Om Datta Alias Babbal & Another vs State Of U.P. on 31 January, 2017

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Allahabad High Court

Om Datta Alias Babbal & Another vs State Of U.P. on 31 January, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.) Instant criminal appeal is directed against judgment, order and sustainability of conviction and sentence dated 19.7.1995 passed in Sessions Trial No.152/1995, arising out of Case Crime No.130 of 1994, under Sections 302, 302/34 IPC, Police Station, Amritpur, District Farrukhabad, whereby, both the appellants- Om Datta @ Babbal and Dharmendra Kumar @ Pappu- have been sentenced to imprisonment for life under Sections 302 and 302 read with Section 34 IPC, respectively.

Heard Sri G.S. Hajela, learned counsel for the appellant no.1, Sri Rahul Misra and Sri Raghuvansh Misra, learned counsel for the appellant no.2, Sri Awadhesh Narayan Mulla assisted by Sri J.K. Upadhyay, Km. Meena, Mrs. Manju Thathur, learned AGAs for the State and perused the record.

We gather from record that an F.I.R. was lodged by Chandra Prakash s/o Ram Ladaite Awasthi, r/o Amritpur, District- Farrukhabad at Police Station- Amritpur on 11.12.1994 at 9:30 p.m. regarding some incident, which took place on 11.12.1994 at 8:00 p.m. at village- Amritpur with allegations that informant- Chandra Prakash arranged marriage of daughter of his relation with Deshram s/o Shiv Ratan. Due to this marriage, informant's son- Ravendra Kumar @ Guddu (deceased) used to visit house of Deshram. This visitation was disliked by Shiv Ratan's son- Om Datta @ Babbal and Dharmendra Kumar @ Pappu. Due to aforesaid grudge, both Om Datta @ Babbal and Dharmendra Kumar @ Pappu appeared before the informant and his son (Ravendra Kumar @ Guddu) in front of house of Ram Sagar Mali around 8:00 P.M. on 11.12.1994, when they were returning home after purchasing some articles from the shop of Rikhiraj, Dharmendra Kumar @ Pappu caught Ravendra Kumar @ Guddu and said to him that he was warned many times not to visit his home, but he (deceased) did not heed to it, today he will see the consequence, and in the meanwhile, Om Datta @ Babbal, with intention to kill, fired on Ravendra Kumar @ Guddu with country-made gun, due to which he fell down. Informant raised alarm, when co-villagers Hari Chandra s/o Ramroop, Brahmanand s/o Puranlal and Kanhiya Lal s/o Laxmi Narain bearing torch in their hand arrived on the spot and witnessed the incident. The assailants made their escape good from the scene towards northern street after extending threat. Informant's son- Ravendra Kumar @ Guddu died on the spot and his dead body was lying over there. Request was made for lodging the report and taking appropriate action. Written report is Ex. Ka.1.

Contents of this report were taken down in the concerned check F.I.R. at 9:30 p.m. on 11.12.1994 at Police Station- Amritpur, District- Farrukhabad at Case Crime No. 130/94, under Section 302 IPC. On the basis of entry so made, a case was registered against the accused persons in the concerned G.D. No. 25 at 9:30p.m. on 11.12.1994 at aforesaid case crime number under Section 302 IPC.

Lodging of the report was followed by investigation being taken over by the Investigating Officer- Raj Bahadur Sahu PW-5, who after perusing the contents of check FIR and the concerned G.D. reached at the place of occurrence around 10:00 p.m. the same night, took statement of various persons and held inquest of the deceased after appointing inquest witnesses. Inquest proceeding commenced at 7:00a.m. and completed at 9:00 a.m. on 12.12.1994. Inquest report is Ex.Ka.3. In the inquest report, opinion was expressed unanimously that the dead body be sent for postmortem examination so that the cause of death could be ascertained properly. In the process, certain relevant papers were prepared- letter to C.M.O., challan dead body and photo nash, and the same were exhibited Ex.Ka.4, Ex.Ka.5 and Ex.Ka.6, respectively. The Investigating Officer also prepared various relevant papers like memo of collection of simple and blood-stained clay-roll from the spot which is Ex. Ka.8.

