Beta @ Vidya Sagar And Ors. vs State Of U.P. on 1 March, 2017

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Allahabad High Court

Beta @ Vidya Sagar And Ors. vs State Of U.P. on 1 March, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) Heard Sri R.K. Singh, learned counsel for the appellants assisted by Sri Kameshwar Singh, learned Advocate and Sri Sagir Ahmad, Sri J.K. Upadhyay and Kumari Meena, learned AGAs assisted by Sri Hasan Abidi learned brief holder for the State and perused the record of this appeal.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 12.10.1995 passed by Special Judge (E.C. Act), Banda in Sessions Trial No. 218 of 1991 (State Vs. Beta @ Vidya Sagar and Others), arising out of case crime no. 297 of 1990, under Sections 302 IPC and 302/34 IPC, Police Station- Bisanda, District- Banda, whereby, the appellant -Beta @ Vidya Sagar has been convicted under Section 302 IPC and appellants - Indrapal, Babbu @ Santosh and Amar have been convicted under Section 302/34 IPC. Brief sketch of the sentence awarded by the trial court is as herein under:-

Appellant- Beta @ Vidya Sagar- has been sentenced to imprisonment for life under Section 302 IPC.

Appellants- Indrapal, Babbu @ Santosh and Amar- have been sentenced to life imprisonment under Section 302 read with Section 34 IPC.

All the sentences have been directed to run concurrently.

Gravamen of the charge is rooted in the first information report lodged by the informant- Mayyadin s/o Ram Lal r/o village- Dabni, Police Station- Bisanda, District- Banda at Police Station- Bisanda on 31.10.1990 at 8.30 P.M. against the accused-appellants- Beta @ Vidya Sagar, Amar, Babbu @ Santosh and Indrapal of the same village with allegation that some dispute/altercation took place sometime ago between the informant's son- Rajju Prasad on the one hand and Beta @ Vidya Sagar s/o Manni, Babbu s/o Udra Raj and Amar s/o Raj Kumar and Indrapal s/o Ram Manohar on the other hand. The dispute was arbitrated by the intervention of the informant and the villagers. Today i.e. 31.10.1990, the informant along with his son Rajju Prasad had gone to answer the nature's call in the field. Informant's son (Rajju Prasad) went in the field of Amar, whereas the informant went in a nearby field. As soon as informant's son had just relieved himself and was in the process of standing up and while he was taking water from drain, Beta @ Vidya Sagar, possessing licensed double-barreled gun of his uncle and Amar Singh, possessing single-barreled gun of his grandfather, appeared on the scene along with Babbu and Indrapal, who were hiding over there and shot at informant's son Rajju Prasad at about 5.30 P.M. The shot hit informant's son (Rajju Prasad) on his head above right ear, due to which, he fell down. On hearing sound of the fire and after alarm was raised, the informant's son Munna and a number of villagers arrived on the spot, whereupon, the assailants made their escape after wading through the maize field. The informant brought his son home by putting him on a cot. En-route, his son (Rajju Prasad) told him that he was shot at by Beta @ Vidya Sagar by the gun of Indrapal. The informant's son succumbed to his injuries on way in village- Para while being conveyed to the police station in the bullock cart of Lakhan Yadav. The dead body is lying in the bullock cart outside the police station. Request was made for lodging the report and taking appropriate action. This written report is Ex.Ka.1.

Contents of written report were taken down in the concerned check FIR at Case Crime No. 297 of 1990 under Section 302 IPC at Police Station- Bisanda, District- Banda at 8.30 P.M. on 31.10.1990. The copy of check FIR is Ex.Ka.11. Consequent upon entries so made in the check FIR, a case was registered against the accused persons at Police Station- Bisanda on 31.10.1990 at aforesaid crime number, under aforesaid section of Indian Penal Code. The relevant GD entry is Ex.Ka.12.

