Mansa Ram Misra (In Jail) vs State of U.P.

M.C. Jain, J.—The Appellant is Mansa Ram Misra who has preferred this appeal against the judgment and order dated 1.10.1980 passed by Sri K.K. Chaube, the then 1st Additional Sessions Judge, Varanasi, in Sessions Trial No. 52 of 1980. He has been convicted under Sections 302, I.P.C. and 307, I.P.C. read with Section 34, I.P.C. Life imprisonment has been awarded to him u/s 302, I.P.C. The sentence awarded u/s 307 read with Section 34, I.P.C, is six years rigorous imprisonment. Both the sentences have been ordered to run concurrently.

The incident took place on 5.7.1978 at about 9 p.m. in village Diapur, Police Station Mirza Murad, district Varanasi. One Hari Shanker was murdered by shooting. Gunshot injuries were caused to another person named Amar Nath Singh. The F.I.R. was lodged by Deo Bali Singh on 6.7.1978 at 3 a.m. The distance of the Police Station from the place of occurrence was four miles. The essential features of the case as per the F.I.R. and the evidence adduced at the trial may be noted. In the day preceding the night of occurrence, the deceased Hari Shanker Singh, informant Deo Bali Singh, P.W. 1, injured Amar Nath Singh, P.W. 2 and Bansh Raj Singh alias Buddhi Singh, P.W. 3 had separately gone to Baraura Bazar from their village Kardhana for sundry personal works. Two days before this occurrence, an altercation had taken place between accused Mansa Ram Misra and Hari Shanker Singh deceased in Baraura Bazar. A little before the present incident, the accused Mansa Ram Misra, resident of another village Benipur met the abovenamed persons. He enquired from Amar Nath Singh, P.W. 2 as to from which Rasta they would return to their village. Amar Nath Singh, P.W. 2 replied that the road was full of mud, hence they would return through the western Pagdandi. Mansa Ram Misra accused thereafter went towards eastern side. Shortly thereafter, at about 9 p.m., the first informant Deo Bali Singh P.W. 1 and his co-villagers, namely, Hari Shanker Singh-deceased, Amar Nath Singh, P.W. 2 injured and Bansh Raj Singh alias Buddhi Singh, P.W. 3 left for their village and were passing through the western Pagdandi. They reached near the newly planted guava grove of Nanhku Singh. There were Behaya bushes at the western end of the grove, Bansh Raj Singh alias Buddhi Singh, P.W. 3 was heading all of them. He was being followed by Deo Bali Singh, P.W. 1, Amar Nath Singh, P.W. 2 and Hari Shanker Singh in a row one after the other. Deo Bali Singh, P.W. 1 and Amar Nath Singh, P.W. 2 possessed torches also. Suddenly, a man came out of the guava grove and Behaya bushes. He fired on Hari Shanker Singh. The first informant Deo Bali Singh. P.W. 1 and Amar Nath Singh, P.W. 2 flashed their torches and saw that it was the accused Mansa Ram Misra who fired on Hari Shanker Singh. Bansh Raj Singh alias Buddhi Singh. P.W. 3 also allegedly recognised the assailant Mansa Ram Misra the accused. All of them raised alarm and rushed towards the side of the assailant Mansa Ram Misra accused. At that very time, three more persons came out of the Behaya bushes and one of them opened fire from his countrymade pistol which caused injuries to Amar Nath Singh, P.W. 2. Thereafter, the accused and his three unknown companions ran away. After sustaining firearm injuries, Hari Shanker Singh staggered for a few paces and then fell down and died. Injured Amar Nath Singh, P.W. 2 was taken to S.S.P.G. Hospital and was admitted there. Deo Bali Singh, P.W. 1 thereafter lodged the F.I.R. at 3 a.m. on 6.7.1978. The investigation was taken up by S.O. Ram Dwar Misra, P.W. 6. The dead body was sent for post-mortem. After conclusion of the investigation charge-sheet was laid against the accused-Appellant.

Injuries of Amar Nath Singh P.W. 2 were examined by Dr. A.K. Rastogi, P.W. 4 in between the night of 5/6 July, 1978 at 12.15 a.m. the following ante-mortem injuries were found on his person:

(1) Four gun shot wounds of entry in an area of 9 cm. x 4 cm. on front and lower part of left thigh, each measuring 1 cm. x 3/4 cm. x depth not probed. Margins inverted. Blackening and charring and bleeding present.

