Allahabad High Court
Ram Bhool vs State Of U.P. on 14 March, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement reserved on 31.1.2019 Judgment delivered on 14.3.2019 Court No. - 1 Case :- CRIMINAL APPEAL No. - 3099 of 1983 Appellant :- Ram Bhool Respondent :- State Of U.P. Counsel for Appellant :- Keshav Sahai,Janardan Prasad Tripathi,Sudhir Kumar,Viresh Misra Counsel for Respondent :- A.G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J. )
1. Heard Sri Janardan Tripathi, learned counsel for the appellant, Sri Pawan Shukla, learned A.G.A. appearing for the State and perused the record.
2. This criminal appeal has been preferred against the judgment and order dated 14.12.1983 passed by the 7th Additional Session Judge, Moradabad in S.T. No. 13 of 1981 (State vs. Ram Bhool), whereby the accused appellant Ram Bhool has been convicted under section 302 IPC and awarded punishment for life imprisonment and also has been held guilty under section 29 of the Police Act and awarded punishment of three months imprisonment and both the sentences are directed to run concurrently.
3. The prosecution case as unfolded from the FIR is that on 2.9.1980 at about 5.30 p.m. informant Professor Ravindra Singh Solanki (PW1), Lecturer, Department of Geography, J.S. Hindu College, Amroha was strolling in his quarter situated within the college campus, all of a sudden, he heard sound of gun coming from the side of the Varandah of college, pursuant to which he went there and saw that in front of room no. 21, where two police men used to remain on duty with guns, out of them, one constable Ram Bhool (accused) after having seen him threw his gun from the Varandah and ran towards road. After reaching the place of incident, he saw that constable Ishwari Prasad Tiwari was lying on the cot and was within writhing with pain and was screaming also. There was lot of blood on the cot as well as on the floor of the room. In the meantime, Professor Dr Satya Priya Shashtri (PW2) Tribhuwan Prakash Sharma (PW3) also reached there. He (PW1) enquired from Tiwari as to what had happened, whereon Tiwari had stated that his colleague constable Prem Pal had gone to take meals and in the meantime constable Ram Bhool (accused), who was on duty yesterday with him, came and had told him that he wanted to go home without proper leave which was refused by him and on this count an altercation had taken place between them and he had given a threat to him that he would see him. Today he came and after firing upon him with musket, fled from there, therefore, he should make report to the police station by going on his cycle. Ram Bhool was also seen fleeing from there by a betel shop owner who was having a shop out side the main gate and also by two other persons.
4. Upon written report (Exhibit Ka1), case crime no. 426 was registered at P.S. Amroha district Moradabad on 2.9.1980 at 5.55 p.m. against constable Ram Bhool by (PW9) Head Constable Chandrapal Suman Pathak who has prepared chik FIR in his handwriting, which is Exhibit Ka-3 and made entry of this case in G.D. at report no. 30 time 7.55 p.m. on 2.9.1980, which is Exhibit Ka-8. On same day at 18.30 hours he converted the said case under section 302 IPC upon death of the deceased and desptached his head body through constable 476 Tula Ram along with form of Panchayatnama to the hospital. The case was handed over to S.S.I. K.C. Verma, Incharge, Police Station Kotwali, Amroha (PW10) on 2.9.1980 and he immediately after registration of the case went to the place of incident and first of all he recorded statement of the injured Ishwari Prasad Tiwari who while giving his statement fainted, his condition was very critical. For his treatment, he was taken to hospital on patrol car and was admitted in the hospital at 6.15 P.M. At 6.30 p.m. doctor declared him dead. Thereafter, he recorded statement of Ravindra Singh Solanki, Sat Priya Shastri, Tribhuwan Prasad Sharma. Thereafter, he inspected the place of incident and prepared site plan Exhibit Ka-10 in his handwriting at the instance of the witnesses. He collected blood stained and plain soil from the place of incident and prepared its memo which is Exhibit Ka11. At the place of incident, near the tree of Gurhal one Musket and one empty cartridge which was stuck in the chamber of musket were found. A changer was also found by which cartridges are filled. All these articles were taken into possession and recovery memo Exhibit Ka-12 was prepared. The musket, empty cartridges and blank changer recovered from the spot, are material Exhibits 1 to 3 respectively. He had also taken into possession 'Bandh' from the cot on which the deceased was lying and prepared its memo which is Exhibit Ka-13. Thereafter, he recorded statement of Kamta Prasad Jauhari, Satish Chandra Agarwal and Prempal and thereafter returned to the place of incident. Before his reaching hospital, S.I. M.S. Negi was directed to conduct the proceedings of Panchayatnama and when he reached hospital again he recorded statement of Dr. Vijai Pal Singh, O.M.I. and Sri M.S. Negi S.I. who had prepared Panchayatnama. The Panchayatnama was in the handwriting of Sri M.S. Negi, whom he has seen writing and has proved the Panchayanama as Exhibit Ka-14. From the body of the deceased one wrist watch and Rs.8.75/- were also recovered and taken into his possession in the presence of S.I. M.S. Negi and prepared its recovery memo which is Exhibit Ka-15. Thereafter, he went in search of the accused from the hospital. After completing Panchayatnama, the dead body was despatched through Constable Ram Swarup and Constable Tula Ram in sealed condition for postmortem along with police form no. 13 which was written by S.I. M.S. Negi, which is Exhibit Ka-16. Thereafter, again he made search of the accused and on 3.9.1980, he recorded statement of Kamal Haidar, Mahfoozul Rahman, Fakrauddin Ahmad, Prakash, Khurhseed @ Zia, Chandrapal Suman, Head Moharrir. On 5.9.1980, he recorded the statements of Bihari Lal, Mohd. Quddus @ Shera (PW4). On 7.9.1980 he proceeded to Shikarpur in search of accused and made search of his house where he recovered his official address and other articles and made its recovery memo which is Exhibit Ka-17. Thereafter, he recorded statement of witnesses of village Shikarpur, District Bulandshahar namely Smt. Buddhi, Ram Sewak, Khemchandra, Layakram and Om Prakash Sharma. On 20.9.980 he recorded the statement of Babu Ram and Ram Kumar and on 28.10.1980 he recorded the statement of Bhura (PW5), Lala Ram, Latoor Singh and on the same day he also recorded the statement of Head Constable Pyare Lal, Head Constable Rameshwar Dayal, Constable Kuldeep Singh, Constable Tej Ram. On 29.10.1980 he recorded statement of Dr. S.K. Anand, Constable Ram Swarup Sharma and on the same day accused Ram Bhool was found in jail where he had recorded his statement also. Thereafter, he was transferred to Chandausi. He had completed the investigation of this case but after him, S.I. Kishan Singh had filed charge-sheet which has been proved as Exhibit 18 by this witness as he knew his handwriting and signature.
5. On the basis of evidence on record, the trial court had framed charge against the accused-appellant under section 302 IPC and 29 of the Police Act on 5.8.1981 to which he pleaded not guilty and claimed to be tried.
6. In order to prove its case from the side of the prosecution, informant Ravindra Singh Solanki as PW1, Satya Priya Shastri as PW2, Tribhuwan Prakash Sharma as PW3, Mohd. Quddus as PW4, Bhura as PW5, Dr. Lalit Kumar Anand as PW6, Pyare Lal as PW7, Vijai Pal Singh as PW8, Chandra Pal Suman as PW9 and K.C. Verma as PW10 have been examined.
