Allahabad High Court
Birnami And Another vs State Of U.P. on 22 April, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 45 Case :- CRIMINAL APPEAL No. - 5803 of 2007 Appellant :- Birnami And Another Respondent :- State of U.P. Counsel for Appellant :- R.C. Kandpal, Krishna Gopal, Krishna Kant Shukla, Lalit Kumar Mishra, P.R. Maurya, Pradeep Kumar Mishra, S.M. Khan Counsel for Respondent :- Govt. Advocate Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
(Delivered By Manoj Misra, J.)
1. This appeal is preferred against the judgment and order dated 24.08.2007/25.08.2007 passed by Sessions Judge, Rampur in Sessions Trial No. 496 of 2005 convicting the appellant no.2 (Tej Pal) under Section 302 I.P.C. and appellant no.1 (Birnami) under Section 302 read with Section 34 I.P.C., and sentencing them to imprisonment for life and fine of Rs. 10,000/- each with a default sentence of one year R.I. INTRODUCTORY FACTS
2. On a typed written report (Exb. Ka-1) submitted by PW-1 (son of the deceased - Sitaram) at 00.30 hours, on 07.07.2005, Case Crime No. 227 of 2005 was registered at P.S. Milak, District Rampur of which Chik FIR (Exb. Ka-15) was prepared. The allegation in the FIR is that on 06.07.2005, at about 9 pm, when PW-1's father (the deceased) was sitting on a cot, smoking a Beedi, the accused-appellants along with one unknown person came and, before the deceased could react, appellant no.2 (Tej Pal) fired a shot at the deceased. Upon which, PW-1, his brother- Sompal (not examined) and his uncle Indraman (PW-2), who were present there, and many others who arrived on hearing gunshot, made an attempt to apprehend the accused but they ran away, brandishing their weapons. It was alleged that the informant recognised the two named accused in the light of lantern and torch but could not recognise the third person. It was also alleged that the deceased was taken on a cart for medical attention but by the time they could cross the river the deceased expired therefore, he was brought to Police Chowki Param.
3. Inquest was completed on 07.07. 2005 by about 10.30 hrs at Police Chowki Param whilst the body of the deceased was on a Dunlop cart (a bullock cart with tyres). The inquest report (Exb. Ka-3) was prepared by S.C. Tyagi (PW-4). The inquest report notices that the body was wrapped in a bed spread / mattress and was lying in a supine position on that Dunlop cart.
4. Autopsy was conducted by Doctor M.A. Ali (PW-3) on 07.07.2005 at about 4.30 pm. Autopsy report (Exb. Ka-2), in respect of body condition and injuries, recites:-
(i) External Examination:-
Rigor mortis passed off in neck but present in both upper and lower extremities. No sign of decomposition.
(ii) Ante-mortem injuries:
Firearm wound measuring 5.5 cm x 4 cm x 16 cm situated over right side of upper part of abdomen, 12.5 cm below right nipple. Margins abraded and blackening present (wound of entry). The tract of wound directed inwards and upwards. No wound of exit found.
(iii) Internal Examination:-
(a) Seventh and Eighth ribs, on right side broken;
(b) Underlying pleura on right side lacerated;
(c) Right lung lacerated. 10 pellets recovered from right lung. Two litres of clotted blood present in right pleural cavity. Six pellets and one cock recovered from right pleural cavity. Left lung -NAD and Pale. Pericardium- NAD and pale.
(d) Heart - NAD and empty.
(e) Cavity- about 1 litre of clotted blood present in abdominal cavity.
(f) Stomach: NAD, 150 ml of semi-digested food matter present.
(g) Small intestine - NAD - digested food matter and gases present.
(h) Large intestine - NAD, faecal matter and gases are present.
(i) Liver - lacerated, 12 pellets recovered from liver.
(j) In all 28 pellets recovered from the body
(iv) Cause of death: Haemorrhage and shock due to ante-mortem firearm injury.
(v) The estimated time of death - About one day before.
5. After completion of the investigation, two persons, namely, the appellants, were charge-sheeted by PW-4 vide charge-sheet dated 22.07.2005 (Exb. Ka-14) on which cognisance was taken on 11.08.2005 and the case was committed to the Court of Session where, vide order dated 02.01.2006, the appellants were charged for offence punishable under Section 302 read with Section 34 I.P.C. The accused-appellants pleaded not guilty and claimed to be tried.
PROSECUTION EVIDENCE
6. During the course of trial, the prosecution examined four witnesses, their testimony, in brief, is noticed below:-
(i) PW-1 - Surendra (informant - son of the deceased). He stated that on 06.07.2005, at about 9 pm, while the deceased was smoking Beedi at the Baithak (sitting place) in front of his house and PW-1 was returning to the house, after serving water to the deceased, the accused - Birnami and Tej Pal, along with an unknown person, came and, before the deceased could realise, Tej Pal (appellant no.2) fired a shot at the deceased. All of this was witnessed by Sompal (younger brother of PW-1) and Indraman (PW-3 - brother of the deceased) and they made an effort to nab the accused but they ran away brandishing their weapons. PW-1 stated that he and the witnesses saw and recognised the accused in the light of lantern and torch though, they could not recognise the third unknown person. PW-1 stated that thereafter the injured was taken on a Dunlop cart for medical attention but, by the time they could cross the river Naurah, he expired. Therefore, they took the body on that Dunlop Cart to the police chowki Param. PW-1 stated that after parking the Dunlop cart there, he went to police station Milak where, on getting the report typed, he lodged the report after signing the same. The typed report was exhibited as Exb. Ka-1. PW-1 stated that accused were inimical to the deceased because government tap was installed in the premises of the deceased.
