Bhupendra Singh @ Bhupati And Another vs State Of U.P. on 10 January, 2017

[Cites 6, Cited by 4]

Allahabad High Court

Bhupendra Singh @ Bhupati And Another vs State Of U.P. on 10 January, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) By way of instant criminal appeal, challenge has been made to the judgment and order of conviction dated 05.07.2008 passed by the I-Additional Sessions Judge, Kannauj, in Sessions Trial No.296 of 2005 State Vs. Govind and others, arising out of Case Crime No.701 of 2005 under Section 302 IPC, Police Station Chhibaramau, District Kannauj, whereby accused-appellants Bhupendra Singh @ Bhupati and Raju have been sentenced to life imprisonment under Section 302 read with Section 34 IPC coupled with fine Rs.5000/- each and default stipulates additional imprisonment for one year.

Heard Sri Kusumayudh Krishna Singh and Sri Santosh Kumar Srivastava, learned counsel for the appellants, Sri Awadhesh Narain Mulla assisted by Kumari Meena, Mrs. Manju Thathur, learned AGAs for the State and perused the record of this appeal.

Prosecution story has its genesis in the first information report lodged by informant Shivendra Singh PW-1 at Police Station Chhibaramau on 02.09.2005 at 3:15 p.m. regarding the occurrence that took place the very same day around 12:00 noon wherein four accused persons including the present appellants committed murder of Devendra Singh - brother of the informant, with the allegations that it was around 12:00 noon on 02.09.2005, the informant along with his brother Devendra Singh and Narain Singh son of Ravindra Singh were going to the village Birayampur from village Jafarabad for watching their crops by bus and they alighted Birayampur culvert, in the meanwhile the four accused persons including the appellants followed them on two motorcycles and as they came close to the informant and his brother, they stopped motorcycles and began to abuse them. When the informant's brother asked them not to abuse then Govind Singh, Bhupendra Singh @ Bhupati and Raju fired with intention to kill his brother, due to which he sustained injuries and fell on the ground. On alarm being raised, all the four assailants waiving their weapons in their hand, fled away from the scene after threatening that next time they will see the informant. The written report discloses motive in form of enmity on account of landed property and further entails that the informant's brother Devendra Singh died on the spot. This incident was witnessed by various persons working in the field. Report be lodged and appropriate action be taken. This written report is Exhibit Ka-1.

The contents of this written report (Ext. Ka-1) were taken down in the concerned Check FIR No.240 of 2005 at 3:15 p.m. on 02.09.2005 at Case Crime No.701 of 2005 under Section 302 IPC, Police Station Chhibaramau, District Kannauj. Copy whereof is Ext. Ka-2. On the basis of entry made in Check FIR, relevant entries were also noted in the concerned general diary at Serial No.32 at 3:15 p.m. on 02.09.2005 and case was registered at Case Crime No.701 of 2005 under Section 302 IPC against several other persons including the present appellants. General diary entry has been proved as Ext. Ka-3.

The investigation was entrusted to the Investigating Officer, Vijendra Pal Singh PW-8 who after recording statement of various persons and taking note of the record, proceeded to the spot and prepared site plan Ext. Ka-10. In the process, he also recovered two discharged cartridges of 315 bore lying near dead body of the deceased Devendra Singh. He made memo of the same and also collected simple and blood stained clay roll from the spot and made memo of the same. Both memos are Ext. Ka-11 and Ext. Ka-12, respectively. He also effectuated arrest of co-accused on 04.09.2005 at 3:30 p.m. on Saurikh road near Kali Temple. He also prepared memo of arrest and recovery of aforesaid articles Ext. Ka-13.

Record further reflects that the Investigating Officer PW-8 also got prepared inquest of the deceased Devendra Singh under his supervision through S.I. Madan Pal Singh PW-6 who held inquest of the deceased Devendra Singh, which he has proved as Ext. Ka-5. In the opinion of the inquest witnesses and police personnel, it was thought proper to send dead body for post mortem examination in order to ascertain real cause of death. In the process, he also prepared certain relevant papers say letter to CMO Ext. Ka-6, photonash, challan dead body etc. and has proved as Ext. Ka-7 and Ext. Ka-8, respectively. Thereafter, the dead body of the deceased was sent for post mortem examination at District Hospital, Fatehgarh. Post mortem examination on the cadaver of the deceased Devendra Singh was conducted by Dr. K.K. Raghuvanshi PW-5, on 03.09.2005 at 2:30 p.m. who found following ante mortem injuries:

(1) Firearm wound of entry 1.5 cm x 1 cm x cronial cavity deep on left side of head, 2 cm above left ear. Margins inverted, lacerated and ecchymosed.

