Raghubir Singh and Ors. vs State of U.P.

I.P. Vasishtha, J.—The instant appeal is directed against the judgment of conviction dated 281979 and its corresponding order of sentence dated 381979 passed by Sri K.K. Verma the then IVth Additional Sessions Judge, Hardoi requiring the appellants Raghubir Singh and Munnu Singh to undergo life imprisonment for an offence punishable under Section 302 of the IPC; appellants Sibba Singh and one Barey Singh (since deceased) were to serve life imprisonment under Section 302 read with Section 34, I.P.C. All the appellants alongwith the aforesaid Barey Singh were further called upon to serve rigorous imprisonment for 3 months for an offence punishable under Section 24 of the Cattle Trespass Act; the sentences were, of course, to run concurrently.

According to the prosecution the appellants are brother ''inter se'' Barey Singh was their near collateral, they are agriculturists and residents of village Dhaniamau. Similarly the complainant party represented primarily by P.W. 1 Shiva Nandan also belongs to the same village and are agriculturist by occupation. The deceased Ram Asrey and Raghubir were their collateral and they too were engaged in the same vocation. The parties held their fields almost adjoining with each other on the out skirts of their village.

On 941978 at about 7 a.m. the complainant Shiva Nandan, the aforesaid deceased Raghubir and Ram Asrey besides P. W. 2 Raj Kumar and six others were busy in harvesting ''Bejhara'' crop (mixture of wheat, gram and barley). In the adjoining field, belonging to appellant Raghubir Singh, he alongwith his accomplices was also involved in similar activity; incidentally appellants Raghubir Singh and Munnu Singh were carrying guns; the later had brought their bullocks and let them loose for grazing in their own field but after sometime those buliocks sirayed into the fields of the complainant party and as they were damaging the ripe crop, therefore, the complainants remonstrated and hauled them up for getting them impounded in the cattlepond as the accused party instead of taking their protest in good spirit, retorted that their bullocks would keep on grazing in their own way and nobody could dare disturb them.

The deceased Raghubir and Ram Asrey refused to be blackmailed and started moving with the bullocks for the cattlepond but even though they had hardly crossed over their own field when the appellants alongwith Barey Singh rushed towards them menacingly. Sibba Singh and Barey Singh exhorted their accomplices Raghubir Singh and Munnu Singh to shoot down Raghubir and Ram Asrey on their adamancy to take the bullocks to the cattlepond. Thus Raghubir Singh fired a shot at Ram Asrey from a close range whereas Munnu Singh fired independently on Raghubir resulting in their instantaneous death. The appellants then let loose their bullocks which ran away towards village Bundapur and they themselves took to their heels alongwith their respective weapons.

Fearing further farm to them at the hands of the appellants who were carrying firearms, the complainants did not chase them, Rather, Shiv Nandan immediately rushed to his home and on drafting the complaint Ext. Ka1 walked down to the Police Station Harpalpur situated at a distance of about 8 miles on reaching the Police Station he handed it over to the Moharrir Sharda Prasad who recorded the formal F.I.R. Ext. Ka2 on the basis thereof. Corresponding entry was also made in the G.D. at 9.45 a.m.

P. W. 4, the then S.O. Police Station Harpalpur, Hari Kishan Verma took up the investigation and reached the place of occurrence at about 1.15 p.m. he took charge of the dead bodies, inspected the site, prepared a siteplan and on completion of inquest proceedings despatched the dead bodies under the over all charge of constable Rajbeer Singh P.W 3 to the Mortuary situated at Fatehgarh. He recorded the statements of the witnesses and recovered the Lathi Ex1 from a place close to the dead body of Raghubir and bloodstained lathi Ext. 2 from a place close to the dead body of Ram Asrey. He also lifted blood stained earth from the point where the dead bodies were lying, besides some plain earth from the adjoining spot. These articles were packed and sealed in separate parcels and in due course transmitted to the Forensic Science Laboratory.

On 1041978ataround 12.50p.m., P.W. 5 Dr. S.C. Goel conducted autopsy on the dead body of Raghubir and found it carrying the following injuries:

(i) Gunshot wound of entry 1"x 1''xbrain deep present, right side eye. Margine inverted.

(ii) Gunshot wound of exit 11/2" x 11/2" x communicating with injury No. 1 present right side/forehead just above the right eyebrow. Margins everted, direction upward.

Immediately thereafter Dr. Goel also conducted postmortem on the dead body of Ram Asrey and found it carrying the following injuries:

(i) 4 gunshot wounds of entry each measuring 1/4" x 1/4" x chest cavity deep in front of chest in an area of 9" x 5". Blackening present.

