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Allahabad High Court · body

2000 DIGILAW 676 (ALL)

STATE OF U P v. ANI RAJ

2000-05-05

M.C.JAIN, R.R.K.TRIVEDI

body2000
M. C. JAIN, J. This appeal has been filed by the State against the judgment and order dated 29-8-91 passed by Sri Phool Singh, the then 1st Addl. Sessions Judge, Meerut in Sessions Trial No. 364 of 1988 whereby two accused arrayed as opposite parties in this appeal, namely, Ani Raj and Ved Pal were acquitted of the charge framed against them under Section 302, l. P. C. for the murder of one Anil Kumar. The appeal had earlier been dismissed by a Division Bench of this Court by order dated 13-1-97. The State went in special appeal before the Supreme Court and by order dated 13-7-97 the Apex Court allowed theappealofthestateandsctasidetheorder of this Court dismissing the appeal in limine. It was directed that this Court would grant leave, this admit this appeal and would then decide it on merits. In consequence of such order of the Supreme Court, the appeal was admitted on 21-5-97. It was now been heard on merits. 2. The incident took place on 15-7-88 at about to 10 a. m. in village Madarpura, Police Station Sardhana, District Meerut. One Anil Kumar son of Sheo Lal was murdered in this incident and the report was lodged at the concerned Police Station by his uncle Mehar Chand PW1 at 11 a. m. The distance of the Police Station from the place of occurrence was about 8 kms. The case of the prosecution as per the first information report and evidence adduced in the Court, was that on the fateful day and time Anil Kumar was going to the northern side of the village through Kharanja way (brick lavement) to answer the call of nature. When he reached in front of the houses of Waheed Fakir and Khacheru, the present two accused-op posite parties Ani Raj and Ved Pal together with Shri Pal appeared there with country made pistol in their hands and all of them opened fire on Anil Kumar. He fell down and died at the spot. At the time of incident Mehar Chand PW 1, his brother Tika Ram and sister-in-law Tilko were present in front of their house and witnessed the incident. The accused-opposite parties made their escape good towards the jungle in the northern side. He fell down and died at the spot. At the time of incident Mehar Chand PW 1, his brother Tika Ram and sister-in-law Tilko were present in front of their house and witnessed the incident. The accused-opposite parties made their escape good towards the jungle in the northern side. It was also disclosed in the first information report that there was old enmity and litigation between the two sides and it was for this reason that Anil Kumarwas murdered. 3. It may be slated here that Ved Pal accused-opposite party and Shri Pal ac cused were real brothers whereas Ani Raj was their nephew. Shri Pal died after his statement under Section 313, Cr. P. C. 4. On lodging of the First Informa tion Report by Mehar Chand, a case under Section 302, I. P. C. was registered by H. C. Ram Saran Sharma PW 5 and investiga tion followed which was taken up by S. I. Kripal Singh Shishodia PW 3. He proceeded to the spot and busied himself in the investigation of the case by prepar ing the panchayatnama of the dead-body on the deceased and other relevant papers. He inspected the spot and took in his possession blood stained and simple pieces of brick pavement where the inci dent had taken place. The dead-body of the deceased, after being sealed, was sent for post- mortem through Constable Kamal Singh and Constable Ran Singh PW 4. The post- mortem over the dead-body was conducted by Dr. P. N. Khanna PW 6 on 16-7-88 at 1 p. m. The outcome of the post- mortem may be set forth. The deceased was aged about 25 years and about one day had passed since he died. The following ante-mortem injuries were found on his person: (1) Gun shot wound of entry 1 cmxl cm x brain cavity deep on the right side 2 cm above right ear. (2) Gun shot wound of exit 11 cm x 8 cm x brain cavity deep on left side head with protrusion of brain matter, multiple fractureof cranial bones (FPTbones ). (3) Gun shot wound of entry 2 cm x 1/2 cm x muscle deep on the right arm 3 cm below shoulder. (4) Gun shot wound of entry 2 cm x 1/2 cm chest cavity deep on the outer upper part of right side chest at 11 O clock posi tion. (3) Gun shot wound of entry 2 cm x 1/2 cm x muscle deep on the right arm 3 cm below shoulder. (4) Gun shot wound of entry 2 cm x 1/2 cm chest cavity deep on the outer upper part of right side chest at 11 O clock posi tion. (5) Gun shot wound of exit 2 cm x on 1 1/2 cm x chest cavity, 10 cm from injury No. 4, on the right side of chest. (6) Gun shot wound of entry and exit 11/2cm x 1 cmx chest cavity deep in the left arm-pit. (7) Gunshot wound of entry and exit 3cm x 3cm x bone deep on the right wrist. (8) Abrasion 3 cm x 2 cm on left knee-front side. 5. The death had occurred due to shock and haemorrhage as a result of ante-mortem fire-arm injuries. 