Allahabad High Court
Mukarram And Another vs State on 31 July, 2018
Bench: Sudhir Agarwal, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 11.07.2018 Delivered on 31.07.2018 Court No. - 34 Case :- CRIMINAL APPEAL No. - 163 of 1991 Appellant :- Mukarram And Another Respondent :- State Counsel for Appellant :- H.N. Sharma,H.K. Sharma, Pradeep Kumar Mishra (Amicus Curiae) Counsel for Respondent :- A.G.A., Syed Ali Murtaza Hon'ble Sudhir Agarwal,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This Criminal Appeal under Section 374(2) of Criminal Procedure Code (hereinafter referred to as "Cr.P.C.") has been filed by two appellants, namely, Mukarram and Nirpal, against judgment and order dated 31.01.1991 passed by Sri Yad Ram, Special Additional Sessions Judge, Saharanpur in Session Trial No. 184 of 1989, convicting accused-appellants under Section 302 read with Section 34 IPC and sentencing them to undergo for life imprisonment.
2. Factual matrix of case emanating from First Information Report (Exhibit-Ka 1) (hereinafter referred to as "FIR") and evidence adduced before Trial Court is that on 19.01.1988 informant PW-1, Mange Ram was going to Barauli alongwith PW-2, Janeshwar of village Bahadurpur and his brother-in-law (Bahnoi), Amar Singh, resident of Village Saurana, Ram Nath and Shri Pal, both residents of Village Saurana in connection with consultation for marriage of informant's sister. They reached at about 3.00 pm on Barauli crossing and after taking tea, proceeded towards Village Kalasiya. Hardly they covered some distance, when Appellant-2, Nirpal resident of Village Saurana alongwith his accomplice, Appellant-1, Mukarram, resident of Village Shekhpura Kadim and one unknown person came on Motorcycle from the side of Kalasiya. They stopped the Motorcycle near informant. All the three accused took out countrymade pistol and caught hold Amar Singh, saying that he poses himself to be smart litigant (Mukadmebaaz) and today they would settle the score. Saying this, all the three accused opened fire at Amar Singh as a result whereof, he fell down facing his mouth towards ground and died instantly at the spot. Informant and other persons accompanying him tried to catch them but they threatened waiving countrymade pistols and fled away towards Kalasiya on Motorcycle. There had been a long-standing litigation and enmity between Nirpal and Amar Singh (brother-in-law of informant), wherein Nirpal had also been convicted. FIR further says that on account of this enmity, Nirpal and Mukarram alongwith his accomplice have committed murder of Amar Singh (brother-in-law of informant).
3. On submission of FIR at Police Station Behat, District Saharanpur case was registered as Case Crime No. 15 of 1988 under Section 302 IPC on 19.01.1988 at 4.30 pm. Distance of Police Station from place of occurrence was about 10 kilometers. After registration of FIR usual investigation followed. Investigating Officer (hereinafter referred to as "I.O.") visited spot, collected blood stained and simple earth in separate boxes and sealed them (marked as Exhibit-Ka 8 and Ka 9 respectively). He also prepared Exhibit Ka-3 inquest report (Panchayatnama), Exhibit-Ka 4, photo lash and other formal documents (Exhibits Ka 5 to Ka 7). Dead body of deceased was properly sealed and sent to District Hospital, Saharanpur through Constables, Pratap Singh and Anuj Tyagi for post-mortem.
4. Autopsy on the deadbody of deceased Amar Singh was conducted on 20.01.1988 at 4.00 pm by Dr. R.D. Sharma, who prepared post-mortem report, Exhibit Ka 17. According to Doctor, deceased was aged about 40 years with average built body. Rigor mortis was found present and about one day had passed since his death. Doctor found following ante-mortem injuries on the person of deceased:
"1. Wound of entry 0.75 cm X 0.75 cm X body cavity on the back and upper part of right side chest, 2 cm away from vertebral column and 7 cm away from angle of right scapula, margins inverted directed upward piercing right upper lobe of right lung and then forwards to the middle lobe of left lung and then piercing the lungs then fracturing fifth rib left side in middle and then return upwards to the neck right side. Lower part and then coming out from right supraclaviculor fossa in middle. No blackening, tattooing present.
