Rishi Pal And Others vs State on 7 April, 2017

[Cites 7, Cited by 0]

Allahabad High Court

Rishi Pal And Others vs State on 7 April, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 06.06.1991 passed by IV-Additional Sessions Judge, Bijnor, in Sessions Trial No.385 of 1989 State of U.P. Vs. Rishi Pal and others, arising out of Case Crime No.122 of 1989, under Sections 302/149 IPC, Police Station- Shivala Kalan, District- Bijnor, whereby the appellants have been sentenced to life imprisonment under Section 302/149 IPC.

Heard Sri Veer Singh, learned counsel for the appellants, Sri Saghir Ahmad assisted by Sri J.K. Upadhyay, learned AGAs, Smt. Manju Thakur, brief holder for the State and perused the record of this appeal.

The prosecution story unfolded by the first information report reveals that the informant Smt. Kailasho niece of Sukhram, resident of Village Yusufa, Police Station Shivala Kalan, District Bijnor lodged the report at Police Station Shivala Kalan, District Bijnor on 22.08.1989 at 10:40 a.m. against the present appellants Rishi Pal, Mangla and Omi along with others, for causing death of her maternal uncle Sukhram, the same day around 8:00 a.m. in the village Yusufa within the same police station with the allegations that the deceased Sukhram was taken away by Om Pal Singh son of the informant's elder maternal uncle on 22.08.1989 around 8:00 a.m. for contacting Rajendra Singh in Meerut in connection with some employment. As soon as both of them arrived at the crossing of chak road of the village - lying one kilometer away to the southern side of the village - the present appellants along with several persons appeared on the scene from behind bushes. Om Pal gripped the deceased Sukhram. Omi and Rishi Pal fired on him and Mangla gave 'Dati' blow and the other co-accused also played their respective role. Sukhram raised alarm whereupon the informant's son Brahmpal, her brother Om Prakash, Ram Singh and the informant herself arrived on the spot. The accused threatened them of dire consequence and disappeared in the bushes. It has been mentioned in the ending part of the written report that the deceased Sukhram was living with the informant as he had no wife and no issue and was willing to give his share to the informant. Due to aforesaid fact, the assailants killed her maternal uncle. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-1.

Record further reveals that contents of the written information were taken down in the concerned Check FIR at Case Crime No.122 of 1989 under Sections 147, 148, 149, 302 IPC, at Police Station Shivala Kalan, District Bijnor, on 22.08.1989 at 10:40 a.m. Check FIR is Ext. Ka-13. On the basis of entries so made in the check F.I.R., a case was registered against the accused-persons in the relevant G.D. at serial no.14 on 22.08.1989 at 10:40 a.m. at aforesaid case crime number at Police Station Shivala Kalan under aforesaid sections of I.P.C. against accused-persons. General diary copy is Ext. Ka-14.

We gather from the record that investigation of the case ensued and was taken over by K.P. Singh PW-4, Station Officer, who immediately started investigation. After registration of the case, he took note of contents of the concerned general diary, case diary, first information report and recorded statement of Head Moharrir Ataulla Rahman Rizvi and proceeded to the spot. After arrival on the spot, he selected inquest witnesses, took stock of the situation and noted relevant contents in the inquest report which commenced at 12:30 p.m. and completed at 2:45 p.m. The inquest witnesses concurred with the Investigating Officer that the dead body be sent for post mortem examination in order to ascertain real cause of death. Inquest report is Ex. Ka-2.

In the process, relevant papers were prepared for sending the dead body for post mortem examination such as letter to CMO Ext. Ka-3, letter to R.I. Ext. Ka-4, photonash Ext. Ka-5 and challan dead body Ext. Ka-6. The dead body was sent to the District Hospital, Bijnor in the safe custody of Constable Suraj Pal Singh PW-3, the very same day on 22.08.1989 after it was handed over to him.