Record reflects that inquest of the dead body of deceased Rajju was held the next day of the occurrence i.e. on 1.11.1990. It commenced at 6.30 A.M. and was completed at 8.00 A.M. The inquest report is Ex.Ka.4. Inquest was held under the supervision of Jagdish Chand P.W.6. Investigation was also entrusted to Jagdish Chand P.W.6, who after noting down the contents of check FIR and after recording statement of head moharir and complainant on 31.10.1990 and after holding inquest of the deceased Rajju on 1.11.1990 concurred with the inquest witnesses that the dead body be sent for postmortem examination so as to ascertain real cause of death. Therefore, relevant papers were prepared by the Investigating Officer- say- photonash, specimen seal, police form 13, letter to CMO and letter to R.I., etc. These papers have been proved by the Investigating Officer as Ex.Ka.4, Ex.Ka.5, Ex.Ka.6, Ex.Ka.7, Ex.Ka.8 and Ex.Ka.9, respectively. The dead body was sent to the mortuary, Banda and the same was conveyed over by constable Dharam Singh P.W.4 (to mortuary). Dr. H.N. Chaurasia P.W.3 conducted autopsy on the cadaver of deceased Rajju on 1.11.1990 at 4.15 P.M. The duration from the time of possible death till conduction of postmortem was stated to be about one day. The deceased was aged about 20 years. The following ante-mortem injuries were noted on the dead body by the doctor:

1. Gunshot wound of entry ½ cm. x ½ cm. x piercing the upper part of right pinna of inner side and then entrance wound on right side temporal region of skull just adjoining with pinna injury on the same line measuring ½ cm. x ½ cm. x cranial cavity deep. Margins inverted, ecchymosed, blackening and tattooing present.

2. Abrasion 2 cm. x 1 cm. on right side front of knee joint.

In the opinion of the doctor, cause of death was stated to be shock and haemorrhage as a result of ante-mortem gunsot injuries. The doctor also found during postmortem examination one metallic bullet in the body. This postmortem report is Ex.Ka.2.

Record reveals that the Investigating Officer also prepared site plan of the place of occurrence which is Ex.Ka.10 and also recorded statement of other witnesses. Thereafter, the investigation was taken over by another Investigating Officer Brahm Singh P.W.5, who also completed the left over part of the investigation. He recorded statement of various persons and after completing the investigation on 8.11.1990 filed charge-sheet against the accused persons which is Ex.Ka.3.

Thereafter, committal proceeding followed and the case was committed to the Court of Sessions where it was numbered as Sessions Trial No.218 of 1991 and was transferred to the Court of Additional Sessions Judge/Special Judge (E.C. Act), Banda for conduction and disposal of the trial, who after hearing the prosecution and the accused persons on point of charge was satisfied with prima facie case against the accused, consequently, framed charge against accused persons under Section 302 and 302/34 IPC. Charges were read over and explained to the accused, who abjured charge and opted for trial.

The prosecution was required to adduce all its testimony by which it proposed to prove the guilt of the accused. In the process, the prosecution produced in all six witnesses, whose description is being given as herein under:

Mayyadin P.W.1 is the informant and the eye-witness of the occurrence. He has proved written report Ex.Ka.1 and has also described about the incident.

Munna P.W.2 is also the eye-witness of the occurrence.

Apart from above, other witnesses are formal witnesses. Dr. H.N. Chaurasia is P.W.3, he has conducted postmortem examination on the cadaver of the deceased Rajju on 1.11.1990 at mortuary, Banda and has proved cause of death and the postmortem report Ex.Ka.2.

Constable Dharam Singh P.W.4 has conveyed the dead body over to mortuary, Banda and has testified to the fact that he kept under seal the dead body of Rajju and the same remained intact while in his custody.

Brahm Singh P.W.5 is the second Investigating Officer and he recorded statement of certain persons and filed the charge-sheet Ex.Ka.3 against the accused persons and has proved the process before the trial court.

Jagdish Chand P.W.6 is the Investigating Officer. Bulk of the investigation has been conducted by him. He after institution of case against the accused held inquest of deceased Rajju and during course of investigation, he recorded statement of various persons, prepared site plan of the place of occurrence, and thereafter, the investigation was taken over by subsequent Investigating Officer Brahm Singh P.W.5.

Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C., wherein they denied the charge and claimed to be innocent and specifically submitted that the witnesses are inimical towards them. The deceased was not shot by using 12-bore pellet. The defence did not lead any ocular testimony, whatsoever.

