Allahabad High Court
State Of U.P. vs Ganesh Pande And Others on 12 December, 2024
Author: Rajiv Gupta
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:194370-DB Judgement reserved on :- 14.08.2024 Judgement delivered on :- 12.12.2024 Court No. - 47 Case :- GOVERNMENT APPEAL No. - 1775 of 1987 Appellant :- State of U.P. Respondent :- Ganesh Pande And Others Counsel for Appellant :- A.G.A.,Irshad Husain Counsel for Respondent :- K.K.Mishra,Pulak Ganguly,R.D.Tiwari,Ravi Bhushan Singh Hon'ble Rajiv Gupta,J.
Hon'ble Surendra Singh-I,J.
Per : Hon'ble Surendra Singh-I, J.
Heard Sri Ashish Tiwari, learned A.G.A. for the appellant/State and Sri Pulak Ganguly, Advocate assisted by Sri Ravi Bhushan Singh, learned counsel for the accused-respondents.
2. The instant government appeal has been instituted u/s 378 Cr.P.C. against impugned judgement and order dated 26.03.1987 passed by Additional Sessions Judge, Ghazipur, in Sessions Trial No. 9 of 1986 (State of U.P. Vs. Ganesh Pandey and others) arising out of Case Crime No. 154 of 1985 u/s 302 and 307 I.P.C., P.S.- Birno, District- Ghazipur.
3. This Court granted leave to appeal and the appeal was admitted vide order dated 10.01.1991.
4. By the impugned judgement and order, the trial court had acquitted the accused-respondents, namely, Ganesh Pandey, Kesheo Pandey and Shailesh Pandey of charge u/s 302 r/w 34 and 307 r/w 34 I.P.C.
5. As per report received from Chief Judicial Magistrate, Ghazipur, accused-respondent, Ganesh Pandey died on 20.01.2022 and this appeal qua Ganesh Pandey is abated.
6. According to prosecution case as unfurled in the written report (Ext.Ka.1), first informant, Lallan Pandey, son of deceased Kailash Pandey, is resident of Dhurehra, P.S.- Birno, District- Ghazipur. Accused Ganesh Pandey and Kesheo Pandey are brothers and are sons of Shambhu Nath Pandey. Accused Shailesh Pandey is their cousin and son of Shyam Narayan Pandey. Shambhu Nath Pandey and Shyam Narayan Pandey are real brothers. In between the houses of first informant, Lallan Pandey and that of accused-respondents, there exists a common passage. This passage is situated south to the house of the informant and north to the house of accused Ganesh Pandey. The waste pipe (nabdan) of the house of the accused emerged in this passage and passed towards east in the lane. This passage ended in the sahan of the informant and was used by family members of both the houses. There was some dispute between the two family members on account of this waste pipe (nabdan). It has been alleged by the first informant that the accused wanted to take out his waste pipe (nabdan) through the sahan of the informant. It was resisted by his family members. In this connection, a civil suit was also pending between the parties.
7. It had rained on 08.10.1985. All the members of the family of first informant were either sitting in outer verandah of their house or were working in their sahan. At 10 a.m., while it was raining, accused Ganesh Pandey and Kesheo Pandey, sons of Shambhu Nath Pandey and Shailesh Pandey son of Shyam Narayan Pandey, were forcibly digging the mud in the lane. The informant's father, Kailash Pandey forbid them from doing so. The accused-respondents hurled abuse on Kailash and chased him to beat. The first informant's father came at the door of his house and told him to lodge a report in the police station. On hearing the alarm, the villagers Jai Narayan Yadav, Ram Nath Tiwari and others arrived at the door of the house of the first informant. Meanwhile, accused-respondents, Ganesh, Shailesh and Kesheo arrived at the door of the informant. On the exhortation of Kesheo Pandey to kill Kailash, accused Ganesh Pandey and Shailesh Pandey fired with their country-made pistols at Kailash which hit on his back and he fell on the verandah. Thereafter, accused-respondents also fired on informant and his brothers, Anil Kumar Pandey, Awadhesh Pandey and his mother, Smt. Tara Devi but fortunately they did not receive any firearm injury. Accused-respondents fled from the place of occurrence. The first informant's father, Kailash soon succumbed to his firearm injuries.
8. On the basis of the written report (Ext.Ka.1) presented by the first informant, first information report was registered by P.W.3 Ram Jiyawan Yadav on 08.10.1985 at 12.10 a.m. at P.S.- Birno. The entry of the registration of the criminal case was made in the G.D. as report no. 20 on 08.10.1985 at 12.10 a.m. Carbon copy of the G.D. is (Ext.Ka.3).
9. The investigation of the criminal case was done by P.W.7 S.I. Vijay Kumar Mishra who got the proceeding of inquest of the dead body of Kailash performed and prepared inquest report (Ext.Ka.7). He prepared necessary police documents for the conduct of the postmortem of the dead body of deceased Kailash and after getting the dead body wrapped and stitched in a cloth and duly sealed, it was handed over with necessary police documents to Constable Prem Nath Singh and Constable Vijay Shankar Yadav for carrying it to the mortuary for postmortem.
