Allahabad High Court
Durjan Singh And Others vs State Of U.P. on 22 March, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:52320-DB Reserved On: 30.01.2024 Delivered On: 22.03.2024 In Chamber Case :- CRIMINAL APPEAL No. - 380 of 1986 Appellant :- Durjan Singh And Others Respondent :- State of U.P. Counsel for Appellant :- J.S. Kashyap Counsel for Respondent :- A.G.A. Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Ram Manohar Narayan Mishra,J.)
1. Heard Sri J.S. Kashyap, learned counsel for the appellants, learned AGA for the State and perused the material placed on record.
2. Instant Criminal appeal has been preferred by the accused appellants namely, Durjan Singh, Gangadin and Kishan Pal, with a prayer to set aside the judgment and order dated 30.1.1986, passed by Special Judge (E.C. Act), Mainpuri, in S.T. No.103 of 1985, (State vs. Durjan Singh and others), under Sections 148, 302/149 IPC, Police Station- Ghiror, District- Mainpuri, whereby, they have been convicted for charge under Section 302 read with Section 34 IPC and have been sentenced to imprisonment for life. They have been acquitted of other charge under Section 148 IPC.
3. The factual matrix of the case in brief are that the present FIR was lodged at the instance of Babu Ram (PW-1) at Police Station Ghiror, District Mainpuri on 22.10.1984, at 11:05 AM, with allegations that he is resident of Village Nagla Mulla, Police Station- Ghiror. He went to watch his 'bajra' field in last night alongwith his brother Genda Lal, co-villager Ganga Prasad and brother-in-law (bahnoi) Pratap Singh. His co-villagers Durjan Singh, Gangadin and Kishan Pal met him on way. Durjan Singh was armed with a gun and Kishan Pal and Gangadin were wielding countrymade pistols. It was around 10:00 hours in the night. They suddenly ran towards his brother Genda Lal to catch him. The informant and others raised an alarm whereupon witnesses Ram Charan, Sitaram and others rushed to the place. Accused Kishan Pal exhorted his companions to teach a lesson to Genda Lal and he should not left alive. Consequent upon this, all the three accused persons opened fire on Genda Lal by their respective firearms. He received firearm injuries and fell on the ground. Accused persons took to their heel after committing the crime and fled away towards Jamunayee (south). They were recognized in the light of electric torches. Being afraid of the incident, the complainant could not visit the police station in the night to lodge a report soon after the occurrence. All the members of the family assembled at the scene of occurrence in order to have a watch over the dead body. On the next day, the informant Babu Ram went to police station Ghiror, where he submitted written report (Ext.Ka1). The police station concerned recorded chik FIR (Ext.Ka-3) at 11:05 AM on 22.10.1984. The case was registered vide GD Entry dated 22.10.1984 (Ext.Ka-4) against named accused persons. The Investigating Officer, S.I. R.K. Sharma proceeded with the investigation of the case. He recorded the statement of informant at police station and visited the spot of incident alongwith police force, just after the registration of the FIR. He examined the dead body of Genda Lal in presence of witnesses. He prepared inquest report, letter to Chief Medical Officer (Ext.Ka-8), Challan-nash (Ext.Ka-9), another letter to CMO, Mainpuri (Ext.Ka-10), Photo-nash (Ext.Ka-11 and 12), specimen impression of seal (Ext.Ka-13). He got the dead body wrapped with a sheet of cloth after carrying out the inquest proceeding and sealed the same. Dead body alongwith necessary papers was sent to Mortuary of District Hospital Mainpuri with Constable Dhyan Pal Singh and Aditya Kumar Singh for the purpose of postmortem examination. Dr. S.C. Thariyani conducted the postmortem examination on the dead body of the victim and prepared the postmortem examination report (Ext.Ka-2). S.I. R.K. Sharma inspected the place of incident and prepared site plan (Ext.Ka-14). He collected blood stained earth as well as plain earth from the place of occurrence and prepared its recovery memo as Ext.Ka-16. He interrogated the witnesses at the scene of occurrence. He also examined the electric torches used by the witnesses at the time of incident and prepared its recovery memo as Ext.Ka-17. He stayed at the scene of occurrence in the night. On the next day, he returned to the police station. On way back to police station, he arrested accused Roop Ram, Durjan Singh and Gangadin. His return at police station is recorded in GD report No.19 dated 23.10.1984, which is proved as Ext.Ka-18 on record. Thereafter, the investigation of the case was entrusted to S.I. V.K. Sharma, who conducted remaining investigation of the case from 17.11.1984 onwards. The Investigating Officer recorded the statement of accused persons during investigation of the case and he found complicity of Dipti Singh alias Baba and Roop Ram also in the commission of crime and they were arrayed as accused during investigation. S.I. V.K. Sharma submitted chargesheet (Ext.Ka5) against accused Durjan Singh, Gangadin, Kishan Pal and Roop Ram, which is filed on record as Ext.Ka-5. He also submitted chargesheet against accused Dipti Singh @ Baba, which is placed on record as Ext.Ka-6. The case was committed to court of session by learned magistrate as the offence is exclusively triable by Court of Session.
