Pratap Singh and Anr. vs State

R. P. Nigam, J.—This criminal appeal has been preferred against the judgment and order dated 1141983 passed in S.T. No. 208 of 1982, State v. Pratap Singh and another by Hlrd Addl. Sessions Judge, LakhimpurKheri by which appellant No. 1 Pratap Singh was convicted under Section 307, IPC and sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of Rs. 2000 and in default of payment of fine to further undergo rigorous imprisonment for one year and appellant No. 2 Surcndra Singh was convicted under Section 307 read with Section 34, IPC and was sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of Rs. 2000 and in default of payment of fine to further undergo rigorous imprisonment for one year. It was also ordered that the amount of fine if realised, would be paid to the injured Hamid Ullah Khan for the injuries sustained by him.

The case of the prosecution as disclosed in the written report Ex. Ka1 lodged by Bahadur Khan PW1 in the police station Mohamdi, District LakhimpurKheri on 2104980 at 11.00 a.m. is as follows:

Bahadur Khan son of Inayat Khan is the resident of village Magrena police station Mohamdi, District LakhimpurKheri, Hamid Ullah real brother of Bahadur Khan was near his field of sugarcane which was towards south of village Bichpuri and he was making a way for going to tubewell and on 2401980 at about 10.00 a.m. Pratap Singh son of Puttu Singh and Surendra Singh son of Lakhan Singh residents of village Bichpuri came there and had prohibited Hamid Ullah Khan from making a passage and an altercation took place between them and Hamid Ullah Khan and in the meantime Akbar and Ali Hassan Khan son of Chhotey Khan residents of village Magrena who were cutting grass nearby and were constructing Mend came there and several other persons also collected there and Bahadur Khan also reached there and Pratap Singh and Surendra Singh started abusing Hamid Ullah Khan and Hamid Ullah Khan had prohibited them from abusing and upon this Pratap Singh had taken licenced gun of Surendra Singh and fired two shots at Hamid Ullah Khan and the shots were struck to Hamid Ullah Khan at his right thigh and at the left side of Husali and Hamid Ullah Khan had fallen down at once and Bahadur Khan and other persons after hearing noise of shots, ran and gave Lalkar and in the meantime Pratap Singh and Surendra Singh had run away towards their village with gu ...

On the basis of written report Ex. Ka1, chick FIR Ex. Ka2 was prepared and a case against the appellants was registered at report No. 13 of the G.D. under Section 307/504, IPC on 2101980 at 10.00 a.m. and the carbon copy of the report No. 13 Ex. Ka3.

After registration of the case, investigation of the case was entrusted 10 S.I. Bhagwati Prasad Chaudhry PW4. He started the investigation of the case and he recorded the statements of Bahadur Khan and injured Hamid Ullah Khan in the police station on 2101980 and after that he proceeded for the spot and reached there and there he recorded the statements of Akbar Khan and Ali Hassan, Nabi Khan witnesses. He inspected the spot and on Nishandehi of the witnesses prepared site plan Ex. Ka4. He found blood on the spot and he had taken blood stained clay and simple clay from the spot in his possession and sealed them in two separate containers and prepared memo in respect of them which is Ex. Ka6. he found tiklis of cartridges on the spot and had taken these tiklis in his possession and had kept them in a potli and sealed them and prepared memo in respect of them which is Ex. Ka6. Sri Bhagwati Prasad S.I. had taken licenced gun of Surendra Singh from his house in presence of the wife of Surendra Singh on 11101980 and prepared memo in respect of it which is Ex. Ka7. He on 17101980 recorded the statement of the witnesses of the memo Surendra Singh. He after completing the investigation, laid chargesheet Ex. Ka8 against the accused appellants under Section 307/504, IPC.

The appellant No. 1 Pratap Singh was charged under Section 307, IPC and appellant No. 2 Surendra Singh was charged under Section 307/34, IPC by the court below.