The defence only moved an application praying for obtaining report pertaining to material exhibit 1- bullet- which was recovered from the body of the deceased by the doctor at the time of conduction of postmortem examination. This application was ultimately disposed of by the trial court on 17.8.1995 by holding that it has already emerged in the testimony of Dr. H.N. Chaurasia P.W.3 that the piece of metal recovered from the body is a bullet and it cannot be fired by a 12-bore gun.

The trial court after hearing both the sides on the merit of the case and after appraising facts and evaluating the testimony on record, recorded conviction against the accused persons and sentenced them to imprisonment for life.

Consequently, this appeal.

It has been vociferously claimed by Sri R.K. Singh, learned counsel for the appellants that it is a case where the prosecution witnesses of fact- Maiyyadin P.W.1 and Munna P.W.2 did not see the occurrence at all and they were not present on the spot. Their testimony is testimony of chance witness and they are partisan witnesses, being close relatives of the deceased. Maiyaddin P.W.1 is the father of the deceased and Munna P.W.2 is the real brother of the deceased. Their testimony, on the whole, is full of infirmities and improbabilities, which cannot be accepted on its face value. The doctor (Dr. H.N. Chaurasia) who conducted postmortem examination, has unambiguously opined that the metallic piece recovered from the body of the deceased could not have been fired from a weapon of 12-bore, but it may have been fired from a rifle. Thus, the testimony of prosecution witnesses of fact is nothing but testimony of partisan and chance witnesses, who never saw the incident. Had they seen the incident, they would have come out with true facts about the weapon of assault that rifle was used in the commission of the offence. The ocular testimony is in sheer contrast to the medical testimony, which (medical) is innocuous on point that the bullet recovered from the body could have been used by instrumentality of some fine quality weapon or rifle, but not from 12-bore gun. The FIR also describes use of gun (DBBL) as the weapon of assault. Therefore, the eye-account testimony becomes wholly doubtful and improbable. Testimony of prosecution witnesses is on the face improving on point that the deceased told these witnesses the name of the person who fired on him, whereas, it is obvious that a person who sustained injury on his head/skull of such magnitude would hardly be in a position to utter/spell any word, though he may have feeling or gesture of speaking that, but he, in no case, can utter or spell any word and sentence like the one in the case in hand. This aspect also gets strengthened from the testimony of doctor witness (Dr. H.N. Chaurasia P.W.3). The learned counsel also assailed holding of inquest by the Investigating Officer on 1.11.1990 and not on 31.10.1990, because dead body of Rajju had already been brought at the police station and FIR was lodged at 8.30 P.M. and there was electricity in and around the police station, yet, holding of inquest was postponed to another day by the Investigating Officer and was held only in the morning of 1.11.1990, which shows that till that time, name of accused persons were not known and false exercise was being done by the police and the informant falsely implicated the accused person due to animosity and the FIR was in fact lodged after completion of the inquest report after lot of deliberation. That way, the FIR is ante-timed. The entire prosecution testimony is full of infirmity and suffers from inherent illegality. The accused have been implicated on account of enmity by the informant in collusion with the police.

Per contra, leanred AGA has refuted aforesaid argument on the ground that ocular testimony of the occurrence is innocuous, consistent and clinching. It describes in detail the manner and the style of the occurrence as to how and when it was caused by the accused persons and they have specifically stated that the shot was fired by using double-barreled and single-barreled gun by the accused. The testimony of doctor carries only opinionative value and it is neither binding nor conclusive in nature. There is no material contradiction in the testimony of prosecution witnesses and the medical evidence on record. The nature of contradiction appearing in the testimony of the prosecution witnesses of facts is of trivial and negligible magnitude and the same does not create any dent in the prosecution story.

The trial Judge has rightly taken things in right perspective and he was justified, while he recorded conviction against the accused persons.

We have considered the rival submissions and also considered the assertion of the prosecution regarding the charge brought against the accused persons. The moot point that engages our attention for determination of this appeal basically relates to fact whether the prosecution has been able to prove its case beyond all reasonable doubt against the accused persons?

