Kali Prasad Singh alias Paintol and Santosh Kumar Singh vs State of U.P.

Poonam Srivastav, J.—The appellant Kali Prasad Singh alias Paintol in Criminal Appeal No. 476 of 2002 and Santosh Kumar Singh in connected Appeal No. 514 of 2002 have preferred these appeals challenging the judgment and order dated 29.1.2002 in S.T. No. 456 of 2000 convicting both the appellants u/s 302 I.P.C. and awarding to undergo life imprisonment along with fine of Rs. 5,000/- each. In default of payment of fine to further undergo six months R.I. Both the appeals arise out of same incident and common judgment, thus they are being heard together.

The occurrence is alleged to have taken place on 18.2.2000 at 10.00 P.M. in Mohalla Sikraul, Varanasi. The F.I.R. (Exb. Ka-1) was lodged at 11.05 P.M. by Rajendra Singh (PW-1) son of Lalita Singh at Police Station Cantt. Varanasi at case crime No. 66 of 2000 (Exb. Ka-5) under Sections 302, 120B I.P.C. and crime No. 122 of 2000 (Exb. Ka-7) on 22.3.2000 at 13.50 u/s 25 Arms Act. The place of recovery is shown to be Mohalla Sakraul (near Purana Baruna Pul). The first informant is Ashok Kumar Pandey against Kali Prasad alias Pentol Kumar, son of Ram Sagar Singh. There were three named accused. Two accused are the present appellants and one Ram Narayan Singh, resident of Baijnath, Police Station Ramgarh, District Bhabhua, Bihar. All the appellants were acquitted u/s 25 Arms Act. The allegation against Ram Narayan Singh was conspiracy but he was granted benefit of doubt and acquitted.

The prosecution story in brief as unfolded in the F.I.R. is that the first informant Rajendra Singh is resident of village Baijnath, Police Station Ramgarh, District Bhabhua (Bihar). He was preparing for civil services at Allahabad and his brothers Surendra Singh and Abhinav Rathore were residing with their mother in house No. 524/6A-3 G, Indira Nagar Colony, Taktakpur, Police Station Cantt. Varanasi. A week prior to the incident the first informant had come to Varanasi from Allahabad. His younger brother Surendra who is the deceased in the instant case, was working with Topkan Opticals Rath Yatra. On 18.2.2000 at about 9.00 P.M. when his brother (deceased) did not return from his work, Rajendra Singh went to look for him towards Mahavir Mandir temple and they were walking towards their house. The deceased was walking 5-6 paces behind the complainant along with his bicycle. At about 10.00 P.M. near the house of Pramod Dubey, the accused armed with country made pistol, came from the side lane caught hold of his brother and Kali Prasad Singh alias Paintol and Santosh Kumar Singh caught hold of his brother and fired at his neck and temple (Kanpati). Hearing the shrieks of the complainant, constable Nepal Singh who also resides in the same mohalla, challenged the accused who ran away towards North. Surendra Singh died instantaneously. A number of close by residents arrived at the scene. The complainant was able to recognize the accused in the light of electric bulb. Ram Narayan was alleged to be the master mind behind the occurrence who had conspired with the accused to eliminate the deceased.

Post mortem on the body of the deceased was conducted on 19.2.2000 at 2.00 P.M. by Dr. J.P. Tripathi. Following ante-mortem injuries were found on the body of the deceased:

ANTE MORTEM INJURIES:

(1) Firearm entrance wound 0.5 cm diameter x 0.5 cm x brain deep on left side head 8 cm above left ear & 10 cm above to left eyebrow.

(2) Firearm exit wound 3 cm x 2 cm right side head 2 cm above & front to right ear 1 cm behind outer end of right eyebrow. This injury is communicated with Injury No. (I).

(3) Firearm entrance wound 1 cm x 1 cm x brain deep on the right side of head 1 cm below & behind right ear and one bullet recovered from brain cavity which is sealed & sent to S.S.P. Varanasi.

On Internal Examination, all bones of skull were fractured. Membranes were lacerated and perforated and brain was lacerated. According to doctor, cause of death was Coma as a result of firearm injury caused to the head and brain.