7. Thereafter prosecution evidence was closed and statement of the accused was recorded under section 313 Cr.P.C. He has stated that he was posted as Constable under the jurisdiction of police station Kotwali, District Amroha and prior to the incident he was deputed on examination duty in J.S. Degree College. He had also admitted that on the said date Const. No.1466 Ishwari Prasad Tiwari (deceased) was also deputed with him. He denied that one day prior to the occurrence, he wanted to go home from duty and stated that on 1.9.1980 he had left the duty and had gone. He denied that the deceased had prohibited him for going on leave because he was nobody to grant him leave. He denied that he had any altercation with the deceased and had given him any threat that he would see him. He has shown ignorance in respect of the evidence, which is on record that the deceased had gone on same day and had informed at police outpost Pashatta to Dewanji and another official and had prayed that one of the two, out of them should be removed from the college duty. He denied that on the complaint of the deceased he was removed from the college duty and was deputed to Kotwali Amroha. He also denied that in his place, Constable Prempal was deputed on college duty and also denied that on 2.9.1980 at about 5.30 p.m. in J.S. Degree College, Amroha in front of room no. 21 he had fired upon the deceased by which he became seriously injured. He has also denied that soon after the incident, he was seen fleeing from there by Professor Ravindra Singh Solanki, Satya Priya Shastri, Tribhuwan Sharma, Bihari Pal, Betel Shop owner, Mohd. Quddus, Saw Mill owner. He also denied the evidence that soon after making fire, he came out of the college gate in nervous condition and went on a Rikshaw of Bhura, towards Katra and got down near Gali. He also denied that after hearing the sound of fire, Professor Ravindra Singh Solanki, Satya Priya Shastri, Tribhuwan Prakash Sharma reached on the spot and that the deceased had told them that just now Constable Ram Bhool (accused) had ran away from there, after having shot at him and entire evidence in this regard was stated by him to be false, given only with a view to implicating him. He had showed ignorance about the challani documents. Lastly, he stated that witnesses did not recognize him. He had moved an application for his identification but the police deliberately did not get him identified. Further, he stated that the witnesses examined from the side of the prosecution have given false statement under pressure of police and due to enmity against him. Moreover, he also asserted that the policemen of the said police station wanted wrong work to be done by him which he declined and because of being annoyed, he has been falsely implicated. He has examined in defence Jitendra Kumar, Judicial Magistrate II, Collectorate, Moradabad as DW1, Dayanand Saxena, Head Clerk, Police Office, Moradabad as DW2, Pradeep Narain Goel son of K.K. Goel as DW3.
8. After having considered the above evidence and having heard learned counsel for the parties, learned trial court has held the accused guilty under the aforementioned sections and has awarded the said punishment.
9. We have to see whether the learned trial court has rightly held the accused guilty or does the said judgment require any interference in the light of proper appreciation of the evidence.
10. Learned counsel for the appellant has vehemently argued that the accused has been falsely implicated. There is no sufficient evidence on record to hold him guilty and the appreciation of the evidence made by the learned trial court is biased and against the evidence. The weapon, by which the injury is alleged to have been caused to the deceased, was not recovered nor was sent for being examined, to Forensic Science Lab. The deceased is stated to have given statement before the abovementioned three eye witnesses naming therein the accused to be present, who had made fire upon him and fled from there and also the reason therefor which is not believable because he was not in a condition to make any statement as he was in a serious condition and no such long statement could have been made by him. He came to know that it was the Rambhool who had made fire upon the deceased on the basis of the description of the incident given by the deceased to him and also to two other persons who had reached there. Further, it was argued that the other two witnesses namely PW2 and PW3 had reached the place of incident even after PW-1 reaching there. Hence none of these witnesses could be treated to be eye witness. It was also stated by him that the deceased had reached the hospital in dead condition and not alive. The prosecution has stated its case to be that the deceased was being alive at the time of reaching the hospital only to fabricate false evidence against him. He has also drawn attention towards the statement of PW6 Dr. Lalit Kumar Anand in which he has stated in cross-examination that he could not tell as to how long after getting hit by the fire arm injury, the deceased might have died because that would depend upon the bleeding, which took place. If it had bled profusely, he might have died soon after getting hit by the fire arm injury and might have turned unconscious but he cannot exactly tell as to till when he might have been conscious. Citing this statement, it was argued that his condition was not such that he would have made such long dying declaration before the three witnesses and also before the Investigating Officer. Therefore, these statements need to be discarded. Regarding rest of the evidence i.e. of PW4 Mohd. Quddus who is owner of Saw Machine, PW5 Bhura, Rikshaw Pullar and PW6 Betel Shop owner, it was argued that they did not recognize him (accused), therefore, their testimonies could not relied upon unless identification parade was got done by the Investigating Officer, which has not been done in the present case. It also argued that one application in that regard was moved before the Magistrate from the side of the accused whereon the Investigating Officer was also directed to hold identification parade but the same was not done, therefore, the statement of these witnesses may not be relied upon wholely. The accused deserves to be acquitted being given benefit of doubt.
11. From the side of the prosecution, learned A.G.A. has stated that there is no infirmity in the judgment which needs to be upheld because the prosecution witnesses PW1 to PW3 had reached the spot soon after the occurrence and all of them had seen the accused feeing from there after committing the offence and the deceased had also made dying declaration before them stating clearly the reason why the deceased was assaulted by the accused and that the doctor's testimony (PW6) also clearly establishes that the deceased did not die instantaneously and for reasonably good time he might have been alive and in conscious condition to give statement. Therefore, in such situation, if the Investigating Officer has recorded dying declaration of the deceased as well as the oral statement is given by the deceased in respect of his death to PW1 to PW3, they cannot be discarded and they should be treated to be clinching evidence against the accused. It was also argued that other witnesses namely Mohd. Quddis and Bhura were natural witnesses who cannot be disbelieved because Saw Mill of witness is situated in front of the gate of the said college and he has clearly stated that he knew the accused because he used to purchase betel from the shop which was situated outside the gate of the college and he knew him (accused). The Rikshaw Pullar, Bhura had also given circumstantial evidence to the effect that when he returned after dropping the accused, back to the same place i.e. the college, he came to know that a policeman had killed another policeman. Therefore, he also corroborated the said evidence; hence his testimony would be taken to be a corroborative piece of evidence. As regards PW1 to PW3 even they have clearly stated that they knew the accused because he was deputed in the college for a long time and it was not difficult for them to identify the accused.
12. In support of the F.I.R. version mentioned above, Prof. Ravindra Singh Solanki, PW-1, has stated examination-in-chief that he knew the accused Ram Bhool, who is present in court, as he has remained deputed for examination duty in his college for about one and half to two years. On 2.9.1980 at about 5:35 pm, when he was strolling in front of his quarter in Lawn, all of a sudden, he heard a sound of fire coming from the Verandah of library, soon after he reached there in front of room no. 21, where two police men used to remain deputed with their guns out of them, one namely Ishwari Prasad Tiwari was lying on cot in pool of blood and was crying with pain. Just before that, when he was going from there, after seeing him, the other Constable Ram Bhool Singh (accused) threw musket near the Gudhal tree in front of Varandah and fled towards college gate in the eastern direction, in the meantime Prof. Satya Priya Shastri and Tribhuvan Prakash Sharma also came on the spot. He in front of them asked Sri Tiwari about the occurrence whereon, he stated that just now, his companion Constable Ram Bhool Singh has fled after making fire upon him by musket and when he was inquired the reason why he did so, he told, yesterday in the morning, he had an altercation with Ram Bhool because he was telling him to abstain from duty as he wanted to go home, which was refused by him, because of which he was given a threat that he would see him. About this, an information was given by him at the police chauki as well and had told him that out of them, either one of them should be removed from the college duty and because of that reason, another (third constable) namely, Prem Pal Singh was deputed in place of Ram Bhool Singh. Prem Pal had gone to have his meals, just few hours ago and in the meantime Ram Bhool has come and has shot upon him the bullet by musket. Tiwari (deceased) also told that because of his being on fast of Janmashtmi, he was feeling little sluggish and weak from within due to which he had lied down on the cot. The room in which musket were kept, the same used to remain locked but today it was open and the lock was kept on the stool in front of room due to which the accused Ram Bhool did not have any difficulty in taking out musket, while telling all this in a hurry, he also told him that he should go on his bicycle to inform the P.S. and pursuant to that he went on his bicycle to the Kotwali Amroha and gave a written report there on the basis of which, F.I.R. Ext. Ka-1 was written. After having recorded his statement at the P.S., S.O., reached place of incident along with his force for necessary action. He has also stated that apart from Prof. Satya Priya Shashtri and Chaukidar Tribhuvan Prakash Sharma, soon after the incident, when accused ran away from there, a beetle shop owner Bihari Lal, who had his shop at the gate of college and owner of saw machine namely Naushi Ali S/o Sher Ali and the owners of tea shops had also seen him. Thereafter, when police became busy and came into action, he went back to his quarter.
