S.K. Agarwal and Imtiyaz Murtaza, JJ.
1. This appeal was preferred by lour appellants, viz. Naresh, Jagpal, Shyam Singh and Bharat, against their conviction under Sections 302/34 I.P.C., 307/34 I.P.C. and 379/34 I.P.C. Consequently, they were sentenced under the first count to life imprisonment, under the second count to R.I. for five years and under the third count to R.I. for two years. All the sentences were to run concurrently.
2. The brief resume of the facts of this case, as disclosed by the F.I.R., is as under:
On 16.10.1979 in the morning when Naresh was digging the Chak road to cause a passage from the field of the informant, he was desisted by Balak Ram in doing so. Naresh not only abused Balak Ram but also assaulted him. He threatened him too. Accordingly, Balak Ram lodged a report of the incident at about 9.30 A.M. at P.S. Kampil. He was accompanied to the police station by the informant Subedar Singh and their uncle Shree Ram. The injured Balak Ram and Shree Ram possessed rifle and gun respectively. They went to make purchases at Kampil market after their report was registered. After making purchases they were returning to their house from there. It is also alleged that Naresh and his family members used to frequently demolish the mend of his Chak. Whenever they prevented them from doing so this accused quarreled with them. Reports of such incident were also lodged at the police station by the informant side. On the same day at about 5.00 p.m. when they were on Kampil-Aliganj Road in the process of their return to their village Karanpur, as soon as they reached near the field of Gajraj and Ganga Ram, they found all the four appellants emerging out from the bushes armed with gun and country made pistols. They hurled abuses on them and also opened fire. The shots fired by them caused injuries to Shree Ram and Balak Ram. The informant escaped unhurt. The two injured fell to the ground on receipt of injuries. Their alarm attracted Badan Singh, Mewa Ram and Bachcha Lal from their village and many other residents from the vicinity also arrived at the scene of occurrence. On the challenge, thrown by the witnesses assembled there, the accused took to their heels. In the meantime they had also taken away with them the licenced single barrel gun and cartridge’s belt belonging to Shree Ram and rifle of .275 bore and its cartridge’s belt from Balak Ram. None of them was chased on account of fear.
3. Injured Shree Pal breathed his last on the spot. Leaving father of Balak Ram, his other family members and villagers on the spot of occurrence, the informant Subedar Singh went to the police station to lodge the report. This report is Ext. Ka-1. The morning incident’s report is also brought on record as Ext. Ka-6. Injured Balak Ram was despatched for his medical examination to PHC Kayamganj. It is about 20 Kms. from the police station Kampil. P.W. 3 Dr. R.C. Gupta medically examined him at 10.30 P.M. The I.O. came to the spot along with informant at about 10.15 P.M. on the same night. On his arrival he found the dead body of Shree Ram on Kampil-Aliganj Road. Neither the inquest could be prepared due to inadequate light nor inspection of the spot could be made for the same reason. After arranging for the security of the place of occurrence the Investigating Officer engaged himself in the search of accused persons, but he met with no success in this endeavour. Ultimately, on 17.10.1979 at 6.30 A.M. the inquest proceedings were started. Body was sealed and handed over to Constables Sughar Singh and Rama Nand for taking it to the mortuary for post-mortem at Fatehgarh. Me, thereafter, inspected the site and prepared its site map. It is Ext. Ka-14. He found blood at two spots which are shown in the said map. Blood stained earth and simple earth from these spots were also taken. The memos are Exts. Ka-15 and Ka-16. Thereafter he visited village Karanpur in connection with the morning incident. He completed the formalities of investigation about that incident also. He also took into custody the licences of the rifle of Balak Ram and the gun of Shree Ram from their family members. These licences were produced in the case as Exts. Ka-18 and Ka-19. He continued the search of the assailants, but met with no success. On 21.10.1079 he moved an application for drawing proceedings under Sections 82 and 83 Cr.P.C. The proceedings of attachment of immovable property were drawn on 25.10.1979. On this day itself two assailants surrendered in court. The other two accused surrendered on 29.10.1979. However, on 9.11.1979 he was transferred to another police station. He did not record the statements of any of the accused. He stated in his cross-examination that he did not reach the place of occurrence on a jeep. He admitted that Balak Ram’s brother Surjan Singh is an Inspector in U.P. Police. Surjan Singh did not meet him on 17.10.1979, but met him later, but he did not remember the date on which he met him. None of the weapons taken away by these accused were recovered from any of the accused persons. Admittedly, as disclosed by P.W. 11, S.I. Charanpal Singh he recovered these weapons from the dacoits who were killed in an encounter with police on 15.11.1979. According to this I.O., Subedar Singh brought the injured with him when he came for lodging the report but the statement of P.W. 1 Subedar Singh was contrary to his statement. According to P.W. 1, he had left Balak Ram behind, at the spot of occurrence, and did not carry him to the police station.
