Allahabad High Court
Uma Ram @ Om Prakash vs State Of U.P. on 10 July, 2018
Equivalent citations: AIRONLINE 2018 ALL 2682, AIRONLINE 2018 ALL 3146
Bench: Amreshwar Pratap Sahi, Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR COURT NO.40 Case :- CRIMINAL APPEAL No. - 3067 of 2013 Appellant :- Uma Ram @ Om Prakash Respondent :- State Of U.P. Counsel for Appellant :- Harendra Yadav, M.P. Yadav Counsel for Respondent :- Govt. Advocate AND Case :- CRIMINAL APPEAL No. - 2915 of 2013 Appellant :- Indradeo Ram Respondent :- State Of U.P. Counsel for Appellant :- K.K. Singh, Sunil Kumar Singh Counsel for Respondent :- Govt. Advocate, Ali Akbar Ansari ************** Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Bachchoo Lal,J.
In these appeals both the appellants have been convicted and sentenced to undergo Life Imprisonment for having committed the offences that have been found to be established and proved by the prosecution under Sections 302 read with Section 34 I.P.C. Apart from this a fine of Rs.5,000/- has been imposed on both the appellants and in default to undergo two months' additional imprisonment. Both the appellants have also been sentenced and convicted for 1 year imprisonment for the offence under Section 504 I.P.C. coupled with a fine of Rs.1,000/- each and in default thereof to undergo fifteen days imprisonment. Similarly for the offence under Section 506 I.P.C. the appellants have been awarded a sentence of one year imprisonment and a fine of Rs.1,000/- each and in default thereof to undergo fifteen days imprisonment.
The appellant Uma Ram @ Om Prakash has been further awarded a sentence of two years imprisonment under Section 3/25 of the Arms Act coupled with a fine of Rs.1,000/- and in default thereof to undergo an additional imprisonment of one month. All the sentences are to run concurrently.
The said judgment of the learned Additional District & Sessions Judge, Mau dated 05.06.2013 arising out of Case Crime Nos.1698 of 2009 and 1701 of 2009, Police Station Chiraiyakot, district Mau has been assailed on several grounds. Sri M.P.Yadav, learned counsel for the appellant has advanced his submissions for the appellant Uma Ram @ Om Prakash and Sri K.K.Singh alongwith Sri Sunil Kumar Singh have advanced their submissions on behalf of the appellant Indradeo Ram. Sri Ajit Ray, learned A.G.A. has advanced his submissions on behalf of the State along with Sri Jai Narain.
The description of the case in the first information report is that the son of the deceased PW-1 informant Ram Shabad Ram at about mid-night on 1/2.10.2009 woke up upon having heard gun-shot fire while he was asleep. He rushed towards the scene of occurrence where he saw his father Sakaldeep Ram (the deceased) having fallen down from his cot sustaining gun-shot injuries on his chest and on his legs. The appellant Uma Ram is only nominated in the first information report who was recognized in torch light by the informant and two others Doodhnath and Indradeo while fleeing away from the scene towards the east direction. The first information report further discloses that the informant alongwith Doodhnath and Madan Ram saw his father groaning and he picked him up along with the help of other villagers and in order to provide medical treatment to him he rushed to the Sadar Hospital at Mau where a doctor declared his father dead. The first information report further narrates that the informant left the body of the deceased on the western gate of the hospital along with certain villagers who were looking after it and he arrived the police station to lodge the information.
The information to the police was tendered at about 6.10 a.m. on 02.10.2009. According to this version since the dead-body was lying infront of the western gate of the hospital the inquest report was prepared there at 12.20 noon. The post-mortem was conducted on the same day at 16.15p.m. The statement under Section 161 Cr.P.C. of PW-1, the informant, PW-2 Doodnath, PW-3 Raghunath Ram and PW-4 Madan Ram are stated to have been recorded by the Investigation Officer namely, Sri Nanhe Ram, PW-6 the Station House Officer of police station Chiraiyakot.
The inquest report and the recovery was carried out by Sub-Inspector of Police Sri Ram Vishwakarma examined as PW-7, the post-mortem was conducted by Dr. Amit Kumar Ranjan who was examined as PW-5. Constables Rajesh Kumar Tiwari, Devendra Singh and Rajesh Kumar Singh were examined as PW-8, PW-9 and PW-10.
The recovery was carried out resulting in the discovery of the weapon alleged to have been utilized by the appellant no.1 Uma Ram @ Om Prakash who is stated to have been arrested on 03.10.2009. On his alleged disclosure statement a Country-Made Pistol along with one empty cartridge lodged in the barrel of the pistol is said to have been recovered from an open place near a public pathway. The recovery memo was prepared and the same has been Exhibited as Ext. Ka-4. The recovery memo of blood stained and plain earth was also prepared and is Ext. as Ext. Ka-6 and the recovery of one empty live cartridge is Ext. as Ka-7. The post-mortem report is Ext. as Ka-2. The fire arm and the recovered cartridges were sent for forensic examination to the Forensic Laboratory and the reports with regard to the fire arm and the cartridges are Ext. as Ka-10, Ka-11 and Ka-12, Ka-21/26, Ka-22/27 and Ka-23/28.
There is however one development which deserves to be noticed at this stage that after the examination of the prosecution witnesses and the conclusion of the proceedings under Section 313 Cr.P.C. an application was moved on behalf of the prosecution on 01.08.2012 for altering the charge in view of the evidence that was brought-forth under Sections 302/120 I.P.C. read with Section 504 I.P.C. The said application was allowed by the Court and the charges were re-framed on 01.08.2012.
It is to be noticed that the initial charges were framed on 04.03.2010 against the appellant Uma Ram @ Om Prakash under Section 302 I.P.C. read with 506 I.P.C. and 3/25 of the Arms Act. Simultaneously the charge against Indradeo Ram on the same day had been framed under Section 120-B I.P.C. read with Section 506 I.P.C. thereof. It is these initial charges that came to be altered and re-framed on 01.08.2012 as referred to hereinabove.
Upon the re-framing of the charge the two witnesses of fact namely PW-1 and PW-2 were re-examined and cross-examined on 26.09.2012 and 03.10.2012 respectively. The other two witnesses of fact namely PW-3 and PW-4 had already turned hostile and were declared as such by the prosecution during the proceedings prior to the alteration of the charge.
The story of the prosecution that was unfolded in the deposition of PW-1 before the trial court is a version which for the first time implicates the appellant Indradeo Ram along with the appellant and further explains the incident including the number of injuries sustained by the deceased and further the manner in which PW-1 witnessed the alleged occurrence.
The statement and the cross-examination of PW-1 commenced on 21.05.2010 and concluded on 21.07.2010. The subsequent re-examination of PW-1 upon the alteration of the charge was undertaken on 26.09.2012 which is almost after more than two years of the previous testimony of PW-1.
The aforesaid facts are to be mentioned as the learned counsel for the appellants have advanced their submissions in order to point out the inconsistencies and contradictions in the statement of PW-1 on the strength of the aforesaid statements.
PW-1 while disclosing the incident in his examination-in-Chief has narrated that his father on the fateful night was sleeping beneath a Neem tree when he was shot and killed. He then states that the four shots were fired by the appellants and that he had seen the occurrence with his own eyes. He further states that both the appellants had fired shots and apart from him, his wife Smt. Suman had also seen the two assailants/appellants in the light of a torch having assaulted the deceased. He further states that after having heard the gun shots, he and his wife with the aid of a torch saw the appellants Uma Ram @ Om Prakash and Indradeo Ram having fired four shots.
