Krishanpal and Another; Nangu vs State of U.P.

Vinod Prasad, J.—These two appeals arises out of the same S.T. No. 119 of 1981, State v. Krishanpal and Ors., decided by 5th Additional Sessions Judge, Fatehpur by his judgment and order dated 1611982 and hence both these appeals have been clubbed together and are being disposed off by this common judgment.

Two sibling brothers Krishanpal and Hari both sons of Babu Lal in Criminal Appeal No. 164 of 1982 and the appellant Nangu son of Laluwa in Criminal Appeal No. 165 of 1982 have been convicted in the aforesaid sessions trial by the 5th Additional Sessions Judge, Fatehpur, under Section 302/34, I.P.C. and have been sentenced to imprisonment for life, which conviction and sentence is under challenge in the above appeals.

The background facts of the case are that the field of Raja Ram was taken on lease by the informant Hori Lal, which was ploughed by the son of the informant. Gaya Prasad (deceased) was imprisoned in connection with dacoity case. When Gaya Prasad was imprisoned then the aforesaid field of Raja Ram was taken by the accused persons and was got leased out to Chaubey Pass. Gaya Prasad after being released from jail had objected the ploughing of the said field by Chaubey Pasi, regarding which an altercation had taken place between the deceased Gaya Prasad and Krishanpal appellant. Motivated by the aforesaid animosity, it was alleged by the prosecution, that on the intervening night of 21/2212 1980 at 2 a.m., the 3 appellants armed with single barrel gun, came to the field of the informant situated towards north west corner of his village, when the informant was watering his field alongwith his wife and two sons Ram Prasad (P.W. 2) and Gaya Prasad (deceased) and no sooner their arrival, Krishanpal instigated for annihilating Gaya Prasad on which all the 3 appellants fired from their guns at Gaya Prasad, who died instantaneously on the spot. Informant and his other family members sprinted towards the village to save their lives. Accused persons dragged the deadbody of the deceased Gaya Prasad in the bushes near the field of Chandra Pal and after throwing it in the said bushes, they escaped in the darkness. Informant Hori Lal, father of the deceased got the FIR scribed through Kamlesh Kumar of his village and after covering a distance of 4 miles lodged the FIR at police station Kishanpur, District Fatehpur. Constable, Shyam Bihari (P.W.6) prepared the chik FIR Exhibit Ka 3 and the corresponding G.D. Entry Exhibit Ka4. The FIR was registered as Crime No. 196 of 1980 under Section 302 I.P.C. S.I. Keshav Puri Goswami, who was present at the police station at the time of registration of FIR commenced the investigation and recorded the statement of the informant at the police station itself. He then proceeded to the spot and conducted the inquest on the deadbody of the deceased and prepared the inquest report (Exhibit Ka5). He also prepared the other relevant documents of challan lash and photo lash Exhibit Ka7, letter for postmortem Exhibit Ka8 and seal impression Exhibit Ka9. Concluding the inquest report he dispatched the deadbody in a sealed condition through constable Ambika Singh to District Fatehpur for the purposes of postmortem examination. He collected the plain earth and blood stain earth from the spot and prepared its recovery memo Exhibit Ka10. Both type of earths are material Exhibit Ka1 and 2. He thereafter recorded the statement of witnesses of inquest and prepared the site plan Exhibit Ka11 after conducting the spot inspection. He thereafter recorded the statement of the prosecution witnesses Shiv Dulari, Ram Prasad, Raja Ram and Shiv Bhajan. He had exhibited the statement of Raja Ram and proved it as Exhibit Ka12. He had also collected the clothes of the deceased and made a note of it in the case diary and proved the said clothes as material Exhibit Ka3 to material Exhibit Ka7. Concluding the investigation he had submitted the chargesheet against the accused persons as Exhibit Ka13.

The postmortem examination on the body of the deceased Gaya Prasad was conducted by Dr. J.S. Rai P.W. 3 on 24121980 at 2.30 p.m. The said doctor found following injuries on the deadbody of the deceased.

Antimortem injuries

�(1) Abrasion 11/4� x 1/4" front of right side of head oblique.