(ia) In his cross-examination, PW-1 stated that his house and PW-2's house are separate from each other. The deceased and PW-1 stayed in one house. The 'Baithak' where the deceased was sitting at the time of occurrence is on the outer side, below a shade (chhappar), open from three sides and towards north of the house. The distance between that 'Baithak' and the house is 8-10 paces. When PW-1 was about 5 paces away from the deceased, he heard gun shot, before that he could sense someone coming and when he turned, simultaneously, gun shot was heard and he saw three persons holding pistols in their hands. PW-1 stated that the shot was fired in his presence; and that shot was fired from a distance of about 1 feet and, immediately thereafter, the accused ran away. PW-1 stated that they chased the accused for 2-4 paces but returned to attend to the deceased who was lying injured. PW-1 stated that upto the Chowki he was accompanied by his brother (Sompal), his mother and PW-2 but other villagers, due to fear, did not accompany them though they had arrived at the spot. They reached Chowki at 10.30 pm where they informed Diwan about the incident but the report was not written. They stayed there for half an hour, whereafter, PW-1 went to P.S. Milak along with Diwan. They reached there by quarter to twelve. By that time the Bazaar was closed. At the police station, PW-1 met Daroga (I.O.) and informed him about the incident. Daroga told PW-1 to get the report in writing. Next to the police station, at the Tehsil, he found a man who got the written report typed. Prior to that, he had never seen that typist. That at that time there was just one typist available. The typist did not type his name in the report. The typed report was given at the police station at about 00.30 hrs. He denied the suggestion that the report was typed in the morning after sunrise and thereafter was given at the police station. He stated that the I.O. did not ask him as to from where he got the report typed. At this stage, the witness was confronted with his statement under Section 161 Cr.P.C. where he had not stated that the report was got typed at the Tehsil.
(ib) In respect of position of the deceased when the shot was fired, PW-1 stated that the shot had hit the deceased while he was sitting on the cot; the shot was fired from the right side. Blood had dropped on the cot.
(ic) In respect of conveyance used to lodge report, PW-1 stated that from Chowki Param, he went on a cycle with Diwan and returned back to the chowki on the same cycle; and that night they did not return back to the village.
(id) In respect of the time he served food to the deceased- PW-1 stated that that night he had served food to the deceased about 15 minutes before 9 pm. The deceased had consumed Roti and Sabji (vegetable) and after that meal he had gone to serve water to the deceased.
(ie) In respect of animosity- PW-1 stated that though there was animosity between the accused and his family but there was no pending litigation.
(if) In respect of source of light, PW-1 stated that he had a torch; and a lantern was hanging from the Chhappar. He had disclosed to the I.O. the spot where the lantern was hanging from the Chhappar but the I.O. had not taken the lantern into custody. He stated that he had also shown his torch to the I.O. but the torch was not taken into custody by the I.O. He denied the suggestion that he had not seen the incident in the light of torch/lantern as they were not there. He also denied the suggestion that he had not shown the torch and the lantern to the I.O.
(ig) In respect of the third accused, PW-1 stated that he did not know him. PW-1 also could not describe him by his height and body structure. He stated that all the three accused came together and were standing together at one place when they fired at the deceased. He denied the suggestion that it was dark therefore, he could not recognise the third person. He also denied the suggestion that it was dark at the place of occurrence. He also denied the suggestion that it was dark and he could not recognise any person. He denied the suggestion that the accused were not involved but have been falsely implicated on account of enmity. He further denied the suggestion that the accused-appellants neither brandished their weapons nor extended threats.
(ii) PW-2 - Indarman (younger brother of the deceased and uncle of PW-1). He stated that while he was standing on the rasta, in front of his house, he saw the accused-appellants and one another coming out of their house and going towards the house of the deceased. Seeing them together, PW-2 also went towards the house of the deceased when he saw accused (Tej Pal-appellant no.2) firing a shot at the deceased. Thereafter, PW-2, PW-1, PW-1's brother (Sompal) and PW-1's mother challenged the accused and tried to catch them but the accused ran away brandishing their weapons and extending threats. PW-2 stated that, at that time, there was a lantern hanging from the Chhappar and he had a torch in his hand and in the light thereof, he saw the incident and could recognise the accused. He stated that after the incident, they took the deceased on a Dunlop cart for medical attention at Milak but the deceased died on way and, therefore, they took the body to Param Chowki. From Chowki, PW-1 went to the police station to lodge the report.
(iia) In his cross-examination, PW-2 stated that his house and the house of the deceased are separate with separate entrance. He stated that soon before the incident, the deceased has had his food. At the time of the incident, PW-2's wife and children were inside the house. He stated that, during investigation, he had informed the I.O. that he was standing on the rasta at the time of the incident but when confronted with the omission in that regard, he stated that if that was not written, he cannot tell the reason for the same. He denied the suggestion that he is lying that he was standing on the rasta at the time of the incident and therefore he had not made disclosure of this fact to the I.O. He admitted that he had not informed the I.O. that there was lantern hanging from Chhappar and that he had a torch in his hand. He, however, denied the suggestion that he did not make disclosure of the lantern hanging from Chappar and about the torch in his hand because they were not there. Immediately, thereafter, he stated that he had informed the I.O. about the lantern and the torch. When PW-2 was confronted with the omission in his statement in that regard, he stated that if that was not mentioned in his statement under Section 161 Cr.P.C., he cannot give its reason.
(iib) On further cross-examination, he stated that at about 9 pm, on the day of the incident, he had come out to urinate, then he spotted the accused roaming and by the time he could finish urinating, he heard gun shot. As soon as gun shot was fired by accused-appellant (Tej Pal), he arrived at the spot where he saw deceased's both sons and wife and other than them there was no one else there. PW-2 stated that after being hit by the gun shot, the deceased fell there. Thereafter, the deceased was taken on a Dunlop cart. He stated that the distance between Param Chowki and the spot is 3-4 kilometer. He stated that he had accompanied the cart up to police chowki Param. Thereafter, as the body of his brother was kept at the Chowki, he remained at the Chowki, whereas, PW-1 went to police station Milak to lodge the report. He stated that from the spot to Chowki Param, it took them about 45 minutes. He stated that from Milak, police personnel had arrived in the night between 12.00- 1.00 pm and they were there at the Chowki till day break. Thereafter, they brought the body to the police station by about noon. He stated that when PW-1 had gone from Chowki Param to Police Station Milak, a constable had accompanied him.