Thereafter, postmortem examination on the cadaver of deceased- Ravendra @ Guddu was conducted on 12.12.1994 at 2:30p.m. at District Hospital- Fatehgarh. The doctor S.S. Rathore P.W.4 noted following ante-mortem injuries on the person of the deceased:-

Antemortem injuries:

1. Firearm wound of entry of size 1.00 cm x 1.00 cm x through and through on left side back of chest, 4 cm away from mid vertebral line at level of T8. Margins inverted, lacerated and ecchymosed. Direction back to front. Wound communicating with wound of exit of size 1.5 cm x 1.5 cm on left side front of chest. 4.5 cm below left nipple at 6 O' Clock position between fifth and sixth ribs. Margins everted and lacerated. On dissection left lung and pleura, pericardium and heart lacerated left side chest cavity full of blood (clot and fluid).

2. Firearm wound of entry of size 1.5 cm x 1.00 cm x through and through on outer and front of right wrist 2.5 cm above wrist joint. Margins inverted, lacerated and ecchymosed communicating with wound of exit of size 2.00 cm x 1.00 cm back of right wrist. Direction left to right. Margins everted and lacerated.

3. Three abrasion in an area of 6.00 cm x 3.00 cm over left side of forehead upper eye-lid and cheek measuring size 1.5 cm x 1.00 cm to 1.00 cm x 0.5 cm.

Duration was stated to be ¾ day and the cause of death was stated to be due to shock and haemorrhage as a result of ante-mortem firearm injuries. This postmortem report has been proved by Dr. S.S. Rathore P.W.4 as Ex.Ka.2.

The Investigating Officer also prepared the site plan of the place of occurrence, Ex.Ka.7. He also arrested accused- Dharmendra Kumar @ Pappu around 8:15 p.m. on 12.12.1994 and after completing investigation, he filed charge-sheet against both the appellants at aforesaid case crime number under aforesaid section of Indian Penal Code. Charge-sheet is Ex.Ka.9.

In the process, the case was committed to the Court of Sessions where this sessions trial was numbered as Sessions Trial No. 152/1995 and both the accused persons along with the prosecution were heard on point of charge and the Sessions Judge was satisfied with the prima facie case against the accused, therefore, framed charge under Section 302 and 302/34 IPC against accused- Om Datta @ Babbal and Dharmendra Kumar @ Pappu, respectively. Charge was read over and explained to the accused, who abjured charge and opted for trial.

Thereafter, prosecution was directed to produce all its testimony by which it proposes to prove guilt of the accused, whereupon as many as seven prosecution witnesses were produced. A brief sketch of these witnesses is as herein under:-

(1) Chandra Prakash P.W.1 is the informant and eye-witness of the occurrence. He has proved lodging of the FIR Ex.Ka.1.

(2) Harish Chandra P.W.2 and Brahma Nand P.W.3. are also eye-witnesses of the occurrence.

(3) Dr. S.S. Rathore P.W.4 has conducted postmortem examination on the dead body of the deceased and has proved the process before the trial court.

(4) S.I. Raj Bahadur Sahu P.W.5 has proved the investigation conducted by him and in the process, he has proved inquest report and other relevant papers. He has also filed charge-sheet Ex.Ka.9 against the accused appellants.

(5) Constable Gorey Lal P.W.6 has made relevant entry in the concerned check FIR and the GD, Ex.Ka.10 and Ex.Ka.11, respectively and has proved the same before the trial court.

(6) Constable Om Prakash P.W.7 has testified to the fact that he conveyed the dead body to the District Hospital and he received the sealed body, which was kept intact by him.

Except as above, no other testimony was produced by the prosecution, therefore, evidence for the prosecution was closed and statement of convict accused recorded under Section 313 Cr.P.C., wherein they termed their implication false due to enmity and village partibandi.

The defence did not lead any evidence, whatsoever.

The learned Sessions Judge after hearing both the sides and weighing entire evidence and considering merit of the case returned aforesaid finding of conviction and passed sentence of life imprisonment against both the accused.

Consequently, this appeal.