4. On commencement of trial, learned Special Judge, (E.C. Act), Mainpuri, framed charge on the basis of final chargesheet against accused persons under Sections 147, 148, 302/149 IPC and 302 read with Section 149 IPC. Charges were read over and explained to the accused persons in Hindi, to which they pleaded not guilty and claimed to be tried.
5. Prosecution examined PW-1, informant Babu Ram; PW-2 Pratap Singh; PW-3 Dr. S.C. Thariyani, who conducted postmortem examination on the dead body of the deceased; PW-4, Head Constable Shiv Ram Sharma, the author of chik FIR and GD Entries of registration of case; PW-5, the Investigating Officer V.K. Sharma, PW-6 S.I. R.K. Sharma (first Investigating Officer).
6. Learned trial court recorded statement of accused persons under Section 313 Cr.P.C., in which they only admitted that deceased was brother of informant. The witnesses have stated against them falsely. They feigned ignorance regarding prosecution papers including written report (Ext.Ka-1), chik FIR (Ext.Ka-3). They stated that they have been falsely implicated in the case due to village partibandi. They did not adduce any evidence in their defence. Their defence is that of denial.
7. PW-3, Dr. S.C. Thariyani, is medical witness who conducted postmortem on the dead body of the deceased Genda Lal on 23.10.1984, at 1:30 AM and proved the said document as Ext.Ka-2 during his evidence before the trial court. He stated that at the time of postmortem examination following antemortem injuries were found on the person of the deceased:-
1. Fire arm wound of entrance 2 cm X 1 cm X connected with the wound of exit (Inj.No,2) on the left side face near tragus of the left ear. Margins lacerated, everted and ecchymosised. No blackening, tattooing and scorching seen. Direction of the wound downwards & right side.
2. Fire Arm wound of exit 9 cm X 3 em X connected with the wound of entrance (No.1) on the right side face over mendible rami. Margins are lacerated everted direction is upwards and left side. Metallic piece visible at wound.
3. Multiple fire-arm wounds in an area of 8 cm x 5 cm on the right aide abdomen upper part of chest. Average size 1/2 cm X 1/2 cm X muscle deep Margins lacerated, inverted and ecchymosed. No blackening, tattooing or scorching seen. Direction is straight.
4. Fire arm wound of entrance 2 cm X 1 cn X bone deep on the right side skull 7 cm above to ear. Margins lacerated, inverted. No blackening, tattooing & scorching seen. Direction of the wound was oblique & towards left side. One tamba piece & ranga metallic visible at wound.
5. Lacerated wound 8 cm x 3 1/2 cm X muscle deep on the outer side of the right thigh middle.
6. Multiple abrasions in area of 12 cm X 7 cm on the left side chest below nipple. Average size 3 cm X 2 cm.
7. Multiple abrasions in an area of 14 cm X 6 cm on the left ingoinal region. Average size 3 cm X 1 1/2 cm.
8. Multiple abrasions in an area of 17 cm X 11 cm on the back middle. Average size 4 cm X 2 1/2 cm.
8. In the opinion of Doctor, the cause of death was shock and haemorrhage as a result of antemortem injuries. He has stated that there was possibility of death having been caused to the deceased on 21.10.1984 at about 10:00 PM. In internal examination fracture of right parietal and temporal bone was seen. Lower and upper jaw of right side fractured. Upper jaw of left side was fractured. In stomach about 5 ounces semi digested food material was present. Heart was empty 4 ounce. Three small metallic pellets were recovered from the mucus of the right side of muscles of chest. Small intestine was half filled. Large intestine was loaded with fecal matter and gases. In the opinion of Doctor, who conducted the postmortem examination on the dead body of the deceased, 6 to 7 hours margin may occur on either side with regard to duration of injuries. The deceased would have taken meal 3 to 4 hours earlier to death. If deceased had stood on a plain surface, the assailants would be on some higher surface. Charring and tattooing occur, if gunshot injuries are caused within 3 to 4 feet distance. Rigor mortis had passed off from whole body except on ankle joints. The duration of death from postmortem was around 1 ¾ days.
