Allahabad High Court
Pheru Singh And Others vs State on 7 January, 2019
Bench: Bala Krishna Narayana, Ghandikota Sri Devi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 A. F. R. Case :- CRIMINAL APPEAL No. - 2157 of 1986 Appellant :- Pheru Singh And Others Respondent :- State Counsel for Appellant :- Ravindra Singh Counsel for Respondent :- A.G.A. Hon'ble Bala Krishna Narayana,J.
Hon'ble Ghandikota Sri Devi,J.
(1) Heard learned counsel for the parties.
(2) This appeal has been preferred by the appellants, Pheru Singh A1, Netrapal A2, Hoshiyar Singh A3, Shaitan Singh A4, Vidya Ram A5, Ram Kishan A6, Jangi Singh A7 and Ram Kishan @ Bhoora A8 against the judgment and order dated 11.08.1986 passed by 6th Additional Sessions Judge, Mainpuri in S.T. No. 268 of 1985 convicting and sentencing the appellantss to undergo one year R.I. under Section 148 I.P.C., imprisonment for life under Section 302/149 I.P.C. together with fine of Rs. 1000/- each and in case of default in the payment of fine further R.I. of 6 months, 10 years R.I. under Section 307/149 I.P.C. and R.I. for 6 months under Section 323/149 I.P.C.
(3) Record shows that appellants, Pheru Singh A1, Jangi Singh A7 and Ram Kishan @ Bhoora A8 have died during the pendency of this criminal appeal and qua appellants, Pheru Singh A1, Jangi Singh A7 and Ram Kishan @ Bhoora (deceased A8) this appeal was dismissed as abated by order dated 15.3.2018 passed by another co-ordinate Bench of this Court comprising of Hon'ble Pradeep Kumar Singh Baghel, J. and Hon'ble Harsh Kumar, J.
(4) Briefly stated the facts of this case are that there was fierce enmity between accused Jangi Singh (deceased A7) and P. W. 1 Munshi Lal resident of Village Anoop Najela arising out of pendency of civil litigation between them pertaining to immovable property.
(5) On 14.05.1984 while P. W. 1 Munshi Lal, his nephew, Dalveer Singh and his brother Pyare Lal, Baladeen, Shiv Deo and Nathu Singh all residents of Village Nagla Anoop, P. S. Karhal, District Mainpuri were grazing their cattle on the plot of Chhotey Lal, at about 10:25 A.M. accused Pheru Singh (deceased A1) armed with a 12 bore gun, Shaitan Singh A4, Netrapal A2, Hoshiyar Singh A3, Ram Kishan @ Bhoora (deceased A8) carrying country made pistols with them, Vidya Ram A5, Ram Kishan A6 and Jangi Singh (deceased A7) armed with lathis came from the direction of the house of Jangi Singh (deceased A7) and on the exhortation of Jangi Singh (deceased A7) that no one should be left alive and they should be taught a lesson of litigating with them, Pheru Singh (deceased A1) fired at Dalveer Singh, nephew of P. W. 1 Munshi Lal with the intention of causing his death, Netrapal A2, Hoshiyar Singh A3, Ram Kishan @ Bhoora (deceased A8) and Shaitan Singh A4 also started firing at the informant and his companions with the intention of causing their death. Dalveer Singh, nephew of P. W. 1 Munshi Lal after being shot fell on the ground and died instantaneously while P. W. 1 Munshi Lal, P. W. 3 Baladin and Shiv Deo also received firearm injuries. Since P. W. 3 Baladin had received multiple firearm injuries he was sent to the Government Hospital for treatment. In the occurrence, Vidya Ram A5 and Ram Kishan A6 had attacked them with lathis causing injuries to Nathu Singh while Jangi Singh (deceased A7) stood there with his lathi and kept exhorting the accused to finish everyone. On the noise made by injured, Keshav Singh P. W. 2, nephew of P. W. 1 Munshi Lal and Netrapal Singh A2 son of Hakim Singh resident of Village Nagla Chakan who were relatives of the first informant and who had come to his village along with several other villagers reached the place of occurrence to save them on which accused ran towards the road. Leaving behind the dead body of Dalveer Singh in the field of Chhotey Lal P. W. 1 Munshi Lal came to the police station to lodge the report of the occurrence along with his nephew Keshav Singh P. W. 2 and injuried Shiv Deo.
