Janaki Prasad & Others vs State Of U.P. on 13 May, 2016

[Cites 7, Cited by 2]

Allahabad High Court

Janaki Prasad & Others vs State Of U.P. on 13 May, 2016

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) We have heard at length Sri S.V. Singh, learned counsel for the appellant Janaki Prasad, Sri Dilip Kumar, Sri Rajarshi Gupta, learned counsels for the appellants Shivnath and Lallu Yadav, Sri Vinod Kumar Singh, learned counsel for appellant Harnath, and Km. Meena and Sri A.N. Mulla, learned AGAs appearing for the State and perused the record.

The instant criminal appeal has been preferred against the judgment and order of conviction dated 16.01.2006 passed by the Special Judge (SC/ST Act), Kannauj in Special Session Trial No. 345 of 2000 (State Vs. Janaki Prasad and others), under Section 302 IPC and under Section 3(2) (V) SC/ST Act arising out of Case Crime No. 13 of 2000, Police Station Thathiya, District Kannauj. By the impugned order of the trial court, appellant Janaki Prasad has been convicted under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 10,000/-, in case of default, he will have to suffer additional imprisonment (simple imprisonment) for six months. Appellant Harnath, Shivnath and Lallu Yadav have been convicted and sentenced to life imprisonment under Section 302 read with Section 34 IPC with a fine of Rs.5,000/- each and in case of default the concerned convict will have to suffer additional four months' simple imprisonment. Further, they have been convicted and sentenced to life imprisonment with a fine of Rs.5,000/- each under Section 3(2) (V) of ST/SC Act and in case of default the concerned convict will have to suffer additional simple imprisonment for four months.

Gravamen of the charge has its genesis in the first information report (Exhibit Ka-1) which was lodged at Police Station Thathiya, District Kannauj on 22.01.2000 at 10.05 p.m. by Smt. Gendawati wife of late Ram Sahai Jatav resident of Harauli, P.S. Thathiya, District Kannauj against the aforesaid appellants under Section 302 IPC and 3(2) (V) SC/ST Act with averments that the complainant was sleeping in her house on 22.01.2000 along with her son Mahadev and grand daughter Rajbeti after taking night meal. It was around 8.15 p.m. when they heard some noise and came out of the house where they saw the aforesaid appellants, in front of them, possessing country made pistol. The appellant Janaki Prasad said to complainant's son 'you have lodged report against me, therefore, we will not spare you'. At this, complainant's son ran away from his house, he was chased by the appellants. As soon as the complainant's son (Mahadev) reached in front of house of Jairam, appellant Janaki Prasad fired on him with his country made pistol which fire hit him on his chest, due to which his son fell down and expired.

The other miscreants fired in the air. In the meanwhile, the complainant and her grand daughter raised alarm whereupon Naresh son of Baldev, Sarvesh son of Kali Charan and various other villagers arrived on the spot. They challenged the accused whereupon the accused persons made their escape good towards fields. While the appellants were in the process of fleeing away, one photograph of accused Janaki Prasad was found lying on the spot. The incident terrorized the inhabitants of the area. They closed their doors and closed themselves inside their houses. It was requested that report be lodged and proper action be taken. This written report is exhibit Ka-1. Contents of the aforesaid written report were taken down in the check FIR registered at Crime no. 13 of 2000 under Section 302 IPC and Section 3(2) (V) SC/ST Act at P.S. Thathiya, district Kannauj which check FIR is Exhibit Ka-9 on record. Record reflects that constable Shri Chand Verma (PW-6) entered relevant note at serial no.44 in the concerned General Diary at 22.05 hours on 22.01.2000 and registered the case against the appellants, which GD is Exhibit Ka-10 on record.

