Shiv Kumar and Others vs State

S.I. Jafri, J.—Appellants Shiv Kumar, Rama Kant, Iqbal Bahadur, Krishna Murari and Ram Krishna have preferred this appeal against their conviction and sentences recorded by Sri M.L. Singhla, Vth Additional Sessions Judge, Shahjahanpur by his judgment and order dated 21-6-1977. All the Appellants were convicted u/s 302 read with Section 149, IPC and they were sentenced to life imprisonment. Appellants Krishna Murari and Ram Krishna were also convicted u/s 148, IPC and they were sentenced to undergo one years'' R.I. each. The remaining Appellants Shiv Kumar and Rama Kant and Iqbal Bahadur were further convicted u/s 147 IPC and were sentenced to one years'' R.I. each by the Trial Court.

The Appellants Krishna Murari and Ram Krishna are alleged to have been armed with gun whereas Appellant Rama Kant is alleged to have been armed with Sooja and the remaining Appellants Iqbal Bahadur and Shiv Kumar were said to have been armed with Lathis.

Appellants Shiv Kumar, Ramakant, Krishna Murari and Ram Krishna are real brothers and they are the sons of Ram Swarup. Appellant Iqbal Bahadur is their cousin.

The prosecution case in brief is that there was enmity between the deceased Balak Ram and his family members with the Appellants in connection with the field of the complainant. It was said that during the consolidation operations Ram Swarup, father of the Appellants Shiv Kumar, Rama Kant, Krishna Murari and Ram Krishna got the name of the complainant struck off in the revenue records whereupon the complainant after making efforts got his name re-entered in the revenue papers on the said plot and on account of this Appellants bore enmity towards the complainant and his family members. It was also alleged that the Appellants also on account of enmity used to damage the crops of the complainant by their cattle.

It is alleged by the prosecution that on the day of occurrence at about 12.30 p.m. on 24-9-1976 when the complainant and his brother Balak Ram were returning to their house, they noticed the cattle of Ram Swarup grazing in their sugar cane field. Whereupon, the deceased Balak Ram had taken out the cattle from the field and brought them in front of his house for taking them to the cattle pond. It was further alleged that the Appellants Krishna Kumar and Ram Krishna armed with guns, Appellant Rama Kant armed with Sooja and Appellants Shiv Kumar and Iqbal Bahadur armed with Lathis reached in front of the house of the complainant and blocked the way of deceased Balak Ram for taking their cattle to the cattle pond. Thereupon, altercation ensued and in the meantime witnesses Om Prakash, Ram Naresh, Ram Sahai, Raja Ram also were attracted to the scene of occurrence and at that time Appellants Shiv Kumar, Rama Kant and Iqbal Bahadur exhorted the Appellants Krishna Murari and Ram Krishna to fire upon the deceased Balak Ram and as a consequence Krishna Murari and Ram Krishna Appellants fired upon the deceased Balak Ram and Balak Ram fell down on receiving the gun shot injuries and the Appellants, thereafter, had run away from the place of occurrence. After the occurrence, the complainant Sunder Lal kept the injured Balak Ram on a Lahri for taking him to the Police Station but he breathed his last due to the injuries before the complainant proceeded to the Police Station. The complainant then left for the Police Station after leaving the dead body at his house. On reaching the Police Station, he dictated his report to Head constable PW 6 Ram Nath Gaur who prepared Chik report Ex. ka 27 at 2.05 p.m. on 24-9-76. The Head constable Ram Nath Gaur also registered a case on the basis of the said report in the General Diary of the Police Station Copy of the same is Ex. ka 28.

Doctor K.A. Abbas PW 3 conducted autopsy on the dead body of the deceased Balak Ram at 12.00 on 25-9-1976 and he found the following ante mortem injuries on the dead body of the deceased. The post mortem report is Ex. ka 3.

Circular lacerated fire arm wound in the area of 7 cm x 7 cm x muscle deep on the back of the left wrist joint margins are inverted.

2 Multiple circular lacerated fire arm wounds in the area of 15 cm x 13 cm on the front and left side of chest.

Single wound 0.5 cm x 0.5 cm x muscle deep in both the injuries.

