Allahabad High Court
Mahendra Singh Baghel Adn Another vs State Of U.P. on 18 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2649
Bench: Manoj Misra, Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED ON : 18.11.2020 DELIVERED ON :18.12.2020 REPORTABLE Court No. - 48 Case :- CRIMINAL APPEAL No. - 6864 of 2010 Appellant :- Mahendra Singh Baghel And Another Respondent :- State of U.P. Counsel for Appellant :- V.K.Tripathi, Arvind Agrawal, Kalika Prasad Pal, Kamlesh Kumar Tripathi, R.B. Pal, Rajiv Gupta Counsel for Respondent :- Govt.Advocate, Brij Raj Singh Hon'ble Manoj Misra,J.
Hon'ble Sanjay Kumar Pachori,J.
(Delivered by Hon'ble Manoj Misra, J.)
1. Instant appeal is against the judgment and order dated 30.09.2010 passed by the Additional Session Judge, Court No. 2, Firozabad in Sessions Trial No. 502 of 2003 by which the appellants Mahendra Singh Baghel (A1) and Geetam Singh Baghel (A2) have been convicted under section 302 read with section 34 I.P.C. and sentenced to undergo imprisonment for life with fine of Rs. 10,000/- each and in default of payment of fine to undergo imprisonment of two years.
INTRODUCTORY FACTS AND PROSECUTION CASE
2. The prosecution case as per the first information report (for short 'FIR') (Ex. Ka-1), which was lodged on 25.05.2002, at 3:05 am, at P.S. Pachokhra, District Firozabad, by Mohan Lal Baghel (not examined), elder brother of the deceased (Bhagwan Singh Baghel), is that there was a marriage party of the daughter of Prem Singh in which a dance programme was going on. The informant, his younger brother (the deceased) and several others were witnessing the dance programme. While watching the programme, at about 1.30 am in the night of 25.05.2002, the deceased left the programme to attend to nature's call, there Mahendra Singh Baghel (A1) stopped him and Geetam Singh Baghel (A2), the brother of A-1, fired at the deceased from a country made pistol thereby causing injury to the deceased. In the first information report it was alleged that the incident was witnessed by Munshi Lal Baghel (PW.3) and informant's nephew Ranveer Singh (PW.1) and various other persons, who tried to get hold of the accused but they escaped. The alleged motive for the crime was land dispute.
3. The FIR was scribed by Ram Swaroop Baghel (PW.2). The Chik FIR (Ex. Ka4) was made by Pooran Mal (PW6). Initially it was registered for an offence punishable under Section 307 I.P.C. as by that time the deceased was alive. After lodging the FIR the deceased was rushed to the hospital but died on way at about 5 am. On report of his death, vide GD Entry No.11 (Ex. Ka 6), at about 10.30 am, on 25.05.2002, the case was converted to Section 302 I.P.C. Thereafter, the inquest was conducted in the mortuary of District Hospital, Firozabad at about 1.00 pm on 25.05.2002. Inquest report (Ex. Ka-2) was prepared and witnessed by Nihal Singh (PW.4) amongst others who have not been examined.
4. The post-mortem of the body of the deceased was conducted at about 4:30 pm on 25.5.2002 by Dr. A.K. Anand (PW.7). The post-mortem report (Ex. Ka-7), which was proved by PW.7, estimated the time of death around half a day before. Rigor mortis was found present in both extremities. External ante-mortem injuries found were: (i) one gun shot wound of entry size 3.0 cm x 0.5 cm cavity deep on the right lateral side of chest 18 cm above iliac crest at post axillary line level, margins inverted, lacerated with blackening and tattooing present; and (ii) gun shot wound of exit size 4.0 cm x 1.5 cm on the abdomen, 5 cm upward and right lateral to umbilicus, margins everted. Amongst the internal injuries, eighth rib was found fractured; right lung was found ruptured; peritoneum, liver and gall bladder was found ruptured; and 8 ounce of blood was found in the cavity. Small intestine was found lacerated with presence of 10 ounce of semi-digested food. In the large intestine faecal matter was present. According to the doctor, the cause of death was due to shock and haemorrhage as a result of ante-mortem firearm injury sustained.
5. Initial investigation was carried out by Sri Dharm Prakash Dwivedi (PW.8), who collected bloodstained and plain earth from the spot and prepared a fard thereof (Ex. Ka-3), recorded the statement of the deceased (Ex. Ka-8), prepared site plan (Ex. Ka-9) on the pointing out of informant and PW.3, prepared the inquest report, photo lash, challan lash and recorded statement of the eye-witness Munshi Lal Baghel (PW3) amongst others.
6. Nanha Ram Kureel (PW.9) carried out raid operations to arrest the accused but could not succeed. Though, later, the accused surrendered in Court on 01.07.2002. He completed the investigation and submitted charge-sheet (Ex. Ka-14). On submission of the charge-sheet, after taking cognisance, the case was committed to the Court of Session. The Court of Session framed charge against the appellants for offence punishable under Section 302 read with Section 34 I.P.C. The accused denied the charge and claimed trial.
