Jagata & Another vs State Of U.P.
2016 Latest Caselaw 7414 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                        Reserved 
 
Case :- CRIMINAL APPEAL No. - 5715 of 2004                      AFR
 
Appellant :- Jagata & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.S. Tiwari,Jitendra Singh Lodhi,K. Kumar Tripathi,V.S. Singh
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Arvind Kumar Mishra,J.

(Delivered by Hon'ble Arvind Kumar Mishra,J.)

This Criminal Appeal has been preferred by the appellants Jagta and Kamala alias Kamlesh sons of Dhanaiya against the judgement and order of conviction dated 29.10.2004 passed by the Additional Sessions Judge (F.T.C.), Mahoba, in Sessions Trial No.51 of 1994 (State Vs. Jagata and another), arising out of Case Crime No.170 of 1993, under Section 302 read with Section 34 IPC and 307 read with Section 34 IPC, Police Station Charkhari, District Mahoba whereby appellants have been sentenced to life imprisonment coupled with fine Rs.4,000/- each and in case of default the concerned convict shall have to suffer six months' additional simple imprisonment under Section 302/34 IPC, further sentenced to 10 years rigorous imprisonment coupled with fine Rs.2,000/- each with default stipulation for three months' additional simple imprisonment under Section 307/34 IPC. Sentences shall run concurrently.

We have heard at length respective submissions of Shri K.K.Tripathi, learned counsel for the appellants and Shri Chandrajeet Yadav, learned AGA for the State and also perused the record.

Prosecution story as unfolded by the First Information Report reveals that first informant Rameshwar S/o Kandhai Lal Pal, R/o Santoshpura, Police Station Charkhari, District Hamirpur lodged written report at police station Charkhari on 11.10.1993 at 10.15 A.M against several persons including the present appellants with allegations to the effect that on 11.10.1993 his brother Hari Shanker and Dharampal were looking after their crops in field at Santoshpura Majra Rewai, P.S. Charkhari, district Hamirpur. The first informant, too, was also looking after his crops in the nearby field. It was around 8.30 A.M., he saw Jagta S/o Thanaiyya Pal, R/o village Rewai possessing SBBL gun in his hand, Dadi alias Ganga (Chamar by caste), resident of village Rawatpura, Police Station Chikasi also possessing S.B.B.L gun and Kamlesh S/o Thanaiyya, resident of village Rewai, Hari Das and Jai Ram sons of Nandu Chamar possessing country made pistols in their hands came near to informant's brother and challenged that they shall not be spared. At this, Jagta, Haridas and Jai Ram fired on Dharam Pal and Kamlesh and Dadi alias Ganga fired on Hari Shankar and killed them. The first informant Vishram and Lal Divan rushed to their rescue but the assailants threatened them by pointing out their weapons and fled away towards the western side. The written report alleges that he has also received information that the aforesaid five persons have also fired on Ran Vijay S/o Tej Singh Pradhan with intention to kill him near 'Babu Ki Kutia' but he was saved. The accused persons have also killed Hari Shanker Tiwari and Parashu Ram Tiwari in village Rewai, Police Station Charkhari, district Mahoba around 6:30 a.m. Request was made that report be lodged and action be taken. This report was scribed by Ganesh Prasad S/o Shri Bhajanlal, resident of Rewai, Police Station Charkhari, District Hamirpur. This report is Ex.Ka-3.

Contents of Written Report were taken down in the check FIR Ex.Ka-6 and a case was registered against the aforesaid accused persons in the relevant general diary, which G.D. Entry is Ext. Ka-7. Thereafter, the Investigating Officer, Lalit Kumar Rathore swung into investigation at the direction of Inspector Shri V.K. Yadav. He reached at the place of occurrence and held inquest of dead body of Parashu Ram Tiwari, it commenced at 12.30 P.M. and completed at 14.15 P.M. on 11.10.1993. In the opinion of inquest witnesses, it was suggested that the dead body be sent for postmortem examination for ascertaining real cause of death, therefore, relevant papers were prepared for sending the body for postmortem examination, photonash, Ext. Ka-9, police form 13, challan dead body Ext. Ka-10 etc. Inquest Report of Parashu Ram Tiwari is Ext. Ka-8. Inquest report of Hari Shanker son of Durga Prasad Tiwari was also prepared on the same day i.e. on 11.10.1993 and was completed at 3.30 P.M. and the same is Ex. Ka-11 on record. Thereafter, inquest report of deceased Hari Shankar Pal son of Lal Diwan Lal was also prepared and relevant papers for sending dead body for postmortem examination were also made. Inquest Report of Hari Shankar Pal is Ext. Ka-14. Thereafter, inquest report of deceased Dharam Pal was prepared, which is Ext. Ka-17. Relevant papers for sending dead body for post mortem examination are Exhibit Ka-18 and Ka-19, respectively. All the four dead bodies were handed over to Constable Vijay Narayan and Constable Shatrughan Singh of Police Station Charkhari. In the process, the four dead bodies were sent to mortuary for post mortem examination.

