Allahabad High Court
State Of U.P. vs Ram Kumar & Others on 12 December, 2012
Author: Dharnidhar Jha
Bench: Dharnidhar Jha, Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Case :- GOVERNMENT APPEAL No. - 1739 of 2003
Petitioner :- State Of U.P.
Respondent :- Ram Kumar & Others
Petitioner Counsel :- Govt. Advocate,Anubhav Trivedi,Meraj Ahmad Khan,R.K. Khanna,Sanjay Singh,Satish Trivedi,U.C.Tripathi,V.P.Srivastava
Respondent Counsel :- V.P. Srivastava,A.G.A.,Brahm Singh,Lav Srivastava
Connected with
Case :- CRIMINAL REVISION DEFECTIVE No. - 229 of 2003
Petitioner :- Vijendra Pal Singh
Respondent :- Ram Kumar Singh & Others
Petitioner Counsel :- Raj Kumar Khanna,Jayant Prakash Singh,Meraj Ahmad Khan,Sanjay Srivastava
Respondent Counsel :- Govt. Advocate,V.P. Srivastava
Hon'ble Dharnidhar Jha,J.
Hon'ble Ramesh Sinha,J.
(Deliverd by Hon'ble Ramesh Sinha,J.) This Govt. Appeal has been preferred against the judgment and order dated 30.11.2002, passed by the District and Sessions Judge, Court No.II, Moradabad in S.T. No. 744 of 1997 (State Vs. Raj Kumar and 5 others), by which the learned trial Court has acquitted the accused respondents for offence under Sections 148/302/307 read with Sections 149, 504 I.P.C., Police Station-Chajlet, District-Moradabad.
The prosecution story in brief is that on 24.3.1997 in the afternoon, servant of accused Jagpal Singh, namely, Fida Hussain, in a drunken state, started abusing the nephew of the informant, namely, Dispal, on which Dispal scolded him and on which the servant fled away. Thereafter, at about 2 P.M. in the afternoon, the informant Vijendra Pal Singh, his nephew Pradeep son of Narendra and Dispal (deceased), son of Maharaj Singh, were going to meet his cousin Dharamveer Singh to his house on the occasion of Holi festival and when they reached near the house of Gajendra Singh, then on the roof of Dharmendra Singh, son of Jitendra Singh, accused persons who were present from before namely, Ram Kumar son of Dharam Singh, Jagpal Singh son of Ram Kumar, Hargyan Singh son of Om Prakash, Harpal Singh son of Raghuveer, who were armed with their licensed rifles and guns and accused Om Pal son of Om Prakash, Jaspal son of Samar Pal Singh, were armed with countrymade pistols, with a common object exhorted and asked them about the reason for which their servant was beaten and threatened, for it they would teach them a lesson. Thereafter, all the accused persons with an intention to kill them fired on them, due to which his nephew Dispal received a firearm shot who succumbed to his injuries on the spot. The informant and his other nephew Pradeep also received pellet injuries on their legs and raised alarm for being saved. On the alarm raised and hearing the fire shots, villagers namely, Gajendra Singh, S/o Durga Singh, Sanjay Singh S/o Rajendra Singh and other several persons of the village had reached at the place of occurrence, on which the accused persons fled away from the roof towards south. The dead body of the deceased Dispal was lying on the spot and the informant reported the case to the concerned police station for taking necessary action against them.
The FIR of the incident was lodged on 24.3.1997 at 15.40 P.M. by the informant Vijendra Pal Singh, uncle of the deceased, at police station Chajlet, District Moradabad, which was registered as case crime No.137 of 1997, under Sections 147/148/149/302/307 I.P.C., which was at a distance of 11 Kms. from the place of occurrence against six accused respondents.
The informant Vijendra Pal was medically examined on 24.3.1997 at 7.20 P.M. by Dr. R.P. Bharadwa (PW4), Medical Officer in District Hospital, who found the injuries (Ex.Ka3) on the person of injured Vijendra Pal who, which is quoted below:
"Injuries (Ex. Ka-3) (1) Multiple firearm wound of entry in area 36 cm. X 12 cm. on the frontolateral aspect of left thigh and knee in upper part of leg. Each wound size about 4 cm. X 4 cm. x depth not probe. No blackening. No tattooing. No charring present fresh bleeding. Kept under observation."
