JUDGMENT
K.S. Rakhra, J.
1. These are two appeals by same set of appellants from the same case and the same judgment dated 19.8.1999 passed by IIIrd Additional Sessions Judge Firozabad in Sessions Trial No. 242/97 whereby he convicted appellants Praveeen, Prakash, Keshav and Billiyan under sections 302/34 IPC and sentenced each of them to rigorous imprisonment for life. Appellants are in jail.
2. Case relates to murder of Sanneg Singh son of Bachan Singh Yadav resident of Abbaspur within the circle of Police Station Narispur District Firozabad. It is alleged that on 25.2.1997 at 11.30 a.m. Sanneg Singh had gone to take bath at the hand pump of temple in the village. The four appellants, out of previous enmity opened fire on him with country made pistols and guns on account of which he died on the spot. The incident is said to have been witnessed by informant Suresh Chandra who is cousin brother of the deceased and also by Mukut Singh, Vireshwar Singh, Omvir Singh and Radhey Lal P.W.2. This Radhey Lai is “Sadhu” of the deceased in as much as he is married to cousin sister of the wife of the deceased.
3. According to the prosecution, background of this crime was murder of one Ram Vilas which took place about 13-14 years ago. This Ram Vilas was father of the appellant Praveen and Prakash and brother of the appellant Keshav. In connection with said murder appellant Prakash had named Suresh Chandra (P.W. 1 and informant of the present case), Sanneg Singh, the informant’s father Baboo Ram and three other as accused. The said case, however, entered into acquittal within two years.
4. Admittedly Ram Vilas aforesaid had contested and won village Pradhan’s election against informant’s father Baboo Ram who was a sitting village Pradhan. Thereafter Ram Vilas was elected Village Pradhan in subsequent election also defeating Gaya Charan a candidate fielded by Baboo Ram. Ram Vilas was however, murdered during his second tenure as village Pradhan.
5. Gaya Charan aforesaid is brother of Jagdish and they are sons of Sri Ram. Prior to the present incident one Natthi Singh had been murdered and in that connection Suresh Chandra P.W. 1, Sanneg’s father Bachan Singh and aforesaid Jagdish, Gaya Charan and their father. Sri Ram as well as Mukut Singh who is said to be witness of the present incident, were named as accused. Witness Mukut Singh of the present incident was also an accused along with informant Suresh Chandra in another case under section 307 IPC of making attempt on the life of Ramesh.
6. The above facts give an indication as to how strong was the enmity between Ram Vilas and his sons on the one hand and informant Suresh Chandra deceased Sanneg Singh and their father etc. on the other hand. It also reveals strong affinity of witness Mukut Singh with informant Suresh Chandra P.W.1 as well as relationship of Radhey Lai P.W. 2 with deceased Sanneg Singh.
7. It is also evident from the statement of Suresh Chandra that since last 14-15 years, i.e. after the murder of Ram Vilas, he along with his family shifted to Shikohabad which is about 18 Km. away from village Abbaspur where incident took place. Similarly his testimony before the trial court shows that he was apprehending danger to his life from the accused persons and therefore, always used to remain alarmed His mother had died at Shikohabad some time around the date of the present incident. His explanation for being at village Abbaspur on the relevant date was that in connection with “Terahi” of his mother he and his family members had shifted to village Abbaspur where they have their agricultural land and original base. The defence however, has disputed his claim that his mother had died on 16.2.1997. It was suggested to him that his mother in fact had died about a month ago and therefore, there was no occasion for him to be in the village on the date of the occurrence.
8. Similarly the statement of Suresh Chandra P.W. 1 is that deceased Sanneg Singh had twenty bighas of agricultural land in village Abbaspur and used to himself look after cultivation. The defence suggestion was that Sanneg used to sleep in his field in night but the informant had denied this fact, although he admitted that Sanneg Singh used to go to his field early in the morning. Admittedly even since his father Ram Vilas had died, Sanneg Singh was living in the village Abbaspur.