13. In cross-examination, this witness has stated that he is working in J.S. Hindu College since 1974. Since 1974, when police was deployed there, on different dates, information regarding the same could be given only by the principal but he knows that during examination period, the police used to remain deployed and this occurrence had taken place during examination in the college. He also stated that as to on which date, the police was deployed, he cannot give exact date but it was certainly deployed before examination had started and the examinations were proceeding since last one month. He also cannot tell as to how long after the occurrence, the police remained deployed there, but replied on the basis of guess that it might have been deployed for about one or one and half weeks. Thereafter, on this point, long cross-examination has been made by the defence counsel, which need not be reproduced here because it appears to have been made only to disapprove that there was any police deployed there. Thereafter, he further stated that he does not recollect whether all the things, which were disclosed by deceased Ishwari Prasad were got written by him in his report or not, but he had certainly told about them to S.H.O.. Soon after reaching the P.S., the S.H.O. was given information of this incident as he was present there and all the details which were divulged by the deceased Ishwari Prasad, were reported to the S.H.O. Thereafter, Deevan Ji had asked him to give a report in writing, whereon he had written the report (Ext. Ka-1) inside the P.S.
14. He has further stated that he probably had written in the report that he had inquired from the deceased the reason for being assaulted and when he was shown report Ext. Ka-1, after having read it, he stated that in this report he had written as to what talk had taken place between him and the deceased, and that meant that he had inquired from him as to what was the reason for being assaulted. He also had inquired from the deceased, how it all happened and by it he meant to ask him the reason why he was assaulted. He had also inquired from him as to why he was assaulted. He had not written in his report these words " maine yah pooncha tha ki kyu mara". Further he has stated that he has not written in his report that deceased had told him "is bat ki soochna maine apne police chauki par bhi de di thi aur kaha tha ki ham dono me se kisi ek ko duty se hata liya jave aur is karan ek teesra sipahi Prem Pal Singh ki duty Ram Bhool ki jagah laga di thi" but in his report there is no mention made of Prem Pal Singh. He has further stated that he could not right the above mentioned facts in report because he was tense. He had also written in his report that the deceased had told him that Prem Pal had gone to have his meals. In his report, he did not mention in respect of going to P.S., the same got omitted. He also could not right in the report that the deceased had told him that due to giving examination and on that date he being on the Janmashtmi fast, he was feeling sluggish and weak because of which he had lied down on a cot in front of room no. 21. Again he stated that not writing this fact in the report, was due to his being in tension. He had also not written in his report that the deceased had told him that the room in which the musket used to be kept, there used to be lock on that but today lock was open and was kept on a stool in front there, because of which, Ram Bhool did not find it difficult to take out musket. He further stated that circumstances became such that he could not mention these details. Further, he stated that he does not recollect as to whether he had stated before the I.O. or not that the deceased had told him that due to giving examination and he being on fast on the said date, he was feeling sluggish and weak. He has reiterated that whatever was told by the deceased to him, was stated by him in the examination-in-chief and nothing else was told by the deceased and does not recollect that the deceased had also told him or not this fact that the room in which musket used to be kept used to be locked in the night. But he stated that probably, he had stated before the I.O. that the deceased had told him that the lock of the said room used to be closed in the night. The Verandah in front of the room no. 21 is about 10 feet by 70-80 feet in breadth and length respectively and the room no. 22 is located almost in the middle of it and in front of the Verandah, there is open place which is about two to two and half feet below Verandah and adjacent to the Verandah, on the lower plinth, is a tree of Gudhal.
15. Further this witness has stated that after the end of Verandah, his quarter begins at a distance of about 25 to 35 paces towards West. When he heard the sound of fire, at that time he was strolling in front of his quarter on the grass and must have been about 5 to 7 paces away from the door of his quarter. On the date of occurrence, there was atmosphere like one would find during communal riots in Moradabad but he could not say whether actually communal riots were happening in the city or not, but certainly tension was there, although prior to the occurrence there was no curfew in force. He did not feel scared when he heard sound of fire, although he was little surprised and soon after hearing the said fire, he reached the place of incident without making any hue and cry, rather went there silently and the first sight fell of Ram Bhool, who was running towards East, he had not reached near the gate, rather he was much before that and by that time he could hardly flee one to two paces from the place of incident but he did not try to stop him nor did he make any effort to shout at him. When he was talking to the deceased by that time Satya Priya Shastri and Tribhuvan Sharma had reached there. Lot of cross-examination has been made on the point that in which direction his head and feet were at the time of occurrence and whether, he was lying by the side or straight etc. which we do not consider important to reproduce here.
16. Further this witness has stated that he after taking bicycle of the deceased, had gone straight to the P.S. without stopping anywhere. He had not talked to anyone near the gate. He further stated that he does not recollect as to how he mentioned in Ext. Ka-1 report that Ram Bhool Constable was seen running by owners of few shops and one or two other persons. He had come to know the addresses of tea shop owners and owner of saw machine Sher Ali and a beetle shop owner Bihari Lal from the P.S. and it was also learnt by him at the P.S. that they had seen Ram Bhool fleeing from there. Soon after reaching the P.S., he had come to know about all these facts because panic had occurred there and these people had come to the P.S. but cannot tell as to from whom he exactly came to know about their names. Since the assailant was running, therefore, he could see his back only, and because of that he could not recognize him nor does he recollect as to what clothes he was wearing. He had not received any information regarding proceedings of identification of accused to be initiated/done. He had hardly taken three to four minutes time in reaching the P.S. but does not recollect whether K.C. Verma had accompanied him or not and he had taken hardly one minute or so in writing report (Ext. Ka-1) but its copy was not given to him by the police personnel. Further stated that he recognized that the person who was running was accused Ram Bhool. He came to know that it was Ram Bhool, who had assaulted the deceased on the basis of what was told to him by the deceased as well as two persons who met him at the P.S. and also by the persons who had come at the P.S. in panic.
17. He further stated that when he reached place of incident, there was lot of blood on the cot as well as on the floor which was around in the area of one to one and half square feet and was flowing. The deceased used to become unconscious due to uneasiness repeatedly and he was in extreme pain and was in agonizing condition. Lastly, he stated that it was wrong to say that he was stating so on account of pressure from the police.