2. Wound of exit 3.5 cm X 2 cm X body cavity on the middle of right supraclavicular fossa 2 cm above from the middle of right clavical, margins everted.
3. Incised wound 6 cm X 2 cm X muscle deep just above left cheek bone 2 cm below left eye margins clear cut.
4. Incised wound 3 cm X 1 cm X muscle deep on the middle of left eyebrow. Margins clear cut.
5. Incised wound 2 cm X 0.5 cm X muscle deep on the front of right side forehead just above right side bridge of nose.
6. Incised wound 0.5 cm X 0.2 cm X muscle deep on the left side nose.
7. Incised wound 1.5 cm X 0.5 cm X muscle deep on outer angle of left eye.
Cause of Death:-is due to shock and haemorrhage as a result of injury noted No. 1.
Stomach:-100 m.l. light colour fluid only.
5. In the opinion of Doctor, death had occurred due to shock and haemorrhage on account of injury no. 1. On internal examination both lungs of deceased were found lacerated. Both sides of thoracic cavity contained about one liter of blood. Weight of heart was about 200 gram and it was empty. Stomach was empty.
6. On receipt of post-mortem report, after concluding investigation, I.O. submitted charge-sheet dated 03.07.1988, Exhibit Ka 15, in the Court of Additional Chief Judicial Magistrate, Saharanpur. It appears that another charge-sheet, Exhibit Ka 16 was also submitted in Court on the same day, i.e., 17.10.1988. Case was committed to the Court of Sessions on 13.03.1989 and registered as Sessions Trial No. 184 of 1989. Ultimately case was transferred to the Court of Special Judge/ Additional Sessions Judge, Saharanpur who framed charge on 16.03.1990 against accused-appellants, Mukarram, and Nirpal and third accused-Mursalim under Section 302 read with Section 34 IPC.
7. All the three accused denied charges and claimed to be tried.
8. Prosecution examined, PW-1, Mange Ram, (informant) brother-in-law of deceased and PW-2, Janeshwar as witnesses of fact; PW-3, Sub-Inspector, Yad Ram Singh, who had visited the spot after registration of FIR and prepared Panchayatnama and other necessary documents at the place of occurrence; PW-4, Station Officer, Hari Prasad Kasna, who had also investigated the case and recorded statements of witnesses and effected arrest of accused; and, PW-5, D.P. Singh, the then Sub-Divisional Magistrate, Saharanpur who had conducted identification parade in Saharanpur Jail of accused, Mursalim. PW-3 to PW-5 are formal witnesses.
9. Thereafter, statement of accused-appellants under Section 313 Cr.P.C. was recorded. They stated the prosecution story to be false. Accused-Mursalim claimed that he has been implicated falsely in connivance with Police.
10. On appreciation of evidence available before Trial Court and after hearing parties, learned Sessions Judge convicted and sentenced accused-appellants, Mukarram and Nirpal, as stated above, by judgment and order impugned in this appeal. Third accused, Mursalim was acquitted of the charge under Section 302/34 IPC.
11. Trial Court has basically relied on the ocular testimony of PWs-1 and 2, particularly observing, that PW-2 is an independent witness and no reason could be pointed out to disbelieve his deposition since the same is corroborated by deposition of PW-1, Medical Report and other material and the fact that there was already an incident of altercation between Nirpal and Amar Singh, in which Nirpal was convicted and sentenced for three years rigorous imprisonment, which corroborated strong motive on the part of Nirpal to teach lesson to deceased Amar Singh and he ultimately succeeded therein. Various discrepancies pointed out in Court below have not been found material so as to create a reasonable doubt in prosecution story hence Trial Court has convicted both appellants under Section 302 read with Section 34 IPC.
12. Being dissatisfied with conviction and sentence awarded by Trial Court both appellants are before this Court in this appeal.
13. We have heard Sri Pradeep Kumar Mishra, Amicus Curiae on behalf of appellants and Sri Syed Ali Murtaza, learned A.G.A. for State.
