Full Judgment
1. These two appeals arise out of a common judgment dated 7.3.1989 passed by the Additional Sessions Judge, Fatehpur in Sessions Trial No. 7 of 1988. Criminal Appeal No. 570 of 1989 is preferred by accused Ram Kripal, Rajendra, Surendra, Sheo Bhushan and Man Singh and Criminal Appeal No. 568 of 1989 by accused Ram Autar, Devi Shankar and Lakhan. One accused namely Omkar alias Buddhi died during trial and case stood abated on 21.9.1988.
2. The incident is alleged to have taken place on 15.5.1985 at Thariaon Ashothar road near village Semra at 4.30 P.M. F.I.R. was lodged on 15.5.1985 at 6.30 P.M. at Police Station Asothar by PW-1 Deshraj, real brother of deceased Ramraj. Two persons namely Sheo Pyare and Ramraj have died in the incident. Ram Autar, Lakhan and Surendra are alleged to be armed with DBBL gun. Devi Shankar and Rajendra are alleged to be armed with hand grenades and rest of the accused Ram Kripal, Sheo Bhushan, Man Singh and Omkar alias Buddhi, who died during continuation of the trial, are alleged to be armed with Katta. All the accused have been awarded life imprisonment under Sections 302, 149 I.P.C. Five years R.I. under Sections 307, 149 I.P.C., 7 years R.I. under Sections 395/397 I.P.C. and 2 years R.I. under Section 148 I.P.C. All the sentences are directed to run concurrently.
3. The prosecution has examined six witnesses. Deshraj PW-1 is the first informant. Krishna Pal PW-2 is the injured witness. Dr. Swatantra Singh PW-3 who performed autopsy of both the deceased. Pitamber PW-4 is another eye witness who was declared hostile. S.O. Mansoor Ahmad Kazi PW-5 is the Investigating Officer and Head Constable Banshi Dhar Mishra PW-6 who proved the chik as he was posted at the concerned police station on the date of incident.
4. A written report dictated by Deshraj to one Surajbhan Singh was handed over to the police station Asothar against all the nine accused at 6.30 P.M. on the date of incident. The distance of police station from the place of occurrence as noted in the chik F.I.R. Ex. Ka-25 and G.D. Ex. Ka-26 is 8 kilometres.
5. The prosecution story as narrated in the F.I.R. is that the first informant, his brother Ramraj Singh, Krishna Pal son of Buddhu, Sheo Pyare son of Bhuri, Pitamber son of Nanku, Manbodhan son of Buddhu had gone to Barat of Mithai Lal on 14.5.1985 in village Shiv Dutt Ka Purwa, Police Station Khaga. While returning back from Barat of Mithai Lal, they were on a truck. As soon as they arrived in front their village at about 4.30 P.M., they alighted from a truck. The accused mentioned aforesaid armed with DBBL gun, hand grenades and Katta attacked them which resulted in the instant death of Sheo Pyare and grievous injury to Ramraj and PW-2 Krishna Pal. The motive attributed for murder is some previous enmity between the parties. The two sets of accused belong to different villages, one set consisting of three accused belong to village Tikar namely Ram Autar, Devi Shanker and Lakhan and other set of accused six in number belong to village Imadpur. Different motives have been alleged for both sets of accused. Regarding Ram Autar and two others, the motive attributed is that prior to the incident, there was murder of Basdeo of village Tikar, due to which there existed animosity between them. This Basdeo is the father of accused Lakhan and real brother of Ram Autar. Deshraj and five others were accused in the murder case of Basdeo. They were convicted by the Sessions Court but subsequently acquitted by the High Court. It is also alleged that there was a dispute regarding landed property of 10 bighas of village Imadpur between Shiv Mangal, Samdhi of the complainant Deshraj and Shatrughan son-in-law of accused Ram Kripal and others. Thus the existence of prior enmity in respect of landed property is also proved between complainant and accused persons. This was motive for the other six accused to have participated in the crime. As soon as the first informant and his associates got down from the truck, firing was resorted by the