Record reflects that postmortem examination on the cadaver of dead body of deceased Parashu Ram Tiwari son of Durga Tiwari was done by Dr. A.K. Maurya PW-1 on 13.10.1993 at 10.00 A.M. wherein the following antemortem injuries were found on the dead body:-

(i) Fire arm wound of entry of size 6 C.M. X 4 C.M. on the right side of face over cheek, vertically oval. Centre of wound is 10 C.M. from right external auditory meatus in 4.30 O'clock direction margins inverted.

(ii) Fire arm wound of entry with inverted margins on back at left side of mid line at level of T-12 vertebra 4 C.M. away from mid line (i.e. centre of wound is 4 C.M. from mid line). Size of wound is 7 C.M. X 5 C.M. transversely oval.

(iii) Abrasion of size 6 C.M. X 4 C.M. on posteromedial aspect of right lower upper arum.

Duration of death was two days. Cause of death was said to be shock due to haemorrhage. This postmortem report is Ex. Ka-1.

Similarly postmortem examination on the cadaver of deceased Hari Shanker son of Durga Prasad Tiwari was done on 13.10.1993 at 11.00 A.M. Duration was estimated to be about two days. The following antemortem injuries were noticed by the doctor on postmortem examination :-

(i) Fire arm wound of entry of size 4 C.M. X 3 C.M. transversely oval lateral and anterior parts of left upper and in its lower 1/3 margins inverted.

(ii) Fire arm wound of exit of size 5 C.M. X 4 C.M. transversely oval on anteromedial aspect of lower 1/3 of left upper arm. Not exposed track is traversing subcutaneously and through muscle.

(iii) Fire arm wound of entry of size 4 C.M. X 3 C.M. transversely oval on lateral size of chest on left 17 C.M. from left nipple in 4.30 O'clock direction.

(iv) Fire arm wound of exit 4 C.M. X 3.5 C.M. on right side chest margins evrted 12 C.M. from right nipple in 7 O'clock direction.

(V) Fire arm wound of entry of size 4 C.M. X 3.5 C.M. just leteral to bridge of nose on left size of head eye ball displaced on lateral aspect eye ball soft disfigured margin inverted.

Cause of death was shown to be Coma. This postmortem report is Ex. Ka-2.

Similarly postmortem examination on the cadaver of Hari Shankar Pal son of Lal Diman Pal was conducted by Dr. K.N. Singhal on 12.10.1993 at 2.00 P.M. duration was stated to be about 1-1/2 days. The following antemortem injuries were found by doctor.

(1) Fire arm wound of entry on right side of upper part of abdomen 13 C.M. above and lateral to umbilicus, measuring 4 C.M. X 3.5 C.M. X cavity deep blacking present around wound, direction anteroposterio upwards and to the left side.

(2) Fire arm wound of entry on posterior lateral aspect of right upper arm 12 C.M. below the shoulder tip, measuring 14 C.M. X 3 C.M. X wound of at exterior posterior medial aspect of right upper arm, blackening present around wound, direction right to left side.

(3) Fire arm wound of exit on posterior medial aspect of right upper arm 4 C.M. X 3 C.M. X wound of entry.

(4) Fire arm wound of entry on lateral side of right chest 4 C.M. below the axillary pit, measuring 4 C.M.X 3 C.M., direction right to left side.

(5) One contusion 15C.M. X 2.5C.M. on back of left shoulder (two linear lines parallel at 2.5 C.M. Apart).

(6) One contusion 10C.M. X 2.5 C.M. on dorse lateral aspect of middle of right forearm. (Two oblique lines 2.5 cm..?)

In the opinion of doctor cause of death was shown to be shock and haemorrhage. This postmortem examination report has been prepared by Dr. K. N. Singhal, P.W.-7 and proved as Ext. Ka-4.

Similarly postmortem examination on the cadaver of Dharampal son of Lal Diwan Pal was conducted by Dr. K.N. Singhal PW-7 on 12.10.1993 at 3.30 P.M. The following ante-mortem injuries were noticed by the doctor:-

(1) One fire arm wound of entry in the troul of lower Jaw just left side of mid-line measuring 4 C.M. X 3 C.M. X bone cavity deep, blackening present around wound direction anteroposteriar to the left multiple fracture of left mandible and maedla into peaces. Three cog + 88 mall pallets recovered from left maxillary bone discovers.