(iic) On being queried as to whether the accused had covered their faces, he stated that their faces were not covered. He stated that since before the incident there were disputes between the deceased and accused-appellants (Tej Pal and Birnami); and that a month before the present incident, there was a fight though no one had received any serious injury; that incident had occurred at 8-9 am in the morning but that incident was not reported and no information of that incident was given to the I.O. In respect of the present incident, his statement was recorded next day of the incident. He stated that he had also informed the police personnel of the police chowki about the incident but when they were informed, the I.O. was not present. He stated that he was not asked by the I.O. to handover the batteries (should be read as torch) therefore, he had not shown the batteries to the I.O.
(iid) In respect of the direction in which the deceased was sitting at the time of the incident, he stated that the deceased at the time of the incident was sitting on a cot smoking a Beedi; deceased's face was towards East and deceased's house was towards West; whereas, the Chhappar was overhead. PW-2 stated that deceased was shot from the Galliyara (lane) located towards East of that Chhappar. When he was questioned as to whether he is aware about directions, PW-2 stated that he is aware of the directions. He denied the suggestion that there is no Galliyara towards the East of the Chhappar of the deceased. He stated that Chhappar of the deceased joins his house towards North. He stated that in between his and deceased's house there is Kothri and near the Chhappar, apart from his house, there is no other house. He denied the suggestion that he did not witness the incident and as the incident involved the murder of his brother, he has told lies.
(iii) PW-3- Dr. M.A. Ali. He proved the autopsy report which was marked as Exhibit Ka-2. He stated that death of the deceased could have occurred in between 9 pm to 11 pm on 06.07.2005.
(iiia) In his cross-examination, he stated that the position from where the shot was fired at the deceased must have been lower than the position at which the deceased was when he was hit by the shot. He stated that if shot is fired from a distance less than 2 feet blackening would be noticed though it depends upon the nature of the gun powder in the bullet as also the clothes worn by the deceased. He stated that scorching and tattooing would be noticed if the shot is fired from a distance between 1 to 2 feet but it all depends upon the nature of the firearm.
(iiib) In respect of his estimation with regard to the time of death, he stated that there could be a variation of plus-minus 4 to 6 hours.
(iiic) In respect of presence of semi-digested food material in the stomach of the deceased, he stated that this suggests that the deceased might have had his meal 4-6 hours before. He stated that if the deceased had died about 10 pm, he might have had his meal at around 4.30 pm and if he had died at about 4.30 pm then he might have had his meal between 10-10.30 am.
(iv) PW-4-S.I. S.C. Tyagi (Investigating Officer). He stated that on the date of lodging the first information report he was posted at P.S. Milak as Sub-Inspector and he took over the investigation of the case under the direction of the Station House Officer. After taking over the investigation of the case, he recorded the statement of Chatrapal Singh, who had prepared the Chik FIR and the GD Entry of the receipt of the written report; thereafter, he recorded the statement of the informant. Vide GD Report No. 2, he left for police chowki Param along with other police personnel where he saw the body of the deceased. The body of the deceased was inspected but as it was late night, the inquest was deferred to morning and was, accordingly, conducted in the morning. He proved the inquest report. He stated that after the inquest, the body was sealed and papers in respect of autopsy were prepared. At the time of sealing the body, pieces of bed-sheets and mattress were taken whereafter, he proceeded to the spot. At the spot, the site plan was prepared on the instructions of PW-2. The site plan was exhibited as Exb. Ka-10. PW-4 stated that he took blood stained pieces of the cot where the deceased was sitting and prepared a memorandum thereof, which was marked Exhibit Ka-11. He stated that in that cot there was bed sheet and mattress which were blood stained and he took their pieces of which seizure memo (Exb.Ka-12) was prepared. He also proved lifting of blood stained and plain earth from the spot of which seizure memo prepared was exhibited as Exb. Ka-13. He stated that the accused - Birnami was arrested on 09.07.2005; whereas, the accused-Tej Pal was arrested in PW-4's absence on 16.07.2005. He stated that after he recorded the statement of the eye-witnesses including Sompal (other son of the deceased) and Premwati (wife of the deceased), charge-sheet was prepared and submitted, which was exhibited as Exb. Ka-14. He stated that the articles seized were sent for forensic examination. He stated that at the time of inquest, the deceased was wearing a Kurta, Aangocha and an underwear which were sealed and sent for forensic examination. He produced plain earth/blood stained earth, clothes etc. which were made material exhibits. He proved the signature of Chhatrapal - constable, who prepared the Chik FIR, and stated that Chhatrapal could not be produced as a witness because he is on VIP duty and there is no possibility of him being available. On PW-4 recognizing the signature of Chahtrapal, the Chik FIR and the GD entry of the report were exhibited as Exb. Ka-15 and Exb. Ka-16, respectively.
