JUDGMENT
S.K. Jain, J.
1. This criminal appeal by three appellants namely, Jwala Singh, Chandrapal and Ram Chandra is directed against the Judgment and order dated 24.8.1982, passed by learned Sessions Judge, Etah in Sessions Trial No. 96 of 1982, State v. Ram Chandra and Ors., whereby the learned Sessions Judge convicted appellant Jwala Singh and Chandrapal under Section 302 I.P.C. and appellant Ram Chandra under Section 302 read with Section 34 I.P.C. and sentenced all the three appellants to undergo imprisonment for life.
2. The essential facts leading to this appeal are as follow:
The three appellants, Rajvir Singh, real brother of deceased Jagdish alias Maharaj Singh and Smt. Soran Kunwar are co-laterals. About one and half month before the present occurrence there was an agreement of sale between Smt. Soran Kunwar and the three appellants. Rajvir Singh and deceased claimed that they had also share in the property of Smt. Soran Kunwar for which an agreement to sale was executed by her, therefore, they made an application before the Sub Registrar through one Anand Pal, another co-lateral. Deceased Jagdish was doing pairvi of that application, because of this the three appellants were annoyed. Three days before the present occurrence appellant Jwala Singh had threatened the deceased, but no report about this threat was made.
3. On 8.7.1980 in the night at about 1.30 a.m., Jagdish, Balvir Singh and his nephew Rajvir Singh son of Chandra Pal Singh, Pratap and Har Pal Singh were sleeping in the Varandah of the ‘Baithak’. A lantern was illuminating in the varandah. The three appellants came there, they were armed with lathis and country made pistol. They caught Jagdish, who raised an alarm. Appellant Ram Chandra Singh was armed with lathi and appellants Jwala Singh and Chandrapal were armed with country made pistols. Appellant Ram Chandra said that “Ajlse Thikane Lagayenge”. Appellant Jwala Singh and Chandrapal fired at Jagdish on the side of abdomen at a point blank range. Chandrapal again made one fire. Jagdish died on the spot. All the three appellants succeeded in running away.
4. First informant Rajvir Singh, real brother of deceased Jagdish got scribed written report by Balvir Singh and submitted the same at the police station Nidholi Kala, district Etah on 8.7.1980 at 4.30. The distance between the police station and the place of occurrence was about three miles. On the basis of this written report Ext. Ka-1, Head Moharrir Ram Singh wrote chick F.I.R. Ext. Ka-3 and registered the case in G.D. as per Ext. Ka-4. S.I. Fateh Alam Khan PW4 who was posted as Station Officer Nidholi Kala took up the investigation of the case. He recorded the statement of Head Moharrir, went to the place of occurrence, held inquest of the dead body of deceased Jagdish, prepared necessary papers for post mortem, sealed the dead body and sent the same with necessary papers for post mortem to District Hospital Etah. He also found the blood stained cot on the spot and prepared its recovery memo. He also took into possession blood stained bed sheet, blood stained and ordinary pieces of knitting of charpai. He gave the cot in the supurdagi of the first informant. He also took into possession the lantern and gave it in the supurdagi of the first informant. Thereafter he prepared the site plan and after recording the statement of other witnesses remitted the charge sheet against the three? appellants.
5. The autopsy on the dead body of Jagdish was conducted on 8.7.1980 by Dr. O.P. Vaidya at 4.00 p.m. in the District Hospital Etah. According to post mortem report prepared by Dr. Vaidya Ext. Ka-2 the following ante mortem injuries were found on the person of the deceased.
1. Fire arm wound of entry 2.5 cm x 2.5 cm x cavity deep on right hypochorium region. Blackening was present around the wound. Direction was backward and inward.
2. Fire arm wound of entry 2 cm x 2 cm x Cavity deep 2 cm below and away from injury No. 1. No blackening. Direction was backward and inward.
6. Cause of death was shock and haemorrhage as a result of ante mortem injuries. Rigor mortis was present in both upper and lower limbs.
7. On internal examination haematoma was present in the layer below injury No. 1 and 2. Peritoneum was grossly lacerated. Cavity contained about 20 ounces of liquid and clotted blood. Eight wad pieces and 32 pellets were recovered from the cavity which were sealed. Gall bladder grossly lacerated. In the opinion of the doctor the deceased could die in between the night of 7/8 July, 1980.
