Mister Singh and others vs State of U.P.

Mrs. Justice Poonam Srivastav

The present three connected appeals arise from a common judgment dated 11.7.2003 passed by the Additional Sessions Judge, Court No. 6, Etawah in Session Trial No. 26 of 2001State Vs. Shiv Veer Singh and others.

Sri Satish Trivedi, Senior Advocate, assisted by Sri Ajay Kumar Pandey Advocate appears on behalf of the appellant Gyanesh alias Pinku, son of Pan Singh who is an appellant in both Criminal Appeal Nos. 3925 of 2003 and 3926 of 2003 along with four others. Sri Jagdish Singh Sengar Advocate appears for all the five appellants Vinod Singh alias Bablu, Mister Singh, Gyanesh alias Pinkoo, Bhura Singh alias Brij Narayan Singh. Sri Dileep Kumar Advocate appears on behalf of the accused in Criminal Appeal No. 3925 of 2003Mister Singh and four others Vs. State of U.P. and also in Criminal Appeal No. 3266 of 2003. There are 11 appellants in this appeal who are on bail. Five appellants are common in both appeal Nos. 3925 of 2003 and 3926 of 2003 who are in jail since almost 10 years.

The Additional Sessions Judge has convicted all the appellants under Section 147 I.P.C. sentencing them to six months R.I., under Section 148 I.P.C. to one year R.I., under Section 307/149 I.P.C. to seven years R.I. and fine of Rs.2,000/. In default of fine, an additional imprisonment of six months R.I., under Section 302/149 I.P.C. sentencing them to undergo life imprisonment and under Section 336/149 I.P.C. one month R.I.

The occurrence is alleged to have taken place on 16.6.2000 in the outer portion of the house of deceased Manni Babu Singh, the other deceased is Ram Naresh Singh who died in the incident that took place on 16.6.2000 at 10.00 A.M. in village Parthara, Police Station Bhareh, Etawah. The F.I.R. was registered on the same day at 11.15 A.M. at the concerned police station which is situated at a distance of 8 kilometres south from the place of occurrence.

According to narration in the F.I.R. which was lodged by Brij Bhan Singh PW1, his father was abused and assaulted by accused Vinod Singh alias Bablu on account of old enmity on the date and time of occurrence. When Manni Babu Singh (deceased) made hue and cry, the first informant rushed to rescue him whereby the accused Vinod Singh alias Bablu brought his 12 bore gun from his house and opened fire. The other coaccused Brij Bhushan Singh and Mistar Singh son of Lallo Singh are also alleged to be armed with 12 bore gun. Gyanesh alias Pinku armed with Tamancha and Bhura Singh with half gun. All the accused armed with fire arm opened fire with an intention to kill all those persons who were present in the house as well as other persons/neighbours who rushed to help inmates of the house. The coaccused Shiv Ram Singh, Shiv Veer Singh, Dharmendra Singh alias Chhulli, Mistar Singh son of Shiv Singh, Binu Singh, Babu Singh, Amar Singh alias Nanna, Veer Singh, Balvir Singh, Satendra Singh, Shatrudhan Singh started pelting stones and exhorting that none of the family members of the first informant should be left alive. The eleven accused who were unarmed started hurling brickbats and stones. Ram Naresh deceased, Brij Kishore Singh alias Chhannu, Ram Lakhan Singh, Puttu Singh, Surjan Singh also arrived at the scene of occurrence and received injuries. Injuries were caused to a number of persons namely Janved Singh, Km. Babli, Brijbhan Singh first informant, Ram Lakhan, Bhoop Singh, Chhanna Singh and Surjan Singh, besides the two deceased Manni Babu Singh and Ram Naresh Singh.

The prosecution examined as many as 11 prosecution witnesses. Brijbhan Singh PW1 who lodged the F.I.R., injured witness Janved Singh PW2, brother of PW1 and son of deceased Manni Babu Singh, Bhoop Singh PW3, Ram Lakhan Singh PW4, Surjan Singh PW6 are all injured witnesses. Dr. P.C. Pandey was examined as PW5 who had examined injuries of Ram Lakhan, Bhoop Singh, Channa Singh, Surjan Singh on 16.6.2000 i.e. on the date of occurrence. Dr. A.K. Gupta was produced as PW7 who examined injuries of Janved Singh and Brij Bhan Singh on 19.6.2000. Dr. K.D.R. Srivastava was examined as PW10 who proved supplementary injury reports and Xray plates of the injured witnesses. Dr. Vinod Sagar PW9 performed autopsy on the body of two deceased. Ramnayan Yadav was examined as PW8 who proved chik F.I.R. and corresponding G.D. and S.I. Surendra Singh Investigating Officer was examined as PW11. Constable Lallu Singh was examined as court witness (CW1) who proved challan lash and chithhi which were sent to C.M.O. written by Surendra Singh and Sri Santa Pillai, Incharge T.B. Ward as DW1 to prove the alibi of accused Vinod Singh.

