Allahabad High Court
Ved Prakash And Another vs State Of U.P. on 1 August, 2024
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:132672-DB Court No.45 Case :- CRIMINAL APPEAL No. - 2260 of 1986 Appellant :- Ved Prakash And Another Respondent :- State of U.P. Counsel for Appellant :- A.B.L. Gaur,Hemant Sharma Counsel for Respondent :- A.G.A. Hon'ble Siddhartha Varma, J.
Hon'ble Ram Manohar Narayan Mishra, J.
1. The instant criminal appeal was filed against the judgment and order dated 22.8.1986 passed by the VIth Additional Sessions Judge, Bulandshahr convicting the appellants under sections 148, 307/149 and 302/149 IPC sentencing them for one year; seven years and life imprisonment respectively.
2. The alleged incident took place on 25.12.1983 at 11:45 PM and the first information report was lodged on 26.12.1983, at 2:30 A.M. Tahreer shows that it was written on the dictation of Kishan Prakash by the scribe Niranjan Deo Sharma. As per the allegations in the first information report, the first informant alongwith his uncle Yagya Dutt, nephew Surendra was sleeping in the verandah of their house while the brother of the first informant Om Prakash and the father of the first informant Lakhmi Chand were sleeping inside one of the rooms of the house. In the first information report itself, the motive had been assigned to Ved Prakash Sharma-the accused and it was said that Ved Prakash Sharma had killed the uncle of the first informant around 16 to 17 years before the present incident and now because Ved Prakash Sharma was inimical to the first informant, he had come to kill the members of the family of the first informant. It has been stated in first information report itself that Ved Prakash Sharma was carrying a gun and he was accompanied by Kallu as well as 4-5 other persons of the village. When they came towards the house of the informant, the latter lit his torch and asked as to who had come. Upon this, Ved Prakash Sharma attacked the first informant and his family members. Also at that point of time, Om Prakash, another brother of the informant who was sleeping inside one of the rooms of the house came out with a torch and while Om Prakash was in the verandah of the house, the assailants i.e. Ved Prakash Sharma and Kallu alongwith 4-5 other persons attacked them. Om Prakash was hit in the chest and on a hand of his. So far as the first informant, his uncle Yagya Dutt and the nephew Surendra were concerned, they were hit by pellets. The first informant, his uncle Yagya Dutt and the nephew Surendra, all raised a hue and cry and upon hearing their shouting, Ganeshi, Dambar, Bhaggo, Ram Gopal and Ram Prakash came on the spot. Ganeshi, Dambar and Bhaggo were hit by pellets and they were also injured. It has been stated in the first information report that the other 4-5 persons could not be recognized by the first informant and if they came before him, he would recognize them.
3. Upon the lodging of the FIR, investigation ensued. The Investigating Officer had, from the place of incident, collected two empty cartridges and had prepared a recovery memo of the recovery which was exhibited as Exhibit Ka-18. Similarly, the lantern and the torches were also recovered and the recovery memo of them was prepared as Exhibit Ka-19. The injured i.e. the first informant Kishan Prakash, the uncle Yagya Dutt, the nephew Surendra, Ganeshi, Dambar and Bhaggo were examined by Dr. S.C. Singh and their injury reports were there on the record. While the injury reports of most of the injured were common in nature, the injury report of Bhaggo requires special mention as she was having certain lacerated wounds and the doctor had opined that she was hit by a blunt object. The deceased-Om Prakash, who was the brother of the first informant, was taken to the hospital where he died. Therefore, a panchnama was prepared and the panchnama reports that the inquest started at 3.05 AM on 26.12.1984 and came to an end on 26.12.1984 at 5.00 AM. The panchnama was accompanied by various documents and the dead body was sent for post mortem. The post mortem report was also there on record and the cause of death was shock and hemorrhage.
4. The police completed its investigation and submitted its report with regard to Ved Prakash and Kallu. Ved Prakash and Kallu were charged under section 148 IPC; section 302 read with section 149 IPC and under section 307 read with section 149 IPC. When the accused refused the charges, trial commenced.