14. Sri Pradeep Kumar Mishra, Amicus Curiae for appellants submitted that there is a clear variation in the manner of occurrence stated in FIR which has been improved upon and changed subsequently by witnesses of facts, showing that prosecution story is not true. Prosecution stated that two appellants and third accused opened fire from countrymade pistol but only one gunshot wound has been found on the body of deceased which creates a serious doubt on prosecution story. Medical report shows six incised wound on the face though the only weapons accused claimed to possess were countrymade pistols. How incised wounds were found, has not been explained at all. PW-1 has improved FIR version by attempting to explain incised wounds stating that deceased fell in a pit in which there were broken glass pieces and stones but the same were not found by Police who visited the place of incident and prepared site plan. Witnesses are close relatives and cannot be said to be independent witnesses. Third accused had been acquitted. Statement of PW-2 was recorded by Investigating Officer on 03.07.1988 when first charge-sheet was submitted.
15. Learned AGA, on the contrary, submitted that place of incident, injuries and ocular version of PWs-1 and 2 have proved the incident and offence committed by appellants beyond doubt and minor deviation or variation which is always possible due to difference of time, mental condition of individuals and other relevant factors, is not vital so as to demolish prosecution story, therefore, Trial Court has rightly convicted appellants.
16. Incident occurred at about 3.00 pm on 19.01.1988. Place of incident is near Village Barauli, on the road connecting Kalasia and Fatehpur. It is about 1 km. from main road whereto the road connecting Kalasia and Fatehpur meets. Site plan shows that body was found on the south-eastern side of road near the field wherein wheat was sown and it belongs to one Gyan Singh. Between the road and field, some space has been shown and there is marking of pits. According to Panchnama, body was found in a pit, lying downside, head towards East and legs on Western side. Body had a gunshot injury near neck and some other injuries on cheeks, forehead, eyebrows etc. None of the witnesses were named as Panch in the Panchnama and they are different persons, namely, Om Prakash, Yashpal Singh, Babu Singh, Vijendra Pal Singh, Mahendra Singh and Ramnath. First five persons belong to Village Barauli and Ramnath belong to Village Saurana. This fact has also been pointed out by learned counsel for appellants in his endeavour to show that prosecution story is concocted and falsely implicate appellants.
17. Place of incident is about 10 kms from Police Station Behat. Incident took place at around 3.00 pm and FIR was lodged at 4.30 pm which is in close proximity and does not give scope of pre consultation and mediation in concocting story for lodging FIR. Informant has said that he reached Police Station by bus and it took about half an hour. Suggestion that there was a Tractor on the site is specifically denied by PW-2.
18. Appellant-2, Nirpal has admitted that he knew Amar Singh very well. It is also admitted that he (Nirpal) was convicted in an earlier criminal case tried under Section 326 IPC, by Assistant Sessions Judge, Saharanpur vide judgment dated 23.02.1983. Appellant-2 was sentenced for three years rigorous imprisonment and fine of Rs. 500/-, whereagainst criminal appeal was rejected by First Additional Sessions Judge, Saharanpur vide judgment dated 01.02.1988. Aforesaid incident took place in a property dispute wherein father of Appellant-2 had some grudge against deceased, Amar Singh. It is also admitted by Appellant-2 in the statement under Section 313 Cr.P.C. that his father was also murdered and in Trial, Amar Singh was an accused. Strong enmity between deceased Amar Singh, and Appellant-2, Nirpal is proved by aforesaid facts. Trial Court, in our view, has rightly found strong motive for the incident.
19. Place of incident where body was found is consistent with FIR version as well as ocular version of PWs-1 and 2 except that in FIR it was not stated that body had fallen in pit wherefrom it was actually recovered by Police. FIR version also does not contain any fact that deceased sustained any incised wound and reason thereof.
