Nathoo And Others vs State Of U.P. on 22 March, 2022

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Allahabad High Court

Nathoo And Others vs State Of U.P. on 22 March, 2022

1. This appeal has been filed by four appellants, namely, Nathoo, Dambar, Tilak and Kaloo alias Raja Ram against the judgment and order dated 18.02.1986, passed by 1st Additional District & Sessions Judge, Budaun in Sessions Trial No.353 of 1984 whereby, the appellants Nathoo and Tilak have been convicted under Section 302 IPC whereas, appellants Dambar and Kaloo alias Raja Ram have been convicted under Section 302 read with Section 34 IPC and all of them have been sentenced to imprisonment for life. The appeal of appellants Dambar and Tilak, consequent to their death, was abated vide order dated 28.11.2018 therefore, the appeal survives qua appellant no.1 (Nathoo) and appellant no.4 (Kaloo alias Raja Ram) only.

INTRODUCTORY FACTS

2. On a written report (Exb. Ka-3), dated 17.03.1984, submitted by Dharmpal Singh (PW-3), a first information report (FIR) was registered at police station (P.S.) Bilsi, district Budaun, as Case Crime No.57 of 1984, at 18.15 hours, of which Chik FIR (Exb. Ka-4) and GD entry (Exb. Ka-5) was prepared/ made by PW-7. The allegation in the FIR is that on 17.03.1984, at 3.00 p.m., the informant (PW-3) was informed by Pappu (PW-4) that informant's nephew Itwari (the deceased), on his way back home, after extending Holi greetings, near the shop of Liladhar Murao (not examined), was stopped by accused persons, namely, Nathoo (appellant no.1); Dambar (the appellant no.2); Tilak (the appellant no.3); and others, who requested Itwari (the deceased) to smoke a Beedi (a leaf rolled and filled with tobacco). But, when Itwari refused to accede to their request, Nathoo and Tilak (appellants 1 and 3) inflicted injury on Itwari with the help of Ballams, thereafter, on exhortation of Dambar (appellant no.2), Tilak fetched his gun from his house and fired at Itwari (the deceased), which killed Itwari. It was alleged that Dambar's son Kaloo (appellant no.4) was also with the accused persons. In the FIR it was also alleged that at the spot Devendra (PW-6) and others were there and the informant including informant's brother Shivraj Singh (PW-5) also arrived and when they arrived, accused persons started pelting brickbat from roof top, in which, PW-5 received injuries. Making all these allegations and stating that the body of the deceased is lying at the spot, FIR was lodged.

3. The medical examination of Shivraj Singh (PW-5) was conducted on 17.03.1984 at 06.45 p.m. by PW-2. The medical examination report of PW-5 (Exb. Ka-2), prepared by PW-2, reveals:

(i) Traumatic swelling on the left clavicular region 8 cm x 2 cm in diameter. Kept under observation. Advised X-ray;

(ii) Bruise mark on the left clavicular region medially, 1 cm x 1 cm reddish.

(iii) Bruise mark on the left clavicular region laterally 2 cm x 1 cm reddish.

Opinion :- All the above injuries are caused by blunt object. No.(i) kept under observation. Nos.2 and 3 simple and fresh.

4. Though the police reached the spot in the evening but due to fading light, inquest was conducted next day morning, that is on 18.3.1984. Inquest report (Exb. Ka-6) was prepared by Jagdish Chandra Pathak (not examined) under the direction of the Investigating Officer (I.O.) (PW.-8). The inquest report notices that in the right hand palm of the deceased's body, there was a 12 bore country made pistol whose chamber had one empty cartridge.

5. On 18.03.1984, the I.O. (PW-8) lifted blood stained earth/plain earth from the spot of which memo (Exb. Ka-12) was prepared. The I. O. during spot inspection collected 25 pellets from the wall of Liladhar's shop, which were embedded therein, of which seizure memo (Exb. Ka-13) was prepared. In the site plan (Ex. Ka-14) prepared by the I. O. on 18.03.1984, the location of that spot from where pellets were recovered have been shown by letter X.

6. The autopsy of body of the deceased was conducted on 18.03.1984 at 4.00 p.m. of which, the autopsy report (Exb. Ka-1) was prepared by PW-1. The autopsy report, inter alia, reveals:

External Examination : Average built body, eye semi open, mouth semi open. Rigor mortis: passed upper limb, present lower limb. Ante-mortem injury :

(1) one gunshot wound of entry 1 cm x 1 cm x cavity deep on the epigastric region, margins are burnt and black. (2) one gunshot wound of exit 1 cm x 1 cm x cavity deep on the left of spleen region (upper part). (3) Incised wound 7 cm x 3 cm x fracture of lower jaw left side and in central part with fracture of 5 lower jaw teeth. (4) Abrasion 5 cm x 3 cm on the right clavicular region medial side.

(5) Abrasion 4 cm x 3 cm over the left side neck (sic), lower part.

(6) Abrasion 6 cm x 3 cm over the left wrist region (posterior).

Internal Examination : Spleen lacerated. Peritoneum punctured. Heart empty, blood found in the cavity and stomach contained 6 ounce of digested food, small intestine had faecal matter and gases.

Opinion :- Death is due to shock and haemohrage as a result of described injuries.

Estimated time of death:- One day before.