5. PW-1 Kishan Prakash son of Lakhmi Chand, in his examination in chief had stated virtually what was stated in the FIR excepting that in the statement he had added that apart from Ved Prakash, all the others had country made pistols in their hands. Also in the FIR, he had stated that his brother Om Prakash was hit while he was still in the verandah but in the examination in chief, he had stated that he was hit outside the verandah. Further, in the FIR he had stated that the source of light was a lantern and a torch which the brother of the first informant had carried with him but in the examination in chief, he had stated that he was also having a torch and that the other persons who had collected on the spot were also having torches. In the cross examination when he was specifically questioned as to why when in the FIR he mentioned that only Ved Prakash was having a firearm and about the others nothing was mentioned, he had stated that he had mentioned about the others having country made pistols in his statement under section 161 Cr.P.C. Again upon being questioned as to why he had not mentioned in the FIR that he had no torch, he had stated that he had got the FIR lodged hurriedly and, therefore, it might have slipped from his mind to mention the fact about his having the torch. About asking as to why the FIR was written down by Niranjan Deo, he had stated that Niranjan Deo had come on the spot as money was short with him and, therefore, he had asked Niranjan Dao to come with some money. In the cross-examination, he had also stated that he was eighth class pass and that he could write and read hindi. He has stated that he had dictated the FIR to Niranjan Deo at the Bheempur Chauraha. He has, upon being questioned as to how Bhaggo was hit by blunt object, he had stated that if the doctor had mentioned that Bhaggo had been hit by a blunt object, he did not know as to why it was written. Further in the cross-examination, the PW-1 had stated that he always slept in open even in the month of December. In the cross-examination he has specifically stated that there was no blood at the spot where the deceased was lying.
6. PW-2 Surendra is the son of the deceased and he was also an injured witness. He has also supported the stand of PW-1. In his cross-examination, upon being questioned as to how and at what height the lanterns were hung, he has stated that he had not measured as to where the lanterns were hung but he had stated that they were hung everyday and also states that the blackening though was present at the time when the incident had occurred, was no longer there on the walls of his house. Upon being informed that even the Investigating Officer had not mentioned about the blackening on the walls at the time of the investigation, he had stated that he did not know as to why he had not mentioned. When he was confronted with the site plan and he was told that his father was lying dead at Spot "E", which was fairly far away from the verandah, then he had stated that he did not know as to how he had stated that as his father was attacked and fell in the verandah itself. However, he has very categorically stated that his father Om Prakash upon being hit by a bullet was lying injured on his back and that he remained there for 10, 15 or 20 minutes. He has stated that at the spot, there was no blood found. He had denied the fact that the incident happened somewhere else but it was shown to have happened in the house of the first informant.
7. PW-3 is Doctor V.C. Goel who had conducted the post mortem of the deceased Om Prakash and he has in his statement stated that the bullet had punctured the lungs of the deceased and it was natural that a lot of blood must have flown.
8. PW-4 is the doctor who had medically examined all the injured. The injuries were common in nature but one injury which the doctor mentions specifically is that of Bhaggo wife of Tek Ram and in it he had stated that lacerated wounds were because of an injury by a blunt object. He said so because the firing had taken place from a very long distance i.e. more than 12 feet and laceration by pellets was not possible.
9. PW-5 is Constable Rishi Pal Singh who had proved the chik.
10. PW-6 is Constable Mohd. Arif and he only give his affidavit as to how he had sealed the body for the purpose of post mortem.
11. PW-7 is the Investigating Officer Dhanpal Singh Bhati and he has in his examination in chief stated that he had prepared the site plan and that from the site there was a recovery of four empty cartridges. He has stated that most of the inspection was done by one inspector J.P. Saroj. He has in his cross-examination categorically stated that he had not mentioned about the soot and blackening on the wall because of the lighting of the lanterns. He has stated that nowhere even in the inspection, the blackening (Kaloch) had been mentioned.
