Salik Ram and Ors. vs State of U.P.& Ors.

D. K. Trivedi, J.—The aforesaid criminal appeals are directed against the judgment and order dated 2941980 passed by VII Addl. Sessions Judge, Hardoi convicting the appellants under sections 148 and 302/149, IPC and sentencing each of them to undergo two years R.I. and Imprisonment for Life respectively.

Criminal Appeal No.270 of 1990 was filed by appellants Narain and Nattha and Criminal Appeal No. 284 of 1980 was filed by four accused appellants namely, Salik Ram, Haripal, Ram Dayal and Awadhesh. As both the aforesaid appeals arise out of the same judgment and order, therefore, both these appeals are hereby consolidated and are being heard together.

Appellant Nattha of Criminal Appeal No. 270 of 1980 and appellant Haripal of Criminal Appeal No. 284 of 1980 died during the pendency of these appeals. Hence, both the appeals abate against appellants Nattha and Haripal respectively only and are dismissed against them only having abated.

The facts of the case have already been given in the judgment passed by the learned Sessions Judge in great detail and therefore, we are only giving the brief facts which are relevant for the purpose of decision of the aforesaid appeals.

The brief facts of the case are that there was an enmity between the complainant and accusedpersons. Both the complainant and accusedpersons are residents of villageBharo, P.S. Tandiawan, districtHardoi. All the accusedpersons are related to each other and it is alleged that just one day before the incident Salik had caught hold of the cock of Jhabboo deceased on which some altercation took place and therefore, Salik had threatened Jhabboo to kill him. It is said that in the night between 30th September/Ist October, 1979, the complainant Sumer was sleeping in the ''Tarwaha'' of Jhabboo on one cot and Jhabboo and Taluk Nath were sleeping in the Chaupal on another cot. At about 12.30 a.m., complainant Sumer woke up at the barking of the dogs and on flashing his torch, he saw that the accused Narain, Naltha, Ram Dayal, Salik armed with guns and Awadhesh and Haripal armed with pistols were standing on the chabutara in front of the Chaupal. It is said that the accusedpersons fired their firearms causing injuries to Jhabboo and Taluk Nath and thereafter, they ran away towards north, it is also alleged that several persons namely Chhotey Lal, Dulam, Kashi Rain and Pherru reached the place of the incident and witnessed the incident. It is said that Jhabboo died on the spot, whereas. Taluk Nath was in injured condition. Therefore, the witnesses arranged a bullockcart and placing Taluk Nath on the said bullockcart proceeded towards P.S. for loding the report but Taluk Nath died just at a distance of 4 miles from the village. PW1 Sumer reached the police station Tandiawan which is situate at a distance of about 6 Kms. from the village and lodged the FIR at 5.45 a.m. On 1101979 PW4 Mohd. Rais, Head Moharrir recorded the FIR and registered the case in the G.D.P.W.7 Raj Pal Singh S.I. was present at the time of lodging of the FIR, therefore, the investigation of this case was entrusted to him. He immediately recorded the statement of complainant Sumer and thereafter, prepared a panchayatnama of the dead body of Taluk Nath and other relevant papers Ext. Ka4 to Ka8 and thereafter, sent the dead body of Taluk Nath to mortuary for postmortem through constable Radhey Shyam and Chaukidar. After completing this, he proceeded to the place of the incident and reached the place of the occurrence at about 9.30 a.m. where he prepared the inquest report of the dead body of deceased Jhabboo and other relevant papers Ext. Ka9 to Ka13 and sent the dead body of Jhabboo to mortuary for postmorterm through constable Arjun Prasad and Chaukidar Dwarika. He thereafter, recorded the statements of the witnesses and prepared a site plan Ext. Ka14. He took the blood stained clothes of Jhabboo deceased and he also took the sample of blood stained soil and plain soil Exts. 7 and 8 respectively from the place of the incident. The Investigating Officer after completing the investigation submitted the chargesheet against the accusedpersons.