Blackening and singeing of hair present and margins are inverted.

7 According to the opinion of Doctor, the death was caused due to shock and haemorrhage as a result of ante mortem injuries.

The investigation of the case was entrusted to PW Vishwanath Singh Sub Inspector v. ho recorded the statement of complainant Sunder Lal on 24-9-1976 at the police station and then he reached the place of occurrence where he prepared the inquest on the dead body of the deceased Balak Ram. The inquest report is Ex. ka 4. He sent the dead body of the deceased in sealed cover to the mortuary for post mortem examination through constables Ram Bharoscy and Subedar Singh. He also inspected the place of Occurrence and prepared the site plan which is Ex. ka 7. He had also found blood at the place of occurrence and he took blood stained and unstained earth from the place of occurrence and prepared the recovery memo Ex. ka 8. He, then, recorded the statement of witnesses Om Prakash, Ram Naresh, Ram Swarup, Raja Ram and others. Trilok Chand Sharma PW 5 took the investigation of the case in his hand on 25-9-1976 and after completing the investigation, he submitted chargesheet against the Appellants on 4-11-1976.

The Appellants pleaded not guilty to the charge and stated that they were falsely implicated in this case on account of enmity.

We have heard Sri Chander Shekhar Saran the learned Counsel for the Appellants and so the learned Government Advocate for the State at a great length and we feel that the conviction of the Appellants recorded by the Trial Court must be set aside.

During the course of argument, it was found necessary to examine the Ballastic Expert in order to know his opinion regarding the nature of gun shot injuries found on the person of the deceased Balak Ram. Consequently we summoned Sri Om Prakash Mani Tripathi Ballastic Expert, Forensic Science Laboratory U.P. Lucknow and we recorded his statement in the presence of the learned Counsel of the parties and they were allowed to put questions to the witness by way of cross-examination.

The prosecution in support of its case examined seven witnesses in all out of them PW 1 Sunder Lal, PW 2 Ram Naresh and PW 4 Raja Ram were examined as witnesses of fact.

PW 1 Sunderlal is the brother of the deceased who had lodged the First Information Report at the Police Station at 2.05 p.m. on 24-9-76. He stated that about five or six days before the occurrence, he had lodged a report at the Police Station against all the Appellants except Iqbal Bahadur for having damaged their crops by cattle and the copy of the said report is Ex. ka 1. He further stated that he had filed another case against Appellants Ram Krishna, Krishna Murari and Shiv Kumar and in that case, they were convicted and sentenced to undergo R.I. for four months each and on account of this case also, the Appellants felt inimical towards him and his family. He also admitted in cross examination that in the above case in which Appellants were convicted, the appeal filed by them was partly allowed by the Sessions Judge and instead of imprisonment they were sentenced to pay a fine of Rs. 300/- each. He also admitted that he was prosecuted for causing injuries about 3 years before the present occurrence and he was bound down for six months for keeping peace. He stated that the deceased was fired at by Krishna Murari and Ram Krishna by their guns from a distance of four to six paces and after Balak Ram had received the injuries, he did not bandage the wound. He also admitted that prior to the murder of Balak Ram, proceedings u/s 107, Code of Criminal Procedure were also started against him alongwith others The accused were also prosecuted in the cross case u/s 107 Code of Criminal Procedure alongwith others. He also stated that when the occurrence took place, he was already standing there at his Chabutra. He denied that he stated before the Investigating Officer that he reached the place of occurrence on hearing the alarm alongwith his nephow Om Prakash, Ram Naresh sons of Balak Ram and Ram Sahai and saw the occurrence.

