JUDGMENT
M.C. Jain, J.
1. Appellant Daljeet Singh has preferred this appeal against judgment and order dated 30-4-1981 passed by the then Vth Additional Sessions Judge, Kanpur in Sessions Trial No. 304 of 1979. He has been convicted under Section 302, I.P.C. read with Section 34, I.P.C. and sentenced to life imprisonment.
2. The prosecution case, as unfolded from the F.I.R. and evidence adduced in the Court may be set forth briefly. The incident occurred on 22-8-1979 at about 12 O’clock noon in village Rahnas, P.S. Mahrajpur, District Kanpur and the deceased was one Pramod Kumar alias Lalji. The F.I.R. was lodged the same day at 1.30 p.m. by Swami Pratap Singh alias Gopal Ji PW-1, an eyewitness. The distance of the police station from the place of occurrence was about 3 miles. The deceased was the brother of the informant. On the fateful day and time, the informant and his deceased brother were in their house when their servant came and told that Jagnayak Singh had beaten up Jhandu, Pujari of their temple. Their mother asked the deceased to go and find out the facts whereupon Lalji went to the temple which was at a distance of a furlong from their house. It was revealed that Jagnayak Singh wanted to give Rs. 10/- to the wife of Jhandu with mischievous intention and Jhandu objected to it. Thereupon he was beaten up by Jagnayak Singh. When Lalji was returning from the temple to the house, in the way he happened to meet Jagnayak Singh and appellant Daljeet Singh in front of the house of Jahan Singh. An altercation took place between them. Jagnayak and appellant Daljeet Singh issued threats to Lalji that they would see him. Lalji returned to the house and told the facts to his mother. A little later when Lalji came out to go to his Dera, he was followed by the informant. While Lalji was on his way, he was fired at by the appellant Daljeet Singh by country made pistol and Jagnayak Singh opened fire on him from the licensed gun of his father from the roof of his house which was across the open space. Lalji sustained injuries, fell down and died at the spot. The incident was witnessed by Chunnu PW-2 and others besides the informant. The informant took the dead body of his brother on the cot to his house and then went to the police station where he lodged the F.I.R. The police swung in action. The investigation was taken up by S.C. Mehta PW-4 who was the then Station Officer of P.S. Mahrajpur. He came to the spot. Reaching the spot, he busied himself with the activities related to the investigation and sent the dead body for post-mortem after preparation of inquest report. The post-mortem was conducted by Dr. A.K. Gupta. PW-5 on 23-8-1979 at 2 p.m. The deceased was aged about 30 years and about one day had passed since he died. The following ante-mortem injuries were found on his person:
1. Gunshot wound of entry 1 cm x 1 cm circular with blackening and tattooing present around, margins inverted, on the right of upper arm. 12 cm below the top of right shoulder. Direction downwards and outward and communicating with exit wound, 1.5 cm x 1 cm x oval, margins everted on outer aspect of middle part right arm.
2. Gunshot wound of entry 1 cm x 1 cm circular with inverted margins with blackening and tattooing present around on the upper part of right arm; 5 cm below the top of right shoulder. Direction downwards and laterally and was communicating the exit wound, 1 cm x 1.5 cm on the outer aspect of right arm, 14 cm from the top of shoulder.
3. Gunshot wound of entry 1 cm x 1 cm circular with blackening and tattooing present around with inverted margins on the right side of upper part of chest just below the right clavicle on mid clavicular line directed downwards.
4. 2 gunshot wounds of entry 2.5 cm x 1 cm in an area each of size 1 cm x 1 cm with blackening and tattooing present around with inverted margins on the upper part of right chest, 4 cm from the upper part of sternum. It was chest cavity deep.
5. Gunshot wound of entry 1 cm x 1 cm circular, inverted margins, on upper right part of chest, blackening and tattooing present, 8 cm below the right sternum and 6 cm above the lower margins of sternum. Directions downwards and backwards and chest cavity deep.
6. Gunshot wound of entry 1 cm x 1 cm circular, inverted margins with tattooing and blackening on right side of chest on the right axillary line, 13 from the axilla.
7. Gunshot wound of entry 1 cm x 1 cm circular with inverted margins on the lower part of left chest, 10 cm below the left nipple, backwards at the level of back of chest.
8. Gunshot wound of exit 1 cm x 1.25 cm x oval with everted margins on the back of left chest 12 cm, 11 cm below the lower end of left scapula.
9. Exit gunshot wound 1 cm x 1.5 cm oval with everted margins on the back of right chest upper part, 6 cm from the spine.
