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2006 DIGILAW 2460 (ALL)

ISHWAR CHAND ALIAS PAPPU v. STATE OF U P

2006-09-29

MUKTESHWAR PRASAD

body2006
MUKTESHWAR PRASAD, J. Accused Ishwar Chand @ Pappu has come up in appeal against the judgment and order dated 30-6-1981 passed by Sri Jaswant Singh, the then Additional Sessions Judge, Bijnor whereby he convicted the appellant under Section 304 I. P. C. and sentenced him to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs. 500/ -. In default in payment of fine, he was ordered to suffer rigorous imprisonment for a period of six months. 2. Briefly stated, the prosecution case was as under. P. W. 1 Harnam Singh, son of Laxman Singh Chauhan, lived in Mohalla Chohanan, Kiratpur, District Bijnor in the year 1980. He was landlord. He had let out a portion of his house on the ground floor to Smt. Kranti Devi, a nurse, about 3-4 months prior to the incident in question. Smt. Kranti Devi lived in the house alongwith her sons Pramod, Ishwar Chand and a daughter Km. Geeta. The deceased (Krishna Kumar), who was nephew of Smt. Kranti Devi, also lived there and was in the search of a job. The parents of Krishna Kumar had already died. 3. On 24-6-1980 at about 7. 45 p. m. , some altercation was going on between Smt. Kranti Devi and the appellant regarding character and relationship of Km. Geeta and Krishna Kumar. They suspected that Krishna Kumar had developed illicit relationship with Km. Geeta. During altercation, all of a sudden, the appellant fired a shot at Krishna Kumar from his Tamancha and ran away from the house Smt. Kranti Devi and Pramod took Krishna Kumar to the hospital. 4. Harnam Singh prepared a report of the incident in his own handwriting and lodged an F. I. R. at police station Kiratpur on the same night at 9-10 p. m. The police registered a case at crime No. 95 under Section 302 I. P. C. 5. The investigation of the case was taken up by P. W. 7 SI Jaipal Singh. He interrogated Harnam Singh and constable Jai Prakash Tyagi at the police station. He alongwith the SO reached the hospital and saw dead-body of Krishna Kumar and interrogated Pramod also. Km. Dayawati and Smt. Vimla Devi were also interrogated. Inquest report could not be prepared in the night as there was no light. 6. Next day, the IO prepared inquest report and sent the dead-body to mortuary. 7. He alongwith the SO reached the hospital and saw dead-body of Krishna Kumar and interrogated Pramod also. Km. Dayawati and Smt. Vimla Devi were also interrogated. Inquest report could not be prepared in the night as there was no light. 6. Next day, the IO prepared inquest report and sent the dead-body to mortuary. 7. P. W. 6 Dr. S. K. Agarwal, Medical Officer of the District Hospital, Bijnor conducted autopsy on 25-6- 1980 at 5. 00 p. m. According to him, the dead-body was identified by constables Kedar Nath and Prem Chand and death had taken about one day prior to examination. Dr. Agarwal found the following ante-mortem injuries: (1) Gun-shot wound 1-1/2 cm x 1-1/2 cm x chest cavity deep in left 4th inter costal space 2 cm. medial to left nipple (wound of entry ). Bleeding and Charring in an area of 1 cm around the wound. (2) Gun-shot wound (lacerated) 1-1/2 cm x 1-1/2 cm x chest cavity deep on the back left side 8 cm below the lower end of scapula 4 cm lateral to midline in between 10 and 11th rib, margins everted (wound of exit ). Both wounds communicating with each other by a probe. 8. On internal examination, left 4th rib was found fractured and left pleura was perforated under injuries Nos. 1 and 2. Left lung was badly lacerated. In the opinion of Dr. Agarwal, the death had taken place on account of shock and haemorrhage resulting from ante-mortem injuries. 9. The IO inspected the scene of incident, prepared a site-plan and collected blood stained earth. Smt. Kranti Devi was arrested by the police. The appellant was arrested by the police with the help of Chhotu and Mahmood and on search, one revolver and one live cartridge were recovered. After completing investigation, the IO filed charge-sheet against the appellant and Smt. Kranti Devi also. 10. Accused Ishwar Chand was charged under Section 302 I. P. C. Smt. Kranti Devi was charged under Section 302 read with Section 34 I. P. C. Both pleaded not guilty. 11. The prosecution in order to substantiate its allegations, examined P. W. 1 Harnam Singh, the informant P. W. 2 Smt. Vimla Devi, wife of the informant, P. W. 3 Km. Dayawati, sisters daughter of the informant, P. W. 4 Chhotu Ram, P. W. 5 Nasir Hussain, P. W. 6 Dr. 11. The prosecution in order to substantiate its allegations, examined P. W. 1 Harnam Singh, the informant P. W. 2 Smt. Vimla Devi, wife of the informant, P. W. 3 Km. Dayawati, sisters daughter of the informant, P. W. 4 Chhotu Ram, P. W. 5 Nasir Hussain, P. W. 6 Dr. S. K. Agarwal, P. W. 7 SI Jaipal Singh, IO of the case and P. W. 8 constable Prem Chand filed his affidavit. He is a formal witness and took the dead- body to mortuary. 