7. After investigation, PW-8 submitted charge-sheet (Exb. Ka-15) on which, after taking cognisance, the case was committed to the court of session. The court of session, vide order dated 03.09.1985, framed two charges against appellants Nathoo and Tilak. The first was of committing murder of Itwari, punishable under Section 302 IPC, and the other was of voluntary causing hurt to Shivraj Singh (PW-5), punishable under Section 323 IPC. Similarly, vide order dated 03.09.1985, the appellants Dambar and Kaloo alias Raja Ram were charged under Section 302 read with Section 34 IPC for the murder of Itwari and under Section 323 IPC for voluntary causing hurt to Shivraj Singh. The accused pleaded not guilty and claimed to be tried. At this stage, it be noticed that in both sets of charges, murder was alleged to have been committed at 3.00 pm in front of the shop of Liladhar Morao on whose shop's wall gun shot pellets were found embedded by I.O. (PW-8) and of which recovery was also made vide Exb. Ka-13.

PROSECUTION EVIDENCE

8. During the course of trial, the prosecution examined eight witnesses, their testimony is as follows :

9. PW-1 - Dr. M.K. Maheshwari. He is the Doctor who conducted autopsy of the body of Itwari. He proved the autopsy report and accepted the possibility of death having occurred at 3.00 p.m. on 17.03.1984. He stated that injury nos.1 and 2 were sufficient to cause death. Injury no.3 could have been caused by a Ballam, if it had sharp edges and injury nos.4, 5 and 6 could be caused due to friction and could also be caused by falling on a hard object. In his cross-examination, the Doctor stated that the deceased may not have died instantaneously and might have survived for 10-15 minutes. In respect of injury no.1, PW-1 stated that that could have been caused if the shot had been fired from a distance of less than 4 feet. PW-1 also stated that the injury nos.1 and 2 must have been caused by a bullet and not by pellets though that bullet may be of brass or of steel. In respect of injury no.3, PW-1 stated that that injury could be caused by a Pharsa but not knife.

10. PW-2 - Dr. R.C. Joshi. The Doctor, who examined PW-4 for his injuries on 17.03.1984 at 6.45 p.m. PW-2 proved the injury report (Exb. Ka-2) and stated that all the injuries noticed could be from a hard blunt object and could also be a result of bricks thrown at the injured. He stated that injury nos.2 and 3 were simple and fresh which could have been sustained around 3.00 p.m. on 17.03.1984. In his cross-examination, PW-2 stated that those injuries could not be self-inflicted but if the injured on his own gets bricks thrown at him then those injuries could be sustained. He denied the suggestion that he did not notice the injuries and has prepared a false report. The Doctor also stated that at the time when he examined the victim there was no first information report before him.

10. PW-3 - Dharampal Singh. (The informant) - He stated that the deceased Itwari was his nephew and on the date and time of the incident, at about 3.00 p.m., Devendra (PW-6) and Pappu (PW-4) came running and informed PW-3 that Itwari has been killed by Nathoo, Tilak, Dambar and Kaloo alias Raja Ram; that on receipt of the information, PW-3 and Shivraj Singh (PW-5) rushed to the spot; there the accused Tilak, Nathoo, Kaloo alias Raja Ram and Dambar threw bricks at them from their roof top which struck Shivraj Singh (PW-5), causing injuries. PW-3 stated that by the time they arrived there, Itwari had already died and his body was lying near a Jamun tree in front of the shop of Liladhar. PW-3 stated that thereafter he got a report scribed from Jogendra Singh (not examined) who read the report to him, whereafter he put his signature on it and, thereafter, his injured brother Shivraj Singh (PW-5) was examined in the hospital. He stated that before the incident, Pradhan's elections had taken place in which Ulfat Singh and Dambar (appellant no.2) were candidates; the informant party was canvassing for Ulfat Singh, as a result, the accused party bore enmity with the informant party. PW-3 stated that where the body of the deceased was lying is a place where members belonging to the caste of the accused, including the accused, have their Abadi; that their (accused persons') houses were at a distance of 10-15 paces away from the spot; that the accused belong to Morao caste whereas the informant party belong to Thakur caste; and there is party-bandi in the village. That day, it was Holi and the deceased had gone to visit village Sahbajpur to extend Holi greetings to his friends and relatives and along with him, Pappu (PW-4) and Devendra (PW-6) were there. PW-3 stated that when Itwari had gone to visit people and extend Holi greetings, he had not taken any weapon.

In his cross-examination, PW-3 stated - that the I.O. recorded his statement next day of the incident; that though he is not aware about the number of cases pending against Itwari but Itwari was prosecuted for the murder of Bangali and prior to that he was also prosecuted for murder of a lady; and that he is not aware whether a case of dacoity was also instituted against Itwari. He claimed ignorance of there being 5-6 cases relating to offence punishable under Section 25 Arms Act against Itwari. PW-3, however, admitted that Itwari was a history-sheeter and police used to visit him. On further cross-examination, PW-3 stated that Devendra (PW-6) is Bhanja (sister's son) of Itwari and a resident of village Matiyari though, Devendra used to stay in the village where the incident took place. PW-3 claimed ignorance as to whether the father of Devendra was also a history-sheeter.