18. PW-2 Dr. Satya Priya Shashtri, has also stated in examination-in-chief that on 2.9.1980 at 5:30 pm, he was busy in studying in the Verandah of his quarter and it was then that all of a sudden he heard sound of a gun which came from the side of Verandah of library, hearing which he rushed to the place of incident near room no. 21, where two constables used to remain deputed. He saw one constable namely I.P. Tiwari, who was profusely bleeding and prior to his reaching there Prof. Ravindra Singh Solanki had already reached there and, thereafter, Tirbhuvan Prakash Sharma (PW-3) had also come there. All of them had inquired from the deceased I.P. Tiwari, then he stated that his companion Ram Bhool Singh had fled from there making fire shot upon him. Deceased further stated to them that Ram Bhool wanted to go home without leave which was refused by him and which led to hot exchange between them because Ram Bhool insisted that he would definitely go and he had threatened him that he would see him. The deceased also told him that he had spoken about his difficulty at the Police Chauki that Ram Bhool should be taken away from duty and some other person should be deployed on duty in his place. This was told by him to Deevan JI at police Chauki and, therefore, in place of accused the other constable Prem Pal was deployed. The deceased has also stated to them that at that time, Constable Prem Pal had gone to have his lunch, while he himself was preparing for his examination and because of his being on fast of Janmashtmi, he was lying and dozed off and in the meantime accused Ram Bhool Singh came there and after taking musket, from the room, which was kept in front of the room no. 21, which was closed by a lock from outside and the lock was kept on the table and after making fire from it, he fled from there. This witness has further stated that Prof. Ravindra Singh Solanki had reached there prior to him, who had told him that the person, who had just run away in front of them, he was Ram Bhool. After some time, the beetle shop owner Bihari Lal who had a shop outside the gate came there and told that he had just seen Ram Bhool moving briskly towards mosque and one Sher Singh, who is owner of Saw machine over there has also told him that the accused Ram Bhool had gone from there on a Rickshaw. This witness has also stated that he saw there was musket lying near Gudhal. Tiwari Ji was in agonizing condition and Prof. Ravindra Singh Solanki had gone to the P.S. for giving information and after some time, he also returned home.
19. In cross-examination, this witness has stated that the quarter from where the deceased was fired upon was located towards West of the Varandah where occurrence took place and to the South of that Verandah, there were rooms constructed. To the West of Verandah where the place of occurrence exists, there are three rooms, out of them in one room there is library but he cannot tell exactly as to in which room the library was located. The occurrence had taken place in front of room no. 21 and to the West of that, in room no. 25 he used to teach and leaving one room thereafter, is located the library but he does not recollect as to what is the room number of the room which is situated next to library. Thereafter, long cross-examination is made from this witness in respect of location of room no. 21 and room no. 25 and the total numbers of rooms, which is not found relevant to be quoted here.
20. He further stated that about 30 to 32 paces away is located his quarter from the Verandah, where the incident had happened. The place where he was sitting at the time of occurrence is located in South-Western direction. Thereafter, he stated that whatever he has stated above was being stated on the basis of his memory as long time had elapsed since the occurrence and whatever could be remembered was stated. Further, he stated that whatever may have been told to the I.O. by him, must have been stated to him by the deceased but he clarified that the deceased had not told him that Deevan Ji of Police Chauki had got replaced duty of Ram Bhool by Prem Pal and this was stated by him to the I.O. also. The deceased had also told him that one day prior to the incident, he had altercation with Ram Bhool at about 5:00 am in the morning. Further a long cross-examination has been made on the point as to whether in fast of Janmashtmi people eat anything or remain without any food which is not very relevant. This witness has further stated that he does not recollect whether he has stated to the I.O. that the deceased had told him due to him being on fast, he had dozed off.
21. Learned counsel for the appellants has argued in this respect that the deceased was in fact asleep and some unknown assailants had fired upon him due to which he died and he could not see because he was already asleep and the accused-appellant has been falsely implicated.
22. He has also stated that at the time when deceased was telling details about the incident he, Prof. Ravendra Singh Solanki and Tribhuvan Prasad Sharma, all the three were present and the shop keeper of beetle shop, which was located nearby had also come to the place of incident within five to ten minutes after the occurrence and prior to that Ravendra Singh Solanki had gone to the P.S. for lodging the F.I.R. and that he (PW-2) was present on the place of incident for about 25 to 35 minutes and, thereafter, went home. He has denied that nothing, which has been stated above, was told to him by the deceased and that he was giving false statement because the deceased belong to his caste while the accused was of different caste. He also stated that when he had reached place of incident, deceased was in extreme pain and was in agonizing condition and sometimes he used to fall unconscious and he had found there lot of blood in a diameter of about one balisht.
23. PW-3 has stated in examination in chief that he knew the accused Ram Bhool, who is present in court as he was deployed in his college on duty. About two and half years back at 5:35 pm in the evening, he was sitting on the cot situated in front of Verandah, it was then that he heard sound of gun fire from the side of Verandah of library, whereafter he ran away in that direction and in front of room no. 21, two police personnel used to remain deployed on duty with gun and saw that Ram Bhool having seen him had thrown his gun near Gudhal tree in front of Verandah, which was adjacent to room no. 21. He fled towards the college gate near the beetle shop and right then Ravendra Singh Solanki and and Satya Priya Shashtri also reached there. The deceased Ishwari Prasad Tiwari was lying on the cot and was screaming in pain. Lot of blood was also flowing on the floor, the cot was also wet by blood. All the three of them inquired from him about the occurrence and then he stated that Constable Ram Bhool had ran away just now after making fire upon him because he wanted to go home without taking leave. Regarding this occurrence, he had stated to the Deevan Ji of Chauki Mashatta and two others companions also, whereon Ram Bhool had given him threat that he would see him. The deceased had told them that he had restrained him from going away from duty, which led to heated arguments between them. The deceased had further stated that he had made a request for one of them to be taken away from duty and on his complaint the duty of the accused was changed to Kotwali Amroha and in his place Prem Pal Singh was deployed in his college. At that time Prem Pal had gone for having his lunch to P.S. Kotwali and right then accused Ram Bhool came there and after making fire upon him by musket, had fled from there. Prof. Ravendra Singh Solanki had gone for lodging report in this regard to P.S. Kotwali Amroha. Accused Ram Bhool was seen running out of the gate by Bihari Lal, a beetle shop owner, Sher Ali, Saw machine owner and other persons having tea stalls apart from him.
24. This witness has stated in cross-examination that there are two gates in the college one in the North and the other in the South. To the West of the northern gate, there is a room and Verandah and Verandah must have been located at 40 paces distance from the room. Adjoining to the said building towards East there are rooms and in front of rooms, there is Verandah. At the time of occurrence, he was sitting in the room which was in front of northern main gate which was shown by him to the I.O. and after hearing sound of fire, he had run straight to the southern direction. The place from where he was sitting, after having run from 35 paces, he had seen the occurrence and denied that he had to run 60 to 70 paces to see occurrence. He had shown the place from where he had seen occurrence to I.O. He has refused to have knowledge as to who were deployed on duty from amongst police in 1967, 1978, 1980 and 1981. The deceased was loudly taking name of Ram Bhool because of which he came to know the name of accused Ram Bhool. The police had not spoken to him to identify the accused in jail. At the time of occurrence, Hindu Muslim fights were going on in Moradabad and Amroha. He has further stated that he was in a position to narrate the incident in the same manner in which it was stated to him by the deceased, who had told him that he was lying with his head towards West and legs towards East by the side and was feeling little sluggish and in the meantime Ram Bhool came, door was open of the room and he took out the musket from that room and after assaulting him by the same, he fled from there. His condition is very precarious. At the time of incident, he and Ravendra Singh Solanki were told by him to go to the Kotwali. He had also told him that yesterday he had altercation with Ram Bhool because of which he had done this and stated nothing else. He had also stated all these things to the Investigating Officer but it could be possible that because of lapse of time he may not have stated all with clarity and some portion might have been omitted. Further he stated that when he reached the place of incident, the deceased shouted loud in pain but sometimes he used to turn unconscious but he does not recollect whether he had told the I.O. about this fact or not. There was lot of blood collected beneath the cot. He had stated to the I.O. that the deceased had told him that Prem Pal was deputed in the college and that he had gone for having meals and in the meantime accused had come and had assaulted him by musket and fled. Thereafter, he was cross-examined by the court itself and he stated that the deceased had told him that Prem Pal had gone to have meals, in the meantime Ram Bhool had come and having seen the door open and finding him in half sleep, he took out a musket from the room and made fire upon him.
