Shiv Pratap and Others vs State of U.P.

D.K. Trivedi, J.—Both these criminal appeals one by Shiv Pratap and four others (being Crl. Appeal No. 269 of 1979) and the other by Gaya Bux and Jhurri (being Crl. Appeal No. 270 of 1979) are directed against the same judgment and order dated 7.4.1979, by which the learned III Additional Sessions Judge, Barabanki, convicted all of them u/s 302/149, I.P.C. and sentenced them to life imprisonment and by which he further convicted Shiv Kanth u/s 147, I.P.C. and sentenced him to one year''s R.I. thereunder and the rest u/s 148, I.P.C. and sentenced them to two years'' R.I. thereunder.

The prosecution came with a case that on 7.10.1977, at about 6.30 a.m. the deceased Ram Singh son of the complainant Ranchhor Singh (P.W. 3) was going to see his paddy field and when he reached towards west of his grove, all these Appellants and one Matadeen (who died before the conclusion of trial) emerged out of that grove, armed with gun, ballam, kantas, lathis and hand-grenades and moved menacingly towards the deceased, who ran to his safety towards the village abadi but the assailants successfully chased him. It is alleged that they surrounded Ram Singh towards west of the field of Matadeen Misra and killed him by causing injuries with their respective weapons. It is said that Appellants Shiv Pratap, Gaya Bux and Jhurri were armed with kanta, Shiv Kanth and Matadeen with lathis and Appellant Mohan was armed with a ballam, Sheo Naik with a gun and Chhotey Lal with hand-grenades. The incident was allegedly witnessed amongst others by complainant Bhagauti and Mata Pher, P.W. 3, P.W. 2 and P.W. 1 respectively. It is claimed by the prosecution that Ranchhor Singh (P.W. 3) lodged the written first information report with P.S. Subeha on the same day at 6.15 a.m. after covering the distance of about 14-1/2 kms.

The Sub-Inspector, Ram Shankar Agnihotri (P.W. 4) present at the police station, was asked to investigate the matter and rushed to the spot the same day. After preparing the inquest report and other relevant papers, he sent the dead body through constable Jag Narain Mishra for post-mortem examination. It is said that on the same day the Investigating Officer recorded the statements of the complainant, prepared site-plan (Ext. Ka-5), took bloodstained and simple earth from the place of the occurrence and also pieces of hand-grenades. The statement of Matapher, Bhagauti and others u/s 161, Cr. P.C. were allegedly recorded by him on 8.10.1977. The remaining part of the investigation was completed by S.I. Gorakhnath, P.W. 7, Dr. A. K. Srivastava, on 8.10.1977 at 3 p.m. conducted post-mortem who found the following ante-mortem injuries on the dead body of deceased Ram Singh:

(1) Multiple incised wounds in an area of 16 cm. ? 10 cm. over the upper part of the scalp cutting each other varying in size 4 cm. to 7 cm. ? 1 cm. to 1.5 cm. ? bone deep.

(2) Lacerated wound measuring 3 cm. ? 1 cm. ? muscle deep on the right side of the scalp, 8 cms. above the right ear.

(3) Lacerated wound measuring 5 cm. ? 2 cm. ? bone deep over the back of the scalp 2 cm. above the occipital protuberance.

(4) Incised wound measuring 8 cm. ? 2 cm. ? bone deep on the right side of face, 2 cm. away from right ala of nose (upper lip bone was cut).

(5) Incised wound over the left side of face below the left eye measuring 2.5 cm. ? 5 cm. ? muscle deep.

(6) Incised wound measuring 11 cm. ? 1 cm. ? bone deep on left side of the face by the side of left ala of nose, cutting the underlying bone.

(7) Incised wound measuring 10 cm. ? 2 cm. ? bone deep on the left side of the face, 2 cm. away from the left angle of mouth. The left lower lip and the jaw bone were found cut.