In respect of the spot location, PW-3 stated that the spot where the body of Itwari was lying was 400-500 paces away from PW-3's house. PW-3 denied the suggestion that at the time when Pradhan's elections were on, Itwari was in jail. PW-3 stated that Pradhan's elections took place 5-6 months before the incident. He stated that in the village, members of Thakur community, to which he belongs, and Morao community, to which accused belong, reside in separate areas. He stated that to the best of his knowledge, prior to the incident, Itwari had never visited Morao Basti (colony). PW-3 stated that the house of Itwari was at a distance of 30-35 paces away from his own house. PW-3 further stated that Itwari, Devendra and Pappu had gone together to extend Holi greetings at about 1.00 p.m. On being confronted that he did not mention in the FIR that Devendra and Pappu had gone together with Itwari to extend Holi greetings, and that he had not made any such statement to the Investigating Officer during investigation, PW-3 stated that he had made a disclosure of that fact but if that was not written, he cannot tell the reason for the same. On being confronted that he had not mentioned in the report that along with Pappu, Devendra had also given information about the incident to him, PW-3 stated that he had mentioned this fact in his report but if that was left out, then he cannot tell the reason. He stated that when he and his brother Shivraj Singh had gone to the police station, village ladies were asked to guard the body. PW-3 admitted that the body of the deceased was lying in front of the shop of Liladhar. PW-3 stated that towards west of Dambar's house, there is house of Tilak and in between the two houses, there is Baithak of one Pranshu. He stated that when brickbats were thrown at them, the accused were on the roof top of the house of accused Dambar. At that time, apart from the accused persons, there were other members of Morao community also. PW-3, however, clarified that brickbats were thrown by the accused persons and not by others. He also clarified that the parapet of the roof was not high therefore all those who were throwing brickbats could be noticed.

On further cross-examination, PW-3 stated that the FIR was got scribed through Jogendra Singh while sitting near the body of the deceased and that it was delivered to the informant without delay. He stated that they reached the police station to lodge the report by about 6.00 p.m. and after leaving his brother (PW-5) at the hospital, he returned back to the village. PW-3 stated that he stayed over night near the body and when he arrived after lodging the report, ladies were not there. PW-3 stated that the Investigating Officer had arrived in the night of the incident. PW-3 denied the suggestion that Itwari was killed in darkness by some unknown persons on account of party-bandi and that the accused were falsely implicated. He also denied the suggestion that the report was lodged next day. He also denied the suggestion that Shivraj Singh (PW-5) self-inflicted injuries from bricks.

11. PW-4 - Pappu (Eyewitness) Aged 15 years. He stated that at the time of the incident he, Itwari and Devendra were returning after extending Holi greetings at village Sahbajpur and when they reached near Liladhar's shop, at about 3.00 p.m., Dambar, Tilak, Kaloo alias Raja Ram and Nathoo stopped Itwari. They asked Itwari to smoke Beedi to which Itwari refused by saying that he would not smoke with them as they are not persons with whom he has relations. On this, Nathoo and Tilak inflicted Bhala blows on Itwari. Whereafter, Kaloo alias Raja Ram and Dambar exhorted Tilak to fetch gun and shoot Itwari on which, Tilak went to his house to fetch his gun and thereafter, Tilak shot Itwari, as a result whereof, Itwari fell. As soon as Itwari fell, Pappu (PW-4) and Devendra (PW-6) effected their escape and, after reaching home, made a disclosure about the incident to PW-3 and PW-5.

In his cross-examination, PW-4 stated - that he went with Itwari to extend Holi greetings at about 1.00 p.m.; that Itwari and he belong to the same Mohalla and are of the same Khandaan (pedigree); that to give his statement in court he has been away from the village for the last three days; that the police had brought him and Devendra; that they had been staying at the police station. He stated that all the witnesses are staying at the police station voluntarily. He denied the suggestion that the police men had tutored him.

On further cross-examination, when confronted with his statement, recorded under Section 161 CrPC, that when he and Itwari were returning after extending Holi greetings, at the spot, they had seen Devendra, etc., PW-4 stated that he had informed the Investigating Officer that Devendra had also been with them to extend Holi greetings but if that was not written, he cannot tell the reasons for the same. He stated that they had gone to village Sahbajpur without eating anything at their house but at village Sahbajpur, they had Gujiya at Dalvir's house. On being confronted with regard to the omission in his statement, under section 161 CrPC, that he along with Devendra had rushed to inform PW-3 about the incident, he stated that that information was given to the Investigating Officer but if it was not mentioned by the Investigating Officer, he cannot tell the reason for the same. He stated that when they were on their way back, in front of Liladhar's shop, they saw the accused standing there; that two were armed with Bhalas and two were empty handed. PW-4 stated that he was ahead, followed by Itwari, and, thereafter, Devendra. He stated that when Itwari saw the accused, Itwari neither ran nor, he or Itwari, raised an alarm. Only when Itwari was killed, he ran away. On further cross-examination, PW-4 stated that though the shop of Liladhar was open but there were no customers. However, Liladhar was sitting in his shop. PW-4 stated that near the shop, Dharampal, Ram Autar and Hori Lal Murao's houses are there but none of them were present. When the accused saw Itwari, they asked him to smoke a Beedi and when Itwari refused, they inflicted Bhala blows. PW-4 stated that three Bhala blows were inflicted. Bhalas were pointed. The top was pointed, having a length equal to an arm and width of about one and half finger. PW-4 stated that after Bhala injuries were inflicted on Itwari, Dambar and Kaloo alias Raja Ram exhorted Tilak to fetch his gun; on which, Tilak ran to fetch his gun. At that time, PW-4 did not run away. After being inflicted Bhala injury, Itwari had fallen. Tilak fetched his gun from his house, which was at a distance of about 50 paces. The gun brought by Tilak was of full size. Tilak fired at Itwari, pointing downwards, from a distance of about one yard. A single shot was fired by Tilak and no other shot was fired. When the shot was fired, Tilak was facing towards the house of Liladhar, which is south of Rasta and the distance of shop of Liladhar from the place of incident is 10 paces.

