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2019 DIGILAW 1118 (ALL)

Ram Harakh v. State of U. P.

2019-04-29

B.K.NARAYANA, RAJ BEER SINGH

body2019
JUDGMENT : B.K. Narayana, Raj Beer Singh, JJ. 1. Heard Sri R.B. Sahai, learned Counsel for the appellant and Sri J.K. Upadhyay, learned A.G.A. for the State. 2. This appeal has been preferred by the appellant Ram Harakh against the judgment and order dated 24.9.1986 passed by the learned Additional Sessions Judge, Deoria in S.T. No. 368 of 1980, whereby the appellant has been convicted and sentenced to imprisonment for life under section 302 of IPC. 3. The prosecution story as spelt out in the written report of the incident (Ex. Ka.5) given by the informant PW-1 Bindesari Prasad at Police Station Padrauna, District Deoria on 24.3.1980 at 15:05 hours in respect of an incident which had taken place on 24.3.1980 at about 1:00 PM in which it was alleged that the accused appellant had shot one Nagesar, the real brother of the first informant, in village Vishunpura is that one Mahadev, resident of the same village had brought a lady from Tarayal, who had brought with her one Munni Ahir. A son was born to Mahadev Ahir from that lady who was named Thug. On account of a quarrel having taken place between Mahadev and Munni Ahir, Mahadev had turned out Munni Ahir from his house. After the death of Mahadev, Munni Ahir returned to the house of Mahadev and in collusion with lekhpal got himself recorded as the owner of the agricultural holdings of Mahadev in his place and started planning to return to his village after disposing off his properties at Vishunpura. Munni Ahir entered into an agreement to sell in respect of Mahadev's property with Nagesar (deceased) for a total sale consideration of Rs. 7000/- in the year 1968. It was agreed that he would execute the sale-deed after receiving balance amount Rs. 2,000/-. After the execution of agreement to sale Munni, he had given possession over the agricultural holdings of Mahadev to the brother of the informant Nagesar (deceased), but when he failed to execute the sale-deed, Nagesar (deceased) filed a suit for specific performance of agreement to sale before the Civil Court which was decreed by the Trial Court on 16.03.1978. The judgment and decree passed by the Trial Court was challenged by Munni Ahir by filing a civil appeal before the District Judge which was also dismissed. The second appeal filed by Munni before this Court also met the same fate. The judgment and decree passed by the Trial Court was challenged by Munni Ahir by filing a civil appeal before the District Judge which was also dismissed. The second appeal filed by Munni before this Court also met the same fate. Thereafter Nagesar (deceased) filed an application before the Consolidation Officer for mutation of his name, against which Munni filed an objection. On the day of incident, the dispute between Nagesar (deceased) and Munni was pending before the Deputy Director of Consolidation. The deceased Nagesar had sown 'Arhar' in the agricultural holdings which had been transferred in his favour. The 'Arhar' crop, on the date of occurrence, was ready for being cut and in the morning Nagesar (deceased) after reaping his 'Arhar' crop, had kept the same in piles in the farmyard. Out of the 'Arhar' crop kept by him in his farmyard, three piles of 'Arhar' were taken away by Munni Ahir, his son appellant Ram Harakh and their relative Radhey, residents of village Vudvantwapur and Sheetal residents of village Madsar, Police Station Kaptanganj, District Deoria from the farmyard of Nagesar (deceased) and kept the same in front of the door of their house and started thrashing it, on which informant's brother Nagesar (deceased), his servant Narsingh and his step brother Thug, his son Paras and the informant went to the house of Munni Ahir and asked him why he had lifted his 'Arhar' crop, on which Munni, Radhey and Sheetal exhorted appellant Ram Harakh to kill all of them. On their exhortation, appellant Ram Harakh pulled out a country made pistol, on seeing which they started running away. However, Harakh fired two shots from his country made pistol which hit his brother Nagesar who fell on the ground in front of the door of the house of Fateh Mohammad and died instantaneously. The incident was witnessed by Thug, Paras, informant himself and one Narsingh of village Patehra and several other villagers. Munni and another accused ran towards west. They were chased by Narsingh, Paras and Thug etc and with the help of villagers of village Papuar, they had caught Radhey, Munni and Sheetal in Papuar village and made them sit there. 4. On the basis of written report Ex. Ka.4, Case Crime No. 84 of 1980, under section 302 of IPC was registered at P.S. Padrauna against all the four accused. Check FIR and G.D. Entry were prepared. 