Awadhesh
& Anr Vs. State of Madhya Pradesh [1988] INSC 102 (12 April 1988)
Singh,
K.N. (J) Singh, K.N. (J) Kania, M.H.
CITATION:
1988 AIR 1158 1988 SCR (3) 513 1988 SCC (2) 557 JT 1988 (2) 72 1988 SCALE
(1)698
CITATOR
INFO : R 1989 SC2004 (30)
ACT:
Indian
Penal Code-Challenging conviction by the High Court under section 302 read with
section 34, Indian Penal Code, after acquittal by trial court.
HEAD NOTE:
This
appeal was directed against the judgment of the Madhya Pradesh High Court,
setting aside the order of the trial court acquitting the appellants, and
convicting them under section 302 read with section 34 of the Indian Penal Code
and sentencing each of them to undergo imprisonment for life.
The
prosecution case was that on 4.1.1982 Ram Pratap Singh deceased had gone to Collectorate,
Panna where he noticed that Om Prakash and Raghvendra, who were inimical to
him, were shadowing him in the Collectorate. He requested Rajendra Singh PW 14,
Chhotey Bhaiya. PW 5, and Mohd. Tohid, PW 16, to accompany him on his return
journey as he sensed danger to his life, and sent Tohid to purchase bus tickets
with a direction that he should meet him at the octroi toll barrier on the Ajaigarh
Road from where he proposed to take the bus. Thereafter, he alongwith Rajendra
Singh, PW 14 and Chhotey Bhaiya. PW 15, proceeded to Chungi Chowki (octroi
Post) on the Ajaigarh
Road. While they were
waiting for Tohid, Ram Pratap Singh went for drinking water from a well nearby.
When he was just in the process of drinking water, gun shots were fired towards
him, causing injuries to him.
Upon
this, he ran towards his associates and fell down near Rajendra Singh and Chhotey
Bhaiya. The prosecution further alleged that on hearing the gun shots, Rajendra
Singh and Chhotey Bhaiya saw the appellant Brajendra armed with a.315 rifle and
Awadesh armed with a 12 bore gun running away.
Rajendra
Singh and Chhotey Bhaiya, armed with a rifle and a gun respectively, fired
shots towards the assailants and the assailants also fired towards them.
On
hearing gun fire, V.P. Pathak, Sub-lnspector of Police, PW 20, rushed to the
spot with Constable Lakhan Singh, PW 12. Rajendra Singh, PW 14 gave him
information about the incident, which was recorded by him (Dehati Nalishi Ex.
P. 12 at 3.10 P.M.) V.P. Pathak, 514 sent the Dehati Nalishi to Kotwali Panna
through Lakhan Singh, Constable, for recording the first information report. Pathak,
sub-inspector then prepared the panchnama and spot map Ex P. 17 on the same
day.
A
charge-sheet was submitted against five accused persons, including the two
appellants Brajendra and Awadesh for trial for offences under section 312 read
with section 34 and section 307 read with section 34 of the Indian Penal Code.
The Trial Court disbelieved the testimony of the two eye-witnesses, Rajendra
Singh, PW 14 and Chhotey Bhaiya, PW IS, and referring to a number of
circumstances which made the prosecution story doubtful, acquitted the accused.
On appeal by the State Government, the High Court disagreed with the reasons
recorded by the Trial Court, and placing reliance on the testimony of the
eye-witnesses, i.e..
Rajendra
Singh and Chhotey Bhaiya, allowed the State appeal, set aside the acquittal of
the appellants and convicted them under section 302 read with section 34 of the
Indian Penal Code and awarded a sentence of life imprisonment to each of them.
The appellants appealed to this court against the decision of the High Court.
Allowing
the appeal, the Court, ^
HELD:
The High Court on an appraisal of the evidence came to the conclusion that the
prosecution had proved its case beyond all reasonable doubt. It referred to a
number of decisions of this Court in considering the scope of its jurisdiction
in interfering with an order of acquittal passed by the trial court, but while applying
the principles, it failed to appreciate that the view taken by the trial court
was reasonable and plausible. While considering an appeal against acquittal,
the High Court must, in appreciating the evidence, keep in mind that if on
appraisal of evidence and considering relevant attending circumstances it is
found that two views are possible, one held by the trial court for acquitting
the accused, and the other, for convicting the accused, in such a situation,
the rule of prudence should guide the High Court not to disturb the order of
acquittal made by the trial court. Unless the conclusions of the trial court
drawn on the evidence on record are found to be unreasonable, perverse of
unsustainable, the High Court should not interfere with the order of acquittal.