PROSECUTION EVIDENCE
7. The prosecution examined as many as nine witnesses.
8. PW.1 (nephew of the deceased-Ranveer Singh) though was examined as an eye-witness of the incident but was declared hostile. He stated that at the time of the incident he was at his own house and had not witnessed the incident. He stated that when he received information that his maternal uncle (Mama), the deceased, was shot, he went to see him but by the time he could reach, his uncle was dead.
In his cross-examination by the State counsel, he stated that the investigating officer had not recorded his statement. Upon being confronted by the statement recorded under Section 161 Cr.P.C, he stated that he does not remember that he gave any such statement. He denied the suggestion that he was not stating the truth because of fear of the accused.
9. PW.2 (Ram Swaroop) : The scribe of the FIR. He stated that the report (Ex. Ka-1) was in his writing but it was not on the dictation of Mohan Lal Baghel (informant).
In his cross-examination by the State counsel, upon being confronted by his previous statement under section 161 CrPC, he stated that he was not aware as to how that statement was recorded. He denied the suggestion that he scribed the FIR on dictation of the informant. He stated that he wrote the FIR on dictation of the Inspector. He denied the suggestion that he was lying because he had colluded with the accused.
In his cross-examination by the counsel for the accused, he stated that at the time of the incident, he was with his maternal uncle Mohan Lal and Munshi Lal. At that point of time, it was 10 pm. They heard that Bhagwan Singh has been shot at. Upon which, he, his maternal uncle Mohan Lal, Munshi Lal and Ranveer Singh, all four went to the spot and found Bhagwan Singh lying in an injured condition in the field near the tubewell. The tubewell was of Dori Lal. He stated that at that point of time, his maternal uncle (Bhagwan Singh Baghel-deceased) was not in a position to speak. They took him to the police station. At the police station, his maternal uncle Mohan Lal had spoken to the police and the police had advised that the injured be immediately taken to the hospital. He stated that they had reached the police station at 11 pm. He stated that when Mohan Lal had gone to the hospital with the injured, he scribed the report on the dictation of the Station House Officer. He stated that the report does not bear the signature of Mohan Lal. He further stated that though Mohan Lal had informed the police that his brother Bhagwan Singh was shot at by some miscreant but had not named any person, But as the Station House Officer insisted that till such time the name of the accused is disclosed, report will not be written, Mohan Lal in consultation with Munshi Lal, had disclosed the name of Mahendra Singh and Geetam Singh. He stated that at that time, Bhagwan Singh was not in a position to speak rather he was unconscious.
10. PW.3-Munshi Lal- stated that he was there with Bhagwan Singh (the deceased), Ranveer Singh, Mohan Lal and various other fellow villagers at the dance programme held in connection with the marriage of Prem Singh's daughter, Manju. The incident occurred at 1:30 am in the night when dance programme was going on. He stated that during the dance programme Bhagwan Singh (the deceased) went to urinate. There he was stopped by Mahendra Singh (A1) and Geetam Singh (A2) fired a shot at the deceased from a country made pistol. Thereafter, the accused ran towards west and Bhagwan Singh, in an injured condition, ran towards east and, thereafter, fell in the field of Dori Lal. Whereafter, Mohan Lal and others arrived and took the injured Bhagwan Singh in a tractor. At that point of time, the deceased was alive and fully conscious. He stated that he saw the entire incident. He identified the two accused in front of the court. He stated that at the time of the incident there was light with the aid of a generator. He stated that the incident was an outcome of enmity on account of land dispute as the field purchased by Mahendra Singh (A1) was purchased by Bhagwan Singh (the deceased).
PW3 was cross-examined by the defence counsel on multiple counts such as:
(a) That he was a witness related to the deceased. He and the deceased had common mother, inasmuch as, after PW3's father's death, his mother, Anaro Devi, had married deceased's father.
(b) That the land purchased by the accused was different from the one purchased by the deceased Bhagwan Singh because the accused had purchased the land from Har Devi. The balance land held by Har Devi was sold to her two sons Chote Lal and Khacheru Singh. Chote Lal, in turn, had sold it to Bhagwan Singh (the deceased). Therefore, there was no motive for the crime.
(c) That PW3 was not present on the spot and was somewhere else when the incident occurred; and that he did not witness the incident.
(d) That he was telling a lie because a report was lodged against his family at the instance of accused Mahendra Singh (A-1).
In addition to above, a suggestion was also given that the incident occurred in some other manner as one girl by the name Vineeta was teased by Bhagwan Singh (the deceased), who was a bachelor, and, in connection with that, some other person had fired at him.
In respect of his relationship with the deceased i.e. with regard to him and the deceased being born of the same mother, he denied the suggestion.
In respect of the land dispute, though he did not deny that Bhagwan Singh had obtained sale-deed from Chote Lal and that the accused had obtained sale-deed from Har Devi but stated that Har Devi had sold her entire land to Mahendra Singh (A-1) therefore, there was dispute and enmity. He also stated that in respect of this dispute, earlier, there had been an altercation between Bhagwan Singh and Geetam Singh. However, he could not disclose the date and time of such altercation though he stated that such altercation took place about a month and a quarter before the date of the incident.
In respect of the suggestion that he was not present on the spot and had not witnessed the incident, he denied the suggestion but admitted that on the date of the incident, he had gone to village Nagla Kharga to purchase Buffalo.