Similarly, the other injured Pradeep S/o Narendra was also medically examined on 24.3.1997 at 7.35 P.M. by Dr. R.P. Bharadwaj, Medical Officer in District Hospital, who found the injuries (Ex. Ka-2) on the person of Pradeep, which is quoted herein below:
"Injuries (Ex. Ka-2) (1) Multiple firearm wound in area 24 cm.X 8 cm. on the posterior medial aspect of lower part of right leg with ankle sole. Each size about .4 cm. X .4 cm. dept not probe. No blackening. No tattooing. No charring present. Fresh bleeding present injury kept under observation."
A supplementary/X-ray report of injured Vijendra Pal Singh was also prepared on 25.3.2007 (Ex. Ka-5), which is mentioned herein below:
"Injury kept under observation. X-ray advised. According to X-ray report of Radiologist Dr. A.N. Gupta vide X-ray report No. 888 dated 25.3.1997:
X ray left thigh-shows two radio opaque shadow of metallic density.
X-ray left leg- shows single radio opaque shadow of metallic density. Hence, injury No.1 is simple in nature."
Similarly, a supplementary report of the injured Pradeep Singh, S/o Narendra Singh was prepared on 25.3.1997 which is mentioned herein below:
" Injury No.1 kept under observation. X-ray advised. According to X-ray report of Radiologist Dr. A.N. Gupta vide X-ray report No.889 dated 25.3.1997 X-ray right leg- shows multiple radio opaque shadow of metallic density. Hence injury No.1 is simple in nature"
The radiologist report of injured Vijendra Pal Singh was also prepared on 25.3.1997 by Dr. A.K. Gupta (PW6) and has been marked as paper No. Ex. Ka-7 is being mentioned herein below:
" X-Ray Lt. thigh and Lt. Leg Left thigh- shows a single radio opaque shadow of metallic density.
Left Leg- shows two radio opaque shadow of metallic density."
Similarly, the radiologist report of injured Pradeep Kumar was also prepared on 25.3.1997 by Dr. A.K. Gupta (PW6) and has been marked as paper No. Ex. Ka-18 which is mentioned herein below:
"X-Ray of thigh and ankle- Plain and multiple radio opaque shadow of metallic density (multiple)"
The post mortem of Dispal, S/o Maharaj Singh was conducted on 25.4.1997 at 12.45 P.M. by Dr. S.K. Malhrotra (PW5).
Ante mortem injuries found on the person of the deceased Dishpal, which is being mentioned herein below:
"1. Gunshot wound of entry 2.0 cm. x 1.0 cm. on left side mouth. The blackening and charring present around the wound. The lower lip lacerated. The margins are invested.
2. The gun shot wound of exit 1.5 cm. x 1.5 cm. over left side of neck 6.0 cm. behind the left ear and 10.0 cm. above the left clavicle. Described the margins invested.
3. The multiple abrasions over right side of forehead in an area of 14.0 cm. x 4.0 cm."
In the opinion of the Doctor PW5 the cause of death is shock and haemorrhage as a result of Ante mortem gun shot injury.
After investigation, the police submitted charge sheet against the accused respondents for offence under Sections 147/148/149/302/307/504/506 I.P.C. which has been marked as paper No. Ka 49. T he case was committed by the Chief Judicial Magistrate to the Court of Sessions on 13.8.1997 for trial. The charges were framed against the accused respondents on 12.8.1999 by 2nd Additional Sessions Judge, Moradabad.
The prosecution examined the two witnesses of fact who were the eye witnesses of the occurrence, i.e., PW1 Vijendra Pal Singh (informant as well as injured), PW2 Pradeep Kumar (injured). The other formal witnesses were also examined by the prosecution namely, PW3 Ramhit Ram, Pharmacist/Record Keeper of District Hospital Moradabad, PW4 Dr. R.P. Bharadwaj, Emergency Medical Officer, District Hospital Moradabad, who examined the two injured, PW5 S.K. Malhotra, who conducted the post mortem of the deceased and PW6 Dr. A.K. Gupta, Senior Radiologist, District Hospital Moradabad, PW7 Shiv Lal, who was the then Sub Inspector of police station Chajlet, District Moradabad, PW8 Vijendra Kumar Sharma, Head Constable of Police Station Chajlet, District Moradabad and subscriber of the FIR, PW9 Constable No. C/408 Karan Singh, PW10 Dr. Y.C. Gupta, Senior Orthopaedic, District Hospital Moradabad who operated the injured PW1 Vijendra Pal Singh,, PW11 Sub Inspector Nanak Chand, second Investigating Officer, PW12 Constable No. 336 Bhoopal Singh, PW14 R.P. Barhna (first Investigating Officer) before the trial Court.