(2) Firearm wound of entry 2 cm x 1 cm x cronial cavity deep over left side back of head, 5 cm behind left ear. Margin enverted, lacerated and ecchymosed. Blackening, tattooing present around the wound in area 5 cm x 3 cm.

(3) Firearm wound of entry 1 cm x 1.5 cm abdomen entry deep left lateral side abdomen 14 above left iliac crest. Margins inverted, lacerated and ecchymosed. Blackening and tattooing present around wound in area 6 cm x 4 cm.

(4) Firearm gutter shaped wound (slipping wound) 5 cm x 0.5 subcutaneous deep posterior lateral aspect left side chest 20 cm below from posterior artillery fold. Pinpoint tattooing mark in an area 20 cm x 16 cm.

Cause of death was spelt to be shock and haemorrhage as a result of ante mortem firearm injuries. Duration was stated to be around one day. This post mortem examination report has been proved by the doctor witness as Ext. Ka-4.

We gather from the record that investigation was subsequently taken over by another Investigating Officer Kripa Shankar Saroj PW-7. He during investigation recorded statement of the prosecution witnesses and the accused and he after completing investigation submitted charge sheet against the present appellants and one co-accused Bhupendra Singh @ Bhupati. Charge sheet is Ext. Ka-9.

Consequently, the case was committed to the court of Sessions after complying with the mandatory provisions of Section 207 Cr.P.C., from where it was made over for trial and disposal to the aforesaid court of I-Additional Sessions Judge, Kannauj where the prosecution opened its case by stating the charge brought against the accused-appellants and it also stated the evidence by which it proposed to prove guilt of the accused-appellants. Learned trial court after hearing the accused-appellants was satisfied with prima facie case against the accused-appellants and, accordingly, framed charge under Sections 302/34 IPC. Charge was read over and explained to the accused-appellants who abjured charge and opted for trial.

Consequently, the prosecution was required to adduce its testimony in support of charge. Therefore, the prosecution produced in all ten witnesses. A brief sketch of the same is as here under:

Shivendra Singh, informant PW-1 claims himself to be eyewitness of the occurrence and he has proved the first information report. Narayan Singh PW-2 is also eyewitness of the occurrence. Anil Chauhan PW-3 is scribe of the report. S.I. Hansraj Singh PW-4 has proved relevant entry in the concerned Check FIR and concerned general diary. Dr. K.K. Raghuvanshi PW-5 has proved proceedings undertaken by him during course of autopsy on the dead body of the deceased Devendra Singh and has proved post mortem examination report. S.I. Madan Pal Singh PW-6 has held inquest of the deceased and has proved inquest report, besides proving other relevant entries for sending dead body for post mortem examination in order to ascertain cause of death. Kripal Shankar Saroj PW-7 is the second Investigating Officer of this case. He completed investigation and filed charge sheet against the accused and has proved process before the trial court. Vijendra Pal Singh PW-8 is the first Investigating Officer of this case and he has detailed various steps, he took during course of the investigation. Constable Tirmal Singh PW-9 is witness of proceedings and arrest of the co-accused Raju in the matter involving Section 25 Arms Act which matter has become redundant, for the purpose of this appeal, therefore, description need not be referred by us at this stage. Similar is the case with another witness S.I. Amar Singh PW-10 who was the Investigating Officer of the case pertaining to the Arms Act.

