State of U.P. vs Pappu alias Pratap

R.C. Deepak, J.—The State of U.P. after grant of leave has filed the present Government appeal against the judgment and order dated 14.5.1991, passed by Sri I. P. Mittal, Sessions Judge, Mirzapur in Sessions Trial No. 182 of 1980 wherein he acquitted the accused-Respondent Pappu alias Pratap Narayan for an offence punishable u/s 302, I.P.C. pertaining to Police Station Kotwali, district Mirzapur.

The brief facts of the case are that Pyare Lal/the deceased was a labourer. He used to sell cold drinks etc. Similarly, accused-Respondent Pappu alias Pratap Narayan was also engaged in cycle stand at the nearby cinema hall and he also used to sell the cinema tickets in black. It is alleged that the accused had taken cold drinks on credit from the deceased and certain money was outstanding against him. The deceased alleged to have made repeated demand for the money, but instead of paying the same, the accused alleged to have threatened him to kill. It is further alleged that as usual in the night of 6.7.1980 the deceased alongwith his brother Ram Dulare was sleeping in a lane behind the house of one Khatri, that Mangara Devi was sleeping in front of the house of Ramji Khatri. Kedar Nath was also sleeping in a lane nearby. The electric light was there. At about 11 in the night the accused Pappu alias Pratap Narayan son of Seva Lal resident of Makri khoh, Police Station Katra, district Mirzapur came there with weapon and made assault on the stomach of Pyare Lal, that the sound of fire awakened the people sleeping thereby. They saw that the accused made assault upon Pyare Lal and was running away from there. They made an attempt to apprehend him, but he succeeded to run away. After receiving the gunshot wound, the condition of the victim became serious and he was managed to send to hospital where Dr. A. K. Srivastava (P.W. 4) medically examined him and he noted the following injuries on his person and prepared the injury report (Ext. Ka-3):

Injuries.-Firearm wound of entry in abdomen 6 cm. above umblicus in mid line, 3 cm. x 2 cm. x peritoneal cavity deep. Margins lacerated inverted. There is blackening, tattooing and scorching around the wound.

With these allegations the informant, i.e., Ram Dulare, the brother of the victim got an application prepared by one Kedar Nath and submitted the same at the Police Station Kotwali and on the basis of which a Case Crime No. 299 of 1980 u/s 307, I.P.C. (Ext. Ka-9) was registered against the accused. The injured died on 7.7.1980 at 5.20 p.m. and the case was converted u/s 302, I.P.C. After the preparation of the inquest, the dead body was sent for post-mortem. Dr. N. C. Verma (P.W. 9) conducted the post-mortem examination and he noted the following injuries on his person (Ext. Ka-12):

Stitched wound 13 cm. in length, 2 cm. Above the umblicus of the body. Blackening and tattooing around the wound. The internal examination disclosed 6 cm. long stitched wound on the anterior wall of stomach. There was another stitched wound on the right lobe of the liver. 49 small pellets were recovered from the abdominal cavity. The cause of death was shock and haemorrhage, as a result of the injuries.

The investigation into the case was taken by Sri R. C. Pandey, the Sub-Inspector. He took down the statements of Ram Dulare, Kedar Nath, Prem Chandra and Shanker and visited the place of occurrence and prepared the site plan Ext. Ka-4 and effected the arrest of the accused Pappu alias Pratap Narayan and also recovered a country made pistol from his possession. Thereafter, the investigation into the case was handed over to Inspector P. N. Singh (P.W. 10). He recorded the statements of the accused and Smt. Mangra Devi and submitted the charge-sheet (Ext. Ka-13).

The case was committed to the Court of Sessions for trial. The charge u/s 302, I.P.C. was framed against the accused, who pleaded not guilty and claimed to be tried. To prove its case, the prosecution examined as many as 10 witnesses. Kedar Nath (P.W. 1), Ram Dulare (P.W. 2), Mungara Devi (P.W. 3) and Prem Chandra (P.W. 5) are the witnesses of fact and the remaining are the formal ones. The accused did examine no witness.

We have heard Mrs. N. A. Moonis, learned A.G.A. for the State and Sri Prashant Kumar Singh, learned amicus curiae for the accused-Respondent and perused the record.