Thereafter, investigation of the case followed and inquest report of deceased Mahadev was prepared by the Investigating Officer, Ramesh Chand Tiwari PW-3 on 23.01.2000. The preparation of inquest report commenced at 7:15 am and the same was completed at 8.30 am. In the opinion of Panchan/ witnesses of inquest, it was thought proper to send the body for post mortem examination for ascertaining real cause of death. This inquest report is Exhibit Ka-2 on record. Thereafter, Sri Ramesh Chand Tiwari, Investigation Officer also prepared relevant papers for sending the dead body for post mortem examination. These relevant papers are police form-13, challan of dead body Exhibit Ka-3, Photonash Exhibit Ka-4 and Letter to C.M.O. Fatehgarh for facilitating post mortem examination Exhibit Ka-5. Thereafter, post mortem examination on the dead body of the deceased was conducted by Dr. B.G. Tiwari on 24.01.2000 at 2.15 pm at mortuary / district Hospital, Fatehgarh wherein the age of the deceased was stated to be 40 years and three ante-mortem injuries were noted which are being referred as hereinunder:

i. Multiple pellet wounds of entry (fire arm) in an area 30 cm x 24 cm front of chest both sides measuring 0.5 x 0.3 cm to 0.3 x 0.2 cm muscle and cavity deep, margins inverted and lacerated ecchymosed. On dissection, 3rd, 4th and 5th ribs fractured from right side along sternum fractured, both pleura lung pericardium heart lacerated. Cavity full of blood.

ii. Abraded contusion 4.5 cm x 3 cm over right cheek.

iii. Contusion 6 x 3 cm on posterior medial aspect right arm upper 1/3rd.

In the opinion of doctor, the cause of death was due to shock and haemorrhage and duration of death was stated to be 1 & ½ days (old). This post mortem examination report is Exhibit Ka-8 on record.

Thereafter, another Investigating Officer, Surendra Pratap Singh (PW-4) is stated to have taken over the investigation the very same day i.e. on 22.01.2000. He recorded statements of various witnesses, prepared site plan and proved the same as Exhibit Ka-6 and he has also filed charge sheet against the appellant as Exhibit Ka-7.

Thereafter case of the appellants was committed to the court of Session from where it was made over to the concerned Trial Court, where it was numbered as Special Session Trial No. 345 of 2000 (State Vs. Janaki Prasad and others).

The case was opened by the prosecution by stating the charge brought against the accused and also the evidence by which the prosecution proposed to prove the guilt. Appellants were also heard on the point of charge and prima-facie ground was found existing for framing charge under Sections 302, 302/34 IPC and Section 3(2)(V) SC/ST Act against the appellants. The charges were read over and explained to the accused appellants, who denied the charges and opted for trial.

In turn, the prosecution was asked to adduce its testimony in order to prove charges, whereupon the prosecution got examined as many as six witnesses. A brief reference of the same is being sketched herein below:

Smt. Vindawati (Gendawati) is PW-1. [Noteworthy to mention that actual name of this witness is Gendawati wife of late Ram Sahai Jatav, whereas, she has clarified the position before the trial court at later stage during the course of her cross-examination that her name was wrongly spelled as Smt. Vindawati earlier when she for the first time deposed before the trial court. She has claimed that her real name is Gendawati. Therefore, her name shall be taken to be Gendawati PW-1 wife of Ram Sahai Jatav, as and when the context so requires]. She has proved the fact of lodging of the FIR and has claimed to be an eye witness of the incident. Rajbeti wife of Amar Singh, daughter of Mahadev, is PW-2. She is stated to be an eye witness of the incident and she appears to have supported initially the prosecution version. However, in her cross examination, she has claimed that she did not witness any incident but she reached on the spot only on the next morning and saw her father (Mahadev) lying dead. It is noteworthy that prosecution has not claimed this witness to be hostile (witness).

Ramesh Chand Tiwari is PW-3. He has prepared the inquest report and the relevant papers for sending the dead body of Mahadev for post mortem examination. Surendra Pratap Singh is PW-4. He is the second / subsequent Investigating Officer who also took over investigation on 22.01.2000 and completed rest of the investigation by recording statements of witnesses, preparing site plan and filing the charge sheet. Virendra Kumar Verma, Pharmacist is PW-5. He has brought with him the register kept for purpose of entering post mortem examination reports wherein, he has verified signature of Dr. B.G. Tiwari who in fact conducted post mortem examination on 24.01.2000 on the dead body of the deceased Mahadev. It is obvious from his testimony that Dr. B.G. Tiwari has since expired, therefore, he appeared before the trial court to prove his signature on the post mortem report. Constable Shri Chand Verma is PW-6. He has proved the relevant entries made in the check FIR and the concerned GD and has proved the same as Exhibit Ka-9 and Ka-10, respectively.