(6) On the basis of the written report of the occurrence which was scribed by Keshav Singh on the dictation of P. W. 1 Munshi Lal Ext. Ka1 given by P. W. 1 Munshi Lal at P. S. Karhal, District Mainpuri, case crime no. 90 of 1984, under Sections 147, 148, 149, 307 and 302 IPC was registered against the appellants.
(7) Chek F.I.R. Ext. Ka6 and the relevant G.D. entry Ext. Ka7 were prepared by P. W. 5 Constable Chandrapal Singh.
(8) The investigation of the case was taken over by P. W. 7 Sageer Ahmad who at the relevant point of time was posted as S.H.O. Karhal. He proceeded to the place of occurrence and reached there at about 11:35 A.M. and after holding the inquest on the dead body of Dalveer Singh prepared the inquest report in the presence of the witnesses Ext. Ka10 and other documents namely letter addressed to the Inspector Reserve Line, challan of dead body, letter addressed to C.M.O., photo of dead body and sample of seal Ext. Ka11 to Ext. Ka15 and thereafter got the body of deceased Dalveer Singh sealed and dispatched to the District Hospital Mainpuri for conducting post mortem. Autopsy on the dead body of deceased, Dalveer Singh was conducted by P. W. 4 Dr. D. S. Shukla on 15.5.1984 who also prepared his postmortem report Ext. Ka9.
(9) The I.O. also recovered one empty cartridge, bloodstained and plain earth from the place of occurrence and prepared the recovery memos of the aforesaid articles Ext. Ka17 to Ext. Ka18. The injuries received by injured Baladin P. W. 3, P. W. 1 Munshi Lal, Shiv Deo and Nathu Singh were examined in the emergency ward of District Hospital Mainpuri by P. W. 6 Dr. N.C. Gulecha who also prepared their injury reports which have been brought on record and marked as Ext. Ka2 to Ext. Ka5.
(10) On 22nd May, 1984, the I.O. took possession of bloodstained clothes of P. W. 3 Baladin namely one torned bloodstained shimmy, one waistcloth and one dhoti with stains of blood from Keshav Singh and prepared the recovery memo of the clothes of Baladin Ext. Ka8. P. W. 7 Sageer Ahmad after completing the investigation submitted chargesheet against all the accused-appellants Ext. Ka19 before C.J.M. Mainpuri.
(11) Since the offences mentioned in the chargesheet were triable exclusively by the Court of Sessions, C.J.M. Mainpuri committed the case for the trial of the accused to the Court of Sessions Judge, Mainpuri where their case was registered as S.T. No. 268 of 1985 and made over for trial from there to the Court of 6th Additional Sessions Judge Mainpuri who on the basis of the material collected during investigation and after affording opportunity of hearing to the prosecution as well as the accused framed charges against all the accused-appellants for the offences punishable under Sections 148, 307/194 and 302/149 I.P.C. The accused-appellants abjured the charge and claimed trial.
(12) In order to prove the charge, the prosecution examined P. W. 1 informant Munshi Lal (injured), P. W. 2 Keshav Singh, P. W. 3 Baladin (injured) as eye-witnesses of the occurrence, P. W. 4 Dr. D. S. Shukla, P. W. 5 Constable Chandrapal Singh, P. W. 6 Dr. N. C. Gulecha and P. W. 7 Sageer Ahmad, I.O. of the case were produced as formal witnesses. The prosecution also adduced documentary evidence comprising of the written report Ext. Ka1, F.I.R. Ext. Ka6, four injury reports Ext. Ka2 to Ext. Ka5, relevant G.D. entry Ext. Ka7, recovery memos of bloodstained clothes Ext. Ka8, postmortem report of the deceased Ext. Ka9, inquest report along with letter addressed to Inspector Reserve Lines, photogrpah of dead body, sample of seal, challan of the dead body Ext. Ka10 to Ext. Ka15, siteplan of the place of occurrence Ext. Ka16, recovery memos of the two empty cartridges and bloodstained and simple soil recovered from the place of occurrence Ext. Ka17 and Ext. Ka18 and chargesheet Ext. Ka19.