accused with their respective fire arms. The first informant and his party members tried to hide themselves and avoid injuries. However, Ramraj Singh, Krishna Pal Singh and Sheo Pyare fell down on the road after receiving injuries of fire arms and hand grenades. The accused persons are further alleged that SBBL gun and belt of cartridges of Sheo Pyare and also DBBL gun of Krishna Pal with cartridges were taken away before they made good their escape. Sheo Pyare died instantaneously and Ramraj and Krishna Pal were injured. After the F.I.R. was registered and two injured were sent for medical examination, the Investigating Officer proceeded to the place of occurrence and also tried to search for the accused persons. Inquest of deceased Sheo Pyare was prepared next morning and dead body was sent to the district mortuary. Site plan of the occurrence was also prepared. Blood stained and simple earth was recovered from the place of occurrence and recovery memo was prepared. He also collected the pellets of hand grenades and one plastic shoe regarding which recovery memo was prepared. The Investigating Officer received information that injured Ramraj has also scummed to his injuries, therefore, he came to the hospital and prepared inquest of the deceased Ramraj and sent the dead body to the district mortuary for autopsy.
6. Post mortem on the bodies of Ramraj and Sheo Pyare were performed on 17.5.1985 by Dr. Swatantra Singh, Medical Officer, District Hospital, Fatehpur. Following injuries were found by the doctor on their bodies.
7. Post mortem on the body of deceased Ramraj
1.Lacerated wound of blast injury middle of parietal region of skull 3'' x 2'' x brain cavity deep. Brain matter was coming out. Blackening and tattooing was present with fracture of occipital bone, frontal bones and both parietal bones.
8. Post mortem on the body of Sheo Pyare
1.Fire arm wound of entry left side back of neck 1'' x 1'' x muscle deep. Margins inverted. Blackening and tattooing was present. Direction was from back to front.
2.Fire arm wound of exit 2 ½ '' x 1 ½ '' x muscle deep. Margins everted left side front of neck 2'' from injury no. 1 and communicating with injury no. 1. No blackening and tattooing was present.
3.Fire arm wound of entry right opening of exit ear ½'' x ½'' x brain cavity deep. Margins inverted. Blackening and tattooing was present with fracture of right temporal bow, right upper and lower jaw. Direction was from right to left and forward.
4.Fire arm wound of exit just left to nose 1'' x 1'' x brain cavity deep. Margins everted. No blackening and tattooing was present communicating with injury no. 3.
9. Injured Krishna Pal was medically examined at District Hospital on 15.5.1985 by Dr. V.K. Tripathi. His injuries are detailed herein below:-
1.II degree burn in area of 25 cm x 16 cm on the upper part of left scapular region, top of left shoulder, left side neck, auricular and mastoid ankle and outer part of left cheek. It is associated with multiple abrasions in area of 8 cm x 6 cm on the top of left shoulder adjacent to neck where there are multiple pin point lacerated wounds whose depth kept under observation. Size of abrasions varies from 4 cm to ½ cm to ½ cm x ½ cm in the burnt area. Vessels present at places, skin peeled off at places. There is blackening and tattooing present. There is singing of hairs on the left side occipital and mastoid region of head. Smell of remarkable gun powder present. Oozing of blood present. There is marked swelling in affected area. Advised X-ray. GC low, pulse 110/mt. Conscious but drowsy.
10. Injury kept under observation. Advised X-ray. Caused by some explosive object. Duration fresh.
11. The accused persons are said to have surrendered in the court. The Investigating Officer submitted charge sheet against all the nine accused persons. After committal, the accused were summoned by the court and charges under Sections 148, 302/149, 307/149, 395/397 and 404 I.P.C. were framed on 17.3.1988. The accused pleaded not guilty and claimed to be tried.