(2) One fire arm wound on proximal malynx of ring figure of left hand. Distal finger part attached only by a......? and measuring 4cm x 2 cm x fracture of bones. Blackening present on wound.

(3) One fire arm wound of entry 3.5 C.M. X3 C.M. on proximal part of middle of right palm direction down upwards.

(4) One fire arm wound of exit on palmer aspect of right wrist and lower end of right forearm measuring 6 cm x 4 cm, fracture of lower end of both bones of right forearm.

In the opinion of doctor, the cause of death was due to shock and haemorrhage as a result of ante-mortem injuries. Post mortem examination report is Exhibit Ka-5.

The investigating officer also prepared site plan of the place of occurrence pertaining to the place where firing was done on Ran Vijay Singh by the accused. The site plan is Ex. Ka-27. He also inspected Santoshpura where Dharam Pal and Hari Shankar were murdered and prepared site plan of the spot Ext. Ka-28 and also prepared site plan of place where Parashu Ram Tiwari was murdered, which site plan is Ext. Ka-29. On 11.10.1993, the Investigating Officer recovered empty cartridges from the place where dead bodies of Dharam Pal and Hari Shankar were lying. Memos of the same were prepared as Ext. Ka-23 and Ext. Ka-24, respectively. Constable also took simple and bloodstained clay roll from spot, where Dharam Pal and Hari Shanker were murdered and prepared memos of the same as Ex.Ka-25 and Ka-26, respectively.

A number of other relevant papers in shape of various memos bearing on facts of this case have been mentioned by the learned trial court in its judgement, which need not be repeated at this stage, however, reference of the same shall be made as and when the context so requires, because there being a long list of such memos, it would be sheer waste of time in reiterating the same at this juncture. The investigating officer after completing various other formalities ultimately filed charge-sheet against the accused persons.

Consequently, the case of the appellant was committed to the court of session where from it was made over for trial and disposal to the court of Additional Session Judge(Fast Track Court), Mahoba. The trial court after hearing both the sides was prima facie satisfied with case under Sections 302/34 and 307/34 IPC against the appellants. Therefore, charges were framed, read over and explained to the accused, who denied the charges and opted for trial.

Thereafter, prosecution was asked to adduce its testimony. Whereupon the prosecution produced the following witnesses to prove guilt of the accused:-

Dr. A.K. Maurya, P.W.-1 has conducted the postmortem examination on the dead bodies of Parashu Ram Tiwari and Hari Shanker and has proved the same. Ran Vijay Singh P.W.-2 is an eye witness of occurrence pertaining to Section 307 IPC., he has been cross-examined by the defence. Ram Murti PW-3 is an eye witness of the incident and has testified about the occurrence in which Parshu Ram and Hari Shanker were killed. Lal Diman, P.W.-4 is an eye witness of the fact of death of his two son's Dharam Pal and Hari Shankar Pal. Rameshwar, P.W.-5 has proved the written report, Ex. Ka-3 and is an eye witness of the incidence of murder of Hari Shanker and Dharam Pal, son's of Durga Prasad Tiwari. Vishram, P.W.-6 is an eye witness of the occurrence of offence pertaining to murder of Dharam Pal and Hari Shanker. Dr. K. N. Singhal, P.W.-7 has conducted post mortem examination on the cadaver of Hari Shankar Pal and Dharamal, both sons of Lal Diman Pal of Santoshpura, and has proved the same. P.W.-8 Constable Hari Govind Singh has conducted proceeding pertaining to another case crime number under Arms Act, which part of testimony has now become redundant for consideration by us because this appellant Court is concerned basically with the challenge made to the conviction recorded under Section 302/34 and 307/34 IPC. Dhiraj Prasad, P.W.-9 has made relevant entries in the Chek FIR and its relevant G.D. entry, whereby the case was registered against the appellants, and has proved the same as Ex. Ka-6 and Ka-7, respectively. Lalit Kumar Rathore P.W.-10 has drawn process for preparation of inquest report of all the four deceased, Parashu Ram Tiwari and Hari Shanker, both the sons of Durga Prasad Tiwari and Hari Shanker and Dharam Pal sons of Lal Diman Pal, and has also prepared various papers for sending the dead bodies for postmortem examination and has proved the same. He has also proved certain process pertaining to this case drawn by the then Inspector Vishram Singh Yadav, and has proved several papers prepared by him. Constable Natthu Ram Mishra, P.W.-11 has drawn proceeding pertaining to offence under Arms Act, which proceeding is extraneous to our consideration, as the same is not under challenge.