It has been vehemently claimed on behalf of the appellants that there was no sanguine motive for committing the crime. The occurrence was in fact not witnessed by any one. The death was caused by some unknown persons in the darkness of night and in the early morning of 12.12.1994 when the informant came to know about the murder of his son, then he lodged the report in collusion with the police and deliberately named the accused, as the perpetrators of the crime, which is altogether false. No worthy reason has been assigned as to why preparation of inquest was delayed and deferred to the next morning till 7:00a.m. on 12.12.1994 after the police had arrived on the spot on 11.12.1994 around 10:00p.m. after lodging of FIR at 9:30 p.m. Prosecution has come out with the theory of single fire, whereas medical evidence does not corroborate ocular testimony of prosecution witnesses on point of single fire. Weapon used in committing the crime is not a country-made gun, but it should be one high-powered weapon. Presence of eye-witnesses on the spot is doubtful. Dharmendra Kumar @ Pappu caught the deceased when he was fired from behind by Om Datta @ Babbal but Dharmendra Kumar @ Pappu did not receive any sort of injury as fire was shot from a distance of 5-6 feet. It is stated that articles weighing about 20kgs. were being carried by the father of the deceased himself and not shared by him (deceased). Even the ocular version of the occurrence appearing in the testimony of witnesses of fact is grossly contradictory to each other and it does not inspire confidence. Cumulatively, it can be said that the version of the occurrence given by the prosecution witnesses is highly doubtful. Wholesome reading of the testimony on record vis-a-vis facts and circumstances divulges possibility of two specific views on the point of occurrence, and in such a situation, the view that favours the accused-appellants would alone be preferred- which the trial court failed to take notice in its judgment. Judgment of conviction is not sustainable in the eye of law. The first information report is ante-timed and it was lodged only after preparation of inquest report Ex.Ka.3. Investigation is tainted and outcome of collusion.

Sri Saghir Ahmad, learned A.G.A., while replying to the aforesaid contention, submitted that the version of the prosecution is consistently proved and established by the testimony of the prosecution witnesses of fact as well as the other prosecution witnesses- say- the Investigating Officer and doctor,etc. It was cold weather and month of December when the occurrence took place and everyone may well infer that the night around mid-December is foggy and visibility is normally affected, therefore, it is quite reasonable that preparation of inquest was postponed to the next morning. Therefore, mere delay in holding inquest for a short span of time, under circumstance, will not minimize the genuineness of inquest report (Ex.Ka.3). P.W.1 the informant is father of the deceased and his explanation of accompanying his son at the time of occurrence is consistent and no adverse inference can be drawn. Witnesses of fact who arrived on the spot have also given particulars of the incident and have supported version of P.W.1 in their testimony. In so far as contradictions emerging in the testimony of witnesses of fact are concerned, the same are normal and cannot be treated to be contradictory in material particulars of the incident, but these contradictions- trivial in nature- are bound to occur but it will not discredit testimony of these witnesses. FIR was promptly lodged. Entry of report was promptly made in the check FIR and the concerned GD and has been proved by constable Gorey Lal P.W.6. Therefore, it cannot be said that the FIR is ante-timed. Wholesome study of the testimony on record establishes guilt of the accused beyond reasonable doubt and the learned trial Judge took into consideration every aspect of the case and rightly convicted the appellants for charges under Section 302 and 302/34 IPC.

We have also considered the rival submissions and the rival claims. In the light of the above, the point for determination of this appeal crops up whether the prosecution has been able to establish its case beyond reasonable doubt against the accused-appellants?

We notice from perusal of first information report that the informant (P.W.1) arranged marriage of daughter of one of his relatives with son of Shiv Ratan- Deshram. Due to this marital relationship, informant's son Ravendra @ Guddu started visiting house of Deshram, which was disliked by Shiv Ratan's two sons- Om Datt @ Babbal and Darmendra @ Pappu- the two accused. Due to aforesaid reason, in the night of 11.12.1994 at about 8 P.M., when the informant and his son Ravendra @ Guddu (deceased) were returning home, after purchasing some articles from the shop of Rikhiraj and when they reached in front of house of Ram Sagar Mali, the aforesaid two accused persons came across the informant and his son, and Dharmendra @ Pappu caught hold of his (informant) son and said to him that he (Ravendra @ Guddu) kept on visiting the house despite being asked not to come to their house. Since he did not heed to the warning, he will now have to face the consequences. In the meanwhile, Om Datt @ Babbal, who was possessing country-made gun, with intention to kill, fired on informant's son, due to which, his son fell down. On alarm being raised by the informant, co-villagers- Hari Chandra s/o Ramroop, Brahmanand s/o Puranlal and Kanhiya Lal s/o Laxmi Narain bearing torch, arrived on the spot and witnessed the incident. The assailants, after extending threat, fled away from the scene. This is the foundation of the allegation, as emerging in the first information report.

