Allahabad High Court
Kashmir And Ors. vs State on 5 February, 2019
Bench: Bala Krishna Narayana, Ghandikota Sri Devi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 4 Case :- CRIMINAL APPEAL No. - 2196 of 1988 Appellant :- Kashmir And Ors. Respondent :- State Counsel for Appellant :- S.D. Kautilya,Pushpendra Singh Yadav Counsel for Respondent :- D.G.A. Hon'ble Bala Krishna Narayana,J.
Hon'ble Ghandikota Sri Devi,J.
(By the Court)
1) Heard Sri Pushpendra Singh Yadav, learned counsel for the appellants and Sri H. M. B. Sinha, learned A.G.A.-I for the State.
2) This criminal appeal has been preferred by the appellants, Kashmir and Saudan against the judgement and order dated 23.09.1988 passed by Sessions Judge, Farrukhabad in S.T. No. 547 of 1987, "State Vs. Kashmir and others", convicting the appellants and sentencing them to imprisonment for life and a fine of Rs. 1,000/- each and in case of default in payment of fine, six months additional rigorous imprisonment u/s 302 I.P.C.
3) Kashmir (A1) died during the pendency of this appeal and this appeal stood dismissed as abated qua Kashmir (A1) by the order of this Court dated 05.02.2019.
4) Thus, the challenge to the impugned judgement and order is now on behalf of Saudan (A2) alone.
5) The prosecution story in brief runs as hereunder :-
6) The deceased Narendra @ Bhura and accused were residents of village- Faridpur Saidvarha, P.S.- Shamshabad, District- Farrukhabad. Accused Pappu is the son of Kashmir (A1). Saudan (A2) is the uncle of Kashmir (A1) and accused Vedram, cousin of Kashmir (A1).
7) The deceased and the accused had their plots in village- Faridpur Saidvarha. Their fields were being irrigated by one and the same channel. About eight months before the date of occurrence, a scuffle had taken place between the deceased Narendra @ Bhura and the accused regarding water for irrigating their respective fields. The accused had diverted the water of the fields of the deceased into their own fields. The relations between the parties were, therefore, strained on that score. On 23.10.1986 at about 7.00 a.m., Narendra @ Bhura (deceased) was coming back after answering nature's call. When he came near the house of Ram Prasad, Kashmir (deceased A1), Saudan (A2), accused Vedram and Pappu came from the east and started hurling abuses at the deceased. Saudan (A2) was armed with a single barrel gun while Kashmir (deceased A1) was armed with double barrel gun and accused Vedram and Pappu were armed with lathis. All the accused exhorted to kill the deceased. Saudan (A2) and Kashmir (deceased A1) opened fire upon the deceased as a result of which, he fell on the ground. The incident was witnessed by P. W. 1 informant Brahma Nand, his brother Surendra, P. W. 2 Jeet Singh and the wife of the deceased. The prosecution maintained that Kashmir (deceased A1) also shot at P. W. 1 informant Brahma Nand but he escaped unhurt. Accused Vedram and Pappu assaulted P. W. 1 informant Brahma Nand by lathis and caused injuries to him. The deceased Narendra @ Bhura succumbed to his injuries on the spot. P. W. 1 informant Brahma Nand took the body of deceased from the place of occurrence to his house and then went to police station to lodge the written report of the occurrence.
8) The written report/F.I.R. of the occurrence (Ext.Ka.1) was lodged by P. W. 1 informant Brahma Nand at P.S.- Shamshabad, District- Farrukhabad on 23.10.1986 at 8 a.m. On the basis of the aforesaid written report, Case Crime No. 203 of 1986 u/s 302/307 I.P.C. was registered against the accused.
