A.B. Srivastava, J.@mdashAppellants Ganga Sahai and Panna Lal have preferred this appeal against a judgment and order dated 25.1.1980 of the IV Additional Sessions Judge, Etah, convicting both of them of the offences under Sections 364 and 302/34 of the Indian Penal Code and sentencing to R.I. for 10 years and imprisonment for life respectively, directing both the sentences to run concurrently. By the same judgment one of their co-accused Rajendra Singh was acquitted.
2. The prosecution story, in brief, is that non-Appellant accused Rajendra Singh was inimical to deceased Brij Pal, son of Anand Singh, resident of Village Dharpasi, P.S. Marhara, District Etah, on account of a quarrel which took place between them during voting in the elections a few months ago. Accused Appellants Ganga Sahai and Panna Lal who are real brothers, had also a grudge against the deceased in so far as they suspected him of having stolen their buffaloes.
3. On 25.3.1978 at about 7 p.m. it is alleged, deceased Brij Pal and his uncle informant Mahendra Singh (P.W. 2), were sitting in their courtyard, where two other persons Mahendra Singh, son of Sardar Singh and Gajendra Singh (P.W. 3) were also present. Appellants Ganga Sahai and Panna Lal along with one more person (later identified as non-Appellant accused Rajendra Singh), came there and asked Brij Pal to accompany them as they had an important thing to talk about. When informant Mahendra Singh told them to talk at that very place, they told that a relation of the deceased had come and wanted to talk with him outside the village. On this Brij Pal went with them. After a gap of about 15 minutes there was heard sound of gun fire from towards the Railway line at a distance of about one furlong, hearing which the informant and others rushed in that direction. On way they met Pitamber (P.W. 4), Padam Singh (P.W. 5), Anand Singh (P.W. 6), the father of the deceased, and Ajab Singh (P.W. 7), who informed them to have been the accused persons going from near the place of occurrence with country made pistols in their hands, and also having been informed by Brij Pal. who was lying injured in a pit near the Railway line, about the person accompanying the Appellants having shot at him. The injured Brij Pal was taken on a cot to Police Station Marhara, where the First Information, Exhibit Ka-3 was lodged naming the two Appellants and stating their accomplice could be identified by face. The F.I.R. was registered u/s 307, I.P.C. at 10.30 p.m. on 25.3.1978. The injured Brij Pal was sent to the Primary Health Centre Marhara where his injuries were examined by the Medical Officer-in-Charge at 11.55 p.m. on 25.3.1978. The following injuries were found as per the injury report, the genuineness of which was admitted by the defence u/s 394, Code of Criminal Procedure.
1. Gun-shot wound 1 1/2 cm x 1 cm x 2 cm over the anterior lateral aspect of right forearm 2 cm below the right elbow joint.
2. Gun-shot wound 1 cm x 1 cm on the front of right forearm 4 cm from the right elbow joint.
3. Gun-shot wound 2 cm x 1 cm x 1/2 cm on the right side of abdomen 18 1/2 cm from right breast.
4. Gun-shot wound 2.4 cm x 1.5 cm on the right side of abdomen 25 cm from right nipple.
5. Gun-shot wound 1 cm x 1 cm x 2 cm on the right side of abdomen.
6. Gun-shot wound 2 cm x 1 cm on the right side of abdomen 18 cm from umblicus.
7. Gun-shot wound 1 cm x 1 cm on the right side of chest, 24 cm downwards laterally from the right breast.
4. The general condition of the injured was poor and he was referred to the District Hospital, Etah. While being taken to the hospital, however, he succumbed to his injuries in the morning of 26.3.1978. The case was then altered into one u/s 302, I.P.C.
5. The investigation of the case was taken up by P.W. 11 S.I. Gautam Singh who claims to have recorded the statement of injured Brij Pal at 3.13 a.m. on 26.3.1978. The said statement, copy of which is Ex. Ka 6 has been relied on by the prosecution as dying declaration of the deceased.
6. Reaching the place of occurrence in the morning he prepared a site plan of the place of occurrence, took blood stained and unstained earth, pellets and wad of cartridge and also recorded the statement of the eye-witnesses. On learning about the death of Brij Pal near the Railway Station, he went there and prepared the inquest report and other relevant documents and sent the dead body for post-mortem.