9. PW-1, Babu Ram, is informant, who has stated in his evidence that it was around 10:00 PM, he was going to watch his 'bajra' field accompanied with Pratap Singh, Gaya Prasad and Genda Lal. This field situated in the west side of his village. His brother Genda Lal was about 10 to 12 paces ahead of him and the informant and witnesses were behind him. When they reached on western mend of the field, accused Durjan Singh, Kishan Pal and Gangadin emerged from his bajra field. Durjan Singh was armed with gun and Kishan Pal and Gangadin wielded with countrymade pistol (tamancha). All the three accused persons were present during his examination and the witness identified them. Accused persons challenged Genda Lal that he would not be spared and none can save him. They also abused him. Genda Lal ran towards right side of barren land. All the three accused persons chased him and opened fire on him in the barren land. The fires hit him and Genda Lal fell on the ground being injured. The accused dragged Genda Lal up to some distance. The witnesses Sitaram and others rushed to the spot on hearing hue and cry made by informant and his companions. They chased the accused persons. The accused took to their heel while threatening the witnesses to kill them. They left the dead body in the field of Lotan. The witnesses came near Genda Lal, who was found dead. Blood was oozing from his injuries. They did not visit the police station to lode the FIR due to fear of accused persons. They came to police station in the morning to lodge the FIR. The informant got the written report scribed by Udayveer (nephew), his sister's son. The scribe had written the report as per the dictation of the informant (PW-1) and after writing the same, read over to him, who affixed his thumb impression thereon. The written report (Ext.Ka-1) was read over to him during his examination, who acknowledge the same and stated that this is the report, which he filed at police station. He stated that he came to know later that Dipti Singh and Roop Ram were also involved in the offence, who were present before the Court. Their name was disclosed to him by witnesses Pratap Singh and Gaya Prasad. An altercation occurred between accused Kishan Pal and deceased Genda Lal with regard to mend 3 to 4 years earlier to this incident of murder. Kishan Pal stopped the witness from measuring the field and threatened to kill him. Accused persons were on friendly terms and has formed a gang. He left the village being scared by them after the incident and is living in village Alalpur. In cross-examination, the witness stated that the accused persons had left the dead body of Genda Lal in barren land and not in the field of Lotan. He was shot at by accused persons from front and back both. They left the dead body northwards to the field of Lotan. Genda lal fell in the field of Lotan having suffered firearm injury. All the three accused persons caught hold of Genda Lal and shot at him. The accused persons opened fire on Genda Lal from a surface, which was not plain. Informant and witnesses were standing about 20 paces away where Genda Lal was shot at. The informant and witnesses namely, Pratap Singh and Gaya Prasad stayed with the dead body throughout the night at the place of incident and left for lodging of FIR on sunrise. He had told the scribe Udayveer the fact that accused persons dragged the dead body of Genda Lal but the witness admitted that this fact is not stated in written report (Ext.Ka-1) he was apprised of the involvement of accused Dipti Singh and Roop Ram on next day of lodging of FIR. Darogaji visited his village after sun set on the date of lodging of FIR. He also visited the place where dead body was kept. He had shown the place to Darogaji from where he had seen the incident. The scribe Udayveer had written his written statement. Darogaji recorded his statement only once. The witness Pratap Singh was residing at his house 5 to 7 days earlier to the incident due to the illness of his father. The witness feigned ignorance to the defence suggestion that deceased was an accused in a case under Section 396 IPC. Accused Roop Ram had got a sale deed executed from his uncle Govind regarding his land 10 days earlier to the statement of this witness in the Court.
