State of U.P. vs Ram Achal @ Jokhan Singh & Anr.

D.K. Trivedi, J.—The present criminal appeal has been preferred by the Slate of U.P. against the order of acquittal of the accusedpersons of the charges levelled against them by order dated 3 121979 passed by the Sessions Judge, Faizabad. Accusedrespondent Ram Achal alias Jokhan Singh was prosectued under Section 302, IPC and accusedrespondent Gaya Prasad Singh was prosecuted under Sections 109, 302, IPC in connection with an incident which was alleged to be taken place on 651978 at about 12.30 p.m in village Raipur, P.S. Cantt.. District Faizabad.

Accusedrespondent, Ram Achal alias Jokhan Singh is son of Gaya Prasad Singh. It is alleged that the accusedrespondents live near the house of the complainant. It is said that on the date of the incident, some altercation took place between accused Gaya Prasad Singh on one hand and Surendra Pratap Singh on other hand regarding removal of dry fodder from near the house of the accused. It is said that Gaya Prasad Singh asked Surendra Pralap Singh (deceased) to remove the straw immediately but Surendra Pratap Singh (deceased) told him that as soon as labour is available it would be removed. However, it is further alleged that accused Gaya Prasad Singh then instigated Ram Achal Singh who was standing nearby in his verandah armed with gun. came there and fired at Surendra Pratap Singh as a result of which he fell down on the ground. It is further alleged that the incident was witnessed by Dhruraj Singh, Hashing Lal Behari and Chandra Bux Singh. At that time, Surendra Pratap Singh was alive and therefore, he was put on a cot and with the assistance of village people he was brought to the road whereafter arranging a tempo he was brought over to the Sadar Hospital, Faizabad but before he could be taken inside the hospital, he died. Dhruraj Singh son of Surendra Pratap Singh (deceased) prepared a report and lodged the same at 3.30 p.m. at P.S. Cantt. on the same day. It is also alleged that in the meantime a report about the dcalh of Surendra Pralap Singh was conveyed by the hospital authorities to the police station Kotwali. PW6 Raj Narain Dubey came there and prepared the inquest report and sent the dead body to mortuary for postmortem examination. PW7 S.I. Ambika Singh received the papers through Home Guard Raghav Ram at about 4.30 p.m. near Polytechnie and from there he proceeded to the place of incident reaching there at 5.30 p.m. He recorded the statements of the witnesses and prepared the siteplan Ext. Ka1. He also recovered the bloodstained and plain earth from the place of the incident. He also recovered an empty cartridge from the place of the incident. On 751978 the investigation of this case was taken over by PW11 Ram Krishna Shukla, S.O. who recorded the statements of the remaining witnesses and arrested accused Gaya Prasad Singh and Ram Achal Singh on 751978 and 1051978 respectively. It is further alleged that he interrogated accused Ram Achal Singh and thereafter, on his pointing out he recovered the gun from the shop of National Arms Store, Rikabganj, Faizabad and thereafter, the empty cartridge and the gun so seized were sent to the Scientific Section, C.I.D. U.P. Lucknow for examination. He after completing the investigation submitted a chargesheet against the accused persons. The postmortem of the dead body of deceased Surendra Pratap Singh was conducted by PW8 Dr, D.N. Tiwari on 751978 at about 12 in the Noon. The doctor found the following antemortem injuries on the dead body of deceased Surendra Pratap Singh:

(i) Regor mortis was found to be present in the upper and the lower extremities. The deceased was found to have a gunshot wound of entry 7 cm x 6 cm abdominal cavity on the left iliiac fossa, oval in shape. The margins of the wound were inverted and directed downwards slightly. Blackening, tattooing or charring was not present around the wounds. This was wound of entry.

(ii) A corresponding wound of exit 10 cm. x 5 cm. x abdominal cavity communicating with injury No. 1 through and through with everted margins irregular in shape was found. No tattooing, charring or blackening was found.

Just above injniry No. 1 a wad was found while eight pellets were found from near injury No. 2.