(13) The accused-appellants in their examination under Section 313 Cr.P.C. denied the allegations made against them and stated that the witnesses had given false evidence due to enmity. The accused-appellants also stated that the house of the informant had been attacked by some miscreants during the night hours in which the informant and his other family members were injured and since the identity of the actual miscreants was not known, the accused-appellants were falsely implicated by P. W. 1 Munshi Lal due to previous enmity.
(14) The accused did not examine any witness in defence.
(15) The learned 6th Additional Sessions Judge Mainpuri after considering the submissions advanced before him by the learned counsel for the parties and examining the evidence on record both oral as well as documentary convicted all the accused-appellants and awarded aforesaid sentences to them.
(16) Hence this appeal.
(17) It has been submitted by the learned counsel for the appellants that there being glaring contradictions in the evidence of the three witnesses of fact examined by the prosecution during the trial to prove the charge framed against the accused-appellants with regard to the place and manner of occurrence vis-a-vis the prosecution case as spelt out in the F.I.R., it is established that none of the witnesses had been able to identify the miscreants who had caused injuries to the deceased and the injured witnesses apparently because the incident had taken place sometime in the early hours of the morning in the darkness and no one had witnessed the same, the accused-appellants were falsely implicated in the present case by P. W. 1 Munshi Lal due to previous enmity due to pendency of civil litigation between them. He next submitted that the topography of the place of occurrence as described in the site plan of the occurrence which was prepared at the instance of P. W. 1 Munshi Lal totally belies the manner of occurrence as described by the prosecution. He next submitted that the site plan of the place of occurrence shows irrigation channel dividing the agricultural field of Chhotey Lal where the incident had taken place into two parts which does not find any mention in the F.I.R. and it was wholly impossible for the accused-appellants to cause the injuries received by the deceased and the other injured who had allegedly sustained firearm wounds in the occurrence if the shots were fired by the accused-appellants from the place indicated by letter 'X' at the deceased and the injured who were standing at the spots shown by letters 'F' & 'B' which was in the east of irrigation channel as shown in the site plan as that the deceased and the injured could not be visible to the accused-appellants and vice-versa.
(18) Moreover there being no evidence on record indicating that the accused-appellants who were armed with lathis, had crossed the irrigation channel and wielded lathi blows to Nathu Singh as it was humanly impossible for the accused-appellants who were standing on the western side of the channel to cause lathi injury to Nathu Singh who was standing on the eastern side of the channel. He also submitted that in order to bring the prosecution case as narrated in the F.I.R. in confirmity with the site plan, the witnesses of fact made material improvements in their testimony by falsely deposing that the shots were fired by the accused-appellants at the deceased and the injured after climbing on the bank of irrigation channel. Neither the recitals made in the F.I.R. nor the facts deposed by the witnesses of facts examined during the trial make out the offence under Sections 148, 149/302 and 149/307 I.P.C. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellants nor the conviction awarded to them can be sustained and are liable to be set aside.
(19) Per contra Sri Basharat Ali Khan, learned A.G.A. appearing for the State submitted that it is fully proved from the evidence on record that all the accused-appellants formed an unlawful assembly and reached the place of occurrence where the informant and the injured were grazing their cattle in the field of Chhotey Lal with the common object of causing death of P. W. 1 Munshi Lal (informant) and his companions, armed with firearms and lathis on 14.05.1984 at 10:25 A.M. and on the exhortation of Jangi Singh (deceased A7), Pheru Singh (deceased A1) fired with his gun at Dalveer Singh while the other accused namely Netrapal A2, Hoshiyar Singh A3, Shaitan Singh A4 and Ram Kishan @ Bhoora (deceased A8) also fired from their firearms at the witnesses who were present at the place of occurrence along with the informant. First informant's nephew Dalveer Singh died on the spot as a result of bullet injury received by him, Munshi Lal P. W. 1, Baladin P. W. 3 and Shiv Deo sustained gun shot wounds while Vidya Ram A5 and Ram Kishan A6 inflicted lathi injuries to Nathu Singh. The contradictions if any in the evidence of the prosecution witnessess are not so material so as to render the entire prosecution story untrustworthy or unreliable. The medical evidence on record substantially corroborates the prosecution case with regard to the manner of assault which had taken place in broad day light and there was no chance of the accused-appellants being named as the perpetrators of the crime by the informant and the other eye-witnessses under some mistake. The failure of the first informant to mention the existence of water channel which divided the agricultural field of Chhotey Lal into two parts namely western and eastern part and that the accused-appellants were present on the western side and the informant, his nephew, Dalveer Singh and other persons were sitting in the eastern side is not of such magnitude so as to belie the entire prosecution story. Neither the recorded conviction of the appellants nor the sentences awarded to them suffer from any illegality or legal infirmity requiring any interference by this Court. This appeal lacks merit and is liable to be dismissed.
