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BISHAN DAYAL versus STATE

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Bishan Dayal v. State - CRIMINAL APPEAL No. 2692 of 1981 [2005] RD-AH 8057 (23 December 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Appeal No. 2692 of 1981

Bishun Dayal and others ...................Appellants.

Vs

State of U.P..................................Opposite Party.

Hon'ble M.C. Jain, J.

Hon'ble Vinod Prasad, J.

(Delivered by Hon'ble Vinod Prasad, J.)

Bishun Dayal, Jagdish, Ram Autar, all residents of Village Achrauda, Police Station Nababgaj, District Farrukhabad and Lal Singh, resident of Village Guthia, Police Station Nawabgaj, District Farrukhabad have challenged the correctness of their conviction and sentences recorded in Sessions Trial No. 352 of 1980, State Vs. Bishun Dayal and others by Second Additional Sessions Judge, District Farrukhabad. By the impugned judgment, the second Additional Sessions Judge has convicted and sentenced them under Section 147 I.P.C.  for one year R.I., under Section 307/149 I.P.C. for five years R.I. and under Section 302/149 I.P.C. for life imprisonment.

During the pendency of this appeal Bishun Dayal appellant no. 1 died and consequently his appeal abated on 12.12.2005. Under the same order Sri Vinay Saran, learned counsel representing appellant nos. 2 and 4 has been appointed as amicus curiae for Ram Autar appellant no.3 because he has been reported to be absconding.

The prosecution case as is perceptible from F.I.R. lodged by Munni Lal P.W.1 is that in between the night of 16/17.4.1980 he and his family members were sleeping in their house and his cousin brother Puttoo Lal was sleeping in hutment in front of the house. At about 12.00 in the night shrieks of Ram Das echoed that he had been caught by the miscreants. Informant and his sister-in-law (Bhabhi) rushed to save Ram Das but they were also fired at. The accused also started catching hold of Puttoo Lal who was under his quilt but he pleaded to take away whatever they wanted instead of assaulting him. The miscreants retorted that they had not come for committing dacoity but to avenge the enmity of siding with Ram Das and shot at in his neck. Amongst the accused, the present four appellants ( out of whom Bishun Dayal is dead) were named by the informant and other witnesses and rest were stated to have been seen very well. On hue and cry being raised, Brindaban son of Lochan Lohar, Pyare Lal son of Baldev Jatav, Jagdish son of Ranjeet Dhobi and other family members of the informant rushed at the spot armed with lathis, dandas and torches. The accused made their escape good towards north. The informant had enmity with Bishun Dayal as he had insulted his sister Sontara two or three days prior to the incident and an scuffle had ensued between them. Bishun Dayal had threatened him with life and motivated by that the above incident was committed by the appellants.

When the informant was bringing the injured to the police station on two bullock carts, Ram Das breathed his last near Ramtal in Village Kaqauli. Informant got the F.I.R. scribed by Malkhan Singh (not examined in the case) and lodged it at the police station Nababgaj at 12.05 noon after covering a distance of ten miles north. Head Constable, Sultan Singh, P.W.2, prepared the Chik Ex.Ka 2, G.D. entry Ex.Ka 3 and Chitthi Mazroobi of the three injured Puttoo Lal, Smt. Sharda Devi and Munni Lal (informant) and sent two of them Smt. Sharda Devi and Munni Lal for medical examination through Constable Raja Ram to Government Hospital, Nababgaj but held back Puttoo Lal. S.I. Babu Ram Yadav, P.W.8 was entrusted with the investigation, who conducted the inquest on the dead body outside the police station, prepared the inquest memo Ex. Ka 8. He took the underwear and Baniyan of the deceased in possession and prepared its recovery memo Ex Ka 9. After preparing other documents exhibited as Ex. Ka 10 to Ka 13 (Photo Lash, Challan Lash etc.) he handed over the dead body to Constables Shanti Swarup P.W.4 and Mahesh Singh (not examined) for postmortem at 1.15 P.M. Not finding the injured in the hospital, he proceeded for the spot accompanied by two constables and reached there at quarter to four in the afternoon where he recorded the statements of witnesses Brindaban, Pyare Lal etc and made recovery of empty cartridges and prepared its recovery memo Ex. Ka 14. He conducted the spot inspection at the pointing out of the brother of Malkhan Singh and informant and prepared the site plan Ex Ka 15. He also prepared the recovery memo of the lamp and torches of Brindaban, Jagdish, Rameshwar and Malkhan Singh Ex Ka 16 and Ex. Ka 17. The recovery memo of quilt of Puttoo Lal is Ex. Ka 18. He also recorded the statement of Puttoo Lal and on completion of investigation submitted a charge sheet against the four appellants on 24.5.1980 Ex. Ka 19. Unknown accused could not be traced by him.

 Dr. C.N. Bhalla P.W.3 conducted postmortem on the dead body of the deceased on 18.4.1980 at 5.00 P.M. brought by Constable Shanti Swarup and Mahesh Singh of Nababgaj police station. He found the age of the deceased to be 32 years and one and a half day had elapsed since his death. He found the following antemortem injuries sustained by the deceased:

1. Multiple gunshot wounds of entrance in an area of 9" x 6-1/2" present on the left side of abdomen.

2. Gun shot wound (slip shots) present on right thigh upper part and outside. Size 1/8" x 1/3" to 1/8"x1/2". The said wounds were caused by the friction of gun firing and had not penetrated.

In the opinion of this witness, the cause of death was bleeding and shock as a result of antemortem injuries. 12 small pellets were recovered from the abdomen. According to him antemortem injuries were sufficient in the ordinary course of nature to cause death.

Dr. A.K. Maini, P.W.5 examined the injuries of Puttoo Lal injured at District Hospital, Fatehgarh on 18.4.1980 at 8.30 A.M. and found following injury on his person:

1. A gunshot wound of entry 1-1/2" x 1" muscle deep on right side of neck. Cotton and cloth present in wound.

He advised X-ray. The injury was caused by gunfire and was half day old.

Dr. Sri Kishan P.W.7 Medical Officer Incharge P.H.C. Mohammadabad examined the injury of Smt. Sharda Devi and Munni Lal on 17.4.1980 at 4.30 P.M. and 6.30 P.M. vide Ex. Ka6 and Ex. Ka 7 respectively, and found following injuries on their persons.

Injuries of Smt. Sharda Devi (Ex Ka 6):-

1. Contused lacerated wound on the left frontal region of skull 6 cm x 3/10 cm x muscle deep with bluish red colour of contusion, simple, caused by blunt weapon.

2. Contusion of reddish colour on the back of left shoulder size 6 cm x 3 cm at supra scapular region. Simple, caused by some blunt weapon.

3. Contused lacerated wound on the back of middle 1/3rd left upper arm size 3-1/2 x 2-1/2 c.m. in oblique direction, fresh, blurred and swelling present, simple, caused by some blunt weapon.  

All injuries were about half day old.

Injuries of Munni Lal (Ex. Ka 7) :-

1. Six gun shot wounds on the front of lower ½ half of thigh and knee in the range 18 c.m. x 9 c.m. with each of 3/10 x 3/10 x facial deep, margins  inverted with blackening around each wound, foreign body peeling present in almost all the wounds, no wound of exit, simple, caused by some firearm, duration about one day. X-ray of lower half thigh was advised.

