Allahabad High Court
Gauri Shanker Alias Bacchan Yadava And ... vs State Of U.P. on 29 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1504
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar, Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 04.03.2020
Delivered on 29.05.2020
AFR
In Chamber
Case :- CRIMINAL APPEAL No. - 346 of 2001
Appellant :- Gauri Shankar Alias Bachchan Yadava And
Another
Respondent :- State of U.P.
Counsel for Appellant :- Ravindra Nath Rai, Indra Kumar
Chaturvedi
Counsel for Respondent :- Govt. Advocate
Connected with
Case :- CRIMINAL APPEAL No. - 295 of 2001
Appellant :- Ramakant Yadav
Respondent :- State of U.P.
Counsel for Appellant :- G.P. Dixit,Indra Kumar Chaturvedi(Senior Adv.),Indu Shekhar Tripathi,Pradeep Kumar Mishra
Counsel for Respondent :- Govt. Advocate
Hon'ble B. Amit Sthalekar, J.
Hon'ble Ali Zamin, J.
(Per : Ali Zamin, J.)
1. Heard Sri I.K.Chaturvedi, learned Senior Counsel assisted by Sri Ravindra Nath Rai, Sri Vinay Saran, learned Senior Counsel assisted by Sri Pradeep Kumar Mishra & Sri Indu Shekhar Tripathi, learned counsel for the appellants, Ms. Mandvi Tripathi and Sri Shiv Narayan Singh, learned counsel for the complainant/victim, Sri M.C.Joshi, learned A.G.A. for the State, considered the written submission filed by Sri Pradeep Kumar Mishra and perused the record carefully.
2. These appeals are directed against the judgment and order dated 05.2.2001 passed in S.T.No 104/1987, State vs Gauri Shankar and others,whereby learned VIth Additional Sessions Judge, Ballia has convicted the appellants Gauri Shankar @ Bachchan Yadav, Ram Ashish Yadav and Rama Kant u/s 147, 302/34 IPC and sentenced each of them to undergo one year rigorous imprisonment and life imprisonment, respectively, fine Rs. 1000/ has been also imposed upon them with default stipulation.
3. Accused Vishwanath has been acquitted u/s 148 and 302 IPC by giving him benefit of doubt.
4. At the very outset it may be noted that accused Shiv Shankar and Munna Lal @ Sachchidanand have died during the trial and case has been abated against them.
5. In brief, prosecution case is that there is a Math and its Dhaba in village Karo. Ramakant Singh son of Sri Tulsi Singh, younger brother of informant, Govind Singh was living in the dhaba. On 24.02.1987, Akhand Manas Path was going on in the Math and Ramakant Singh was present in the Dhaba. At about 9.00 a.m. due to old enmity, Gauri Shankar @ Bachchan Yadav and Shiv Shankar both sons of Rekha Yadav, Vishwanath Upadhyay son of Raj Narayan Upadhyay, Munna Lal @ Sachchidanand son of Yaduvansh Lal, Ram Ashish Yadav s/o Gauri Shankar Yadav and Ramakant Yadav s/o Basdev Yadav, all resident of village Karo, police station Chitbada Gaon, Ballia in furtherance of their common intention armed with lathi and bhala (spear) coming to the Dhaba exhorted Ramakant Singh to come out, on which by jumping back over boundary wall he fled towards East side. Assailants chased him with intention to kill and till reaching moonj (Sarpat) bushes of betel bhita (mound) of Vishwanath Barai surrounding him they assaulted with lathi and bhala, on account of which he died. On hearing noise informant, Satya Narayan Singh s/o Havaldar Singh r/o village Sujayat, Vijai Lal s/o Vishnu Lal r/o Basdev, Ram Baran Chaudhary s/o Jagdish Chaudhary r/o village Vishunpura police station Chitbada Gaon Ballia and several persons who were present in the Manas Path followed up to the spot to save the deceased and witnessed the incident.
6. On the basis of written report Ext.Ka-1, Case Crime No.55/1987, under Sections 147, 148, 149, 302 I.P.C. against accused under chik F.I.R. Ext. Ka-2 was registered at 12:30 p.m. on 24.02.1987 and its entry was recorded on G.D. No.16 (Ext. Ka-3). The investigation of the case was handed over to S.H.O. Sri T.N. Mishra. Investigating Officer after recording the statement of informant Sri Govind Singh, reached the spot. He prepared inquest memo Ext. Ka-5 and relevant documents like letter to C.M.O. (Ext. Ka-6), specimen seal (Ext. Ka-7), photo lash (Ext. Ka-8), police Form no.13 (Ext. Ka-9) and dispatched the dead body along with constable Uma Shankar Rai (PW-6) and Krishna Kumar Pandey for postmortem.
7. Dr. G.C. Upadhyay conducted postmortem of the dead body on 25.02.1987 at 2:00 p.m. and prepared his report Ext Ka-4, according to which following injuries were found on the dead body:
(i). Abrasion 2 c.m. x 1.2 c.m. on the right arm 6 c.m. above elbow.
(ii). Abrasion 4 c.m. x 1 c.m. on right ankle joint on the anterior part.
(iii). Abrasion 1 c.m. x 10 c.m. On the back of thigh middle of right thigh.
(iv). Abrasion 2 c.m. x 2 c.m. on the right side face just below the right eye.
(v). Lacerated wound 2 c.m. x .05 c.m. x scalp and oblique at 9 O'clock position just lateral and above the lateral end of right eye.
(vi). Lacerated wound 2 c.m. x 0.5 c.m. scalp deep 1 c.m. above injury no.5 oblique 2 O'clock position.
In internal examination right parietal bone was found fractured. Right membrane of the brain was congested and 200 gram blood was clotted. According to his opinion cause of death was shock and haemorrhage as a result of ante-postmortem injuries and injuries were possible on 24.02.1987 at 9:00 a.m. Ordinarily, the injuries were sufficient for causing death and instantaneous death was possible due to the injuries.
8. Investigating Officer took into his possession five (four live and one empty) cartridges, blood stained and plain earth and two lathis from the place of incident and prepared its memo Ext. Ka-10 to Ext. Ka-12 respectively. He also prepared spot map Ext. Ka-13. After completing investigation submitted charge sheet Ext. Ka-14, under Sections 147, 148, 149, 302, 34 I.P.C. against the accused persons.
9. Since the offence under Section 302 I.P.C. is triable by Court of Sessions only, therefore, learned Chief Judicial Magistrate committed accused to the court of Sessions where Case Crime No.55 of 1987, under Sections 147, 148, 149, 302 I.P.C. was registered as S.T. No. 104 of 1987. Learned Sessions Judge transferred the trial to the court of IInd Additional Sessions Judge, Ballia, who framed charge under Sections 147 and 302 I.P.C. against accused Ramakant, Ram Ashish, Gauri Shankar and Shiv Shankar, under section 148, 302 I.P.C. against accused Vishwanath and Munna Lal. In due course of trial it was again transferred to the court of VIth Additional Sessions Judge, Ballia.