(8) Incised wound measuring 5 cm. ? 7.5 cm. ? bone deep on the left side of the face, 1 cm. below injury No. 7.

(9) Incised wound measuring 24 cm. ? 3 cm. ? bone deep over the front part of the neck, 1 cm. above the manubrim sterni. The oesophagus and the major vessels on both the sides of the neck were completely cut.

(10) Two incised wounds the size of which was 4 cm. ? 2 cm. ? muscle deep and 3.5 cm. ? 2 cm. ? muscle deep over the front part of the right shoulder.

(11) Multiple contusions in area of 18 cm. ? 12 cm. varying in size from 6 cm. to 9 cm. ? 1.5 cm. to 2 cm. over front middle part of chest.

(12) Contusion measuring 6 cm. ? 2 cm. on the anterior aspect of the right thigh.

(13) Lacerated wound measuring 1 cm. ? 1.5 cm. ? bone deep on the front of left leg, 9 cm. above the ankle.

The internal examination revealed that the bone under injury No. 1 had been cut. The membranes of the brain were found congested and the brain was also found congested. The stomach and the small intestines were empty and the large intestines were found full of faecal matter. According to the doctor, Ram Singh (deceased) died as a result of shock and haemorrhage due to the injuries received by him which were sufficient in the ordinary course of nature to cause death.

The post-mortem examination report is Ext. Ka-10.

The prosecution in support of its case, examined as many as nine witnesses. Out of them, P.W. 1, Mata Pher, P.W. 2, Bhagauti and P.W. 3, Ranchhor Singh are the witnesses of fact. P.W. 4, Ram Shankar Agnihotri, S.I. conducted the initial investigation of this case. P.W. 5, Raja Ram is a witness of inquest report. P.W. 6, constable Jag Narain Mishra brought the dead body of deceased Ram Singh to mortuary for post-mortem examination. P.W. 7, Dr. A. K. Srivastava, conducted the autopsy on the dead body of the deceased and proved the post-mortem report Ext. Ka-10, P.W. 8, S.O. Gorakh Nath after taking over the investigation from S.I. Ram Shankar Agnihotri completed the remaining investigation and submitted the charge-sheet against the accused persons, and P.W. 9, Vibhuti Yadav, Head Moharrir registered the case and proved the chik-report etc.

On the other hand, the accused persons 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 the record came to the conclusion that the prosecution has successfully proved the guilt of the accused-Appellants, beyond reasonable doubt and therefore, he convicted and sentenced the accused-Appellants as mentioned above.

The accused-Appellants aggrieved by the judgment and order passed by the learned trial Judge, preferred the instant criminal appeals before this Court.

We have heard the learned Counsel for the accused-Appellants as well as the learned Additional Government advocate and have also perused the record carefully.

The main contention of the Appellants counsel is that the learned court below has committed an error in holding that the prosecution has successfully proved the guilt of the accused persons beyond reasonable doubt. According to him, the evidence of these three eye-witnesses is not worth to be reliable and it appears that they were not present at the time of the incident. The learned Counsel for the Appellants further contended that from the record, it appears that the incident took place in the dark hours of night and nobody had witnessed the incident and afterwards, the case was concocted and the Appellants were falsely implicated in this case due to enmity. He also pointed out that the F.I.R. is not a genuine report and the same is ante-timed.

On the other hand the learned Additional Government advocate contended that the statements of the three eye-witnesses are worth to be reliable and their testimony cannot be discarded on minor infirmities and contradictions.

The learned Counsel for the Appellant Sri J. N. Chaudhary pointed out that the complainant lodged report and in the report, it is alleged that the deceased was chased by the accused persons and the accused persons surrounded him in the field of Badri, armed with their respective weapons namely; kanta, ballam, lathi, hand-grenade. As pointed out above, it has also been alleged that accused Shiv Pratap, Gaya Bux and Jhurri were armed with kantas. Accused Mata Deen who died during the trial and Shiv Kanth were armed with lathis. Accused Mohan was armed with Ballam. Accused Shiv Naik was armed with gun and Chhotey was armed with hand-grenade. According to the contents of the F.I.R., the deceased (Ram Singh) was assaulted by all these weapons. However, P.W. 7, Dr. A. K. Srivastava who conducted autopsy on the dead body did not find any typical and punctured wound caused by ballam and gun.

