State of U.P. vs Hari Kishan Das and Others

M.C. Jain, J.—The State has preferred this appeal against the judgment dated 30.7.1981 recorded by Sri R. C. Awasthy, the then Ist Additional Sessions Judge, Saharanpur in S.T. No. 356 of 1979, acquitting the four Respondents of the charges under Sections 147, 148, 452 and 307, I.P.C. read with Section 149, I.P.C.

Out of the four accused-Respondents, Hari Kishan Das Respondent No. 1 died on 3.8.1983 and the appeal was ordered to abate under order dated 26.8.2003, so far as he was concerned. The Court is presently concerned only with remaining three accused-Respondents, namely, Lal Chand alias Lal Das, Chandra Mohan and Gyan Chand alias Gyan Prasad.

The incident took place on 11.8.1977 at about 4.00 p.m. in the Haveli of Mangani Ram, Daksha Road, Kankhal, Police Station Hardwar, District Saharanpur. Lakshman Das P.W. 2 was allegedly the injured of the felony having sustained firearm injuries of the shot attributed to have been fired by Hari Kishan Das (now dead). The F.I.R. was lodged by Bhartendu Handa P.W. 1 on 11.8.1977 at 5.00 p.m. In brief, the case was that a portion of the Haveli aforesaid with its garden which was under allotment with Pushpa Devi mother of the injured was given on the occasion of Kumbh of 1974 on licence to accused Hari Kishan Mahant. Rest of the haveli was partly occupied by Bhartendu Handa and partly by the tenants. Litigation was going on between Hari Kishan Das and the family of Lakshman Das when the incident occurred. On 9.8.1977, the accused allegedly surrounded Bhartendu Handa and threatened to kill him of which report was lodged by him. This was the previous ground. On the fateful day and time, Bhartendu Handa P.W. 1 was present with his parents on the first floor of the Haveli in the occupation of his family and Lakshman Das Handa injured P.W. 2 was in the room adjoining the hall. Hari Kishan Das and Lal Das armed with country made pistols and Chandra Mohan and Gyan Prakash armed with lathis and an unknown person carrying a gun trespassed into the room in which Lakshman Das was lying. Hari Kishan Das gave an exhorting call to kill Lakshman Das. Lakshman Das raised shouts which attracted Bhartendu Handa and others. Hari Kishan Das fired on Lakshman Das from his country-made pistol. The witness Narendra Kumar P.W. 3 and others also reached there. Lakshman Das received the shot in the neighbourhood of his right eye and he fell down on the ground raising shrieks. The accused-persons tried to escape, but Lal Chand was apprehended at the spot with country-made pistol, which he threw towards the garden.

The injured was taken to the hospital and in the evening was shifted from G.D. Hospital to BHEL Hospital and later on to AIIMS Delhi.

The report was lodged by Bhartendu Handa at the Police Station where apprehended accused Lal Chand was also handed over.

The medical examination of Lakshman Das was conducted on 11.8.1977 at 4.10 p.m. by Dr. M. P. Garg P.W. 7. Multiple gun shot wounds of entry over right side of forehead and right eye-brow including lacerated wound on right cheek and above right eye-brow were found. The eyelids of right eye were blackened with congestion and swelling around. There were also multiple abrasions on the right side chest and right shoulder. All the injuries were fresh and caused by some firearm from less than four feet distance and three of them were kept under observation. Rest were simple, as noted in the injury report. Later on, it was found that right eye had perforated injury which could have been caused by a projectile of the country made pistol. The victim was later on examined and operated upon by Dr. L. M. Betharia P.W. 6. The investigation was conducted by S.I. P. S. Verma P.W. 5. Leaving aside the formal evidence, the prosecution relied upon the testimony of Bhartendu Handa P.W. 1, Lakshman Das injured P.W. 2 and Narendra Kumar P.W. 3 as eye-witnesses in support of its case.

The accused, on their part, ascribed their false implication due to party-fractions and enmity.

Sifting the prosecution evidence in the light of attending circumstances and probabilities, the trial Judge held that the prosecution had failed to bring home the charges to the accused-persons and accordingly recorded the impugned judgment of acquittal which has been assailed by the State before us.

We have heard Sri R. S. Maurya learned A.G.A., from the side of the State and Sri P. N. Mishra learned advocate from the side of the Respondents in opposition. Record of the lower court has been summoned before us which we have carefully perused. The submission of learned A.G.A. is that the case of the prosecution stood proved to the hilt by the testimony of three eye-witnesses including the injured himself and had found support from the medical evidence too as also by the factum of the accused-Respondent Lal Chand alias Lal Das having been apprehended at the spot and taken to the police station at the time of the lodging of the F.I.R.