10. The Investigating Officer P.W.7 S.I. Vijay Kumar Mishra visited the place of occurrence and prepared site plan (Ext.Ka.11). He collected blood-stained and plain mud from the place of occurrence and packed it into two container cartons and prepared its memo (Ext.Ka.12). He also collected used up cartridges and pellets found on the place of occurrence and prepared its memo (Ext.Ka.13). He recorded the statements of the witnesses. Thereafter, P.W.7 Vijay Kumar Mishra, Investigating Officer, was transferred and further investigation was done by S.I. Ram Sagar Yadav who completed the investigation and submitted charge-sheet u/s 302 and 307 I.P.C. against accused-respondents, Ganesh Pandey, Kesheo Pandey and Shailesh Pandey.
11. The case was committed to the Court of Sessions by Chief Judicial Magistrate, Ghazipur on 29.07.1986. The Additional Sessions Judge, Ghazipur framed charge u/s 302 r/w 34 and 307 r/w 34 I.P.C. against accused-respondents, Ganesh Pandey, Kesheo Pandey and Shailesh Pandey. The accused abjured the charges, pleaded not guilty and claimed trial.
12. On 09.10.1985, at 02.30 p.m., P.W.6 Dr. U.P. Sharma conducted postmortem of the dead body of Kailash Pandey, son of Badri Pandey, who was average built and aged about 45 years. Rigor mortis was found in upper and lower limb of his dead body. P.W.6 Dr. U.P. Sharma prepared the deceased's postmortem report (Ext.Ka.4). As per the postmortem report, the deceased was of average built body. Rigor mortis was present on upper and lower limbs. Following antemortem injuries were found on the person of Kailash Pandey :-
(i) Gunshot wound ½ x ½ cm, margin inverted. No blackening or tattooing seen on the back between two scapula into cavity deep.
(ii) Gunshot wound ½ cm x ½ cm on the left side of back 4 cm below the angle of scapula. No blackening or tattooing seen. Margin inverted into cavity deep.
(iii) Gunshot wound ½ cm x ½ cm on the left side of back 5 cm lateral to the injury no. (ii). Margins inverted. No blackening or tattooing seen into cavity deep.
(iv) Gunshot wound ½ cm x ½ cm on left side of back 6 cm below and medial to injury no. (ii) and 2 cm lateral to the vertebral column into cavity deep.
(v) Gunshot wound ½ cm x ½ cm on the right side of back, upper lumber region 4 cm lateral to the vertebral column. Margin inverted. No blackening or tattooing seen into cavity deep.
Note : 3 big pellets recovered from the injuries, two from chest cavity and one from abdomen cavity, sent to S.P., Ghazipur along with constable concerned.
In the internal examination of the deceased, it was found that the pleura of the deceased was ruptured and had contained about ½ kg blood. His left lung, pericardium and heart was ruptured. His peritoneum was also ruptured which contained about ½ kg blood. His cavity also contained ½ kg blood. His small intestine and large intestine were also ruptured. Gall bladder and spleen were also ruptured. His bladder was empty.
In the opinion of the doctor, the death was caused within one day as a result of shock and haemorrhage.
13. It has been submitted by learned A.G.A. for the State that the first information report was lodged promptly. He has next submitted that the prosecution has proved the charge framed against the accused-respondents with the help of reliable oral and documentary evidence. The oral evidence of the eye-witnesses is supported by the postmortem report of the deceased and other prosecution papers. The trial court did not consider the evidence in proper perspective and acquitted the accused on the basis of conjectures and surmises.
14. Per contra, learned counsel for the accused-respondents has stated that there are several contradictions and inconsistencies in the oral evidence and the documentary evidence including the postmortem report. There is enmity between the families of the first informant and the accused-respondents leading to civil litigation. Under these circumstances, the accused were falsely implicated and the trial court has rightly acquitted them of the charge framed against them. There is no illegality or irregularity in the impugned judgement and order and the government appeal is liable to be rejected.
15. This Court vide order dated 10.10.1991 granted leave to appeal and admitted the criminal appeal.
16. Learned A.G.A. relied upon the following rulings of the Apex Court :-
(i) Balu Sudam Khalde and Another Vs. State of Maharashtra, 2013 SCC Online SC 1501
17. Learned counsel for the accused-respondents relied upon the following rulings of the Apex Court :-
(i) Bhupatbhai Bachubhai Chavda & Anr. Vs. State of Gujarat, [2024] 4 S.C.R. 322
(ii) Munna Lal Vs. State of U.P., in Criminal Appeal No. 490 of 2017 decided on 24.01.2023
(iii) Manjunath & Ors. Vs. State of Karnataka in Criminal Appeal No. 866 of 2011 decided on 06.11.2023
18. Since, it is an appeal against the acquittal, it will be relevant to note the principle of law relating to reversal of the judgment of the trial court by the appellate criminal court which is well settled by a catena of decisions pronounced by Hon'ble Apex Court.
19. In State of U.P. Vs. Pappu, Government Appeal No. 483 of 2019, it has been held by the Hon'ble High Court Allahabad that :-
11. .......In the matter of State of Karnataka vs. K. Gopalkrishna reported in (2005) 9 SCC 291, the Hon'ble Supreme Court, while dealing with an appeal against acquittal, observed as under :
"In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal."