12. Sri Kamal Krishna Senior Advocate assisted by Sri Birendra Singh Advocate appeared and argued on behalf of the accused. He has given a pedigree at the very outset of his submission. According to the said pedigree, Ram Charan had three sons. One Basdeo, who was murdered and PW-1 Deshraj as well as deceased Ramraj were convicted by the Sessions Judge in his murder. Ram Autar and Devi Shanker are two other sons of Ram Charan. Lakhan accused is son of Basdeo. So far accused Ram Kripal had three sons Rajendra, Surendra and Buddhi alias Omkar and all of them including father Ram Kripal are accused in the instant appeal. He has given out the reason for false implication of all the accused. Basdeo was murdered and PW-1 Deshraj and deceased Ramraj were accused. This is the motive so far it relating to first set of accused. The other set of accused i.e. Ram Kripal and his three sons, it is submitted that one Shiv Mangal, father-in-law of PW-1 Deshraj was litigating with son-in-law of accused Ram Kripal. PW-1 and he was doing pairvi for Shiv Mangal. Satrughan son-in-law of Ram Kripal was murdered prior to the present incident and Dinesh son of Deshraj and Smt. Genda wife of Deshraj and his daughter Sumer Kali were accused who were tried in the said murder case. However, the daughter was acquitted but Dinesh and Smt. Genda were convicted.
13. Sri Kamal Krishna has laid emphasis on the fact that one set of the accused namely Ram Autar and others are resident of village Tikar and rest of the accused are resident of village Imadpur. It was the duty of the prosecution to have established the meeting of mind of Ram Kripal, Devi Shanker and Lakhan and other accused resident of village Imadpur to commit murder for different causes. No affinity between two sets of accused has been established or even suggested by prosecution, leave alone substantiated and, therefore, the argument is that the first informant has made a futile attempt of killing two birds by one stone. No motive has been attributed for murder of Sheo Pyare. The argument of counsel for the appellants further proceeds on the anomalies pointed out between autopsy report regarding stomach contents of both the deceased and time of incident as well as the assertions by witnesses regarding time when they had taken food. Learned counsel also stressed on the testimony of PW-4 Pitamber who has completely exonerated all the accused second set, namely Ram Kripal, Rajendra, Surendra, Sheo Bhushan and Man Singh in Criminal Appeal No. 570 of 1989, resident of village Imadpur. So far PW-2 Krishna Pal, who is an injured witness, has also not supported the prosecution version as stated by the first informant and in view of two witnesses having dissociated themselves to support the testimony of PW-1, conviction is liable to be set at naught. It is also suggested by learned counsel for defence that a number of accused implicated can no by stretch of imagination be said to have participated in the crime, and thus evidently the prosecution has implicated certain innocent persons. The nature of injuries clearly suggests that since innocent persons have been implicated, it is difficult to pick and choose the actual assailants and, therefore, the accused are entitled for the benefit that accrues on account of false implication of certain accused who have no connection with the offence.
14. Sri Kamal Krishna while placing the evidence of PW-1 has castigated his testimony on a number of grounds. Firstly he has asserted that there is a complete dichotomy between eye witness account and medical evidence. The deceased Sheo Pyare has received only two gun shot injuries. One is fire arm wound of entry on left side back of neck and exit wound is muscle deep on left side front of neck communicating with injury no. 1. Second injury is fire arm wound of entry near right ear, brain cavity deep and exit wound is just left to nose and brain cavity deep. In the first injury blackening and tattooing were present whereas in the second injury no blackening and tattooing were found. On internal examination, the stomach and small intestine was empty while large intestine contained faecal matter.