Prosecution examined as many as 8 witnesses. Rajendra Singh, first informant is alleged to be the only eye witness and was examined as PW-1. Sanjay Kumar Rai was examined as PW-2, Constable Nepal Singh as PW-3, Constable Uma Shanker Singh as PW-4, S.I. Sri R.P. Rai who performed the inquest report was examined as PW-5. Inspector Sri M.S. Chaudhary was examined as PW-6. S.I. Sri Ashok Kumar Pandey who investigated the case u/s 25 Arms Act was examined as PW-7 and Sri J.P. Tripathi was examined as PW-8.

Recovery of one country made pistol of 12 bore and 12 bore cartridge was made on 22.3.2000 by a police party led by Sri Ashok Kumar Pandey along with S.I. Sri Vinod Dubey, constable 1855 Raja Ram Ranjan and constable No. 69 Sanjay Kumar Ojha while they were engaged in maintaining law and order in the Civil Court Varanasi. They received an information that one of the accused involved in the murder of Surendra Singh committed in Taktakpur on 18.2.2000 is present in the court campus. He was caught near Baruna Pul. When he was arrested at 12.10 P.M. the unlicensed arm and cartridge was recovered. It is alleged that he confessed the murder of Surendra Singh. The recovery memo clearly states that none of the public witness were ready to depose. However, the accused Kalika Singh was taken into custody. Recovery memos of money, watch and bicycle were prepared from the possession of the deceased which is marked as Exb. Ka-2. Pellets and cartridges were recovered from the place of occurrence which is Exb. is Ka-3. Blood stained and plain earth is Exb. Ka-4. Recovery memo of country made pistol and cartridges along with accused is Exb. Ka-18A. Charges were framed against the present appellants u/s 302 I.P.C. on 3.10.2000.

A number of circumstances has been pointed out by Sri Rajul Bhargava appearing in one of the appeals as well as Senior counsel Sri G.S. Chaturvedi assisted by Sri Rajeev Tiwari Advocate. The submission on behalf of the accused is that the prosecution case is based on a solitary evidence of interested witness whose presence is very much doubtful. PW-1 Rajendra Singh admits that he was residing at Allahabad and preparing for the examination of Civil Services, therefore, there was no occasion for him to be present at Varanasi. Secondly it has come in the evidence that the deceased used to come back from his duty sometimes at about 9.00 P.M. and thereafter have his dinner at 10.30 P.M. and therefore explanation tendered by PW-1 that since his brother has not returned therefore he had gone out to see him on the face of it does not appear feasible. Learned Counsel has tried to point out that in his cross examination Rajendra Singh admits that there was no reason to go and look his brother at 9.00 P.M. but since he was studying whole day he got himself bored and therefore he went out to have a stroll. He has also admitted that this fact was neither written in the F.I.R. nor in his statement given to the Investigating Officer. The witness was also confronted that nothing was said about the electricity bulb but he had shown the tube light and bulb in verandah infront of whose house the occurrence had taken place. He admits the enmity with Kali Prasad that his younger brother Mithilesh Singh died in an accident but his family were suspicious that his brother was got killed at the instance of the first informant and his family members, though the police had interrogated them at the time when Mithilesh Singh was murdered. Litigation between the accused and deceased, his father and uncle is continuing in Bhabhua courts since before the murder. He has also admitted that a case u/s 107/116 Cr.P.C. had also taken place and therefore, submission is that there was definite motive for false implication. On being questioned, PW-1 has also tried to explain that the road as well as the tyre of his brother''s cycle was in a bad condition and therefore both of them could not ride bicycle together. A number of contradictions and anomalies has been pointed out by the counsel to substantiate his argument that PW-1 was not present at the scene of occurrence.

The next argument advanced on behalf of the accused is that the F.I.R. is ante-timed. The special report reached the C.J.M. Only on 21.2.2000 and there is no satisfactory explanation for the delay. This is only because the F.I.R. was not in existence. The next submission is that the injuries caused to the deceased do not substantiate the ocular version since the admitted case of the prosecution is that shots were fired from point blank range but there was neither scorching, blackening or tattooing. This itself negates the story given out by the first informant. Source of light is not shown in the site plan. Neither any memo has been prepared by the Investigating Officer to substantiate the theory of electric bulb giving sufficient light to enable the witnesses in recognizing the assailants in the darkness of the night.