According to injury reports of the injured who were examined on 16.6.2000, following injuries were found on their body and their medical examination reports are reproduced below:

Examined Ram Lakhan aged 35 years s/o Makarand Singh R/o Pathara, P/s Bhareh Etawah at PHC on 16.6.2000 at 5.40 P.M.

B.B. C.P. 199 Jai Singh, P.S. Bhareh Etawh.

M.I. A B.M. on Rt. side face 5.0 cm in front of Rt. Ear.

Injury: (1) Multiple pallet size wound superficial to deep on Rt. Iliac crest in area of 10 x 6 cm margins endurated. Clotted Blood present. K.U.O. Adv. X Ray.

Opinion: Inj. Caused by fire arm K.U.O. Adv. X Ray. Pelvis AP. Duration 612 hrs.

Sd/ Illegible

16.6.2000

Attested L.T.I. Emergency Medical Officer

Ram Lakhan District Hospital, Etawah.

Sd/ Illegible

16.6.2000

Emergency Medical Officer

District Hospital, Etawah.

Examined Bhoop Singh aged 18 years s/o Sarman Singh R/o Pathara, P/s Bhareh Etawah at PHC on 16.6.2000 at 6.05 P.M.

B.B. C.P. 199 Jai Singh, P.S. Bhareh Etawh.

M.I. A tiny Black mole on outer aspect of Rt. fore Arm 4.5 cm above Rt. wrist.

Injuries: (1) Abrasion 2 x 1 cm on Back of Rt. little finger tip.

(2) Pallet size wound on front of Lt. thigh 6.0 cm below groin margin indurated deep few clotted Blood present K.U.O.

Opinion: Inj. by (2) Fire Arm K.U.O. Adv. X Ray Lt. thigh AP.

(1) by friction

Simple

612 hrs. Sd/ Illegible

16.6.2000

Attested L.T.I. of Emergency Medical Officer

Bhoop Singh District Hospital, Etawah.

Sd/ Illegible

16.6.2000

Emergency Medical Officer

District Hospital, Etawah.

Examined Channa Singh S/o Ram Babu aged 50 years R/o Pathara, P/s Bhareh, Distt. Etawah at P.H.C. on 16.6.2000 at 5.55 P.M.

B.B. C.P. 199 Jai Singh, P.S. Bhareh Etawh.

M.I. B.M. Rt. side chest 3.0 cm away Rt. nipple at 2 O'' clock.

Injury:

(1) L.W. 2.5 x 0.5 skin deep on Rt. side head 10 cm above Rt. Ear clotted blood.

(2) L.W. 2 x 0.5 cm skin deep on Lt. side head 7.0 cm above lt. Ear clotted Blood.

(3) Abraded contusion 2 x 1 cm on Lt. upper lip muscle.

(4) Abrasion 1.5 x 0.5 cm on Lt. side chin.

(5) L.W. 2.0 x 0.5 x skin deep on Back of Lt. Arm 5.0 cm above Lt Elbow.

(6) Abrasion 1 x 0.2 cm front of Lt. side chest 3.0 cm below Lt. clavicle.

Opinion: Inj. by blunt object simple 612 hrs.

Sd/ Illegible

Attested L.T.I. of Emergency Medical Officer

Channa Singh District Hospital, Etawah.

Sd/ Illegible

16.6.2000

Emergency Medical Officer

District Hospital, Etawah.

Examined Surjan Singh aged 33 years S/o Ganesh Singh, R/o Pathara P/s Bhareh Etawah at P.H.C. on 16.6.2000 at 5.45 P.M.

B.B. C.P. 199 Jai Singh, P.S. Bhareh Etawh.

M.I. A B.M. on front of fore head 3.5 cm above Root of Nose.

Injury: (1) Multiple pellet size wound on outer aspect of Rt. Thigh and leg margin indurated clotted Blood present. K.U.O. superficial to deep.

Opinion: Inj. by fire arm K.U.O. Adv. X Ray Rt. Thigh and leg K.U.O. 612 hrs.

Sd/ Illegible

16.6.2000

Attested L.T.I. Emergency Medical Officer

Surjan Singh District Hospital, Etawah.

Sd/ Illegible

16.6.2000

Emergency Medical Officer

District Hospital, Etawah.

Injuries of Janved Singh and Brij Bhan Singh, Ex. Ka6 and Ka7 examined on 19.6.2000 are reproduced below:

Examined Janved Singh s/o Manni Babu Singh aged about 26 years M. R/o Vill Pathara Distt. Etawah on 19.6.2000 at 2.10 P.M. at DHE.

B.B. C.P. 58, Mata Prasad P/s Bhareh, Distt. Etawah.

M.I. Two black moles on the Rt. side Neck, 2.5 cm apart together 4 cm below from Rt. Ear.

