Soney Lal vs State

R.D. Shukla, J.—This criminal appeal has been filed against the judgment and order dated 26.9.1980, passed by Sessions Judge, Sitapur, in Sessions Trial No. 7 of 1980, convicting the Appellant u/s 302, I.P.C. and sentencing him to imprisonment for life.

Factual background of this appeal relates to sole accused Appellant who allegedly nursed grudge against deceased Raghunath because wife of the Appellant was abducted by him. The occurrence thus took place while Raghunath deceased was returning from Biswan in district Sitapur on a cycle with a bag of paddy on 21.10.1976, and reached at about 11 a.m. towards south of a place where two heaps of payal were stored. Accused Appellant Soney Lal along with one unknown person, whose identity could not be traced till this date, came out from the backside of the heaps of payal. He asked the deceased for bidi smoking with him and it was at that time when accused Soney Lal''s unknown companion shouted to kill the deceased. Thereupon accused Soney Lal fired from country-made pistol at Raghunath who cried whereupon witnesses Hardwari Lal, Jai Karan Singh and Gulam came to the scene of the crime. The accused in the meantime had run away. Hardwari Lal reached the place of occurrence and found Raghunath dead lying there. Thereafter F.I.R. was lodged at police station at 3.30 p.m. on the same day. Investigation followed and the accused was charge-sheeted. The trial court recorded evidence of the witnesses examined in the case and concluded at page 16 of the judgment under appeal that the prosecution produced two witnesses, Jai Karan Singh (P.W. 2) and Gulam (P.W. 3) who actually saw the accused causing fatal injury to the deceased. They were solely reliable witnesses of the occurrence. Hardwari Lal (P.W. 1) was informant and father of the deceased. He also saw the occurrence. The trial court further found that the occurrence had taken place at about 104 steps from the place where he was working. The trial court further held that he was an old man and he could not see and recognise persons even in day-time beyond six to seven steps but he could very well recognise the accused Appellant as well as victim, his son by their voice on hearing their conversation. He, therefore, rushed to the scene of crime and found his son lying dead. The trial court thus believing the evidence on the record convicted the Appellant and sentenced him to life imprisonment, resulting in the present appeal.

The appeal has been pressed on the ground that the trial court failed to appreciate the evidence on the record, resulting in the incorrect conclusion regarding the guilt of the Appellant.

We have heard the parties counsel and perused the record.

The trial court relied on the ocular evidence of P.W. 1, Hardwari, P.W. 2, Jai Karan Singh and P.W. 3, Gulam. It is now to be seen as to how far the trial court has been able to appreciate the evidence properly.

The F.I.R. in this case was lodged on the same day at 3.30 p.m. when the occurrence had allegedly taken place at about 11 a.m. on 21.10.1976. The F.I.R. demonstrated that the deceased died due to single fire-arm injury which he received in his head. The post-mortem report (Ext. Ka-2) detailed the direction of the injury and P.W. 4, Dr. Om Prakash, while proving the post-mortem report, prepared by him, stated in the cross-examination that the accused and the deceased in case were in front of each other at the time of assault then the injury in question could not be caused. The trial Judge held, at page 16 of his judgment, that seat of the injury is in front of the lateral end of left eye-brow and the outer angle of left eye. According to the trial court, it was not in the evidence that the assailant and the victim both were just in front of each other and the victim remained static throughout till he received injury so as to rule out the possibility of the injury having been caused on the lateral end of left eye-brow. It was for the eye-witnesses to detail as to how the injury in question was caused and that having not been done in the evidence, as concluded by the trial court, clearly showed that the assailant and the victim were not in front of each other when the fatal bullet was fired. It means that the firearm injury was caused when the back of the head of the deceased was towards the assailant which suggest that the deceased was running away from the assailant. It is not in the evidence of the prosecution witnesses that such was the case when fatal bullet was fired. Therefore, the trial court led itself into the realm of imagination while settling inconsistency in the prosecution case with reference to the medical evidence and ocular evidence on the record. Further P.W. 4, Dr. Om Prakash stated that the post-mortem examination was conducted by him on 22.10.1976, at 3 p.m. and the time of death of the deceased at the time of the post-mortem examination was 1-1/4 days. He further stated in the cross-examination that there should be a difference of about four hours in the said duration of death which means that the deceased had died atleast 34 hours earlier to the post-mortem examination. The time if counted from 22.10.1976, at 3 p.m. then it means that the deceased had died in the early hours of 21.10.1976. Obviously this time does not conform to the prosecution evidence adduced in this case. The medical evidence on the record, therefore, has not supported the prosecution case regarding the time of death of the deceased. The Investigating Officer prepared blood-stained and simple earth samples. He prepared recovery memo Ext. Ka-8. It does not bear the signatures of the witnesses. The Investigating Officer in his evidence as P.W. 6, Brij Raj Singh specifically admitted that he forgot to get the signatures of the public witnesses on this recovery memo which could mean that the blood was not recovered from the place noted in this recovery memo because medical evidence, as discussed above, indicated inconsistency in the prosecution evidence regarding the time of death.