Thereafter, post mortem examination on the cadaver of the deceased Sukhram was done by Dr. A.K. Gupta PW-5 on 23.08.1989 at 12:00 noon in the mortuary at Bijnor wherein he noted the following ante mortem injuries:

1. Firearm lacerated wound (wound of entry) 5 cm x 2 cm x bone deep and muscle deep over left ear lower most part oval in shape, blackening and tattooing present around 2 cm of area of wound. Left ear lobule tragus almost 2/3rd part of ear badly lacerated, torn and deformed underneath portion of left mandible broken into pieces, bullet entered in intramuscular space damaging long blood vessel then passed across the neck below base of skull imported in under area of right side of mandible which is also broken into multiple pieces. Tikli (3 pieces) and 83 pellets recovered on right side of neck in various depth.

2. Incised wound 7 cm x 3 cm x muscle deep on side of scalp, 3 cm above right ear, obliquely placed, spindle shape, tapering downward.

3. Incised wound 1.5 cm x 1.25 cm x muscle deep on left hand over interdigital spaces between left index and left middle finger.

4. Incised wound 1 cm x 1/2 cm x muscle deep on left side of back, 2 cm over to mid spinal line at level of thoracic 3 vertebra.

5. Multiple firearm, lacerated wound in an area of 7 cm x 5 cm x 16 in numbers, oval in shape measuring about 1/2 cm x 0.7 cm on right side of back of chest, 3 cm below scapula right. All wounds are skin deep. No pellet recovered.

In the opinion of the doctor, cause of death was due to shock and haemorrhage. This post mortem examination report is Ext. Ka-17.

We gather from the record that as the investigation was in progress, the Investigating Officer inspected the spot and took simple and blood stained clay roll in two separate containers from the spot in presence of the witnesses. The Investigating Officer prepared site plan Ext. Ka-9 and memo of clay roll Ext. Ka-7. The Investigating Officer also prepared memo of recovery of empty cartridges and Tikli from the spot which is Ext. Ka-8.

We further gather from record that the accused Rishi Pal was also involved in recovery of some weapon connected with this case regarding which judgment of acquittal has been pronounced by the trial court and which case is not subject of our consideration in this appeal, therefore, detail concerning that particular aspect being redundant need not be dealt with by us.

We further notice that the Investigating Officer arrested Rishi Pal on 12.09.1989 at 4:15 a.m. and after completing the investigation, charge sheet was filed against the accused Rishi Pal, Omi and Om Pal as Ext. Ka-12.

Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of IV-Additional Sessions Judge, Bijnor, who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the accused-appellants, accordingly, framed charge. Charge was read over and explained to the accused-appellants who abjured charge and opted for trial.

In the process, the prosecution was asked to adduce its testimony whereupon the prosecution produced the following witnesses whose reference is being sketched hereinbelow.

Kailaso PW-1 is the informant and claims herself to be an eyewitness of the occurrence. Om Prakash is also eyewitness of the incident. Constable Suraj Pal Singh PW-3 has conveyed over the dead body of Sukhram to the mortuary at Bijnor and has proved safe custody of the corpse. K.P. Singh PW-4 is the Investigating Officer of the case. He has detailed various steps, he took in completing the investigation. He has also proved filing of the charge sheet against the accused. Dr. A.K. Gupta PW-5 has conducted autopsy on the cadaver of the deceased on 23.08.1989 and has described cause of death besides proving post mortem examination report Ext. Ka-17. Constable Ataul Rahman Rizvi PW-6 made relevant entry of the written report in the concerned Check FIR as well as GD and has proved as Ext. Ka-13 and Ext. Ka-14, respectively. Suraj Pal Singh PW-7 has testified fact of arrest of Rishi Pal on 12.09.1989 and he is a formal witness.

Except as above, no other ocular testimony was adduced by the prosecution, therefore, evidence for the prosecution was closed and the statement of the accused-appellants was recorded under Section 313 Cr.P.C. In their statement, they have claimed their implication false and claimed that no worthy evidence has been collected during investigation. No evidence, whatsoever, was adduced on behalf of the defence. Thereafter, evidence for the defence was closed and the case was posted for arguments.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against accused-appellants under Section 302/149 IPC and sentenced each of the accused-appellants to life imprisonment under Sections 302/149 IPC.

