Ram Swarup and Others vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 26.2.1981 passed by Sri K. K. Srivastava, 4th Additional Sessions Judge, Fatehpur in Sessions Trial No. 326 of 1980 convicting the Appellant Ram Swaroop u/s 302, I.P.C. and Appellants Ram Kripal and Ved Narain u/s 302 read with Section 34, I.P.C. and sentencing each of them to undergo imprisonment for life.

The prosecution story, briefly narrated, was that Deo Raj Singh (27) deceased was real brother of Dharam Pal Singh (P.W. 1) and was resident of village Sidhaon, P.S. Lalaulli, district Fatehpur. One Chunwad of the said village was murdered and Deo Raj Singh and Dharam Pal Singh (P.W. 1) were accused in the said murder case. They were released on bail in the said murder case on 9.3.1979. Appellant Ram Swaroop, Ram Kripal and Ved Narain were friends of said Chunwad and wanted to take revenge from Deo Raj Singh deceased.

On the night of 19.3.1979 at about 9.00 p.m. Deo Raj Singh deceased and Dharam Pal Singh (P.W. 1) were going to attend the call of nature. When they reached near the house of Bhola Kachhi in their village, Appellant Ram Swaroop armed with country made pistol, Ved Narain armed with pharasa and Ram Kripal armed with spear came there. The Appellants asked Deo Raj Singh deceased and Dharam Pal Singh (P.W. 1) to stop. Dharam Pal Singh (P.W. 1) was few paces ahead and Deo Raj Singh deceased was behind him. On the call given by the Appellants, the deceased and Dharam Pal Singh turned their faces and in the meantime Ram Swaroop Appellant fired with his country made pistol which hit on the back of Deo Raj Singh deceased. Sustaining injury the deceased fell down and died on the spot. Dharam Pal Singh (P.W. 1) raised alarm which attracted the attention of Ram Pratap (P.W. 2) and Babu Lal who witnessed the occurrence. Appellants were recognised by the above witnesses in the light of electric bulb.

On the morning of 20.3.1979 Dharam Pal Singh (P.W. 1) prepared written report (Ext. Ka-1) and went to police station Lalaulli after travelling a distance of 7 miles and lodged report there at 8.15 a.m. The chik F.I.R. (Ext. Ka-3) was prepared by Constable Bhaiya Lal (P.W. 4) who made an endorsement of the same at G.D. report (Ext. Ka-4) and registered a case against the Appellants u/s 302, I.P.C.

Investigation of the case was taken up by Sri Yadu Nath Dwivedi (P.W. 5), S.H.O. P.S. Lalaulli, who reached the spot, appointed punchas, conducted inquest of the dead body of the deceased, prepared inquest report (Ext. Ka-5), sealed the dead body and handed over to Constable Virendra Singh and Chaukidar Sukh Lal (P.W. 6) for escorting the same to mortuary. Thereafter he interrogated Dharam Pal Singh (P.W. 1), Ram Pratap (P.W. 2) and Babu Lal. The I.O. inspected the place of occurrence and prepared site plan (Ext. Ka-9). He also took into possession blood stained and simple earth from the spot and prepared recovery memo. The I.O. inspected the torch of Ram Pratap (P.W. 2) and gave it in his supurdigi.

The autopsy on the dead body of the deceased was conducted on 20.3.1979 at 4.45 p.m. by Dr. V. K. Agarwal (P.W. 3) who found a gun shot wound of entry on the back of the deceased and a gun shot wound of exit and the cause of death due to shock haemorrhage. The Doctor prepared post-mortem report (Ext. Ka-2).

The Appellants surrendered in the Court and the I.O. submitted charge-sheet against them.

The prosecution, in support of its case examined Dharam Pal Singh (P.W. 1), Ram Pratap (P.W. 2), the witnesses of facts, besides Dr. V. K. Agarwal (P.W. 3), Constable Bhaiya Lal (P.W. 4), Yadu Nath Dwivedi I.O. (P.W. 5) and Sukh Lal, Village Chaukidar (P.W. 6) formal witnesses. The Appellants did not adduce any evidence in their defence.