10. Prosecution to prove the charge against the accused persons produced 08 witnesses. P.W.1 Govind Singh informant, P.W.2 Vijay Shankar Lal, P.W.4 Satya Narayan and P.W.5 Km Rekha Singh are witnesses of fact, while P.W.3 Shivanand Pandey scribe of the chik F.I.R. and G.D., P.W.6 constable Uma Shankar Rai carrier of dead body for post mortem. P.W.7 Dr. G.C. Upadhyay conducted post mortem and P.W.8 S.I.T.N.Mishra, Investigating Officer, are the formal witnesses.
11. After examination of the prosecution witnesses statement of accused were recorded under Section 313 Cr.P.C. in which Gauri Shankar @ Bachchan Yadav has stated that Ramakant had asked him to collect contribution, he refused to do so then he beat him. Few people rescued him then he went to the police station. Ramakant has stated that case proceeded against him due to enmity. Vishwanath Upadhyay has stated that his partner Laliya is retired daroga, who implicated him in collusion with the informant. Ram Ashish has stated that he has no knowledge why he has been implicated.
12. In defence D.W.1 R.N. Singh, X-Ray Technician has been produced, who has proved injury of accused Gauri Shankar as Ext. Kha.
13. Learned VIth Additional Sessions Judge, Ballia after hearing the parties and perusal of the record passed the impugned judgment and order as disclosed in para 2 of the judgment. Hence, this appeal.
14. Learned counsel for the appellants submits that witnesses are not resident of the same village Karo, their presence is doubtful, that is why story of Manas Path has been introduced.
15. He further submits that no one was armed with fire arm but as per recovery memo Ext Ka-10 live and empty cartridges were recovered from the spot. It is defence case that deceased Ramakant Singh had asked accused Gauri Shankar to collect contribution, he refused to do so then Ramakant beat him. In this regard accused Gauri Shankar had lodged NCR No 14 u/s 325 (wrongly mentioned in place of 323), 504 IPC against deceased Ramakant and two others which has been proved by PW-3 Shivanand Pandey also. Injury report Ext. Kha of the accused Gauri Shankar has been proved by DW-1 R N Singh. These facts show that prosecution has deliberately suppressed the genesis and origin of the occurrence and has not presented true version which is fatal to the prosecution. In support of his contention learned counsel has relied on Lakshmi Singh vs. State of Bihar[1976] 1 SCC (Cri) 671, (Para 11, 16) and Bhagwan Sahai and Another vs. State of Rajasthan [2016] 13 SCC 171 (Para 8).
16. Next submission is that prosecution evidence is, lathi and bhala were used in causing the injuries but as per medical evidence no injury is possible by bhala, thus ocular evidence is also not supported by the medical evidence. Even the injuries alleged to have been caused and found on the body of the deceased, the story put forward by the prosecution is not only improbable but is impossible of being true. In support of the contention learned counsel has relied on Govindaraju @ Govind vs. State by Sriramapuram P.S. [2012] 2 SCC (Cri) 533 (Para 39) and Balaka Singh and others vs. The State of Punjab1975 SCC (Cri) 601, (Para 9).
17. It is also submitted that in site plan position of witnesses from where they saw the incident has not been shown which is fault on the part of investigating officer and benefit of doubt arising out of a faulty investigation also accrues in favour of the accused. In support of his contention he has relied on State of Uttar Pradesh vs. Wasif Haider etc.[2019] 1 SCC (Cri) 701, (Para 24, 25).
18. He further submits that as per prosecution FIR was lodged on 24.2.1987 at 10:30 a.m. but in inquest memo time of information at police station is mentioned as 9:00 a.m. In the inquest memo it is mentioned that papers including FIR were sent for postmortem but according to PW-8 investigating officer dead body was received on 24.2.1987 at 9:00 p.m. and papers were received on 25.2.1987 at 9:25 a.m. Since FIR was not in existence at the time of preparation of inquest memo that is why in the inquest memo time of information at the police station has been mentioned 9:00 a.m. and at the time of receiving dead body papers were not handed over to the doctor. Special report was also received to concerned magistrate on 07.3.1987 and prosecution has failed to explain the undue delay in receipt of the special report by the concerned Magistrate. All these facts indicate that FIR was not lodged at the time alleged and it has no authenticity. In this regard he relies on Balaka Singh and others vs. The State of Punjab 1975 SCC (Cri) 601, (Para 7) and Badam Singh vs. State of M.P. 2004 (2) JLJ 67 (SC), (Para 15, 23)
19. Learned counsel has referred para 8 of the case of Balaka Singh and others vs. The State of Punjab 1975 SCC (Cri) 601, in which it has been held that the prosecution witnesses who can implicate appellants and the four accused equally with regard to assault on the deceased, it is not possible to reject the prosecution case with respect to the four accused and accept it with respect to the appellants. If all the witnesses in one breath implicate the four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to the appellants may have been conveniently made to suit the needs of the prosecution case. If the case against the four accused fails, then the entire prosecution case will have to be discarded. He submits that similar is the instant case in which four accused have been alleged having lathi and two accused having bhala. One accused alleged having bhala has been acquitted by the trial court and the other accused has died. Accused alleged having lathi on the basis of suspicion have been convicted.
20. Lastly, he submits that prosecution has to stand on its own leg to prove the charge against the accused-appellants, from the prosecution evidence charge is not proved and on basis of NCR lodged by accused-appellant Gauri Shankar appellants have been convicted, impugned judgment and order is not sustainable and it is liable to be set aside.
21. Per contra learned A.G.A. submits that it is a case of direct evidence, therefore, motive of the incident is not important. P.W.1 Govind Singh, P.W.2 Vijay Shankar Lal, P.W.4 Satya Narain Singh and P.W.5 Rekha Singh have proved that there was Manas Path. In statement under Section 313 Cr.P.C. accused Gauri Shankar has also stated that Manas Path was going on, thus the fact that at the time of incident Manas Path was going on, is established. In his statement u/s 313 Cr.P.C Gauri Shankar has admitted that he had lodged NCR No 14 u/s 325 (wrongly mentioned in place of 323), 504 IPC on the same day, i.e., on 24.2.87. According to PW-3 Shivanand Pandey NCR No. 14 was registered at 10.15 a.m. In original record NCR is available in which time of incident has been mentioned as 9.00 a.m. In the present case also time of incident is alleged 9.00 a.m. Thus, according to, prosecution and defence, both, incident had occurred on 24.2.87 at 9.00 a.m. He further submits that P.W.1 Govind Singh, P.W.2 Vijay Shankar Lal, P.W.4 Satya Narain Singh and P.W.5 Rekha Singh have proved the incident and presence of the accused at the site. In the inquest memo crime number 55/87 u/s 147, 148, 149, 302 IPC is mentioned, however, in column of date and time of report at the Police Station, starting inquiry and place where the Investigating Officer has gone, time of report at the Police Station is wrongly mentioned as 9.00 a.m. For postmortem dead body was received on 24.2.1987 at 9.00 p.m. and papers were received on 25.2.1987 at 9:25 a.m. First, inquest memo is prepared then it is signed by the witnesses and in the inquest memo it is mentioned that including FIR nine papers were sent. Since crime number is mentioned in inquest memo, therefore, on the basis of wrong entry recorded in the inquest memo regarding reporting time to the police station, receiving dead body for postmortem at 9.00 p.m. on 24.2.1987 and receiving of relevant papers next day, FIR cannot be said to be ante timed. Special report has been received to the magistrate on 07.03.1987 but no question in this regard has been put to P.W.3 Shivanand Pandey, the Head Moharrir and ultimately it cannot be ground for acquittal. Prosecution witnesses have stated that Vishwanath Upadhyaya and Munna Lal had bhala in their hand and they had also assaulted with the bhala but they have not stated that the assault made by the bhala hit the deceased. Munna Lal has died during trial and Vishwantah Upadhyaya has been acquitted. Therefore, on the basis of no injury of bhala was found, prosecution case cannot be doubted. Lathi injury is supported by medical evidence and doctor has opined that injuries are possible on 24.02.1987 at 9.00 a.m. and injuries were sufficient to cause death. Thus, oral evidence is consistent with the medical evidence also. P.W.1 Govind Singh has stated that height of the boundary wall was 5-6 feet whereas Investigating Officer has stated that it was 15 feet but these calculations are hypothetical and cannot affect the prosecution case. So for as submission is concerned that live and empty cartridges were recovered from the spot whereas no accused was armed with fire arm it may be there with a view to mislead the prosecution case. From the prosecution evidence coupled with NCR lodged by accused, incident is proved. Learned trial court has rightly convicted and sentenced the appellants. Therefore, no interference is required by this Court. Sri Shiv Narain Singh, learned counsel for Sri Nikhil Singh son of the deceased submits that PW-5 Rekha is the eye-witness of the incident, investigating officer has contradicted his presence but his statement is wrong. There was a dispute between deceased and accused with regard to fishing lease, that is why he was murdered. Ms. Mandavi Tripathi learned counsel on behalf of Rekha Singh, daughter of the deceased submits that betel mound was next to mustard field and deceased ran from the side of the betel mound, not through the betel mound. There was a dispute with regard to fishing lease. PW-2 Vijai Shankar Lal has stated that deceased was stabbed with the spear. Three blows from the spear were made and spear blows were inflicted from the side and the spear blow hit the thigh. He has further stated that he had also seen the injuries on teeth and eyes.
