Allahabad High Court
Man Singh (Since Deceased) Through ... vs State Of U.P. on 6 March, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:40250-DB Reserved On: 24.01.2024 Delivered On:06.03.2024 In Chamber Case :- CRIMINAL APPEAL No. - 3435 of 2006 Appellant :- Man Singh (Since deceased) Through Legal Representatives And Another Respondent :- State of U.P. Counsel for Appellant :- Lav Srivastava,Bishram Tiwari,Jag Narayan,Kaushal Kishor,V.P. Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Ram Manohar Narayan Mishra,J.)
1. Heard Sri Bishram Tiwari, learned counsel assisted by Sri Kaushal Kishor, learned counsel for the appellants and learned AGA for the State and perused the material placed on record.
2. By means of instant criminal appeal, the convict-appellants have assailed the correctness of the judgement and order dated 6.6.2006, passed by learned Additional Sessions Judge, Fast Track Court No.24, Allahabad, in S.T. No.853 of 2000, (State of UP vs Ram Lakhan alias Dahari and others), arising out of Case Crime No.167 of 1997, Police Station Puramufti, District Kaushambi, whereby, the appellants have been convicted and sentenced for charge under Section 302 IPC to undergo life imprisonment with fine of Rs.3,000/-each and in default thereof, they have to undergo three months additional imprisonment. The appellants were enlarged on bail by order of this Court dated 27.6.2006, passed in present criminal appeal.
3. The prosecution case in brief is that the informant Jaikaran, son of Ramanand, resident of Gopalpur, Police Station Puramufti, District Kaushambi, lodged an FIR on the basis of written report dated 24.5.1997, at police station concerned, with allegations that on 23.5.1997, his younger brother Ram Bhawan Singh, had gone to attend a function at the place of Dhruv Narayan Pandey on invitation, but he did not come back to home in the night. The informant thought that he might have stayed at his residence, situated in front of Manauri Air force. On next date i.e. 24.5.1997, at around 6:00 AM, his maternal cousin Madan Singh told him that Ram Bhawan was shot dead in front of the house of Ram Lakhan @ Dahari, which situates in front of Kendriya Vidyalaya, Air Force. The informant visited the place of incident on this information and on finding the dead body of his brother, filed information at police station by written report (Ext. Ka-1). The FIR was lodged on 24.5.1997, against unknown person under Section 302 IPC vide Crime No.NIL of 1997, at 6:15 AM. The police proceeded to investigate the case. The Investigating Officer collected blood stained and plain earth from the place of incident on 25.5.1997 in presence of witnesses namely, Tulsi Ram and Mannu Sing and also collected a mutilated bullet of firearm and prepared its recovery memo. The inquest proceeding were conducted on the dead body of the deceased and inquest report was prepared by then S.O./Investigating Officer Rakesh Kumar Mishra on 24.5.1997, at the place of finding of dead body. The name of three accused namely, Ram Lakhan @ Dahari, Man Singh and Chaman Kushwaha surfaced on filing of second written report dated 26.5.1997 by the informant, Jaikarana. PW-4, Dr. A.K. Gupta, conducted postmortem examination on the dead body of the deceased Ram Bhawan Singh, aged around 40 years, on 24.5.1997, at around 4:00 PM, in which Doctor found three antemortem injuries. In the opinion of Doctor, the cause of death was shock and haemorrhage as a result of antemortem injuries on vital organs. The Investigating Officer prepared site plan of the place of incident, which is proved as Ext.Ka-5 by evidence of PW-5, the Investigating Officer. The plain and blood stained soil, the wearing apparel recovered from dead body of the deceased during postmortem and one mutilated bullet recovered from the place of incident were sent for serological/ballistic examination. In the report of scientific examiner of F.S.L., Lucknow (Ext.Ka-12), human blood was found on all these things except on plain earth but classification of blood could not be done due to disintegration of blood found on item Nos.2 to 4. In the report of FSL, a remark has been made that at Serial No.3 and 5 of docket, instead of pieces of cartridge, mutilated metal was found. The Investigating Officer submitted chargesheet against three named accused persons with prayer to prosecute them for charge under Section 302 IPC before the Chief Judicial Magistrate. Learned CJM took cognizance of the offence on the basis of police report and committed the case for trial to the court of Session, as the offence is exclusively triable by court of Session.