9) P. W. 4 S.I. V.D. Chaudhari of P.S.- Shamshabad immediately took up the investigation of the case in his hand. He recorded the statement of P. W. 1 informant Brahma Nand at P.S.- Shamshabad and rushed to the scene of occurrence along with G.N. Tiwari, S.I. and other constables. He found the dead body of Narendra @ Bhura lying in front of the house of P. W. 1 informant Brahma Nand. He held the inquest and then prepared the inquest report (Ext.Ka.3) and thereafter inspected the place of occurrence and prepared it site plan (Ext.Ka.10). He recovered blood stained and simple earth and ticklis from the place of occurrence and prepared their recovery memos (Exts.Ka.8 and Ka.9). He also recorded the statements of the witnesses of the inquest and of P. W. 2 Jeet Singh.
10) The autopsy on the body of deceased Narendra @ Bhura was conducted on 23.10.1986 at about 4 p.m. by P. W. 3 Dr. V.K. Bhatiya, Medical Officer of District Hospital, Fatehgarh. He noted following ante-mortem injuries on the person of the deceased :-
Fire arm multiple pellet wounds in an area of 16 cm x 11 cm x skin to cranial cavity deep. It was present over forehead ending right eye region and right temporal region direct ending upward in the frontal area of scalp measuring 0.2 cm x 0.3 cm to 1 cm x 0.3 cm.
According to P. W. 3 Dr. V.K. Bhatiya, the death of deceased was caused due to coma and head injury as a result of ante-mortem injuries.
11) P. W. 5 Dr. S.P. Singh, Medical Officer, P.H.C. Faizbagh, P.S.- Shamshabad, District- Farrukhabad medically examined P. W. 1 informant Brahma Nand on 23.10.1986 at about 2 p.m. and found following injuries on his person :-
1) Abrasion 0.25 cm x 0.5 cm on right elbow joint.
2) Two abrasions 0.5 cm x 1 cm on the right knee joint.
According to P. W. 5 Dr. S.P. Singh, the injuries received by injured Brahma Nand were simple in nature and were caused by blunt-edged weapon.
12) After the completion of the investigation, P. W. 4 S.I. V.D. Chaudhari submitted charge-sheet against the accused before Chief Judicial Magistrate, Farrukhabad (Ext.Ka.11).
13) Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Farrukhabad committed the accused for trial to the Court of Sessions Judge, Farrukhabad where case crime no. 203 of 1986 was registered as S.T. No. 547 of 1987, "State Vs. Kashmir and others", and made over for trial from there to the Court of Sessions Judge, Farrukhabad who on the basis of material collected during investigation and after hearing the prosecution as well as the accused on the point of charge, framed charge u/s 302/307/34 I.P.C. against the accused. The accused abjured the charge framed against them and claimed trial.
14) The prosecution in order to prove the charge framed against the appellants examined as many as five witnesses of whom P. W. 1 informant Brahma Nand and P. W. 2 Jeet Singh were examined as witnesses of fact while P. W. 3 Dr. V.K. Bhatiya, P. W. 4 S.I. V.D. Chaudhari and P. W. 5 Dr. S.P. Singh were produced as formal witnesses.
15) The accused in their statements recorded u/s 313 Cr.P.C. denied the prosecution story as false and concocted and alleged false implication. The accused did not adduce any oral evidence in their defence. However, they filed a certified copy of charge-sheet of Sessions Trial No. 103/85, State Vs. Atar Singh and others pending before the Court of IInd Addl. Sessions Judge, Shahjahanpur u/s 147, 148, 302 I.P.C., copy of statement of Ratan Singh son of Vedram recorded in S.T. No. 103/85 u/s 302 I.P.C., P.S.- Mirzapur, District- Shahjahanpur, copy of statement of Ranvir Singh, son of Jamadar, resident of Murhadhi recorded in S.T. No. 103/85 u/s 302 I.P.C., P.S.- Mirzapur, District- Shahjahanpur and a copy of statement of Atar Singh son of Vedram recorded in S.T. No. 103/85 u/s 302 I.P.C., P.S.- Mirzapur, District- Shahjahanpur (Ext.Kha1 to Kha4) respectively.
16) Learned Sessions Judge, Farrukhabad after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted the accused and awarded aforesaid sentence to them by the impugned judgement and order.
17) Hence, this appeal.