In the trial, the prosecution for establishing the guilt of the accused examined ten prosecution witnesses. Munni Lal P.W.1 (informant) and injured, Smt. Sharda Devi P.W.6 injured- widow of the deceased Ram Das Puttoo Lal P.W.9 (injured eye-witness) and Jagdish P.W.10 (eye-witness, named in F.I.R.) were witnesses of fact. The rest were doctors and police personnel including I.O.

The defence of the appellants under Section 313 Cr.P.C. was that of denial and false implication.

The trial court after scrutiny of evidence came to the conclusion that the prosecution had successfully established the guilt of the accused persons beyond any shadow of doubt. The conclusion was that the accused appellants along with unknown companions formed an unlawful assembly and in prosecution of its common object committed the murder of Ram Das and attempted to cause death Smt. Sharda Devi, Puttoo Lal and Munni Lal and consequently convicted them for the said offences and sentenced them as has been mentioned in the opening paragraph of this judgment. Aggrieved by their conviction, the appellants have approached this Court in the instant appeal.

We have heard Sri Vinay Saran, learned counsel appearing on behalf of the appellants no. 2 and 4 and as amicus curiae of appellant no. 3, and Sri Dinesh Tiwari, learned A.G.A. on behalf of the respondent State at  great length and have perused the evidence and material on record.

Sri Vinay Saran, counsel for the appellants submitted that the prosecution has not been able to establish guilt of the appellants and the statements of  Munni Lal P.W.1 (informant) and Smt. Sharda Devi P.W.6 are not reliable. He contended that their testimony is a bundle of contradictions and is unnatural and cannot be accepted on face value. He submitted that F.I.R. is ante timed and cooked up and motive is false. There is medical inconsistency vis-à-vis ocular testimony, which makes the prosecution case false. He submitted that Puttoo Lal P.W.9, who was an injured witness had turned hostile and so had Jagdish P.W.10 who was also said to be an eye-witness of the incident and was named in F.I.R. He contended that P.W.9 and P.W.10 are the cousins of informant and once they have not supported the prosecution case, it is hazardous to convict the accused on the testimony of related, interested and partisan witnesses Munni Lal and Smt. Sharda Devi. Synopsising his submissions, the learned counsel contended that the appeal of the appellants deserves to be allowed and the impugned judgment of conviction and sentence deserves to be set aside and the appellants are entitled for acquittal.

Per contra, the learned A.G.A. submitted that the trial court after careful scrutiny of evidence and the material on record, taking all the facts and circumstances into account, has found the appellants to be guilty of the charged offences. He submitted that the statements of Munni Lal injured informant and Smt. Sharda Devi injured are reliable and their presence on the spot cannot be doubted. In the end, he submitted that a well reasoned and well appreciated judgment of conviction recorded by the trial court deserves to be upheld.

Cogitaing over the rival submissions, and for re-verifying the findings recorded by the trial court an analysis of the prosecution evidence is uneschewable.

The prosecution, to bring home the guilt of the accused heralded the evidence by examining Munni Lal informant as P.W.1. He deposed that Ram Das deceased and Malkhan Singh witness (but not examined) are his real brothers and Sontara is his real sister. Smt. Sharda Devi, P.W.6 is the widow of the Ram Das. Puttoo Lal and Jagdish are his cousin brothers. He further deposed that all of them live in separate houses near each other with trees standing between abodes. He further deposed that all the appellants are known to him since much before the incident. The appellants are not related with each other nor they are friends. He further deposed that the appellant Bishun Dayal had disgraced his sister on which a scuffle ensued between him and Ram Das. Bishun Dayal had threatened to annihilate him. He further narrated that on the date of the incident they were all sleeping in their houses while Puttoo Lal was sleeping in the hutment in front of his house and there was a lamp, lighting. At 12.30 in the night Ram Das yelled out that he had been caught by the miscreants. Informant and Smt. Sharda Devi rushed towards him and saw Ram Das being caught by the accused who dragged him out of the house and shot at him causing injuries. The witnesses tried to save the deceased but they were also fired at and injured. The assailants also rushed to catch Puttoo Lal under the quilt but he pleaded that they were free to take anything but not to assault him. The accused replied that he had sided with his brother Ram Das and, therefore, avengedly he would also be done to death as they had not assembled to commit dacoity but to avenge enmity. The accused fired at him hitting on his neck. On hue and cry being raised, Rameshwar, Brindaban, Pyare, Jagdish and other witnesses rushed with lathis, dandas and torches. In the light of torches, the informant and witnesses recognize the present appellants by name and others by faces. After the incident the accused made there escape good towards north. He further deposed that after arranging two bullockcarts, after sun rise, he was bringing the injured to the police station but Ram Das breath his last in village Kaqauli near Ramtal. He got the F.I.R. scribed through Malkhan Singh and lodged it at the police station. On being cross-examined, he deposed that before the instant incident there was no inter se enmity between them. In the incident of his sister except Bishnu Dayal (deceased appellant) no other accused or anybody else was present. His sister is a widow. Bishun Dayal had told Ram Das that because he was a dissolute, he would not dine with him. The scuffle had taken place between two of them and he had not made any complaint regarding it. He further deposed that his sister had deserted her erstwhile husband Jagdish resident of Kalinger, P.S. Aliganj and embraced another man whose name he did not remember. Three or four days prior to the date of incident Bishun Dayal (deceased appellant) had denuded his and Ranjeet's field, who is his uncle. Even then he had not complained of it. He admitted that he did not say to the I.O. about the threat given by appellant Bishun Dayal. He further deposed that P.W 10 Jagdish was an accused in murder case of Village Pradhan Ali Ahmad and in that case appellant Ram Autar was a witness. On further being probed, he admitted various omissions and contradictions. According to him, incident night was a pitch-dark night and testified that he had jumped into the house of Ram Das after hearing his cry for help. He could not give any explanation as to why he was not sent for medical examination along with Smt. Sharda Devi and Puttoo Lal and was detained at the police station. He denied the suggestion that the F.I.R. was cooked up after consultation and deliberation. He stated that Smt. Sharda Devi P.W.6 was married in village Bighamau and subsequently she was married to the deceased after leaving her erstwhile husband and children. He denied the suggestion that the independent witnesses had refused to support him because of false case. He also denied the defence suggestion that none of the accused was present in the incident, which was, infact, a dacoity.

Sharda Devi P.W.6, in her deposition narrated practically the same story, as that of P.W.1 and stated that Bishun Dayal, Ram Avtar and Lal Singh were armed with countrymade pistols and Jagdish with gun and unknown assailants were armed with lathis and dandas. The accused jumped in her house, caught hold of her husband and dragged him outside. On shouts raised by her and Munni Lal informant, the accused fired at them and they received gunshot (pellet) injuries. She denied the suggestion that she had not witnessed the incident and was deposing under the influence of Munni Lal, the informant.

Puttoo Lal P.W.9 and Jagdish P.W. 11, the other two witnesses of fact totally denied having recognized any assailants. They were declared hostile.