The prosecution finding it difficult to explain the injuries found by the doctor, tried to change the prosecution case and now the witnesses stated before the Court that they heard some sound of ''Dham'' and then an alarm was raised by Ram Singh, deceased, meaning thereby that they heard some sound of gun firing and hand-grenade and then the alarm raised by Ram Singh (deceased). It is also admitted by the witnesses that the gun was fired in the air and the hand-grenade was thrown on the ground. They also admit that the ballam was not used in a piercing manner. The question is as to whether the testimony of these eye-witnesses is worth to be reliable or not keeping in mind the conflict with the medical evidence and the improvements made by the prosecution witnesses. As pointed out above, if all the accused persons had assaulted the deceased then there is no injury of gun, hand-grenade and ballam and in these circumstances, the participation of the three of the accused-Appellants namely, Mohan, Shiv Naik and Chhotey becomes doubtful.

P.W. 3, Ranchhor Singh who lodged the report clearly stated in the F.I.R. that all these weapons were used in the incident. Before the learned Sessions Judge, in his examination-in-chief, he reiterated his stand and stated that all the Appellants assaulted Ram Singh (deceased). He further stated that Ram Singh then fell down and after he fell down, he was assaulted by Gaya Bux, Jhurri and Shiv Pratap by kanta, Mohan by ballam, Shiv Kanth and Mata Deen by lathis and Shiv Naik by gun. As pointed out above, the statement of this witness on this point does not find support from the medical evidence and therefore, the same cannot be believed. If the deceased was assaulted by gun, then the doctor must have found the gun shot injuries on the body of the deceased. It is also not disputed that there was no injury of hand-grenade on the dead body of the deceased but before the trial Judge, P.W. 3 Ranchhor Singh stated that the hand-grenade was thrown when the accused persons were running away. This fact has been introduced by P.W. 3 Ranchhor Singh for the first time in Court. It is not disputed that the fact of throwing of the handgrenade has not been mentioned by the prosecution. He further admitted that when the deceased (Ram Singh) was running away, he was being chased by the accused persons. It is also said that the accused persons had assaulted the deceased when he was running away. He denied the fact that the deceased was surrounded by the accused persons and then he was assaulted by them, whereas in the F.I.R., he specifically stated that the deceased (Ram Singh) was surrounded by the accused persons and then he was assaulted by the accused persons.