No evidence was adduced from the side of the defence. The accused respondents under Section 313 Cr.P.C. have denied the prosecution story and have stated that they have been falsely implicated in the present case due to enmity.
The law regarding interference by the Appellate Court in appeal against acquittal, there was quite some controversy. This could be apparent from the following paragraph of the Supreme Court in the case of Sanwat Singh Vrs. State of Rajasthan reported in AIR 1961 SC 715:-
"in recent years the words "compelling reasons" have become words of magic incantation in every appeal against acquittal. The words are so elastic that they are not capable of easy definition; with the result, their interpretation varied between two extreme views-one holding that if a trial court acquitted an accused, an appellate court shall not take a different view unless the finding is such that no reasonable person will come to that conclusion, and the other accepting only the conscience of the appellate court as the yardstick to ascertain whether there are reasons to compel its interference. In the circumstances we think it necessary to clarify the point."
The Supreme Court, thereafter, went on to consider the decision of the Privy Council in Sheo Swarup Vrs. Emperror AIR 1934 PC 227 and other decision of the Supreme Court in subsequent paragraphs of the judgment and went on to lay down the final opinion of their Lordships as regards the approach to be adopted by an appellate court while considering the judgment of acquittal. We are tempted to reproduce the final opinion of the Apex court which is contained in paragraph 9 of Sanwat Singh (Supra) which is as follows:-
" The foregoing discussion yields the following the results:(1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case, 61 Ind App 398: (AIR 1934 PC 227(2) afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (I) "substantial and compelling reasons", (ii) good and sufficiently cogent reasons, and (iii) strong reasons", are not intended to curtail the undoubted power of an appellate court in an appear against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgments, which lead to hold that the acquittal was not justified.
The grounds of acquittal recorded by the trial Court for acquitting the accused respondents from the charges framed against them are mentioned herein below:
(1)The prosecution has not able to establish the motive for the accused to commit the murder of deceased Dispal. (2)There are contradictions in the testimony of the two injured, i.e., PW1 Vijendra Pal Singh and PW2 Pradeep Kumar. (3)The ocular testimony does not corroborate the post mortem report of the deceased, hence the trial Court discarded the prosecution story on this count also. (4)No independent witness was produced by the prosecution to corroborate the prosecution story. (5)The prosecution story was developed later on after seeing the post mortem report of the deceased and the medical examination report of the injured persons. (6) The recovery of rifle of 315 bore and DBBL Gun of 12 bore have also not been proved.
(7) The presence of scribe of the FIR also appears to be doubtful. Ballistic report also does not support the prosecution story.
Learned AGA has submitted that the above mentioned grounds of acquittal recorded by the trial Court is perverse and the findings of acquittal recorded in favour of the accused respondents by the trial court is based on misreading of the evidence on record, hence the view taken by the trial Court does not appears to be a probable view. Hence, the judgment and order passed by the trial Court is liable to be set aside by this Hon'ble Court and the accused be convicted for the offence for which they have been charged, as the prosecution has proved its case beyond reasonable doubt against them by the ocular testimony of the two injured persons, namely, PW1 and PW2 respectively.
Learned AGA has further argued that the findings of the trial Court in acquitting the accused respondents on the ground that the motive has not been proved by the prosecution is absolutely an incorrect finding as the accused respondents were so much annoyed with the deceased Dispal as he dared to scold the servant of accused Jagpal Singh who had abused in a drunken state to the deceased and when the deceased had scolded him for not abusing him, on which servant went away and told the accused respondents about the same, which infuriated the accused respondents who felt insulted as to how their servant was scolded by the deceased and in such a situation, in order to teach the deceased and his family members a lesson, with a common object had come on the roof of Dharmendra Singh and fired upon the deceased and the informant and other nephew, to which deceased succumbed injuries and died and PW1 and PW2 received injuries on their legs, hence the motive on the part of the accused respondents to kill the deceased was apparent on the face of record and the trial Court committed gross illegality in recording the finding that the prosecution has failed to establish the motive against the accused respondents.