From the evidence as is narrated above and analysis thereof in the light of the contentions raised by the counsel for the rival sides, it appears that the two witnesses of fact relied upon by the trial court cannot be believed as has been contended by the appellants counsel. It is not understandable as to why the three appellants Ram Autar  (absconding), Bishun Dayal  (since deceased) and Jagdish will form and unlawful assembly with others when at least two of them Ram Autar and Jagdish bore no enmity either with the informant or other witnesses. It is also not understandable as to why they will not conceal their identity by covering their faces at the time of the incident in the dark night for the purposes of not being identified. It is admitted to the informant that they are neither related nor friends. It is unimaginable that four persons unconcerned and unconnected will form an unlawful assembly without any common motive or interest. For them to come together for unanimity of avenging the scuffle between Bishun Dayal and deceased Ram Das is very improbable and absurd. It is pure imagination. The evidence of Munni Lal P.W.1 and that of Smt. Sharda Devi P.W.6 is apparently false and cannot be relied upon because it is inconsistent with postmortem report. As per evidence of these witnesses the deceased was shot at from a close range. P.W.6  specified that her husband was shot at inside the house as well as outside. Munni Lal and Smt. Sharda Devi both have stated in unequivocal terms that the deceased was shot at when he was caught by the accused and, therefore, the fire must have been made from a close range. However, the postmortem indicates otherwise. Absence of blackening and tattooing and dispersal of pellets indicates that he was fired upon from a distance. Thus the ocular statement does not find corroboration from medical evidence and indicate that the incident account is not true and correct. This fact further authenticates the argument of the counsel for the appellants that the testimony of witnesses cannot be relied upon. In our opinion, the trial court committed a grave error in relying upon the testimony of these two witnesses- Munni Lal P.W.1 and Smt. Sharda Devi P.W.6. These unreliable witnesses could not at all be believed.  

Moreover, the above discussion also leads to conclusion that the motive suggested by the prosecution for commission of the crime is not only improbable but also false. The motive is not very significant in case of ocular testimony but when heterogeneity of the accused is stiched by it for comity of purpose then it becomes relevant to peep into the evidence for judging the veracity and truthfulness of the witnesses regarding involvement of the accused in the crime. In the present case, the prosecution has miserably failed to conglomerate the accused for a common object of motive.

On another premise we find that Smt. Sharda Devi has not deposed the correct facts. Though according to P.W.1 in the F.I.R., she was shot at and received injury of pellets which fact Smt. Sharda Devi also stated in her statement in Court, but this fact is belied by the testimony of Dr. Sri Krishan P.W.7, who was unerringly clear that she did not receive any injury by gunshot and all her injuries were by blunt object. Further, there was a gap of two hours in medical examination of Smt. Sharda Devi (4.30 P.M.) and Munni Lal (6.30 P.M.) by the same doctor when they were brought to the hospital together by the same constable. According to the doctor, Munni Lal received injury later that Smt. Sharda Devi. These facts create a dent in the prosecution case and render the testimony of witnesses inconsistent with medical evidence. It is obvious that the eyewitnesses have spoken cooked up facts.  

The prosecution case further becomes shaky and unbelievable from the fact that the two injured Sharda Devi and Munni Lal were examined medically on 17.4.1980 but Puttoo Lal, who is said to have shot at by the assailants was got examined on 18.4.1980 at 8.30 A.M. The belated examination of Puttoo Lal without any explanation by the prosecution for the same indicates that probably he did not receive injury in the same incident as that of P.W.1 and P.W.6 as alleged by the prosecution. The submission of learned counsel for the defence that it was a case of dacoity is quilt probable looking to the ground situation surfacing from close scrutiny of the evidence brought on record. Further, the defence suggestion that it was a case of dacoity is probablised from this fact also that three different houses were raided by the assailants. Had the intention of assailants been to avenge the motive alleged by prosecution, then there was no occasion for them to raid three houses.

We veer around the conclusion that the prosecution has concealed the real manner of incident and has narrated the cooked up and manufactured story.

The judgment of the trial court indicates that it has committed grave error in relying upon the testimony of P.W.1 and P.W.6 and has ignored the vital piece of evidence brought forth through cross-examination. The reasoning adopted by it is not correct and sound.

Thus, we conclude that the prosecution utterly failed to bring home the guilt of the accused appellants and, therefore, they are entitled to acquittal.

Consequently, the appeal is allowed. The conviction and sentences imposed on the appellants by the trial court through impugned judgment are set aside and they are acquitted of the charges levelled against them.

The appeal on behalf of the accused-appellant Bishun Dayal has already abated because of his death.

The accused-appellants Jagdish and Lal Singh are reported to be in jail. They shall be set at liberty, if not wanted in any other connection.

Sri Vinay Saran, Advocate who argued the appeal as amices curiae for the appellant Ram Autar shall get Rs. 1000/- as his fee.

Certify the judgment to the lower court for reporting compliance within two months.          

Dt. 23.12.2005

Rk/

Reserved

Criminal Appeal No. 2692 of 1981

Bishun Dayal and others ...................Appellants.

Vs

State of U.P..................................Opposite Party.

Hon'ble M.C. Jain, J.

Hon'ble Vinod Prasad, J.

(Delivered by Hon'ble Vinod Prasad, J.)

Bishun Dayal, Jagdish, Ram Autar, all residents of Village Achrauda, Police Station Nababgaj, District Farrukhabad and Lal Singh, resident of Village Guthia, Police Station Nawabgaj, District Farrukhabad have challenged the correctness of their conviction and sentences recorded in Sessions Trial No. 352 of 1980, State Vs. Bishun Dayal and others by Second Additional Sessions Judge, District Farrukhabad. By the impugned judgment, the second Additional Sessions Judge has convicted and sentenced them under Section 147 I.P.C.  for one year R.I., under Section 307/149 I.P.C. for five years R.I. and under Section 302/149 I.P.C. for life imprisonment.

During the pendency of this appeal Bishun Dayal appellant no. 1 died and consequently his appeal abated on 12.12.2005. Under the same order Sri Vinay Saran, learned counsel representing appellant nos. 2 and 4 has been appointed as amicus curiae for Ram Autar appellant no.3 because he has been reported to be absconding.

The prosecution case as is perceptible from F.I.R. lodged by Munni Lal P.W.1 is that in between the night of 16/17.4.1980 he and his family members were sleeping in their house and his cousin brother Puttoo Lal was sleeping in hutment in front of the house. At about 12.00 in the night shrieks of Ram Das echoed that he had been caught by the miscreants. Informant and his sister-in-law (Bhabhi) rushed to save Ram Das but they were also fired at. The accused also started catching hold of Puttoo Lal who was under his quilt but he pleaded to take away whatever they wanted instead of assaulting him. The miscreants retorted that they had not come for committing dacoity but to avenge the enmity of siding with Ram Das and shot at in his neck. Amongst the accused, the present four appellants ( out of whom Bishun Dayal is dead) were named by the informant and other witnesses and rest were stated to have been seen very well. On hue and cry being raised, Brindaban son of Lochan Lohar, Pyare Lal son of Baldev Jatav, Jagdish son of Ranjeet Dhobi and other family members of the informant rushed at the spot armed with lathis, dandas and torches. The accused made their escape good towards north. The informant had enmity with Bishun Dayal as he had insulted his sister Sontara two or three days prior to the incident and an scuffle had ensued between them. Bishun Dayal had threatened him with life and motivated by that the above incident was committed by the appellants.