(ii) Gunshot wound of exit two in number each measuring 1/2" x 1/2" communicating with injury No. 1, present right side chest middle part back side direction front to back.

(iii) Gunshot wound of entry 1/4" x 1/4" x bone deep present base of right little finger backside, blackening present.

(iv) Gunshot wound of exit 1/2" x 1/2" communicating with injury No. 3 present, little finger, front side, under neath bones fractured, direction back of front.

On further dissection Dr. Goel recovered two pellets from the chest cavity. His detailed, his observations on the point of autopsy on the dead bodies of Raghubir and Ram Asrey which find mention in the respective postmortem reports Ext. Ka16 and Ka 17. The pellets recovered from the dead body alongwith the worn apparel and belongings of both the dead bodies were packed and sealed in separate parcels and delivered by Dr. Goel to the police for onward dispatch to the Forensic Science Laboratory for a scientific study.

It was alleged that despite vigorous efforts the Investigating Officer could not arrest the accused till he came to know on 2041978 that appellants Munnu Singh and Raghubir Singh had surrendered in the Court. He thereupon examined them on the same day. Similarly appellant Sibba Singh and their accomplice Barey Singh (since deceased) were examined on 264 1978 after their surrender in the court. On completion of investigation the S.O. Harikishan Verma filed the challan.

On the basis of the aforesaid allegations and the charges framed thereupon, the appellants were taken to trial by the learned Additional Sessions Judge for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and Section 24 of the Cattle Trespass Act ; pleading not guilty all the accused claimed trial.

In support of its case the prosecution examined the above mentioned five witnesses including the complainant Shiva Nandan and the other eyewitness Raj Kumar. It appears that the prosecution was not satisfied with the opinion of Dr. S.C. Goel on certain aspects of the matter and so on its request the then Chief Medical Officer Hardoi C.W. 1 Dr. R.B. Pandey was examined as an expert witness. In their statements under Section 313, Cr. P.C. all the appellants as well as their accomplice Barey Singh (since deceased) denied the incriminating allegations and pleaded false implication on account of a monetary/land dispute. Barring a few documents no defence was, however, adduced.

On conclusion of trial the learned Additional Session Judge felt satisfied with the pith and substance of the prosecution case and thus on returning a verdict of guilty convicted and sentenced them as mentioned above. Hence this appeal.

The central thrust of the prosecution is on the eyewitness account provided by the complainant P.W. 1 Shiva Nandan and P.W. 2 Raj Kumar whereas the flanks are sought to be covered by a seemingly prompt F.I.R. and the Medico legal evidence adduced through P.W. 5 Dr. S.C. Goel. For the obvious reasons the learned Government Advocate endorsed the trial Court''s observation that in the absence of any animus on the part of the eyewitnesses it would be a travesty of justice if their depositions were discarded on the ground of minor discrepancies arising out of faded memory or a normal urge at slight exaggerations in one anxiety to press home the truth. It was contended that the presence of both these witnesses was quite natural at the time and place of occurrence and so was that of the accused because both the parties admittedly held their fields in the close proximity of each other and those were the harvesting days when the agriculturists are usually required to attend to the occupational chores in the fields.

It was submitted that the prosecution story finds an echo in the F.I.R. which was lodged by Shiva Nandan at a distantly located Police Station within 3 hours of the occurrence and obviously by then there was no occasion for him to hold deliberations or solicit consultations for devising any distortions. The learned Counsel was at pains to emphasize the absence of any history of ill will or bad blood between the parties who, as urged by him at an earlier stage, were close neighbours. In the same sequence he tried to impress upon the court the significance of the medico legal evidence adduced through Dr. Goel who found the gunshots wounds on both the dead bodies which tally and fall in line with the ocular testimony.

There is no dispute with the broad principle of appreciation of evidence inherent in the submission of the learned Counsel. The absence of previous rancour and animus may also add to the credibility of the witnesses more so when their presence appears to be natural but that by itself would not necessarily suffice to return a verdict of guilty because the paramount criterion is one of truly fullness; the testimony of the witness on an over all assessment, in the context of the totality of the material, should inspire confidence and appeal to the judicial conscience.

For the proper appreciation of the point in issue the Court has to go into the genesis of the incident which, as mentioned hereinbefore, was related to the alleged trespass by the bullocks of the accused party into the fields of the complaint party. There is no gain saying that the occurrence took place at the harvesting time in the month of April both the parties had sown the "Bejaara" crop which broadly comprises of a mixture of Wheat, Barley and Gram. The normal height of the gram plants would no be more than a couple of inches from the ground whereas the wheat and barley usually attain the height up to 2 to 3 feet depending upon the variety of the seed; but the furrows are of such small size that they would not permit the growth of any wild weeds or the planned sowing of green fodder for the cattle; moreover the hot and strong winds lowing at the harvesting season dry up almost every unirrigated crop and for the obvious reasons irrigation in the ripe Bejhara crop was out of question.

