Subedar, Sheoraj Singh, Malkhan Sahai and Mohar Singh (In Jail) vs State of U.P.

G.P. Srivastava, J.—This is an appeal against the judgment and sentence dated 24.11.1980 passed by III Addl. Sessions Judge, Etah in Session Trial No. 44 of 1980 State v. Subedar, Sheoraj Singh, Malkhan and Mohar Singh under Sections 302, 307 read with 34, 323 read with 34 and 307 I.P.C. P.S. Amanpur District Etah whereby the learned Addl. Sessions Judge has convicted accused Subedar and sentenced him to life imprisonment u/s 302 I.P.C. 5 years rigorous imprisonment u/s 307 read with 34 I.P.C. and six months rigorous imprisonment u/s 323 read with 34 I.P.C. He further convicted and sentenced accused Sheoraj Singh to 7 years rigorous imprisonment u/s 307 I.P.C, life imprisonment u/s 302 read with 34 I.P.C. and six months rigorous imprisonment u/s 323 read with 34 I.P.C. He further convicted and sentenced the accused Malkhan and Mohar Singh to life imprisonment u/s 302 I.P.C., 5 years rigorous imprisonment u/s 307 I.P.C and six months rigorous imprisonment u/s 323 read with 34 I.P.C. All the sentences were made concurrent.

The prosecution case in brief is that the house of the complainant Anokhey Lal P.W. 1 was situated in village Ranamau P.S. Amanpur District Etah. Accused Sheoraj Singh, Mohar and Malkhan are cousins. The accused Subedar is their uncle. The deceased Ganga Ram was the father of complainant Anokhey Lal, P.W. 2 Smt. Bhudevi and P.W. 3 Smt. Ganga Shree are the sisters of the complainant. In the night of 24/25 July 1977 the complainant Anokhey Lal and deceased Ganga Ram were sleeping out of their house at the doors. The other family members were sleeping inside the house. At about 12.30 A.M. all the above named 4 accused persons came. The accused Subedar had a gun, Sheoraj had a country made pistol and a torch. The remaining two accused persons were armed with Lathis. The complainant also had a torch. When the accused Sheoraj Singh flashed the torch the complainant and the deceased got alarm and fled inside the house. In the mean time the accused Subedar fired a shot at Ganga Ram who collapsed and dead. When the complainant tried to rescue his father the other accused Sheoraj Singh fired upon him by pistol. He was wounded by those shots and was further belaboured by lathis of other two accused persons. The F.I.R. was lodged at the police station on the same night at 3.30 A.M. The chick F.I.R. is Ext. Ka-6 and G.D. report is Ext. Ka-7. The injuries of the complainant were examined by Dr. Kripal Singh P.W. 7 at 4.00 A.M. on the same night. He found following injuries:

Lacerated wound 5 cm. x 1 cm. x bone tough deep situated on anterior scalp at medial line which was 13 cm. to the glabella of fore head. Margins were irregular.

Gun shots wounds above the naval mostly on right side of abdomen and chest were present which were numerous in number in the area below 10 cm. of right axilla and were situated to the lateral and medial part of chest and abdomen. Two gun shot wounds were also present on the left side of abdomen and chest. No other matter was present near the wound. No blackening etc. was present. Only wounds of entrance were noted;

The dead body of Ganga Ram was sent for post mortem which was performed by Dr. R.P. Verma. The doctor found one multiple injury which is noted below:

Multiple fire arm wounds of entry in an area 28 x 19 cm. on the left shoulder below axilla on the left side of chest and upper part of left arm. Margins were inverted. Blackening was not present. Direction was obliquely forward from the left each 4th 5th and 6th ribe on the left lateral side fractured.

According to the opinion of the doctor the death was caused due to shock and haemorrhage on account of ante mortem injuries.

After usual investigation the Investigating Officer submitted charge sheet against the accused persons.

The prosecution examined P.W. 1 Anokhey Lal complainant, P.W. 2 Smt. Bhudevi and P.W. 3 Smt. Gangashree as witnesses of fact. Besides that other formal witnesses were also examined.

The accused persons in their statement u/s 313 Cr.P.C. have denied the prosecution case and claimed to have been falsely implicated due to enmity.

After considering the evidence on record the learned Addl. Sessions Judge has convicted and sentenced the accused persons as aforesaid.

Feeling aggrieved with the aforesaid judment and conviction the appellants have preferred this appeal.

We have heard learned Counsel for the appellants and learned A.G.A. and carefully gone through the entire evidence on record.