4. Learned court below framed charge udner Section 302 IPC against chargesheeted accused persons namely, Ram Lakhan @ Dahari, Man Singh and Chaman Kushwaha, who denied the charge, pleaded not guilty and claimed to be tried.
5. The prosecution examined PW-1, Jaikaran, the informant; PW-2, Phool Chandra (eye-witness); PW-3, Tulsi Ram (eye-witness); PW-4, Dr. A.K. Gupta (the author of postmortem examination report- Ext.Ka-4); PW-5, S.I. Rakesh Kumar Mishra, the then S.H.O. of Police Station Puramufti, District Kaushambi, who proved the recovery memo of plain and blood stained earth and one mutilated bullet (cartridge) as Ext.Ka-5, inquest report of the dead body of deceased as Ext.Ka-2, form No.23 as Ext. Ka-6, photo of dead body as Ext.Ka-7, specimen seal as Ext.Ka-8, letter to R.I. as Ext.Ka-9, letter to CMO as Ext.Ka-10 and chargesheet as Ext.Ka-11, site plan as Ext.Ka-12, during his evidence; PW-6, Dinesh Kumar Vajpayee, who is author of chik FIR and extracts of G.D. regarding registration of case vide report No.06, Time 6:15 hours, dated 25.5.1997, police station Puramufti, District Kaushambi, who proved original chik FIR as Ext.Ka-13 and extracts of G.D. entries as Ext.Ka-14; PW-7, Constable C.P. Kashmir Singh, has proved extracts of G.D. report No.9, time 6:45 hours, dated 24.5.1997, as Ext.Ka-15; PW-8, CP 1285 Babu Singh, has testified that he was accompanied by Constable, who transported the dead body of Ram Bhawan Singh from the place of inquest to police line and thereafter at mortuary for postmortem.
6. After conclusion of prosecution evidence, the trial court recorded the statements of the accused persons under Section 313 Cr.P.C., in which they stated that the witnesses have testified against them due to enmity and have given false evidence. They feigned ignorance about formal evidence. They did not adduced any defence evidence. Their defence is that of denial.
7. Learned trial court heard the submissions of learned counsel for the parties, after appreciation of evidence on record, gave a verdict of guilt against all the three persons, who were put on trial and they were found guilty of charge under Section 302 IPC and sentenced, as above.
8. The accused persons namely, Man Singh, Chaman Kushwaha being aggrieved by the impugned judgement and order, preferred present criminal appeal. Accused Man Singh died during pendency of present appeal and his legal representatives including his wife and son were brought on record on substitution application field by them by orders of this Court dated 8.1.2024. Appellant Man Singh, as per his affidavit dated 13.11.2018, was working as Hawaldar, C.G.S.T. and Central Excise Division, Allahabad, since 23.11.1982, as Sepoy till his superannuation (31.12.2020). He was a pensioner at the time of his death and for that reason, his legal heirs applied for their substitution in place of the deceased appellant challenging his conviction in the case. The appellants were enlarged on bail by orders of this Court dated 27.6.2006, in present criminal appeal. Thus, the appellant Chaman Kushwaha is surviving appellant in present appeal.
9. Learned trial court placed reliance on evidence of PW-2 and PW-3, who were examined as eye-witnesses during trial and in the opinion of trial Court, eye-witnesses account of the incident is corroborated by medical evidence and on the basis of evidence tendered during trial, it is held that on the said date, time and place of incident, accused persons in furtherance of common intention committed murder of deceased Ram Bhawan Singh by their respective licensed firearms i.e. rifle and gun. The prosecution has successfully proved its case beyond reasonable doubt against accused persons, thus, they are convicted for charge under Section 302 IPC.