On further cross-examination, PW-4 stated that when shot was fired at Itwari, Itwari was lying on the ground. PW-4 also stated that till Tilak could fetch his gun all the other three accused remained there. He clarified this by stating that there must have been 15 minutes time-gap between infliction of Bhala blows and causing of gun shot injury. He stated that where Itwari fell, it was brick path (Khadanja).

On further cross-examination, PW-4 stated that Munni is Itwari's cousin brother. He stated that he is not aware that Itwari had killed Munni's mother and that Itwari had also stabbed Munni at the time of Baraat (marriage procession).

PW-4 stated that after giving information about the incident he stayed at the house, whereas Dharmpal (PW-3) and Shivraj (PW-5) went to the spot. PW-4 stated that the accused, by that time, had run away. PW-4 stated that when the Investigating Officer had come, I.O. had called PW-4 to the spot, PW-4 had described the incident to I.O. PW-4 denied the suggestion that he did not witness the incident and that he is telling a lie on account of being part of that family.

12. PW-5 - Shivraj Singh. He stated that on the date of the incident, at about 3.00 p.m., Devendra and Pappu both came and gave information about the incident; at that time, he was with his brother Dharmpal (PW-3); thereafter, he and PW-3 rushed to the spot; there, Tilak, Dambar, Nathoo and Kaloo alias Raja Ram were noticed throwing brickbats at them from roof-top, which caused injuries; when, they raised an alarm, several other villagers arrived; by that time, Itwari had died; thereafter, report was lodged at police station Bilsi, from where he was sent for medical examination. He stated that prior to this incident he had no enmity with the accused except animosity on account of Pradhan's elections. As regards the relationship inter se accused persons, PW-5 stated that Kaloo is the son of Dambar; and Tilak is the nephew of Dambar. Nathoo though a relative, but not a close one.

In his cross-examination, PW-5 stated that the Investigating Officer had called him for recording his statement 15-16 days later. He admitted that against Itwari there was a case regarding murder of Bangali Thakur and also a case in respect of firing of gunshot at Munni's mother. He claimed ignorance about a dacoity case registered against Itwari.

On further cross-examination, he stated that the information about the incident was first received from Pappu whereas he met Devendra on the way. He stated that after receipt of information, PW-5 and PW-3 went to the spot but Pappu and Devendra did not accompany them though, on way, they met 10-15 other villagers, who went with them to the spot. He stated that when brickbats were hurled at them, they stopped, but, when other villagers arrived, they proceeded to the spot. At that time near the body there was nobody else, and when he received injury, except he and his brother there was nobody else. He stated that his brother (PW-3) was ahead and he stopped because of brickbats. He stated that brickbats were thrown from the roof over the Baithak adjoining the house of accused Tilak. He clarified by stating that the roof was over a joint Baithak of Tilak and Dambar. He stated that on the roof top, only accused persons were there. He stated that 5-10 bricks were thrown at him, out of which, one had hit him.

On further cross-examination, he stated that at the time when Pradhan's elections were held, Itwari was out of jail and after Pradhan's elections, he was not sent back to jail. He stated that Itwari was released from jail about 20-25 days before Pradhan's elections. He stated that in his presence there was never an altercation/fight between Itwari and the accused. He stated that though Ulfat Singh had won Pradhan's elections earlier, several times, but this time he lost to Dambar. He denied the suggestion that at the instance of Ulfat, he falsely implicated the accused.

13. PW-6 - Devendra. As Devendra was aged 13-14 years only, the court examined him to test whether he could be considered competent to depose. After being satisfied in that regard, he was permitted to depose. PW-6 stated that the deceased Itwari was his maternal uncle, he was killed at about 3.00 p.m; when Itwari was killed, he was present there; that he, Pappu and Itwari had gone to village Sahbajpur to extend Holi greetings and on their way back, when they arrived in front of the shop of Liladhar, there, Nathoo, Dambar, Kaloo and Tilak asked Itwari to smoke Beedi; when Itwari refused, Nathoo and Tilak started assaulting Itwari with Bhala, Itwari received two Bhala blows; immediately thereafter, Dambar and Kaloo asked Tilak to get his gun to finish him off, thereafter, Tilak brought his gun from his house and fired at the deceased (Itwari); till that shot was fired, he was present there, after that, he went back home, then, on way, he met Dharmpal (PW-3) and Shivraj (PW-5). PW-6 stated that prior to the death of Itwari, PW-6's mother had expired and after the death of his mother, he had been staying with his maternal grandfather Shivraj Singh (PW-5).

During cross-examination, when he was confronted with an omission in his statement recorded under Section 161 CrPC with regard to he, Pappu and Itwari having gone together to extend Holi greetings, he stated that that fact was disclosed to the Investigating Officer but if that was not written, he cannot tell the reason. PW-6 was again confronted with his previous statement made during the course of investigation wherein he had stated that while he was returning to his house after taking a round of the village, near the shop of Liladhar, he saw that Itwari was surrounded by Dambar, Kaloo, Tilak and Nathoo, to which he responded by stating that if that had been written by the Investigating Officer, he cannot tell the reason for the same. PW-6 was also confronted with an omission in his statement regarding the accused persons requesting Itwari to smoke Beedi, to which, he responded by stating that he had not disclosed the same to the Investigating Officer but that incident did happen in his presence. PW-6 also stated that he had not disclosed to the Investigating Officer that Tilak had also inflicted Ballam injury. PW-6 also stated that he did not disclose to the Investigating Officer that he met Shivraj and Dharmpal on way to his house. PW-6 also admitted that he had not told the Investigating Officer that Dambar and Kaloo had exhorted Tilak to get his gun to kill the deceased.

