Allahabad High Court
The State Of U.P. vs Chotey Lal Son Of Bal Kishan, Suraj ... on 20 December, 2005
Author: Vinod Prasad
Bench: M.C. Jain, Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. The appellant State has filed this appeal against the judgment and order dated 23.5.1984 passed by Sessions Judge, Non-Metropolitan Area '(Kanpur Dehat) in Sessions Trial No. 403 of 1981, State v. Chotay Lal, Suraj Prasad and Muniya @ Gyan Prakash Sessions Judge has acquitted the respondents-accused of the charge under Section 302 read with 34 I.P.C., P.S. Sikandra, District Kanpur Dehat.
2. The factual matrix of the prosecution case were that on 13.7.1981 at 5.00 or 6.00 P.M. Chotay Lal and his son Suraj Prasad were mending the boundary of their field, "I adjacent to the field of informant Lala Ram P.W.2, denuding the maize crop of the informant. Jagdishwar, brother of informant told the accused to desist from mending the boundary on which the two accused Suraj Prasad and Chotay Lal hurted abuses on him. The shouts of the tirade attracted Lala Ram (informant), Narain, Tula Ram P.W.4 and they pleaded for Panchayat but the tiradic altercation increased and ultimately Suraj Prasad and Chotay Lal left the place, returned to their house throwing a challenge to see each one of them. Soon thereafter informant P.W.2, 'Narain, Tula Ram P.W.4 and Jagdishwar (deceased) were coming back to village. The three accused Suraj Prasad armed with his licensed gun, his father Chotay Lal and brother Muniya @ Gyan Prakash both armed with Kantas emerged from the field exhorting and Suraj Prasad fired from his lisensed gun towards prosecution side, which hit the deceased Jagdishwar. The deceased fell down in the drain of the tubewell. Chotay Lal and Muniya @ Gyan Prakash then assaulted the deceased with Kantas, as a result of which he died on the spot. Tulsi Ram, resident of the same village was trying in vain to stop the accused. Thereafter the accused persons made their escape good in the forest. Lala Ram, informant, P.W.2 got the report scribed through Pyare Lal Rajput and lodged it at the police station Sikandra on the same day at 11.45 P.M. covering a distance of 7 K.ms. south. Head Constable, Raj Narain Tiwari prepared the chik, Ex. Ka-3 and G.D. Ex. Ka-4. Rishi Pal Singh, P.W.5, S.O. of police station Sikandra started the investigation, recorded the statement of the informant at the police station itself and proceeded for the spot. At 7.00 A.M. next day, he conducted the inquest, Ex. Ka-5, prepared other relevant papers Ex Ka 6 to Ex Ka 9 and dispatched the body for postmortem through constable Lal Bhadur P.W.3 and Chowkidar Sundar Lal. He made a spot inspection and prepared site plan, Ex. Ka 10 at the pointing out of informant P.W.2 and made recoveries of blood and cartridges and prepared recovery memos Ex. Ka-11, Ex. Ka-12 and Ex. Ka-13 and after completing the investigation submitted the charge sheet, Ex. Ka. 15, against the accused.
3. The postmortem of the deceased was conducted by Dr. R.B. Mehrotra, P.W.1 on 16.7.1981 at 11.30 A.M. He found one firearm wound of entry on the chest 18c.m.xllc.m. with biggest wound of entry being 2cm. x 2cm. with blackening, charring, scorching and tattooing present in the wound. The smallest wound of entry was 1/4 cm. x 1/4 cm. with the same traits as that of the first. He also found four incised wounds of various sizes on right thumb, right wrist finger palmer aspect, right middle finger phaiynx and right finger. Further, he found one contusion 3cm x 2cm. on the right side of chest just at the end of the clavicle. The time since death was opined three days back and the cause was shock and haemorrhage as a result of firearm injury. In the stomach, he found digested food and 12 pellets were embedded in the intestine and liver.
4. The prosecution in support of its case examined six witnesses during the trial out of whom informant Lala Ram, P.W. 2 and Tula Ram P.W.4 were the eye witnesses. Rest of the witnesses Dr. R.B. Mehoratra P.W.1, Constable Lal Bahadur P.W.3, S.O. Rishi Pal Singh P.W.5 and constable Lal Bahadur P.W.6 were the formal witnesses.
5. The defence of the accused was that of denial and false implication due to enmity on various counts.
6. The trial court by analytical approach of the evidence produced in the trial found motive to be weak, presence of witnesses at the time of incident doubtful and the medical evidence inconsistent with the ocular testimony exposing incongruities between F.I.R. and deposition in Court. It also found F.I.R. to be recorded belatedly and investigation tainted. Consequently, it recorded acquittal, which is under challenge in the instant appeal.
7. We have heard Sri Devendra Upadhaya, A.G.A. in support of this appeal and Sri Brijesh Sahai, Advocate on behalf of the accused-respondents.
