Om Prakash vs State of U.P.

Six accused persons were charged together under Sections 147, 148, 302 and 307 I.P.C. by the learned III Addl. Sessions Judge, Fatehpur in S.T. No. 90 of 1982 and vide judgment dated 18.5.1983, they were held guilty of committing offences under Sections 148, 307/149 and 302/34 I.P.C. The appellants were heard u/s 235 I.P.C. and each of them was directed to suffer R.I. for 3 years, for 10 years as also for life for their individual conviction under each of the respective sections of offences of I.P.C. The present appeal arises out of that particular judgment of conviction and order of sentence. It may be pertinent to point out that police had initially sent seven accused persons up for trail but accused Pratap Narayan died during the pendency of trial and the proceedings against him was dropped. So far as this appeal is concerned, three appellants, namely, appellant no. 2, Sangam Lal, appellant no. 4, Madho Prasad and appellant no. 6, Swami Deen, also died and we have passed an order today itself abating their appeals. Thus, the appeal survives only for and on behalf of appellant no. 1 Om Prakash, appellant no. 3 Satya Narain and appellant no. 5 Shyam Sunder.

The prosecution case is contained in the written report of Ravi Karan (since dead) which was marked Ext. Ka. 1 during the course of trial. It was stated by the informant that he, alongwith the deceased Shashi Shekhar, Narottam (PW-1), Krishna Kumar (PW-2) and Awadhesh (PW-3) was going to attend the proceedings pending in some courts under Sections 107/117 Cr.P.C. as also another proceedings relating to mutation u/s 229-B of U.P. Zamindari Abolition and Land Reforms Act which was also pending before some competent authority. The informant stated that he alongwith others set out from their village and when they had reached near the flour mill situate at village Asahat at about 8.00 A.M. and especially when the deceased was in front of the house of that flour mill, the appellant Om Prakash, deceased appellant Sangal Lal alongwith appellant Satya Narain emerged from that house. Appellant Om Prakash caught hold of the deceased Shashi Shekhar by his waist and pushed him down on the ground. The appellant Om Prakash, simultaneously, dealt a Lathi blow upon the deceased Shashi Shekhar as a result of which he could not get up. The appellant Satya Narain, thereafter, fired a shot from his country made gun on the deceased.

It was stated by the informant that he and his companions, i.e., the witnesses, moved forward towards the deceased railing cries and when the deceased appellant Madho Prasad alongwith deceased accused Pratap Narain as well as appellant Shyam Sunder and Swami Deen (since dead) came out of the same flour mill. The aforesaid accused were all armed with guns and they ran towards the informant and his companions, remonstrating and shouting that all of them should also be killed. The informant ran towards west by the path way and when they were running away, the deceased appellant Madho Prasad alongwith deceased accused Pratap Narain as well appellants Shyam Sunder and Swami Deen (since dead) also fired at them. It was stated by the informant that he or any one of his companions was not hit by the shots. The informant stated that after running away from the site of the occurrence they reached an uppish place and, thereafter, they went to the police station leaving the dead body at the place of occurrence.

The motive, as alleged, for commission of the offence was that there were pending litigations between the parties and on account of that annoyance Shashi Shekhar had been killed.

On the basis of the written report, Ext. Ka. 1, the F.I.R. of the case was drawn up by PW-4, Ram Chandra Singh, who deposed that he handed over the copies of the F.I.R. and the written report to PW-5, Station Officer, Arvind Mishra, who took up the investigation after the PW-4 had drawn up the F.I.R. Ex. Ka. 2. P.W. 5 stated that he came to the place of occurrence, but did not find any one, including the witnesses, present there, rather found the dead body lying on the road which was covered by a white cloth. PW-5 removed the cloth and held inquest upon the dead body and after preparing challan and other relevant documents, like, the sketch of the dead person, he sent the same for post-mortem examination through Constable Nazir Ali and Chowkidar Darshan, whose evidence was brought on record through affidavit, as may appear from Ext. Ka. 14. PW-5 also found two bicycles at the place of occurrence and claimed to have seized it and further to have handed the same over to the in-charge of Malkhana. Inspite of our best efforts and that of the counsel for the parties, we could find out the document. From the evidence of PW-5 it appears, that neither the documents was annexed with the case diary nor the content thereof was mentioned in any paragraph of the investigation record. He also does not appear preparing any seizure memo or to have seized the blood stained earth as we could not get it from his evidence. However, PW-5 was pointing out that he completed the formalities of investigation and sent up the accused persons for trial.

