Prahlad Singh and Others vs State of U.P.

Vishnu Sahai, J.—Through this appeal Prahlad Singh, Chhotey Singh and Smt. Shivpati challenge the judgment and order dated 21.10.1980 passed by the II Ird Additional District and Sessions Judge, Sitapur in Sessions'' Trial No. 309 of 1980 and 507 of 1980, whereby they have been convicted and sentenced to undergo imprisonment for life for the offence punishable u/s 302/149, I.P.C. In addition, Prahlad Singh and Chhotey Singh have been convicted and sentenced to undergo one year''s R.I. for the offence punishable u/s 148, I.P.C. and Smt. Shivpati to six months'' R.I. for that punishable u/s 147, I.P.C.

The sentences of the Appellants were directed to run concurrently.

Shortly stated, the prosecution case runs as under:

The informant Bhagwant Singh, P.W. 1 was the real brother of the deceased Chotkannu Singh. At the time of the incident, the informant, the deceased and the three Appellants, namely, Prahlad Singh, Chhotey Singh and Smt. Shivpati were living in village Bahubana, within the limits of police station Pisawan, district Sitapur. There was enmity between Prahlad Singh and Chhotey Singh and their brother Barkanney Singh on one hand and the deceased on the other. Four-five days prior to the incident Appellant Chhotey Singh was taken away by the police of police station, Maigalganj, which released him one to two days later. Chhotey Singh and his brothers felt that deceased Chhotkannu Singh was behind this.

3.1. On the date of incident, i.e., on 10.4.1978, at about 6.00 a.m., the deceased Chhotakannu Singh, after giving fodder to his bullocks, was sitting beneath a Neem tree on the door of his house and was warming himself. The informant Bhagwant Singh, his sister-in-law and Chhotakannu Singh''s son-in-law Baijnath Singh, P.W. 2 were inside the house. At that time, the informant heard cries of Chhotakannu Singh. Thereupon he, his sister-in-law and Baijnath Singh came out and saw Prahlad Singh and Barkanney Singh (he absconded after the incident and could not be arrested) armed with guns ; Chhotey Singh and Lakshman (he absconded after the incident and could not be arrested) armed with a pistol. They told Chhotakannu Singh that he was the informer of the police and was furnishing information and they will kill him. On that, Chhotakannu Singh raised cries, hearing which, Nirmal, P.W. 3, a resident of Maharaj Nagar, also came on the place of the incident. In the meantime Smt. Shivpati, mother of Prahlad Singh, Chhotey Singh and Barkannu Singh, also reached there. She shouted, "Ab kya dekhte ho. Inko jan se mar do. Aisa mauka phir se nahin milega" (What are you waiting for, kill him, such a chance you will not get). Thereupon Prahlad Singh, Chhotey Singh and Barkannu Singh fired on Chhotakannu Singh, who fell down as a consequence thereof and died instantaneously. Thereafter the Appellants and others dragged the corpse of Chhotakannu Singh and took it towards pond, situated in the eastern direction. After leaving it there, the Appellants and others ran away.

3.2. Thereafter the informant Bhagwant Singh got the F.I.R. scribed by Baijnath Singh, P.W. 2 and along with it and one empty cartridge proceeded about 6.30 a.m. to police station Pisawan, which he reached at about 9 a.m. and where he lodged his F.I.R.

The evidence of Head Constable Ram Shankar Yadav, P.W. 5 shows that on 10.4.1978, the informant Bhagwant Singh came to police station Pisawan and lodged his written F.I.R., on the basis of which he prepared the chik F.I.R. Ext. Ka-3 and registered a case vide General Diary entry Ext. Ka-4 at 9.15 a.m.

The evidence of Station Officer, Prithvi Nath Chaturvedi, P.W. 7 shows thus: On 10.4.1978, the F.I.R. was lodged in his presence. Thereafter he interrogated Bhagwant Singh at the police station and proceeded to the place of the incident, which he reached at 11.40 a.m. He prepared the panchanama of the corpse of the deceased and sent it for autopsy. He seized a blood stained angauchha, which was near the corpse, vide recovery memo and also plain and blood stained earth, in separate containers, from near the corpse, vide recovery memos. He thereafter, interrogated Baijnath, Nirmal and other witnesses. On 12.4.1978, he arrested Appellants Chhotey Singh and Smt. Shivpati. On 2.5.1978 Appellant Prahlad Singh was arrested in a case u/s 395/397, I.P.C. by the police of police station Maigalganj. He was thereafter taken in custody in the instant case. On 22.5.1978, after completing the investigation, he submitted the charge-sheet against the Appellants.