8. The appellants pleaded not guilty to the charge and claimed trial.
9. The prosecution in order to bring home the charges against the appellants examined first informant Rajvir Singh, real brother of deceased Jagdish as PW1 Balvir Singh has been examined as P.W. 2. Dr. O.P. Vaidya has been examined as PW3 and Investigating Officer of the case Fateh Alam Khan has been examined as P.W. 4.
10. The three appellants denied the prosecution accusation in toto and have stated that the witnesses have falsely deposed against them. However, all the three appellants admitted that Smt. Soran Kunwar had executed an agreement of sale in their favour but also stated that deceased Jagdish had not filed any objection. No defence evidence was adduced.
11. After appraisal of evidence, the learned Trial Judge found the testimony of two eye witnesses reliable and recorded the finding of conviction and awarded punishment of rigorous imprisonment for life to all the appellants.
12. Appellant Chandrapal died during the, pendency of appeal and his appeal stood abated vide order dated 9.8.2007.
13. We have heard Sri Viresh Misra, learned Senior Counsel, assisted by Sri Amit Misra and Sri D.P.S. Raghav for the appellants and the learned AGA Sri S.K. Yadav and have gone through the record carefully.
14. Learned Counsel for the appellants has challenged the impugned Judgment and order on the ground that so called eye witnesses did not witness the occurrence. They were not present on the spot. The medical evidence is in contradiction with the oral evidence adduced by the two witnesses of fact. There was no motive for the appellants to commit murder of deceased Jagdish. It was the night occurrence. Appellant Ram Chandra is about 80 years of age. He was shown to have been armed with lathi, but there was no lathi injury found on the body of the deceased.
15. It has been vehemently contended by the learned Counsel for the appellants that it is a specific case of the prosecution in the FIR that appellant Jwala Singh and Chandrapal had put their tamancha on the side of abdomen of Jagdish and had made fire. Chandrapal also made one more fire at the deceased. Thus, as per the prosecution story three fires were made at the deceased, but as per the post mortem examination, the deceased had suffered only two injuries. It has also been submitted by the learned Counsel that there was no occasion for Balbvir Singh to sleep on the Chabootra of Rajvir. Rajvir did not mention it in the written report that he witnessed the occurrence. He did not mention it in his report that he was also sleeping in the varandah. He also did not state to the I.O. that he was sleeping in the varandah. Therefore, the learned Sessions Judge committed error in appreciating the evidence on record and convicting the appellants.
16. In reply, the learned AGA vehemently contended that on account of deceased Jagdish doing pairvi of the application made through Anand Pal regarding agreement of sale executed by Smt. Soran Kunwar in favour of the appellants. The appellants were annoyed and from perusal of the written report it appears that PW1 is eye witness and the presence of PW2 at the time of occurrence at the place of occurrence is probable as he has stated that he was sleeping in that varandah to look after his cattle. It has further been submitted that the deceased received two fire arm injuries and the witnesses in their statement before the court have also stated about two fire arm injuries. Therefore, there is no contradiction in the statement of the witnesses of fact with the medical evidence on record.
17. We have carefully examined the evidence on record in the light of the submissions made by the learned Counsel for the parties.
18. Repeating the prosecution story, PW1 Rajvir Singh who is real brother of the deceased has deposed before the court that th,e three appellants Ram Chandra, Jwala Singh and Chandrapal are his co-laterals. Smt. Soran Kunwar was his sister. About one and half month before this occurrence, Smt. Soran Kunwar laad executed an agreement for sale in favour of these three appellants. The land for which this agreement to sale was executed, four persons had their share he had also share in the land. They got an application made before the Sub Registrar through Anand Pal and deceased Jagdish was doing pairvi. Appellants felt bad about this pairvi. 5-6 days before the occurrence appellant Jwala Singh gheraod Jagdish on this count but no report was made. Giving details of the occurrence he stated that in the night about 1.00 – 1.30 a.m. in the varandah of the Baithak his brother deceased Jagdish, Balvir Singh, Rajvir Singh son of Chandra Pal Singh, Pratap Singh and Harpal Singh were sleeping with him. A lantern was illuminating. The three accused came there and caught Jagdish. They got up. He saw that Ram Chandra was armed with lathi, Jwala Singh and Chandrapal were armed with country made pistols. Ram Chandra said that “Jagdish Ko Aj Thikane Laga Do”. Accused Jwala Singh had put his country made pistol on the side of abdomen of Jagdish and fired. Chandrapal also fired and Jagdish received fire arm injury from the fire made by Chandrapal. After receiving the fire arm injury his brother died and the accused ran away.