(20) We have heard the learned counsel for the parties at great length, scrutinized the entire lower court record very carefully.
(21) The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not.
(22) With that view in mind we embark upon an exercise to analyse the evidence on record.
(23) As already noted, apart from adducing documentary evidence, the prosecution in order to prove its case examined as many as 7 witnesses during the trial of whom P. W. 1 Munshi Lal, P. W. 2 Keshav Singh and P. W. 3 Baladin were examined as witnesses of fact. The evidence of the remaining four witnessess namely P. W. 4 Dr. D. S. Shukla, P. W. 5 Constable Chandrapal Singh, P. W. 6 Dr. N. C. Gulecha and P. W. 7 Sageer Ahmad, I.O. of the case is essentially of formal nature.
(24) The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as false. Appellants, Pheru Singh (deceased A1), Hoshiyar Singh A3 further stated that a dacoity had been committed in the village in the intervening night of 13th/14th and the deceased and injured had received injuries in the said dacoity. Appellant, Ram Kishan @ Bhoora (deceased A8) also stated that he had been falsely implicated due to enmity with his father.
(25) Before proceeding to examine the evidentiary value of evidence of the three witnessess of fact, we first proceed to evaluate the evidence of formal witnessess. Constable Chandrapal Singh who had prepared the chek F.I.R. and made entries in the G.D. was examined as P. W. 5. He proved the chek F.I.R. Ext. Ka6 and relevant G.D. entry Ext. Ka7. He also proved the recovery memo of bloodstained clothes Ext. Ka8 which was prepared by Constable Dalchand. The I.O. of the case Sageer Ahmad, S.O. was examined as P. W. 7. He in his evidence tendered before the trial court apart from narrating the various steps taken by him during the course of investigation, proved the inquest report of the deceased and other related documents namely letter addressed to Inspector Reserve Lines, challan of the dead body, letter addressed to C.M.O. and photo lash Ext. Ka10 to Ext. Ka15. He also proved the site plan of the place of incident Ext. Ka16, recovery memo of two empty cartridges found at the place of incident Ext. Ka17, recovery memo of plain and bloodstained soil recovered from the place of incident Ext. Ka18 and chargesheet submitted in the matter Ext. Ka19. Two sealed packets containing bloodstained soil and the simple soil were opened before the court and identified by him and proved as material exhibit 8 to material exhibit 11.
(26) Dr. D. S. Shukla who had examined the injuries of the injured on 14.5.1984 in District Hospital Mainpuri and prepared their injury reports Ext. Ka2 to Ext. Ka5 was produced as P. W. 4.
According to him following injuries were found on the person of Baladin :
(i) Multiple firearm wound of entrance all over and front medial aspect and some on back left upper arm, sore arm hand in an area of 45 cm x 15 cm. Marging of wound lacerated echymmised enverted, no tatttooing, no scorching and no blackening was present. Average size of wound was 0.3 cm x 0.3 cm x depth tort (not probed) tramatied swelling 15 cm x 16 cm. on left upper arm tendere trematied 10 cm x 8 cm on left forearm. Advised X-ray. Bleeding was present.
(ii) Multiple firearm wound of entrance (all in number) on left side chest in the area of 15 cm x 12 cm., average size 0.3 cm x 0.3 cm x depth tort (not probed) margins of wound irregular echymised and enverted. No tattooing, no scorching and no blackening present. Advised X-ray.
In his opinion, the injuries were caused by firearm were fresh.
He noted following injuries on the person of P. W. 1 Munshi Lal :
(i) two firearm wound of entrance on front nof right leg 18 cm, below knee joint 3.5 cm. Apart from each other average size 0.3 cm x 0.3 cm x depth tort (not probed). Margins lacerated, enverted ecchymmised, blood present. No tatttooing, no blackeningand no scorching present.