12. Thereafter the statements of the accused were got recorded under section 313 Cr.P.C. They had denied the commission of the crime and had stated that because of the enmity, they were implicated in the crime.
13. On the basis of all the evidence present, learned VIth Additional Sessions Judge, Bulandshahar on 22.8.1986 found the accused guilty of the offences they were charged for and they were convicted under sections 148, 307/149 and 302/149 IPC for one year; seven years and life imprisonment respectively. All the punishments were to run concurrently. Aggrieved thereof, the appellants Ved Prakash and Kallu filed the instant appeal.
14. During the pendency of the appeal, Ved Prakash son of Ram Raj Pal Sharma died and the appeal viz.-a-viz. appellant no.1 abated on 12.9.2018. The appeal was argued by learned Amicus Curiae Sri Sandeep Kumar Dubey for the surviving appellant-Kallu.
15. Learned Amicus Curiae argued the case and placed the following submissions before the Court :-
i. Learned Amicus Curiae has stated that in fact the incident did not occur at the spot which the FIR had alleged and that in fact it had occurred somewhere else and the dead body of Om Prakash was brought and placed near the house of the first informant and the appellants Ved Prakash and Kallu were falsely implicated.
ii. Learned counsel for the appellant has submitted that from very beginning there were any number of contradictions in the averments made in the FIR and in the statements of the PW-1 and PW-2 who were the injured eye-witnesses. He submits that at one place the PW-1, the first informant in the FIR, had stated that Ved Prakash was carrying a gun but thereafter it was stated in the FIR that Kallu and 4-5 others were also present. No firearm was seen in the hands of the other persons but in the examination in chief he had stated that the other persons were carrying country made pistols. The other contradiction was that in the FIR it was stated that while Om Prakash had come out from the room of the house, he was shot dead in the verandah of the house but subsequently he had improved the statement made in the FIR and as per the site plan, he had said that Om Prakash was shot at outside the verandah.
iii. With regard to the source of light, it was mentioned that only a lantern was lit but there was no torch etc. with the other injured witnesses except Om Prakash.
iv. Learned Amicus Curiae states that both the injured eye-witnesses were brother and son of the deceased and no other independent witness was produced. Learned counsel states that a bare reading of the FIR shows that there were as many as nine witnesses present apart from the deceased Om Prakash and out of the nine eye-witnesses, there were six of them namely Kishan Prakash, Yagya Dutt, Surendra, Ganeshi, Damber and Bhaggo who were injured witnesses but none of the eye-witnesses apart from Kishan Prakash and Surendra came to the witness box. Learned counsel, therefore, states that when there were so many eye-witness present and out of them six were injured eye-witnesses, it was unsafe to convict the accused persons on the basis of the statements made by highly interested witnesses who were related to the deceased.
v. Learned counsel for the appellant states that on the spot there was actually no blood found. This fact was stated by PW-1 and PW-2 who were the injured eye-witnesses and PWs-6 and 7 who were the Investigating Officers. Learned counsel for the appellant, therefore, states that in fact the incident had occurred somewhere-else and all the injuries and the gun shots were sustained elsewhere but only to implicate the accused persons, the incident was shown to have had happened in the house of the first informant. Learned counsel for the appellant states that if the injury report of Bhaggo was seen, then it becomes absolutely clear that she was having a blunt object injury which would never have been sustained by the firearm which was being allegedly used by the accused persons.
vi. Learned counsel for the appellant further states that upon hearing gun shots and upon hearing the shouting of the first informant and other family members, it was, in a village, expected that male members would come but in this case Bhaggo who was a lady had also come on the spot and this was absolutely an unnatural thing to happen.