9. According to the first information version on 25.2.1997 at about 11.30 a.m. Sanneg Singh had gone to Jain temple in the village to have a bath at the hand pump. As he was drawing water from the pump, four appellants, arrived there. Praveen and Prakash were armed with country made pistol, their uncle Keshav was armed with licensed gun and their companion Billiyan with whom deceased had no previous enmity were armed with country made pistol. On the exhortation of Prakash, all the four persons opened fire on Sanneg Singh killing him on the spot. The said incident was witnessed by Suresh Chandra P.W. 1, Mukut Singh, Vireshwar Singh, Omvir and Radhey Lal P.W.2 and many others. The witnesses rushed to save the victim but the accused succeeded in running away after committing crime. It was claimed that dead body of Sanneg Singh was then shifted from the place of occurrence to the house of Sanneg Singh which was about 70-72 steps away. There Suresh Chandra P.W. 1. prepared a written report, and went to lodge the same with the police on scooter. It was registered at the police station on the same day at 1305 hours by the Girraj Singh P.W.4. Investigation of this crime was taken up by S.I. Vishwa Nath Singh P.W.5 who along with other police force proceeded to the place of occurrence and in his supervision inquest was held by S.I. Shiv Bahadur Singh P.W.6. and the dead body was despatched through constable Ali Hasan P.W. (7) to mortuary for autopsy. Dr. P.K. Jain (P.W.3) conducted post mortem examination of the dead body on 26.2.1997 at 1.15 p.m.
10. Following ante-mortem injuries were found on the dead body of Sanneg Singh:
1. Gun shot wound of entry 5 cm x 3 cm x cavity deep present on Lt. side of chin on mandible.
2. Gun shot wound of entry 2 x 2 cm x cavity deep present over dorsal aspect of Rt. Han.
3. Gun shot wound of exit 2 x 4 cm x cavity deep palmer aspect of Rt. Hand.
4. Gun shot wound of 2 cm x 1.8 cm x cavity deep at Rt. Side of epigastrum region.
5. Gun shot wound of exit 6 x 4 cm x cavity deep present on Rt. Side of abdomen 5 cm below cranial region.
6. Gun shot wound of entry 3 x 2 cm x cavity deep at Rt. Side of abdomen iliac spine.
7. Lacerated gun shot wound of exit 4×4 cm cavity deep at Rt. Side and thigh upper part.
8. Gun shot wound entry 3 x 3 cm x cavity deep at Lt. Hip centrally.
9. Gun shot wound of exit 4 x 4 cm at lumber region centrally placed.
10. Gun shot of entry 4 x 4 cm x cavity deep at Rt. Side of back of shoulder joint
11. In the opinion of the doctor, death had occurred due to shock and haemorrhage as a result of ante-mortem gun short injuries. He had also found semi-digested food in small intestine of the deceased and faecal matter in the large intestine. In his opinion this death had occurred about 24 hours prior to the examination.
12. In the trial court prosecution had examined seven witnesses in all. Out of them, Suresh Chandra P.W.l and Radhey Lal P.W.2 claimed to be eye witnesses and Dr. P.K. Jain P.W.3 conducted post mortem examination, Girraj Singh P.W.4 was the head constable who had registered the first information report. S.I. Vishwa Nath Singh P.W.5 is investigating officer. S.I. Shiv Bahadur Singh P.W.6 had held inquest and constable Ali Hasan P.W.7 had carried dead body to District Head Quarter for autopsy. All the prosecution witnesses tried to support prosecution version. No oral evidence was led by the accused in defence. The accused however, contested the case on the ground that Sanneg Singh was done to death not at hand pump of the temple but somewhere in the fields and that too either in the night or earlier in dark hours and nobody had seen the occurrence. Defence has further claimed that motive for commission of crime is too stale and the presence of the eye witnesses who were related to the deceased is very doubtful. First information report is ante-timed and there are material contradictions in the testimony of Suresh Chandra P.W.1 and Radhey Lal P.W.2. According to them also the place of occurrence is not established. The trial court on the basis of the above evidence believed prosecution story and has recorded conviction.