7. The post-mortem examination was conducted by the P.W. 1 Dr. R.P. Yadav on 26.3.1978 at 4.30 p.m. who found death of the deceased to have been caused 1/3 day ago due to shock and haemorrhage on account of the gun-shot injuries as per details in the post-mortem examination report Exhibit Ka 1. The Investigating Officer, P.W. 11 submitted charge-sheet against the two Appellants, whereas the charge-sheet against accused Rajendra Singh who was arrested during the course of investigation and was subjected to test identification, was submitted by S.I., J.P. Singh, this led to the committal of the 3 accused persons to the court of session, where they were charged with the offences under Sections 364 and 302/34 of the I.P.C, to which they pleaded not guilty and claimed to be tried. Both the accused Appellants denied having any enmity or motive for abducting or committing the murder of deceased Brij Pal, and alleged to have been falsely implicated due to groupism in the village. The 3rd accused Rajendra Singh also pleaded that his identification was a laree as he was known to the witnesses from before.
8. The prosecution in support of its case examined 11 witnesses. The P.W. 1 Dr. R.P. Yadav who conducted the post-mortem examination, P.W. 9 Constable Om Prakash who took the injured Brij Pal to the hospital and later his dead body for post-mortem examination, P.W. 10 Constable Gulam Nabi recorded the F.I.R. under the relevant G. D. entries and P.W. 11 S.I.. Gautam Singh who conducted the investigation, are formal witnesses, the rest of the witnesses being witnesses of fact.
9. The learned Sessions Judge accepting the prosecution version in part only, acquitted accused Rajendra Singh, whereas convicted and sentenced the two Appellants as stated above.
10. We have heard the learned Counsel for the Appellants and have carefully been taken through the evidence on record.
11. In this case the factum of death of Brij Pal in the morning of 26.3.1978 on account of gun shot injuries caused to him in the preceding night, near the Railway line, at a distance of about a furlong from the abadi, not being disputed, burden lay on the prosecution to prove that the said fatal injuries were caused to the deceased by an accomplice of the Appellants and that for that purpose, the Appellants deceitfully took away the deceased from his house to the place of occurrence. The contention on behalf of the Appellants by their learned Counsel Shri S.A. Shah, is to the effect that the prosecution has totally failed in establishing the existence of any motive for the Appellants to commit the murder of the deceased, the evidence of the alleged eye-witnesses, led by the prosecution is neither reliable nor trustworthy and the story put forth suffers from such infirmities and improbabilities that no reasonable conclusion can be drawn about the guilt of the accused persons. It has on the other hand been contended by the learned A.G.A. that on the evidence led by the prosecution the learned Sessions Judge has rightly held the Appellants guilty. Now the evidence and the circumstances may be examined in the light of these submissions.
12. Taking up first the question of motive, it would be found that the F.I.R. Exhibit Ka 3 is totally silent on this aspect. The motive for the first time is stated to have been spelt out in the alleged statement u/s 161 Code of Criminal Procedure of the deceased (Exhibit Ka 6), relied on as his dying declaration by the prosecution, wherein it has been stated that the non-Appellant accused Rajendra Singh had a quarrel and marpit with the deceased, while the latter was trying to impersonate his uncle informant Mahendra Singh. As regards the Appellants Ganga Sahai and Panna Lal, it was stated that they suspected the Appellants to have committed theft of their buffaloes about 1 1/2 months ago. Appearing in the witness box the P.W. 2 Mahendra Singh, also stated about the quarrel between deceased and Rajendra Singh, but he does not claim to be an eye-witness of the same. He also stated that it were the two Appellants who had informed him about the suspicion of involvement of the deceased in the theft of buffaloes. However, he pleaded ignorance about the date of the occurrence of theft and denied having stated about any date to the Investigating Officer. It is also not the case of the prosecution that any F.I.R. suspecting the deceased''s involvement in the theft of buffaloes, was lodged by the Appellants. The Appellants on their part categorically denied that they had any suspicion in that regard against the deceased. However, even if it may be assumed that there was such a suspicion in the mind of the Appellants, the same in the absence of any background of previous strained relationship, could not have constituted a motive strong enough to eliminate the deceased by committing his murder.
13. As far as the motive for the alleged accomplice of the Appellants is concerned, the position is still worse. The only person besides the deceased, claimed by the prosecution to have seen this incident, P.W. 8 Rajvir Singh, has denied that any such incident of quarrel between non-Appellant accused Rajendra Singh and deceased Brij Pal occurred during voting. A very important aspect of this matter is that if while acting as agent of a candidate on a polling booth, Rajendra Singh was beaten by the deceased, as mentioned in his alleged dying declaration, the polling and the security staff would invariably have apprehended and lodged F.I.R. against the deceased. That no such F.I.R. was lodged, coupled with the denial by P.W. 8 Rajvir Singh, and absence of any mention in the F.I.R., are indicative of the fact that the story of the quarrel and marpit at the polling booth and the same constituting the background motive for this murder, is merely a product of imagination. The failure of the prosecution to establish any motive on the part of the Appellants and their alleged accomplice thus goes a long way to weaken the prosecution case against the Appellants as well. True it is that proof of existence of motive is not always a prerequisite to the commission of a crime, but where motive is alleged and is not proved or rendered improbable, it does affect the veracity of the prosecution version.