25. Further in cross-examination he has stated that deceased had told him that he was dozing off and at that juncture Ram Bhool had come and took out the musket and fired upon him and if these things have not been recorded in his statement by I.O., he could not tell its reason. Ravendra Singh Solanki and thereafter Satya Priya Shashtri and thereafter he reached the place of incident almost simultaneously. He was not told anything by Ravendra Singh Solanki and Satya Priya Shashtri. Further he stated that four to five minutes after the incident, the tea shop owner and some other persons had come there and out of them Bihari, Shera and Babu, owner of tea stall, stated that they had seen Ram Bhool running away from there. When these people had come there, by that time Ravendra Singh Solanki had left place of incident and hardly two to three minutes had passed since he left the said place. This witness has further stated that he had not gone to the P.S. nor did he make effort to catch hold of the accused because, he was busy in helping the injured recover, although he did not give any first aid to the injured/deceased. Further he clarified that by taking care of deceased he meant that he continued to remain on the spot.
26. PW4 Mohd. Quddus has deposed in examination in chief that his Saw Machine is situated towards east in front of the southern gate of J.S. Degree college where he and his father both sit. About three years ago at 5.30 p.m., he was present there and heard all of a sudden sound of gun fire and soon thereafter he saw constable Ram Bhool exiting from the southern gate of the college in running condition. He knew him from before who is present in court because he even used to come at the betel shop of Pyare Lal. After having reached there, he engaged Rikshaw which was by the side of the mosque and went from there towards south. He was in nervous condition and thereafter he came to know that his companion constable Ishwari Prasad Tiwari was shot dead by him and fled thereafter.
27. In cross-examination, this witness has stated that only one saw machine is located there. The door of which opens towards southern side and his saw machine is exactly in front of the northern wall. All around this shop, there are walls and only towards south there is small space left for the door. From the school gate, his shop is located at 2-3 paces away in the north. At that time, he was working at his saw machine. He does not pay attention as to who passes from there when he does work at his saw machine but on the date and time of the incident, there was complete silence and suddenly he heard sound of fire and therefore he saw towards road and found that Ram Bhool was fleeing. He was seen by him coming out of the gate and had almost come out of it. Soon after coming out of the gate, he ran towards mosque which is located about 10-12 paces towards south of his shop. He knew Ram Bhool since about 10-15 days prior to the incident as he was continuously doing duty there although he had never come to his shop but he used to come at the betel shop. His Saw machine is located there since 8-9 years although he does not remember the names of those constables who had done duty there excepting one or two and again stated that because of long time having elapsed, he does not remember their name. The Investigating Officer has recorded his statement three days after the incident and on these days he remained in Amroha only. He was never told by the Police for identifying the accused and denied that he was giving statement under influence of police.
28. By the cross-examination of this witness it was sought to be elicited by the defence side that this witness did not know the accused nor did he any occasion to see him while coming out the gate of the said college but we find that his testimony is believable to the extent that he saw the accused when he heard sound of fire because the accused used to visit betel shop which was situated in close vicinity of the said saw machine, where the accused had been coming for the last 10-15 days, therefore, it could be believed that this witness would have known him as he was performing duty for certain period.
29. PW5 Bhura in examination in chief had stated that about two year and 11 months ago he was sitting in his Rikshaw near the Degree College where mosque was located and at that time at 7.30 p.m. and thereafter he stated at 5.30 p.m. he heard sound of fire and hardly one second thereafter a constable in nervous condition approached him and asked whether his Rikshaw was available and on being stated in the affirmative, he sat on that Rikshaw and was taken to Katra where he got down after paying him 8 anna and thereafter after dropping him there, he came back to the same place where he had parked his Rikashaw earlier. After reaching there, it was being discussed that police personnel had murdered another police personnel and he identified the accused person in Court to be the same police personnel who was dropped by him by his Rikashaw.
30. In cross-examination, this witness has stated that he knew the accused from the beginning but did not know his name. He had not gone for identifying him in jail. He did not go to police station after incident and after hearing about the incident at the place of occurrence, he went away from there because of fear as he apprehended that police might ask him to be a witness of this case. Although earlier police had never made him a witness. He does not know as to how police came to know about his name and address. His statement was recorded by the Investigating Officer two months after the incident and during this period he remained outside also. He could not tell as to who was saying one police personnel had killed another police personnel. He had not stayed there and had moved away immediately. Those who were discussing about this incident of murder were not taking the name of person who had committed murder. He is illiterate person. The court tested this witness about sense of time and found that he was able to disclose the time correctly as is clear from the question put to him and answer given by this witness. Thereafter, this witness has stated that after hearing sound of fire within half minute of that the police personnel had reached him and denied that he had given statement under influence of police.
31. The statement of this witness is corroborative piece of evidence in the present case. He was engaged by the accused near about the time when this incident is alleged to have taken place by the prosecution side. This witness has also stated that he knew accused not by name but otherwise and has also identified him in Court as the same person who had engaged him on the date of incident for being dropped at Katra. Hence, we find that his testimony corroborates prosecution case to the extent that accused was found to be there near the time of incident.
32. PW6 Dr. Lalit Kumar Anand has stated that on 3.9.1980 he was posted as Medical Officer in District Jail, Moradabad. At about 3.30 p.m. on that date Ishwari Prasad Tiwari son of Chhote Lal (deceased) was sent to him by S.O. Amroha, District Moadabad, postmortem of whose dead body was conducted by him which was brought by constable Ram Swarup and constable Tula Ram both of police station Amroha in sealed condition and was identified.
33. Rigor mortis was found present in all the extremities, green discoloration was present over genitals abdomen, chest and face. Abdomen distended with gases although no other sign of decomposition had set in.
34. A gun shot wound round in shape 2cm x 2cm x 10cm deep into the abdominal cavity, inverted margin, blackening and tattooing present around the wound, burning and singing of hair present around the wound, present in the front of abdomen 10cm away from umbilicus at 1 O' clock position and in internal examination, he found pleura raptured under the gun shot wound, right lung lacerated under the gun shot injury. One big pallet flat oval shape removed from right lung at the base of right thoracic cavity about 3 ozs of blood was present. Peritoneum was found lacerated under the gun shot injury. Abdominal cavity contained about 2 ozs of blood. Stomach contained 2 ozs of semi-digested food. Liver lacerated under the gun shot injury. The laceration was 4cm x 2cm x 4cm deep horizontal under the gun shot injury. In his opinion, the death was caused due to shock and hemorrhage on account of injuries to liver and right lung as a result of gun shot injury and death was caused in his opinion about a day before.
35. This witness has been cross-examined at length in which he had stated that there might have taken profuse bleeding from injury, it was not necessary that soon after receiving this injury, the deceased might have died It was possible that he might have died immediately after receiving the injury but it was also possible that his death might have taken place after sometime. Further, he had stated that in his opinion, it would depend on the quantum of bleeding and shock which must have taken place, which would determine as to how long after getting the said injury, the deceased might have survived. He further stated that even he could not tell as to approximately how long this injured would have survived after the bleeding because that would depend upon the quantum of bleeding. Again he was cross-examined with respect to time when the deceased might have died after getting injured. In this regard, he further stated that it would depend upon how much shock was received by the injured. Although he stated that if someone bleeds for a minute and blood spreads in the area of about two feet that would be called profuse bleeding. He has further stated that injury which he had found, the direction of it was that it was caused from the front and after getting in side, it turned upward. Thereafter, he stated that it cannot be said that after having received injury, the deceased could not have spoken. It was also possible that the deceased could have spoken even after getting injury and could have also become unconscious buy looking to the condition of bleeding in this case, he was not in a position to tell as to for how long the deceased might have been in conscious condition.
36. Further, he stated that looking to the injury, the same might have been caused by fire arm from a distance between 3-6 inches. The injury which he had found, could not have been received by a person if he was sitting on a cot and the gun would have been kept slanting position. The said injury was caused by gun from the front which went in side upto 10cm and thereafter it turned upward which was possible only by getting hit by some object or it could also be turned as sloping. Further cross-examination was made with respect to whether the said kind of injury could be received when the deceased would be lying on the right side or the left side and in which position etc. but the same is not being mentioned here due to its irrelevance.
