Laxman vs State Of U.P. on 7 February, 2018

[Cites 6, Cited by 0]

Allahabad High Court

Laxman vs State Of U.P. on 7 February, 2018

(By The Court) This criminal appeal has been preferred against the judgment and order dated 1.10.1983 passed by 3rd Addl. Sessions Judge, Etawah in Sessions Trial No.152 of 1983, convicting the appellants under Section 302 read with Section 149 I.P.C. and sentenced him to undergo life imprisonment and further to undergo R.I. for one year under Section 148 I.P.C. All the sentences were ordered to run concurrently.

We have heard Sri Pradeep Kumar Mishra who was appointed as Amicus curaie to assist the court vide order dated 22.02.2017.

Prosecution story, in brief, is that complainant Gulzari, father of the deceased Nathu Ram, lodged a written report in police station alleging that in the night of 25/26 October, 1982 at about 1.30 a.m. when complainant and his son were sleeping on the plinth (chabutara), six assailants in which Shiv Nath @ Captain (now dead) and accused Laxman armed with guns along with four unknown accused persons armed with country made pistol, lathi, axe and kanta came to the house of the complainant. Shiv Nath @ Captain and accused Laxman were well known to each other. Assailants called Nathu Ram on which complainant woke up and at that time a lantern was also alight. Further allegation is that seeing the assailants complainant raised alarm and his son Nathu Ram tried to escape from the spot towards west side. All the accused persons surrounded his son Nathu Ram and Shiv Nath @ Captain opened fire with his gun at Nathu Ram and thereafter all the assailants after lightening their torches fled away from the spot. Further allegation is that on the alarm being made by the complainant wife of deceased Smt. Pooti and witnesses Radha Kishun, Ram Sewak, Ram Avtar, Jai Narain also reached on the spot with their torches. In the light of the lantern and torches the accused persons were recognized and two named accused persons Shiv Nath and Laxman were identified by the complainant, the wife of the deceased, and the witnesses. The motive behind the incident as alleged in the FIR is that deceased Nathu Ram was against the miscreants and used to inform the police and on account of this the accused appellants had committed the murder of his son. It was further alleged that when injured Nathu Ram was being taken to police station he died on the way and written report Ext.Ka-1 was handed over at the police station, on the basis of which chik FIR Ext.Ka-2 was prepared and necessary entry was made in the G.D., a copy of which Ext.Ka-3 is on record. Thereafter the dead body of the deceased was sent for post mortem. Post mortem was conducted by Dr. M. Ali, Medical Officer. The post mortem report is Ext.Ka-4. Further it transpires from the record that Y.P. Sharma, Investigating Officer, visited the spot and prepared the site plan Ext.Ka-15, fard regarding plain and blood stained earth Ext.Ka-5, fard regarding pellets Ext.Ka-6, fard regarding lantern and paijama Ext.Ka-7, fard regarding torches Ex.Ka-8, fard regarding razai (Quilt) Ext.Ka-9. Investigating Officer also prepared panchayatnama (inquest report) Ext.Ka-10 and the other relevant papers Ext.Ka-11 to 14 and after completing the investigation the Investigating Officer has submitted charge sheet Ext.Ka-17 against accused Laxman and Shiv Nath @ Captain as absconder.

In support of the prosecution case, complainant Gulzari (father of deceased) P.W.1, Smt. Pooti (wife of deceased) P.W.2, Constable Shiv Raj Prasad P.W.3, Constable Vinod Dixit P.W.4, Dr. M.Ali, Medical Officer P.W.5 and Investigating Officer Y.P. Sharma P.W.6 were examined by the prosecution.

Constable Vinod Dixit P.W.4, a formal witness, had stated that on 26.10.1982 at about 4 a.m. (early morning) on the basis of the written report of the complainant Ext.Ka-1, he prepared the chik FIR Ext.Ka-2. Its G.D. entry is Ext.Ka-3. From a perusal of evidence of this witness it transpires that in his cross-examination he stated that he saw the Bhainsa Garih at the police station and also noted this fact in the G.D. P.W.3 Constable Shiv Raj Prasad is a formal witness. He has stated that on 26.10.1982 he brought the dead body of deceased Nathu Ram to Etawah duly sealed. He further stated that because of the fact that jeep on which he was carrying the dead body broke down on the way, he reached late and therefore, post mortem was done on the next day i.e. 27.10.1982 at 4.00 p.m. Dr. M. Ali, Medical Officer, P.W.5 has conducted the post mortem report of the dead body of deceased Nathu Ram on 27.10.1982 at about 4.00 p.m. and following ante mortem injury was found on the body of the deceased :-

Gun shot wound of entry on the anterior axillary line of left side of chest 2 c.m. above the left nipple at 1 'o' clock position. Margins are blackened and tattooed size of wound hyperbole and 3.5 c.m. x 3 c.m. x chest cavity deep directing backward and downward.