20. Mere non mention of these facts in FIR, per se, cannot be construed as a vital contradiction in prosecution story for the reason that as soon as incident occurred, PW-1, who was witness to the incident, immediately proceeded to Police Station for information. In a disturbed mental condition of PW-1 where his brother-in-law, Amar Singh was murdered in broad day light, in his presence, which could have naturally shocked anyone, one cannot expect a complete, step by step, version of everything in FIR. The purpose of lodging FIR is to inform about commission of an offence and to put enforcement machinery of law into action. FIR is not an encyclopedia expected to contain each and every version of incident, site plan and other details which in fact is a matter to come up in investigation etc. FIR clearly mentioned that deceased sustained firearm injury, fell with mouth downwards and died. Body was found in same condition by Police.
21. In Latesh @ Dadu Baburao Karlekar Vs. State of Maharashtra, 2018(3) SCC 66 Court said that value to be attached to the FIR depends upon facts and circumstances of each case. When a person gives statement to a police officer, on the basis whereof FIR is registered, the reproduction of facts and capacity of reproduction of facts differs from person to person. Some people may have the ability to reproduce the things as it is. Some may lack the ability. Some times in the state of shock, they may miss the important details, because people tend to react differently when they come across a violent act. Mere non-mention of accused in FIR or names of accused in FIR by itself would not a ground to raise a serious doubt over the correctness of FIR and prosecution cannot be thrown out on this ground.
22. Again very recently in Motiram Padu Joshi and others vs. The State of Maharashtra, 2018(8) SCALE 704 Supreme Court has said that FIR is not an encyclopedia which should contain all details of the incident. If broad facts of prosecution case about occurrence appear, it is sufficient. Omission as to names of assailants or witnesses may not all the times be fatal to the prosecution, if the FIR is lodged without delay. Unless there are indications of fabrication, Court cannot reject the prosecution case as given in FIR merely because of one or two omissions. The object of FIR is to set the law in motion. Omission to give names of assailants or names of witnesses in FIR is not fatal to prosecution case.
23. Therefore, for every omission in FIR Court cannot proceed to create reasonable doubt on prosecution case unless the omissions are vital or render prosecution case to be self-contradictory or there are some serious lapses. In the present case, FIR having been lodged within half an hour of occurrence of incident, it is prompt and this aspect goes in favour of prosecution. Non-mention of wounds found on the face of deceased, if as claimed by PWs-1 and 2 that same had been sustained when deceased fell in pit with mouth downwards where broken pieces of glass and stones were lying which caused wounds on his face, and, this fact if found credible, non mention of these wounds in FIR would not be fatal, but if evidence shows that wounds could not have been caused by broken glass or stone or throny bushes, even if lying in pit and the same could have been caused by some weapon, then non-mention of the factum of wounds on the face of deceased in FIR may be a vital aspect and could be taken against prosecution case in case there are some other corroborating material also to create a reasonable doubt on the correctness of prosecution case.
24. Interestingly correctness of post-mortem report has been accepted by both appellants in their statements under Section 313 Cr.P.C. and prosecution also relies on the same to prove the cause of death.
25. Learned counsel for appellants seriously argued that five incised wounds show that incident took place in some other manner and caused by some other person(s) inasmuch as appellants allegedly possess only countrymade pistols and fired therefrom. He further pointed out that FIR version is that appellants and another person caught Amar Singh, told him that he poses himself to be a smart litigant and would be finished today, and thereafter, fired, meaning thereby, they fired from very close range but as per post-mortem report there is no blackening, scorching or tattooing on the body which shows that no such incident actually took place. Our attention was drawn to statement of PW-1 wherein the fact that appellants-accused caught hold of Amar Singh is missing and it only says that appellants came on a motorcycle and challenged Amar Singh and thereafter fired. He argued that this is an improvement of prosecution story in the light of inspection report and site plan prepared by Police which shows that assailants were about eight steps away from deceased when they fired and body was found about seven steps from the place whereat deceased was fired but subsequently fell down. He further pointed out that in the cross-examination, PW-1 specifically said that none of the assailants caught hold of Amar Singh, and, they fired from a distance of about 3-4 steps. He also pointed out that as per ocular testimony, firing only from countrymade pistol had taken place and there was no other weapon, therefore, five incised wounds on the upper part of body, i.e., cheeks, forehead and eyebrows remained unexplained. He also pointed out that neither there is any oral testimony or otherwise evidence to show that pit in which body had fallen, face downside, had bushes and broken glasses or stones but Trial Court in its judgment has noted presence of broken class, stones and incised wounds to explain the said wounds.