The High Court in this case made an attempt to explain away the infirmities in
the testimony of the eye-witnesses in setting aside the order of acquittal.
The
High Court disregarded the rule of judicial prudence in converting the order of
acquittal to conviction, and committed error in interfering with the order of
acquittal.
[519G-H;
520A-B] 515 The first information report, Ex. P. 12, showed that the occurrence
took place at 14.15 hours while the report was lodged at 15.10 hours. The
evidence on record and the attending circumstances indicated that the first
information report was not lodged at 15.10 hours; instead it was lodged at
about 17.00 hours. The testimony of Rajendra Singh, PW 14, regarding the
lodging of the first information report was contradictory. The statement of
V.P. Pathak, PW 20, the investigating officer, clearly indicated that the first
information report was written after 17.00 hours and it was not recorded at the
time it purported to have been lodged.
There
were material contradictions in the testimony of Rajendra Singh PW 14 and the
investigating officer. Since the Sub-Inspector, the District Magistrate and the
Superintendent of Police had reached the place of occurrence within a few
minutes of the incident, the delay in lodging the first information report was
highly suspicious. Why this delay when all officers and the eye-witnesses were
present at the spot, and the police station was at a distance of two furlongs?
The obvious reason appeared to be that the names of the assailants were not
known, as most likely, the eye- witnesses had not seen the assailants and they
were not present at the scene of the occurrence. In all likelihood, they
arrived at the scene after the incident, and since the names of the assailants
were not known, the F.l.R. was lodged with delay after deliberation. This view
finds support from the testimony of Tohid PW 16 and other circumstances. There
were material contradictions in the statements of the three witnesses Rajendra
Singh PW 14, Chhotey Bhaiya, PW 15 and Tohid, PW 16, and in view of the same
and, further in view of the discrepancy regarding the delay in the lodging of
the first information report, it was apparent that till the first information
report was lodged, nobody knew who the assailants were and that was why Rajendra
Singh could not disclose the names of the assailants to Tohid on his arrival at
the scene of occurrence after he had been sent to bring the- bus tickets. [520H;
521A-C. E; 522H; 523A]
The
prosecution relied upon the recovery of the two empty cartridges to connect the
appellants with the commission of the crime. The recovery of these empty
cartridges was not made on 4.1.1982; instead, these cartridges were recovered
on 5.1.82, although the spot map of the scene of occurrence was prepared on
4.1.82 itself. It was interesting to note that the spot where these cartridges
were recovered was shown in the spot map prepared on 4.1.82 although the
recovery was made on S.1.82. The witnesses in whose presence the recovery of
the cartridges was made had not supported the prosecution. Moreover, it was the
admitted case of the prosecution that there was an exchange of fire from both
sides-by the assailants and by Rajendra Singh and 516 Chhotey Bhaiya-but no
other cartridges were recovered by the Investigating officer. The investigating
officer did not take into possession the licensed rifle and gun of Raghavendra
Singh and Awadesh, nor was any effort made to secure the evidence of the
ballistic expert to prove that the empty cartridges had been fired from the
respective weapons. These circumstances indicated that the empty cartridges
were not recovered; instead, the investigating officer had planted those
cartridges to support the prosecution case. [523B-E] On the evidence on record,
it was apparent that the Chungi Chowki (octroi toll barrier) was manned by the
employees of the Municipal Board, who were present at the spot, and in addition
to them, there was Home Guard office adjacent to the toll barrier and there
were residential houses near the barrier and the place of occurrence was a busy
public place. It came into evidence that large number of persons had gathered
at the scene of occurrence, but no employee of the toll barrier or Home Guard
once or local resident came forward to support the prosecution case. The
District Magistrate, the superintendent of Police and other officers had also
reached the spot within minutes of the incident, but none of them entered the
witness box to support the prosecution case. The prosecution produced Udai Singh
PW 17 and Kali Charan PW 19, who were residents of Uttar Pradesh and close
relatives of the deceased. Their presence at the scene of occurrence as highly
doubtful and their testimony was not free from doubt as they were highly
interested persons. The trial court rightly discarded their testimony as their
statements had been recorded by the police after two months of the occurrence. without
there being an explanation for the delay. [523F-H; 524A-B] The injuries
mentioned in the testimony of Dr. Jain who had carried out the post mortem
examination of the dead body of Ram Pratap Singh, could not be caused in the
manner and from the place where the assailants were alleged to be present at
the time of firing, and the same were inconsistent with the testimony of the
eye-witnesses and the site plan. The trial court had discussed this question at
length and the Court agreed with the findings of the trial Court. In the
opinion of the doctor, the person who caused injuries to the deceased was at a
higher level than the deceased; this was wholly inconsistent with the testimony
of the eye-witnesses. Though medical expert's opinion is not always final and
binding, in this case, it corroborated the other circumstances which indicated
that the eye-witnesses had not seen the actual occurrence. [524B; 525E-H] 517
The prosecution had failed to prove its case beyond all reasonable doubt and
the High Court committed error in interfering with the trial court's order of
acquittal. Order of the High Court and the appellant's conviction were set
aside and order of the trial court was restored and the appellants were
acquitted. [526A-B] G.B. Patel & Anr. v. State of Maharashtra, [1979] 2 SCR
94 and Sheo Swarup v. King.Emperor, A.l.R. 1934 PC 227.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 537 of 1986.