37. He further stated that pallet was sent to S.S.P. Moradabad separately and the letter which was sent by him with the dead body, in that piece of paper the possible time of death was mentioned 6.20 p.m. and it bears overwriting.
38. The testimony of this witness is absolutely trustworthy as he has conducted postmortem of the deceased and has found the death to have been caused by fire arm injury received by the deceased. A long cross examination made in respect of the position in which the deceased might have been lying, does not appear to be of any relevance to us. The statement with respect to the deceased being alive after getting hit by fire arm, could not be pin pointed by him because he has given vague reply as to the death of the deceased that it would depend on the amount of bleeding which took place and he did not deny that he might have been alive and also in speaking condition for a certain period after receiving the said injury.
39. PW7 Head Constable Pyare Lal has stated in examination in chief that on 1.9.1980 he was posted at Chowki Masatta, P.S. Amroha, on that date at about 5.30 a.m. Ishwari Prasad (deceased) who was deputed at the Degree College, came to him and stated that he had a quarrel with accused Ram Bhool. The accused Ram Bhool was telling him that he would go home while he denied. This witness immediately thereafter went to the police station and told about this to SHO, P.S. Amroha and after having consulted him, in place of Ram Bhool another constable no. 205 Prem Pal Sharma was deputed at Degree College on duty vide report no. 8 time 7.07 a.m., G.D. of which is Exhibit Ka-3. He has further stated that when he returned to Chowki on the same day i.e. 1.9.1980, he found Ram Bhool at the police Chowki. He had told him that he had been removed from the said college and that he should get his entry made at the police station. Thereafter, he had made entry in respect of the accused Ram Bhool to go to the police station at about 9.15 a.m. and when in afternoon at 4.30 p.m. he reached the police station, he found that accused Ram Bhool had not made his entry at the police station. This witness had made entry of absence of accused Ram Bhool vide report no. 27 at 17.10 p.m. in the G.D. on the same day i.e. 1.9.1980 which is Exhibit Ka-4.
40. This witness was cross-examined in which he has stated that in Exhibit Ka-3 it was not recorded that the deceased had made any complaint against the accused Ram Bhool nor was it entered that Ram Bhool wanted to go for which Ishwari Prasad had denied him nor is there mention that PW7 immediately went to the police station and informed SHO Amroha about it because these things are not mentioned in G.D. and only the time of despatch is entered in it. Further, he had stated that in respect of complaint having been made to him by the deceased and that he reported to SHO about the same, it was being stated by him on the basis of his memory. He is Brahman by caste and the same caste is of the deceased. Accused Ram Bhool had stated to him that he was scheduled caste and nothing adverse could be done against him but he used to respect him despite the fact that he used to insult him like this. He was similar in rank with him. He cannot say as to whether the accused had gone after 9.15 a.m. He had made no entry of his talk with accused in G.D. because only despatch of the constable is entered in the G.D. He had not brought the G.D. of 9.50 a.m. because the same was only in the form of duty register in which entry and despatch of the constable is made but he has brought that duty register today as the same remained with Investigating Officer. He has further stated that he does not recollect as to which constables were deputed on 1.9.1980 and regarding which constable he had made entry. He told that the entry in respect of ravangi of constable Prempal Shamra is at 6.05 hours although he does not recall rawangi entry of any other constable except Ram Bhool, Prem Pal Sharma and Ishwari Prasad. G.D. No. 27 time 17.10 p.m. was got written by him in the handwriting of Head Moharrir Suman in which it was recorded that constable Ram Bhool was absent and it was found that he had gone home in Mauja Kerana, District Bulandshahar and that earlier also he had taken leave on various occasions and had become absent. Lastly he denied that he had given false statement due to being annoyed with the accused because of Ishwari Prasad having refused the accused Ram Bhool to go home, he was removed from the duty and another constable was deployed in his place. The statement of this witness is trustworthy because it is this witness who was approached by the deceased after altercation with the accused when he was insisting to go home without official leave that either of the two should be removed from their deployment on duty in the said college and upon his making the said complaint, this witness had got the accused removed from duty of the said college and in his place another constable was got deployed. There is no infirmity in the statement of this witness in this regard and we find it to be trustworthy as the same is supported by the G.D. entry as well mentioned above.
41. PW8 Vijai Pal Singh has stated in examination in chief that on 2.9.1980 he was posted as Incharge Primary Health Centre, Amroha. At about 6.15 P.M. Ishwari Pradas Ttiwari (deceased) was brought there by constable K.C. Verma, SSI Amroha. His entry was made in emergency register immediately. The said register was in front of him and Ishwari Prasad Tiwari was declared dead within five minutes of his having been brought to the hospital. His dead body was handed over to Sri K.C. Verma. When the deceased was brought at about 6.15 p.m. he was in critical condition meaning thereby that he was almost taking last breath (was gasping) and within five minutes of being brought there, he was declared dead.
42. In cross-examination, this witness has stated that the register which is known as emergency register is brought by me which begins from 1.9.1980 and it does not contain any subsequent entry. This register also does not contain any authentication and has initial pages blank. The first entry made in the register is made by Dr. A.K. Agarwal who has written about diagnosis. In the entry made in this register with respect to Ishwari Prasad Tiwari, a mention is made "Examined and found dead" but he has not entered in this register that when Ishwari Prasad was brought there and he was in critical condition because he was alive then and was taking reverse breathing because such kind of entries are not made. When he was examined for being given treatment within five minutes thereafter he expired. Had he not been brought in alive condition, the entry relating to the same would have been made by him in register. All the entries made with respect to him are of the same time or not, he cannot tell but all these entries were made in his handwriting. At the place where 6.20 is written in this register there is overwriting but at other places 6.20 is mentioned very clearly. Further, he stated that in the text "At 6.20 p.m. examined and found dead" it is wrong to say that in place of 15 it was made 20, because right beneath it there is mentioned 6.20 and that does not have any overwriting. On the entries at one place where 6.20 is written, beneath that there is signature made by him. Thereafter, long cross-examination is made with respect to entry in diagnosis column which does not appear to be relevant to us and he further stated that diagnosis was mentioned after having declared the deceased dead because during the time when he was alive, there was no sufficient time to record the same. There was no sufficient time to record injury which was found on his person and because of that in the endorsement made below "died due to gun shot injury in the abdomen" was mentioned. The deceased could not be given any treatment because he did not have time. After making entry in the register, when he was reexamined, he was found dead. Prior to declaring the deceased dead, it takes 2-3 minutes to re-examine. The entry with respect to the deceased was mentioned at sl.no.342 in the handwriting of doctor K.K. Agarwal and in the document, he has mentioned "Medico Legal police". He denied that when the deceased was brought to the hospital, he had already died and such above entries were made by him under influence of police. He has further stated that the deceased was thoroughly examined and not superficially and thereafter the next enry was made in the night at 10.20 p.m. The Investigating Officer had not taken his statement nor did he take the said register in which entries were made. The entry with respect to the deceased is Exhibit Ka-5 on record. The statement of this witness mentioned above in examination in chief is found to be trustworthy as despite long cross-examination which is quoted above, nothing could be elicited of such kind which may impeach his testimony and his statement does prove that at the time when the deceased was brought to the hospital, he was alive and before he could be given treatment, within five minutes of his reaching here, he expired. The explanation of overwriting recorded therein at 6.20 p.m. has been adequately given because he has clearly denied that there was any overwriting made on '15' by making it '20' because 6.20 p.m. is mentioned at other places. This witness has clearly stated that the deceased was brought at about 6.15 p.m. in the evening in critical condition and before he could be given any treatment, he died five minutes thereafter at 6.20 p.m. and entries in that regard are made in emergency register, photocopy of which after being attested, has been filed which is as Exhibit Ka-5.