True, Bhartendu Handa P.W. 1 (informant), Lakshman Das (injured) P.W. 2 and Narendra Kumar P.W. 3 attempted to support the prosecution case in their testimony before the Court. However, it is undisputed that there was pre-existing enmity between Hari Kishan Das accused on the one hand and Lakshman Das injured P.W. 2 and all his family members on the other regarding conflicting claims in respect of the Haveli of Mangani Ram in which both of them were in possession over some portions and the rest of which was in possession of the tenants from whom both the parties claimed to be entitled to receive rent. This had led to many civil and criminal litigations between the parties over the past few years preceding the incident. Narendra Kumar P.W. 3 was a tenant in that very Haveli and claimed to be present with his two other friends outside the Haveli at the time of the occurrence. According to him, he had reached inside hearing the cries of Lakshman Das Handa and had seen the accused persons going away from the place of occurrence. Since Narendra Kumar P.W. 3 was also tenant in the Haveli over which both the parties claimed right and of receiving rent from the tenants, he also could not be an independent witness for being sympathetic to one or the other of the claimants of the Haveli. Narendra Kumar P.W. 3 also admitted that two months prior to the occurrence, he had lodged F.I.R. against Mahant Hari Kishan Das''s men and others regarding theft of paddy bags. His animosity against the accused was amply demonstrated by this admission. When he was antagonistic towards Mahant Hari Kishan Das, he must have been sympathetic or friendly to the rival claimant of the Haveli. In this scenario, testimony of the three eye-witnesses examined by the prosecution requires to be scrutinized very carefully in the light of the attending circumstances. There is a popular proverb that the witnesses may lie, but the circumstances will not. In the present case, there was a circumstance which blow to ribbons the prosecution case as presented in the F.I.R. and attempted to be supported by the testimonial assertions of eye-witnesses. The said circumstance was that Lakshman Das injured was treated at Doctor Rajendra Prasad''s Centre for Ophthalmic Sciences, New Delhi. The history of his treatment is Ext. Ka-11 which inter alia contains the statement of the injured made to the Doctor. It has been proved by Dr. L. M. Betharia P.W. 6. There he was recorded to have so stated:

At 4 p.m. on 11.8.1977, in the village Kankhal one of his enemies knocked the door of the house, when it was opened by the affected person, he was fired with a country-made gun of 12 mm. bore........... Firing was made once and distance was about 2-3 feet...

Above history given by the injured himself soon after admission in Dr. Rajendra Prasad''s Centre for Ophthalmic Sciences, New Delhi, completely shatters the credibility of the prosecution case and testimonial assertions of his own self as P.W. 2 together with those of Bhartendu Handa P.W. 1 and Narendra Kumar P.W. 3. Before Doctor, the injured did not name his assailant which was not naturally expected of him as he had even given other unnecessary details. The doctor recording the above history, as per the disclosure made by the patient, was an independent witness and could hardly have any interest in distorting the disclosure made by the injured. The prosecution case disclosed in the F.I.R. and the evidence adduced in the Court presented a completely twisted picture. It was nowhere the case of prosecution in the F.I.R. and the evidence adduced in the Court that the door was closed and it was got opened by the assailants after knocking and then he (injured) was fired upon. Seeing no other way to get out of the situation, the injured Lakshman Das P.W. 2 washed his hands off the above disclosure and stated that he did not make any such statement. According to him, the Doctor could have so recorded on the basis of what might have been stated to him by someone accompanying him.

To come to the point, the disclosure made by the injured before the Doctor in Dr. Rajendra Prasad''s Centre for Ophthalmic Sciences, New Delhi, is completely contradictory to the prosecution case that as many as five persons had entered his room and two including Hari Kishan Das were armed with country-made pistols, Gyan Chand and Chandra Mohan were armed with lathis and one unknown person was armed with gun and that Hari Kishan Das opened fire on him from country-made pistol.

In view of the discussion made hereinabove, the testimonial assertions of the prosecution witnesses could not be believed. They seemingly distorted the reality beyond recognition.

So far as the alleged arrest of Lal Chand alias Lal Das at the spot was concerned, he was said to have thrown away the pistol carried by him in the grove down from the roof. It means that no country-made pistol was recovered from him. The pistol allegedly thrown by him could not be searched out and the prosecution version was that when the witnesses tried to do so, they were prevented by the servants and karkoons of Mahant Hari Kishan Das from entering the grove. Non-recovery of the weapon and also the fact that Lal Chand alias Lal Das did not even attempt to use the same to hurt or scare away his captors threw a cloud of suspicion on this part of the prosecution story that he was arrested soon after the occurrence from very near the spot when he was allegedly in the process of making his escape good.

We further note that though he is said to have been apprehended at the spot and taken to the Police Station, but no injuries were found on his person. It sounds to be improbable. Had he been apprehended at the spot soon after the incident in which the victim sustained firearm injury at the hands of one of the assailants, as a natural reaction he would have been given a good thrashing by the persons around, particularly by those who had apprehended him. It is there on record that he was the servant of Mahant Hari Kishan Das and used to live with him in the same Haveli. Great possibility was there that he was simply made scapegoat, believing Mahant Hari Kishan Das to be behind the incident. Being readily available, he was laid hands on by Bhartendu Handa P.W. 1 and his sympathizers alleged to be involved in the incident as distortedly projected in the F.I.R. and was taken to the police station to give a boosting to the prosecution case.

On overall evaluation of the evidence and attending circumstances, we find ourselves in agreement with the learned trial Judge. In all probability, the injured was fired at by unknown person in a hit and run manner and the prosecution case against the accused persons was cooked up only to make capital by implicating Mahant Hari Kishan Das and others due to long standing enmity so that they could be pressurized to vacate the Haveli or to otherwise agree for a compromise.

We, accordingly, find the appeal to be devoid of merits, and would dismiss it.

The appeal is hereby dismissed.