Allahabad High Court
Nathu And Others vs State on 2 May, 2017
Author: Bala Krishna Narayana
Bench: Bala Krishna Narayana
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 40 Case :- CRIMINAL APPEAL No. - 813 of 1991 Appellant :- Nathu And Others Respondent :- State Counsel for Appellant :- V.C. Katiyar,Pradeep Kumar,Raghuvansh Mishra,Rahul Mishra Counsel for Respondent :- A.G.A. Hon'ble Bala Krishna Narayana,J.
Hon'ble Arvind Kumar Mishra-I,J.
(By the Court) Heard Sri Rahul Mishra and Sri Pradeep Kumar, learned counsel for the appellants and Smt. Manju Thakur, State Law Officer for the State.
This appeal has been preferred by the appellants against the judgement and order dated 19.04.1991 passed by Ist Additional Session Judge, Badaun in S.T. No.17 of 1990, State Vs. Nathoo and others, by which the appellants have been convicted and sentenced to imprisonment for life under Section 302 read with Section 34 I.P.C.
Briefly stated the facts of this case are that deceased Dhanpal was on friendly terms with accused Nathoo (A1) and used to visit the latter's house. Accused Prem Pal (A2) and Jai Lal (A3) were the friends of Nathoo (A1). The deceased developed intimate relations with Smt. Sushila, wife of Nathoo (A1). About 10 days before the incident, Smt. Sushila eloped and Nathoo (A1) held the deceased responsible for it and started bearing enmity against him. On 29.07.1989, informant Balak Ram, deceased Dhanpal and Raja Ram, nephew of the informant were sleeping in the chaupal of Jagan. A lit lantern was hanging on the wall-peg. Balak Ram and Raja Ram also had torches with them. At about 11.30 P.M., the informant was awakened by some noise and he flashed the torch. He saw the three accused-appellants, all armed with pistols. Nathoo (A1) then said that Dhanpal had eloped with his wife, he will kill him. Thereafter, each of the three accused fired a shot at Dhanpal and he died on the spot. The informant and Raja Ram raised an alarm but none came to the spot. The accused-appellants then ran away towards east.
On 30.07.1989, the informant went to the police station with the village chaukidar, and gave a written report of the occurrence (Ext.Ka.1) at P.S.- Binawar, District- Badaun at 6.30 A.M., scribed by one Shiv Kumar Sharma. On the basis of the written report (Ext.Ka.1), check F.I.R. (Ext.Ka.13) and G.D. Entry (Ext.Ka.14) were prepared and a case, namely, Crime No. 341/89 u/s 302 I.P.C. was registered against the accused-appellants.
P.W.4 S.I. Chandra Shekhar Gupta was entrusted with the investigation of the case, who recorded the statements of the informant and the Head Moharrir at the police station and then reached the place of occurrence. He inspected the place of the occurrence on the pointing out of the P.W.1 informant Balak Ram and P.W.2 Raja Ram, and prepared its site plan (Ext.Ka.4). He then prepared the inquest report (Ext.Ka.5) and other related papers (Exts.Ka.6 to Ka.10). He got the dead body of the deceased sealed and dispatched for postmortem through Constable Ganga Saran and village chowkidar Om Prakash. On the same day, he interrogated P.W.2 Raja Ram and took blood-stained 'baan' of the cot and mattress from the place of occurrence and sealed them separately vide memo (Ext.Ka.11). He inspected the lantern which was said to be burning on the spot at the relevant time and also the torches of the complainant and Raja Ram and gave them back in their supurdagi, vide memo (Ext.Ka.2).
P.W.3 Dr. S.P. Behal, the then Emergency Medical Officer, District Hospital- Badaun, conducted the postmortem on the dead body of the deceased on 30.07.1989 at 4 P.M. According to his opinion, the deceased was aged about 22 years and had died about 3/4 day ago. The deceased was of average built. Rigor mortis was present in upper and lower limbs but had passed off from the neck. The doctor found the following antemortem injuries on the person of the deceased :-
(1) A firearm injury on the right side of abdomen 9 cm away from umblicus at 10 o'clock position size 2 cm x 2 cm x cavity deep. Direction medially and backwards. Surrounded by blackening and tattooing in an area of 6 cm circular. Margins charred and inverted.