When the informant was bringing the injured to the police station on two bullock carts, Ram Das breathed his last near Ramtal in Village Kaqauli. Informant got the F.I.R. scribed by Malkhan Singh (not examined in the case) and lodged it at the police station Nababgaj at 12.05 noon after covering a distance of ten miles north. Head Constable, Sultan Singh, P.W.2, prepared the Chik Ex.Ka 2, G.D. entry Ex.Ka 3 and Chitthi Mazroobi of the three injured Puttoo Lal, Smt. Sharda Devi and Munni Lal (informant) and sent two of them Smt. Sharda Devi and Munni Lal for medical examination through Constable Raja Ram to Government Hospital, Nababgaj but held back Puttoo Lal. S.I. Babu Ram Yadav, P.W.8 was entrusted with the investigation, who conducted the inquest on the dead body outside the police station, prepared the inquest memo Ex. Ka 8. He took the underwear and Baniyan of the deceased in possession and prepared its recovery memo Ex Ka 9. After preparing other documents exhibited as Ex. Ka 10 to Ka 13 (Photo Lash, Challan Lash etc.) he handed over the dead body to Constables Shanti Swarup P.W.4 and Mahesh Singh (not examined) for postmortem at 1.15 P.M. Not finding the injured in the hospital, he proceeded for the spot accompanied by two constables and reached there at quarter to four in the afternoon where he recorded the statements of witnesses Brindaban, Pyare Lal etc and made recovery of empty cartridges and prepared its recovery memo Ex. Ka 14. He conducted the spot inspection at the pointing out of the brother of Malkhan Singh and informant and prepared the site plan Ex Ka 15. He also prepared the recovery memo of the lamp and torches of Brindaban, Jagdish, Rameshwar and Malkhan Singh Ex Ka 16 and Ex. Ka 17. The recovery memo of quilt of Puttoo Lal is Ex. Ka 18. He also recorded the statement of Puttoo Lal and on completion of investigation submitted a charge sheet against the four appellants on 24.5.1980 Ex. Ka 19. Unknown accused could not be traced by him.

 Dr. C.N. Bhalla P.W.3 conducted postmortem on the dead body of the deceased on 18.4.1980 at 5.00 P.M. brought by Constable Shanti Swarup and Mahesh Singh of Nababgaj police station. He found the age of the deceased to be 32 years and one and a half day had elapsed since his death. He found the following antemortem injuries sustained by the deceased:

1. Multiple gunshot wounds of entrance in an area of 9" x 6-1/2" present on the left side of abdomen.

2. Gun shot wound (slip shots) present on right thigh upper part and outside. Size 1/8" x 1/3" to 1/8"x1/2". The said wounds were caused by the friction of gun firing and had not penetrated.

In the opinion of this witness, the cause of death was bleeding and shock as a result of antemortem injuries. 12 small pellets were recovered from the abdomen. According to him antemortem injuries were sufficient in the ordinary course of nature to cause death.

Dr. A.K. Maini, P.W.5 examined the injuries of Puttoo Lal injured at District Hospital, Fatehgarh on 18.4.1980 at 8.30 A.M. and found following injury on his person:

1. A gunshot wound of entry 1-1/2" x 1" muscle deep on right side of neck. Cotton and cloth present in wound.

He advised X-ray. The injury was caused by gunfire and was half day old.

Dr. Sri Kishan P.W.7 Medical Officer Incharge P.H.C. Mohammadabad examined the injury of Smt. Sharda Devi and Munni Lal on 17.4.1980 at 4.30 P.M. and 6.30 P.M. vide Ex. Ka6 and Ex. Ka 7 respectively, and found following injuries on their persons.

Injuries of Smt. Sharda Devi (Ex Ka 6):-

1. Contused lacerated wound on the left frontal region of skull 6 cm x 3/10 cm x muscle deep with bluish red colour of contusion, simple, caused by blunt weapon.

2. Contusion of reddish colour on the back of left shoulder size 6 cm x 3 cm at supra scapular region. Simple, caused by some blunt weapon.

3. Contused lacerated wound on the back of middle 1/3rd left upper arm size 3-1/2 x 2-1/2 c.m. in oblique direction, fresh, blurred and swelling present, simple, caused by some blunt weapon.  

All injuries were about half day old.

Injuries of Munni Lal (Ex. Ka 7) :-

1. Six gun shot wounds on the front of lower ½ half of thigh and knee in the range 18 c.m. x 9 c.m. with each of 3/10 x 3/10 x facial deep, margins  inverted with blackening around each wound, foreign body peeling present in almost all the wounds, no wound of exit, simple, caused by some firearm, duration about one day. X-ray of lower half thigh was advised.

In the trial, the prosecution for establishing the guilt of the accused examined ten prosecution witnesses. Munni Lal P.W.1 (informant) and injured, Smt. Sharda Devi P.W.6 injured- widow of the deceased Ram Das Puttoo Lal P.W.9 (injured eye-witness) and Jagdish P.W.10 (eye-witness, named in F.I.R.) were witnesses of fact. The rest were doctors and police personnel including I.O.

The defence of the appellants under Section 313 Cr.P.C. was that of denial and false implication.

The trial court after scrutiny of evidence came to the conclusion that the prosecution had successfully established the guilt of the accused persons beyond any shadow of doubt. The conclusion was that the accused appellants along with unknown companions formed an unlawful assembly and in prosecution of its common object committed the murder of Ram Das and attempted to cause death Smt. Sharda Devi, Puttoo Lal and Munni Lal and consequently convicted them for the said offences and sentenced them as has been mentioned in the opening paragraph of this judgment. Aggrieved by their conviction, the appellants have approached this Court in the instant appeal.

We have heard Sri Vinay Saran, learned counsel appearing on behalf of the appellants no. 2 and 4 and as amicus curiae of appellant no. 3, and Sri Dinesh Tiwari, learned A.G.A. on behalf of the respondent State at  great length and have perused the evidence and material on record.

Sri Vinay Saran, counsel for the appellants submitted that the prosecution has not been able to establish guilt of the appellants and the statements of  Munni Lal P.W.1 (informant) and Smt. Sharda Devi P.W.6 are not reliable. He contended that their testimony is a bundle of contradictions and is unnatural and cannot be accepted on face value. He submitted that F.I.R. is ante timed and cooked up and motive is false. There is medical inconsistency vis-à-vis ocular testimony, which makes the prosecution case false. He submitted that Puttoo Lal P.W.9, who was an injured witness had turned hostile and so had Jagdish P.W.10 who was also said to be an eye-witness of the incident and was named in F.I.R. He contended that P.W.9 and P.W.10 are the cousins of informant and once they have not supported the prosecution case, it is hazardous to convict the accused on the testimony of related, interested and partisan witnesses Munni Lal and Smt. Sharda Devi. Synopsising his submissions, the learned counsel contended that the appeal of the appellants deserves to be allowed and the impugned judgment of conviction and sentence deserves to be set aside and the appellants are entitled for acquittal.