In respect of the suggestion that he was lying because his son had been sent to jail on the report by Mahendra Singh, though he did not deny the suggestion that report was lodged by Mahendra Singh implicating him and his sons but denied that he was lying on that account.
In respect of the suggestion that Bhagwan Singh had teased Vineeta and the incident occurred in some other manner, PW3 stated that Vineeta is a girl of good character and no such incident had occurred. He, however, did not deny the suggestion that Bhagwan Singh was a bachelor.
11. PW.4- Nihal Singh- proved the inquest proceeding and the inquest report (Ex. Ka-2).
In his cross-examination, he stated that Munshi Lal (PW-3) and the deceased had common mother. He stated that Bhagwan Singh's mother's name is also Anaro Devi.
12. PW-5- Bhuri Singh- He is the son of Munshi Lal (PW3). He proved that he witnessed the lifting of blood-stained and plain earth from the spot of which fard (Ex Ka-3) was prepared.
In his cross-examination, Bhuri Singh stated that the deceased Bhagwan Singh, in relationship, was his uncle. He, however, feigned ignorance whether PW3 and the deceased had common mother.
13. PW-6- Head Constable Pooranmal- proved the GD entry of the FIR and proved that it was lodged on 25.05.2002 at 3.05 am. He also proved that at 10:30 am on 25.05.2002 upon information that Bhagwan Singh had died, section 307 I.P.C. was altered to section 302 I.P.C. vide GD report no. 11.
In his cross-examination, he stated that informant along with Bhagwan Singh, Bhuri Singh, Yadram, Nepal Singh, Munshi Lal, Ranveer Singh and others had come to the police station to lodge report. He stated that he saw the injured Bhagwan Singh. He was not in a position to speak. At that time, he was lying on the tractor. As the condition of the injured was serious, Chitthi Majroobi was prepared immediately and he was sent to the hospital. He stated that the injured stayed at the police station for as long as it took to prepare Chitthi Majroobi which was prepared in just 2-4 minutes. He stated that the death information was received from Gulab Singh who had accompanied the deceased to the hospital. He stated that the investigation was assigned to SI Dharm Prakash Dwivedi (PW-8) and Nanha Ram Kuril (PW-9). They both left the police station immediately upon registration of the first information report at 3.05 am.
14. PW-7 Dr. A.K. Anand- proved the post-mortem report and the injuries noticed therein and stated that the deceased could have died half a day before the examination.
In his cross-examination, he stated that 8th rib, right lung, liver, small intestine were found ruptured. The injuries were very serious which would bring the injured in a state of shock and unconsciousness and, most likely, he would not be in a condition to speak. He also stated that after receiving such injury, injured would not be in a position to walk or climb. He stated that the angle with which the gun shot travelled across the body suggested that the deceased and the person who fired the shot at the deceased were not at the same level. He acknowledged the possibility of the deceased dying earlier, say in the night of previous day between 10-11 pm. He stated that from the amount of blood found in the cavity it could be said that the deceased died within one half to one hour of receiving injury.
15. PW-8 Dharm Prakash Dwivedi- proved various stages of the investigation and stated that he recorded the statement of the injured Bhagwan Singh Baghel i.e. Ex. Ka-8. He stated that the injured was sent to the hospital with constable Gulab Singh but died en route to the hospital. He stated that he recorded the statement of the constable who prepared the Chik FIR and thereafter he recorded the statement of Mohan Lal (informant) and the scribe of the FIR. Thereafter, he went to the spot and recorded the statement of Munshi Lal Baghel and on the pointing out of the informant and Munshi Lal Baghel he prepared the site plan (Ex. Ka-9). He also collected blood-stained and plain soil and prepared fard thereof (Ex. Ka-3). He proved the inquest proceeding and other stages of the investigation.
In his cross-examination, he stated that 6-7 people had come to the police station. The informant had not met him at the police station because PW-8, at that time, was at his residential quarter. The informant had met the clerk at the police station. PW8 was informed by Santri that at village Raspur there had been firing and that the injured had come. Upon receipt of information from Santri, he reached near the tractor on which Bhagwan Singh was lying. He enquired about the incident from Bhagwan Singh and his brother Mohan Lal. At that time, the FIR was not registered but was in the process of being registered. He stated that he did not enquire from the tractor driver or the persons who were there along with the injured, because the condition of the injured was very serious and, therefore, he sent the injured to the hospital. He stated that when he visited the spot, he received information from Gulab Singh about the death of the injured. He stated that though the injured was sent with constable Gulab Singh but he did not record the statement of Gulab Singh.
In his cross-examination, he also stated that while recording the statement of the injured Bhagwan Singh, he did not follow the procedure provided under the U.P. Police Regulation and did not obtain the signature of the deceased on the statement so recorded nor did he get signature of any witness in whose presence his statement was recorded. He admitted that in the case diary he had not entered the date and time of recording the statement of Bhagwan Singh though the time of recording the statement of other witnesses is mentioned in the case diary. He also stated that it is mentioned in the case diary that Bhagwan Singh died on way at 5 am.
On a question whether he was informed with regard to any previous incident between the deceased and the accused, he stated that Munshi Lal had not given any information to him with regard to any previous incident. He also stated that he did not take possession of the generator or other equipments that were there at the place of the incident.