Secondly, learned AGA argued that the trial Court acquitted the accused respondents on the ground that testimony of PW1 Vijendra Pal Singh and PW2 Pradeep Kumar who are the injured of the present case are contradictory to each other, hence discarded their testimony on that count which is against the record. It is urged by the learned AGA that the PW1 Vijendra Pal Singh and PW2 Pradeep Kumar who were accompanying the deceased on the day of the incident have categorically stated before the trial Court during the evidence that the deceased was killed by the accused respondents with their respective weapons and had also fired shot, due to which they received injuries on their legs while they were running from the place of occurrence to save their lives. There were no contradictions between the testimony of the said two witnesses and the trial Court wrongly interpreted their evidence and has acquitted the accused respondents without there being such contradictions, hence the judgment of the trial Court be set aside by this Hon'ble Court and the finding of acquittal be reversed and the accused be convicted by giving appropriate sentence.
Learned AGA thereafter argued that the ocular testimony of the two injured persons i.e. PW1 Vijendra Pal Singh and PW2 Pradeep Kumar who were going with the deceased to meet their cousin Dharamveer to his house on the Holi festival were on their way, shot by the accused persons with their respective firearm weapons and the said shot hit the deceased who succumb the injuries on the spot and the informant and his other nephew Pradeep Kumar were trying to run away from the place of occurrence to save their lives, they were also shot by the accused respondents with their respective weapons which hit them on their legs. The testimony of the Doctor S.K. Malhotra PW5 who had conduced the post mortem of the deceased Dispal is self contradictory as from perusal of ante mortem injuries found on the person of the deceased shows that the injury no.1 shows that a firearm would of entry 2 cm. X 1 cm. on the face and there was blackening and tattooing present all around the wound and there was a firearm exit wound 1.5 cm. X 1.5 cm. on the back of left side of neck and third injury was a multiple abrasion of right side of forehead which was 14 cm.X 4 cm. No blackening or tattooing was found.
It was further pointed out that the firearm injury of entry was bigger in dimension than fire of exit which was smaller in dimension as it is a principle of medical jurisprudence that the firearm entry is always smaller in size than firearm of exit and in the instant case from the perusal of the post mortem report it is apparent that the firearm entry is bigger in dimension than the firearm of exit which is smaller in dimension, hence the post mortem report of doctor S.K. Malhotra appears to be self contradictory and no reliance could be placed on the same and the ocular testimony of two injured persons namely, PW1 and PW2 should be taken in account as they have narrated the prosecution story as has been witnessed by them and the deceased received firearm shot on his person for which the accused respondents are guilty of committing the murder of the deceased and further they too have also received injuries in the said incident at the hands of the accused respondents, hence the presence of the two injured witnesses are sufficient to convict the accused respondents for the offence for which they have been charged.
He further submitted that the trial Court has committed gross illegality in relying upon the finding of acquittal due to the fact that the post mortem report of the deceased does not corroborate the ocular testimony, hence the judgment passed by the trial Court be set aside.
The next contention of the learned AGA is that the learned trial Court has also acquitted the accused respondents on the ground that no independent witness was produced by the prosecution and the two injured persons namely, PW1 and PW2 were highly interested witnesses hence their testimony were also discarded by the trial Court on this ground also. He further submitted that the presence of the two injured namely PW1 and PW2 at the place of occurrence cannot be ruled out as they had received fire arms shots which were fired at them by the accused respondents and the injuries received by them, as is apparent from medical examination and supplementary report, which confirms the fact that they had received injuries in the incident and their injuries are of such a nature that they cannot be fabricated or can be said to be of superficial in nature, hence the order of acquittal passed by the trial Court in favour of the accused respondents may be set aside as non-production of independent witness cannot be proved to be fatal to the prosecution case.
Learned AGA thereafter further argued that the trial Court had come to the finding that the prosecution story has been developed at a later stage in order to corroborate the medical report of the two injured and the post mortem report of the deceased. He then urged that the said finding of acquittal recorded by the trial Court on this count was based on no reason as the trial Court misinterpreted the evidence of the two injured persons in the light of the medical report of the injured persons as well as of deceased in a wrong manner though the ocular testimony of the two injured persons had completely corroborated the prosecution story in its toto, hence the finding of acquittal be set aside.