12. In Sudershan Kumar v. State of Himachal reported in (2014) 15 SCC 666 the Hon'ble Supreme Court observed thus :-
"31.It has been stated and restated that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of the acquittal. The appellate court, in such a case, would interfere only for very substantial and compelling reason. There is plethora of case laws on this proposition and we need not burden this judgment by referring to those decisions. Our purpose would be served by referring to one reasoned pronouncement entitled Dhanapal v. State which is the judgment where most of the earlier decisions laying down the aforesaid principle are referred to. In para 37, propositions laid down in an earlier case are taken note of as under: -
"37. In Chandrappa v. State of Karnataka, (2007) 4 SCC 415 this Court held: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
32. Thereafter, in para 39, the Court curled out five principles and we would like to reproduce the said para hereunder:
"39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re- appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has"very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
13. In Dilawar Singh v. State of Haryana, (2015) 1 SCC 737, the Supreme Court reiterated the same in paragraphs 36 and 37 as under :
"36. The court of appeal would not ordinarily interfere with the order of acquittal unless the approach is vitiated by manifest illegality. In an appeal against acquittal, this Court will not interfere with an order of acquittal merely because on the evaluation of the evidence, a different plausible view may arise and views taken by the courts below is not correct. In other words, this Court must come to the conclusion that the views taken by the learned courts below, while acquitting, cannot be the views of a reasonable person on the material on record.
20. After surveying of relevant decisions regarding the scope of intervention by the appellate court against the judgement of acquittal of the accused, the Apex Court has held in paragraph nos. 25, 26, 27, 28 and 29 of Mallappa and Others Vs. State of Karnataka, (2024) 3 SCC 544 as follows :
25. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.
26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The "two-views theory" has been judicially recognised by the courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.
21. In Bhupatbhai Bachubhai Chavda and Another Vs. State of Gujarat, 2024 SCC OnLine SC 523, the Hon'ble Apex Court has clearly and summarily expounded the law relating to reversal by the appellate court of the judgement of acquittal rendered by the trial court in following paragraphs which are as follows :-
6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. Alter re-appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question.
7. The second error the High Court committed is found in paragraph 23 of the impugned judgment. The High Court has gone to the extent of recording a finding that the appellants have failed to adduce evidence in their support, failed to examine the defence witness and failed to establish falsity of the prosecution's version. This concept of the burden of proof is entirely wrong Unless, under the relevant penal statute, there is a negative burden on the accused or there is a reverse onus clause, the accused is not required to discharge any burden in a case where there is a statutory presumption, after the prosecution discharges initial burden, the burden of rebuttal may shift on the accused. In the absence of the statutory provisions as above, in this case, the burden was on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Therefore, the High Court's finding on the burden of proof is completely erroneous. It is contrary to the law of the land.
22. Thus, it can be concluded that the scope of interference by an appellate court for reversing the judgement of acquittal rendered by the trial court in favour of the accused has to be exercised within the corners of the following principles :-
(i) that the judgement of acquittal suffers from patent perversity;
(ii) that the same is based on a misreading/omission to consider material evidence on record.
23. The appellate court, in order to interfere with the judgement of acquittal, would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial court.
24. We have heard learned A.G.A. for the State and learned counsel for the accused-respondents and perused the entire trial court record.
25. The main issue to be ascertained in this government appeal is as to whether the impugned judgement is perverse, illegal and against the evidence on record and the same should be reversed by allowing the government appeal.
26. For proper assessment of the impugned judgement and order, analysis of the evidence on record is essential.
27. The first informant, P.W.1 Lallan Pandey, has stated in his evidence that Kailash Pandey was his father who was murdered in the occurrence. He has four real brothers, namely, Deena Nath Pandey, Bhola Nath Pandey, Anil Pandey and Awadhesh Pandey. Tara Devi is her mother. Accused Ganesh Pandey and Kesheo Pandey, sons of Shambhu Nath Pandey, are real brothers. Accused Shailesh Pandey is the son of Shyam Narayan Pandey. Shyam Narayan Pandey and Shambhu Nath Pandey are real brothers and are residents of Padhanpur Devi, P.S.- Nandgaon. Girija Devi, daughter of Ambika Tiwari is the mother of accused-respondents, Ganesh and Kesheo. Ambika Tiwari is the resident of his village- Dhurhura, P.S.- Birno. Ambika Tiwari had no son. Ganesh Pandey, Kesheo Pandey and his father lived in his village. Accused Shailesh Pandey used to visit his village. The maternal grandfather of accused Ambika and maternal grandfather of first informant belonged to same family. The first informant's sahan is towards east of his house. Towards southern side of his house, a gali is situated. Towards south of this gali, house of accused Ganesh Pandey and Kesheo Pandey is situated. Accused's sahan is towards east of their house. There is a boundary wall of brick between the sahan of accused and informant. The waste pipe (nabdan) of the house of accused opens in the gali towards north of his house. This waste pipe passes towards southeast of the boundary wall. The informant's sahan is at a higher level from that of the accused.
28. The first informant has also stated in his evidence dated 13.08.1986 that about 10 months ago at 10 o'clock in the morning, his brother Anil Kumar Pandey, Awadhesh Pandey, father Kailash Pandey and mother Tara Devi were present at the doorstep of the house. Accused-respondents Ganesh Pandey, Kesheo Pandey and Shailesh Pandey arrived in his sahan from the turn of the gali. Accused Kesheo started digging a pit. The other accused were standing there. The informant's father, Kailash Pandey prohibited them from digging. The accused started abusing his father. At that time, witnesses, namely, Ram Nath Tiwari and Jai Narayan also arrived there. When accused did not stop digging the pit, informant's father came at his door and told the first informant to go to the police station and lodge a complaint against the accused. Meanwhile, accused-respondents Ganesh Pandey, Kesheo Pandey and Shailesh Pandey arrived at his doorstep. Kesheo Pandey had a spade in his hand and accused-respondents, Ganesh Pandey and Shailesh Pandey had country-made pistols. On the exhortation of Kesheo Pandey, accused Shailesh Pandey and Ganesh Pandey fired on informant's father by their country-made pistols which hit on his back and he fell in the verandah. Accused Shailesh Pandey and Ganesh Pandey also fired at informant and other persons of his side but they got scattered and saved themselves. After the accused had left the place of occurrence, first informant and other persons came to Kailash Pandey. They placed him on a cot and wanted to carry him to the hospital. But before they could do so, he died. The first informant stated that he scribed the written report (Ext.Ka.1) and after visiting the P.S.- Birno, gave it to the constable clerk. Thus, first information report was registered. The house of witnesses, Ram Nath and Jai Narayan is situated at 200 paces from his house.
