JUDGMENT
1.This appeal has been preferred by appellants Rashid and Shazid against their conviction Under Section 302 read with Section 34, I.P.C. and sentence of life imprisonment by the judgment and order dated 25-10-1980 passed by Sri I.P. Singh, IVth Additional Sessions Judge, Meerut in S.T. No. 253 of 1980.
2. The prosecution case, in brief, is that at about 6.15 a.m. on 22-3-1980, Ishwar Singh was returning after having eased himself in the field situate on the East of Rajbaha (canal drainage) along with Rishi Pal, Brijpal Singh, Kiran Singh, Dhara and Jagvir Singh. As he was trying to cross on the footpath of this drain, he was fired upon by Rashid and Shazid. These two appellants were covering themselves with a cotton sheet. Their eyes were only exposed. The weapons were concealed underneath the cover. The incident was witnessed by the above said persons. Out of them P.W. 1 Rishi Pal, PW 3, Brijpal Singh and PW 4, Kiran Singh were examined by the prosecution as eye witnesses of the incident. Ishwar Singh, deceased fell down on the Patri of the drain and he was placed on a cot and brought to the house of the deceased. From there he was placed on a tractor and an attempt was made to take him to the police station. On way to Mawana near the crusher of Vijay Singh, Ishwar Singh succumbed to his injuries. Informant Rishi Pal scribed the report Ext. Ka 1 at that very place and thereafter, he in company of some other villagers, took the dead body to the police station and filed his written report there.
3. On the basis of the said written report, chick report and other formalities pertaining to the registration of the case were completed by Head Moharrir Jai Chand in the presence of S.I. Yogendra Pal Singh, PW 6, S.I. prepared the inquest report and completed other formalities. The dead body was thereafter sent for postmortem. He afterwards reached the village of incident and recorded the statements of Brijpal Singh and Kiran Singh and went to the site of occurrence, inspected the same, prepared a sketch map and the inspection memo. He also collected blood-stained and simple earth and Lota, which according to the prosecution was in possession of the deceased at the time of incident. The necessary recovery memos of the abovesaid articles were prepared. After conclusion of the investigation charge-sheet was submitted by another S.I. Jag Roshan Singh, who had taken over the investigation from the abovesaid S.I., PW 6,
4. The post-mortem on the body of the deceased was conducted by PW 2, Dr. P.N. Khanna. He found following ante-mortem injuries on the person of the victim :
1. Gunshot wounds of entry (4 in number) in an area of 51/2 cm. x 41/2 cm. x abdominal cavity deep on the right side of abdomen 7 cm. from the umbilicus. Maximum size 1.5 cm. x 1 cm. and minimum size 1/10 cm. The injuries were directed from below upwards and the scorching was present around the injuries.
2. Gunshot wound of entry 1 cm. x 1 cm. x abdominal cavity deep on the right side of lower part of chest at 9 O’clock position. Scorching was present around the injury.
3. Gunshot wound of entry 1/2 cm. x 1/2 cm. x skin deep on the upper part of right side of abdomen 4 cm. above injury No. 1. Scorching was present around the injury.
4. Gunshot wound of entry 1/2 cm. x 1/ 2 cm. x muscle deep on the right side of outer part of chest 4 cm. from nipple when measured obliquely. Scorching was present around the injury.
5. Gunshot wounds of entry (2 in number) 4 cm. apart on the upper part of right thigh. Maximum size 1 cm. x 1 cm. skin deep and the scorching was present around the injuries.
6. Gunshot wounds of entry (2 in number) 2 cm. apart on the middle of outer part of right thigh. Maximum size 1/2 cm . x 1/2 cm. and minimum size 1/4 cm. x 1/4 cm. Both the injuries were skin deep and scorching was present around the injury.
5. In all the injuries scorching was present. On initial examination he found pertioneum to be lacerated. Liver and both the kidkeys were also lacerated. Abdominal cavity was found to be full of dark blood. Stomach was found empty. Small intestine and large intestine were also found empty. According to the Medical Officer, Dr. P.N. Khanna, the cause and manner of death was shcok and haemorrhage as a result of gun shot injuries.
6. A perusal of the post-mortem examination report of the deceased reveals internal damage to the peritoneum only. Even none of the intestine were found either preforated or lacerated. Apart from peritoneum, liver and kidneys were also found lacerated. Thus in the present case it must have taken sufficient time for the deceased Ishwar Singh to meet his death. The cause of death as noted down by the Medical Officer, as already pointed out, was shock and haemorrhage. The injuries sustained by the victim were also subject to criticism in as much as according to the prosecution, these injuries were the result of two gunshot one each discharged by the two appellants from their respective firearms but the defence suggests that they are result of a single shot.