26. PW-1 in this regard has said:
^^bu rhuksa us vej flag ds Åij ,dne Qk;j fd;kA og xksyh yxdj eqag ds cy fxj iM+kA x<+s vkSj >kM+ esa fxjk ogka 'kh'ks Hkh FksA** "These three fired upon Amar Singh all of a sudden. Being hit by bullets he fell down with his face downwards. He collapsed into a ditch over-grown with shrubs and having glass splinters."
(English translation by Court)
27. Trial Court has relied on aforesaid testimony of PW-1 and in para 10 has observed as under:
^^lk{kh ekaxsjke us eq[; ijh{k.k esa ;g c;ku fn;k gS fd vej flag xksyh yxus ds i'pkr eqag ds cy tehu ij fxjk Fkk] vej xM<+s o >kM+ esa fxjk Fkk tgkWa ij 'kh'ks iM+s FksA blus ftjg esa ;g c;ku fn;k gS fd tgkWa e`rd xksyh [kkdj fxjk Fkk ogka ,d iRFkj o >kM+ FksA** "Witness Mange Ram has stated in his examination-in-chief that Amar Singh, having sustained gunshot injury, fell on the ground with his face downwards; fell into a ditch over- grown with shrubs and having glass splinters scattered. He has testified in his cross examination that there was a piece of stone as also shrubs at the place where the deceased fell down having sustained gunshot injuries." (English translation by Court)
28. Thus PW-1 stated that deceased fell in pit and bushes and broken glass pieces were there but Trial Court read it that there were stones and bushes. Learned counsel for appellants pointed out, and we also find substance therein, that if in pit there was bushes then stones or broken pieces of glasses cannot be on bushes but down on earth/surface and could not have caused such wounds. At the best deceased could have sustained injuries if bushes are thorny and the nature of injuries could not have been in the shape of incised wound with margins clear cut.
29. Trial Court has also relied on Exhibit Ka-10, i.e., the site plan, by observing that on both sides of road there existed pits and bushes. However, this finding of Trial Court, we find, is perverse inasmuch as in the site plan, on North-Eastern side of road lots of pits are shown but body was found on South-Eastern side of road. The word 'pits' are mentioned on North-Western side of road and not on South-Eastern side where body was found. The symbol to demonstrate pits is small circle which are shown on South-Eastern side of road also even if we may take the same as pits but presence of bushes is not shown in entire site plan (Exhibit Ka-10).
30. PW-3, Sub-Inspector, who prepared site plan has also admitted in his deposition, (cross-examination), that on both sides of road there was service road (Patri) and thereafter pits but he has not shown bushes in site plan and has also not referred to the same in inspection note.
31. PW-1 admittedly has said in oral deposition that deceased fell down in pit and bushes where there were broken glasses also but there is no statement with regard to stones. However at another place in cross-examination he said that place where deceased fell down, there were stones and bushes though this fact is not mentioned either in FIR or site plan.
32. Mere non mention of this fact in report by itself may not be of much relevance but there has to be a consistency in the statement as to whether bushes were there or stones were there or broken glasses were there or all these things were there, and whether bushes, stones or broken glasses were inside the pit or around it or on the side of pit or what was the position. Trial Court has taken statement of PW-1 with regard to pits, bushes, stones and broken glasses corroborated by Exhibit Ka-10 but therefrom we find no mention about bushes, stones or broken glasses.
33. We have also gone through the post-mortem report giving details of five incised wounds, some are very smaller in size but two wounds are sufficiently large in size. Incised wound at Item No. 3 is 6cm x 2 cm and muscle deep just about left cheek bone, 2 cm below left eye margin. At item No. 4, incised wound 3 cm x 1 cm and it is also muscle deep on the middle of left eyebrow. In both wounds, margins are clear cut. In absence of any evidence having been found by Police when they visited the spot, explaining cause of such wounds, in our view, it was incumbent upon prosecution to show the manner in which aforesaid incised wound could have caused. However, prosecution has not taken pains to examine any medical expert or doctor, who conducted post-mortem. These incised wounds have been left unexplained by prosecution.