The contention of learned State counsel is that the evidence on record and the prevailing circumstances would go to establish that the accused-Respondent has committed the murder of the deceased, but the trial court failed to appreciate the cognizable evidence while passing the order of acquittal and she prayed that the order of acquittal be set aside and the accused be convicted for an offence punishable u/s 302, I.P.C.

On the other hand, learned amicus curiae for the accused-Respondent has vehemently argued that the occurrence took place in the dead of night. The deceased suffered a solitary firearm injury and the sound of fire would have attracted the attention of the witnesses named in the first information report and the deceased was found lying in an injured condition and the assailants could have succeeded in running away from the place of occurrence and nobody could see the actual assault made upon the deceased. The accused-Respondent has falsely been implicated in the case due to suspicion.

To analyse the evidence on record, it is also essential to deal with the motive with the accused-Respondent, to have made murderous assault upon the deceased. The motive, as alleged by the prosecution, is that some dues of the deceased was with the accused-Respondent, as he alleged to have taken cold drink etc. from the deceased and the deceased had made repeated demands for the same, but instead of paying the money, he alleged to have threatened to kill him. The evidence on record indicates that prior to 3-4 days of occurrence, some dispute took place between the two in regard to the same, but no complaint in this regard was made either to the police or anyone else, therefore, the motive appears to be of a very weak nature as in the normal life such disputes are common to occur, but whatever strong motive may be, this alone cannot be treated as evidence for an offence.

It is alleged that the street light was illuminating. In his statement in examination-in-chief, the P.W. 1 has stated that there was an electric rod fixed in bracket in the house which adjoins the house of Mungara Devi, but in his cross-examination he contradicted his earlier statement by saying that the light was emitting in the house of Mungara Devi. He further states that besides the electric rod, two other bulbs were also illuminating at the time of occurrence in the Gali. No other witness has stated about two other bulbs. Prem Chandra, the resident of the same locality, has given the different statement by saying that the electric rod was fixed. The Investigating Officer did not inquire about the details in this regard. Prem Chandra states that there was a bulb, which was not illuminating for about two months before the occurrence. The rod was fixed 10 or 12 days earlier. According to Sri P. N. Singh, the Investigating Officer, he took up the investigation into the case just after the occurrence. He went to the place of occurrence. The electric rod was illuminating. He went there with four constables, remained there for 15-20 minutes. He contacted the people of the locality, but his statement does not appear to be correct, as there is no entry in the G.D. that he visited the place of occurrence and saw the electric rod illuminating. On the basis of the contradictory statements of the prosecution witnesses on the point of the existence of light at the time and place of occurrence, the learned Counsel for the accused-Respondent submitted that there was no electric light to identify the assailants. We also doubt the presence of electric light there at the time and place of occurrence.

The occurrence is alleged to have taken place at 11 p.m. and the victim was medically examined at 11.15 p.m. It indicates that the occurrence would have taken place around 11 p.m. The first information report is said to have been lodged at 12.30 a.m. The distance of the police station being four pharlangs. Kedar Nath is the scribe of the first information report. He is said to have prepared the report on the dictation of Ram Dulare. According to the statement of Kedar Nath he went to his village at about 12 p.m. He took 15 or 20 minutes to return with paper. He reached the hospital at about 12.15 or 12.20 a.m. He wrote the report. Some time must have taken place in the preparation of the report. The police station is situated at some distance from the hospital. He must have consumed some time to reach the police station and, therefore, there is doubt that the registration of the first information report was made at 12.30 a.m.

The crucial question, which crops up for consideration, is the presence of the prosecution witnesses at the time of occurrence. P.W. 1 Kedar Nath, P.W. 2 Ram Dulare and P.W. 3 Mangara Devi are said to have witnessed the actual assault made upon the deceased whereas Prem Chandra is said to have reached the place of occurrence when the occurrence was over, as he found the victim in an injured condition.