On considering the evidence of the prosecution, the learned Additional Sessions Judge came to the conclusion that prosecution successfully proved the guilt of Appellants. With these findings he convicted and sentenced them as mentioned above.

We have heard Sri V. S. Singh, the learned Counsel for the Appellants and the learned A.G.A. appearing on behalf of the Respondent and have perused the evidence on record.

Dr. V. K. Agarwal (P.W. 3) who conducted autopsy on the dead body of the deceased on 2.3.1979 at 4.45 p.m. found following ante mortem injuries on his person:

(1) Seven gun shot wounds of entry 1/4" 1/4" chest cavity deep on the left back 2-1/2" away from the mid line and near inferior angle of scapula. Margins were inverted. Blackening and tattooing were present. Directions were back to front. Gun shot wound was present in an area of 2" 2".

(2) Six gun shot wounds of exit 1/4" 1/4" chest cavity deep on the left side front of chest in an area of 3" 2" and 2" above left nipple. Margins were everted.

On internal examination he found fracture of 2nd, 3rd and 4th ribs anteriorly on left side and fracture of 6th and 7th ribs posteriorly on left side. There were wounds in pleura and left lung corresponding to injury Nos. 1 and 2. Middle lobe of left lung was lacerated. Two litres blood was found in the cavity. The stomach contained digested food, small intestine contained digested food and large intestine contained faecal matters and gases. One big shot was recovered from anterior chest wall near injury No. 2 and wadding pieces were recovered from left lung. The cause of death was due to shock and haemorrhage as result of ante mortem injuries.

There is no dispute regarding death of Deo Raj Singh deceased due to gun shot injury. The evidence of Dr. V. K. Agarwal (P.W. 3) proved that the deceased had sustained wound of entry on his back coupled with wound of exit on front side of chest which resulted into his death.

The motive of the offence alleged by the prosecution was that the deceased was an accused in murder of one Chunwad who was residing in village of Appellants. The Appellants were friends of Chunwad and when the deceased and his brother Dharam Pal Singh (P.W. 1) were released on bail, the Appellants wanted to take revenge. No direct enmity, ill will or grudge of the Appellants with the deceased has been alleged. Admittedly Chunwad had three brothers, namely, Ram Raj, Raj Kumar and Yadunath who were alive and were residing in the village of the deceased. They were his heirs and were looking after his properties. They were also inimical with the deceased. None of the Appellant was witness in the murder case of Chunwad as admitted by Dharam Pal Singh (P.W. 1). It shows that the Appellants had no concern with Chunwad or his property. No doubt Dharam Pal (P.W. 1) stated that he had enmity with Appellants but this fact was neither mentioned in F.I.R. nor disclosed during investigation. Therefore, motive suggested by the prosecution appears very weak. But since the prosecution has relied on eye-witness account, the sufficiency of motive has no relevance and the case is to be decided on the basis of strength of evidence of ocular witnesses.

The occurrence took place in the night of 19.3.1979 at about 9.00 p.m., but report of the occurrence was lodged on next day, i.e., on 20.3.1979 at 8.15 a.m. while the distance of the police station from the spot was 7 miles. Informant Dharam Pal Singh (P.W. 1) himself admitted that he prepared report (Ext. Ka-1) on 20.3.1979 at 7 a.m. There is no explanation as to why the report was not lodged in the night of occurrence. There is also nothing on record to show that conveyance was not available to reach the police station in the night of occurrence or in the early morning. In the absence of any explanation regarding delay, there was inordinate delay in lodging the report and the possibility of lodging report after deliberations and consultations cannot be easily ruled out. In these circumstances the F.I.R. loses its corroborative value.