Except as above, no other testimony was adduced by the prosecution. Thereafter, evidence for the prosecution was closed and statement of both the appellants was recorded under Section 313 Cr.P.C. Both the accused termed their implication false on account of enmity and stated that there was animosity with Pradhan Room Singh, on account of the murder of their brother Mahesh. Tej Singh, his brother Uttam and Ran Vijay Singh were accused in that case. In order to counter this grim si tuation they have been falsely been implicated in this case. No evidence was led by the defence.

The learned trial court after hearing both the sides on merits passed aforesaid order of conviction under Sections 302/34 and 307/34 Arms Act, and by the same order dated 29.10.2004 acquitted them of charges under Section 25 Arms Act.

Consequently, this appeal.

It has been urged on behalf of the appellants that no one saw the incident and appellants have been falsely implicated on account of enmity with the informant side. The brother of the appellant Mahesh was murdered by the informant side, and the informant side has been convicted in another case under Section 302 IPC, wherein appeal has been preferred by the first informant side. First information report has been lodged deliberately in collusion with the police. It is surprising that no report regarding firing done on Ran Vijay Singh has been lodged by Ran Vijay Singh himself. In a dramatic manner the first informant Rameshwar son of Kanahi Lal, lodged information of the incident at 10.15 A.M. on 11.10.1993, whereby, he also mentioned fact regarding death of Hari Shanker and Parshu Ram both sons of Durga Prasad Tiwari, at some another place say Markui Har, at some different place and about firing on Ran Vijay Singh near place 'Baba Ki Kutia'. Can such an FIR is legally permissible. The investigating officer has not investigated the case fairly, but has tried to side with the informant. The testimony of prosecution witnesses of fact is wholly unbelievable and is contradictory to each other in substance and material particulars and the same does not hold good. It is obvious that a number of persons were named in the FIR whereas in the testimony of the prosecution witnesses it has emerged that name of certain accused persons were deliberately dragged in just to give colour to the occurrence. There was no motive for committing the crime by the appellants.

Testimony and circumstances of this case amply prove prior deliberation between the informant and the concerned police authority prior to the lodging of the first information report. First informant arrived at the police station, where father of Ran Vijay namely Tejpal Singh, the Gram Pradhan was also present and was inside the police station and was talking to the police authority over there. At the same time the signature/thumb impression of the first informant was got on some paper sent to him from inside the police station. Thus connivance on the part of police with the informant in consultation with Tej Pal Singh, father of Ran Vijay Singh stands proved and Tej Pal Singh was inimical towards the appellants is very much on record. Therefore, false implication of the appellants is proved by testimony as well as attendant circumstances of this case and to link the appellants with the commission of entire offence at Markui Har and Santoshpura is without basis and merely on imagination.

In fact the so called prosecution witnesses of facts were not present on the spot and their version of incident is based on hearsay evidence as to what they heard from the villagers and they being relatives of the deceased are partition as well as chance witnesses, their testimony on the whole doesn't inspire confidence. Prosecution has not been able to prove charge against the appellants.

Learned AGA while refuting aforesaid argument submitted that in this case presence of prosecution witnesses of facts on the spot is very much natural and the same has been proved satisfactorily and the learned trial court while appraising facts and evaluating evidence on record has recorded just finding of conviction. To say that the first information report was lodged after deliberation with the police with the instrumentality of Tej Pal Singh is absolutely baseless. The appellants had enough motive to commit the crime as has been proved on record and in pursuance of their objective the accused persons clandestinely planned out cold blooded murder of as many as four persons two each at two places. One at 6.30 A.M. in the morning at Markui Har and the other at Santoshpura around 8.30 A.M. Not only this, the accused persons also tried to kill Ran Vijay Singh but he escaped unhurt because of his alertness on the spot in Markui Har near 'Baba Ki Kutia'. His testimony is indicative of facts that accused persons were present around 6.30 A.M. at Markui Har and they caused death of Hari Shanker and Parashu Ram Tiwari sons of Durga Prasad Tiwari and in order to accomplish their task they proceeded towards Santoshpura where they killed two persons namely Hari Shanker Pal and Dharampal both sons of Lal Dewan Pal. Thus entire episode has its background rooted in animosity and enmity with the informant side, because the informant side favoured the group of Pradhan of Reawai. Tej Pal Singh, father of Ran Vijay Singh was the officiating Pradhan at that relevant point of time and incident, therefore, they have enough motive to commit the crime.

Presence of accused persons on the spot is thus established and the entire evidence on record and particularly ocular testimony of the witnesses of fact inspires confidence. Whatever discrepancies appear in the testimony of prosecution witnesses is of trivial nature and that is not substantial one so as to cause any dent in the prosecution story. The appeal is devoid of merits.