10. PW-10, Dr. A.K. Gupta, who has proved postmortem examination report (Ext.Ka-4) of the deceased by his evidence. He has stated before the court below that on 24.5.1997, he conducted postmortem examination of dead body of deceased Ram Bhawan Singh at Swaroop Rani Hospital, Allahabad on 25.4.1997, at 4:00 PM. The time of death was around 3/4 days. Rigor mortis was present all over the body, which was visible in both the hands and legs. Following antemortem injuries were found on the person of deceased:-
(1) Firearm wound of entry, 3/4 inch x 3/4 inch, cavity deep on front of middle abdomen, 5 inch above the umbilicus, margin inverted, blackening, tattooing and charring were present.
(2) Firearm wound of exit, 1 X 1 inch, cavity deep on back of left side, 4 inch below of the angel of left scapula, margins averted. This injury corresponded to injury No.1.
(3) Abraded contusion of size 1 X 1 inch on lower part of nose.
On internal examination of deceased, 12 ounce of undigested food was found in the stomach; half litre clotted blood was present in abdominal cavity; small intestine, spleen, large intestine were lacerated. A metal piece of size 5mm x 3mm was retrieved from the abdominal cavity of the deceased, which was sealed and sent to S.S.P. Allahabad. In the opinion of the Doctor, the cause of death was shock and haemorrhage, as a result of antemortem firearm injuries on vital organs.
11. PW-10, D r. A.K. Gupta, stated in cross-examination that only one firearm injury was found on the dead body and the other injury was of wound of exit. This injury could be caused by a firearm of .315 bore. Time of death observed in postmortem examination report may be with variation of three hours on either side. Death of deceased was probable at any time in the intervening night of 24/25.5.1997. Third injury is abraded contusion, which might have been caused by fall. He was not able to specify as to metallic piece belong to which metal.
12. PW-1, Jaikaran, is informant of the case, has stated in his statement that his brother deceased Ram Bhawan Singh had gone to visit the place of Dhruv Narayan Pandey at village Fatehpur, in an invitation but could not return home in the night. The informant thought that he would have stayed at his residence situated near Kendriya Vidyalaya, Air Force, Manauri. However, on next day morning, he was apprised by his maternal cousin Madan Singh that Ram Bhawan has been killed and his dead body is lying in front of the house of Ram Lakhan @ Dahari. On this information, he rushed to the place and found the dead body, as informed. He got a written report scribed by Madan Singh and after going through its contents, signed and presented the same at Police Chauki Sallahpur, Police Station Puramufti. The witness acknowledged his signature and hand writing of scribe Madan Singh, which is marked as Ext.Ka-1. This report formed basis of FIR. The witness also acknowledged his signature on inquest report on which Ext.Ka-2 was marked. He further stated that he came to know that his brother was killed by Ram Lakhan @ Dahari, Man Singh and Chaman Kushwaha. He got another report scribed by Madan Singh after three days of filing of Ext.Ka-1 on getting information regarding assailants and submitted the same at police station, which is placed on record as 12-A, in the hand writing of Madan Singh and signed by him. Ext.Ka-3 was marked on this second report/application, which bears date 26.5.1997. In cross-examination, the witness has stated that house of accused Dahari, situates four kms. away from his home. The Investigating Officer (darogaji) recorded his statement after three days of the incident.