7. The Medical Officer was of the opinion that those injuries were caused after the deceased had freed himself from evacuation. He had also stated that the injuries on the person of victim could be result of two gunshots. He had stated in cross-examination that these injuries were possible from a distance of 3 to 4 paces. According to him, the death of the deceased after 8.00 a.m. is not probable. He has also negatived the possibility that death could have occurred around 3.00 a.m. He has specifically stated that the injuries Nos. 1 and 2 were sufficient to cause his death. Injury Nos. 1 and 2 were separated by 4 to 7 cm. In the present case in all these injuries scorching was found present. Injuries Nos. 1 to 5 were in close proximity within a radius of 4 to 7 cm. from injury No. 1 but injury Nos. 5 and 6 were present on the right thigh. Learned counsel for the defence stated that probably because of these two injuries on the lower part of the thigh, a case of two shots was developed by the prosecution at the stage of the F.I.R. itself. Thus, according to him there was a reason behind the dead body being removed from the spot of incident to the house of deceased first and then towards Mawana. In between his house and Mawana, the deceased is shown to have breathed his last.
8. From the submissions made and from the evidence it is apparent that in all probability while deceased was in the process of easing, he had sustained, in the sitting posure, those injuries on his person. This is the reason why right side of peritoneum, right side of chest and right thigh were involved. It is a case of single shot and the entire prosecution version is belied by this medical discrepancy. No doubt the defence has not suggested to the Medical Officer this circumstance but a perusal of the post-mortem report itself is suggestive of the situation urged before us by defence. The injuries sustained by the victim are on his right side in close proximity to one another. Whatever difference in between them was noticed by the Medical Officer in his autopsy report is indicative of this situation. If the person is sitting and is in the process of easing any fire discharged upon such person from his right side, the entire body, the chest, thigh and abdomen will be in close proximity and the probability of these injuries having been sustained in such a situation is mostly in existence.
9. In the facts and circumstances of the case, despite no cross-examination of the medical officer, the abovesaid situation and its probability cannot be denied. The submission made on behalf of the appellants, therefore, has sufficient force.
10. The prosecution in support of its case has produced 3 witnesses namely PW 1, Rishi Pal, PW 3, Brij Pal Singh and PW 4 Kiran Singh as eye witnesses. Apart from them Dr. P.N. Khanna, PW 2 conducted autopsy. Inder Pal Singh PW 5, escorted the dead body to the mortuary and PW 6, Yogendra Pal Singh, Sub Inspector investigated the case initially.
11. Once this conflict is acknowledged and accepted a serious discrepency will occur in the testimony of the eye witnesses about the manner of incident and place of occurrence and about the presence of these witnesses as well. It is further urged that even the time of registration of the case of the basis of the written report Ex. Ka. 1 at P.S, Mawana is also left open to doubts. To test these arguments we prefer to test the evidence of witnesses PWs. 1, 3 and 4.