The appellants denied the prosecution case and pleaded not guilty. Appellant Pratap Singh stated that Surendra Singh filed a complaint against the persons of the police and he was witness in the said complaint on behalf of Surendra Singh and that is why he was falsely implicated in the case by the police. Appellant Surendra Singh stated that he filed a complaint against Darogaji of police station Mohammadi, Shyamjee Misra and six constables before the alleged incident of this case and in the said complaint Pratap Singh was a witness on his behalf and Darogaji had threatened him that he would get his gun deposited and false case was instituted by the police on account of enmity of the complaint. Appellants did not lead any oral evidence in their defence. They have filed a copy of the complaint filed by Surendra Singh against Shyamjec Misra and five others which is Ex. Kha1. A perusal of Ex. Kha1 shows that Surendra Singh had filed a complaint against Shyamjee Misra S.I. of police station Mohammadi and other police personnels under Section 323/504/506, IPC in the Coun of C.J.M. on 1011979.

The prosecution in order to prove its case against the accused appellants examined Bahadur Khan as PW1, Ali Hassan as PW2, Hamid Ullah as PW3, Sri Bhagwati Prasad S.I. as PW4, Dr. P.S. Verma as PW5 and Dr. R.K. Sahu as PW6.

Dr R.K. Sahu PW6 examined the injuries of Hamid Ullah Khan on 2101980 at 11.40 a.m. and prepared injuries report whose copy is Ex. Ka10 and he found the following injuries on his person:

(1) Incised wound 6.5 x 2.0 cms. x skin deep on the left side front of chest adjacent to medial and left clavicle. Margin of skin is blackening (advised Xray of chest).

(2) Abrasion 1.5 cms. x 1.0 cms. on the right side of neck around it. Surface is blackening (advised Xray).

(3) Abrasion 0.5 cms x 0.5 cms. and on the front of right side of chest 3.0 cms. below medial and of right clavicle (Advised Xray).

(4) Firearm wound 0.9 cms. x 7.0 cms. x broken of right femur bone. Profuse bleeding is coming out on the llaxor surface of right thigh 20.0 cms. below right anterior superior ilhac spine (advised Xray).

(5) Fireami wound 2.5 ems. x 1.0 cms. on the extensor surface of right thigh 22.0 cms. below right anterior superior illiac spine.

(6) Incised wound 1.5 ''cms. x 1.5 cms. on the extensor surface of right thigh 1.5 cms. below injury No. 5.

(7) Incised wound 2.5 cms. x 1.5 cms. on the right thigh 1.0 cm. below injury No. 6.

According to the opinion of Doclor R.K. Sahu PW6, the said injuries were caused by the discharge of firearm and were fresh and could have been caused on 2101980 at 10.00 a.m.

Xray of chest and left thigh of Hamid Ullah Khan was performed on 2101980 by Dr. P.S. Verma PW5 and who prepared Xray report Ex. Ka9. Dr. P.S. Verma PW5 did not find any foreign body in the Xray of chest and in the Xray of right thigh multiple small and big radioopaque shadows were seen and fracture of femur bone was found.

Bahadur Khan PW1 is the complainant of this case. He has stated that Hamid Ullah Khan is his elder brother and near his village Khudhera tank exists and towards west of this tank the field of Hamid Ullah Khan is and in this field tubewell exists and towards north of the said field and Khudhera tank, one road is which runs from Mohammadi to Rajepur. He has further stated that towards south of Hamid Ullah''s field, the field of Akbar is and towards south of field of Akbar, the field of Ladley Saheb exists. He further stated that the clay was being placed on the road which was going from Mohammadi to Rajepur at the time of incident and the clay was being dug from both the sides of the road and Khantika was formed and towards north of the field of his brother this type of Khanti had been formed and nis brother used to go to his field from the place of Khanti prior to formation of Khanti. He has further stated that his brother Hamid Ullah Khan was levelling the way towards cast of his field from the place of tank for reaching the road on the date of incident at about 10.00 a.m. the accused Pratap Singh and Surendra Singh came there and Surendra Singh had a licenced gun and at the said time he and the witness Ali Hassan were cutting Chara from the field of Ladley Saheb and Akbar and his son Naib were constructing Mend of their field and accused had prohibited his brother from levelling the road and abused and his brother had prohibited them from abusing and the accused Pratap Singh had taken the gun from the accused Surendra Singh and had threatened to kill his brother and the accused Surendra Singh had said to him to kill him (Hamid Ullah Khan) and then Pratap Singh had fired two shots by gun at his brother and one shot was struck at his right thigh and one shot was struck to him at his chest towards left and his brother had fallen down after receiving the injuries and he and the witnesses reached near the accused and Hamid Ullah Khan after hearing alteraction he and witnesses after shots were fired gave lalkar and then the accused appellants ran away towards their village Bichpuri and he knew the accused from before. He has further stated that he had taken his brother to the police station Mohammadi on a cot from the place of occurrance and before reaching the police station he got the report Ex. Ka1 written by RamSahai Thakur on his dictation in Mohammadi and he filed the written report in the police station and Darogaji recorded his statement and the statement of his brother. He has further stated that after that his brother was sent to Mohammadi hospital through a constable and there his medical examination had taken place and as the condition of his brother was grave and that is why his brother was sent to district hospital Shahjahanpur and where he was treated and his brother could not recover there and therefore, he was sent to Lucknow Hospital and there the right injured leg of his brother was amputated.