On further cross-examination, PW-6 stated that he only knows Harvir in village Shahbajpur and that he does not know the persons whom Itwari visited that day though, Itwari new them. PW-6 stated that he used to stay with his father but at the time of the incident he was staying at the village Behta Jabi (village where the incident took place) though, his younger brother and sister were staying with his father at village Gharchari (PW-6's father's village). PW-6 stated that this was the first Holi after the death of his mother and as per the custom, relatives visit the house where there is bereavement. He admitted that his maternal grandfather had carried Gujiya to his father's house. He stated that his maternal grandfather had returned next day morning and then he gave this information to him. He stated that the date of the incident was Holi day and people were moving around.

In respect of the incident, during cross-examination, PW-6 stated that on their way back, at the time of the incident, Pappu was ahead, followed by Itwari, who was followed by him. PW-3 stated that the accused held two Bhalas and they inflicted three Bhala blows, one was just above the stomach region, second was from back and the third was near shoulder joint. He stated that when Bhala blows were inflicted on Itwari, Itwari could not run because he was caught hold by the accused. He stated that when the shot was fired at Itwari, Itwari was standing but after the shot hit Itwari, he fell down. He stated that the shot must have been fired from a distance of 1 and ½ yards. After firing the shot, the accused ran towards the house of Liladhar. He denied the suggestion that he was not present at the spot and that what he is telling is a lie. He also denied the suggestion that Itwari had a gun with him.

14. PW-7 - Lal Singh. He proved the registration of the written report and preparation of its GD entry as well as chik FIR, which were exhibited as Exb. Ka-4 and Exb. Ka-5, respectively. He denied the suggestion that the FIR was lodged after autopsy.

15. PW-8 - D.P. Juwal. The Investigating Officer of the case. PW-8 stated that after registration of the case he started investigation on the same day and recorded the statement of the informant Dharm Pal and Head Clerk who prepared GD entry of the FIR and, thereafter, visited the spot; that, by the time he arrived at the spot, it was night and as sufficient light could not be arranged to conduct the inquest, a constable was deputed to stay there near the body; that he recorded the statement of Pappu, but witness Devendra could not be found; that effort was made to trace out the accused but they could not be found. He stated that because of darkness of the night, the police team stayed there overnight and in the morning of 18.03.1984, inquest proceedings were started. It is stated that the inquest report was prepared under his direction by Sub-Inspector Jagdish Chandra Pathak. He proved various papers in connection with inquest, autopsy etc. He stated that at the spot, he noticed a single barrel country made pistol, with one empty cartridge in its chamber, on the right hand palm, just below the wrist, of the deceased, which was recovered and sealed of which seizure memo (Exb. Ka-11) was prepared. He also proved lifting of blood stained earth/plain earth from the spot. He stated that at the time of inspecting the spot, he could collect 25 pellets from the wall of Liladhar's shop of which a seizure memo was prepared, which was exhibited as Exb. Ka-13. He stated that on the basis of inspection, a site plan (Exb. Ka-14) was also prepared by him. He stated that on 04.04.1984 he recorded statement of Shivraj and Devendra but, prior to this, despite effort, they could not be found and, after completing the investigation, on 18.05.1984, he prepared and submitted charge-sheet, which was exhibited as Exb. Ka-15.

During cross-examination, PW-8 stated that the empty cartridge recovered from the chamber of that gun was of 12 bore. He stated that he had recorded the statement of Liladhar and other persons who were there. He stated that Itwari was a history-sheeter. He stated that he reached the spot at about 8.00 - 8.15 p.m. though he did not remember whether men or women were there near the body when he arrived. He denied the suggestion that first information report was lodged after autopsy. He stated that Dharampal did not give any such statement that Itwari had gone without carrying a weapon. Dharampal had also not given a statement that with Itwari, Devendra and Pappu had gone to extend Holi greetings. He also stated that Dharampal did not inform him that information about the incident was given to him by Devendra. He stated that near the body he could not notice any brickbat. He stated that the site plan was prepared by him with the help of witness Pappu and Suraj Pal Singh. He stated that Pappu in his statement had not informed that Devendra was also with them; and that Pappu had also not informed that the accused had dispersed in all four direction. He also stated that the witness Devendra had not informed him that he, Pappu and Itwari were on their way back when the incident occurred. Various other omissions in the statement of Devendra were put to the Investigating Officer, which he confirmed.

16. The incriminating circumstances emanating from the prosecution evidence were put to the accused. As this appeal survives only in respect of appellant nos.1 and 4, namely, Nathoo and Kaloo, we propose to notice only the statement of Nathoo and Kaloo recorded under Section 313 CrPC. Appellants Nathoo and Kaloo denied their involvement in the incident and claimed that they have been falsely implicated on account of enmity generated during election of Pradhan.