On internal examination, according to the doctor the peritoneus of the deceased was found to be lacerated. The large intestine, descending colon, pelvice colon, rectum and small intestine underneath injury No. 1 were found to have been lacerated at various places. The bladder was found empty which was also found lacerated at multiple places under neath injury No. 1. According to the doctor the cause of death was due to shock and haemorrhage as a result of the antemortem injury No. 1. The postmortem report is Ext. Ka12.

The prosecution in support of its case, examined as many as 11 witnesses; out of them PW1 Dhuru Raj Singh, PW2 Lal Behari, PW3 Hashim and PW4 Chandra Bux Singh are the witnesses of fact. PW5 Vibhuti Prasad Singh, Constable, proved the FIR as well as chik report. PW6, S.I., Raj Narain Dube prepared the inquest report and sent the dead body of deceased Surendra Pratap Singh to mortuary for postmortem exmaination. PW7 S.I., Ambika Singh conducted the initial investigation and on arrival of PW11, S.I., Ram Krishna Shukla, handed over the investigation of this case to him. PW8 Dr. D.N. Tiwari conducted the autposy on the dead body of deceased Surendra Pratap Singh and proved the postmortem report Ext. Ka12, PW9 Mukul Vertna a salesman of the National Arms Stores, proved the taking of the gun into possession by "the police, PW10 Ram Asrey Pandey is Junior Scientific Officer. Scientific Section, C.I.D., U.P. Lucknow and PW11, S.I. Ram Krishan Shukla is the Investigating Officer who after completing the investigation of the case, submitted a chargesheet against the accused persons.

On the other hand the accused perosns denied the prosecution case and stated that they have been implicated falsely in this case due to enmity. Their suggestion is that deceased Surendra Pratap Singh was killed in the night and in the morning when the same was detected, then a story was concocted. They also denied the presence of the witnesses on the spot.

On behalf of the defence three witnesses were examined namely: DW1 Mohd. Shamim, Registration Clerk proved the entries about execution of a will, DW2 Ram Bilas, Record Keeper, of the office of Supdt. of Police, proved the previous FIR and DW3 Bhola Nath Sarin, Junior Engineer Electricity Board stated that on the date of the incident there was no electricity in the village Raipur.

The learned Sessions Judge after considering the evidence on the record came to the conclusion that the prosecution has failed to prove the guilt of the accusedpersons beyond reasonable doubt and therefore, he acquitted the accusedpersons of the charges levelled against them as mentioned above.

Aggrieved by the said judgment and order, the State of U.P. preferred the instant criminal appeal before this Court,

We have heard the learned Govt. Advocate as well as the learned Counsel for the accusedrespondents; Sri Imtiyaz Murtaza, Advocate and have perused the records carefully.

The learned Sesisons Judge while acquitting the accusedpersons recorded a finding that the prosecution story as disclosed by the eyewitnesses did not get any support from the medical evidence and in fact the medical evidence belies the oral testimony of the eyewitnesses and therefore, the prosecution case is not free from doubt. He also after considering the testimony of the eyewitnesses recorded a finding that the presence of the eyewitnesses is doubtful and therefore, their testimony cannot be relied upon.

Apart from this, the learned Sessions Judge has also pointed out that the independent witnesses were admittedly present on the spot but no one was examined and further the motive as alleged by the prosecution is a very trivial affair and therefore, on the said basis, it cannot be said that the accused could commit such a serious crime.

12.''We have also perused the judgment passed by the trial court as well as record. Before dealing with the merits of the case, it will be proper to consider the socpe of the State Appeal and for this purpose para 16 of the judgment of the Apex Court in Ajit Savant Majagavi v. State of Karnataka, 1997 JIC 1241 (SC), is being mentioned here:

"16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court. These principles have been set out in innumerable cases and may be reiterated as under:

(1) In an appeal against an order of acquittal, the High Court possesses all the powers and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.

(4) In reversing the finding of acquittal the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial Court.

(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours of the accused should be adopted.

(6) The High Court has also to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witnessbox.

(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as reasoanble person would honestly and conscientiously entertain as to the guilt of the accused."

Keeping in mind the abovementioncd principles, we will now proceed to consider the merits of the case.