Injury Noted:

(1)Infected circular wound 0.6 cm x 0.5 cm x muscle deep of entry on the front of Lt. hand at palm with Gun powder stitch to skin in an area of 10 cm x 10 cm Adv X Ray for FB pus coming from wound, Traumatic swelling around.

(2)Star shaped L/W size 0.8 cm x 0.5 cm on the back of Lt. hand, 2 cm below Lt. wrist Jt. on clearing oozing of blood present. Adv X Ray.

(3) Red dark abrasion with hard scabsize 4 cm x 1 cm on the Lt. lower back.

Inj. No. 1 caused by Fire arm.

Inj. No. 2 caused by not ascertained.

Inj. No. 1 & 2 adv. X Ray forearm FB.

Duration34 day old.

Inj. No. 3 is simple & caused by friction.

Sd/ Illegible

19.6.2000

Attested L.T.I. of Pt. Emergency Medical Officer

Attested. District Hospital, Etawah.

Sd/ Illegible

Emergency Medical Officer

District Hospital, Etawah.

Examined Brij Bhan Singh S/o Nanhi Babu aged about 20 years M. R/o Vill Pathara P/s Bhareh Distt. Etawah on 19.6.2000 at 2.20 P.M. at DHE.

B.B. C.P. 58, Mata Prasad P/s Bhareh, Distt. Etawah.

M.I. (1) One black mole on the Rt. side face, just outer to Ear.

Injury Noted:

(1)L/W size 2 cm x 0.5 cm x skin deep on the Rt. side head with Dry hard scab on it.

(2) Red dark multiple abrasion with dry scab in an area of 4 cm x 3 cm on the back of Rt. hand with Tr. Swelling just below Rt. wrist.

(3) Red dark med. hard scab abrasion 1 cm x 0.5 cm on the head, 9 cm above from Rt. Eye brow.

(4) Red dark Med. hard scabbed abrasion in an area of 9 cm x 1.5 cm on the lower back Lt. side.

(5) Red dark med. hard scabbed abrasion 2 cm x 2 cm on the back of chest Rt. side in the middle.

(6)Red abrasion 0.3 cm x 0.3 cm on the front of Rt. thigh lower part with med. hard scab.

(7) Red abrasion 0.3 cm x 0.2 cm on the front of Rt. leg, 5 cm below Rt. knee.

All injuries are simple & caused by blunt object & friction. Duration About 34 days old.

Sd/ Illegible

Attested L.T.I. of Pt. Emergency Medical Officer

Attested. District Hospital, Etawah.

Sd/ Illegible

Emergency Medical Officer

District Hospital, Etawah.

Supplementary injury reports dated 17.6.2000 of Bhoop Singh, Km. Bablee, Ram Lakhan, Surjan Singh and Janved Singh, Ex. Ka9 to Ka13 are detailed herein below:

R.N. 711/2000 M.L.C.

Dt. 17.6.2000 Police

Sri Bhoop Singh S/o L. Sarman Singh R/o Pathara P.S. Bhareh Distt. Etawah.

B/B: C.P. 199 Jai Singh P.S. Bhareh, Etawah.

M.I. : A black mole on outer aspect of Rt. fore Arm 4.5 cm above wrist.

Refd. by E.M.O. Distt. Etawah.

Part X RayedLeft thigh for F Body

Radio findings.

Left thigh for Foreign Body

One small 0.5 x 0.5 cm sized roundish radio opaque shadow of metallic density live foreign body seen at upper part of left thigh.

Sd/ Illegible

17.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

L.T.I.

Attested

Sd/ Illegible

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

R.N. 718/2000 M.L.C.

Dt. 17.6.2000 Police

Km. Bablee D/o Sri Hakim Singh R/o villPathara P.S. Bhareh Distt. Etawah.

B/B: Indoor BHT No. 2690 D.H. Etawah.

M.I. : A black mole on left side head 2.5 cm above left eye brow.

Refd. by E.M.O. D.H. Etawah.

Part X Rayed (1) Chest (2) Abdomen (3) Rt. Arm (4) Rt. thigh with pelvis.

Radio findings

Chest, Abdomen, Rt. Arm, Rt. Thigh with Pelvis

small roundish radio opaque shadows of metallic density live foreign body one in lower chest wall, one in left side abdominal wall, two in Right thigh, three in pelvis region & one in left thigh seen.

Sd/ Illegible

17.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

R.T.I.

Attested

Sd/ Illegible

17.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

R.N. 710/2000 M.L.C.

Dt. 17.6.2000 Police

Sri Ram Lakhan S/o Sri Makrand R/o Pathara P.S. Bhareh Distt. Etawah.

B/B: Indoor BHT No. 2694 D.H. Etawah.

M.I. : A black mole on Rt. side face 5 cm. infront of Rt. Ear.

Refd. by E.M.O. Distt. Hospital Etawah.

Part X RayedPelvis

Radio findings.