22. Since learned AGA has submitted that from the prosecution evidence coupled with NCR lodged by the accused Gauri Shankar incident is proved and learned counsel for appellants has submitted that prosecution has to stand on its own leg, therefore, the issue of liability of burden of proof is taken first. To decide the issue it will be apposite to refer the law laid down by the High Court and Supreme Court in this regard.
23. In para 24 of the judgment in case of Md. Alimuddin & others versus The State of Assam 1992 2 Crimes(HC) 506; 1992 0 CrLJ 3287 Hon'ble Gauhati High Court has held as under:
"24. It is one of the fundamental tenets of criminal jurisprudence that the burden of proving the prosecution case squarely lies on the prosecution. This general burden never shifts. Defence is not bound to open its mouth so long as prosecution does not discharge its general burden of proving its case beyond reasonable doubt. Defence version may even be false, because a falsely instituted prosecution may compel the accused to adopt a false defence. So, prosecution can not derive any advantage from the falsely or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt."
24. In para 6 of the judgment in case of Dahyabhai Chhaganbhai Thakkar VS State Of Gujarat, 1964 0 Supreme(SC) 91, the Hon'ble Supreme Court has held as under:
"It is fundamental principle of criminal jurisprudence that an accused in presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in S. 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, S. 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that Act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under S. 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under S. 105 of the Evidence Act, read with the definition of "shall presume in S. 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent; man would act upon them. The accused has to satisfy the standard of a "prudent man . If the material placed before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under S. 105 of the evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in S. 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that even the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity."
25. In case of KM Nanavati vs State of Maharashtra 1961 Supreme(SC) 374, relevant part as held by Hon'ble Supreme Court in para 18 of the judgment is quoted as under:
"In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence : indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence."
26. In para 14 of its judgment Hon'ble Supreme court in case of Digamber Vaishnav and another vs State of Chandigarh (2019) 4 SCC 522, has held as under:
"14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of prosecution can't be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an addition circumstance if other circumstances unfailingly point to the guilt."
27. Thus , from the law laid down in the above referred cases, it is well settled, that in criminal case the general burden of proof unless there is a specific statute to the contrary, squarely rests on the prosecution to prove its case against accused beyond reasonable doubt which never shifts and special burden to prove the circumstances coming under exception rests upon the accused. In proving the case beyond reasonable doubt, prosecution can not take advantage of falsely instituted case or false plea taken by the defence or infirmity in defence. Suspicion, however strong can not take the place of legal proof.
28. In view of the above, the contention of learned AGA is not tenable that from prosecution evidence coupled with NCR lodged by accused Gauri Shankar incident is proved. In proving the charge against the accused, prosecution can not take advantage of NCR lodged by accused Gauri Shankar. Accordingly, prosecution has to prove the charge u/s 147 and 302/34 IPC against the appellants beyond reasonable doubt by its own evidence.
29. Prosecution has produced four witnesses of fact i.e PW-1 Govind Singh resident of village Vishunpura, PW-2 Vijay Shankar Lal resident of village Basdeva, P.W.4- Satya Narain is resident of village Ujayat and P.W-.5 Km Rekha Singh resident of village Vishunpura. None of the witness is resident of village Karo. As per Ext Ka-1 at the time of incident Manas Path was going on and PW-1 Govind Singh in his oral testimony has stated that before two days of the incident Manas Path was going on and from his cross examination nothing has been extracted so that any adverse inference can be drawn. PW-2 Vijai Shankar Lal and PW-4 Satya Narain too have stated that at the time of incident i.e. on 24.2.1987 at 9.00a.m. Manas Path was going on and from their cross examination also nothing has been elicited by defence so that any adverse inference can be drawn. Thus prosecution evidence regarding Manas Path at the time of incident is intact and consistent. This fact is also supported by statement of accused Gauri Shankar made u/s 313 Cr PC in which he has stated that from two days before the incident Manas Path was going but persons mentioned were not present in the Manas Path. In view of the above, it is established that on 24.2.1987 at 9.00 a.m., Manas Path was going on, therefore, contention of learned counsel for the appellants bears no force that none of witness is resident of village Karo that is why story of Manas Path has been introduced.
30. As per Ext Ka-1 as well evidence adduced by prosecution, none of the accused was armed with fire arm but as per Ext Ka-10 proved by PW-8 Sri T N Mishra the investigating officer, four live and one empty, cartridges were recovered from the place of incidence. Since prosecution has not alleged that accused were armed with fire arm, therefore merely on the basis of recovery of live and empty cartridges, prosecution case can not be doubted.
31. Learned counsel for appellants regarding suppression of genesis and origin of the occurrence has referred para 11 of judgment in case of Lakshmi Singh vs. State of Bihar (supra) in which Hon'ble Supreme Court has held as under:
"According to the doctor injury No.1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounded duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence."