(2) Gun shot wound of entrance one 1" x 1" x cavity deep margin lacerated, inverted, on back of chest left 11/4" from V. colum and 3" below inferior angle of scapula left. Blackening and tattooing present.

(3) Gun shot wound of exit eight (8) in area 31/2" x 3" x cavity deep front of left chest inward to left nipple each 1/3"x 1/3"x cavity deep, margins everted lacerated, No. blackening, no tattooing. Direction from back to front slightly out ward and up ward.

(4) Abrasion 1/3"x 1/4"lower, inner left forearm.�

Postmortem injuries

�(1) Lacerated wound 11/2�x 1/2" whole thickness of external left ear.

(2) Wound 11/2"x 1" x muscle deep on chin.

(3) Wound 11/4" x 3/4" whole thickness of nose near on left side.�

One wadding piece and one big shot was recovered from the body which were sealed and sent to S.P. Fatehpur.

On the external examination he had also found that the third rib of the deceased was fractured and his 5th vertebra was also broken. His pericardium and heart were lacerated. The semi digest food was present in his stomach and small intestine contained small quantity of digest food. Fecal matter and gases were present in his large intestine. In the estimation of the doctor death had occurred due to shock and hemorrhage and the time since death was opined two and half days from the time of conducting the postmortem examination.

The accused appellants were summoned by the Chief Judicial Magistrate, Fatehpur and were committed to the Court of Sessions for trial. 5th Additional Sessions Judge, Fatehpur framed charges against them on 1281981 for offences under Section 302/34 I.P.C., which was denied by the accused persons who claimed to be tried.

Prosecution in order to bring home the guilt of the appellants relied upon the testimony of 7 prosecution witnesses out of whom Hori Lal P.W. 1 (informant), Ram Prasad P.W. 2 and Raja Ram P.W. 5 were the witnesses of fact. P.W. 3 Doctor J.S. Rai (postmortem doctor), constable Ambika Singh P.W. 4 (carried the deadbody to the hospital), head constable Shyam Bihari (who had recorded the FIR and had prepared the chik FIR) P.W. 6 and S.I. Keshav Puri Goswami P.W. 7 (I.O.) are the witnesses of fact.

The accused persons in their statement under Section 313 Cr.P.C. denied the incriminating circumstances appearing against them in the prosecution evidences and took the defence of false implication. They further took the defence that the deceased was a dacoit and he was murdered in the night at an unknown time and they do not know who had murdered him.

As stated above trial Court believed the evidence of prosecution witnesses and convicted all the appellants under Section 302/34 I.P.C. vide his impugned judgment and order dated 1611982 and sentenced them to life imprisonment which conviction and sentence is under challenge in the present appeal.

