Ram Ji Singh And Another vs State Of U.P.
2016 Latest Caselaw 7539 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR     
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 7130 of 2010
 

 
Appellant :- Ram Ji Singh And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- V.P.Srivastava,Ajay Kumar Srivastava
 
Counsel for Respondent :- Govt.Advocate,Mangala Prasad Rai
 
Connected with
 
Case :- CRIMINAL APPEAL No. - 7884 of 2010
 

 
Appellant :- Kanta Singh And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ajay Srivastava,Ajit Kumar Singh Solanki,V.P.Srivastava
 
Counsel for Respondent :- Govt.Advocate,Mangala Prasad Rai
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

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

By way of aforesaid criminal appeals, challenge has been made to the judgment and order of conviction dated 20.10.2010 passed by Additional Sessions Judge, Fast Track Court No. 3, Ghazipur in Sessions Trial No. 356/2006 under Section 302/149 IPC arising out of Case Crime No. 516/2006 under Sections 302/149, 506 IPC, 27/30 Arms Act, P.S. Mardah, District Ghazipur, whereby the appellants have been sentenced to life imprisonment and a fine Rs. 5,000/- each and in case of default, the concerned convict would have to suffer additional three months' simple imprisonment. One year simple imprisonment under Section 506 IPC coupled with fine Rs. 1,000/- each and in case of default, the concerned convict would have to suffer additional simple imprisonment for one month and Anjani Singh has been further sentenced under Section 148 IPC to one year simple imprisonment coupled with fine Rs. 1,000/- and in case of default, he would have to suffer additional imprisonment for one month. Sentences shall run concurrently.

Pertinent to mention that appellant- Kanta Singh has died during pendency of the appeal. Therefore, the appeal stood abated qua appellant- Kanta Singh vide order dated 02.03.2016.

Relevant to mention that the aforesaid two appeals arise out of the judgment in aforesaid Sessions Trial No. 356/2006 pertaining to the same Case Crime No. 516/2006, therefore, both these appeals are being decided by common judgment.

Course of events suggest that informant Ram Nath Singh s/o Ram Lochan Singh lodged written report at P.S. Mardah on 29.5.2006 at 12:25 p.m. against five accused persons- Kanta Singh, Laxman Singh and Ram Ji Singh, sons of Vishwanath Singh, Anjani Singh s/o Ram Ji Singh and Sanjay Singh s/o Laxman Singh for causing death of his son Lalita Singh by shooting him to death with specific allegations that it was around 11:00 a.m. on 29.5.2006 co-villagers Kanta Singh, Laxman Singh and Ram Ji Singh, sons of Vishwanath Singh, Anjani Singh, s/o Ram Ji Singh, Sanjay Singh s/o Laxman Singh climbed upon the roof of house of their uncle Paras Nath Singh and hurled abuses at his son and his family. Informant's son Lalita in the meanwhile climbed on the roof of his house when the assailants Kanta Singh, Anjani Singh and Sanjay Singh, in prosecution of their common object with intention to kill at the exhortation of Ram Ji Singh and Laxman Singh fired on the deceased with their respective licensed guns which they were possessing at that point of time due to which fire hit Lalita Singh on his head and eyes and he fell down. This incident was witnessed by Swami Nath Singh of his village and other villagers, as well. The assailants extended life threat and fled away from the scene. First informant in company with his family members took his son Lalita Singh to Mardah hospital where he succumbed to his injuries as soon as he reached the hospital. Request was made for lodging report and taking appropriate action. This report was scribed by Gopal Sharan Singh. The same is Exhibit Ka-1. Relevant entries were made in the concerned check FIR at Case Crime No. 516/2006 under Sections 147, 148, 149, 302, 504, 506 IPC the very same day on 29.5.2016 at 12:25 p.m. at Police Station Mardah. The check FIR is Exhibit Ka-7. On the basis of entries made in the check FIR, a case was registered at serial no. 21 of General Diary dated 29.5.2006 at 12:25 p.m. at aforesaid case crime number, under aforesaid sections of IPC at P.S. Mardah- against accused persons. Copy of concerned G.D. is Exhibit Ka-8. Both the check FIR and the concerned G.D. have been proved by prosecution witness Nagendra Singh PW-8. After lodging of the case investigation of the case ensued and was entrusted to S.I. Anand Kumar Singh PW-10. Testimonial account of Anand Kumar Singh PW-10 reveals that he on being informed about the incident telephonically reached at village Harhari when the first informant had taken away the deceased to the hospital by tempo. The villagers rose in agitation and they expressed their anguish by road jams over the death of Lalita Prasad. The Investigating Officer send S.I. Chandrika Yadav to the Mardah hospital for holding inquest. Chandrika Singh Yadav PW-9 held inquest of deceased Lalita Singh at the Mardah hospital after appointing inquest witnesses. Inquest report is Exhibit Ka-2.