32. In other referred case of Bhagwan Sahai and Another vs. State of Rajasthan (supra), in para 8 of the judgment referred by learned counsel for the appellant Hon'ble Supreme Court has held as under:
"8. The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-bye in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case. "
33. In the instant case PW-3 Shivanand Pandey scribe of chik FIR Ext Ka-2 has admitted in his statement that on the basis of oral information of informant Gauri Shankar HCP No 14 had registered a case on the same day at 10.15 a.m. against Ramakant, Jai Singh and Dharmakshad Singh u/s 325, 504 IPC. PW-8. Sri T N Mishra, investigating officer has also stated that on 24.2.87 at 10.15 a.m. NCR No 24/87 was registered by Gauri Shankar against Ramakant and two others. As per copy of NCR available on record on 24.2.87 at 9.00 a.m. Gauri Shankar had gone to worship in the Math at that time Jaisheel and Dhareekshad Singh caught hold of him and Ramakant beat him with lathi from which he had received injury on his head. As per injury report Ext.Kha of Gauri Shankar dated 24.02.1987 one lacerated and three contused injuries have been found as under:
(i). Lacerated wound 1.5 cm. x 0.5 cm. skin deep on head.
(ii). Contusion 30 cm. x 1cm. on upper part back of chest.
(iii). Contusion 11 cm. x 1cm. on the Rt side back of chest 6.5 cm. below the injury no. 2.
(iv). Contusion 1.5 cm. x 0.5 cm. on the Lt side-back of chest of Scapula.
All injuries were simple in nature caused by some blunt object duration fresh. Thus from the injury report of the accused Gauri Shankar it is clear that his injuries were simple in nature.
34. In para 10 of its judgment in the case of Gurwinder Singh alias Sonu and another vs State of Punjab and another (2018) 16 SCC 525, Hon'ble Supreme Court has held as under:
"It cannot be held as an invariable proposition that as soon as the accused received the injuries in the same transaction, the complainant party were the aggressors -it cannot be held as a rule that the prosecution is obliged to explain the injuries and on failure of the same, the prosecution case should be disbelieved. It is well settled that before placing the burden on the prosecution to explain the injuries on the person of the accused, two conditions are to be satisfied:-(i) the injuries were sustained by the accused in the same transaction; and (ii) the injuries sustained by the accused are serious in nature."
35. It is not the defence case that accused Gauri Shankar had received injury in the same transaction of the incident as alleged by the prosecution. Therefore, in view of the law laid down by Hon'ble Supreme Court in the above referred case of Gurwinder Singh alias Sonu and another vs State of Punjab and another supra, prosecution is not obliged to explain the injury of the accused Gauri Shankar.
36. Otherwise, also, in the instant case injuries of accused are simple in nature. In the case of Laxmi Singh vs State of Bihar (supra) referred by learned counsel for the appellant injury no. 1 of accused Dasrath Singh was found grievous in nature and in Bhagwan Sahai and another vs State of Rajasthan (supra) prosecution had not explained the injuries on the person of the accused including death of the father of appellants from which it is clear that the injuries received in the referred cases were grievous in nature. Therefore in the referred cases prosecution was obliged to explain the injuries received to the accused side. In the instant case appellant Gauri Shankar has received simple injuries. Since facts and circumstances of the referred cases differ from the instant case, therefore, the finding of the referred cases are not applicable in the instant case.
37. It is admitted fact that accused Gauri Shankar had lodged NCR against the deceased and two others on the same day disclosing time of occurrence 9.00 a.m. which is the time of occurrence in the instant case also but there is no opportunity to test the veracity of its content because it was not investigated as stated by PW-8 T. N. Mishra in cross examination that he did not investigate the NCR registered by the accused taking permission from the court.
38. Since, accused Gauri Shankar did not receive the injuries in the same transaction of the incident as alleged by the prosecution as well as injuries of the accused being simple in nature and there was no opportunity to test veracity of the contents of NCR lodged by the accused, therefore, on the basis of injuries of accused Gauri Shankar and NCR lodged by him, it cannot be held that prosecution has suppressed the genesis of the case. Accordingly, contention of the learned counsel for the appellants is not tenable that prosecution has suppressed the genesis and origin of the occurrence.
39. To test veracity of the witness learned counsel for the appellants has referred para 39 of the judgment in the case of Govindaraju @ Govind vs. State by Sriramapuram P.S., (supra) in which Hon'ble Supreme Court has held as under:
"39. The injuries were piercing injuries between the intercasal space and the stab injuries damaged both the heart and the lungs. It has been noticed by the High Court that according to PW-1, the victim was not able to talk. The post mortem report clearly establishes injuries by knife. But the vital question is who caused these injuries. It takes some time to cause so many injuries, that too, on the one portion of the body i.e. the chest. If the statement of PW1 is to be taken to its logical conclusion, then it must follow that when the said witness saw the incident, the accused Govindaraju was not stabbing the deceased but, was watching the police coming towards them and had called upon one of the other accused, Goverdhan, to run away as the police was coming. Obviously, it must have also taken some time for the accused to inflict so many injuries upon the chest of the deceased. Thus, this would have provided sufficient time to PW1 to reach the spot, particularly when, according to the said witness he was only at a distance of 30 yards and was on a motorcycle. At this point of time, stabbing had not commenced as the accused were alleged to be chasing the victims. Despite of all this, PW-1 was not able to stop the further stabbing and/or running away of the accused, though he was on a motor cycle, equipped with a weapon and in a place where there were shops such as the VNR Bar and also nearby the conservancy area, which pre-supposes a thickly populated area. Thus, the statement of PW-1 does not even find corroboration from the medical evidence on record. The High Court in its judgment has correctly noticed that the place of incident in front of VNR Bar of Sriramapuram was not really in dispute and having regard to the time and place, it was quite possible, at least for the persons working in the Bar, to know what exactly had happened. With this object, PW-7 was produced who, unfortunately, did not support the case of the prosecution. Having noticed this, we are unable to appreciate the reasons for the High Court to disturb the finding of acquittal recorded by the learned trial Court."
40. Learned counsel in this regard has referred the other case of Balaka Singh and others vs. The State of Punjab, (supra) in referred para 9 of its judgment Hon'ble Supreme Court has held as under:
"9. In order to test the veracity of the prosecution witnesses we find that one of the eye witnesses, namely, Waryam Singh has deposed that Gurmej Kaur, the wife of the deceased, who was drawing water, from the hand pump when the accused came, ran towards Dharam Singh and fell upon his body in order to protect him from receiving further injuries. At this the appellant Balaka Singh is alleged to have given her a barchha blow on her right hand and the appellant Joginder Singh gave a barchha blow on the left buttock of Gurmej Kaur. According to the evidence of this witness the two appellants Balaka Singh and Joginder Singh appear to have assaulted Gurmej Kaur with a sharp-cutting instrument, namely, barchha and spear. This version is completely falsified by the medical evidence of Dr. Mohinder Singh who examined Gurmej Kaur and who stated in his evidence that all the injuries on Gurmej Kaur were caused by blunt weapon. Moreover out of the six injuries which Gurmej Kaur received on her body not a single one could be caused by a sharp- cutting instrument because there was no penetrating or incised wounds. The injuries were either contusions, abrasions or lacerated wounds. While the witness Waryam G- Singh says that the accused Joginder Singh had given a barchha blow on the left buttock of Gurmej Kaur, according to the medical evidence, it was a lacerated wound deep on the upper and outer part of the leftbuttock. This, therefore, clearly demonstrates the extent to which the witnesses could have gone in order to implicate all the accused."