On the showing of the prosecution itself the accused had not taken their bullocks in the fields to let them loose in the fields of the neighbours, much less the complainants. They rather let them loose in their own field for grazing. It is not explained as to what type of fodder could be available to them in the fields. After all the accused could not be foolhardy to the extent of suffering damage to their own crops which were ripe for harvesting. It is not the story of the prosecution that the accused had taken any bullockcart with them or that after parking the cart they unyoked the bullocks or tethered them or that the latter got themselves enfreed from the leash and strayed into the fields. Here the allegation is a precise one that the accused had taken their bullocks along and let them loose to graze in their own fields; incidently the unattended bullocks strayed into the fields of the complainant party and started damaging their crop. Investigating Officer Hari Krishan Verma, who inspected the site on the same day conceded, that there was no damage to the crops of either of the parties. As a matter of fact he did not find any trace of grazing in either of the two fields.

In the same sequence it may also be worthwhile to note that the eyewitnesses would have the court believe that by the time the bullocks strayed into their field and started damaging the crop both the parties had already harvested part of the fields but the Investigating Officer did not find any stack of harvested crop in either of the two fields. So it remains to be explained as to how and where that harvested crop vanished. After all per prosecution propagation immediately on firing the fatal shots all the four (4) accused took to their heels whereas the spot was kept under guard by the associates of the complainants who numbered around ten. It is nobody''s case that they had permitted any 3rd party to remove the crops from the fields of the accused or the complainants.

The eyewitnesses conceded that both the groups were carrying their own sickles for the cutting of the stems and plants. After the occurrence some family members from the complainant side picked up the sickles of the deceased Raghubir and Ram Asrey and took them home; it is something different that no such sickle was produced before the Investigating Officer but the point for consideration is as to what happend to the sickles of the accused party as the witnesses admitted that at the time of bolting away from the spot none of the accuse cared to carry his sickle. They rather admitted in clear terms that the accused ran away from there leaving behind their sickles but no such sickle was found by the Investigating Officer on the spot.

The allegation regarding the presence of guns with the accused at the relevant time also appears to be a little intriguing in the absence of any suggestion from either side that there could be any apprehension in the harvestingexercise proposed to be undertaken by the accused; there was no controversy either about the possession of the fields or the crops sown and proposed to be harvested by the parties from their respective fields. Similarly there was no inkling that there could be any scope of foulplay or disturbance in the process of harvesting by the accused, the complainants or by any 3rd party ; and as mentioned hereinbefore the weapons were unlicensed so what for or for what type of manifestation or exhalation the illicit firearms was sought by the accused is something from the realm of human aberration which defies logic.

So the aforesaid circumstances, in the absence of a plausible explanation, cause a reasonable doubt about the genesis of the incident itself as to whether the parties had gone to the fields for harvesting, as to whether the accused had actually taken their bullocks and let them loose in the fields for grazing or as to whether those bullocks had strayed into the fields of the complainants or that the latter apprehending any damage to their crops protested to the accused party about the trespass or as to whether the incident took place when those bullocks were hauled up by the deceased for being taken to the cattlepond.

On the surface, the First Information Report appears to be prompt inasmuch as the occurrence took place at about 7 a.m. on the outskirts of village Bundapur situated at a distance of about 8 miles from Police Station Harpalpur whereas Shiva Nandan lodged the information at 9.45 a.m. Perusal of the statement of Shiva Nandan would show that after the occurrence he first returned home, took about 40 minutes in drafting the complaint and then walked down to the Police Station reaching there in time to lodged the report. Credit if due, must go to his robust health and tremendous speed with which he covered a total distance of more than 9 miles in only a couple of hours on foot.

Be that as it may there is a glaring and unexplained inherent weakness in the F.I.R. inasmuch as it attributes only one shot each to the two gunners viz.; appellants Raghubir Singh and Munnu Singh. Munnu Singh was alleged to have fired a shot at Raghubir. Dr. Goel found an entry and exit wound corresponding to each other over the right eye but its direction was a little baffling inasmuch as the shot must have come from the lower side. For a moment one may visualise as if the deceased had to some extent raised his head vertically at the crucial moment but what baffles is the recovery and find of 2 broken teeth at the site of his dead body by the Investigating Officer. There is not even an iota of evidence to explain as to how Raghubir lost his teeth in the incident. Neither Dr. Goel nor the expert witness CV/1 Dr. R.B. Pandey was examined by the prosecution to solicit any information relating to the fatal shot with the loss of teeth by Raghubir. To crown it all, there was neither any external nor any internal injury on the mouth or jaw of Raghubir; and it goes without saying that the prosecution never alleged infliction of any other injury on the person of Raghubir by the accused party. It was also not its case that with the receipt of gun shot Raghubir had fallen on the ground with a thud so as to suffer the breakage in the teeth, albeit even in that situation there should have been the traces of the abrupt fall byway of scratches if not abrasions, on the front of his mouth.