Pelvis

Multiple roundish radio opaque shadows of sizes 1 cm x 1 cm of metallic density live foreign bodies seen in pelvis and lower Abdominal region.

Sd/ Illegible

17.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

L.T.I.

Attested

Sd/ Illegible

17.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

R.N. 712/2000 M.L.C.

Dt. 17.6.2000 Police

Sri Surjan Singh S/o Sri Ganesh Singh R/o Pathara P.S. Bhareh Distt. Etawah.

B/B: Indoor BHT No. 2695 Distt. Etawah.

M.I. : A black mole on forehead 3.5 cm from root of nose.

Refd. by E.M.O. D.H. Etawah.

Part X Rayed (1) Rt. Thigh (2) Rt. leg with knee

Radio findings. (1) Right thigh Multiple small roundish radio opaque shadows of metallic density live foreign bodies seen in right thigh.

(2) Right leg with knee

Multiple small size roundish radio opaque shadows of the metallic density live foreign bodies seen in Right leg and Rt. knee regions.

Sd/ Illegible

17.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

L.T.I.

Attested

Sd/ Illegible

17.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

R.N. 730/2000 M.L.C.

Dt. 20.6.2000 Police

Sri Janved Singh S/o Sri Munni Babu R/o Pathara P.S. Bhareh Distt. Etawah.

B/B: Self.

M.I. : Two black mole on Rt. side of neck.

Refd. by E.M.O. D.H. Etawah.

Part X RayedLeft Hand

Radio finding.

Left Hand

Bones N.A.D.

Sd/ Illegible

20.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

L.T.I.

Attested

Sd/ Illegible

20.6.2000

Dr. K.D.R. SRIVASTAVA

SeniorRadiologist

Dr. B.R.A. Joint (Male)

Distt. Hosp., Etawah.

Post Mortem examination of the two deceased Ram Naresh Singh and Manni Babu Singh was performed on 17.6.2000 by Dr. Vinod Sagar PW9. Their antemortem injuries are detailed below:

ANTE MORTEM INJURIES OF RAM NARESH SINGH

(1)Firearm wound at (R) chest wall 11 cm below nipple on 5 O'' clock position size 0.2 cm x 0.2 cm. x cavity deep circular in shape. margins inverted.

(2)Firearm wound at epigastric region size 0.2 cm x 0.2 cm x cavity deep circular in shape. Margin inverted.

(3)Firearm wound at (L) chest 5 cm below nipple on 6 O'' clock position size 0.2 cm x 0.2 cm x cavity deep margins inverted circular shape.

(4)Firearm wound at (R) arm middle ant. aspect size 0.2 cm x 0.2 cm x M/D with inverted margins circular in shape.

(5)Multiple firearm wound at (R) & (L) side of lower abdomen...(paper torn) of 18 cm x 11 cm size 0.2 cm x 0.2 cm circular shape.

(6)Multiple firearm wound at (R) thigh upper 2/3 ant. aspect in area of 22 cm. x 15. size 0.2 cm. x 0.2 cm x M/D circular shape.

(7)(Paper torn) Abrasion at (R) knee jt. ant. aspect size 3 cm x 2 cm....(paper torn) superficial at (L) hand dorsal aspect..(paper torn) 2 cm margins lacerated.

(paper torn).

Opinion: Cause of death due to shock & haemorrhage as a result & AMI sustained.

Note: One metallic pellet recovered from inj. No. (4) Five metallic pellets recovered from Inj. No. (6)

(1) Pajamaone

(2) Underwearone

(3) Kurtaone

(4) Black thread with Guriyaone

Total four items

Sd/ Illegible

Sealed envelope containing fourteen (14) metallic pellets handed over....(paper torn) of constable for S.S.P. Etawah.

Sd/ Illegible

17.6.00

Sd/C/890 Santosh Kumar

Sd/HG 2031 Sukhvir Singh

ANTE MORTEM INJURIES OF MANNI BABU SINGH

(1)Firearm wound at (R) side of chest 2 cm away from manubrium 14 cm inwards & upwards from (R) nipple at 2''O clock position, size 0.2 cm x 0.2 cm x cavity deep with inverted margins. oval shape.

(2)Abrasion at (R) forearm 3 cm above wrist jt. Outer aspect size 0.2 cm x 0.2 cm.

(3)Firearm wound at (R) abdomen at 10 O''clock....(paper torn) 15 cm away from umblicus size 0.2 x 0.2 (paper torn) x cavity deep (paper torn) with inverted margin round shape.

(4)Abrasion at (R) abdomen at 8'' O clock.....(paper torn) 5 cm away from umblicus size 0.2 cm x 0.2 (paper torn)

(5)Abrasion at just below nasal bridge size about 0.5 (paper torn)

(6)....(paper torn) Multiple firearm wound at (R) thigh upper 2/3 in area of 24 cm x 15 cm anterior outer aspect size of each wound 0.2 x 0.2 x superficial to muscle deep with inverted margins round & oval shape recovered. two metallic pellets on dissection.