Ali Hassan PW2 is an eyewitness of the incident. He has stated that he was cutting Chara from the field of Ladley Saheb on the day of incident at 10.00 a.m. and Nabi and Bahadur Khan were also cutting Chara and Akbar and his son Naib were repairing mend of their field and towards north of their Khudehara tank was and towards west of this tank, the field of Hamid Ullah Khan was and Hamid Ullah Khan was levelling the road in between his field and Khudehara tank so that he might take the bullock cart upto pakka road from his field, at about 10.00 a.m. accused Surcndra Singh with his licenced single barrel gun and Pratap Singh came there and these two persons had prohibited Hamid Ullah Khan from making the way and had abused him and he, Nabi, Bahadur Khan, Akbar and Naib had reached there after hearing the abuses and Hamid Ullah Khan had prohibited the said perso ns from abusing and upon this Pratap Singh had taken gun from Surendra Singh accused and had said to kill and Surendra Singh had said to kill and upon this Pratap Singh had fired two shots at Hamid Ullah Khan which were struck at his leg, left chesl and Hamid Ullah Khan had fallen down and on their noise and lalkar the accused appellants had run away towards Village Bichpuri which was towards north and Bahadur Khan and other persons had taken Hamid Ullah Khan to the police station on a cot.

Hamid Ullah Khan PW3 is the injured witness. He has stated that about 2 years ago at 10.00 a.m. the incident had taken place and he was levelling the land of Gram Sabrja from his field towards east for going to pakki sarak which was towards north so that bullock carts etc. might pass. He has further stated that the witnesses Nabi, Ali Hassan, Bahadur Khan were cutting grass and Nabi and Akbar were repairing their mend and in the meantime Pratap Singh and Surendra Singh of village Bichpuri came there and Surendra Singh had a gun and the said persons had started abusing him and had prohibited him from making the way and the witnesses had also reached at the spot after hearing the talks and he had said to the accused that he was correcting the way as Khanties had been formed and had prohibited them from abusing and upon this Pratap Singh had taken the gun from Surendra Singh and Surendra Singh had said to kill and then Pratap Singh had fired two shots by the gun and with an intention to kill him and one shot was struck to him at his right thigh and the other shot was struck to him at his Hasuli towards left and he had fallen down and on the lalkar of the witnesses, the accused had run away towards village Bichpuri which was towards north. He has further stated that he was taken to the police station by his brother and other persons of the village on a cot and in the way his brother Bahadur Khan in the workshop of Mohammadi got the written report written and he filed it in the police station and he was sent to Mohammadi hospital for medical examination and there his medical examination had taken place and as his injuries were serious therefore, he was sent to District Hospital Shahjahanpur and there his Xray took place and he was admitted there and he remained there upto three four days and from there he was sent to Lucknow for treatment. He further slated that his right injured leg was amputated in Lucknow Hospital.

The learned court below had held after considering the evidence adduced by the party that the prosecution was able to prove its case against accused beyond reasonable doubt and therefore, the learned court below convicted the appellants Pratap Singh under Section 307, IPC and sentenced him under Section 307, IPC as stated above and the appellant, Surendra Singh was convicted under Section 307/34, IPC and was sentenced as stated above.