41. Before adverting to evidence for purpose of testing veracity of the witness, it would be proper to refer to Modi Medical Jurisprudence and Toxicology, 23rd Edition Reprint 2011, according to which for occurrence an abrasion, there must be pressure of an object and it should move on the skin to form an abrasion. Bruise or contusions are injuries which are caused by a blow from a blunt weapon, such as a club, lathi, whip, iron bar, stone, ball, fingers, fist, boots or by a fall, or by crushing or compression. These are accompanied by a painful swelling and crushing or tearing of the subcutaneous tissues without solution of continuity of the skin.
42. As per Ext. Ka-1 accused Gauri Shankar alias Bachchan Yadav, Shivshankar Yadav, Vishwanath Upadhay, Munna Lal @ Sachidanand Lal, Ramashish Yadav and Ramakant Yadav armed with lathi and bhala assaulted deceased Ramakant on account of which he died. The incident was witnessed by informant PW-1 Govind Singh, PW-2 Vijai Lal, PW-4 Satya Narayan Singh, Rambaran Chaudhary and many others. Informant PW-1 Govind Singh in his oral testimony has stated that accused Gauri Shankar @ Bachchan Yadav, Ramashish, Ramakant, Shivshankar had lathi and Sachidanand Lal and Vishwanath Upadhay had bhala in their hand and surrounding the deceased near moonj of Sarpat crossing the bhita of Vishwanath Barai accused assaulted him with lathi and bhala. Receiving the injury his brother fell down, after fleeing away of accused persons they saw that Ramakant has died. In cross-examination he has stated that he had seen the injuries on head, neck and arms on the body of the deceased Ramakant Singh. There was a mark of cut on the neck, he did not measure how much the neck was cut but it was bleeding. He did not see from which arm it was cut. He has further stated that in the assault bhala was used he did not see any stab wound, he cannot tell about the cut marks were of lathi or bhala. He has specifically stated that in the assault lathi and bhala were used and he had also seen a mark of cut on the neck which was bleeding also but as per medical report Ext. Ka-4 proved by PW-7 Dr. G.C. Updhayay no cut mark injury either on neck or on any other part of the body has been found, it is also considerable that on assaulting by six person from lathi and bhala only two lacerated wound will not occur and abrasion injuries are not possible on assault by lathi and bhala, thus, the oral evidence is not supported with the medical evidence, the injuries found in the medical report are not probable in the alleged manner of assault, demonstrate that actually the witness did not see the incident that is why he has made such a statement. Accordingly, his evidence does not inspire confidence that he was an eye-witness of the incident.
43. Prosecution has examined the other named witness in the FIR PW-2 Vijay Shankar Lal who has stated that at the time of incident Ramakant Singh was living in a dhaba of Mathia and his daughter Rekha was also with him. He heard a noise when he was sitting in the Manas Path, on which he along with Govind Singh, Satya Narayan Singh, Rambaran Chaudhary rushed to the dhaba and saw that accused Gauri Shankar @ Ram Bachan, Vishwanath Upadhayay, Munnalal @ Sachidanand Lal, Shiv shankar, Ramakant and Ramashish were trying to break open the door of Ramakant, they were abusing and exhorting him to come out. Munna Lal and Vishwanath had bhala and remaining had lathi in their hand when the door was not opened then at once they rushed towards East side turning from South side of the dhaba, witness Vijai Shankar Lal, Govind Singh, Satya Narayan Singh, Rambaran Chaudhary also ran behind the accused. Ramakant was running towards East turning from South side house of Sitaram and when deceased Ramakant reached North-East corner near the bhita of Vishwanath Barai, the accused started assaulting him with lathi and bhala. In cross-examination he has stated that on falling the deceased, he had seen assaulting with bhala. He has specifically stated that 2-3 bhala blows were inflicted and he had seen hitting 2-3 bhala blows. He has further stated that from left side bhala blows were given and all the bhala blows hit the thigh. He has also stated that he had seen the injuries on teeth and eyes. As per medical evidence no bhala injuries on the thigh has been found. On teeth and eye also no injury has been found. Thus, oral evidence of this witness also is not corroborated with the medical evidence. Oral evidence not finding corroboration with the medical evidence, demonstrate that this witness also actually did not see the incident that is why he has made such a statement. Further in examination-in-chief he has stated that on 24.2.1987 at 9:00 a.m. Manas Path was going on and along with him 5-6 persons, were also present but in cross-examination he has stated that at 8:30 a.m. he left the Math, if it was so then at 9:00 a.m., i.e. at the time of incident he would not have been present there, therefore, at the same stage his statement regarding his presence becomes contradictory which also indicates his presence doubtful at the time of incident. It is also considerable that as stated by this witness, the injuries found in the medical report are not compatible with the assault made by the accused. In view of the above discussion, evidence of this witness also does not inspire confidence regarding him to be an eye witness.
44. Prosecution has examined PW-4 Satya Narayan Singh also as an eye-witness of the incident who on repeated asking about who came at 9:00 a.m. and what happened he kept mum and on asking which accused came then he replied Bachan @ Gauri Shankar, Shivhankar, Ramakant, Vishwanath and Munna Lal, came. He did not name accused Ramashish and on asking which arms were in whose hand he replied that they had lakda (wooden piece). He further stated that Shivshankar and Rambachan had lakda and Munna Lal had bhala. On asking by government counsel he has stated that Vishvanath had bhala in his hand. On further asking about what happened after they came on the door and struck the door, he replied that all persons ran away crossing the boundary. Again on asking about who assaulted whom he has stated that Bachan, Vishwanath, Munna Lal and after a minute stated Ramakant assaulted. The whole statement made by this witness in examination in chief itself creates a shadow of doubt about him to be witness of the incident. This witness has set-up a new case of Lakda being in the hands of accused in place of lathi. He has also not taken the name of accused Ramashish and about assault he has taken the name of four accused only. He has also stated that all the persons ran away crossing the boundary while according to FIR and other witnesses the accused turning from the south side dhaba rushed towards east side. Thus his statement is neither consistent with the FIR nor consistent with the evidence of PW-1 Govind Singh and PW-2 Vijay Shankar Lal. In view of the above, the evidence of this witness also does not inspire confidence to be eye witness of the incidence.