We have also considered the rival contentions.

After considering the aforesaid submissions and the fact and circumstances of the case, the point for determination of this appeal relates to facts, whether the prosecution has been able to prove its case against the appellants under Section 302/34 IPC and under Section 307/34 IPC and the presence of the eye witnesses on the spot is natural and their testimony on the whole inspires confidence?

Before we proceed on the overall merit of this case, it appears convenient to take into account contents of first information report Ex. Ka-3, which inter-alias contains allegations regarding fact that the aforesaid appellants in company with other accused persons on 11.10.1993 killed two persons in Santoshpura Mazara Rewai, while deceased were guarding their crops in their fields around 8.30 A.M. when the appellants appeared on the scene possessing single barrel gun in company with other persons. Kamlesh was also possessing one single barrel gun (Addadhi) and killed by firing Dharam Pal and Hari Shankar. The first informant Rameshwar, Vishram and Lal Diwan Pal rushed to their rescue but they were threatened at the gun point by the assailants and thereafter, the assailants secured their escape.

It has been alleged in the first information report that the assailants were abhorrent towards the victim for reason that they belonged to the party of Pradhan of Rewai and the Gram Pradhan Rewai was involved in killing Jagata's brother. It is further gathered that the first informant Rameshwar when reached police station then he came to know that some persons have also fired upon Ran Vijay Singh son of Gram Pradhan Tej Singh with intention to kill him, near 'Baba Ki Kutia' in village Rewai, but he escaped unhurt. He also came to know that the appellants also killed Hari Shankar and Parashu Ram Tiwari both sons of Durga Prasad Tiwari in Markui Har, which facts can be narrated by family members of those victims and the villagers. Record reflects that this written report was lodged at police station Charkhari on 11.10.1993 at 10.15 A.M. The distance from Santoshpura to the police station was shown 10 Kms. and the time of incident was mentioned around 6.30 A.M. to 8.30 A.M on 11.10.1993. In this particular factual background, it is obvious that three eyewitnesses have been named in the first information report and they are the first informant Rameshwar, Vishram and Lal Diwan Pal. Therefore, their testimony has got to be analysed and scrutinized vis-a-vis the attendant circumstances of this case. Apart from testimony of the aforesaid witnesses, we may observe at this stage that equally relevant is the testimony of Ran Vijay Singh against whom muderous assault was allegedly opened by the present appellants in Markuihar near 'Baba Ki Kutia', but he claims to have escaped unhurt.

Now we proceed with scrutiny of ocular testimony of the witnesses of fact Rameshwar, P.W.-5 and Vishram P.W.-6, as they have stated to have witnessed the incident which took place around 8.30 A.M. on 11.10.1993 at Village Santospura.

We also take note of fact that the father of deceased Hari Shankar Pal and Dharam Pal has also been examined as witness of facts as P.W.-4, therefore, it would be appropriate to take cumulatively into account appraisal of facts and evidence trickling out from their testimony. It emerges in the testimony of Lal Diwan Pal, P.W.4 that the incident took place around 8.00 A.M., at that point time his sons Dharam Pal and Hari Shankar were ploughing their fields with the help of bulls and this witness along with his another son Vishram was uprooting grass from the field, and his nephew Rameshwar (P.W.-5) was also ploughing in nearby field. In the meanwhile the accused-appellants arrived on the spot. Accused Jagatram and Kamlesh were processing 12 bore SBBL gun. They came along with few other persons. The accused persons came from Rewai Side and challenged his sons Hari Shankar and Dharam Pal. Dharam Pal was assaulted with Lathi by Jagatram and others and Harishankar was assaulted with Lati first and then Kamlesh fired on him and Jagatram fired on Dharam Pal.

This witness alongwith Vishram and Rameshwar rushed to their rescue whereupon they were threatened on gun point by the assailants that in case they proceeded further they will be dealt with in the same manner. The assailants secured their escaped towards canal of the village. This witness also came to know that these assailants also attacked on the son of Tej Singh and further that these peoples have killed Hari Shankar Tiwari and Parashu Ram Tiwari, of village Markui Har in the morning.

More or less similar statements regarding manner of incident and assault being opened on Hari Shankar and Dharam Pal the two victims has came forth from testimony of the other eye witnesses say Rameshwar, P.W.-5 and Vishram, P.W.-6. It has been specifically testified that both Dharam Pal and Hari Shankar were hit by fire due to which they died. Motive behind this murder has been ascribed to be fact that the assailants were inimical towards Pradhan Tej Singh and the informant side had good relations with the Pradhan of Rewai namely Tej Singh.

