Allahabad High Court
Madan vs State Of U.P. on 1 March, 2019
Bench: Prashant Kumar, Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 07.01.2019 Court No. - 16 Case :- CRIMINAL APPEAL No. - 85 of 1998 Appellant :- Madan Respondent :- State Of U.P. Counsel for Appellant :- J.N.Chaudhary,Nagendra Mohan Counsel for Respondent :- Govt. Advocate,Ram Mohan Mishra Hon'ble Prashant Kumar,J.
Hon'ble Karunesh Singh Pawar,J.
Delivered by Hon'ble Karunesh Singh Pawar,J.
1. The present criminal appeal under Section 374 (2) Cr.P.C. has been filed against the judgment and order dated 9.2.1998 passed in Session Trial No.628 of 1994 by Shri R.S. Pandey, Ist Additional Sessions Judge, Unnao acquitting the accused Ram Bilas, Kamlesh and Surya Narain. The other five accused-appellants were convicted and sentenced under Sections 302/149 of Indian Penal Code (hereinafter referred to as ''IPC') to life imprisonment and fine of Rs.2000/- and in default to pay the fine, six months of rigorous imprisonment was imposed and under Section 148 IPC the appellants were convicted to undergo one year rigorous imprisonment.
2. In short, the prosecution story as per the written report is that P.W.1 Chunnu Pandey, while he was returning with his Uncle Swami Dayal (deceased/victim) from Achalgunj Block after attending the meeting of Block Development Committee to village Nibayi on bicycles then around 6 p.m. within the boundaries of village Singaha near Munnu Singh's tubewell, Madan son of Ram Bilas and Dinesh Son of Shiv Dutt having Kantas in their hands, Ram Vilas Son of Daya Shanker armed with Katta and Shiv Dutt, Son of Daya Shanker armed with Tabbal appeared from behind the shrubs and exhorted to kill them. P.W.1 and Swami Dayal (deceased) left their bicycles and ran towards the village raising alarms. However, in the passage, Deshraj, son of Prahlad Singh having kanta, Shiv Prakash, Son of Kishnu armed with Kanta, Kamlesh son of Daya Shanker with Katta and Surya Narain son of Daya Shanker armed with Katta appeared from behind the tractor, which was standing in the passage and surrounded them, the accused persons with the intention to kill fired at them and chased his Uncle. In the field of Ramesh Yadav, Madan gave a blow to Swami Dayal with Kanta, Dinesh and Shiv Dutt also started hitting his Uncle with Kanta and tabbal as a result thereof, he fell down and P.W.1 somehow saved his skin and ran towards the village while raising alarm. Thereafter, Munnu, son of Ganga Shanker and Dhunni, Barjor and other villagers came, then the accused persons left the place and ran away. It has also been alleged that the accused Deshraj has also sustained injuries. There is a mention in the report that nephew of P.W.1 abducted the daughter of accused Ram Vilas in the year 1986 and there is enmity relating to village Pradhan election. Lastly, it has been said that the dead body of the deceased Uncle of P.W.1 namely Swami Dayal was lying in the field of Ramesh Yadav.
3. Out of eight, five accused persons have filed this appeal namely Madan-appellant No.1, Dinesh- appellant no.2, Shiv Dutt-appellant No.3, Shiv Prakash-appellant 4 and Deshraj-appellant no. 5. Madan Son of Ram Vilas has been assigned the role of Kanta in his hand, Dinesh Son of Shiv Dutt again Kanta, Shiv Dutt was armed with kanta and Deshraj, son of Prahlad Singh has been assigned the role of Katta.
4. During pendency of this appeal, Deshraj i.e. appellant no. 5 died as such the appeal against appellant no. 5 stood abated on 12.12.2018.