16. PW-9- Nanharam Kuril- proved that he took over the investigation from PW8 and, after completing the investigation, submitted charge-sheet and tried to effect arrest of the accused persons though, ultimately, they surrendered in court.
In his cross-examination, he stated that at the time of inspection of the spot, he did not notice abandoned footwear such as slippers, sandals, shoes. He could not discover any pellet, cartridge/ empties, lathi or danda. He stated that he did not move any application for taking custody of the accused to recover the murder weapon. He stated that he was not aware of the statement made by Munshi Lal to the previous investigating officer. He stated that Munshi Lal is brother of the deceased. He also admitted that during the course of investigation he did not enquire from any of the artists in the dance party as to the manner in which the incident occurred.
In his cross-examination, he stated that though the deceased was unmarried but he could not get any information with regard to his involvement with any women or girl nor could gather any information that in the night of the incident the deceased had teased a girl by the name Vineeta. He stated that by the time statement of Munshi Lal was recorded, information with regard to the death of Bhagwan Singh had not been received therefore, in the statement of Munshi Lal there is no mention of his death.
17. The incriminating circumstances borne out from the prosecution evidence were put to the accused while recording statement under Section 313 Cr.P.C. The accused though admitted that on the night of the incident there was a function in connection with the marriage of the daughter of Prem Singh, namely, Manju, but denied their presence in the marriage function. They claimed that the prosecution case is false; the FIR is ante-timed; and that they have been falsely implicated. It was also claimed by them that the witnesses are all related to the deceased.
DEFENCE EVIDENCE
18. Defence examined three witnesses to demonstrate that deceased had cases against him and that PW3 on the date of the incident had gone to purchase a buffalo and in that connection had stayed overnight at a place and, therefore, could not have witnessed the incident. These three witnesses are:
DW-1-Satya Prakash- He stated that he was posted at police station Pachokhara, Firozabad between 1988 to 2000. On 18.11.1999, Teekam Singh son of Tilak Singh had lodged NCR No. 47 of 1999 against Ramveer Singh, Bhagwan Singh, Nek Ram son of Nathi Lal. On the basis of the said report, proceedings under Section 107/116 Cr.P.C. were also initiated.
DW-2 Waish Ahmed- He stated that he was posted at P.S. Pachokhara. He brought the NCR register and proved NCR No. 37 of 2003 which was marked as Exhibit Kha-2. He also proved NCR No. 47 of 1999 and Chik FIR of Case Crime No. 55 of 1999. They were exhibited as Exb. Kha-3 and Kha-4.
DW-3-Mahavir Singh- On 25.3.2009, he stated that about 6-7 years back Munshi Lal had come to Champaram's house, who happens to be his cousin, for purchase of buffalo. He had arrived late and had stayed overnight at Nagla Kharga.
In his cross-examination, he could not tell the date and time of the visit of Munshi Lal.
TRIAL COURT FINDINGS
19. The trial court, found the prosecution evidence, in particular, the testimony of PW-3, wholly reliable and unshakeable even though he might have been related to the deceased. The trial court observed that, according to the prosecution, the informant could not appear as a witness because he was abducted in respect of which a case was lodged by wife of the informant against Mahendra Singh (A-1) and others in which charge-sheet was submitted. Under the circumstances, it was quite natural that no resident of the village could come and give evidence. It also observed that even if no strong motive could be proved for the crime but, as there was ocular evidence, absence of motive was inconsequential. It found that the place and time of occurrence was duly proved and the FIR was promptly lodged, therefore, as the ocular account found support from medical evidence, the accused were liable to be convicted for the charge framed against them. While holding as above, the trial court also noticed the conduct of the accused appellant in trying to evade arrest for few days to infer existence of guilty mind.
20. We have heard Sri Kamlesh Kumar Tripathi for the appellants; Sri Virendra Singh Rajbhar, the learned A.G.A., for the State; and Sri Brij Raj Singh from the victim's side.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
21. The contention of the learned counsel for the appellants is as follows:-
(a) The informant of the case was not examined as a witness. P.W.2, the scribe of the FIR, specifically stated that the same was not written on the dictation of the informant; that the informant was not able to name the accused; and that the FIR was not being registered, without names, therefore, names were given. This seriously dents the credibility of the prosecution case.
(b) According to the FIR, the incident was witnessed not only by Munshi Lal (PW-3) but by Mohan Lal (not examined) and Ranveer Singh (PW-1), amongst others. Ranveer Singh (PW1), who happens to be the own nephew of the deceased, stated on oath that he had not witnessed the incident but was at home when he received information that the deceased had received injuries. This also seriously dents the credibility of the prosecution case.
(c) PW-2, during his cross-examination by the counsel for the accused, had stated that at the time of the incident, that is at about 10 pm, he was sitting with his maternal uncle Mohan Lal (informant) and Munshi Lal (PW-3) when they were informed that somebody had shot Bhagwan Singh. On receiving this information, PW-2 along with Mohan Lal (informant) and Munshi Lal (PW-3) and Ranveer Singh (PW-1) had gone together to find out Bhagwan Singh lying injured in the field. He also stated that they had reached the police station at around 11 pm but as condition of Bhagwan Singh was serious the Station Officer had directed that the deceased be taken to the hospital and when Mohan Lal had taken the deceased to the hospital, the first information report was written on the instruction of the police station incharge. He also stated that the FIR does not bear signature of Mohan Lal. This testimony of PW2 shakes the foundation of the prosecution case and renders the testimony of PW3 unreliable as, according to PW2, when the deceased was shot at, PW3 was with PW2.