Thereafter, no other testimony was adduced except as above. Therefore, evidence for the prosecution was closed and statement of the accused-appellants was recorded under Section 313 Cr.P.C. wherein they claimed their involvement in this case on account of enmity and Partibandi. In turn, defence also produced ocular testimony of several witnesses, three in all. A brief reference of them is here under:

Vinod Sharm DW-1 has testified to fact that Smt. Anita wife of Avnindra Kumar contested election of Gram Pradhan of village Jarara. Ashfaq Ali DW-2 has testified to ambit that he was not inquest witness and who spelt his name in inquest report Ext. Ka-5 is not known to him. Bhupesh Kumar DW-3 has testified to fact that Devendra Singh was murdered on 02.09.2005 and he received this information when he was standing at the bus stand and Shivendra Singh was also talking then he went to the spot along with Shivendra Singh. When he arrived on the spot, moderate crowd had assembled on the spot.

Thereafter evidence for defence was also closed and the case was posted for extending arguments pros and cons by the parties and after vetting the case on merits, the learned trial court returned finding of conviction against the accused-appellants and sentenced to life imprisonment coupled with fine Rs.5000/- each, under Sections 302/34 IPC.

Consequently, this appeal.

It has been vociferously contended on behalf of the appellants that it is a case of blind murder where no one witnessed the incident. Claim of the prosecution witnesses of fact that they were present on the spot is motivated and outcome of deliberation with the police. The circumstances profusely establish absence of the prosecution witnesses on the spot. The manner and style of the incident has not been properly described and the same does not appear to be natural instead appears to be tutored and full of embellishments.

The motive suggested for commission of the crime is weak and not applicable against both the accused-appellants. If the prosecution witnesses and particularly the informant Shivendra Singh were present on the spot at the time of occurrence then there was no reason for sparing his life by the accused when there were four assailants all possessing countrymade pistol and had arrived on the spot by motorcycles then to imagine of a situation where the assailants only extended threat to the informant that he will be dealt with by them on the next occasion, is highly articulated and intriguing fact which under circumstances appears improbable for simple reason, that the accused persons had already killed one of the two brothers on the spot on account of landed property dispute then another brother could have been easily eliminated but he was spared perhaps to give testimony against them, is highly improbable. Testimony of both the so-called eyewitnesses Shivendra Singh and Narayan Singh PW-1 and PW-2, respectively is contradictory to each other on factual aspect which throws doubt on their being eyewitnesses and belies their presence on the spot.

Learned counsel for the appellants has next submitted that the Investigating Officer took casual view of the situation and tried to collude with the informant and has not properly prepared site plan. One witness says that all the four accused persons fired on the deceased Devendra Singh, whereas, another witness says that only three assailants fired on the deceased. Therefore, theory of firing suggested by the witnesses on the face contradictory to each other. There was no occasion for PW-2 to remain present on the spot as he resides at village Nagla Angad 20-22 kilometers away from the spot. PW-1 claims that PW-2 was present during course of proceedings till inquest report was prepared and the dead body was sealed. But as per testimony of Narayan Singh PW-2 himself, he went to inform about the incident at village of Devendra Singh (deceased) and from where he went to his own village and he did not come back till 1:00 p.m. next day on 03.09.2005 when he received dead body of Devendra Singh after autopsy.

PW-1 says that from Birayampur to Jafarabad, distance was covered by bus in five minutes, whereas, PW-2 says that distance was covered in 15-20 minutes. PW-1 says that he took bread and pulses (Moong) as meal at 10:00 a.m. on 02.09.2005, whereas PW-2 says that he took bread and cooked vegetables as meal at 10:00 a.m. This is in contrast to nature of meal which admittedly was taken jointly at the same time at 10:00 a.m. by both the witnesses PW-1 and PW-2. What was served in the meal and eaten was bread and pulses (Moong) but PW-2 says that he was served bread and cooked vegetables only. Therefore, even on the point of taking meal, variation appears in testimony of both the witnesses. They are not in tune even on factual aspect of the case.

Fact is that the deceased Devendra Singh was killed by some unknown persons and his body was lying alone on the spot. When information of death was conveyed to the informant side, they named the present appellants among other persons as assailants on account of enmity which falsity stands exposed from wholesome reading of testimony and circumstances of the present case.

The learned trial Judge while considering merit of the case woefully failed to take proper appreciation of evidence on record and failed to come out with legal finding and instead of acquitting the accused-appellants, recorded finding of conviction which finding is not sustainable in the eye of law.

