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2003 DIGILAW 606 (ALL)

Jautam alias Andhi v. State of Uttar Pradesh

2003-03-24

K.N.OJHA, M.C.JAIN

body2003
M. C. JAIN, J. ( 1 ) THERE are two appellants Jautam alias Andhi and Har Chand who have preferred this appeal against the judgment and order dated 17-12-1981 passed by V Additional Sessions Judge, Azamgarh in S. T. No. 97 of 1980. They have been convicted under Section 302, IPC and sentenced to life imprisonment. Two others, namely, Phool Chand and Daya Shanker alias Mahant were also tried with them, but they were acquitted having been given the benefit of doubt. ( 2 ) THE salient features of the case may be set forth. The incident took place on 23-9-1979 at about 11 Oclock in the night in village Fattupatti, Police Station Gambheerpur, District Azamgarh. The deceased was one Mool Chand. The FIR was lodged the following day at 7. 10 a. m. by Khelawan P. W. 3 at whose house the deceased was allegedly sleeping in the fateful night. The distance of the police station from the place of occurrence was five miles. The prosecution case is that the deceased Mool Chand resided in the village aforesaid with his mother and other family members. The appellant Jautam alias Andhi of the same village had some property litigation with the deceased. Har Chand appellant was allegedly his associate residing in the same village. Earlier to this incident, Mool Chand deceased had obtained a decree relating to certain disputed property in his favour as against Jautam alias Andhi. Jautam alias Andhi, a notorious person, had infused a sense of terror in the mind of Mool Chand and used to issue threats to him of his life. For this reason, Mool Chand used to sleep at the house of Khelawan PW. ( 3 ) IN the fateful night, he was sleeping outside the house of Khelawan P. W. 3. At a little distance his mother Gomati Devi P. W. 1 and his daughter Ramawati P. W. 2 were and sleeping in the Verandah. A lantern was glowing. At about 11 O clock in the night, the two appellants with two others appeared there. Both the appellants were armed with firearms. Mool Chand was caught hold of and present two appellants opened fire on him. He died instantaneously. Gomati Devi P. W. 1, Ramawati P. W. 2 and Khelawan P. W. 3 witnessed the incident. At about 11 O clock in the night, the two appellants with two others appeared there. Both the appellants were armed with firearms. Mool Chand was caught hold of and present two appellants opened fire on him. He died instantaneously. Gomati Devi P. W. 1, Ramawati P. W. 2 and Khelawan P. W. 3 witnessed the incident. On the lodging of the FIR on oral narration by Khelawan P. W. 3, a case was registered and investigation was taken up. 3. Post mortem over the dead body of Mool Chand was conducted by Dr. S. D. Gupta P. W. 5 on 25-9-1979 at 10 a. m. He was aged about 32 years and about 11/2 days had passed since he died. The following ante-mortem injuries were found on his person : 1. Firearm wound of entry 2. 5 cm x 2 cm going through and through left side lower part of neck 9 cm below left mastoid prominence. Blackening 2. 5 cm around the wound present with tattooing. Margins of wound irregular, oval in shape. 2. Firearm wound of exit 3. 5 cm x 2. 5 cm at root of back of neck in its middle. Margins everted. 3. Incised wound 1. 5 cm x. 75 cm x muscle deep transversely oblique on upper part of right side back I cm away from midline, 4 cm below injury No. (2 ). 4. Incised wound 2 cm x 1 cm x muscle deep on outer side of right side abdomen, 12 cm above right anterior iliac spine. 5. Firearm wound of entry 4 cm x 4 cm x cavity deep on front of left side chest going through left side sternum 6 cm below inner end of left collar bone. Blackening, tattooing and singing of hair present around the wound. 6. Firearm wound of entry 2. 5 cm x 2. 5 cm x cavity deep front of chest 1. 5 cm below injury No. 5. Blackening in area of 9 cm x 9 cm around the wound present. Tattooing also present. 7. Abrasion in area 6 cm x 5 cm on left side forehead above and outer to left eye brow. ( 4 ) THE death had occurred due to shock and haemorrhage resulting from ante-mortem injuries. 5 cm below injury No. 5. Blackening in area of 9 cm x 9 cm around the wound present. Tattooing also present. 7. Abrasion in area 6 cm x 5 cm on left side forehead above and outer to left eye brow. ( 4 ) THE death had occurred due to shock and haemorrhage resulting from ante-mortem injuries. ( 5 ) ON conclusion of investigation, the present two appellants Jautam alias Andhi and Hari Chand were booked for trial along with Phool Chand and Daya Shankar alias Mahant who have been acquitted. However, the two appellants before this Court have been convicted as stated in the earlier part of the judgment. ( 6 ) THE defence was of denial and false implication. ( 7 ) THE prosecution examined Gomati Devi P. W. 1, Ramawati P. W. 2 and Khelawan P. W. 3 as eye-witnesses. Lok Nath Rai P. W. 4 was the Investigating Officer and Dr. S. D. Gupta P. W. 5 had conducted autopsy on the dead body of the deceased. ( 8 ) AT the hearing of the appeal, none turned up from the side of the appellants at the revision of list though they are represented on record by Sri. D. N. Wali, Advocate. We have heard Sri G. S. Bisaria, learned A. G. A. from the side of State and perused the record, which has been summoned before us. ( 9 ) WE propose to decide the appeal on merits. ( 10 ) ON careful consideration of the evidence on record of the eye-witnesses as also the