15. The next argument is that motive is enmity between PW-1 Deshraj with both sets of accused though for different reasons, but he has received no injury; although he was the prime target. This obviously excludes his presence at the scene of incident. Learned counsel has pointed out a number of contradictions in the statements of PW-1 and PW-2. Their testimony are in total contrast to each other. Presence of injured witness could not be eliminated but the question is whether he is telling the truth or not. So far PW-1 is concerned, it has been disputed that he was nowhere present near the vicinity of crime. The argument that PW-1 Deshraj was not present at the scene of occurrence is also negated on the basis of evidence of PW-4 who does not say that the first informant was present at all. Though PW-4 has been declared hostile, yet he is a witness of fact and gives an eye witness account of the entire version of the F.I.R. Learned counsel has also pointed out the time given out by PW-1 when they left Shiv Dutt Ka Purwa and reached Khaga does not tally with the time disclosed by PW-2. In case the evidence of two witnesses are read together, it can not be reconciled and if this can not be done, conviction is not based on cogent and reliable evidence. Learned Sessions Judge himself has discarded the testimony of PW-4 Pitamber saying that he is a liar and he can not be relied upon though PW-2 all through has maintained that Pitamber had accompanied the Barat and was also coming back with them and he is an eye witness. While placing the evidence of PW-1, learned counsel has pointed out that he admits that village Imadpur is at a distance of 6 miles from his village. It is further asserted that all the accused were lying in waiting for the deceased, first informant, injured and his associates whereas the Barat was scheduled to return on the third day therefore, how could the accused get knowledge that they had decided to return the very next day and, therefore, there was no meeting of mind and the suggestion that they were waiting for them can not be accepted. This witness has admitted in his cross examination that he has not mentioned any alliance between two sets of accused, one residing in village Imadpur and the other in village Thariaon. The first set of accused are all brahmans by caste and second set of accused are Yadav. He has admitted that he did not mention anything about the fact that two sets of accused were close acquaintance. He has not even disclosed this at the time of interrogation by the Investigating Officer. Further when PW-1 was questioned about his son who was convicted in the murder of Satrughan with his mother Smt. Genda, he admitted this fact but also said that Dinesh Singh son of Deshraj has been killed and he does not possess any definite information. Learned counsel at this stage has pointed out the recovery memos of splinters of hand grenade, plastic shoe, blood stained and plain earth. This Dinesh Singh is witness of all the recovery memos. His name is clearly mentioned in the recovery memo and he has also endorsed his signatures. When he was questioned about Barat of Mithai Lal, he admits that there was no relation between them but since both of them reside in the same village, they had gone to Barat but instead of waiting for Bidai, they decided to return back early. He further admits that some people had gone to Barat on Bullock cart, some people on truck and some people on cycle. He further asserts that all six of them decided that they will come back a day early since it was thrashing season. He further admits that from Shiv Dutt Ka Purwa till Khaga they had gone by foot and they had boarded a truck only at Khaga. No number of truck has been given. Neither the driver nor cleaner was examined. The back side of the truck was not opened by cleaner but they had just jumped out from the truck while the truck was standing on the middle of the road. He further states that hand grenade was hurled only after they were outside the truck and any statement recorded by the Investigating Officer to the contrary is not known how he has written. He expressed his ignorance. He further states that he had stayed with the dead body of his brother till the dead body was sent to the mortuary. He further states that dead body of his brother was at police station. He died at the gate of police station Asothar. He further denies to have accompanied the Investigating Officer at the place of occurrence. He further admits that two deceased had taken food with him. He has also accepted that a case under Section 307 I.P.C. of firing at the police party was instituted against his son Dinesh Singh and accused Rajendra Singh, Surendra Singh were witnesses in the said case. The report of the present incident was dictated in front of the police station thereafter in the second breath this witness states that he had dictated it in the market and he arrived at the police station along with the written report which is at a distance of 20-22 paces from the market. However, the scribe of the F.I.R. has not been examined.