Consequently, this appeal.

It has been vociferously claimed on behalf of the appellants that in this case, no one saw the occurrence and the names of the appellants have been deliberately mentioned in the first information report after consultation with the police on account of family dispute regarding some property. There was no occasion for the appellants to ever indulge in such offence, because the appellants themselves were to inherit property of the deceased Sukhram and the deceased Sukhram was done to death by the informant side and the appellants have been made scapegoat in their place.

It has been further contended on behalf of the appellants that eyewitness account testimony is highly tutored, full of embellishments and does not inspire confidence. Testimony of the prosecution witnesses, on the whole, is contradictory in material particulars. The place of the occurrence is one kilometer away from the house of the informant. The informant claims herself to have arrived on the spot which aspect under circumstances becomes dramatic because Kailaso PW-1 - the informant was preparing food/snacks when the deceased Sukhram left home in the morning. Similarly, presence of the other eyewitness on the spot is highly doubtful. The prosecution witnesses being relatives and interested are partisan witnesses and their testimony is biased as that of interested witnesses.

It has been further contended on behalf of the appellants that motive imputed against the appellants is vague and the same is equally applicable on the informant side, if the same is believed to be correct, though correctness of the motive imputed against the appellants is denied. The place of occurrence is not definite and the investigation conducted is sloppy and unfair. Since the police had to work out the case of murder, therefore, the police found it easy and convenient to rope in, the appellants after colluding with the informant side. The property matter is under dispute as mutation sought on the basis of will by the informant side has been objected to by the accused side and mutation is contentious. In fact the informant side tried to grab the property of the deceased Sukhram by killing him in their own fashion and style and wrongly implicated the appellants in this case. The first information report is ante timed.

It has been further contended on behalf of the appellants that the trial Judge has acquitted several accused persons on the same piece of testimony of the prosecution witnesses which also speaks volumes of casual attitude of the trial Judge in ensuring conviction of the present appellants on the same testimony of the prosecution witnesses. The testimony of the prosecution witnesses working in favour of the acquitted accused is equally applicable to the case of the present appellants. The entire testimony does not inspire confidence. The prosecution has failed to prove charge beyond reasonable doubt. Finding of conviction is erroneous and perverse which needs to be set aside by this Court.

Per contra, learned AGA while replying to the aforesaid contentions has submitted that it is a case fully consistent and the incident took place in broad day light in the presence of the eyewitnesses. The accused are very much known to the prosecution witnesses and they are relatives of the accused. The ghastly murder of the deceased Sukhram has been committed by the accused as revenge when the deceased Sukhram had executed will in favour of his niece (months prior to the incident) and they were trying to avoid the situation and in their bid, they eliminated the deceased Sukhram. The prosecution witnesses are natural so their presence on the spot is most natural. There was no occasion for the police to collude with the informant side as no worthy purpose will be served by colluding with the informant side.

Learned AGA has further submitted that there is no material contradiction in the testimony of the prosecution witnesses. On the contrary, testimony on the wholesome reading gives clear and consistent version of the incident and establishes fact that the accused persons committed murder of the deceased Sukhram. Merely because several accused persons have been exonerated of charge, that by itself does not indicate weakness of finding of conviction against the appellants; but it shows fairness on the part of the trial court that it generated some doubt about involvement of those accused persons in the commission of the crime, therefore, separated their case from the present appellants by acquitting them of charge.

Learned AGA has further contented that the site plan of the incident gives clear cut picture of the place of occurrence where the deceased Sukhram was murdered. Medical evidence corroborates ocular version. There is no contradiction between ocular and medical testimony. Cause of death has been diligently proved by Dr. A.K. Gupta PW-5. There is no reason to disbelieve version of witnesses of fact and to doubt their presence on the spot. If some improvement has surfaced in the testimony of the prosecution witnesses of fact then the same is natural; but this sort of improvement cannot be said to be on material point so as to make any dent in the prosecution story. The prosecution has been able to prove its case beyond reasonable doubt. Learned trial court has judiciously recorded conviction and has passed appropriate sentence.