He further admits that deceased Ram Singh was not assaulted by the accused persons who were armed with gun and hand-grenade. This also creates doubt about the manner of the assault as alleged by this witness. He further denied in cross-examination that the gun was not fired in air but the same was fired at the deceased. This fact neither finds place in the F.I.R. nor in the examination-in-chief. The witnesses before the Court stated that when deceased Ram Singh fell down facing upward and then he was assaulted by the accused persons. This fact was introduced because the doctor who conducted the autopsy, found the injuries on the front side of the body of the deceased. This witness, the complainant who lodged the report at the police station, stated that the incident took place at about 6.30 a.m. and thereafter the family members of the house of the deceased reached there and then they put a ''chadar'' on the dead body. He further stated that he thereafter, left the place and reached his house and there he got the report prepared by one Satya Narain. He also stated that he took out the paper from the desk of the deceased and got the report prepared. It is not disputed that in cross-examination, he also admits that Satya Narain is the resident of another village which lies at a distance of three miles. There is nothing on the record to show as to how Satya Narain, who is resident of three miles from the place of the incident reached the place of the incident at about 6.30 a.m. in the morning and was present at the house of the complainant Ranchhor Singh. He further stated that thereafter, he left for police station and lodged the report the same day at about 8.50 a.m. Apart from this, if the incident took place at about 6.30 a.m. and thereafter, the family members of the deceased were called and when they reached the place of the incident, then the complainant left the place and reached the house and thereafter prepared a report and proceeded to the police station for lodging of the F.I.R. and the report was lodged at 8.15 a.m. If, the above-mentioned statement is correct, then the report could not have been lodged at about 8.15 especially when the distance from the place of the incident to the police station is about 14-1/2 kms. The other glaring infirmity which shows that the F.I.R. was lodged later on is that the post-mortem report shows that the autopsy on the dead body of the deceased was conducted by the doctor because the circle officer sent the dead body to him for autopsy. In the post-mortem report instead of mentioning the crime number or sections, the doctor has mentioned that the Circle Officer sent the dead body for autopsy but it appears that the copy of F.I.R. was not sent to him along with the dead body. Again the challan lash and the naksha lash show that in these papers the crime number and Section 302, I.P.C. appear to have been written initially. All the above-mentioned papers show that later on the other sections namely; 147 and 148, I.P.C. have been added in these papers. The contention of the learned Counsel for the Appellants is that in fact the crime number and Section 302, I.P.C. were mentioned because upto that time the F.I.R. was not ready and no one has thought as to how much persons will be implicated in this case. In these circumstances, when the matter was settled and the names of the persons were decided then Sections 147, 148 as well as 149, I.P.C. were added in these papers later on. It is admitted that the copies of the F.I.R. etc. were made available to the office of the Circle Officer on 10.10.1977. It is also admitted by the Investigating Officer that the statement of Mata Prasad as well as other witnesses were recorded by him (the Investigating Officer) on the next day. It is also surprising that the Investigating Officer did not record the statement of the complainant after registration of the case. The explanation given by the Investigating Officer that he did not record the statement of the complainant because he had to reach the place of the incident immediately, in our opinion, is not acceptable. The learned Counsel for the Appellants contended that in fact, the incident took place in the dark hours of the night and nobody had witnessed the incident and therefore, in the morning the case was concocted and the Appellants were implicated in this case. In support of its contention, the learned Counsel for the Appellants pointed out that the post-mortem report shows that the large intestines contained with faecal matter and this shows that the deceased had not eased upto the time of the incident. The doctor who conducted autopsy also stated that the deceased did not ease upto the time of the incident and on this basis the learned Counsel for the Appellants contended that it appears that the deceased was killed in the dark hours of night either at the time when he was watching his field or at the time when he had gone there to ease.

We find force in this contention.

Apart from this, the doctor stated that the deceased did not ease before the incident, we have also found the infirmities and improvements made by the witnesses in their statements which show that the incident did not take place as alleged by them and in these circumstances, the possibility of the fact that the deceased was killed in the dark hours of the night cannot be ruled out. In the F.I.R. as pointed out above, each and every weapon has been assigned to the accused persons. At the time of the inquest report also they were not sure about the weapon, therefore, no weapon was mentioned. After the post-mortem examination, the witnesses started saying before the Sessions Court that the Appellants who were armed with lathis and kanta only assaulted the deceased and the other persons who were armed with handgrenade and gun, had used their weapon in air or otherwise. It is not disputed that the complainant had a grudge against the accused persons and therefore, he had motive to falsely implicate the accused persons. No doubt, the enmity is a double edged weapon but here in this case the possibility of the fact the accused persons were falsely implicated in this case cannot be ruled out specially when the testimony of the eye-witnesses is not above-board. The eye-witnesses in order to remove the conflict with the medical evidence made an improvement in the prosecution case and therefore, the testimony of the eye-witnesses cannot be said to be reliable testimony.

Accordingly, both the aforesaid criminal appeals are hereby allowed. The judgment and order passed by the learned trial Judge are hereby set aside. All the accused-Appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties shall stand discharged.