34. The nature of injuries caused by bushes having thorn would be different than injuries which may be caused by broken glass. Injuries caused by stone would also be different. Normally, if an incised looking wound has been caused by a broken piece of glass it would have the characteristics of incised wound but edges appear parallel, with one end of wound tapering into abrasion or scratch. Broken pieces of glass may be found embedded inside the wound, in tissues. Nature of injuries which would be caused by stones or bushes, having thorns, obviously would be of different nature. There is no abrasion found on the face. If broken piece of glasses or stone were present in pit, in which deceased fell with face downside, it is strange that neither any abrasion has been found nor any injury has been found on any other part of body. It appears that the object causing injury was present only in the area where face part of body struck to ground. We are not entering into any guess work on this aspect but find it strange as to why prosecution did not examine any medical expert on this aspect to show, how these injuries were caused.
35. In this backdrop, now we propose to look into some other aspects of the matter. PW-1 in FIR said that incident took place at around 3.00 pm but in oral deposition he stretched the period to 3.00 to 3.15 pm. He further said that as soon as gunshot fire hit Amar Singh, he fell down with face downside. The place where he was standing when firing took place is road but body has been found about seven steps away from road, inside a pit. It is nobody's case when appellants challenged Amar Singh or opened fire, he tried to run and save himself, walked a few steps but having been hit by gunshot fell down in pit and died. FIR version says that as soon as accused fired, Amar Singh immediately fell down where he was standing and died. PW-1 in his deposition said that three accused suddenly fired upon Amar Singh who sustained gunshot injury and fell down with face downwards. It is also admitted that accused persons, only fired, and no other weapon was used.
36. In cross-examination PW-1 also said, where deceased fell down, there were stones and bushes. Site plan shows that he was standing on the road at place 'C' when accused-appellants opened fire but body was found about seven steps away from the place where deceased was standing when firing took place. PW-2 also says that as soon as accused opened fire, Amar Singh sustained injury, fell down on ground and died. No witness has said that after receiving gunshot injury, Amar Singh moved a few steps and thereafter fell down in a pit and died. PW-3 has explained that on both sides of road, after the road there were side roads (Patri) and thereafter pits.
37. Next is that incident took place at around 3.00 to 3.15 and Informant (PW-1) reached Police Station, about 10 kms from the place of incident, and lodged FIR at 4.30 pm. PW-3 proceeded to site alongwith Informant and claimed to reach the spot at around 4.00 pm. This is apparently contradictory. PW-3's statement in this regard reads as under:
^^eSa oknh ds lkFk ?kVuk LFky ij pyk x;k FkkA ge 'kke ds 4 cts Fkkuk ls ?kVuk LFky ds fy, pys FksA ekSds ij igqaprs&igqaprs va/ksjk gks x;k FkkA** "I had left for the scene of occurrence with the complainant. We had left the police station for the scene of occurrence at 4 pm, and it had grown dark when we reached there." (English translation by Court)
38. PW-2 also made a similar statement which reads as under:
^^njksxk yk'k ds ikl 4&1@4 cts 'kke vk x;s FksA** "Sub Inspector had come close to the deadbody at 4-1/4 pm."
(English translation by Court)
39. When report itself was lodged at 4.30 pm, we find it strange how PW-3 could reach the site at 4.00 or 4.30 pm and started proceedings. PW-3 further said that he came alongwith informant while PW-1 deposed that he stayed at Police Station and police proceeded towards the place of incident. PW-2 also stated that Informant stayed at Police Station and reached later on by which time police already sealed the corpus of deceased. PW-1 said that he reached Police Station at 4.00 pm by bus. Every deviation or contradiction though would not be relevant and material to create a reasonable doubt of prosecution story but looking in the backdrop of this case where five injuries found on the face of deceased remained unexplained, statement of witnesses and findings of Trial Court in this regard are at variance and there is misreading on the part of Trial Court in respect of Exhibit Ka-10, the aforesaid variation in the version of FIR, ocular testimony and Investigating Officer, i.e., PW-3, becomes important and assume much relevance.