Learned AGA while retorting to the aforesaid arguments submitted that entire prosecution case is consistently proved beyond reasonable doubt. Learned trial Judge while considering merit of the case has given various reasons for conviction against the accused appellants under Sections 302/34 IPC. It cannot be said that finding of conviction suffers from any illegality. Presence of the two eyewitnesses on the spot is natural and they being brother and brother-in-law of the deceased, cannot be said to be not accompanying the deceased at the relevant point of time. Each and every factual detail and manner of incident as to how it occurred and by whom it was caused, has been given in detail by the two eyewitnesses. It cannot be doubted and cannot be said that these two eyewitnesses were not present on the spot. Had they been not present on the spot then the manner and style of the occurrence would not have been described by them and there would have been glaring inconsistency in their testimony, but their testimony is consistent and categorical to the point and inspires confidence. Pictorial narration of the incident cannot be given by the eyewitnesses word by word and step by step as it happened. Some sort of contradictions and anomalies are bound to occur in their testimony and these contradictions cannot be construed to be fatal but trivial one and the main incident stands proved in its entirety without throwing doubt on fact of commission of the crime by the culprits.

In this case, there is no material contradiction in testimony of the prosecution witnesses. The Investigating Officer has conducted fairly investigation and filed charge sheet against the accused appellants and has also proved the site plan of the spot prepared on the pointing out of the witnesses. The first information report is prompt and cannot be doubted. The case of the prosecution is proved beyond reasonable doubt.

After considering aforesaid submissions and the rival claims, core consideration for adjudication of this appeal relates to fact whether the prosecution has been successful in establishing charge against the accused appellants beyond reasonable doubt under Sections 302/34 IPC ?

Bare perusal of the first information report shows that as many as four assailants were named in the first information report, whereas, involvement of one of the accused persons Govind Singh was found to be false and no charge sheet was submitted against him.

However, before dealing with merit of the case, it would be appropriate to take note of the allegations made in the FIR against the accused appellants. As per contents whereof, on 02.09.2005, it was around 12:00 noon, Shivendra Singh, informant along with his brother Devendra Singh and Narayan Singh proceeded by bus from village Jafarabad to Birayampur for watching crops. They alighted near culvert of Birayampur and were moving on foot when the assailants came from behind on two motorcycles, stopped their motorcycle when it came close to the informant and his brother Devendra Singh, they began to abuse the informant and his brother, when brother (Devendra Singh) of the informant asked them not to abuse then the assailants and one more accused Govind Singh fired on Devendra Singh with intention to kill, due to which Devendra Singh sustained injuries, fell down on the ground and died. Both the eyewitnesses PW-1 and PW-2 raised alarm then the assailants fled away from the scene of occurrence after waiving their weapons in their hand and threatening that the informant will be dealt next time. The report was lodged at Police Station Chhibaramau at 3:15 p.m. at a gap of about three hours. The point is whether lodging of the first information report is delayed.

We on careful consideration of facts and circumstances of this case, come across testimony of the prosecution witnesses that after the incident, PW-1 went to lodge the first information report and at Saurikh crossing, he met with scribe Anil Chauhan then he dictated his report to him and he wrote the same at his instance then it was handed over at the police station. The distance from place of occurrence up to police station Chhibaramau has been shown in the Check FIR as six kilometers. Then it is obvious that some normal time must have been taken by the informant in travelling to such distance after getting the report scribed by PW-3 and some time must have been taken at the police station as well. Therefore, we do not see any inordinate delay in lodging of the first information report.

Now we come to the point of occurrence as emanating from testimony of witnesses of fact PW-1 and PW-2 Shivendra Singh and Narayan Singh, respectively. Shivendra Singh PW-1, informant who claims himself to be eyewitness of the occurrence has dittoed the first information report in his examination in chief and stated that it was around 12:00 noon on 02.09.2005 at the time of occurrence, he along with his brother Devendra Singh and Narayan Singh were going on foot to watch their crops on the road at Brahimpur when four assailants including the present appellants came from behind on two motorcycles. They were possessing countrymade pistol. They started abusing the informant and his brother. When the informant's brother asked them not to indulge in abusing then Govind Singh and the present appellants fired on Devendra Singh from their weapon. The fire hit the informant's brother and he fell down on the road side. The informant raised alarm whereupon the assailants fled away from the scene of occurrence on motorcycles waiving their weapon, threatening that next time it would be turn of the informant. The informant's brother died on the spot. Motive for commission of the offence has been attributed to some dispute pertaining to some landed property.