29. P.W.1 Lallan Pandey also stated that towards south of his house, a gali is situated which is 5-6 paces in width. A boundary wall is situated towards north-eastern side of the house of accused, Ganesh Pandey and Kesheo Pandey. The gali exits from the west to east and ends after arriving at the boundary wall. The first informant's house is situated towards the north of gali. His courtyard is towards the east of the gali. The accused wanted that the water of their waste pipe is drained in the courtyard of the first informant. Accused's mother Girija Devi had filed a civil suit for this purpose. The gali is being used exclusively by the first informant and the accused. The first informant admits that he has not mentioned in his written report that accused Kesheo Pandey had a spade in his hand. The witness stated that on the date of occurrence, accused wanted to drain the water of his waste pipe in his courtyard. For that purpose, they had got a pit of about 9ft. x 9ft. x 9ft. dug in his sahan. The informant has stated that the accused were increasing the size of the pit in his courtyard. He had told the Investigating Officer about it and had shown the pit dug by the accused and mud taken out from it. When the accused were abusing his father and threatening to kill him, his father left that place and went about 7-8 steps away from the accused towards north of the courtyard. When informant's father was running away, accused Ganesh Pandey and Shailesh Pandey chased him and fired at him. Two bullets fired by each accused hit his father. When accused fired on his father, he was about 3-4 paces away from them.
30. P.W.1 Lallan Pandey stated in his cross-examination that after the occurrence, he went to the police station with the village watchman on foot. He reached the police station half an hour after the occurrence. He remained in the police station for about 19-20 minutes. Thereafter, the Investigating Officer took him on jeep to the place of occurrence where the dead body was wrapped in cloth and sealed. The first informant denied that the murder of Kailash Pandey was committed at 8-9 o'clock in the night at some different place by unknown persons but he got accused falsely implicated in the criminal case. He also denied that the first information report was lodged ante-time.
31. Another son of the deceased, P.W.4 Anil Kumar Pandey has also in his evidence dated 16.10.1986 narrated the date, time and place of occurrence. At that time, he, his father, mother, brothers Lallan and Avadhesh and sister were present on the door of the house. He has also stated that the accused Kesheo Pandey was digging pit so that the water of his waste pipe could be drained in first informant's courtyard (sahan). Accused Ganesh Pandey and Shailesh Pandey were also present there. His father forbid them from digging the pit but they continued to dig. They hurled abuses at his father. Accused Kesheo Pandey exhorted to kill. Accused Ganesh Pandey and Shailesh Pandey chased his father with country-made pistols in their hands. They fired on his father by the country-made pistols causing him gunshot injuries. His father fell on the ground in the verandah after receiving the gunshot injury. After the accused had left the place of occurrence, he, first informant and his other relatives lay his father Kailash on a cot.
32. P.W.4 Anil Kumar Pandey has stated in his cross-examination that only accused Kesheo Pandey was digging mud in his sahan with the aid of a spade. Accused Ganesh Pandey and Shailesh Pandey arrived at the sahan from the gali with country-made pistols in their hands and fired on his father from a distance of 2-3 paces. Accused Kesheo Pandey had exhorted them to kill his father. He and his family members were at a distance of 7-8 paces from the accused.
33. Another eye witness of the incident, P.W.5 Ram Nath Tiwari has stated in his evidence that his house is situated about 200-225 paces away from the house of Kailash Pandey in village- Dhurhera, P.S.- Birno, District- Ghazipur. At about 10 a.m. on the date of occurrence, after hearing the noise, he reached in the courtyard of Kailash Pandey. Accused Kesheo Pandey exhorted co-accused to kill Kailash Pandey. Accused Shailesh Pandey and Ganesh Pandey fired on Kailash Pandey from their country-made pistols. Accused Kesheo Pandey had a spade (kudal) in his hand. Besides other witnesses, Kailash's son, Lallan, Amit and Avadhesh were present there. Accused Ganesh Pandey and Shailesh Pandey fired on the children and wife of Kailash Pandey but they did not receive any firearm injury. After receiving firearm injury, Kailash Pandey fell on the verandah and succumbed due to firearm injuries.
34. P.W.5 Ram Nath Tiwari stated in his cross-examination that he remained for about 5-6 minutes on the place of occurrence and then left for his house. On the next day, he visited the mortuary at 12 p.m. in Ghazipur where postmortem of deceased Kailash Pandey was done. There he met brother and sons of Kailash Pandey including other villagers. The witness stated in his cross-examination that when Kailash Pandey was about 1/2-1 pace away from his verandah, he received firearm injury caused by firing of accused Shailesh Pandey and Ganesh Pandey by their country-made pistols. The sons of Kailash Pandey, namely, Lallan, Awadhesh and Anil were at a distance of 7-8 paces away from the accused. When Kailash Pandey was kept on the cot (चारपाई), he was dead. P.W.5 Ram Nath Tiwari denied that he is a relative of Kailash Pandey and have enmity with the accused Kesheo Pandey and due to this reason, he has given false evidence.