The villagers after having heard the gun fire had arrived at the scene of occurrence and then they had chased the assailants when he recognized the assailants to be the appellants in the light of the torch when they were fleeing away towards the eastern direction.
He then states that there was a clear motive because there was an enmity between his deceased father and the appellant Uma alias Om Prakash, as the said appellant had stolen a tullu pump that was utilized for drawing water, whereas the enmity with the other appellant Indradeo Ram was on account of a managerial dispute of an Institution. It is on account of such enmity that both the appellants conspired to kill my father and four months prior to the incident, the appellant Uma alias Om Prakash had threatened him that he would kill him with a bullet.
His examination-in-chief resumed with the statement that with the help of the villagers he took his father to the hospital where the doctor declared him to be dead and then he arrived at the police station where he tendered the written report. PW-1 further admitted having written the said report and proved Exhibit Ka-1. He further stated that the inquest was carried out in his presence and the report was prepared before him that bears his signature as well.
In his cross-examination, he stated that he and his father were sleeping outside infront of the door of the house, whereas immediately following the same, he states that on the date of the incident he was sleeping inside one of the rooms of his house which has four rooms. The room in which he was sleeping with his wife has a wooden door which was bolted from inside. His father was sleeping at a distance of four sticks (latha). The main door of the house was also closed. When he woke up at about 2:00 am and opened the door, he saw his father lying down and the assailants were running away towards the east. There is a pitch road in the immediate vicinity of the place where his father was lying down. On further cross-examination, he states that he woke up after having heard the shots. He further discloses that since his father was badly injured, he raised a call and then some villagers arrived. He also states that his uncle (fufa) Doodhnath PW-2 and Madan Ji PW-4 immediately came to the spot along with others but he did not remember the name of all the villagers who had arrived then. He further on cross-examination affirmed that when he saw his father he was groaning on account of the injuries sustained, and therefore, along with the help of the villagers, he took his father to Mau Sadar Hospital. The villagers who accompanied him to the hospital were Vikram, Madan PW-4 and his uncle Doodhnath PW-2 in a jeep on which he had transported his father to the hospital. This took about one hour. From the hospital, he immediately came back to the police station at about 4:00 am along with PW-2 Doodhnath where he remained for about one hour. He further stated that for about one hour, he had discussions and consultation with the police inspector, whereafter the officer gave him a piece of paper on which he transcribed the written report. He has further admitted in his cross-examination that he had only nominated appellant Uma alias Om Prakash having seen him in the light of a torch and that he had not nominated the other appellant Indradeo Ram in his written report. He had also not disclosed about the incident having been seen by his wife Suman. Apart from this, no such disclosure was made by him in his statement under Section 161 Cr.P.C. about the involvement of Indradeo Ram or his wife having seen the occurrence. These facts were stated by him for the first time before the Court during his testimony. Further he has stated that it is correct that there was a managerial dispute about Kamalchak Ambedkar Pathshala Society Chiraiyakot, District-Mau between his relation Jitanu Ram and the appellant Indradeo Ram about which a case was going on. He denied having falsely implicated Indradeo Ram and the suggestion of not having scene the occurrence was also denied by him. The cross-examination continued on 21st July, 2010 on which date he described the arrival of PW-2 Doodhnath after five minutes of the incident. He also described the arrival of Madan PW-4 who is his real cousin and son of his real uncle. He again stated that he had seen both the appellants fleeing away from the scene of occurrence with the aid of a torch. Other suggestions about false testimony were denied and on the query by the defence about any evidence of the existence of the tullu motor pump, he stated that he had an electricity connection and that he is not in possession of the receipt of any purchase of such a tullu pump. Other suggestions levelling allegations against the said witness of having manipulated the murder of his father were denied.
He has further stated that he gave the information of the incident at about 2:00 am at night.
Then comes his testimony after the alteration of the charge which was recorded on 26th September, 2012. It is here that PW-1 brought about a change in his version with regard to his arrival at the police station and also about having transported the dead body. In this statement, PW-1 testifies that he departed from his house at about 6:00 am in the morning for the police station on a bicycle. It may be noted that the distance between the place of incident and the police station at Chiraiyakot is 2 km. It is here that he indicates that he prepared the written report between 6:30 am and 7:30 am on 2nd October, 2009. He denies having any talk with the Police Officer, but he admits having given his statement to the Police Officer at the police station. He admits having woken up after having heard a shot, whereafter he went towards the place beneath the neem tree where he saw his father having fallen down and lying dead. Thus in this statement, the variations commenced by his going to the police station at 6:00 am on a bicycle and submitting the written report thereafter, whereas in the previous statement recorded he has categorically stated about having arrived at the police station at 4:00 am where he consulted with the Police Officer for about one hour, and then he transcribed the written report on a paper supplied by the Police Officer.
The second variation which entered in the statement of the PW-1 is with regard to the status of the deceased Sakaldeep about whom the description is that he saw his father lying down dead, whereas in the previous statement it was categorically recorded that his father was groaning.
In this subsequent cross-examination, PW-1 further testifies that he lifted the body of his father with the aid of some villagers and placed it on a cycle-cart (thela). The body was loaded on the said cart and then taken to the police station and was laid there. He had gone along with the dead body driving the cart inside the premises and the said cart belonged to him. He has further stated in his cross-examination that after having seen the dead body of his father within 2-4 minutes, he had lifted the body and taken it to the police station which took about half an hour. The cart on which the body was loaded was driven by him like a bicycle.
He then stated that the managerial dispute was between appellant Indradeo Ram and his father as he was also claiming himself to be the Manager of the Institution. He also stated that he will be submitting documents to that effect. He denied the suggestion of the managerial dispute and the lodging of a case having not been filed by his father. He denied the suggestions of not having woken up and having heard the shots as also the fact of not having taken the dead body on a cart.
The aforesaid version of the transportation of the dead body on a cart to the police station which is at a distance of 2 Kms, is therefore, clearly at variance with the disclosure in the previous statement of PW-1 where it was categorically stated that the body was lifted and loaded on a jeep and taken for medical treatment to Sadar Hospital, Mau at a distance of 32 Kms where the deceased was declared dead. Thus, the very same witness in his previous testimony indicated the live status of the deceased at the time of the incident and being taken for treatment to the hospital, whereas in the subsequent testimony, he has categorically stated that his father was dead when he saw him for the first time lying down at the scene of occurrence and immediately after 2-4 minutes the body had been lifted and loaded on a cart and taken to the police station.
Then comes the testimony of PW-2 Doodhnath who is the brother in law of the deceased. He has stated in his examination in chief that his brother in law Sakaldeep had been murdered whose was resident of Kamalchak and that the distance between his village and that of his brother in law is about 30 furlongs. The incident took place at about 1:00 am in the night when he woke up from sleep at his residence for answering the call of nature. He heard a gun shot, and he immediately rushed towards the house of the deceased, he also had a torch in his hand. He saw the dead body of the deceased lying down and two people running away who were the appellants. He also stated that he along with the first informant Ram Shabad chased them for sometime but returned back.