10. PW-2, Pratap Singh, has also been examined as eye-witness of the incident, who has stated that he had visited the village of informant to see his father-in-law Mohan Lal, who was ill at that time. He went to the place of informant 4 to 5 days earlier to the incident. This witness supported the FIR version as well as the testimony of PW-1, stated that on being dragged by accused persons, the cloths of Genda Lal were soiled in mud. Genda Lal ran towards barren land on being challenged by accused persons, who in turn chased him and caught hold of him. Witness Babu Ram and he identified the accused persons in the light of torch. His torch left on the spot in an effort to save Genda Lal. All the accused persons fired at Genda Lal and he fell down. The accused dragged him southwards about 50 to 60 paces. On shouting of the witnesses and others, Ram Charan and Sitaram also came on the spot. They chased the accused but they took to their heels by leaving Genda Lal on the spot. Babu Ram (PW-1) left the village being scared by accused. In cross-examination, the witness stated that he was examined by Darogaji (Investigating Officer) after the incident. He had visited the house of the informant to see his ill father-in-law. The scribe of FIR Udayveer is his son, who came from market at 10:00 AM. He stayed with dead body in the night together with Babu Ram on the spot. He told Babu Ram on way that Dipti and Roop Ram were also involved in the incident. The witness denied the defence suggestion that he was not present at the scene of incident and he was deposing against the accused being relative of the deceased.
11. PW-4, Head Constable Shiv Ram Sharma, is author of chik FIR and extracts of GD Report No.25, dated 22.4.1984 at 11:05 hours regarding registration of case of lodging FIR at police station. He proved the chik FIR as Ext.Ka-3 and extracts of GD as Ext.Ka-4 by his evidence as author of these documents.
12. PW-5, S.I. V.K. Sharma, is Investigating Officer of the case, who has proved the steps taken in investigation of the case in his evidence. He stated that the investigation of the case as previously carried out by S.I. R.K. Sharma and he took over the investigation of the case after transfer of First Investigating Officer. He started the investigation on 17.11.1984 and recorded statements of accused persons in jail and filed chargesheet against them. In his handwriting and signature, which is marked as Ext.Ka-5. Accused Dipti Singh @ Baba was absconding at that time, therefore, he filed chargesheet against him in abscondance, which is marked as Ext.Ka-6.
13. PW-6, S.I. R.K. Sharma, is first Investigating Officer of the case, who has stated that he was posted as Sub Inspector on 22.10.1984, at police Station Ghiror. The FIR of this case was lodged in his presence and investigation entrusted to him. The witness proved the steps taken in investigation of the case. He has stated that after registration of the case, he proceeded to place of incident alongwith force and informant. He carried out the inquest on dead body received and prepared inquest report in his handwriting and signature, which is marked as Ext.Ka-7. He prepared letter R.I., Challan nash, letter to CMO, picture dead body (nash), specimen seal, which are marked as Ext.Ka-8 to Ka-13 by his evidence. He sent the dead body for postmortem after sealing the same through two constables. He conducted the spot inspection of the scene of occurrence and prepared its site plan, which is exhibited as Ext.Ka-14. He collected plain earth and blood stained earth from the place of incident and prepared its memo, which is marked as Ext.Ka-15. He also collected four number of empty cartridges of 12 bore gun from the field of Lotan and prepared its recovery memo which is marked as Ext.Ka-16. He has sealed these articles in presence of public witnesses and recorded statement of the informant and other witness and took the torch used by informant and witness at the time of incident and prepared the inventory, which is marked as Ext.Ka-17. The case was investigated under Sections 147, 148, 149 IPC together with Section 302 IPC. He had arrested accused Roop Ram and Gangadin from bus stand and recorded their statement. The case property was deposited in Malkhana and arrested accused persons were confined in lock-up and a GD Entry No.15, time 16:00 hours dated 23.10.1984 was made by him, the extracts of relevant GD entry were placed on record, which is exhibited as Ext.Ka-18. The witnesses had seen the occurrence in the light of torch. In cross-examination, he has stated that the dead body of deceased was lying in the field of Lotan and not in barren land. He visited the spot after registration of the FIR.
14. The appellant No.1, Durjan Singh, died 7-8 years ago and as per the order dated 22.10.2018, passed in present criminal appeal, this appeal stood abated in respect of appellant No.1, Durjan Singh. Therefore, present appeal is to be heard and decided in respect of surviving appellants only
15. The main plank of contention of learned counsel for the appellants are that:-
1. Gangadin and Kishan Pal are aged persons. Both are farmers and resident of Nagla Gulla, Police Station Ghiror, District Mainpuri.