During the trial, informant Hori Lal P.W. 1 deposed that deceased Gaya Prasad was his son and the deceased Gaya Prasad and Ram Prasad P.W. 2 and appellants Krishanpal and Nangu were the resident of village Anivi whereas the appellant Hari was the resident of Shahipur which was at a distance of 2 furlong from his village. He had further evidenced that they had taken the field of Raja Ram of his village on lease when Gaya Prasad was incarcerated into the jail in connection with a dacoity case. The said field was got leased out to Chaube Pasi which was objected to by Gaya Prasad deceased regarding which tiradic altercation had taken place between the deceased and appellant Krishanpal. He further evidenced that because of the aforesaid enmity the accused persons had murdered the deceased who was his elder son and used to look after his family. He had also evidenced regarding the topography of the place of the incident which was situated towards north west corner of his village. He had further evidenced that in the field which was irrigated by him at the time of the incident there were crops of gram and wheat sowed towards west and east. At the time of the incident, he was irrigating wheat crop alongwith the deceased, Ram Prasad P.W. 2 and his wife Shiv Dulari. The night of the incident was a full moon night. Krishanpal appellant instigated the accused persons on which Gaya Prasad tried to make his escape good towards north west but the accused persons chased him to 55 paces and all the 3 assailants shot him dead by making a single fire each. Gaya Prasad after sustaining the gun shot injuries stumbled forward to some distance and then fell down on the western side on the field of the Hari. The appellants dragged the deadbody of the deceased towards north side of the field of Chandra Pal and threw the deadbody in the bushes and then disappeared from the scene of the incident. He had further evidenced that next day morning he got the FIR scribed through Kamlesh Kumar and he proved his scribed FIR as Exhibit Ka1. He further evidenced that he had lodged the FIR at the police station Kishanpur on which I.O. had come on the spot and had conducted the inquest after which he had dispatched the deadbody. He had further evidenced that I.O. had collected blood from the spot and that he had recognized the accused persons in the full moon light. He had stated that the deceased was arrested in case of dacoity and on earlier occasions also he was arrested in dacoity offences. One of the dacoity had occurred in the house of Sarju Maharaj whereas the other was in the house of Baij Nath. He had further evidenced that in the dacoity which had taken place at Khaga, his deceased son had not got himself bailed out. He had denied that he had mentioned in the FIR that the deceased was bailed out in the aforesaid dacoity. He had admitted that in the aforesaid dacoity the deceased had absconded. He had also admitted that Baij Nath also had an enmity with him regarding watering of the field. He had denied the suggestion that the deceased was an out lane. He had further evidenced that they had gone to water the field at dusk time and the field which was to be irrigated was 5 1/2 bighas. He had further deposed that the deceased had taken the dinner at the house and then had reached the field which was being irrigated. He had evidenced that he had seen the accused persons from a distance of 20 or 25 paces and they had instigated to murder the deceased. As soon as they had instigated the deceased had sprinted and a fired was made when he had sprinted 3040 paces. He had further evidenced that the deceased was fired at from a distance of 20 paces. He had deposed that at the time of the incident he was enjoying bon fire. He had also deposed that each of the accused made a single fire each and none of the accused persons had assaulted the deceased from the blunt side of his gun. He had further evidenced that the I.O. had not collected the blood from the place where the deadbody was found. He had denied the omissions and contradictions regarding the manner of assault and running and chasing etc. He had denied the circumstances that the deceased was an out lane and was shot dead by unknown persons and that he has falsely implicated the appellants.

Ram Prasad P.W. 2, a boy aged about 12 years at the time of his deposition had narrated the same incident which was evidenced by his father Hori Lal P.W. 1. He had further evidenced that while escaping from the place of the incident, they used to turn around their heads to see what the appellants were doing. He had further deposed that each of the accused had made a single fire and they had not ran away from the spot after hearing the instigation. He had also deposed that the deceased had fell down in the field of Hori Lal and at the time of incident he was enjoying the bon fire, he had further evidenced that the deceased brother was dragged, catching him from his legs in a supine position. He had stated that his father had gone to the police station to lodge the FIR and he alongwith his mother stayed back near the cropse. He had denied the suggestions that he had not seen any incident and he is giving a tutored version.

Doctor J.S. Rai P.W. 3 who had conducted the autopsy on the deadbody of the deceased had evidenced the facts found by him while conducting the postmortem examination as has already been detailed above and had proved his postmortem examination report as Exhibit Ka2. The said doctor in his crossexamination had stated that the deceased has sustained two types of injuries, postmortem and antemortem. Injuries Nos. 2 and 3 were sufficient in the ordinary course of nature to cause death. He had also stated that antemortem injury Nos. 1 and 4 were possible by fall. In the crossexamination he had evidenced that injury Nos. 1 and 3 were possible by some hard and blunt object.

Constable Ambika Singh P.W. 4 had deposed that he had carried the deadbody in a sealed condition to the mortuary to district hospital and so long as the body was in his custody, he had not allowed it to be tampered with. In his crossexamination, he had stated that he had proceeded for the district hospital at 10.30 a.m. and had reached Fatehpur in the evening which was at a distance of 30 miles from the place of the incident. He had further evidenced that on the day of the incident it was a heavy down pour of rains and, therefore, he had taken so much of time to bring the body to the mortuary.

Raja Ram P.W. 5 another witness of fact completely denied his presence on the spot and deposed that he had not seen the murder of Gaya Prasad. He had also denied having given any statement under Section 161 Cr.P.C. to the Investigating Officer.