The witness then goes on to corroborate the first testimony of PW-1 where he had stated that they lifted the body of the deceased and took him to the doctor. At the scene of occurrence, he met the informant and his brother Madan. The deceased was declared dead by the doctor. We had taken the deceased to the Sadar Hospital and his statement under the section 161 Cr.P.C was recorded by the Investigating Officer. He further states that the accused on account of their enmity arising out of the managerial dispute of the school had threatened the deceased earlier. On cross examination, he stated that he does not remember the name of the person who had given him the news about the incident. He went to the residence of the informant from his house and then he had asked him as to where he was at the time of the incident whereupon he was informed that the informant was sleeping inside his Verandah. PW-2 has further stated that when he further inquired about the place where the deceased was sleeping then he was told by the informant that he was sleeping under the Neem tree. He had alone travelled the distance from his house to the residence of the informant. On being cross examined about the residence of neighbours, he made statements indicating about the residence of Madan Ram on the western side and gave a contradictory statement about the residence of one Prabhu. He expressed ignorance about the residence of other neighbours namely Subhash, Durjan and Harivans. He also indicated the place of residence of other villagers including the appellant Indradeo.
Explaining the distance between his village and that of the informant, he stated that it is about five kos (10 miles) away. The relevant statement made by him is about the fact that he resides in Chiraiyakot Market where he vends vegetables. This he has been doing for the past thirty years. He is looking after his business along with his daughter's son. He then states that on the date of the incident, he was at his shop and on that day also he was selling vegetables.
He has then while answering the queries stated that he did not go to the police station nor did the Investigating Officer meet him at the scene of occurrence. He met the Investigating Officer the next day at the residence of the informant at about 4:00 pm in the evening, where he had been summoned by him and he was informed that he has been nominated as a witness in the case. On suggestions, he denied that he had not seen the incident and further about his arrival.
He was then again examined after the alteration of charges as referred to above on 3rd October, 2012 where he also altered the version relating to the transportation of the body of the deceased. In this cross examination, he repeated the story narrated by PW-1 namely that the body was carried on a cart to the police station. He however stated that he does not remember as to who lifted the body and put it on the cart as the body had been loaded prior his arrival. He has stated having accompanied everybody to the police station where he arrived at about 3:00 am. All this consumed about half an hour. He also indicated that when the body was kept inside the police station the deceased had been wearing kurta and lungi and that he removed the slippers from his legs. Later on, he said that he did not remove the clothes because the deceased was not wearing any clothes. He has further stated that his village is about 5-6 kilometers away from the place of incident and he also admitted being related to the informant. He denied other suggestions.
From the above statement of PW-2, it is evident that PW-2 has also altered his version, subsequently, in the same manner as PW-1. On the issue of distance having been covered by him, he has admitted that he was in Chiraiyakot Market on the fatal day from where he had arrived at the scene of occurrence. For this, in the examination-in-chief, he has described having woken up for answering the call of nature at about 1:00 am, and having heard the gun fire, he rushed towards the house of the informant where he found that the body of the deceased was lying and that both the appellants were fleeing away which he saw in the light of a torch.
At this stage, it would be pertinent to note the distance between police station Chiraiyakot and the place of incident in village Kamalchak is clearly indicated in the First Information Report as two kilometers.
The third witness of fact examined is Raghunath Ram PW-3 who is stated to be a teacher in the same school about which the dispute has been referred to by the witnesses. He has stated categorically that his residence is 21 kilometers away from the house of the informant, and that he was not staying with the informant on the fatal day. He has clearly stated that he went to the house of the informant on the next day of the incident. The information had been given to him by one Kanhaiya Ram from the hospital about the deceased having sustained gun shot injury. He has categorically stated that he never saw the appellants involved in the incident or the appellant Uma @ Om Prakash exhorting the appellant Indradeo to open gun fire. He was not aware of any preceding incident of any exchanges between the deceased and the accused or any threat being extended to the deceased. After this statement, he was declared hostile by the prosecution and with the permission of the Court, the Assistant Prosecuting Officer proceeded to cross examine him further. He has categorically stated thereafter that he had not given any statement recorded under Section 161 Cr.P.C. to the Investigating Officer nor did he have any knowledge about any conspiracy about the murder of the deceased. On the suggestions being given relating to having seen and witnessed the commission of the offence by the appellants in the light of a torch, the witness completely denied the same. When he went the next day, he was informed by the informant that somebody had shot his father the preceeding night when he was sleeping outside. Thus, this witness went hostile as is indicated in his statement and was declared as such by the prosecution.
The next and the last witness of fact is PW-4, Madan Ram, who is the real nephew of the deceased. He is the next door neighbour of the deceased as is evident from the recital of his statement before the Court. He has however stated that there was enmity between the appellants and the deceased from before. The incident is of the night of 1st October, 2009. He also states that he woke up after having heard the gun shot fires. He first stated that he went outside with a torch but later on reverts on the same. He however admits having seen the deceased sustained gun shot injuries but he did not see the appellants having committed the offence of firing shots at the deceased. He never saw anybody fleeing away nor did he chase anybody. At this stage he was declared hostile and the Assistant Prosecuting Officer was further given the opportunity to cross examine him. The witness further denied having given any statement under Section 161 Cr.P.C, and all the suggestions relating to having witnessed the crime. The only distinction between the statement of PW-3 and PW-4 is that PW-4 is the next door neighbour. He has admitted having woken up after hearing the shots and having seen the body of the deceased. He has categorically stated that when he arrived at the scene, the alleged assailants had already fled away.
The next witness examined as PW-5 is the doctor who carried out the autopsy on the body of the deceased and who has categorically described four gun shot entry wounds and two exit wounds. Two bullets were found to have been recovered from the injuries and the cause of death has been categorically shown to be on account of antemortem injuries caused by fire arms. The possible timing of the death has also been indicated to be about at 2:00 am in the midnight 1st/2nd October 2009. The said witness has therefore testified the death of the deceased on account of the fire arm injuries and also the duration and time which matches with the timing in the FIR and the story of the prosecution.
The next witness to be examined is the Investigating Officer, Nanhey Ram, Station House Officer of Police Station, Chiraiyakot Market, District Mau. He admits having received the copy of the check report that was got registered whereafter he entered upon investigation and the entries were accordingly made in the case diary. After having made inquiries from the scribe of the FIR and the informant he recorded their statements and then called upon Sub Inspector of Police, Sri Ram Vishwakarma, who proceeded towards the hospital for preparing the inquest report.
On the pointing out of the informant he prepared the site plan which was proved by him and while preparing the site plan he also recorded the statements of Manjeet and Devnath. Thereafter the statements of the eye witnesses Jitanoo Ram (not produced), Raghunath Ram PW-3, Madan Ram PW-4 and Doodhnath PW-2 were recorded.
Then he proceeds to narrate the information about the appellant Uma @ Om Prakash and his arrest at about 17:15 on 3rd October, 2009. He further states that Uma @ Om Prakash in his disclosure statement had informed about having shot the deceased and also having hidden the country made pistol which had been utilized for the commission of the offence at a particular place. He then proceeded to carry out the recovery and upon having discovered the country made pistol along with an empty cartridge lodged in the barrel, sealed the same.
After the aforesaid recovery and arrest, he prepared the case diary and also recorded the statement of Mr. Vishwakarma, the Sub Inspector of Police who had prepared the inquest report. The site plan of the place of recovery was also prepared and the incriminating materials including blood stained earth and plain earth had also been recovered. The recovery memo was signed by the witnesses and at this stage it will be relevant to mention that the recovery memo pertaining to the blood stained earth and plain earth from the scene of occurrence is stated to have been witnessed by two villagers Jagpati Ram and Suresh Ram who were not produced as witnesses.
