of the F.I.R. is indicative of the fact that the Chaukidar communicated some message first and the F.I.R. was prepared later on. The Chaukidar accompanied the S.I. and the informant to the village. His statement that he did not accompany him from the police station, in our eyes, is a total lie. It appears that he was sent to the police station first to call the police. The incident did not occur at alleged time also is clearly made out from these facts.

The implication of Nanhey and Amar Singh in the incident at a later stage has absolutely no nexus with premeditation. We find it unsafe to accept the testimony of this witness that Nanhey and Amar Singh had accosted the deceased so as to make him turn to the field of Soberan from where the police ultimately recovered the dead body. No role whatsoever was attributed to Amar Singh in the F.I.R. or in the 161 Cr. P.C. statement by the witnesses, but for the first time in the trial Court it had been stated by him that Amar Singh raised his Lathi to prevent the deceased from moving towards the village. Enmity between Nanhey and his family and the informant is very much in existence. This witness (P.W. 1) Sukhdeo Sharma is a witness against them in some cases. Therefore, in our opinion, it further lends assurance to the got up character of this witness. He named the accused on his coming to know of the murder of his brother from some other source in league with the investigating officer who arrived at the scene on the information from the village Chaukidar, who deliberately was withheld.

In view of the discussions made above by us, this appeal is to be allowed. Accordingly, the appeal is allowed. The charges for which the appellants were convicted are set aside. They are acquitted of all the charges. They are on bail. They need not surrender. Their bail bonds are cancelled and the sureties are hereby discharged.