PW-1 has further testified to fact that the incident was witnessed by him and Narayan Singh and other persons. He got the report scribed by Anil Chauhan PW-3 then lodged the same at Police Station Chhibaramau. The police came to the spot, held inquest of the deceased and sealed dead body and sent the same for post mortem examination report. The police also recovered two discharged cartridges of 315 bore and sealed it. He attributed act of firing to three persons only.

Similar version of another eyewitness Narayan Singh PW-2 flows on the same facts regarding time and manner of occurrence with only difference that he testified to fact that on being asked not to extend abuses, all the four assistants fired on Devendra Singh, due to which he fell down and when alarm was raised, the assailants fled away towards Saurikh. He has further testified to fact that after the incident, Shivendra Singh went for lodging of the first information report, whereas, he went to village Jafarabad for giving information. He has further stated that cause of murder was some landed property. However, he has stated in examination in chief that after the assailants had left the scene, he went near Devendra Singh then he found him dead. Both the eyewitnesses have been cross examined on the manner of firing, profusely. In examination in chief of both the eyewitnesses, some material contradictions surfaced on point of firing. Shivendra Singh PW-1 has assigned the role of firing to only three persons out of four assailants, whereas, Narayan Singh PW-2 has attributed role of firing to all the four assailants who came on the spot by two motorcycles. They have been cross examined by the defence wherein we come across certain material contradictions on vital facts.

Here we can take note of opportune circumstances pertaining at the time of occurrence. It was around 12:00 noon and the deceased along with the informant and PW-2 were unarmed. There was dispute qua landed property between the informant side and the accused. Four assailants came on the spot. All the four accused persons were possessing countrymade pistol in their hand. They came close to the informant side and abused informant and his brother Devendra Singh. The accused persons were asked not to extend abuse then firing was made aiming Devendra Singh. The point is why the informant Shivendra Singh was spared. This factual aspect indicates that all through the occurrence, both the witnesses remained present on the spot and they kept on raising alarm and their testimony does not refer to any factual or circumstantial aspect which may indicate that the informant was not within shelling range of the assailants, though he might have been easily eliminated by them.

As per testimony of both the eyewitnesses, as soon as fire hit Devendra Singh they raised alarm and this perhaps caused some sort of fear in the mind of the assailants and they fled away from the scene of occurrence waiving weapon in their hand and threatening the informant that his turn will be next time. This factual circumstance, particularly on the point of happening of the occurrence cannot be easily swallowed. It is beyond comprehension that the assailants who were four in number had easily eliminated the informant's brother Devendra Singh then whey they will spare the informant. No attempt, whatsoever, was made by the assailants to cause any harm to him.

It has also emerged in the cross examination of eyewitness PW-1 on page 27 of the paper-book that at that particular time when the occurrence took place, the informant side was walking with description of respective position that informant was ahead of Narayan Singh and the deceased Devendra Singh. He was being followed by Narayan Singh and Narayan Singh was followed by the deceased Devendra Singh, whereas PW-2 testified in his cross examination on page 35 of the paper-book that they were walking with Devendra Singh in the middle of the road side by side and Devendra Singh was in the middle of both himself and the informant, and he was towards northern side of the deceased and the informant was towards southern side of the deceased. It means that the deceased was walking along with the eyewitnesses side by side, whereas, description of PW-1 puts it differently that walking was done in a queue one after the other. Devendra Singh was following Narayan Singh PW-2 and Narayan Singh was following informant Shivendra Singh PW-1 in close proximity with gap of hardly two steps.

The point is that four persons were firing on group consisting of three persons then possibility is that refraction of pellets will also hit and touch the very persons who were accompanying the deceased, if the deceased is in the middle of the other persons and the other persons are walking side by side to the deceased. If walking is made one after the other in a queue line or in some zigzag line even then it is highly improbable that some refracted pellets would not hit the very companions of the deceased. Here on both counts, first opportunity to eliminate the informant was not utilized and he was spared for which we see no plausible reason and next while firing was made by all the four assailants from their respective weapon say countrymade pistol then one or two splinters pellets would have caused some sort of injury, therefore, absence of injury in this particular manner of the occurrence cannot be considered to be probable natural outcome. Here some fishy element has crept in, in the testimonial description of both the eyewitnesses. The point is that how the testimony of two eyewitnesses vary materially on point of walking - one is - side by side and another is in queue like manner.