The defence of the appellants, as may appear from the trend of cross-examination of witnesses, was that the deceased had been killed sometimes prior to the time of alleged occurrence and that incident was not seen by anyone, much less the witnesses, and after pondering over and weaving out the facts and manufacturing the records in connection thereto, the F.I.R. was lodged sometimes on 4.12.1980. It was suggested by the appellants that the whole story was a fabrication.

In support of the charges the prosecution examined six witnesses, out of whom P.Ws. 1 and 3 were giving eye witness account to the occurrence. We have already noted that the informant of the case, Ravi Karan, is dead and it has come in evidence of P.W. 1 that he was the victim of an act of murdering him and for that a separate case was lodged. P.Ws. 1 and 3 as also P.W. 2 were the persons, as per the written report, who were accompanying the deceased, but P.W. 2, Krishna Kumar, who appears to us one of the persons who was required to attend the proceeding u/s 107 Cr.P.C., was not supporting the incident. P.W. 1 had pointed out that he was obliged by the accused persons by being given certain land and he had gone on the side of the accused and thus was turning hostile.

P.W. 6, Dr. B.K. Tripathi, had held the post-mortem examination on the dead body of Shashi Shekhar on 3.12.1980 at 3.00 P.M. though, as we have just indicated, the same was dispatched to hospital through Chowkidar Darshan by P.W. 5 on 1.12.1980 itself. The evidence of P.W. 6 indicates that the dead body had reached the hospital without relevant connecting documents, like, the inquest report, the copy of the first information report and letter requiring the autopsy to be held either by the C.M.O. or any one who could have been deputed by him. Not only that, other connected documents like the entries of General Diary made in the District Police Lines acknowledging arrival of the dead body as also the dispatch of the same to the C.M.O. was also not produced during the course of trial. When P.W. 6 was asked to explain the reason as to why the post-mortem examination was so belatedly held, it was pointed out by him that he did not have the relevant records before him and he further pointed out that records could arrive at his office only when he had completed the examination. This evidence of P.W. 6 and the absence of actions which was affirmatively to be taken by the police under preparation of the documents so as to send the same to P.W. 6 or the C.M.O. has created a serious doubt in our mind that things did not move as per the requirement of law and procedure and as such we have hesitation in repelling the submission or suggestion that records were fabricated by formulating a false story.

However, when we were considering the evidence of P.Ws. 1 and 3, we came across some of admissions which were emerging during the cross examination of witnesses. P.W. 3, Awadhesh, also stated that he was accompanying the deceased, P.W. 1 and others upto Khaga in connection with 107 proceedings. However, when we looked to the relevant records in respect of pendency of 107 proceedings, we find that the deceased, P.W. 1 and the informant had obtained an order of being permanently represented through their counsel until they had been directed by the court to appear before it. This order was passed by the Executive Magistrate on 14.7.1980. Not only that what we find further is that it is true that on 1.12.1980 the proceeding was fixed for being heard by the S.D.M., Khaga vide Case No. 35 of 1980 but the order of that date indicates that it was never fixed for passing final order on closure or dropping of the proceeding as was claimed by P.W. 1 to be their reason to go to the court at Khaga. In fact, there appears an order dated 1.12.1980 which is part of Ex. Ka. 7, that it was fixed for recording the evidence of witnesses, but on account of non appearance on account of death of Shasi Shekhar as also due to non availability of S.D.M., Khaga the proceedings was fixed for 1.2.1980 and on particular date, i.e., 16.12.1980 on account of non appearance of Shashi Shekhar, the deceased, who was also a necessary party required to appear before the S.D.M., warrant of arrest was issued. We are not concerned with these things but we have brought these facts on record in order to judge the claim of P.W. 1 that he and others were required to attend the proceeding which was likely to come to an end on account of completion of its statutory period of six months. We find that that claim valid rather it was an unacceptable claim and, as such, we have doubt that P.W. 1 and others could be present over and around the place of occurrence.

