Allahabad High Court
Ram Naresh Singh (In Jail) vs State Of Uttar Pradesh on 20 July, 1996
Equivalent citations: 1997CRILJ2255
JUDGMENT N.S. Gupta, J.
1. Accused Ram Naresh Singh, who was convicted by judgment and order dated 21 -9-1991 by Sri C.P. Misra, Special Judge, Dacoity Affected Area, Kanpur Dehat under Sections 302 and 394, I.P.C. and was sentenced to undergo imprisonment for life under the first count and ten years' R.I. under the second count has come up in appeal.
2. The prosecution sotry briefly stated is as under:
Accused appellant Ram Naresh Singh was employed in Police Force at Banda. He was resident of village Rajapur P.S. Ghatampur District Kanpur Dehat. Deceased Shatrughan Singh was also resident of the same village. On 21-12-1989, the accused appellant had come to his village. Me had taken the deceased with him to his house. Deceased Shatrughan Singh was a well to do man having 20-22 Bighas of land and was also carrying on the business of money lending. He was licensed holder of gun. When the deceased had gone with the accused, he was having his gun with him. He was also having some money with him. The deceased was having money dealings with the accused to the extent that he deposited a sum of Rs. 25000/- with the accused. The prosecution claimed that at about 5 p.m. on 21-2-1989, the accused appellant committed the murder of the deceased on the Chak Road in village Rajapur P.S. Ghatampur District Kanpur Dehat, by firing at the deceased by means of the gun. He also robbed the double barrel gun of the deceased as also a sum of Rs. 13000/- from the person of the deceased. This incident was witnessed by Ram Prakash PW-1, nephew of the deceased, his father Kamta Singh, Bad an Singh PW-2. Rakesh Singh PW-3.
3. A written report Ex. Ka-2 about this incident was lodged by Ram Prakash PW-1 on 21 -12-1989 at about 8.25 p.m. at P. S. Ghatampur, District Kanpur Dehat. The investigation of the case was taken up by S.I. Rajendra Singh Parmar PW-7. He recorded the statement of the complainant on 21 -12-1989 and rushed to the scene of occurrence on 22-12-89. On 22-12-1989 S.I. Rajendra Singh Parmar inspected the scene of occurrence and prepared site plan Ex. Ka. 11. He recovered blood stained and simple earth from the scene of occurrence and prepared the recovery memo about the same. He prepared inquest report of the dead body of the deceased and sent the same for post mortem examination. Further investigation into the matter was conducted by Sri Dharam Singh S.H.O. PW-8. He recorded the statement of Kamta Singh, Rakesh Singh, Dadan Singh and Ram Kishore on 23-12-89. He also recorded the statements of constable Rakesh Kumar and Head constable Rajendra Prasad. He recorded the statement of accused Ram Naresh Singh on 8-1 -90 and after concluding his investigation submitted a chargesheet against the accused.
4. Autopsy on the dead body of the deceased was conducted by Dr. Anil Kumar PW-6 on 22-12-89 at 3 p.m. He found the following ante-mortem injuries on the body of the deceased:
1. An abrasion on the nose.
2. A fire arm wound of entry 4 cm x 3 cm x chest cavity deep on right side back 8 cm right angled. Blackening and scorching present. Diverted obliquely upward.
3. A fire arm wound of entry on left hip 2.5 cm 2 cm x bone deep. Blackening and scorching present, diverted towards right side. 4 wadding pieces in liver, 5 in lung and one near wound No. 3 25 pallets recovered- 10 from liver, 7 from lung and 6 from wound No. 3.
The deceased was aged about 45 years and about one day had passed his death. The body was heavy built, rigormortis was present. The eyes and mouth half open and blood was coining from nostril and mouth. The Doctor found 7th and 8th rib ruptured. Right lung was also ruputured. Both chambers of the heart were empty. Small and large intestine were half full with gases and half full with faecal matter. Liver and gall bladder were ruptured, 10 pallets and 4 wads pieces were present. In the opinion of the doctor, the death was caused due to shock and haemorrhage, due to fire arm wounds.
5. Charges under Sections 302, I.P.C. and 394, I.P.C. were framed against the accused. The accused pleaded 'not guilty' during trial.