12. The appellant denied in his statement that Deceased (Krishna Kumar) also lived in the house of Smt. Kranti Devi and pleaded his false implication on account of enmity. He claimed to have taken the deceased to hospital. He however admitted that Smt. Kranti Devi and her son Pramod left the house in the morning in connection with their work and both returned home in the evening. The appellant Km. Geeta and Krishna Kumar lived in the house in the day. He was taken to the police station from the hospital. The defence version is that Harnam Singh wanted to dispossess Smt. Kranti Devi and was annoyed and at his instance he was falsely implicated. No evidence was led in defence. 13. After having considered the entire oral and documentary evidence on record and the arguments of the parties Counsel the learned Judge acquitted Smt. Kranti Devi. He, however, found the appellant guilty under Section 304 Part-II I. P. C. and convicted and sentenced him as mentioned above. 14. I have heard learned Counsel for the appellant at length and learned A. G. A. and have perused the entire material on record. 15. Learned Counsel for the appellant has challenged the judgment under appeal mainly on the grounds that there was no electric connection in the house of the informant and no electric bulb was burning there at the time of alleged incident. He drew my attention to the fact that when there was light of electric bulb in the house, there was no sense in having a burning lantern. According to him, Smt. Vimla Devi, wife of the informant, admittedly did not see the appellant committing murder of Krishna Kumar and she was told about the incident by Km. Dayawati. He further contended that P. W. 1 Harnam Singh and P. W. 3 Km. According to him, Smt. Vimla Devi, wife of the informant, admittedly did not see the appellant committing murder of Krishna Kumar and she was told about the incident by Km. Dayawati. He further contended that P. W. 1 Harnam Singh and P. W. 3 Km. Dayawati are also not eye-witnesses and they could not see the incident. Km. Dayawati was admittedly preparing tea in the kitchen and as such, she could not see the appellant firing a shot at Krishna Kumar. She contradicted herself regarding place from where she claimed to have seen the appellant firing at the deceased. It was, therefore, submitted that the appellant is entitled to be acquitted. 16. On the other hand, learned A. G. A. has supported the judgment under appeal and has urged that Harnam Singh and Km. Dayawati supported the prosecution version and the Court below rightly placed reliance on their testimony and the appeal is liable to be dismissed. 17. I have given my anxious consideration to the submissions made on behalf of the parties and find that contention of the appellants learned Counsel is well founded. 18. As mentioned above, the prosecution examined four witnesses of fact to prove its allegations. They are P. W. 1 Harman Singh, P. W. 2 Smt. Vimla Devi, P. W. 3 Km. Dayawati and P. W. 5 Nasir Hussain. P. W. 1 Harnam Singh claimed himself to be an eye-witness and tried to support the prosecution story. I however find that he did not see the appellant firing at the deceased and is a liar. According to the written report, exchange of hot words took place between Smt. Kranti Devi and the appellant in respect of illicit relationship between the deceased and Km. Geeta. The informant mentioned this fact in his report but he changed his version in the Court and stated that exchange of hot words took place in respect of family matters and pleaded his ignorance about the nature of talk between Smt. Kranti Devi and appellant. The incident took place in the month of June at about 8. 00 p. m. inside the house. It means, there must have been sufficient darkness. Admittedly the landlord had not taken permanent electric connection in his house. According to him, his wife had delivered a child in the same week and as such he had taken temporary electric connection from the house of Chhatar Singh. 00 p. m. inside the house. It means, there must have been sufficient darkness. Admittedly the landlord had not taken permanent electric connection in his house. According to him, his wife had delivered a child in the same week and as such he had taken temporary electric connection from the house of Chhatar Singh. Harnam Singh disclosed that besides electric light, a lantern was also burning in his house. I fail to understand as to why a lantern was also burning in the house of the informant when there was electric supply and bulb was burning. It means, there was no source of light in the houses except a lantern. Further, Harnam Singh was sitting on a cot in his Sehan at the time of incident. It was, therefore, not possible for him to see the appellant firing a shot at Krishna Kumar. I am, therefore, prepared to accept the contention of the appellants learned Counsel that Harnam Singh was not an eye-witness. 