Opinion: Cause of death due to shock & haemorrhage as a result of AMI sustained.

Other notes:

Sealed cloth containing

(1) Kurtaone

(2) Dhotione

Total two items.

Sd/ Illegible

17.6.2000

Note: Sealed envelop containing (4) four.....(paper torn) pellets handed over to concerning constable from SSP, Etawah.

Sd/ Illegible

17.6.2000

Sd/C/890 Santosh Kumar

Sd/HG 2031 Sukhvir Singh.

All 16 accused in three appeals are nominated in the F.I.R. Arguments advanced by Sri Dileep Kumar mainly revolves around the theory that the place of occurrence, which is said to be house of the deceased Manni Babu Singh in village Parthara, District Etawah is adjacent to and is situated at a distance of 100200 metres of Babool forest and Chambal river. The area is infested by a number of gangs of dacoits. The two deceased used to supply arms and ammunition to the dacoits and in exchange they received payment in lieu thereof. Firing was resorted to by the dacoits on account of some dispute on account of the supply of arms or the various assistance rendered by the deceased to the dacoits and received payment in return.

In support of this contention documents have been adduced in evidence to substantiate that the deceased Manni Babu Singh and Ram Naresh Singh are accused in a number of cases for harbouring dacoits and for offence under Section 216 I.P.C. Learned counsel has demonstrated that the firing was resorted by dacoits on account of some dispute between the two deceased on one hand and the dacoits regarding transaction of the deal on the other.

We have gone through the statement of each and every witness and the learned counsel has pointed out various anomalies, discrepancies and contradictions while challenging their credibility. PW1 Brj Bhan Singh is first informant and alleged to have received injuries. He has dictated the F.I.R. to the scribe Jagat Pratap Singh son of Nahar Singh, R/o Village Parthara, Police Station Bhareh, District Etawah. On perusal of the F.I.R., it transpires that he ran away from the scene of occurrence to give information to the police station and learned counsel has emphasized that he does not mention that he received injury during the incident, whereas while recording his statement during the trial, he has specifically contradicted this assertion of the F.I.R. and has stated that the report was got written by Jagat Pratap Singh and thereafter the written report was given at the police station. He has admitted in his cross examination that forest (Beehar) and Chambal river is situated close by. There is no house in between the Beehar and house of the first informant. He has also admitted that the area is infested by gang of dacoits Nirbhay, Rajan, Saleem and Arvind. Tau of the accused Gyanesh alias Pinkoo had lodged a report of dacoity against the deceased Manni Babu Singh. Satendra happens to be uncle of Gyanesh alias Pinkoo, both of them are also arrayed as an accused. It is also admitted that no motive has been attributed to any of the accused but for Vinod but that too is very vague. The enmity with accused Vinod relates to the year 1995 when the mother of PW1 had contested election of Pradhan and No Confidence Motion was passed against her. The motion was brought by the accused Shiv Ram Singh and not accused Ram Singh. The accused Babu Singh and Mistar Singh are real brothers of Ram Singh, Binu Singh is the real nephew. Shiv Ram Singh and his son Shiv Veer Singh are also accused. Some enmity relating to the year 1998 has also been suggested by defence with the accused Satrughan Singh, his son Sandeep and Abhilash Singh are said to have received injuries. Though PW1 has admitted that there is partibandi in the village on account of election dispute. He has shown ignorance regarding pendency of the cases against the deceased Ram Naresh Singh as well as Manni Babu Singh of harbouring dacoits and rendering all kinds of assistance.

On behalf of the appellants, Sri Dileep Kumar has disputed the place of occurrence which the witnesses claim to be Chabutara of the deceased Manni Babu Singh. The prosecution alleges that the shots were received by the two deceased on Chabutara and thereafter they ran inside and fell in the two different rooms shown in the site plan from where blood was recovered. It is also admitted by PW1 that his father ran after receiving two or three fire arm injury on Chabutara as well as the fact that none of the accused fired inside the room where the dead bodies of the deceased were found. Admittedly, no blood was found on Chabutara but blood was recovered from the rooms where the injured were lying. On the basis of this undisputed assertion of PW1, learned counsel stressed that both the deceased received fire arm injuries on the Chabutara itself though they did not fall down and they fell only after reaching inside the room. Besides, PW1 claims to be present on the Chabutara itself near the deceased but he had not received any injury. The other witnesses namely Surjan, Bhoop Singh, Ram Lakhan Singh, Janmed Singh and Babli have received fire arm injuries and they fell down in Verandah but not on the Chabutara. PW1 has categorically stated that blood was oozing out from their respective injuries and drops of blood had oozed out all along from Chabutara to Verandah but not a drop of blood was found on the Chabutara. Learned counsel has submitted that this itself is sufficient to establish that the occurrence had not taken place on the Chabutara as alleged by the prosecution.

