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2003 DIGILAW 365 (ALL)

Gaya Prasad v. State of Uttar Pradesh

2003-02-19

K.N.OJHA, M.C.JAIN

body2003
M. C. JAIN, J. ( 1 ) THESE two appeals arise out of judgment dated 23/03/1981, passed by Sri J. M. Srivastava, III Additional Sessions Judge, Fatehpur, deciding Sessions Trial No. 396 of 1980 (State v. Vakil Ahmad and another connected with Sessions Trial No. 589 of 1980 (State v. Gaya Prasad ). The three appellants have been convicted under Section 302, I. P. C. read with Section 34, I. P. C. and sentenced to life imprisonment. Criminal Appeal No. 766 of 1981 has been preferred by Gaya Prasad, whereas Criminal Appeal 791 of 1981 has been preferred by Vakil Ahmad and Mobin Ahmad who are real brothers. ( 2 ) IT is the murder of one Imam Ali which is involved in this case. The incident took place in between the night of 28/ 29/04/1980 at about 1. 30 A. M. at the Khalihan of the deceased, situate in village Sarai Aram, P. S. Sultanpur Ghosh, District Fatehpur. The report was lodged on 29-4-1980 at 4 A. M. by the deceaseds son Ehsan Ali P. W. 1 who claimed to be an eye-witness. The distance of the police station from the place of occurrence was about 2 kms. The appellant Gaya Prasad was allegedly armed with gun; Valik Ahmad had an axe and Mobin Ahmad was armed with a Pharsa. As per the F. I. R. , in the fateful night the deceased, informant Ehsan Ali P. W. 1 and his brother Hayat Ali P. W. 2 with Hayat Alis uncle-in-law Aziz were sleeping in their Khalihan where thrashing floor had been made for the processing of the foodgrains stacked there. On the sound of shooting Ehsan Ali, Hayat Ali and Aziz Ahmad woke up and saw the three appellants running with the weapons specified above. They also observed that Imam Ali had been assaulted with sharp edged weapons and gun. They ran chasing the appellants, but to no effect. The neck of the deceased had been cut and he had suffered firearm injuries also on arm and ribs. The F. I. R. also mentioned of some dispute over property with Vakil Ahmad appellant. The case was registered and investigation taken up. ( 3 ) THE post-mortem over the dead body of the deceased was conducted by Dr. R. K. Katiyar P. W. 3 on 29-4-1980 at 4. The F. I. R. also mentioned of some dispute over property with Vakil Ahmad appellant. The case was registered and investigation taken up. ( 3 ) THE post-mortem over the dead body of the deceased was conducted by Dr. R. K. Katiyar P. W. 3 on 29-4-1980 at 4. 30 p. m. The deceased was aged about 45 years and about one day had passed since he died. The following ante-mortem injuries were found on his person. 1. Incised wound 51/2" x 2" x bone deep on right side neck extending from middle to middle from anterior to posterior part with fracture of the cervical fourth vertebrae and cut through of major vessels of neck on right side trachea and oesophagus upper 1/3rd and spinal cord at the level of cervical fourth vertebrae. 2. Multiple firearm wound of entry in an area of 4" x 3" x bone deep of varying shape and sizes from 3/10" to 1/2" in diameter on the inner side and back of right arm upper half with fracture of the humerus. Two pellets were taken out. Blackening and tattooing present. 3. Multiple firearm wound of entry in an area of 8" x 5" x cavity deep (chest and abdomen) on the outer side of lower 2/3rd of chest and upper 1/3rd of abdomen right side. Blackening and tattooing present. Wounds ware of varying sizes 3/10" x 1/2" inside. Six pellets were found lodged in the chest and abdomen on left side and were taken out. ( 4 ) THE cause of death was shock and haemorrhage as a result of injuries sustained by the deceased. ( 5 ) THE defence was of denial and false implication due to enmity. ( 6 ) TO bring home the guilt of the accused appellants, the prosecution examined four witnesses out of whom Ehsan Ali P. W. 1 and Hayat Ali P. W. 2 were eye-witnesses. Dr. R. K. Katiyar P. W. 3 had conducted autopsy on the dead body of the deceased. Umrao Singh P. W. 4 was the Investigating Officer of the case. One Constable Pradyumn Kumar Misra was examined as CW1 who had taken the dead body of the deceased in sealed condition to the mortuary for post mortem. ( 7 ) THE case of the prosecution and its evidence found favour with the trial Judge who recorded the impugned judgment. One Constable Pradyumn Kumar Misra was examined as CW1 who had taken the dead body of the deceased in sealed condition to the mortuary for post mortem. ( 7 ) THE case of the prosecution and its evidence found favour with the trial Judge who recorded the impugned judgment. ( 8 ) WE have heard Sri A. D. Giri learned Senior Advocate assisted by Sri R. B. Sahai, Advocate for the appellants in both the appeals and learned A. G. A. Sri A. K. Dwivedi in opposition of the appeals. We have also carefully perused the record of the case including the evidence and documents on record. ( 9 ) THE case hinges on the testimony of Ehsan Ali P. W. 1 and his brother Hayat Ali P. W. 2, both of whom are the sons of the deceased who also claimed enmity against the accused appellants. In this view of the matter, their testimonial assertions have to be carefully scrutinized in the light of the attending circumstances and the averments made right from the beginning of lodging the F. I. R. ( 10 ) OBVIOUSLY, it was a night incident. We note that the initial case of the prosecution as projected in the F. I. R. which was its earlier version was that the accused appellants, for the first time, had been seen running from the spot with the weapons imputed to them by Ehsan Ali P. W. 1 and Hayat P. W. 2, sons of the deceased. They awoke on the sound of shooting. There was no artificial light but it was stated to be a moonlit night as per Ehsan Ali P. W. 1. It has also been stated by him that the actual assault was not seen by him. It follows