The postmortem of the dead body of Taluk Nath (deceased) was conducted by PW9 Dr. A.K. Mehrotra, Surgeon, District Hospital Hardoi on 2101979 at 11 a.m. and found the following antemortem injuries on the body of Taluk Nath (deceased):

(i) 4 Gun shot wounds of entry with inverted, lacerated spread in area of 7 cm. 4 cm. and 1/2 cm. on back of right side chest in right scapula line, 4 cm. below interior angle of scapula. The wounds were directed down wards and upwards and chest and abdominal cavity the wounds of size 7 cm. x. 9 cm.

(ii) Lacerated wounds of size 3 cm. x. 7 cm. subcutanious deep on right side chest wall in right posterior axillary line at the level of injury No. 1. The wound was directed obliquely.

(iii) One gun shot wound of entry with inverted lacerated margin on back surface of right upper arm at the junction of 1/3 and upper 2/3, The wound of size 8 cm. x muscle deep and was directed downwards, forwards and slightly inwards.

On internal, examination the doctor found that 7th orth ribs of the right side under injury No. 1 were fractured and stomach was empty. According to the doctor the death of the deceased was caused due to shock and haemorrhage which was result of antemortem injuries.

The postmortem of the dead body of Jhabboo was conducted by the same doctor A.K. Mchrotra (PW9) on 2.101979 at 11.25 a.m. and found the following antemortem injuries on the dead body of deceased Jhabboo:

(i) One gunshot wound of entry with inverted and lacerated margins at the right external auditory, meat us of size 3 cm. x 2.8 cm. Blackening and signing was present around the wound which was directed slightly downwards and inwards.

(ii) A contused area of size 7 cm. x 5 cm. on upper part of left outer surface of neck. On culling the tissues two flattened large size metallic pieces were removed.

(iii) A blackened segged area on front part of right side of chest, on its upper most part 4 cm. right to midline.

(iv) One gunshot wound of entry with inverted, lacerated blackened and segged margin on from surfaceof the chest at the lower part of maubrium, sterini size was 7 cm. x 4 cm. and bone deep, this injury was communicating with injury No. 5.

(v) 7 gunshots wounds of exit with everted lacerated margins, spreading in area of 9 cm. x 6.5 cm. on front surface of left side abdomen, hi left hipo chordrium. The size of the wound were varying from 8 cm, to 7 cm., 2.9 cm. 2.7 cm. These wounds were communicating to injury No. 4 in muscle plain.

(vi) 3 gunshots wounds of entry with inverted lacerated margins of size. 7 cm. x 8 cm. and spread in area of 5 cm. x 2.5 cm. at the upper most part of left thigh, at the line joining front and outer surfaces. The wounds were directed downwards and very slightly outwards. Below these wounds on outer surface of right thigh were embedded 3 large pellets in muscle plain.

(vii) One lacerated wound of size 4.5 cm. x 0.9 cm. on outer surface of back of right thumb, directed obliquely, it was bone deep and underneath proximal phalanix and metacorp as bone of right thumb were fractured.

On internal examination the doctor found that the right temporal and middle face of skull was fractured, the stomach was empty and in large and small intestines gas and faecal matter was present. According to the doctor the death of the deceased was caused due to shock and haemorrhage which was result of the antemortem injuries.

In support of its case, the prosecution examined as many as nine witnesses, out of them PW1 Sumer, P.W.2 Pherroo and PW3 Chhotey Lal are the witnesses of fact. PW4 Mohd. Rais, the then Head Moharrir of P.S. Tandiawan, had registered the case on the basis of the FIR PW5 Sant Ram is village Chaukidar who brought the dead body of deceased Taluk Nath to mortuary for postmortem. PW6 Dwarika is another Chaukidar who brought the dead body of deceased Jhabboo to mortuary for postmortem. PW7 S.I. Raj Pal Singh conducted the investigation of this case and submitted the chargesheet against the accusedpersons. PW8 Shashidhar Rao, was the then Head Moharrir at Reserve Police Lines, Hardoi and he proved the arrival of the dead body at Head Quarter and PW9 Dr. A.K. Mehrotra, Surgeon, District Hospital, Hardoi conducted the postmortem on the dead body of deceased Taluk Nath and Jhabboo and prepared the postmortem reports Ext. Ka22 and Ka23.

On the other hand the accusedpersons denied the prosecution case and stated that they have been falsely implicated in this case due to enmity.