2. The appellants are falsely implicated by the informant in the case. They are not having any prior criminal history.
3. The FIR in the case was lodged at belated stage as the incident took place on 21.10.1984, at around 10:00 PM and FIR was lodged on next date, at police station concerned whereas distance of police station and place of incident is about 10 kms by road and conveyance is available every time to reach the police station therefrom. Even that the FIR was lodged after more than 12 hours of the incident. The deceased was a man of criminal credentials and he was killed by unknown persons in the night of 21.10.1984 and in fact nobody had seen the occurrence and dead body was found in the filed on next date by villagers when they came field on next date by villagers when they came to their field and then informant was aprised of the incident, who lodged FIR with false and concocted facts against the appellant due to the village partibandi.
4. In FIR as many as six witneses of fact namely Babu Ram, Gaya Prasad, who are real brothers of deceased, one witness Pratap Singh, who is real brother-in-law of the deceased and informant alongwith independent witnesses namely Ram Charan and Sitaram, who are co-villagers of the informant but the independent witneses were deliberately witheld and the real brother and real brother-in-law of the deceased appeared in evidence before the Court which creates a serious doubt on prosection version.
5. Even PW-2, Udayveer Singh, the scribe of the FIR is real nephew (sister's son) of the informant. The witnesses of inventory of blood stained and plain earth, recovery memo of torch used during incident and panch witnesses of panchayatnama have not been examined as prosecution witnesses.
6. The place of incident is not settled. According to the FIR, the deceased Genda Lal was fired in Ushar (barren land), who fell down and died. Thereafter, the accused persons ran away from the place of incident and the case was developed after FIR as PW-1 stated in his evidence that accused persons dragged the dead body of Genda Lal and left the same in the field of one Lotan but in his cross-examination, he stated that the accused had left the dead body at the Ushar (barren) land and not in the field of Lotan.
7. PW-2, Pratap Singh has stated that when the accused challenged Genda Lal, he ran towards barren land. Genda Lal escaped from the grip of accused persons at this juncture, accused persons fired at him due to which he fell down and died. Thereafter, they dragged the dead body of Genda Lal and left the same in the field of Lotan. Thereafter, there is no consistency in which the statement of witnesses of fact with regard to place of incident even there is apparent contradiction in the statement of PW-1 at this point in his examination-in-chief and cross-examination.
8. The prosecution version is inconsistent with medical evidence. PW-3, Dr. S.C. Thariyani, has found 8 antemortem injuries on the person of deceased. There were four gunshot wounds. One lacerated wound and three multiple abrasion. He further stated that multiple injuries were caused by dragging and lacerated wound injury No.5 was caused by blunt object whereas in FIR and in statement of witnesses. There is no version that deceased was assaulted by hard and blunt object. The directions of injury No.1 and 2 indicates that the shots were fired from some place of height, which is not in consonance with eye-witness account of the incident.
9. The prosecution case is that the accused opened fire at deceased from close range but no tattooing, blackening or scorching was found around the gunshot wounds and therefore the occurrence did not take place in the manner as the alleged by the prosecution.
10. The accused persons had no motive for commission of the crime in question. PW-1 Babu Ram has introduced motive in his evidence against accused persons which is shown as dispute regarding demarcation of land whereas he himself admitted in cross-examination that the demarcation was completed by area Lekhpal. Therefore, no animus remained with the accused persons with regard to demarcation of land against the deceased. He lastly submitted that the learned trial court has miserably failed to appreciate the evidence on record in proper perspective. There are infirmities in impugned judgement and it is not sustainable under law and deserves to be set aside. The accused appellants may be acquitted of all charges on ground taken in present appeal
16. Per contra, learned AGA submitted that there is no substantial discrepancy in prosecution case. The contradiction pointed out by learned counsel for the appellant is of minor nature, which is not sufficient to create a doubt in veracity of the prosecution comes which is based on eye-witness account of the witnesses of fact. The case is based on direct evidence where motive losses its significance to much extent. Learned trial court has addressed properly the contention raised by learned counsel for the defence before the trial court in impugned judgement and has properly recorded the verdict of guilt against the appellants and sentenced them in accordance with law.