4. On the basis of written report Ex. Ka.4, Case Crime No. 84 of 1980, under section 302 of IPC was registered at P.S. Padrauna against all the four accused. Check FIR and G.D. Entry were prepared. 5. The investigation of the case was entrusted to PW-5 S.I. Ram Bahore Mishra who started the investigation on 24.3.1980 and reached the place of occurrence at about 5:00 P.M. After inspecting the same, he prepared the site plan of the place of occurrence. Thereafter he held inquest on the body of the of the deceased and prepared Inquest Report Ex. Ka.10, Form No. 33 for postmortem examination, Challan form and Photo Naash in his own writing Ex. Ka.11 to Ex. Ka.16. Later plain and blood stained earth and clothes collected by him from the place of occurrence were sent by him for chemical examination. He thereafter got the body of the deceased sealed and dispatched for post-mortem examination through constable 184 Purusottam Mishra and constable Ram Janam Yadav. The samples of plain and blood stained earth collected by him were kept by him into different boxes and sealed. Recovery Memo Ex. Ka.18 was prepared on the spot. He also seized one empty cartridge from the place of incident and prepared its recovery memo Ex. Ka.19. He also took into his possession the thrashed 'Arhar' lying at place of occurrence and gave it into supurdgi of Thug and prepared supurdginama as Ex. Ka.9. Postmortem on the dead body of Nagesar was conducted by Dr. K. Singh on 25.3.1980 who also prepared and proved his postmortem Ex. Ka.21. The Investigating Officer of the case after completing the investigation filed charge-sheet against all the accused. The accused upon being charge-sheeted were committed for trial to the Court of Sessions Judge, Deoria where their case was registered as S.T. No. 368 of 1980 (State v. Munni and three others) and made over from there to the Court of IVth Additional Sessions Judge, Deoria who on the basis of the material on record, charged the accused under section 302/34 of IPC. The accused abjured the charge and claimed trial. 6. The accused abjured the charge and claimed trial. 6. The prosecution in order to prove the charge framed against the accused examined as many as seven witnesses, out of whom PW-1 informant Bindesari Prasad, brother of the deceased, PW-3 Nar Singh, PW-4 Thug, step brother of the deceased, were examined as witnesses of fact while PW-2 Narendra Pratap Singh, who had pre-pared the check FIR (Ex. Ka.4) and relevant G.D. Entry vide Rapat No. 18 time 15:05 Ex. Ka. 5 and Ka.6 and the G.D. Entry regarding dispatch of the special report to the Higher Officers after 25 minutes of the registration of the case as Ex. Ka.8, PW-5 Ram Bahor Mishra, the first Investigating Officer of the case who had held inquest on the body of the deceased and prepared the inquest report Ex. Ka.10, Form No. 33, letter ad-dressed to C.M.O., letter for sending blood stained clothes, Challan form and Photo Naash Ex. Ka.11 to Ka.16 and had dispatched the dead body of the deceased for post-mortem examination through Constables 184 Purshottam Mishra and Ram Janam Yadav along with necessary papers, inspected the place of occurrence and prepared site plan Ex. Ka.17, collected plain and blood stained earth from the place of occurrence and after keeping the same in two different containers and sealing the same, had prepared the recovery memo Ex. Ka.18, seized one empty cartridge from the place of occurrence and pre-pared its recovery memo Ex. Ka.19, taken into possession the thrashed 'Arhar' lying on the place of occurrence and after giving it to the supurdgi of PW-4 Thug, had prepared its Supurdginama Ex. Ka.9, completed the investigation and filed charge-sheet against all the accused Ex. Ka 20, PW-6 constable Ram Janam Yadav, who had taken the body of the deceased from the place of occurrence and delivered it at the district hospital for the post-mortem examination and PW-7 Dr. K. Singh who had conducted post-mortem on the body of the deceased and prepared the post-mortem report Ex. Ka.21, were produced as formal witnesses. 7. The prosecution in addition to oral evidence, had also adduced documentary evidence which has been referred to and dealt with in detail in the impugned judgment and order and to which we shall refer to as and when the context so requires. 8. Ka.21, were produced as formal witnesses. 7. The prosecution in addition to oral evidence, had also adduced documentary evidence which has been referred to and dealt with in detail in the impugned judgment and order and to which we shall refer to as and when the context so requires. 8. The accused in their statements recorded under section 313 Cr.P.C. denied the prosecution case as false and alleged false implication due to enmity. They also filed statement paper 63 Ka and examined Kailash Nath Dixit, Om Prakash Saxena, Imtiyaz Ahmad and Ram Prasad as D.W. 1, D.W. 2, D.W. 3 and D.W. 4. The defence witnesses in their statements highlighted the irregularities committed by the Investigating Officer in conducting the investigation. 