Now we come to another factual as well as circumstantial aspect of this case which emerges in testimony of both the aforesaid eyewitnesses in their cross examination. PW-1 says in his cross examination on page 27 of the paper book that he travelled from Jafarabad to Brahimpur by bus in five minutes, whereas PW-2 says in his cross examination on page 35 of the paper book that he reached Brahimpur from Jafarabad by bus in 15-20 minutes. May be that capacity to assess time differs from person to person but description of the distance being covered from two villages when stated to be five minutes, indicates a very short span of time. No ordinary prudent man would ever say that such distance was travelled in 20 minutes by bus. Here marginal difference in travelling time is more than thrice. Therefore, difference in travelling time varying between 5 to 20 minutes hit on the creditworthiness of eyewitnesses. The fluctuating testimony of both eyewitness is highly embellished and vacillating though description in shape of time gap in the testimony of the two eyewitnesses does not carry any gravity on merit of the case, but for the reason aforesaid, we have to make our mind on point of time taken by the bus in covering distance from village Jafarabad to village Brahimpur.

After the occurrence, PW-1 says on page 28 and 29 of the paper book, that he sent Narayan Singh to his village for informing his relatives and he remained present on the spot and Narayan Singh returned after a quarter of hour. He has further stated that after arrival of Narayan Singh, he went to the police station along with Narayan Singh. But this testimony is either improved one or outcome of tutoring, for the reason that Narayan Singh PW-2 does not support this factual aspect in his cross examination on page 37 of the paper book which has come to the magnitude that after informing about the incident, he went to his village Nagla Angad. He went by bus and he left bicycle at the house of Devendra Singh. On page 38 of the paper book, he has further testified to fact that he did not accompany Shivendra Singh to the police station and the police personnel did not come for holding inquest before him. No inquest was held before him. The dead body was not sealed before him. He does not know by which conveyance dead body was taken for post mortem examination. Regarding his presence, he has testified on the same page that he arrived at mortuary next day of the incident (03.09.2005) when he received dead body around 1:00 p.m. Family members of the deceased Devendra Singh were also present at the time of receiving dead body. He states that funeral took place around 2:00 to 2:30 p.m. and after funeral they came back home. Now this testimony, if matched with testimony of PW-1 exposes hollowness of evidentiary value of testimony of PW-1 when he testified categorically that Narayan Singh PW-2 also accompanied him to the police station. He has further testified that he was also accompanied by Anil Chauhan PW-3 apart from Narayan Singh when he was going to lodge the first information report by bus. Anil Chauhan PW-3 has testified to fact that Shivendra Singh met him at Saurikh crossing and he was not being accompanied by Narayan Singh. This testimony ( of PW-3) appears on page 44 and 45 of the paper book.

Thereafter from Saurikh crossing to Chhibaramau, both the informant and this witness (PW-3) went on motorcycle, whereas, PW-1 says that he went to the police station in company with Anil Chauhan and Narayan Singh by bus. Certainly PW-1 is improving his description and is trying to manage the situation as per his wisdom which eventually exposes nature of his testimony full of improvement and embellishments. PW-1 has further stated at page 29 and 30 of the paper book that during entire proceeding till conveyance of dead body for post mortem examination, he was present on the spot along with Narayan Singh and Anil Chauhan. But we on careful perusal of inquest report Ext. Ka-5, come across fact that dead body was conveyed to mortuary by tractor and was accompanied by Shivendra Singh, Narayan Singh and Anil Chauhan, whereas, fact is that as per testimony of PW-2, he did not return on the spot till dead body was kept under seal and sent for post mortem examination and he cannot say by what conveyance, the dead body was taken to mortuary. He came at the mortuary next day at 1:00 p.m. to receive the dead body. Therefore, PW-1 and PW-2 are testifying contradictory to each other on point of the incident and on post incidental development.