4. The defence has come out with the suggestion that the two deceased persons were robbed of their weapons by the dacoits who were hiding in the Held in front of which the dead body of Shree Ram and Balak Ram in an injured condition were found lying.
5. According to learned counsel for the appellants the said suggestion finds corroboration despite denial by the witnesses P.W. I Subedar Singh and P.W. 5 Balak Ram, From the recovery of both the weapons from slain dacoits in the above encounter. P.W. 11, the S.I. of Kotwali police, Etah, admitted the said fact. He participated in the said encounter, as admitted by him. This recovery from the slain dacoits lends corroboration to the suggestion that the assailants were unknown and they assaulted the victims from behind or from the side. The informant involved the accused persons solely on account of pre-existing enmity and aggrandizement to teach them a lesson for their past misdemeanor with them.
6. There are certain other circumstances which create serious doubt in the existence of the report at 7.45 P.M. it is also alleged by learned defence counsel. The distance of the police station is 6 miles. The I.O. claimed that he reached the spot at about 10.15 P.M. the same night, i.e. on 16.10.1979. The witness P.W. 5 also admits this fact and corroborates the I.O., but P.W. 1 contradicted them and stated that he and the police force arrived at the scene of occurrence around midnight. Non-preparation of inquest during the night further shows that the prosecution was unable to work out the names of the miscreants during night. Night hours were definitely consumed in working out the names to be involved. Preparation of the inquest in the morning further assures it. The constable, who escorted the dead body to the mortuary claimed that they received the dead body at about 8.00 a.m. on 17.10.1979. They brought it to Fatehgarh and produced it before the doctor who conducted the post-mortem at 6.10 P.M. in the evening. The post-mortem came to be conducted on 18.10.1979 at 1.30 P.M. Thus, the delay in the post-mortem causes serious doubt in the presence of the F.I.R. during the night hours. No attempt apparently was made to arrange any light during night for this purpose, There is no entry either in the case diary, or in the memo of inquest that due to paucity of light it could not be prepared. The existence of the F.I.R. in the night, therefore, is highly doubtful. Moreover, the conflict regarding Balak Ram injured being carried to police station in the prosecution evidence also assumes significance. He was not taken to police station is proved by P.W. 1. I.O. though contradicts him.
7. The defence has also challenged the presence of Subedar Singh at the spot. From the earlier report Ext. Ka-6, it is apparent that the dispute was only between Naresh and Balak Ram and Naresh assaulted Balak Ram with the butt-end of the spade.
8. Balak Ram in his statement in the examination-in-chief has said that it was Naresh who initially abused him and then beat him with a Danda. When he was confronted with his morning F.I.R. he stated that he may have been assaulted with the butt-end of the spade. So far as P.W. 1 Subedar Singh is concerned, according to him, Balak Ram challenged Naresh and told him, ‘why he is hurling abuses. Has his mind gone astray’. As soon as Balak Ram told this to Naresh, all the accused persons brought Lathis from their house and fell upon Balak Ram. This is in direct conflict with this morning F.I.R., Ext. Ka-6. According to that report the other accused were standing at the door of their house and they did not participate in the incident. Thus, this was introduced in his statement during trial to rope in all the accused. The injured Balak Ram claimed that he ran away from the spot finding himself weak against Naresh. He did not nominate Subedar Singh as an eyewitness in his said report. Therefore, the attempt of Subedar Singh in claiming his presence in the morning incident also is a complete falsehood and cannot be accepted without a pinch of salt.