43. PW9 Chandrapal Suman Pathak, who is formal witness has stated in cross-examination that both he and the deceased are Brahmans. The person who had lodged the report had reached at the police station at 17.55 hours and soon after coming to the Police station he had given him written report in which he might have taken about 10 minutes and thereafter he made entry in G.D. which might have taken 5 to 7 minutes and thereafter he handed over the papers to SSI K.C. Verma who was present there. SSI K.C. Verma had immediately started along with force for the place of occurrence. The statement of the informant Ravinndra Singh Solanki was recorded by the Investigating Officer at Police Station or not he cannot tell. Sri Ravindra Singh Solanki had stayed at the police station for hardly 15-16 minutes whereafter he was given a copy of the chick FIR and he went from there.
44. The accused was absent on 1.9.1980. The deceased had not come to the police station for loding the complaint against the accused. Report of this case was despatched to the higher authorities of the police by phone as well as wireless which is mentioned in the G.D. Special report of this case was also sent to the higher authorities through constable Suresh Chandra on the same day at 22.35 hours. Chick FIR is Exhibit Ka-7. There is no entry made in respect of sending the said report from the police station. The sending of the special report consumed about four hours because lot of copies are required to be prepared. He cannot tell as to which constable clerk had prepared special report although the same was prepared in front of him. He denied that because the accused was scheduled caste, due to annoyance, he made false statement and also denied that the FIR was recorded ante-timed. There is no infirmity in the statement of this witness as despite in depth cross-examination, nothing could be elicited which may make his testimony unbelievable. Moreover, he is a formal witness.
45. PW10 K.C. Verma who is Investigating Officer in cross examination has stated that he did not make effort to take finger print on the musket as he did not consider it important, there being sufficient evidence against the accused. He has further stated that an application from the side of the accused was received by him along with order of the Magistrate which is paper no. 6/7 upon which he had submitted his report signed by him which is Exhibit Kha-1, in which he had written that witnesses knew the accused and hence there was no need for identification of the accused and the said text in his handwriting is Exhibit Kha-2. In his report Exhibit Kha-2, he has mentioned the name of these witnesses who knew the accused and were eye witnesses of this occurrence and witness Bhura was extra witness and not eye witness. He did not get the accused identified by the witness Bhura because there were other large number of witnesses who knew the accused. The testimony of Bhura falls in the category of circumstantial evidence. He denied that he deliberately did not get the accused identified by the witnesses because they could not have identified him. He denied that when he reached near the deceased he was in unconscious condition and also denied that he was taken at place 'A' as shown in the site plane which is in Varandah. He has further stated that he had recorded the statement of the deceased in his C.D. which is Exhibit Ka-19 and while giving that statement he had become unconscious and thereafter he did not regain conscious. He become unconscious after having given this much statement and thereafter he was taken to hospital. He died there. The above statement was made by this witness in re-examination. In cross-examination, this witness has further stated that he did not read the C.D. when he reached the place of incident. The place of incident was two furlong away from the police station and he had taken five minutes in reaching there from the police station by his petrol car and in recording the statement of deceased he might have taken five minutes. He has not recorded in C.D. as to when he had taken the deceased to the hospital. In .C.D. after the statement of deceased, the statement of informant Ravindra Singh Solanki has been recorded and its time has also not been mentioned, where the said statement was recorded, he does not recollect. He also does not recall Ravindra Singh Solanki had accompanied him from the police station to the place of occurrence. From the above statement of this witness in cross examination, it is clear that he had recorded the dying declaration of deceased when he was alive which is Exhibit Ka-19 and he could record only part of the same because after having given such statement, the deceased had fallen unconscious and he was rushed to the hospital where he died subsequently. A long cross-examination has been made of this witness in respect of his departure from police station, and recording statement of witness in question form but we do not find any reply given by him to be of the kind which would make his statement in examination in chief to be suspect and we find his testimony to be believable.
46. Now we would like to also take up the evidence given from the side of defence into consideration. DW-1, Jitendra Kumar, who is Assistant Grade-II, Collectorate, Moradabad, who has brought the file relating to sending special report with respect to accused of the year 1980 and has stated that a special report had been weeded out and has filed document Ext. Kha-3 in that regard. Nothing much has been argued from the side of appellant in this regard.
47. Next Witness Dayanand Saxena, Head Clerk of the Police Office, Moradabad, has been examined as DW-2, who has brought the file relating to accused Ram Bhool, which contains an order dated 20.9.1983 issued by the then S.S.P., Moradabad which is Ext. Kha-4. From cross-examination, it transpires that the accused was adhoc appointee, hence, there was no reason for discharging him from the post of constable. No arguments was made with respect to this document from the side of appellants.
48. Pradeep Narayan Goyal has been examined as DW-3, who is a hand writing expert and has stated in examination-in-chief that he had examined the entry of emergency register PHC Amroha at Serial No. 343 on page no. 5, dated 2.9.1980, relating to deceased Ishwari Prasad Tiwari and after its examination, he found that the text "at 6:20 pm examined and found dead'', in 6:20 pm both on two and zero, there was overwriting and earlier there was written 6:15 in its place. He has proved his expert report as Ext. Kha-9. In cross-examination, he has denied that five was not written in place of zero. This witness appears to have been examined from the side of the appellants only to prove that in Ext. Kha-5, which is filed from the side of the appellants relating to entry of cases in emergency register. Probably this has been sought to be proved by the appellants side that the deceased had already died at 6:20 pm and that was the time when he was admitted also and which according to him would prove that the deceased was brought in dead condition to the hospital and not in alive condition.
49. We find that in this regard, (PW-10), investigating officer of this case has already made it clear that the deceased was brought to the hospital at 6:15 pm and was pronounced dead at 6:20 pm before he could give treatment and in regard to overwriting being there, the same appears to be not correct because even if at one place 6:15 might have been written by mistake, which was later on corrected as 6:20 pm, could be taken to be clerical error because at other places in the same document, the said time was mentioned to be 6:20 pm. Therefore, we do not find any substance in the argument in this regard made from the side of prosecution.
50. Now we would like to take up the prosecution's case as disclosed in the F.I.R., the PW-1 had reached the place of incident shown by '1AX' from place shown '2XA' in the site plan, which is about 22 paces away. After having heard sound of gun fire at about 5:30 pm on 2.9.1980, when he was strolling in front of his quarter on the grass and saw that in front of room no. 21, the deceased Ishwari Prasad Tiwari, was found writhing in pain in pool of blood and accused Ram Bhool had thrown his gun at place shown by '1BX' near the Gudhal tree and soon thereafter PW-2 and PW-3 also reached there and before all the three of them the deceased stated that his companion Prem Pal had gone for having meals and in the meantime accused Ram Bhool, who was on duty with him till yesterday, had come and taking out gun from the room, lock of which was open, had made fire upon him because yesterday he had told him that he would go home leaving his duty without proper leave for which he had restrained him and which had led to an altercation between them and he had also given him a threat that he would see him.
51. According to F.I.R., the deceased had also asked the PW-1 to go by his bicycle and lodge the report. The informant PW-1 has proved the F.I.R. which has been lodged promptly on the same day within about half an hours time at P.S. which was just 2 km from the place of incident. Long cross-examination has been made of this witness in which an effort was made to create doubt in the mind of court that he could not have seen the accused running away because he had seen him from the back side and that he was not an eye-witness because he reached after the occurrence had taken place and that the statement which this witness was stating to have been given by the deceased to him that the accused had made fire upon him and fled from there due to above mentioned episode, could not have been made because he was not in a condition, as after getting hit by the fire arm shot, he must have become unconscious and would not have been in a position to make any statement. As far as the presence of this witness on the place of incident is concerned, we find no doubt about the fact, that he reached after the accused had already assaulted the deceased and after having thrown his gun near Gudhal tree, he had fled from there and he was seen running away from there from the back side, therefore, there could be possibility of this witness not having wholely recognized the accused from the front but we are of the view that soon after the occurrence, this witness had arrived at the place where the deceased was lying writhing in pain in pool of blood and who had made clear statement before him that it was accused Ram Bhool, who had assaulted him because of the dispute which had taken place one day before with respect to his abstaining from duty without taking official leave which was resisted by the deceased.