From
the Judgment and order dated 3.9.1986 of the Madhya Pradesh High Court in
Criminal Appeal No. 936 of 1983.
Rajinder
Singh, Ranjit Kumar, N. Jain, and Wasim A. Qadri for the Appellants.
Uma Datta
and T.C. Sharma for the Respondents.
The
Judgment of the Court was delivered by SINGH, J. This appeal is directed
against the judgment of the Madhya Pradesh High Court dated 3.9.1986 setting
aside the trial court's order acquitting the appellants herein and convicting
them for offence under Section 302 read with Section 34 of the Indian Panel
Code and sentencing each of them to undergo imprisonment for life.
The
prosecution case in brief is that on 4.1.1982 Ram Pratap Singh deceased
resident of village Kharoni P.S. Ajaigarh, District Panna had gone to Collectorate
Panna to file reply to a show-cause notice issued to him for the cancellation
of his gun licence. While he was at the Collectorate he noticed Om Prakash and Raghvendra
who were inimical to him, were shadowing him in the Collectorate. He requested Rajendra
Singh PW 14, Chottey Bhaiya PW 15, and Mohd. Tohid PW 16 to accompany him on
his return journey as he sensed danger to his life. Ram Pratap Singh the
deceased sent Tohid to purchase tickets for Bus with a direction that he should
meet him at the octroi Toll barrier on the Ajaigarh Road from where he proposed
to take the Bus, thereafter the deceased along with Rajendra Singh, PW 14, and Chhotey
Bhaiya PW 15 proceeded on foot to Chungi Chowki, (octroi Post) situate at about
two furlongs away from the Collectorate on the Ajaigarh Road. While the
deceased, Rajendra Singh and 518 Chhotey Bhaiya were waiting for Tohid near the
octroi Post one bus arrived, but the deceased told Rajendra Singh and Chhotey Bhaiya
not to travel by that bus as he had apprehension that Raghvendra and his
associates may be inside the bus. While they were waiting for Tohid, the
deceased went for drinking water from a well which was near the road at the octroi
Post. After drawing the water from the well while the deceased was in the
process of drinking water at that precise moment gun shots were fired towards
him from the Northern side from the Bari
boundary, causing injuries to him in his chest and hand. On receipt of injuries
the deceased ran towards his associates and fell on a takhat near Rajendra
Singh and Chhotey Bhaiya. The prosecution further alleged that Rajendra Singh
and Chhotey Bhaiya on hearing the gun shot saw the appellant Brajendra armed
with a .315 rifle and Awadhesh armed with a 12 bore gun running away along with
an other person named Kailash who was also armed with a gun. Rajendra Singh PW
14 who was armed with a. 275 rifle and Chhotey Bhaiya was armed with a 12 bore
gun fired shots towards the assailants. The assailants also fired towards them,
but they escaped. On hearing the gun shot fire V.P. Pathak, Sub-Inspector of
Police PW 20 accompanied by Constable Lakhan Singh PW 12 rushed to the spot. Rajendra
Singh PW 14 gave him information about the incident which was recorded by Pathak,
(Dehati Nalishi Ex. P. 12 at 3.10 p.m.). V.P. Pathak, the Sub-Inspector sent
the Dehati Nalishi to Kot vali Panna through Lakhan Singh, Constable, for
recording the first information report. After holding inquest, Pathak, the Sub-
Inspector prepared Panchnama and sent requisition for post- mortem examination
of the dead body and he also prepared the spot map Ex. P. 17 on the same day.