6. After needful trial into the matter, the accused appellant was convicted and sentenced as aforesaid; hence the appeal.
7. We have heard Sri J.S. Sangar, learned counsel for the appellant & Sri Prakash Singh A.G.A. for State, considered their contentions and have gone through the facts and circumstances of the case.
8. Three witnesses of fact, namely, Ram Prakash PW-1, who is nephew of the deceased, Badan Singh PW-2 and Rakesh Singh PW-3 were examined by the prosecution before the Court below.
9. It was argued by the learned counsel for the accused appellant that occular evidence of all these witnesses, who have all clearly and consistently stated that the accused appellant Ram Naresh Singh was responsible for firing at the deceased by means of the gun of the deceased and committed murder and further that PW-1 Ram Prakash and PW-2 Badan Singh, who have seen the accused appellant robbing a sum of Rs. 130007-from the person of deceased is inconsistent with the medical evidence on record and, therefore, the learned Court below grossly erred in convicting and sentencing the accused appellant. There appears to be force in this contention.
10. Dr. Anil Kumar PW-6 is the Medical Officer who conducted autopsy on the dead body of the deceased and found the injuries noted above on the dead body of the deceased. The circumstance that the blackening and scorching was present around the aforesaid wounds and further that the direction of the injury No. 3 was upward go to prove that the assailant had opened fire upon the deceased from close range and in such a position that the assailant should have been on a lower strata and the deceased should have been on upper strata. PW-1 Ram prakash while giving version of the occurrence has stated that when he and his associates, namely, Badan Singh PW-2 and Rakesh Singh PW-3 reached near Kathal tree near the scene of occurrence, he saw that his uncle deceased Satrughan Singh came out from the house of the accused appellant Ram Naresh Singh for making urine. He stated that his uncle sat down. The accused appellant opened fire upon the deceased. It would thus be seen that when the accused appellant had opened fire on the deceased, the deceased was sitting and the accused was standing. If it was a fact that the accused appellant had opened fire upon the deceased while the latter was sitting and the former was standing then the direction of the injuries causel should have been downwards and not upwards. The circumstance that the direction of the injury no. 1 which has proved fatal to the deceased was obliquely upward and not downward belies the case of the prosecution. Ram Prakash PW-1 stated that his uncle deceased, was making, urine on the southern end of the house the accused had opened fire on the deceased from 6-7 hands & after making first fire the accused appellant made second fire from that very place, from which he had made first fire He specifically stated that at the time of first fire, the deceased was making urine. He further stated that after sustaining first fire, the deceased tried to get up but the accused appellant made second fire and as soon as the deceased had tried to get up for about two Balist he sustained second gun shot fire. He stated that after.
...? sustaining the second shot, the deceased had fallen Chit, meaning thereby that back was towards earth and the face was towards sky. he stated that at that time the accused had removed some thing from the pocket of the deceased. If it was a fact that after sustaining two gun shot fires the deceased had fallen down in Chit position. We fail to understand as to how the injury over nose of the deceased was caused. The circumstance that an abrasion on the nose of the deceased was cused to this extent that nasal bone of the deceased was fractured and in this manner the position should have been that after sustaining the gun shot injury the deceased had fallen down in Patt Position, meaning thereby that his face should have been downwards towards earth and the back towards sky. PW-2 Badan Singh also stated that when the first fire was made at the deceased, the deceased was sitting. He stated that after the first fire, the deceased's hands taggered and fell down, then the second fire was made. He stated that the deceased staggered on the Chak Road. He was unable to state as to in which side the deceased had staggered. He was unable to state that after being staggered, the deceased was in Chit position or not. He was unable to state as to whether the deceased had fallen down from the side of mouth. This witness could not state as to how the injury on the nose of the deceased was caused PW-3 Rakesh Singh stated that at the time when the deceased was making urine, his mouth was towards west. He stated that the accused had opened fire from the distance of 2-3 paces. He stated that as soon as the deceased sat down to make urine the accused had made two fires upon the deceased from towards back side. He stated that the first and second fire were made upon the deceased while the deceased was in sitting position. From the above, it would thus be seen that all the three witnesses of fact, namely, Ram Prakash PW-1, Badan Singh PW-2 and Rakesh Singh PW-3 have very clearly stated that both the fires were made by the accused appellant while the accused was in standing position and that the deceased has sustained those fire arm injuries while he was sitting. As stated above, if the assailant was standing and the deceased was sitting the direction of the injury no. 1 should have been down wards and not upwards. Thus the testimony of these three witnesses is clearly belied by the medical evidence of Dr. A.K. Garg.