Thereafter, evidence for the prosecution was closed and the statement of accused persons was recorded under Section 313 Cr.P.C. wherein they have claimed that they have been falsely implicated on account of enmity. The defence did not lead any evidence, whatsoever - ocular or documentary, therefore, the matter was posted for advancing arguments by the trial court. The trial court after hearing both the sides and after appraisal of evidence and after considering merit of the case passed aforesaid order of conviction dated 16.01.2000 and thereby imposed aforesaid sentence against the appellants which gave rise to this appeal.

It has been vehemently urged by Sri S.V. Singh learned counsel for appellant Janaki Prasad that the entire incident took place in the darkness of night and the very motive for committing the offence is weak and unfounded one. The entire prosecution story commenced with alleged exhortation of Janaki Prasad that Mahadev (deceased) had lodged report against Janaki Prasad, whereas, no such report regarding any criminal case has been brought on record and if there was any such report then the same ought to have been brought on record and proved by the prosecution. The very description and manner of incident as narrated by the so called prosecution witnesses does not support and fix in the circumstances instead it creates doubt in the prosecution version. It is stated that the three accomplices of Janaki Prasad fired in the air but no such cartridge was either collected or produced before the trial court by the Investigating Officer. Only pellets injuries have been found on the body of the deceased. Rajbeti PW-2 propounds theory of two shots being fired on the spot, whereas, Gendawati PW-1 makes different version regarding the shot fired on the deceased. She is not specific as to how the fire was shot. More so, testimony of Rajbeti PW-2 proves that the FIR is ante-timed, because she states that the same was lodged after inquest report was prepared. The place of occurrence is doubtful. Even, post mortem report has not been duly proved.

On behalf of appellants, Shivnath and Lallu Yadav, it has been vehemently contended by Sri Dilip Kumar, learned counsel that the entire prosecution story is woefully silent about the actual occurrence and the very manner of the incident appearing in testimony of eye witnesses, on the face of it, is not natural. Appreciation of circumstances abundantly prove that the FIR is ante-timed, nobody has seen the incidence and there is no source of light and the prosecution witnesses of fact are interested witnesses. There is no corroborative evidence and there is no support to the claim of the prosecution that the deceased ever lodged any FIR against Janki Prasad. Thus the very foundation and cause of assault - the motivating instinct has not been proved. The site plan is explanatory of fact that the incident cannot be witnessed from the house of Mahadeo. Place 'G' marked in the site plan is not visible from the house of Mahadev. Investigating Officer has concealed relevant and material facts. Record confirms that the Investigating Officer has not detailed the entire investigation so as to give natural colour to the incident but he appears to have been acting in most perfunctory manner hiding truth qua the circumstances and the evidence of the case.

The version of two eye-witnesses PW-1 and PW-2 respectively, is diametrically opposed and contradictory to each other and in case, either of the two testimonies is taken to be correct one then, testimony of the other witness is negatived and contradicted in material particulars and becomes wholly unreliable. Rajbeti - PW-2 - has gone to the extent that she did not witness any incident. Consequently, the court is concerned with reliable truthful version only and the court cannot hang on two parallel and contradictory versions of the incident as given by the witnesses of fact. If entirety of the facts, circumstances and evidence is taken, as a whole, then the narration of the prosecution version does not look natural, but renders entire case most dubious and unreliable. The FIR was lodged only after inquest report was prepared.

The scribe of first information Ashok has been deliberately dragged-in, in the picture. Ashok was scribe of the report but he was not produced as an eyewitness. Learned counsel summed up that Shivnath and Lallu Yadav have no motive to commit the crime because they are by caste 'thakur' and they do not belong to the caste of Janaki Prasad-the another co-accused-and the deceased Mahadev. The learned counsel has gone to the extent that there may be some interaction and interest between accused Janaki Prasad and the deceased because they being members of scheduled caste community, but appellant Shivnath, Lallu Yadav and Harnath may not be assigned any such interest or motive for committing such crime.

Sri Vinod Kumar Singh, learned counsel appearing for the appellant Harnath virtually adopted above arguments extended by both the learned counsels for other appellants and added that the appellant Harnath has nothing to do with the present crime and he claims that his another brother namely Harnam was in fact named in the FIR but he has been wrongly arrested by the police and his name is Harnath, therefore, the prosecution has no case against appellant (Harnath). He also assailed the judgment of the trial court on the ground that the learned trial Judge failed to appreciate the evidence and circumstances of the case properly, while recording conviction in this case.