17. From perusal of impugned judgement, it appears that learned court below has placed reliance on evidence of witnesses of fact and observed that when the deceased was falling down or was in bent position, injury nos.1 and 2 were caused to him and this way, the medical evidence is quite consistent with the prosecution version. There is nothing in the statement of witnesses PW-1 and PW-2 that the firearm was discharged from a distance of less than four feet. No blackening or scorching is found if the firearm is discharged from a distance of more than four feet. Gunshot wound No.1 is wound of entry and wound No.2 is gunshot wound of exit. Injury No.2 is firearm wound of exit connected with the injury no.1. Gunshot wound No.4 was found bone deep on right side of skull. The signs of blackening and scorching may be absent even when the weapon is pressed tightly against the skin of the body, as the gasses of explosion and the flame, smoke and particles or gun powder will all follow the track of the bullet in the body. If signs of blackening or scorching were not found around entry wounds, it is of no significance at all. Injury No.3 (multiple firearm wounds) was found on the right side of abdomen. PW-1, Babu Ram, the brother of the deceased, has given all particulars and the statement in the FIR, he has stated that he recognized the accused persons in the light of electric torches. The fact that the witness is the brother of the deceased would add to the value of his evidence because he would be interested in apprehension of real culprits responsible for the murder of his brother. It is well known that the close relative of a murdered person is most reluctant to spare the real assailants. Nothing has come out in the statement of PW-1 Babu Ram, which may discredit the evidence of PW-1, in my opinion, he is wholly reliable. With regard to PW-2, Pratap Singh, who is brother-in-law of the deceased and informant, the court below has observed that nothing has come out in this cross-examination which may drive to an inference that he was not preent in village Gulla ka Nagla on the night of the occurrence. Undoubtedly he is related to deceased. The relationship of the witness with the deceased is no ground for not acting on his testimony if it is otherwise credible and it is shown that he was present at the place of occurrence and saw same. The witness has explained as to how and under what circumstances, he was present in the village Nagla Gulla on the night of the incident. He has categorically stated that he recognized the accused persons in the light of the electric torches. But he has stated that accused Dipti and Roop Ram also participated in the commission of the crime in question. But on the other hand there is no such cases of the prosecution. PW-2, Pratap Singh, is neither wholly reliable witness nor wholly unreliable. He is a partly reliable witness and as such his evidence is taken into consideration as aganst accused Durjan Singh, Kishan Pal and Gangadin. Complainant Babu Ram is silent about the participation of accused Dipti and Roop Ram in the commission of the crime and, therefore, they are entitled to be acquitted. From the above evidence on record, the trial court concluded that accused Kishan Pal, Durjan Singh and Gangadin in furtherance of their common intention did commit murder of Genda Lal by intentionally causing his death and that they thereby committed offence under Sections 302 read with Section 34 IPC. As charges under Section 148, 302 read with Section 149 IPC were framed against accused persons. The charge under Section 149 IPC disappears because of the acquittal of some of the accused. Thus, order of conviction under Section 302 IPC read with Section 34 IPC can be passed even though there was no separate charge under Section 302 read with Section 34 IPC. With these observations, the learned trial court has convicted and sentenced the accused appellants for charge under Sections 302/34 IPC and they were acquitted of charge under Section 148 IPC.
18. If we have a glance at site plan, which is marked as Ext.Ka14, prepared by S.I. R.K. Sharma, Investigating Officer, on 22.10.1984, we find that the Investigating Officer found dead body of Genda Lal at place 'A' in the vacant plot of bajra of one Lotan Singh, from where blood stained and plain earth was taken into possession. In western side of field of Lotan Singh, a field of jwar and arhar of Lalman is shown. In southern side of place of occurrence, barren land is shown. Similarly, adjacent to place of occurrence and field of Lalman and Kaptan Singh (in eastern side of place of occurrence), a drain (varah) is shown in northern side of place of occurrence. This drain (varah) is coming from northern side and at place 'B' in northern side of place of occurrence near drain (varah) water and mud was found from where the deceased was allegedly dragged by the accused persons up to field of Lotan and from where the dead body was found and recovered. Just below (southwards of place 'A' from where dead body was found), place 'B' is marked from where cartridges of 12 bore which were stated to be fired by accused persons were taken into possession by the Investigating Officer. In both sides of place 'B', ushar (barren land) is shown. Root/place of arrival and retreat of accused persons is shown as 'Arrow' marks in site plan. The distance of village of accused persons is shown to be 300 paces away from the place where dead body was found.