P.W. 1, Hardwari is an eye-witness of this case. He is father of the deceased. The trial court at page 16 of its judgment held that he was at about 104 steps from the place of occurrence and he could not see beyond six to seven steps due to weak eye-sight. That being the position the witness was in no position to see the accused committing the crime in question. This fact is further corroborated by the fact that the informant in this case Hardwari Lal (P.W. 1) detailed facts in F.I.R. (Ext. Ka-1) which he later on did not corroborate. The F.I.R. detailed that Raghunath had abducted wife of accused Appellant Soney Lal and was taking her from one place to other. Evidence of P.W. 1, Hardwari Lal in cross-examination shows that the woman was abducted by Raghunath and one Ram Lal. However, Raghunath deceased brought woman in the house of Hardwari Lal about ten days earlier to the occurrence. Hardwari Lal told him that he would not allow the woman to live in the house but Soney Lal accused informed him that he has no objection in case the woman was kept by Raghunath. Thereafter Raghunath was allowed to live in the house with the woman. Soney Lal never lodged any report for abduction of his wife by the deceased. The story about bidi smoking has not been detailed in the F.I.R. In para 11 of the cross-examination of P.W. 1, Hardwari he admitted that this fact was omitted in the F.I.R. because it was lodged by his son-in-law Ram Prasad. It is further revealing in para 12 of his cross-examination that the F.I.R. was not lodged at the police station when this witness along with his son-in-law went to that place. The report was noted at the place of occurrence. These facts suggest that even investigation in this case had not been fair.

P.W. 2, Jai Karan Singh revealed in his cross-examination that he never met the Investigating Officer and he gave his statement relating to the occurrence for the first time in the Court. It means that the witness was available during investigation and had been procured in the trial for the first time. His statement was noted by the Investigating Officer u/s 161, Cr. P.C. without knowledge of this witness. This witness P.W. 2, Jai Karan Singh in para 4 of his cross-examination stated specifically that deceased Raghunath and Soney Lal were in front of each other when they were talking and in that position Soney Lal fired at the deceased which means the gunshot was fired in front of the deceased which position has been denied by the medical evidence on the record, discussed above. Therefore, the medical evidence and the statement of this witness Jai Karan Singh run contrary to each other and it only means that this witness was not present at the time of the occurrence and that is why his statement was not recorded by the Investigating Officer as stated by this witness.

P.W. 3, Gulam was not named in the F.I.R. He stated that the accused threatened the deceased that his wife had been abducted by the deceased and, therefore, he would be killed. This statement is neither supported by the F.I.R. nor by the statements of witnesses P.W. 1, Hardwari and P.W. 2, Jai Karan Singh. He stated in para 4 of his cross-examination that he did not know either Jai Karan Singh (P.W. 2) or Hardwari (P.W. 1) but P.W. 1, Hardwari at page 8 of his cross-examination stated that he knew witness Gulam from before. Thus, on every material circumstance witnesses differed with each other. Their statements run in contradiction to the medical evidence on the record. Such evidence, therefore, is not reliable. The learned Sessions Judge erred in believing this contradictory, inconsistent and unreliable evidence.

Result of the discussion, therefore, is that we find that the prosecution failed to prove its case with convincing, cogent and consistent evidence. Result therefore, is that the appeal succeeds and is allowed. The conviction and sentence awarded by the impugned judgment are set aside. The Appellant is acquitted of the charge u/s 302, I.P.C. The Appellant, being on bail, need not surrender. His bail bonds are cancelled and sureties are discharged.