The injuries of PW1 was examined after three days from the date of occurrence and he also admits that he had not shown his injury at the police station when he had gone to lodge the F.I.R. and no Majrubi Chitthi was given to him from the police station. He admitted that his injuries were examined on 19.6.2000 i.e. after a lapse of three days.

Sri Dileep Kumar has submitted that the pelting of stones and brickbats were resorted by villagers to defend themselves from the dacoits who had come to avenge their grudge from the two deceased but no report was lodged against the dacoits and all those persons from the village who had one or the other axe to grind against the police or due to partibandi in the village, have been nominated in the F.I.R. Janved Singh son of Manni Babu Singh was examined as PW2 and according to his statement, the motive to commit offence is attributed to the accused Vinod Singh who had tried to misbehave with his sister, his father had reprimanded him and it was on this account that he committed the offence. The injuries of Janved Singh PW2 were also examined by Dr. A.K. Gupta after three days i.e. 19.6.2000.

Learned counsel has tried to point out the discrepancies of the prosecution story, assertions in the F.I.R. and statement of PW1. The motive as shown by PW2 is altogether different from what PW1 has tried to canvass in his statement. The accused Vinod had got employment in the police department and he had come to the village to attend ''Yagya'' ceremony at the house of Brij Bhushan. The striking aspect pointed out by learned counsel is that though the deceased Manni Babu Singh and Ram Naresh Singh are alleged to be alive after receiving injuries and they died only after reaching hospital but PW2 did not consider it urgent to take them to the hospital on the contrary he had taken Km. Babli for treatment only after obtaining Majrubi Chitthi from the police station. This was prior to the lodging of the F.I.R. PW2 had also received injuries but no Majrubi Chitthi was given to him at the police station when he went there along with Babli. The specific assertion that PW2 had received fire arm injuries and also brickbats, the submission is that the entire prosecution story is rendered doubtful specially the statement of PW2 cannot be accepted as the F.I.R. was lodged subsequently by PW1 who claims to have reached the police station to give information immediately after the incident. On the contrary, the assertion by PW2 is that he had taken away Babli after stopping at the police station for Majrubi Chitthi and got her examined at the hospital without lodging the F.I.R. Besides, he did not get his injuries examined along with Babli. The medical examination of Babli is definitely earlier than the lodging of the F.I.R.

Sri Dileep Kumar has pointed out that the injury report of Babli is completely missing from the record and it has not been exhibited whereas the supplementary injury report is Ex. Ka10A which is an Xray report. Assertion is that the injury report has been withheld deliberately. Incidently PW2 happens to be a witness of inquest as well which was performed after approximately 24 hours on the next day but his injuries were not noticed by the Investigating Officer at that time also.

Sri Dileep Kumar has also demonstrated from the evidence of PW2 in support of his argument that the entire prosecution story is concocted. The manner of occurrence claimed by the prosecution is that Vinod Singh had altercation with his father Manni Babu Singh who was sitting at Chabutara and thereafter he went out to fetch his gun and in the intervening period Ram Naresh, Surjan, Ram Lakhan, Puttu Singh, Brij Kishore and others had arrived on the Chabutara and while talking with his father, five accused are alleged to have opened fire but no empty cartridge was found at the scene of occurrence. PW2 has also admitted that the Investigating Officer had not arrived at the scene of occurrence at the time when PW2 had taken Babli to the hospital. He claims to have reached the police station at 10.45 A.M. on his bike. He also admitted that he had not lodged the report since Diwanji was not available there. He has shown his injuries as well as that of Babli but no G.D. Entry or any other entry was made. He had left for Etawah hospital along with Babli leaving his cycle behind at village Garhasaruda. He also admits that he had not given any information at Etawah police station nor any information to the S.S.P. Medical examination of Babli was conducted on the same day and he had met the Investigating Officer only at the time of inquest on the next day. No statement was recorded by the Investigating Officer and he had not even complained to the Investigating Officer regarding non examination of his injuries. This statement of PW2 has been contradicted by Sri Dileep Kumar from the statement of Investigating Officer PW11 S.I. Surendra Singh where he has admitted that when he arrived at the scene of occurrence and prior to that he was at the police station. Manni Babu Singh and Ram Naresh were in injured state and that he (I.O.) immediately arranged for a tractor to send them to the district hospital. The Investigating Officer had not taken any statement of the deceased who were alive before sending them to the police station/hospital. No Majrubi Chitthi was given to them by the Investigating Officer. This fact has been admitted by the Investigating Officer but there is no connecting G.D. Entry to substantiate this fact. There is no injury report on record.