(iva) In his cross-examination, he stated that the FIR was registered in his presence. At the time of registration of the first information report, 2-3 persons had come for lodging the first information report. He, however, could not tell the conveyance used by the informant to reach the police station. He stated that the FIR was scribed at the police station. Immediately thereafter, he stated that it was already written. He stated that from village Koop (place of occurrence) if one comes to the police station, Param Chowki falls in between. PW-4 stated that the informant had informed that the body of the deceased was lying at Param Chowki. He stated that he left the police station at 12.30 am (0030 hours) to reach Param Chowki; the informant had accompanied them; and police personnel had gone on a Jeep. He stated that the statement of Chik maker and the informant was recorded at the police station. He stated that the distance between Param Chowki and the police station would be 8-10 kms. PW-4 took about an hour to reach Param Chowki as the road was very bad. On reaching Chowki, the body of the deceased was seen and PW-4 stayed overnight at the Chowki where family members of the deceased were also present. Amongst villagers, Kripal and others were also there; that there must have 10-15 people there. He stated that though PW-2 was present at the Chowki but his statement was not recorded then, and no step in furtherance of investigation was taken there. He stated that no separate order was passed for him to investigate the case, in fact the SHO (Amrit Lal) was also present at the time of lodging the FIR and the order in respect of investigation of the case by PW-4 was written in the Chik FIR itself.
(ivb) In respect of the investigation being assigned to him, PW-4 stated that the investigation was assigned to him because the incident occurred within his Halka (circle). He stated that he does not remain at the Chowki during night but is either on round or at the Thana. He stated that, that entire night the body remained on Dunlop Cart and the proceedings commenced in the morning between 8 and 9 am. He stated that sun rise must have occurred between 6.00 and 6.15 am. He stated that at the time of inspection of the body, the body was on a mattress and a bed-sheet, which were soaked with blood, but there was no blood on the dunlop cart. He could not tell as to what mode of transport was used for carrying the body from the Chowki to Sadar Hospital. He stated that uncle of the informant, namely, PW-2, took him from police chowki to village Koop i.e. the place of occurrence.
(ivc) In respect of the description of the spot i.e. the place of occurrence, PW-4 stated that a cot was seen at the Baithak. The Baithak was covered by Chappar. He could not tell whether mattress/ bedcover was there on the cot but the cot had blood stains. He could not tell the exact portion of the cot in which blood stain was present but stated that there was blood also on the floor in a dimension of 2-3 inches as was on the cot. He stated that the informant did not have a separate room but the entire family used to reside at one place in the house.
(ivd) In respect of various other steps during investigation, he stated that eye-witnesses of the incident were informant (PW-1), his brother Sompal, his uncle (PW-2) and informant's mother and no other. He stated that the statement of deceased's wife was recorded on 22.07.2005 because earlier, when he visited the spot, she was not found. He denied the suggestion that on the day of the incident, wife of the deceased was not present. He stated that he had prepared the site plan on the instruction of (PW-2). He stated that on 09.07.2005, he had arrested Brijmani from his house. He denied the suggestion that he completed the investigation while sitting in his office. He reiterated that he recorded the statement of the informant in the night of the incident itself at the police station but the time of its recording was not entered in the general diary. He stated that at the time of recording statement of the informant, PW-2 was not present.
(ive) In respect of typed report of the written report (FIR), PW-4 stated that when the informant had come to lodge the report he had a written report with him which was seen by him. PW-4 stated that copy of the report and the copy of the Chik was provided to him. He stated that he does not know from where the informant got the report typed. He also stated that he does not know whether the typed report was given at police station Milak in the morning. He stated that he did not record the statement of the person who typed the first information report and he cannot tell the reason for the same. He stated that he did not ask the informant as to from where he could get the written report typed in the night. He also did not ask any question as to the name of the typist.
(iv f) In respect of the time when he left the police station for investigation, he stated that after completing the formalities, he left at 1.30 hours for Chowki Param.
(iv g) In respect of the time when he reached village-Koop (the place of occurrence), he stated that he reached there at 10.30 hrs in the morning but before that he had reached Param Chowki. He stated when he had reached village-Koop then PW-2 was with him.
(iv h) In respect of describing the surroundings of the spot - He stated that the house of the informant (PW-1), PW-1's brother (Sompal) and PW-1's wife (Premwati) was common; whereas, the house of PW-2 is separate and PW-2 resides separately. He stated that though the two houses are separate but there is no boundary in between. He stated that in the house of the deceased, there are 2 or 3 rooms facing North. All three rooms are Pakka. At the time of occurrence, informant (PW-1) and the deceased used to stay in the same house but in different rooms. He stated that in the site plan the house of the accused is across the road. He stated that towards north of the house of the deceased there is Chappar and there is a gap between the Chhappar and the house (where the deceased and other members of his family resided). PW-4 stated that in the site plan he had not shown the three rooms separately but has shown the location of the entire house. On being shown the site plan prepared by him, he stated that in the site plan he has shown the direction from where the informant (PW-1) and PW-1's mother (Premwati) and PW-1's brother (Sompal) had come out of their house to the spot. He stated that the place where the incident occurred (Point 'A') is about 7-8 paces from the house of the informant.
(Iv i) In respect of the presence of lantern and torch, when PW-4 was questioned, he stated that at point 'A' where the cot was laid on which the deceased was present at the time of the incident there was no lantern shown in the map and that no such lantern was recovered. The informant (PW-1) and his uncle (PW-2) had also not given their torches to the custody of the police. The informant had also not disclosed the presence of lantern at the spot. He admitted that at Point 'A' he had not shown presence of blood. He stated that neither PW-1 nor PW-2 in their statement recorded under Section 161 Cr.P.C. had disclosed to him the distance from where the deceased was shot at. That he had not noticed any bullet at the spot nor he could notice any pellet marks. He also stated that the two eye-witnesses had also not disclosed to him as to how they could recognise the assailants. He stated that at the spot he did not notice any empty cartridge. He denied the suggestion that investigation was completed sitting at one place. He stated that he had collected pieces of the cot from the spot but he had not mentioned the length of those pieces and he had also not mentioned in the case diary as to how many pieces were sent to the forensic laboratory. He denied the suggestion that the recovered articles were not properly kept and entered in the records before being sent for forensic examination. He stated that recovered articles were sent for forensic examination after submission of charge-sheet. He denied the suggestion that the forensic report is bogus.