We have also considered the rival submissions and taken into consideration rival claims in the light of the point that arises for determination of this appeal whether the prosecution has been able to prove charge under Section 302/149 IPC beyond reasonable doubt and has sentenced condignly.

The very motive imputed in the written report Ext. Ka-1 relates to fact that Om Pal Singh took with him the deceased Sukhram on the fateful day i.e. 22.08.1989 around 8:00 a.m. in the morning and the incident took place a little while thereafter at a place one kilometer away towards south of the village. The motive attributed for committing the crime was property dispute or property grudge of the appellants because the deceased Sukhram was residing with the informant Kailaso and was interested in bequeathing his property to the informant and this fact/aspects was bone of contention between both the parties.

In the backdrop of above motivating aspect of this case, we would scrutinize and analyze various facts of this case besides evaluating testimonial worth of the prosecution witnesses. Insofar as the occurrence is concerned, description has been presented by the prosecution witnesses of fact namely Kailaso and Om Prakash, PW-1 and PW-2, respectively.

In this context, we on careful perusal of testimony of Kailaso PW-1 come across certain relevant facts having direct bearing on facts leading to the actual occurrence. Her examination in chief reveals that she has specifically testified on point that on the date of occurrence, one co-accused Om Pal Singh came to her house and asked her maternal uncle to take him to Meerut so as to meet one Rajendra Singh for availing some job. The informant's maternal uncle used to live with Rajendra Singh at Meerut. Om Pal Singh took with him Sukhram. As soon as they reached at chak road crossing lying at a distance of one kilometer away towards south of the village, Om Pal Singh clasped him (Sukhram) in his grip when the appellants Rishi Pal, Omi and Mangla along with others appeared on the spot. Mangal was possessing 'Dati' while Omi and Rishi Pal were possessing countrymade gun, the other co-accused had tightened grip on the neck of Sukhram. Mangla gave blow with 'Dati' which hit on the temple region of Sukhram. In the meanwhile Omi and Rishi Pal shot at Sukhram- her maternal uncle.

It has been clarified in the examination in chief of this witness (PW-1) that after her maternal uncle was overpowered in grip then he raised alarm, whereupon Brahmpal, Om @ Om Prakash, Ram Singh and the informant herself arrived on the spot. They tried to save the deceased Sukhram but they were threatened on gun point. After receiving injury, her maternal uncle Sukhram fell on the ground and died. The assailants made their escape good towards eastern side.

It has been further clarified by this witness (PW-1) that accused Om Pal Singh is her cousin brother. Similarly, accused Mangla, Begraj and Mahraj are also her cousin brothers. Therefore, it is obvious that all the accused persons are related to the informant side. It has been testified in paragraph number 4 of the examination in chief that murder of Sukhram was committed due to fact that Sukhram wanted to give his entire property to the informant. The written report was scribed by one Omvir Singh and thumb impression was impressed on it by PW-1 and then it was given at the police station. The written report is Ext. Ka-1.

At this stage, we may scrutinize testimony of another witness of fact Om @ Om Prakash PW-2. This witness is stated to had been ploughing field of the deceased Sukhram at the time of occurrence which field lies at a distance of 25-30 yards from the place of occurrence. It is stated that this witness used to take care of field of the deceased Sukhram and he had been doing so for the last three years. This witness has testified in examination in chief that the informant is his sister. She used to reside with his maternal uncle Sukhram in village Yusufa and his maternal uncle brought up the informant since her childhood and he had also arranged her marriage. Sukhram had no wife and no issue. This witness claims to have been residing with his sister Kailaso in the village Yusufa.