Kumari Meena and Sri A.N. Mulla, learned AGAs have supported the impugned judgment and order of conviction dated 16.1.2006 and have submitted that two prosecution witnesses have innocuously supported the prosecution version and they have stated categorically to have seen the incident. It has been proved by Shri Chand Verma PW-6 that the FIR was lodged at the time when it was presented by Smt. Gendawati and the relevant entries of the same were made in the Check FIR and the relevant G.D. at report No.44 on 22.1.2006 at 22.05 hours and he has proved the same as Exhibit Ka-9 and Ka-10, respectively. Therefore, claim of defence that the FIR is ante-timed stands dispelled. Whatever contradictions appeared in the testimony of eyewitnesses of fact regarding happening of the incident are minor contradictions and the same do not hit at the root of the prosecution case. Motive for committing the crime has been proved and in the face of eye account testimony, motive does not assume much importance. The place of occurrence has been very much proved by the Investigating Officer and the prosecution witnesses and the site plan Exhibit Ka-6 also substantiates the place of occurrence. There was no motive for false implication. The finding of the trial Judge is based on proper appreciation of facts and circumstances of the case and the charge has been consistently proved beyond reasonable doubt against the appellants.

We have considered the rival submissions.

After considering the submission so made on behalf of both the sides and after going through the FIR and the charge framed against the appellants, the moot point that arises for consideration of this appeal relates to fact as to whether the prosecution has been able to establish its case successfully against the appellants and the eyewitnesses of fact particularly Gendawati and Rajbeti PW-1 and PW-2, respectively have given consistent version of the incident and have proved the same beyond reasonable doubt and conviction of the appellant can be upheld on their testimony vis-a-vis the attendant circumstances of the case?

Before we enter into appraisal of other facts, it would be proper and convenient to have a dip into testimony of the two eyewitnesses produced on behalf of the prosecution in support of the incident. The scrutiny of testimony of Gendawati PW-1 reflects that she has narrated the very inception and commencement of the incident around 8.00 pm when she was lying on her cot along with her son and grand daughter Rambeti inside her house while Janaki Prasad, Harnam, Lallu Yadav and Shivnath possessing country made pistol in their hands knocked at the door then Mahadev came out of the house, this witness also followed him, she saw their face in the illuminated light of lantern. The appellant Janaki Prasad said to Mahadev (deceased) that Mahadev had lodged report against him therefore, he (Mahadev) will be killed. The moment it was stated, Mahadev ran away from the spot. He was chased by the appellants. When he reached in front of the house of Jairam, Janaki Prasad fired on him and the other appellants exhorted him. The incident was witnessed by Rajbeti and Ashok apart from this witness.

After the incident of shooting was caused by Janaki Prasad, the three other co-assailants opened fire in the air and made their escape good towards fields, out of village. Smt. Gendawati PW-1 has testified that her son (Mahadev) did not vote for Janaki Prasad, therefore, he was killed. Prior to this incident, the miscreants had also abused her daughter-in-law and a case was registered regarding the same. Report of this incident was written by one Ashok on the dictation of this witness (PW-1 Smt.Gendawati). Thereafter, she affixed thumb impression on the report after the contents were read over to her. Thereafter, she went to the police station Thathiya and lodged the report. Rajbeti PW-2 has virtually supported the prosecution case in her examination in chief but she has come out with version that two shots were fired on the spot by Janaki Prasad. Strangely enough she has also stated (in examination in chief) that the incident was witnessed by her alone and none else.

Now we may scrutinize the cross examination of both the eye witnesses PW-1 and PW-2. In the very examination in chief of Smt. Gendawati PW-1, it has been stated that the incident was witnessed by Rajbeti PW-2 and Ashok apart from herself and in the examination in chief of Rajbeti PW-2, she claims that she alone saw the incident and none else. This is material contradiction on the point of presence of both the witnesses at the time of occurrence on the spot, because, in case, the version of Gendawati PW-1 in respect of witnessing the incident is taken to be correct one then the version of incident as witnessed by PW-2 becomes wholly unreliable. In case the version of PW-2 regarding her claim that she alone saw the incident and none else is taken to be correct one, then the version of Gendawati PW-1 that the incident was witnesses by Rajbeti, Ashok and herself stands negated.