9. Coming to his presence in the second incident, it has been admitted by Balak Ram that only he and Shree Ram went inside the police station and Subedar Singh remained outside the police station. After lodging the report it is alleged by this witness P.W. 5 Balak Ram that he had gone along with others for the purchase of some household articles and came back to Kampil at about 3,00 p.m. and soon thereafter they started their journey back to the house. In the cross-examination this witness told that they had taken rest for about an hour and half at a beetle shop at Kampil. He did not know the name of that shopkeeper. They took the rest upto 3.00 p.m. In the meantime, Subedar returned after making the purchase and then they proceeded together for village Karanpur, their place of abode. He was suggested that Subedar was not with them. This clearly indicates that the witness is not sure about what to state and what not to. It is also admitted to this witness that he reached the police station at 9.30 p.m. They started from their house after half an hour of the first occurrence for which Ext. Ka-6 was registered at the concerned police station. Thus, they covered the said distance of 6 miles in an hour to reach the police station in the morning, but in the evening their claim is that they started at 3.00 p.m. and reached the outskirt of the village, which is just 2-1/2 furlongs away from it, at 5.00 p.m. It does not stand scrutiny. Their claim that they took rest at a beetle shop for an hour and a half also is an ingenuity apparently because the said fact is not asserted by Subedar Singh earlier. According to Subedar Singh they waited at the police station for the availability of a constable for their return journey despite the fact that two of them, Shree Ram and Balak Ram, were armed with gun and ride, liven this assertion of Subedar Singh is a total ingenious effort to explain the enormous delay between the first report and the second incident. These are the circumstances. The fact that Subedar Singh did not suffer any injury in the said incident further establishes beyond doubt that he was not present at the spot at the relevant time during the later incident. He is a gullible witness. He is willing to depose anything. He is highly interested and partisan too. His testimony, therefore, is to be discarded outright from our consideration.
10. So far as injured Balak Ram is concerned, there are many lacunas in his testimony with regard to the first incident and its manner. Apart from it, it is also pertinent to point out that there were four assailants, all armed with firearms. Out of them Naresh and Shyam Singh were armed with single barrel guns. Jagpul and Bharat were armed with country made pistols. All of them opened fire simultaneously. P.W. 5 asserted that the shots emanating from the gun of Naresh struck in his right thigh. He did not explain as to whose shot struck Shree Ram. Subedar Singh asserts this fact. According to him, Shree Ram suffered injury from the shot fired by Shyam Singh. Where four persons were opening fire simultaneously it is next too impossible for any witness to notice whose shot struck whom. Moreover, as contended by learned counsel for the appellants that two of the assailants did not cause any injury. They allegedly participated in the shooting from their respective weapons simultaneously with the gunwalas. This is nothing but an attempt to specifically rope in the arch enemies who were harassing him repeatedly. His testimony, on this count, on the point of roles cannot he accepted. Shree Ram has suffered his injuries from behind. Balak Ram had a gunshot wound of entry through and through on middle part of the inner thigh. Margins were irregular and inverted. Blackening and tattooing was absent, meaning thereby that he suffered his injuries from a distance beyond two yards, if it was a gunshot, as he alleged. The injuries inside his right thigh middle part means that he was on movement probably when he suffered the injury. His legs must have been apart. Shooter must have been on to his back. Conspicuously, Shree Ram and Balak Ram were at a distance of 7-8 steps from each other and Subedar Singh was yet another 8-10 steps behind from the last man Balak Ram. The assailants hence must have been either in the back or on the side of the injured and behind them. To meet the situation Balak Ram claims that he fell unconscious little after receipt of his injury, whereas Subedar Singh stated that he immediately fell unconscious. Therefore, it is not possible for him to see and notice his assailants. For the said contradictions the testimony of this witness cannot be given adequate weightage.
