Chet Ram And Others vs State Of U.P. on 28 January, 2020

[Cites 9, Cited by 1]

Allahabad High Court

Chet Ram And Others vs State Of U.P. on 28 January, 2020

Equivalent citations: AIRONLINE 2020 ALL 227

(1) Heard Sri Amit Kumar Srivastava, learned amicus curiae for appellant no.1- Chet Ram and Sri Gyanendra Prakash Srivastava, learned counsel for the appellant no.3 Nar Singh, learned A.A.G. assisted by learned A.G.As. for the State and perused the record of this appeal.

(2) By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 13.05.1992 passed by IV Additional Sessions Judge, Bareilly, in Sessions Trial No.276 of 1991 (State Vs. Chet Ram and others), arising out of case crime no.258/1990, under Sections 302/34 IPC, Police Station- Subhash Nagar, District- Bareilly, whereby appellants have been sentenced to imprisonment for life.

(3) Appropriate to mention that during the course of appeal appellant no.2- Ghanshyam- and appellant no.4- Mahipal- expired, therefore, their appeal stood abated against them vide order of this Court dated 06.09.2019.

(4) Now, this appeal qua the surviving appellant no.1 Chet Ram and appellant no.3 Nar Singh is for adjudication.

(5) Facts relevant for adjudication of this appeal as reflected from record appear to be that first information report was lodged at Police Station- Subhash Nagar, District- Bareilly by informant- Heera Lal with allegations that yesternight on 18.09.1990 at around 9.00 P.M. he (informant) went to see off his father at the tubewell for sleeping. He was accompanied by Natthu Lal s/o Ram Lal of the village. The electric light was illuminated at the tubewell. The informant along with others arrived at the tubewell and started conversing with each other, in the meanwhile, real cousin brothers of the informant- Chet Ram, Ghanshyam s/o Durga Prasad along with co- villagers, Nar Singh s/o Natthu Lal, Mahipal s/o Durga Prasad- with whom old enmity on account of landed property is going on, possessing countrymade pistol in their hands, appeared on the spot and threatened them that he (the informant) and his father (deceased) will not be spared today, whereupon, the informant and Natthu started running away, when he saw that his father trying to run away and go up- stairs on a bamboo ladder placed at short distance, when all the aforesaid assailants with intention to commit murder, fired upon the father of the informant, whereupon, his (father of the informant) father fell down. The accused also fired on the informant and Natthu. The informant- Heera Lal along with Natthu hid themselves in the field being frightened with the incident. The dead body was stated to have been lying on the spot. It was requested that report be lodged against the accused and action be taken. This report is Exhibit Ka-1.

(6) Relevant entries were made in the concerned check F.I.R. at Case Crime No.258/90, under Sections 302/307 I.P.C. at Police Station- Subhash Nagar, District- Bareilly, which is on record as Ex. Ka.2A.

(7) Pursuant to the entries so made in the check F.I.R., a case was registered against the accused at Rapat No.9 dated 18.09.1990 at 06.10 hours in the concerned General Diary at aforesaid case crime number under aforesaid section of Indian Penal Code, copy whereof is on record as Ex.Ka.3.

(8) The investigation was entrusted to S.I. Sri Anil Kumar Malik. The Investigating Officer- Anil Kumar Malik proceeded to the spot and prepared the inquest report of deceased- Bheem Sen on 18.09.1990, which inquest report has been proved by P.W.3- Harsh Vardhan Gaud. The relevant papers were also prepared at the same time- say- photo of dead body (photo nash)- Exhibit Ka-5, Challan dead body Exhibit Ka-6, letter to R.I. Exhibit Ka-7, letter to C.M.O. Exhibit Ka-8, Specimen Seal Exhibit Ka-9 and these have also been proved by the aforesaid prosecution witness- P.W.3 Harsh Vardhan Gaud. The cadaver of deceased was sent for postmortem examination and site plan of the place of occurrence was prepared by the Investigating Officer- Anil Kumar Malik. The site plan has been proved by the aforesaid prosecution witness- P.W.3 Harsh Vardhan Gaud as Exhibit Ka-10.

(9) Postmortem examination on the cadaver of deceased was conducted on 18.09.1990 at 04.00 P.M. by Dr. A.K. Jain P.W.2, wherein the following ante-mortem injury was noted at the time of examination:

Ante mortem injuries

1. Gun shot wound of entry 4 cm x 2½ cm x chest cavity deep on the right side of chest. 4 cm away from mid-line and 11 cm below of the right scapula. Margins inverted and lacerated blackening present around the wound.

