Vinod Prasad, J.@mdashPrakash Chandra, Rajendra, Tara Chandra, Rajau @ Raja Ram, Ram Raj and Bhanu Prakash, the six appellants have questioned their conviction under Sections 148 302/149 I.P.C. and sentences for two years R.I. and life imprisonment respectively passed by II Additional District and Sessions Judge, Fatehpur on 31.5.1982 in Sessions Trial No. 222 of 1979, State v. Prakash Chandra and Ors.
2. Out of the aforesaid appellants, appellant No. 1 Prakash Chandra, appellant No. 2 Rajendra and appellant No. 3 Tara Chandra had died and therefore their appeal was abated by us on 20.4.2007. This leaves us to decide the appeal filed by appellants Nos. 4 to 6, namely, Rajau @ Raja Ram, Ram Raj and Bhanu Prakash.
3. The prosecution allegations against the appellants are that Surendra Singh, Informant along with his father Virendra Singh (deceased), his relatives Kamal Singh, Eunni Singh and Rakshpal Singh were returning to their house after getting the check valve of the tubewell repaired on 6.11.1978 at 12.30 P.M. when at the boundary of the field of Krishna Naryan @ Jhallar Maharaj a fire was made at them from the adjacent field of Sita Ram Murai. Informant and other persons took to their heels towards village. From the field of Sita Ram Murai aforesaid six appellants Prakash Chandra. Rajendra, Tara Chandra, Rajau @ Raja Ram, Ram Raj and Bhanu Prakash all armed with guns came out and at the instigation of Virendra Singh, they all started shooting at the prosecution party. Virendra Singh received gunshot injuries and fell down in the field of Jhallar Maharaj. Informant and other witnesses shrieked for help but they dare not go near Virendra Singh because of fear. Appellant Prakash Chandra (since dead) from a close range shot dead Virendra Singh. The accused pesons during the incident continued to threaten the witnesses to murder them if they tried to intervened. After murdering Virendra Singh, accused persons (the three surviving and three deceased appellants) made their escape good towards south. Informant with the help of other witnesses brought the corpse of his father to his house. The motive for the incident was alleged to be the erection of a wall on the land adjacent to the plot of wife of Shekhain by Prakash Chandra, the dead appellant regarding which there was triadic altercation between dead appellant Prakash Chandra accused and the informant side. Informant scribed the F.I.R. Ex. Ka-1 and after a covering a distance of 5 Kms. South lodged it at police station Khakhreru at 4.00 P.M. that day as crime No. 161 of 1978, under Sections 147 148 149 302/34 I.P.C.
4. Shiv Bhavan Mishra, Constable, prepared the chik F.I.R., Ex. Ka-22 and prepared its G.D. Sub Inspector N.U. Siddiqui, P.W. 5 started the investigation, recorded the statement of Shiv Bhavan Mishra Constable and H.C. Ram Kripal and then proceeded for the spot at 4.45 P.M. and reached their at 5.45 P.M. Because of darkness he did not conduct the inquest but recorded the statements of informant, Surendra Singh and other witnesses Kamal Singh, Punni Singh etc. He also raided the house of the appellants for arresting them but they were absconding. On 7.11.1978 at 9.00 A.M. he conducted the inquest on the dead body of Virendra Singh (Ex. Ka-3) prepared other relevant papers photo nash, challan nash etc., Ex. Ka-4 to Ex. Ka-7 and then handed over the dead body to Constable Girja Shanker Mishra P.W. 6, for being carried to the mortuary. Meanwhile, S.O. Shiv Kumar Singh, P.S. Khakhreru reached on the spot and took up the investigation. After completing the investigation the Investigation Officer submitted a charge sheet against all the appellants, who were tried by II Additional District and Sessions Judge, Fatehpur vide Sessions Trial No. 222 of 1979, State v. Prakash Chandra and Ors. The trial Judge framed the charges against the appellants on 31.8.1981, under Sections 148 and 302/149 I.P.C.