5. A written report was given on 9.7.1993 to Station House Officer, In-charge Bighapur, District Unnao which is (Exhibit Ka-1). On that basis an FIR under Section 302 IPC read with Sections 147, 148, 149 IPC was lodged at Police Station Bighapur, District Unnao which was registered as Case Crime No. 80 of 1993. The time and date of the incident has been alleged to be on 9.7.1993 at around 6 p.m.. The distance between the Police Station and place of incident has been mentioned in the First Information Report as 16 kms. Consequent to the lodging of the First Information Report the inquest report Exhibit Ka-3 was prepared and dead body was sent for post mortem examination. The post Mortem was conducted on 10.7.1993 at 3:00 p.m. by Dr. A.K. Nigam P.W.-3. The autopsy surgeon found following ante mortem injuries on the person of deceased Swami Dayal which is (Exhibit ka-2).
1. "Incised wound 6 cm x 2 cm x bone deep on the right side of skull, 4 cm above right ear. Injuries are anterior posterior. Temporal bone is fracured. Liner fracture of bone underneath injury.
2. Incised wound 9 cm x 3 cm x bone deep on the right side of face, lying from above downward from outer side of right ear underneath bone is cut.
3. Incised wound 10 cm x 3 cm x oral cavity deep on the right side of face from zygomatic arch to the left end of mandible. Injuries obliquely from above downward on the right side maxilla and mandible. Fracture of right side maxilla and mandible present.
4. Incised wound 2 cm x 1.5 cm on the outer angle right side of oral cavity deep upper end of cavity.
5. Incised wound 11 cm x 4 cm x bone deep on the back of neck at level of C-3 and C-4. The vertebrae is cut at the same level. Spinal cord is also cut.
6. Incised wound 3 cm x 2 cm x muscle deep 3 cm above the injury no. 5 on the back and right side of neck.
7. Incised wound 4 cm x 2 cm muscle deep, 2 cm below the injury no. 5 on the back of neck on left side.
8. Incised wound 3.5 cm x 2 cm on the right side over supra clavivular fossa, wound is muscle deep.
9. Fire arm wound of entry 2 cm x 2 cm x abdominal cavity deep on the right side of abdomen in the mid clavicular line on subcostal region. It is surrounded by area of tattooing 9 cm all around the wound. Margins are inverted, burnt and chared and contused. Direction of wound is towards left side.
10. On the left side at mid clavicular line contused swelling 4 cm x 5 cm in area on subconstal region, underneath foreign body palpable, 3 wad pieces and 49 small size pellets recovered from left side abdominal cavity."
6. The doctor found it to be a homicidal death and opined that death is due to shock and hemorrhage as a result of ante mortem injuries. Thereafter, the investigations were made and the Investigating Officer ultimately submitted the charge sheet against all the accused persons.
7. Learned Chief Judicial Magistrate, Unnao vide his order dated 3.8.1994 on the basis of record commited the case for trial before the District and Sessions Judge as prima facie, a case under Sections 147, 148, 149, 302 IPC was found to be made out.
8. The charges under Sections 147, 148, 302 read with Section 149 of Indian Penal Code were framed against the accused persons vide order dated 7.3.1995. The prosecution has examined six witnesses. P.W.1 Chhunnu is the author of the First Information Report/first informant Munnu P.W.2 is real brother of Chunnu and P.W.3 is Dr. A.K. Nigam who conducted the post mortem, P.W. 4, P.W.5 and P.W.6 are Sub Inspectors Rambadan Singh, C.P. Awadhesh Bahadur Singh and Constable Raees Ullah.
9. The defence has produced D.W.1 Dr. B.S. Nigam, who has conducted the medical examination of the injuries of accused Deshraj. Dr. B.S. Nigam found the following injuries on the person of accused Deshraj (Exhibit Kha-1).
"1.LW 9 cm x 2 cm x scalp deep on Rt side skull 12 cm above to Rt ear.