6. On conclusion of the investigation, the Investigating Officer chargesheeted the accused persons. At the trial, the prosecution examined in all six witnesses, out of whom Mehar Chand PW 1 and Tika Ram PW 2 were the eye-witnesses of the fact. The rest of the witnesses comprised of the Doctor, Investigating Officer and police personnel. 7. Consequent upon the death of one of the accused, namely, Shri Pal, after the statement under Section 313, Cr. P. C. , the case abated against him. By the impugned judgment, the learned Trial Judge ac quitted the other two also, namely, Ved Pal and Ani Raj holding that Mehar Chand PW 1 and Tika Ram PW 2 were not believ able as their evidence was in conflict with the medical evidence. Their presence at the spot was held to be not probable. Another reason given for acquittal was that no independent witness had been examined. It was also observed that the prosecution had good motive to falsely implicate the accused persons. Naturally, the State being aggrieved by the judgment of acquittal and preferred this appeal. 8. We have heard learned A. G. A. from the side of State in support of the appeal and Sri P. N. Mishra, learned Senior Advocate from the side of accused-op posite parties in opposition of the appeal. The record of the case has also been care fully gone through by us in our quest to reach the right conclusion. 8. We have heard learned A. G. A. from the side of State in support of the appeal and Sri P. N. Mishra, learned Senior Advocate from the side of accused-op posite parties in opposition of the appeal. The record of the case has also been care fully gone through by us in our quest to reach the right conclusion. The argument of the learned A. G. A. is that the trial Court acquitted the accused- opposite parties on a casual and superficial approach ignoring the trustworthy evidence of the two eye witnesses with imaginary conclusion that there was conflict between the ocular and medical evidence. According to him, ab sence of other independent witnesses could not and did not justify the throwing away of the testimony of Mehar Chand PW 1 and Tika Ram PW 2. The motive, according to him, also for the accused-op posite parties to have committed this crime. On the other hand, the submission from the side of accused-opposite parties is that the reasoning adopted by the learned trial Judge is perfectly justified and no conviction could be based on the strength of the evidence that had been adduced before the Court below. We would do better to examine the different material aspects of the case in thesucceed-ingdiscussion. 9. To take up the question of motive first, it is well-known that the enmity is a double edged weapon which cuts both ways. It may actuate one of the parties involved in the enmity to commit a crime against the other and at the same time, the other party may be inspired to implicate his adversary falsely. What is to be seen is as to who could be aggrieved and harbour ing greater grudge against the other, regard being had to the previous back ground giving rise to enmity. In the case at hand, admittedly the relations between the two sides were inimical. It has come to be revealed by Mehar Chand PW 1 that ear lier to the present incident, Jai Veer-father of accused-opposite party Ani Raj had been murdered in which his own son Kun-war Pal, nephew Anil Kumar (deceased of the present felony) and Satyendra were the accused and facing trial. It has come to be revealed by Mehar Chand PW 1 that ear lier to the present incident, Jai Veer-father of accused-opposite party Ani Raj had been murdered in which his own son Kun-war Pal, nephew Anil Kumar (deceased of the present felony) and Satyendra were the accused and facing trial. Judged in this perspective, there could be greater motive for the accused-opposite parties to commit the murder of Anil Kumar so as to avenge the murder of Jai Veer (father of accused-opposite party Ani Raj ). The background of murder of Jai Veer father of Ani Raj accused-opposite party allegedly by the deceased Anil Kumar and the