Now, we have to scrutinize and evaluate the ocular version of the prosecution witnesses of fact because it has been contented on behalf of the appellants that the prosecution witnesses were not present on the spot and they did not witness any incident, as claimed by them and their testimony on the whole is grossly contradictory and under circumstances does not inspire confidence.

We now take into consideration relevant portion of the testimony of all the prosecution witnesses for the purpose of deciding aforesaid issue, as contended by the appellants and the prosecution.

Chandra Prakash P.W.1- the father of the deceased- has stated that he had arranged marriage of daughter of his relative with Desh Ram son of Shiv Ratan and after marriage, his son Ravendra @ Guddu used to visit house of Desh Ram. This act of visitation was not liked by Shiv Ratan's sons- Om Datta @ Babbal and Dharmendra Kumar @ Pappu- and they asked Ravendra @ Guddu not to visit their house, thereafter, this witness goes on to describe about the occurrence in a manner that it was around 8 P.M. in the night on 11.12.1994, he along with deceased Ravendra @ Guddu after purchasing some articles from shop of Rikhiraj, were returning home. When they reached in front of house of Ram Sagar Mali then Om Datta @ Babbal and Dharmendra Kumar @ Pappu appeared on the scene. Dharmendra Kumar @ Pappu caught his (informant's) son (Ravendra) and said to him that he was warned not to visit his home, now he will have to face the consequences and Om Datta @ Babbal, who was possessing country-made gun fired from behind Ravendra @ Guddu, which fire went through and through to the chest and also pierced through and through the hand, which the deceased had kept on his chest. Due to the fire, deceased fell down. This witness testifies that the incident was witnessed by Hari Chandra s/o Ramroop, Brahmanand s/o Puranlal and Kanhiya Lal s/o Laxmi Narain and himself. The incident was seen in the torchlight possessed by Harish Chandra and in the moonlight. The report was then got scribed by Dinesh Kumar and lodged at the police station, which is Ex.Ka.1.

We also come across similar testimony of another prosecution witness of fact- Harish Chandra P.W.2- who is also an eye-witness of the occurrence and as per his testimony, he says that it was around 8 P.M. when he was coming from the side of shop of Rikhiraj and going towards his home, he was being accompanied by Brahmanad and Kanhiya Lal. Chandra Prakash and deceased- Ravendra were also going ahead of them. When Chandra Prakash and Ravendra @ Guddu reached in front of house of Ram Sagar Mali, Dharmendra @ Pappu and Om Datta @ Babbal appeared on the scene and said to Ravendra that he has been asked not to visit their home but he did not heed to their advice, now he will have to face the consequence. Dharmendra @ Pappu caught hold of Ravendra @ Guddu and Om Datta @ Babbal fired on the deceased. The fire hit left side of the back of Ravendra @ Guddu, who fell down on the spot. Witness Harish Chandra says that he was possessing torch and he watched the incident in the torchlight and it was moon lit night. He further adds that after killing the deceased the accused persons took away his (Ravendra's) tahmad (a piece of cloth).

Another witness- Bramha Nand P.W.3- has also testified on the similar line like the one given by Harish Chandra P.W.2. The above discussed testimony appears in the examination-in-chief of all the three witnesses of occurrence. Before we scrutinize the entire testimony of all the above three witnesses, we may appreciate that the version of the FIR regarding fact of arrival of the other witnesses (P.W.2 and P.W.3) on the spot indicates that they arrived on the spot a little while after the shot hit the deceased, he fell down. As per description contained in the information (Ex.Ka.1), the shot was fired and the deceased fell down when the first informant raised alarm, then Harish Chandra, Bramha Nand and Kanhiya arrived on the spot. It is quite surprising that theory of alarm being raised on the spot at the time of occurrence and due to which, arrival of the other witnesses was claimed by the prosecution, has not been testified, at all, by all these witnesses in their ocular testimony. Instead, ocular version has been changed by P.W.2 and P.W.3 that they were walking behind the informant and the deceased.

