B.N. Katju, Ag. C.J.
1. Achhaibar Pandey has filed Criminal Appeal No. 1138 of 1979 against the judgment of the IV Additional Sessions Judge, Deoria dated 29-2-1979 passed in Sessions Trial No. 12 of 1976 convicting him under Sections 302 and 307, I.P.C. and sentenceing him to life imprisonment and five years rigorous imprisonment respectively. The State of U. P. has filed Government Appeal No. 2200 of 1979 against the acquittal of Vindhyachal Pandey, Janardan Pandey, Biten Misra, Gulab Misra, Bhardul Misra, Hasani Ram, Komal Prasad, Kashi, Chhatthu, Munesar and Achhaibar Pandey under Sections 302/149. 307/149, 148 and 147, I.P.C. by the learned IV Additional Sessions Judge in the aforesaid case.
2. Achhaibar Pandey and Janardan Pandey accused are the sons of Vindhyachal Pandey accused. Gulab Misra, Biten Misra and Bhardul Misra accused are the sons of Jagdish Misra. Komal Prasad and Munesar accused are the sons of Sambharu. All the accused are residents of village Beldar Pandit. Prem Chandra Pandey (PW 1) is the son of Prabhu Dayal (PW 2). Ram Dayal deceased was the brother of Prabhu Dayal (PW2). Achhaibar Pandey, Vindhyachal Pandey and Janardan Pandey accused are the collaterals of Ram Dayal deceased, Prabhu Dayal (PW2) and Prem Chandra Pandey (PW 1) and lived in different portions of the same house in village Beldar Pandit.
3. The case of the prosecution is that on 30-11-1973 Achhaibar Pandey accused forcibly constructed a wall in the court-yard of the joint house. Prior to the occurrence one bracelet and one pair of kangan belonging to Achhaibar Pandey accused were pawned by Prem Chandra Pandey (PW 1) with Jagan-nath Goldsmith (PW 6) of village Bhatpar for Rs. 625/- at the instance of Achhaibar, Pandey accused and the said amount was given by Prem Chandra Pandey (PW 1) to Achhaibar Pandey accused, the documents relating to that transaction are Exts. Ka-1 and Ka-2. A suit under Section 229-B of U. P. Zamindari Abolition and Land Reforms Act was filed prior to the occurrence against Prabhu Dayal (PW2) by Vindhyachal Pandey accused. Ram Dayal deceased was also a co-plaintiff of Vindhyachal Pandey accused. That suit was decreed on the basis of a compromise. Thereafter Vindhyachal Pandey accused filed an application for setting aside the decree before the Sub-Divisional Magistrate, Salempur in which it was stated that a fraud had been practised by Prabhu Dayal (PW 2) and Ram Dayal deceased as he had not filed the aforesaid suit. Time was granted to Ram Dayal deceased to file objection and 18-12-1973 was fixed for filing the objection. The objection was, however, filed by Prabhu Dayal (PW2) prior to the occurrence. The aforesaid proceedings were pending at the time of the occurrence. On 4-12-1973 at about 5.15p.m. while Prem Chandra Pandey (PW1), Prabhu Dayal (PW2) and Ram Dayal deceased were sitting on a cot in the verandah of their house along with Praduman Tewari (PW 3) and Ram Chandra Pandey and talking to each other, Achhaibar Pandey accused armed with a gun, Biten Misra accused armed with a pistol and the remaining accused armed with lathis came there and Achhaibar Pandey accused asked Prem Chandra Pandey (PW 1) where the ornaments which had been given for being pawned were. When Prem Chandra Pandey (PW 1) replied that they were with Jagan Nath Goldsmith (PW6), Achhaibar Pandey accused abused him and told him that he had been informed by Jagan Nath Goldsmith (PW 6) that they had been taken away by him. When Prem Chandra Pandey (PW 1) said that he had not brought them Achhaibar Pandey accused fired at Ram Dayal Pandey deceased with his gun at the instigation of Vindhyachal Pandey accused. The deceased received gun shot injuries and ran towards the verandah of the house. He was thereafter assaulted by Bhardul Misra and Komal Prasad accused with lathis as a result of which he fell down and died on the spot. Achhaibar Pandey accused thereafter fired thrice at Prabhu Dayal (PW 2) as a result of which he also received gun shot injuries. He was also assaulted by Biten Misra accused with lathis All the accused thereafter ran away.