18) It is contended by Sri Pushpendra Singh Yadav, learned counsel for the appellants that it is proved from the evidence of P.W.1 informant Brahma Nand and P.W.2 Jeet Singh that they had arrived at the place of incident after the occurrence had taken place and had not seen the same and hence, the learned trial Judge erred in placing reliance upon their evidence while holding the appellants guilty for murder of Narendra@Bhura. The medical evidence on record does not corroborate the time as well as the manner of assault as mentioned in the F.I.R. He next submitted that the deceased was a person of shady character. He was accused in several cases including a murder case and after one of his numerous enemies had waylaid and had shot him dead with a double barrel gun and his dead body was found in the morning, the written report was prepared after due deliberations and consultations, falsely implicating the accused-appellants because of the previous incident which had taken place before the occurrence over irrigation of the fields of the parties. It has also been submitted by learned counsel for the appellants that ticklis were recovered from near the dead body of Narendra@Bhura which was found by the Investigating Officer outside his house and not from the place near the house of Ram Prasad where the deceased had been allegedly shot as per the F.I.R. version and hence, the prosecution has miserably failed to prove that the occurrence had taken place at the spot mentioned in the F.I.R. It is lastly submitted that such being the state of evidence, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set-aside.
19) Per contra Sri H. M. B. Sinha, learned A.G.A.-I appearing for the State made his submissions in support of the impugned judgement and order and submitted that neither the recorded conviction of the appellants nor the sentences awarded to them merit any interference. This appeal lacks merit and is liable to be dismissed.
20) We have very carefully considered the submissions advanced before us by the learned counsel for the appellants and perused the entire lower court record.
21) The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case against the surviving accused Saudan A2 beyond all reasonable doubts or not ?
22) Record shows that as per the prosecution case, the incident in which one Narendra @ Bhura had been shot dead near the house of one Ram Prasad by the appellants who came from the east, had taken place at 7 a.m. on 23.10.1986. The incident was witnessed by P. W. 1 informant Brahma Nand, his brother Surendra, P. W. 2 Jeet Singh and wife of the deceased. The role of firing at the deceased was attributed to Kashmir (deceased A1) and Saudan (A2). Accused Vedram and Pappu were ascribed the role of causing lathi injuries to P. W. 1 informant Brahma Nand. The role of firing at P. W. 1 Brahma Nand was also attributed to Kashmir (deceased A1) but the shots fired by him at P. W. 1 had missed the target. The F.I.R. of the case was registered on the same day at 8 a.m. at P.S.- Shamshabad, District- Farrukhabad on the basis of the written report (Ext.Ka.1) lodged by P. W. 1 informant Brahma Nand. The postmortem on the body of deceased was conducted by P. W. 3 Dr. V. K. Bhatiya, Medical Officer of District Hospital, Fatehgarh on 23.10.1988 at 4 p.m., who also prepared his postmortem report (Ext.Ka.2). P. W. 5 Dr. S.P. Singh, Medical Officer, P.H.C. Faizbagh, P.S.- Shamshabad, District- Farrukhabad medically examined P. W. 1 informant Brahma Nand on 23.10.1988 at about 2 p.m., who also prepared his injury report (Ext.Ka.12).
23) Thus, according to the medical evidence on record, the deceased had died due to a solitary firearm wound noted by P. W. 3 Dr. V. K. Bhatiya on his forehead. He also noted that small and large intestines of the deceased contained pasty and faecal matter at places. According to him, the death had occurred in the intervening night of 22/23.10.1986 at 2-3 a.m. He also deposed that the ante-mortem firearm wounds noted by him on the deceased's body could be caused if the deceased was lying on a cot and the shot was fired from the front from the right side.
24) In order to prove that the accused-appellants were the authors of the firearm wound noted by P. W. 3 Dr. V. K. Bhatiya on the deceased's body, the prosecution had examined P. W. 1 informant Brahma Nand and P. W. 2 Jeet Singh as eye-witnesses of the occurrence.