10. Exit gunshot wound 1 cm x 1.5 cm, oval with everted margins on the back of lower part of right chest, 16 cm from lower end of right scapula.
11. Gunshot wound of exit 1 cm x 1.5 cm with everted margins, oval on the back of lower part of right chest, 6 cm from the spine.
3. The cause of death was shock and haemorrhage resulting from the injuries sustained by the deceased. Two pellets were found on the back right side chest embedded in the muscles.
4. The defence was of denial. According to the accused appellant, he was in the house of Jagnayak Singh on the day of occurrence when the firing took place. Jagnayak Singh came running to the house as Lalji and 15 other persons chased him. From the house, Jagnayak Singh took the licensed gun of his father and opened shots in the air. Meanwhile, the mob assembled and taking a chance, he ran away from there.
5. The prosecution examined six witnesses. Out of them, Swami Pratap Singh alias Gopal Ji PW-1, Chunnu PW-2 and Chaturi PW-3 professed themselves to be the eye-witnesses. Finding the case to be established to the hilt, the trial Court passed the impugned judgment which has been assailed by the appellant before us.
6. We have heard Sri R.B. Sahai, learned counsel for the appellant and Sri A.K. Dwivedi, learned A.G.A. The record has been summoned which we have also carefully perused.
7. Learned counsel for the accused appellant has argued that the trial Court convicted the accused appellant without testing the testimonial assertions of so-called eye-witnesses on the anvil of reliability and in the light of other circumstances of the case emerging on record. On the other hand, learned A.G.A. has tried to support the conviction and sentence passed against the accused appellant by the Court below.
8. The learned counsel for the accused appellant has specifically drawn our attention to the revelation made by the Investigating Officer Satish Chandra Mehta PW-4. He admitted in his cross-examination that a cross case on the F.I.R. lodged by the mother of Jaghayak Singh was registered and the same had also been investigated by him. That case related to the murder of Jagnayak Singh (said to be one of the assailants of Pramod Kumar alias Lalji). The accused in that case were Uday Bhan, Jagdish Singh and others, totalling fifteen. It also came down from his cross-examination that at the time of inspection he had found bloodstains in the room of upper storey of the house of Jagnayak Singh which he had taken in possession. He had also found the latch of that room to be twisted. It was also stated by him that when he prepared the Panchayatnama of the dead body of Pramod Kumar alias Lalji in his Haveli at about 5 p.m., there was a big commotion outside the Haveli and he saw a number of persons rushing to the house of Jagnayak Singh. He saw the mob trying to break open the main door of the house. Those persons were aimed with guns, rifles, lathi etc. He tried to reason and converse with them against what they were doing but to no effect. Immediately, he heard 3-4 shots from the roof of Jagnayak Singh. He knocked the door of Jagnayak Singh and after sometime Jagnayak’s wife and other women folk opened the door when he assured them that he and persons accompanying him were police personnel. Then the ladies narrated the incident weeping. He also found signs of blood behind the back wall of the house of Jagnayak Singh near Khandhar. There were signs of dragging. At the spot itself, he had come to know that Jagnayak Singh had been killed and his dead body was taken away. He tried at his level best to search his dead body but the same was not found. The Investigating Officer also disclosed that the place where Pramod Kumar was shot dead was the public path. That was the day of fair and thousands of persons were passing that way. Referring to such disclosure made by the Investigating Officer in his cross-examination, the learned counsel for the accused appellant has vehemently argued that this aspect of the matter completely remained obscure that in the present case, Jagnayak Singh was also killed. He reasoned that concealing the reality, the prosecution presented a fabricated version of the incident.
9. We have given our anxious thought to the above argument advanced by the learned counsel for the accused appellant and find on examination of evidence that it is true that the record is completely silent on this aspect of the matter. True, for the sake of appearance, three eye-witnesses, namely, Swami Pratap Singh, (brother of the deceased) informant PW-1, Chunnu PW-2 and Chaturi PW-3 supported the prosecution case that the appellant Daljeet Singh and Jagnayak Singh had opened fire from the roof of one of them (Jagnayak Singh) on Pramod Kumar alias Lalji who was passing through the way for reaching his Dera. But their testimonial assertions do not answer the test of probability. It is pertinent to state that Swami Pratap Singh PW-1 is the own brother of the deceased and claims that at the time of incident he was following Pramod Kumar Singh who was going to his Dera. It is to be noted that he did not receive any injury at all, though Pramod Kumar received seven gunshot wounds of entry and four gunshot wounds of exit. We do not mean to be laying down that he could not be believed for the reason that he was not an injured. The point we wish to make is that in case he was going with his brother, then ordinarily under the circumstances in which Pramod Kumar Singh was shot at receiving so many gunshot injuries, he would have also received some injury. The learned A.G.A. has argued that he escaped unhurt as he was following Pramod Kumar Singh at some distance. We cannot appreciate that there could be any reason for him to follow Pramod Kumar Singh at some distance if he did not intend to accompany him for going to the Dera. Either he would have been going with him side by side or would not have followed him at all. The deceased was aged about 30 years and this witness gave his age as about 21 years while deposing before the Court on 17-7-1980. The place of shooting was only 50-60 paces away from the house of this witness and there could hardly be any question of this young man lagging behind his elder brother Pramod Kumar Singh even in covering such a short distance.