35. P.W.6 Dr. U.P. Sharma has conducted the postmortem of the deceased Kailash Pandey son of Badri Pandey on 09.10.1985 at 2:30 p.m. He has prepared the postmortem report (Ext.Ka.4). The postmortem report shows that five gunshot injuries were found on the person of the deceased.
36. P.W.6 Dr. U.P. Sharma has stated that during postmortem, three large sized bullets were recovered from the dead body of deceased. He had packed and sealed these pellets and handed it over to the constables for being forwarded to S.P. concerned. He has proved the bullets as (material Ext.1). P.W.6 Dr. U.P. Sharma has stated in his evidence that the victim died due to ante-mortem injuries which were sufficient to cause death of a person in the ordinary course. The deceased could have died on 08.10.1985 at 10 a.m.
37. The Investigating Officer P.W.7 S.I. Vijay Kumar Mishra has stated in his evidence that on 08.10.1985 i.e. on the date of occurrence, he reached at the place where the dead body was lying and got the inquest of the deceased done. He proved the inquest report (Ext.Ka.7). He also proved the photo lash of the dead body as well as challan lash as (Ext.Ka.8 and Ext.Ka.9 respectively). He also proved the other documents prepared by him relating to postmortem (Ext.Ka.12). He stated that after getting the dead body wrapped in cloth and getting it sealed, he handed it over with necessary papers to Constables Ram Narayan Singh and Vijay Shankar Yadav for taking it for postmortem. P.W.7 S.I. Vijay Kumar Mishra also proved the site plan of the place of occurrence (Ext.Ka.11), memo relating to collecting blood-stained and plain mud from the place of occurrence (Ext.Ka.12), recovery memo of bullets and pellets and empty cartridges collected from the place of occurrence (Ext.Ka.13). He has also proved the empty cartridge as (material Ext.2) and 3 bullets and 16 pellets collected by him as (material Ext.3 and Ext.4). P.W.7 S.I. Vijay Kumar Mishra recorded the statements of the witnesses. He stated that thereafter, he was transferred and further investigation was done by S.O. Birnu, S.I. Gangasagar Yadav. He proved the charge-sheet (Ext.Ka.26) submitted by S.I. Gangasagar Yadav.
38. On 16.01.1987, the trial court recorded the statements of accused u/s 313 Cr.P.C. The accused stated that on false and forged oral and documentary evidence, charge-sheet was filed against them. Accused Ganesh Pandey stated that at the time of the occurrence, he was in duty at Allahabad as Village Development Officer in Sharda Sahayak Project. They were prosecuted due to enmity. They also stated that case was registered to pressurize them in civil litigation pending between both parties. Accused Shailesh Pandey has further stated that at the date and time of the occurrence, he was not at the place of occurrence but due to being ill, he was at his home in Devkali.
39. In the first information report, it is mentioned that the dispute arose as the accused started digging the pit in the common passage. When first informant's father, Kailash Pandey resisted, the accused hurled abuses at him and fired at him causing his death. Contrary to the averments made in the first information report, the first informant P.W.1 Lallan Pandey has stated in his evidence that at the time of the occurrence, all the accused came on his sahan. Accused Kesheo Pandey started digging a pit in his sahan. The other two accused were standing nearby him. At the time of the occurrence, the accused wanted to take their waste pipe (nabdan) into his sahan. Thus, from the statements of P.W.1 Lallan Pandey, the place where the pit was being dug gets shifted from the common passage (gali) to his sahan. Thus, the place where the pit was being dug is not fixed/specified as the gali is common passage whereas sahan is situated within the boundary wall of the first informant.
40. Another eye witness P.W.4 Anil Kumar Pandey, brother of P.W.1 Lallan Pandey has stated how the dispute arose. He has stated that the accused had started digging his sahan. He has shifted this place still more towards east and has said that this place was situated in the southeast direction of his house and was in his sahan. According to him, this place is situated in the southeast portion of his sahan. He has clearly said that the accused were not digging the waste pipe (nabdan). Thus, he has shifted the place of pit completely away from the common passage to his sahan. His statement that waste pipe (nabdan) of the accused was not dug by them further shows that the pit had no connection with the waste pipe (nabdan). It had also no connection with the rains which had taken place on that date.
41. The Investigating Officer P.W.7 S.I. Vijay Kumar Mishra who visited the place of occurrence within two hours has stated that the pit was situated towards south of the informant's south eastern room. This place as shown in the site plan lies in between the boundary wall of the accused and the south eastern portion of the informant's house i.e. in the common passage (gali). P.W.7 S.I. Vijay Kumar Mishra had shown this pit in front of the entrance of the accused on the eastern side. According to him, the size of the pit was nearly 1ft. long 6 inch wide and nearly 6 inch deep. It had no water in it. He has also stated that the waste pipe (nabdan) of the accused also had no water.