13. PW-2, Phool Chandra, is examined as eye-witness after four years of the incident during trial. He stated that one the date of incident, he was going to village Gopalpur from Allahabad accompanied by Ram Naresh and Tulsiram. They stepped down from the taxi near Krishna Mandir, at around 10:30 horus where Ram Bhawan, Ram Lakhan @ Dahari, Chaman Kushwaha and Man Singh were talking together at the tea stall of Lallu. After some time, Ram Lakhan and Ram Bhawan stood up and engaged in verbal abuse. They reached there and pacified them. However, when they started to leave the place, these persons again engaged in verbal altercation. Chaman caught hold of Ram Bhawan. Ram Lakhan @ Dahari stated to Chaman Kushwaha 'leave this person where will he go by fleeing' and thereafter Dahari opened fire on Ram Bhawan by his licensed rifle, which hit him on his abdomen. Ram Bhawan fled from the place. Dahari fired a shot ay him by his rifle and Man Singh by his double barrel gun. He could not say as to whether this fire hit Ram Bhawan or not. Ram Bhawan fell on the ground and started squirming. The witness and others left from the place by their respective bicycles. The witness stated in cross examination that Ram Bhawan was his cousin i.e. son of his real uncle. When Dahari stated about Ram Bhawan that leave him where he will go by fleeing away, Ram Bhawan did not flee away even when Chaman withdrew his hold. Ram Bhawan ran after being hit by first fire, the fire which was opened by Ram Lakhan @ Dahari. He left for city of Allahabad at around 8:30 PM on that day in the company of Tulsi Ram and Ram Naresh. Tulsi Ram is his real uncle and Ram Naresh is his real brother. He visited the place of his in-laws after the incident of firing and informed his father-in-law about the incident, in which Ram Lakhan had shot at Ram Bhawan. His statement was recorded by Investigating Officer after 20 to 25 days of the incident.
14. PW-3, Tulsi Ram has also been examined as eye-witness. As per prosecution case, he accompanied PW-2, Phool Chandra, when the incident took place. He stated that he had visited city of Allahabad together with Ram Naresh and Phool Chandra to purchase some goods and had parked his bicycle in the corner of bound of the house of Ram Bhawan near Krishna Mandir, Air Force. His companions namely, Ram Naresh and Phool Chandra parked their bicycles there too. From there, they travelled to Allahabad by tempo. They reached at the place where they had parked their bicycles after returning from Allahabad at quarter passed to 10:00 hours. They sat at the tea stall where Ram Bhawan, Man Singh, Ram Lakhan and Chaman were sat. Ram Lakhan and Ram Bhawan were talking together which resulted in some hot talk. The witness and his companions tried to pacify them and they got quiet and again sat in the shop of Lallu. However, Ram Bhawan and Ram Lakhan again engaged in abusing and on this occasion, Chaman Kushwaha caught hold of Ram Bhawan and Ram Lakhan stated him to leave him where he will go after fleeing whereupon Chaman withdrew his grip from Ram Bhawan and Ram Lakhan opened the shot by his rifle at Ram Bhawan. Man Singh pointed his gun. The witness and his companions fled away from the place on being scared. He remained in hide in his agricultural of melon. The police visited the place after some time and performed some paper work. He disclosed about the incident to Jaikaran after 2 to 3 days of the incident and told this fact to Darogaji after 20 to 25 days.
15. PW-5, S.I. Rakesh Kumar Mishra, the Investigating Officer of the case, who has stated that on 25.5.1997, he was posted as S.O. of Police Station Puramufti, District Kaushambi. He investigated this case. He started the investigation of the case on 24.5.1997. He collected plain and blood stained soil as well as pieces of bullet from the place of incident and prepared the recovery memo of same in his hand writing and signature, which is Ext. Ka-5. He also conducted inquest proceeding and prepared its report, which is marked as Ext.Ka-2. He prepared the police papers for postmortem of dead body after inquest entrusted the same to the police constables, who carried the dead body for postmortem. After concluding investigation, he submitted chargehseet against three named accused persons, which is marked as Ext.Ka11. He also produced the piece of bullet before the Court, which is marked as ME-8. The proved site plan of the place of occurrence as Ext.Ka-12.
16. PW-6, Dinesh Kumar Vajpayee, is author of chik FIR (Ext.Ka-3) and extracts of G.D. of registration of case as Ext.Ka-14.
17. PW-7, Constable Kashmir Singh, has proved carbon copy of extract of GD Report No.9, Time 6:45 hours, date 24.5.1997 as Ext.Ka-15.
18. PW-8, Constable Babu Singh, has stated that he carried the dead body from the place of inquest to police line and thereafter produced the same at postmortem house.