2. A gun shot wound of entry 3 cm x 2 cm x bone deep over the medial side of right below wrist joint. Blackening present around the wound. Margins inverted and lacerated.

3. Exit lacerated wound 10 cm x 6 cm x bone deep through and through over dorsum of right hand, corresponding to injury no.2. Underneath metacarpal bones fractured with pieces.

4. A gun shot wound of entry 3 cm x 2.5 cm x bone deep over back of left hand in the middle margins inverted and lacerated. Blackening, tattooing and scorching present around the wound and over the wrist joint and partly over lower part of left forearm. Underneath metacarpal bones fractured into pieces and one yellow metallic bullet recovered.

5. A gun shot lacerated wound through and through 3 cm x 1 cm on the angle of upper and lower lips.

In the opinion of doctor, cause of death was stated to be haemorrhage and shock as a result of ante-mortem injuries. The postmortem report is Exhibit Ka-2.

(10) Record also reflects that during course of investigation empty cartridges .315 bore and one bullet .315 bore etc. were taken into possession by the police and wrapped in a polythene pack and was sealed in a cloth and after preparing the memo of the same, which is Exhibit Ka-11. The memo of bamboo ladder from the place of occurrence is Exhibit Ka-12. The investigating officer also collected simple soil as well as blood stained soil from the spot and kept it in two separate containers and memo was prepared on 18.09.1990, which is Exhibit Ka-13.

(11) Statement of the prosecution witnesses was recorded and after completing the formalities charge- sheet- Exhibit Ka-14- was filed against the accused. Consequently, the trial commenced and trial Judge charged the accused under Section 302/34 IPC for committing murder of Bheemsen on 17.09.1990 around 9 P.M. within police station- Subhash Nagar. The Charge was read over and explained to the accused, who denied the charge and opted for trial.

(12) In turn, prosecution was asked to adduce its testimony in order to prove the guilt. The prosecution produced in all three witnesses out of whom, one is witness of fact and the rest two are formal witnesses. Brief reference of the prosecution witnesses is ut-infra:-

Heera Lal P.W.1 is the first informant and he claimed himself to be an eye-witness of the occurrence. He has proved written report Ext. Ka.-1.

Dr. A.K. Jain P.W. 2 has conducted post-mortem and has proved post-mortem examination report as Exhibit Ka-2.

In this case, the Anil Kumar Malik, the Investigating Officer has not been examined, however, in order to prove the investigation and the prosecution papers Harsh Vardhan Gaud, P.W.3 has been examined and he has proved the relevant papers on behalf of the Investigating Officer.

(13) Except as above, no other evidence was produced and the statement of the accused was recorded u/s 313 Cr.P.C., wherein they claimed to have been falsely implicated on account of enmity and collusion of the informant with the police.

(14) However, no evidence was led by the defence.

(15) Consequently, the case was posted for hearing of arguments. After considering the case on its merits and appraisal of facts and circumstances and evaluation of evidence on record, the learned trial judge returned aforesaid finding of conviction against the accused and sentenced them to imprisonment for life, which paved way to this appeal.

(16) Consequently, this appeal.

(17) The moot point that arises for adjudication of this appeal relates to the fact whether the incident of murder in question was caused by the appellants and the prosecution has proved the same beyond all reasonable doubt?

(18) Crux contention of the learned counsel for the appellants rest on the anvil that the incident narrated, if assumed to be true, then it is obvious that no one saw the occurrence and it is not supported by the available independent witness- say- Natthu with whom the informant- Heera Lal (son of the deceased) was stated to have been conversing at the tubewell, when the incident occurred. The conduct of the informant is unbecoming of a reasonable prudent man and the same is not proper and it is most unnatural for the reason that assuming it to be that the father of the informant was killed by the four assailants and the informant- the son of the deceased- ran towards the field at a shot distance from the place of occurrence and hid himself in the field and remained there for the whole night, then as per his testimony emerging in his examination-in-chief, he did not care to go to the spot to take stock of the situation about the actual condition of his father after the assailants had secured their escape, instead from the field in the next morning he went straight to his village and from village went to the police station, this is highly improbable conduct. Can it be imagined under circumstance that a person who left the victim running away after being frightened by the fire caused by the assailants would not revisit the spot in the following morning (after the occurrence) and would not see the overall situation of the victim and how can he say with certainty that the victim died on the spot without revisiting on the spot after the occurrence. The examination-in-chief of P.W.1 also supplies the clue that the informant had strong motive to implicate the accused in order to grab the property of his uncle (taau) Dharam Dass. Next contended, under what circumstances the best testimony of the independent witness- Natthu was withheld by the prosecution, this by itself is indicative of fact that Natthu was not there on the spot at the time of the occurrence and had he been so present and witnessed the incident then he must have been examined by the prosecution in corroboration of the testimony of P.W.1. In this case, the corroboration from the independent witness must have comeforth in the shape of Natthu but he has been withheld for no worthy reason. Had the occurrence taken place at 9 P.M. in the night? The assailants would not have spared the other two witnesses claimed to have been present on the spot. They (accused) being four in number must have chased the informant P.W.1 or at least a gesture chasing him must have been made in order to eliminate them so as not leave any sign of the offence intact regarding the occurrence, but no such whisper in shape of any chase or pursuation by the accused is gathered either from the first information report or from the testimony of P.W.1 Heera Lal- the eye witness informant of the occurrence. The learned trial Judge out of whim and imagination basing his finding on conjuncture and surmises erroneously recorded finding of conviction thus sentenced the accused of charge under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life.