(2) A firearm injury on the left side of skull at parietal bone 10 cm above the left ear, size 2 cm x 2 cm x skull deep. Margins inverted. Blackening and tattooing present.
(3) An abraded firearm wound on the right side of chest 9.5 cm above the nipple at 10 o'clock position, size 1.5 cm x 1 cm x skin deep. Tattoing present at margins.
(4) Multiple small puncted firearm abrasions on the right side of chest at and around clavicular area front of chest and right side of chin and face in an area of 18 cm x 10 cm. Tattooing of skin present.
On internal examination, the doctor found that in the antemortem injury of skull, there was a circular fracture in left parietal bone and its size was 2 cm x 2 cm. A long bullet was recovered from the brain matter. Membranes of the brain were lacerated and they corresponded to the skull injury. There was blood clot about 100 gms, in the left side of brain. Peritoneum was lacerated in the abdomen. Blood clot, weighing about 200 gms, was present in the abdominal cavity. Intestines were lacerated at places and 9 small pellets and two wadding pieces were recovered from the abdominal cavity. Indigested food was present in small intestine. Some faecal matter and gases were present in large intestine. According to P.W.3 Dr. S.P. Behal, the death of the deceased had been caused due to shock and haemorrhage as a result of antemortem injuries on the skull and stomach. The doctor prepared the postmortem report and proved the same as (Ext.Ka.3). The doctor sealed the bullet, pellets and wadding pieces which were recovered from the dead body and handed them over to the constable along with one vest, one underwear and one amulet which were worn by the deceased.
The Investigating Officer, after completing the investigation, submitted charge-sheet (Ext.Ka.12) against all the accused-appellants u/s 302 I.P.C. before Chief Judicial Magistrate, Badaun. Since the offence mentioned in the charge sheet was triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Badaun committed the the accused-appellants for trial to the Court of Sessions Judge, Badaun where the case was registered as S.T. No.17 of 1990, State Vs. Nathoo and others and made over for trial from there to the Court of Ist Additional Sessions Judge, Badaun, who on the basis of material collected during investigation and after hearing the prosecution as well as accused-appellants on the point of charge, framed charge u/s 302/34 I.P.C. against the accused-appellants. The accused-appellants abjured the charge and claimed trial.
The prosecution in order to prove its case examined as many as four witnesses of whom P.W.1 informant Balak Ram, father of the deceased and P.W.2 Raja Ram, nephew of the informant were examined as witnesses of fact while P.W.3 Dr. S.P. Behal, the medical officer who had conducted the postmortem on the dead body of the deceased and P.W.4 S.I. Chandra Shekhar Gupta, the Investigating Officer of the case were produced as formal witnesses.
The accused-appellants in their statements recorded under Section 313 Cr.P.C. alleged false implication in the case due to enmity and village partibandi. Accused-appellant no.2, Prem Pal further stated that he and the other accused-appellants were real brothers.
The accused-appellants examined D.W.1 Sri Arvind Kumar, Advocate Oath Commissioner and D.W.2 Sri Gyanendra Nath Gupta, Advocate Oath Commissioner to show that P.W.2 Raja Ram had twice on 07.03.1990 and 14.03.1990, sworn two affidavits (Exts.Kha.4 and Kha.3) in which he had mentioned that in the night of 29.07.1989 at about 11.30 P.M. he was sleeping in his field and that he had not seen the incident and that he had falsely been made an eye witness of the incident by Balak Ram.
Learned Ist Additional Sessions Judge, Badaun, after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record, both oral as well as documentary, convicted the accused-appellants u/s 302/34 I.P.C. and sentenced them to imprisonment for life.
Hence, this appeal.