It is obvious from perusal of the first information report that the sequence of incident describes firing, as the previous act followed by alarm being raised and then only the witnesses arrived on the spot. Strangely enough, all the three eye-witnesses P.W.1, P.W.2 and P.W.3, Chandra Prakash, Harish Chandra and Bramha Nand, have not even whispered about any alarm being raised on the spot, but Harish Chandra P.W.2 and Bramha Nand P.W.3 claim to have been following the first informant and the deceased.

Here, some twist has been made by all the witnesses of fact and the ocular testimony to that extent has been tried to be adjusted, as if the entire incident occurred simultaneously before all the eye-witnesses, which fact exposes inherent material contradiction, in the first information report to the extent that on shot being fired and alarm being raised only then the witnesses arrived on the spot.

Now in so far as the cross-examination of the aforesaid witnesses is concerned, we also come across certain particular facts regarding description of the occurrence. Obviously, the claim made by the informant rests on the anvil of purchase of some articles (prior to the occurrence) from the shop of Rikhiraj and that has been described in the break up of 10 kgs. of Batasha (sweet made by sugar), plus 2-3 packets of ghee, plus 5-6 kgs. of sugar and these articles/goods were kept in two wallets and these wallets were being carried by P.W.1, the informant. Naturally, this is not expected of a father that he will himself carry the entire weight of the above articles purchased from a shop when he is being accompanied by his son aged 19 years, but the goods/articles purchased will normally be shared with father by his son. Therefore, the conduct of first informant, as claimed by himself that he alone was carrying the entire articles purchased from the shop, is not believable on its face value, being an unnatural conduct.

The explanation forthcoming as reason for carrying the entire goods by Harish Chandra (P.W.1) himself rests on claim that he had asked deceased Ravendra @ Guddu to call Harvilash and therefore he took in his hand all the articles. But this explanation also does not sound good for the reason that Harvilash, as per description emerging in the testimony of Harish Chandra PW-1, was residing in a street 40 yards away from the place of occurrence. Then, it could be that the articles weighing about 19-20 kilograms and being carried in two wallets would have been shared at least equally between the father and the son and the son would have handed over his wallet to his father when he had to take turn in street for calling Harvilash. Therefore, from the shop of Rikhiraj up to the place of occurrence, the father himself carried the articles weighing 19-20 kilograms in two wallets, does not appear natural explanation.

Moreover, there is no whisper about the articles as to what happened with it after the incident. Whether it was left on the spot or taken by the informant or handed over to any other person- has not been clarified/testified. Did the Investigating Officer find any such articles on the spot or what happened to the articles purchased, has not been narrated by PW-1 himself. This aspect, though not related with merit of the incident, has relevance when connected with the initial stage of the occurrence- just prior to the occurrence- because this particular aspect raises doubt about the theory of purchasing articles weighing 19-20kgs, whether the same were, in fact, purchased from the shop of Rikhiraj. Moreover, the incident of firing was preceded by the act of catching hold of the deceased by Dharmendra @ Pappu and immediately after catching hold, Dharmendra @ Pappu also said to the deceased certain specific words as to why he was bent upon visiting their house despite being asked not to visit the house. As per testimonial account of P.W.1, at that relevant point of time, when this incident occurred, the first informant was about two and half yards away from the deceased. Then obviously, within this gap, when some dialogue was uttered by Dharmendra @ Pappu to the deceased within hearing of the father, the father (Chandra Prakash P.W.1), being at such a short distance from his son (deceased), would have been expected to have rushed to the rescue of his son, but testimonial account puts it otherwise that the incident took place in a flash and he could not intervene, therefore, testimonial account, to the magnitude that the incident took place in a flash, as given before the trial court, appears improved description of the incident as described in the report (Ex.Ka.1) itself. Therefore, it cannot be believed that there was no time left for the informant to intercept the assailants or at least to make any attempt to put resistance to the assailants.