16. PW-2 Krishna Pal is an injured witness. This witness has clearly stated that Ram Autar and Lakhan were armed with DBBL gun and Devi Shanker with hand grenade. He disputes the statement of PW-1 that Rajendra was also armed with hand grenade. He has specifically stated that only these three accused were armed whereas other accused were unarmed. He further states that as soon as they got out the truck, they were attacked by the accused. Though Shiv Pyare and PW-2 had licensed gun but those guns were taken away by the accused. Krishna Pal states that from Shiv Dutt Ka Purwa they had walked till Khaga from where they boarded a tempo. They had spent a lot of time at Khaga. From Khaga they came till Thariaon which is at a distance of 1 ½ kilometres. They reached Thariaon at about 2.30-2.45 P.M. and from there they boarded a truck for their village. Thus, Sri Kamal Krishna has placed glaring contradictions while placing topography of the scene of crime which also does not support the manner of occurrence. He disputes the existence of any nursery of forest department nearby, where a room is constructed or any guard was living in the said room. He further admits that Thariaon is at a distance of 5-6 miles. Further in cross examination, the assertion of this witness is that they had left Shiv Dutt Ka Purwa at 7.00 A.M. and reached at Khaga at 9.00 A.M. They had taken food at Khaga along with two deceased Ramraj and Shiv Pyare. They had also taken breakfast at Khaga itself. He has also given details of the purchases made by two deceased. He has expressed his ignorance as he was unable to give out how many fires were made from the gun and hand grenade as he became unconscious. He has also disputed that there is no separate school building as stated by PW-1. The statement of Krishna Pal was recorded by the Investigating Officer after 7-8 days and he has also denied his statement under Section 161 Cr.P.C. recorded by the Investigating Officer when he was confronted with the same.
17. So far PW-4 is concerned, he has given altogether different story. He does not mention the name of PW-1 to be present at the scene of occurrence. He also states that he did not halt at Khaga. No purchases were made in Khaga and they had taken food from Shiv Dutt Ka Purwa itself. He further states that the accused Devi Shanker had also boarded the same truck along with Ram Autar. A lot of blood was found on the truck. They had gone to the police station on the same truck. One of the dead body has fallen from the truck and it was kept lying and from there it was taken to the police station. He specifically and emphatically states that there were only three persons Ram Autar, Devi Shanker and Lakhan and none else. He had not seen any other person. The Investigating Officer has also admitted that he neither tried to locate the truck driver nor its cleaner. He has not even tried to interrogate Mithai Lal in whose Barat the first informant, injured, deceased and his associates claim to have gone to Shiv Dutt Ka Purwa. Not even the fact that whether there was a marriage and Barat had gone or not ?
18. Learned counsel has placed the site plan in support of his argument that PW-1 claims to have hidden himself behind Babool trees but no Babool tree has been shown in the site plan. This further strengthens the submission of defence counsel that presence of PW-1 at the scene of incident is highly doubtful and can not be accepted. Thus if presence of P.W. 1 is ruled out, no credence can be given to F.I.R.
19. Sri P.S. Pundir Advocate was questioned about the major contradictions and also about the fact that so far second set of accused are concerned, their presence is eliminated by testimony of PW-2 and PW-4, one being injured witness and the other eye witness, it is stated that PW-4 was declared hostile and not reliable. So far PW-2 is concerned, he was declared hostile viz-a-viz second set of accused.