According to the FIR accused Ram Achal Singh fired gunshots three times from his D.B.B.L. gun. In evidence, PWI Dhur Raj Singh reiterated his stand and stated that accused Ram Achal Singh fired three gunshots; in crossexamination, he further clarified his statement and stated that all the three gunshots hit the deceased. He stated that when his father received first gunshot, his mouth was towards northern side and his father did iiot fall on the ground but in the meantime, the second gunshot hit the abdomen of his father. He further stated that the third gunshot hit the deceased on his buttock. He also stated that his father fell down on the ground on receiving the second gunshot. The relevant statement of PW1 Dhru Raj Singh runs as under:

Similarly, PW2 Lal Behari in examinationinchief stated that accused Ram Achal fired three gunshots but in the Court, he clarified his statement and stated that the first gunshot hit the deceased on the thigh and the second gunshot hit the abdomen of the deceased and the third gunshot hit the buttock of the deceased. The relevant statement of PW2 Lal Behari runs as under:

Similarly, PW3 Hashim in examination inchief stated that the first gunshot hit the thigh of the deceased and the second gunshot also caused injuries to Surendra Pal Singh. In examinationinchief, he did not say about the third gunshot and similarly, in his crossexamination he stated that Surendra Pratap Singh fell down after receiving the second gunshot and thereafter, accused Ram Achal fired third time, but he could not say that the said gunshot caused injuries to the deceased or not? The relevant statement of PW3 Hashim in crossexamination runs as under:

However, before the Investigating Officer, he stated that accused Ram Achal fired gunshots three times. From the perusal of the oral testimony of these witnesses, it is clear that accused Ram Achal fiied three gunshots and all the gunshots hit the deceased but on the other hand the doctor who conducted autopsy on the dead body of the deceased did not find three gunshots wounds but he found only one gunshot wound of entry and one gunshot wound of exit, meaning thereby, according to the medical report, the deceased received only one gunshot injury.

Apart from this, it is also not possible that nobody reached the place of the incident at the time of the incident specially when the incident took place in day time. PW2 Lal Behari and PW3 Hashim stated that they were present on the Flour Mill when the incident took place and they reached there on hearing hue and cry and on an alarm raised by ''the deceased. According to the testimony of PW2 Lal Behari and PW3 Hashim, at the time of the incident the Flour Mill was running, it is also not disputed that Flour Mill runs by electric power. However, trie defence examined DW3 Bhola Nath Sarin, Junior Engineer, Electricity Department, Faizabad to show that there was no electricity on 5th or 6th May, 1978 due to mechanical defects in the Transformer and that the electricty was restored in the village only on 751978. This fact further belies the testimony of PW2 Lal Behari and PW3 Hashim who stated that the Flour Mill was running at that time and they got their paddy thrashed on the said date. Apart from this, the evidence of the Ballistic Expert has also not been believed by the learned Sessions Judge on the ground that the Ballistic Expert in his report did not furnish any date on which basis he stated that the empty cartridge alleged to be recovered from the place of the incident, was fired by this gun. The learned Sessions Judge, in our opinion, has given cogent reasons in discarding the evidence of Ballistic Expert and we find no illegality in the said finding.

PW1 Dhru Raj Singh in his crossexamination further admits that the ''Daroga'' reached the hospital before lodging of the FIR. This shows that the pollice had already reached the Hospital were PW11 Ram Krishna Shukla alleged to have prepared the report. The teamed Sessions Judge has also pointed out several discrepancies and infirmities in the statements of the eyewitnesses and in the investigation.

We have also perused all these statements of the witnesses as well as infirmities pointed out by the learned Sessions Judge and we find no illegality in the same. It is not possible for us to say that these findings recorded by the learned Sessions Judge are in any way against the evidence on record or there is an other view which can be reasonably taken than the view which has been taken by the leanred Sessions Judge.

Keeping in mind the principles enumerated by die Apex Court in a case of Ajit Savant Majagvai (supra), we are of the opinion that the present criminal appeal has, no force.

In the result, the present criminal appeal is hereby dismissed. The accusedrespondents are on bail. They need not surrender. The bailbonds are cancelled and sureties thereof stand hereby discharged.