5. The post-mortem report of the dead body of the deceased was performed on 8.11.1978 at 1.00 P.M. by doctor B.K. Agrawal, P.W. 4 who found following injuries on it:
1. One gunshot wd. On entry 1/4" x 1/4" x brain deep on the (R) side back (paper Torn) 1-1/2" behind (r) ear. Margin inverted, Blackening & Tattooing absent.
2. One gunshot wd. of entry 1" x 1" x chest cavity deep on the front of chest 1-3/4" away from left nipple at the same level. Margin inverted, Blackening & Tattooing present.
Direction for front to back.
3. Multiple gun shot wds. of entry 1/8" x 1/8" x abdominal cavity deep on the left side abdomen in an area of 6" x 5" and 3" above (L) iliac crest. Margin inverted, Blackening & Tattooing absent. Direction left to right.
4. One gun shot wd. of entry 1/2 " x 1/2 " x muscle deep on the front of (L) thigh 5" below left anterior superior iliac spine, Blackening & Tattooing present. Margin inverted, Direction from below upwards.
5. One gunshot wd. Of exit 3/4" x 3/4" x muscle deep on the left back in middle 2" away from midline and 3" above post superior iliac spine. Margin everted, Blackening & Tattooing absent.
6. On the internal examination he found Haemetoma under injury No. 1 and bullets embedded on the brain of the deceased with fractured of 4th rib. In the pleura and left lungs multiple wads were discovered. The doctor also discovered five big shots from left back scapular region of the deceased. In the estimations of the doctor the cause of the death of the deceased was shock and haemorrhage because of the sustained injuries.
7. To prove the charge against the appellants prosecution examined six witnesses during the trial out of whom Surendra Singh informant P.W. 1 and Kamal Singh P.W. 3 were the witnesses of fact and Ram Kripal P.W. 2 (Constable), Dr. B.K. Agrawal P.W. 4 (Post-mortem doctor), S.I. N.U. Siddiqui, P.W. 5 and Constable G.S. Mishra (carried body to the mortuary) P.W. 6 were formal witnesses. Shiv Bhawan Mishra, Head Constable who had prepared the chik, G.D. etc. and the second I.O. Shiv Kumar Singh could not be examined during the trial.
8. The trial Judge finding the case of the prosecution proved to the hilt against the accused persons convicted all the appellants including the three dead appellants for offences under Sections 148 and 302/149 I.P.C. and sentenced them to two years R.I. for the first offence and life imprisonment for the second offence, which has been challenged in the present appeal.
9. Surendra Singh, P.W. 1, who is the informant of the case stated before the court that accused Tara Chandra was the father of the accused Prakash Chandra and Rajendra. Accused Rajau @ Raja Ram was the uncle of accused Ram Raj and accused Bhanu Prakash was the brother-in-law (Bahnoi) of accused Prakash Chandra. He further deposed that on 6.11.1978 his father Virendra Singh (deceased) accompanied by Punni Singh, Kamal Singh and Rakshpal Singh had gone to his tubewell, which was situated four furlongs away from the village Abadi towards south west corner near the field of Bhandari Singh. Near the turbwell the deceased had his field in which sugar cane crop was standing. While the deceased was returning to his house at 12.30 P.M. along with the aforesaid persons and the informant then at the boundary of the field of Jhallar Maharaj, a shot was fired from the field of Sita Ram Murai on which all the aforesaid persons stalled running towards the village. Meanwhile, the six appellants all armed with guns appeared from the field of Sita Ram Murai and they fired towards the prosecution party, which caused injuries to the deceased Virendra Singh, who trembled down in the field of Jhallar Maharaj. Informant and other witnesses ran and stood at the western side of the field of Shiv Savak Singh. Accused iPrakash Chandra (since dead) shot dead the deceased from his D.B.B.L. gun from a close range and accused Rajendra (since dead) also fired a shot at the deceased from 8-10 paces and after the murderous assault all the accused persons escaped towards south. Surendra Singh P.W. 1 further stated that he brought the body of his father to his house and blood had dropped on the place of the incident and was also soaked in the cloths of the deceased. He further evidenced that at the time of the incident he was a student of class 11th and had scribed the F.I.R. Ex.Ka-1 