19. Learned counsel for the appellants submitted that all the eye-witnesses are interested witnesses. This sounds unusual that they did not disclose the name of the accused persons when the FIR was registered on 24.5.1997, at 6:15 hours. In postmortem examination report of the deceased, only one firearm injury was found on the person of the deceased, which is attributed to accused Ram Lakhan @ Dahari. The metallic pieces, allegedly recovered from the abdominal cavity and place of the incident are not specified as pieces of bullet of any firearm, even in FSL report. As per the prosecution version, the incident occurred in the spur of the moment. Role of first firing is specifically attributed to accused Ram Lakhan @ Dahari, who is non appellant in present appeal. The subsequent role of firing is attributed to deceased-accused Man Singh. The person, who was tea vendor namely Lallu, at whose shop the deceased, accused persons and witnesses were present and where incident took place appears as a star witness of the case but he has neither been interrogated by Investigating Officer nor was produced as a witness during trial. Another eye-witness namely Ram Naresh, whose name surfaced in second report of the informant has also not been produced in evidence. Motive of commission of crime is attributed to none of the appellants. The so called eye-witnesses are blood relatives of the deceased but there is no explanation of this fact that why they did not disclose the name of the assailants for two days. The legal heirs of the deceased Man Singh have got themselves substituted in the appeal to get the service benefits of Man Singh, who was a Head Constable in the Excise Department. Madan Singh, who is scribe of the written report (Ext.Ka1) and gave first hand information to the informant regarding killing of Ram Bhawan Singh was not examined during trial. Weapon of assault has not been recovered in the case.
20. Learned counsel for the appellants placed reliance on following judgements of Hon'ble Apex Court:-
(1) Smt. Sudha Srivastava vs. Comptroller and Auditor General of India, 1996 (1) SCC 63, [Civil Appeal No.9949 of 1995 (arising out of SPL(C) No.6852 of 1995)];
(2) Md. Jabbar Ali & others vs. State of Assam, 2022 LiveLaw (SC) 856;
(3) Harnam Singh vs. The State of U.P., AIR 1975 Supreme Court 236;
(4) Yeruva Sayireddy vs. The state of Andhra Pradesh & Another, 2022 0 Supreme (SC)1369.
21. In Smt. Sudha Srivastava vs. Comptroller and Auditor General of India (supra), the only question which arose for consideration in this appeal was whether the heir of a civil servant who was prosecuted in a Court of law but was ultimately acquitted, though by that time he had died, can be permitted to continue the proceeding before the Court and claim the grand of retrospective promotion to the deceased and the consequential monetary benefits. The Hon'ble Apex Court answered the question in affirmative manner placing reliance on a judgement of the Court in Union of India vs. K.V. Jankiraman, (1991) 4 SCC 109, wherein it was observed that when an employee is completely exonerated and is not vested with penalty, then he has to be given benefit of salary of the higher post alongwith other benefits on the date on which he would normally have been promoted for the disciplinary/criminal proceeding. Moreover, this is not a case where the acquittal of the deceased was as a result of his being given the benefits of doubt or on account of non-availability of evidence.
22. Learned counsel for the appellant placed reliance on a judgement of Hon'ble Apex Court in Md. Jabbar Ali & others vs. State of Assam (supra), wherein a previous judgement in case of Raju alias Balachandran and others vs. State of Tamil Nadu (2012) 12 SCC 701, was cited with approval wherein Hon'ble Apex Court observed:-
"29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [AIR 1953 SC 364] and pithily reiterated in Sarwan Singh [(1976) 4 SCC 369] in the following words:
"The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
23. In Harnam Singh vs. The State of U.P. (supra), the question of abetment on death of appellant was considered by Hon'ble Apex Court under provisions of Section 431 Cr.P.C., 1898, which was statutory in pari materia with Section 394 Cr.P.C., 1973, wherein Hon'ble Apex Court held that the widow of the deceased-appellant may be brought on record on death of the appellant as his legal representative and is entitled to continue the appeal as the sentence of fine directly affects the property, which would devolve on her on the death of her husband.