7. The incriminating circumstances appearing in the prosecution evidence were put to the accused-appellants. They denied the incriminating circumstances and claimed that they have been falsely implicated on account of land dispute.
8. The trial court found that the FIR was promptly lodged, the ocular account of PW-1 and PW-2 was reliable and consistent with the medical evidence, accordingly, convicted the appellant no.2-Tej Pal under Section 302 I.P.C. and appellant no.1 Birnami under Section 302 read with Section 34 I.P.C.
9. We have heard Sri Vinay Saran, learned senior counsel, assisted by Sri Pradeep Kumar Mishra, for the appellants and Sri H.M.B. Sinha, learned A.G.A., for the State and have perused the record.
SUBMISSIONS ON BEHALF OF THE APPELLANT
10. Learned counsel for the appellants submitted that the incident is of late night; existence of electricity light is neither alleged nor proved; incident is stated to have been witnessed in the light of lantern and torch whereas, neither lantern nor torch was shown to the I.O. and their existence was not confirmed during investigation therefore, in the darkness of night no one could identify the assailant; whereas, the FIR was lodged by guess-work, implicating three suspects against one injury; that the FIR was ante-timed; and that the trial court failed to properly test the prosecution evidence, particularly, when a close scrutiny was required as the ocular account was coming through interested witnesses.
11. It was contended that the place of incident, as per the site plan, was adjoining Aam Rasta (public lane). Admittedly, the deceased was seated underneath a Chhappar which was open from three sides including lane/ road-side, therefore, anybody from the road could have fired a shot at the deceased from close range and run away. It is thus a case of hit and run, giving no opportunity to the witnesses to identify the assailants. Moreover, the incident occurred without altercation or dialogue. It was a split second affair. When the testimony of PW-1 is carefully scrutinised, it would appear that he rushed out from his room on hearing gun shot and, therefore, possibility of his witnessing the actual firing is not there. Notably, the site plan discloses arrows/ directions from where the witnesses arrived and not the spot from where they witnessed the incident.
12. There is a strong suspicion with regard to the FIR being ante-timed as it is not at all probable that at 12 midnight a typist would be available to type the report. This suspicion has not been dispelled by examination of the scribe / typist of the written report or the constable who prepared the Chik FIR/ GD Entry in respect of its receipt. Rather, the suspicion gets amplified by non-disclosure of the identity of that typist despite questioning. It is therefore a case where the report was lodged on guess-work and suspicion in the morning by ante-timing the same. This is corroborated by the inordinate delay in conducting the inquest. All of this raise a strong suspicion with regard to the truthfulness of the prosecution case entitling the accused to the benefit of doubt.
13. It was next argued that in so far as PW-2 is concerned, he appears to be a chance witness whose presence at the spot, at the time of the incident, appears doubtful because1-33 the reason that he discloses for his presence is that he had been out to urinate. This reason is not disclosed by him in his statement recorded under section 161 CrPC. Other than that his presence is not natural because he has a separate house. Moreover, the site plan, which is prepared at his instance, does not disclose his location from where he witnessed the incident. Further, the disclosure by him with regard to the direction in which the deceased was sitting i.e. with his face towards east, is at variance with the spot position including the site plan because, if the deceased was facing east then had the shot been fired from lane, which is towards north, as shown in the site plan, the deceased would have been hit on the left side, whereas the shot had hit the deceased on the right side.
14. In so far as PW-1 is concerned, it appears, he rushed out of the house on hearing the gun shot. Further, PW-1 is not reliable because, according to him, he had served dinner to the deceased just 15 minutes before the incident; whereas, semi-digested food was noticed in deceased's stomach, which, according to the doctor, might have been eaten about 4 hours before. This also suggests that the incident might have occurred late night and not as suggested by the prosecution.
15. Further, it is a case where there is no corroboration to the ocular account from recovery of the murder weapon or from any independent witness, hence, conviction of the appellants, under the circumstances, would not be safe and, therefore, it is a fit case where the benefit of doubt be extended to the appellants.
16. Lastly, there existed no strong motive for the crime. If there was any, there appeared no motive for three persons to join hand. Even the two named persons belong to different families though they both reside near the house of the deceased across the road.
SUBMISSIONS ON BEHALF OF THE STATE
17. Per contra, the learned A.G.A. stated that PW-1 was a co-resident with the deceased and PW-2 resided next door, thus, their presence at the spot is natural. Their ocular account is consistent with medical evidence and the first information report was promptly lodged in the night itself; that source of light has been disclosed in the FIR as well as in the testimony. Therefore, merely because the investigating officer was not vigilant in effecting recovery of lantern and torches, non production of lantern/ torch would not prove fatal to the prosecution case.
18. Absence of a strong motive for the crime would not be material as the case is based on ocular account which is consistent with medical evidence. Importantly, the place and time of occurrence has not been challenged by putting suggestions to the eye-witnesses therefore, once it is established that the incident occurred in close proximity to the dwelling unit of the witnesses, their presence becomes natural on the spot and their testimony cannot be discarded merely because they are not independent witnesses.
19. No presumption can be drawn that a typed report cannot be prepared late in the night. Similarly, if the inquest was deferred till day break, an inference cannot be drawn that the FIR was not in existence by then because in villages where there is no facility of electric light, inquest usually awaits day break. Thus, there is no logical reason to assume that the first information report is ante-timed.
20. Presence of semi-digested food in the stomach of the deceased does not render the ocular account of PW-1 in respect of the incident doubtful because his presence in the house at the time of the incident has not been challenged. The learned AGA thus prayed that the appeal be dismissed.