(d) The testimony of PW-3 is not reliable because not only his presence at the spot is belied by the statement of PW-2 but also because he has deliberately tried to hide his identity that he is the step-brother of the deceased, born out of common mother. Apart from that PW-3 is an interested witness as he had admitted in his cross-examination that after the incident, he and his sons had gone to jail at the instance of Mahendra Singh (A-1). It has also been submitted that from the statement of PW-3, during his cross-examination on 08.04.2004, it appears, within 2 minutes of Bhagwan Singh having gone to attend nature's call gun shot was heard by him which suggests that upon hearing the gun shot he visited the spot but was not there from before to notice the actual firing. This statement was, however, immediately, improved by PW3 by adding that he was also attending nature's call and was there at the spot. Whereas, no such statement was made earlier. It has also been submitted that the ocular version that after receipt of gun shot injury the deceased ran a few paces towards east is not probable and is neither supported by medical evidence nor by presence of blood at any other place except where he, the deceased, was lying injured. Therefore, it appears, PW-3 did not witness the incident but was set up or it might be that he reached the spot on hearing the gun shot.
(e) The statement of the deceased alleged to have been recorded by the investigating officer before his death appears to be totally fabricated as the deceased had suffered very serious injury and was not in a condition where he could speak. PW-6, who made GD entry of the FIR, clearly stated that the deceased was in a precarious condition and was just lying on the tractor and not speaking. He also stated that as soon as the FIR was registered, after preparation of Chithi Majroobi, the deceased, who was then lying injured, was sent to the hospital. Thus, there was no opportunity for PW8 to record the statement of the deceased. Moreover, the statement of the deceased was not recorded as a dying declaration and as per the procedure for recording such statement, mandated by U.P. Police Regulations. Further, signature of the deceased was not obtained on the alleged dying declaration. Even the time of recording the dying declaration was not mentioned. Thus, the alleged dying declaration is nothing but a waste paper.
In a nutshell, the submission on behalf of the appellants is that the prosecution story is not supported by any reliable testimony; and the trial court has not properly examined, considered and appreciated the evidence. Hence, the judgment of the trial court is liable to be set aside and the appellants are entitled to be acquitted. In the alternative, it was submitted that in so far as Mahendra Singh (A-1) is concerned the only evidence against him is of stopping the deceased and not of exhortation or catching hold the deceased whereas the role of firing at the deceased is attributed to Geetam Singh, therefore, Mahendra Singh could not have been convicted under section 302 IPC with the aid of section 34 IPC, particularly, when no pre-meditated plan to kill the deceased was proved.
SUBMISSIONS ON BEHALF OF THE PROSECUTION
22. Per contra, the learned A.G.A. as well as learned counsel for the victim submitted that there was serious threat to the life of the witnesses and therefore PW-1 and PW-2 turned hostile. PW-3, who is an aged person, considering his responsibility to stand by the truth stood up bravely to depose with regard to the involvement of the accused-appellants and his testimony stood the test of cross-examination and is also corroborated by medical evidence and the circumstances such as prompt lodging of the FIR, proving of the place of occurrence, existence of light, etc. Therefore, as it is well settled that conviction can be recorded on the testimony of a solitary witness, it is a fit case where the appeal be dismissed and conviction of the accused-appellants be upheld.
ANALYSIS OF THE PROSECUTION EVIDENCE
23. We have considered the rival submissions and have perused the record carefully.
24. Before we proceed to analyse the evidence, at the outset, we would like to observe that the trial court while analysing the evidence and returning its finding on the guilt of the accused has, inter alia, observed (a) that the informant Mohan Lal was abducted of which report was made by his wife against several persons including Mahendra Singh (A-1) and, therefore, there would not be many willing villagers to depose against the accused; and (b) that from the testimony of PW9 it appears that despite efforts/ raids the accused could not be promptly arrested which is suggestive of a guilty mind. To test whether those observations had foundation on the evidence on record and had a legal basis, we have carefully perused the record. Upon a close scrutiny of the record, we find that neither the police witnesses nor the alleged eye-witnesses have deposed about the criminal antecedents of the two accused. PW1 and PW2, who were declared hostile, were not specifically questioned in respect of their fear to tell the truth on account of abduction of Mohan Lal (informant). Further, PW3 also did not make any such statement which may indicate that any threat was extended to him though he stated that he and his sons amongst others were implicated in a case in which they had to go to jail. Under the circumstances, the trial court appears to have taken note of that aspect on the basis of oral submissions which, in our considered view, is not appropriate. In respect of conduct of the accused in evading arrest, we may observe that it has not come in the testimony of PW9, who allegedly made efforts on several dates to arrest the accused, that any declaration under section 82 CrPC was obtained. Moreover, from his testimony it appears that the accused surrendered in court on 01.07.2002 and that no application was moved by PW9 to take them into police custody for recovery/ discovery of any incriminating material. Even otherwise, mere abscondence of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Otherwise also, abscondence by itself is not sufficient to prove the guilt. At best, it may lend weight to other evidence establishing the guilt (vide Raghav Prapanna Tripathi vs State of Uttar Pradesh, AIR 1963 SC 74; Sunil Kundu and another Vs State of Jharkhand, (2013) 4 SCC 422; Bipin Kumar Mondal vs State of West Bengal, (2010) 12 SCC 91; and Paramjeet Singh @ Pamma vs State of Uttarakhand, (2010) 10 SCC 439). Under the circumstances, keeping in mind the nature of the testimony of PW9, we do not consider that mere delay in the arrest of the accused-appellants, without there being any declaration under section 82 CrPC, is an indica of their abscondence suggestive of their guilty mind and, therefore, the observation to the contrary made by the court below is uncalled for. More so, when such circumstance has not been put to the two accused while recording their statement under section 313 CrPC.