Sri Dileep Kumar has also placed part of the statement of the Investigating Officer where he has stated that he stayed in village Parthara till 6.00 P.M. in the evening. The S.S.P., C.O. and S.D.M. had arrived at the scene of occurrence but nothing has been mentioned to this effect in the case diary. The assertion that the injured witnesses were in the house of Mathura Prasad is challenged by the defence counsel on the ground that no attempt has been made by the Investigating Officer to record the statement of the aforesaid Mathura Prasad or show his house in the near vicinity of the occurrence in the site plan. The admission of the Investigating Officer that blood was found in the two rooms where the deceased were lying but there was no blood at any other place, not even found on the recovered brickbats. Bloodstained materials were not sent for chemical analysis. In the circumstances, specific assertion that not a drop of blood was found on Chabutara, the submission is that cumulative reading of statements of PW1 and PW2 along with Investigating Officer as well as injury reports and antemortem injuries on the body of the deceased completely belies the prosecution version regarding time and manner of occurrence. The statements of other injured witnesses namely Bhoop Singh PW3, Ram Lakhan Singh PW4, Surjan Singh PW6 have been read out and learned counsel has demonstrated that they had received injuries not at the hands of the accused but on account of stray pellets fired by dacoits in the village and names of the accused have been given on account of the respective enmities with one or the other witnesses who belong to one and the same party of the village. In absence of recovery of blood from the Chabutara or the place of incident, it is sufficient to establish that the injuries were caused as a result of indiscriminate firing by dacoits. Absence of empty cartridge etc. from the Chabutara or Verandah or inside the rooms where the deceased were lying, is ample proof of the fact that it is an unsuccessful attempt on the part of prosecution to conceal the real facts.

CW1 Lallu Singh constable has proved challan lash, Chitthi R.I., Chitthi C.M.O. which are Ex. Ka23, Ka24, Ka25, Ka26, Ka27 and Ka28. DW1 Sri Sri Santa Pillai, Incharge T.B. Ward has been produced as defence witness to establish alibi of Vinod Singh son of Mistar Singh to prove that he was admitted in T.B. Ward as indoor patient and register pertaining to the year 1997 to substantiate that the accused was admitted in the hospital and endorsement is in the register at page 113, serial no. 6, registration no. 40 dated 14.6.2000 and he was discharged only on 20.6.2000. It was a case of suspected tuberculosis.

Several other contradictions and discrepancies, possibility of receiving injuries in the manner proclaimed by the prosecution has been demonstrated to be an absolute concoction. The statements recorded by the Investigating Officer of the witnesses under Section 161 Cr.P.C. has also been advocated to completely dislodge the prosecution story. Material witnesses including injured witnesses have been withheld, specially Km. Babli whose injuries were examined first in time even prior to the lodging of the F.I.R. as well as withholding of her injury report speaks volume.

Learned counsels have stressed the delay in examination of the injuries of two material witnesses i.e. after three days without any explanation as well as the fact that PW1 is not an eye witness who has lodged the F.I.R. and, therefore, the report can not be read in evidence. Therefore, conviction recorded by the court below cannot be accepted. Learned counsels have also challenged the manner of occurrence on the basis of antemortem injuries and injuries caused to the injured.

Sri Ram Shiromani Yadav, learned A.G.A. has disputed each and every arguments of the learned counsels on behalf of the respective appellants. He has argued that since there are a number of injured witnesses and two persons have died which the prosecution has substantiated by oral evidence, the judgment of conviction and sentence by the learned Sessions Judge does not call for any interference whatsoever.