It has been submitted by the learned counsel for the appellants that the F.I.R. in this case which is highly belated was scribed after due deliberations and consultations with the police after the dead body of the deceased was discovered falsely implicating the appellants and is ante-timed. The prosecution has miserably failed to prove the motive spelt out in the F.I.R. for the accused-appellants to commit the murder of the deceased. Learned trial Judge committed a patent error of law in placing reliance on the so-called eye-account of P.W.1 informant Balak Ram and P.W.2 Raja Ram who are father and cousin brother of the deceased and hence, highly interested in seeing the accused-appellants convicted for the murder of deceased on account of admitted previous enmity and whose presence at the time and place of occurrence is wholly unnatural and doubtful. The medical evidence on record neither corroborates the time of occurrence nor the manner in which the murder of the deceased was allegedly committed by the accused-appellants, as narrated in the F.I.R. Absence of any blood at the place of occurrence clearly indicated that the deceased had not been murdered at the place mentioned in the F.I.R. and after he was found dead, his body was brought from the place of actual occurrence to the chaupal of Jagan and kept there. Neither the recorded conviction of the accused-appellants nor the sentences awarded to them can be sustained and are liable to be set-aside.
Per contra Smt. Manju Thakur, State Law Officer appearing for the State advanced her submissions in support of the impugned judgement and order. She submitted that it is fully proved from the evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram that the deceased Dhanpal was murdered by the accused-appellants while he was sleeping in the chaupal of Jagan with P.W.1 and P.W.2 at about 11.30 P.M. on 29.07.1989. There is no material discrepancy in the medical evidence vis-a-vis the eye witness account. It was proved beyond all reasonable doubts from the eye witness account of P.W.1 informant Balak Ram and P.W.2 Raja Ram and other evidence on record that deceased Dhanpal was shot dead by the accused-appellants while he was sleeping on a cot in the chaupal of Jagan. Absence of blood below the cot on which he was sleeping at the place of occurrence is not sufficient to disbelieve the prosecution claim that the deceased Dhanpal was shot dead at the place mentioned in the F.I.R. The motive as well as the time, place and manner of attack as well as the identity of the perpetrators of crime stood fully proved from the evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram. The conviction of the accused-appellants recorded by the trial court is based on cogent reasons and the sentence awarded to them is supported by relevant considerations. The impugned judgement and order do not suffer from any illegality or legal infirmity and do not require any interference by this Court. This appeal lacks merit and is liable to be dismissed.
The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not ?
The first ground on which the learned counsel for the appellants have challenged the appellants conviction is that the F.I.R. in this case is ante-timed. There is an inordinate and unexplained delay of seven hours in lodging the same and upon perusal of the facts deposed by P.W.2 Raja Ram in the last paragraph of his examination-in-chief, it transpires that the same was prepared after due deliberations and consultations with the police and after the police had seen the deceased's body and inspected the crime scene, falsely implicating the accused-appellants on account of which the very foundation of the prosecution case is shattered and the entire case becomes suspicious and doubtful. Record of this case shows that the incident had taken place at about 11.30 P.M. on 29.07.1989 in the chaupal of Jagan in village Bhooripur, P.S.- Binawar, District- Badaun. The distance between the place of occurrence and P.S.- Binawar where the written report of the incident (Ext.Ka.1) was given by P.W.1 informant Balak Ram as mentioned in the check F.I.R. is about 8 km. The check F.I.R. (Ext.Ka.13) shows that the case was registered on 30.07.1989 at 6.30 A.M. As far as the question of delay in lodging the F.I.R. of the occurrence is concerned, in our opinion the same was satisfactorily explained by P.W.1 informant Balak Ram by deposing in his examination-in-chief on page 20 of the paper book that he had not gone to the police station immediately after the occurrence but had left for the police station in the early hours of the morning with the village chowkidar.