They have been cross-examined by the defence at length but nothing adverse or inconsistent has emerged to the magnitude which may materially affect their testimony regarding the manner and style of the occurrence, which resulted into death of Hari Shankar Pal and Dharam Pal both sons of Lal Diwan Pal. In the testimony of Rameshwar in his cross-examination on page-61 of the paper book, it has emerged that he came to know about death of Hari Shankar and Dharam Pal, after the sun had arisen. He alongwith Vishram went to the spot were Lal Diwarn Pal was present.

Contention has been raised that as per this specific piece of testimony Vishram and Rameshwar, they were not present on the spot at the time of occurrence, but the contention doesn't hold good for reason that the witness in his examination-in-chief has adhered to vivid description of the incident with varying particulars which cannot be ignored or brushed aside because on the face of it, it purports to make presence of the witness on the spot doubtful. It appears that the witness Rameshwar, P.W.-5, who is otherwise consistent in all respects on happening of the incident has perhaps made a statement in isolation, which statement solely does not reflect on fact that his presence on the spot is doubtful. Therefore, this isolated peace of testimony does not work in favour of the prosecution.

At this stage we may discuss the post-mortem examination reports of the two victims Hari Shankar Pal and Dharam Pal, Ex. Ka-4 and Ex. Ka.-5 respectively, wherein also fire arm wound have been found. Dr. K. N. Singhal has conducted post-mortem examination on the dead body of Hari Shankar Pal on 12.10.1993 and has proved his ante-mortem injuries, as injuries nos. 1, 2, 3, 4 which were stated to have been caused by using fire arm and has proved the post-mortem report as Ex. Ka-4. Apart from above, he also conducted post-mortem examination on the cadaver of another deceased Dharam Pal, who was brother of Hari Shankar Pal, the very same day at 3.30 P.M., wherein also he found four ante-mortem fire arm wounds and two special injuries in form of contusion have been caused on body of Hari Shankar Pal.

Cause of death has been said to be shock and haemorrhage due to ante-mortem injuries. The expected time of death has also been stated to be between 6.30 to 8.30 A.M. on 11.10.1993, and such injuries can be caused by use of fire arm. This specific testimony by the doctor has not been specifically challenged by the defence that it could not have been caused between 6:30 to 8:30 a.m. Therefore, ocular testimony of the prosecution witnesses of facts in regard to the incident that took place at Santospura resulting into death of Hari Shankar Pal and Dharampal sons of Lal Diwan Pal stands proved beyond reasonable doubt to the extent that the appellants were responsible for causing their death. In so far as inconsistency occurring in testimony of the prosecution witnesses of fact while deposing on the point of occurrence that took place at Santoshpura is concerned, the same are not so serious or superficial as may erode the foundation of prosecution case or that it may shatter the entire prosecution case. The investigating officer has certainly committed lapses but that lapse alone is not fair enough for throwing away case of the prosecution. Therefore, the incident at Santoshpura has been proved beyond reasonable doubt by direct testimony of the witness and appraisal of fact made in regard thereto by the learned trial court in relation to the incident at Santoshpura is found to be just and consistent, on point of occurrence. Testimony of the prosecution witnesses of fact namely P.W.-4 Lal Diwan Pal, P.W.-5 Rameshwar and P.W.-6 Vishram are found to be co-herent and fair enough to establish case of the prosecution under Section 302/34 IPC, in so far as it relates to the death of Hari Shankar Pal and Dharam Pal both sons of Lal Diwan Pal. At this juncture, we notice that in so far as the place of occurrence is concerned, we find that the place of occurrence and site plan have been proved by the Investigating Officer, P.W.-10, Lalit Kumar Rathore and he has shown the places from where the dead bodies of Hari Shankar Pal and Dharam Pal were recovered.

Contention was raised that the places from where the witnesses have been stated to have seen the occurrence is not visible from such angle and direction where the place has been marked by letter 'W', but obviously bare perusal of the site plan shows that it can be easily seen from that place and there is no such hindrance or impediment, so graver in nature as may block vision of the person to the place of the actual occurrence. Moreover, it is the Investigating Officer who has to be blamed for preparation of incorrect site plan, if he does not include all relevant scenes. It is true that no place has been shown as the place from where the accused opened fire, but this lacuna is due to mistake committed by the Investigating Officer but in this case, ocular testimony, as discussed above, corroborates the medical testimony and such corroboration cannot be given a go by merely on account of laches committed by the Investigating Officer.