42. Thus, a close scrutiny of the prosecution evidence reveals that there is difference about the place where the pit was being dug as mentioned in the first information report and that of evidence of prosecution witnesses, namely, P.W.1 Lallan Pandey, P.W.4 Anil Kumar Pandey and Investigating Officer P.W.7 S.I. Vijay Kumar Mishra. There is gradual shifting of the place where the alleged pit was being dug. The F.I.R. says that it was in the common passage (gali). The first informant P.W.1 Lallan Pandey says it to be at a place where gali terminated in his sahan. P.W.4 Anil Kumar Pandey says its still more in the east in his sahan. The Investigating Officer P.W.7 S.I. Vijay Kumar Mishra found it near the entrance of the boundary wall of the accuseds' sahan. The gradual shifting of the place of pit is apparent in the case. It has a particular meaning. The digging of the pit in the common passage could not cause any motive for the occurrence. Later on, that theory appears to have been given up and a stronger cause of motive appears to have been introduced. The digging of the pit was shifted from common passage (gali) to informant's sahan. Thus, the place of the pit given in the F.I.R. has been changed by the witnesses in their evidence. The aforesaid three witnesses, namely, P.W.1 Lallan Pandey, P.W.4 Anil Kumar Pandey and Investigating Officer P.W.7 S.I. Vijay Kumar Mishra in their statements pointed out different places where the pit was being dug. This leads to the conclusion that in fact there was no pit being dug by the accused. If there was no water in the waste pipe (nabdan), there was no water in the pit. There was no necessity of digging up of the pit. The pit was not even connected with the waste pipe (nabdan) of the accused. The size of the pit 1' x 6" x 6" as found by the Investigating Officer was so small that it could not serve the purpose of the accused. Thus, looking at the divergent statements of the witnesses regarding the location of this pit, its location in the F.I.R., its nature and size, its purpose, we are of the view that the theory of digging the pit by accused is not correct as there is contradiction in the F.I.R. and the statements of the witnesses regarding the place where the pit was being dug.
43. If the aforesaid pit had no link with the waste pipe (nabdan), the digging of a pit in the sahan of the informant had no meaning. Moreover, the mother of the accused had filed a civil suit in connection with the waste pipe (nabdan) against the family of the informant. There appears no reason why the accused would unnecessarily dig the sahan of the first informant which is situated ½ ft. above the gali and the water of the waste pipe (nabdan) could not flow into the sahan. The Investigating Officer has not shown in the site plan the course of waste pipe (nabdan) beyond the common passage (gali). As the whole rainy season had passed peacefully at the time of the incident in the month of October, there appears no reason of digging a new course of waste pipe (nabdan) through sahan of the first informant. In view of these facts, we have a serious doubt whether the accused were digging any pit in the sahan of the first informant and the deceased protested it. The immediate cause of the occurrence told by the prosecution does not appear to be true. This makes a serious dent in the veracity of the prosecution case.
44. According to the prosecution version, the place of occurrence is outer verandah of the first informant's house. All the three eye witnesses, namely, P.W.1 Lallan Pandey, P.W.4 Anil Kumar Pandey and P.W.5 Ram Nath Tiwari have stated that at the time of the occurrence, the first informant and his family members were present in front of their house. Firstly, accused Kesheo Pandey instigated co-accused persons, Ganesh Pandey and Shailesh Pandey who fired at Kailash Pandey from a distance of 2-3 paces while Kailash Pandey was running towards the door of his house. After shooting at Kailash Pandey, both the accused armed with their country-made pistols, fired at first informant and his other family members including three brothers, Lallan Pandey, Anil Kumar Pandey and Awadhesh Pandey and their sister Gayatri Pandey and mother, Tara Devi.
45. Accused persons, Ganesh Pandey and Shailesh Pandey were firing with their country-made pistols on the first informant and 4 other relatives who were standing almost close to one another but none of them were injured in the firing, seems highly improbable. Accused persons would not be able to escape after firing if the first informant and the aforesaid family members were present at the place of occurrence. It raises doubt about the presence of the prosecution witnesses at the place on the time of the occurrence.
46. P.W.1 Lallan Pandey and P.W.4 Anil Kumar Pandey were standing in the sahan but no pellets were recovered from the sahan. Thus, place of occurrence does not appear to be in the house of the informant as alleged by the prosecution. Blood-stained earth and simple earth was taken from the place of occurrence by the Investigating Officer but this earth sample was not sent to the serologist or chemical examiner. There is no chemical examiner's report that the blood in the earth was that of a human being. Therefore, the blood-stained earth allegedly taken from the place of occurrence does not fix the place of occurrence.
47. P.W.1 Lallan Pandey and P.W.4 Anil Kumar Pandey being sons of deceased, their presence at the place of occurrence (house normally) cannot be viewed with suspicion but under aforesaid circumstances of their not receiving any injury and not being able to apprehend the accused persons, their presence becomes suspicious. The presence of P.W.5 Ram Nath Tiwari is highly doubtful. He is purely a chance witness. He has stated in his evidence that he had gone for bathing in the river. In his cross-examination, he developed it further and said that his buffalo had ran away from his house and he was going to the river to search it. He has admitted that he resides in hamlet of village- Dhurhera situated at distance of 200-225 paces. He has not given any definite time to go to the river. These facts create a serious doubt on his presence at the place of occurrence.