19. In present case, according to the FIR and evidence of witnesses of fact, the incident occurred in the night of 21.10.1984 at 10:00 PM. The distance of police station to place of occurrence is shown as 10 kms. According to the FIR, Babu Ram (PW-1), could not proceed to lodge FIR in the night being scared by the incident in which his brother Genda Lal was shot dead by accused persons. He stayed with the dead body in the night at the place of occurrence and went to police station in the morning and lodged the FIR by filing Ext.Ka-1, the written report scribed by his nephew (sister's son), Udaiveer. The FIR was lodged on 22.1.1984 at 11:05 AM, thus, if the version of PW-1 is accepted that being scared by the incident, he did not visit the police station in the night is accepted even that lodging of FIR is delayed as he could have proceeded to police station in early morning to lodge the FIR. Thus, there is duration of 11 hours in occurrence and lodging of FIR (Ext.Ka-3). Thus, it cannot be said that the delay in lodging of FIR is duly explained and delayed lodging of FIR gives a scope of embellishment, embroidery, afterthought and false implication.
20. No report of forensic science laboratory has been obtained regarding blood stained and plain earth taken from the place of occurrence. The witnesses of recovery of blood stained and plain earth are also not produced during evidence. No firearm has been recovered from any of the accused persons and the Investigating Officer has proved the recovery memo of four number of empty cartridges of 12 bore from the place of occurrence on 22.10.1984, which are stated to be fired by the accused persons. The Investigating Officer R.K. Sharma, has also proved the inventory of two torches, which is marked as Ext.Ka-17 by his evidence. PW-1 and PW-2 have stated in their evidence that they used these torches at the time of incident and identified the accused persons in their light but this fact is significant that in inventory of torches Ext.Ka-17, one torch is shown to be of thre cell and other is of two cells, as was used by PW-1 and one torch of two cells was used by PW-2 Pratap Singh, according to this inventory but PW-1 and PW-2 have stated in their statement that they were having electric torches in the fateful night and used these in seeing the occurrence and identifying the accused persons. Thus, there is variation in nature of torch in inventory (Ext.Ka-17) and the statement of PW-1 and PW-2, witnesses of fact. Postmortem examination on dead body of deceased has also been carried out in the case after much delay. In postmortem report itself, the time of death from postmortem is shown as about 1 and ¾ days. This delay does not find explanation in prosecution evidence whereas inquest was carried out prior to one day earlier to postmortem on 22.10.1984, at 12:30 PM. In inquest report as well as in evidence of Investigating Officer, it is shown that dead body was found in the field of Lotan within the limit of village Nagla Gulla.
21. PW-1 Babu Ram has stated that he was accompanied by his brother-in-law Pratap Singh and deceased Genda Lal and witness Gaya Prasad at the time of incident. The accused persons suddenly emerged from hiding and challenged him to save his brother Genda Lal as he would be not spared by them on that day whereupon Genda Lal ran towards west side in barren land. The accused chased him and shot him by their firearm in the barren land (ushar), which hit him. They dragged him to some distance. The witnesses Ram Charan and Sitaram and others appeared on hearing the hue and cry and they chased accused persons but they threatened to shoot them and took to their heel. They left the dead body in the village of Lotan. They did not visit the police station in the night being scared by the incident and went to police station in the morning. The witness stated that he further came to know by witness Pratap Singh and Gaya Prasad that Dipti and Roop Ram were involved in the offence. There was an altercation between deceased Genda Lal and accused Kishan Pal 3 to 4 years earlier of this incident regarding mend of field. In cross-examination, he has stated that his bajra field is situated from one field distance from his house and there is ushar in western side of his bajra field. There was barren (ushar) southwards of his bajra field and thereafter nali (drain). The accused had not left the deceased in the field of Lotan but they left the dead body in the barren land (ushar) lying northwards, the field of Lotan. Genda Lal fell into the field of Lotan after being hit by firearm shot. They fired shots at deceased on front and back both sides. All the three accused grabbed him firstly and thereafter fired at him. The place from where they fired at Genda Lal was not a plain surface. Therefore, in cross-examination, PW-1 Babu Ram, who is eye-witness has deviated from his stand in examination-in-chief that accused left dead body in field of Lotan and has stated that they left the dead body in barren land lying in northwards of field of Lotan. If according to the PW-1, deceased fell down after being hit by accused persons in the field of Lotan, then how he travelled in barren land, thereafter. According to the statement of PW-1 in cross-examination, accused persons firstly caught hold of Genda Lal and then open firearm, in this situation the fire appears to have been shot from close distance and then