Most surprising feature of the case is that the prosecution did not get declared Rajbeti - PW-2 hostile and did not cross examine her on this relevant and crucial aspect. Therefore, before we analyze various circumstances of the case, we would have to keep in mind this varying description/ claim regarding fact of witnessing the incident by the above two witnesses.

The very cross examination of Smt. Gendawati PW-1 reflects that she is trying to improve her version. She claims that she went to the police station along with Ashok, the scribe of the FIR and she was not accompanied by Ram Autar, Raja Ram, Mewa Ram and Amar Singh. As per her own version, she reached at the police station around 9.00 pm and she came back from police station to village around 10.00 pm and police personnel also accompanied her. On her return to village, Daroga Ji had prepared the inquest report and obtained her thumb impression on the inquest report; but the inquest report Exhibit Ka-2 neither bears such thumb impression nor does it establish that PW-1 was ever appointed any 'Panchan' in the inquest report. Inquest report was admittedly prepared in the morning of 23.01.2000 and not in the night of 22.01.2000.

It is obvious that as per the claim of prosecution, the FIR was lodged at P.S. Thathiya at 22.05 hours on 22.01.2000 but this witness (PW-1) claims to have returned to the village around 10.00 pm which fact is fair enough to lead us to conclude that either the witness is tutored one or she is deliberately concealing the truth and in either situation, it is obvious that her testimony is sketchy and aimed at improving the story at will and as such not reliable until corroborated from independent testimony, circumstances and the testimony of another eye witness-i.e.-PW-2. She has admitted that the scribe of FIR is her son in law ('Damad') but he has not been produced as witness. If he was an eye witness of the occurrence, he could have been produced in court and he would have corroborated PW-1 in material particulars. This witness (PW-1) has testified in her cross examination that Ashok witnessed the incident, if name of Ashok has not been described in the FIR then she cannot assign any plausible reason for the same. She further says that Daroga Ji recorded her statement only on the next morning. Here under the circumstance factual testimony forthcoming establishes that the police arrived at the spot after the lodging of the FIR but how and why the statement of complainant, who happened to be mother of the deceased, was not recorded on the spot by the police/ Investigating Officer when both were present at the police station at the relevant time, but the same was adjourned to be recorded on the next morning. The reasonable explanation to unfold such anomaly has not been given by the prosecution.

It has been suggested by the defence that in fact the deceased was killed by some unknown persons in the night but the appellants have been implicated on account of enmity. This witness has further stated that Mahadev (deceased) was never tried for any case. But in the very cross-examination, she has accepted this fact while she states that Janaki Prasad had lodged first information report under Section 307 IPC in the year 1997 against deceased Mahadev, who was sent to jail in that case. This testimonial disclosure further reflects that P.W.1 is clever enough not to give correct version even on extraneous factual aspects which do not have direct bearing on the merit of the case.

Regarding actual occurrence she has stated that she also accompanied her son Mahadev while Mahadev ran towards western side of his house. She states that she cannot tell as to in which direction Mahadev proceeded/ran after the shot hit him, but the two natural queries engage our attention; firstly while P.W.1 accompanied her son and she ran parallel to him, secondly; then four persons (all accused) who also were chasing her son neither threatened this witness nor caused any physical harm to her. This testimonial factual aspect, under circumstances of the case, does not appear to be proper one and can not be accepted as such. She has stated in her cross-examination that 'Daroga Ji arrived at the spot at later stage'. She stated that she cannot state as to when she returned to village after lodging of the FIR, whereas, in the previous part of her cross-examination, she has already stated that she returned to village after lodging of the FIR around 10:00 p.m. She has further stated that Daroga ji arrived at the spot within one hour of the lodging of the FIR. Here we may notice at ease that the incident is stated to have been witnessed in the illumination of lantern light and Daroga ji also arrived on the spot, meaning thereby that source of light was very much there then how and for what sanguine reasons, the inquest report was prepared only on the next morning from 7.15 a.m. to 8.30 p.m. on 23.1.2000. The intervening time gap from 11:00 p.m. On 22.1.2000, when the police personnel might have arrived at the spot, up to 7.15 a.m. the next day on 23.01.2000 when the preparation of inquest report commenced has not been explained by any of the prosecution witnesses and particularly Ramesh Chand Tiwari, Sub-Inspector P.W.3 who prepared the inquest report. We also do not come across any such circumstance which may justify non preparation of inquest report in the night of 22.01.2000. PW-3 has not whispered about his inaction between this intervening time gap (from 11.00 pm on 22.01.2000 upto 7.15 am on 23.01.2000), lasting for about 8 hours and this intriguing silence on the part of prosecution regarding late preparation of inquest report raises genuine question mark regarding bonafides and creditworthiness of the prosecution witnesses and creates a situation which smacks of consultation and deliberation before lodging of the FIR. Ramesh Chand Tiwari PW-3 has stated that he arrived on the spot and prepared the inquest report. He is such a clever witness that he has not given the very time and date as to when he reached on the spot and as to when he started preparing inquest report and when he completed the inquest report. He has denied suggestion that any thumb impression of Gendawati was taken on the inquest report. This version also goes to show hollowness of statement of Gendawati that she impressed thumb impression on the inquest report.