(19) Learned A.G.A. while retorting to above contention has vehemently claimed that in this case, the learned trial Judge has rightly acted on the evidence on record and it is trite law that number of the witnesses is not to determine the guilt of accused but the quality evidence and creditworthyness of witness is to be judged in its entirety and this is the crux of Section 134 of the Indian Evidence Act, 1872. In this case, the eye account testimony of P.W.1 Heera Lal cannot be brushed aside merely on account of certain behavioral aberrations because the mind set of a person cannot be said to be working systematically and under various prevailing circumstances and the attendant facts of a case it is not possible to behave soberly as a reasonable man but it is the bent of the mind compelled by existing circumstances guides a person, merely because P.W.1 Heera Lal did not revisited the place of occurrence after the occurrence and went straight to the village and from there moved to the police station and lodged the report that would not by itself create any situation for exonerating the appellants. The four appellants arrived on the spot and opened fire by their respective country-made guns. The post-mortem report is indicative of fact that gunshot entry wound and gunshot exit would apart from other gunshots were found as the ante-mortem injuries at the time of the post-mortem examination by the doctor, and this by itself will clinchingly establish harmony between the ocular version of the incident and the post-mortem examination report. These consistence circumstances cannot be by-passed and the trial Judge considered all these aspects- factual and legal in right perspective emerging in the testimony of the prosecution witnesses, vis-a-vis, the attendant facts and circumstances of the case and has justifiably recorded conviction under Section 302/34 IPC and sentenced condingly.

(20) Also considered the rival submissions.

(21) We have before us only one prosecution witness of fact P.W.1 Heera Lal. He has stated in his examination-in-chief that he is in possession of the land of his uncle (taau) Dharam Dass on the basis of will and is ploughing his field on account of which, the accused are on inimical terms with him. Regarding the incident, he has stated that the incident occurred at 9 P.M. at the tubewell, when he went to see off (in the night) his father- Bheem Sen- at the tubewell along with one Natthu Lal s/o Ram Lal of the village. They arrived at the tubewell and all the three were conversing with each other at the door of the tubewell, when Chet Ram, Ghanshyam, Nar Singh and Mahipal possessing country-made gun in their hands appeared on the scene from the western side. There was electricity light on the spot. The accused exhorted that the son and the father will not be spared today, whereupon, all the three started running away and the father of the informant tried to go up- stairs on a bamboo ladder placed at a short distance. At the same time, the accused fired on him due to which informant's father fell down. Besides, the accused also fired towards this witness and Natthu, but they were saved. After firing the accused managed their escape towards western side. However, the informant and Natthu Lal hid themselves inside the chari field the whole night being frighted with the incident. In the morning, they went back to home in village from where they proceeded towards the police station, on way to police station, the informant met with Hemraj and Harvendra with whom the informant was acquainted, therefore, they also accompanied the informant.

The report was scribed by Hemraj outside the police station thereafter it was lodged at the police station. This witness has proved the written report- Exhibit Ka-1. Thereafter the informant and Natthu accompanied the police and arrived on the spot where the cadaver of the informant's father was lying on the place of occurrence. Thereafter necessary formalities were done by he police. It has been stated that Natthu Lal being under fear of the accused is not willing to give evidence. This witness was cross- examined. He has stated in his cross-examination that Sher Singh, who was also present at his tubewell, as he used to remain there during night, did not arrive on the spot and after hearing the sound of the fire, Sher Singh met the informant near the dead body of the informant's father when the informant arrived on the spot with the police.