48. As per the prosecution case, Kailash Pandey was shot at 10 a.m. Learned counsel for the accused-respondents has assailed this time and has suggested that in the circumstances of the case, his death might have been caused in the night at 8-9 p.m. on 08.10.1985. The Investigating Officer reached there at 12.30 p.m. After conducting the inquest, the dead body was handed over to the constables at 2.30 p.m. for taking it to Ghazipur for postmortem. The dead body was taken to the mortuary which was 16-17 km from the place of occurrence. The whole distance was on national highway where taxi and other modes of transportation were available round the clock. According to prosecution case, since no vehicle was available, the dead body was carried by men on their shoulders on foot. It reached the Headquarter (Police Line) at 12.10 p.m. on 09.10.1985. The doctor conducting the postmortem received the dead body at 2.30 p.m. Thus, the dead body was produced before the doctor nearly 29 hours after the occurrence. The prosecution witnesses have tried to explain the delay stating that no vehicle was available to carry the dead body and due to rains, they had to spend their nights in the building at Shehzadpur school. Next day, they proceeded for Ghazipur at 7 a.m. The explanation offered by the prosecution for the delay is not believable as taxis and other vehicles are available there almost at all times. The inordinate delay in body reaching the mortuary for postmortem shows that the dead body was not handed over to the constables at 2.30 p.m. on 08.10.1985 and the death of Kailash Pandey did not take at the time alleged by the prosecution. The medical evidence of P.W.6 Dr. U.P. Sharma who allegedly conducted the postmortem of dead body at 2.30 p.m. on 09.10.1985 mentions that rigor mortis was present on the lower and upper limbs of the deceased. The process of disappearance of the rigor mortis had not yet started. The rigor mortis disappears within 18-19 hours of the death. The process of disappearance of the rigor mortis is enhanced by atmospheric temperature. The date of occurrence i.e. 08.10.1985 was not winter season. Thus, the temperature would not slow down the process of disappearance of rigor mortis. The atmosphere was moist. Since the aforesaid process of disappearance of rigor mortis had not commenced, it shows that the death had taken place within a lesser period i.e. within 18 hours. Thus, death may have taken place 15-16 hours before the postmortem i.e. at 11 p.m. on 08.10.1985 and not at 10 a.m. on 08.10.1985 as alleged by the prosecution. If death had taken place at 10 a.m. on 08.10.1985, rigor mortis should have disappeared till 5 a.m. on 09.10.1985 and shall not be present on 09.10.1985 at 2.30 p.m. i.e. at the time of the postmortem.
49. It is argued by learned A.G.A. for the State that not much importance should be attached to the medical evidence as it has not taken place in mathematical exactitude. Several other factors as weather condition and status of the dead body affects the time of disappearance of rigor mortis.
50. According to the medical jurisprudence of Dr. R.M. Zhall and Dr. Modi, the average period of disappearance of rigor mortis in tropical season is 18-19 hours. This period may be stretched and extended to 5 more hours. It is not believable that even after a gap of 28½ hours, at the time of postmortem on 09.10.1985 at 2.30 p.m., the process of disappearance of the rigor mortis would not have commenced. Thus, the medical evidence raises a serious doubt on the prosecution case that Kailash Pandey died at 10 a.m. on 08.10.1985. It also raises doubt that his body was handed over to the police constables on 08.10.1985 at 2.30 p.m.
51. P.W.6 Dr. U.P. Sharma has stated in his evidence that he found undigested food in the stomach of the deceased at the time of postmortem examination. He has opined that the deceased died within 1/2 hours after taking the food.
52. P.W.5 Ram Nath Tiwari has stated in his evidence that members of his family were at the door of his house 1-2 hours before the time of the occurrence which suggests that the deceased had not taken food atleast within 1 hour before the time of occurrence. This fact is in contradiction with the medical evidence. Under the aforesaid circumstances, the meals taken by the deceased Kailash Pandey would have been digested till 10 a.m. on the date of occurrence and shall not remain undigested at the time of postmortem i.e. 2.30 p.m. on 09.10.1985. P.W.6 Dr. U.P. Sharma has also admitted in his cross-examination that the deceased may have died on 08.10.1985 at 8-9 p.m. Thus, the time of occurrence of 10 a.m. on 08.10.1985 is not supported with medical evidence and cannot be accepted.
53. P.W.6 Dr. U.P. Sharma has stated in his evidence that 5 gunshot wounds were found on the back side of the deceased. These wounds were situated in a distance of 12 cm vertically and nearly 11-12 cm horizontally. The situation of the gunshot wounds suggests that they were situated in a circle whose diameter is nearly 12-15 cm.
54. According to the evidence of prosecution witnesses, namely, P.W.1 Lallan Pandey and P.W.4 Anil Kumar Pandey, when their father was 7-8 paces away in the verandah in the southeast direction, the accused persons came near his father who ran away in the northwest direction of the verandah. The accused shot at his father where he was 2-3 paces away in the east direction of the verandah. Thus, the accused fired at Kailash Pandey at about 5-6 paces away from them (which is about a distance of 8-10 ft.). On firing from this distance, the dispersal of the pellets shall be observed in the area of 10-20 cms.
55. According to Dr. Modi's Medical Jurisprudence, on firing from a distance of 8-10 ft. if individual pellets enters the body, it widely spreads, producing several openings in an area of 5-7 inches in diameter.
56. Thus, in the instant case of firing from 8-10 ft. distance, the gunshot wounds would be found in a diameter of 5-8 inches. The size of the gunshot wounds suggests that they were caused by one shot of firearm. The existence of gunshot wounds on the right side of the back further strengthens this view that three injuries were almost in vertical lines and two were on each side of the vertical column. Looking at the size and situation of the injuries, it appears that probably they were caused by one shot of firearm and not by two shots as stated by the prosecution witnesses. This creates doubt regarding the involvement of two accused, namely, Ganesh and Shailesh Pandey in firing at the deceased Kailash Pandey.