Per contra, the learned A.G.A. submitted that the trial court after careful scrutiny of evidence and the material on record, taking all the facts and circumstances into account, has found the appellants to be guilty of the charged offences. He submitted that the statements of Munni Lal injured informant and Smt. Sharda Devi injured are reliable and their presence on the spot cannot be doubted. In the end, he submitted that a well reasoned and well appreciated judgment of conviction recorded by the trial court deserves to be upheld.

Cogitaing over the rival submissions, and for re-verifying the findings recorded by the trial court an analysis of the prosecution evidence is uneschewable.

The prosecution, to bring home the guilt of the accused heralded the evidence by examining Munni Lal informant as P.W.1. He deposed that Ram Das deceased and Malkhan Singh witness (but not examined) are his real brothers and Sontara is his real sister. Smt. Sharda Devi, P.W.6 is the widow of the Ram Das. Puttoo Lal and Jagdish are his cousin brothers. He further deposed that all of them live in separate houses near each other with trees standing between abodes. He further deposed that all the appellants are known to him since much before the incident. The appellants are not related with each other nor they are friends. He further deposed that the appellant Bishun Dayal had disgraced his sister on which a scuffle ensued between him and Ram Das. Bishun Dayal had threatened to annihilate him. He further narrated that on the date of the incident they were all sleeping in their houses while Puttoo Lal was sleeping in the hutment in front of his house and there was a lamp, lighting. At 12.30 in the night Ram Das yelled out that he had been caught by the miscreants. Informant and Smt. Sharda Devi rushed towards him and saw Ram Das being caught by the accused who dragged him out of the house and shot at him causing injuries. The witnesses tried to save the deceased but they were also fired at and injured. The assailants also rushed to catch Puttoo Lal under the quilt but he pleaded that they were free to take anything but not to assault him. The accused replied that he had sided with his brother Ram Das and, therefore, avengedly he would also be done to death as they had not assembled to commit dacoity but to avenge enmity. The accused fired at him hitting on his neck. On hue and cry being raised, Rameshwar, Brindaban, Pyare, Jagdish and other witnesses rushed with lathis, dandas and torches. In the light of torches, the informant and witnesses recognize the present appellants by name and others by faces. After the incident the accused made there escape good towards north. He further deposed that after arranging two bullockcarts, after sun rise, he was bringing the injured to the police station but Ram Das breath his last in village Kaqauli near Ramtal. He got the F.I.R. scribed through Malkhan Singh and lodged it at the police station. On being cross-examined, he deposed that before the instant incident there was no inter se enmity between them. In the incident of his sister except Bishnu Dayal (deceased appellant) no other accused or anybody else was present. His sister is a widow. Bishun Dayal had told Ram Das that because he was a dissolute, he would not dine with him. The scuffle had taken place between two of them and he had not made any complaint regarding it. He further deposed that his sister had deserted her erstwhile husband Jagdish resident of Kalinger, P.S. Aliganj and embraced another man whose name he did not remember. Three or four days prior to the date of incident Bishun Dayal (deceased appellant) had denuded his and Ranjeet's field, who is his uncle. Even then he had not complained of it. He admitted that he did not say to the I.O. about the threat given by appellant Bishun Dayal. He further deposed that P.W 10 Jagdish was an accused in murder case of Village Pradhan Ali Ahmad and in that case appellant Ram Autar was a witness. On further being probed, he admitted various omissions and contradictions. According to him, incident night was a pitch-dark night and testified that he had jumped into the house of Ram Das after hearing his cry for help. He could not give any explanation as to why he was not sent for medical examination along with Smt. Sharda Devi and Puttoo Lal and was detained at the police station. He denied the suggestion that the F.I.R. was cooked up after consultation and deliberation. He stated that Smt. Sharda Devi P.W.6 was married in village Bighamau and subsequently she was married to the deceased after leaving her erstwhile husband and children. He denied the suggestion that the independent witnesses had refused to support him because of false case. He also denied the defence suggestion that none of the accused was present in the incident, which was, infact, a dacoity.

Sharda Devi P.W.6, in her deposition narrated practically the same story, as that of P.W.1 and stated that Bishun Dayal, Ram Avtar and Lal Singh were armed with countrymade pistols and Jagdish with gun and unknown assailants were armed with lathis and dandas. The accused jumped in her house, caught hold of her husband and dragged him outside. On shouts raised by her and Munni Lal informant, the accused fired at them and they received gunshot (pellet) injuries. She denied the suggestion that she had not witnessed the incident and was deposing under the influence of Munni Lal, the informant.

Puttoo Lal P.W.9 and Jagdish P.W. 11, the other two witnesses of fact totally denied having recognized any assailants. They were declared hostile.

From the evidence as is narrated above and analysis thereof in the light of the contentions raised by the counsel for the rival sides, it appears that the two witnesses of fact relied upon by the trial court cannot be believed as has been contended by the appellants counsel. It is not understandable as to why the three appellants Ram Autar  (absconding), Bishun Dayal  (since deceased) and Jagdish will form and unlawful assembly with others when at least two of them Ram Autar and Jagdish bore no enmity either with the informant or other witnesses. It is also not understandable as to why they will not conceal their identity by covering their faces at the time of the incident in the dark night for the purposes of not being identified. It is admitted to the informant that they are neither related nor friends. It is unimaginable that four persons unconcerned and unconnected will form an unlawful assembly without any common motive or interest. For them to come together for unanimity of avenging the scuffle between Bishun Dayal and deceased Ram Das is very improbable and absurd. It is pure imagination. The evidence of Munni Lal P.W.1 and that of Smt. Sharda Devi P.W.6 is apparently false and cannot be relied upon because it is inconsistent with postmortem report. As per evidence of these witnesses the deceased was shot at from a close range. P.W.6  specified that her husband was shot at inside the house as well as outside. Munni Lal and Smt. Sharda Devi both have stated in unequivocal terms that the deceased was shot at when he was caught by the accused and, therefore, the fire must have been made from a close range. However, the postmortem indicates otherwise. Absence of blackening and tattooing and dispersal of pellets indicates that he was fired upon from a distance. Thus the ocular statement does not find corroboration from medical evidence and indicate that the incident account is not true and correct. This fact further authenticates the argument of the counsel for the appellants that the testimony of witnesses cannot be relied upon. In our opinion, the trial court committed a grave error in relying upon the testimony of these two witnesses- Munni Lal P.W.1 and Smt. Sharda Devi P.W.6. These unreliable witnesses could not at all be believed.  

Moreover, the above discussion also leads to conclusion that the motive suggested by the prosecution for commission of the crime is not only improbable but also false. The motive is not very significant in case of ocular testimony but when heterogeneity of the accused is stiched by it for comity of purpose then it becomes relevant to peep into the evidence for judging the veracity and truthfulness of the witnesses regarding involvement of the accused in the crime. In the present case, the prosecution has miserably failed to conglomerate the accused for a common object of motive.