(22) Further stated in his cross-examination about fact that some altercation has taken place previously between the accused and the informant, whereupon, proceedings under Section 107/116 was drawn between the parties. However, he has stated that this proceeding commenced after the incident of murder. He has also stated that not a single person among the assailants chased them. He has stated that the miscreants had opened fire 4-5 times on the spot. He could not see the direction of the faces of the assailants at the time firing was done. However, he has stated in his cross-examination on page 25 of the paper book that after two and a half hours of the incident, he again arrived on the spot and saw his father; and after seeing his father, informant again went to the 'chari' field and did not weep and cry.

(23) Apart from above factual aspects, no other testimony has come forth. Now, so far as the testimony of P.W.1 Heera Lal in his examination-in-chief and the lodging of the FIR is concerned then there is no whisper about the fact that the informant ever tried to revisit the spot- the place where his father was lying after the occurrence. However, it has emerged only on page no.25 of the paper book in cross-examination that he revisited the place of occurrence two and a half hours after the occurrence. But no details of his reaction afterwards have been furnished.

(24) Now, the conduct of the informant- being son of the deceased- is highly improbable and unnatural to the magnitude that he was not far away from the dead body after the occurrence where he hid himself in a 'chari' field and the next morning after the incident (occurred), he did not think it proper to revisit the spot where his father was lying dead. Instead he went straight back to village and from there proceeded towards the police station. Here also, after reaching his village he did not strive to revisit the spot of occurrence along with the villagers and there prevails abysmal silence on this particular conduct of the informant as to how revisit to the spot under these circumstances was deferred till the arrival of the police on the spot after the report was lodged at the police station. Thus, the conduct of the informant is in itself highly improbable and does not sound and falls inline with that of a ordinary, reasonable and prudent man and cannot be accepted to be natural conduct as such.

(25) Next, under these circumstances, the very conduct of the informant- the sole eye-witness- becomes improbable and unnatural and his testimony requires independent corroboration, which independent corroboration is woefully lacking in this case. The only other eye-witness is stated to be another person- Natthu- who was admittedly there, but he was not examined by the prosecution but withheld as a prosecution witness. The reason assigned for his non- examination is suggested to be fear of the accused. But his non-examination erodes the reality of the prosecution story substantially. This witness (P.W.1) appears to be highly motivated in ensuring false conviction of each of the accused.

(26) Had the incident taken place in the manner and style suggested by the informant himself, then the natural and the proper conduct/reaction would have been that as soon as after the incident had occurred and when all the four assailants had fled away from the scene towards the western side the informant along with Natthu had also secured their escape from the scene of occurrence and hid themselves in a 'chari' field then they had every occasion and reason to have arrived on the spot soon after (the incident) in order to ascertain the condition well being of the deceased- Bheemsen, who was lying on the spot but no such gesture was shown by the informant. Not only this, in the next morning, there was ample occasion for the informant to have ascertained proper condition of the deceased in the day light, but that too was not done. We may observe that these aspects create doubt on the veracity and truthful version of testimony of P.W.1.

(27) Lastly, when the informant reached at his village, he did not strive to come back to the spot and to take stock of the situation. This disinterestedness of the informant in not revisiting the spot after the occurrence generates doubt about the manner and the style of the occurrence that it so occurred and does not inspire confidence and the withholding of the independent witness- Natthu- works fatally to the genuineness and veracity of the prosecution case. Consequently, we unhesitatingly hold that the eye-witness Heera Lal P.W.1 is not trustworthy and his testimony is inconsistent with his natural conduct after the occurrence had taken place. Here we can safely observe that Heera Lal P.W.1 appears to be an interested witness and under these circumstances, we are of the considered opinion that the argument extended by the learned counsel for the appellant carries substance and the same is worth its credence.

(28) On aforesaid vital aspects and particularly the withholding of the independent witness and more so in the event of non-corroboration of the testimony of P.W.1 Heera Lal in the prevailing facts and circumstances of the case, the trial court misjudged the situation and wrongly appraised the facts, vis-a-vis, circumstances of the case and arrived at wrong conclusion by convicting the accused for charge under Section 302/34 IPC, which finding of conviction and sentence cannot be sustained for the specific reasons aforesaid and the same is liable to be set aside.

(29) Consequently, the judgment and order of conviction dated dated 13.05.1992 passed by IV Additional Sessions Judge, Bareilly, in Sessions Trial No.276 of 1991 (State Vs. Chet Ram and others), arising out of case crime no.258/1990, under Sections 302/34 IPC, Police Station- Subhash Nagar, District- Bareilly is hereby set aside and the appeal is allowed. Accused-appellants are acquitted of all charges as above.

(30) In this case, the accused-appellants are on bail. They need not surrender in this case. Their bail bonds are cancelled and sureties are discharged. However, they shall furnish surety bonds in compliance with Section 437-A Cr.P.C.

(31) Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Order Date :-28th January,2020 Raj

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