57. The prosecution has tried to rope in accused Kesheo Pandey along with co-accused, Ganesh Pandey and Shailesh Pandey in the murder of deceased Kailash Pandey on the basis of provisions of Section 34 I.P.C. alleging that accused Kesheo Pandey exhorted co-accused, Ganesh Pandey and Shailesh Pandey and on his exhortation, in furtherance of common intention of all, accused persons, Ganesh Pandey and Shailesh Pandey fired at deceased Kailash Pandey resulting in his death. The prosecution witnesses, namely, P.W.1 Lallan Pandey and P.W.4 Anil Kumar Pandey have stated in their evidence that on the exhortation of Kesheo Pandey, accused Ganesh Pandey and Shailesh Pandey fired on his father Kailash Pandey by their country-made pistols. They have mentioned the role of exhortation by accused Kesheo Pandey. From the evidence of P.W.1 Lallan Pandey and P.W.4 Anil Kumar Pandey, it also transpires that there was prolonged enmity between the family of deceased Kailash Pandey and accused persons, Kesheo Pandey and Ganesh Pandey. A civil suit was pending regarding the sahan of the first informant between the first informant's family and that of accused, Kesheo Pandey and Ganesh Pandey.
58. The Hon'ble Apex Court in Nagaraj Vs. State of Karnataka, (2008) 17 SCC 277 has held that mere exhortation by one of the accused persons to other co-accused to kill the deceased cannot be ground for roping in all accused persons on the basis of their common intention especially in circumstances when long drawn civil dispute was pending between them. The only allegation against the accused-respondent, Kesheo Pandey was his exhortation and his family's enmity with the family of the deceased due to civil litigation. In such a situation, it cannot be ruled out that the name of the accused-respondent, Kesheo Pandey was added due to enmity with the deceased.
59. In Suresh Vs. State of U.P., (2001) 3 SCC 673, the Apex Court has held that only when a court with some certainty holds that a particular accused must have pre-conceived or pre-meditated the result that ensued or acted in concert with others in order to bring about that result, then Section 34 may be applicable.
60. From their evidence, it appears that accused Kesheo Pandey was merely digging a pit to facilitate the flow of the water of their waste pipe (nabdan). It does not appear that he was actively involved in exhortation with the intention that co-accused, Ganesh Pandey and Shailesh Pandey fired on Kailash Pandey resulting in his death. In their evidence, it has not been mentioned that both accused, Ganesh Pandey and Shailesh Pandey arrived at the place of occurrence holding country-made pistols in their hands with the intention to kill Kailash Pandey. It does not appear that both accused, Ganesh Pandey and Shailesh Pandey fired on deceased Kailash Pandey in furtherance of common intention to kill Kailash Pandey. Apart from this, the spread of pellets in the area of only 5-6 inches of diameter shows that Ganesh Pandey received gunshot wounds caused from only one country-made pistol and not two country-made pistols. Accused Ganesh Pandey is the resident of village- Dhurhera, P.S.- Birno whereas Shailesh Pandey is the resident of village- Padhanpur Devi, P.S.- Nandgaon. He is the cousin of Ganesh Pandey living in different village. At the time of the incident, his age was 18 years. His arrival on the place of occurrence from a distant place equipped with country-made pistol simultaneously with co-accused Ganesh Pandey who is the resident of the village of first informant, does not look probable.
61. Thus, no inference can be drawn that in pursuance of common intention, accused Ganesh Pandey and Shailesh Pandey fired by their country-made pistols on deceased Kailash Pandey causing his death. It appears that accused Kesheo Pandey and Shailesh Pandey have been falsely roped in and implicated with co-accused Ganesh for being involved in causing the death of Kailash Pandey in pursuance of common intention.
62. Accused-respondent, Ganesh Pandey has died during the pendency of this appeal and the appeal qua Ganesh Pandey has been abated.
63. The Investigating Officer has collected used up cartridges and pellets from the place of occurrence. He has not recovered the country-made pistols from which the alleged recovered cartridges were fired which contained the pellets recovered from the place of occurrence. Three big pellets were recovered by P.W.6 Dr. U.P. Sharma during postmortem from the body of deceased Kailash Pandey. The Investigating Officer had not sent the cartridges and pellets for forensic examination of the ballistic expert which were recovered from the place of occurrence or the body of deceased Kailash Pandey. There is no report of ballistic expert that the aforesaid recovered cartridges and pellets were fired from the country-made pistols used by the accused Ganesh Pandey and Shailesh Pandey.
64. Considering the other contradictions and inconsistencies in the evidence of eye-witnesses, namely, P.W.1 Lallan Pandey, P.W.4 Anil Kumar Pandey and P.W.5 Ram Nath Tiwari, it is necessary that their oral evidence is corroborated with the ballistic expert report connecting the country-made pistols used by the accused Ganesh Pandey and Shailesh Pandey to the cartridges and pellets recovered from the place of occurrence and the body of deceased Kailash Pandey.
65. From the above discussion of the evidence on record, we are of the considered opinion that the finding of acquittal rendered by the trial court is a reasonable and plausible one and it cannot be said to be perverse, illegal or not plausible.
66. Consequently, the present government appeal filed by the State has no force and is accordingly dismissed.
67. The trial court record be remitted back forthwith.
68. Let a certified copy of this judgement and order be forwarded to the court concerned along with trial court record for information and necessary compliance.
Order Date :- 12.12.2024 KS