Now to examine the statements of the aforesaid witnesses. Kedar Nath is not the resident of the locality/ mohalla Bundelkhandi where the murderous assault was made upon the victim/deceased, but he is the resident of Gaffoor Khan gali in mohalla Welleslyganj, which is two pharlangs away from his mohalla. He stated that two minutes take place to reach his house from the place of occurrence. On the one hand he states that on the date of occurrence, he had gone to Vindhyachal for the negotiation of the marriage of the sister-in-law of Pyare Lal/the deceased, but on the other hand he contradicts his own statement by saying that he had gone to Vindhyachal for his own work. The house of the deceased/mohalla Bundelkhandi does not fall on the way to Vindhyachal or the house of this witness. Not only this, he further states that it had become late so he went to the house of the deceased to sleep. Similarly, he states that he had gone there to inform in regard to the negotiation of the said marriage. These contradictory statements in regard to the presence of this witness at the time and place of occurrence does not inspite confidence, specially when two minutes would have consumed to reach his house. Therefore, his presence at the time and place of occurrence is highly doubtful.

P.W. 2 Ram Dulare is the real brother of the deceased. They used to return home by 9 or 9.30 p.m. Both carry their business in front of Dwarika Palace. He stated that at about 10 p.m. Pyare Lal and Kedar Nath came out of the house. Pyare Lal brought a cot and placed it in the gali and laid down on it to sleep. He and Kedar Nath talked about half an hour. At about 10.30 p.m. he saw a man coming from the gali of Dwarika Palace. The man stood between him and the cot. He was the accused-Respondent. He did say nothing, but he shot Pyare Lal and ran into the gali. His statement would go to show that the deceased was shot at about 10.30 p.m., but the case of prosecution is that he was shot at 11 in the night. It shows that Ram Dulare had not returned till then. P.W. 3 Smt. Mangara Devi states that Ram Dulare and Ors. returned their house after second show of cinema is over. The second show is over at about 9.30 p.m. Smt. Mangara Devi states that Ram Dulare used to return after the interval of second show of cinema. According to Ram Dulare, the interval occurs at about 11 p.m. It means Ram Dulare would have returned at about 11 p.m., so he could not see the occurrence alleged to have taken place at about 11 p.m. Smt. Mangara Devi states that she had gone to the chabootra of Ramji to sleep at about 10.30 p.m. Ram Dulare and Shanker came there after half an hour, i.e., at 11 p.m. Ram Dulare admits that at the time of occurrence, his wife was inside the house. Had this been the position, he must be sleeping inside the house. Smt. Mangara Devi further states that the wife of Pyare Lal had gone to her parents before a month of the occurrence. Pyare Lal was sleeping outside. He says that Shanker, Kedar Nath and he chased the assailants. According to the Investigating Officer, in the gali there are houses of different persons. Had he been chased, he must have been apprehended, as the alarm would have awakened the people of the locality, therefore, there is doubt that Ram Dulare was present at about 11 p.m. when the occurrence is alleged to have taken place.

Smt. Mangara Devi was aged about 75 years. She was an old woman. She was operated for cataract about 6 or 7 years back of the occurrence and she was using glasses. She cannot see without glasses in the night. She had admitted that she removes the glasses when she goes to sleep. She woke up at the challenge of Ram Dulare, but now she changed her statement denying to give such statement (Ext. Kha-10) u/s 161, Cr. P.C. It is also doubtful whether she was sleeping on the chabootara without any rug or bed-sheet, as he had her own house etc. Her presence also becomes doubtful.

There is no specific description of the weapon in the first information report. Subsequently, a katta was shown in the hands of the accused-Respondent with which he is alleged to have fired. These contradictory statements in regard to the light and weapon create doubt in the mode and manner of assault and the presence of the prosecution witnesses. It is also relevant to mention here that a man, who chose about dead of night to commit the offence knowing the people sleeping thereby to whom he is well known, did make no attempt to conceal his identity is a matter of surprise. The trial court appears to have considered all the evidences on record, oral as well as documentary, the fact and circumstances of the case and the prevailing circumstances while passing the order of acquittal.

We have taken into account the arguments of the learned Counsel for the parties, the evidence on record, facts and circumstances of the case and the finding recorded by the trial court and we are also of the view that the order of acquittal does not require any interference. The Government appeal fails and is accordingly dismissed. The accused-Respondent Pappu alias Pratap Narayan is detained in jail in this case. His personal and surety bonds are cancelled. The sureties are discharged. He shall be released forthwith, if he is not required to be detained in jail in any other case. The trial court''s record be sent back.

Sri Prashant Kumar Singh, learned advocate argued this Government appeal on behalf of the accused-Respondent as amicus curiae. He shall be paid Rs. 2,200 as fee.