After completion of investigation a charge sheet was submitted against five
accused persons including the two appellants Brajendra and Awadhesh for trial
for offences under Section 302 read with Section 34 IPC and under Section 307
read with Section 34 of the Indian Panel Code. Kailash one of the accused was
shown absconding. Before the trial court Rajendra Singh PW 14 and Chhotey Bhaiya
PW 15 supported the prosecution case as eye- witnesses, they claimed to have
witnessed the assault, they further claimed that they had recognised the
accused persons. The learned Sessions Judge disbelieved the testimony of these
two eye-witnesses, be referred to a number of circumstances which made the
prosecution story doubtful, therefore, he acquitted the accused. On appeal by
the State Government the High Court disagreed with the reasons recorded by the
trial court and placing reliance on the testimony of the eye-witnesses, i.e., Rajendra
Singh and Chhotey Bhaiya, it allowed the State's appeal and set aside the
acquittal of the appellants and convicted them under Section 302 519 read with
Section 34 of the Indian Penal Code and awarded sentence of imprisonment for
life to each of them.
The
trial court held that the prosecution had failed to prove its case beyond all
reasonable doubt and no reliance could be placed on the testimony of the Rajender
Singh PW 14 and Chhotey Bhaiya PW 15. The trial court referred to a number of
circumstances creating doubt on the credibility of the prosecution story but
the High Court differed from those findings and on appraisal of evidence it
came to the conclusion that the prosecution had proved its case beyond all
reasonable doubt. The High Court referred to a number of decisions of this
court in considering the scope of its jurisdiction in interfering with an order
of acquittal passed by the trial court but while applying the principles it
failed to appreciate that the view taken by the trial court was reasonable and
plausible. Even the High Court has not held that the view taken by the trial
court was not a possible view. The High Court reappraised the evidence and took
a different view and it explained the infirmities of the prosecution pointed
out by the Sessions Judge.
In G.
B. Patel & Anr. v. State of Maharashtra, [1979] 2 SCR 94 this Court quoted
with approval the principles laid down by Privy Council in Sheo Swarup v. King
Emperor, AIR 1934 PC 227 wherein it was held that although the power of the
High Court to reassess the evidence and reach its own conclusion, are as
extensive as in an appeal against the order of conviction, yet, as a rule of
prudence, the High Court should always give proper weight and consideration to
matters e.g.
(i) the
views of the trial judge as to the credibility of the witnesses;
(ii) the
presumption of innocence in favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at the trial;
(iii) the
right of the accused to the benefit of any doubt, and
(iv) the
slowness of an appellate court in disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the witnesses. Sarkaria, J. speaking for
the court observed
"where
two reasonable conclusions can be drawn on the evidence on record, the High
Court should, as a matter of judicial caution, refrain from interfering with
the order of acquittal recorded by the court below. In other words, if the main
grounds on which the court below based its order acquitting the accused, are
reasonable and plausible, and cannot be entirely and effectively dislodged or
demolished, the High Court should not disturb the acquittal." While
considering an appeal against acquittal the High Court must keep in mind these
principles in appreciating the evidence of witnesses. If on appraisal of the
evidence and on considering relevant attending circumstances it is found that
two views are possible, one as held by the trial court for acquitting the accused,
and the other for 520 convicting the accused in such a situation the rule of
prudence should guide the High Court not to disturb the order of acquittal made
by the trial court. Unless the conclusions of the trial court drawn on the
evidence on record are found to be unreasonable, perverse or unsustainable, the
High Court should not interfere with the order of acquittal. The High Court has
in the instant case made an attempt to explain away the infirmities in the
testimony of eye-witnesses in setting aside the order of acquittal. The High
Court has in our opinion disregarded the rule of judicial prudence in
converting the order of acquittal to conviction .