He has further stated having recovered one blank cartridge of 315 bore from the scene of occurrence which was also sealed and taken into custody.
Upon having received the information of accused Indradeo having been arrested, he went to the district jail where he interrogated the said appellant.
Thereafter, he has recorded the statements of the witnesses to the recovery and the incriminating material collected was sent to the forensic laboratory for examination about which details have been given.
During his deposition, the sealed bundle containing the country made pistol was opened before him that was testified to be the same country made pistol said to have been recovered by the said witness. The clothes of the deceased were also testified by him as also the two empty cartridges found in the barrel of the pistol and the other at the scene of occurrence were also proved by him. On his cross examination, he has categorically stated that the First Information Report nowhere nominates appellant Indradeo nor the informant Ram Shabad nominated him in his statement under Section 161 Cr.P.C. He has categorically stated that Doodhnath PW-2 was not staying at the time of incident in the village or on the date of the occurrence. He however denied the suggestions that he had not met Doodhnath at the place of incident. He further states that he had taken the statement of Doodhnath whose residence is about 15 kilometers away in a different village, yet denied having prepared the case diary himself or having dated the memos also.
The relevant extract of the statement about the source of light deserves mention, where the said witness has categorically stated that during investigation he was never informed about the source of light through a torch nor was any torch made available to him. He again however states that he was informed about a torch having been utilized but in spite of his request no torch was given to him and it is for this reason that he did not prepare any recovery memo relating to a torch. He has further stated that he was not informed about any source of light during occurrence at the place of incident.
He has then described the recovery of the country made pistol but he denied any public witness having agreed to become witness to the recovery even though many people were present. He sealed the country made pistol and the cartridge recovered and dispatched the same for being lodged in the Mal Khana whereafter it was dispatched on 6th November, 2009 to the forensic laboratory. He has denied any suggestions of making a false planted recovery. On further cross examination, he denied about any contrary suggestion relating to the preparation of the Panchayatnama/ nquest report. He also denied having consulted the informant before lodging the FIR.
PW-7, Sri Ram Vishwakarma, the Sub Inspector of Police was thereafter examined and who was dispatched by the Station House Officer, PW-6 to carry out the inquest. His statement assumes importance, inasmuch as, he has indicated that when he arrived at the place of incident along with the Station House Officer PW-6, he was called upon by him to proceed to carry out the inquest proceedings. The dead body was not there at the place of incident and the said witness categorically states having arrived in the hospital premises at Mau, where at the western gate he found the body of the deceased and the inquest report was prepared there at about 12:20 pm on 2nd October, 2009. He has proved the same as well as all the articles recovered and the sealing thereof. On 3rd October, 2009, he stated having proceeded for the arrest of the appellant Uma @ Om Prakash and has described his arrest as well as his disclosure statement and the recovery of the country made pistol in the same manner as was narrated by PW-6. In his cross examination, he has admitted that the recovery of the country made pistol was made from an open place near a public path. He however on a suggestion has stated that he did not see the country made pistol when he was being cross examined. Other suggestions were denied by him.
The next witness is PW-8 Rajesh Kumar Tiwari who is the constable and who is said to have prepared the check FIR relating to the fire arms recovery and he has proved the same.
Sub Inspector of Police Devendra Singh was examined as PW-9 who is stated to have recorded the statement of the accused Uma @ Om Prakash and accompanied PW-6. He also recorded the statements of those described in the FIR and proved the said documents. He also proved the sanction received from the District Magistrate for carrying out the prosecution under the Arms Act, and has testified about the country made pistol having been recovered near public road from an open place, the last witness to be examined as PW-10 is constable Rajesh Singh who was the Head constable at the police station who prepared the check FIR. He has proved the same as well as the entries made in the police diary as well as the other articles that were dispatched to the forensic laboratory for examination.
This being the entire evidence as narrated above ,Sri M.P. Yadav, learned counsel for the appellant has urged that the prosecution has not been able to prove the very genesis of the assault by the appellant Uma @ Om Prakash and his fleeing away from the scene as the presence of none of the witnesses of fact at the time of assault or even witnessing the fleeing away of the assailants is established.
He has invited the attention of the Court to the contradictions in the statement of PW-1 and PW-2 and has urged that in fact PW-3 and PW-4 had turned hostile. There is no ocular testimony worth believing credible enough to bring home the guilt on the appellant. He submits that there is a huge variation in the manner in which the witnesses are said to have arrived at the scene of occurrence, and also having witnessed the crime or the fleeing away of the appellant. The source of light is seriously disputed by him contending that according to the statement of PW-6, the Investigating Officer no such evidence of the source of light was made available or even produced and established before the trial court so as to corroborate the ocular version.
Explaining the injuries indicated in the postmortem report, he submits that the same is in clear contradiction to the narration in the FIR without there being any indication or remote possibility of all the four shots having been fired by one person alone. He submits that the FIR indicates a gun shot on the chest and other on the leg whereas no such injury was found on the legs of the deceased. He submits that the statement of PW-1 and PW-2 completely dislodge the manner in which the deceased was either carried to the hospital or brought to the police station. He submits that these two versions are completely opposed to each other and consequently, the statement of these two witnesses are absolutely untrustworthy. He then contends that PW-3 and PW-4 have turned hostile and urges that PW-4 Madan Ram is the real nephew of the deceased but even though has stated that he woke up after having heard the gun shot fire but he has completely denied having seen any of the assailants. Thus, the statement of PW-1 and PW-2 being contradictory and not being corroborated by PW-3 and PW-4,the same nowhere proves the genesis of the prosecution story.
Coming to the testimony of PW-3, he submits that Raghunath Ram being a teacher of the same school is a partisan and interested witness who has also become hostile.
In this background, he has castigated the statement of PW-2 Doodhnath the real brother in law of the deceased by contending that firstly, if the statement of Doodhnath is accepted to be correct that he was at his vending shop at Chirraiyakot Market then the same is two kilometers away and he could not either hear the shot nor he could have in the natural course of conduct arrived at the scene of occurrence to actually witness the crime being commissioned by the appellants from such a distance. For the distance, he has invited the attention of the Court to the FIR where he submits that Chirraiyakot Market is at a distance of two kilometers from Kamalchak village where the incident has taken place. He therefore submits that Doodhnath may have come later on but his entire testimony deserves to be disbelieved as he was not an eye witness nor did he see the occurrence at all. His presence is extremely doubtful. For this, he has also urged that PW-1 in his cross examination clearly stated that Doodhnath arrived after five minutes of the incident which was not possible for traversing a distance of two kilometers that too even after having heard gun shot fire at the dead of night. Thus all four witnesses of fact are absolutely unreliable and they have not witnessed either the commission of the offence or the fleeing away of the appellant Uma @ Om Prakash in the source of any such light as alleged by them and hence their creditworthiness completely falls through.
He then contends that there is no evidence relating to any medical examination of the deceased at the hospital at the time when he was declared dead. He submits that as a a matter of fact, the deceased does not appear to have been taken to the hospital, keeping in view the contradictory stand of the witnesses who have stated that the body was taken by them after having found the deceased to be dead to the police station. He submits that these two completely diametrically opposed versions clearly dilutes the prosecution story, and raises a fair doubt about the statements and testimony of the witnesses who cannot be relied upon which circumstance should be read in favour of the accused appellant.