ANALYSIS
21. Having considered the entire prosecution evidence and the rival submissions, we are of the view that the prosecution has been able to prove beyond doubt the following:
(i) The place of incident i.e. where the deceased was shot at. The place of occurrence is the Baithak of deceased's house, just in front of the house of the deceased, adjoining public lane, covered by a Chhappar (a shade), which is open from three sides including the lane side, and is 7- 8 paces north of the dwelling units of deceased's house. Notably, there is no suggestion to the eyewitnesses to dispute the spot. Further, there is no serious challenge to the deceased sitting on a cot, placed on that Baithak, at the time he was shot. This is also confirmed by collection and production of blood stained pieces of cot etc found on that 'Baithak'.
(ii) The time of the incident. Though, presence of semi-digested food matter in the stomach of the deceased has been highlighted by learned counsel for the appellants to develop an argument that if food had been served 15 minutes before the incident, as is the testimony of PW-1, there would be undigested food and not semi-digested food in the stomach therefore, it appears, the incident was of late night but, interestingly, there is no suggestion to the eye-witnesses PW-1 and PW-2 that the incident occurred at some other place or at some other time.
22. As the prosecution has been able to fix the place of occurrence, we shall now closely scrutinise the spot described in the site plan (Ex. Ka-10) prepared by I.O. after inspection of the spot on the guidance of PW-2, the alleged eye witness of the incident. The site plan (Ex. Ka-10), indicates that the entire area of the deceased's house is in three parts. First being the main dwelling unit, which is towards South. Second is the Baithak - Point A (the place of occurrence), underneath a Chhappar (a shade), which is located north - east of the dwelling unit, at a distance of 8 paces from the dwelling unit; and the third, namely, Point B is open space located in front, towards north, of the dwelling unit and towards west of the Baithak. Notably, this is the open area in respect of which, as per item no.2 in the index of the site plan, there is a dispute. The place of occurrence i.e. 'Baithak', which has been marked by alphabet ''A', adjoins the Aam Rasta (public lane) located north to it. Across that public lane, further north, there are separate houses of Parmi (father of appellant no.2) and Chunni (father of appellant no.1). What is important is that the houses of accused-appellants are across the road in front of the residential area of the deceased. The house of PW-2 (Indraman) is located east to the house of the deceased.
23. According to PW-3 (autopsy surgeon who conducted autopsy and prepared the autopsy report Ex. Ka-2), the bullet travelled in a direction lower to upper, that is, the shot was fired at the deceased from a level lower to that at which the deceased was positioned. As per prosecution evidence the deceased was sitting on a cot placed at the 'Baithak'. Ordinarily, 'Baithak' is higher than the adjoining ground level. The site plan reflects that the 'Baithak' in question adjoins Aam Rasta (public lane). The arrows in the site plan (Ex. Ka-10), indicate the direction from where the accused arrived and escaped. These arrows suggest that neither the accused entered the residential area of the deceased nor stepped on to that Baithak. Rather, they fired from the margin of the public lane, adjoining the Baithak, and escaped. Putting all these circumstances together, in our view, it appears to be a case where the shot was fired at the deceased from the adjoining public lane and the assailants escaped using that lane. The incident is, therefore, a hit and run kind of an incident. More so, because it is not the prosecution case that there was an altercation or exhortation preceding the shot.
24. In these circumstances, what we have to examine is whether PW-1 and PW-2 had the opportunity to witness the incident in the darkness of night or it is a case where they came out on hearing gunshot and by the time they could come out, the assailant had vanished; whereafter, on strong suspicion, or guess-work, a named FIR was lodged. Notably, PW-1 is the son of the deceased and he resides in the same house. But, the dwelling unit of that house is separate from the Baithak where the deceased was seated at the time when the shot was fired at him. Admittedly, in the house there were deceased's wife and the other son who carried the deceased to the police chowki yet, they have not been examined. PW-1 (the informant), the other son of the deceased, to show his presence at the spot for the purposes of witnessing the incident, claims that 15 minutes before the incident, PW-1 had served Roti - Sabji (food) to his father (the deceased) and to serve him water thereafter, he had come out and when, after serving water, he was returning to the dwelling unit, he could sense some one coming and by the time he turned, shot was fired. In that small span of time, he noticed as to who fired the shot and who were the others present. Interestingly, he claims to have noticed two persons, namely, the two appellants with whom, according to PW-1, there was some dispute in respect of the land. He, however, could not recognise the third person and could not describe his physical attributes despite being questioned on that aspect. At this stage, to test the above story, the statement of PW-3 (the autopsy surgeon) need be noticed. According to PW-3, he noticed semi-digested food in the stomach of the deceased which, in his opinion, would suggest that the deceased had his meals 4 to 6 hours before. This throws two possibilities, that is, either the occurrence was late in the night or, the story narrated that the deceased had meals 15 minutes before the incident is contrived as a ploy to justify PW-1's presence at the spot in the nick of time. Both possibilities would have to be ruled out even if we assume that medical evidence cannot, with precision, determine the time when the meal was taken inasmuch as much would depend on the digestive power of the person and the nature of the food consumed. But as these possibilities have arisen, to rule out all doubts, we would have to carefully scrutinise and test the prosecution evidence. A careful scrutiny of the prosecution evidence is otherwise also required because it flows from witnesses who are closely related to the deceased and the deceased admittedly had a dispute with the two named accused and, in the past, they have had a fight.
25. As a first step in our endeavour to test the prosecution evidence, we shall notice the site plan (Ex. Ka-10). When we notice the site plan (Ex. Ka-10), item No. 3 of its index, would suggest that the informant and the witnesses had arrived together from the dwelling unit to witness the incident. Notably, the dwelling unit comprises of three rooms and is 8 paces away from the spot where the deceased was shot at. Admittedly, the incident is of night and the prosecution has not taken up a case that there was electric light in the area. To prove the source of light, the burden was on the prosecution. To discharge that burden, the prosecution story was that there were torches and a burning lantern hanging from the Chhappar under which the deceased was sitting. Neither the lantern was shown to the investigating officer nor the place where the lantern was hanging was shown to the I.O. The site plan does not disclose the spot where the lantern was hanging. Even the torches were not presented before the I.O. and, admittedly, there was no custody or seizure memo of either the torch or the lantern. These circumstances may not be sufficient to discard the testimony of the eye witnesses of the incident as they may be on account of lapses in investigation but they are of consequence to the extent that the ocular account in respect of the presence of those objects i.e. lantern and torch does not get support from any material collected during investigation. Consequently, the ocular account would have to be tested independently.