2. LW 1 cm x 0.5 cm muscle deep over middle port and Rt eye brow;
3. Multiple fuse arm aroud of entry in Lt arm middle an area 30 cm x 18 cm on Lt side face. Lower lip and Lt side part rest chest each measuring 0.3 cm x 0.3 cm circular in shape;
4. Abrasion 2 cm x 0.5 cm over Rt side chain.
5. Two abrasions circular in shape size 0.3 cm x 0.3. Fresh each depth cannot probed on posterior medial aspect on fore arm middle part ;
6. Multiple abrasions in an area 7 cm x 4.5 cm on Left side of Lt arm on middle part each measuring 0.3 cm x 03 cm depth cannot probed ;
7. LW 1.5 cm x 0.5 cm x muscle deep on anterior aspect middle part of leg ''
8. Contusion 13 cm x 2 cm on Lt side back 8 cm below to inferior angle of Lt scapula;
9. LW 3.5 cm x 0.5 cm x scalp deep on Lt side skull 9 cm above to lt.
Opinion: Injury No.1,2, 4, 7 and 8 caused by hard and blunt object. Injury Nos. 3, 5 and 6 caused by fire arm. Injury No.1, 3, 5 and 6 advised X-ray skull."
The injury report indicates four lacerated wounds, one multiple fire arm wound of entry, three abrasions and one contusion was found on different parts of the body. Five injuries were caused by hard blunt object whereas three injuries appeared to have been caused by fire arm.
10. The defence has also filed Exhibits Kha-1 to Kha-10. The site plan was prepared which is Exhibit Ka-8, recovery memo- Exhibits Ka-9 to Ka-12 have also been prepared. The Fard is Exhibit No. 13 and Kurki is Exhibit No.14.
11. The statement of accused persons under Section 313 Cr.P.C. were recorded and they have denied their complicity in the incident. The accused persons have pleaded not guilty before the learned Court below. The learned Court below after hearing the parties has acquitted Ram Vilas, Kamlesh and Surya Naraian by extending them the benefit of doubt and convicted the other appellants by the impugned judgment and order.
12. Heard Shri Nagendra Mohan, learned counsel for the appellants and Shri Vishnu Shukla, learned AGA for the State.
13. It has been mentioned in the written report that complainant's nephew Rajau had abducted the daughter of Ram Vilas (accused) and there was enmity between the accused as well as first informant and (deceased) Swami Dayal regarding election of village Pradhan. From the evidence available on record we have noticed the fact that Rajau had abducted the daughter of Ram Vilas in the year 1997 and married her. Swami Dayal (deceased) contested the election for village Pradhan against accused Ram Vilas and defeated him. It appears that Ram Vilas has lodged the report regarding abduction of his daughter against Rajau, who is living with Rajau in the village. At the time of murder of Swami Dayal the case relating to abduction of daughter of Ram Vilas was pending and the complainant in this case was one of the accused person.
14. (Exhibit Kha-4) is the certified copy of the charge sheet filed against Shiv Vilas @ Munni, Son of Daya Shanker and Swami Dayal, son of Maniya Pandey relating to Crime No.91 of 1979 of Police Station Bara Sagawar, upon which Session Trial No.496 of 1979 got registered. (Exhibit Kha-5) is the certified copy of the statement of Ram Prakash, Son of Kishanu, who was examined as witness in this case on 26.4.1980. (Exhibit Kha-6) is the copy of order sheet dated 24.7.1980, which order sheet reveals that accused persons Shiv Vilas @ Munni and Swami Dayal were held guilty and convicted under Section 302/34 IPC. (Exhibit Kha-7) is the copy of the case register of the District Magistrate, Unnao pertaining to the year 1985 indicating that on 19.12.1985 Swami Dayal Son of Maniya Pandey was externed for six months under provisions of Section 3 of Control of Goondas Act. (Exhibit Kha-8) is the charge sheet filed against Madan and Dinesh under Section 307 IPC in Crime No.101 of 1993 registered on 5.6.1993 on the report of Chhunnu, Son of Ganga Shankar. (Exhibit Kha-9) is the certified copy of the First Information Report of this case. (Exhibit Kha-10) is the copy of bail order dated 26.11.1993 passed in Misc. Case No.4625 (B) of 1993, whereby Shiv Dutt, accused of this case was enlarged on bail by this Court. It is admitted between the parties that the victim Swami Dayal was elected as Village Pradhan and a case under Section 307 IPC was registered by Chhunnu against Dinesh and Madan.