PW-1 further says that enmity qua landed property existed with Bhupendra Singh @ Bhupat and there is no enmity with Raju then question naturally arises as to how and why Raju would indulge in act of killing Devendra Singh, even this aspect has not been clarified by the prosecution. It has emerged in testimony of the prosecution witnesses that Raju is not relative of Bhupendra Singh @ Bhupat. Suggestion has been put by the defence that Raju was not present on the spot but has been falsely involved on account of village Partibandi. In cross examination of PW-1, it has further emerged that in fact the mother of one Govind Singh had contested election for Gram Pradhan and Smt. Anita wife of Avnindra Kumar also contested election for Gram Pradhan. The informant side voted for wife of Avnindra Kumar. Suggestion has been made that they opposed candidature of mother of Govind Singh in the election of Gram Pradhan, therefore, out of anmosity and enmity, the appellants have been falsely named in the incident.

Further it has emerged in the testimony of PW-2 on page 34 of the paper book in his cross examination that he has passed B.A. then the point is how and why the report was not scribed by PW-2 on the spot if fact was discovered that Devendra Singh has died, notwithstanding fact that PW-1 being brother of Devendra Singh was perplexed by the incident. Even Anil Chauhan PW-3 does not specify as to where he wrote the first information report. Testimony of PW-2 on page 37-38 of paper book as already discussed by us reflects that PW-2 claims to have left the scene after the incident and he did not return on the spot. This testimony of the fact appears evasive and throws doubt about his presence on the spot becomes wholly unreliable.

We can ingeminate that the assailants had ample opportunity to fire on Shivendra Singh PW-1 and that was opportune time to easily achieve killing of PW-1. Why they will only threaten to see him next time when there was no such impediment stopping the assailants to give practical shape to their nefarious design ! This is one of the most strong circumstances against the prosecution and PW-1 in particular which questions his presence on the spot. Non-explanation of this factual aspect either by testimony or circumstance hit at the root of the prosecution case. How will it be easily digested that all the four assailants let go scot-free one of the two brothers with whom they had enmity on account of landed property.

Our scrutiny of facts and evidence qua attendant circumstances of the case exorbitantly questions natural presence of the prosecution witnesses (PW-1 and PW-2) on the spot when occurrence took place. Their testimony on the whole is found to be full of improvements, embellishments and contradictory. Their description of occurrence and post occurrence description is a pointer to reality that they were not present on the spot and they did not witness the incident. Unexplained strong loopholes surge in the testimony of eyewitnesses. On the contrary circumstances and facts point out that the incident took place in loneliness in absence of Shivendra Singh PW-1 and Narayan Singh PW-2.

Learned trial court while considering merit of the case somehow overlooked above factual aspects, circumstances and testimony on the whole on record and adopted only casual approach. Why no attempt was made on Shivendra Singh by the assailants and he remained unhurt on the spot despite fact that he was present on the spot during firing and within reach of the accused is beyond reason of an ordinary man. All these create doubt on the actual happening and manner of the incident and particularly, fact that the occurrence was witnessed by the two eyewitnesses PW-1 and PW-2. Therefore, testimony of PW-1 and PW-2 on point of occurrence is wholly unreliable and it does not inspire confidence.

Thus, the trial court erroneously recorded finding of conviction against the present appellants under Section 302/34 IPC which finding in the absence of consistent and clinching testimony on point of occurrence becomes unsustainable and in the result liable to be set aside by us.

Therefore, the impugned judgment and order of conviction dated 05.07.2008 passed by the I-Additional Sessions Judge, Kannauj, in Sessions Trial No.296 of 2005 State Vs. Govind and others, arising out of Case Crime No.701 of 2005 under Section 302/34 IPC, Police Station Chhibaramau, District Kannauj, is hereby set aside. Accused-appellants are acquitted of the charge. Accordingly, the instant appeal is allowed.

In this case, the accused-appellants Bhupendra Singh @ Bhupat and Raju are in jail. They shall be set at liberty forthwith unless and until they are wanted in connection with any other case. However, they shall furnish surety bonds in compliance with Section 437A Cr.P.C.

Let a copy of this judgment/order be certified to the court concerned for necessary informant and follow up action.

Dt. 10.01.2017 rkg

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