9. The learned IVth Additional District & Sessions Judge, Deoria after considering the submissions made by learned Counsel for the parties before him and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellant Ram Harakh under section 302 IPC and awarded aforesaid sentence to him while co-accused Munni Ahir, Radhey and Sheetal were acquitted by the impugned judgment and order. 10. Hence, this appeal. 11. It is contended by the learned Counsel for the appellant that it is the specific case of the prosecution as is evident from the recital contained in the written report of the incident Ex. Ka.4 which was lodged by PW-1 Bindesari Prasad, real brother of the deceased, claiming himself to be an eye-witness of the incident, that the appellant had fired two shots at the deceased Nagesar and both shots had hit him, whereupon he had fallen in front of the door of the house of Fateh Mohammad and died instantaneously. Ka.4 which was lodged by PW-1 Bindesari Prasad, real brother of the deceased, claiming himself to be an eye-witness of the incident, that the appellant had fired two shots at the deceased Nagesar and both shots had hit him, whereupon he had fallen in front of the door of the house of Fateh Mohammad and died instantaneously. The same fact was stated by PW-1 Bindesari Prasad, and PW-3 Nar Singh and PW-4 Thug in their statements recorded under section 161 Cr.P.C. However, when the postmortem report of the deceased indicated only one firearm wound of entry on the body of the deceased with a corresponding exit wound, the three so called eye witnesses of facts, made a material improvement in their testimonies with the object of bringing the ocular version in consonance with the medical evidence on record by deposing in unison that the first shot fired by the appellant at the deceased had missed him but the second shot which was fired by him at the deceased from a close range had hit the deceased. The irreconcilable conflict between the medical evidence and the eyewitness account and the material improvements made by the three witnesses of facts in their statements recorded during trial totally belie their presence at the time and the place of occurrence and their claim of being the eye-witness of crime. Hence the Trial Court committed a patent illegality in relying upon their testimonies for the purpose of convicting the appellant while acquitting the other three co-accused on the same set of evidence. He lastly submitted that such being the state of evidence on record, neither the recorded conviction of the appellant, nor the sentence awarded to him can be sustained, and are liable to be set aside. 12. Per contra Sri J.K. Upadhyay, learned A.G.A. appearing for the State submitted that contradictions/improvements, if any, in the statements of four witnesses highlighted by the learned Counsel for the appellant are not so material so as to affect the core of the prosecution story rendering it unreliable and untrustworthy. He next submitted that all the three witnesses of fact have supported the prosecution case in all material particulars pertaining to the incident, namely, time, place and manner of the assault as well as identity of the perpetrators of the crime. He next submitted that all the three witnesses of fact have supported the prosecution case in all material particulars pertaining to the incident, namely, time, place and manner of the assault as well as identity of the perpetrators of the crime. The discrepancy between the medical evidence and the ocular version pointed out by the learned Counsel for the appellant, has been satisfactorily explained by the three eye-witnesses of the occurrence in their evidence tendered during the trial. He lastly submitted that this appeal lacks merit and is liable to be dismissed. 13. We have very carefully considered the submissions made by the learned Counsel for the parties before us and perused the entire lower Court record. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts or not? 14. Before proceeding to evaluate the evidence of three eye-witnesses of the case, we first propose to have a glance at the evidence of formal witness. 15. PW-5 Ram Bahor Mishra, the Investigating Officer of this case in his statement recorded during the Trial Court narrated the various steps taken by him during the course of investigation. He proved the inquest report, Form-33, letter requesting for postmortem examination, letter for dispatching plain and blood stained earth collected by him from the place of occurrence and Challan form, Photo Naash, site plan of the place of occurrence, recovery memo of plain and blood stained earth, recovery memos empty cartridge Ex. Ka.10, Ka.11 to Ka.19. He also proved the supurdginama of the thrashed 'Arhar' seized by him from the place of occurrence and given to the custody of PW-4 Thug as Ex. Ka.9 and the charge-sheet filed by him against the accused Ex. Ka.20. He also proved the injury report of all the persons who had received injuries from the side of the accused Ex. Kha 1, Kha-2 and Kha-3. 