(2) Abrasion 2 cm. x 1-1/4 cm. on front and middle 1/3rd of right thigh. Blackening and charring present.

(3) Two abrasions in an area of 1-1/2 cm. x 1-1/2 cm. on back and upper 1/3rd of right forearm, measuring 1/2 cm. x 2 cm. and 1 cm. x 2 mm. Blackening of margins present.

The post-mortem over the dead body of Hari Shanker Singh was conducted by Dr. P.N. Gupta, P.W. 5, 6.7.1978 at 3.45 p.m. The deceased was about 25 years of age and probable time of death was about 18 hours before. The following ante-mortem injury was found on his person.

Seven gun shot wounds on front of chest 3 cm. below the manubrium sterni in the area of 7 cm. x 8 cm. each 3/4 cm. in diameter. Margins were inverted. Blackening around the opening. Direction towards the backward from right to the left side injuring the scapula on left side. There was fracture of the left scapula.

The death had occurred due to coma as a result of damage caused to heart and lungs producing shock and haemorrhage on account of ante-mortem gunshot injury.

At the trial, in all seven witnesses were examined by the prosecution, out of whom Deo Bali Singh, P.W. 1, Amar Nath Singh, P.W. 2 and Bansh Raj Singh alias Buddhi Singh, P.W. 3 were the eye-witnesses of the occurrence.

The accused pleaded false implication. He also examined four witnesses in defence; namely Dr. B.L. Verma, D.W. 1, Sheo Nath, D.W. 2, Brahma Deen Dwivedi, D.W. 3 and Amanat Hussain D.W. 4.

Learned Additional Sessions Judge believed the prosecution case and evidence. Accordingly, he convicted and sentenced the accused-Appellant who has come up in appeal.

We have heard Sri A.D. Giri learned Counsel for the Appellant and learned A.G.A. on behalf of the State in opposition of the appeal. We have also carefully gone through the evidence and material on record. On giving our thoughtful consideration to the arguments advanced at the bar in the light of material and evidence on record, we are of the opinion that there are inherent weaknesses and shortcomings in the prosecution case and as such the judgment and order under appeal cannot be sustained. We proceed to mention below the reasons for our this conviction.

In the first instance, it may be stated that though motive is not a sine qua non for the commission of a crime, still it has relevant bearing to expose the root cause of the incident. In the case at hand, there does not appear to be any firm motive or quick igniting cause for the incident. The eye-witness Deo Bali Singh, P.W. 1 has stated that two days before the incident, some altercation had taken place between the deceased and the accused Mansa Ram Misra in Baraura Bazar. Deo Bali Singh, P.W. 1 has also stated that he was present at that time. But it has not been spelt out as to what was the cause of such altercation. The prosecution evidence is that all the three eye-witnesses and Hari Shanker Singh were present in Baraura Bazar shortly before the present incident when the accused-Appellant had enquired from one of them, Amar Nath Singh, P.W. 2 as to by which way they would return td their village. If the altercation between Hari Shanker Singh deceased and the accused-Appellant Mansa Ram Misra that had taken place before two days was of serious nature, such enquiry would have alarmed him and made him and Hari Shanker suspicious and they would have accordingly taken steps for safety. On the other hand, if the altercation was of insignificant kind, that could not have actuated the accused Mansa Ram Misra to plan for this murder. Judged from both the angles, the background suggested by the prosecution for commission of this crime does not have the attraction of logic. It has to be kept in mind that the accused was the resident of another village and ordinarily he would have no idea of the going of the deceased to Baraura Bazar on that day and of the fact that he would be returning to the village in the night.

Secondly, night was chosen as the time of the incident. It is also the prosecution case that the accused-Appellant was accompanied by three unknown persons. His animus allegedly was only against the deceased Hari Shanker Singh. If he had hired or called three unknown companions, he could accomplish the Job through them instead of directly involving himself. That would have been his natural approach according to ordinary human conduct. It is the own case of the prosecution that the three companions of the accused Appellant were unknown persons. Indeed, the accused-Appellant could have achieved his object through them simply after making the victim to be identified by his companions.