TRIAL COURT FINDINGS

17. The trial court upon finding that on account of election of Pradhan there was enmity between two communities in the village; and the prosecution case was supported by an eye witness account of the incident, taking into account that the first information report was promptly lodged, convicted the appellants as above but, acquitted the appellants of the charge of offence punishable under Section 323 IPC.

18. We have heard Sri Indra Kumar Chaturvedi, learned senior counsel, assisted by Sri Shaurabh Chaturvedi, for the surviving appellant nos.1 and 4 (Nathoo and Kaloo alias Raja Ram); Sri H.M.B. Sinha, learned AGA, for the State; and have perused the record.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS

19. Learned counsel for the appellants submitted that admittedly the village was divided on caste lines because of Pradhan's election. The deceased was a history sheeter and spot inspection confirmed that there was a gunshot mark on the wall of Liladhar's shop, in front of which deceased's body was lying. A country made pistol was noticed in the right hand palm of the deceased. There is no explanation rendered by the prosecution in what circumstances a country made pistol was noticed in the hand of the deceased and why there was a gunshot mark on the wall of the shop. The prosecution is thus guilty of suppressing the genesis of the incident therefore, an adverse inference ought to be drawn against the prosecution. Further, the ocular account does not inspire confidence, firstly, with regard to the presence of PW-4 and PW-6, and, secondly, with regard to the infliction of Bhala injuries on the deceased more so, because the injuries found are not referable to a Bhala and, otherwise also, two persons have been attributed the role of causing Bhala injury whereas no punctured wound was found. The incised wound found could be referable to a Ballam only, if it had sharp edges. But the same is not proved by the description given. Further, incised wound is solitary; whereas, witnesses say that multiple blows were inflicted, which suggests that either none witnessed the incident or the incident occurred in some other manner but the FIR was lodged by guess-work on account of enmity. It has been submitted that since causing of gunshot injury, which alone was fatal, has been attributed specifically to co-accused Tilak, who is no more alive, and the evidence in respect of participation of the surviving appellants in the crime is not confidence inspiring, it is a fit case where they be given the benefit of doubt.

SUBMISSIONS ON BEHALF OF THE STATE

20. Per contra, learned AGA, submits that this is a case where the incident occurred in broad daylight; it was Holi time therefore, if the witnesses were moving together with the deceased to extend Holi greetings, the presence of those witnesses cannot be doubted; that the FIR was prompt; that during trial, the eyewitnesses have supported the prosecution case and have disclosed participation of the surviving appellants therefore, they have been rightly convicted. Non-explanation of the country made pistol in the hand of the deceased is not detrimental to the prosecution case as there is no explanation of the accused with respect to the incident occurring in any other manner. Further, incised wound can be caused by a Bhala or a Ballam, if it has sharp edges therefore, there is no such discrepancy between the ocular account and the medical evidence. Learned AGA, therefore, submits that this is a fit case where the appeal be dismissed and the judgment and order of the trial court be affirmed ANALYSIS

21. Having considered the rival submissions and having noticed the entire evidence led by the prosecution, before proceeding further, it would be useful to notice few broad features appearing in the prosecution evidence with regard to which there is no issue. These are: (a) the deceased was a history sheeter; (b) that in the village, where the incident occurred, few months before the incident there had been an election of the village Pradhan; (c) that dew days before the elections, the deceased had been released from jail; (d) that there were two rival candidates, namely, Ulfat Singh and Dumbar (one of the co-accused) for the post of Pradhan; (e) the deceased and his family supported Ulfat Singh, who lost the election to Dumbar (co-accused); (f) that all the accused were part of a common family or related to each other; (g) that the concerned village was factionalised to such an extent that residential areas were divided on caste lines; (h) that the incident occurred in an area dominated by the caste to which the accused party belonged; (i) that the deceased belonged to the other caste; and (j) that the incident occurred on a Holi Day.

22. As we have noticed that there was strong rivalry in the village and the deceased belonged to a group which had strong rivalry with the group to which the accused party belonged, it is a case where the evidence would have to be scrutinised carefully to exclude not only the possibility of false implication but also over implication. In Pandurang Chandrakant Mhatre and others v. State of Maharashtra, (2009) 10 SCC 773 (vide paragraph 60), the Supreme Court observed: "in cases involving rival political factions or group enmities, it is not unusual to rope in persons other than those who were actually involved. In such a case, court should guard against the danger of convicting innocent persons and scrutinise evidence carefully and, if doubt arises, benefit should be given to the accused." Similar view was expressed earlier in Muthu Naicker and others v. State of Tamil Nadu, (1978) 4 SCC 385. There, it was observed, that, in a faction-ridden society where occurrence takes place involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in a situation like this there is a tendency to involve as many persons of the opposite faction as possible therefore the evidence has to be examined with utmost care. In the light of the law noticed above and the background facts, while keeping in mind that the deceased himself was a history sheeter in whose hand a country made pistol was noticed, we would have to be cautious in scrutinising the evidence to obviate the possibility of false implication as well as over implication. More so, when the case turns purely on ocular account, which is not corroborated by recovery of the murder weapon alleged to have been used by the accused to inflict injuries.

