Allahabad High Court
The State Of U.P. vs Nanku Patel, Hira Lal And Baura @ ... on 23 December, 2005
Author: M.C. Jain
Bench: M.C. Jain, Vinod Prasad
JUDGMENT M.C. Jain, J.
1. The State has preferred this appeal against judgement of acquittal recorded by Sessions Judge, Banda on 13.1.1998 in S.T. Nos. 92 of 1997 and 116 of 1997 which were tried together. The first two respondents Nanku Patel and Heera Lal were accused in the first mentioned sessions trial whereas Baura alias Rama Kant was accused in the latter sessions trial.
2. The facts may be stated briefly. One Salig Ram was murdered in this incident on 21.12.1996 at about 4.30 P.M. near Primary Pathshala in village Mungaura which was eight kms. away from the Police Station Naraini and F.I.R. was lodged by his son Vijai Kumar Misra PW 1 who claimed himself to be an eye-witness the same night at 8.30 P.M. Only Nanku Patel and Heera Lal were named in the F.I.R. It was stated that there were two other unknown assailants. One Satya Narain brother of Nanku was murdered in 1993 and he suspected that it was deceased Salig Ram who was instrumental in getting him murdered and he very often used to say so. For this reason, Nanku Patel and deceased Salig Ram were not on speaking terms. On the eventful day, the deceased with his son Vijai Kumar PW 1, one Raj Kishore Tiwari and Shiv Narain Dixit PW 2 was coming from his paddy field. Salig Ram was a bit ahead of other persons. When these persons reached in front of the field of Nanku near Primary Pathshala, they saw that the accused Nanku armed with DBBL gun, Heera Lal with rifle and two unknown persons armed with lathis were standing there. On spotting Salig Ram, Nanku exhorted his companions shouting aloud that he was the person who got killed his brother and he should not be spared. All the accused then encircled Salig Ram. Nanku fired on him which caused injuries to him. Salig Ram fell down on the mend of accused Nanku Patel and then Heera Lal fired rifle shot at his chest. The two persons armed with lathis started giving lathi blows to him and Nanku again fired from his DBBL gun on his face. The complainant with others raised alarm attracting several persons from the village. The accused ran away towards the river. Salig Ram died on the spot. A cot was brought from the village and his dead body was taken to his door from safety point of view.
3. Vijai Kumar then wrote F.I.R. and went to Police Station where he lodged it. On the basis of it, a chick was prepared and case registered. The investigation followed as usual at the hands of Arvind Misra PW 5 the then S.O. of Police Station concerned. He reached the spot in the night itself but because of insufficient arrangement of light, the inquest report was prepared by him in the morning. The statements of the witnesses were recorded. The dead body was sealed and sent for post mortem. He also did other activities related to the investigation of the case.
4. Autopsy on the dead body of the deceased was conducted on 22.12.1996 at 4 P.M. by Dr. D.C. Srivastava PW 6. The deceased was aged about 45 years and about one day had passed since he died. The following ante mortem injuries were found on his person:
1. Gunshot wound of entry 2 cms. X 2 cms x chest cavity deep on front of right side of chest 5 cms. away from right nipple at 3 O'clock position. Blackening, scorching and tattooing were present around the wound. It was communicating with injury No. 2 i.e. wound of exit.
2. Gunshot wound of exit 2 cms x 2 cms. on right half of back 7 cms. below lower angle of scapula and 3 cms. away from midline. It was communicating with wound of entry-Injury no. I. There was lot of blood in right side chest cavity. Right Atrium and lung found torn and lacerated. One rib fractured underneath wound of exit.
3. Gunshot wound of entry 2 cms. x 2cms. x cranial cavity deep and communicating with wound of exit ( Injury No. 4) on left side of forehead 0.5 cm. above the middle third of eye brow. Blackening, tattooing and scorching were present.
4. Gunshot wound of exit 2 cms. x 2 cms. x cranial cavity deep and communicating with injury no. 3 ( wound of entry) on right side of neck just below mastoid.
5. Lacerated wound 1 cm x 1 cm x scalp deep on left side of forehead 4 cms above the outer end of eye brow.
6. Lacerated wound 2 cms x 1 cm x scalp deep on left side of forehead, I cm above injury no. 5.
7. Lacerated wound 1.5 cms x 1 cm x bone deep on left side of forehead 1 cm medial to injury No. 6.
8. Lacerated wound 1.5 cm x 1 cm x bone deep on left side of forehead, 1.5 cms medial to injury No. 7.
9. Lacerated wound 6 cms x 3 cms x cranial cavity deep on right side of forehead, just above eye brow extending upto midline.
10. Lacerated wound 9 cms x 3 cms x nasal cavity deep on front and across the upper part of nose and midline extending more on right side. Nasal bones were fractured.