at his house and had send the sid F.I.R. through Ram Kripal, P.W. 2, Chowkidar of the village to be lodged at the police station, lie proved the blood stained cloths of the deceased as material Ex. 1 and 2. He further deposed that his grandfather Yogendra Pal Singh had also been murdered. He further stated that Mewa Lal Baniya was murdered in which he and phandari Singh were the named accused persons but he had not appeared in that crime as the police was going to submit a final report. He further stated that at 9.00 or 10.00 A.M. they had started for the tubewell from the Chak Road and the place of the incident was 200 paces north of the said Chak Road. He further deposed that they had taken 1 1/2 hours in repairing the tubewell with the help of Raj Bahadur, a mechanic of Saipur. He further deposed that after hearing the gunshot fire they all had sprinted towards the village and while running they had seen the appellants coming out of the field of Sita Ram Murai. He further stated that his father had sustained four firearm injuries and the first gunshot fire made by the assailants had not caused any injury to anybody. He had denied the suggestions that he had not seen the incident and after the dead body of the deceased was discovered, that the I.O. came to the village and with the help of Bhandari Singh he had implicated the appellants.
10. Ram Kripal Singh P.W. 2 deposed before the court that he had taken the F.I.R. of the informant to the police station and after its registration had brought its copy to the informant. He had denied the suggestions that he had not taken the F.I.R. of the informant to the police station.
11. Kamal Singh P.W. 3 deposed that Virendra Singh deceased was his brother-in-law as his sister was married to Kallu Singh real brother of deceased Virendra Singh. He had supported the prosecution version in all its material aspects of the matter and had deposed the same manner of assault as was stated by P.W. 1 Surendra Singh. This witness was subjected to searching cross-examination but nothing material came out of it. Some omissions were put to this witness which do not seems to be the contradictions in his statement.
12. Doctor B.K. Agrawal P.W. 4 conducted autopsy on the dead body of the deceased at 8.11.978 at 1.00 P.M. and he had found the injuries which have been mentioned herein before. He had proved his post-mortem examination report as Ex. Ka-2 and had stated that the injuries could have been sustained by the deceased at or about the time of the incident and were sufficient in the ordinary course of nature to cause death. He had proved the recovered wadding pieces material Ex.3. Nothing imaterial has come out from his cross-examination.
13. S.I. N.U. Siddiqui, P.W. 5 who was the first I.O. of the crime had proved various steps of investigation and the site plan Ex. Ka-9, the recovery of empty cartridges Ex. Ka-11, wadding pieces Ex. Ka-12 and had deposed that he had carried the attachment of the property of the accused persons which he had proved as Ex. Ka-13 to Ex. Ka-20. He had further stated that subsequent investigation was conducted by Shiv Kumar Singh, S.O. who had submitted the charge sheet. He had also proved G.D. entry as Ex. Ka-23. This witness was cross-examined by the defence and some discrepancy was tried to be brought forth regarding signatures, time and date which are not material.
14. Girja Shanker Mishra, Constable, P.W. 6 had deposed before the court that body of the deceased was handed over to him to be carried to the mortuary. He had further deposed that from the place of the incident he came to Polly and then brought the body to the mortuary.
15. In their statements u/s 313 Cr.P.C. all the accused persons denied the incriminating circumstances appearing against them in the evidences and took the defence of false implication. They stated that Kallu Singh brother of Virendra Singh aforesaid was murdered in which Jai Chandra and Rakshpal were accused in which they were convicted and because of that reason they have been falsely implicated. The accused, however, did not examine any defence witness.
16. II Additional District and Sessions Judge, Fatehpur relying upon the testimony of the prosecution witnesses found the guilt of the appellants proved to the hilt and therefore, convicted and sentenced them as has been mentioned above.