The
trial court held that the cumulative effect of the following circumstances made
the prosecution case doubtful, these are;
(i) first
information report was not recorded or lodged at the time it purports to have
been lodged,
(ii) Rajendra
Singh PW 14 and Chhotey Bhaiya PW 15, the two eye- witnesses did not give the
names of assailants to Tohid,
(iii) recovery
of two cartridges on 5th January. 1982 one day after the occurrence,
(iv) nature
and position of injuries on the body of the deceased were not consistent with
the testimony of eye-witnesses having regard to the local site
(v)
empty cartridges of .315 rifle which were alleged to have been fixed by Brijesh
and 12 bore cartridge was alleged to have been fired by Awadesh accused causing
injuries to the deceased, but the same were not sent to ballistic expert for
his opinion nor he was examined to support the prosecution case,
(vi) unnatural
and inconsistent testimony of eye-witnesses Rajendra Singh PW 14 and Chhotey Bhaiya
PW 15,
(vii) a
large number of persons were available at the scene of occurrence at the octroi
Toll barrier but no independent witness, either employee of the Toll barrier or
of Home Guard or any other person was examined to support the prosecution. The
High Court made an attempt to explain the circumstances in holding that some
times the memory of the witnesses fail and a broad view of the evidence given
by the eye-witnesses clearly indicated that the prosecution had proved its
case. We have been taken through the entire evidence and we have also closely
and carefully considered the judgment of the trial court and the High Court. We
are of opinion that the High Court committed error in interfering with the
order of acquittal .
The
first information report Ex. P. 12 shows that the occurrence took place on
14.15 hours while the report was lodged at 15.10 hours that is to say within 55
minutes of the occurrence. The evidence on record and the attending
circumstances indicate that the first information report was not lodged at
15.10 hours instead it was lodged at about 521 17.00 hours. Rajendra Singh, PW
14 stated before the trial court that from the place of occurrence he had
accompanied the police to Panna Kotwali where he lodged the report and signed
the Ex. P. 12. In cross-examination he stated that he had gone to the Kotwali
for lodging report in a police van.
He
further stated that the report had been written by the Police clerk on his
dictation, and that the police arrived at the scene of occurrence after an hour
of his lodging the first information report. At an earlier stage he had stated
that the police had arrived at the place of occurrence at about 3.30 p.m. and
thereafter he had accompanied the police to Kotwali for lodging the report. His
testimony regarding lodging of the first information report is contradictory.
V.P. Pathak,
PW 20 Sub-Inspector of police, the investigating officer, stated that it was
wrong to say that the first information report Ex. P. 12 was made by Rajendra
Singh at Kotwali. According to him he was on duty at Collectorate and there he
got the news at about 2.30 or 3.00 p.m. that gun shots were fired at Toll
barrier on the Ajaigarh Road, he reached there with few minutes along with Lakhan
Singh, Constable. On reaching the spot he wrote Marg intimation drew up panchnama
of the dead body and sent the dead body for post-mortem examination and
thereafter he recorded Dehati Nalishi Ex. P. 12. He asserted that first
information report had been recorded at the place of occurrence. He further
stated that Dehati Nalishi was recorded by him after the dead body of the
deceased had been sent by him for post-mortem examination which according to
the document (Ex. P. 8) was sent at 5.00 p.m. His statement clearly indicates
that the first information report was written after 17.00 hours and it was not
recorded at the time it purports to have been lodged. There are material
contradictions in the testimony of Rajendra Singh PW. 14 and the investigating
officer. Since the Sub-Inspector, the District Magistrate and the
Superintendent of Police had reached the place of occurrence within few minutes
of the incident, the delay in lodging the first information report is highly
suspicious. Why this delay when all officers were present, and eye-witnesses
were present at the spot and the police station was at a distance of two
furlongs. The obvious reason appears to be that the names of the assailants
were not known as most likely the alleged two eye-witnesses had not seen the
assailants and they were not present at the scene of occurrence, at the time
the shooting took place, in all likelihood, they like, others arrived at the scene
after the incident. Since names of the assailants were not known the F.I.R. was
lodged with delay after deliberation.
This
view finds support from testimony of Tohid PW 16 and other circumstances.