In so far as the story of "Tahmad" (a piece of cloth) is concerned, the same was worn by the deceased and was taken away by the accused, then we also come across fact that the story of "Tahmad" does not find any mention either in the written information (Ex.Ka.1) or in the statement of P.W.1 recorded u/s 161 Cr.P.C. On page 28 of the paper book, P.W.1 says that his son was caught and immediately shot. This version, as given in trial court, is in contrast to his version of incident appearing in the first information report. Here P.W.1 appears to be vacillating on material point regarding description of the incident.

On point of torchlight, it is testified to the effect that the incident was seen in the torch light by the witnesses and the first informant. This also stands falsified on various counts. First, the first information report describes possession of torch by all the witnesses who arrived on the spot after alarm was raised, but later on P.W.1 and the witnesses have described to the extent before trial court that only Harish Chandra PW-2 was possessing the torch and the incident occurred in the night at 8:00 p.m. and it was moonlit night, but it is surprising that neither any write-up nor any memo of torch was prepared by the Investigating Officer, which was allegedly possessed by Harish Chandra. Even the Investigating Officer Raj Bahadur Sahu PW-5 himself has admitted that he did not make any memo of torch nor did he take the torch in his possession. This testimony surfaces in his cross-examination at page no. 64 of the paper book. Therefore, we doubt any such source of light in shape of torchlight and it appears that it is a subsequent development, otherwise, the torch would have been, if shown to the Investigating Officer, must have been confirmed by some memo prepared by the Investigating Officer.

Now, we take into consideration the very act of firing on the spot. First information report does not contain any specific detail, as to the direction from where the shot was fired. But in the testimonial description of witnesses, the ocular version describes shot being fired from behind the deceased and it passed through and through from back to chest and then pierced through and through the hand of the deceased, but no such whisper occurs in the first information report. It appears that after conduction of postmortem examination on 12.12.1994- one day after the incident (11.12.1994)- when the ante-mortem injuries described two firearm wounds both in shape of entry and exit wounds, first on back and chest and secondly on right wrist of the deceased. Then only the point was tried to be met on its reasoning that only one shot was fired on the spot, whereas the fact is that these specific particular firearm wounds as per testimony of doctor S.S. Rathore PW-4 could have been the result of two shots, the reason has been specifically defined to the effect that the exit wound, if caused by the same shot, would measure equally and it would not vary on exit wounds of both the ante-mortem injuries. Doctor witness testifies on line that the two exit wounds in both the ante-mortem injuries (1 & 2) are of different dimensions, which admit of possibility of two fire being shot on the deceased. This specific testimony emerges in the cross-examination of the doctor on page no. 57 of the paper book. This testimony of the doctor is fair enough to establish that it may be a case of two shots being fired on the spot, therefore, possibility of two fires cannot be ruled out and on this particular testimony which is vital to the core, the doctor witness S.S. Rathore PW-4 has not been re-examined by the prosecution as to clarify what the doctor meant by this specific testimony, if it was a proposition based on two shots or anything else. Therefore, theory of two shots becomes strong probability and virtually established and it cannot be said that it was confined only to one shot being fired on the spot. If circumstance allude to such a situation, then the testimony of the prosecution witnesses of fact is rendered highly dubious and establishes fact that they did not see the occurrence at all.

On careful perusal of the ante-mortem injuries, we notice that injury no. 1 has been described as firearm wound of entry of size 1.00 cm x 1.00 cm x through and through on left side back of chest, 4 cm away from mid vertebral line at level of T8. Margins inverted, lacerated and ecchymosed. Direction back to front. Wound communicating with wound of exit of size 1.5 cm x 1.5 cm on left side front of chest. 4.5 cm below left nipple at 6 O' Clock position....

Second ante-mortem injury has been described to be in shape of firearm wound of entry of size 1.5 cm x 1.00 cm x through and through on outer and front of right wrist 2.5 cm above wrist joint. Margins inverted, lacerated and ecchymosed communicating with wound of exit of size 2.00 cm x 1.00 cm back of right wrist. Direction left to right. Margins everted and lacerated.