25) P. W. 1 informant Brahma Nand in his examination-in-chief recorded before the trial court supported the prosecution case as spelt out in the F.I.R. P. W. 2 Jeet Singh fully corroborated the evidence of P. W. 1 in all material particulars pertaining to the occurrence. However, P. W. 1 informant Brahma Nand in his examination-in-chief on page 16 of the paper book stated that when Narendra @ Bhura had fallen on the ground after being shot, he, his brother Surendra, P. W. 2 Jeet Singh and wife of Narendra @ Bhura had arrived at the place of incident and started shouting.
26) P. W. 2 Jeet Singh in his statement recorded before the trial court stated that he knew accused-Kashmir (deceased A1), Saudan A2, Vedram and Pappu who were present in the Court. He also knew deceased-Narendra @ Bhura. He was a resident of village Muraithi, P. S. Shamshabad, district Farrukhabad which was at a distance of about 4 kms from village Faridpur Saidvarha where the occurrence had taken place. On the date of incident, he had come to village Faridpur Saidvarha to get his she buffalo crossed by he buffalo. When he reached the chak road in village Faridpur Saidvarha where the house of Ram Prasad is situated, he saw Kashmir (deceased A1), Saudan A2 and co-accused Vedram and Pappu of whom Kashmir (deceased A1) and Saudan A2 were armed with guns while co-accused Vedram and Pappu were carrying lathis challenged Narendra @ Bhura and exhorted to kill him on which Saudan A2 and Kashmir (deceased A1) fired from their guns at Narendra @ Bhura who after receiving gunshot fell on the ground and died on the spot. He further stated that apart from him, the incident was witnessed by Surendra, wife of Narendra @ Bhura and P. W. 1 Brahma Nand. The accused thereafter fired at P. W. 1 Brahma Nand but the shot missed the target. However P. W. 1 Brahma Nand was wielded by co-accused, Vedram and Pappu by lathi. Thereafter, the accused fled.
27) From the perusal of the statements of P. W. 1 Brahma Nand and P. W. 2 Jeet Singh, it transpires that, firstly, both Kashmir (deceased A1) and Saudan A2 had shot the deceased from their firearms and both the shots had hit the deceased on which he had fallen on the ground and died then and there. It also follows from the evidence of P. W. 1 Brahma Nand that the incident had taken place while the deceased was returning after answering the call of nature. However, the medical evidence on record does not at all support the prosecution version with regard to the manner and time of assault. The prosecution case is that the shots were fired while he was returning after easing himself and the shots fired by both the accused had hit him. However, the postmortem report of the deceased which was prepared and proved by P. W. 3. Dr. V. K. Bhatiya as Ext. Ka2 indicates only one firearm wound. His postmortem report further indicates that the deceased's small and large intestine contained pasty and faecal matter. In the opinion of the doctor, the deceased had died in the intervening night of 22/23.10.1986 at about 2-3 A.M. and the possibility of the deceased having not eased himself at the time of being shot also cannot be ruled out.
28) The aforesaid irreconcilable discrepancies in the medical evidence vis a vis the ocular version belie the claim of P. W. 1 and P. W. 2 of being the eye-witnesses of the occurrence. If P. W. 1 and P. W. 2 had witnessed the occurrence then they would not have deposed that the shots fired by both the accused from their firearms had hit the deceased. The presence of pasty and faecal matter in large and small intestine also indicates that the possibility of the deceased having died much before the time mentioned in the F.I.R. cannot be ruled out.