13. We have heard Sri D.R. Azad learned Counsel for the appellant, Sri Danish Iqbal Faridi AGA for the State and have cogitated on entire evidence on record.
14. We find ourselves in agreement with the learned Counsel for the appellant that there are several reasons and circumstances which make prosecution witness wholly unreliable and the trial court committed serious illegality in basing its conviction on the said evidence.
15. First of all it is an undisputed fact that there was strong enmity between the sons of late Ram Vilas or his brother with informant’s father Baboo Ram, deceased Sanneg Singh and the informant himself. All the witnesses examined by the prosecution as eye witnesses are highly interested witnesses. Their evidence has, therefore, to be examined very carefully and the circumstances have to be given their natural & probable meaning.
16. It is significant to note that Suresh Chandra P.W.1 who is informant of the case is living at Shikohabad 18 Kilometres from village Akbapur since last fourteen years. He apprehended danger to his own life and always remained alarmed. In the ordinary course he had no occasion to be present in village Akbarpur on the relevant date. He claimed that his mother had died on 16.2.1997 at Shikohabad but family had shifted to village for the purpose of performing “Terahi”. The defence suggestion was that this is false pretext as mother had died about a month ago. In this regard he got printed, intimation letters for the information to relations and friends. No such printed information has been filed to rebut the suggestion given by the defence. A copy of the death certificate could have been produced to support the contention that mother had died on 16th February. In the absence of any such material, it becomes quite doubtful that his mother had died on 16th February and therefore, he was present in the village in connection with “Terahi” of his mother.
17. Another circumstance which creates doubt about his presence on the spot is that accused persons had not tried to cause any harm to him despite the fact that he was similarly placed as the deceased was so far as enmity is concerned. He was also accused in murder of Ram Vilas and as per his own version he always apprehended danger to his life on account of aforesaid enmity. Not only this, even Mukut Singh another prosecution witness although not examined in the case would have been an equal desired target for the appellants as he was a close associate of the victim as well as informant. His presence also did not provoke the accused persons to attack on him. No other person from the vicinity came forward to depose although village has Abadi of 3000 as admitted by the informant.
18. Suresh Chandra P.W. 1 deposed that after the incident when culprit left the place of occurrence he shifted the body of the deceased from the place of occurrence to his house at a distance of 70-72 yards. The investigating officer did not find any trail of blood on the passage nor did he find any blood stains on the clothes of this witness. The bucket, mug, towel and any other material used for the purpose of having bath was also not found by the investigating officer at the alleged place of occurrence. Although the prosecution claims that blood and plain earth was collected from the place of occurrence and a memo Ex. Ka. 6 was prepared but the said memo does not indicate exact place from where blood stained earth was collected. It does not say that it h was collected from hand pump where the deceased had gone to have a bath. No empty shells of the cartridges or wad or cork pieces were found at the place of occurrence. The investigating officer had also stated that he could not find signs of firing at the place of occurrence although hand pump where deceased had gone to have a bath was surrounded by walls from three sides. From the statement of Suresh Chandra, P.W. 1 it appears that even after the victim had fallen down on firing, seven to eight shots were more fired on him. This should have left signs of firing on the place of occurrence. Their absence creates doubt about the place of occurrence.
19. Suresh Chandra P.W. 1 alleges that after a hour of the occurrence, he left for the police station on scooter. The police station was about 15 kilometres from the place of occurrence. The dead body was despatched from the place of occurrence at 3 ‘O’ clock. He did not accompany the dead body to the head quarter. According to him he returned from the police station on scooter. Contradicting this, head constable Girraj Singh P.W. 4 says that the informant had come to the police station on foot and not on by means of transport. Constable Ali Hasan P.W.7 stated that informant accompanied the dead body on a tractor when it was brought to head quarter for autopsy. These contradictions create doubt about presence of informant in this village at the time of incident and gives support to defence suggestion that he arrived from Shikohabad later on.