Now coming to the question whether the F.I.R. in this case was actually registered at 6.30 A.M. on 30.07.1989 or not, we have before us the evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram, the two eye witnesses of the occurrence. Another issue which is interconnected with this issue is that whether the police had arrived at the place of occurrence before the F.I.R. was registered and had then returned to the police station with P.W.1 informant Balak Ram and the village chowkidar and then the F.I.R. of the incident was registered or the police had arrived at the place of occurrence after the F.I.R. of the incident had been lodged by P.W.1 informant Balak Ram at P.S.- Binawar, District- Badaun where he had gone with the village chowkidar early in the morning after the incident had taken place at about 11.30 P.M. P.W.1 informant Balak Ram in his examination-in-chief on page 17 of the paper book has deposed that he had gone to P.S.- Binawar with the village chowkidar in the morning. He had got the written report of the incident scribed in front of the police station by a man and he had written whatever P.W.1 informant Balak Ram had dictated and after the contents of the written report were read over to him, he had put his thumb impression thereon. He proved the written report of the incident as (Ext.Ka.1). On the same page, he further deposed that the police had reached the village at about 10 A.M. However, P.W.2 Raja Ram in paragraph 27 of his cross-examination on page 41 of the paper book deposed that when the police had come to the village, thereafter P.W.1 informant Balak Ram had returned with the police to the police station and he had heard the police personnel telling P.W.1 informant Balak Ram that he should lodge the F.I.R. of the incident on which P.W.1 informant Balak Ram had gone to the police station with the police personnel. The aforesaid discrepancy in the testimonies of P.W.1 informant Balak Ram and P.W.2 Raja Ram on the point whether the F.I.R. of the incident was lodged before the police had arrived at the place of occurrence or the police on receiving information about the incident from some other source, had reached the place of occurrence and thereafter, returned with P.W.1 informant Balak Ram to the police station and then the F.I.R. of the incident was then lodged, gives rise to a very strong doubt that the F.I.R. of the incident is a product of police interference. It is significant to note that the learned D.G.C. (Criminal) did not recall P.W.2 Raja Ram for getting the facts deposed by him in paragraph 27 of his cross-examination clarified. Although, the prosecution case is that the F.I.R. was lodged at 6.30 A.M. on 30.07.1989 but the facts of the case and the evidence of the witnesses show that the F.I.R. could not have been lodged at 6.30 A.M. The distance between the place of occurrence and the place of incident is about 8 km. P.W.4 S.I. Chandra Shekhar Gupta, the Investigating Officer of this case, on page 56 of the paper book in his statement recorded before the trial court, has stated that it takes about four hours on foot to reach the police station from the village where the incident had taken place. P.W.1 informant Balak Ram in his examination-in-chief on page 17 of the paper book to which we have already referred to hereinabove, has stated that he had left for P.S.- Binawar with the village chowkidar early in the morning. Although he has not disclosed the exact time but we can safely presume that he had left for the police station between 4.30 and 5 A.M. by which time some light is visible in that part of the year in which the incident had taken place. P.W.1 informant Balak Ram in his statement has not deposed that he had gone to the police station by a vehicle. Therefore, we can safely infer that he had gone to the police station with the village chowkidar on foot and in that case, it was not possible for him to have reached the police station and lodge the F.I.R. at 6.30 A.M. after getting the same scribed in front of the police station and he could not have reached the police station before 8.30 A.M. Another very clinching circumstance which supports the argument of the learned counsel for the appellants that the F.I.R. in this case is ante-timed is that the police had arrived at the place of incident by jeep as deposed by P.W.4 S.I. Chandra Shekhar Gupta in his cross-examination on page 57 of the paper book around 11 A.M. which is the time at which the inquest had commenced as is evident from the perusal of the inquest report (Ext.Ka.5). Now the question which arises for our consideration is that if the F.I.R. in this case was lodged at 6.30 A.M., why it took more than four hours for the police to reach the place of incident. P.W.4 S.I. Chandra Shekhar Gupta, the Investigating Officer of this case, in his examination-in-chief on page 48 of the paper book has categorically deposed that the case was registered on 30.07.1989 at about 6.30 A.M. at P.S.- Binawar, District- Badaun in his presence and he had taken up the investigation of the case. There is no whisper of any explanation in his evidence for his failure to reach the place of occurrence promptly or atleast within a reasonable time. No prudent man can presume that it will take three or four hours for a police jeep to cover a distance of 8 kms.