vii. Learned counsel for the appellant further states that the source of light was a doubtful source of light. He drew the attention of the Court to the site plan and in the site plan point 'E' was the place where the deceased was lying and point 'F' was the place from where the accused persons were coming. The accused persons fired from the point 'F' to the point 'E' and as per the site plan this was 15 paces away i.e. almost around 45 feet. The lantern if it was at all there, was lit behind the place where Om Prakash was standing at the point 'E' and the distance between the point 'E' where the deceased was found and the house where the lantern was said to be hanging, was almost another 45 feet and, therefore, for the lantern light to reach from the house to the point 'F', was absolutely impossible. Learned counsel for the appellant further states that the light of the torch must have been very weak and for all the family members to see the accused persons in the torch light must have also been a difficult task. Still further in the FIR, there was only one torch and subsequently two torches were introduced by the prosecution.
viii. Learned counsel for the appellant further states that the investigation agencies and the prosecution also failed miserably when in the recovery memo it found only two empty cartridges and in the statement of the Investigating Officer four empty cartridges were found lying on the spot.
ix. In the end, learned counsel for the appellant stated that in the month of December when there was a lot of fog, the sources of light which the informant's side had mentioned were absolutely insufficient to recognise the accused persons. He also states that it was also impossible to see the other 4-5 persons who had allegedly accompanied Ved Prakash and Kallu. So far as Kallu is concerned, learned counsel for the appellant states that absolutely no motive was assigned to him.
16. Sri Rahul Asthana, learned AGA supported the judgment of the trial Court and opposed the Appeal and submitted that the eye-witnesses were the injured eye-witnesses and their statements could not be taken lightly. Regarding the blood not being on the spot, he has stated that if it was not there then no adverse inference could be drawn. Similarly, he states that no adverse inference could be drawn if 4 out of 6 injured witnesses had not appeared in the witness box. He states that it mattered little that if the other eye-witnesses, who had been mentioned in the FIR, also did not appear.
17. Having heard Sri Sandeep Kumar Dubey, learned Amicus Curiae and Sri Rahul Asthana, learned AGA, we are of the view that it was very unlikely that the incident occurred at the place where it was alleged. We find from the various statements of PW-1 that he was not sure as to what was the source of the light and as to who was carrying which firearm. He has in the FIR stated that only Ved Prakash was carrying a firearm but subsequently he improves his case by saying that in fact Ved Prakash was carrying a gun and Kallu was carrying a country made pistol. Similarly the other 4-5 persons were also carrying country made pistols. We are also convinced that when it was mentioned in the FIR about the presence of the other family members, then the other family members also ought to have come to the witness box. Still further we are of the view that in a village where people live and die for each other, the other eye-witnesses would also have appeared in the witness box to prove the case of the prosecution. Still further we are of the view that the absence of blood on the spot where it was alleged that the gun shot injury was received speaks volumes against the case of the prosecution. Where a person dies after a gun shot injury definitely blood oozes out and also ought to have been there on the spot. This definitely convinces us to come to the conclusion that the incident did not occur at the alleged place. Also, we are of the view that since the lights were not sufficient to recognise the accused persons, it could not be said with certainty that the accused persons were recognised by the first informant. The prosecution and the investigation also have miserably failed to prove their case and when in the recovery memo it was stated that there were two empty cartridges found and the Investigating Officer was saying that there were four empty cartridges found then we also find that the case of the prosecution becomes unbelievable. We are also convinced that no motive was assigned to Kallu.
18. During the pendency of the appeal the appellant-Ved Prakash had died and, therefore, the appeal vis-a-vis Ved Prakash abated and, therefore, we are not giving any judgment vis-a-vis the appellant Ved Prakash. The impugned judgment and order dated 22.8.1986 so far as Kallu is concerned is set aside. The appeal stands allowed vis-a-vis the appellant Kallu, who is already on bail.
19. We appreciate the hard work put in by Sri Sandeep Kumar Dubey, learned Amicus Curiae. Therefore, we quantify his fee as Rs. 25,000/- which shall be payable to him. The Legal Services Authority and the Registrar General of this Court may oversee the payment.
Order Date :- 01.08.2024 GS (R.M.N. Mishra, J.) (Siddhartha Varma, J.)