On another premise we find that Smt. Sharda Devi has not deposed the correct facts. Though according to P.W.1 in the F.I.R., she was shot at and received injury of pellets which fact Smt. Sharda Devi also stated in her statement in Court, but this fact is belied by the testimony of Dr. Sri Krishan P.W.7, who was unerringly clear that she did not receive any injury by gunshot and all her injuries were by blunt object. Further, there was a gap of two hours in medical examination of Smt. Sharda Devi (4.30 P.M.) and Munni Lal (6.30 P.M.) by the same doctor when they were brought to the hospital together by the same constable. According to the doctor, Munni Lal received injury later that Smt. Sharda Devi. These facts create a dent in the prosecution case and render the testimony of witnesses inconsistent with medical evidence. It is obvious that the eyewitnesses have spoken cooked up facts.  

The prosecution case further becomes shaky and unbelievable from the fact that the two injured Sharda Devi and Munni Lal were examined medically on 17.4.1980 but Puttoo Lal, who is said to have shot at by the assailants was got examined on 18.4.1980 at 8.30 A.M. The belated examination of Puttoo Lal without any explanation by the prosecution for the same indicates that probably he did not receive injury in the same incident as that of P.W.1 and P.W.6 as alleged by the prosecution. The submission of learned counsel for the defence that it was a case of dacoity is quilt probable looking to the ground situation surfacing from close scrutiny of the evidence brought on record. Further, the defence suggestion that it was a case of dacoity is probablised from this fact also that three different houses were raided by the assailants. Had the intention of assailants been to avenge the motive alleged by prosecution, then there was no occasion for them to raid three houses.

We veer around the conclusion that the prosecution has concealed the real manner of incident and has narrated the cooked up and manufactured story.

The judgment of the trial court indicates that it has committed grave error in relying upon the testimony of P.W.1 and P.W.6 and has ignored the vital piece of evidence brought forth through cross-examination. The reasoning adopted by it is not correct and sound.

Thus, we conclude that the prosecution utterly failed to bring home the guilt of the accused appellants and, therefore, they are entitled to acquittal.

Consequently, the appeal is allowed. The conviction and sentences imposed on the appellants by the trial court through impugned judgment are set aside and they are acquitted of the charges levelled against them.

The appeal on behalf of the accused-appellant Bishun Dayal has already abated because of his death.

The accused-appellants Jagdish and Lal Singh are reported to be in jail. They shall be set at liberty, if not wanted in any other connection.

Sri Vinay Saran, Advocate who argued the appeal as amices curiae for the appellant Ram Autar shall get Rs. 1000/- as his fee.

Certify the judgment to the lower court for reporting compliance within two months.          

Dt. 23.12.2005

Rk/

Reserved

Criminal Appeal No. 2692 of 1981

Bishun Dayal and others ...................Appellants.

Vs

State of U.P..................................Opposite Party.

Hon'ble M.C. Jain, J.

Hon'ble Vinod Prasad, J.

(Delivered by Hon'ble Vinod Prasad, J.)

Bishun Dayal, Jagdish, Ram Autar, all residents of Village Achrauda, Police Station Nababgaj, District Farrukhabad and Lal Singh, resident of Village Guthia, Police Station Nawabgaj, District Farrukhabad have challenged the correctness of their conviction and sentences recorded in Sessions Trial No. 352 of 1980, State Vs. Bishun Dayal and others by Second Additional Sessions Judge, District Farrukhabad. By the impugned judgment, the second Additional Sessions Judge has convicted and sentenced them under Section 147 I.P.C.  for one year R.I., under Section 307/149 I.P.C. for five years R.I. and under Section 302/149 I.P.C. for life imprisonment.

During the pendency of this appeal Bishun Dayal appellant no. 1 died and consequently his appeal abated on 12.12.2005. Under the same order Sri Vinay Saran, learned counsel representing appellant nos. 2 and 4 has been appointed as amicus curiae for Ram Autar appellant no.3 because he has been reported to be absconding.

The prosecution case as is perceptible from F.I.R. lodged by Munni Lal P.W.1 is that in between the night of 16/17.4.1980 he and his family members were sleeping in their house and his cousin brother Puttoo Lal was sleeping in hutment in front of the house. At about 12.00 in the night shrieks of Ram Das echoed that he had been caught by the miscreants. Informant and his sister-in-law (Bhabhi) rushed to save Ram Das but they were also fired at. The accused also started catching hold of Puttoo Lal who was under his quilt but he pleaded to take away whatever they wanted instead of assaulting him. The miscreants retorted that they had not come for committing dacoity but to avenge the enmity of siding with Ram Das and shot at in his neck. Amongst the accused, the present four appellants ( out of whom Bishun Dayal is dead) were named by the informant and other witnesses and rest were stated to have been seen very well. On hue and cry being raised, Brindaban son of Lochan Lohar, Pyare Lal son of Baldev Jatav, Jagdish son of Ranjeet Dhobi and other family members of the informant rushed at the spot armed with lathis, dandas and torches. The accused made their escape good towards north. The informant had enmity with Bishun Dayal as he had insulted his sister Sontara two or three days prior to the incident and an scuffle had ensued between them. Bishun Dayal had threatened him with life and motivated by that the above incident was committed by the appellants.

When the informant was bringing the injured to the police station on two bullock carts, Ram Das breathed his last near Ramtal in Village Kaqauli. Informant got the F.I.R. scribed by Malkhan Singh (not examined in the case) and lodged it at the police station Nababgaj at 12.05 noon after covering a distance of ten miles north. Head Constable, Sultan Singh, P.W.2, prepared the Chik Ex.Ka 2, G.D. entry Ex.Ka 3 and Chitthi Mazroobi of the three injured Puttoo Lal, Smt. Sharda Devi and Munni Lal (informant) and sent two of them Smt. Sharda Devi and Munni Lal for medical examination through Constable Raja Ram to Government Hospital, Nababgaj but held back Puttoo Lal. S.I. Babu Ram Yadav, P.W.8 was entrusted with the investigation, who conducted the inquest on the dead body outside the police station, prepared the inquest memo Ex. Ka 8. He took the underwear and Baniyan of the deceased in possession and prepared its recovery memo Ex Ka 9. After preparing other documents exhibited as Ex. Ka 10 to Ka 13 (Photo Lash, Challan Lash etc.) he handed over the dead body to Constables Shanti Swarup P.W.4 and Mahesh Singh (not examined) for postmortem at 1.15 P.M. Not finding the injured in the hospital, he proceeded for the spot accompanied by two constables and reached there at quarter to four in the afternoon where he recorded the statements of witnesses Brindaban, Pyare Lal etc and made recovery of empty cartridges and prepared its recovery memo Ex. Ka 14. He conducted the spot inspection at the pointing out of the brother of Malkhan Singh and informant and prepared the site plan Ex Ka 15. He also prepared the recovery memo of the lamp and torches of Brindaban, Jagdish, Rameshwar and Malkhan Singh Ex Ka 16 and Ex. Ka 17. The recovery memo of quilt of Puttoo Lal is Ex. Ka 18. He also recorded the statement of Puttoo Lal and on completion of investigation submitted a charge sheet against the four appellants on 24.5.1980 Ex. Ka 19. Unknown accused could not be traced by him.