According to him the injury of P. W. 1 Munshi Lal is about half day old. Advised X-ray and kept under observation.
(27) The following injuries were noted by him on the person of Shiv Deo :
(i) firearm wound entrance 0.3 cm x 0.3 cm x depth tort on back of left thigh 10 cm above knee joint.
(ii) firearm wound 0.3 cm x 0.3 cm x depth tort on outer aspect of upper right thigh.
(iii) firearm wound of entrance 0.3 cm x 0.3 cm x depth tort front of left forearm above the wrist joint.
He further deposed that no blackening or tattooing was present and his injuries were half day old, lacerated everted and ecchymmised blood was present on the person of Nathu Singh. He found following injury and his injury was also about half day old and were simple in nature and caused by hard and blunt object.
(i) Skin abrasion with scab 1 cm x 0.5 cm back of left forearm 7 cm below the elbow joint. Swelling was in the area of 10 cm x 8 cm.
(28) In his cross-examination P. W. 4 Dr. D. S. Shukla deposed that the injuries noted by him on the person of the injured could have been caused on 14.5.1984 at 10:25 A.M. and except the injury received by Nathu Singh all the injuries were caused by firearm.
(29) Dr. N. C. Gulachi who had conducted postmortem on the body of deceased Dalveer Singh on 15.5.1984 and prepared his postmortem report Ext. Ka9 was produced by the prosecution as P. W. 6. He found following ante-mortem injuries on the body of Dalveer Singh :
(i) firearm wound of entrance three in number on chin average size 0.2 cm x 0.2 cm x skin deep in the area of 3 cm x 3 cm., 2 cm below the lower lip.
(ii) multiple firearm wound of entrance in an area of 30 cm x 18 cm on the right side chest from top of shoulder to 3 cm below the nipple. Average size 0.2 cm x 0.2 cm x cavity deep.
(iii) multiple firearm wound of entrance in an area of 16 cm x 27 cm on the left side of chest from 3 cm below claride to 2 cm below nipple. Average size 0.2 cm x 0.2 cm x cavity deep. Margins of all injuries were everted, lacerated and no blackening, tatttooing or scorching was present.
He also opined that the incident could have taken place on 14.5.1984 at about 10:25 A.M. with a variation of six hours on either side. He identified the pellets recovered from the dead body of Dalveer Singh which were marked as material exhibit 7 and acccording to him Dalveer Singh had died due to ante-mortem firearm injuries.
(30) Thus, from the medical evidence on record, it is fully established that in the occurrence three persons Baladin, Munshi Lal and Shiv Deo had sustained firearm wounds while Nathu Singh had received lathi injuries caused by hard and blunt object. It is also proved from the evidence on record that Dalveer Singh had died as a result of the firearm wounds found on his body which he had received in the occurrence.
(31) Now it has to be seen that whether from the evidence of the three eye-witnessess of the occurrence, is it proved that the appellants were the authors of the injuries found on Dalveer Singh's dead body and those sustained by the injured Munshi Lal, Baladin and Sheo Deo who had received injuries in the occurrence ?
(32) Before proceeding to analyze the testimony of the three witnesses of fact who were examined by the prosecution to prove the guilt of the appellants, it would be worthwhile to make a mention about the topography of the situs of the crime which was prepared by P. W. 7 Sageer Ahmad, the I.O. of the case at the instance of the first informant. P. W. 1 Munshi Lal, Sukh Deo and Kishan Singh as deposed by him in the third paragraph of his examination-in-chief on pages 52 & 53 of the paper book. Ext. Ka16 is the site plan prepared by the I.O. No inaccuracy has been pointed out in the site plan. It is accepted by all that the site plan gives a correct picture of the places of offence. The point from where the appellant, Pheru Singh (deceased A1) had fired at the deceased and the injured, the place under the acacia tree under which the deceased and the injured were standing at the time of the firing keeping vigil on their grazing cattle, the place where Vidyaram A5 and Ram Kishan A6 had wielded lathi blows to Nathu Singh, the existence of an irrigation channel running north to south dividing the field of Chhotey Lal into two parts, the eastern part and the western part with embankments on both the sides and the places where the deceased, Dalveer Singh and injured, Baladin had fallen after receiving gunshots have been depicted in the site plan.