14. Coming to the facts relating to the occurrence, and that immediately preceding the same, also it would be found that the prosecution story as well as the evidence led by it lacks credibility. The evidence in this regard consists in the first part, of the statements of the P.W. 2 Mahendra Singh, P.W. 3 Gajendra Singh and Rajendra Singh on the point of the Appellants along with their 3rd accomplice having gone to the house of the deceased and taken him away to the outskirts on the pretext of meeting a relation and the sound of the fatal gunfire having heard after about 15 minutes, in the second part, of the alleged dying declaration (Exhibit Ka 6) of the deceased about the above said fact as well as his being shot at by the accomplice of the Appellants, and in the 3rd part of the statements of P.W. 4 Pitamber, P.W. 5 Padam Singh and P.W. 6 Anand Singh claiming to have seen the 3rd accused assailant going from towards the place of occurrence and the deceased who was lying injured telling them about the assailants and the manner of incident.
15. Now taking up the first part of the incident relating to the deceased being led by the Appellants to proceed with them, towards the Railway line on the outskirts of the village, a careful scrutiny of the evidence would go to show that the same besides being highly improbable, also suffers from serious contradictions, and there has been an attempt to improve and embellish the story at each and every stage. The story in the F.I.R. lodged by an alleged eyewitness of this part, was to the effect that, the two Appellants along with their 3rd accomplice who could be identified by features, came to the house of the deceased where his uncle and others were also present, and told him to accompany to a lonely place as they had an important matter to talk and on this the deceased went with them. In his statement in court, however, the informant Mahendra Singh stated that the 3rd person who came along with the Appellants to his house, had covered his face with a Dhata. When the informant asked the Appellants to disclose the urgent work then and there, they told that one of their relations has come and wanted to meet at a secluded place. It would be found that neither in the F.I.R. nor in the statement of the other witness on this point P.W. 3 Gajendra Singh, there is any mention of the fact of the 3rd accused being covered by a Dhata. In fact in his cross examination P.W. 3 Gajendra Singh stated that he did not see any 3rd person along with the Appellants Ganga-Sahai and Panna Lal. The version of the first informant Mahendra Singh in this regard is also belied by Exhibit Ka 6, wherein the deceased is alleged to have stated about only Appellants Ganga Sahai and Panna Lal having come to his house, and their accomplice being seen for the first time standing behind a Sheesham tree in the vicinity of the place of occurrence. Here again there was no mention of the said person having covered his face by a Dhata. Obviously in these circumstances the subsequent introduction of the theory of Dhata is not without purpose. The purpose being to explain away the absence of the name of co-accused Rajendra Singh in the F.I.R, it being an undisputed fact now, as found by the learned Sessions Judge also, that he was known to the witnesses from before.
16. In fact the very story regarding the reason for the deceased to have gone towards the railway line late in the evening, on being simply asked by the Appellants, appears to be highly improbable. If it was a fact that the Appellants had a grudge against the deceased and the same was within the knowledge of the deceased and his family members, they would not have permitted the deceased to go all alone and unarmed, in their company. The theory that he did so because of the Appellant''s insistence that a relation of his wanted to meet him at a lonely place, hardly stands to reason, because a relation would not utilise the services of a 3rd person for the purpose, secondly he would not be an unnamed or undisclosed relation and, thirdly, no relation would like to talk in seclusion unless he had something to hide from others in the family.
17. Yet another important aspect going to cut at the very root of the theory of the prosecution, is that the Appellants are stated to have been armed with pistols which was not kept concealed while they led away the deceased towards the Railway line. As per the version attributed to the deceased in his statement Exhibit Ka 6, he saw pistols with the Appellants while he was accompanying them from the village towards the place of occurrence, as they had taken out their pistols the moment they came out of the abadi. It is highly improbable to believe that despite there being enmity, and the two Appellants having taken out their pistols, the deceased would have been willingly and gladly accompanying them towards the Railway line to meet his unknown relative, being the accomplice of the Appellant. The only natural reaction of the deceased under such a situation would have been either to run back, or to raise alarm or at least hesitate in proceeding ahead. That nothing such happened, goes to indicate beyond any reasonable doubt, that the whole story in this regard is a product of imagination aimed to provide missing links to an incident of fatal shot on the deceased, which occurred on the outskirts of the village late in the evening, in all probability unnoticed by anyone else. The accused-Appellants who for some reason or other became suspects in the eyes of the first informant and others of the family of the deceased, appear to have been roped in, by inventing a story which does not bear scrutiny.