On the factual aspect of occurrence, this witness (PW-2) has testified in his examination in chief that on the day of occurrence, he along with his nephew (Bhanja) Brahm Pal- son of Kailaso- had gone for ploughing field which was lying to the southern side of the village. He heard some noise from eastern crossing when they rushed towards the spot where they saw Om Pal Singh gripping his maternal uncle and Mahraj Singh had pressed his neck. Mangla caused 'Dati' blow on the temple region of his maternal uncle. Begraj exhorted the others to fire on his maternal uncle Sukhram, whereupon accused Rishi Pal fired from close range on him which fire hit him on his temple region due to this fire his maternal uncle fell down and accused Omi fired second shot on his maternal uncle in fallen position. Besides them, Ram Singh and the informant also had arrived on the spot. They all tried to save the deceased Sukhram but they were threatened on gun point. His maternal uncle died on the spot and the assailants made their escape good.

Bare perusal of ocular testimony regarding description of the incident forthcoming from both of the witnesses reflects alleged involvement of all the three appellants in the commission of the offence and specific roles have been assigned to all the appellants in their respective spheres. Both the aforesaid prosecution witnesses have been cross examined by the defence wherein nothing adverse of magnitude has emerged which may create any reasonable doubt regarding non-presence of both the witnesses (PW-1 and PW-2) on the spot at the time of occurrence.

However, contention has been raised specifically on point of presence of the prosecution witnesses of fact on the spot at the time of the occurrence and they having seen the incident as such. Further contention has been raised that both these witnesses being relatives of deceased are interested and highly partisan witnesses. That way we have to scrutinize cautiously testimony of both the above witnesses as emerging from their cross examination.

In her cross-examination, Kailaso PW-1 has testified on point of her presence on the spot that after her maternal uncle (deceased) had left home, she also went behind him after a little while and she arrived on the spot after hearing the noise/alarm. She has been suggested by the defence that it is incorrect to say that she was residing with her maternal uncle which suggestion has been stoutly denied by her. She has also denied suggestion that she resides in the house of her in-laws but she has stated that she used to visit house of her in-laws occasionally.

It has emerged in her cross-examination on page 23 of the paper-book that her maternal uncle had executed a will in her favour six months and 11 days prior to the incident and the entire property of her maternal uncle had been bequeathed by way of will in her favour. This was a registered will. Mutation proceedings were going on between the informant and the accused Om Pal Singh and Rishi Pal. Mutation proceedings were contested by them. She has been specifically asked question on point as to when his maternal uncle left with Om Pal Singh then she has stated that it was around 8:00 a.m. She has testified in her cross examination that her brother Om @ Om Prakash and her son Brahmpal had gone on the field of Sukhram one hour prior to departure of Sukhram. The field is situated at a distance of 20-25 steps from the place of occurrence.

It has been been categorically testified by PW-1 that Brahmpal and Om Pal Singh had gone to the field one hour before departure of her maternal uncle. She has stated in her cross-examination on page 25 of the paper-book that her brother Om @ Om Prakash is resident of Village- Begampur who had come over to her home when this incident took place and he had been living with her for the last several years. She has also stated that her statement was recorded by Daroga Ji and she narrated the entire incident to him. She had been confronted with question that she had said to Daroga Ji in her statement that names of Mahraj, Begraj and Mangla had been mentioned in the first information report at the instance of another person and they had no role in the incident. She has said that she cannot ascribe any worthy reason for this specific statement if recorded under Section 161 Cr.P.C. by the Investigating Officer. She has further been confronted on point that she had not made any statement regarding injury being caused to her maternal uncle with sharp edged weapon by accused Mangla. Here also, she could not ascribe any plausible reason as to how such statement does not find place under Section 161 Cr.P.C.

She has also stated that no one asked question on point if she had followed her maternal uncle. Therefore, she did not tell this fact to anyone. It is incorrect to say that such statement has been made with a view to create her presence on the spot. She could not remember actually as to in which direction the assailants made their escape after committing the crime as she could not recall the same on account of lapse of reasonable time.

Similarly we can scrutinize and analyze testimony of Om Prakash PW-2 as emerging in his cross-examination. In his cross-examination, he has testified on fact that at the relevant point of time, he was ploughing field of his maternal uncle and had been doing so for the last three years although he could not spell the area and boundary of the field which he was ploughing. Although he has testified to the ambit that field on which he was ploughing, lies at a distance of 25-30 steps from the place of occurrence.