It was further submitted by the learned AGA that the acquittal of the accused respondents by the trial Court on the ground that the recovery of rifle of 315 bore and DBBL gun of 12 bore have not been proved by the prosecution and further the ballistic report also does not support the prosecution story, has also been wrongly discarded by the trial Court, though from the report of the ballistic expert it is apparent that the two empty cartridges of 315 bore, which were recovered from the place of occurrence, were fired from the rifle No.93AB3677 was found to be used in the crime as is also clear from the report of the ballistic expert which states that the two empty cartridges were fired from the rifle No. 93AB3677. Hence, the acquittal by the trial Court of the accused respondents should be set aside on this count also.
Lastly, the learned AGA argued that the presence of the scribe of the FIR Bhartendra Singh has been found to be doubtful at the place of occurrence and the trial Court acquitting the accused respondents on the said ground also committed gross illegality though the said fact could hardly be taken into account for rejecting the prosecution story, hence the acquittal of the accused respondents on the said ground by the trial Court is not justified and should be set aside.
On the other hand, Sri V.P. Srivastava, learned Senior Advocate, appearing on behalf of the accused respondents, has argued that the judgment and order passed by the trial Court is not perverse and does not suffer from any infirmity hence this Court should not interfere in the finding of acquittal recorded by the trial Court as the trial Court on the basis of the evidence recorded during the trial has rightly come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt against the accused respondents and they have been rightly acquitted by the trial Court. He further argued that the presence of the two eye witnesses, namely, PW1 Vijendra Pal and PW2 Pradeep who are also the injured witnesses of the occurrence, their presence at the place of occurrence is highly doubtful and their injuries are superficial in nature and which can be easily fabricated to prove their presence. He then urged that there are two eye witnesses of the incident who are highly interested and partisan witnesses as they are closely related to the deceased and their testimony cannot be said to be wholly reliable and the same has been rightly discarded by the trial Court. In this respect, he has pointed out that the findings recorded by the trial Court from internal pages 29 to 34 of the impugned judgment.
Considered the submission advanced by the learned counsel for the parties .
PWs 1 and 2, namely, Vijendra Pal Singh and Pradeep Kumar respectively are said to be injured witnesses. Their individual evidence indicates that when they were moving on the road from North to South as indicated by arrows and had reached infront of the house of Dharmendra Singh, the accused persons were seen standing at the top of that particular house and they started firing at Dispal and the witnesses. There is no dispute in it that both PWs 1 and 2 were injured and had received firearm injuries as may appear from the evidence of PW4 Dr. R.P. Bharadwaj who had found multiple gunshot injuries in an area of 24 cm. X 8 cm. on the person of PW2 Pradeep Kumar on the posterior medial aspect of lower part of right leg with ankle sole. Each injury was about 0.4 cm. X 0.4 cm. X depth not probed and there was no blackening or charring present. However, the injuries were bleeding. PW1 Vijendra Pal Singh was also found bearing multiple firearm wounds of entry in an area of 36 cm. X 12 cm. on the fronto lateral aspect of left thigh and knee on the upper part of leg. Each wound measured 0.4 cm. X 0.4 cm. X depth not probed. The injuries were not bleeding nor there was any tattooing or charring. Thus, there could not be any doubt that they had been hit by some gunshot, but the curious aspect of the medical evidence of PW4 Dr. R.P. Bharadwaj is that in none of the reports, Ex. Ka. 2 and 3 had he mentioned as to what was the estimated time when the injuries could have been caused. Thus, it becomes very difficult for this Court to accept unhesitatingly the contention that PWs 1 and 2 had indeed received injuries in the same transaction.
The witnesses who are injured, are supposed to be present at the site of occurrence . It may not be easy for a Court to reject his or her claim of being present at the seen of occurrence and, thus, to have seen the whole occurrence, but, that is never the hallmark that such a witnesses is always trustworthy and his evidence has to be accepted without any scrutiny. The evidence of all witnesses, even an injured witness, has to be scrutinized and appreciated like any other witness on the known parameters of appreciation of evidence and if any room is available to doubt the veracity of such a witness for any particular reason, then the Court has to accept or not to accept the evidence of such a witness in its wisdom.