17. We have heard Sri P.N. Mishra, learned senior counsel in support of this appeal for the three appellants Rajau @ Raja Rain, Ram Raj and Bhanu Prakash as rest of the three appellants Prakash Chandra, Rajendra, Tara Chandra had died and therefore their appeal, as has been stated above, has been abated on 20.4.2007.
18. Sri P.N. Mishra, learned senior counsel submitted that in this case the F.I.R. is anti-timed and is cooked up and the present surviving appellants had not caused any injury to the deceased and therefore, their appeal deserves to be allowed as their participation in the crime has not been proved. He further submitted that the dead body of the deceased was removed from the place of the incident only to give colour to the prosecution story. He further contended that all related witnesses were examined in the trial and no independent witness was produced in the court because prosecution knew that its version was false. Sri P.N. Mishra, further submitted that looking to the enmity between the rival fractions this appeal by the three surviving appellants deserves to be allowed and they deserves to be acquitted.
19. Sri Sudhir Kumar, learned A.G.A. submitted that the incident had taken place in the mid day in the month of November and therefore, there is no chance of any false implication. He submitted that the F.I.R. of the incident was lodged promptly and the special report was sent on the date of the incident itself to the higher officials. He further contended that the medical report is consistent with the ocular version and the deposition of the two witnesses of facts Surendra Singh, P.W. 1 and Kamal Singh P.W. 3 are consistent, cogent and reliable and cannot be discarded. He further argued that the defence has failed to bring out anything from the deposition of witnesses to discredit their testimony. Concludingly, learned A.G.A. contended that since the three surviving appellants formed an unlawful assembly and committed the murder of the deceased Virendra Singh in day light, therefore, they have been rightly convicted u/s 302 I.P.C. read with Section 149 I.P.C. and this appeal being merit less deserves to be dismissed.
20. We have given out anxious considerations on the rival contentions and have appreciated the evidence of the witnesses critically ourselves. From the evidences there is no doubt that Virendra Singh deceased was murdered at the date and time of the incident as the same has not been challenged at all. From the place of the incident blood, pellets and wads have also been recovered by the I.O. which has been duly proved by him as Ex. Ka-10, Ka-11 and Ka-12. These recoveries of wads and pellets from the place of the incident has not been challenged by the defence and from the statement of S.I. N.U. Siddiqui, P.W. 5., we have not been able to find out anything favourable to the accused and consequently we are of the opinion that the date, time and place of the incident in this case is well established by the prosecution.
21. A perusal of the medical report and the evidence of doctor B.K. Agrawal, P.W.4 further establish the fact that the deceased had sustained five gunshot injuries on his body out of which four injuries were wounds of entry and one was gunshot wound of exit. Out of these injuries two injuries were from point blank range because of the presence of blackening and tattooing. These two injuries are assigned to Prakash Chandra the accused appellant who has died. The third injuries to the deceased which is on his abdomen is attributable to the shot fired by the already dead accused Rajendra according to the statement given by the two witnesses of fact. This leaves us to a single gun shot injury on the back which has not been attributed to any of the four appellants specifically including the three surviving appellants. Thus, from the record it is clear that the number injuries sustained by the deceased was smaller in number than the number of accused. This fact clearly indicates that some of the accused persons have been falsely implicated in the case as the number of injuries is not commensurate with the number of assailants. From the perusal of the evidence it also transpires that the role of causing death of the deceased has been assigned to Prakash Chandra and Rajendra. So far as the three surviving appellants are concerned fit is stated that they chased the deceased but did not attempt to murder him. P.W. 1 Surendra Singh had clearly stated that the first fire made by the accused did not caused any injury to any body and there is no evidence on record to show as to who had made that fire. He had further deposed that the appellant Prakash Chandra was warmed with a D.B.B.L. gun and rest of the appellants were armed with a S.B.B.L. guns. He had further deposed that two fires were made from behind which had hit the deceased and after he had fallen down Prakash Chandra (dead appellant) made