11. We also found that there are certain inherent improbabilities, which belie the occular evidence of these witnesses.
12. Ram Prakash PW-1 stated that his uncle deceased Shatrughan was unmarried. He owned about 20-22 Bighas of land. After the death of the deceased the land owned by the deceased was inherited by the father of this witness. He stated that the deceased was carrying on money lending business but his father had nothing to do with the said business. He did not invest any money in the said business. The deceased was living separate from the father of this witness. It was suggested on behalf of the accused appellant that the deceased was a man of immoral character, therefore, he was not married. It was further suggested that the deceased was having illicit connections with a number of persons both inside the village arid outside the village. The defence further stated that the complainant and his family members had all sorts of apprehensions that some outsider may not obtain any deed or will executed by the deceased in respect of the property. It was specifically suggested by the defence to PW-2 Badan Singh that the deceased was a drunkard. The defence clearly suggested that the deceased used to squander his money on his friends. The defence further specifically suggested that Ram Prakash committed the murder of the deceased with the help of his associates because of greed for money and property. It has come in the evidence of Ram Prakash PW-1 that the relation of the accused appellant with the deceased were cordial so much so that the deceased had deposited a sum of Rs. 25000/- with the accused. When the relations of the accused appellant and the deceased were cordial to this extent, it is not believable that the accused would have committed the murder of the deceased by the own gun of the deceased. Ram Prakash PW-1 admitted during course of cross-examination that in the year 1974-75, his another uncle Brijendra Singh who was younger to the deceased Satrughan was also murdered. Karan Singh Baijnath Singh etc. were the accused in that murder. They have since been acquitted. Karan Singh accused of the murder case of Brijendra Singh was still alive, and was ex-pradhan and was related to one Prahlad Singh. He stated that Prahlad Singh has also been murderd, and that he (Ram Prakash) and Jai Karan of his village as also Ram Kishore, maternal uncle son of this person were accused persons in the said murder case. The allegation of the prosecution was that Prahlad Singh was murdered by means of the gun in broad day light. He stated that the deceased was murdered prior to the murder of Prahlad Singh. It was suggested on behalf of the defence that after the murder of Satrughan Singh, this witness (Ram Prakash) had declared in the village that the accused assailant of the deceased Satrughan Singh was Prahlad Singh and that he would not let him alive. It was further suggested on behalf of the accused appellant that there was an enmity in between the family of the accused appellant and this man. Ram Prakash PW-1 admitted that the deceased had fought election for' the office of Gram Pradhan as against Prahlad Singh and that in that election the deceased had won. Prior to this election, Prahlad Singh was Gram Pradhan. It was suggested on behalf of the accused appellant that there was enmity on account of the election of Gram Pradhan in between the family members of the deceased and that of Prahlad Singh.
13. It was suggested in the first information report Ex. Ka-2 as also in the statement of Ram Prakash PW-1 that after sustaining gun shot, the deceased had informed that he had deposited a sum of Rs. 25000/- with the accused appellant and that the accused had removed a sum of Rupees 13000/- from the pocket of the deceased. The post mortem report and the statement of Dr. A.K. Garg PW-6 shows that the right lung, peritonium, liver, gall bladder of the deceased were all ruptured. Page 274 of Modi's Jurisprudence reveals that in case of rupture of liver, death occurs immediately from shock and haemorrhage. DW-1 Dr. B.N. Sachan stated that after sustaining injuries found on the person of the deceased, the deceased should not have been is a position to speak. There was possibility of his immediate death. That being so, the allegations made in the first information report regarding deposit of Rs. 25000/- by the deceased with the accused and further removal of sum of Rs. I3000/- by the accused from the pocket of the deceased were all concocted allegations. As stated above, if the accused appellant was man of confidence of the deceased to this extent that the deceased was keeping hand-some amount of Rs. 25000/- in safe deposit with the accused, it is not believable that the accused appellant who was serving in police department at the time of the occurrence of this case would have committed murder of the deceased for robbing a sum of Rs. 13000/-.
