State of
U.P. Vs. Ashok Dixit & ANR [2000] INSC
65 (16 February 2000)
G.T.Nanavati,
S.N.Phukan
PHUKAN,
J This appeal by the State is directed against the judgment and order dated
16.08.1988 passed by the High Court of Allahabad in Criminal Appeal Nos. 2742,
2743 and 2338 of 1984 arising out of Sessions Trial No. 202 of 1982. The
learned Additional Sessions Judge, Agra
in the above Sessions Case convicted accused respondents - Ashok Dixit and Chaman
Lal under Sections 302 and 307 IPC and Section 25 of the Arms Act and sentenced
them accordingly. Two separate appeals were filed before the High Court by the
respondents-accused and one appeal by the State for enhancement of the
sentence. The High Court dismissed the appeal filed by the State and allowed
the appeals filed by the respondents-accused and acquitted them of their
charges.
On
8.8.1982, at about 9.00
p.m., on hearing sound
of gun shot coming from the house of deceased Dr. Dubey, his brother Bhagat Dayal
Dubey P.W.1, proceeded to the house of deceased Dr. Dubey, alongwith his two
sons. In the house of the deceased, he met two police officers Vijai Bahadur
Singh P.W.7, Station House Officer of Police Station Civil Lines, District Etawah,
Sup-Inspector of Police Uma Shanker Yadav, Raj Narain Singh P.W.15 Compounder
of deceased Dr. Dube, Shri S.K. Gupta- Advocate and one or two other persons of
the locality. The house was dark as there was no electricity and two police
officers took position behind the varendah of the house and P.W.1 alongwith his
two sons stood near the grill of the western varendah. They heard shots from
the first floor of the house where deceased Dr. Dubey, his wife deceased Manorama
Dubey, her daughter Kumari Ritu P.W.3 and Umesh Chand Mishra P.W.2 maternal
uncle of deceased Manorama Dubey were residing. At the time, they saw accused Brijendra
Kumar tumbling down the staircase to the ground floor followed by present two
accused respondents Ashok and Chaman Lal, and three accused were apprehended by
the two police officers, P.W.7 and Sub-Inspector Uma Shankar Dubey. Electricity
was restored when the accused were apprehended. P.W.1 with his two sons went
upstairs and found deceased Dr. Dubey lying in a pool of blood near the dining
table. Deceased Manorama Dubey was lying in a pool of blood on the dewan by the
side of the wall of the drawing room and Munnu Singh was lying in the injured
condition.
PW-2
was also found in injured condition. They were taken to the hospital by PW-1
and one Pandey a tenant on the first floor where Dr. Dubey was residing. Dr. Dubey
and his wife were found dead. P.W.2 and Munnu Singh were medically examined and
given treatment.
A
pistol and four live cartridges were recovered from the possession of the
accused Ashok and country made pistol and five live cartridges from the
possession of accused Chaman Lal and a country made pistol and two cartridges
were recovered from accused Brijendra Kumar. The two police officers did not go
upstairs where the occurrence took place. They took the accused persons to the
police station.
Police
after investigation submitted charge sheet. The FIR Exh.1 was lodged by P.W.1
on the basis of statement of injured Munnu Singh but he was not examined,
therefore, the High Court was of the opinion that the FIR cannot be accepted as
corroborating piece of evidence of the statement of P.W.1. Accused Brijendra
Kumar died.
We
have heard Shri K.N. Nagpal, learned counsel for the appellant and Shri K.T.S. Tulsi,
learned senior counsel for the accused respondents.
Umesh Mishra
PW2 uncle of the deceased Manorama and Ritu PW3 daughter of deceased Dr. Dubey
were the eye witnesses. PW-2 used to live in the house of deceased Dr.
Dubey.
According to PW-2 while he along with deceased Dr.
Dubey
, his wife deceased Manorama and their daughter Ritu- PW3 were sitting, Munnu
Singh, compounder of Dr.
Dubey
called Dr. Dubey and he went out. They heard gun shots stood up and after some
time Dr. Dubey came and fell down near the dining table. Dr. Dubey was followed
by three assailants. One assailant fired at deceased Manorama. Accused
respondent Ashok fired at him and also at deceased Manorama. He got panicky,
went to the verandah and fell down and from there he heard the sound of firing.
At that point of time PW-1 and his two sons came up stairs and by that time
electricity was restored. Both PW-1 and PW-2 went to the drawing room and they
found Dr. Dubey lying on the floor of the dining room and Manorama on the dewan
of the drawing room. Munnu Singh who was also injured came in side and fell
down. PW-3 came out from beneath a cot from the bed room.
PW-2
has stated that accused-respondent Ashok was known to him and Dr. Dubey and
used to visit frequently the house of Dr. Dubey. Accused Chaman Lal was not
known to him earlier. PW-2, Dr. Dubey, Manorama and Munnu Singh were taken to
the hospital by PW-1 with the help of one Pandey through the ground floor. The
accused persons after being arrested were kept in the ground floor. PW-2 did
not mention in his statement under Section 161 Cr.P.C that accused Ashok came
along with other two accused to the first floor and fired at him and Manorama
and also the fact that accused-Ashok and other two accused were in the ground
floor.