15. Therefore, it is established that there was enmity between P.W.1 and P.W. 2 (deceased) Swami Dayal on one hand with the accused persons relating to abduction of daughter of Ram Vilas by Rajau. The nephew of P.W.1 and also rivalry between Ram Vilas and (deceased) Swami Dayal.
16. We have also noticed that Ram Vilas, Shiv Dutt, Kamlesh and Shiv Narain are real brothers. Madan is son of Ram Vilas, Dinesh is son of Shiv Dutt whereas Shiv Prakash and Deshraj are friends therefore, out of eight accused in this case, six are members of one family.
17. The prosecution has sought to prove his case by eye witness account of P.W.1 and P.W.2 which is direct evidence.
18. In view of the admitted enmity between the parties, we proceed to examine the statement of P.W.1 with caution.
19. P.W. 1 in his statement of oath has stated that deceased Swami Dayal was his Uncle, however, it was not proved by any pedigree or sajra that Swami Dayal was his Uncle. P.W.1 was an eye witness, informant in this case. In his deposition he has stated that on the date of occurrence, he was returning with his Uncle Swami Dayal (deceased) after attending the meeting of Block Development Committee, the accused persons at around 6 p.m. came out of the bushes near Munnu's tubewell which is in village Singaha and exhorted to kill his Uncle late Swami Dayal. P.W. 1 and Swami Dayal left their cycles and ran towards village. A tractor was standing in the passage and accused Deshraj, Kamlesh, Shiv Narain armed with country made pistol and Shiv Prakash appeared from behind the tractor and surrounded them. They started raising alarm towards the village and the moment they reached the field of Ramesh Yadav, Madan caused blow on his Uncle by Kanta, Dinesh hit him by Kanta and Shiv Dutt by tabbal. His Uncle fell on the spot. However, P.W.1 was successful in running away without being injured raised alarm. Upon an alarm, brothers Munnu and Dhunni who were grazing cattle nearby and Burjor of Sumeraha village came and exhorted the accused then the accused persons fled towards the east. In his chief, he has further stated that his nephew Rajau abducted the daughter of Ram Vilas in the year 1987 and married her. His Uncle contested the election against Ram Vilas and they were on inimical terms. He further said that where his Uncle was lying down, he over powered accused Deshraj and took him to Nibayi Police Chowki on tractor. In written report it has been said by the complainant that accused Deshraj was injured by the firing of co-accused whereas in his statement on oath he has made certain improvements and has said that he would have been injured/beaten up by the villagers. He has further deposed that Madan hit the deceased with Kanta, then Dinesh with Kanta and lastly Shiv Dutt with tabbal then his Uncle fell and could not run and died on his chest lying down and back upwards. He further stated that when the accused ran 100-125 paces away then he came near his Uncle and saw that he received a bullet injury and after his Uncle fell on the spot he was 50 paces away then he raised alarm and on that alarm Munnu and Dhunni who were grazing cattle nearby and Burjor came and when all of them exhorted accused persons they ran away by firing. According to the prosecution, all the eight accused were either armed with sharp edged weapons kanta and tabbal or with country made pistol. P.W.1 has only alleged firing by accused while running away however, no statement has been given that which of the accused has caused fire arm injury to deceased Swami Dayal.
20. P.W.3 who conducted the post mortem of the deceased has opined that Injury No. 9 caused by fire arm could have been caused by fire arm within one feet range.