There is another very significant aspect of the matter which was brought to our notice by the learned counsel for the appellants by referring to paragraph 16 of the statement of P.W.4 S.I. Chandra Shekhar Gupta, in which he had stated that the constable who had gone to Badaun to deliver the special report to the higher authorities had returned to the police station at 8 P.M. Placing reliance on the aforesaid extract of the statement of P.W.4 S.I. Chandra Shekhar Gupta, the learned counsel for the appellants has submitted that the aforesaid fact shows that the F.I.R. was written much later and was ante-timed and its special report was dispatched sometime in the afternoon on 30.07.1989. Upon going through the evidence of P.W4 S.I. Chandra Shekhar Gupta, we find that the time at which the special report was dispatched to the higher authority in Badaun has been deliberately suppressed by him and hence, an adverse inference can safely be drawn against the prosecution from the fact that the police constable who had gone to Badaun to deliver the special report to the higher authorities, had returned at 8 P.M. on 30.07.1989 that there was an inordinate delay on the part of the prosecution in dispatching the special report to the higher authority which indicates that the F.I.R. of the incident is ante-timed and it was not lodged at the time mentioned in the check F.I.R.
The next ground on which the learned counsel for the appellants has assailed the accused-appellants conviction is that the prosecution has miserably failed to prove the place of occurrence by any cogent and reliable evidence. As per the prosecution case, the deceased Dhanpal was shot dead by the accused-appellants while he was sleeping on a cot in the chaupal of Jagan along with P.W.1 informant Balak Ram and P.W.2 Raja Ram who were also sleeping on adjacent cots. Both P.W.1 and P.W.2 in their statements recorded before the trial court have deposed that the deceased was shot dead by the accused-appellants while he was sleeping in the chaupal of Jagan. P.W.1 informant Balak Ram in his cross-examination on page 23 of the paper book had further deposed that blood was spilled over an area of about 1 and ½ ft. on the ground and the Investigating Officer had collected plain and blood-stained earth from the place of occurrence. However, P.W.4 S.I. Chandra Shekhar Gupta, in paragraph 21 of his statement on page 25 of the paper book, has categorically deposed that he had neither found any blood under the cot of the deceased nor any pellet. The absence of any blood under the cot of the deceased although each of the accused-appellants had fired at him, gives rise to a very strong suspicion that the incident had not taken place at the place alleged by the prosecution and P.W.1 by deposing that a lot of blood was found spilled on the ground, had spoken a lie before the trial court.
The third ground on which the learned counsel for the appellants has castigated the accused-appellants conviction is that the prosecution has failed to prove the motive, as disclosed by the informant in the F.I.R., for the appellants to commit the murder of the deceased. It appears from the perusal of the F.I.R. and the evidence of the two witnesses of fact, P.W.1 informant Balak Ram and P.W.2 Raja Ram that Smt. Sushila, wife of Nathoo (A1) had eloped and Nathoo (A1) suspected that his wife had eloped with deceased Dhanpal and on account of aforesaid suspicion about 10 days before the occurrence, a quarrel had taken place between Nathoo (A1) and the deceased whereafter Nathoo (A1) had threatened to kill him and the murder of the deceased was the outcome of the aforesaid animosity. It is significant to note that there is nothing in the evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram which may indicate that either P.W.1 informant Balak Ram or P.W.2 Raja Ram had witnessed the alleged quarrel which had taken place between the deceased Dhanpal and Nathoo (A1) after which he had threatened to kill the deceased Dhanpal. No report regarding the alleged quarrel was lodged by the deceased with the police. There is also no direct evidence on record showing that the wife of Nathoo (A1) had actually eloped with the deceased and the theory of elopment is based primarily upon suspicion. Both the witnesses of fact had categorically deposed in their evidence that they had heard of Smt. Sushila, wife of Nathoo (A1) having an affair with deceased Dhanpal. The evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram on the point of motive is legally inadmissible being hearsay. Moreover, it has come in the evidence that Smt. Sushila had returned to her husband Nathoo (A1) and on the date of the occurrence, she was living with him. Thus, in the absence of any direct evidence of the incident involving the quarrel between the deceased and Nathoo (A1) in which he had allegedly stated over the elopment of Smt. Sushila, wife of Nathoo (A1) with the deceased whereafter he had threatened to kill Dhanpal, we cannot presume that no such incident had taken place and the motive spelt out by the prosecution in the F.I.R. and as later testified by the prosecution witnesses in fact appears to have been concocted for the purpose of the case. Thus, we hold that the prosecution has failed to prove the motive for the accused-appellants to commit the offence.