According to the prosecution the deceased Ram 522 Pratap Singh had sent Tohid
to purchase bus tickets and had directed him to meet him at the Chungi Naka on Ajaigarh
Road. He had further told Tohid PW 16 that he was apprehending danger from the
accused persons so he would get into bus at the Toll barrier. After giving
instructions to Tohid he proceeded to Chungi Chowki (Octroi Post) along with Rajendra
Singh and Chhotey Bhaiya. The prosecution further alleged that after the
occurrence took place Ram Pratap Singh's dead body was lying near Takhat at the
Octroi barrier when Thiod arrived at the scene. He met Rajendra Singh PW 14 and
Chhotey Bhaiya PW 15 who were waiting. Tohid PW 16 testified that when he
reached the toll barrier neither Rajendra Singh nor Chhotey Bhaiya disclosed
the names of the assailants. Chhotey Bhaiya PW 15 in his testimony stated that
when Tohid arrived at the scene of occurrence he did not enquire from him or
from Rajendra Singh as to who had killed Ram Pratap Singh. At a later stage in
cross examination he said that Tohid had asked Rajendra Singh PW 14 who had
killed Ram Pratap Singh but Rajendra Singh told him that he would tell him
later while going to the police station for lodging the first information
report. According to Rajendra Singh PW 14 when Tohid reached the spot he
directed him to proceed to the Collectorate and give information to the police
about the murder having taken place. Tohid proceeded to the Collectorate and
from there he contacted the Kotwali on telephone and gave information about the
murder having taken place near the Toll barrier. Rajendra Singh PW 14 has
stated that neither Tohid asked nor he told him the names of the assailants.
This conduct is highly improbable and unnatural.
Admittedly
Tohid, Rajendra, Chhotey Bhaiya and the deceased were friends of each other and
Tohid had been sent by the deceased to bring bus tickets and he had also told
him about apprehensions to his life and according to the Rajendra Singh PW 14
and Chhotey Bhaiya PW 15 when Tohid arrived at the scene he did not enquire
about the names of the assailants, although dead body of the deceased was lying
at the spot. This is highly unnatural. When Tohid was cross- examined on this
question he tried to explain that while he was proceeding to the police station
along with Rajendra Sing PW 14 to lodge the first information report the latter
had told him the names of the assailants. We have noticed earlier that
according to investigating officer first information report was recorded at the
scene of occurrence and not at the police station. This indicates that Tohid
and Rajendra Singh's story regarding their going together to Kotwali is highly
suspicious. In view of the material contradiction in the statement of three
witnesses Rajendra Singh PW 14, Chhotey Bhiaya PW 15 and Tohid PW 16 and
further in view of the discrepancy regarding the delay in lodging the first
information report, 523 it is apparent that till the first information report
was lodged nobody knew who the assailants were and that is why Rajendra Singh
could not disclose the names of the assailants to Tohid on his arrival at the
scene of occurrence.
The
prosecution relied upon the recovery of the two empty cartridges one of them
.315 rifle and the other of 12 bore gun. By recovery of these cartridges the
prosecution tried to connect the appellants with the commission of the crime as
Raghvendra Singh was alleged to have fired from .315 rifle and Awadhesh with 12
bore gun. The recovery of these empty cartridges were not made on 4.1.1982
instead these cartridges were recovered on 5.1.1982, although spot map of the
scene of occurrence was prepared on 4.1.1982 itself. It is interesting to note
that the spot where these cartridges were recovered was shown in the spot map
prepared on 4.1.1982 although recovery was made on 5.1.1982. The witnesses in
whose presence recovery of the cartridges were made have not supported the
prosecution. Moreover, it is the admitted case of the prosecution that there
was exchange of fire from both sides, by the assailants as well as by Rajendra
Singh and Chhotey Bhaiya, but no other cartridges were recovered by the
investigating officer. The investigating officer did not take into possession
the licenced rifle of Raghvendra Singh appellant and the 12 bore gun of Awadhesh
nor any effort was made to secure the evidence of ballistic expert to prove
that the empty cartridges had been fired from the respective weapons. These
circumstances indicate that empty cartridges were not recovered instead
investigating officer planted these cartridges to support the prosecution case.
On the
evidence on record it is apparent that the Chungi Chowki (Octroi Toll Barrier)
was manned by the employees of the Municipal Board and they were present at the
spot and in addition to them there was Home Guard Office quite adjacent to the
Toll Barrier and there were other residential houses near the Barrier and the
place of occurrence was a busy public place. It has further come into evidence
that large number of persons had gathered at the scene of occurrence but
surprisingly enough no employee of Toll Barrier, Home Guard or local resident
came forward to support the prosecution case. The District Magistrate,
Superintendent of Police and other officers had also reached the spot within
few minutes of the incident but none of them entered the witness box to support
the prosecution case. The prosecution produced Udai Singh PW 17 and Kali Charan
PW 19 who deposed that they had seen the appellants running away with weapons
and that they had recognised them. It is interesting to note that Udai Singh
and 524 Kali Charan are residents of Uttar Pradesh and they are close relatives
of the deceased, their presence at the scene of occurrence was highly doubtful
and their testimony is not free from doubt, as they are highly interested
persons. The Trial Court rightly discarded their testimony as their statement
had been recorded by the police after two months of the occurrence without
there being any explanation for the delay.