Going backwards, the autopsy on the corpse of the deceased Chhotkannu Singh was conducted on 11.4.1978 at 4.00 p.m. by Dr. L. P. Shukla, P.W. 4, who found on it the following ante-mortem injuries:

(i) Firearm wound of Entry 2 cm. x 2 cm. x mouth cavity deep on left side of the face 1-1/2 cm. away from left angle of mouth. Margins inverted and blackening present. Direction left to right and downwards ;

(ii) Four fire-arm wounds of entry on Rt. side neck, in a straight line in an area of 6 cm. x 1-1/2 cm. x just adjacent to Rt. clavicle, each wound measuring 1 cm. x 0.8 cm. x cavity deep. Margins inverted and blackening present. Direction front to back and downwards.

(iii) Abrasion 2 cm. x 2 cm. Rt. side neck 1/2 cm. above Injury No. 2.

(iv) Lacerated wound 6 cm. x 2-1/2 cm. x muscle deep on Rt. side and inner aspect of lower Rt. wrist.

On internal examination, Dr. Shukla found right clavicle fractured, medial and sixth rib fractured on back vertebrae fractured and left lower jaw broken. He also recovered from inside the corpse a piece of wadding and eight big metallic shots.

In the opinion of Dr. Shukla, the deceased died on account of shock and haemorrhage as a result of ante-mortem injuries suffered by him.

In his deposition in the trial court Dr. L. P. Shukla stated that all the injuries suffered by the deceased could be attributable to a fire-arm.

In the course the case was committed to the Court of Sessions, where the Appellants were charged for an offence punishable u/s 302/149, I.P.C. In addition Appellants Prahlad Singh and Chhotey Singh were charged for the offence punishable u/s 148, I.P.C. and Appellant Smt. Shivpati for that punishable u/s 147, I.P.C.

The Appellants pleaded not guilty to the charges and claimed to be tried.

During trial, in all, the prosecution examined seven witnesses. Three of them, namely, the informant Bhagwant Singh, Baijnath Singh and Nirmal, P. Ws. 1, 2 and 3 respectively, were examined as eye-witnesses. The learned trial Judge believed their evidence and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal.

We have heard Mr. S. H. Ibrahim, learned Counsel for the Appellants, Mr. Janardan Singh, learned Additional Public Prosecutor for the Respondent and gone through the entire record. We are of the judgment that this appeal deserves to be allowed.

It would become manifest from the above that the conviction of Appellants is founded on the ocular account furnished by Bhagwant Singh, Baijnath Singh and Nirmal, P. Ws. 1, 2 and 3 respectively. Since Bhagwant Singh and Baijnath Singh are the real brother and son-in-law respectively of the deceased Chhotkannu Singh and Nirmal admitted in his cross-examination that his uncle was Chowkidar of the village, their evidence would have to be evaluated with caution and we dare say that once we do this, it cannot be accepted, for the reasons stated hereinafter.

Firstly, we are extremely reluctant to accept their evidence that on 10.4.1978, at about 6.00 a.m., while the deceased Chhotakannu Singh was warming himself from fire, he was done to death. It is common knowledge that on 10th of April in district Sitapur, it becomes fairly hot and people at that time do not warm themselves from fire. We may have thought of accepting the story of Chhotkannu Singh warming himself, had he been an old person. (Old persons feel cold more than young persons) but we find from the autopsy report that he was aged about 45 years. That apart, the Investigating Officer, Station Officer Prithvi Nath Chaturvedi did not seize from the place of the incident any ash.

Secondly, we also find the evidence of eye-witnesses in terms that Appellant Smt. Shivpati instigated that Chhotkannu Singh be killed to be extremely improbable and unconvincing because apart from the fact that Nirmal, P.W. 3 did not disclose about it, we find that the prosecution case, as manifest right from the F.I.R., is that it was a planned murder and Prahlad Singh, Chhotey Singh, Barkannu Singh and Lakshman armed with fire-arms came to commit the same. In such a situation, we find it impossible to believe that the said persons only fired on Chhotkannu Singh after Smt. Shivpati (mother of Prahlad Singh, Chhotey Singh and Barkannu Singh) came on the place of the incident and instigated. The story of instigation, in our judgment, shows that upto what length the eye-witnesses are prepared to go in falsely implicating the Appellants.