21. According to P.W.1 he and his Uncle were running side by side and accused were behind them and he did not alleged any firing by the accused on his Uncle. There is no injury on the back of deceased Swami Dayal rather injury No.9 is in the side and is surrounded by area of tatooing 9 cm all around the wound. Margins are inverted, burnt and chared and contused and the direction of wound is from right side to left side therefore, it appears that the deceased was hit by fire arm within one feet range from right side which entered from right side towards left. P.W.1 has not stated about this injury on his Uncle. Likewise, the accused Deshraj has suffered as many as nine injuries and out of that injury No.1, 2, 4 and 7 and 8 are caused by hard and blunt object on his scalp, chin, leg and back, no explanation for these injuries has been given by him. According to P.W.1 accused Ram Vilas, Kamlesh, Surya Narain and Deshraj were armed with country made pistol and rest of the accused were armed with sharp edged weapon therefore, the aforesaid injuries Nos. 1,2, 4, 7 and 8 could not have been inflicted on the person of Deshraj.
22. P.W. 1 has no clue as to how these injuries have been caused to Deshraj even he has not assigned the role to any of the four accused armed with country made pistol namely Deshraj, Ram Vilas, Surya Narain as to who according to him have caused these injuries on the person of Deshraj. There is no incised wound on the body of Deshraj. There are two types of injuries only fire arm injuries (Injury Nos. 3, 5 and 6) and injury Nos.1,2, 4, 7 and 8 have been caused by hard and blunt object.
23. P.W. 1 claims to be himself an eye witness but he does not know as to when deceased Swami Dayal received fire arm injury on his person. Neither he knows how Deshraj suffered injury Nos. 1,2,4,7 and 8 which have been caused by hard and blunt object. P.W.1 has iven vague and contradictory statement regarding fire arm injuries to Dehraj. In his examination in chief he says that Deshraj suffered injuries due to firing by accused. Then in cross examination he says that villagers might have caused injuries to Deshraj.
24. We have further noticed that there is material discrepancy in the remaining part of deposition of P.W.1. In his deposition he has stated that from his village he along with a dadhibal went to police station for lodging First Information Report and started at 9 o'clock in the night on a bicycle. He further says that distance of police station is 15-16 kms. from the place of occurrence and it took 1-1/2 and 2 hours to reach the police station.
25. According to this version of P.W.1 he would not have been able to reach the police station before 10:30 p.m. The chik report at police station Bighapur, District Unnao has been lodged at 9:15 p.m. On the date of occurrence i.e.9.7.1993 which is not possible according to the testimony of P.W.1.
26. In view of this inconsistency, improvement and inability to explain the bullet injury received by Swami Dayal as well as injuries received by Deshraj particularly Injury Nos. 1,2, 4, 7 and 8 (caused by hard and blunt object) lead to us to conclusion that either he was not present at the time of occurrence or he is suppressing the origin and genesis of true occurrence or the true version of the incident therefore, the testimony of P.W.1 is liable to be discarded.
27. P.W.2 the another eye witness brother of P.W.1 has been examined by prosecution who in his examination-in-chief has stated that he saw accused Madan, Dinesh, Shiv Prakash, Shiv Dutt, Deshraj, Ram Vilas, Surya Narain, Kailash were hitting his Uncle Swami Dayal by Kanta and tabbal whereas according to P.W.1, P.W.2 was grazing cattle nearby and after his Uncle fell and died he raised alarm and then P.W.2 along with Dhunni came to the spot. P.W. 2 further in his cross examination has stated/admitted that after hearing alarm he and Dhunni leaving their cattles went to the field of Ramesh and saw accused persons running away, towards east. The two statements given by P.W.-2 are self contradictory and show that he was not present. He further says that deceased Swami Dayal was lying down whether Deshraj was injured or not he has not seen. The aforesaid statement of P.W.2 are self contradictory and prove that he was not present on the place of occurrence when it took place and it will not be safe to rely on this evidence for convicting the accused.