 Dr. C.N. Bhalla P.W.3 conducted postmortem on the dead body of the deceased on 18.4.1980 at 5.00 P.M. brought by Constable Shanti Swarup and Mahesh Singh of Nababgaj police station. He found the age of the deceased to be 32 years and one and a half day had elapsed since his death. He found the following antemortem injuries sustained by the deceased:

1. Multiple gunshot wounds of entrance in an area of 9" x 6-1/2" present on the left side of abdomen.

2. Gun shot wound (slip shots) present on right thigh upper part and outside. Size 1/8" x 1/3" to 1/8"x1/2". The said wounds were caused by the friction of gun firing and had not penetrated.

In the opinion of this witness, the cause of death was bleeding and shock as a result of antemortem injuries. 12 small pellets were recovered from the abdomen. According to him antemortem injuries were sufficient in the ordinary course of nature to cause death.

Dr. A.K. Maini, P.W.5 examined the injuries of Puttoo Lal injured at District Hospital, Fatehgarh on 18.4.1980 at 8.30 A.M. and found following injury on his person:

1. A gunshot wound of entry 1-1/2" x 1" muscle deep on right side of neck. Cotton and cloth present in wound.

He advised X-ray. The injury was caused by gunfire and was half day old.

Dr. Sri Kishan P.W.7 Medical Officer Incharge P.H.C. Mohammadabad examined the injury of Smt. Sharda Devi and Munni Lal on 17.4.1980 at 4.30 P.M. and 6.30 P.M. vide Ex. Ka6 and Ex. Ka 7 respectively, and found following injuries on their persons.

Injuries of Smt. Sharda Devi (Ex Ka 6):-

1. Contused lacerated wound on the left frontal region of skull 6 cm x 3/10 cm x muscle deep with bluish red colour of contusion, simple, caused by blunt weapon.

2. Contusion of reddish colour on the back of left shoulder size 6 cm x 3 cm at supra scapular region. Simple, caused by some blunt weapon.

3. Contused lacerated wound on the back of middle 1/3rd left upper arm size 3-1/2 x 2-1/2 c.m. in oblique direction, fresh, blurred and swelling present, simple, caused by some blunt weapon.  

All injuries were about half day old.

Injuries of Munni Lal (Ex. Ka 7) :-

1. Six gun shot wounds on the front of lower ½ half of thigh and knee in the range 18 c.m. x 9 c.m. with each of 3/10 x 3/10 x facial deep, margins  inverted with blackening around each wound, foreign body peeling present in almost all the wounds, no wound of exit, simple, caused by some firearm, duration about one day. X-ray of lower half thigh was advised.

In the trial, the prosecution for establishing the guilt of the accused examined ten prosecution witnesses. Munni Lal P.W.1 (informant) and injured, Smt. Sharda Devi P.W.6 injured- widow of the deceased Ram Das Puttoo Lal P.W.9 (injured eye-witness) and Jagdish P.W.10 (eye-witness, named in F.I.R.) were witnesses of fact. The rest were doctors and police personnel including I.O.

The defence of the appellants under Section 313 Cr.P.C. was that of denial and false implication.

The trial court after scrutiny of evidence came to the conclusion that the prosecution had successfully established the guilt of the accused persons beyond any shadow of doubt. The conclusion was that the accused appellants along with unknown companions formed an unlawful assembly and in prosecution of its common object committed the murder of Ram Das and attempted to cause death Smt. Sharda Devi, Puttoo Lal and Munni Lal and consequently convicted them for the said offences and sentenced them as has been mentioned in the opening paragraph of this judgment. Aggrieved by their conviction, the appellants have approached this Court in the instant appeal.

We have heard Sri Vinay Saran, learned counsel appearing on behalf of the appellants no. 2 and 4 and as amicus curiae of appellant no. 3, and Sri Dinesh Tiwari, learned A.G.A. on behalf of the respondent State at  great length and have perused the evidence and material on record.

Sri Vinay Saran, counsel for the appellants submitted that the prosecution has not been able to establish guilt of the appellants and the statements of  Munni Lal P.W.1 (informant) and Smt. Sharda Devi P.W.6 are not reliable. He contended that their testimony is a bundle of contradictions and is unnatural and cannot be accepted on face value. He submitted that F.I.R. is ante timed and cooked up and motive is false. There is medical inconsistency vis-à-vis ocular testimony, which makes the prosecution case false. He submitted that Puttoo Lal P.W.9, who was an injured witness had turned hostile and so had Jagdish P.W.10 who was also said to be an eye-witness of the incident and was named in F.I.R. He contended that P.W.9 and P.W.10 are the cousins of informant and once they have not supported the prosecution case, it is hazardous to convict the accused on the testimony of related, interested and partisan witnesses Munni Lal and Smt. Sharda Devi. Synopsising his submissions, the learned counsel contended that the appeal of the appellants deserves to be allowed and the impugned judgment of conviction and sentence deserves to be set aside and the appellants are entitled for acquittal.

Per contra, the learned A.G.A. submitted that the trial court after careful scrutiny of evidence and the material on record, taking all the facts and circumstances into account, has found the appellants to be guilty of the charged offences. He submitted that the statements of Munni Lal injured informant and Smt. Sharda Devi injured are reliable and their presence on the spot cannot be doubted. In the end, he submitted that a well reasoned and well appreciated judgment of conviction recorded by the trial court deserves to be upheld.

Cogitaing over the rival submissions, and for re-verifying the findings recorded by the trial court an analysis of the prosecution evidence is uneschewable.

The prosecution, to bring home the guilt of the accused heralded the evidence by examining Munni Lal informant as P.W.1. He deposed that Ram Das deceased and Malkhan Singh witness (but not examined) are his real brothers and Sontara is his real sister. Smt. Sharda Devi, P.W.6 is the widow of the Ram Das. Puttoo Lal and Jagdish are his cousin brothers. He further deposed that all of them live in separate houses near each other with trees standing between abodes. He further deposed that all the appellants are known to him since much before the incident. The appellants are not related with each other nor they are friends. He further deposed that the appellant Bishun Dayal had disgraced his sister on which a scuffle ensued between him and Ram Das. Bishun Dayal had threatened to annihilate him. He further narrated that on the date of the incident they were all sleeping in their houses while Puttoo Lal was sleeping in the hutment in front of his house and there was a lamp, lighting. At 12.30 in the night Ram Das yelled out that he had been caught by the miscreants. Informant and Smt. Sharda Devi rushed towards him and saw Ram Das being caught by the accused who dragged him out of the house and shot at him causing injuries. The witnesses tried to save the deceased but they were also fired at and injured. The assailants also rushed to catch Puttoo Lal under the quilt but he pleaded that they were free to take anything but not to assault him. The accused replied that he had sided with his brother Ram Das and, therefore, avengedly he would also be done to death as they had not assembled to commit dacoity but to avenge enmity. The accused fired at him hitting on his neck. On hue and cry being raised, Rameshwar, Brindaban, Pyare, Jagdish and other witnesses rushed with lathis, dandas and torches. In the light of torches, the informant and witnesses recognize the present appellants by name and others by faces. After the incident the accused made there escape good towards north. He further deposed that after arranging two bullockcarts, after sun rise, he was bringing the injured to the police station but Ram Das breath his last in village Kaqauli near Ramtal. He got the F.I.R. scribed through Malkhan Singh and lodged it at the police station. On being cross-examined, he deposed that before the instant incident there was no inter se enmity between them. In the incident of his sister except Bishnu Dayal (deceased appellant) no other accused or anybody else was present. His sister is a widow. Bishun Dayal had told Ram Das that because he was a dissolute, he would not dine with him. The scuffle had taken place between two of them and he had not made any complaint regarding it. He further deposed that his sister had deserted her erstwhile husband Jagdish resident of Kalinger, P.S. Aliganj and embraced another man whose name he did not remember. Three or four days prior to the date of incident Bishun Dayal (deceased appellant) had denuded his and Ranjeet's field, who is his uncle. Even then he had not complained of it. He admitted that he did not say to the I.O. about the threat given by appellant Bishun Dayal. He further deposed that P.W 10 Jagdish was an accused in murder case of Village Pradhan Ali Ahmad and in that case appellant Ram Autar was a witness. On further being probed, he admitted various omissions and contradictions. According to him, incident night was a pitch-dark night and testified that he had jumped into the house of Ram Das after hearing his cry for help. He could not give any explanation as to why he was not sent for medical examination along with Smt. Sharda Devi and Puttoo Lal and was detained at the police station. He denied the suggestion that the F.I.R. was cooked up after consultation and deliberation. He stated that Smt. Sharda Devi P.W.6 was married in village Bighamau and subsequently she was married to the deceased after leaving her erstwhile husband and children. He denied the suggestion that the independent witnesses had refused to support him because of false case. He also denied the defence suggestion that none of the accused was present in the incident, which was, infact, a dacoity.