29) There are other circumstances also which create a strong doubt about truthfulness of the prosecution version. The place of occurrence as mentioned in the written report of the incident and in the statements of the two eye-witnesses of the occurrence, is near the house of Ram Prasad. The prosecution case further is that after the deceased had been shot, P. W. 1 Brahma Nand and the other villagers had brought the dead body from the place of occurrence and kept it in front of the door of his house. However, the site plan of the place of incident which was prepared by P. W. 4 S.I. V.D. Chaudhari at the instance of P. W. 1 Brahma Nand the place of incident has been shown by letter 'A' which is far away from the house of Ram Prasad and nearer to the house of Sita Ram, the place from where the investigating officer had recovered the tickli is also far away from the house of Ram Prasad. In the site plan, neither house of the deceased nor the first informant nor the place where the dead body of deceased was kept by P. W. 1 Brahma Nand and the other villagers after bringing it from the place of occurrence has been mentioned. Thus, the prosecution has even failed to prove by leading any cogent evidence that the incident had taken place at the place mentioned in the F.I.R. It is true that P. W. 1 Brahma Nand claims that he had also received injuries in the occurrence and hence his evidence should be put an higher pedestal but at the same time it cannot be presumed that whatever an injured witness deposes is true and his evidence has to be scrutinized with utmost caution in the background of the facts and circumstances of the case and the other evidence on record. In this case, the injuries of P. W. 1 Brahma Nand were examined by P. W. 5 Dr. S.P. Singh of which we have already taken note of. The injuries received by him in the occurrence which in the opinion of P. W. 5 Dr. S. P. Singh who had examined his injuries were simple in nature and were caused by blunt and edged weapon.
30) Now if we have a glance at the prosecution case vis a vis the injuries sustained by P. W. 1 Brahma Nand, we find that role of causing lathi injuries to P. W. 1 Brahma Nand was attributed to co-accused, Vedram and Pappu. Both Vedram and Pappu were acquitted by the learned trial court holding that the claim of P. W. 1 Brahma Nand on the point of sustaining lathi injuries at the hands of accused-Vedram and Pappu is not substantiated by the medical evidence of P. W. 5 Dr. S. P. Singh. If the simple injuries received by P. W. 1 Brahma Nand were not inflicted on him by co-accused Vedram and Pappu then the question which arises is that who caused the lathi injuries to P. W. 1 Brahma Nand. No explanation whatsoever is coming forth from the side of the prosecution in this regard and in view of the above, we hold that the prosecution has failed to prove that P. W. 1 Brhama Nand had also received injuries in the same occurrence. Once, we come to the conclusion that P. W. 1 Brahma Nand had not received injuries in the same incident in which the deceased had been shot dead, a big question mark arises with regard to the genuineness of his claim of being the eye-witness of the occurrence. So far P. W. 2 Jeet Singh is concerned, he is admittedly a resident of another village and was a chance witness. Suggestions were given to him that he was Sadhu Bhai of P. W. 1 Brahma Nand but he denied the same. The reason given by him for his presence in village Faridpur Saidvarha where the occurrence had taken place that he had come there to get she buffalo crossed by he buffalo does not inspire confidence in view of the facts and circumstances of the case. It has also come in the evidence of P. W. 1 Brahma Nand that the deceased was accused in several cases including the cases under Section 307, 364 and 302 I.P.C. and hence the possibility of the defence version that on account of being a hardened criminal, the deceased had several enemies and after he was shot dead by one of his numerous enemies and his dead body was recovered, the written report of the incident was prepared at the police station after due deliberations and consultations falsely implicating the appellants due to previous enmity, cannot be ruled out. It is proved from the evidence of P. W. 1 Brahma Nand that the written report of the incident was scribed in the police station Shamshabad.
31) The fact that the prosecution case is that the shots fired by both the appellants had hit the deceased but his postmortem report indicates only one firearm wound and there being no evidence on record indicating as to who was the author of the said firearm wound, the possibility of one of the accused-appellants being innocent also cannot be ruled out.
32) Thus, upon a wholesome consideration of the facts of the case, attending circumstances and the evidence on record, we find that the evidence given by two eye-witnesses of the occurrence, is unreliable and untrustworthy.
33) The prosecution has not been able to prove its case against the accused-appellants beyond all reasonable doubt. The possibility of the incident having taken place in a different manner, cannot be ruled out.
34) In view of the above, surviving appellant-Saudan A2 is entitled to benefit of doubt and is acquitted of the charges framed against him.
35) The appeal succeeds and is allowed qua Saudan A2.
36) The impugned judgment and order stands modified accordingly. Saudan A2 is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. However, he shall complying with the mandatory provision of Section 437-A Cr.P.C.
Order Date :- 5.2.2019 KS/SA