I have heard the learned counsel for the appellants and the learned A.G.A. The learned A.G.A. has supported the judgment and order given by learned court below.

The learned counsel for appellants has contended before me that according to the prosecution the incident happened on 2101980 at 10.00 a.m. and the FIR was lodged on 2101980 at 11.00 a.m. and the distance between the place of occurrance and the police station was 11/2 miles. He has further contended that the FIR was not lodged when it is said to have been lodged and it was lodged subsequently and it was antetimed and therefore, the FIR lodged in the case loses its importance and cannot be used for corroborating the statement of Bahadur Khan complainant. According to the statement of Bahadur Khan PW1 he took his brother to police station from the place of occurrence on a cot and before reaching the police station Mohammadi he got the written report written by Ram Sahai Thakur in person. Ali Hassan PW2 has stated in his crossexamination that the accused had run away after the incident and he remained at the place of occurrence upto 1020 minutes and after that he had gone and Darogaji came at the place of occurrence and Darogaji had called him at the said time and recorded his statement. He has further stated in crossexamination that persons of the house of Hamid Ullah Khan and his ladies and children also came with Darogaji from the village and Hamid Ullah Khan was sent to police station on a cot before Darogaji. This statement of Ali Hassan PW2 reveals that the report could not have been lodged at 11.00 a.m. on 2101980 in the police station as after the interrogation of Ali Hassan PW2 by the I.O. Hamid Ullah Khan was sent to the police station on a cot by the I.O. Hamid Ullah Khan PW3 in his crossexamination has stated that he remained on the spot upto half an hour and after that when the cot came then he was taken. This statement of PW3 Hamid Ullah Khan reveals that he was taken to police station at 10.30 a.m. The police station was at a distance of about 11/2 miles from the place of occurrence and therefore, some time would have been spent in reaching the police station and before reaching the police station, Bahadur Khan PW1 got the written report written by Ram Sahai Thakur in person and'' according to his statement he took 1015 minutes in getting the report written and all these facts show that it was not possible for Bahadur Khan PW1 and Hamid Ullah Khan PW3 to reach the police station at 11.00 a.m. on 2101980 and it was also not possible for Bahadur Khan PW1 to lodge the FIR there, at 11.00 a.m. on 2101980. I find that the said contention of the learned counsel for appellants is correct. The FIR was not lodged when it is said to have been lodged and it was lodged subsequently and it was antetimed and therefore, the FIR lodged in case loses its importance and it cannot be used for corroborating the statement of Bahadur Khan PW1 who is the complainant. Thus, I find that the FIR lodged in this case goes.

The learned counsel for appellants has further contended before me that the prosecution evidence was not truthful and the learned court below was not justified in placing reliance upon the evidence adduced by the prosecution and was not justified in convicting and sentencing the appellants.