Learned Counsel for the appellants has argued that the prosecution has changed the place of occurrence from out side of the house of the complainant to inside the house only with a view to enable two eye witnesses Smt. Bhudevi P.W. 2 and Smt. Gangashree P.W. 3 to become eye witnesses of the occurrence: The site plan shows that the deceased as well as the complainant were sleeping out of the house of the complainant near the door but there was no plank in the door. Consequently the door was open. It is not disputed that the aforesaid two persons were sleeping out of the house. The prosecution case is that when the accused persons came the complainant and deceased saw them and rushed in side the house. The complainant P.W. 1 has stated that first of all his father rushed in side the house. The accused fired upon his father when he reached in the house. His father fell down after receiving gun shot injuries. The complainant rushed towards his father and the accused Sheoraj fired upon him, the accused Malkhan and Mohar gave lathi blow to his head. He has further stated that his cot was adjoining to the door towards north. The cot of the father of the complainant was towards east of the cot of the complainant. He has stated that both of them could rush 2 or 3 paces and then the fire was made so from the statement of complainant P.W. 2 who claimed to be an injured witness, the occurrence took place out of the house but the prosecution has shown the occurrence in side the house. The medical evidence also shows that the occurrence has taken place out of the house and not in side the house. Dr. P.N. Verma P.W. 6 who conducted the post mortem of the deceased has stated that it is true that the assailant was infront of the deceased towards left at the time of firing. The ante mortem injury shows that the injury was caused on the left side of the chest. So the said fatal injuries to the deceased cannot be caused from the back side of the deceased. So the statement that the fire was opened by the accused upon the deceased when the deceased was entering into the house stands belied from the medical evidence. There was no blackening in the ante mortem injury. Therefore the fire must have been caused from some distance and in that event too the occurrence cannot take place in side the house. It appears that there is force in the argument of learned Counsel for the appellants that the place of occurrence has been shifted only to enable P.W. 2 Bhudevi and P.W. 3 Gangshree to act as an eye witness when it is the prosecution case that they were sleeping inside the House.

Learned Counsel for the appellants has further argued that there was no opportunity on the part of witnesses to identify the accused persons because admittedly it was a dark night and there was no source of light except the torch of accused Sheoraj Singh. It is not possible to see and identify the accused persons in the light of the torch which was with accused Sheoraj Singh. He has further argued that the recital regarding the existence of torch of complainant does not find place either in the F.I.R. or in the statement of the complainant recorded u/s 161 Cr.P.C. or in the statement of P.W. 3 Smt. Gangshree which was recorded just after the occurrence. The existence of torch was introduced in the statement of Smt. Bhudevi which was recorded on 8.8.1979 after 15 days from the occurrence and thereafter the torch was inspected and memo was prepared by the Investigating Officer on 22.8.1979. It appears that in order to meet out the lacuna of the prosecution case the story of torch of the complainant was introduced after 15 days from the occurrence. The complainant P.W. 1 in the F.I.R. has mentioned that he saw the accused persons in the light of torch. It has been mentioned in the F.I.R. that accused Sheoraj Singh had a torch. In the statement as P.W. 1 the complainant has stated that the night of the occurrence was a dead dark night. He claimed to have identified the accused persons in the light of torch. He has not stated that he has identified the accused persons by any other means. Though he has stated that he could have identified the accused persons even if there was no torch because they were known earlier to him but he has emphasized that he identified the accused persons in the light of torch. It is not the prosecution case that the accused persons were talking or extorted the complainant or his father meaning thereby accused persons remained silent through out. The identification of the accused has been shown in the light of torch and the prosecution has failed to prove that there was any torch with the complainant or his father. It is highly impossible to see and identify the accused persons in the light of torch held by one of them. So there is no means left for the witnesses to see or identify the accused persons.

In the F.I.R. a motive has been assigned that there was enmity in between the parties in a case of land but no evidence has been led by the prosecution to prove it. On the other hand the complainant P.W. 1 has admitted that his father was convicted in a murder case but acquitted from High Court. He has pleaded ignorance of the fact that he was a prosecution witness in a murder case of Nar Pal and detention of a son of one Tej Singh by him in order to kill him. He has admitted that prior to the occurrence accused Subedar has lodged the F.I.R. against him u/s 392 I.P.C. So it is clear from the statement of the complainant itself that there was so many enemies of the deceased and the complainant. The lodging of F.I.R. by the accused against the complainant and his father may be a ground for false implication of the accused persons and not otherwise.

The trial court has rightly disbelieved the introduction of torch in the hand of the complainant. He disbelieved P.W. Bhudevi whose statement was recorded by the Investigating Officer after 15 days of the occurrence and from the statement of P.W. 2 Bhudevi it appears that she was not present at the date and time of occurrence.

Though P.W.I complainant is an injured witness but the above discussion shows that he is not a person worth reliance. Merely because he has received injuries in the occurrence will not give an unrebutted presumption that he is telling truth. The presumption of his truthfulness is rebutted by the fact that he had no opportunity to see and identify the accused persons in the occurrence in the dead dark night. The effort of the prosecution to fill up the lacuna has failed.

In the circumstances we are of the view that the appellants deserve to be acquitted from the offences they have been convicted. The appeal deserves to be allowed.

In the result the appeal is allowed. The judgment and sentence passed by learned Addl. Sessions Judge against the appellants is set aside. The accused appellants are being acquitted from the offences charged. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.