The above inference of ours gets further support from other circumstances which appear from the evidence of P.W. 1. If P.W. 1 and others were really present at the scene of occurrence then their consistent conduct, would have been that they remained present at the place of occurrence for witnessing all the formalities of investigation which were to be carried out by P.W. 5 at the place of occurrence. But, we find from the evidence of PW-1 that he went to the police station with the informant Ravi Karan after the occurrence and he went away alongwith others to village from the police station as the family-inmates of the deceased were required to be consoled as they were about to jump into the well. This appears to us most unconvincing an alibi for PW-1 and others to be present at the place of occurrence which fact was stated by PW-4 (I.O. of the case) in paragraph 4, who stated that when he reached there, he did not find anyone including the prosecution witnesses at or around the place of occurrence.

The other reason, on which we are not going to act upon, is the evidence of witnesses especially PW-1. He has admitted that he never gave his statement to PW-5, the investigating officer. If he had an occasion to meet the I.O., as appears the probability arising from the evidence both of PWs-3 and 5 then we do not see any particular reason as to why he sheid away from the investigating officer. The investigating officer in turn pointed out that he went to the village of the witnesses and searched for them but could not find them. However, he requested them by leaving words there from them to come to the police station for recording their statements, but they did not turn up.

PW-1 stated that PW-3 was not party to the proceedings and we also found from the Ex. Ka. 8 which is an application filed on 30th December, 1980 on which date the proceeding u/s 107/117 was consigned by virtue of Section 116(6) Cr.P.C. due to passage of more than six months of statutory period. The array of five persons who had been impleaded as the responding party, i.e., the opposite party did not include the name of PW-3, Awadhesh. When PW-1 was confronted with the above facts, he was telling the learned trial judge that PW-3 was going to meet one of his relatives at Khaga. But, when we here considering the evidence of PW-3, we found that he was carrying a box containing his lunch. This alone has created a doubt in our mind that PW-3 had really accompanied P.W. 1 as it was very difficult for us to accept that PW-3 will be carrying his own lunch while going to his relative''s place. This is totally unacceptable and against the existing social norms. Not only that when PW-3 was narrating the manner of occurrence in paragraph 8 of his evidence, which is available in full details at pages 51 and 52 of the paper book, then he told that accused persons, who had fired at the deceased after he had fallen on the ground, had put their respective firearms very close to his head near the eyes as also on his face. This evidence necessarily points out that there must be some tattooing or charring mark around the wounds, which could have been caused by those shots. When we were considering the evidence of PW-6, Dr. B.K. Tripathi, who had held the post mortem examination on the dead body of Shashi Shekhar, we came across that it was a solitary shot and was only skin deep and as per the evidence of PW-6 might have been caused by firearm from a distance of 4 - 5 feet. This evidence of PW-6 was not carrying weight with us because he was stating at page 76 of the paper book that there was no particular reason for him to say that injury no. 4 would have been caused by a gun shot and accepted that it was his experience and further that he did not mark any entry of finding blackening around that particular injury. The cause of death, as per P.W. 6, was two lacerated wounds and curiously enough, we could not satisfactorily get as to how these two wounds had been caused and by whom.

As regards the investigation, it appears giving the evidence on all the aspects but appears not creating or making the relevant and important documents, like seizure of the two bicycles and making of the same over to any particular person or persons at Jumanama. He was cross examined very deeply by the defence and on every occasion, he was giving one line evidence that he did not feel it necessary to create the documents. We find the prosecution case suffering from these frailties which were demolishing to the prosecution case and not getting any explanation from the prosecution case on these aspects of the case, we are of the opinion that, in fact, the man was killed somewhere in the night intervening 1.12.1980 or 2.12.1980. This appears reasonably born out directly from the evidence of P.W. 6 itself who stated that he did not find any food particles in the gut of the deceased and further found faecal matter present in it which clearly indicated that the man had never set out for attending the court proceedings early on 1.12.1980 as this fact naturally appeared from the fact that no one could leave his house unless he had attended to the early calls of nature. We are of the opinion that no one had really seen the occurrence. If some one had seen the occurrence then, he was not coming forward to tell the manner of occurrence and the name of the participating culprits. The learned trial judge recorded that enmity was cutting either of the ways. Here we find prominence of enmity cutting the rationale of the informant to get resigned to his vengeance and implicate the appellants. In the result the appeal succeeds and the same is allowed. The judgment of conviction and order of sentence passed upon the appellants is hereby set aside. The three appellants, namely, Om Prakash, Satya Narain and Shyam Sunder are acquitted of the charges of which they had been found guilty. All of them are on bail. They shall stand discharged from the liabilities of their respective bail bonds.