12. According to PW 1, Rishi Pal, the appellants were known to him as they were also the residents of the same village. His fields are to the east of the village across the Rajbaha (drain). This drain is about 2000 yards from the village abadi. It is his case that in early hours of the morning he and Ishwar Singh deceased had gone to attend nature’s call in their chicks. There was no water in the drain while they were returning after attending the nature’s call towards their village at about 6,00 or 6.15 a.m. These appellants were standing in the depth of the drain. The victim was on the elevation of the drain. These two appellants who were covering themselves with a sheet opened fire from their respective country made pistols upon the deceased. These shots hit the victim and he fell down there. From this it is apparent that the deceased had still not climbed the elevation. He was negotiating it. According to the F.I.R, the victim was fired upon when they had reached in the middle of the drain where the two assailants were standing. Ishwar Singh fired upon him as soon as he approached the drain by these two assailants after drawing out their pistols from their covers. Thus the prosecution is shifting the place of occurrence from the middle of the drain to the elevation. The reason behind this change with regard to the place is not far to seek. It is clear from the post mortem report and statement of the doctor that the injuries were on the right side of the abdomen, chest and thigh and the direction was upwards. In order to explain this anomoly both the appellants were attributed a shot each from a lower level. The deceased from a parallel level was placed on a higher level. In the examination in chief this witness has given out only about his going with the deceased to attend the nature’s call but if we examine the first information report it will be evident that the deceased was accompanied not only by PW 1 but also by Brijpal, Kiran Singh, Dhar and Jagvir Singh. From his cross-examination it transpires that Brijpal Singh had two houses and the road that leads to his house is in front of his house. There is a grove and some barren land in the East of his house and towards West of this road there is a pond. Ishwar Singh’s house is contiguous to Brijpai’s other house. This second house is at a different place. In order to establish presence of Brijpal this witness had made so many assertions with regard to the way by which he could reach the place of occurrence. He has suggested a very circuitous route for Brijpal to come to the place of occurrence for attending the nature’s call. It is common knowledge that it is always attended to in a great hurry. No one would like to take such a circuitous path for the same. In the circumstances, Brijpal accompanying him is a most improbable situation. The other 3 witnesses named in the F.I.R. were Jagvir, Dhara and Kiran Singh. From the cross-examination, para 8 of the deposition of this witness, we do not entertain any doubt that the presence of these four, persons on the place of incident along with deceased for attending the call of the nature is a near impossibility. None of these witnesses, Jagvir, Dhara and Kiran Singh have their residential houses near the house of Brijpal. It is admitted by him that the house of Kiran Singh is on a different route. He has given a different route also for going to the house of Brijpal. It is common knowledge that the villagers prefer to ease at the place where water is also available. The drain was dry is admitted. A pond was near the house of Brijpal is an admitted fact. They must have gone to attend the call of nature near the pond because of the availability of water. It is also admitted that Brijpal and Jagvir are close relatives. It is also admitted to this witness that in a case Under Section 307, I.P.C., Kiran, Ishwar Singh deceased and the father of PW 1, Sardar Singh were accused. He had pleaded ignorance that witness Brijpal and Suraj, brother of Dhara were also accused in that case. He has also pleaded ignorance that the father of these appellants Ummed All alias Medu was a witness in this case against them. He has admitted that Rishipal filed a criminal case of theft of his gun against him and Kishari. He again pleaded ignorance to the effect that Medu was shown as a witness in that case also. Thus, no doubt he has pleaded ignorance to Medu appearing as witness against them, we do not find any substance in his denial. He had admitted that there is no one else in the village of his name and parentage. He has very clearly admitted that he, Ishwar Singh deceased and other witnesses named in the F.I.R. had not gone for easing together. Only he and Ishwar Singh were together. According to him, Ishwar Singh was 20-25 paces ahed of him. Ishwar Singh had eased some steps from Rajbaha and this witness was 40 steps away. He had admitted that in the early hours of morning the light was there. From the canal Patri, the depth of the drain is about 1 1/2 hand. He futher stated that at the time of incident they were returning by the chak road. The crops of wheat were standing on both sides of this chak road. The wheat crops were in the process of reopening. He had seen the assailants from a distance of 15-20 steps. Dhara Singh and Kiran Singh had covered themselves with a cotton sheet. The assailants were also covering themselves. He did not entertain any suspeicion on seeing these appellants. The assailants were 10-15 steps away from the victim. They had touched Ishwar Singh only after a cot was brought at the scene of occurrence. None of them had made any attempt to stop the flow of blood. He too had helped in lifting Ishwar Singh to the cot. In the process no blood had fallen on his clothes. Even at the house until the death of Iswar Singh no one had made any attempt to stop the blood. This entire story is calling a cot and taking him to village in the presence of the fact that none of them made any attempt to prevent flow of blood was knowingly introduced. Had they been present there and seen Ishwar Singh sustaining injuries at the hands of these appellants, it is not likely that they would have left him wholly unattended and allowed him to bleed to death. From the evidence of this witness and from his conduct it is absolutely clear that Ishwar Singh had gone alone to ease. He was fired upon and as lying in the drain and when some one noticed his presence and reported the matter to the family in the village then all the witnesses with his family members came to the spot and brought his body to their house. Any likelihood of his remaining conscious in the circumstances is extremely remote. The prosecution thus apparently is not coming out with clean hands. It is clearly suppressing the truth. It is impossible for us to place any implicit reliance in his evidence.