45. Prosecution has examined PW-5 Km. Rekha Singh, fourth witness, also as eye-witness of the incident who has stated that on 24.02.1987 she had gone to the dhaba of Mathiya for delivering milk to her father at about 8:30 a.m. she heard sound for beating Ramakant then she locked the door. Her father jumping East-side boundary wall fled, the accused Gauri Shankar, Shivshankar, Ramashish, Ramakant, Munna Lal and Vishwanath Upadhayay started beating the door with lathi and on not opening the door all the accused turning from South chased her father running towards East, then she came out opening the door and saw that the accused were chasing her father and to rescue her father Govind Singh her elder father (i.e. uncle), Vijay Shankar, Satya Narayan Singh and Bachhan Chaudhary were following the accused persons, she also followed them. Munna Lal, Vishwanath had bhala, Gauri Shankar, Vijay Shankar, Ramashish and Ramakant had lathi in their hand, reaching to moonj of Sarpat towards East-North bhita of Vishwanath Barai, Ramashish gave a lathi blow on the leg of her father again he gave another blow on her father's head on which he fell down then all the accused started beating him with their lathis. When accused were beating her father, apart from her, the incident was witnessed by her elder father Govind Singh, Vijay Shankar, Satya Narayan Singh and Bachhan Chaudhary. This witness has stated that Munna Lal and Vishwanath had bhala in their hand but while assaulting her father, in chief examination itself she has stated that Ramashish gave first blow of lathi on leg then other blow on head and when he fell down all the accused assaulted by lathi while accused Munna Lal and Vishwanath had bhala in their hand. If accused Munna Lal and Vishvanath had bhala in their hand and they had gone with an intention to kill, then they would have used the weapon in their hand in natural fashion of its use. On the other hand P.W.1 Govind Singh and P.W.2 Vijai Shankar Lal have stated that the accused had given bhala blow. Thus, her statement does not appear natural one. Her statement is also not consistent with the evidence of PW-1 Govind Singh and PW-2 Vijai Shankar Lal with regard to bhala and lathi blow. As per medical report, abrasion on the right arm, abrasion on right ankle joint, abrasion on the back of thigh and abrasion on right side face below the right eye have been found but in view of Modi Medical Jurisprudence referred above, on giving lathi blow only abrasion injury will not occur. Thus, the injuries found in medical report as stated by her, are not compatible with the assault made by the accused persons. In cross examination she has stated that she could not see who was assaulting by bhala and who was assaulting with lathi which further creates doubt as to whether she had witnessed the incident. It appears that when no injury of bhala was found in medical report then the version has been changed by the witness regarding giving lathi blow by all the accused. In cross-examination she has stated that she had told the investigating officer that Ramashish had given lathi blow on the leg if this statement is not recorded by the investigating officer, then she cannot tell any reason, which indicates that she has given such statement first time in court that Ramashish gave lathi blow in the leg of her father. Similarly she has also stated that she had not told the investigating officer that Munna Lal had assaulted by lathi but she had told that Munna Lal had no lathi, he had bhala which indicates that this witness has again stated first time in court that Munna Lal had bhala in his hand. Km Rekha has specified that first and second lathi blow was given by Ramashish to the deceased. According to her statement, her elder father and other witnesses were following the accused ahead of her, but they do not specify the role of assault by the accused persons. The statement of the witness as discussed above demonstrate that this witness also did not see the incident that is why she has given such a statement. Evidence of this witness is also not consistent with the evidence of PW-1 Govind Singh and PW-2 Vijai Shankar Lal. Apart from it, PW-1 Govind Singh in cross-examination at page 23 of the paper book has stated that the incident was witnessed by Vijay Lal, Satya Narayan Singh and Bachhan, they saw that his brother had died at that time his brother's daughter Rekha and his nephew Akshay also arrived which too indicates that witness Rekha did not see the incident. In view of the above, the evidence of this witness also does not inspire confidence.
46. In the instant case it is notable that as per medical report Ext Ka-4 deceased Ramakant had received four abrasion injuries and two lacerated wounds. In view of the above referred Modi Medical Jurisprudence and Toxicology if all the six accused had assaulted the deceased with bhala and lathi as stated by witnesses, then only two lacerated wounds are not probable and on giving blow by bhala and lathi abrasion injuries will not occur. From bhala blow piercing or incise injury will occur. In the instant case piercing or incised injury has not been found which demonstrate that the manner of occurrence which has been brought forth by the prosecution is not tenable.
47. Thus, considering the evidence available on record as discussed above, ocular evidence is not consistent with the medical evidence, evidence of prosecution witnesses do not inspire confidence, keeping in view the opinion of Hon'ble Supreme Court in the case of Balaka Singh and others vs. The State of Punjab, (supra) the injuries found on the body of the deceased demonstrate that the manner of the incident as alleged by the prosecution does not appear probable one which creates doubt regarding the witnesses to be the eye-witness of the incident.
48. The learned counsel for the appellant has referred the case of State of Uttar Pradesh vs. Wasif Haider etc., (supra) with regard to benefit accruing due to faulty investigation.
49. In the referred case four accused were specifically identified from a group of 200-300 rioters with 100% perfection without mention of any distinction marks, test identification parade was also conducted after a delay of 55 days and explanation for delay was also not offered. Identity of accused was also not concealed, F.S.L report was not compatible with each other and place of occurrence was also not ascertained with precision, therefore, Hon'ble Supreme Court held that investigative lapse has fortified the presumption of innocence and accused were held entitled for benefit of doubt.
50. In referred para 24 and 25 Hon'ble Supreme Court has held as under:
"24. In the present case, the cumulative effect of the aforesaid investigative lapses has fortified the presumption of innocence in favor of the accused-respondents. In such cases, the benefit of doubt arising out of a faulty investigation accrues in favor of the accused.
25. Although we acknowledge the gravity of the offence alleged against the accused-respondents and the unfortunate fact of a senior official losing his life in furtherance of his duty we cannot overlook the fact that the lapses in the investigation have disabled the prosecution to prove the culpability of the accused. The accused cannot be expected to relinquish his innocence at the hands of an inefficacious prosecution, which is ridden with investigative deficiencies. The benefit of doubt arising out of such inefficient investigation, must be bestowed upon the accused."
51. In the instant case, as per spot map Ext. Ka-13 proved by PW-8 Sri TN Mishra, Investigating Officer, place A has been shown, the place of incident, place C has been shown, dhaba of the Math and by round mark running of deceased and by dash mark chasing by accused has been shown. Mark B has been shown from where the deceased ran away jumping the boundary wall, in the spot map position of witnesses has not been indicated. The spot map has been prepared on the date of incident itself, i.e on 24.02.1987. If the witnesses had seen the incident then the place from where they had seen the incident should have been marked, which is a lapse on the part of investigating officer.
52. In the instant case, it is also notable that in the spot map Ext Ka-13 from the main door of the dhaba accused have been shown running and running from Southern wall of house of Sitabhar towards North up to end of the Northern wall, then they turned towards South and deceased also ran from the Northern wall side of house of Sitabhar towards South, thereafter both ran towards East side and turning after some distance towards North and again turning towards East reached the place of incident. If it actually happened so, then at the corner of North-East wall of Sitabhar from where, both, deceased and accused were running parallel towards South accused would have caught the deceased at the corner or at some distance from there and if deceased had already left the Northern corner place situated adjacent to the house of Sitabhar, then there was no reason for the accused to turn from Southern side to North side up to almost end of the Northern wall of Sitabhar, which also creates doubt about its authenticity, being inherently improbable.
53. In view of above discussion,keeping in mind the opinion of the referred case of State of U.P. vs. Wasif Haider etc., (supra) inherent improbability in the map and lapse in the investigation also casts a doubt on the prosecution case and on account of above a benefit accrues in favour of accused.