23. An overview of the prosecution evidence reflects that the entire incident is in two parts with two separate sets of ocular account. First is the ocular account rendered by PW-4 and PW-6 relating to the incident wherein the deceased was killed; and the other is the ocular account of what happened thereafter, rendered by PW-3 and PW-5. The first part of the incident was in front of Liladhar's house when the deceased was stopped, asked to smoke a Beedi and, on refusal to do so, assaulted and eventually killed by a gun shot. The second part relates to accused persons pelting stones on PW-3 and PW-5 from roof-top, which was away from the first spot. The site plan Ex- Ka-14 reflects that these two spots are separated from each other by quite a distance. Therefore, proof of participation at one spot is by no means a proof of participation at the other. We thus have to deal with the evidence separately in respect of the two parts. In so far as the latter part of the incident is concerned, the accused have been held not guilty, that is, they have been held not guilty in respect of the charge of pelting stones from roof-top of which PW-3 and PW-5 are witnesses. Interestingly, PW-4 and PW-6 who are witnesses of the murder are not witnesses of the second part of the incident of which PW-3 and PW-5 were witnesses. Thus, we have to carefully scrutinise the evidence of PW-4 and PW-6 to find out whether their testimony as against the surviving appellants with respect to their participation in the murder of the deceased is confidence inspiring or it is a case where the surviving appellants have been named because of they being part of the rival faction. While examining the above aspect, we will also examine the probability of the incident having occurred in some other manner than alleged by the prosecution.

24. In so far as the testimony of PW-4 is concerned, it be noticed that he is the one who, according to the FIR, gave information about the incident. This witness stated that he accompanied the deceased to village Shahbajpur to extend Holi greetings and while they were returning, near the shop of Liladhar, the deceased was stopped by the accused and requested to smoke Beedi. When the deceased refused to smoke Beedi he was inflicted Bhala blows by Tilak and Nathu (surviving appellant no.1). Interestingly, in the FIR, there is no mention that PW-4 had accompanied the deceased in his visit to village Sahbajpur for extending Holi greetings. In so far as PW-6 Devendra is concerned, there are various omissions in his statement recorded under Section 161 CrPC including the fact that he accompanied the deceased and PW-4 to village Sahbajpur to extend Holi greetings. In fact, PW-6 was confronted with these omissions to which he had no explanation. Even PW-4 had not disclosed in his statement under section 161 CrPC that PW-6 accompanied PW-4 and the deceased to Shabajpur. Further, the I.O. did not find PW-6 in the village on the date of the incident. Notably, PW-6, in his statement under section 161 CrPC, with which he was confronted during his deposition in court, had stated that while he was returning to his house after taking a round of the village, he noticed the incident near the shop of Liladhar. In view of the above, the presence of PW-6 with the deceased and PW-4 at the time of the incident is highly doubtful. It could be possible that on hearing the gunshot he was driven to the spot as were others and met PW-3 and PW-5 while they were on their way to the spot as is also the version in the FIR. Thus, the star witness of the murder incident is PW-4.

25. On a careful reading of the entire deposition of PW-4, we find that there appeared no intention on the part of the four accused to assault the deceased initially, that is, till the deceased refused to smoke Beedi offered by the accused. Therefore how the intention to assault the deceased developed assumes importance because it is not a case where the accused attacked the deceased, after exhorting each other, as soon as they saw the deceased. Rather, it is a case where, initially, the accused extended a Beedi to the deceased, probably, to celebrate their election success, and when the deceased refused to smoke, two, out of the four accused, inflicted Bhala blows. And, thereafter, accused Tilak was requested to fetch his gun. An interesting feature noticed in the deposition of PW-4 is that while Tilak was fetching his gun, the accused, who had Bhalas, and had pin down the deceased, kept waiting for 15 minutes. This story is a bit unnatural to accept; because, if the accused wanted to finish off the deceased, why would they, having pinned down the deceased, wait, particularly, when they had pointed weapons, such as a Bhala, in their hand. This throws a serious possibility of the incident having occurred in a manner different from what has been alleged by the prosecution. In that scenario, we would have to be circumspect in accepting the ocular account unless it is thoroughly tested on all material aspects.

26. Before that, we may remind ourselves that the deceased was a history-sheeter and, importantly, at the time of spot inspection by the I.O., the deceased was found having a country made gun in his hand with an empty 12 bore cartridge in its chamber. More over, the I.O. had noticed gunshot marks and pellets embedded on the wall of the shop of Liladhar, in front of which the deceased was found lying dead. Notably, it is not a case of the prosecution that this weapon was planted by the accused party when the body was left behind to report the incident to the police. In fact, the informant (PW-3) by his deposition that ladies of the house stood near the body to guard it obviates the possibility of the weapon being planted. Further, the I.O. stated that, in the night, constables were deputed to guard the body. Under the circumstances, the possibility of someone planting a gun in the hand of the deceased appears remote. More so, when there appears no suggestion to that effect in the testimony of the prosecution witnesses. In that scenario, why that gun was there in the hand of the deceased and why there were gunshot marks on the wall of the shop are circumstances that assume importance of which we find no explanation in the prosecution evidence. That leaves us guessing whether the incident occurred in the manner alleged or the prosecution is contriving a story and hiding true facts. More so, when we notice from the testimony of PW-3 and PW-5 that from the roof-top, a bit away from the spot where the body of the deceased was lying, the accused persons were noticed pelting stones. No doubt, we are conscious that no cross version or self defence has been set up by the defence but the prosecution has to prove its case beyond reasonable doubt by leading evidence that inspires confidence. Once, a doubt arises as to whether the prosecution is hiding the genesis of the incident or true facts, it is difficult for the court to accept the prosecution case unless the evidence led in support thereof is carefully tested on all material aspects, particularly, in a case involving rival factions of a village.