In his
testimony Dr. Jain, who carried out the post mortem examination of the dead
body of deceased Ram Pratap Singh, stated that he found following gun shot
wounds:
"Gunshot
wound No. 1:
(a)
Wound of entrance: One circular wound 5 mm. in diameter present two and a half
inch below the left exilla and half inch posterior to left exillary lime.
In the
way the bullet had perforated the following organs of the body-The bullet had
passed through the lateral side of left 5th-ribe. There was a fracture of
lateral side of left 5th ribe.
After
that the bullet passed through the lower third of left pleura and entered in
the left lung and perforated through the lung parindiama. There was through and
through (complete) perforation of lower third of left pleura and lung. After
exit from the lung, it crossed through the past side of right ventricle of heart.
Posterior side of right ventricle of heart was completely lacerated. After exit
from the posterior side of right ventricle of heart the bullet passed through
the upper border of liver and the whole upper border of liver was completely
lacerated.
(b) Wound
of Exit: One circular wound in diameter present over posterior and right side
of chest at the level of 7th dorsel spine three and a half inch right lateral
in the vertibral column. The margins of the wound were slightly lacerated.
There
was fracture of 9th and 10th. ribe of right posterior side. The direction of
passage of bullet of gun shot in wound No. 1 was antere-posteriorly.
Gunshot
wound No:2:
(a)
Wound of entrance-4 mm. diameter circular wound present over left 6th. intercostal
space 2" lateral to left sterval 525 border. After passing from the left
6th intercostal space the bullet perforated the upper part of stomach. After
escaping from medial side of stomach it came out from side of chest at the
level of 7th dorsal spine from the 8th intercostal space of right posterior
side.
(b)
Wound of exit-one circular wound 5 mm. in diameter present at the level of 7th
dorsal spine 2 and half inch right lateral to spinal column.
The
direction of bullet of gunshot in wound No. 2 was entre posteriorly. Thororic
cavity was hugely filled with dark coloured blood.
Gunshot
Wound No. 3:
(a)
Wound of entrance-3 mm. diameter circular would present 1" above postre-lateral
aspect of right wrist. The bullet had passed through the right radius have and
the wound of exit was over antro-lateral aspect 1" above the right wrist
joint. Wound of exit was circular 5 mm. in diameter." These injuries could
not be caused in the manner and from the place where assailants were alleged to
be present at the time of firing the gun shots, and the same are inconsistent
with the testimony of the eye witnesses and the site plan. We do not think it
necessary to discuss it in detail as the trial court has discussed this
question at length and we agree with those findings. According to the testimony
of Rajendra Singh and Chhotey Bhaiya PWs, when the deceased got gun shot
injuries, he was at a higher level at the well whereas the assailants fired the
shots from Bari, which was at lower level by one foot from the road and the
well was higher than the road by two or two and a half foot.
In
this view if shots were fired from Bari, at the deceased who was drinking water
in a sitting posture, the injuries in all likelihood would have been from lower
part to upper part but Dr. Jain deposed that direction of the injuries caused
by bullet was from upper part to lower part and the bullet was ante-posteriorly.
In the opinion of the doctor, the person who caused injuries to the deceased
was at higher level than the deceased, this is wholly inconsistent with the
testimony of eyewitnesses. Though medical expert's opinion is not always final
and binding, but in the instant case it corroborates other circumstances which
indicate that the eye-witnesses had not seen the actual occurrence.
526 In
view of the aforesaid facts and circumstances we are satisfied that the
prosecution has failed to prove its case beyond all reasonable doubt, and the
High Court committed error in interfering with the trial court's order of
acquittal. We accordingly allow the appeal set aside the order of the High
Court and the appellants' conviction and restore the order of the trial court
and acquit the appellants. The appellants are in jail, they shall be set forth
to liberty forthwith.
S.L.
Appeal allowed.
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