54. Learned counsel for the appellants has referred the case of Balaka Singh and others vs. The State of Punjab, (supra) in support of his contention that FIR was not registered at the alleged time. In referred para 7 of the judgment Hon'ble Supreme Court has held as under:
"7. Another finding which demolishes the entire edifice and fabric of the prosecution case is that the F. I. R. itself was not written at 10 P. M. as alleged by the informant Banta Singh but it was written out after the inquest report was prepared by the A. S. I. and after the names of the four accused acquitted by the High Court were inserted in the inquest report. If this is true then the entire case of the prosecution becomes extremely doubtful. The High Court has also derived support from another important circumstance to come to the conclusion that the F.I.R. was not written at 10 P. M. as alleged by the prosecution but after the preparation of the inquest report at about 2-30 A.M. The High Court points out that according to the prosecution the special report reached the Ilaqa Magistrate at 11 A. M. on September 2, i. e. more than 12 hours after the F. I. R. was lodged at the police station whereas it should have been delivered to the Ilaqa Magistrate during the night or at least in the early morning. Counsel appearing for the appellants submitted that under the High Court Circulars and the Police Rules it was incumbent upon the Inspector who recorded the F. I. R. to send a copy of the F. I. B. to the Ilaqa Magistrate immediately without any loss of time and the delay in sending the F. I. R. has not been properly explained by the prosecution as rightly held by the High Court. It is, therefore, clear that the F. I. R. itself was a belated document and came into existence during the small hours of September 2, 1966. Indeed if this was so, then there was sufficient time for the prosecution party who are undoubtedly inimical to the accused to deliberate and prepare a false case not only against the four accused who have been acquitted, but against the other five appellants also. The High Court also found that the best person to explain the delay in sending the special report to the Ilaqa Magistrate was the Police Constable who had carried the F. I. R. to the Ilaqa Magistrate but the Constable has not been examined, by the prosecution. On this point the High Court observed as follows :
"The delay with which the special report was made available to the Ilaqa Magistrate is indicative of the fact that the first information report did not come into existence probably till about sunrise by when the dead body had already been dispatched for the purpose of post-mortem examination to Patiala along with the inquest report, so that the Investigating Officer was no longer in a position to make alterations in the body of that report and all that he could do was to add later on the names of the said four appellants to its heading."
"This finding of the High Court is based on cogent materials and convincing reasons, but unfortunately the High Court has not considered the effect of this finding on the truth of the prosecution case with regard to the participation of the appellants. In our opinion, in view of the finding given by the High Court it has been dearly established that the F. I. R. was lodged not at 10 P. M. as alleged by the prosecution but some time in the early morning of September 2, 1966. If this was so, then the F. I. R. lost its authenticity. If the prosecution could go to the extent of implicating four innocent persons by inserting their names in the inquest report and in the F. I. R. which was written subsequent to the inquest report they could very well have put in the names of the other five appellants also because they were equally inimical to the prosecution party, and there could be no difficulty in doing so because it is found by the High Court that all the prosecution witnesses belonged to one party who are on inimical terms with the accused."
55. Learned counsel with regard to FIR was not registered at the alleged time, has referred another case of Badam Singh vs. State of M.P., (supra). In referred para 15 and 23 Hon'ble Supreme Court has held as under:
"15. One other fact which is worth noticing at this stage is the despatch of the special report from the police station, and its receipt by the Ilaqa Magistrate. As noticed earlier, the occurrence took place at about 5.30 p.m. and the matter was reported to the police at 11.15 p.m. The evidence produced shows that the special report was despatched on 27.9.1986 (Ex. P-17) to the Judicial Magistrate, Class I at Pichhor. The same was received by the Magistrate on 6.10.1986 as per Ex. P-18. The Investigating Officer was questioned on this aspect of the matter but he stated that he had given the special report to the Head Constable Moharrir to send it to the concerned Magistrate, and he had entrusted him with the responsibility of taking the report to the concerned Magistrate. When questioned, he categorically replied that he could not tell why copy of the said report Ex. P-18 reached the Magistrate on 6.10.1986. He denied the suggestion that a fake entry about despatch of the report to the Magistrate was made. From the evidence on record it cannot be denied that the report was received by the concerned Magistrate 10 days after it was allegedly despatched."
"23. The prosecution, as we have noticed earlier, has also failed to explain the delay in receipt of the special report by the concerned Magistrate. As is apparent from the evidence on record the special report despatched on the night intervening the 27th and 28th September, 1986 reached the concerned Magistrate on 8.10.1986. The Investigating Officer categorically stated that he was in a position to give any explanation for it."
56. As per FIR Ext. Ka-2 incident had occurred on 24.02.1987 at 9:00 a.m. and information at the police station was given on the same day at 10:30 a.m. According to inquest memo Ext. Ka-5 report at the police station was given at 9:00 a.m. on 24.02.1987, inquest was started at 11:30 a.m. and ended at 14:30 p.m. In inquest memo Ext. Ka-5 it is also mentioned that dead body was dispatched for postmortem report along with 11 papers including FIR. As per police Form-13 Ext. Ka-9 dead body was received on 24.02.1987 at 9:00 p.m. and papers were received on 25.02.1987 at 09:25 a.m. Postmortem was conducted on 25.02.1987 at 02:00 p.m. PW-8 T N Mishra investigating officer has stated that papers were received by doctor on 25.02.1987 at 09:25 a.m. and in police Form-13 date of reaching dead body is mentioned, in date of 24.02.1987 there appears some overwriting or dispersion on 4. He has also stated that he did not record the statement of the police who carried the dead body for postmortem. The police who carried the dead body for post-mortem was the best person to explain why the dead body was received on 24.02.1987 at 09:00 p.m. and papers were received at 09:25 a.m. On 25.02.1987, but prosecution has withheld him, which is also a lapse on the part of investigating officer and it creates a doubt as to sending the papers along with the dead body for postmortem.
57. According to Investigating Officer after registration of the case he recorded statement of informant Govind Singh thereafter along with force and informant reached the place of incident and prepared inquest memo of the deceased Ramakant. Generally, inquest memo is prepared by appointing panches among the persons present on the spot and it also finds mention in the inquest memo but in the instant case on going through the inquest memo Ext Ka-5 it would be clear that there is no mention how the panches have been appointed. As per inquest memo Ext. Ka-5 Kamlesh Singh, Sunil Kumar Upadhyay, Satyanarain Singh, Vijay Shankar Lal and Ramanand Singh were appointed panch for preparing inquest memo. Informant Govind Singh was also present at the time of inquest memo but he was not appointed panch which also creates a doubt regarding his presence at the time of preparation of inquest memo.
58. In the inquest memo there is mention that in opinion of panches death of the deceased was caused by causing injury with bhala and lathi while one of the panch PW-2 Vijai Shankar Lal has stated in his cross-examination that he made signature on the inquest memo at 11-12 a.m., at that time inquest memo was kept filled and on asking of investigating officer he put his signature on it. He has further stated that inquest memo was not prepared before him. When he put his signature dead body was sealed which demonstrate that his opinion was not taken about the cause of death of the deceased. This fact speaks in volume about veracity of inquest memo.
59. It is also noticed that as per inquest memo 12 injuries were found on the dead body as under:
(i). Four blooded injuries on shin of right leg.
(ii). sic.
(iii). Blooded injury on right arm.
(iv). Contusion interior side of left arm.
(v). Blooded injury in right eye.
(vi). Blooded injury on neck below right cheek.
(vii). Blooded injury above right eye.
(viii). Blooded injury on head above right ear.
(ix). Blooded injury on face and nose.
(x). Injury sic.
(xi). Pressed mark on front neck.
(xii). On right thigh inner side blooded injury.