On the issue of recovery, he submits that the provisions of Section 27 of the Indian Evidence Act have been clearly violated and the recovery is not in conformity with the same. The recovery is projected and is clearly a planted recovery, inasmuch as, there are no public witnesses as is evident from the statement of PW-6 and PW-7, and in the absence of any public witness the recovery from an open place is absolutely untrustworthy. He then contends that the recovery does not even match with the version of the prosecution, inasmuch as, four shots are alleged to have been fired and only two empty cartridges from two places are alleged to have been recovered. There is no evidence as to how many country made pistols or fire arms were used in order to fire four shots, and further there is no evidence to establish that the shots were fired simultaneously. He contends that if that was so then there ought to have been more than one assailant, and therefore the version in the FIR is absolutely false. He contends that as a matter of fact, none of the witnesses saw the occurrence at all, and it was only on the basis of some presumptions that the appellant has been falsely implicated. He has further submitted that the developments and exaggerations made in the statements have been complicated by the witnesses themselves by proceeding to implicate the other co-appellant Indradeo without there being any evidence to that effect and in such circumstances, the trial court rightly acquitted the appellant of the charges under Section 120-B IPC.
Coming to the issue of motive Sri Yadav submits that the alleged motive is absolutely frivolous, imaginary, inasmuch as, the allegation of a theft of tullu pump was nowhere established. Even if such an alleged theft was committed there was no document or report or any allegation at any point of time to establish that such a theft had been committed. He submits that even the existence of the tullu pump was not established, and therefore, this allegation of motive was a fanciful allegation which remains uncorroborated throughout the trial. He, therefore, submits that there being a complete absence of motive, there is no reason to infer the complicity of the appellant Om Prakash in the murder of the deceased.
He has then urged that it is evident from the statement of PW-1 itself that this entire episode was transacted after due consultation with the Police Officer concerned inside the police station who even provided the paper for the written report, and therefore, this story of the prosecution of implicating the appellant was set up in the police station without any person having witnessed the crime. Consequently, he submits that with all these lapses which are not minor lapses of investigation or gaps in evidence, the prosecution has completely failed to to prove the case beyond reasonable doubt, and consequently, the appellant Uma alias Om Prakash deserves to be acquitted and the judgment of the trial court which has omitted this line of investigation and enquiry deserves to be reversed.
Arguing on behalf of the second appellant Indradeo Ram, Sri K.K. Singh has urged that firstly PW-1, the informant is completely unsure about his place where he was sleeping on the fatal night. He has invited the attention of the Court to his examination-in-chief to contend that the first sentence of the testimony of PW-1 on this aspect recites that he was sleeping besides his father, but the very following statement in continuity states that he was sleeping inside one of the four rooms of the house along with his wife which had a door that was bolted from inside. He then submits that in his cross-examination the witness has used the word Verandah for describing his place for sleep. Thus, these contradictions clearly indicate about the variation made which according to him are major variations to disbelieve his testimony. He submits that this is necessary because this is a case of direct evidence where PW-1 has categorically stated having witnessed the commission of the offence as also the fleeing of the appellant which was seen by him in a torch light along with his wife. Sri Singh submits that his wife was never produced as a witness yet this description was being made without any certainty about the place where he was sleeping. He further submits that since it was dead of night, the place from which he could have sighted the assailant has to be categorical as he could not have been seen from behind closed doors. It has further been pointed out by him that the assailant is alleged to have fled towards the east meaning thereby that the witness was not in a position to see the faces and was witnessing their backs. There is no suggestion according to him that the witness had seen the assailant turning his face. In the absence of any such recovery and production of any torch, neither there was any source of light nor had PW-1 actually witnessed the same. To substantiate this he submits that had it been so, then there was no reason for PW-1 to have not nominated the appellant Indradeo Ram in the FIR itself, if he was sure about his presence.
Secondly, the FIR version was actually of having heard a shot whereas this stood converted in his statement of four shots having been fired by two assailants, namely, the appellants herein. He contends that there is no description as to how these shots were fired and there was any evidence of having reloaded the country made pistols. There is no averment that the assailants were carrying arms while fleeing. Thus, every action pertaining to the commission of the offence if viewed in the aforesaid light would leave no room for doubt that PW-1 did not witness the commission of the offence of murder.
So far as his fleeing away is concerned, it is submitted that had this been so, PW-1 would have atleast in his statement under Section 161 Cr.P.C. indicated about the name of the appellant Indradeo Ram. This statement was recorded on the same day when the FIR was lodged. In such circumstances, the memory of the witness cannot be said to be so short about such a material particular that he would forget the appellant's presence whom it is alleged had fled away from the scene of occurrence. In the given circumstances, it is urged by Sri Singh that PW-1 has nowhere seen the occurrence and with his testimony having altered after the charges were reframed, it is more evident that he had neither seen the occurrence nor the incident had taken place in the manner in which it was being described. He has further adopted the arguments of Sri Yadav in relation to the transportation of the body and has urged that the conduct of PW-1 and PW-4 who are son and real nephew respectively, also indicates that they were not witnesses of the crime at all. So far as PW-2 is concerned, he submits that he was at the best a highly interested chance witness who may or may not have arrived after the hue and cry was raised, but his testimony in no way corroborates the testimony of PW-1 and in the absence of any such supporting evidence and the fact that the statements of PW-1 are not credit worthy, the false implication of appellant Indradeo Ram is evident. He submits that no recovery of any incriminating material has been made from the said appellant, and consequently, for all the arguments so advanced and the inconsistency pointed out hereinabove as advanced for the appellant Uma, there is no reason to accept the verdict of the trial court which is based on surmises and conjectures.
Coming to the motive part which has been separately assigned to the appellant Indradeo Ram on account of a previous enmity due to a managerial dispute relating to a Institution, he submits that the dispute, if any, may have been between the appellant Indradeo Ram and one Jitanu Ram who was claiming himself to be the Manager. The deceased was not the Manager and was only a teacher in the Institution. In such circumstances to infer a managerial dispute with the deceased is absolutely preposterous and this is the own creation of the witnesses in order to implicate the appellant Indradeo Ram. He further submits that Jitanu Ram who was stated to be the rival claimant against the appellant Indradeo Ram is a very near relative of the deceased which fact has been admitted by PW-1 in his statement. In such circumstances, it is evident that there was a clear motive of falsely implicating the appellant Indradeo Ram for any such differences that may have existed but no such evidence was adduced to establish any such motive.
We have perused the record and we find that an application was filed for bringing on record the order passed by an Assistant Registrar Firm Societies and Chits relating to the managerial dispute but the said document has not been exhibited and has not been proved on record.
Sri Singh, therefore, submits that there is absolutely no motive. He further submits that the motive shown against the appellant Uma and that against the appellant Indradeo Ram nowhere matches at all, and are completely divergent without any foundation of any evidence. In the given circumstances, therefore, the issue of motive is absolutely ruled out and remains unsubstantiated. It is for this reason that no conviction was brought home under Section 120-B IPC which was the initial case of the prosecution.