52. We are of the view that in the light of testimony of PW-6, who had conducted post-mortem of the deceased' to the effect that it could have been possible that the deceased might have been in conscious condition for sometime after having been injured in the said assault, hence it could not be ruled out that he was in a position to make statement to the PW-1. This would be treated to be a dying declaration made by the deceased in front of PW-1 and other two witnesses also i.e. PW-2 and PW-3, who had also reached the place of incident after hearing the sound of fire. At this stage we would like to take up the statement of PW-2 and PW-3 also. PW-2, who is also a Professor, who was present in the Verandah of his quarter shown by '3XA' and who also reached the place of occurrence and had seen the accused running away throwing his gun from the place shown by '3XB'. He had reached the place of incident after PW-1 had already reached there and thereafter PW-3 who is Chaukidar of the said college namely Tribhuvan Prasad Sharma has also stated that he reached the place of incident from Verandah, which was located in front of the main door, which is shown by '4XA'. The places, which are shown in the site plan, from where PW-2 and PW-3 reached the place of occurrence are not very far away and it was very logical that if anyone would hear sound of fire from such distance, he could have reached the place of incident which is hardly 30-32 paces away. The testimonies of both these witnesses also indicate that they had seen the accused running away from there after having thrown gun from his hand near Gudhal tree, but even if it be taken that they might not have recognized him, it is absolutely clear that on the basis of statement made by the deceased before all these three witnesses about the accused having fired upon the deceased could not be dis-believed.
53. We find that there was enough time with the deceased to disclose the name of accused who had fired upon him because that would take hardly a minute to disclose the same. It has also come on record in evidence that the accused was deployed there for many days and all these three witnesses, two of them being Professors of the same institution and one a chaukidar could be in a position to recognize him even if they had seen from back side but even that would lead us to the fact that these three arrived at the place of incident only when he (accused) had already left the place of incident after having fired upon the deceased, hence they could not be eye-witnesses of the firing made upon the deceased by the accused but there is strong circumstantial evidence against the accused to have been seen by these three witnesses going away from there after giving effect to the incident. It could also be pertinent to mention hear that after the lodging of report by PW-1, the investigating officer PW-10 had reached the place forthwith and had taken down the statement of deceased which also fall in the category of dying declaration in written form, which is Ext. Ka-19. Much argument was made by the learned counsel for the appellants that the deceased could not be in a condition to make this statement before the I.O. as well as to the eye-witnesses but we are not inclined to accept the said argument and would like to rely upon State of Himachal Pradesh Vs. Rakesh Kumar, 2009(6) SCC 308, in which the deceased on being stabbed by the accused running inside and naming accused, the said statement made by the deceased had been held to be in the nature of dying declaration and a relevant fact and the false implication made by the deceased was ruled out and the oral dying declaration was found to be admissible. The relevant paragraph no. 15 and 21 of the said judgment is quoted herein below for the sake of convenience:-
15. The deceased Sanjiv Sen after opening the door was stepping out to urinate when he was immediately given a blow on his chest. At that stage the deceased came running inside and he named the accused for stabbing him in his chest. Gagnesh Kaushal (PW-1) has also stated that he along with Sanjiv Rana (PW-2) and Yash Pal (PW-3) tried to chase the accused but he ran away from the spot. The aforesaid statement of the deceased which was relied upon by Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) was in the nature of a dying declaration made to them. There is no reason why the said statement cannot be taken into consideration as a relevant fact. There is also no reason as to why the deceased would falsely implicate the accused to save the real assailant.
21. There is no dispute with regard to the fact that the presence of Gagnesh Kaushal (PW-1), Sanjiv Rana (PW-2) and Yash Pal (PW-3) in the room was natural and that they could see that the deceased was stabbed in his chest immediately after he opened the door upon which he came back and told them about the incident. He was put on the cot and the place of the wound was pressed with cottons. In that view of the matter it would be natural that no blood was found on the floor but the same was found on the cot and in the clothes that the deceased was wearing on that day. Therefore, acquittal of the accused-respondent on the said ground, in our considered opinion, was not justified.
54. In view of above citation, it is apparent that the statement of deceased that the accused had made assault by his musket upon him and had fled from there because there was quarrel one day before between them with respect to the deceased wanting to abstain from duty without taking leave which was resisted and regarding which a complaint was also made by the deceased at the Chauki with a request that either he should be removed from duty or the accused, in pursuance of which, the accused was removed and in his place another Constable Prem Pal was deployed. Due to above reason, feeling annoyed the accused had committed this offence. Such statement was difficult to be made as per defence side because the deceased was in too bad condition, is not an appealing argument as we find that deceased had died at about 6:20 pm while the occurrence took pace at 5:30 pm on 2.9.1980, there was enough time, therefore, we do not believe that soon after getting hit by the fire arm shot the deceased died or became unconscious and was not in a position to make such statement. The dying declaration made before the three witnesses i.e. PW-1, PW-2 and PW-3, as well as before the I.O. are found to be trustworthy. The other corroborative piece of evidence is found in the form of by the statement of PW-4 Mohd. Kaddos, who was present on the exit gate of the said college, from where he had seen accused running in nervous condition at the same time when he had heard the sound of fire and he has clearly stated that he recognized him because he often used to come at the beetle shop which was located in the same vicinity.
55. PW-5, Bhura, is the rickshaw puller, who was engaged by the accused while he was running from the place of occurrence has clearly stated that when he returned to the place where the rickshaw was engaged after leaving the accused in Katra, he came to know that a constable had killed another constable. Therefore, the testimony of this witness is also of corroborative nature, which substantiates that it would have been the accused only who after giving effect to the incident had ran away from there.
56. PW-7, Constable Piarey Lal, has also stated that he was approached by the deceased and told that the accused had a quarrel with him one day before the occurrence as the accused wanted to go away from duty without taking official leave which was denied by the deceased and the deceased had also made a request to him to either remove him from the said duty or the accused and on that, this witness in consultation with S.H.O. Amroha had changed the duty of Ram Bhool. He was removed from the duty in the college and was shifted to the P.S. while in his place Constable Prem Pal was deployed in the college duty. It is further stated by this witness that he had informed about this to the accused but he was found absent in the evening from his duty which also substantiates that probably after having given effect to the occurrence, the accused had run away. This is also strong circumstance that when the accused was removed from duty why he went to the place of incident and why he was not found present on the duty where he was deployed, it all indicates that he may have been involved in the present occurrence.
57. We would also like to clarify here that it was bounden duty of the investigating officer of this case to have taken finger prints on the musket which was allegedly used by the accused in commission of this offence but in cross-examination, the I.O. has stated that he did not consider it important which is gross violation of mandatory procedure of law in such cases where life has been taken of innocent constable by his companion. After taking finger print, the same ought to have been sent for being examined and compared with the finger prints of the accused for establishing that the same was used by the accused which is condemnable but nonetheless we cannot give benefit of this lapse on the part of the investigation officer to the accused.
58. By the above analysis, we come to the conclusion that learned trial court has not committed error in arriving the conclusion that it was accused only who had committed the offence and we find no infirmity in the impugned judgment. Appeal deserves to be dismissed and is, accordingly, dismissed.
59. The accused-appellant Ram Bhool is on bail, therefore, he shall be taken into custody and his sureties stand discharged and the accused shall serve out the sentence in accordance with the judgement pronounced by us.
60. Let a copy of this order be transmitted to the trial court with a direction that it shall ensure the compliance of this order.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :- 14.3.2019
AU/AP Pandey