After hearing the arguments of the respective counsels and taking into consideration the entire evidence on record, we closely examined the arguments advanced. The antemortem injuries of the deceased is spread in a large area but all the injuries are 0.2 cm. x 0.2 cm cavity deep and circular in shape. The injuries received by Ram Naresh on the chest, epigastric region, arms, lower abdomen and also in the anterior aspect of thigh. The injuries received by the deceased Manni Babu Singh are also in a large area of chest, abdomen, thigh but the injuries are evident that it has been caused by dispersal and it is a case of distant firing coupled with the nature of injuries, the non recovery of empty cartridge save a few pellets from the Chabutara leaves us to form an opinion that the injuries are not as a result of five persons firing indiscriminately as propounded by the prosecution. The argument of Sri Dileep Kumar has force that the manner of occurrence alleged by the prosecution is not what it is claimed either in the F.I.R. or in the statement of the witnesses. The ocular version is not supported by medical evidence. The injuries received by injured appear to be by stray pellets and, therefore, we are constrained to come to a conclusion that the injuries were as a result of indiscriminate firing from a distance. The witnesses have also corroborated this that injuries were from 2225 paces which has resulted in wide dispersal. We have also examined inquest report of the two deceased in original. The discrepancies pointed out that though the information at the police station was prompt one, but PW2 had gone along with injured Babli prior to lodging of the report and there is no corresponding G.D. Entry. The information of death of Manni Babu Singh was given on 16.6.2000 at 18.10, inquest commenced the next day i.e. 17.6.2000 at 12.05 more than 24 hours from the time of occurrence and entry is in G.D. No. 27. Similarly inquest of Ram Naresh has commenced on 17.6.2000 at 11.20 A.M. and entry is vide G.D. No. 28. No explanation why the inquest was performed after such a long gap when it is admitted by the Investigating Officer that the injured were dispatched to the hospital within 15 minutes from the arrival of the Investigating Officer. No statement of the injured was recorded nor any Majrubi Chitthi was prepared before dispatching them to the hospital. They died before they reached the hospital. It is admitted by the Investigating Officer that two deceased were alive when he arrived at the scene of occurrence but did not record their statements. Besides, peculiar behaviour of PW2 who does not think it necessary to take his father and another person Ram Naresh Singh for medical assistance who had received serious injuries, on the contrary, chooses to take Babli to the police station and thereafter to the hospital without lodging an F.I.R. as well as without getting Majrubi Chitthi for his own injuries which was admittedly not examined continuously for three days. Thereafter withholding of the injury report of Babli definitely casts a shadow of doubt on the prosecution case. The defence has sufficiently corroborated the fact that two deceased had a close connection with the dacoits. They were involved in harbouring them. The situation of the house of deceased Manni Babu Singh was very easily accessible for dacoits from the Beehar, coupled with the fact that the deceased were accused for offences under Section 216 I.P.C. etc. This glaring aspect can not be ignored. The documents in support have also been adduced in evidence which have been shown to us during course of arguments. The presence of PW1 at the place of occurrence is also not very convincing since according to narration in the F.I.R. as well as examinationinchief it appears that he has received no injury, but the fact that his injuries were examined after lapse of three days speaks volumes. Besides, a number of contradictory assertions in the F.I.R. and his statement as well as disputed stand of PW1 with that of the other eye witnesses. In view of these facts, we arrive at a conclusion that PW1 who asserts to be an eye witness, was not present at the scene of occurrence and has not witnessed the incident. The evidence of PW1 is therefore discarded.

The next eye witness is PW2 Janved Singh who is an injured witness and son of deceased Manni Babu Singh. The injuries of Janved Singh was also examined along with PW1 after lapse of three days. Besides, his conduct immediately after the occurrence does not inspire much confidence. He opted to get the injuries of injured Babli examined even before lodging of the F.I.R. The most glaring aspect is that PW2 who is son of the deceased did go to the police station but did not lodge any F.I.R. He got Majrubi Chitthi prepared for Babli but not for himself who claims to have received injuries in the incident. The F.I.R. has been lodged subsequently. Injury report of Babli has been withheld. We can also not loose sight of the fact that PW2 has given a motive which is a novel one and none of the witnesses has come forward with the story of accused Vinod misbehaving with his sister which led to certain altercation between deceased Manni Babu Singh and Vinod. A bald statement of PW2 has been given in his statement. There is nothing to substantiate this and behaviour and the manner of PW2 spells out a complete different story. The evidence of PW2 does not fit in the prosecution story, on the contrary, it defuses the story given out in the F.I.R. Besides, the contradictory statement of PW2 and Investigating Officer so far arriving of the Investigating Officer at the place of occurrence and fact that the Investigating Officer was not at the police station whereas the Investigating Officer has clearly stated that he was present at the police station all along. Admittedly, PW2 had reached the police station prior to lodging of the F.I.R. with the injured Babli who admits that he met the Investigating Officer only the next day i.e. after 24 hours at the time of inquest. The anomalies pointed out by Sri Dileep Kumar between two evidence cannot be overlooked and the only conclusion we could fathom is that there appears to be concoction in the prosecution case and leads us to a conclusion that the entire prosecution case is not free from doubt. We are of the view that definitely material facts have been concealed and a number of accused have been falsely implicated who have been attributed role of firing and pelting stones whereas the injuries received by the deceased and injured as well as absence of Khokhas and empty cartridges etc. from the place of occurrence coupled with non presence of blood at Chabutara is sufficient to discredit the prosecution case. The fluctuating stand of the witnesses leaves us to arrive at an inference that there is no clinching evidence to convict the appellants for the alleged offence. The prosecution has tried to fabricate some evidence and altogether different case which is far from the truth, at least not acceptable completely. This leaves with us no option but to accord benefit of doubt to the appellants. We cannot also overlook of the fact that no bloodstained or blood was recovered from the place where firing was resorted, not even from the brickbats and a large number of accused were involved in the case. These aspects, on the face of it evidently appears to be an exaggerated version.

In view of what has been stated above, the appellants are entitled for benefit of doubt and we hold that the prosecution has not been able to establish the prosecution story by means of reliable evidence beyond reasonable doubt. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment dated 10.7.2003 and 11.7.2003 passed by the Additional Sessions Judge, Court No. 6, Etawah in Session Trial No. 26 of 2001State Vs. Shiv Veer Singh and others are set at naught. The appeals are accordingly allowed. The appellants shall be set at liberty forthwith.

Let a copy of this judgment along with lower court record be sent to the Sessions Judge, Etawah for compliance.