The learned Sessions Judge after considering the evidence on record came to the conclusion that the prosecution has successfully proved the guilt of the appellants beyond doubt and therefore, he convicted and sentenced the appellants as mentioned above. The appellants aggrieved by the said judgment and order preferred the aforesaid criminal appeals in this Court.

We have heard the learned counsel for the appellants as well as learned Addl. Govt Advocate and have perused the record.

The main thrust of the learned counsel for the appellants is that the learned Sessions Judge has committed an error in appreciating the evidence of the three eyewitnesses who are neither independent nor reliable witnesses. He further contended that the FIR lodged on the face of it is antetime and no such incident took place as alleged by the prosecution at about 12 or 12.30 in the night. He also submitted that the medical evidence did not support the prosecution case regarding the time of the incident. He also pointed out that even the presence of the eyewitnesses on the spot at the time of the incident is very doubtful and cannot be believed.

On the other hand the Govt. Advocate has submitted that the judgment and order passed by the learned Sessions Judge is correct and the learned Sessions Judge has committed no illegality in appreciating the evidence of the eyewitnesses.

Before considering the testimony of the three eyewitnesses, it will be proper to mention that all the three eyewitnesses examined in this case are admittedly partisan and inimical witnesses. No doubt, only on this ground, the testimony of the eyewitnesses cannot be discarded but the same requires proper scrutiny. It is also to be noted that no independent witness has come forward to support the prosecution case and even the neighbours have not been shown as witnesses in this case and two witnesses alleged to be arrived there from the house situate at some distance. We have gone through the testimony of all the three eyewitnesses with the help of the parties counsel and we can say after perusing the statements of the witnesses that the witnesses examined by the prosecution in this case are not truthful witnesses.

PW1 Sumer is the complainant in this case. He has a house and Chaupal in the village but he stated that he was sleeping in the Chaupal of the deceased in the night of the incident. Admittedly there were only two cots found by the Investigating Officer but it is said that both the deceased were sleeping on one cot and the complainant (Sumer) was sleeping on another cot. The manner in which the incident is alleged to have been taken place as stated by PW1 Sumer is not believable. The site plan prepared by the Investigating Officer shows that in the Chaupal at place ''A'' the deceasedpersons were sleeping and at place ''B'' the complainant was sleeping on nanother cot. The ''Chabutara'' situates towards south of the Chaupal and there is only one door in the said Chaupal. The cot of the complainant has been shewn by the Investigating Officer to be just in front of the door whereas the cot of the deceasedpersons was shown towards west from the door. It is the case of the prosecution that the accusedpersons fired their firearms from the door. P.W.I Sumer in his statement admits that if he had tried to run away then he would have also been killed because he had also enmity with the accusedpersons. He further stated that he remained sitting on the cot and later on he flashed his torch and in the light of the said torch, he recognized the assailants and witnessed the whole incident. It is not possible to believe the manner of assault as described by PW1 Sumer because if we consider the above mentioned statement with the help of the site plan men, it is not possible to believe that PW1 Sumer was sitting on the said cot. The relevant statement of PW1 Sumer runs as follows:

Looking into the facts and circumstances of the case and the fact that there is no plausible explanation by PW1 Sumer as to why he was sleeping in the Chaupal of the deceased specifically when he has his own house as well as Chaupal nearby the Chaupal of the deceased. It is not possible to believe that he was present in the Chaupal of the deceased at the time of the incident. As pointed out above, the Investigating Officer also found only two cots in the Chaupal of the deceased which shows that two persons used to sleep there. It is not possible to believe that PW1 Sumer was sleeping in the Chaupal of the deceased on another cot. PW2 Pherru and PW3 Chhotey Lal who admittedly live at some distance from the place of the occurrence stated that they reached the place of occurrence and witnessed the incident whereas, PWI Sumer admits that no other person of nearby to his house reached the place of the incident or witnessed the incident. PW1 Sumer further admits that several persons reached there after the incident but no talk took place between him and the villagers about the incident. He further admits that several persons reached there and remained there at the place of the incident upto morning, but he admits that he left the village at about 2.30 p.m. for lodging the FIR. It is alleged that PW1 Sumer lodged a report at P.S. Tandiawan, Distt. Hardoi on 1101979 at about 5.45 p.m. The distance of the Police Station Tandiawan is only six miles from the place of the incident. If the report was lodged at 5.45 a.m. as alleged by the P.W.I (Sumer) and the Investigating Officer also reached the place of the occurrence at 9.30 a.m. after recording the statement of PW1 Sumer, then it is not possible to believe the testimony of PW1 Sumer to the extent that he returned to the village in the evening. He himself admits that he left for the village just after departure of the Investigating Officer but surprising enough., he further stated that he reached the village just before the sunset. He further admits that when he reached the village, he found the dead body of Jhabboo in sealed condition. He also admits that on the spot neither any pellet nor tikli nor cartridge was recovered. According to him the pellets did not hit the wall but looking into the Tact that the assailants fired their firearms from the door, it is not possible to believe that the pellets did not hit the wall, The genuineness of the report lodged by PW1 Sumer is also not free from doubt and in these circumstances, the statement of PW1 Sumer cannot be believed. In fact the learned Sessions Judge without considering the above mentioned facts recorded a finding that this witness (P.W.1 Sumer) is a trustworthy which in our opinion is not proper. No doubt, the testimony of the eyewitnesses cannot be discarded on the ground that the witnesses are partisan and interested witnesses. If, the witnesses are partisan and interested then, it is the duty of the court to scrutinize the evidence of such witnesses with caution. In view of the above mentioned infirmities, it is not possible to believe that PW1 Sumer was sleeping along with the deceased in the Chaupal or the incident took place as alleged by PW1 Sumer.

Similarly, PW2 Pherru is also not truthful witness. According to the FIR, he (P.W.2 Pherru) reached the place of the incident and witnessed the incident including firing of the firearms by the accusedpersons. It is not disputed that he was steeping in his house which is situate at some distance. However, before the learned Sessions Judge, he stated that he woke up on hearing the cries and reached in the ''Bungalow'' of Chunnu and saw the accusedpersons running away with firearms. He stated that he saw the accusedpersons running away from the ''Chabutara. However, in the crossexamination, he admits his enmity with the accusedpersons and further admits that he was in the service of one Kuber and he used to live with Kuber. It may be pointed out here that it is not disputed that the Bungalow of Chunnoo has no door etc. towards north side and the same is closed from all the side and the door is fixed towards south. It is also admitted that from the Bungalow of Chunnoo, the place of incident is not visible. It appears that due to this, before the learned Sessions Judge, it is stated by PW2 Pherru that he reached there and remained standing on the eastern side of the Bungalow of Chunnoo. However, he further admits that when he saw the accusedpersons first time, then the accusedpersons had reached towards 20 paces north of the well. The well has been shown just above the Chaupal of Pooran Pasi and near the Galiyara. In between the well and Sahan on which the witnesses were standing, there are several ''Chaupal'', Madaiya'' etc. and therefore, it will not be possible for the witnesses to recognize the assailants who were already 20 paces away from the well and while they were running away towards north side. From the perusal of the siteplan it can be said very well that the persons standing on the Sahan could not recognize the persons in the night who were 20 paces away from the said well from the back side. His statement is also not consistent. At some where he stated that he was inside the ''Bungalow'' of Chunnoo and sometime he stated that he was standing on the Sahan towards eastern side of the said ''Bungalow''. He also admits that he came out from the said ''Bungalow'' only when the accusedpersons left the ''abadi''. This shows that he has no opportunity to witness the incident. He also admits that Chhotey Lal, PW3 also reached there alongwith him.