PW 2 Ram Naresh is the son of the deceased Balak Ram. He stated that he was at his house. On hearing the alarm at about 12.30 in the day, he came out of his house and saw the Appellants armed with guns, Sooja and Lathis. Appellants Krishna Murari and Ram Krishna were armed with gun whereas Appellant Rama Kant was armed with Sooja and the remaining Appellants Shiv Kumar and Iqbal Bahadur were armed with lathis and at that time his uncle Sunder lal who had returned from the field after ploughing, had gone inside the house for keeping the plough and the Appellants tried to block the way of his father Balak Ram for taking the cattle to the cattle pond and the afteraction started between them and in the meantime his uncle Sunderlal also joined the fray and then on the exhortation of Shiv Kumar, Rama Kant, Iqbal Bahadur Appellants, the accused Krishna Murari and Ram Krishna fired their guns upon his father and his father fell down on the ground and thereafter Appellants went towards their houses. His father was struggling between life and death on receiving the injuries and he was placed on a cart far taking him to the police station but before he could start for the Police Station, his father Balak Ram succumbed to his injuries. He further stated that his father was fired at from a distance of four to six paces. He also admitted that wounds of his father were not bandaged on the spot.

The last witness is PW 4 Raja Ram. He is the brother of the son-in-law of the deceased Balak Ram. His younger brother Baburam is married to the daughter of Balak Ram and he belongs to village Moharpur which lies at a distance of about eight miles from village Brahimpur where the occurrence had taken place. He stated that at the time of occurrence, he was present inside the house of Balak Ram and he came out on hearing the alarm and saw the occurrence. He stated that when he came out of the house, he saw Sunderlal and Balak Ram were taking the Padaras (cattle) to the cattle pond and the Appellants Ram Krishna, Iqbal Bahadur and Shiv Kumar asked them not to take the Pandaras to the cattle pond. But when they failed to stop them, Iqbal Bahadur, Shiv Kumar and Ramakant exhorted Krishna Murari and Ram Krishna Appellants to fire at them whereupon Krishna Murari and Kam Krishna tired at Balak Ram with their guns. They had fired one shot each and Balak Kam fell down on receiving the injuries. He admitted that he had come to Brahimpur just to know the welfare of the deceased Balak kam and he had no particular business at Brahimpur on the day of occurrence.

It was contended by the learned Counsel for the Appellants that the injuries sustained by the deceased appear to have been caused by country made pistol and not by gun considering the nature of the injuries. It was submitted that the dispersal of the pellets in an area of 15 cm x 13 cm is in conflict with the blackening and singeing of hairs around the wounds of the deceased. It was also contended that both the injuries of the deceased are the result of one shot from a country made pistol and they are not the result of two separate shots from gun as stated by the witnesses. It was urged that from a distance of four to five paces, the pellets of a cartridge discharged from a gun will go en masse inside the wound and there will not be dispersal to the extent of 15 cm x 13 cm. In order to properly appreciate the aforesaid submissions of the learned Counsel for the Appellants regarding the dispersal of the pellets, blackening and singeing of hairs around the wounds, we considered it expedient in the interest of justice to examine the Ballastic expert and consequently we examined Sri Om Prakash Mani Tripathi, Ballastic Expert Forensic Science Laboratory, U.P., Lucknow and he gave his opinion by looking at the ante mortem injuries of the deceased mentioned in the post mortem report fix ka 3 that it is probable that these injuries could have been caused by firing a country made pistol from a distance of four to six paces. He further stated as under:

''Singeing and scorching are nearly the same thing but they are not actually the same. Burning of hairs is singeing. In scorching the skin may also be involved. Scorching and singeing is dependent upon closeness of the weapon with the object. I agree that the shorter is the barrel, the greater is the dispersal of the pellets and vice versa. With a standard weapon, singeing is possible within a distance of one foot. There is no dispersal possible from a standard gun from a distance of one foot. At a distance of one foot, the pellets will enter the object en masse. In Ex. ka 3, wounds show the dispersal of the pellets as well as blackening and singeing. Generally, it is not possible to have so much dispersal and blackening and singeing even if a band filled cartridge is used. If both the injuries are in the same line of the fire at the time of shot, then these injuries could be caused even by a single shot. If the firing is made from a country made pistol which has a wider barrel then these injuries could be caused by a country made pistol.

After considering the opinion of the Ballastic Expert and hearing the learned Counsel for the parties, we hold that the assertion of the complainant Sunderlal that the shot was fired from a distance of four to five paces by Appellants Krishna Murari and Ram Krishna with their guns is in direct conflict with the nature of the injuries sustained by the deceased Balak Ram in this case. We further hold that the injuries sustained by the deceased are the result of one shot fired by the country made pistol and not by gun. Therefore, the oral testimony of these witnesses who are highly partisan and not of high order is not worthy of reliance in view of the opinion of the Ballastic Expert examined in this case.