8. The learned A.G.A. contended that the impugned judgment of acquittal is untenable, perverse and dehores the evidence on record. Lala Ram P.W.2 and Tula Ram P.W.4 have fully supported the prosecution case and the medical evidence of Dr. R.B. Mehrotra P.W.1 proved the prosecution to the hilt, he contended. He submitted that the investigation was carried assiduously by S.O. Rishi Pal Singh P.W.5 and thus summrising, he articulated the contention that the impugned judgment cannot be allowed to stand. It is liable to be set aside and the State appeal deserves success with the conviction of the accused respondents for the. offence of murder with sentence provided, therefore, under the law of the land.
9. Sri Brijesh Sahai, learned counsel for the accused-respondents contrarily contended that the impugned judgment of acquittal is well reasoned, consistent with the facts and evidence of record and has been passed after meticulous examination of evidence produced in the case. He submitted that the statements of witnesses are unworthy of credence and are surreal. He contended that the presence of the witnesses is doubtful and there is medical inconsistency vis-a-vis ocular version, demolishing the prosecution charge. Weak motive evidenced by interested, enemical, partisan witnesses with ludicrous conduct failed to anoint the guilt on the respondent and endingly, he submitted that the judgment of acquittal, impugned in the appeal, be upheld and the State appeal, devoid of merit, deserves to be dismissed.
10. To adjudge the rival submissions and worth of the contentions raised before us, we have perused the record and evidence of the case critically.
11. A perusal of evidence of Lala Ram, informant indicates that because of mending of boundary there was an altercation and on hearing the altercation he had reached on the spot along with witnesses Narain and Tula Ram P.W.4. Offer of settlement through 'Panchayat' further aggravated the altercation and accused returned to their house only to re-emerge after 10 or 15 minutes, while they (the informant and witnesses) were returning back to their house. Accused Suraj Prasad exhorted from 10-15 paces behind to stand still. Reflexibly four witnesses turned around and the deceased replied to the call. Immediately, accused Suraj Prasad ran and fired a shot at the deceased from 3/4 or one hand, which hit him and he fell down in the drain. Muniya @ Gyan Prakash and Chotey Lal hammered a single blow each from Kantas on the deceased thereafter. On hue and cry being raised by companion witnesses accused escaped in the forest firing another shot in the air to make their escape good, not hitting any body.
12. The perusal of the evidence of Tula Ram, P.W.4, another witness of fact indicates that he was a related witness and he was re-iterating the tutored evidence akin to the statement of P.W.2.
13. From the perusal of the evidence of both these witnesses it seems to us that they were not present on the spot. P.W.I admitted that in the F.I.R or 161 Cr.P.C statement he did not mention the facts of the challenge thrown by the accused Suraj Prasad and their turning around in reply. Further, he did not mention in F.I.R. or under 161 Cr.P.C that Suraj Prasad ran and shot at the deceased. He denied a substantial portion of the manner of assault as he had stated under Section 161 Cr.P.C. He admitted that Tula Ram P.W.4 is his nephew. He also admitted that the deceased was a witness against Chotay Lal and there was bad blood between the two. He further admitted that the accused Suraj Prasad was a teacher and that he (this witness) had lodged an F.I.R. against Peshkar, Dhani Ram, Cheda Lal, Ram Saneh and others in which case Jagdishwar was his witness. He further admitted that he was fighting case regarding a sale deed with Shiv Ram. He denied that the deceased was an accused in a case lodged by Lala Ram. From his evidence it transpires that accused Suraj Prasad was the pairokar of his enemy Shiv Ram with whom he was litigating on a sale deed. He admitted that deceased was a witness against Chotey Lal accused and he was also a witness against Sub Inspector Himmat Singh (who had conducted the inquest on the body of deceased in this case) in a case started by Ram Prasad. He denied the suggestion that the F.I.R was lodged next morning and murder was committed sometimes in night.
14. There is yet another reason which belies the prosecution version and that is the dispersal of the shot, which is 18cm. x 11 c.m. We are not satisfied that it could be caused by a gun from a distance of less than one and a half feet as stated by the witness. We recall that the case of the prosecution is that Suraj Prasad was armed with his licensed gun and fired shot therefrom. The said gun was never taken in possession by the I.O., which castigates his investigation and bereft the prosecution to bring home the guilt. Thus, the prosecution has not been able to establish that the gun shot injury received by the deceased was from the licensed gun of accused Suraj Pal. Moreover, the witnesses attributed one hammering each to the deceased by other two accused by Kantas but the deceased received twice the number of incised wounds alongwith one lacerated wound which remains unexplained. This fact also belies the ocular account of assault given by the witnesses and makes their presence on the spot doubtful.
15. In the end, we are not satisfied with the statement of the two witnesses of fact for cementing the quilt around the accused persons and consequently, find no force in the State appeal, which is merit-less. We conform with the acquittal of the accused respondents as recorded by the trial court
16. The State appeal is dismissed.
17. Let a copy of this judgment be sent to the C.J.M. for necessary entries in the relevant register.