from the testimony of his brother Hayat Ali P. W. 2 also. A look at the post-mortem report shows that the deceased received an incised wound and two firearm wounds of entry. On analysis of the testimony of the two eye-witnesses, it comes out that all the injuries must have been inflicted on the deceased before they awoke on hearing the sound of shooting. If the witnesses woke up on the sound of firing and only saw the assailants running, it cannot be said with certainty that they had correctly identified them as being the accused appellants. If the witnesses woke up on the sound of firing and only saw the assailants running, it cannot be said with certainty that they had correctly identified them as being the accused appellants. It is noted that the eye-witnesses made improvement while deposing before the Court by asserting that when they woke up, they saw the three accused appellants standing near the cot of their father with the weapons assigned to them. Thereafter they fled away. It does not stand to logic that the accused appellants would have stood by the cot of the deceased even for a second after they had completed their job by inflicting injuries on him with their weapons. ( 11 ) FURTHER, the deceased sustained only one incised wound whereas the prosecution case is that Vakil Ahmad was armed with an axe and Mobin Ahmad had a Pharsa. The incised wound sustained by the deceased could have been caused by any of these two weapons but then it is obvious that only one of the two had used his weapons and it is illogical that other one wound have simply been holding his weapon without making use of it. ( 12 ) THERE is yet another unusual feature of the case that it was claimed by the eye-witnesses that they and Aziz Ahmad - uncle-in-law of one of them (Hayat Ali) were sleeping on the thrashing floor, while Imam Ali deceased was sleeping on a cot. The Investigating Officer did not find any bed sheet or bed-spread which might have been laid by these three for sleeping on the thrashing floor. It does not stand to reason that even their guest Aziz Ahmad would have been sleeping on bare thrashing floor made of crude freshly harvested crop while the host (deceased) would have made use of a cot to sleep at. Such a course was against the normal way the guests are treated. It is an indicator that actually the deceased was sleeping all alone in his Khalihan on a cot and the witnesses came to know of the murder later on. ( 13 ) THERE is another factor which renders it most improbable that the two eye-witnesses were also sleeping in the Khalihan along with his father. It is an indicator that actually the deceased was sleeping all alone in his Khalihan on a cot and the witnesses came to know of the murder later on. ( 13 ) THERE is another factor which renders it most improbable that the two eye-witnesses were also sleeping in the Khalihan along with his father. It has been admitted by Ehsan Ali P. W. 1 that a few days before the present incident a dacoity had been committed in the village in which Hasanuddin was killed. He also admitted that his was the most affluent family in the village. He could not assign any reason as to why the entire women folk and children had been left alone at the house in the night, all the male members choosing to sleep at the Khalihan. ( 14 ) IT has also come in evidence that there were Khalihan of several other persons nearby who used to be there in the night. However, no one has come forward to support this fact that any of them had seen the accused appellants running from the Khalihan of the deceased after sound of shooting when they were being allegedly chased by the eye-witnesses. ( 15 ) THE enmity asserted by Ehsan Ali P. W. 1 was in respect of 15 Biswas of land which was continuing in his joint name with the accused appellant Vakil Ahmad. According to him, Vakil Ahmad wanted to possess this entire land. So far as the accused appellant Gaya Prasad was concerned, the statement of Ehsan Ali P. W. 1 showed that his father and Gaya Prasad had litigated over some land with Zaheer and Gaya Prasad who sold his share to Zaheer. It is to be noted that nothing serious had happened immediately preceding the incident for the commission of the murder of the deceased by the three accused appellants. Gaya Prasad also does not seem to have any common bond with the remaining two. Some dispute over the landed property with nothing serious having taken place in the immediate past preceding the incident, would not ordinarily drive one of the disputing parties to liquidate the other in the manner like the present one. Gaya Prasad also does not seem to have any common bond with the remaining two. Some dispute over the landed property with nothing serious having taken place in the immediate past preceding the incident, would not ordinarily drive one of the disputing parties to liquidate the other in the manner like the present one. ( 16 ) ON judicious scrutiny of the evidence on record and the attending circumstances, our impression is that naming and claiming the accused appellants as the murderers of the deceased is only woven around suspicion. Suspicion, as is known, is not the substitute of proof. The deceased was undoubtedly the victim of violence, but it is not established as per the standard of judicial certitude that the culprits were the present three accused appellants. We are inclined to allow the two appeals. ( 17 ) WE hereby allow both the appeals No. 766 of 1981 and 791 of 1981 and set aside the judgment and order dated 23/03/1981 impugned in these appeals. The accused appellants Gaya Prasad, Vakil Ahmad and Mobin Ahmad are acquitted. They are already on bail. ( 18 ) THE office shall send a copy of this judgment along with record to the Court below for needful entries in the relevant register under intimation to this Court within two months. Appeal allowed. . .