He has then described the manner in which the information is said to have been tendered to the police station, at one place PW-1 has described that he arrived at 4:00 am whereas PW-2 has described his arrival at 3:00 am. PW-1 in his second cross-examination has stated that he had informed the police at about 2:00 am, the FIR was actually lodged at 6:35 am. There is nothing on record according to him to establish any of these timings and which are just imaginations of the witnesses who are some how the other trying to make statements which are clearly in contradiction with each other. He, therefore, contends that the timing of the FIR or the information given to the police station is also doubtful. The inconsistency in the statements relating to the transportation of the body, about the lodging of the FIR, as well as, the arrival of the witnesses on the scene of occurrence, therefore, also establishes, that if, the deceased had already died then there was no occasion for him to be transported to the hospital and on the other hand, if he was still alive and groaning, then why was he carted to the police station on a cycle-cart. He, therefore, submits that these two divergent statements and evidence on record not only raise a doubt but a reasonable doubt which clearly establishes the uncreditworthiness of the ocular testimony. The source of light having not been established and whether it was a torch of such propensity that it could have identified the assailants, the allegation of having seen the assailants fled away is absolutely untrustworthy.
Countering the aforesaid submissions, the learned AGA on the other hand contends that the direct testimony establishes the date, the timing and the place of the incident. The cause of death is clearly established from the post mortem report. The recovery having been made from the appellant stands corroborated by the evidence of the police officials who have recovered the country made pistol and two cartridges. The same is also substantiated by the forensic report on record and the country made pistol was clearly identified to have been recovered in the testimony before the Court by PW-6. He submits that the ocular testimony which corroborates this part of the story relating to the murder of the deceased, therefore, should be segregated and read against the appellants in order to believe the prosecution story and uphold the conviction and sentence of the trial court. He then submits that the trial court has carefully sifted the evidence and has rightly arrived at the conclusion that the part of the testimony, even of hostile witnesses, which is creditworthy cannot be discarded. He, therefore, contends that once the incident is established, the medical testimony has remained unimpeached then the surrounding circumstances and there being no other probable theory, the involvement of the appellants cannot be ruled out, and consequently, their conviction is justified. He submits that in view of the law laid down by this Court and the Apex Court time and again, there is no reason or even a special reason in this case to discard the entire testimony of the prosecution witnesses of fact which go a long way to prove the occurrence of the incident, the commission of the offence and the involvement of the accused appellants.
Learned counsel for the appellants have cited decisions to urge that if the ocular testimony which rests on a particular source of light has not been corroborated by any material evidence adduced in support thereof, then in that event, the appellants are entitled for the benefit of doubt. For this reliance has been placed on paragraph no. 12 of the Apex Court judgment in the case of Manzoor Suleman Vs. State of U.P. AIR 1983 SC 295. To the same effect is the judgment of the Apex Court in the case of Kapildeo Mandal & Others Vs. State of Bihar 2008 (1) JIC 612 paragraph no. 9. Replenishing the same, the learned counsel have further cited the decisions in the case of Vijay Shankar Vs. State of Haryana 2015 (12) SCC 644 paragraph no. 14 and another judgment of the Apex Court in the case of Iqbal & Another Vs. State of U.P. 2015 (2) JIC 645 (SC) paragraph no. 12. The last judgment in the said chain is that of the Division Bench of this Court in the case of Bhup Singh & Another Vs. State of U.P. 2015 (1) JIC 669 paragraph no. 19.
Having considered the submissions raised and the judgments cited at the Bar, we find that the trial court while having proceeded to convict the appellants and having found the charges proved except under Section 120-B IPC, proceeded to adopt a line of inquiry and reasoning which practically omits to consider, and then infer the impact of the evidence and its weight which was on record. We find that the First Information Report discloses the involvement of appellant Uma Ram alias Om Prakash without any recital or even remote indication about the involvement of the other appellant Indradeo Ram. The First Information Report has been lodged at 6:10 am in the morning which is quite prompt. In this background, we proceed to examine the statement of PW-1 informant, as well as, PW-2 Doodhnath to test their arrival at the police station. According to PW-1, he at one place commences the giving of the information at 2:00 am. He then states that he arrived at the police station at 4:00 am whereas PW-2 says that they went to the police station at 3:00 am. None of these timings have been corroborated by any material by the prosecution either through the case diary or any other material so as to establish that PW-1 and PW-2 arrived at the police station on any of the above timings on 2nd October, 2009.
We commence examining the arrival of P.W. 1 at the scene of occurrence. P.W. 1 has categorically deposed before the court that he was sleeping inside the room with his wife and on hearing the shots he came out and he and his wife with the aid of a torch saw the assailants fleeing away. He has improved upon this version by saying that all four shots were fired by the two appellants. If that was so then we find no reason or plausible explanation as to why the said witness who is the informant did not nominate Indradeo Ram in the FIR itself. Secondly, P.W. 1 did not nominate Indradeo even in his statement U/s 161 Cr.P.C. throughout the investigation. Thirdly if both the appellants had been seen by P.W. 1 and his wife then there is no explanation as to why the wife was not produced as a witness who could have been the best witness to corroborate the prosecution story along with P.W. 1.
Apart from this P.W. 1 about the source of light has stated the existence of a torch. As noted above the Investigating Officer has made a categorical statement that he was never informed of any such source of light either during investigation or thereafter, and upon having specifically requested on such information being given by the witnesses later on, no such torch was either produced or given to him for being made a material exhibit in order to prove the same. In our opinion also the non production of the torch in relation to an incident of almost mid night was essential and its non production, therefore, raises a serious doubt to which extent learned counsel for the appellants has rightly relied on the decisions referred to by him hereinabove. The source of light therefore, not being clear we find that the version of P.W. 1 of coming out of the room after having heard the shots also has not been explained to the extent so as to match with his testimony of having seen the actual commission of the offence.
Over and above the aforesaid reasons for discrediting the testimony of PW-1, we find that PW-1 has given three descriptions about his sleeping place. The first about sleeping with his father. This stands contradicted by his very next statement that he was sleeping in a room with his wife bolted from inside. Not only this another main door is also stated to have been closed. Thus admittedly when the shots were fired PW-1 was inside a closed room beyond the verandah with his wife. The third version came-forth is that he was sleeping in the verandah. These specific places where the witness was sleeping are at substantial variance from each other. Not only this he has described the place of incident to be fifteen feet away from where he was sleeping but on cross-examination he has described it at a distance of 6 lathas (1 latha is of 96"). Thus this distance has considerably increased and amounts to almost 50'. The incident is at the dead of night. The probability of sighting the assailants from such a distance that too even after having woken up suddenly has not even been discussed by the trial court nor this evidence has been assessed. In addition to this the direction in which the assailants are alleged to have fled towards the eastern side ordinarily would mean that even if PW-1 had woken up he could not see the faces of the assailants, who were fleeing away in an opposite direction. There is also no statement by any of the prosecution witnesses about the assailants carrying a fire arm. Even if their version that they had fired shots is believed, when four shots were fired, the probability of the number of assailants and carrying of arms has nowhere been indicated either in the first information report or in the case diary much less in the evidence. A cumulative effect of the aforesaid facts therefore further adds to the doubt raised on behalf of the appellants.