In this factual scenario of this case, now it would be proper at this stage to have a discussion on the testimony of Rambeti P.W.2. As discussed above, at the cost of repetition, we may note that she has almost supported the prosecution version in her examination-in-chief except for the fact that she claims to have witnessed the incident all alone to the exclusion of all others. She has further stated that accused Janki Prasad belongs to scheduled caste community and the rest three accused persons are Thakur by caste. On careful perusal of her cross-examination, we come across testimony that she arrived at the place / spot where her father was lying dead all alone. There was no other person present on the spot at that point of time. She has further testified that she went to the police station, she met with Divan ji, Divan ji enquired about the incident. Whatever was asked by Divan ji was replied by her and which was taken down by Divan Ji in black and white and he obtained her thumb impression on it.

At this stage, she has denied suggestion that she is giving false testimony. Her testimony also raises question mark on the report (FIR) written by scribe Ashok. On page 2 of her testimony, the last paragraph is quite relevant and material. She claims to have seen wound caused to her father, but she saw the same on the very next day (i.e. 23.01.2000) and she saw lacerated and fire-arm wound. As per her version, Daroga Ji prepared inquest report on the very next day and the FIR was written only after the inquest report was prepared and she goes on deposing that she is deposing what was told to her by villagers, although she claimed that she saw the occurrence and she has denied suggestion that she did not witness the incident. Again we may observe that on certain material and vital points, where aberration is fatal, the prosecution did not declare her hostile witness and did not cross-examine her. If her testimony is believed to be correct one, then it is obvious that she alone witnessed the incident but as per her version in cross-examination she arrived at the spot near dead body of her father all alone. None else was present. She also went to the police station and she narrated about the incident which was taken down at the police station by Diwan Ji who also obtained her thumb impression on it and she has denied suggestion that any report was written by Ashok and lodged at the police station and she has categorically stated that she saw wound on the body of her father only the very next day and the FIR was taken down after preparation of the inquest report and she is deposing what has been told to her by the villagers. In view of such contradictory and vacillating testimony of both the eyewitnesses of fact, we are unable to make either head or tail of the actual occurrence as to what these witnesses wished to prove and in what direction? We do not find ourselves in a position even to depend wholly on testimony of the either of the two eye witnesses because the same is neither clinching nor inspiring confidence.

For the the time being we leave aside the factual testimony of the above two witnesses (P.W.1 and P.W.2) for aforesaid specific discussion. Now, we may embark on certain other factual aspects of the case by careful scrutiny of testimony of formal witnesses and the attendant circumstances of the case. Here we may discuss testimony of Ramesh Chand Tiwari P.W.3 who claims to have started investigation of the case. He only testified to the fact that he arrived at the place of occurrence and prepared the inquest report, but he has not detailed about his arrival on the spot and about the very time when he commenced the inquest report and completed the same. Although he has denied suggestion that the FIR was written only after the inquest report was prepared.