We may also consider the contention of the defence as on page-48 of paper-book, which emerges in the testimony of P.W.-3 Ram Murti that he (Ram Murti) and Rameshwar reached at the place of occurrence and Kamala @ Kamlesh was caught the very same night, he was beaten then he told name of one person at a time and he kept on changing names, therefore, it is obvious that Kamala @ Kamlesh was arrested on the day of occurrence but his arrest was shown by the police to have been effected later on is absolutely false assertion. But this suggestion/testimony of this witness has been specifically denied by the Investigating Officer, P.W.-10, Lalit Kumar Rathore, that Kamala @ Kamlesh was ever arrested by him on the day of occurrence. Therefore, aforesaid testimony does not help the defence.

Now we may switch over to the merit of incident that was caused at Markui Har in the morning of 11.10.1993. The most reliable witness at Markui Har is Ran Vijay Singh, P.W.-2, on whose life attempt was made by the present appellants by firing. He has stated that the incident took place around 6.30 A.M. near Baba Ki Kutia. It has surfaced in his testimony that four years ago the brother of Jagta was murdered and he (this witness) alongwith his father was made accused in that case, therefore, accused Jagta was inimical towards him. This witness as per his testimony was washing his mouth and hand around 6.30 A.M. on the fateful day near Baba Ki Kutia, where he saw Jagta @ Pappu and Bhayyadeen, Jagta was processing 12 bore country made pistol and Kamlesh was processing 12 bore gun (Addhi), he began to run away from there, when these accused persons opened fire on him with intention to kill, but he some how managed to escape unhurt. He made his escape towards village. He has testified that he did not go to the police station for lodging FIR because brothers of Ram Murti were also murdered and they had also gone to the police station for lodging report. As soon as he reached at the police station he came to know that the matter has been reported at the police station prior in time. He has further testified at page-38 of the paper book that he came to know about lodging of report by Ram Murti and others at the police station. He has also stated that he took Daroga Ji to the spot. The assailants opened only one fire, rest fires missed. He also saw three accused persons chasing him after the firing had taken place. He has been cross-examined as to why he began to run away from the scene when only one fire was opened on him. On page-42 of the paper book, he has testified that the accused persons chased him up to Charkhari Muskara Road only then they relinquished chase.

It is admitted fact that there is personal enmity between Jagta, Kamlesh and the first informant, as Jagta's brother was murdered and Tej Pal Singh, father of the victim alongwith this witness (Ran Vijay Singh) were accused persons in that case.

Before proceeding further with the merit of aforesaid testimonial and factual aspect of the occurrence at Markui Har it would be appropriate to evaluate the testimony of the Ram Murti, P.W.-3. He has stated in his examination-in-chief that the assailants came near to his brother possessing SBBL gun surrounded him and opened indiscriminate firing on him, and after firing on his brother the assailants fled away towards Santoshpura. He has further stated at page-43 of the paper book that he went to lodge report at the police station where Rameshwar of Village Santoshpura had already reached at the police station and the same assailants had also murdered two brothers at Santoshpura and he (Rameshwar) had already lodged report about the same, therefore, no fresh report was lodged regarding the incident at Markui Har, under Section 307 and 302/34 IPC, at the police station.

The moot point crops up that Ran Vijay Singh is having direct enmity with the accused persons, but he is restraining himself from lodging the FIR at police station Charkhari is highly doubtful, for specific reason that there was no legal bar for him to lodge report once the offence had already been committed against him around 7.00 A.M. It is also surprising that two persons fired on Ran Vijay Singh, P.W.-2, but no sign of firing in shape of any empty cartridge was found on the spot. Although doctor has proved time of death, but that alone will not determine fact that the incident of firing was caused only by the two accused persons. Why Ran Vijay Singh is keeping mum and not naming the real assailants under pretext and excuse that some another person say- Rameshwar had already lodged the report, therefore, he did not think it proper to lodge his own report, is not easily digestible under circumstances of this case. Moreover, it has come in the testimony of prosecution witnesses itself that at the time when Ran Vijay Singh arrived at the police station, then Rameshwar was also present at the police station Charkhari and it also emerges in the testimony of the prosecution witnesses that father of Ran Vijay Singh, namely Tej Pal Singh was present inside the police station. Under circumstances of the case, Ran Vijay Singh son of Tej Pal Singh was expected to lodge report, but no report was ever attempted to be lodged at the police station by Ran Vijay Singh, is surprising. Similarly, the incident had already taken place at Markui Har between 6.00 to 6.30 A.M. and there was ample opportunity for Ran Vijay Singh to lodge the report within time, but both the witnesses P.W.-2 and P.W.-3, Ran Vijay Singh and Ram Murti failed to lodge any report promptly. This inaction on their part explicitly and implicitly shows that they did not witness the incident of their own at Markui Har.