Head Constable Shyam Bihari had stated regarding registration of case preparation of chik FIR and G.D. entry and had proved the same. He had stated that special report was sent at 5.30 p.m. through constable Ashraf Abbas.

The last prosecution witness S.I. Keshav Puri Goswami who was the I.O. of the case had deposed various steps taken by him during the investigation into the crime. He had admitted that he had not collected the ashes from the place where the bon fire was alleged to have been lit. He had further proved the omissions and contradictions which were put to him which occurred in the statements of witnesses. He had denied the suggestion that he had not carried proper investigation and the FIR was cooked up with his consultation and deliberation.

On such prosecution evidence we have heard Sri Kamal Krishna, learned Counsel for the appellants in support of both two appeals and Sri Danish Iqbal Faridi, learned Brief Holder on behalf of the State and have perused the evidences and the other materials on the record ourselves.

Sri Kamal Krishna, learned Counsel for the appellants contended that in this case, the whole prosecution story is absolutely false and cooked up. He submitted that the incident occurred during the wintry night at 2 a.m. and at that hour of night due to fog, of which this Court can take a notice under Section 114 of the Evidences Act, there could not have been any light at all in which witnesses could have identified the assailants. He further submitted that the allegation of lifting bon fire by the witnesses is absolutely false because according to constable Ambika Singh P.W. 4 who had carried the deadbody to the mortuary there was a heavy down pour of rain on that day and hence there was no reason to lit bon fire. He further submitted that since there was a heavy down pour of rain, the prosecution allegation of irrigating the field at the time of the incident is also false. He further submitted that Ram Prasad at the time of his evidence in the year 1982 was a boy of 12 years and the incident had occurred 2 years prior to it and, therefore, at the time of the incident, the said witness was only 10 years of age. He submitted that it was impossible for a boy of 10 years to wake up in the wintry night at 2 a.m. to irrigate the field and the prosecution version in his respect is absolutely false. He further submitted that there was no dragging injury found on the deadbody of the deceased and so the prosecution version of dragging is absolutely false. He further submitted that the deceased had sustained two types of injuries, one antemortem injuries and the other postmortem injuries and to explain the postmortem injuries. The prosecution had developed the story of dragging the body of the deceased, which is absolutely false being contrary to the medical evidence. He further contended that there is absolutely no acceptable explanation for the postmortem injuries sustained by the deceased, which were really serious in nature and could not have been caused by mere dragging. He further submitted that the witnesses could not have seen the incident in the wintry night without any source of light while they were taking to their heels to save their lives. He contended that the deceased was murdered while he was running from the spot but his injury contained blackening and tattooing which shows that he was fired at from a very close range. He further submitted that the deceased was a dacoit and he was murdered by some unknown person. He further submitted that the prosecution version of firing of 3 shots at the deceased and sustaining of injuries by those 3 shots is absolutely false as the deceased had sustained a single gun shot wound of entry. He submitted that so far as injury No. 1 is concerned, the same is grazing shot caused by a single fire and the third injury is an exit wound. He submitted that this discrepancy between the ocular testimony and the postmortem report occurred because of the fact that none of the witnesses had seen the actual incident and later on when the deadbody of the deceased was discovered then the witnesses thought it to be a case of 3 shots and, therefore, implicated 3 persons anointing them with the role of causing a single gun shot injury to the deceased. He submitted that from over all circumstances, the prosecution evidence is absolutely false, it does not inspired the confidence and, therefore, the appeal should be allowed and the appellants be acquitted.

Learned AGA on the contrary contended that there is an eye witness account and the father and the brother of the deceased had no reason to falsely implicate the appellants in the case of the murder of their own close relative. He further submitted that the incident was witnessed by P.W. 1 and P.W. 2 and their evidence is consistent and reliable and, therefore, the prosecution had brought home the guilt of the appellants and, therefore, the appeal lacks merit and deserves to be dismissed. He further submitted that occurrence occurred in the night and, therefore, it is possible that some shots might have evaded the deceased and, therefore, there is no consistency between the medical evidence and the ocular testimony. He further submitted that the appeal lacks merit and deserves to be dismissed.