We may discuss this factual aspect after we go through the testimony of other formal witnesses on the point of FIR being ante-timed. Surendra Pratap Singh P.W.4 is the another Investigating Officer who also took over the investigation on 22.1.2000 itself. It appears that P.W.3 only prepared inquest report and upto that extent, he carried out the investigation and thereafter it was taken over by Surendra Pratap Singh P.W.4. His testimony on the whole does not explain the various lacunae created and appeared in the testimony of eye-witnesses P.W.1 and P.W.2. He has merely stated that he recorded statement of witnesses and prepared the site plan. This is obvious that either the Investigating Officer is trying to conceal material facts or he is not well trained to testify properly as an investigating officer before the trial court about his own act/investigation. He is also silent on the point that when the information was received at the police station regarding the occurrence on 22.1.2000 at 22.05 hours then as to why the inquest report was prepared on 23.1.2000 between 7.15 to 8.30 a.m. only and not at once after he arrived on the spot in the very night. Further he has stated to have prepared memo of cartridge and photograph which he recovered from the spot, but the very material which was taken into possession (cartridge and photograph) were not produced in the court, therefore, probative force of such version loses significance. One vital and prime situation of this case is that the deceased was hit by gun shot and as per post-mortem report pellets have been found in an area of 30 cm x 24 cm front of chest and in and around area, both sides measuring 0.5 cm x 0.3 cm and the same is at cavity deep and as per testimony of both the eye witnesses, they also saw wound on the body of deceased, but the Investigating Officer (PW-4) has stated that he did not find any blood stains on the spot. This special aspect and circumstances is self-speaking about actual place of occurrence and assumes crucial importance. This is most abnormal and unnatural that the deceased sustained gun shot wound on the chest covering comprehensive area of the chest and he ran few steps staggering and fell down and died. But surprisingly enough no blood stain was found on the spot. This factual aspect regarding absence of blood stains/ mark on the spot, speaks about uncertainty of place of occurrence. That is why no blood stained soil or simple soil has been collected by the Investigating Officer from the spot. Thus the place of occurrence becomes doubtful. Further PW-1 has categorically stated in her cross examination on page 4 that she is unable to tell as to in what direction her son proceeded/ ran away after the shot hit him. If PW-1 was present on the spot and she virtually accompanied her son when he was running away from the scene of occurrence, then it is most natural and obvious that she must have seen the direction in which her son ran a little distance and fell down. This ignorance on part of P.W.1 shows that she is not telling the truth in court and she in fact did not witness the incident. Her testimony as a whole does not inspire confidence. She is trying to defend her deceased son on several counts and as per her version, her son was never involved in any criminal case and no report was lodged against him but in her cross examination, she has admitted that her son was sent to jail in such case involving Section 307 IPC.

Similarly, when we scrutinize testimony of another eyewitness PW-2 Rajbeti then the entirety of the evidence suggests that she even did not witness the incident. She arrived at the spot the very next day in the morning and saw wounds on the body of his father and Daroga Ji prepared inquest report the very next day and only then the first information report was written and she is deposing at the instance of the villagers. She also went to the police station. She narrated about the incident. Whatever she stated to Diwan Ji was taken down in writing and thumb impression was obtained on it. If all these combined facts and circumstances are taken together then the same establish in unambiguous terms only fact that even Rajbeti (PW-2) cannot be said to have witnessed the incident as claimed by the prosecution. In this way, testimony of Gendawati (PW-1) that she along with Rajbeti (PW-2) witnessed the incident stands negated. Their testimonial version is found to be improving gradually and appears to be aimed at concealing real facts and contradicting each other in material particulars. We, therefore, hold the two eyewitnesses highly interested (witnesses) and wholly unreliable.

In such a situation, normally the convenient and better course would be to separate the grain from chaff but here grain and chaff are so inextricably intermixed that it is not only difficult to separate the same from grains, but virtually impossible to recognize and distinguish as to where is the grain. Therefore, we have before us strong reason to believe suggestion of the defence to be correct one that the deceased was killed by some unknown person/persons in the night and it was only after discovery of the dead body of the deceased that the police came into action and guess work was done and the accused persons were falsely implicated in this case on account of enmity.

At this stage, it would be proper to take into account one more peculiar aspect of this case. We have discussed about the post mortem report Ext Ka-8, ante mortem injuries and the very cause of death mentioned therein. The prosecution adopted such unthinkable lackadaisical approach (in proving post mortem report) and it failed to produce a competent witness in the absence of the doctor who infact conducted post-mortem examination. Prosecution tried to prove post-mortem report by a pharmacist who is not acquainted even with the hand writing and signature of the doctor who actually conducted the postmortem examination. Things could have been clarified by a competent doctor witness but by such inaction things have been put into abysmal oblivion by producing a Pharmacist who was not acquainted with the nature and magnitude of ante mortem injuries and regarding their details say duration, time of death and the very cause of death.