20. In view of this admission by State counsel and taking into consideration the entire evidence as well as part of the judgment placed by learned A.G.A., we proceed to scrutinize the prosecution case. Admittedly, there are two sets of accused who are alleged to be armed and participated in the crime but save for the assertion of PW-1, there is nothing else to accept that both sets of accused had connived to kill Sheo Pyare and Ramraj. There is no enmity with Ramraj so far second set of accused Ram Kripal and others are concerned. Ramraj and Sheo Pyare both having been killed at the hands of the accused, makes it difficult to accept that Deshraj who was the main target, was left without even a scratch, though a number of accused were armed and attack was made only to eliminate PW-1 Deshraj. So far deceased Ramraj is concerned, he was accused along with Deshraj in the murder case of Basdeo. There was no enmity whatsoever with the accused since Sheo Pyare died in the incident and another witness Krishna Pal received injuries leaving PW-1 who claims himself to be hidden behind Babool tree. The suggestion of the defence that PW-1 was present at the scene of occurrence appears to be very doubtful. In fact assessment of entire evidence i.e. examination-in-chief as well as cross examination does not inspire any confidence. The record itself goes to show that PW-1 is not speaking the truth. He has blatantly denied about his son Dinesh whereas he is an omnibus witness in all the recovery memos and he had endorsed his signatures. Besides, the manner of occurrence stands belied completely. He states that Ramraj died in front of police station whereas the Investigating Officer states that he died en route to village Kanthiya. Another aspect which we can not ignore is that PW-1 was very emphatic in his statement that food was taken at Khaga and incident had taken place at 4.30 P.M. Stomach and small intestine were empty whereas large intestine was full of faecal matter which suggests another time and we can not ignore this aspect as well. We have also noticed that PW-1 has asserted with force that he was with dead body of his brother all along till it was sent to the mortuary but the story given out in the F.I.R. that he got the F.I.R. written out in front of the police station or in the market, completely belies the lodging of the F.I.R. and this version, if accepted, renders the F.I.R. a complete sham. Surajbhan has not been produced who is the scribe of the F.I.R. PW-1 has tried to establish acquaintance between two sets of accused by asserting that the accused resident of Imadpur have some acquaintance with the accused first set though he admits that village Tikar is situated at the distance of six miles from Imadpur. In view of this, the prosecution has miserably failed to substantiate the offence under Sections 148 and 149 I.P.C. No connection or alliance could be established between two sets of accused and, therefore, it is difficult to accept that accused of two villages situated at a distance of six miles had decided to commit the crime when they had no knowledge that these persons will arrive in their village at that time. Besides, the fact that the suggestion of the prosecution that both the sets of accused had enmity with PW-1 and motive of the crime suggested by the prosecution is only enmity with PW-1. It is difficult to accept the testimony of the first informant, at least it creates a doubt in our mind.
21. We can not overlook the fact that the injured witness and other witness though declared hostile have completely exonerated the accused residing in village Imadpur and their conviction on the solitary statement of PW-1 is very dangerous and opposed to all principles of criminal law. Thus, this analysis leads us to an inevitable conclusion that quite a few number of persons have been falsely implicated by the prosecution in view of the injuries as well as assertion by injured witness and there being nothing to substantiate or correlate their alliance between the two groups. This leaves us to decide whether three persons who are accused in Criminal Appeal No. 568 of 1989 participated in the crime or not. We are once again compelled to conclude that if the prosecution tried to falsely implicate as many as five accused falsely what is the authenticity that they are speaking truth? So far the other accused Ram Autar, Devi Shanker and Lakhan are concerned, we are constrained to opine that P.W. 1 the main witness is not reliable. He has tried to rope innocent persons. In fact he has not received any injury and therefore, his claim that he had hidden himself behind Babool trees which is conspicuously absent in the site plan, once again compels us to arrive at a conclusion that presence of PW-1 can not be accepted. His evidence stands shrouded with doubt.
22. In over all analysis of the evidence, we are of the view that the prosecution story is not free from concoction, blend of untruth and only attempt to kill two birds with a single stone as we have already stated earlier. The prosecution has completely failed to harmonise ocular version with the injuries shown in the autopsy report as well as the other aspects such as stomach and small intestine were empty and large intestine contained faecal matter and, therefore, we are of the considered view that conviction recorded in the instant case can not be upheld on the ground that the prosecution has failed to establish its case beyond all reasonable doubt. If the prosecution can lie about one set of accused what is guarantee that it is telling truth about the other.
23. In view of what has been stated above, we are not in agreement with the judgment recorded by the learned Sessions Judge. We set aside the judgment of conviction dated 7.3.1989 passed by the Additional Sessions Judge, Fatehpur and grant an order of acquittal. The accused are on bail. They need not surrender. Surety bonds are discharged. The appeals are accordingly allowed.