Om Prakash PW-2 has also stated that he did not show this field to Daroga Ji. He has denied suggestion that on the day of occurrence, he was not present in the village although he has been confronted specific query that he has not ascribed any specific role to the accused, whereupon he has stated that he had given statement (on point of specific role). However, if the same does not find place in his statement recorded under Section 161 Cr.P.C. then he cannot ascribe any reason for the same.

Again he has been confronted with the question that his statement recorded under Section 161 Cr.P.C. discloses fact that he had stated to the extent that Mahraj, Mangla and Begraj sons of Horam Singh had no hand in the incident and they were not present on the spot at the time of occurrence. He has not been able to ascribe any worthy reason as to how such statement finds place under Section 161 Cr.P.C. We can conveniently observe that apart from minor aberration nothing adverse of substantial nature has emerged on point of causing of actual occurrence by the appellants.

However, certain reasonable doubts are created in testimony of both these witnesses of fact on point of certain improvements and embellishments on specific aspects of the case. These improvements and embellishments stand exposed when we scrutinize testimony of the Investigating Officer K.P. Singh PW-4 as emerging in his cross examination on page 35 and 36 of the paper-book. The Investigating Officer has categorically testified to the magnitude that the informant Kailaso had given statement to him that names of Mahraj, Begraj and Mangla sons of Horam Singh were mentioned in the first information report at the instance of another person but they had no role to play in the incident. The informant Kailaso had also not given any statement that Mangla caused injury to the deceased Sukhram by sharp edged weapon. However, he (Investigating Officer) has denied any such statement given by the informant Kailaso PW-1 to the ambit that she followed her maternal uncle after he had left home but she had stated this much "Main Bhi Pecche Se Aa Gayee Thi" (I also came afterwards). This specific testimony as above divulges fact on doubt that involvement of accused Mangla along with two sons of Horam Singh as above had been deliberately dragged in the commission of crime just to give colour to the story and that way, improvement is apparent on point of involvement of accused Mangla. It also becomes obvious that PW-1 also left her home a little while after her maternal uncle had been taken away by Om Pal Singh from the house.

In this context, we also come across the same improvement made by another prosecution witness Om Prakash PW-2. He has also stated on the similar line as that touched by PW-1. He had also given statement to the Investigating Officer that Mahraj, Begraj and Mangla had no hand in the incident and they were not present on the spot and he had not given any statement to the Investigating Officer to the ambit and magnitude on the point that Mahraj, Begraj and Mangla were also involved in the commission of the offence and no description was given by him about their respective role in the commission of the offence.

At this stage, we also come across testimony that the Investigating Officer has been specifically confronted with question that he has not shown the southern field where PW-2 was ploughing (at the time of incident), whereupon, he has answered in the affirmative that he has not shown the field in the site plan.

The above discussion makes it obvious that name of accused Mangla among the present appellants was deliberately mentioned in the first information report. For above obvious reasons his involvement in the case appears to be dubious and testimony about his involvement in the offence cannot be believed in the face of above testimony giving clean chit to his complicity in the offence. Insofar as the other two appellants Rishi Pal and Omi are concerned, we come across fact that specific role of firing has been assigned to them by the prosecution witnesses. The attendant circumstances of this case do not create any doubt about presence of PW-1 and PW-2 on the spot at the time of occurrence. It has emerged in testimony of PW-2 that the informant Kailaso PW-1 was present on the spot when he arrived on the spot. This by itself is indicative of fact that the informant Kailaso had seen the occurrence with her naked eyes. May be that Om Prakash PW-2 arrived on the spot a little later but this by itself will not discredit testimony of PW-1 which otherwise is innocuous, clinching and consistent and inspires confidence.

However, testimony of PW-1 is doubtful on the point of involvement of accused Mangla. It appears that name of accused Mangla had been deliberately mentioned in the first information report. However, no specific statement was given under Section 161 Cr.P.C. by both the witnesses of fact qua involvement of accused Mangla about any specific role played by him in the commission of the offence. It appears that three sons of Horam Singh had been dragged in by someone to be included in the first information report, therefore, name of accused Mangla was also mentioned in the first information report as one of the accused.