It is evident from the postmortem report that four shots were fired. If the shots were fired simultaneously then the possibility which can extend to a probability is of the presence of at least more than one assailant or may be three or four if the weapon used is a single barrel country made pistol. This is not the case of the prosecution and to the contrary the FIR only nominates the appellant Umaram @ Om Prakash. If this is the position then it is difficult to believe that the appellant Umaram @ Om Prakash was the only person who could have been sighted firing at the deceased if the firing had taken simultaneously. The other side of the coin is that even if it is assumed that shots were fired one after the other, then there is no evidence on record of any repeated shots having been fired or the country made pistols having been loaded or re-loaded. No witness has said about the possession or carrying of arms by the assailants while fleeing away. Thirdly, there is no recovery of any fire arm from the second appellant. Fourthly, the recovery of one single barrel country made pistol from an open place in this background does not inspire confidence inasmuch as the recovery has been made only of one empty cartridge alleged to have been lodged in the barrel itself when admittedly there are four bullet entry wounds. One empty cartridge is said to have been recovered from the place of occurrence by the Investigating Officer. It is not understood that if that is so then why was no such indication given by the informant either in his statement under Section 161 Cr.P.C. or even in the FIR even though the FIR is not supposed to be an encyclopedia. This also, therefore, raises a clear doubt that the recovery of only one fire arm being from an open place without there being any public witnesses to testify the same the recovery at the pointing out of appellant Umaram @ Om Prakash becomes highly doubtful.
Coming to one of the most crucial witnesses namely P.W. 2 who has tried to corroborate P.W. 1 we clearly find him to be untrustworthy for the reason that the place where he was staying on the fatal day was Chiraiya Kot Market which is at a considerable distance. There is no evidence led by the prosecution to indicate that this place was just next to the place of the incident in village Kamal Chak. To the contrary the evidence which is on record indicates that the distance of Chiraiya Kot Police Station which can be presumed to be in the near vicinity of the market is 2 Kms. away from the place of incident. P.W. 2 therefore, can not be in any way presumed to have travelled a distance of 2 Kms. From Chiraiya Kot Market to witness the commission of the offence and the fleeing away of the appellants. Even otherwise P.W. 1 has stated that he had arrived within 5 minutes of the incident. If that is also believed to be correct then too, if he had arrived after 5 minutes of the incident, it can not be understood as to how he could have at the dead of night visualized an assault by the appellants or the presence of the fleeing assailants. The testimony of P.W. 2 is therefore, entirely uncreditworthy except for the fact that he may have arrived at the scene long after and may have accompanied P.W. 1 to the police station.
Apart from this the two other witnesses P.W. 3 and P.W. 4 have not only turned hostile but have completely denied their presence and they having witnessed the commission of the offence by the appellants. P.W. 4 has only admitted his presence at the scene of occurrence after the incident but he has denied having seen the commission of the offence or the fleeing away of the appellants.
Amongst the hostile witnesses primarily is P.W. 4 who is the real nephew of the deceased. Apart from this P.W. 1 who is the son of the deceased in his subsequent testimony after the re-framing of the charges has completely taken a somersault. In the said circumstances it will not be possible to segregate the statements so as to read the statements of the prosecution witnesses in favour of the prosecution completely denying any doubt in favour of the accused. To the contrary the manner in which the entire story has been contradicted by the prosecution witnesses themselves and the absence of clinching corroborating evidence we do not find either the evidence or the circumstances to have supported the basic prosecution story of the involvement of the appellants nor the motive can be said to have been established.
The First Information Report has been lodged at 6:10 A.M. in the morning. In this background we proceed to examine the statement of P.W. 1 informant as well as P.W. 2 Doodhnath of their arrival at the police station. According to P.W. 1 he at one place mentions the giving of the information at 2:00 A.M. He then states that he arrived at the police station at 4:00 A.M. where as P.W. 2 says that they went to the police station at 3:00 A.M. Then there is their opposite version of having gone to the police station with the dead body of the deceased on a cycle cart shortly after the incident. None of these timings have been corroborated by any material by the prosecution either through the case diary or any other material so as to establish that P.W. 1 and P.W. 2 arrived at the police station on any of these timings on 2nd October, 2009. Contradicting this is their statement about having rushed to the hospital 32 Kms. away immediately after the incident where the deceased was found dead by the doctor. P.W. 1 states that he left the body on the western gate of the hospital and came to the police station whereas the prosecution diary and papers nowhere corroborate this narration. The timing of the FIR therefore casts a serious doubt about this entire description. P.W. 1 states that he consulted the Investigating Officer and then handed over the written report which has been denied by the I.O. in his testimony.
The transportation of the body to the police station which is the second version of P.W. 1 and P.W. 2 as against their first version of having gone to the hospital also does not appear to be credit-worthy, inasmuch as the inquest report has been prepared in front of the hospital. It is quite possible that they may have rushed to the hospital as stated earlier by P.W. 1 on a Jeep having found his father to be still alive and he may have expired during transportation which was almost a distance of 32 Km. In such circumstances the testimony of these witnesses of having gone to the police station in the dark hours of 2nd October, 2009 in the morning at 2:00 A.M. or 3:00 A.M. or 4:00 A.M. is highly improbable. The trial court has nowhere dwelt on this issue which counts for a major variation in the statements of the witnesses and can not be termed as a minor discrepancy inasmuch as the arrival at the police station and the transportation of the body is such an apparent and bare fact which can not be presumed to be forgotten even if the witness has been re-examined after two years. Thus, either the version of arriving at the hospital is correct or the testimony of P.W. 1 and P.W. 2 on this ground is uncreditworthy.
While deposing that he had also accompanied the cycle-cart, there is yet another fact which may be minor in nature but further adds to the embellishments attempted by PW-2 who has stated that he removed the slippers from the feet of the deceased whose body was carried on a cycle-cart to the police station. We are unable to comprehend that if this part of the version is correct, then the deceased was already dead when he was lifted from the scene of occurrence as stated by PW-1 and PW-2 both. This would have happened when he was lying on the cot and shot. He could not have put on his slippers while sleeping or put them on after being shot and therefore the question of removing his slippers at the police station is only an unnecessary embellishment that adds to the untrustworthiness of his statement. This is further supplemented about the description of the clothes on the body of the deceased by PW-2, that is contradictory in nature.
Now to examine the presence of the dead body in the hospital and the deceased being alive carried to the hospital, we find that P.W. 1 in his previous statement has indicated the groaning of his father at the time of incident but later on he has categorically stated that when he arrived after having heard the shots he saw his father lying dead. In such circumstances, if the witness P.W. 1 who is the son of the deceased has himself indicated his unsure state of mind about the status of the deceased, then what we find further is that there is no evidence to indicate that the deceased was examined by any doctor and had been administered any treatment when he arrived in the hospital. In such circumstances, what we find is that the deceased when brought to the hospital had already expired and there was no occasion therefore, for the witness to have deposed about the deceased being alive when he himself has admitted that he was dead when he arrived there. This contradiction in the statement of P.W. 1 not only raises a doubt but a reasonable doubt not only with regard to the mode of transportation of the body but also to the effect that P.W. 1 himself had not seen the commission of the offence. Had the said witness seen the offence and witnessed the firing of the shots it was quite possible for him to have assertively stated and consistently maintained the injured state of his father. To the contrary these circumstances leave no room for doubt that having found him dead they rushed to find some solace at the hospital where the deceased was declared dead. The place of inquest does not alter in the statement of P.W. 6 and P.W. 7. P.W. 6 is the person who had dispatched P.W. 7 to carry out the inquest. In the circumstances the inquest which was carried out 32 Kms. away leaves no room for doubt that the deceased had already died and the inquest does appear to have been prepared near the hospital gate itself. This, therefore, discredits the entire story of the transportation of the body to the police station immediately.