We have already pointed out that there was no time stated by PW4 as to when these two witnesses could have been injured. In other words, what was the age of the injury is not available to the Court. This is one circumstance which has alarmed our minds to consider the evidence of witnesses with great care and caution even if as the learned trial Court had held that there was no motive alleged nor there was any motive proved. This is the reason that we have proceeded to consider the other circumstances which were discussed by the Court below in disbelieving the prosecution story and to further hold a deeper forensic scrutiny of their evidences so as to finding out as to whether the manner of occurrence or the story as to how the whole incident had occurred was established by their evidence.
Both the witnesses PWs 1 and 2 stated that it was a day of Holi and in the early hours of the day the servant, namely Fida Husain of the respondents had abusively misbehaved with the nephew of the informant, i.e., deceased Dispal and that servant Fida Husian was drunk and had been chastised and driven away by the deceased. This was the reason that had triggered the incident. The further evidence of the witnesses that they had started for Holi Milan in the village by going to one house to the other and to the next, as may appear from the evidence of the two witnesses. The deceased was not accompanying them right from their house rather they had been joined by the deceased on way while they had moved out of their respective houses.
Two houses as may appear from the site plan, Ex. Ka. 50, were standing opposite each other. One was of Gajendra Singh which was facing South and to the East and West of the said house was running the same road which was also passing in front of the house. To contiguous South of the road passing infront of the house of Gajendra Singh was situated the dried up canal and the northern flank of the canal was by the side of the road and its southern flank was passing in front of the house of Dhramendra Singh, son of Jitendra Singh at the roof top of which at places ''A,B,C,D,E,F', the accused persons were standing with their firearms. When the two injured witnesses PWs 1 and 2 and the deceased Dispal had come to the place indicated by ''G' the accused persons remonstrated that they should be taught a lesson as they had assaulted their servant and they started firing at Dispal. The distance between places ''G' and the roof top where the accused persons were standing has been pointed out to measure 12 yards, i.e., 36 ft. The post mortem report of Dispal indicated that his wounds were bearing charring, blackening around the entry wound which measured 2 cm.X 1 cm. on left side of mouth. The distance of 36 ft. was such, in the Court's opinion, which could hardly allow this court to accept the evidence of two witnesses that the shot which was causing the fatal wound, i.e., injury No.1 recorded by PW5 holding the post mortem examination could have been caused from such a long distance.The above injury no.(1) which was recorded by PW 5 on the dead body could have been caused from a very close range as good as from a distance maximum of 4 ft.
The shots were fired from a long distance as indicated by the site plan is also indicated by the injuries of PWs 1 and 2 as PW4 who examined them was finding no blackening or charring around the wounds either of PW1 or of PW 2. The other feature which has been noted by the Court is that while examining PW1 Vijendra Pal Singh , PW4 Dr. R.P. Bharadwaj did not find any bleeding and it appears from the evidence as if it had no bleeding marks, Thus also, it may be presumed that the injuries of PWs 1 and 2 had definitely been caused from a greater distance than what appears the distance in case of the injury caused to the deceased.
The use of medical evidence is dual. The prosecution can use the evidence of a doctor to point out to the Court that the manner of occurrence which was alleged by it was probablised by the evidence of the doctor by showing the probability of the injuries being caused in the manner and by the weapon as alleged used by it and thus ask the Court to accept the testimony of the eye witnesses as trustworthy. On the other hand, the other use of the same evidence of the same doctor holding the post mortem examination could be made by the defence to argue against the probability claimed by the prosecution as regards the proof of the manner of occurrence. The attention of the Court could be drawn to the evidence of the medical man by the defence to submit that the Court should hold after considering the medical evidence, the manner of occurrence had not been established by the evidence of the doctor and as such inference be raised that the account of the occurrence given by so called eye witnesses was not acceptable. If the defence succeeds in convincing the mind of the Court on the basis of the evidence of the doctor regarding the improbability of occurrence, the impact of such of a contradictory medical evidence could create a doubt in the mind of the Court regarding the claim of the witnesses being present at the scene of occurrence and thus, to further doubt the veracity of the prosecution story. As soon as doubt is created in the mind of the Court, foundation of the prosecution story is shaken and that entitles the accused to benefit of doubt.