25. Now we shall proceed to analyse the evidence led by the prosecution. Apart from the testimony of formal witnesses, there are essentially two types of evidence to support the prosecution case. One is the alleged dying declaration (Ex. Ka-8), recorded by PW8, and the other is the ocular account rendered by PW3.
26. We shall deal with the dying declaration first. The dying declaration (Ex. Ka-8) recites that the deceased with great difficulty could speak that in the previous night in connection with the marriage of Manju, the daughter of Prem Singh, Baraat had come and a dance programme was on. He (the deceased) along with fellow villagers was part of the audience. Sitting near him were Munshi Lal (PW3); and his nephew Ranveer (PW1). At about 1.30 am, in the night, he left to urinate. As soon as he got up after urinating, Mahendra Singh (A-1) and his brother Geetam Singh (A-2), who had also come to witness the dance programme, arrived. Mahendra Singh stopped him and Geetam Singh fired at him with country made pistol. The shot hit him on the right side of his rib cage. Upon being hit, he cried /shouted. Hearing his cries and the sound of gun shot, Munshi Lal (PW3), his nephew Ranveer Singh and others came running and tried to arrest the two accused but they ran away towards the west. In his narration, the deceased proceeded to disclose his enmity with Mahendra Singh (A-1) on account of land dispute. He also added that after hearing gunshot complete panic had set in and the dance programme had stopped.
27. The alleged recording of the statement of the deceased prior to his death by PW8 does not appear to be probable for two reasons. Firstly, from the testimony of PW-6, it appears that the injured stayed at the police station only for 2 - 4 minutes till the first information report was registered and Chitthi Majroobi was prepared and no sooner the Chitthi Majroobi was prepared, the deceased was rushed to the hospital. Thus, there was not sufficient time for PW8 to record the statement of the deceased. Secondly, the condition of the deceased was extremely serious. Whether he was in a condition to speak is anybody's guess, because, according to PW6, the deceased was just lying on the tractor and was not speaking. Admittedly, his right lung and liver was ruptured, rib was fractured and blood was there in his abdomen. According to the doctor (PW7), in such a state, it would be very difficult to expect that he would be in a position to speak.
28. Apart from the above, the dying declaration was not recorded after lodging the FIR and in the form in which it ought to be recorded as per the U.P. Police Regulations. According to PW8 he was called from his quarters and while the FIR was being lodged he spoke to the injured i.e. the deceased Bhagwan Singh. Neither the time nor the date of recording of the dying declaration is entered. The dying declaration is also not witnessed. Further, no signature of the injured was obtained. Taking a conspectus of all the facts i.e. the manner in which the alleged dying declaration was recorded, the statement of PW6 that the injured was just lying on the tractor and not speaking, the short duration of time during which the injured was at the police station and the medical evidence negating the probability of the injured being in a position to speak, leads us to the conclusion that the so-called dying declaration is wholly unreliable and has to be discarded.
29. Coming to the ocular account, no doubt, the prosecution examined three eye-witnesses but, out of the alleged three eye-witnesses, two were declared hostile. However, from the testimony of those two hostile witnesses it is proved that the deceased had gone to witness dance party in a marriage and that the FIR (Ex. Ka-1) was scribed by PW2. Further, from the statement of PW2, made during his cross examination by the defence counsel, it appears that PW1, PW2, and PW3 were all there, as, according to PW2, upon receipt of information that some one had shot Bhagwan Singh, he, his maternal uncle Mohan Lal (the informant), Munshi Lal (PW3), Ranveer (PW1), all four had gone to the spot to find Bhagwan Singh lying injured in the field near the tube-well of Dori Lal. Although, during his cross-examination by the defence counsel, PW2 gives the time of the incident as about 10 pm of the previous day i.e. 24.05.2002 but he admits that the deceased was brought to the police station by the informant Mohan Lal, amongst others, and from there he was taken to the hospital. The registration of the FIR at about 3.05 am is proved by PW6. He also proved that the deceased was alive at the time when he was brought to the police station. According to the doctor (PW7), the deceased, with the kind of injury he had, could have survived just for one-half to one hour, therefore, by rough estimation the incident did occur on or about the time put by the prosecution, that is to say at about 1.30 am. The place of occurrence was proved by the testimony of the prosecution witnesses which was corroborated by the blood-stained earth lifted from the spot by PW8. Thus, from the evidence led by the prosecution, it is duly proved that the incident occurred on or about the time put by it and at the place where there was music and dance in connection with the marriage of Prem Singh's daughter Manju.