60. As per postmortem report Ext Ka-4 only six injuries have been found and no injury on right leg shin, nose, right eye and neck have been found. In this regard on asking by defence about getting explanation from the doctor for finding only six injuries, investigating officer has stated that he forgot it. Thus inquest memo contradicts postmortem report and the contradiction also creates a suspicion on proper preparation of inquest memo.
61. PW-3 Shivanand Pandey in cross-examination has admitted that he did not obtain signature of informant on chik FIR Ext. Ka-2. He has also stated that in the note column of FIR it is written that signature or thumb impression should be obtained of the informant at the end but signature of informant has not been obtained in chik FIR.
62. In view of the above, when we bestow our consideration cumulatively in the matter, i.e., mentioning of reporting time in the inquest memo 09:00 a.m., not obtaining signature of the informant on the chik FIR after registration of the case, not appointing informant panch for inquest memo, as per inquest memo Ext Ka-5, investigating officer found 12 injuries but as per postmortem report Ext Ka-4 only six injuries were found, preparation of inquest memo without presence of PW-2 Vijai Shankar Lal and obtaining his signature after sealing the dead body, dead body was received to the doctor on 24.02.1987 at 09:00 p.m. but papers were handed over to him at 09:25 a.m., all these facts demonstrate that although after information to the police station, inquest was conducted and dead body was dispatched for postmortem but FIR was not in existence and investigating officer was marking time with a view to decide about the shape to be given to the case and eye witness to be introduced that is why in the inquest memo it has been mentioned that including FIR 11 papers were sent for postmortem but it were not handed over to the doctor at the time of receiving dead body by the doctor. Accordingly, we do not find force in the contention of learned AGA that reporting time in the inquest memo was wrongly recorded.
63. As per chik FIR incident occurred on 24.02.1987 at 09:00 a.m. its information was given at police station on the same day and it has been received by concerned magistrate on 27.03.1987. PW-8 Investigating Officer on asking when FIR was sent to head quarter or magistrate from the police station, he has replied that it is sent by head moharrir he cannot tell of which responsibility is not on police station officer. He has further stated that he had sent special report but without looking GD he cannot tell, then he was directed to tell the number in the afternoon by bringing the GD but on going through his whole testimony it is borne out that no such number has been told by him regarding sending special report. Thus the delay in sending special report to the concerned magistrate is not explained.
64. In the instant case according to chik FIR Ext. Ka-2 all the accused assaulted deceased with lathi and bhala having in their hand. In oral testimony PW-1 Govind Singh as well as PW-2 Vijay Shankar Lal, PW-5 Kumari Rekha Singh have specified that accused Gauri Shankar @ Bachchan Yadav, Ramashish, Ramakant, Shivshankar had lathi and Sachidanand Lal @ Munna Lal and Vishwanath Upadhyay had bhala in their hand. As per postmortem report no bhala injury has been found, two lacerated wound caused by blunt object have been found. On going through the whole evidence on record it is not distinguishable, who is author of those two lacerated wound except one lacerated wound as per P.W.5 Km. Rekha, might have been caused by accused Ramashish. The alleged eye-witnesses in above discussion have not been found eye-witnesses of the incident. Accused Vishwanath assigned role of bhala has been acquitted. In view of the law laid down by Hon'ble Supreme Court in Balaka Singh and others vs. The State of Punjab (supra) referred by the learned counsel for the appellants, we find that the witnesses who can implicate the appellants and two other accused with regard to assault on the deceased it is not possible to reject the prosecution case with respect to two accused and accept it with respect to the appellants.
65. It is not disputed that accused Gauri Shankar had lodged NCR no. 14/87, u/s 323, 504 (wrongly mentioned 325). It is evident from the statement of PW-3 Shivanand Pandey, PW-8 investigating officer and reply made by accused Gauri Shankar in statement u/s 313 Cr.P.C of question no. 16. Although the NCR lodged by the accused Gauri Shankar against the deceased and two other persons was not investigated and injury caused to him was also not of grievous nature but in the NCR lodged by the accused it is alleged that he had gone at the Math to worship where the incident occurred at 9.00 a.m. and in the instant case also incident has occurred at 9.00 a.m. but at different place, which creates strong suspicion against the accused Gauri Shankar to be involved in causing incident but suspicion however strong may be it can not take the place of proof as held by Hon'ble Supreme Court in Digamber Vaishnav and another vs State of Chandigarh, (supra). If for the sake of argument it is assumed that incident occurred at 9.00 a.m. with the accused Gauri Shankar at the Math and in that sequence deceased Ramakant was killed then prosecution should have disclosed it as alleged by the prosecution that witnesses were present in the Math, where, Maanas Path was going on and if it was falsely lodged, investigating officer should have investigated and unearthed the truth of it but he did not investigate the NCR. It is well settled that benefit of doubt always goes in favour of accused, therefore, in both the situations i.e., not coming fairly with the prosecution story or not going to the reality of NCR by investigating officer, benefit will go in favour of accused.
66. PW-1 Govind Singh has stated that his brother Rmakant had taken on lease Gaon Sabha pond for fishing. Accused on pretext of drinking water and bathing their animals were causing damage to the fishes, that is why his brother had forbidden them due to which accused Gauri Shankar @ Bachchan Yadav, Ramashish Yadav, Ramakant Yadav, Vishvanath Upadhyay, Sachchidanand Lal, Munni Lal and Shiv Shankar Yadav were bearing enmity with his brother. He has also stated that he has no knowledge that deceased Ramakant Singh had instituted a case U/S 379 against Sipahi Bhar for stealing fish. State vs Jayram Village Case had also proceeded before this incident and deceased Ramakant Singh was witness in the case. A case u/s 436 IPC was instituted by Vijay Bahadur Singh against Madan Yadav in which property of the deceased was attached and this witness was witness in the case, in which accused were acquitted. He has also stated that deceased Ramakant Singh had a gun which was deposited in the case u/s 307 IPC because there was allegation against boys of the family for keeping illegal carbine. It has been also stated that deceased Ramakant Singh had instituted a case u/s 379 IPC against Ramchandra in which Rambaran was a witness, which was also instituted before this incident which indicates that deceased had litigation of criminal cases from others also, therefore, grievance of other persons against the deceased also cannot be ruled out. In case of enmity with others, there is a possibility of causing the incident by other inimical persons also.
67. In view of the facts and circumstances of the case and evidence available on record as discussed above we find that prosecution evidence is scattered, witnesses produced by prosecution do not inspire confidence that they are eye-witnesses of the incident, oral testimony is also not consistent with the medical evidence, manner of assault as alleged also does not correspond with the injury of deceased found in medical report, there are lapses on the part of investigating officer also. Prosecution has miserably failed to prove the charge against the appellant-accused. Learned trial court has not passed the judgment and order evaluating the evidence available on record in proper perspective, therefore, it is perverse and not sustainable accordingly, it is liable to set aside.
68. Appeals are allowed, judgment and order recorded by learned trial court under appeal dated 05.2.2001 is set aside. Appellants are acquitted of the charge framed against them. They are on bail, their bail bonds are discharged. Appellants are directed to comply the provision of section 437-A Cr.P.C. to the satisfaction of the court concerned.
69. Registry is directed to send the order and original record to the court below for compliance.
Date: 29.05.2020 Jitendra/MAA