However, manner and style of shooting on the deceased Sukhram gets fortified and strengthened from testimony of both the witnesses of fact and it runs in conformity with medical testimony regarding ante mortem injuries being caused in form of ante mortem firearm wounds.

Dr. A.K. Gupta PW-5 had conducted autopsy on the cadaver of the deceased Sukhram on 23.08.1989 wherein he noted two firearm lacerated wounds. First one in the measurement of 5 cm x 2 cm x bone deep and muscle deep over left ear. Blackening and tattooing present around 2 cm of area of wound, 2/3rd part of ear badly lacerated, torn and deformed. Tikli (3 pieces) and 83 pellets recovered on right of neck. Ante mortem injury no.5 was also caused by some firearm. This is multiple firearm, lacerated wound in an area of 7 cm x 5 cm x 16 in numbers, oval in shape measuring about 1/2 cm x 0.7 cm on right side of back of chest, 3 cm below scapula right. No pellet recovered.

The doctor witness has also proved post mortem examination report Ext. Ka-17. The doctor has opined on fact that death of the deceased Sukhram might have been caused around 8:00 a.m. on 22.08.1989. This specific time of death has not been challenged by the defence even in the least. Thus, suggestion to the magnitude that the deceased Sukhram was killed somewhere in the night stands ruled out from unchallenged testimony of the doctor witness.

As discussed above, the case of appellant nos.1 and 3 namely Rishi Pal and Omi who have been assigned the role of firing stands proved in consistent manner beyond all reasonable doubt and firearm wounds caused by them get strengthened even by medical testimony.

However, discussions made hereinabove abundantly divulges fact that involvement of appellant no.2 Mangla is doubtful and improbable. He has been deliberately named in the first information report though he did not participate in the incident. The trial Judge while appraising facts and circumstances of the case and evaluating testimony on record and particularly that of PW-1 and PW-2, who are witnesses of fact, erroneously failed to take holistic view of the case and recorded finding of conviction also against accused Mangla, inter-alia, Rishi Pal and Omi which finding of conviction and sentence qua accused Mangla stands vitiated for the aforesaid reasons.

Consequently, judgment and order of conviction and sentence dated 06.06.1991 passed by IV-Additional Sessions Judge, Bijnor, in Sessions Trial No.385 of 1989 State of U.P. Vs. Rishi Pal and others, arising out of Case Crime No.122 of 1989, under Sections 302/149 IPC, Police Station- Shivala Kalan, District- Bijnor insofar as it relates to accused Mangla being erroneous is set aside by us. Consequently, this appeal qua appellant no.2 Mangla stands allowed. Appellant no.2 Mangla is exonerated of charge under Section 302/149 IPC.

In this case, appellant no.2 Mangla is on bail. He need not surrender. His bail bond cancelled and sureties stand discharged. However, he will ensure compliance of Section 437A Cr.P.C.

Insofar as case of the other two appellants (appellants no.1 and 3) are concerned, learned trial court has taken just and correct view of the fact, circumstances and evidence on record and has recorded just finding of conviction and has rightly sentenced the appellants Rishi Pal and Omi to life imprisonment which order of conviction and sentence need no interference by this Court. Thus, judgment and order of conviction and sentence dated 06.06.1991 passed by IV-Additional Sessions Judge, Bijnor, in Sessions Trial No.385 of 1989 against the appellants Rishi Pal and Omi is upheld by us.

In view of above, the appeal qua appellants Rishi Pal and Omi being without force is dismissed. The appellants Rishi Pal and Omi are on bail. Their bail bonds and surety bonds are cancelled. They shall be taken into custody forthwith for serving out their sentence.

In the result, the present appeal is allowed partly in terms aforesaid.

Let a copy of this judgment be certified to the trial court for necessary information and follow up action.

Dt. 07.04.2017 rkg

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