Sharda Devi P.W.6, in her deposition narrated practically the same story, as that of P.W.1 and stated that Bishun Dayal, Ram Avtar and Lal Singh were armed with countrymade pistols and Jagdish with gun and unknown assailants were armed with lathis and dandas. The accused jumped in her house, caught hold of her husband and dragged him outside. On shouts raised by her and Munni Lal informant, the accused fired at them and they received gunshot (pellet) injuries. She denied the suggestion that she had not witnessed the incident and was deposing under the influence of Munni Lal, the informant.

Puttoo Lal P.W.9 and Jagdish P.W. 11, the other two witnesses of fact totally denied having recognized any assailants. They were declared hostile.

From the evidence as is narrated above and analysis thereof in the light of the contentions raised by the counsel for the rival sides, it appears that the two witnesses of fact relied upon by the trial court cannot be believed as has been contended by the appellants counsel. It is not understandable as to why the three appellants Ram Autar  (absconding), Bishun Dayal  (since deceased) and Jagdish will form and unlawful assembly with others when at least two of them Ram Autar and Jagdish bore no enmity either with the informant or other witnesses. It is also not understandable as to why they will not conceal their identity by covering their faces at the time of the incident in the dark night for the purposes of not being identified. It is admitted to the informant that they are neither related nor friends. It is unimaginable that four persons unconcerned and unconnected will form an unlawful assembly without any common motive or interest. For them to come together for unanimity of avenging the scuffle between Bishun Dayal and deceased Ram Das is very improbable and absurd. It is pure imagination. The evidence of Munni Lal P.W.1 and that of Smt. Sharda Devi P.W.6 is apparently false and cannot be relied upon because it is inconsistent with postmortem report. As per evidence of these witnesses the deceased was shot at from a close range. P.W.6  specified that her husband was shot at inside the house as well as outside. Munni Lal and Smt. Sharda Devi both have stated in unequivocal terms that the deceased was shot at when he was caught by the accused and, therefore, the fire must have been made from a close range. However, the postmortem indicates otherwise. Absence of blackening and tattooing and dispersal of pellets indicates that he was fired upon from a distance. Thus the ocular statement does not find corroboration from medical evidence and indicate that the incident account is not true and correct. This fact further authenticates the argument of the counsel for the appellants that the testimony of witnesses cannot be relied upon. In our opinion, the trial court committed a grave error in relying upon the testimony of these two witnesses- Munni Lal P.W.1 and Smt. Sharda Devi P.W.6. These unreliable witnesses could not at all be believed.  

Moreover, the above discussion also leads to conclusion that the motive suggested by the prosecution for commission of the crime is not only improbable but also false. The motive is not very significant in case of ocular testimony but when heterogeneity of the accused is stiched by it for comity of purpose then it becomes relevant to peep into the evidence for judging the veracity and truthfulness of the witnesses regarding involvement of the accused in the crime. In the present case, the prosecution has miserably failed to conglomerate the accused for a common object of motive.

On another premise we find that Smt. Sharda Devi has not deposed the correct facts. Though according to P.W.1 in the F.I.R., she was shot at and received injury of pellets which fact Smt. Sharda Devi also stated in her statement in Court, but this fact is belied by the testimony of Dr. Sri Krishan P.W.7, who was unerringly clear that she did not receive any injury by gunshot and all her injuries were by blunt object. Further, there was a gap of two hours in medical examination of Smt. Sharda Devi (4.30 P.M.) and Munni Lal (6.30 P.M.) by the same doctor when they were brought to the hospital together by the same constable. According to the doctor, Munni Lal received injury later that Smt. Sharda Devi. These facts create a dent in the prosecution case and render the testimony of witnesses inconsistent with medical evidence. It is obvious that the eyewitnesses have spoken cooked up facts.  

The prosecution case further becomes shaky and unbelievable from the fact that the two injured Sharda Devi and Munni Lal were examined medically on 17.4.1980 but Puttoo Lal, who is said to have shot at by the assailants was got examined on 18.4.1980 at 8.30 A.M. The belated examination of Puttoo Lal without any explanation by the prosecution for the same indicates that probably he did not receive injury in the same incident as that of P.W.1 and P.W.6 as alleged by the prosecution. The submission of learned counsel for the defence that it was a case of dacoity is quilt probable looking to the ground situation surfacing from close scrutiny of the evidence brought on record. Further, the defence suggestion that it was a case of dacoity is probablised from this fact also that three different houses were raided by the assailants. Had the intention of assailants been to avenge the motive alleged by prosecution, then there was no occasion for them to raid three houses.

We veer around the conclusion that the prosecution has concealed the real manner of incident and has narrated the cooked up and manufactured story.

The judgment of the trial court indicates that it has committed grave error in relying upon the testimony of P.W.1 and P.W.6 and has ignored the vital piece of evidence brought forth through cross-examination. The reasoning adopted by it is not correct and sound.

Thus, we conclude that the prosecution utterly failed to bring home the guilt of the accused appellants and, therefore, they are entitled to acquittal.

Consequently, the appeal is allowed. The conviction and sentences imposed on the appellants by the trial court through impugned judgment are set aside and they are acquitted of the charges levelled against them.

The appeal on behalf of the accused-appellant Bishun Dayal has already abated because of his death.

The accused-appellants Jagdish and Lal Singh are reported to be in jail. They shall be set at liberty, if not wanted in any other connection.

Sri Vinay Saran, Advocate who argued the appeal as amices curiae for the appellant Ram Autar shall get Rs. 1000/- as his fee.

Certify the judgment to the lower court for reporting compliance within two months.          

Dt. 23.12.2005

Rk/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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