11. An injured witness at the most lends credence to his presence and sustenance of injury by him in a particular incident, but his testimony is to be assessed like any other evidence and if there are inherent improbabilities and contradictions in his testimony on the manner and participants etc., it is not always obligatory on the court to accept the evidence of such an injured witness. The rule of appreciation of the evidence of an injured witness is different only in this manner and not in any other manner. He too is to be largely honest in his deposition for the acceptance of his evidence by the court. Deviation on manner of assault, participants in the incident and similar such details always stand in the way of their honesty.
12. In view of these anomalies even testimony of injured Balak Ram too cannot he accepted with regard to the manner and time of assault. P.W. 1 admitted the arrival of his family members. According to him, he did not carry any one to the police station, either deceased or the injured. He has been categorical that he left the villagers and the family members including the females at the spot before proceeding to the police station for lodging the report, whereas the police papers and the statement of the I.O. clearly shows that Balak Ram was taken to the police station. This further creates serious dent in his version. We are unable to find any excuse for denying the said fact by him.
13. In view of these facts and circumstances, we do not find the testimony of even injured Balak Ram worth conviction and belief. The prosecution has not come out clean breast. As earlier discussed, the incident had not occurred in the manner as alleged by the prosecution. None of these appellants seem to be party to the incident. Prima facie the defence suggestion was that the unknown persons looted them of their weapons. In the process of resistance they were also fired upon by these unknown miscreants. They were taken by surprise. It is corroborated fully by the recovery of their weapons from the dacoits, who were killed in an encounter with police, as admitted by P.W. 11, in Etah, in the territory of P.S. Aliganj in village Mahakhera Kaliyan. The encounter lasted from 3.30 P.M. on 14.11.1979 to 15.11.1979 upto 10.00 A.M. Six dacoits were killed in that encounter. The gun and the rifle belonging to Balak Ram and Shree Ram were recovered from Ranvir and Amar Singh, the two slain dacoits from amongst the six. The F.I.R. was already held to be anti-timed and anti-dated. It was prepared alter the arrival of Surjan Singh, a police Inspector in the U.P. Police posted at Jhansi the next day. A telegram, admittedly, was sent to him about the incident on the same day. P.W. 1 admits it. Though both P.W. 1 and the S.I., who conducted the investigation, have denied the arrival of Inspector Surjan Singh, the brother of Balak Ram on the said date. They feigned ignorance about the specific date of his arrival though his coming is admitted. Non-production of the copy of the telegram clearly proves it. It clearly indicates that the prosecution witnesses have given out a coloured version to wreak vengeance. An incident of dacoity was converted into an incident of murder and causing of injury to Balak Ram and theft of their weapons. It occurred, in all probability, alter fall of darkness.
14. The last nail in the coffin of the prosecution is non-examination of any independent witnesses in the trial despite admission of presence of many witnesses from the vicinity and the village at the spot at the relevant time. This assumes significance in the context of the facts of the present case. An adverse inference flows from their non-examination by the prosecution in the trial. It clearly points out to the fact that the prosecution has suppressed the true genesis of the incident and had roped in the appellants due to a pre-existing enmity, which is an admitted fact. Number of cases of Marpit etc. were contested between the parties and F.I.Rs. and cross-F.I.Rs. were repeatedly lodged.
15. Incompatibility with the medical evidence and with the prosecution version is yet another significant circumstance. It, at least, rules out the participation of the two of the four assailants in the incident. Who were they it is not easy to discern. Neither in the F.I.R. nor in their 161 Cr.P.C. statement none of these two witnesses have asserted that shots fired from the gun of Shyam Singh and Naresh caused injuries to the deceased and injured Balak Ram. For the first time in the trial court they asserted this fact. We are not prepared to accept this belated and after thought assertion.
16. In view of the above discussion we allow this appeal. The conviction of the appellants for the charges for which they were convicted and consequently sentenced, which we have described at the outset of this judgment, is hereby set aside. They are acquitted of all these charges. They are on bail. They need not surrender. Their bail bonds are cancelled and the sureties are hereby discharged.