40. It appears that report was lodged by police after Panchnama was prepared and, therefore, care was taken to notice that deceased fell down with face downwards and died. Moreover, incident is of 19.01.1988. Being winter days, Sun sets early. If PW-3, who made investigation after receiving information from PW-1, reached site at 4.00 or 4.30 pm, we find strange how PW-3 could say that by the time he reached the place of incident, it was already dark. Even in winter days unless it is a cloudy day, Sun does not set at 4.00 or 4.30 pm resulting in darkness.
41. PW-3 further admitted that place of incident from Police Station is 10 kilometers and they proceeded from Police Station to place of incident at 4.00 pm but by the time he reached it was already dark. He further said that PWs-3 and 1, i.e., informant both walked from Police Station towards place of incident but in the way they found a Tractor who was known to informant and thereby they came to site and investigation at the site was made in the headlight of Tractor. This story of PW-3 is not corroborated by informant himself, i.e., PW-1 since according to him PW-3 reached the site at 4-1/4 in the evening as is evident from following statement of PW-2:
"njksxk yk'k ds ikl 4&1@4 cts 'kke vk x;s FksA"
"Inspector (I.O.) had reached near deadbody at 4.15 pm in the evening." (English translation by Court)
42. PW-2 also said that by the time he reached the place of incident police had sealed body of deceased. PW-2 specifically said that police completed proceedings at the site in the day and there was no darkness. Relevant statement of PW-2 reads as under:
"tc Fkkus ls ekWaxs okfil ekSds ij vk;k rc rd iqfyl us yk'k lhy can dj nh Fkh] njksxk th us ekSds ij fy[kk i<+h dh FkhA fnu FkkA va/ksjk ugh FkkA"
"By the time Mange came back from Police Station, Police had sealed the deadbody, Inspector had performed documentation on the spot. It was day time. There was no darkness." (English translation by Court)
43. It is true that defects in investigation and lapses shown by I.O. in investigation would not help accused appellants but while testing truth of prosecution version to adjudicate whether accused-appellants are implicated rightly or not, when lapses of I.O. are corroborated with other serious unexplained lapses, benefit has to go to accused and prosecution cannot always ask to ignore every aspect of matter howsoever relevant and crucial it is.
44. One serious lapse or contradiction, in our view, is very vital to doubt the entire prosecution version. Post-mortem report shows that gunshot injury has an entry wound on back. Exit wound on front side, i.e., middle of right supraclavicular fossa. Margins everted. There is a solitary gunshot injury. It shows that gunshot injury was sustained by deceased when his back was towards assailants but evidence of ocular testimony is that assailants fired from front. PW-1 has specifically stated that three assailants fired from front meaning thereby Amar Singh sustained gunshot injury when his face was towards assailants. This is also evident from following:
PW-1:
^^rhuksa us lkeus ls Qk;j fd;kA** "All the three fired gunshot from the front."
PW-2:
^^blds ckn bUgksaus vej flag ds Åij Qk;j djus yxs vkSj vej flag ds pksVsa vkbZ] ogha tehu ij fxjk vkSj ej x;kA** "Thereafter, these persons started firing gunshots on Amar Singh inflicting injuries to him, causing him to fall to the ground and meeting with his death then and there." (English translation by Court)
45. According to ocular version of PWs-1 and 2 the assailants first challenged Amar Singh, told him that he is trying to be smart and will be finished today and thereafter opened fire. Meaning thereby, the face of deceased must have been towards the assailants. The post-mortem report shows that gunshot injury was caused from backside and bullet has passed and exit wound has been found on the front side. When questioned, learned AGA could not explain as to how it has happened when it is nobody's case that Amar Singh sustained injuries when he tried to run away and, on the contrary, consistent version is that Amar Singh was challenged by assailants and fire was opened from front. All three assailants opened fire but only one gunshot injury was found on the corpus. It cannot be ruled out that more than one round of fire may have been shot but only one succeeded in hitting the target but when with close range of 3 to 4 steps, three persons start firing with separate pistols, it may be true that only one shot hit the vital part of body but other shots would not even touch the target, is seriously doubtful and in the backdrop of various aspects which we have discussed above even this aspect becomes relevant to judge the correctness of prosecution version and we find a very strong case of serious lapses in prosecution version to sustain the judgment of conviction.