Learned Counsel for the appellant has pointed out a number of contradictions in the testimony of the witnesses. He has pointed out that PW-2 Sanjay Kumar Rai has stated that he did not speak to PW-1 while going to the police station and report was written at the police station itself whereas PW-1 has stated that he had written the report in his house and thereafter proceeded for the police station. So far commenting on the statement of PW-3 Nepal Singh, learned Counsel emphatically contradicts that he lives in the near vicinity where the occurrence had taken place for the reason, his house has not been shown in the site plan. It is also stated that since enmity between the accused and first informant is admitted, therefore, possibility of false implication cannot be ruled out. Besides, since there is no charring and a close analysis of the injury it can very well be said that it was a contact injury and, there ought to have been singing of hair. Cross examination of the doctor who conducted post mortem and was examined as PW-9, has been placed to substantiate the argument and suggestion that the injury Nos. 1 and 3 can be caused from a distance of 6 feet and also that the deceased had eaten food four hours prior to the occurrence. Though the doctor has also admitted that there can be difference of two hours, the possibility of difference of two hours from the time mentioned in the post mortem report cannot be ruled out. Great stress has been laid on the omission of the Investigating Officer, failure to show source of light in the site plan as it is a night occurrence and prosecution had to prove that the witnesses were able to recognize the assailants in darkness.

The last argument of Sri Rajul Bhargava is that the F.I.R. is ante-timed since the special report was not sent on the same day and the police station admittedly is situated within two kilometers. Learned Counsel has placed the statement of PW-4 Constable 1740 C.P. Uma Shankar Singh who was posted at the police station and had proved the chik and lodging of the F.I.R. He admitted in his cross examination he was unable to disclose the date and time of sending the special report and also stressed the fact that other senior officials reside in the same area where Cantt. Police Station is situated. He has further stated that the F.I.R. was lodged after the inquest.

In support of his argument, Sri Rajul Bhargava has cited certain decisions, Ajmer Singh Vs. The State of Punjab, I have gone through entire judgment and we fail to understand that there is any similarity or any such law laid down in this case which is identical or applicable to the facts of the case as well as arguments raised by counsel for the appellant. The next case relied upon is Shivaji Sahed Rao Gokhale and Ors. v. State of Maharashtra 1973 SCC (Cri.) 1033 , paragraph 16. The next case is; Keram Ali Vs. State of Uttar Pradesh, This case again deals with appeal against acquittal and lays down the ratio of appreciation of evidence. However, in this case all the witnesses examined by prosecution had serious animus against the accused and were interested in implicating the accused. No independent witnesses were examined. This is no situation in the instant case, therefore, it is evident that this case is also not applicable to the facts of the present case. The next case relied upon is Mahmood and Anr. v. State of Uttar Pradesh (2009) 1 Scc (Cri.) 763. This case is in respect of the arguments that the F.I.R. is ante-timed and the special report was delayed. Authorities concerned were no informed promptly and, therefore, presumption is naturally adverse to the prosecution. In paragraph 9 of this judgment it was held that if there is any delay in lodging of the F.I.R., this may result embellishment, which is creature of an after thought but the Apex Court had also hastened to add that compliance of Section 157(2) is essential. But it is not possible to lay down to enter universal rule within what time the special report is required to be dispatched by the Station House Officer by recording F.I.R. Each case turns on its own facts. Delay contemplated u/s 157 of the Code for doubting the authenticity of FIR is not every delay but only extraordinary and unexplained delay. Delay in dispatch of F.I.R. by itself is not a circumstance which can throw out the prosecution case in its entirety, particularly in cases where the prosecution provides cogent and reasonable explanation for the delay in dispatch of F.I.R.