We have given our anxious consideration on the rival contentions in view of the evidence as has been discussed above.

After going through the evidence and hearing the argument of learned Counsel for the appellants and the learned AGA, we are of the opinion that the prosecution has failed to established the guilt of the appellants. First of all it is an incident which had taken place in the dark hour of wintry night on 21/22121980 at 2 a.m. According to the prosecution it was a moon light but our heuristic experience indicates that 21st22nd December there are a lot of fog and it is impossible to see anything even from a close distance. Moreover, the deceased was alleged to have been shot at from behind from a distance of 20 paces while he was running for his life but the postmortem examination report indicates that the deceased was shot at on the back of chest from a point blank range and, therefore, the prosecution story of shooting down the deceased from a distance of 20 paces is absolutely false. Injury Nos. 1 and 2 found on the body of the deceased clearly indicates that both the shots were fired from a close range by the gun. The prosecution explanation that while running to his life, the deceased used to turn his head around and see the assailants and that is how he had sustained the injury is not acceptable because the deceased was running in the dark hour of night and for him to turn his head around to see the assailants is not only unnatural but is an absurd explanation. Further what we found is that the deceased had sustained two types of injuries. The prosecution has not offered any explanation of the postmortem lacerated wounds sustained by the deceased which are quite serious in nature and are on the face and head. No explanation is coming forth from the prosecution side regarding these injuries which shows that none of the witnesses had seen the actual assault. Further the deceased had not sustained any injury by dragging his deadbody. P.W 2 had stated that deceased was dragged catching him by his legs. This would have caused some injury on the head and other part of the body of the deceased including the shoulder and would have stained his body and cloths with mud but no such injury or any mark of dragging was found on the body of the deceased. Further there was no reason for the accused person to drag the deceased and throw him in the bushes. They had not caused any other injury to the deceased after he was shot dead. The conduct of the accused, as has been stated by the prosecution, of dragging the deceased and throwing him in the bushes is wholly unnatural. Further what we found is that the real enmity of the appellants was with the informant Hori Lal as he used to take the field on lease from Raja Ram. If Hori Lal had been present on the spot, the appellants would not have spared him and would not have allowed him to be a witness of the incident. This makes the presence of the first informant on the spot at the time of the incident doubtful. His nondisclosure of the murder to the other covillagers in the night is also a surreal conduct which indicates that he did not come to know of the murder during the night. His conduct of leaving his wife and a child aged about 10 years at the spot and to come to the village alone is also a bizarre conduct and shows unnaturalization of prosecution version. He has not mentioned the allegation of chasing and shooting down either in the FIR or his statement under Section 161, Cr.P.C. All these facts to us seems to be make the prosecution evidence wholly unacceptable and does not inspire any confidence. Number of gun shot wounds of entry is much less than the number of accused which indicates that some of the accused has been falsely implicated and none has witnessed the incident.

From an over all picture of the incident we are of the opinion that neither P.W. 1 nor P.W.2 were present on the spot nor they had witnessed the incident. The only independent witness has turned hostile and did not support the prosecution case.

The deceased, as has been evidenced by P.W. 1 was a bad character person. He was involved in many dacoity cases and even though it had been denied by the informant he seems to be involved even in cases of abduction. In such a view there would have been many enemies to settled their scores from the deceased. To us it seems that because the field was taken by the appellants from Raja Ram which the informant wanted to cultivate, therefore, he has falsely implicated the appellants and that is why the only independent witness of the incident that is P.W. 5 had turned hostile and did not support the prosecution version.

In such a view we find it wholly unsafe to rely upon the testimony of the two witnesses of fact P.W. 1 and P.W. 2 who are not only enemical but are related partisan and interested witnesses. We find it unsafe to convict the appellants on the basis of such evidences and, therefore, give the appellants benefit of doubt.

In view of what we have stated above the appeal succeeds and is allowed. The conviction of all the appellants in both the appeals under Section 302/34, I.P.C. is set aside and they are acquitted of the said charge. The appellants are on bail. They need not surrender. Their personal bonds and surety bonds are discharged.

Let a copy of this judgment be certified to the trial Court.