4., The first information report was lodged by Pram Chandra Pandey (PW 1) at Police Station, Khampar at 7.30 p.m. on the same day (4-12-1973), the distance of the Police Station from the place of occurrence being three miles.
5. The injuries of Prabhu Dayal (PW2) were examined by Dr. Gyanendra Singh (PW4) at 8.10 p.m. on the same day (4-12-1973) and the undermentioned injuries were found on his person :
1. Firearm wound 4 1/2' x 2 1/2' x muscle deep 2' below the umblicus on the left side of abdomen. No scorching, no tattooing, margins inverted and lacerated.
2. Multiple firearm wounds on front of chest in area of 7' x 5' on chest 19 in number each measuring 1/10' x 1./10', circular inverted margin, no charring and tattooing.
3. Multiple firearm wounds in area of 8' x 3 1/2' on outer aspect of right side chest varying size 1/4' x 1/4' up to 1/2' x 1/2' inverted margins, scorching of skin round each wound to extend of 1/5'.
4. Firearm wound 4' x 3 1/2' muscle deep on inner aspect upper and middle part of the left forearm, no scorching, no tattooing.
5. Firearm wound 2' x 1' muscle deep on back and lower part of forearm, no scorching, no tattooing, inverted margin.
6. Multiple gun shot wound in back and middle part right arm in area 4' x 1' each measuring 1/4' x 1/4' inverted margin scorching present round all the wound to an extent of 1/5'.
7. Abrasion 2 in number 1/2' in a part 1' x 1/10' in front and lower part of right forearm.
6. The post-mortem examination was conducted by Dr. R. L. Ahuja (PW 13) on 5-12-1973 at 12 noon and the undermentioned antemortem external injuries were found on the body of the deceased :
1. Abraded contusion 1' x 1/2' right side forehead above the eye brow.
2. Abraded contusion 1/2' x 3/4' x 1/2' away to the right of injury No. 1.
3. Abraded contusion 1/2' x 1/2' x 1' below the right eye.
4. Gun shot wound 5 in number placed over the right side chest near the epigastric region 3 1/2' below the nipple and in five to six O'clock direction in an area of 3' x 3'. Four wounds are circular with tattooed margins, margins are inverted and lacerated 0.2' in diameter. One in oval in shape placed in between as shown in the figure which measures about 2' x '. Wound of inlet.
5. Gun shot wounds 5 in number with everted margins, lacerated with pieces of bone placed on the lower back 0.2' in diameter each. One shot recovered from the soft tissues of the right kidney. Wound of outlet.
6. On internal examination, the right pleura and the right kidney were found to be torn.
7. In the opinion of Dr. R. L. Ahuja (PW 13) the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause death.
8. The prosecution examined four eye witnesses, namely, Prem Chandra (PW 1), Prabhu Dayal (PW 2), Praduman Tewari (PW 3) and Chhedi Lal (PW 5).
9. All the accused pleaded not guilty and stated that they were implicated falsely due to enmity. Achhaibar Pandey accused also pleaded alibi.
10. Two witnesses were examined in defence, namely, Ram Kawal Singh (DW 1) and Dhnesh Prasad (DW 2).
11. The trial court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of Achhaibar Pandey accused and convicted and sentenced him as mentioned earlier. The remaining accused were, however, acquitted.