Surprisingly enough Virendra Kumar Verma PW-5, Pharmacist has not worked with Dr. B.G. Tiwari, who conducted post mortem report. He never saw him writing before him. He only took with him the register which bore signature of Dr. B.G. Tiwari. Is it proper exercise for performing such vital duty? We are surprised that even the learned trial court failed to call any competent doctor as witness from any government hospital for its assistance who could have elaborated at least about ante mortem injuries, duration, time and cause of death, which are material aspects of any post mortem examination report. Both the prosecution and the trial court failed to take stock of the situation and a worthy cause was abandoned.

Further, in the long series of aforediscussed anomalies, we again come across the facts that a number of changes have been made in the relevant entries of previous G.D. of the day when the first information report was stated to have been lodged at the police station on 22.01.2000. A series of changes have been so made in the G.D. but no one has put any initial on these changes. This aspect though trivial one but leads us to infer that the first information report, if read conjointly, with attendant circumstances, render the first information report being ante timed and it was tried to be adjusted according to the entries already made in the G.D. otherwise how and why were these changes not initialled by the person who actually changed these entries. In this regard, we base our finding on cross examination of Constable Shree Chand Verma PW-6 who has categorically stated that the complainant was accompanied with Ram Autar, Raja Ram, Mewa Ram and Amar Singh when she came to the police station, Ashok did not accompany her. This version of PW-6 contradicts version of PW-1 that she did not visit police station in company of Ram Autar, Raja Ram, Mewa Ram and Amar Singh. Therefore, so many factual aspects appear to have been put in disorder not only by the witnesses of fact but also by formal witnesses and we notice that copy of the first information report was made available to the court concerned only on 27.01.2000 while the first information report was lodged on 22.01.2000. This delay in sending copy of the first information report to the court concerned also raises doubt on the authenticity of the claim of the prosecution that the first information report was lodged on 22.01.2000 at 10:05 p.m. In view of aforesaid factual backdrop of this case, we may further observe that the learned trial court only took bald view of the testimony of so called eyewitnesses and it failed miserably to take into account and scrutinize the various vital circumstances of the case vis-a-vis relevant facts. We know that witnesses may, under self-impression and self-interest, tell a lie, but circumstances never. Here circumstances have special role to play and they stand unexplained and unanswered up to this stage. The prosecution could not explain a number of anomalies appearing on the factual side of this case. Such non-explanation of facts and circumstances by the prosecution throws doubt on the authenticity of prosecution version itself. At the cost of repetition we may conclude that the prosecution witnesses of fact being relatives are highly interested and their testimony on the whole is not reliable because of overflowing material contradictions and the same is found to be not clinching. Their testimony on the whole is unreliable.

The learned trial court ought to have taken a holistic view of the entire case and ought to have appraised testimony vis-a-vis facts and circumstances of the case and would have drawn conclusion consistent with prosecution version. All the facts, circumstances and evidence of this case when churned together would have placed things in an acceptable corner to the exclusion of all reasonable suspicion which suspicion remained unanswered by the prosecution till the very end.

Therefore, after careful scrutiny of facts, evidence and circumstances of the case, we are of the view that the learned trial court has based its findings primarily on sketchy evidence led by the prosecution witnesses and has failed to appreciate the real facts and circumstances of the case in proper spirit. Consequently, findings of conviction recorded by the trial court becomes erroneous and the same is set aside and the instant appeal succeeds and the same is allowed.

The appellants, namely, Janaki Prasad, Shivnath, Lallu Yadav and Harnath are found not guilty for charge/charges under Sections 302, 302/34 IPC and 3 (2) (V) SC/ST Act and they are acquitted of the same.

Appellant Janaki Prasad is confined in jail in this case. He be set free forthwith if he is not wanted in connection with any other case after compliance of Section 437A Cr.P.C.

Rest of the appellants namely Harnath Singh, Shivnath and Lallu Yadav are on bail in this case. Their personal and bail bonds are cancelled and sureties discharged. However, they will have to furnish bonds in compliance of Section 437A Cr.P.C. within 15 days before the court concerned/trial court. In case they fail to furnish such undertaking (as required under Section 437A Cr.P.C.), the court concerned shall be competent to ensure compliance for the same.

Let a copy of this order/judgment be certified to the court concerned for information and necessary follow up action.

Order Date :-13th May 2016 IrfanUddin

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Allahabad High Court