28. P.W.3 in his deposition has stated that injury nos. 1 to 8 on the person of the deceased Swami Dayal could have come from sharp cutting weapon such as Kanta and tabbal and injury nos. 9 and 10 could have been caused by country made pistol when the deceased is hit from the front and right side towards the left side within one feet distance. The injury no.9 is surrounded by area of tattooing 9 cm all around the wound. Margins are inverted, burnt and chared and contused. This injury could come from a very close range firing.
29. According to the prosecution version and site plan (Exhibit Ka-8), the deceased from point no.A towards the place of occurrence in the field of Ramesh and the accused persons were chasing him from Point No.A and Point No.B towards the place of occurrence, which is several paces away therefore, it is not possible to cause injury No.9 while chasing the deceased from a distance.
30. We have further noticed the fact that although Deshraj was over powered by the complainant and was lying on the tractor unconscious at Police Chowki Nibayi but still no recovery of country made pistol has been made from him. We have further noticed that P.W.4 the Investigating Officer when he reached at Police Post Nibayi he found Deshraj unconscious but did not mention the time and date of Ravangi of Deshraj with Constable to Sadar Hospital. He also did not found P.W.1 Chunnu at Police Station Nibayi. P.W.5 Awadhesh Bahadur Singh stated that G.D. is kept at Police Station Nibayi separately but still no entry was made at Police Station Chowki, Nibayi regarding the incident. Injuries to the Deshraj have been proved by Exhibit Kha-1 and the testimony of P.W.1 Dr B.S. Nigam has examined the injured Deshraj. Both P.W.1 and P.W.2 failed to explain the injuries on the person of Deshraj more particularly injuries No.1,2,4,7 and 8 which have been caused by hard and blunt object. So far as fire arm injuries Nos. 3, 5 and 6 are concerned P.W.1 has made sweeping statement that accused persons had caused them without assigning role to any accused and in the cross examination has contradicted his previous statement and said villagers might have caused these injuries to Deshraj.
P.W.2 does not even know that whether Deshraj was injured or not, although he claims to have taken Deshraj to Nibayi Police Post. The affect of failure of an unexplained injuries received on the person of Deshraj (accused) has to be examined in view of the following judgment of Supreme Court reproduced as under:
31. In the case of Mohar Rai vs. State of Bihar AIR 1968 SC 1281 the Apex Court laid down the ratio where there were unexplained injuries on the side of the accused as expressed in paragraphs 6 and 9 reproduced below:
"(6) The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P W 15 that he noticed injuries on the person of Mohar Rai when he was produced before him mediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. Bishun Prasad Sinha (P W 18) clearly shows that those injuries could not have been self- inflicted and further, according to him it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.
(9) For the reasons mentioned above we are satisfied that the trial court as well as the High Court erred in summarily rejecting the defence of the appellants on the sole ground that the version put forward by them having been rejected by the court in G.R. case 1376/TR/20 of 61/63 in the court of the Munsif - Magistrate Ist Class, Sasaram, the same cannot be again considered. We think that the defence of the appellants is highly probabilise by three important circumstances, namely - (i) the same was put forward immediately after the occurrence, (ii) it satisfactorily explains the injuries found on the persons of the appellants while the prosecution evidence fails to explain those injuries, and (iii) the prosecution evidence itself shows that Mohar Rai could not have used Ex. III and therefore his version that that weapon was thrust on him is probabilised."
32. The said judgment was followed and reiterated in the case of Lakshmi Singh and others vs. State of Bihar [(1976) 4 SCC 394]. In the second part of paragraph 12 of the report the Supreme Court explained the effect of unexplained injuries on the side of the accused as follows:
"12...............
It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences :
"1.that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version ;
2.that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is un- reliable ;
3.that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. "
33. The injuries suffered by Deshraj were not simple or superfluous rather they were grievous. In view of the aforesaid law laid down by the Hon'ble Apex Court, the non explanation of the injuries on the person of the accused can be fatal to the prosecution.