Admittedly, the allegations have been made in the first information report against the accused persons that they arrived on the spot when the deceased was answering to nature's call in the field of Amar in village- Dabni and at that point of time Beta @ Vidya Sagar, who was possessing licensed double-barreled gun of his uncle, fired with the same and it hit the informant's son(Rajju) on his head and he fell down. The sound of fire was heard by Munna P.W.2 and alarm was raised by Maiyyadin P.W.1, due to which Munna P.W.2 and other villagers also arrived on the spot.

It has been described in the FIR that the then injured- Rajju (informant's son) was put in a cot and was taken to the house of the informant and from there, he was being taken to the police station on a bullock cart, but he succumbed to his injuries on way. But before dying, he told the name of the assailants to both the witnesses Maiyyadin P.W.1 and Munna P.W.2 that Beta @ Vidya Sagar shot at him by the gun of Indrapal. The time of the incident has been described as 5.30 P.M. The distance from the village- Dabni to Police Station- Bisanda has been shown to be 7kms. and FIR was lodged at 8.30 P.M. at Police Station- Bisanda.

In the backdrop of aforesaid factual aspects of this case, we have to evaluate testimony of both the witnesses of fact- say- Maiyyadin P.W.1 and Munna P.W.2, vis-a-vis attendant facts and circumstances of the case.

Both the witnesses- Maiyyadin P.W.1 and Munna P.W.2 have been stated to have seen the occurrence. Testimony of Maiyyadin P.W.1 (informant) is based on description that it was around 5.30 P.M. on the day of the occurrence, they (informant and deceased) had gone to the field to answer nature's call. The informant went in the field of Sundar, where Rajju used corner of field of Amar Singh and Ram Raj. As soon as informant's son relieved himself of nature's call and stood up, Beta @ Vidya Sagar, possessing single-barreled gun, appeared on the scene along with Amar Singh, who was also possessing single-barreled gun and Indrapal and Babbu also appeared from maize field. Indrapal, Babbu and Amar Singh exhorted, whereupon Beta @ Vidya Sagar fired on Rajju, which fire hit Rajju on his right side skull above right ear. After hearing sound of fire and after alarm being raised by the informant, informant's son Munna and villagers arrived on the spot when the assailants ensured their escape by disappearing in the maize field. The informant along with others, took the then injured Rajju to their home. On way to village, injured told them names of the assailants that they were present and Beta @ Vidya Sagar fired on him. When the injured was being conveyed to the police station by the bullock-cart of Lakhan Yadav and reached near village- Para, Rajju succumbed to his injuries, when report was scribed by dictating the same to Ram Baran, the cousin (brother) of the informant and the same was lodged at the police station.

In so far as testimony of another witness of fact is concerned, we come across testimony of Munna P.W.2, who is real brother of the deceased. He has testified to fact that he arrived on the spot after hearing sound of fire and alarm being raised by his father. He has testified to the ambit that he saw accused- Beta @ Vidya Sagar, Amar, Babbu and Indrapal under a mango tree near the drainage '(Nali)'. Beta @ Vidyasagar was possessing double-barreled gun of his uncle, while Amar was possessing licensed gun of his grandfather, and Indrapal and Babbu were empty-handed and he saw the assailants running away from the scene. He went near Rajju, who was severely injured. The injured was put on a cot and was being taken away to home when on way he (injured) told that Beta @ Vidya Sagar shot at him by the licensed gun of his uncle. The injured was being conveyed in the bullock-cart to the police station from home when he succumbed to his injuries near Para village.

Before we scrutinize the entire testimony of both the prosecution witnesses of fact as emerging from their cross-examination, it would be appropriate to have a dip into the postmortem examination so as to ascertain the nature of the gunshot injury caused to the deceased. Admittedly, only one fire was shot on the deceased and no other shot was fired.

The postmortem report indicates antemortem injury in shape of gunshot wound of entry 1.2 cm. x 1.2 cm. x piercing the upper part of right pinna of ear on inner side and the entry wound of right side temporal region of skull, just joining to pinna injury on the same measuring ½ cm. x ½ cm. x craneal cavity deep. Margins inverted, ecchymosed, blackening and tattooing present.