18. Much emphasis was laid by the learned A.G.A. appearing on behalf of the State, on the statement treated as dying declaration of the deceased. (Exhibit Ka-6), by the learned court below, and it is contended that the Appellants having clearly been named in the said statement of the deceased, the prosecution version stands fully established. In this connection, however, it is noteworthy that Exhibit Ka-6 is not a statement recorded by any Magistrate or any other independent authority, nor is it a signed statement of the deceased. It purports to be a statement of the deceased Brij Pal recorded u/s 161, Code of Criminal Procedure by the Investigating Officer while the deceased was at the hospital bed.
19. A perusal of the said statement Exhibit Ka-6, would go to show that despite the injured Brij Pal being hospitalised, no steps were taken by the Investigating Officer to get his dying declaration recorded by the Medical Officer himself or by any other gazetted officer. Even while recording the alleged statement, there is nothing to show that any endorsement or certificate from the Medical Officer concerned was obtained about the capacity of the injured to make a statement. The statement on its part is quite a lengthy one covering about 2 full scape pages containing details right from enmity to the genesis as well as the details of incident and the events subsequent to it. Considering the fact that the condition of the injured was serious and immediately after being medically examined, he was referred to the District Hospital, goes to make it highly improbable that the deceased could have been in a position to make such a long statement. Although the Investigating Officer has appended a note that the statement was in response to various questions put by him, he failed to record the questions so put by him. Statement so recorded by the police officer, without any endorsement of the treating medical officer about the physical and mental capacity of the person making the statement, in its very nature cannot be accorded the sanctity available to a dying declaration, so as to fasten the liability of a crime on a person or persons accused thereof.
20. Now coming to the 3rd part of the prosecution evidence also, it would be found that the position is no better. While in the F.I.R. it was stated that when on hearing the sound of gunfire the informant and others accompanying him were rushing towards that side, Padam Singh and Anand Singh who were coming from the direction of the place of occurrence told them that the Appellants and their accomplice have shot and injured Brij Pal. The P.W. 4 Pitamber whose name was not mentioned in the F.I.R., however, stated that when he reached, Mahendra Singh and others were already at the spot, and Brij Pal told him that the Appellants called him to the place of occurrence and a 3rd person shot at him from behind a Sheesham tree. The P.W. 5 Padam Singh and P.W. 6 Anand Singh who is the father of the deceased stated that they heard the sound of the shot from a distance of about 20-25 steps and simultaneously saw the two Appellants and their accomplice all armed with pistols coming from that direction. On proceeding further they found Brij Pal lying injured in a pit who informed them that the Appellants brought him there from his house and their accomplice shot at him from behind the Sheesham tree. The version of these witnesses however does not find support from Exhibit Ka 6, the alleged statement of the deceased, in so far as it does not say that the deceased disclosed the names of the assailants to these persons. Even in the F.I.R. it was not mentioned that these persons informed the first informant about Brij Pal having told them the names of the two Appellants amongst the assailants.
21. Had it been a fact that the P.W. 6 Anand Singh in the company of P.W. 5 Padam Singh, had seen the assailants escaping from the place of occurrence and found the injured Brij Pal lying in a pit, they would certainly have raised alarm but nothing such is alleged to have been done. Secondly, being father Anand Singh would not have left the injured Brij Pal in the pit, and chosen to proceed with Padam Singh towards the village. His natural reaction would have been to remain with his injured son. Padam Singh on his own part stands discredited by his own conduct in so far as while he chose to identify co-accused Rajendra Singh during test identification, he filed an affidavit. Exhibit C-1, and also deposed during trial, denying having seen Rajendra Singh amongst the assailants. From such testimony of these witnesses also, therefore, the prosecution cannot derive any support to corroborate the testimony of its other witnesses, or the alleged dying declaration of the deceased, to establish beyond reasonable doubts its allegation of the accused Appellants having led away the deceased to the place of occurrence and thereby having abducted him with intent to commit his murder, or having shared common intention with any accomplice of committing murder of the deceased Brij Pal. None of the charges against the Appellants thus appear to be sustainable on the evidence led in this case.
22. In the result of all the above discussed facts and circumstances, therefore, disagreeing with the learned Sessions Judge, we find that the prosecution has failed to establish beyond reasonable doubts any of the two charges under Sections 364 and 302/34 of the I.P.C, and the conviction of the Appellants and the sentences awarded are unsustainable. The appeal deserves to be allowed.
23. Accordingly, the appeal is allowed. The conviction of the Appellants and the sentences awarded by the learned Sessions Judge are set aside. They are acquitted of the charges framed against them. They are on bail. They need not surrender. Their sureties are discharged.