34. We may also take note of the following decisions on the aforesaid point in the case of Lakshmi Singh (Supra) which has been reiterated and followed in the case of State of Uttar Pradesh vs. Banne @ Baijnath and others, (2009) 4 SCC 271; Raghubir Singh vs. State of Rajasthan and others 2012 (1) JIC 547 (SC) and Mohd. Khalil Chisti vs. State of Rajasthan and others reported in (2013) 2 SCC 541.
35. The learned Court below although convicted the appellants under Section 302 read with Section 149 IPC without giving any plausible finding has acquitted three persons namely Ram Bilas, Kamlesh and Surya Narain by extending them the benefit of doubt on the ground that since Deshraj was also armed with country made pistol and was injured therefore, his complicity is proved. No finding has been given as to how on the same evidence three accused persons could have been acquitted and rest have been convicted. The evidence is not separable and if evidence was separable the specific finding ought to have been recorded by the learned Court below.
36. It has been informed at the Bar that against the acquittal of three accused namely Ram Vilas, Kamlesh and Swami Narain, no appeal has been filed by the State Government.
37. It appears due to enmity only highly interested witnesses have been examined by the prosecution and even P.W.1 and P.W.2 were real brothers being made contradictory statement regarding occurrence. The learned Court below was not justified in convicting the appellants on the same evidence on the basis of it had acquitted Ram Vilas, Kamlesh and Swami Narain who allegedly had also fired at the deceased by disbelieving the alleged eye witness against them. It is established from the statement of P.W.1 and the material on record that the First Information Report could not have been lodged as 9:15 p.m. and is ante timed.
38. The deceased Swami Dayal who according to the evidence was a criminal involved in several criminal cases including murder and was externed under Goondas Act had several enemies along with complainant who was also involved in criminal case. The probability of the defence version could not be ruled out that due to this the accused persons have been falsely roped in this case. The medical evidence belies the manner of the incident as alleged by the prosecution as four persons have allegedly fired at the victim and only one fire arm wound was found on him and no eye witness either P.W.1 or P.W.2 have assigned any role to any of the accused persons as to by whose shot the deceased was killed. Last but not the least, P.W.1 and P.W.2 who alleged eye witness have failed to tell as to how Deshraj has received nine injuries in which Injury Nos.1, 2 ,4 7 and 8 had been caused by hard and blunt object while considering the role assigned to the accused persons they were armed with sharp cutting weapon or fire arm. Therefore, these injuries could not have come on the person of Deshraj.
39. We have noticed the testimony of P.W.1 and P.W.2 is doubtful. The presence of P.W.1 and P.W.2 at the place of occurrence is also doubtful. Prosecution version is highly improbable. Serious injuries caused on the person of Deshraj have not been explained. No recovery of fire arm even from accused Deshraj who was over powered by P.W.1 was taken to Police Chowki Nibayi by P.W.1 and P.W.2 and was lying unconscious there. No person from Police Chowki, Nibayi has been examined. The statements of P.W.1 and P.W.2 were not recorded at Police Station Nibayi. The First Information Report is ante timed as per the statement of P.W.1. The medical evidence regarding the fire arm injury of the deceased does not corroborate with the oral testimony of P.W.1 and P.W.2. There is proved factum of enmity between P.W.1 and the accused persons. No G.D. entry was made at Nibayi Police Post. The learned Sessions Judge on the same set of evidence without giving any cogent reason has acquitted three accused persons and convicted other accused persons which could not have been done. No finding has been recorded by the learned Sessions Judge as to how the evidence against the appellant/accused was separable with those accused who have been acquitted. The State Government has also not filed any appeal against the acquittal of the three accused persons. Therefore, we are of the view that it will not be safe to convict the appellants on the basis of such evidence.
40. Hence, the present appeal is allowed. The appellants are directed to be released forthwith if they are not wanted in any other criminal case.
Order Date: 01.03.2019.
Ps.