On internal examination second, third and fourth left ribs were found fractured. Left side pleura was ruptured and left side lung was lacerated. Heart and pericardium were found to be lacerated. Stomach was empty. 34 small metallic pellets and pieces of wading Ext.1 to 34 were recovered from the body of the deceased. This witness has proved the post mortem report which is Ext.Ka-4 on record. This witness has stated on oath that the probable time of the death was one and half day old could have been inflicted in the night of 25/26.10.1982 at about 1.30 a.m. and the injury was sufficient in the ordinary course of nature to cause death night of 25/26.10.1982 at about 1.30 a.m. On the basis of medical evidence and the allegations made in the FIR, it is established that the deceased received only one gun shot injury from a close range.

Y.P. Sharma, Investigating Officer P.W.6 stated that case was registered at the police station in his presence. During investigation he recorded the statement of the witnesses. He visited the spot and took sample and blood stained earth and prepared its fard Ext.Ka-5. He also stated that he found a pellet on the spot and prepared fard Ext.Ka-6, the plain and blood stained earth Ext.35 and 36 and the pellets Ext.37. He further stated that he also prepared fard regarding lantern and paijama Ext.Ka-7. He also prepared fard regarding torches of witnesses which is Ext.Ka-8. He also prepared and proved fard razai (quilt) having marks of blood which is Ext.Ka-9. After panchayatnama he handed over the dead body duly sealed to Constable Shiv Raj Prasad and Dinesh Kumar along with other necessary papers which are Ext.Ka-10 to Ka-14. He prepared site plan which is Ext.Ka-15 and after completing investigation submitted the charge sheet Ext. Ka-17 against accused Luxman and Shiv Nath @ Captain. This witness has further proved the clothes and other articles on the person of deceased which are Ext.38 to Ext.43. The testimony of P.W.3, P.W.4 and P.W.6 relates with the police papers prepared during investigation whereas the testimony of P.W.5 Medical Officer relates with the medical evidence, i.e. post mortem report.

P.W.1 Gulzari Lal, father of deceased, P.W.2 Smt. Pooti, wife of deceased, are the star witnesses of the fact. Their testimony is that of a direct evidence.

After close of the prosecution evidence the statement of the accused under Section 313 Cr.P.C. was recorded by the trial court. Accused pleaded not guilty and denied the charges and alleged that he has been falsely implicated in this case due to enmity. Further defence version is that the witnesses were deposing under the influence of the police. Defence has also suggested to the prosecution witnesses that the deceased Nathu Ram was murdered by Parusram and Kirpa Ram dacoits, but no defence evidence was adduced by the accused persons.

We have heard Sri Pradeep Kumar Mishra, learned amicus curaie for the appellant, Shri Amit Sinha, learned A.G.A. for the State and perused the material available on record.

Learned counsel for the appellant made following submissions :-

1. Challenge to FIR.

2. Challenge to the presence of the fact witnesses P.W.1 and P.W.2.

3. Non-production of the independent witnesses.

5. Mode and manner of assault.

6. Challenge with regard to the place of incident and challenge to site plan.

7. The main assailant Captain as per allegation in the FIR who gave fatal injury to the deceased. As per FIR there was only one gun shot injury which caused the death and the role assigned to main accused is now dead. The conviction of the appellant accused is recorded with the aid of Section 149 I.P.C., but the common object of the incident, i.e., presence, involvement and complicity in commission of crime against the appellant accused is not proved

8. Medical evidence does not corroborate the eye version account.

Per contra, learned A.G.A. supported the impugned judgment of conviction and submitted that the judgment and order of conviction and sentence is based on cogent, consistent and credible evidence. The prosecution witnesses especially P.W.1 and P.W.2 have been cross-examined at length, but nothing has come out from their testimony to shake the FIR version which could result to discredit their oral testimony. It is further submitted that the contradictions which have been argued by the learned counsel for the appellant are not of serious nature but they are minor and trivial which do not affect the core of the prosecution version. It is further argued that the judgment of the trial court is well discussed and well reasoned. It is lastly argued that the arguments placed by the defence counsel has no substance and deserves to be rejected.

We have given our considered thoughts to the contentions raised by both the parties and perused the paper book along with lower court record. We find that incident is said to be of 25/26.10.1982 at about 1.30 a.m. and report of the incident has been lodged at police station on 26.10.1982 at 4.00 a.m. (early morning) and the distance of the police station from the place of occurrence as alleged in chik FIR is 3 miles and its report has been sent to higher authorities on 29.10.1982. The complainant of the case is P.W.1 Gulzari who is father of the deceased. The FIR has been lodged against two persons, namely, Shiv Nath @ Captain and Laxman along with four unknown assailants under Sections 147/148/149/302 I.P.C. and the weapons assigned to the assailants are country made pistol, lathi, kanta and axe. Prima facie, the evidence as well as the FIR go to show that there was only one gun shot injury from close range which has been attributed to accused Shiv Nath @ Captain. During the course of arguments it has been brought to the notice of the Court that main accused Shiv Nath @ Captain is now dead. Accused Laxman has been convicted by the trial court under Section 302 read with Section 149 I.P.C.

