JUDGMENT
R.C. Deepak, J.
1. This is a criminal appeal against the judgment and order of the then VIth Additional District and Sessions Judge, Allahabad dated 24-1-1981 in S.T. No. 74 of 1980 convicting and sentencing the accused appellants under Section 302/34, I.P.C. to life imprisonment.
2. The prosecution case briefly stated is that on 8-11-1979 at about 7.30 p.m. the informant Ram Badan’s brother Ram Chandar deceased was sitting on a Takhat in front of the door of his house. At that time the accused appellant Sukru happened to come to him and started talking to him. In the course of their talks, they scuffled with each other. In the mean time, Munni Lal Premi Son of Kanhai Lal, Prabhu Nath Son of Vishram, Ram Narain alias Narain, brother-in-law of Munni Lal Premi, Paras Nath Son of Titir, Jamuna Son of Kakhnu, Ganga Ram Son of Khakhnu, Babu Lal Son of Ram Autar and Sant Lal Son of Ram Autar with the common object of killing Ram Chander pounced upon him while inciting, exciting and provoking one another and challenging him (Ram Chandar) because he considered himself to be very high. Paras Nath, Jamuna and Sukru were armed with pistols. Others were holding lathis. Sukru was holding lathis as well. Consequently Ram Chandar ran up towards the north and could hardly reach in front of the house of Satya Narain Bharti. When the above named persons attacked him and started beating him, Ram Chandar raised alarm, hearing which Ram Bandan, his daughter Km. Ram Rati, his brother Sangram, Jailor Son of Dulai, Kashi Ram and Ram Khilawan rushed to the place of occurrence. Km. Ram Rati and Sangram were ahead of them while running towards that place. The above named persons started beating Sangram also. As soon Ram Badan and others reached the place of occurrence, while challenging the abovenamed persons, Paras Nath and Jamuna with the intention of killing Ram Chandar opened fire from their respective country made pistols at him. Having received pistol shot injuries, Ram Chandar fell down in front of the house of Satya Narain Bharti and died there. Km. Ram Rati also received pistol shot injuries. Sangram who reached the place of occurrence to save Ram Chandar received lathi injuries and ran away from that place in the injured condition.
3. The abovenamed persons including the appellants fled away towards north on being challenged by Ram Badan and many others of the village. Ram Badan got a report written by one named Prem Yogi on his dictation about the occurrence. He along with his injured daughter Km. Ram Rati went to the police station concerned, where the First Information Report was lodged. Consequently the investigation into the case was immediately entrusted to then Sub-Inspector Sri Mano Kanka Singh who visited the place of occurrence at 9 p.m. on 8-11-1979 itself and prepared panchayatnama etc. regarding the dead body and sent it through two constables to the mortuary for post mortem examination on the next day, He again went to the place of occurrence and prepared a site plan at the pointing of the informant Ram Badan. He continued investigating into the matter till 25-11-1979. Thereafter he was transferred and Sri R.S. Tewari, Sub-Inspector took up the investigation into the case and after its completion, he ultimately submitted the charge sheet against the accused appellants and certain others. They were committed to the Court of Sessions for trial. The charges were framed against them.
4. Dr. Sunil Verma examined Km. Ram Rati on 8-11-1979 at 11 p.m. and found the following injuries on her body :–
(i) Gun shot wound of entry 1/3″ x 1/3″ circular margins inverted.
(ii) Contusion 2″ x 2″ inner aspect of right calf.
4.1 Dr. Nagendra Singh examined the other injured eye witness Sangram and found the following injuries on his body :–
(i) Abrasion of 1/2 x 1/2 cm. size on Ant. surface of left leg in middle of leg covered with hard black scab.
(ii) Complaint of pain right thigh.
4.2 Dr. K.P. Singh conducted the post mortem examination on the body of Ram Chandar and found the following ante mortem injuries thereon :–
External examination :
(i) A man of fair built body. Rigor mortis present in both upper and lower extremity. No decomposition.
Ante-mortem injuries :
(i) Seven gun shot wounds of entry of ‘A” diameter x cavity deep size in an area of 5″ x ‘4″ size on left side of front of chest. 2″ below the nipple lying 1/2″ x 1″ apart from each other.
Blackening present. No tattooing.
(ii) One gun shot wound of entry of 1/4″ x 1/4″ x cavity deep size on the left side of abdomen just near ant. Surface Iliac spine. Blackening present. No tattooing.