16. PW-6 Constable Ram Janam Yadav deposed that he took the dead body of the deceased Nagesar for postmortem examination in a sealed condition with all relevant papers at 6:30 PM to Padrauna in a bullock cart and on the next morning the dead body was taken to Deoria from Padrauna by Jeep. He was accompanied by constable Purshot-tam Mishra. 17. PW-7 Dr. He was accompanied by constable Purshot-tam Mishra. 17. PW-7 Dr. K. Singh, who had conducted the post-mortem on the body of the deceased Nagesar in his evidence tendered during the trial deposed that he had conducted the post-mortem on the body of the deceased Nagesar on 25.03.1980 and noted following ante-mortem injuries on his body: (1) wound of entry 1.5 cm x 1.5 cm x cavity deep, lacerated circular wound with irregular margin on the back left side of the vertical column 4 cm horizontally away from the interior angle of the scapula bone. Blackening was present around the entry wound. (2) wound of exit 2 cm x 2 cm x communicating with wound of entry-lacerated with irregular margin oval in shape blood around the wound was dried up. One empty cartridge and a piece recovered from his body no blackening or tattooing was present. (3) contusion 2.5 cm x 1 cm on the right side between thumb and the finger in front of the right eye. (4) contusion 1.5 cm x 1.2 cm on the left front side of the left elbow joint 4 cm below the medical part of the left elbow joint. 18. According to him the deceased had died due to shock and haemorrhage, as a result of ante-mortem injury about one day before the date on which post-mortem on the body of the deceased was conducted. 19. He proved post-mortem report of the deceased as Ex. Ka.21. According to him injury Nos. 1 and 2 which were two parts of the same wound were ordinarily sufficient to cause death. In his cross-examination PW-7 Dr. K. Singh stated that it was possible that ante-mortem injuries Nos. 1 and 2 were caused by a single shot. 20. Thus, upon perusal of the evidence of the formal witnesses, it transpires that FIR of the incident in which Nagesar (deceased) had been shot by the appellant on the exhortation of the other co-accused at about 1:00 am on 24.03.1980 and had fallen in front of the door of the house of Fateh Mohammad and died, was lodged by PW-1 Bindesari Prasad at P.S. Padrauna on 24.3.2018 at 15:05 hours. Although, the inquest proceedings were held on the same day and concluded at 18:30 hours and thereafter the dead body of the deceased was sealed by the Investigating Officer and handed over to PW-6 constable Ram Janam Yadav and constable Purshottam Mishra for being taken to district hospital, Deoria for post-mortem examination. The body of the deceased was handed over by PW-6 constable Ram Janam Yadav to PW-7 Dr. K. Singh, Eye Specialist, district hospital, Deoria on 25.03.1980 at 1:05 PM who had conducted the autopsy of the dead body of the deceased Nagesar on the same day and prepared his post-mortem report Ex. Ka.21. According to the evidence of PW-7 Dr. K. Singh, only one firearm wound of entry was found on the back left side of vertical column 4 cm horizontally away from the interior angle of the scapula bone with corresponding exit wound and both the wounds were caused by a single shot. PW-7 Dr. K. Singh did not find two firearm wounds on the deceased's body. 21. Now coming to the evidence of three eye-witnesses of the incident, we find that PW-1 informant Bindeswari Prasad in his examination-in-chief recorded before the Trial Court substantially supported the prosecution case as spelt out in the FIR. He however with the intention of bringing the ocular version in consonance with the medical evidence on record which indicated that the deceased had received only one firearm wound of entry while the prosecution case as spelt out in the FIR and as stated by the witnesses during investigation was that the accused had fired at the deceased twice and both the shots fired by him had hit the deceased, he in his examination-in-chief stated that the first shot which was fired by the appellant Ram Harakh at deceased Nagesar had missed him but the second shot had hit him. 22. 22. When PW-1 was contradicted by the defence Counsel with his statement recorded under section 161 Cr.P.C. in which he had stated that both the shots fired by the accused at the deceased had hit him, he deposed that he had told the aforesaid facts to the Investigating Officer and in case the aforesaid facts did not find mention in his statement recorded under section 161 Cr.P.C., he had no explanation for the same and that he had not told the Investigating Officer that the first shot was fired from a distance while the other shot was fired from a very close range. 