24. In Yeruva Sayireddy vs. The state of Andhra Pradesh & Another (supra), Hon'ble Apex Court considered the scope of Section 394 Cr.P.C., which provides as under:-
The appeal is governed by the substantive provision of law. Section 394 of the Cr.P.C. reads as under:
"394. Abatement of appeals. - 1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.
2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate."
The counsel, as an Amicus, cannot be treated as a near relative of the deceased appellant/convict. The application for continuance of the appeal having not been made within 30 days or even thereafter by any near relative, in our opinion, as per the provision of Section 394 of the Cr.P.C., this appeal would abate. Accordingly, the appeal stands disposed of as having abated."
25. Per contra, learned AGA submitted that the case is passed on eye-witnesses account of PW-2 and PW-3. There is no material on record to suggest that these witnesses had any enmity or animosity with the accused appellants, merely due to the fact that they are related to the deceased and the informant, there evidence cannot be brushed aside. There was no occasion for the eye-witnesses to falsely implicate the accused persons in the case. The prosecution version has been brought on record in natural manner and proved in accordance with law, bonafides of the informant cannot be doubted. There is no factual or legal error or infirmity in the impugned judgement and order. The appeal deserves to be dismissed.
26. We have obtained from Office, a net generated copy of order dated 14.7.2023, passed by Co-ordinate Bench of this Court in Criminal Appeal No.3443 of 2006, which reveals that the appeal filed by co-convict Ram Lakhan @ Dahari, has been dismissed as abated, vide order dated 14.7.2023. Thus, out of three convicts, two convicts namely, Ram Lakhan @ Dahari and Man Singh namley Meena Devi and Bharat Patel, his wife and son, have already died and only appellant Chaman Kushwaha is present before the Court. As a matter of fact, legal representatives of deceased convict Man Singh have got themselves impleaded in present appeal as appellants to assail conviction recorded by the learned trial court in impugned judgement against deceased appellant Man Singh also.
27. The prosecution has examined PW-1, Jaikaran, informant, who has proved his written report as Ext.Ka-1 dated 24.5.1997, which formed basis of lodging of chik FIR (Ext.Ka-13) by Constable Dinesh Kumar Vajpayee (PW-6). PW-1 has also proved the second written report 12-A as Ext.Ka-3, in which name of accused persons and witnesses have been disclosed and on the basis of this report dated 26.5.1997, the investigation was undertaken against accused persons by PW-5, S.I. Rakesh Kumar Mishra. This is admitted fact that PW-1, Jaikaran, is not an eye-witness and whatever he has stated in his report dated 24.5.1997 is based on information report by his maternal cousin Madan Singh, who has not been examined as witness in the case. The second written report, in which name of accused persons have been disclosed is based on information received from witnesses namely, Phool Chandra (PW2) and Tulsi Ram (PW-3) and one Ram Naresh, who was co-villager. In second written report dated 26.5.1997, the informant has stated that he has been told by his co-villager Ram Naresh, Tulsi Ram and Phool Chandra that on 23.5.1997, at around 10:30 PM, when the witnesses came to the tea stall of Lallu, they found accused persons Ram Lakhan @ Dahari, Chaman Kushwaha and Man Singh, who were accompanying deceased Ram Bhawan Singh in the said tea stall. They were sitting in the stall and in the meanwhile, some altercation took place between Dahari and Rajkumar to which Dahari exhorted for killing Ram Bhawan and he opened a fire at him by his licensed rifle and Man Singh also opened fire at deceased by his licensed 12 bore gun. Ram Bhawan fell on the ground in injured condition. The witnesses became panic and scared by seeing the incident. Thus, no specific role has been assigned to accused Chaman Kushwaha in both the written report filed by the informant- PW-1. The role of causing fatal injury to the deceased is attributed to deceased