(iii) Four gun shot wounds of exit in left infra scapular region 1 1/2″ away from mid line measuring 1/4″ x 1/4″ into through and through. Lying in an area of 4″ x 3″ size. No blackening or tattooing, Margins everted and irregular.
(iv) Lacerated wound of 3/4″ x 1/4″ x muscle deep size on right side of forehead near outer end of right eye brow.
(v) Lacerated wound of 1/4″ x 1/4″ x skin deep size on head in occipital region near occipital region near occiprotruberance.
(vi) Abrasion of 1″ x 3/4″ size in front of the left knee joint.
(vii) Abrasion of 1/2″ x 1/2″ size on front of right knee joint.
Internal examination :
Spleen rupture. Left kidney lacerated stomach empty. Small intestine half full. Large intestine full. Peritoneum perforated under injury No. 2.
Cause of death :
Due to haemorrhage and shock, caused by gun shot injuries.
5. To prove its case the prosecution has examined Km. Ram Rati (PW 1), Ram Badan (PW 2), Dr. Nagendra Singh (PW 3), Dr. K.P. Singh (PW 4), Dr. Sunil Verma (PW 5), Sangram (PW 6) , Dr. Atul Rumar (PW 7), Constable Ram Pal Singh (PW 8), Head Moharrir Rajendra Singh (PW 9), then Sub-Inspector Mano Kanika Singh (PW 10) and filed documents vide Ex. Ka 9. Km. Ram Rati, Ram Badan and Sangram are eye witnesses whereas others are formal ones Sangram (PW 6) has, however, turned hostile.
6. The accused appellants and others had denied the allegations levelled against them and have stated that they have falsely been implicated in the case. They have examined Dr. Arvind Kumar (DW 1), S.M. Hanif (DW 2), Ram Rashik Tiwari (DW 3) and have produced certain documents in defence.
7. The trial Court acquitted Munni Lal, Prabhu Nath, Ram Narain, Ganga Ram, Babu Lal and Sant Lal of the charges under Sections 147, 148 and 302/149, IPC and convicted and sentenced Paras Nath, Shukroo, Jamuna under Section 302/34, IPC to imprisonment for life and therefore they have preferred this criminal appeal.
8. We have heard the learned counsel for the parties and perused the record.
9. The prosecution case is that Ram Chandar (deceased) was sitting on a Takhat, (plank) in front of the door of his house when the accused appellant Shukroo happened to come to him and started talking to him and that in the course of their talk, they scuffled with each other. In her statement in the Court, Km. Ram Rati (PW 1) has, however, stated that the accused appellant had come to Ram Chandar while holding a lathi in his hand and holding a pistol in his waist. He asked him to accompany him and that on his refusal to do so, they scuffled with each other. But there is no case or evidence to show why the accused appellant had actually come to Ram Chandar deceased, what sort of talks had actually taken place between him and Ram Chandar. Why he asked him to accompany him and where to accompany him. Therefore there is no answer not to speak of convincing or satisfactory answer to the question why they started making quarrel and ultimately scuffled with each other. This is so also because there is nothing on record to show whether the accused appellant Shukroo had put aside the lathi or thrown it away anywhere before or during the course of the alleged scuffle between him and Ram Chandar deceased. Therefore, it is beyond comprehension that there had been any such scuffle between the accused appellant and Ram Chandar (deceased), as alleged by the prosecution. The prosecution case to the above effect is all vague and ambiguous as anything and that vagueness and ambiguity has not been clarified or removed by the prosecution witnesses, Km. Ram Rati in particular. Therefore, the prosecution case and the statement made by Km. Ram Rati (PW 1) to the above effect do not inspire confidence. The argument of the learned counsel for the accused appellants to this effect has substance.
10. It is further alleged that Munni Lal Premi, Prabhu Nath, Ram Narain, Ganga Ram Pabu Lal and Sant Lal armed with lathis and Paras Nath and Jamuna armed with country made pistols while throwing challenge to Ram Chander (deceased) and raising alarm to kill him because he considered himself to be very high pounced upon him the words “mere bhai ke upar tut pare” occurring in the First Information Report (Ext. Ka 1) if so fac to shows that all the abovenamed eight persons had actually reached the place where Ram Chandar (deceased) and the accused Shukroo were allegedly scuffling with each other. This is what is apparent from the site plan (Ext. Ka 14) as well but strangely enough Km. Ram Rati (PW 1) has categorically stated in her cross examination that the abovenamed eight persons had not come to the Takhat or near about it and that they had thrown challenge from the hand pipe (in the lane in front of the house of Satya Narain Bharti). Therefore, the prosecution case and the site plan do not find support even from the statement of Km. Ram Rati (PW 1). In this view of the matter the question of the abovenamed eight persons having pounced upon Ram Chandar deceased near about a Takhat in front of the door of his house does not arise. The prosecution case to this effect is wholly wrong and incorrect. The argument of the learned counsel for the accused appellants carries weight.