30. The prosecution case, both in the first information report as well as in the ocular account rendered by PW-3, is to the effect that the deceased Bhagwan Singh was part of the audience to the dance programme and that, during the course of that programme, he went to urinate. According to PW3, he was stopped by Mahendra Singh (A1) and was shot by Geetam Singh (A2). Now, the issue which arises for our consideration is whether PW3 witnessed the actual firing or he was part of the audience of the dance programme at the time when the shot was fired and arrived with others upon hearing gun shot or the cries of the deceased.
31. Before we dwell into that issue we may notice that an effort has been made by the defence to demonstrate that PW3 had gone to purchase Buffalo on that day to another place and stayed there over night and, therefore, could not have witnessed the incident. However, this effort of the defence could not succeed as the witness who was produced from the defence side could not give the date. Moreover, from the other bits and pieces of evidence it was satisfactorily proved that PW3 was part of the audience of that dance.
32. Reverting to the issue whether PW3 actually witnessed firing of the shot at the deceased or arrived as others on hearing the shot, we find that from the sequence of events as they emerge from the prosecution evidence, one thing is clear that the deceased though was part of the audience but had left them to urinate. Ordinarily, when a person goes to urinate, he would try to find a place where he may not be noticed because it is not expected that a person would urinate in the gaze of others, more so, when there is a marriage gathering. The site plan of the place of occurrence (Ex. Ka-9), which has been prepared by PW8 on the pointing out of PW3 would suggest that the dance party was on a stage north of point B where the audience was seated. Point A is the place where the deceased was urinating and where he was shot at. The distance between point B and point A is 30 paces. Point C is the place where the deceased ran to and fell after being hit. The distance between point A and point C is 35 paces. Notably blood-stained soil was lifted from point C only. Direction wise, point A is south of point B, whereas, point C is north east of point A. The accused appellants are stated to have escaped towards west of point A, which would be south-west of point B, that is the place where audience was seated. Interestingly, the site plan which was prepared by PW8 on the pointing out of PW3, as admitted by PW3, does not specifically disclose the point from where PW3 and other witnesses witnessed the shooting though in entry no.2 of the index to the site plan it is stated that from point B the witnesses, upon seeing the occurrence, came rushing and gave a chase to the assailants. During his cross-examination on 08.04.2004, PW-3 stated that the stage was open towards Jamunai side (which, according to the counsel for both sides, would be south as river Jamuna flows south of that area) and was covered from the remaining sides. He stated that he was sitting outside the canopy (Pandal) towards south whereas Ranveer Singh (PW1), Mohan Lal (informant) and the deceased Bhagwan Singh were sitting in front of him. When he had reached the marriage party, Ranveer, Mohan Lal and the deceased were already seated. The statement of PW-2, who is the scribe of the FIR, but whose presence is not acknowledged by PW3, during his cross-examination by defence counsel, would reveal that at the time of the incident, he was sitting with his maternal uncle Mohan Lal and Munshi Lal (PW3). There they learnt that someone had shot Bhagwan Singh, upon which, he, his maternal uncle and Munshi Lal, Ranveer Singh went to the spot and found Bhagwan Singh in an injured condition. We may not rely on statement of PW2 because he has not been consistent and has been declared hostile but his testimony is relevant as a corroborative circumstance that PW3, Mohan Lal, Bhagwan Singh and Ranveer Singh were all together and part of the audience. Considering that Bhagwan Singh left the audience to urinate, a strong probability arises that he may have been alone at that point in time. Thus, whether the witnesses came on hearing gun shot or were there while he was urinating is a crucial question. To solve this riddle, PW-3, during his cross-examination, dated 08.04.2004, stated as follows:-
^^ ?kVuk LFky ij eSus tc Qk;j dh vkokt lquh rks mlds T;knk ls T;knk 2 feuV igys Hkxoku flag mBdj is'kkc djus dks x;k FkkA Mkal ikVhZ ds LFkku ij eSus eqfYteku dks cSBs ugha ns[kk FkkA eSus eqfYteku ds vkus dh fn'kk ugha ns[kh dsoy ;g ns[kk Fkk fd og jke fd'ku ds [ksr esa [kM+s FksA tc eSus mUgs jke fd'ku ds [ksr esa [kM+s ns[kk mlds 1 feuV ds vUnj gh eSus Qk;j dh vkokt lquhA eSa is'kkc ds fy, mBk Fkk tc eSaus eqfYteku dks viuh vka[kksa ls xksyh ekjrs ns[kkA ?kVuk ds le; eS is'kkc ds fy, mBdj ckgj x;k dh ckr eq>ls fdlh us ugha iwNh Fkh blfy, ;g ckr vkt rd eSaus fdlh dks ugha crkbZA Hkxoku flag is'kkc djds tc [kM+k gh gqvk Fkk fd mlh le; blds xksyh ekj nhA ^^"
33. The above statement of PW-3 appears to be a deliberate attempt to explain his presence at the spot where Bhagwan Singh was shot at. But this statement of his does not inspire our confidence because it was made immediately after he was caught on the wrong foot, that is when he stated that he heard gun shot just 2 minutes after Bhagwan Singh had left to urinate. This slip of tongue coupled with the circumstance that in the site plan, prepared on the pointing out of PW3 himself, PW3's location as a person who separately witnessed the incident, standing close by, was not shown and instead the place from where witnesses in general watched and arrived, which was point B, 30 paces away from point A, that is the place where shot was fired, was disclosed, suggests that PW3 had arrived on the spot with others after hearing gun shot as is also the case of PW2. Once that is the position, keeping in mind that it is a case of solitary gun shot, with