accused Ram Lakhan @ Dahari and role of firing has also been attributed to deceased appellant Man Singh in the both these reports. The prosecution has produced two eye-witnesses in support of its case namely, PW-2 Phool Chandra and PW-3 Tulsi Ram and a perusal of their eye-witness account reveals that the occurrence took place in a spur of the moment. Ram Lakhan @ Dahari, who was sitting together in a tea stall, which was later visited by the witnesses. This fact has emerged in statement of PW-2 and PW-3 that Ram Lakhan @ Dahari being enraged by altercation with deceased exhorted to kill him and fired as shot at Ram Bhawan by his rifle whereas during course of altercation, accused Chaman Kushwaha had caught hold of the deceased but Ram Lakhan instructed him to withdraw his hold of the victim and stated that where he would go after fleeing away, he is an obstacle whereupon Chaman Kushwaha freed the deceased from his hold and Ram Lakhan fired a shot at him. PW-3 has stated that Man Singh had pointed his gun towards the deceased and thereafter all three accused fled away from the place of incident. He has stated in cross-examination that fire took place in the presence of him and his companions Phool Chandra and Ram Naresh. Deceased was his real nephew. One fire by rifle took place before him and thereafter he fled away from the place but he did not reach the home and spent the night in the melon field. Thus, this witness, who is uncle of the deceased has specifically stated in his evidence that it is Ram Lakhan @ Dahark, who altercated, exhorted and killed Ram Bhawan Singh, the deceased. He has attributed the role of catching hold of the deceased to appellant Chaman Kushwaha and pointed his licensed gun to deceased after he received gunshot injury by firing of Ram Lakhan but he has not stated that any firearm shot was fired by Man Singh at the deceased or not.
28. PW-2, Phool Chandra, another eye-witness, has also stated that at around 10:30 hours, near Krishna Temple, he accompanied by witnesses Tulsi Ram and Ram Naresh visited tea stall of Lallu where they noticed deceased Ram Bhawan Singh in the company of accused persons sitting in the shop. Some altercation took place between Ram Lakhan and deceased and Chaman Kushwaha caught hold of the deceased during altercation but Ram Lakhan asked him to withdraw his grip from Ram Bhawan and stated that where he would go by fleeing away and thereupon he fired a shot at Ram Bhawan, which hit his abdomen. He ran and fell down. Thereafter, Man Singh opened a fire at the deceased by his DBBL gun but he could not see as to whether the fire shot by Man Singh hit the deceased or not. Thus, this witness has also corroborated the prosecution case that it was the firearm shot of co-accused Ram Lakhan @ Dahari, which resulted death of the deceased. There is no consistency between the statement of PW-2 and PW-3 as to opening of fire by deceased appellant Man Singh at the deceased Ram Bhawan but this is consistent prosecution case that it was firing a shot by rifle, by accused Ram Lakhan @ Dahari, which resulted in causing of fatal injury to the deceased, on date, time and place of incident. PW-2 stated that he had come to city of Allahabad to purchase some items of his tubewell machine and was going back to his village. He has stated that prior to this incident, father-in-law of deceased namely, Ishwar Dayal was killed and that murder case was being prosecuted by deceased. This witness has also stated that deceased was his first cousin i.e. son of his real uncle. Deceased Ram Bhawan did not flee away when Ram Lakhan exhorted to kill him and asked Chaman to withdraw his hold of the deceased. When Ram Lakhan fired a shot on deceased, Chaman Kushwaha has already freed him, thus, both the prosecution witnesses are relatives of the deceased. PW-2 is his first cousin and PW-3 is real uncle of the deceased. This is settled position of law that evidence of relatives or interested witnesses cannot be discarded only on that count but their evidence required close scrutiny and statements should be examined and evaluated meticulously because they are entrusted in outcome of the case in favour of the prosecution.