23. Upon being confronted with the written report of the incident Ex. Ka.4, which did not contain any recital that the first shot which was fired by appellant Ram Harakh when the deceased was from a distance, had missed the target while the second shot fired by him from a very close range had hit him, he again deposed that he had stated the aforesaid fact in the written report of the incident Ex. Ka.4 also and he was not in a position to furnish any explanation why the aforesaid fact was not mentioned in the written report. 24. Although both PW-3 Nar Singh and PW-4 Thug in their statements recorded during trial corroborated the evidence of PW-1 Bindesari Prasad on all material points but when they were contradicted with their statements recorded under section 161 Cr.P.C. in which they had also failed to state that the first shot which was fired by appellant Ram Harakh from some distance had not hit him but the second shot fired by him had hit the deceased, they deposed that they had told the aforesaid fact to the Investigating Officer and if he had failed to record the same in their statements, they were not in a position to give any reason for the aforesaid omission on the part of the Investigating Officer. 25. But when the attention of the Investigating Officer PW-5 was invited by the defence Counsel to the aforesaid facts stated by PW-3 Nar Singh and PW-4 Thug before the Court, he denied that either PW-3 Nar Singh or PW-4 Thug had given any statement to him that the first shot which was fired by the appellant from a distance had missed the target as they had jumped in opposite directions. He further deposed that the witnesses had not stated before him that appellant Ram Harakh had fired the second shot from a close range. On the other hand PW-4 had stated before him that appellant Ram Harakh had fired twice while chasing the deceased. Both the shots fired by him had hit the deceased. 26. Thus, upon a wholesome consideration of the facts of the case, the attending circumstances and the evidence on record, we are of the view that PW-1 Bindesari Prasad, PW-3 Nar Singh and PW-4 Thug, the three so called eyewitnesses of facts produced by the prosecution during the trial to prove the charge framed against the accused have given evidence which is not in consonance that the facts stated in the written report of the incident Ex. Ka.4 which was scribed on the dictation of PW-1 and those stated by them in their statements recorded under section 161 Cr.P.C. The prosecution case right from inception as is evident from the perusal of the written report of the incident and the facts stated by PW-1, PW-3 and PW-4 in their statements under section 161 Cr.P.C. was that the accused-appellant had fired at the deceased twice and both the shots had hit him. However, after the post-mortem examination of the deceased's body had been conducted and the witnesses had got an opportunity to have a look at the post-mortem report of the deceased which indicated only one firearm wound of entry with corresponding firearm wounds of exit on the dead body of the deceased, all the three eye-witnesses of the occurrence in their statements recorded during trial made a material improvement in their evidence by deposing that the first shot which was fired by the appellant had missed the deceased while the second shot which he had fired from a very close range had hit the deceased on his back. Had PW-1, PW-3 and PW-4 actually witnessed the occurrence then in that case there would not have been any contradiction between the facts deposed by him during investigation viz-a-viz the facts stated by them before the Trial Court with regard to the manner of assault nor there would have been any conflict between the medical evidence and the ocular version with regard to the number of shots fired at the deceased. For the aforesaid reasons, in our opinion, it would not at all be safe to confirm the conviction of the appellant recorded by the Trial Court on the basis of the evidence of PW-1 Bindesari Prasad, PW-3 Nar Singh and PW-4 Thug which does not inspire any confidence at all. 27. In view of the foregoing discussion, we have no hesitation in holding that the prosecution has failed to prove its case beyond all reasonable doubts and hence the appellant is entitled to benefit of doubt. The appellant Ram Harakh is acquitted of the charge of murder of Nagesar by extending benefit of doubt to him. 28. The appeal succeeds and is accordingly, allowed. 29. Appellant Ram Harakh is on bail. He need not surrender. His bail bonds are cancelled and his sureties discharged. However, the appellant will comply with the mandatory provisions of section 437-A of Cr.P.C. 30. There shall however, be no order as to costs.