In the opinion of S.I. Chandrika Singh Yadav and the inquest witnesses, it was suggested that it would be appropriate that the dead body of Lalita Singh is send for postmortem examination for ascertaining real cause of death. Therefore, relevant papers for sending the dead body for postmortem examination were also prepared in the process. These papers are Exhibit Ka-10 to Exhibit Ka-14 in shape of challan dead body- police form 13, photo nash, letter to R.I., letter to C.M.O. and specimen seal. Thereafter, the dead body of Lalita Singh was taken to mortuary of the District Hospital where postmortem examination on the cadaver of Lalita Singh was conducted at 7:10 p.m. on 29.5.2006 at by Dr. Vinay Kumar Srivastava PW-4, who noted the following four antemortem injuries during examination:-

(1) Fire-arm wound of entry just below right eye 7 mm. in diameter. Colour of abrasion present. On cutting, it has pierced the orbital fosa and anterior fontanalle of the skull and a cylindrical bullet 10 mm. X 8 mm. in diameter recovered and handed over to police constable.

(2) Fire-arm wound of entry in right side of neck 7 mm. in diameter. colour of abrasion present. On cutting, it has been pierced the ethmoid sinus and left anterior fontanelle lacerated and communicating with fire arm mark of exit 8 mm. and diameter on left front temporal area.

(3) Fire-arm wound of entry below left eye and 7 mm. in diameter. Colour of abrasion present. On cutting it, it has pierced the left orbital fosa and left anterior fontanelle and brain matter and communicating the fire-arm wound of exit on left parietal area 8 mm. in diameter.

(4) Fire-arm wound of entry on left cheek just below and up to left eye 7 mm. In diameter. colour of abrasion present. On cutting, it was communicating to wound of exit of firearm on left side of temporal area above left ear.

In the opinion of doctor, cause of death was stated to be coma as a result of firearm antemortem injuries. Duration was said to be about quarter to half a day. Postmortem report has been proved as Exhibit Ka-4. As the investigation progressed, the Investigating Officer PW-10 recorded statement of various persons and inspected the spot, prepared site map Exhibit Ka-15 and also collected bloodstained and simple cemented concrete from the place of occurrence where deceased was stated to have fallen after sustaining firearm injury. A memo of cemented concrete is Exhibit Ka-16. The Investigating Officer also recovered one empty cartridge beside banana tree in front of informant's house and recovered another empty cartridge from near an electric pole installed on the western side of the temple situated in front of the street. These places of recovery have been marked in the site plan by letters 'Y' and 'Z'. The Investigating Officer prepared memo of recovered cartridges on the spot which is Exhibit Ka-6. During course of proceeding, the Investigating Officer also arrested the two accused persons Kanta Singh and Anjani Singh on 1.6.2006 in Jamwari village near Jamwari school at 1:00 p.m. soon after tip off information was received and two licensed guns- one SBBL gun from Anjani Singh and another DBBL gun from the possession of Kanta Singh was recovered. Therefore, Section 27/30 Arms Act was also added in the aforesaid case crime number (516/2000), because the weapon were stated to have been used in the commission of murder of Lalita Singh, a memo of the same is Exhibit Ka-21. Likewise, the other two co-accused persons namely- Ram Ji Singh and Sanjay Singh were also arrested near culvert of Warhi Canal at 2:20 p.m. by the police on 2.6.2006 after tip off information was received by the Investigating Officer. Nothing incriminating was recovered from their possession. In the meanwhile, statement of another accused Laxman Singh was recorded by the Investigating Officer wherein certain disclosure statement were made regarding concealment of the weapon/gun used in the incident whereupon the accused was taken on remand by order of the concerned magsitrate. After obtaining remand of accused Laxman, recovery of SBBL gun was effected from his house on 10.6.2006, a memo of recovery was also prepared which is Exhibit Ka-17. The site plan is Exhibit Ka-18. The Investigating Officer stated on 28.5.2006 that some application was moved against Kanta Singh and others by Nirdosh Singh wherein some compromise was entered. The compromise write-up is Exhibit Ka-3. The Investigating Officer recorded statement of various persons and submitted charge-sheet against accused persons which is Exhibit Ka-19. Report of forensic expert pertaining to bloodstained concrete cemented piece and simple cemented piece is Exhibit Ka-20. The docket which was prepared for sending the material for testing at the Forensic Science Laboratory, Lucknow has been marked as Exhibit Ka-22 and and Ka-23. Thereafter, the committal proceeding took place and at last this case was transferred to the concerned trial court for hearing and disposal.