11. There is a lane running north south in front of the house of the informant Ram Badan (PW 2). This lane is 3-4 1/2 feet, in width. Above this lane/road/gali, there are houses of Satya Narain Bharti, Ram Sahai, Hajari, Shri Chand, Vishwanath, Shital, Sambhu Nath and others. All these houses have also been shown in the site plan Ext. Ka 14. There is a hand pipe near the wall of the house of Satya Narain Bharti. The accused appellants and others, named above, were allegedly challenging Ram Chandar from the place nearby the hand pipe. They were allegedly present towards the north from the place where Ram Chandar deceased and the accused-appellant Shukroo were allegedly scuffled with each other. The prosecution case is that Ram Chandar deceased ran up towards north to save himself. There is, however, no evidence on record to show why he did not run back and enter his own house to allegedly save himself specially when his brother Ram Badan along with others was allegedly sitting in its court yard and when Km. Ram Rati was allegedly present at its door. This house itself was the safest place for his alleged safety. There is also no evidence on record to infer why he chose to run up towards north from which side the accused appellants and others named above were throwing challenge to him. There was allegedly all sort of apprehension of danger for his life from that side. The act and conduct of Ram Chandar deceased was against the act and conduct of a man of ordinary prudence. There is also no evidence not to speak of convincing evidence to indicate how the accused -appellant Shukroo went from the place of alleged scuffle between him and Ram Chandar (deceased) to the hand pipe towards north and joined the above named eight persons. Therefore, the prosecution case to the above effect has no tongue of truth. The argument of the learned counsel for the accused appellants has substance. The contention of the learned Additional Government Advocate for the State to the contrary is not tenable.
12. Ram Rati (PW 1) has stated that she was standing in front of the door of the house of Satya Narain Bharti at a distance of 5/6 feets from her uncle Ram Chandar (deceased) when he stayed and stood near the hand pipe when the accused appellants and others surrounded him and started beating him and two fires were simultaneously opened. On the other hand, Ram Badan (PW 2) has stated that his daughter Ram Rati was standing at a distance of 2-3 steps from Ram Chandar (deceased) in the lane (gali) towards north. He has emphatically denied that she was standing at the door of the house of Satya Narain Bharti at the time of firing. Their statements being contrary to each other, cannot be relied upon. Km. Ram Rati (PW 1) has stated that her father Ram Badan (PW 2), her uncle Sangram (PW 6) and others named Kashi, Jailor and Ram Khelawan tried to save Ram Chandar (deceased). But Ram Badan (PW 2) has completely contradicted saying that he and others (witnesses) had not tried to save Ram Chandar (deceased) because they felt frightened and stood full calm and quiet seeing the accused appellants holding the country made pistols. The FIR (Ext. Ka 1) shows that the witnesses and others of the village challenged the accused appellants and others. In view of all this the statement of Km. Ram Rati (PW 1) and Ram Badan (PW 2) and the version of the FIR cannot implicitly be relied upon. The informant Ram Badan (PW 2) has stated that he had told the Investigating Officer the places from where the witnesses had seen the occurrence. The Investigating Officer Sri Manokanika Singh (PW 10) has admitted that. He has, however, stated in this connection that he would not inadvertently show the places of the witnesses in the site plan (Ext. Ka 14). What irony of the fate of the case is ? It is alleged that the accused appellants Paras Nath and Jamuna opened one fire each simultaneously at Ram Chandar (deceased) who having received injuries, fell down and died on the spot. Km. Ram Rati (PW 1) also received fire arm injuries. What can be gathered in this respect from the FIR is that Paras Nath and Jamuna both opened one fire each from their respective country made pistols at Ram Chandar. It is for the first time that Ram Rati (PW 1) had disclosed a new case in her statement that Jamuna had opened fire at Ram Chandar and Paras Nath had done so at her. Ram Badan (PW 2) has, however, feigned ignorance saying that he cannot say who opened fire at whom or whose fire caused injuries to Ram Chandar or his daughter Ram Rati. The prosecution case to the effect does not find support from the statement of Ram Rati (PW 1) and Ram Badan (PW 2) and, therefore, can very well be said to be wrong, incorrect and baseless.