26. Before testing the testimony of PW-1, as a second step, we shall test the testimony of PW-2 i.e. the brother of the deceased. In so far as PW-2 is concerned, he has a separate house and, notably, the site plan, though is prepared at his instance yet, it does not disclose as to from where PW-2 witnessed the incident. Further, PW-2 appears to be a chance witness, who was out of his house to urinate when he got the opportunity to witness the incident. Importantly, when PW-2 was questioned as regards the direction in which the deceased was sitting when he was shot at, PW-2 stated that the deceased was facing East at the time when he was shot. Had it been so, the shot fired from northern side of the deceased (as is according to the site plan) would have hit the deceased on the left side whereas the post-mortem report suggests that the deceased suffered injury on the right side. In our view, PW-2 is not reliable; firstly, because he has a separate residence and is a chance witness, secondly, his location is not disclosed in the site plan and, thirdly, he has faulted on directions. Rather, it appears to us, PW-2 arrived at the spot, as a neighbour and brother of the deceased, after he heard the gunshot.
27. Now, we arrive at the testimony of PW-1 to find out whether it is reliable and trustworthy. Before we proceed to test the testimony of PW-1, we may observe that there are no cut and dried formulae to test the reliability and credibility of a witness. The reliability of a witness not only depends on his consistency but also on surrounding facts and circumstances of the case. As a first step, the court must test whether the presence of the witness at the spot at the crucial time is natural or is by chance. If it is natural, then whether he had the opportunity to witness the incident. If the presence is by chance, then there ought to be an acceptable explanation for his presence there. Ordinarily, when there is a prompt reporting of an incident based on an ocular account of a witness, that ocular account is considered truthful because he gets lesser opportunity to embellish the account by guess work or ill motives. Therefore, to make the prosecution story look truthful, at times there is an effort to ante-time the FIR. We shall therefore proceed to test the ocular account rendered by PW-1 not only on its own merit but also by examining the possibility of the FIR being ante-timed.
28. As regards the presence of PW-1, we notice that the incident occurred in the night at the Baithak of the house of the deceased with whom PW-1 resided. Considering that by night hours, after finishing day's chores, one would return to the comfort of his house, the probability of PW-1 being present in the house at the time of the incident is quite high. Under the circumstances, the presence of PW-1 in the house at the time of the incident is natural. Moreover, no suggestion has been given to PW-1 that he was elsewhere at the time of the incident. But that, by itself, is not sufficient for us to accept that PW-1 had witnessed the incident. Notably, the site plan prepared by the I.O. would suggest that the dwelling unit of the house of the deceased had three rooms. Admittedly, the deceased had two sons and a wife residing with him. The dwelling unit comprising of three rooms was separate from 'Baithak' (where the deceased was seated on a cot at the time when he was shot), which was about 8 paces away from the dwelling unit. Notably, this 'Baithak' adjoins the Aam Rasta (public lane). Instant case, is a case of single gun shot which, from the site plan, appears to have been fired from the public lane and which fact is corroborated by medical evidence as the direction of the shot was from lower to higher level, as already discussed above. Notably, there was no altercation or exhortation preceding the incident and there was no scuffle before or after the incident. No doubt, PW-1 stated in the FIR that the accused had brandished their weapons to threaten the witnesses while escaping but has not disclosed about their utterances. Further, during cross-examination on 21.11.2008, he stated that PW-1 could chase them to a distance of only 2 to 4 paces thereafter he returned to his father (the injured, who died later). It was thus a hit and run kind of an incident and therefore, what needs to be examined is whether in that short time span PW-1, in the darkness of the night, had the opportunity to identify the assailants or whether it is a case where the assailant fired and ran away and on hearing the gunshot, the inmates of the house rushed out from their dwelling units. Notably, in the site plan the presence of PW-1 is not specifically shown. Rather, direction is given from where the witnesses emerged to arrive at the spot. The site plan no doubt is not prepared at the instance of PW-1 therefore, it cannot be used to contradict him but what is important is that it does not disclose PW-1's presence but shows him to be emerging from the dwelling unit. Importantly, even PW-1 does not say that he was sitting with his father at the Baithak. Rather, to show his presence, he sets up a story that his father had eaten his meals 15 minutes before the incident and, therefore, to serve him water PW-1 had come out and, after serving water, when he was returning to the dwelling unit he could sense some one coming and as soon as he turned, he saw three persons including the appellants and Tejpal firing a shot at his father whereafter they ran away. The story of serving meal 15 minutes before the incident is not supported by medical evidence as semi-digested food was found and, according to PW-3, the autopsy doctor, meal might have been taken 4 to 6 hours before. Though this piece of circumstance might not be sufficient to outright discard the account as being not truthful, but it does throws some doubt on it. More so, when the source of light i.e. presence of lantern hanging from the Chhappar has not been confirmed during investigation and torches were also not shown to the I.O. But assuming that that could be a lapse on the part of the I.O., we do not propose to use it to discard the prosecution evidence. However, what clinches the issue for us is an important circumstance, which is, whether the first information report was lodged at the time alleged by the prosecution.