medical evidence, we are firmly of the opinion that the conviction recorded against the appellants cannot be sustained. Solid reasons are lined up to support our this view. It has first to be pointed out that Khelawan P. W. 3 at whose house the deceased was sleeping in the fateful night and who lodged the FIR did not support the prosecution case as against the appellants, saying that he could not recognise the assailants. So, his evidence is only relevant about the place of incident and no more. Indeed, two other witnesses, namely, Gomati Devi P. W. 1 and Ramawati P. W. 2, mother and daughter respectively of the deceased came up to support the prosecution case against the appellants. But it has to be kept in mind that they are near relations of the deceased and interested witnesses. Indeed, two other witnesses, namely, Gomati Devi P. W. 1 and Ramawati P. W. 2, mother and daughter respectively of the deceased came up to support the prosecution case against the appellants. But it has to be kept in mind that they are near relations of the deceased and interested witnesses. Therefore their testimony has to pass severe and strict test of scrutiny for being believed. The appellant Hari Chand was alleged to be the associate of Jautam alias Andhi with whom the deceased had property litigation. Obviously, Gomti Devi P. W. 1 and Ramawati P. W. 2 being the family members of the deceased are inimical also against him whose associate the other appellant is said to be. Now, it is pertinent to find that the medical evidence is in marked conflict with ocular version. Besides firearm wounds, the deceased sustained two incised wounds also (ante-mortem injuries Nos. 3 and 4) for which there is no explanation in the testimony of the two eye-witnesses. Both the eye-witnesses stated that they woke upon the barking of the dogs. The statement of Gomti Devi P. W. 1 is that the non-appellants Phool Chand and Daya Shankar alias Mahant took up her son from the cot, carried him to a distance of 4 or 5 paces and threw him down whereafter the present two appellants shot him dead. Thus, according to her, the victim was thrown down on the ground by Phool Chand and Daya Shanker alias Mahant and the present two appellants opened fire on him. The statement of Ramawati P. W. 2 daughter of the deceased is that Phool Chand and Daya Shanker alias Mahant picked up her father and took him in the northern side. They kept him holding when the present two appellants opened fire on him. In her cross-examination, she stated that Phool Chand and Daya Shanker alias Mahant had put her father down on the ground and thereafter shots had been fired. ( 11 ) OBVIOUSLY, night was chosen as time for commission of crime by the culprit (s ). Two of them (present appellants) allegedly used firearms. It is against inherent probabilities of the situation that two of the associates of the present appellants would have picked him up from cot, taken him to some distance and would have then thrown him on the ground before firing was resorted to by the present two appellants. Two of them (present appellants) allegedly used firearms. It is against inherent probabilities of the situation that two of the associates of the present appellants would have picked him up from cot, taken him to some distance and would have then thrown him on the ground before firing was resorted to by the present two appellants. The natural and probable conduct of the appellants holding firearms would have been to shoot him dead immediately on locating him sleeping on the cot. There could hardly be any necessity of his first being picked up from cot taken to some distance and thrown on the ground. This part of the testimony of Gomti Devi P. W. 1 and Ramawati P. W. 2 also does not fit in natural probabilities of situation that two of the culprit (s) would be catching hold of the victim at the time of actual shooting, risking their own life. Holding of the victim at the time actual shooting is always risky for one who holds him because the shot may hit him instead the victim who would naturally struggle to save himself from the shot. It may also be observed at the risk of repetition that even if it is taken for the sake of argument (though it is not believable) that the victim was picked up from the cot and thrown on the ground after being taken for a few steps, then also the incised wounds found on his person go unexplained. In all probabilities, it was a case of hit and run when the assailants were not at all recognised or identified by Gomti Devi P. W. 1 and Ramawati P. W. 2. On the basis of the suspicion and imagination, the story seems to have been spun by them. We are, therefore, in judgment that the evidence of Gomti Devi P. W. 1 and Ramawati P. W. 2 which is in conflict with medical evidence, falls much short of proving the appellants to be guilty. ( 12 ) FOR the discussion made above, we would allow this appeal. ( 13 ) THE appeal is allowed. The judgment and order in question dated 17-12-1981 are quashed. The appellants are acquitted. They are already on bail. ( 12 ) FOR the discussion made above, we would allow this appeal. ( 13 ) THE appeal is allowed. The judgment and order in question dated 17-12-1981 are quashed. The appellants are acquitted. They are already on bail. ( 14 ) LET a copy of this judgment along with record of the case be immediately sent to Court below for necessary entries in the relevant register under intimation to this Court within two months from the date of receipt. Appeal allowed. . .