(33) The place from where the accused-appellants had allegedly fired at the informant and his companions is depicted by letter 'X' which is in the western portion of Chhotey Lal's field. The places where injured, Baladin and deceased, Dalveer Singh had fallen after being hit by gunshots have been shown by letters 'A' and 'B' in the eastern portion of the field of Chhotey Lal. The distance between the points 'XA' and 'XB' is stated to be 35 paces. The place under the acacia tree in the eastern portion of Chhotey Lal's field where the informant, injured and deceased were standing, is depicted by letter 'F'. The place where the cattle were grazing has been described by letter 'G' and the the place where injured, Nathu Singh was allegedly wielded lathi blows by Vidyaram A5 and Ram Kishan A6 on the exhortation of Jangi Singh (deceased A7) is depicted by letter 'Z'.
(34) The distance between points 'A' and 'B' is shown to be 45 paces. Jangi Singh (deceased A7) had exhorted from the place shown by letter 'E' in the western portion of Chhotey Lal's plot.
(35) We now embark upon an exercise to ascertain the veracity of the prosecution case and the evidence of the witnesses of fact produced during the trial in the background of the topography of the place of occurrence as depicted in Ext. Ka16.
(36) P. W. 1 informant Munshi Lal deposed on oath that on the date of occurrence, he along with Dalveer Singh, Nathu Singh, Baladin, Shiv Deo and Pyare Lal were grazing their cattle in the field of Chhotey Lal. Accused-appellant Pheru Singh (deceased A1) armed with a gun, Netrapal A2, Hoshiyar Singh A3, Ram Kishan @ Bhoora (deceased A8) and Shaitan Singh A4 armed with country made pistols, Vidya Ram A5, Ram Kishan A6 and Jangi Singh (deceased A7) armed with lathis came to the place where informant and his companions were standing. Jangi Singh (deceased A7) abused the informant and his companions and exhorted the other accused-appellants to attack and kill all the persons present there on which Pheru Singh (deceased A1) fired from his gun at Dalveer Singh who died on the spot as a result of the gunshot wound so sustained by him while the other accused-appellants who were armed with country made pistols fired with their weapons at the informant P. W. 1 Munshi Lal causing injuries to him, Baladin and Shiv Deo. Vidya Ram A5 and Ram Kishan A6 attacked Nathu Singh with lathis and inflicted injuries on him and upon hue and cry raised by them, some villagers came to the place of occurrence and saved the informant and his other companions. The accused-appellants ran away. Thereafter F.I.R. of the incident was scribed by P. W. 2 Keshav Singh on his dictation. He then went to the police station and gave a written report. He proved the written report of the occurrence as Ext. Ka1. He further proved that Dalveer Singh had died on the spot while four persons had sustained injuries.
(37) Baladin, another eye-witness of the occurrence who had also received injuries was examined as P. W. 3. He in his evidence tendered before the trial court corroborated the evidence of P. W. 1. and further deposed that the author of the firearm injuries received by him was Ram Kishan @ Bhoora (deceased A8). As far as P. W. 2 Keshav Singh is concerned, who had scribed the written report of the occurrence Ext. Ka1 stated on oath before the trial court that while he was going somewhere from his house he heard sounds of gunshots on which he reached the place of occurrence and saw the incident. However, he also deposed that when he reached the crime scene he found Dalveer Singh had died and Netrapal A2, Hoshiyar Singh A3, Ram Kishan @ Bhoora (deceased A8) and Shaitan Singh A4 were firing from their country made pistols while Vidya Ram A5 and Ram Kishan A6 were beating Nathu Singh with their "lathis" and Jangi Singh (deceased A7) who was also armed with lathi was exhorting the other accused-appellants to attack. He also stated that the incident was a result of pendency of civil litigation between Jangi Singh (deceased A7) and his father. However, upon perusal of the statement of P. W. 2 Keshav Singh, it appears that he had arrived at the crime scene after the incident and had not witnessed the same otherwise he would have seen Pheru Singh (deceased A1) firing at Dalveer Singh and since the assault was simultaneous and P. W. 2 Keshav Singh had reached the place of occurrence after Dalveer Singh was shot dead, it was not possible for him to have caused lathi injuries to injured, Nathu Singh.