In the present case we have already adverted to the evidence of the two doctors, i.e., PW5 Dr. S.K. Melhotra who held the post mortem examination on the dead body and PW 4 Dr. R.P. Bharadwaj who had examined the two witnesses PWs 1 and 2 in respect of the injuries which were allegedly caused to them in the same incident. We have already noted was the age of the injuries found on PWs 1 and 2 had not been stated by PW4 Dr. R.P. Bharadwaj and his evidence also does not indicate that any charring or tattooing was present anywhere around any of the wounds. The fatal wound on the deceased was bearing, on the other hand, charring and tattooing. Besides another feature of the injury found on the dead body was that injury No.1 which was a wound of entry was greater in dimension and the corresponding wound of exit, which was wound No.2 was lesser in diameter. This also belies the manner of occurrence. The distance, we have already noted, from which the shots were fired was so big that it would never cause charring or tattooing around injury No.1 found by PW5 on the dead body. There is no explanation coming from the prosecution as to how it was possible and this creates a reasonable doubt in this Court's mind as regards the manner of occurrence and further creates a doubt regarding the competence of the witnesses as their claim that they were present at the scene of occurrence which was taking place in the manner as was narrated by them.
The other aspect of the evidence of PWs 1 and 2 when considered in the light of the site plan may also lead to similar conclusion that the witnesses had not been truthful as regards the maner of occurrence and the place where from the accused persons could have shot at the deceased or the injured. Both PWs 1 and 2 have stated that while moving on the road they had come at point ''G' on the road running in front of the house of the Gajendra Singh. The accused persons were standing at place A,B,C,D,E,F. with their rifles or countrymade guns and after remonstrating they started firing. The absurdity in the evidence is that when the accused persons had remonstrated, instead of taking any precaution to save themselves the deceased Dispal was imploring them not to fire at him or kill him and went nearer them. This in our view was not the story propounded at the earliest but still considering it, what has come into our mind is that it was the purposeful addition to the prosecution story in order to explain the finding of charring and tattooing around the entry wound found on the dead body. Not only the deceased was not moving away from the site of occurrence but the two witnesses were also not frightened finding the accused persons so determined to fire the shots. The shots as per witnesses were fired from the top of the house of Dharmendra Singh which could have come tangentedly to hit its target from upwards to downwards. But, the injuries found by the PW5 do not indicate that there was any such direction in the penetration of the wounds . Not only that what was found by the Investigating Officer during investigation at the place of occurrence had been stated by him both in his evidence and in his site plan. It has been stated that he found wads and empties of 12 bore and 315 bore cartridges at 'G' and recovered them by preparing seizure memo. This finding of recovery of wads and empties of cartridges further indicated that shots had never been fired from the roof top of the house Dharmendra Singh rather it must have been fired on the same road where wads and empties were found lying because no wads or empties were found at the roof of the house of Dharmendra Singh which was situated 36 ft. away and above from the place of recovery of the articles. This is one important circumstance appearing from the evidence of the prosecution that further belies the competence of the witnesses as regards the manner of occurrence.
The learned trial Judge had held that the motive was neither alleged nor it was established. To our mind, it may not be an acceptable finding because there was a story of the deceased having chastised and driven away the servant of Jagpal Singh, namely, Fida Hussain who had misbehaved with him. But again it does not appear such an incident as to trigger the occurrence of killing the deceased and injuring two other persons. Some of the independent persons who were also present as per the prosecution story as also as per site plan at the place ''H' were not coming up to support the evidence of PWs 1 and 2. It is yet another infirmity which in our opinion was afflicting the prosecution case.
Dispal was killed. There cannot be any doubt about it. But it could in itself may not be sufficient to uphold the prosecution charges. The manner of occurrence appears something different. After considering the medical evidence and the finding of wads and empties together with the evidence regarding the distance from which the shots were allegedly fired, in this Court's view, the prosecution appears guilty of suppression of real facts which could have led to the incident or which could have unfolded the prosecution story truly and correctly.
In the above view of the matter which appears to this Court is that reasons for acquitting accused persons might have been differently given by the learned trial Judge, but they do not appear unreasonable. The view taken by the trial Judge was also a probable view and, as such, this Court does not find any perversity in the judgment of acquittal, as a result of which, this Govt. Appeal fails and is, accordingly, dismissed. The accused persons are on bail. They stand discharged from the liabilities of their sureties.
We have also heard the parties in the connected criminal revision petition and for the reasons we have just assigned for dismissing the present Govt. Appeal; we dismiss the criminal revision petition too.
Dt.12.12.2012 NS