The discarding of evidence in its entirety in respect of hostile witnesses has not been approved of by the Apex Court. The two judgments referable on this count are Govindraju alias Govinda Vs. State By Sriramapurm Police Station and another, 2012 (7) SCC, 722 and 2014 2014(2) Veer Singh Vs. State of U.P., SCC, 455. The said judgments have been considered by a Division Bench of this Court in the case of Indra Sen Singh and others Vs. State of U.P. in Criminal Appeal Nos.287 and 377 of 2011 decided on 02.04.2018.
Applying the aforesaid principles, we find that the statement of all the witnesses including the two witnesses who were declared hostile during trial namely PW-3 and PW-4 as well as PW-1 and PW-2 who have altered their statements after the re-framing of the charge have rendered themselves uncreditworthy inasmuch they are not reliable at all. To the contrary the demeanour and their entire conduct during the trial renders their statements completely untrustworthy to the extent that the appellants are entitled to the benefit of doubt.
The Apex Court while dealing with the issue as to what are material particulars that may amount to a substantial variation went on to observe about the law relating to material contradictions in the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others Vs. State of Maharashtra, 2010 (13) SCC, 657. Paragraph nos.30 to 37 are extracted hereinunder :
30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan and Anr. AIR 2009 SC 152).
31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh , (2009) 11 SCC, 106).
32. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh ,(2009) 11 SCC 334).
33. In case, the complainant in the FIR or the witness in his statement under Section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar (2008) 15 SCC 440).
34. In State of Rajasthan v. Smt. Kalki and Anr. , AIR 1981 SC 1390, while dealing with this issue, this Court observed as under:
"8........In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (see: Syed Ibrahim v. State of A.P. AIR 2006 SC 2908; and Arumugam v. State ).
36. In Bihari Nath Goswami v. Shiv Kumar Singh and Ors., (2004) 9 SCC 186, this Court examined the issue and held:
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
37. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
Applying the aforesaid law we find that the contradictions in the evidence as discussed above are not minor contradictions for example, the ocular versions of PW-1 and that of PW-2 are full of contradictions as discussed above. PW-1 did not disclose the name of the appellant no.2 in the first information report inspite of his clear ocular testimony implicating him. This was done for the first time before the Court and therefore it lacks credence and can be discarded as indicated by the Supreme Court above. The discrepancies in the statement of PW-1 are not normal and are not expected of a normal person if we assess his statement with regard to his arrival at the police station or at the hospital with the corpus of the deceased that completely demolish the post incident scenario. This is not a normal discrepancy and even brings the timing of the first information report under a definite cloud which has not been cleared by the prosecution. The trial court has completely omitted to discuss this issue. These are exaggeration that can not be ignored when they are on record, that too in the evidence of the main prosecution witness PW-1.
In our opinion there are contradictions in material particulars which go to the root of the case namely, identifying the presence of the appellants at the time of the incident. The presence of PW-1 inside the house is established but his testimony having witnessed the assault and the assailants fleeing away from the scene is not established at all. Additionally as discussed above even the source of light was not proved as observed by the Apex Court in the judgments relied up on by the learned counsel for the appellants.
The aforesaid principle can be safely applied on the facts of the present case inasmuch as the arrival of PW-1 so as to establish his version of having actually seen the appellants or any other assailants along with his wife, PW-2 and PW-4 having assaulted the deceased has not been established beyond reasonable doubt. So is the fact of the fleeing away. The testimony of PW-1 assessed individually as discussed above is uncreditworthy and does not aid the prosecution version to cross the barrier beyond reasonable doubt.
From the discussions above it is evident that PW-2 Doodhnath Ram was not present at the time of the incident as per the evidence on record. PW-3 and PW-4 went hostile and the only evidence that was to be considered by the trial court was that of PW-1. In view of the discussions above the standard of proof of a single witness has to be tested on the parameters as per the observations by the Apex Court in the case of Lallu Manjhi and another Vs. State of Jharkhand, 2003 (2) SCC, 401 paragraph no.10 which is extracted hereinunder :
"The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable or wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness."
Thus neither the motive has been proved nor the ocular testimony clinches the identity of the assailants. It is evident that Indradeo was implicated by material embellishments later on. In this background even if we deny all possibility of refuge to the appellants, the prosecution has been unable to establish its case beyond reasonable doubt. A Division Bench of this Court has explained as what would a reasonable doubt mean in Criminal Appeal No.950 of 2013, Krishna Pal and another Vs. State of U.P. Decided on 07.02.2018. This issued has been further dealt with in the case of Suresh Chandra Jana Vs. State of West Bengal and others, (2017) 16 SCC, 466. In paragraph nos.15 and 16 the Court observed that :
"15. The function of the criminal court is to find out the truth and it is not the correct approach to simply pick up the minor lapses of the investigation and acquit the accused, particularly when the ring of the truth is undisturbed.
16. It may be mentioned that it is not every doubt but only a reasonable doubt of which benefit can be given to the Accused. A doubt of a timid mind which is afraid of logical consequences, cannot be said to be reasonable doubt. The experienced, able and astute defence lawyers do raise doubts and uncertainties in respect of evidence adduced against the Accused by marshalling the evidence, but what is to be borne in mind is-whether testimony of the witnesses before the court is natural, truthful in substance or not. The Accused is entitled to get benefit of only reasonable doubt, i.e. the doubt which rational thinking man would reasonably, honestly and conscientiously entertain and not the doubt of a vacillating mind that has no moral courage and prefers to take shelter itself in a vain and idle scepticism. The administration of justice has to protect the society and it cannot ignore the victim altogether who has died and cannot cry before it. If the benefits of all kinds of doubts raised on behalf of the Accused are accepted, it will result in deflecting the course of justice. The cherished principles of golden thread of proof of reasonable doubt which runs through web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."
The rules of appreciation of evidence require that Court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. The trial court has committed this error by picking out sentences for the purpose of convicting the appellants without analyzing the entire evidence as a whole as discussed hereinabove.
In the present case the evidence of the witnesses are so incompatible with the credibility of the prosecution version that justifies the conclusion that the prosecution has failed to prove the case beyond reasonable doubt.
Consequently, for all the reasons given hereinabove we do not find the findings recorded by the trial court to be sufficient to sustain the conviction and the sentence awarded to the appellants inasmuch as the entire evidence as discussed hereinabove was omitted to be considered by the trial court on the line of reasoning indicated in our discussion and therefore, we do not find the judgment of the trial court capable of being affirmed. We accordingly allow the appeals, set aside the impugned judgment of the trial court dated 5th June, 2013 and acquit the appellants of the charges for which they were convicted. It is informed that the appellant Umaram @ Om Prakash is still detained in jail whereas the appellant Indradeo Ram is on bail. Consequently, appellant Umaram @ Om Prakash shall be set at liberty forthwith and the bail bonds of both the appellants shall stand discharged. A copy of the judgment shall be dispatched to the court below for compliance and other formalities including observance of the provisions of Section 437-A Cr.P.C.
Both the appeals stand allowed accordingly.
Order date:- 10.07.2018 R./ARIF/S.Chaurasia/-