Sri Viresh Mishra, Senior Advocate, assisted by Sri Amit Mishra has disputed each and every arguments advanced by Sri G.S. Chaturvedi, Senior Advocate and Sri Rajul Bhargava. He has emphatically supported the prosecution case and also the presence of the first informant where the murder had taken place. The submission is that theory of two shots stands fully corroborated by medical report. The place of occurrence and time of incident stands also confirmed and source of light as disclosed by the prosecution cannot be doubted. Admittedly the incident took place near the house of the first informant and his explanation for his presence is also very natural. Besides, there was no suggestion by defence to the first informant doubting his presence at Varanasi, therefore, the argument on behalf of the appellant that he was residing at Allahabad and he was called to Varanasi after the incident, is far-fetched imagination. The statement of PW-5, first Investigating Officer R.P. Rai, Chowki Incharge in the intervening period of 18.2.2000 and 20.2.2000 has been stated in his examination-in-chief and also his admission in cross examination that he had given the information about the occurrence at 11.05 at his Chowki. He has also denied that there was no light at the scene of occurrence. So far disputing the argument regarding conviction on a single testimony, learned Counsel for the first informant stressed on the statement of Nepal Singh PW-3 who lives nearby and has clearly corroborated the statement of PW-1. Nepal Singh PW-3 was mentioned as a witness in the F.I.R. itself, which was very prompt and, therefore, his presence cannot be doubted. Besides, Nepal Singh is not an interested witness and he has specifically negated the suggestion that he had met PW-1 only when he arrived at the place of occurrence. He had come out from his house hearing the shrieks and had witnessed the entire occurrence. Merely because his house was wrongly shown in the site plan whereas in the index of site plan ''N'' has been shown to be the place from where Nepal Singh had witnessed the occurrence and, therefore, any argument to the contrary is baseless. Replying to the dissimilarity pointed out on behalf of the appellant that medical evidence does not support the ocular version for the reason that there was no tattooing scorching or blackening, Sri Viresh Mishra has placed the inquest to show that at the relevant time there was a wind cheater which was worn by the deceased. It was only to weather off the cold wind cheater as it was a winter season and there was hood attached to the wind cheater. Thus absence of scorching etc. does not belie the prosecution case. In the end, learned Counsel has emphasized that there is no criteria for believing or disbelieving a witness. There cannot be a hard and fast rule or bounded criteria for believing or disbelieving a witness. It is the knowledge, power of observation, presence of mind which are all very essential faculty and bald arguments that the occurrence had taken place in the night and therefore, the first informant did not see the occurrence or Nepal Singh could not have witnessed the occurrence from where he claims to do so without any specific cross examination can not be accepted.

Learned A.G.A. has also supported the argument of Sri Viresh Mishra and submits that the prosecution has been able to establish its case beyond doubt and the judgment of conviction is liable to be confirmed.

We have given a careful consideration to the arguments of the respective counsels and also examined the statements of the witnesses and other documentary evidence. The first argument regarding motive is concerned, we are of the opinion that it is an admitted fact that there was long standing enmity between two families. Litigation was continuing and there is no reason why they will be falsely implicated eliminating actual assailants. On the other hand, the accused have strong motive to commit the offence, conduct of the appellant also establishes their guilt. The accused Kali Prasad absconded and evaded his arrest. The intention of the accused to commit the offence is also clear from the circumstances of the case. The accused had come to Varanasi fully armed with fire arms. They had prior knowledge where the deceased worked and where he lived and the route which he used to take to reach home. They were in wait and completed their well hatched out plan by causing injury on the vital part and were successful in their attempt and, therefore, any argument regarding motive to commit the offence is of no consequence.

So far the presence of first informant at the time and place of occurrence also does not appear to be doubtful. The first information report is prompt one. PW-1 was also present at the time of inquest and it is not a case that he has been introduced subsequently as a witness. His presence has also been shown in the site plan. Place of incident is also close by where PW-1 and deceased resided. No doubt, he has also admitted that he was making preparation at Allahabad for various competitions but he was in Varanasi since last one week from the date of occurrence and since his brother was considerably delayed in his office, therefore, the concern of his brother specially in the circumstances that there were enemies and apprehension of danger must have been in his mind. No suggestion to the contrary was given to the witnesses, neither anything was elucidated in his statement or cross examination to doubt his presence. Blood stained earth as well as empty cartridges were recovered from the place of occurrence as stated in the F.I.R. as well as given out in his statement and also shown in the site plan. Therefore, the prosecution story stands fully corroborated and merely some stray contradictions are not sufficient to discard his testimony. Regarding the argument that he is an interested witness, we are of the view that at the time of occurrence he is the only natural witness and prosecution has not made any attempt to add an independent witness only to prove the prosecution case. The presence of Nepal Singh PW-3 has been shown in the site plan and he has also admitted that he is residing in the near vicinity. We have examined the original site plan and where the house of Shambhu Singh has been shown, the name of witness Nepal Singh is mentioned in bracket, meaning thereby he resides in the house which might be in the name of Shambhu Singh. Nepal Singh is an independent witness who has supported the evidence of PW-1 and, therefore, the argument that conviction has been based on a single testimony of an interested witness is not acceptable.