Injury no.2 was stated to be in form of abrasion 2 cm. x 1 cm. on right side front of knee joint. This way, we notice only two ante-mortem injuries where doctor witness (Dr. H.N. Chaurasia) has testified to the fact that he also discovered one metallic bullet from the body during examination and sent the same in a sealed cover to the Superintendent of Police, Banda through the constable. He has proved postmortem examination report as Ex.Ka.2. This doctor witness has testified on certain relevant aspects. He has testified on the capacity of the deceased to speak at that particular time, when the shot had hit him on the spot, in the last line of his examination-in-chief the doctor witness has stated that the deceased might have been alive for 10-15 minutes after he sustained injury and he might have been capable of uttering words. But, in his cross-examination, he has categorically stated that in case the fire is caused by gun of 12-bore or country-made gun from a distance of 2-3 feet, then size of pellet used by means of 12-bore weapon would commensurate with the bore- 12-bore gun, if used from a distance of 3 feet, then the measurement of wound would be one and a half inch on irregular circular wound, whereas, he found measurement of the wound ½ cm. x ½ cm. and he has confirmed that this measurement indicates that the wound might have been caused by some weapon of fine quality firearm weapon of .22 or .33 bore. Quality weapon was stated to be one like- pistol, revolver or rifle. It means the doctor witness has denied possibility of use of any gun in the occurrence. However, he has stated categorically about the wound that such wound (as above) could have been caused by use of pistol, revolver or rifle. Further, in his cross-examination, as emerged on page no.37 of the paper book, he has stated that after sustaining such injury like- 'haematoma on both side temporal, parietal region of brain present'. There is possibility of the injured suscepting to impression for uttering words, but one cannot articulate the words because of dysphasia. The doctor witness has also testified on fact that the nature of antemortem injury no.1 indicates that the blood must have oozed out when the wound have been caused. Thus, it is obvious that the use of weapon as stated by the prosecution witnesses of fact in the commission of the offence at the time of occurrence that fire was caused by double barrelled gun becomes highly doubtful and improbable fact because of the measurement of the entry wound noted by the doctor during postmortem examination in shape of wound of entry ½ cm. x ½ cm. x piercing the upper part of right pinna of ear......Thus, the possibility of use of double barrelled gun as weapon has been placed in a secluded corner by the testimony of the doctor and the testimony on the whole appears to be based on apparent fact, reasonable and just, based on measurement of the gunshot wound of entry of above magnitude.

The doctor has also expressed view that the injured, after sustaining the above injury, might have entertained some impression for uttering words, but he would not be able to utter words because of the lethal effect created by the gunshot wound on his body. We come across testimony that the deceased told name of accused Beta @ Vidya Sagar that he shot at him by gun of Indrapal. Maiyyadin P.W.1 has specifically stated on page no.16 of the paper book in his examination-in-chief that he was told by the deceased while on way to home that Babbu, Amar, Indrapal and Beta were present and Beta fired with gun.

We also come across testimony of the prosecution witnesses of fact that the blood had spilled on the spot, but no blood was found on the spot by the Investigating Officer during the course of the investigation. Investigating Officer Jagdish Chand P.W.6 has specifically stated that he did not find any blood on the spot. He has also stated that informant had given statement that after sound of fire was heard and alarm raised by him, when his son Munna and other villagers arrived on the spot. It means the actual occurrence was not seen by Munna P.W.2, because the fire had already been shot and no second fire was caused by the assailant and after one shot, the assailants escaped away from the scene. It means, arrival of Munna P.W.2 and the other villagers on the spot must, in all probability, have been subsequently to the departure of the assailants from the spot and they did not see the actual occurrence.

This way, Munna P.W.2 being real brother of the deceased Rajju appears to be a partisan and chance witness and his testimony, in so far as it relates, to the point of actual occurrence is highly doubtful and wholly unreliable.