Bahadur Khan PW1 has stated in his crossexamination that altercation took place between his brother and the accused and abuses were also exchanged upto some time and then they reached there and the accused were at a distance of 1520 paces from his brother towards south and the shots were fired at his brother from there. It means that the accused were at a distance of 1520 paces from Hamid Ullah Khan towards south and from this place the appellants Pratap Singh fired two shots at Hamid Ullah Khan PW3. Ali Hassan PW2 has stated in his crossexamination that accused were at a distance of 1516 paces from Hamid Ullah Khan towards south at the time of fire. This statement of Ali Hassan PW2 suggests that appellants were at a distance of 1516 paces from Hamid Ullah Khan towards south and from this place appellant Pratap Singh had fired two shots at Hamid Ullah Khan. Hamid Ullah Khan PW3 in his crossexamination has stated that accused were towards north of him and then shots were fired at him and the accused were at a distance of 1012 paces from him. This statement of Hamid Ullah Khan PW3 suggests that the appellants were at a distance of 1012 paces towards north of him and from there appellant Pratap Singh had fired two shots. The said statement of Hamid Ullah Khan PW3 and the said statement of Bahadur Khan PW1 and the said statement of Ali Hassan PW2 are contradictory and therefore, it is not safe to place reliance upon the statements of PW1 Bahadur Khan and PW2 Ali Hassan. These witnesses have given their statements against the prosecution case and it suggests that these witnesses were not present when the incident had taken place. According to the statements of Bahadur Khan PW1 and Ali Hassan PW2 appellant Surcndra Singh had given exhortation and on his exhortation Pratap Singh appellant fired two shots. The statement of the examinationinchief of PW3 Hamid Ullah Khan reveals that appellant Surendra Singh had given exhortation and that is why the appellant Pratap Singh had fired two shots at him. PW3 Hamid Ullah Khan has slated in his crossexamination that Nanhu had also said to kill and he should not be saved. This statement of Hamid Ullah Khan PW3 suggests that Nanhu had also given exhortation to Pratap Singh appellant to kill Hamid Ullah Khan. According to the statement of Bahadur Khan PW1 Nanhu was not present on the spot at the time of incident. Ali Hassan PW2 has not stated regarding the presence of Nanhu at the place of occurrence at the time of incident. If Bahadur Khan PW1 and Ali Hassan PW2 were present at the spot and they had witnessed the incident and then these witnesses should have stated that Nanhu was also present on the spot at the time of incident and he also gave exhortation to Pratap Singh to murder Hamid Ullah Khan but these witnesses did not slate the said facts and this shows that these witnesses were not present when the incident had taken place. According to the statement of examinationinchief of Hamid Ullah Khan two shots were fired by Pratap Singh by gun not one. One of the two shots was struck to him at his right leg and the second shot was struck at his Hasuli towards left and He had fallen down after receipt of two shots. Hamid Ullah Khan PW3 has stated in his crossexamination that the accused were towards north of him when the shots were fired at him and they were at a distance of 1012 paces from him. It means that Hamid Ullah Khan PW3 received injuries of shots, injury No. 1 is an incised wound, injuries Nos. 6 and 7 are also incised wounds. According to the statement of Dr R.K. Sahu PW6 all the injuries of the injured were caused by discharge of firearm. This statement of Dr. R.K. Sahu does not appear to be correct. Injuries Nos. 1, 6 and 7 of the injured which are incised wounds couJd not have been caused by discharge of fire arm and these injuries would have been caused by some sharp edged weapon and therefore, the statement given by Dr. R.K. Sahu regarding the injuries Nos. 1, 6 and 7 is not correct and is liable to be discarded. Thus, I find injuries Nos. 1, 6 and 7 could not have been caused by discharge of fire arm and would have been caused by sharp edged weapon and therefore, the necessary inference which I can draw is that Hamid Ullah Khan PW3 could not see his assailants and also could not see that by what weapon actually injuries Nos. 1, 6 and 7 were inflicted on him. The statements of Bahadur Khan PW1, Ali Hassan PW2 and Hamid Ullah Khan PW3 are contradictory on material points which show that neither Bahadur Khan PW1 Ali Hassan PW2 nor Hamid Ullah Khan PW3 are truthful witnesses and therefore, no reliance can be placed upon the statements of the said witnesses.

Dr R.K. Sahu PW6 has stated in his crossexamination that injuries could have been caused on 2101980 between 67 a.m. The statement of examinationinchief of Dr, R.K. Sahu show that the injuries were caused within six hours. These facts suggest that injuries could have been inflicted on Hamid Ullah Khan PW3 in darkness and it appears that the injuries were inflicted on Hamid Ullah Khan PW3 in darkness and he could not sec and recognise his assailants and he does not appear to be a truthful witness and it is not safe to place reliance upon his statement. I place no reliance upon his statement. The prosecution evidence was not truthful and the prosecution was not able to prove its case against the appellants beyond reasonable doubt and therefore the learned court below was not justified in covicting and sentencing the appellants.

Bahadur Khan PW1. Ali Hassan PW2 and Hamid Ullah Khan PW3 are not truthful witnesses and therefore, it is not safe to place reliance on their statements. The prosecution has miserably failed to prove its case against the appellants beyond reasonable doubts and therefore, the appeal should be allowed and the appellants should be acquitted.

The appeal is allowed. The conviction and sentence recorded against the appellants are set aside. The appellant Pratap Singh is acquitted of the offence with which he was charged. The appellant Surendra Singh is acquitted of the offence with which he was charged. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.

Appeal allowed