scorching, tattooing and charring must have been noticed in postmortem examination report around the firearm wounds, which is absent in the case. PW-1 has further stated in cross-examination that he stayed alongwith witness Pratap Singh near the dead body throughout the night where witness Gaya Prasad was also present but they did not speak together, tis does not sound natural and this statement suggests that the witness is trying to conceal something. The witness could not tell in cross-examination whether witness Gaya Prasad and Pratap Singh had also accompanied him to police station from the place of occurrence in the morning or not. In postmortem report of the deceased apart from four firearm wounds, one lacerated wound muscle deep on outer side of right thigh middle multiple abrasion in area 12 cm X 7 cm on left side of chest below nipple multiple abrasion in an area of 14 cm X 6 cm on left inguinal region and multiple abrasion in area 17 cm X 11 cm on back middle were also found. The Doctor, who conducted postmortem examination on dead body has stated in his evidence that injury Nos.6, 7 and 8 could have been caused by dragging and injury No.5 could be caused by some blunt object. Injury No.5 could be caused by butt of the gun. The firearm injuries appear to have been caused by the assailants standing on some height from the victim. This fact finds no explanation in evidence of witnesses and the learned trial Jude has derived his own explanation in impugned judgement, which is not supported by evidence on record. The medical witness has stated that scorching, tattooing and charring around the wound can only occurred if the shot is fired within distance of 3 to 4 feet of the object. In FIR there is no allegation that accused persons dragged the deceased after shooting him up to some distance and left him in the field of Lotan. This fact appears to have been taken during evidence to explain the injury Nos.5 to 8, which are not firearm injuries and this fact has not emerged in evidence of witnesses of fact that the accused persons assaulted the deceased by some hard and blunt object also after firing shots by their firearms. In inquest report, the deceased was shown to be found in the field of Lotan in supine position. The clothes worn by the deceased were found to be soiled by earth and water. In this situation, the prosecution case that four non firearm injuries found on the person of deceased in postmortem report were caused by dragging of the accused persons does not inspire confidence. The state of body shown in inquest report reveals that the deceased would have fell down near mud and and water. The incident occurred in and around agricultural field, thus, the sequence of events stated by witnesses of fact is not fully supported by state of things found in the evidence.
22. One independent witness namely, Gaya Prasad, whose name appears in the FIR itself has not been produced during trial and instead of a partisan witness namely, Pratap Singh (PW-2), who is brother-in-law of the deceased and informant has been examined, in support of prosecution version. Even, if his presence in the village is accepted in view of his relationship with the deceased that he had come to see his ailing father-in-law at village Nagla Gulla, even then the fact that he had seen the incident or in other words he is eye-witness of the incident is not free from doubt. This witness travelled a step further than PW-1, the defacto complainant and stated in his evidence that he had also accused Dipti and Roop Ram armed with firearms on the place of incident together with present appellants and all the accused persons opened fire by their respective firearms whereas neither in FIR nor in sworn testimony of PW-1, this fact emerged that the informant had seen Dipti and Roop Ram at the place of incident in fateful night. Thus, a new case has been developed by this witness with regard to complicity of accused Dipti and Roop Ram and trial court has rightly acquitted them of all charges. Thus, in view of examining a partisan witness and to leave an independent witness speaks volume about the authenticity of prosecution version and eye-witness account given by PW-1 and PW-2 regarding commission of murder of the deceased.
23. With foregoing discussion, we are constrained to hold that the prosecution version that PW-1, Babu Ram and PW-2, Pratap Singh, are eye-witnesses of the incident, who had seen the accused persons killing the deceased by opening firearm shot at him with intention to kill is not found to be proved beyond reasonable doubt. Learned trial court has committed factual and legal error by convicting and sentencing the appellants as aforesaid. Consequently, the impugned judgement and sentence awarded against appellants is not sustainable and deserves to be set aside.
24. Accordingly, present criminal appeal stands allowed by the impugned judgment is set aside and the surviving appellants namely, Gangadin and Kishan Pal are acquitted of charges under Section 302 read with Section 34 IPC.
25. The appellants are directed to file bail bonds and sureties to the satisfaction of the court concerned or before the Court of Session, as the case may be, within a period of two week from today, in compliance of Section 437-A of Cr.P.C.
26. Let lower court record be sent back to court concerned for compliance and necessary action within two weeks.
Order Date :- 22.03.2024 Kamarjahan