son of Mehar Chand P W 1 along with Satyendra could not inspire the prosecution side to falsely implicate the accused-opposite parties and deceased accused Shri Pal. Rather the greater possibility could only be of the accused-opposite parties with their family members harbouring grudge against Anil Kumar and his family mem bers because of the earlier murder of Jai Veer. This inference has the attraction of logic having regard to ordinary human conduct. We, therefore, do not agree with the learned trial Judge that the prosecu tion side had the motive to falsely impli cate the accused- opposite parties. To come to the point, first important feature goes in favour of the prosecution and against the accused- opposite parties that letter had a motive to commit the murder of Anil Kumar by liquidating him, whom they believed to be one of the murderers of their next of kin-Jai Veer. 10. We also do not think that the absence of other independent witnesses could adversely affect the prosecution case. No other witness was named in the F. I. R. The reasoning adopted by the trial Judge is that there were the houses of other, namely, Khacheru, Waheed, Sham-shad, Mustafa etc. in the neighbourhood of the place of occurrence and the incident had taken place in day time. They must have been the natural witnesses of the incident. The statement of Mehar Chand PW 1 is that none of the neighbours was there at the spot at the time of incident. To the same effect is the statement of Tika Ram PW 2. Indeed, the prosecution could not be expected to manufacture false evidence by production of artificial so-called witnesses. It is the quality of evidence that matters, and not the quan tity. To the same effect is the statement of Tika Ram PW 2. Indeed, the prosecution could not be expected to manufacture false evidence by production of artificial so-called witnesses. It is the quality of evidence that matters, and not the quan tity. The Apex Court has held in the case of Ambika Prasad & am etc. v. State (Delhi Administration, Delhi) JT2000 (1)SC273, 2000 (1) JIC 786 (SC) that it is known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. If independent persons are not willing to co-operate with the investigation, prosecution cannot be blamed. In the present case, the situation is that no other witnessed did even actually witness the incident. So, there could be no question of producing the independent witnesses. 11. Of course, the testimony of Mehar Chand PW 1 and Tika Ram PW 2 has to be subjected to close scrutiny. Mehar Chand PW 1 is also maker of the F. I. R. which was made by him without loss of time. No doubt, both of them are close relatives of the deceased. But they have given convincing, forceful and plausible explanation as to how they could see the incident. The house of Mehar Chand PW 1 has been depicted by, letter c in the site plan prepared by the Investigating Officer and is situated inthe southern side of the place of incident of the Kharanja (brick pavement) through which the deceased was going to the northern side to answer the call of nature. The house of deceased was situated just across the Kharanja in front of the house of Mehar Chand PW 1 and the same is depicted by letter b in the site plan. The incident took place in front of the house of Khacheru and Waheed. Kharanja was straight without curve be tween the points b & c on the one hand and a on the other where the incident took place. The distance of the place of occurrence from the house of deceased is mentioned as 56 paces. As mentioned ear lier, the house of Mehar Chand PW 1 was just in front thereof. Obviously, the dis tance has been mentioned by the I. O. by approximation. It being a day. The distance of the place of occurrence from the house of deceased is mentioned as 56 paces. As mentioned ear lier, the house of Mehar Chand PW 1 was just in front thereof. Obviously, the dis tance has been mentioned by the I. O. by approximation. It being a day. time and there being nothing to obstruct the view from outside the house of Mehar Chand PW 1 upto the place of occurrence, he as well as Tika Ram PW 2 could very well witness the incident from that spot (from outside the house of Mehar Chand PW 1 ). The accused-opposite parties were known also to them from before as they belonged to trie same village. There is categorical and emphatic stalemenl of Mehar Chand PW 1 that at the time of incident he was standing outside his house with his brother Tika Ram and sister-in-law Tilku. Tika Ram PW 2 also explained that he was sianding oulside ihe house of his brother Mehar Chand and was talking wilh him for going to the jungle. There was nolhing unusual if Mehar Chand PW1 and his brother Tika Ram PW 2 were standing outside the house of one of them (Mehar Chand) at the time of incident. It appears to us that learned trial Judge viewed the testimony of Mehar Chand PW 1 and Tika Ram P W 2 in a pedantic way to find fault in it so as to discard the testimony without any justifiable and sustainable ground. 