13. With regard to PW 3, Brijpal Singh, we have already, while discussing PW 1, shown that it is not probable for this witness to be present at the place of occurrence at the relevant time. He is a partisan witness and was also involved in some offences with Ishwar Singh deceased and his father. He has made some important changes from the version of the F.I.R. He has stated that Ishwar Singh had enmity with the appellants and the appellants after drawing out their country made pistols fired upon him He had introduced for the first time that an alarm was raised. The assailants were on the pathway i.e. on a higher level from the victim. They had concealed in the sugar carie crops, they came back to the spot after the assailants ran away. When they returned they saw blood coming out from the side and his hands were also heavily stained with blood because the deceased had attempted to stop the blood from oozing. The deceased was taken to his house on a cot. According to this witness the assailants were about 2 or 21/2 steps from the deceased while firing from their pistols. Their hands were not fully stretched. Ishwar Singh was walking towards West. A perusal of the site plan shows that the drain is passing North-South. Ishwar Singh was in the East on the Patri where he was allegedly fired upon. The dead body was lying on the Patri. It is f ather admitted to this witness that no person from the vicinity came there on alarm. Even on his return with the cot he found blood coming out of the injuries of the deceased. He had admitted the presence of a pond to the West of the road in front of his house. He claimed that there was no water in the pond at that time. This is not stated by PW 1. He did not go to the police station with informant. He had come back from the middle. He admitted that site was inspected by the investigating officer in his presnece. So from his testimony and the admissions regarding him made by PW 1, presence of this witness in our opinion at the relevant time at this place is rendered highly improbable. Moreover his testimony is in conflict with the site map which was prepared in his presence by investigating officer and with the version contained in the F.I.R.
14. So far as PW 4 is concerned, his testimony can easily be discarded because he has also adhered to the case as pointed out earlier. According to him the deceased had already covered the elevation of the drain and was on the western footpath of the drain when he was fired upon. He has also changed the place and position of the assailants. According to PW 1 the assailants were inside the drain and according to PW 3 and this witness they were also on the foothpath. They ran behind the assailants but could not effect their arrest because they had moved into the sugar-cane crop. Ishwar Singh was speaking and had told them that he was fired upon by Rashid and Shazid. He claimed that the witnesses had also told him that they have seen the occurrence. This entire statement is nothing but an embellishment on the part of this witness as well as the prosecutor. He has admitted the same topography which was detailed by PW 1. It was not possible for him to be there. He had claimed that as long as he was attending the call of nature he did not see anybody in the vicinity. He was in his own chak. This chak adjoins the chak road. He further admitted that when he came out the chak road after attending the call of nature, he did not find any person on the road. He could see the others only after he moved about 30-35 paces towards East. He had further admitted in order to reconcile the anomaly in examination in chief that, the assailants were still inside the drain. They were about 13-14 paces away from the chak road. They opened fire on the deceased therefrom, when the deceased was 3-4 paces away. According to him Ishwar Singh received shots when he was on the slope. None of them had gone near Ishwar Singh or attended him. No attempt was made to save Ishwar Singh by any witness including his family members. He admitted that he was an accused in a case under Section 307 I.P.C. with Ishwar Singh and was a witness in its cross case. He had further admitted that Rishi Pal’s father and Suraj Mai, brother of Dhara and witness Brijpal were accused with them. Some 3-14 accused were in the case and Medu, father of the appellants had deposed in that case against them.
15. From these facts and circumstances, it is apparent that the village was faction ridden and the witnesses and the deceased was on one side and the appellants and some others formed other group. Thus, the witness are not only partisan but are deposing on account of animosity. It is transparnt from the discussions made above of the evidence that no body was present when the incident occurred. They had not witnessed the incident. Somehow or the other they had arrived at the scene of occurrence on receiving information about the incident. It is clear from their conduct in as much as that right from the assault till the death, none of them tried to attend the victim. The victim apparently bled to death. No attempt to provide medical succour to the victim nor any attempt to bandage his injuries was made by them. Such a conduct negatives their presence on the spot. It is also apparent that they are related to each other, though they have deliberately tried to supress it. The evidence clearly proves that at least they are partisan and inimical to these appellants. The motive is also highly doubtful. Except PW 1 no other witness has alleged any motive.
16. In the result, the appeal is allowed. The order of conviction and sentence dated 25-19-1980 passed by the then IVth Addl. Sessions Judge, Meerut in Sessions Trial No. 253 of 1980 pased against th appellants Under Section 302 read w ith Section 34, IPC is hereby set aside. The appellants are acquitted of the offences charged for. They are on bail, they need not surrender. Their bail bonds are cancelled and sureties discharged.