11. Abraded contusion 10 cms x 4 cm on left side of face 3 cms in front of ear.
12. Lacerated wound 1 cm x 0.5 cm x muscle deep on lower lip right side.
13. Lacerated wound 1 cmx 0.5 cm x muscle deep on chin.
14. Abraded contusion 5 cms x 4 cms on top of right shoulder.
15. Abraded contusion 4 cms x 1 cm on outer side of right shoulder.
16. Contusion 4 cms x 2 cms on back of right upper arm 10 cms above elbow. There was fracture of humerus.
17. Lacerated wound 3 cms x 2 cms on top of head. It was scalp deep.
5. On internal examination, it was found that frontal nasal bones of anterior and middle cranial fossa were fractured in multiple pieces. Membranes were torn and lacerated. Frontal lobes of both sides of brain were torn and lacerated. Anterior and middle cranial fossa were fractured. Spinal cord was not opened. Bones of both upper jaw and lower jaw were fractured and number of teeth were fractured. Pleura was torn and lacerated. Right lung was torn and lacerated. Right side of chest contained lot of blood. Pericardium was torn. Atrium of right side of heart was found torn and lacerated. The doctor found that 500 mis partly digested food in the abdomen. Faecal matter was present in large intestine.
6. As per the opinion of the Doctor, the death had taken place due to shock and haemorrhage as a result of ante mortem injuries.
7. It appears that the accused respondent no. 3 Baura alias Rama Kant came to figure during investigation but the fourth culprit of the crime could not be laid hands on. Thus, the present three accused-respondents faced trial.
8. The defence of the accused-respondents Nanku Patel and Heera Lal was of false implication due to enmity. The third one Baura alias Rama Kant's case was also of denial. But he did not assign any reason for his alleged false implication.
9. At the trial, the prosecution examined Vijai Kumar Misra PW 1 and Shiv Narain Dixit PW 2 as eyewitnesses. The remaining witnesses were of formal nature. One Mansukh PW 3 claimed that hearing boom of fire he reached the spot and saw the accused respondents running from the place of incident. He claimed to have recognized unknown assailants Baura alias Rama Kant and Sukhdeo Yadav armed with lathis as also accused Nanku Patel with DBBL gun and Heera Lal armed with a rifle. One armed was examined in defence as DW 1.
10. The trial judge recorded acquittal on the ground that ocular version was in clear conflict with medical evidence and the so-called witnesses could not be believed as being present at the spot. Their testimony was, accordingly, disbelieved.
11. We have heard Sri Amar Jeet Singh, learned A.G.A. from the side of the State and Sri V.M. Zaidi, learned counsel for the complainant. Sri A.R. Dwivedi, learned counsel for the accused-respondents has also been heard. It has been argued from the side of the State that there was no conflict between ocular version and medical evidence and that the testimony of the witnesses has unjustifiably been disbelieved by the trial judge. On the other hand, the counsel for the accused-respondents has supported the reasoning adopted by the trial judge to favour acquittal.
12. On cross-checking the findings of lower court with record in the light of arguments advanced from the two sides, we are in judgement that the trial judge has taken a very reasonable view on proper appreciation of the evidence in acquitting the accused-respondents. The principal reasons are that the motive assigned by the prosecution was very weak and infirm. There was apparent conflict between the medical evidence and ocular testimony of inimical, chance and interested witnesses who were incapable of being believed. A little discussion would render the things clear.
13. The motive is insignificant in a case of direct evidence. However, since the prosecution came up with a motive on the part of accused to commit this crime right from beginning, it required to be examined on the anvil of reliability. It failed the test. The motive alleged in the F.I.R. was that Satya Narain- brother of the accused Nanku was murdered in the year 1993 and he had suspicion that the present deceased Salig Ram was instrumental in getting Satya Narain murdered. It came through the testimony of Vijai Kumar Misra (son of the deceased Salig Ram) that the F.I.R. of that case was lodged against Laxmi, Shyam Bihari and Budhu. The police had submitted final report against the named accused. On investigation, the case was found to be that of Section 396 I.P.C. against other persons who were challaned. The murder of Satya Narain had taken place in 1993. Obviously, there was no immediate motive for the accused to commit the murder of Salig Ram on 21.12.1996. There was sufficient gap between 1993 and 1996 when this murder took place. In case the accused were harbouring grudge against Salig Ram, the murder would have been committed at such time when he was all alone. It was an admitted fact that Salig Ram very often used to go to his fields all alone. So, there could be ample opportunity to liquidate him when no other witness could be around. So, the motive imputed by the prosecution was built on straw.
14. So far as the shooting part of the incident was concerned, as per the the testimony of Vijai Kumar Misra PW 1 ( son of the deceased ), the accused surrounded his father when he reached the road near the field of one of them Nanku Patel in the proximity of Primary Pathshala. Then the accused Nanku Patel fired on him with his DBBL gun and on receiving injury, he ran and fell on the mend of the field of Nanku after crossing the road. The accused Heera Lal then fired on him from his rifle on his chest and the accused Nanku again fired from his DBBL gun on his face from point blank range. The informant was very definite in the F.I.R. that the first shot had hit the victim and thereafter two shots were fired on him after his fall, one by Heera Lal from rifle and the other by Nanku from DBBL gun. But the post mortem report showed that there were only two gunshots of entry received by the deceased, one on the chest ( ante mortem injury no.l ) and the other on left side of forehead ( ante mortem injury No. 3). Strangely, the size, of two gunshot wounds of entry were exactly the same. The first was 2 cm x 2 cm x chest cavity deep and the other was 2 cm x 2 cm x cranial cavity deep at entry point. The exits of both the injuries were of the same size of 2 cm x 2 cm. As a matter of fact, two gunshot injuries sustained by the deceased were virtually the same in all characteristics. They indicated that projectile which was used passed through and through. It would not have been the position, had two types of weapons i.e. rifle and DBBL gun had been used in shooting the deceased. Post mortem report rather indicated as if one and same weapon had been used in shooting the deceased. It was so stated by Dr. D.C. Srivastava PW 6 also.