12. It also cannot be argued that there is any conflict between the ocular and medical evidence. The argument of learned Counsel for the accused-opposite parties is that the deceased sustained five gunshot wounds of entry No. 3 exit whereas the testimony of the eye-witnesses is that each of the accused persons had fired one shot, meaning thereby that three shots had been fired in all. It has also been reasoned that gunshot wound of entry detailed in the ante-mortcm injury No. 1 in the post- mortem report and cor responding to the exit wound (ante-mor-tem Injury No. 2) could only be caused by a bullet. According lo the learned Counsel, in all probabilities, it was rifle injury. It has also been urged that as per Mehar Chand PW 1, all the three accused had fired shots from a distance of one pace. According lo the learned Counsel, in all probabilities, it was rifle injury. It has also been urged that as per Mehar Chand PW 1, all the three accused had fired shots from a distance of one pace. It has been urged that no blackening or charring was found around any of the gunshot wounds of the deceased which must have been there if shol has been fired from within a distance of 4 fts. He also supporled the reasoning of the learned trial Judge that 8th injury of the deceased which was abrasion on the left side of knee was not in conformity with the stalement of Mehar Chand PW 1 that on sustaining gunshot. Anil Kumar had fallen down flal wilh back lo the side of ihe ground and ihe face lowards sky. So, he could nol suslain any abrasion on his knee joinl. We are in judg-menl aclually, there is no conflicl belween ihe ocular leslimony and medical evidence. Indeed, the dislance of firing has been spoken by Mehar Chand PW 1 on his own eslimalion and asscssmenl. Arcalislic view of ihe mailer has to be laken lhal approximalion of Ihe dislance given by a person should nol be taken wilh such ex-actitude as is done by measuring wilh a lape. We may also make reference to a decision of Supreme Court in Slate ofu. P \. Sughar Singh, AIR 1978 SC 191 , lhal where direcl evidence ofeyc-wilnesses is available, inconsistency relating lo distance from which the gunshot were fired, between the evidence of medical expert and the eye-witnesses, is of no significance. 13. Moreover, in the present case the weapon of offence had not been recovered. The testimony of eye- witnesses is that the accused had opened fire with country made pistols. The principles of medical jurisprudence regarding distance etc. are based of experiments made by standard weapons and ammunition. In the present case, the weapons of offence having not been recovered, it cannot be said with any amount of certainty as to what type of bullet cartridges had been used therein. It may also be pointed out that at times bullet is also used in a country made pistol. It is not known as to what type of ammuni tion had been used in country made pistols from which shots had been fired by the accused. It may also be pointed out that at times bullet is also used in a country made pistol. It is not known as to what type of ammuni tion had been used in country made pistols from which shots had been fired by the accused. The ante-mortem injuries of gun shot wounds of entry Nos. 3, 4 and 5 were on right side in close proximity of each other. Ante-mortem injury No. 7 was also on the right wrist. What we wish to em phasize is that the five gunshot wounds of entry sustained by the deceased could be the result of only three shots and there is no inconsistency between the medical evidence and ocular testimony. The Supreme Court has also held in the case of Leela Ram (D) through Dull Chand v. State ofharyana & Anr. , JT 1999 (8) SC 274; 2000 (1) JIC 632 (SC), that in a murder case it is immaterial whether one or two shots had been fired, if the eye witnesses are believable. Sustaining of abrasion by the deceased on front of his left knee (injury No. 8) also does not create any conflict between the testimony of Mehar Chand PW1 and medical evidence shots, the vic tim would have rolled down to the ground lying in supine condition. In the process of rolling down to the ground, his left knee could have received abrasion by coming in contact with Kharanja (brick pavement ). In view of what we have stated above, we reject the argument of learned Counsel for the accused-opposite parties that there was any conflict between the medical evidence and ocular testimony. 