two shots from his D.B.B.L. gun from a close range on the deceased and caused his death. He had further evidenced that Rajendra (died accused) has made a fire from 8 or 10 paces from the deceased which has also caused injuries to him. Taking these shots together the deceased should have sustained at least five entry wounds but the wounds of entry are only four. Injury No. 5 being a exit wound. This evidence of P.W. 1 thus clearly indicates that at least two of the appellants did not fire at all on the deceased. Further we find that the evidence of P.W. 1 and P.W. 3 is completely silent so far as the overt act to the three surviving appellants Rajau @ Raja Ram, Ram Raj and Bhanu Prakash are concerned. Their names have been spelted out in the evidence in a casual manner and an omnibus role has been assigned to them. Informant was not a novice. He was an accused in a minder case in which he had not appeared as has been evidenced by him and he was sure that the police was bound to submit a final report in his favour. There were many other enemies of the family as well. His grandfather Yogendra Pal Singh @ Kallu Singh was an accused in the murder case of one Badri Singh. From the record we also find that the inquest was conducted on 7.11.1978 next day morning and finished at 8.00 A.M. and at the very time the body was dispatched for post-mortem examination but the post-mortem report indicates that the autopsy was conducted on the next date 8.11.1978 at 1.00 P.M. Doctor B.K. Agrawal P.W. 4 had made a note that the body was received on 7.11.1978 but the papers were received to him on 8.11.1978 at 10.00 A.M. Thus, we are not sure that the papers including the F.I.R. was sent along with the dead body. This fact creates a doubt on the prosecution allegation of lodging of the F.I.R. at the time when it is alleged to have been lodged.
22. Examining the case of the three appellants we also find that they cannot be held liable for murder with the aid of Section 149 I.P.C. For convicting an accused with the aid of Section 149 I.P.C. there has to be cogent and reliable evidence that the crime was committed by him in furtherance of the common object. In this respect the evidence of the prosecution should be clear and unambiguous. In the present case we find that prosecution has examined only two inimical, interested and related witnesses and no independent witness has come forward to support its case. Surendra Singh P.W. 1 is the son of the deceased and Kamal Singh P.W. 3 is his brother-in-law. It is a day time incident in the months of November when many villagers remain in their field for growing wheat crop and cutting of paddy crop. Not a single person had come forward to support the prosecution case. The two witnesses who have deposed against V the appellants also do not say anything specifically against the three surviving appellants but for mentioning their names only. From their evidence we have not found even the role of exhortation assigned to these appellants. Further we find that the Investigation Officer has recovered to empty cartridges o 12 Bore from the place of the incident. Total number of injuries sustained by the deceased are only four which according to the prosecution was caused by Prakash Chandra and Rajendra. Thus, had six accused participated in the incident the presence of two empties at the spot would have been very remote. The presence of two empties indicate repetition of shots and therefore, we are of the opinion that the number of assailants was much less then what has been alleged by the prosecution. In our effort to separate the grain from the chaff what we find is that the prosecution version is acceptable so far as the three dead appellants Prakash Chandra, Rajendra, Tara Chandra are concerned but looking to the inimical nature of the witnesses we have our doubts regarding the participation of the three surviving appellants in the crime who has not caused any injury to the deceased or to any body else. Applying the rule of abundant caution on such facts and circumstances we are of the opinion that the prosecution has not been able to establish the charge of murder with the aid of Section 149 I.P.C. on the three surviving appellants Rajau @ Raja Ram, Ram Raj and Bhanu Prakash and there is no reliable evidence to hold that they shared the common object with other accused persons to murder the deceased and resultantly we are of the opinion that their conviction and Sentence have been wrongly recorded and they are entitled to acquittal.
23. Resultantly, the appeal is allowed in respect of the aforesaid three appellants Rajau @ Raja Ram, Ram Raj and Bhanu Prakash. Their conviction and sentence is set aside and they are acquitted of the charge of murder. They are on bail. They need not surrender, Their bail bonds and surety bonds are cancelled.
24. Let copy of this order be certified to the trial court for its intimation.