Thirdly, the source of light at the spot is doubtful. The Phard of torch was prepared by the Investigating Officer as late as on 1.10.1978 whereas the statement of Deo Bali Singh, P.W. 1 is that the torch was with him when he had gone to the Police Station for lodging the F.I.R. The testimony of Amar Nath Singh, P.W. 2 is also to the effect that the torch was with him when he had reached the hospital and it remained with him throughout. There does not appear to be any plausible reason for the torches having not been shown by these witnesses to the Daroga at the earliest opportunity after the occurrence, particularly when both of them allegedly had torches with them when Daroga first met them.

Fourthly, even if it is taken for a moment that they had torches with them at the time of the incident, then also it does not stand to reason that they or the third witness Bansh Raj Singh alias Buddhi Singh, P.W. 3 could have recognised the accused-Appellant as the assailant of Hari Shanker Singh. It has come in the testimony of Bansh Raj Singh alias Buddhi Singh, P.W. 3 that the width of the Pagdandi was 1-1/2 to 2 hands. It is the own case of the prosecution that all the four persons were walking in a row. Ahead of all was Bansh Raj Singh alias Buddhi Singh, P.W. 3 followed by Deo Bali Singh, P.W. 1, Amar Nath Singh, P.W. 2 and Hari Shanker Singh deceased. The evidence of the prosecution is to the effect that the torches were flashed by Deo Bali Singh, P.W. 1 and Amar Nath Singh, P.W. 2 on hearing the sound of shot. Deo Bali Singh, P.W. 1 has also stated that it was raining at the time of the incident. It is doubtful that the eye-witnesses could have recognised the assailant of Hari Shanker Singh as the present accused-Appellant. None of them has stated that they had seen any sign of light emanating from the bushes wherefrom the accused-Appellant and his three companions had allegedly come out. Hari Shanker Singh was the last man in the row. Deo Bali Singh, P.W. 1 and Amar Nath Singh, P.W. 2 were ahead of him who say that they flashed torches only on hearing the sound of firing. It is unacceptable that the accused-Appellant could spot out his object when there was complete darkness. It is said that three unknown companions of the accused-Appellant had come out of bushes immediately after he had fired shot on Hari Shanker Singh and one of them had opened fire on Amar Nath Singh, P.W. 2. It is somewhat incongruous because the accused-Appellant did not have any animus against Amar Nath Singh, P.W. 2. If the target (Hari Shanker Singh) had already been hit by the accused-Appellant, there could hardly be any necessity of opening fire by one of the companions of the accused-Appellant on Amar Nath Singh, P.W. 2. The anxiety of the assailant(s) after completing their mission of shooting Hari Shanker Singh would have been to immediately make their escape good. On a careful scrutiny, the testimony of none of the eye-witnesses is capable of inspiring judicial confidence. The simple fact that Amar Nath Singh, P.W. 2 is an injured witness cannot and does not mean that his testimony should be accepted. It can at the best show that he simultaneously sustained injuries but it cannot authenticate the manner of the incident as alleged by the prosecution as also the author(s) of the crime.

Fifthly, it appears from the injury report of Amar Nath Singh, P.W. 2 as if he sustained gunshot injuries by two shots, whereas according to the prosecution evidence he sustained injuries by a single shot allegedly opened by one of the companions of the present accused-Appellant. His first gunshot injury was on lower part of the left thigh with blackening and charring. The second injury was also of gunshot on right thigh with blackening and charring but the third injury was of the gunshot on back of right forearm with blackening. There was no charring in this third injury. If he had received all these injuries by a single shot, it was most likely that there would have been charring in this third injury as well. Moreover, the seat of the third firearm injury was the back of right forearm whereas the first two injuries sustained by him were on the front side of left and right thigh. The posture of first and second gunshot injuries does not reconcile with the posture of his third gunshot injury. So, it is shrouded in obscurity that he could have received all these gunshot injuries by one shot. The ocular version does not, therefore, reconcile with the medical evidence.

For the aforesaid reasons, we find the prosecution version against the accused-Appellant to be doubtful, incapable of sustaining his conviction. It goes without saying that the burden on the accused is not so onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused can discharge his burden by establishing a mere preponderance of probability and he can do so by demonstrating the weaknesses of the prosecution case as per its own evidence and attending circumstances.

We accordingly allow this appeal by setting aside the conviction and sentence of the accused-Appellant Mansa Ram Misra passed by the learned 1st Additional Sessions Judge in S.T. No. 52 of 1980. The accused-Appellant is on bail. He need not surrender. His personal bond and bail bonds are hereby cancelled and sureties discharged.