13. The abovementioned lane/road/gali running towards the north south in front of the house of Ram Badan is 3-4 1/2 feet in width. The site plan shows that it is six steps in north. The question which crops up for consideration is that whether the above-mentioned six persons armed with lathis and Shukroo with a lathi and also a pistol and Jamuna and Paras Nath with pistols could have quickly hurriedly and rapidly encircled, surrounded Ram Chandar (deceased) and wielded their lathis and opened fires at him in such a manner particularly in such a narrow lane/gali/road as not caused of any injury to any of them. This present situation admits no other answer than that in the negative. Therefore, the answer batters and shatters the prosecution case on the point of mode and manner in which the occurrence is alleged to have taken place. The contention of the learned counsel for the accused appellants carries weight.
14. The informant Ram Badan (PW 2) has stated that he had got the report written by one Prem Mohan Yogi about the occurrence on his dictation in Lohiya Nagar while going to the police station by a cycle along with his daughter Ram Rati (PW 1) and that he had taken 10-15 minutes in getting the report written on his dictation but Ram Rati has stated that her father Ram Badan (PW 2) had taken her from the place of occurrence straight away to the police station by bicycle without sitting anywhere on the way. Therefore, the question of any report having been written by Prem Mohan Yogi about the occurrence on the dictation of Ram Badan particularly in the Lohiya Nagar does not at all arise. Ram Badan (PW 2) does not know the meaning of the words “Son of, ‘resident of’, occurring in the FIR. Prem Mohan Yogi has not been examined. In view of all this the FIR can not be said to have been written in Lohiya Nagar but at the police station itself and that too probably in consultation with the police officials concerned. It may, however, be mentioned in this very connection that the FIR is the foundation on which the entire structure of a criminal case is built and if the foundation is weak, the entire structure is bound to collapse. The contention of the learned counsel for the accused appellants appears to be correct. Dr. K.P. Singh (PW 4) conducted the post mortem examination of Ram Chandar and prepared the post mortem examination report vide Ext.Ka 3. This report shows, that there was no tattooing in injury Nos. 1 and 2, therefore, these injuries cannot be said to have been caused not within such a close range of 2-3 feet as alleged by the prosecution but certainly beyond that. In this view of the matter, the prosecution case does not find support from the medical evidence.
15. The First Information Report is conspicuously silent on the point of light at the time of occurrence . It is for the first time that Ram Rati (PW 1) had voluntarily disclosed in her cross examination that there was electric light. Ram Badan (PW 2) has stated in his examination-in-chief that there was electric tube light in front of the house of S.N. Bharti in which he has recognised the accused-appellants and others in the course of the occurrence. It may be mentioned in this connection that each and every material fact is required to be mentioned in the FIR not in detail but in brief. It cannot be disputed that the fact regarding the light is material particularly in view of this when the occurrence is alleged to have taken place. The source of light ought to have been mention in the FIR. The prosecution has nowhere assigned any reason for the absence of light. The statement of Ram Rati (PW 1) and Ram Badan (PW 2) is, therefore, afterthought and cannot be relied upon specially when Ram Rasik Tiwari (DW 3) who was then a Junior Engineer of State Electricity Board has on the basis of the entries made in the relevant long sheet registered stated that there was no light on 8-11-1979 during 7.20 pm. to 8.30 pm. in the village Kharkhauni P.S. Naini due to failure of 33 KV in loading supply. However, the prosecution has to stand on its own legs. It cannot take the advantage of the weakness of the defence. The prosecution case on the point being after thought, casts doubts. It is not out of place to mention that Ram Badan (PW 2) was not actually present at the time of occurrence. This is probably the reason why he was given inconsistent, contradictory and vacillating statement on the material points. Sangram Singh (PW 6) has turned hostile. Ram Rati (PW 1) appears to have curiously reached the crowd of people and accidentally received injuries. Therefore, there is virtually no evidence to support the prosecution case on any material point.
16. In view of what has been discussed and observed hitherto, above, it can be concluded with certain amount of certainty that the occurrence did take place but not in such made and manner as alleged by the prosecution and that is the reason the prosecution case suffers on all material points from various defects, from improbability, infirmity and short coming, which cannot be ignored and overlooked. This is what has been forcefully argued by the learned counsel for the appellants.
17. Therefore, we allow the appeal, set aside the impugned judgment and order of the trial Court, convicting the appellants under Section 302/34, IPC and sentencing them to life imprisonment thereunder and acquit them. They are on bail, their bail bonds are cancelled and sureties stood discharged forthwith.
BINOD KUMAR, ROY, J.
18. I fully agree.