These two specific exit wounds in two ante-mortem injuries are obviously of different sizes. The first exit wound- refers to 1.5cm. X 1.5cm., whereas the second ante-mortem injury exit wound describes size as 2cm. X 1cm. This variation of measurement in the exit wounds of the two ante-mortem injuries gives rise to strong possibility of two shots being fired on the spot. Therefore, the above conclusion in shape of possibility of two shots being fired on the spot cannot be ruled out. Obviously, in such circumstances, the whole ocular testimony becomes dubious, loses credibiity and on the face full of embellishments and improvements regarding description of the incident. This particular omission that the deceased was keeping his hand on the chest, also does not find mention in the first information report. This particular mode of description regarding act of firing that it was in fact shot on the deceased from behind, cannot be imagined from entire reading of the first information report.

Contention has been raised on behalf of the appellants that in case, theory of one fire being shot on the spot if accepted, even then the same is not probable because some strong weapon alone can cause such injury by single shot and the country-made gun, which is being used from a distance of 5-6 feet, can hardly cause such injury. We also come across testimony of P.W.1 on page no. 31 of the paper book that the fire was caused from a distance of 5-6 feet. Therefore, possibility of one fire being shot is rendered doubtful. Therefore, on point of firing two theories run parallel to each other.

One aspect of the occurrence is worth discussion. It is admitted that at the time of occurrence Dharmendra had caught the deceased and as per testimony of P.W.1 on page 31 of the paper book fire was caused from a distance of 5-6 feet then obviously the straying pellets would also hit Dharmendra but no injury has been found on Dharmendra. Causing of injury is most expected under such circumstances. Thus absence of injury on Dharmendra is a pointer to his absence on the spot. Therefore, the version of occurrence emerging in the testimony of prosecution witnesses on the whole does not inspire confidence.

In so far as other aspects of this case are concerned, we come across testimony of both the Investigating Officer and the informant and the witnesses of fact that the Investigating Officer arrived on the spot around 10 p.m., the same night, but the inquest was not held expeditiously after arrival of the police on the spot though lantern light was available on the spot. Perusal of the inquest report Ex.Ka.3 reflects that inquest was held on 12.12.1994 between 7-9 a.m. whereas the matter was reported at the police station on 11.12.1994 at 9:30 p.m. No plausible explanation or reason has been extended on behalf of the prosecution either during course of argument or by the testimonial account of the prosecution witnesses as to how preparation of inquest was deferred to another day till 7 a.m. A casual explanation has been given that source of light was not available, but we come across testimony on page no. 32 of the paper book of PW-1 that after 8-10 minutes of the occurrence, some lantern was availed in the house of Ram Sagar Mali and the report was written. Why this lantern light was not used by the police after its arrival on the spot has not been clarified. Why the report was written after availing of lantern when Harish Chandra P.W.2 was possessing torch, then the report could have been easily written in the torchlight also, but the report was written after availing lantern in its light. This particular aspect raises doubt on existence of torch as the source of light and indicates that the torch was not available on the spot at the time of occurrence and it was subsequently developed. Secondly, the Investigating Officer says that he did not make any memo of the torch though he had seen the torch, but on page 41 and 42 of the paper book, Harish Chandra P.W.2 testifies to the effect that neither Darogaji asked for any torch nor did he show him the torch.

S.I. Sri Raj Bahadur Sahu PW-5 in his examination-in-chief does not specify any reason as to why he delayed preparation of inquest report and held it only on 12.12.1994, though he arrived on the spot at 10 p.m. on 11.12.1994- after the occurrence. He himself admits that the inquest was held at 7 a.m. on 12.12.1994 and he says that he was busy in searching for the accused persons the whole night. However, testimony reveals that on the day of occurrence, investigation ended around midnight. He further states that on his arrival at the spot, he did not see any eye-witness. On the point of contradiction, it is worth noticeable that the Investigating Officer has testified on page no. 65 of the paper book, in his cross-examination, that neither the informant- Chandra Prakash P.W.1- told him about fact that the deceased had his hand folded around chest due to winter season, nor did he give any statement regarding act of gripping "tahmad" by the accused due to which "tahmad" was freed from the body of deceased. Even the sample of simple and blood-stained soil which was collected by the Investigating Officer, allegedly from the spot, were not sent for chemical examination. This is also one of the aspects creating dent in the prosecution story. In the very last paragraph of the testimony, the Investigating Officer has stated on page no. 67 of the paper book that informant had given statement that the deceased had kept his hand on his chest when the shot went through and through. At this stage he has been suggested by the defence that this statement was recorded by the Investigating Officer only after perusal of the postmortem report, though this suggestion has been denied by the Investigating Officer. But the suggestion carries element of truth for reasons aforesaid.