(38) Upon a very careful perusal of the recitals contained in the written report Ext. Ka1 of this case which was scribed on the dictation of P. W. 1 Munshi Lal who claims himself not only to be an eye-witness of the occurrence but also an injured witness who had allegedly received gunshot injury in the occurrence, we are constrained to observe that the incident could not have taken place in the manner as spelt out in the F.I.R. and later deposed by P. W. 1 Munshi Lal, P. W. 2 Keshav Singh and P. W. 3 Baladin. A circumstance which puts a big question mark against the reliability and trustworthiness of the three witnesses of fact is the discrepancy with regard to the place of occurrence as described in the written report Ext. Ka1 of the incident by the prosecution witnesses of fact vis-a-vis the site plan of the place of occurrence. The prosecution has failed to come up with any explanation for the failure of informant P. W. 1 Munshi Lal to state in the written report Ext. Ka1 that the plot of Chhotey Lal in which the occurrence had taken place was divided by an irrigation channel into two parts with embankments on each side and that the accused-appellants had either crossed the irrigation channel and shot them or they had shot at them after climbing up on the embankment of the irrigation channel.
(39) According to the site plan, the place from where the accused-appellants had allegedly fired at the injured and the deceased, which has been shown by letter 'X' in the site plan and the place where injured, Baladin and deceased, Dalveer Singh had received gunshot injuries which has been denoted by letters 'A' and 'B' are below the embankments of the channel and the distane between 'X' and 'B' is shown to be 35 paces which comes to at least 100 yards. The embankments of an irrigation channel are normally elevated and if the accused-appellants had fired from the point 'X' at the deceased and injured who were standing at points 'A' and 'B', it was neither possible for the accused-appellants to see the injured and the deceased and for the injured witnesses to see the accused-appellants and identify them as the perpetrators of the crime and even if any gunshot were fired by the accused-appellants from the point 'X', the same could not have hit the deceased or the injured.
(40) Similarly it was not possible for Vidyaram A5 and Ram Kishan A6 who were wielding lathis to have caused lathi injuries to Nathu Singh at point 'D' in the site plan without crossing the irrigation channel and strangely none of the witnesses except P. W. 3 Baladin had deposed that Vidyaram A5 and Ram Kishan A6 had crossed the irrigation channel and then attacked Nathu Singh with lathis.
(41) It is true that P. W. 3 Baladin, the injured witness, in his examination-in-chief deposed that Vidyaram A5 and Ram Kishan A6 had wielded lathi blows to him after coming to the eastern part of the plot and the accused-appellants who were carrying firearms had fired after climbing on the embankments of the channel, however, when he was contradicted by his statement recorded under Section 161 Cr.P.C. by the I.O. in which the aforesaid facts deposed by him for the first time before the Court were conspicuous by their absence, he stated that he was not aware why the I.O. had failed to mention the aforesaid fact in his statement under Section 161 Cr.P.C. When the aforesaid part of the statement of P. W. 3 Baladin was shown to P. W. 7 Sageer Ahmad, the I.O. of the case by the defence counsel during his cross examination, he on page 56 of the paper book in the 12th paragraph stated as here under :
ckyknhu xokg us eq>s ;g c;ku ugha fn;k Fkk fd ^^jke fd'ku vkSj fo}kjke us cEck ds iwoZ rjQ vkdj ykfB;ksa ls ekjihV dh FkhA eq>s bl xokg us ;g Hkh ugha crk;k Fkk fd tc eSa vkSj nyohj cEck dh iwohZ iVjh ij [kM+s Fks rc eqfYteku us cEck dh ifPNeh iVjh ij [kM+s gksdj xksfy;ksa pykbZ Fkh vkSj ?kk;y fd;k FkkA** (42) Thus, from the reading of the aforesaid extract of the cross-examination of P. W. 7 Sageer Ahmad, the I.O. of the case, it is proved that P. W. 3 Baladin made material improvements in his testimony in an attempt to reconcile the prosecution case with the site plan of the place of occurrence by deposing before the court for the first time that A1 Pheru Singh who were carrying firearms had fired after climbing up on the embankments (patri) of the irrigation channel while Vidyaram A5 and Ram Kishan A6 had wielded lathi blows to Nathu Singh on the eastern portion of the plot of Chhotey Lal.