Now, in so far as presence of Maiyyadin P.W.1 on the spot at the time of occurrence is concerned, we notice that the very description of the occurrence involves use of licensed double-barreled-gun by accused Beta @ Vidya Sagar, but testimony of doctor virtually overthrows the above ocular testimony and establishes fact that no such weapon could have caused such injury as injury no.1 in form of ante-mortem gunshot wound of dimensions ½ cm x ½ cm x piercing through .......... Had Maiyyadin P.W.1 and Munna P.W.2 been present on the spot at the time of occurrence how could they have described double-barreled-gun to have been used as the weapon of assault when the nature and dimensions of gunshot wound of entry has been specifically stated to have been outcome and result of use of weapon- like- pistol, revolver or rifle. The doctor witness has based his testimony on the recovery of metallic bullet from the body of the deceased. There is nothing on record to link the weapon used with the bullet recovered from the body of deceased Rajju. This way, we also entertain doubt on the testimony of Maiyyadin P.W.1 on point of he being eyewitness and to have seen the actual occurrence and that way he also appears to be highly interested and doubtful witness and his testimony, on the whole, does not inspire confidence and the same cannot be believed by us.

It has emerged in the FIR and in the ocular testimony that after fire was shot and alarm raised, Munna and other villagers had arrived on the spot. But names of villagers were not spelled by both the witnesses of fact except name of one- Kamta. We may observe that independent corroboration is woefully lacking, which was most required, looking to the nature of the partisan testimony given by the two witnesses of fact.

Thus, the ocular testimony of both the witness of fact- say- Maiyyadin P.W.1 and Munna P.W.2 turns out to be testimony of partisan and chance witnesses, as such, wholly unreliable.

At this juncture, we may contemplate import of utterance allegedly made by the deceased to the ambit that he named accused Beta @ Vidya Sagar imputing that he fired on him with the gun of his uncle. We have already dealt with that aspect and we have recorded specific finding that it was not possible for the deceased to have uttered these words in such critically injured condition, when the fire had hit him on his head above the right ear. Once we have noted about the incapability of the deceased to utter words, then the question naturally cracks as to why such aspect was stressed in the written report- Exhibit Ka-1 and testified in the testimony of Mayyadin P.W.1 and Munna P.W.2, respectively. Normally, reply to such aspect springs to fore that both the witnesses had not seen the occurrence, therefore, they wanted to bring in certain decisive factual aspect pertaining to the incident as to who caused it and by means of what weapons. If the prosecution witnesses had themselves seen the occurrence and they were present on the spot, why the deceased will make such statement if he has reason to believe that the witnesses had already seen the occurrence, because P.W.1 claims himself to have accompanied the deceased to the field where the occurrence took place.

Not only this, but a number of other anomalies shedding light on other aspects of the case are very much reflected by the testimony of the Investigating Officer Jagdish Chand P.W.6. He has not described in the site plan- the place from where the prosecution witnesses saw the occurrence. It has also not been described in the site plan as to where the assailants were standing at the time of the occurrence and firing. Investigating officer has testified that Munna and Mayyadin did not show him the place from where they witnessed the incident.

Even, the escape route of the assailant has not been described and the Investigating Officer has categorically stated that he did not find any blood on the spot. Fact also emerges on point that the deceased was wrapped up in some quilt- say- 'Kathri'- in vernacular language- which was seeped with blood. But the Investigating Officer did not collect any blood sample or the 'Kathri' in order to get the same tested from the Forensic Science Laboratory. The Investigating Officer has testified that he did not think it proper to take into possession the blood seeped 'Kathri' to get it examined at the Forensic Science Laboratory. He did not recovered any empty cartridge from the spot. Though, recovery of empty cartridge is not necessary at this stage. However, absence of blood mark on the spot raises serious doubt on the place of occurrence itself. Dr. S.N. Chaurasia - P.W.3 has testified, on page 37 of the paper book, to the ambit that after sustaining the injury (antemortem injury no.1), blood must have oozed out. How and why the place from where the witnesses saw the occurrence has not been described in the site plan and no worthy reason ascribed for non-disclosure of such vital facts in it.