27. In the light of the discussion above, we now proceed to test the prosecution case on the following aspects: (a) motive for the crime; (b) role of each accused implicated; and (c) whether the prosecution story appears natural and probable. In so far as motive is concerned, once we admit that there existed political rivalry, an underlying motive for the crime stands proved though, the precipitating cause for the incident, that is, refusal of the deceased to smoke Beedi, despite request of the accused persons, appears flimsy. But it is well settled that in a case based on ocular account, existence or non existence of motive pales into insignificance. We therefore do not propose to dwell more on this issue. In respect of the role of each accused, all the prosecution witnesses are consistent in so far as ascribing the gunshot injury on the deceased to Tilak (the deceased appellant no.3). Notably, there is a single gunshot injury of entry with corresponding exit, which, according to the doctor, was fatal. Bhala injuries to the deceased are ascribed to both Tilak and Nathu (surviving appellant no.1). But, as per the autopsy report, there is just a solitary incised wound noticed on the jaw region with fracture of teeth. Further, the ocular account of PW-4 and PW-6 is in respect of infliction of three Bhala injuries to the deceased. But, here, only one incised wound (supra) is noticed and, interestingly, there is no punctured or penetrating wound noticed which may correspond to a pointed weapon such as a Bhala. Notably, PW-4 does not disclose the site of the injury though, PW-6 deposes that Bhala injuries were inflicted on stomach, back and shoulder joint. Interestingly, no such injuries are noticed in the autopsy report. No doubt, according to the doctor (PW-1), incised injury noticed could be from a Ballam, if it had sharp edges, or it be from a Pharsa. PW-1 does not speak of possibility of that injury from a Bhala. On this aspect, learned AGA submitted that in many areas, the term Ballam and Bhala are used interchangeably. Therefore, if the pointed part of the Ballam or Bhala has a sharp edge, it may cause an incised wound. Hence, according to learned AGA, there is no conflict in the ocular account with the medical evidence in so far it relates to absence of a punctured or a penetrating wound. The above submission, in our view, might be acceptable where the nature of the weapon used has not been described and the court is left guessing as to which type of Bhala or Ballam is being adverted to by the witnesses. But, here, in the instant case, PW-4's testimony is specific in describing the nature of the Bhala alleged to have been used. PW-4 describes the Bhala used, as one having a pointed metallic tip equal to length of an arm with thickness equal to one and half finger. There is no disclosure that it had sharp edges. In such view of the matter, the weapon described in the ocular account would in all probability cause a punctured or penetrating wound and not an incised wound. Thus, the incised wound found on the body of the deceased is not attributable to the use of Bhala or to any other weapon assigned to the accused persons in the ocular account of PW-4. Other than that, there is a material difference in the number of injuries found on the body of the deceased than alleged to have been inflicted with a Bhala, as per the ocular account. In these circumstances, the court is left guessing whether PW-4 and PW-6 actually witnessed the infliction of Bhala blows or they had escaped from the spot as soon as the scuffle began. Once that is the position, we cannot rule out false implication or over implication on account of political rivalry. When all of this is noticed in conjunction with the fact that the deceased was a history sheeter and there appeared a country made pistol in his hand with a corresponding gun shot mark on the wall of the shop of Liladhar, in front of which the body of the deceased was found, it appears to be a case where the prosecution witnesses are guilty of suppressing true facts and not coming out with full disclosure about the incident. More over, the circumstances emerging from the entire prosecution evidence would give rise to multiple possibilities including of an incident where, on the occasion of Holi, on account of some altercation, a gunshot might have been fired by the deceased which was retaliated by an attack on the deceased by a group of persons of the rival faction. In this kind of a scenario, recording conviction for murder with the aid of section 34 IPC would not be safe, particularly, when it is not proved beyond reasonable doubt that any of the surviving appellants inflicted any specific injury to the deceased, which could prove fatal.

28. The conclusion drawn above, is also fortified by the circumstance that the eye-witnesses' account does not appear natural and probable. In this regard it be noticed that as per the eye witness account Bhala injuries were inflicted first, followed by gunshot. Interestingly, according to the ocular account, the accused wanted to finish off the deceased and, therefore, they requested co-accused Tilak to fetch a gun. If that was so, what prevented the accused, having Bhalas, from finishing off the deceased by inflicting multiple Bhala blows. More so, when, according to the prosecution evidence, the accused held two Bhalas and the deceased was pinned down by the assailants. But, here, interestingly, according to PW-4, the accused waited 15 minutes for Tilak to fetch his gun and fire shot at the deceased. In our view, though, nothing can be predicted about how one would react, be it a victim or an assailant, but, in the given situation, non use of Bhala to finish off the deceased, when the intention was to kill, is not a natural or probable conduct.

29. The upshot of the discussion is that the prosecution story and the evidence as against the surviving appellants Nathu (appellant no.1) and Kaloo (appellant no.4) does not inspire our confidence for all the reasons discussed above. Therefore, the benefit of doubt would have to be extended to them. Consequently, the appeal of the surviving appellant nos.1 and 4, namely, Nathoo and Kaloo alias Raja Ram, respectively, is allowed. The judgment and order of the trial court to the extent it convicts and sentences them is set aside and they are acquitted of the charges for which they have been tried and convicted. The accused-appellant nos.1 and 4 are reported to be on bail, they need not surrender, subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court below.

30. Let a certified copy of this order along with record of the court below be sent to the court below for information and compliance.

Order Date :- 22.3.2022.

Rks.

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Allahabad High Court