It is most unnatural on the part of P.W.-3 Ram Murti, not to lodge report of murder of his two brothers, when he reached at police station Charkhari, merely on the ground that one Rameshwar of Santoshpura had lodged the report, is not sufficient; because the report of Rameshwar on the whole did not contain any live description or any worthy detail regarding the manner and style of the incident that took place at Markui Har and in this way it was incumbent on P.W.-2 to have come out specifically about particulars or details regarding the incident at Markui Har. Therefore, under circumstances, we can easily see that the conduct of P.W.-3 is not natural and his inaction does not stand to reason of a common man without knowing the contents of the report lodged by Rameshwar how can he guess that the entire incident that took place at Markui Har around 6:30 a.m. has been described in detail in the FIR lodged by the informant Rameshwar. Therefore, his conduct is most unnatural on this aspect.

Next, it also emerges in his cross-examination (of P.W.-3) that he was near the place of occurrence when his two brothers were killed by the present appellants. Therefore, it can be easily understood that no attempt was made by the assailants to assault or kill him. It means presence of this witness on the spot is doubtful. It is also doubtful that present appellants committed murder of two persons at Markui Har and it appears that in order to give thrust to point of involvement of the present appellants in the incident at Markui Har when father of Ran Vijay Singh, Pradhan of Rewai had already reached at police station, and it appears that in order to give colour to the incident at Markui Har, a concocted story was promoted that the present appellants also fired at Ran Vijay Singh, though he escaped unhurt and to make him an eye-witness along with Ram Murti PW-3. Therefore, the incident at Markui Hal resulting into death of Parashu Ram Tiwari and Hari Shankar Tiwari both sons of Durga Prasad Tiwari and firing on Ran Vijay Singh, P.W.-2 becomes doubtful in so far as it attributes guilt to the appellants and in this regard the testimony and appraisal of the evidence, facts and circumstances by the trial court has not been properly done. The trial court misread the attendant circumstances and testimony of PW-2 and PW-3.

Therefore, we have every reason to disbelieve version of P.W.-2 and P.W.-3 in regard to the incident, that was stated to have been caused by the present appellants and, therefore, charges for causing murder of aforesaid two persons namely Parashu Ram Tiwari and Hari Shanker Tiwari and for making an attempt on the life of Ran Vijay Singh and for charges made in regard thereto have not been proved beyond reasonable doubt. But the trial court erroneously recorded conviction in respect of the incident that took place at Markui Har and thus found charges proved for causing murder of Parashu Ram Tiwari and Hari Shanker Tiwari and life attempt on Ran Vijay Singh, which conviction is disapproved by us.

We have already discussed ut supra about culpability of these two appellants and we have upheld conviction of the present appellants for causing murder of Dharam Pal and Hari Shanker Pal both sons of Lal Diwan Pal, around 8.30 A.M. on 11.10.1993 at Village Santospura, while the aforesaid victim were ploughing their field and the incident was witnessed by three witnesses Rameshwar, Vishram and Lal Diwan Pal. Therefore, that part of the incident has been consistently proved by the prosecution, therefore, the conviction so recorded against the present appellants for committing murder of aforesaid two deceased is hereby approved by us.

Accordingly, the appeal is allowed partly in terms aforesaid.

However, the conviction of the appellants is maintained as recorded by the trial court in regard to the incident that took place at Village Santoshpura and the charge, resulting into death of Hari Shankar Pal and Dharam Pal, both sons of Lal Diwan Pal.

In view of the above scrutiny, evaluation of evidence qua facts, both the accused appellants Jagta and Kamala @ Kamlesh are acquitted of charge under Section 307/34 IPC for attempting on the life of Ran Vijay Singh and also acquitted of charge under Sections 302/34 IPC, for causing death of both the deceased Parashu Ram Tiwari and Hari Shankar Tiwari both sons of Durga Prasad Tiwari at Village MarKui Har on 11.10.1993 at 6:30 A.M. Accordingly, finding of conviction in so far it relates to the charge under Section 307/34 and 302/34 IPC pertaining to the incident at Markui Har is set aside.

However, conviction and sentence as recorded by the trial court under Section 302/34 IPC for causing death of two persons Hari Shankar Pal and Dharam Pal both sons of Lal Diwan Pal, at Village Santoshpura on 11.10.1993 at 8:30 AM. by the present appellants is hereby maintained by us.

In this case, both the accused-appellants are in jail. They shall serve out the remaining part of their sentence imposed on them by trial court under Section 302/34 IPC as aforesaid.

Let a copy of this order be certified to the court concerned for information and necessary follow up action.

Order Date :- 06.12.2016

VKG