Learned Counsel has laid great emphasis on the question of source of light which has been omitted by the Investigating Officer in the site plan. Admittedly the lighted bulb and tube was shown to be in the Verandah which was giving sufficient light and submission of Sri Viresh Mishra that the boundary wall was 2 1/2 feet and there was no obstruction. Besides, the fact that the accused were known to the deceased and witnesses, therefore, there was no reason why they could not be identified.

Sri Rajul Bhargava has stressed on the medical evidence and his argument is that it is a contact wound and, therefore, there ought to have been blackening, charring and singing of hair. We have consulted Modi''s Medical Jurisprudence and while discussing the wounds of entrance it is stated that in contact wound of skull, the tissues may be red beneath but there will be no evidence of burning tattooing or visible soot; occasionally there may be a circular impression of the muzzle on the skin round the entry hole. Singed hairs may or may not be seen, if the body is not covered with clothing. It is further stated that when the fire is beyond the distance of 12 inches, there are no powder marks of the shot or heat effect around the injury.

In the present case, the deceased was wearing shirt and a pant and there was a wind cheater with hood and, therefore, blackening and charring was not present. The testimony of eye witnesses and other evidence of the murder at the place of occurrence coupled with the fact that the seat of injury was clearly mentioned in the F.I.R., it is difficult to accept any argument to the contrary. The Apex Court in the case of Kunju @ Balachandran v. State of Tamil Nadu LX 2008 ACC 1019 held that conviction can very well be based and upheld on testimony of sole eye witness. The only caution given by the Apex Court that its veracity should be tested and if it is found reliable, it is not necessary that there should be a multiplicity of the witnesses in an attempt to bring home the guilt. Another decision is Seeman @ Veeranam Vs. State, by Inspector of Police, The Apex Court ruled that merely because the sole eye witness happens to be closely related to the deceased, his evidence cannot be discarded. We have scrutinized the evidence of eye witness and in the instant case he is not the solitary witness, PW-3 is also an eye witness who is very natural one and residing nearby and, therefore, no reason or ground has been advanced for disbelieving his testimony. In the circumstances, we are of the view that since it is direct evidence of eye witness naming the specific accused in the F.I.R. which is very very prompt one. We have come to a conclusion that the witnesses are fully reliable, direct evidence of eye witness specifically stating that two shots were fired coupled with the manner of occurrence having been corroborated by testimony of the said witnesses. We have no other option but to accept the version of the eye witness and hold that the accused are guilty of committing murder of the deceased. Similar view was expressed by the Apex Court in the case of Janak Singh and Another Vs. State of Uttar Pradesh, . We are in agreement with the arguments that the medical evidence do not show any blackening or tattooing. In this respect we have already discussed and given reasonings in the foregoing paragraphs. A Division Bench of this Court in the case of Mohd. Islam v. State of U.P. AIR 1993 All 1736 came to a conclusion that any country made weapon used by the accused, the datas given in authorities on Medical Jurisprudence relating to standard factory made guns and cartridges cannot be the only basis to reach a conclusion that the ocular version does not support the ante-mortem injuries, therefore, this Court ruled in the said decision that it cannot be held that oral evidence is inconsistent with the medical evidence. Similar view was expressed in a recent decision of this Court in the case of Suraj Singh v. State of U.P. LXVI 2009 ACC 576 where it was held that when there is direct evidence of eye witnesses, the alleged inconsistency relating to distance from which the gun shots were fired, is of no consequence particularly when the prosecution version relating to assault by guns and pistol substantially tallied with the medical evidence. Paragraphs 40 and 41 of the said judgment are quoted below:

Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant"

It is trite that where the eye-witnesses'' account is found credible and trustworthy, medical opinion pointing to alternative possibilities, is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses'' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into, the scales for a cumulative evaluation.

In this view of the matter, we are not in agreement with the argument on behalf of the appellants. There is no reason we should interfere with the judgment of the learned Session Judge. We have come to a definite conclusion that the accused-appellants are guilty of committing murder and thereby liable to be punished u/s 302 I.P.C. The appeals are accordingly dismissed.

The appellants are on bail. They shall be taken into custody forthwith to serve out the sentence. The court below is directed to take steps for getting the accused arrested in the interest of justice.