Thirdly, the evidence of the aforesaid eye-witnesses is belied by the medical evidence and probabilities. It is true that the autopsy surgeon Dr. L. P. Shukla, P.W. 4 stated that all the injuries suffered by the deceased could be caused by fire-arm but we are not prepared to accept his evidence. It is pertinent to mention that ante-mortem Injury No. 4 suffered by the deceased is a lacerated wound of 6 cm. x 2-1/2 cm. x muscle deep on the right side of wrist. In our judgment, it is a typical blunt weapon injury and not a fire-arm injury. In this connection, we would like to advert to the cross-examination of the informant Bhagwant Singh. He categorically stated therein that Appellant Prahlad Singh fired on Chhotkannu Singh on his right hand, which after striking him thereon struck him on the left side of his face. It is significant to mention that the injury sustained by Chhotkannu Singh on his hand (Injury No. 4) is not accompanied by any blackening but curiously enough the fire-arm injury sustained by him on his face shows the presence of blackening. In our view, if both the injuries were the result of the same fire, then obviously there should have been blackening in the Injury No. 4, which the autopsy surgeon found on the hand of Chhotkannu Singh. The dimensions of the said injury was 6 cm. x 2-1/2 cm. x muscle deep. In our judgment, it is a blunt weapon injury. In this connection, we would like to advert to the admission made by the autopsy surgeon Dr. L. P. Shukla, P.W. 4 (in his cross-examination) in terms that the lacerated wound suffered by the deceased Chhotkannu Singh on his hand was possible with a blunt weapon. In our view, not only it was possible by a blunt weapon but was caused by a blunt weapon.

That apart, the evidence of the eye-witnesses fails to explain how the deceased sustained fractures of ribs and vertebrae. The said fractures, in our view appear to be typical blunt weapon injuries. In this connection, we feel it pertinent to advert to the evidence of autopsy surgeon Dr. L. P. Shukla, who in his cross-examination, admitted that fracture of rib was possible by a blunt weapon. In our view, it was not merely possible, but in all probability, was caused by a blunt weapon. In our view, the presence of blunt weapon injuries, on the corpse of the deceased, clearly show that none of the three eye-witnesses saw the murder of the deceased being committed. On no other hypothesis, can the blunt weapon injuries suffered by the deceased be explained.

In another manner, the evidence of the eye-witnesses is belied by the medical evidence. The evidence of the eye-witnesses is to the effect that after the deceased had been fired upon, he was dragged by Appellants Prahlad Singh and Chhotey Singh and absconding accused Barkanney Singh and Lakshman. However, the evidence of the autopsy surgeon in terms that all the injuries suffered by the deceased were attributable to a fire-arm belies their claim of the deceased being dragged.

Fourthly, the eye-witnesses stated that in all three shots were fired on the deceased. In the earlier part of our judgment, we have indicated the injuries suffered by the deceased and their perusal makes it manifest that the deceased sustained only two fire-arm injuries ; both of which were accompanied by a blackening. It is common knowledge that blackening is caused from a distance of four feet. The presence of blackening in the fire-arm injuries excludes the possibility of one of the three shots having missed the deceased. In our view, atleast one of the persons having fire-arm has been falsely implicated.

We also make no bones in observing that we find the reason given by Nirmal, P.W. 3 for his presence on the place of the incident to be unconvincing. During trial he stated that while on the date of the incident, he was going to village Bahubana and at about 6.00 a.m. when he reached near the place of the incident, he saw the incident. It is pertinent to mention that he has given no reason why he was going to village Bahubana at such an early hour of morning. We feel that this story of going to village Bahubana has been introduced by him in order to make him an eye-witness of the incident. And the reason why he was prepared to become one, to repeat, was that his uncle was chowkidar of the village.

We also feel it pertinent to mention that the Investigating Officer seized blood stained earth from the place of the incident but no reason has been furnished by him for not sending to the chemical analyst. In such a situation, the suggestion to the eye-witnesses during cross-examination in terms that the incident did not take place at the place alleged by the prosecution but somewhere else cannot be lightly brushed aside.

As we have mentioned above, all the three witnesses of the incident are interested, the informant Bhagwant Singh and Baijnath Singh being the real brother and son-in-law respectively of the deceased Chhotkannu Singh, and uncle of Nirmal being the chowkidar of the village. In our judgment, in view of the aforesaid infirmities, it would not be safe to sustain the conviction of the Appellants on their testimony and the Appellants deserve the benefit of doubt.

In the result, this appeal is allowed. We acquit Appellants Prahlad Singh, Chhotey Singh and Smt. Shivpati for the offence punishable u/s 302/149, I.P.C. and set aside their conviction and sentence of imprisonment for life thereunder. We also acquit Appellants Prahlad Singh and Chhotey Singh for the offence punishable u/s 148, I.P.C. and Smt. Shivpati for that punishable u/s 147, I.P.C. and set aside their conviction and sentence thereunder. Appellants Prahlad Singh, Chhotey Singh and Smt. Shivpati are on bail. They need not surrender. Their bail bonds shall stand cancelled and sureties discharged.