12. Prem Chandra Pandey (PW 1) narrated the prosecution case as mentioned earlier. It was stated by him that Ram Dayal deceased and Prabhu Dayal (PW 2) were fired at by Achhaibar Pandey accused by his gun at. the time of the incident. In order to determine whether the injuries found on the body of Ram Dayal deceased and on the person of Prabhu Dayal (PW 2) had been caused by one weapon, we considered it necessary to examine the Ballistic Expert O. P. Mani Tripathi. He deposed before us that in view of the penetration caused by the pellets the gun shot injuries found on the body of Ram Dayal deceased had been caused by a factory made gun whereas the ,gun shot injuries found on the person of Prabhu Dayal (PW 2) had been caused by a country made pistol. Nothing has been brought out in his cross-examination to shake his credit. In our opinion his evidence is reliable and establishes that the injuries found on the body of Ram Dayal deceased and Prabhu Dayal (PW2) were not caused by the same gun. The evidence of Prem Chandra Pandey (PW 1) that Achhaibar Pandey accused had fired at Ram Dayal deceased and Prabhu Dayal (PW 2) with his gun at the time of the incident cannot, therefore, be accepted. It was stated by him in the first information report that Ram Dayal deceased had been assaulted by all the accused who were armed with lathis. This also appears to be in conflict with the medical evidence as only three abraded contusions were found on the body of Ram Dayal deceased which according to Dr. R. L. Ahuja (PW 13) could have been caused by a fall. His statement in the trial Court that the deceased had been assaulted by Bhardul Misra and Komal Prasad accused with lathis cannot be accepted as this was stated by him for the first time in the trial court. In the trial Court it was stated by him that Biten Misra accused was armed with lathi which is in conflict with the first information report as it was mentioned therein that Biten Misra accused was armed with a Katta. Considering the fact that the main grievance of Acchaibar Pandey accused was with him as according to his statement Achhaibar Pandey accused had told him that he had taken away his ornaments from the Goldsmith one would have expected that he would have been the main target of the assault if he had been present at the time of the incident. Considering the fact that no injury was received by him his presence at the time of the incident was doubtful. He is obviously not independent as he is the nephew of Ram Dayal deceased and the son of Prabhu Dayal (PW 2). In these circumstances his evidence regarding the participation of the accused at the time of the incident cannot be implicitly relied upon.
13. Prabhu Dayal (PW2) corroborated the evidence of Prem Chandra Pandey (PW 1) regarding the incident. His statement that both he and Ram Dayal deceased had been fired at by Achhaibar Pandey accused with his gun at the time of the incident cannot be accepted in view of the statement of O. P. Mani Tripathi the Ballistic Expert. His statement that all the accused took part in the incident is contradicted by his earlier statement in which he has stated that only four of the accused namely, Achhaibar Pandey, Janardan Pandey, Biten Misra and Vindhyachal Pandey accused had taken part in the incident. It was stated by him in the trial Court that the incident took place at about 5.15 p.m. Whereas in his earlier statement he had stated that the incident had taken place at about 6 p.m. It may be mentioned that on 4th of December, 1973 sun set was at about 5.15 p.m. It would, therefore, have become dark at about 6 p.m. In the trial Court it was stated by him that Biten Misra accused was armed with a country made pistol but in his statement under Section 161, Cr. P. C. it was stated that he was armed with a lathi. He is also not independent as he is the brother of Ram Dayal deceased. In these circumstances his evidence regarding the participation of the accused at the time of the incident cannot be implicitly relied upon.
14. Pradhuman Tewari (PW 3) also corroborated the evidence of Prem Chandra Pandey (PW 1) regarding the incident. His evidence that Achhaibar Pandey accused fired at Ram Dayal deceased and Prabhu Dayal (PW 2) cannot be accepted in view of the statement of O. P. Mani Tripathi the Ballistic Expert. He is a resident of village Kuriya ehich is at a distance of about four or five miles from the place of occurrence and it was stated by him that his statement was recorded by the Investigating Officer about five months after the occurrence. He is also not independent as he is the nephew of Prabhu Dayal (PW 2). In these circumstances his evidence regarding the participation of the accused in the incident cannot be implicitly relied upon.
15. The result, therefore, is that the prosecution has failed to establish the guilt of the accused.
16. Criminal Appeal No. 1138 of 1979 is accordingly allowed and the conviction and sentence of Achhaibar Pandey accused are set aside.
17. Government Appeal No. 2200 of 1979. is dismissed.
18. All the accused are on bail. They need not surrender. Their bail bonds are discharged.