The defence version is that the accused have been falsely implicated in this case due to enmity. Further they have suggested that deceased was not killed at the place of occurrence as stated by the prosecution but he was killed at some other place. In the above facts and circumstances it becomes a relevant factor that how the prosecution has been able to connect the accused with the said crime. Perusal of the evidence of P.W.1 Gulzari Lal reveals that he had stated that at about 1.30 p.m. in the night six miscreants came to his house and among them accused Laxman and Shiv Nath @ Captain who were armed with gun were identified on the spot. He further stated that the accused have been identified by the witnesses named in the FIR in the light of torches and a lantern which was present at the place of occurrence. P.W.1 and P.W.2, namely, Gulzari Lal and Smt. Pooti, who are father and wife of the deceased, categorically stated that the assailants first called Nathu Ram and complainant woke up and raised alarm on which the witnesses and his daughter-in-law Smt. Pooti reached the spot. His deceased son Nathu Ram tried to escape but all the assailants had surrounded his son and at that point of time Shiv Nath @ Captain opened fire with his gun which hit Nathu Ram and he fell down on the plinth (chabutara). P.W.2 Smt. Pooti also stated that when the accused persons came and called her husband she woke up and came out and raised alarm along with her father-in-law who at that time was sleeping on the cot along with the deceased. In the light of torches she identified the accused Laxman and Shiv Nath who used to visit the house of dacoit Parusram whose house was just in front of the house of the complainant. She stated that she was present at the time of occurrence before the accused Shiv Nath @ Captain, fired.

The date, time and place of incident as alleged by the prosecution as disputed is denied by the defence. Firstly, we would like to emphasis that inter se statement of the fact witnesses P.W.1 complainant Gulzari and P.W.2 Smt. Pooti are found to be inconsistent on the point of place of incident because of the fact that in FIR there is a mention that the deceased Nathu Ram in order to save himself from the clutches of accused persons tried to escape and accused persons surrounded him and Shiv Nath @ Captain fired towards Nathu Ram. P.W.2 Smt. Pooti, wife of deceased, in her cross-examination on question being asked by the court has stated that :-

eSa lks jgh Fkh tc 'kksj epk rc tx xbZ FkhA cUnwd dk Qk;j gksus ds igys gh eS ckgj vk xbZ FkhA 'kksj gks jgk Fkk rHkh eSa ckgj vk xbZ Fkh rc cnek'k pcwrjs ds uhps lMd ij FksA Further stated that pcwrjs ds Åij ugha p Further stated that eS vius ifr dh pkjikbZ ds iwjc Fkh ifr ds Hkkxrs le; xksyh yxh Fkh pkjikbZ ls 3&4 gkFk vkxs gksxs fd xksyh yxhA Further stated that xksyh ekjus ds ckn cnek'k Hkkx x, FksA On this point, P.W.1 complainant in his cross-examination stated that tc cnek'kks us esjs yMds dks vkokt yxkbZ mlh le; eS tx x;kA cnek'kksa us ÞukFkwjke tkxksaß dh vkokt dh FkhA ml le; cnek'k eq>ls 1&2 gkFk dh nwjh ij FksA cnek'k pcwrjk ij [kMs FksA tgka [kMsa Fks ogha ukFkwjke dks cqyk;kA ukFkwjke Hkkx [kMs gq,A ukFkwjke Hkkxs rks cnek'kks us vkxs c Further stated that ?kVuk ds ckn esjs xkao ds yksx ekSds ij vk;s FksA The comparison of the statement of fact witnesses P.W.1 and P.W.2 shows material inconsistency as P.W.1 stated that incident of murder occurred at plinth (chabutara) whereas P.W.2 stated that accused Shiv Nath @ Captain did not fired from plinth (chabutara) but from adjacent gali. Further both are consistent on this point that the fire hit the deceased when the deceased was trying to escape from the spot. So there is a major contradiction on the point of place of occurrence as well as presence and mode of incident. It is relevant to mention that Investigating Officer Sub Inspector Y.P. Sharma P.W.6 in his cross-examination admitted the fact that he has mentioned only one cot which was found at plinth (chabutara). The second cot had not been shown in the site plan on which as per prosecution the deceased was sleeping at the time of incident. Investigating Officer has also admitted the fact that he has not shown the way (gali) from which the assailants opened fire. He also admitted that the second cot (charpai) and the recovery of paijama which was blood stained were found at the place of incident. The question is if the deceased was not wearing paijama at the time of firing how the blood come on his paijama.