All this cumulatively suggests that the occurrence might have taken place in isolation in the absence of prosecution witnesses of fact and they arrived on the spot only after some time or after a short while when the occurrence had already taken place. We have already noticed that the ocular testimony stands in gross contradiction to the medical testimony, which virtually throws away case of the prosecution, on point, that the incident was witnessed by the prosecution witnesses- Maiyyadin P.W.1 and Munna P.W.2, respectively. Thus the case of the prosecution has been shattered not by the attendant circumstances, but by the fact that the incident, if it would have been seen by the witnesses, they must have described the correct weapon used in the assault. But their description of the weapon used in the commission of the offence cannot be accepted to have caused such gunshot wound of entry on the head of the deceased as the present one.

We can observe at convenience that the nature and magnitude of the gunshot wound on the skull of the deceased must have incapacitated him and he would not have been in a position to utter any single word and to say that he uttered name of the assailants and the weapon used to the prosecution witnesses is highly improbable fact, under attendant circumstances. This aspect of the testimony shows that the prosecution witnesses have been tutored, their testimony appears to be improved one and full of embellishments. Not only this, but also the statement of the prosecution witnesses recorded by the Investigating Officer on vital aspects of the occurrence are contradictory to the evidence given by the witnesses in the court and that way, improvement is widely perceptible in their testimony.

Even on point of holding inquest on 1.11.1992, we notice, as per testimony of the Investigating Officer emerging on page no.43 of the paper book, that the dead body of Rajju was kept by the side of the road outside the police station and electricity was available at the police station. Investigating Officer Jagdish Chand P.W.6 testifies that he did not think it proper to take the dead body inside the police station and to prepare inquest there. Normally, it does not sound well that the Investigating Officer allowed the dead body to be kept outside the police station throughout the night (31.10.92/1.11.92) and prepared inquest report only the next morning (1.11.92) at 6.30 A.M. The Investigating Officer could have taken the dead body along with bullock-cart inside the police station and could have prepared inquest report inside the police station- the very same night. The Investigating Officer was in the knowledge of things that it is duty of the police to prepare the inquest report as early as possible after lodging of the report as per relevant police regulations contained in the police manual. Prosecution has not dealt with this particular aspect and has not extended any reasonable explanation for such delay occasioned in the preparation of the inquest report.

Certainly, all these evidentiary and factual aspects of the case were not properly evaluated by the trial court while appraising facts and circumstances of the case, vis-a-vis, testimony on record. If it had already been established that the gunshot wound (in form of antemortem injury no.1) could have been caused by means of any revolver, rifle or pistol, then involvement of gun alleged by the prosecution witnesses was, ipso facto, rendered highly doubtful, but this vital and essential aspect was given a go-by by the trial court by basing its finding of conviction on hypothetical ground and conjuncture, which we hereby disapprove.

The entire gamut of criminal jurisprudential law is based on principle that the prosecution would have to establish charge beyond all reasonable doubt in order to ensure conviction against an accused. Scale of guilt is to be drawn and established by proper evaluation of testimony and appraisal of relevant facts qua attendant circumstances of the case. If evaluation of testimony and appraisal of facts sans proper appreciation and transcends judicious discretion while basing conviction arbitrarily on untenable and unfounded material, then the finding of conviction so recorded becomes erroneous and perverse, on the face. Such finding, being perverse, is liable to be discarded. The trial court based its finding more on whims than on material on record.

Above discussion takes us to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt against the accused for various reasons and the trial court committed gross error in recording conviction against the accused persons, therefore, the finding of conviction being erroneous and perverse on the face, the same cannot be sustained in the eye of law, as such the finding of conviction recorded by the trial court vide its order dated 12.10.1995 passed by Special Judge (E.C. Act), Banda in Sessions Trial No. 218 of 1991 (State Vs. Beta @ Vidya Sagar and Others), arising out of case crime no. 297 of 1990, under Sections 302 IPC and 302/34 IPC, Police Station- Bisanda, District- Banda is hereby set aside and the accused-appellants are exonerated of all charges. The appeal is allowed, accordingly.

Appellants- Beta @ Vidya Sagar, Indrapal, Babbu @ Santosh and Amar are on bail. They need not surrender in this case. Their personal bonds and bail bonds are cancelled and sureties are discharged. However, they will comply with the provisions of Section 437-A Cr.P.C.

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

Order Date:- 1st March, 2017 Raj/Ishan

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