The occurrence had taken place in the night at about 9 p.m. and according to F.I.R. version Ram Pratap (P.W. 2) and Babu Lal Vishwakarma as well as other villagers who came to the spot had torches and the Appellants were recognised in the light of torches and electric light. The I.O. has also stated that he inspected the torch of Ram Pratap (P.W. 2). But Dharam Pal Singh (P.W. 1) stated in his evidence that he had no torch with him and Ram Pratap (P.W. 2) and Babu Lal had also no source of light. He further stated that there was electric light on the spot. Ram Pratap (P.W. 2) had not supported the prosecution story and according to him he was not present on the spot. Dharam Pal Singh (P.W. 1) had denied the light of torch on the spot. Regarding electric light the witness stated that there were two electric poles, one at a distance of 15 paces and the other in between place of occurrence and the road. But these two electric poles had no bulb. That there was another electric pole at a distance of 70-80 paces on which a bulb was fitted. The above electric pole was towards east of house of Bhola Kachhi and towards east of road. That there were house of Jiya Lal Kori and Jageshwar Kori in between the place of occurrence and above electric pole. In the site plan the I.O. had shown electric pole fitted with bulb, on the western side of kachchi road, towards north east of house of Bhola Kachhi. Dharam Pal Singh (P.W. 1) stated other place of said electric pole. Assuming that the electric pole towards north east of house of Bhola Kachhi was emitting light, admittedly there were two other houses in between the place of occurrence and the said electric pole and the occurrence taking place on southern side of the house of Bhola Kachhi, the electric light could not reach the place of occurrence due to intervention of two houses. Therefore, there was no sufficient light on the spot.

Ram Pratap (P.W. 2) had not supported the prosecution story and according to him he had not seen the occurrence and observed the dead body of deceased on the next morning in the rasta behind the house of Bhola Kachhi. There remains sole testimony of Dharam Pal (P.W. 1) as Babu Lal, the other witness cited in the F.I.R. was not examined. According to evidence of Dharam Pal Singh (P.W. 1) on the night of occurrence, he and the deceased were going to attend the call of nature. In his cross-examination he admitted that he and the deceased had taken food at 6.00 p.m. Normally he and the deceased used to attend the call of nature prior to taking their meals. But on the night of occurrence they felt call of nature after taking meals. He further admitted that normally he did not use to go to attend the call of nature along with his brother Deo Raj Singh deceased but each of them used to go separately. He also admitted that neither he nor the deceased was ill on the date of occurrence. What occasion arose on the night of occurrence for Deo Raj Singh deceased and Dharam Pal Singh (P.W. 1) to go to attend the call of nature together and that too at 9 p.m., has not been explained. This aspect of the prosecution story creates doubts in the presence of Dharam Pal Singh (P.W. 1) along with the deceased on the spot.

Dharam Pal Singh (P.W. 1) stated that the Appellants exhorted him and the deceased from a distance of 10-15 paces and on the challenge given by the Appellants when he and the deceased turned their faces and started running then shot was fired on the deceased. It means that shot on the deceased was fired from a distance of 10-15 paces. But the medical evidence shows that there was blackening and tattooing around wound of entry on the back of deceased. One big shot and wadding pieces were found in chest wall and left lung. This shows that shot on the back of deceased was fired from a close range, i.e., less than a foot and not from a distance of 10-15 paces (15-20 feet). Therefore, the medical evidence also creates doubts in the presence of Dharam Pal Singh (P.W. 1) on the spot and contradicts his testimony.

In view of above discrepancies and infirmities, we find that Dharam Pal Singh (P.W. 1) is not wholly reliable witness and his testimony is also contradicted by F.I.R., medical evidence and other circumstances of the case referred to above. Therefore, it is not safe to place reliance on the sole testimony of Dharam Pal Singh (P.W. 1). Therefore, the prosecution utterly failed to establish the guilt of the Appellants. The learned Sessions Judge erred in placing reliance on the sole testimony of Dharam Pal Singh (P.W. 1) and the appeal succeeds.

The appeal is, accordingly, allowed. The conviction and sentence of the Appellants are set aside and they are acquitted of the offences to which they stood charged with. The Appellants are on bail granted by this Court. Their bail bonds are cancelled and sureties are discharged. They need not surrender.