It may further be noted that according to the prosecution case, the occurrence had taken place inside the village Abadi at mid day but not a single independent person had come forward to support the prosecution case. PW 1 Sunderlal is the real brother of the deceased while PW 2 Ram Naresh is the son of the deceased who are highly inimical to the Appellants in view of the litigation in the past. The third witness Rajaram is a resident of village Mohanpur who per chance came to village Brahimpur on the day of occurrence. He had no particular business to be there on that day. He is also very closely related to the deceased being the elder brother of the son-in-law of the deceased Balak Ram PW 4. Rajaram is not only partisan but he is also a chance witness being a resident of village Mohanpur which lies at a distance of about eight miles from village Brahimpur where the occurrence had taken place. His presence at the place of occurrence is therefore, highly doubtful and as such no reliance can be placed on his testimony. It was also contended by the learned Counsel for the Appellant that PW 1 Sunderlal has stated that the wound of his brother Balak Ram was not bandaged at all after the occurrence but from the inquest report Ex. ka 4 it is clear that the Sub-Inspector while examining the dead body of the deceased found one towel fastened on the wound of the deceased. Therefore, it was rightly contended by the learned Counsel for the Appellants that immediately after receiving the injuries when the said towel was tied round the wounds of the deceased, the presence of PW 1 Sunderlal at the place of occurrence appears to be doubtful It was further contended that the Ist Investigating Officer Vishwanath Singh who had carried out most of the investigation, has not been produced in this case. The prosecution has examined PW 5 Trilok Chand Sharma. PW 5 Trilok Chand Sharma had taken over the investigation on 25-9-1976 from S.I. Vishwanath Singh and after completing the investigation, he bad submitted charge-sheet against the accused persons. He has simply proved the writings of S.I. Vishwanath Singh, Ist Investigating Officer which S.I. Vishwanath Singh had taken down during investigation. Vishwanath Singh according to him had recorded the statements of the witnesses and also had conducted the inquest on the dead body of the deceased. Vishwanath Singh S.I had also prepared the site plan. It has been rightly contended by the learned Counsel for the Appellants that non-production of 1st Investigating Officer Vishwanath Singh has very seriously prejudiced the accused persons in their defence. The prosecution has not given any explanation about the non-production of Vishwanath Singh S.I. Ist Investigating Officer. In order to ensure proper and fair investigation, the prosecution must examine the Investigating Officer duting trial. The non-production of the investigating Officer causes great prejudice to the accused as they are handicapped in proving the contradictions and omissions in the statements of witnesses recorded by the Investigating Officer u/s 161 Code of Criminal Procedure. Where the prosecution has failed to give proper explanation for non-production the Investigating Officer in the trial, the accused are seriously prejudiced in their defence which may even cause failure of justice in the case.

We have also fully considered the opinion of the Ballastic Expert examined by us in this case and placing reliance on the testimony of the Ballastic Expert we hold that if a standard gun is fired from a distance of 4 to 6 paces on the object, the dispersal of pellets to the extent of 15 cm x 13 cm in area is not probable, and also there would be no dispersal of pelletes possible from a standard gun if the weapon is fired from a distance of one foot, the pellets then will enter the object en masse. Moreover, we further hold on the basis of the opinion of the ballastic expert that from a distance of 4 to 6 paces, it is not possible to have so much dispersal, blackening and singeing in this case even if a hind-filled cartridge is in the standard gun. Consequently if there is dispersal of pellets in an area of 15cm x 13cm with blackening and singeing around the wound, it is probable that a country made pistol would have caused such a wound fired from a distance of 4 to 6 paces on the object.

Having considered all the facts and circumstances as stated above, we come to the conclusion that the prosecution has failed to prove its case against the Appellants beyond all shadow of doubt.

In the result, the appeal is allowed and the conviction and sentences recorded by the Trial Court against the Appellants are set aside. The Appellants are on bail. They need not surrender. Their bail bonds are discharged.

Appeal allowed.