10. We also note that in the site plan, the Investigating Officer has shown the distance as about 45 paces of the spot where Pramod Kumar Singh was shot dead from the main door of the house of Jagnayak Singh. The shooting was allegedly made from the roof, meaning thereby that this distance of shooting would increase a little more giving margin for the height of the roof. Truth of the matter, however, is that in the post-mortem report, blackening and tattooing had been found in six out of seven gunshot injuries sustained by the deceased. It was an indicator that the shots had been fired from within a distance of 6 feet. The factual position as regards the distance found by the Investigating Officer at the spot, in fact, renders the ocular account to be in conflict with the medical evidence. It is also noted that Chunnu PW-2 and Chaturi PW-3 were chance witnesses. Both of them gave trumpery reasons for being present at the spot. The former stated that he was sitting at the Chabutra outside the house of Lalji as he had gone to borrow some diesel from him. Chaturi PW-3 stated that he was sitting at the Chabutra of Lalji having gone there to borrow Rs. 10/- from him. The reasons assigned by both of them do not sound to be plausible and convincing. It appears as if they were fumbling for some justification to show their presence at the spot to pose as eye-witnesses. A falsehood would not be converted into truth if repeated by a number of persons in a parrot-like manner who pose themselves as eye-witnesses of an incident.
11. A suggestion was made to Swami Pratap Singh PW-1 in his cross-examination that the appellant Daljeet Singh was the guest of Jagnayak Singh and was staying in his house as such on that day and that when Jagnayak Singh was chased and attacked, he somehow escaped. Of course, he denied this suggestion. But it seems to be nearer to truth on being judged in the light of attending circumstances. Appellant Daljeet Singh is the resident of village Ramua, P.S. Thariyawan, district Fatehpur. His statement under Section 313, Cr. P. C. was also in line of such suggestion. The charge-sheet of the present case also records that the other accused of the felony, namely, Jagnayak Singh was murdered the same evening. It should be recalled that the background of the incident was that Jagnayak Singh offered Rs. 10/- to the wife of Jhandu Pujari with mischievous intention and beat him up when he objected to it. Pramod Kumar Singh was told about all this when he had gone to the temple to enquire as to what the matter was. While returning home from the temple, he had altercation with Jagnayak Singh on the above count.
12. Ordinarily, it could be Jagnayak Singh only to have felt annoyed for having been questioned by Pramod Kumar Singh. The appellant was not in the picture regarding this episode of offer of Rs. 10/- by Jagnayak Singh to the wife of Pujari of the temple. Blackening and tattooing having been found in six out of seven gunshot wounds of entry sustained by the deceased, he must have been fired at from a close range of within 6 feet. The incident took place in the way and after shooting Pramod Kumar Singh, Jagnayak Singh rushed inside his house. As a reaction to the ghastly murder of Pramod Kumar Singh committed by Jagnayak Singh in broad day light on the public way, a number of persons, presumably supporters of the family of the deceased, assembled with the deadly weapons, chased him (Jagnayak Singh) inside his house to his roof top. They not only murdered him but also took away his body. The murder of Jagnayak Singh was seemingly committed in condemnable retaliatory reaction. Since it was known that the appellant was also there in the house of Jagnayak Singh on that day, he was also nominated as one of the shooters of the deceased, namely, Pramod Kumar Singh. A careful analysis of record including testimony of Investigating Officer Satish Chandra Mehta leads to the only conclusion that the alleged participation of the appellant Daljeet Singh in shooting Pramod Kumar Singh is wholly doubtful.
13. In view of the above discussion, we are of the view that the alleged participation of the appellant Daljeet Singh in this crime is not proved according to the standard required. He, therefore, deserves to be afforded the benefit of doubt.
14. We allow this appeal and set aside the order of conviction and sentence passed by the trial Court against the appellant Daljeet Singh. Appellant Daljeet Singh, if in jail, shall be released provided he is not wanted in any other connection.
15. Judgment be certified to the lower Court for compliance and report within two months.