29. If we examine the eye-witnesses account of the incident on anvil of medical evidence, we find that at the time of postmortem examination by PW-4, Dr. A.K. Gupta, one wound of entry and one corresponding wound of exit was found in the abdomen of the deceased. Blackening, tattooing and charring were present around the wound, which shows that the lethal shot was fired from close range. PW-4, has clarified in his cross-examination that deceased had suffered shot of one firearm, which was possible by a firearm of .315 bore. The death might have taken place in intervening night of 23/24.5.1997, at around 1:00 hours. A metallic piece was retrieved from abdominal cavity of the deceased of size 5mm X 3mm, which was sent to SSP, Allahabad through the constables who carried the dead body to postmortem house but he could not tell that this metallic piece was made of which metal. In ballistic examination report also it could not be specified as to whether the mutilated metal piece received for ballistic examination was piece of cartridge of firearm but human blood was found thereon. Weapon of assault, the firearm has not been recovered in the case. The application for police remand of Ram Lakhan @ Dahari, moved by Investigating Officer, was rejected by Magistrate due to lapse of first 95 days of period of judicial custody.
30. Thus, from meticulous examination of prosecution evidence and placing reliance on evidence of PW-2 and PW-3, with regard to sequence of events, it is found that the occurrence took place at the spur of the moment, no prior consultation, preplanning or pre-arranged plan among the accused persons for killing the deceased is established by the prosecution evidence. Even no motive has been introduced in the FIR itself. The role of firing fatal shot by rifle is specifically attributed to deceased convict Ram Lakhan @ Dahari in FIR as well as in statement of eye-witnesses. He has reportedly died and his criminal appeal preferred against impugned judgement has already been dismissed as abated by orders of this Court dated 14.7.2023, as stated above. So far as the role of Chaman Kushwaha is concerned, no weapon has been assigned to him in prosecution evidence. He has been assigned role of catching hold of the deceased prior to the incident during period when Ram Lakhan and deceased engaged in altercation at the tea shop but in the evidence, witnesses have stated that he had withdrawn his hold of the deceased on exhortation and instruction of Ram Lakhan @ Dahari. Thus, this appellant is in no manner instrumental or facilitator of the murder of the deceased, Ram Bhawan. The role of the deceased appellant Man Singh in the offence is that, after firing a shot by main accused Ram Lakhan by his rifle, this appellant also fired a shot at the deceased as stated by PW-2 and he pointed his DBBL gun towards the deceased as per PW-3 but keeping in view the fact that only one firearm injury has been found on the person of the deceased it can be held that except the shot fired by deceased appellant Ram Lakhan at the deceased, he received no other firearm injury. There is no consistency in the version of PW-2 and PW-3, the eye-witnesses, with regard to role played by the appellant Man Singh in the incident. The deceased appellant Ram Lakhan @ Dahari, is author of single firearm shot, which proved fatal to the deceased. Thus, in totality of facts and circumstances of the case and also the fact that no independent witness has been produced in support of prosecution case, the case against present appellants namely, Man Singh and Chaman Kushwaha is not found to be proved and this fact is not proved beyond reasonable doubt that these appellants shared common intention to kill the deceased together with co-accused, who is shown as main assailant in the evidence. Learned trial court appears to have committed factual and legal error while appreciating the evidence and recording of conviction as well as inflicting punishment against present appellants in impugned judgment. Impugned judgement suffers suffering from serious discrepancies and is not sustainable under law and it deserves to be set aside in respect of the appellants.
31. Instant appeal stands allowed and the impugned judgment and order dated 6.6.2006, passed by learned Additional Sessions Judge, Fast Track Court No.24, Allahabad, in S.T. No.853 of 2000, (State of UP vs Ram Lakhan alias Dahari and others), arising out of Case Crime No.167 of 1997, Police Station Puramufti, District Kaushambi, is hereby set aside in respect of present appellant namely Man Singh (since deceased) and Chaman Kushwaha. They are acquitted of charge under Section 302 IPC, on being extended benefit of doubt. Appellant No.2 need not to surrender.
32. The appellant No.2, the surviving appellant, is directed to file his personal and surety bonds in compliance of Section 437-A of Cr.P.C., within a period of 20 days from today.
33. Office is directed to return the lower court record alongwith certified copy of this Judgement for necessary information/compliance, to court concerned, within a period of two weeks. The fine, if any, deposited by the appellants shall be refunded to them or their legal representatives as the case may be.
Order Date :- 06.03.2024 Kamarjahan