14. We also do not attach any impor tance to this aspect of the matter that the wads or empty cartridges had not been found by the Investigating Officer at the spot. Suffice it to say that after the incident, the place of incident which was public pathway had not been cordoned off. The prosecution case is, therefore, not adversely affected if the Investigating Of ficer did not recover any empty cartridges etc. from spot when he visited it. 15. It is amazing that the learned trial Judge drew adverse inference against the prosecution on this score also that there was no chemical examination report regarding pieces of Kharanja collected by the Investigating Officer at the spot being stained with human blood. from spot when he visited it. 15. It is amazing that the learned trial Judge drew adverse inference against the prosecution on this score also that there was no chemical examination report regarding pieces of Kharanja collected by the Investigating Officer at the spot being stained with human blood. We are of the definite view that non- production of chemical examination report in this behalf could not overshadow the trust worthy, convincing and satisfactory evidence of the two eye-witnesses, namely, Mehar Chand PWlandtikarampw2. 16. It appears to us that the learned trial Judge gave free flight to his imagina tion and recorded acquittal in favour of the accused-opposite parlies on an apologetic approach that the deceased was a hardend criminal being involved in a number of case and defence suggestion was accept able that he might have gone out in the night and murdered by some one else in the forest by firing of more than 5 shots. This theory put forth by the defence appeared to him to be nearer the truth. To us, wild imagination alone could permit such an inference ignoring the trustworthy evidence of the two eye- witnesses which was not at all in conflict with medical evidence and was in tune with the motive on the part of the accused- opposite par ties to liquidate the deceased. The simple fact that the deceased was involved in cer tain criminal cases did not and could not mean that he had lost his right of life and liber ty and could be murdered by any one. 17. On judging different aspects of the case in the light of material and evidence on record, we are of the opinion that the judgment of acquittal recorded by the learned trial Judge is wholly unwar ranted and unsustainable. With a casual approach, he viewed the prosecution evidence and attending circumstances with a fault finding angle and recorded acquittal on the basis of freak inference based on imagination. The guilt of the accused- opposite parties Ved Pal and Am" Raj was proved to the hilt as we have discussed here in above. Both of them along with the deceased accused Sri Pal were acting in concert with previous meeting of minds. They committed the murder of Anil Kumar by shooting and thus committed offence punishable under Section 302, 1. P. C. read with Section 34, 1. Both of them along with the deceased accused Sri Pal were acting in concert with previous meeting of minds. They committed the murder of Anil Kumar by shooting and thus committed offence punishable under Section 302, 1. P. C. read with Section 34, 1. P. C. However, it is not a case calling for the penalty of death sen tence. Therefore, each of them would be awarded life imprisonment. 18. In conclusion, we allow this ap peal filed by the State and quash the im pugned judgment and order of the learned trial Court acquitting the accused-op posite parties Ved Pal and Ani Raj. Both of them are held to be guilty of the offence punishable under Section 302, 1. P. C. read with 34, 1. P. C. Each of them is convicted for the said offence and sentenced to life im prisonment. Both the accused-opposite parties are on bail. Their bail bonds are cancelled. Chief Judicial Magistrate, Meerut is directed to get them arrested and to commit them to prison to serve out the sentence of life imprisonment. 19. Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful compliance under intimation to this Court within two months positively. Appeal allowed. .