The fourth ground on which the learned counsel for the appellants has challenged the appellants' conviction is that the trial court had committed a patent error of law in placing reliance upon the evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram who claimed themselves to be the eye witnesses of the occurrence for the purpose of convicting the accused-appellants. In this regard, it has been canvassed that both P.W.1 informant Balak Ram and P.W.2 Raja Ram are closely related to the deceased Dhanpal. P.W.1 informant Balak Ram being his father and P.W.2 Raja Ram his cousin brother and hence, both were partisan and inimical towards the accused-appellants and highly interested in getting them convicted. Moreover, their presence as well as the presence of the deceased at the time and place of occurrence is absolutely unnatural. No reason has been given by P.W.1 informant Balak Ram for not sleeping in his own house. He has merely stated that on the date of the incident, his four sons, three daughters and his wife were sleeping in the house. He has nowhere deposed that no space was left for him and his son deceased Dhanpal to sleep in his house. The reason given by P.W.2 Raja Ram for P.W.1 informant Balak Ram sleeping along with the deceased Dhanpal in the chaupal of Jagan despite having their own separate fairly huge house in the village, does not inspire confidence. Moreover P.W.2 Raja Ram has failed to furnish any reason for his sleeping in the chaupal along with the deceased and P.W.1 informant Balak Ram, leaving the comfort of his own house. Before proceeding to examine the sustainability of the aforesaid ground of challenge to the accused-appellants conviction, we consider it proper to first have a glance at the law on the issue :-
The Apex Court in Waman and others v. State of Maharashtra reported in 2011 Crl. L.J. 4827 has observed in paragraph no.9 which reads as follows :
"In Balraje @ Trimbak v. State of Maharashtra, 2010 (70) ACC 12 (SC) = 2010 (90) AIC 32, this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the Court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same."
It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence, has to lay foundation if plea of false implication is made and the Court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. v. Naresh and others, reported in 2011 (75) ACC 215 (SC) = 2011 (106) AIC 76 (SC).
In Thoti Manohar v. State of A.P., reported in 2012 (78) ACC 511 (SC), it has recently been observed by Hon'ble Supreme Court that in case the occurrence partly takes place inside the house and partly outside it, the family members and the close relatives are bound to be the natural witnesses. They cannot be said to be chance witnesses but they are most natural witnesses. Further it has also been observed that the minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution.
Regarding evidentiary value of testimony of the interested or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another v. State of U.P., reported in 2012 (77) ACC 209, has observed in paragraph no.19 referring to the case of Namdeo v. State of Maharashtra, reported in 2007 (58) ACC 414 (52) = 2007 (54) AIC 162, that this Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law.
Thus, what follows from the reading of the aforesaid authorities is that in a case where the occurrence takes place partly inside the house and partly outside the family members and the close relatives are bound to be the natural witnesses and they cannot be said to be the chance witnesses. The mere fact that the witnesses are related to the deceased cannot be ground to discard their evidence. Both the natural witnesses and the chance witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law.