Another witness is PW3 Chhotey Lal who is admittedly relation and inimical witness. He stated before the trial court that he woke up on hearing the dogbarking and thereafter, he reached there on the spot. He also stated that Pherru PW2 also reached there and saw in the torchlight that the accusedpersons were firing at the deceased. It is not disputed that the housed PW3 Chhotey Lal situate at some distance from the place of the occurrence and before the Investigating Officer, he stated that he woke up on hearing the sound of gunfiring.. If, he woke up on hearing the sound of gunfiring, then it is not possible for him to reach the place of the incident and to witness the firing of the gun by the accusedpersons. In these circumstances, it appears that the theory of waking up on the barking of the dogs has been introduced but it is surprising that how the witnesses reached the place of the incident on hearing the barking of dogs only in the village. He admits that he saw the incident while he was standing inside the ''Bungalow'' of Chunnoo. He also admits that Pherru PW2 another witness was also standing inside the ''Bungalow'' of (Jhunnoo. He further admits that the witnesses came out from the said ''Bungalow'' only when the accusedpersons ran away. In view of this statement coupled with the fact that the said "Bungalow� is closed from all the sides except towards south and admittedly from the said ''Bungalow, the place of the incident is not visible, therefore, in our opinion the statement of Chhotey Lal PW3 is also not worth to be believed. The learned Sessions Judge while considering the statements of these witnesses, has only considered the fact that these witnesses are inimical and interested but on this ground their testimony cannot be discarded. No doubt, the above principle is correct but thereafter, a burden lies on the court to scrutinize the evidence of such types of the witnesses with caution. As pointed out above, we have considered the evidence of all these eyewitnesses and have found that all these eyewitnesses are not worth to be believed.

Apart from the above mentioned facts, there is another glaring feature which makes the prosecution story doubtful is that PW3 Chhotey Lal is the witness of inquest but in the inquest report there is nothing about the manner of assault or weapon etc. The Investigating Officer has stated that he asked Chhotey Lal about the death of Jhabboo but Chhotey Lal did not inform about the weapon, manner of assault and names of the accusedpersons. This shows that upto this time even the FIR was not in existence otherwise the Investigating Officer might have mentioned all these details in the inquest TCport. The relevant portion of the statement of the Investigating Officer is as follows:

The abovementioned facts in fact also throw doubt on the genuineness of the FIR and show that the FIR was not lodged in the morning and it appears that the same was lodged either after receipt of the postmortem report or after with due consultation.

From all the abovementioned facts, it is not possible to believe the testimony of the eyewitnesses and therefore, in our opinion the prosecution has failed to prove the guilt of the accusedappellants beyond reasoanble doubt.

There is another glaring feature which makes the prosecution case further doubtful. According to the prosecution, the FIR was lodged at 5.45 a.m. by PW1 Sumer. The Investigating Officer immediately recorded the statement of PW1 Sumer and thereafter, prepared the inquest report and other papers for postmortem examination of Taluk Nath (deceased). He thereafter, left for the place of the incident and reached the place of the incident at about 9.30 a.m. PW1 Sumer stated that the ''Daroga'' left the ''thana'' after 12''0 clock and he reached the place of the incident and thereafter he reached the village just about sunset which is not believable. However, according to the Investigating Officer, he prepared the inquest report and other relevant papers for postmortem examination of the dead body of Jhabbu in the village and handed over it to PW6 Dwarika (the Chaukidar) who brought the dead body to mortuary. The distance of Distict Head Quarter from police station. Tandiawan is about 18 Kms. and from the villageBharo the distance is about 28 Kms. However, both the dead bodies reached the Head Quarter on the next day. PW5 Sant Ram (the Chaukidar) who brought the deadbody of the deceased Taluk Nath to mortuary, stated that he started from the police station alongwith the deadbody at about 8 or 9 a.m. but the dead body of deceased Taluk Nath was also received by the doctor on the next day at about 10 a.m. PW6 Dwarika who brought the dead body of Jhabboo (deceased) from the village, stated that he reached Hardoi on the next day after sunrise and when he reached the mortuary, he found the dead body of Taluk Nath there. Both these witnesses specifically stated that he reached the District Head Quarter on the next day. However, the prosecution examined PW8 Shashi Dhar, Head Moharrir, Reserve Police Line, Hardoi who proved the entry made in Reserve Police Lines, Hardoi that both the dead bodies reached the Police Line on 1101979 at about 5.35 p.m. This story in our opinion on the face of it is incorrect. It is not disputed that one dead body was sent from the police station in the morning at about 8 or 9 a.m. to District Head Quarter and the second dead body was sent in the evening on 1101979 from village which lies at a distance of about 28 Kms. In these circumstances, both the dead bodies cannot reach the Reserve Police Lines, Hardoi together.