14. It is important to note that the gun of the deceased which is said to have been used in the commission of the murder of deceased was recovered by the police of Maharajpur. Ram Prakash PW-1 only stated that the said gun was given in Superdgi by the police out post Sat District Kanpur Dehat. He was unable to state that as to how and from where the police had recovered the said gun. It was suggested on behalf of the accused appellant that the deceased used to give his gun on hire to the dacoits. The prosecution did not care to adduce any evidence before the Court below to prove as to how and when the said gun was recovered.
15. Ram Prakash PW-1 stated that about two hours since before the time of the occurrence of this case, Badan Singh PW-2, Rakesh Singh PW-3 and Ram Kishore Singh were playing cards from about 2 or 2.30 p.m. while accused Ram Naresh Singh came at the house of the complainant's father Kamta and took away the deceased Satrughan Singh to his house. While going, the deceased had taken his gun and belt of cartridges. The complainant Ram Prakash PW-1, Badan Singh PW-2 and Rakesh Singh PW-3 started search of the deceased when the latter did not return to his house for about 2 1/2 hours till 5 p.m. As soon as they came out from the house where Kathal tree exists, they saw the incident. It was sheer chance that all these three witnesses got up from playing cards and came out from the house and saw the incident in question. The circumstance that the deceased was unmarried and that he is said to be a man of shady anticidents and immoral character goes to show that he was murdered by some body else. The accused appellant being trustee of the money of the deceased, it is highly improbable to believe that the would have gone to the extent of robbing a sum of Rs. 13000/- from the person of the deceased and that too after committing his murder. The circumstance that after sustaining the gun shot injuries by which the liver of the deceased was fully ruptured fully goes to show that the deceased could not have been in a position to speak. The circumstance that Ram Prakash averred in his F.I.R. that after falling down, the deceased informed that the accused appellant Ram Naresh Singh removed a sum of Rs. 13000/- from his pocket and further that he informed that he had deposited a sum of Rs. 25000/- with him also appears to be false and concoction of Ram Prakash PW-1. This allegation appears to have been made with a view to give colour as if it was a case of robbery and murder. The circumstances that the prosecution failed to adduce evidence for recovery of the gun with which the accused appellant is said to have committed the murder of the deceased and which belonged to the deceased himself and was given in the Superdgi of the complainant fully proves that the entire case of the prosecution was fabricated by the complainant Ram Prakash.
16. Another circumstance which proves the innocene of the accused appellant is the fact that the independent witnesses of the occurrence Hari Om, Hari Prasad, Phool Singh, Munna and Ramdhani and Uday Bhan who had arrived at the scene of occurrence soon after hearing the gun shot have not been examined during the trial before the Court below.
17. Thus to sum up we find that the medical evidence of Dr. A.K. Garg belies the occular evidence of the three eye witnesses of fact, namely, Ram Prakash PW-1, Badan Singh PW-2 and Rakesh Singh PW-3. According to their own testimony, it was a sheer chance or co-incidence that these witnesses discontinued their game of cards and reached at the scene of occurrence and claimed to have seen the occurrence. The deceased being unmarried and the complainant's father being beneficiary of the property left by the deceased, it appears that the deceased was murdered in some other manner and the complainant Ram Prakash has cooked up false theory regarding murder of the deceased by the accused appellant because of his family enmity.
18. Under the circumstances, the testimony of Ram Prakash PW-1, Badan Singh PW-2 and Rakesh Singh PW-3 is regarded as not creditable. It is accordingly disbelieved.
19. Consequently the conviction of the accused appellant under Section 302/394, I.P.C. is found to be bad.
20. The appeal is allowed. The conviction and sentence of the appellant passed by the trial Court are hereby set aside. He is in jail. He is directed to be set at liberty forthwith unless wanted in any other case.