(43) Although it has been argued by the learned A.G.A. that the testimony of the two witnesses, P. W. 1 Munshi Lal and P. W. 3 Baladin who had received injuries in the occurrence enjoys greater credibility and there is no reason why they would state incorrect facts and falsely implicate anyone and no fault can be found with the conviction of the appellants recorded by the trial court by relying upon their testimony, the argument of the learned A.G.A. has been countered by the learned counsel for the appellants by arguing that in the facts and circumstances of the present case and the irreconciliable discrepancy between the prosecution case vis-a-vis the topography of the crime scene which not only wholly belies the prosecution version of the occurrence but also considering the topography of the place of occurrence and the places shown in the site plan from where the accused-appellants had allegedly fired at the deceased and the injured, it was neither possible for the shots fired by the accused-appellants to hit the deceased and the injured nor it was possible for the witnesses to see and identify their assailants. For the same reason, Vidyaram A5 and Ram Kishan A6 could not have caused lathi injuries to Nathu Singh.
(44) The law is settled about the value of the testimony of the injured witness. The Hon'ble Apex Court in the case of Mano Dutt and another v. State of U.P. 2012 (77) ACC 209 (SC) in paragraph 23 has recently observed as follows :
23. In our view, non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language.
(45) It is true that normally an injured witness would enjoy greater credibility but there is no absolute rule that an injured witness always speaks truth. Enmity between P. W. 1 Munshi Lal and other family members and Jangi Singh (deceased A7) due to pendency of civil litigation between them is admitted and in view of the above, the possibility of false implication of the accused-appellants in the present case at the behest of P. W. 1 Munshi Lal after the deceased and injured had received gunshot injuries in the dacoity committed in the house of informant in the preceding night as pleaded by the defence, cannot be ruled out.
(46) The evidence of the two eye-witnesses, P. W. 1 Munshi Lal and P. W. 3 Baladin, both of whom claim to have received injuries in the occurrence does not inspire any confidence for another reason. Both the aforesaid witnesses have consistently deposed that Pheru Singh (deceased A1) had shot at deceased, Dalveer Singh only once. However, the postmortem report of deceased, Dalveer Singh indicates three ante-mortem wounds of entry which totally negates their claim of being the eye-witnesses of the occurrence.
(47) Further no explanation is coming forth from the prosecution side as to why no independent witness was examined to corroborate the testimony of the three witnesses of fact produced by the prosecution during the trial who are close relatives of the deceased and whose evidence we have already found to be untrustworthy and unreliable. Although in the F.I.R. as well as in the statements of the witnesses it has come that large number of villagers had also witnessed the occurrence.
(48) Moreover, apart from the oral evidence on record which does not inspire much confidence, there is no clinching evidence on record showing that any blood of the deceased or the injured was found at the place of occurrences 'A' and 'B'. It is true that bloodstained and plain earth was recovered by the I.O. from the so called places of occurrence and he had prepared recovery memo Ext. Ka18 but there is no evidence on record to prove that either the blood which was collected by the I.O. from the place of occurrence was that of injured Baladin or deceased Dalveer Singh or even human blood. Weapons allegedly used in the occurrence were also not recovered.
(49) Thus, upon a wholesome consideration of the facts and circumstances of the case and a threadbare appraisal and analysis of the evidence on record. We have no hesitation in holding that the prosecution has failed to prove beyond all reasonable doubts that the incident had taken place at the place and manner as spelt out in the F.I.R. The prosecution has further failed to prove that the accused-appellants were the actual perpetrators of the crime.
(50) The appeal accordingly succeeds and is allowed.
(51) Appellants, Pheru Singh A1, Jangi Singh A7 and Ram Kishan @ Bhoora A8 have died during the pendency of this appeal and qua appellants, Pheru Singh A1, Jangi Singh A7 and Ram Kishan @ Bhoora A8 this appeal has already been dismissed as abated as noted hereinabove.
(52) The surviving appellants Netrapal A2, Hoshiyar Singh A3, Shaitan Singh A4, Vidyaram A5 and Ram Kishan A6 are acquitted of all the charges. They are on bail. They need not surrender. Their bail bonds are cancelled and their sureties are discharged. They shall however comply with the requirements of mandatory provisions of Section 437 A Cr.P.C. within one month.
Order Date :- 7.1.2019 SA