Apart from this, it is a defintie case of the prosecution that the dead bodies reached Hardoi on the next date of the incident and thereafter, the relevant papers and both the dead bodies were produced before the doctor for postmortem. PW9 Dr. A.K. Mehrotra also clearly stated that he received the papers pertaining to postmortem of the deadbodies on 2101979 at about 9.30 a.m. He further clearly stated that he did not receive the copy of the FIR alongwith the other police papers. The Investigating Officer admits that the copy ofthe FIR or chik report had not been sent to the doctor for portmortem examination and there is no explanation as to why the same has not been sent to the doctor. The abovementioned fact itself throws doubt about the genuineness of the FIR and possibility of the fact that the FIR was lodged later on after with due consultation cannot be ruled out. As pointed out above, PW1 Sumer has tried to conceal his movement after lodging of the FIR but PW2 Pherroo admits that at about 5 p.m., the dead body of Jhabboo was sent to the District Head Quarter and after some time the ''Daroga'' left the village alongwith PW1 Sumer. This also shows that PW1 Sumer has accompanied the ''Daroga'' to the police station after initial investigation. The prosecution has also not given any explanation about the late arrival of the deadbody and further how these two deadbodies reached the Reserve Police Lines, Hardoi together. It appears that the prosecution in order to get over from this fabricated entry of the G.D. in Reserve Police Lines, Hardoi, has tried to show that the deadbodies reached the police Head Quarter on 1101979 but the same is not believable in view of the specific and clear cut statements of PW5 Sant Ram, PW6 Dwarika and PW9 Dr. A.N. Mehrotra.

The time of the incident has also been challenged by the defence and in support of his arguments, the learned counsel for the appellants pointed out that according to the prosecution case both the deceased persons took the meal at about 9 p.m. and thereafter they slept in the Tarwahai. The incident took place at about 12 or 12.30 a.m. meaning thereby just after 3 or 4 hours of their taking meal the incident took place. The doctor who conducted the autopsy on the deadbodies, found that the stomach of the deadbodies were empty and small intestine contained fluids and large intestine contained faecal matter and gases. On the basis of the above mentioned facts it is contended by the learned counsel for the appellants that the incident appears to have been taken place after 78 hours of their taking meal and therefore, it cannot be said that the incident took place at 12 or 12.30 a.m. The suggestion of the defence is that no such incident took place in the Tarwahai as alleged by the prosecution and in fact both these persons (deceasedpersons) were killed in their field where ''Maze'' crop was standing. It is also pointed out that the fact that neither any pellet, Tikli nor any cartridge was recovered shows that no such incident took place in the Tarwaha''. It is also pointed out that this further finds support from the fact that no pelletmark was found on the wall of the chaupal.

Lastly, it is also pointed out that the investigation in this case also does not inspire confidence. The Investigating Officer apart from the fact that the FIR was antedated and time, further did not prepare the relevant papers in accordance with law. He pointed out that in the site plan, the houses of the witnesses have not been shown. The place from where the witnesses witnessed the incident has also not been shown. A copy of the report or other relevant papers have also not been sent to the doctor alongwith policepapers and the police has also tried to fabricate an entry of the G.D. in the Reserve Police Lines, Hardoi, in order to show that the deadbodies reached the Police Head Quarter on 1101979 itself. It this case, even the copy of the FIR reached the office of the Circle Officer on 3101979 and this also shows that before that the F.I.R was not ready and therefore, the same was sent on 3101979.

In view of the facts stated above, in our opinion, the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt and therefore, both these criminal appeals are laible to be allowed.

As indicated above, the aforesaid Criminal Appeal Nos. 270 of 1980 and 284 of 1980 are hereby dismissed against appellants Nattha and Haripal (since both are dead) respectively only having abated.

In respect of other remaining appellants; namely; Narain, Salik Ram, Ram Dayal and Awadhesh both the aforesaid Criminal Appeal bearing Nos. 270 of 1980 and 284 of 1980 are hereby allowed. The impugned judgment and order dated 2941980 passed by the VII Addl. Sessions Judge, Hardoi is quashed and conviction and sentence awarded by the trial court against the appellants are hereby set aside. Appellants namely; Narain, Salik Ram, Ram Dayal and Awadhesh are on bail. They need not surrender. Their bail bonds are hereby cancelled and sureties thereof stand hereby discharged. Appeal allowed.