Similarly there is something fishy about the injuries of Ram Asrey also allegedly suffered at the hands of accused Raghubir Singh. At the risk of repetition it may be mentioned that even in his case only one shot was fired at by the assailant, but surprisingly he got tow injuries, one was in front of the chest in an area of 9 x 5" whereas the other was on the base of the right little finger. The pellet had made entry from the back side and passed away from the front side of the finger after causing a fracture of the underlying bones. In no part of the F.I.R. or in his examinationinchief the complainant Shiva Nandan averred or explained the receipt of the second injury by Ram Asrey. To be precise it was not his case that at the relevant time the deceased had placed his hand on the chest or was holding lathi in a manner that some of the pellets could have struck him on the right little finger also. It may also be worthwhile to note that the presence of blackening marks around both the injuries indicate a short range firing ; from within four feet according to Dr. Goel ; and since on standard firearm is attributed to the accused the obvious inference would, therefore, be the use of some improvised or substandard firearms. It was not sought to be clarified from either of the two expert witnesses Dr. Goel and Dr. R.B. Pandey that the spread out of the pellets could be to the extent of causing simultaneous injuries in the chest and the right little finger.

A valiant effort was made by the learned Government Advocate to press home an assertion of the complainant Shiva Nandan in para 30 of his deposition that at the time of receipt of the gun shot Ram Asrey was having a lathi in his right hand and that in the process of collapsing on the ground he lost hold of the lathi also, It was suggested that after passing through the little finger the pellet struck the lathi and on causing splinters on its tip, lost its momentum to fall into the field. But no pellet was recovered from the field and none was found embedded in the lathi Kxt. Ka2 of Ram Asrey, even the wads were not found on the spot.

Be that as it may this sort of explanation was not corroborated by the other eyewitness Raj Kumar and it hardly requires any mention that no such story was propagated at any stage of the investigation much less at the time of lodging the F.I.R. with the Police. Even in his examinationinchief Shiva Nandan did not utter a word in this regard. The record reveals that no such information was solicited from him by the learned defence Counsel during the crossexamination. It was a volunteered statement at quite a belated i.e. on the next day when the crossexamination was still in progress ; pos,sibility of his seeking ''instructions and guidance" during the intervening night could not be ruled out of reason.

In the case of Ram Narain Singh v. State of Punjab, AIR 1975 SC 1727 their Lordships were pleased to hold that the witnesses lose their credibility if they are found indulging in devising unwarranted improvements or explanations to cover up the prosecution lacunas, particularly in the context of firearm wounds.

And so far as the alleged detached character of the eyewitnesses is concerned, less said the better because all throughout the investigation and even in his examinationinchief Shiva Nandan conceded being the first cousin of the deceased Raghubir but at a later stage "wisdom" appears to have "dawned" on him as he tried to play smart by denying the relationship. Similarly P.W. 2 Raj Kumar in his bid to hide the relationship feigned as if he were not aware of the name of his own grandfather. The attempt was for the obvious reason as both the witnesses wanted to avoid the embarrassment of admitting that they were the near collaterals of the complainant party. This by itself might not have been a good ground to discredit them but it would be going too far to say that they were honest type of persons ; and that was how that their denial to the defence suggestion about a land dispute between the parties ''would also be a relevant consideration for evaluating their intrinsic worth, more so when a large number of independent persons had witnessed the occurrence as per prosecution itself and were held up without any explanation.

As regard the remaining appellants including Barey Singh (since deceased) suffice to say that no overt act was attributed to them. Their role was limited to raising of "Lalkara" and prompting the assailants to fire the shot. They themselves did not carry any weapon either. No attempt was made by them to manhandle or misbehave with either of the deceased or their companions.

hence for the reasons recorded above, in the totality of the circumstances we are not inclined to affirm the verdict of guilt returned by the learned Sessions Judge on the assumption that the prosecution had successfully established its case against the appellants beyond all shadow of doubt; the impugned judgment of conviction and order of sentence, therefore, deserve to be set aside.

Resultantly the appeal is allowed. The impugned judgment of conviction and order of sentence are set aside and all the appellants acquitted of the charges. They are on bail, their bonds are cancelled. They need not surrender to the court below.