We now propose to evaluate the evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram on the touchstone of the principles enunciated by the Apex Court hereinabove.
The occurrence in this case had neither taken place partly inside the deceased's house nor partly outside it. Thus, the two eye witnesses, P.W.1 informant Balak Ram and P.W.2 Raja Ram cannot be said to be the natural witnesses. Both the witnesses admittedly have their own houses in the village which were at some distance from the place of occurrence. Both the witnesses have deposed that on the night of the occurrence, they along with the deceased had gone to sleep in the chaupal of Jagan. We have very carefully gone through the statements of both the eye witnesses and we have found that P.W.1 informant Balak Ram has failed to come up with any reason in his examination-in-chief for the deceased and himself not sleeping in their house. Similarly, P.W.2 Raja Ram has in his examination-in-chief deposed that P.W.1 informant Balak Ram and deceased had slept in the chaupal of Jagan due to paucity of place in their house but he has failed to come up with any reason for his sleeping along with P.W.1 informant Balak Ram and the deceased in the chaupal of Jagan. P.W.1 has not stated anywhere in his evidence that on the night of the occurrence, he was forced to sleep along with the deceased Dhanpal in the chaupal of Jagan due to scarcity of space in his house. Moreover, there is a material discrepancy in the evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram which creates a doubt about the genuineness of their claim of being the eye witnesses of the occurrence. P.W.1 informant Balak Ram in his cross-examination on page 20 of the paper book has submitted that the appellants had shot Dhanpal while he was sleeping and he had died instantaneously. However, P.W.2 Raja Ram in his cross-examination on page 38 of the paper book has stated that after Dhanpal had received injury, he had got up and sat on the bed and then he had fallen back on the bed. While getting up, he had made a distress call "ki dadaa chalo". But neither he nor P.W.1 informant Balak Ram assured him that they were coming. The aforesaid discrepancy in the statements of P.W.1 informant Balak Ram and P.W.2 Raja Ram gives rise to an irresistible conclusion that neither P.W.1 nor P.W.2 had witnessed the occurrence. The prosecution having failed to come up with any feasible explanation for the deceased, his father P.W.1 informant Balak Ram and his cousin P.W.2 Raja Ram choosing to sleep in the chaupal of Jagan, instead of sleeping in their own houses coupled with the absence of blood on the ground below the cot of the deceased evinces that neither the incident had taken place at the place mentioned in the F.I.R., as already held by us hereinabove nor any of the two eye witnesses had witnessed the same. Jagan, in whose chaupal murder of Dhanpal was committed would have been the best witness to prove the prosecution's claim that the deceased along with his father and cousin brother, had slept in his chaupal on the night of the incident, was strangely not produced as witness by the prosecution during the trial. Since no reason is forthcoming for non-production of Jagan as a witness during the trial, we have no option but to draw an adverse inference that in case he was examined as a witness, he would not have supported the prosecution case that the deceased Dhanpal and P.W.1 informant Balak Ram and P.W.2 Raja Ram had slept in his chaupal on the night of occurrence.
Thus, after a careful analysis of the evidence of P.W.1 informant Balak Ram and P.W.2 Raja Ram, we are of the view that the entire prosecution story which has been woven around the testimony of P.W.1 informant Balak Ram and P.W.2 Raja Ram that the deceased was shot dead by the accused-appellants at about 11.30 A.M. on the date of the incident while they were sleeping in the chaupal of Jagan, does not inspire confidence.
The final ground on which the learned counsel for the appellants has challenged the accused-appellants conviction is that the medical evidence on record does not corroborate the ocular evidence vis-a-vis the manner of incident. It is contended by the learned counsel for the appellants that the injuries found on the body of the deceased Dhanpal could not have been inflicted on him in case the shots were fired at him by the accused-appellants if he was sleeping on the cot with his head towards west and his legs towards east. P.W.1 informant Balak Ram in paragraph 10 of his statement has stated that the deceased was shot at while he was lying down on the cot. His head was towards east. The accused-appellants were at a distance of about 1 and ½ pace and Nathoo (A1) was facing westwards. The postmortem report of the deceased shows that the antemortem injury nos.1, 3 and 4 noted on the body of the deceased were on the right side of his body while antemortem injury no.2 was on the left side of the corpse.