These
are material omissions. Therefore, we are of the opinion that these omissions
are fatal for the prosecution. More, particularly, when accused-Ashok was
related and regular visitor to the house of Dr. Dubey. We, therefore, hold that
there was no identification by PW-2 of accused- Ashok. Regarding accused-Chaman
Lal after the occurrence there was no test identification parade and for the
first time PW-2 identified the accused- Chaman Lal in the court. This
identification cannot be accepted. PW-3 was a child witness and at the time of
occurrence she was aged 9 ½ years old. Occurrence took place on 08.08.82 but
her statement under Section 161 Cr.P.C. was recorded on 10.08.82 though after
the occurrence she was residing with her uncle which was at a stones throw from
the house of Dr.
Dubey.
Law is
well settled that evidence of a child witness must be evaluated carefully as a
child may be swayed by what others tell him and as an easy prey to tutoring.
Wisdom requires that evidence of a child witness must find adequate
corroboration before it is relied on. [see Panchhi and The High Court was of
the view that considering her age at the time of occurrence PW-3 might have
been sleeping.
This
cannot be said to be impossible. PW-3 also has deposed that accused-Ashok was
known to her family and used to visit their house but accused Chaman Lal was
not known to this witness. She identified both the accused in the court. At a
time of occurrence there was no electricity, therefore, it is difficult to
accept that she being aged 9 ½ years old could have identified accused-Chaman Lal
during the occurrence. From the evidence of PW-1 and PW-2 we find that when
they went to the bed room, PW-3 came out from beneath a cot. This fact would
support the contention that she might not have seen the occurrence. We have
already discarded the evidence of PW-2 on the point of identification of the accused,
therefore, it will be risky to accept the evidence of PW-3 for the purpose of
identification as her evidence is uncorroborated. Dr. Dubey was called by Munnu
Singh. He was found in the injured condition in the up stairs by PW-1 and PW-2
and was also taken to the hospital along with others. This material witness was
not examined and no explanation has been given for his non-examination. This in
our opinion is fatal for the prosecution.
According
to Mr. Vijay Bahadur Singh PW-7, Station House Officer of Civil Lines, Police
Station, he along with sub-Inspector Uma Shanker Yadav was on patrolling duty
and when they were checking the out posts of Civil Lines, Police Station, they
heard sound of gun fire coming from the house of Dr. Dubey at about 9.00 p.m
and he along with sub-Inspector, Yadav proceeded on the motorcycle to the house
of Dr. Dubey where they met Satyendra Gupta, Advocate and Raj Narain Singh
PW-15. They also saw PW-1 and his two sons. There was no electricity at that
time and these two police officers did not go inside the house but took
position outside the house. They heard the sound of gun fire coming from the
first floor of the house where deceased-Dr. Dubey was residing. Thereafter,
they saw accused Brijendra Kumar tumbling down the stair-case to the ground
floor followed by other two accused who were apprehended and arrested by them.
They recovered pistols and cartridges as stated above from them.
No
record has been produced to show that these two police officers were near the
place of occurrence at the outpost of Civil Lines, Police Station on patrol and
checking duty. This outpost is at the distance of 100- 125 yards from the place
of occurrence. After arrest police officers did not go up stairs where four
persons were lying injured and according to PW-15 he wanted to go up stairs but
he was summoned by these police officers. These police officers saw PW-1 and
his two sons going up stairs. PW-1 with the help of Pandey took deceased Dr. Dubey,
his wife deceased Manorama and injured Munnu Singh and PW-2 through the ground
floor to the hospital. If police officers were present at that time on the
ground floor their immediate reaction would have been to make proper inquiries,
go up stairs and see the place of occurrence but they did not do so. This
behavior of these two police officers is contrary to the natural human conduct
and it is difficult to believe their presence at the place of occurrence as
deposed by PW-7.
Exhibit
Ka-6 is the medical report of accused-Brijendra Kumar. Injury Nos. 2 and 3 were
caused as a result of gun shots. All these injuries were bleeding but police
did not find blood on the ground floor or on the stair case. According to Dr.
R.K. Choudhary PW5 due to the injuries caused to accused-Brijendra, he might
have suffered paralysis and he could not have moved 5-6 steps after falling
down. According to prosecution witnesses accused-Brijendra came down by stair
case to the ground floor fell down, got up and after going 5-6 steps fell down.
Therefore,
medical evidence does not support the evidence of the witnesses.
Ramashram
Pandey PW17 was examined as ballistic expert. According to him metallic
bullets- Exhibit EB-1 recovered from the body of Dr. Dubey and Exhibit EB-2
recovered from the body of deceased Manorama were not fired from the pistols
recovered from the possession of accused-respondents and Brijendra Kumar.
Moreover, there were gun shot injuries on accused Brijendra Kumar. PW-2 and Munnu
Singh were also injured. No explanation is forthcoming from the side of prosecution
for the above discrepancies, therefore, we hold that the occurrence did not
take place as alleged by the prosecution. We further hold that the High Court
has rightly acquitted the accused-respondents. In result, the present appeal
has no merits and accordingly it is dismissed.
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