20. Further although it is not necessary to mention the name of the accused etc. in the inquest report but since the first informant was there at the time of the inquest and he had seen the occurrence, it was natural for him to have mentioned that the murder was committed by the appellants and they had used fire arms. The absence of this in the inquest report strengthens doubt about his having witnessed the occurrence.
21. S.I. Vishwanath Singh P.W.5 had collected evidence to the effect that the informant at the time of incident was at the house of witness Mukut Singh whereas informant claims that at the time of occurrence he was at distance of 10-15 paces from the place of occurrence. Investigating Officer had also collected evidence to the effect that the informant had come to the village only on the date of the occurrence. This is contrary to the claim of the informant that in connection with ‘Terahi’ of his mother, he was already present in the village. All these contradictory statement make the presence of the informant on the spot highly suspicious.
22. Statement of Radhey Lal, P.W. 2 also does not inspire confidence. According to him he had seen the police arriving in the village at about 1.45 p.m. and till then dead body was lying at the place of occurrence and it was shifted to the house of the deceased thereafter. This is wholly contrary to the stand of the prosecution as well as the statement of investigating officer. His statement that he had seen the culprits surrounding the victim and felling him on the ground and thereafter firing on him from the close range is also not in conformity with the prosecution story. He did not go to pass information about incident to the children of the deceased. This is very unnatural He also says that bucket which the deceased had taken to the hand pump for taking bath was kept lying there and he had shown the said bucket to the police. This is inconsistent with the statement of investigating officer.
23. In view of this nature of evidence, it is also to be kept in mind that the doctor conducting post mortem examination had found semi-digested food in the small intestine and the faecal matter present in the large intestine of the deceased and time of incident was 11.30 a.m. Suresh Chandra P.W. 1 has stated that deceased used to have a bath only after answering nature’s calls in the morning. Deceased and his family had shifted to the house of the first informant in connection with “Terahi” of his mother and they were supposed to have a meal there. In these circumstances stomach contents in our opinion also raise doubt about time of incident as alleged by the prosecution.
24. Not only this, there is every possibility that the first information report was ante-timed. There was delay in sending special report which according to H.C. Girraj Singh P.W.4 could not be sent promptly on account of shortage of staff and it could be sent only at 18.15 hours. It has also come in his evidence that first entry in the G D of the police station on 25.2.1997 was made at 6.10 a.m. and thereafter except registration of the present crime no other report of cognizable offence was registered at the police station till 12 ‘O’ clock in the night. All these circumstance leaves scope for making ante-timed entry in the records. Statement of Radhey Lal P.W.2 was recorded by the investigating officer on 26.2.1997. Further all the documents which were allegedly sent by the investigating agency along with dead body to the reserved inspector of police line were not signed by the said inspector. There was no signature of the inspector on inquest report or on the copy of the general diary of the police station. This again shows possibility of record being ante-timed.
25. From the discussions made above, it is clear that the prosecution evidence in this case was not free from doubt. It was highly doubtful that Suresh Chandra P.W. 1, Radhey Lal P.W.2 had seen the occurrence, it was also not natural for the appellants to have selected alleged date time and place of the occurrence which could have been within the view of the people of the village. The deceased was living in village regularly and was managing his cultivation since 14 years and also used to go to his fields early in the morning If the accused persons wanted to kill him, they could have chosen some safer time and place. Though all these circumstances if taken up individually could have been explainable, but their collective effect to our mind creates doubt in the veracity of the prosecution story. We agree with the submission of learned Counsel for the appellants that the trial court committed illegality or error in basing conviction on such an evidence.
26. Resultantly we allow these appeals and set aside the conviction of the appellants as well as sentences passed on them by the trial court. They are in custody. Let a certified copy of this order be certified to the trial court which shall immediately issue order for release of the appellants from jail, if they are not wanted in any other crime.
Sri D.R. Azad, Amicus Curiae shall be paid Rs. 4,000/- by the State for assistance rendered by him.