19. PW 2 Balvir Singh corroborating the prosecution version deposed that the three accused persons came and caught Jagdish. Jagdish raised alarm. They got up. Chandrapal and Jwala made fire at Jagdish and it has come in his cross examination that Chandrapal and Jwala Singh had made fire from the distance. Chandrapal had made fire from the distance of one foot. Jawala Singh made fire from the distance of two feet. He sleeps on the Chabootra, because he ties his cattle in the open land towards the east of this Chabootra. It appears from the statement of these witnesses that only two fires were made at the deceased. One by Jwala Singh and other by Chandrapal. While as per the F.I.R. three fires were made at the deceased by these two appellants.
20. Hon’ble Supreme Court in the case of State of Bihar v. Bishwanath Rai 1997 (4) Crimes 22 SC has observed that where witnesses made an identical improvement in their evidence to make it consistent with medical evidence High Court was justified in discarding their evidence.
21. From the evidence on record, it appears that that though the specific case of the prosecution as per the F.I.R. was that three fires made, two fires were made by Chandrapal and Jwala keeping their country made pistol on the side of abdomen of the deceased and Chandrapal made one more fire. These two witnesses have made a deliberate attempt to change their version to make it consistent with the medical report.
22. The testimony of PW1 is also doubtful for the reason that he no where stated in the first information report that he was also sleeping in the varandah along with the deceased, although in his cross examination he says that he was sleeping on the same cot on which Rajvir Singh son of Chandra Pal Singh was sleeping, but he did not disclose this fact to the Investigating Officer. We are also unable to accept this statement of PW2 that at the time of incident he was sleeping in varandah of first informant Rajvir Singh when he has his own house in the village. He has stated that towards the east of the place of occurrence, there is open land owned by him and Pratap Singh, they tie their cattle on this land and, therefore, he was sleeping in the varandah of Rajvir Singh. But in the site plan Ext. Ka-12 no where the open land towards east of the place of occurrence has been shown which belongs to Pratap Singh and P.W. 2 Balvir Singh.
23. In view of above discussions it is highly doubtful that the two eye witnesses examined by the prosecution namely, Rajvir Singh and Balvir Singh witnessed this occurrence.
24. Besides this none of the alleged eye witnesses were injured in this incident, though Rajvir Singh the first informant, real brother of the deceased should have also been made target of the attack, because he was claiming the share in the land of Smt. Soran Kunwar, who had executed an agreement of sale of her land in favour of the appellants.
25. The alleged motive of crime that there had been an agreement of sale executed by Smt. Soran Kunwar sister of Rajvir Singh and deceased in favour of appellant and that the deceased and others also claim their share in the land and the deceased had filed objection before the Sub Registrar through Anand Pal and was doing pairvi, because of which the appellants were annoyed is also not proved in this ease. No documentary proof of any such application has been filed. Anand Pal has not been examined to suggest that he had made application before the Sub Registrar and that the deceased was doing pairvi.
26. In view of above, we are of the view that the prosecution Ifiad failed to establish its case and the learned Sessions Judge committed error in convicting the appellants.
27. The appeal is allowed. Conviction and sentence of the two appellants, namely, Jwala Singh and Ram Chandra is hereby set aside. Appellant Jwala Singh is acquitted of the charge under Section 302 I.P.C. and appellant Ram Chandra is acquitted of the charge under Section 302 read with Section 34 I.P.C. They are in jail. They shall be set at liberty forthwith, if not wanted in any other case.
28. Let a copy of this Judgment be sent to the court concerned for compliance without any delay. Compliance report be reported to this Court within a month.