19. P. W. 3 Km. Dayawati was also examined to prove that it was the appellant who fired fatal shot at Krishna Kumar and she saw the appellant firing at Krishna Kumar. She claimed to have reached the house of her maternal uncle and was living there for the last two months in connection with delivery of her maternal aunt. According to her, on the impugned night at about 8. 00 p. m. Smt. Kranti Devi, Km. Geeta and Krishna Kumar were quarrelling. In the meantime, Ishwar Chand fired at Krishna Kumar from his Tamancha and ran away. In cross-examination, she admitted that she was preparing tea in the kitchen and saw the incident from there. Thus, it was not possible for her to see the appellant killing Krishna Kumar with a Tamancha. According to her, after firing about 5-10 persons of the neighbourhood assembled there. This statement of the lady is totally inconsistent with the statement of Harnam Singh who claimed that nobody reached there from the neighbourhood after the incident. 20. P. W. 2 Smt. Vimla Devi, wife of the informant, disclosed in very clear words in her cross-examination that she did not see the appellant firing at Krishna Kumar and the incident was narrated to her by Km. Dayawati. 21. P. W. 5 Nasir Hussain disclosed that on the impugned night at about 8. 20. P. W. 2 Smt. Vimla Devi, wife of the informant, disclosed in very clear words in her cross-examination that she did not see the appellant firing at Krishna Kumar and the incident was narrated to her by Km. Dayawati. 21. P. W. 5 Nasir Hussain disclosed that on the impugned night at about 8. 00 p. m. he was passing through the house of Smt. Kranti Devi and heard the sound of firing. After a few minutes, he saw Ishwar Chand coming out of the house. Next morning, he came to know that Krishna Kumar was shot dead by Ishwar Chand. 22. After close scrutiny of the oral evidence on record, I find that out of the four witnesses produced by the prosecution to prove the complicity of the appellant in the crime, P. W. 2 Smt. Vimla Devi did not support the prosecution story and she turned hostile. So far the testimony of Harnam Singh and Km. Dayawati is concerned, they do not appear to be eye-witnesses and their testimony do not inspire confidence. In my considered opinion they could not see the appellant firing at Krishna Kumar from the Sehan and Kitchen respectively. Besides, there was no source of light in the house except a lantern. It means, there must have been complete darkness near the scene of the incident and it was not possible for any body to have actually seen the appellant firing at Krishna Kumar. It will not be out of place to mention here that Harnam Singh disclosed in his examination-in-chief itself that Krishna Kumar committed suicide and fired himself. When he was questioned as to who fired at Krishna Kumar, he did not reply even after five minutes. Thereafter, he held the appellant responsible for causing death of Krishna Kumar. Similarly, Km. Dayawati claimed to have seen the appellant causing fire-arm injuries to Krishna Kumar from her kitchen. This was not possible for her to see the appellant from kitchen. So far the evidence of P. W. 5 Nasir Hussain is concerned, his evidence is hear say. He heard sound of firing while he was passing through the house of Smt. Kranti Devi. In this view of the matter, I am of the opinion that it is not at all safe to place reliance on the testimony of Harnam Singh and Km. He heard sound of firing while he was passing through the house of Smt. Kranti Devi. In this view of the matter, I am of the opinion that it is not at all safe to place reliance on the testimony of Harnam Singh and Km. Dayawati and the learned trial Judge in my view committed error in appraisal of the evidence on record led by the prosecution. The learned Judge was not at all justified in holding the appellant guilty for causing death of Krishna Kumar. It is well settled that suspicion howsoever strong cannot be a substitute for proof. In my opinion, the prosecution could not establish the charge against the appellant beyond all shadow of doubt. 23. In the result, the appeal is allowed. The conviction and sentence recorded against the appellant are hereby set aside. His acquitted. He is on bail. He need not surrender. His bail is cancelled and sureties are discharged. Appeal allowed. .