46. An argument was raised by learned counsel for appellants that both ocular versions reported by PWs-1 and 2 are untrustworthy since they are close relatives of deceased. Mere relation with deceased is not a sufficient ground to reject an otherwise creditworthy ocular version but when there are other reasons to reasonably doubt prosecution version, this aspect may become important in the context that both witnesses of fact whose ocular deposition has been relied by Court below for convicting appellants, were close relatives of deceased inasmuch as informant is the brother-in-law (brother of wife of deceased) and PW-2, Janeshar is cousin brother-in-law of deceased. Both were well aware of strong family dispute and enmity between deceased and Appellant-2, Nirpal. Therefore, implication of Appellant-2 in the case could have been easier in the backdrop of aforesaid knowledge of enmity and motive could have been easily established. This is what actually believed also by Court below and as a strong factor this has gone against Appellant-2.
47. Basic principle of criminal jurisprudence is that weakness of defence will not justify conviction. Instead prosecution has to prove its case beyond doubt. Therefore, burden to prove the case beyond doubt lie upon prosecution. We can look into defence version only when prosecution discharges its onus of proving its case beyond doubt.
48. Learned AGA contended that Trial Court has believed on independent ocular version of Janeshar (PW-2) but we find that Trial Court was not justified in observing that Janeshar is an independent witness when it is the prosecution's own version that Amar Singh was cousin brother-in-law of Janeshar. In fact PW-2 himself admitted this fact in his cross-examination and stated as under:
^^vej flag esjk ppsjk cguksbZ FkkA** "Amar Singh was my cousin's husband."
(English translation by Court)
49. Deceased sustained a gunshot injury on vital part of body which damaged lungs and caused instant death. Post-mortem report clearly verifing that injury at item no. 1 is the cause of death. Therefore, it cannot be doubted that deceased had died of gunshot injury but had there been only gunshot injury or bruises or abrasions on the body or some minor cut injuries, which may have been caused due to fall of body, it would have resulted in a different situation but here is a case where deceased has large incised wounds not bruises, not abrasions, not lacerated wounds and these wounds include the incised wounds of considerable size. The entire body has no other injury at all. The timing of incident in the backdrop of fact that informant reached Police Station at 4.00 pm but I.O. (PW-3) says that he reached the place of incident at 4.00 pm after completion of recording of FIR which admittedly was reported at 4.30 pm. Non mention of factum of stones, broken glasses, bushes etc. in the inspection note or site plan and other aspects, which we have discussed above, in totality shows that prosecution story from its very inception is not credible. Implication of appellants and to hold them guilty in such a case would cause grave injustice to them since it is difficult to hold that prosecution has proved its case beyond doubt.
50. The judgment of Court below, we find, appears to be more impressed with the story of strong motive of PW-2 and the factum that gunshot injury has caused death. Trial Court unfortunately has neglected/ignored various other aspects and apparent serious contradictions, lapses and gaps in prosecution story. Hence Judgment of conviction of Court below, in our view, cannot be sustained.
51. In the result, appeal is allowed. Judgment dated 31.01.1991 in Session Trial No. 184 of 1989 convicting accused-appellants under Section 302 read with Section 34 IPC and sentencing them to undergo for life imprisonment, is hereby set aside. Appellants are acquitted of the charges levelled against them. Appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.
52. Lower court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
53. Before parting, we find it appropriate to place on record our commendation to learned counsel who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that he shall be paid counsel's fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Pradeep Kumar Mishra, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date :-31.07.2018 AK