15. Making a departure from the recital in the F.I.R., Vijai Kumar Misra PW 1 tried to explain before the court that he was under impression that first fire opened by Nanku had hit his father making him to run. It appears to us that it was a desperate attempt to reconcile his testimony with the medical evidence and to get away from his recital in the F.I.R. where he had minced no words to be emphatic that on being hit by the first fire opened by Nanku Patel, his father had run. The conflict between medical evidence and ocular testimony was so serious that it travelled to the root of the matter and knocked the bottom of the case of the prosecution as against accused.
16. The oral factual testimony consisted of Vijai Kumar Misra PW 1 (son of the deceased) and Shiv Narain Dixit PW 2, who were allegedly in the company of the deceased at the relevant time. Mansukh PW 3 allegedly saw the accused Nanku Patel with DBBL gun, his Bahnoi Heera Lal armed with rifle, accused Baura with lathi and fourth non-chargesheetd culprit Sukhdeo Yadav with lathi running towards river when he was coming from his fields at about 4.30 P.M. Taking up this witness first, his name does not find place in the F.I.R. It is, however, there in the testimony of Vijai Kumar Misra PW 1 and Shiv Narain Dixit PW 2 that he (Mansukh) had reached the spot immediately after the incident. Vijai Kumar Misra PW 1 further stated that Mansukh accompanied him when he had gone to the police station to lodge the F.I.R. This fact has been admitted by Mansukh PW 3 also. It spills beyond comprehension as to why the name of Baura and for that matter of the fourth accused Sukhdeo had not been mentioned in the F.I.R. In natural course of things, he would have disclosed the names of these two (Baura and Sukhdeo) to Vijai Kumar PW 1 ( informant) and Shiv Narain Dixit PW 2. Mansukh PW 3 was a witness of inquest report also. However, he did not disclose the name of accused Sukhdeo at that time. There could be no reason for his such omission. Further, his statement was recorded by the Investigating Officer after 27 days without any plausible explanation. There is not the slightest doubt that he came up without any basis to support the crumbling prosecution case.
17. Vijai Kumar Misra PW 1 and Shiv Narain Dixit PW 2 were chance and inimical witnesses. Their testimony was full of incongruities. Vijai Kumar Misra admitted that he was a student and it was just a chance that he had gone that day with his father. He further admitted that the wife of Shiv Narain Dixit used to run a shop in his house. There was a suggestion on behalf of the accused that it was the deceased who used to maintain that lady and there had also been a quarrel between the deceased and his father over this issue.
18. As per Vijai Kumar Misra PW 1, Shiv Narain Dixit PW 2 had met him and his father about one furlong away from the place of occurrence. Shiv Narain Dixit PW 2 admitted that it was by chance that on that day he had met the deceased. To conceal his closeness with the family of the deceased Shiv Narain Dixit PW 2 denied that his wife used to carry on shop in the house of the deceased which was against the statement of Vijai Kumar Misra. Shiv Narain Dixit PW 2 could not be taken as a natural witness. He did not use to go with deceased every day. It was only per chance that he was coming with the deceased from the field. There was long standing enmity in between two sides. The statement of Vijai Kumar Misra PW 1 in his examination-in-chief was that at the start of the incident, four accused caught hold of his father and Nanku fired on his father with DBBL gun. Since it sounded to be unnatural, he tried to wriggle out in his cross-examination by saying that his father had not been caught hold of by the accused and he had been encircled from a distance of about 15-16 paces. Bitter enmity was obvious as there was his admission that his father had earlier launched a case under Section 307 I.P.C. against Satya Narain-brother of the accused Nanku. It would be recalled that the accused Heera Lal is the Bahnoi of Nanku.
19. Scrutiny of the testimony of so-called witnesses produced by the prosecution clearly indicated that they were chance witnesses. There was enmity between the family of Vijai Kumar Misra PW 1 and the accused Nanku from before. Shiv Narain Dixit PW 2 was thickly associated with the family of the deceased. The testimonial assertions of Vijai Kumar Misra and Shiv Narain Dixit had unnatural tinge and could not at all be believed. Mansukh PW 3 was a picked up witness. Oral testimony, as we said, was in serious conflict with the medical evidence and was incapable of being accepted as has rightly been done by the trial judge.
20. We find no merit in this appeal and it is hereby dismissed. The accused-respondents are already on bail. Their bail bonds are discharged.
21. Certify the judgement to the lower court immediately.