29. According to the prosecution, the FIR was lodged by PW-1 at 00.30 hours. According to PW-1, when the deceased was shot, the deceased was taken on a Dunlop Cart for medical attention but by the time they could cross the river, the deceased expired. Therefore, they took the body of the deceased on that cart to the police chowki Param. They reached the chowki by about 10.30 pm. At the chowki, PW-1 stayed for half an hour and thereafter, PW-1 went with Diwanji ( a constable) posted there, on a bicycle, to the police station to lodge the FIR. They reached the police station at quarter to 12 (midnight). PW-1 found Daroga (I.O.) there. At that time, the entire bazaar had shut and when he disclosed the incident to the I.O., the I.O. told him to submit a written report. Near the police station, at the Tehsil, he found a man who typed the report, which was handed over by PW-1 to the police. The defence challenges this part of the evidence as completely unacceptable and, consequently, questioned PW-1 about the typist. PW-1 replied by stating that he does not know that man and earlier also he had never seen that man. He stated that he had informed the I.O. that he had got the report typed at the Tehsil but the I.O. had not written in the report that the first information report was got typed before being lodged. Notably, suggestion was given to PW-1 that he got the report typed in the morning and that the report was lodged in the morning. PW-1 denied the suggestion. The learned counsel for the appellants submitted that this a strange case where the I.O. insisted for a written report at midnight and did not bother to check as to from where the informant got it typed. Importantly, the name of the typist is also not disclosed to enable the defence to verify as to who typed it at midnight. It is argued that the inquest was conducted at 10.30 hrs, late in the morning, even though the body was at the Chowki where artificial light is expected. Thus, it is a clear cut case where the FIR was lodged in the morning and was ante-timed.
30. In our view, the circumstances noticed above do raise a strong suspicion with regard to the FIR being ante-timed. This suspicion could have been dispelled had the prosecution examined the constable who made GD Entry of the receipt of the written report and had prepared the Chik report. It could also have been dispelled if the name of that typist had been disclosed either in the typed report or in the testimony. Notably, from the testimony of PW-4, it appears, the GD Entry /Chik maker was alive but he was not produced under the excuse that he was attending to VIP duty. Further, the Diwan who, allegedly, accompanied the informant to the police station to lodge the FIR has not been examined. In that backdrop, the defence put several questions to the I.O. (PW-4) to demonstrate that the FIR was not lodged at the time when it is purported to have been lodged. In fact, during cross-examination, PW-4 (I.O.), in an answer to one such question, stated that he is not aware whether the report was got typed and delivered at the police station in the morning, which is in stark contrast to what he had stated earlier that the report was registered in his presence. In fact, PW-4, at one stage of his cross-examination (i.e. dated 20.03.2007), stated that when PW-1 had come to lodge the report, at that time, he had a written report with him. If that was so, what was the occasion for PW-4 to be evasive to the specific suggestion that the FIR was got typed and submitted in the morning. Importantly, PW-1 stated that it was the I.O. who requested him to bring a written report. From the above discussion it appears that the prosecution was searching for answers to disclose the reason for there being a typed report at that odd hour of the night. In ordinary circumstances, this issue would not have been material but it assumes importance in this case because the FIR is being lodged at 00.30 hrs in a typed format by claiming that it was got typed by about mid night. In this kind of a situation, submitting a typed report at 00.30 hrs is an unusual circumstance which needed explanation, particularly, when the admitted case is that the entire Bazaar had closed down by that time. This circumstance is also unusual for the reason that there is no prohibition in law in accepting an oral information to lodge a first information report. In that background, the explanation offered by PW-1 as to why he got the FIR typed appears to have no basis. This explanation is there, only to explain a strange circumstance of getting the report typed around mid-night when otherwise there was no need to submit a typed report or even a written report. When we notice this strange circumstance in conjunction with another circumstance, which is, that the inquest was conducted after day break at 10.30 hrs. even though the body was at the chowki, we get a strong feeling that the FIR had not come into existence in the night. Rather, it was got typed and lodged in the morning after day break, as is the defence suggestion, and, only thereafter, the inquest was conducted. Ordinarily, in night occurrences, an inquest might be deferred to morning hours, particularly, where the source of light is not available or the place where the inquest is to be conducted is far off from police establishment. But, here, the body was at the Chowki where light sources, in ordinary course, are expected. Moreover, it is not the specific case of the prosecution that there was no source of light at the police chowki. Further, no police witness from that police chowki has been examined to clear our doubts as to why the inquest could not be conducted in the night hours or in the early hours of the morning, earlier than 10.30 hrs. In this background, lodging of a typed report at 00.30 hours creates a strong suspicion with regard to the FIR being ante-timed. This coupled with the delay in conducting the inquest lends credence to the defence suggestion that the FIR was lodged in the morning after getting it typed. Once this is the position, the prosecution case gets shrouded in suspicion throwing multiple possibilities including a strong probability of the incident being a hit and run kind of an incident, witnessed by none, and the prosecution story developing on guess-work based on strong suspicion with implication of those with whom the deceased had enmity. Probability of such guess-work becomes stronger also from the circumstance that as against a solitary gunshot injury three persons have been roped in, out of which, two have not been assigned any major role except that they came with weapons and escaped with the assailant.
31. The upshot of the discussion above is that there is a cloak of doubt shrouding the prosecution case and, therefore, the prosecution has failed to prove its case against the appellants beyond reasonable doubt. Consequently, the appellants are entitled to the benefit of doubt. As a result, the appeal is allowed. The judgment and order of the trial court is set aside. The appellants are acquitted of the charges for which they have been tried. The appellant no.1 (Birnami) is on bail, he need not surrender subject to compliance of section 437-A Cr.P.C. to the satisfaction of the court below. The appellant no.2 (Tej Pal) is reportedly in jail. He shall be set at liberty forthwith subject to compliance of the provisions of section 437-A Cr.P.C. to the satisfaction of the court below.
32. Let the certified copy of the judgment and the record of the court below be sent to the trial court for information and compliance.
Order Date :-22.4.2022 Sunil Kr Tiwari