It is contended that the aforesaid injuries could not have been caused while the deceased was sleeping if the shots were fired by the accused-appellants while standing at the feet of the deceased, as shown in the site plan (Ext.Ka.4). The direction of these injuries should have been upwards and thus the inconsistency in the medical and ocular evidence goes to show that the incident had not taken place in the manner alleged and also that the two witnesses produced by the prosecution had not witnessed the incident. In this regard, it would be useful to refer to the evidence of P.W.3 Dr. S.P. Behal, who had conducted postmortem on the body of the deceased. P.W.3 in his cross-examination on page 46 of the paper book has deposed that the antemortem injury no.1 found on the deceased's body could be caused only if he was shot from the right side. But if the deceased was standing, then the injury could be caused even if the shot fired by the assailant was from the front or from the right side. As regards antemortem injury no.2, he opined that the same could be inflicted only if the shot was fired by the assailant in a standing posture from the left side at the head. Qua antemortem injury no.3 , he stated that the same could be caused if the shot was fired from the right side and injury nos.3 and 4 could be caused by a single shot. The direction of none of the injuries was upward.
A perusal of the site plan of the incident (Ext.Ka.4) indicates that the three cots on which the deceased, P.W.1 informant Balak Ram and P.W.2 Raja Ram had slept, were laid in east-west direction. The deceased was in the middle. In the site plan (Ext.Ka.4), the position of the accused-appellants has been denoted by the letter "C" which is towards south-east of the cot of the deceased. The distance has been given as one pace. The accused-appellants were standing towards the feet of the deceased as both P.W.1 informant Balak Ram and P.W.2 Raja Ram have deposed that they had slept with their head towards west and legs towards east. In view of the evidence of P.W.3 Dr. S.P. Behal, if the shots were fired at the deceased from the point "C", which was from the right side of the deceased's bed while he was lying, in that case it was possible for the deceased to have received antemortem injury nos. 1, 3 and 4 which were described as firearm wound :-
1) on the right side of abdomen 9 cm away from umblicus at 10 o'clock position size 2 cm x 2 cm x cavity deep. Direction medially and backwards. Surrounded by blackening and tattooing in an area of 6 cm circular. Margins charred and inverted.
3) on the right side of chest 9.5 cm above the nipple at 10 o'clock position, size 1.5 cm x 1 cm x skin deep. Tattooing present at margins.
4) on the right side of chest at and around clavicular area front of chest and right side of chin and face in an area of 18 cm x 10 cm. Tattooing of skin present.
No explanation is forthcoming from the prosecution's side as to how the antemortem injury no.2 was caused if the shots were fired by the accused-appellants from the right side of the cot on which the deceased was sleeping with his head towards west and legs towards east while accused-appellants were standing in the south-east of the deceased's cot.
Thus, the inconsistency in the medical and ocular evidence goes to show that the incident had not taken place in the manner alleged and also that the two witnesses produced by the prosecution were actually not present on the spot.
Thus, after a meticulous marshalling of the facts of the case and a threadbare scrutiny of the evidence on record, we have no hesitation in holding that the prosecution failed to prove its case beyond all reasonable doubts. Neither the recorded conviction of the accused-appellants nor the sentences awarded to them can be sustained and are liable to be set-aside.
Thus, in view of the above, this appeal is accordingly allowed.
The impugned judgement and order is hereby set-aside.
The accused-appellants are acquitted of all the charges. They are on bail. They need not surrender. Their personal bonds are cancelled and their sureties discharged. However, the accused-appellants shall comply with the provisions of Section 437A of Cr.P.C.
Order Date :- 02.05.2017/KS