no scuffle, and could be a case of hit and run, the circumstances exclude the opportunity for the witnesses to spot and identify the assailant. There is another circumstance which makes us wonder whether PW3 actually witnessed the shooting because, according to him, after being hit from a close range, Bhagwan Singh ran from point A to point C, that is 35 paces, which does not appear probable, inasmuch as, according to the doctor (PW7), he would not be in a position to walk with lung, liver and small intestine ruptured and rib fractured. Though no doctor with certainty can predict the immediate reaction of a person who has received an injury but it does throw a possibility that the deceased was actually shot at point C and not at point A. More so, when he was picked up from point C and blood was also noticed at point C only. If he was shot at point C then the narration of PW3 about the incident falls to the ground. When we notice the site plan (Ex. Ka 9) we find that point C is towards east of point B where the audience was seated for the dance programme whereas point A was south of point B. The statement of PW3 indicates that the stage was covered with a canopy from three sides and was open towards Jamunai side, which would be south, as already noticed above. Thus, if the incident occurred at point C there would be complete blockage of vision due to canopy coverage on three sides. Hence, it appears to us that deliberately location of shooting was disclosed at point A even though the injured was found lying at point C and blood was also found at point C, which probabilizes that the incident occurred at point C and not at point A. More so, because if one goes to urinate he would like to be at a place where he would not be spotted urinating.
CONCLUSION
34. Keeping in mind all that has been discussed above and the fact that deceased's close relatives have turned hostile and that PW3 himself appeared to be inimical to the accused, as he and his sons were implicated in a case at the instance of the accused and had to go to jail, the testimony of PW3 that he actually witnessed the shot being fired at the deceased does not inspire our confidence. We are rather of the view that PW3 and others were there amongst the audience of the dance party of which the deceased Bhagwan Singh was also a part. The deceased however left the audience to urinate. When he was out urinating, he was shot at by some one. Hearing the shot, the witnesses arrived and took the deceased to the police station and the hospital. At the police station, may be on strong suspicion or by guess-work, on the basis of past enmity, the accused were named as is the narration by PW2 during his cross-examination by the defence. Though PW1 and PW2 were declared hostile but no specific question was put to them to demonstrate that they turned hostile for any specific reason. PW3 tried to ensure that the accused who had implicated him and his son in another case be punished. To succeed in that errand, he tried his level best to pose as an independent witness even though it appeared, both from the testimony of formal witnesses as well of his own son, namely, Bhuri Singh (PW5), who stated that the deceased was uncle in relation to him, that he was closely related to the deceased. All of this coupled with the fact that the prosecution examined no independent witness despite the fact that the incident occurred at a time when a dance programme was on, keeping in mind the statement of PW9 that he took no pains to enquire from the members of the dance party as to how the incident unfolded as also that there was no recovery from the accused of any incriminating material to lend corroboration to the prosecution story, leaves us with no option but to extend the benefit of doubt to the two accused.
35. At this stage, though it is not required as we have already taken a decision to extend the benefit of doubt to the two accused, we may observe that there was no convincing evidence to indicate that Mahendra Singh had shared common intention with Geetam Singh to whom the role of firing at the deceased was attributed. Mahendra Singh was attributed only the role of stopping the deceased without disclosing whether he exhorted the main shooter to finish off the deceased or that he caught hold of the deceased with a view to immobilise him so as to enable the shooter to finish off the deceased. Further, the alleged weapon of assault is a country made pistol which can easily be concealed. It is not shown that when Mahendra Singh stopped the deceased, Geetam Singh had already taken out his gun. Under the circumstances, in absence of any evidence of a premeditated plan, fastening liability on accused Mahendra Singh by invoking the provisions of Section 34 IPC was not justified. However, surprisingly, both the accused were tried for the charge of murder read with Section 34 I.P.C. when, in the facts of the prosecution case, the main shooter should have been tried with the charge of murder simpliciter, punishable under Section 302 I.P.C., and the other with the aid of Section 34 I.P.C.
36. In view of the foregoing discussion, we are of the considered view that prosecution has not been able to establish the guilt of the accused-appellants beyond reasonable doubt and, therefore, the accused-appellants are entitled to the benefit of doubt. Consequently, the appeal is allowed. Both the appellants are acquitted of the charge for which they have been tried. The appellant No. 1 (Mahendra Singh Baghel) is reported to be on bail, he need not surrender subject to compliance of the provisions of Section 437 A CrPC before the trial court below. In so far as appellant no. 2 (Geetam Singh Baghel) is concerned, he is reported to be in jail. He shall be released forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437 A CrPC before the trial court below.
37. Let a certified copy of this order and the record of the trial court be sent to the trial court forthwith for information and compliance.
Order Date :- 18.12.2020.
Sunil Kr Tiwari