However, we may observe that the particular manner in which the incident occurred has no whispering in the FIR. No doubt FIR is not an encyclopedia that each and every detail of the particulars of manner and style of the incident is to be described, but if a particular style and manner is completely omitted from reference in the report, then the same raises serious doubts particularly in a situation which remained confined to statement of witnesses, because that was a very special and particular manner and style of occurrence, then omission to mention such particular manner and style of occurrence in the report was very much expected to have been written in it and would have been described specifically that the shot was fired from behind the deceased and that it went through and through. There was no compelling circumstance either which necessitated omission of such special and particular factual aspect in the FIR. This has not been reasonably clarified by the prosecution.

It is further noticeable that in this case, the husband of the lady or the brother of the accused persons, who was wedded to the daughter of relative of the informant, had no objection, whosoever, to the visitation of the deceased (Ravendra @ Guddu) to his home and it is quite surprising that only the two accused persons, who are none other than the brothers of the husband had grudge against his (deceased) visitation! Aforesaid discussion of facts as well as testimony impels us in summing up that the testimony of the prosecution witnesses on the whole does not inspire confidence. Testimony, on the whole, is prone to two interpretations. Instead, their (P.W.1 and P.W.2) testimony appears to be result of gradual improvement, tutoring and full of embellishments and their testimony creates lot of doubts about actual occurrence and gives impression that the prosecution witnesses were not present on the spot when the incident took place and it was only after discovery of fact that the fire had hit through and through at two places in the body of deceased, some suitable statement was inserted so as to adjust to the medical testimony that had emerged after the postmortem examination. But the underlying falsity on point of presence of the witnesses on the spot stood exposed by the cross-examination and testimony of doctor witness S.S. Rathore PW-4 that in the event of single shot, if it went through and through at two places, then may be, that the size of entry wounds in the two wounds may vary, but size of exit wounds will remain the same. In case, size of exit wounds differ, then possibility of two shots cannot be ruled out.

In view of above specific testimony, we are of unambiguous view that the ocular testimony of the prosecution witnesses of fact regarding the description of manner and style of the occurrence is in contrast to the medical testimony on record. Therefore, the creditworthiness of the prosecution witnesses of fact on point of occurrence becomes highly doubtful.

We can observe that the prosecution is required to prove its case beyond all reasonable doubts in order to avail conviction against the accused and in case, the prosecution story generates doubt, then the benefit of doubt always goes to the accused and the accused cannot be held guilty merely on the basis of conjectures and surmises as that would be against the established tenets of criminal jurisprudence. Therefore, charge/charges framed against the accused for causing death of Ravendra @ Guddu on 11.12.1994 around 8 p.m. by the convict-appellants has not been proved beyond reasonable doubt.

The learned trial Judge while evaluating testimony on record and appraising facts of the case vis-a-vis circumstances failed to take positive and wholesome view of the testimony qua circumstances of the case and passed its judgment and order of conviction dated dated 19.7.1995 in Sessions Trial No.152/1995, arising out of Case Crime No.130 of 1994, under Sections 302, 302/34 IPC, Police Station, Amritpur, District Farrukhabad against both the accused which is vitiated in the eye of law and the same is set aside. Consequently, the appeal is allowed.

In this case, appellants are already on bail. They need not surrender, their personal bonds and surety bonds are discharged and both the appellants shall ensure compliance as mandated under Section 437-A Cr.P.C. by furnishing bonds.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Order Date :- 31.1.2017 Raj/Ishan

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