The comparison of eye version account and the statement of Investigating Officer gives an indication that the time, place, manner and mode of the incident are inconsistent with each other which makes the whole incident, as alleged by the prosecution, doubtful. Further, if we inter se compare eye witness account with the medical testimony, we find the firing was made from gali and the deceased was at plinth (chabutara). It has come in the evidence that plinth (chabutara) is about two feet high from the level of gali. It has also come in the evidence of the fact witnesses that the accused opened fire while deceased in order to save himself from the clutches of the accused was running from the spot. In the light of these two facts we would like to comment on the medical evidence as in post mortem report the ante mortem injuries proved by Dr. M.Ali, P.W.5 indicate that one gun shot wound of entry on the anterior axillary line of left side of chest 2 c.m. above the left nipple at 1 'o' clock position, meaning thereby this injury was in front part of the body of deceased. Now if the gun shot injury received by the deceased while he was running in order to save himself from the clutches of the accused then it would have been in the back side and should not have been caused in front part of the body of the deceased. The date, time and place of incident is supported by the statement of the Investigating Officer Y.P. Sharma P.W.6 as according to him he recovered one empty pellet from the gali. Smt. Pooti, P.W.2, had stated that when he reached the spot on alarm being made, at that time accused was on road and not on plinth (chabutara). Further we have already observed that the wife of the deceased P.W.2 Smt. Pooti stated clearly that at the time of incident the miscreants were not on plinth (chabutara) but were standing in a gali adjacent to chabutara and this fact is admitted that chabutara was at a height of about 2 feet from the level of gali. In this fact situation if fire from the gali is made out, the direction of the injury would have been in upward direction. The direction and the seat and nature of injury as per ante mortem report of the deceased creates sufficient amount of doubts as to the manner and mode alleged in the FIR and stated by the prosecution witnesses so we find merit in the argument of the learned counsel for the appellant that medical evidence is not in consonance with the statement of the eye witnesses.

From the allegation in the FIR and the statement of the fact witnesses it transpires that at the time of occurrence four independent witnesses reached the spot and at least they have seen the accused persons in the light of torches in their hands and in the light of lantern at the place of occurrence, but these witnesses have not come forward to give this statement to support and substantiate the evidence of the eye witnesses whereas the prosecution has produced only two witnesses, namely, Gulzari Lal, P.W.1 who is father of the deceased and Smt. Pooti, P.W.2, who is wife of the deceased.

Under the fact and circumstances that incident is alleged to have occurred in the night and the complainant along with other persons of the village had gone to lodge the FIR at the police station at 4 a.m. early morning (quite in the night) and thus the explanation given by P.W.2 that due to fear of the accused the independent witnesses had not come forward to give their evidence is not found to be acceptable, especially in the facts and circumstances that the defence tried to produce them as a defence witness as it sounds from the impugned judgment, but they have not come forward to speak the truth, so the explanation of the prosecution with regard to non-production of independent witnesses is found to be unbelievable. Further the prosecution story that six assailants were said to be members of unlawful assembly and all of them were armed with weapons, namely, country made pistol, lathi, axe and kanta, becomes doubtful as only one gun shot injury was attributed to main accused Shiv Nath @ Captain which was found to be fatal and on receiving this injury deceased died instantaneously, no other weapon is said to be used at the time of commission of crime. As admitted by both parties the main accused had already died. The presence of the accused persons by adducing independent witnesses has not been cogently established by any of the credible evidence. As we have already stated that date, time and place of incident, manner and mode of the incident found to be inconsistent and in contradiction to each other and further not supported by the medical evidence tendered in this case, so the presence, involvement and complicity in the commission of crime with the aid of Section 149 Cr.P.C. is unexplainable and the common object is found to be doubtful.

For the aforesaid reasons, we find that the judgment of conviction and the order of sentence passed by the trial Judge is against the weight of evidence and not sustainable in the eye of law and the appeal deserves to be allowed.

Accordingly, the appeal is allowed. The judgment and order dated 1.10.1983 passed in Sessions Trial No.152 of 1983, convicting the appellant Laxman under Section 302 read with Section 149 I.P.C. and under Section 148 I.P.C. is set aside and the appellant is, hereby, acquitted. The appellant is on bail. He need not require to surrender. His bail bonds and sureties bond are hereby discharged.

Let a certified copy of the judgment along with lower court record be transmitted to the court concerned for compliance.

We quantify the legal fees of the Amicus Curaie Sri Pradeep Kumar Mishra, who gave us valuable assistance, as Rs. 11,000/- which may be paid to him forthwith.

Order Date :- 07.02.2018 Anand/-

Unlock Advanced Research with PRISMAI

Allahabad High Court