On point of charge, the trial court gave due opportunity of hearing to both the sides and after hearing them was prima facie satisfied with the case against the accused persons under Sections 148, 302/149 and 506 IPC against all accused. However, charge under Section 27/30 Arms Act was also made against accused Laxman Singh, Kanta Singh and Anjani Singh. Charges were read over and explained to the accused, they denied charges and opted for trial.

Prosecution was asked to adduce all its testimony whereupon the prosecution adduced in all ten witnesses, a brief reference of the same is ut infra:-

(1) Ram Nath Singh PW-1 is the informant. He has proved written report Exhibit Ka-1. He claims himself to have witnessed the incident.

(2) Swami Nath Singh PW-2 has been produced in order to prove the factum of incident, however, he has turned hostile, has not supported prosecution's case and he has been cross-examined by the ADGC and the defence.

(3) Smt. Nirdosh Singh PW-3 is the wife of deceased Lalita Singh. She also claims herself to have witnessed the incident and has described the incident before the trial court.

(4) Dr. Vinay Kumar Srivastava PW-4 has conducted autopsy on the cadaver of deceased Lalita Singh on 29.5.2006 and has proved the ante-mortem injuries four in all and has also stated about the approximate cause of death and has proved postmortem report of deceased Lalita Singh as Exhibit Ka-4.

(5) Neeraj Singh PW-5 is witness of fact that he saw the assailants fleeing away from the pathway with weapons in their hands on the day of occurrence around 11:00 a.m.

(6) Constable Dev Das Ram PW-6 is witness of fact that he was entrusted with the custody of the cadaver of the deceased on 29.5.2006 around 2:00 p.m. and he brought the dead body at the police lines at 5:10 p.m. and thereafter at 7:00 p.m. at the mortuary along with the police papers the very same day.

(7) Sri Gopal Sharan Singh PW-7 is the scribe of the written report.

(8) Constable Nagendra Singh PW-8 has made relevant entries in the concerned check FIR and the concerned G.D. and has also proved G.D. entry regarding the sending of special report to the higher authorities and in the process, has proved these documents as Exhibit Ka-7, Ka-8 and Ka-9, respectively.

(9) S.I. Chandrika Singh Yadav PW-9 has held inquest of deceased Lalita Singh on 29.5.2006 and has proved the same as Exhibit Ka-2. He has also proved relevant papers prepared during preparation of inquest for sending the dead body for postmortem examination. These papers are Exhibit Ka-10, Ka-11, Ka-12 and Ka-14.

(10) S.I. Anand Kumar Singh PW-10 is the Investigating Officer. He has detailed the various steps he took in completing the investigation and filing charge-sheet against the accused persons.

Thereafter, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C. wherein they claimed to have been falsely implicated in this case on account of enmity and in collusion with the police.

In turn, the defence also adduced testimony of Dashrath Nath Shukla DW-1, Surendra Nath Singh DW-2 and Rajendra Kumar Singh DW-3 thereafter the matter was posted for argument and after hearing the argument the learned Judge after appraising the facts and circumstances of the case and after evaluating evidence on record returned aforesaid finding of conviction against the accused persons and sentenced them as ut-supra.

Consequently, this appeal.

It has been vehemently contended on behalf of the appellant by senior counsel Sri Dilip Kumar that no specific motive for committing the offence has been mentioned in the first information report. The fact is that the daughter-in-law of informant and wife of deceased- Nirdosh Singh was having some illicit affair with another person Virendra and the deceased who was husband of Nirdosh Singh saw his wife and that person in compromising state. Then, he admonished the person whereupon he was killed by him. In order to save prestige of the family, a false story has been cooked-up. The prosecution witness of fact have been deliberately named as eye witnesses, however, no one witnessed the incident. Named witness Swami Nath has not supported case of the prosecution. The first informant himself did no see any occurrence. Nirdosh Singh, daughter-in-law of the informant also did not see the occurrence. Their ocular testimony and version regarding theory of three shots being fired on the spot by the assailants and that no fourth shot was fired by the assailant, stands negated by the postmortem examination report which is Exhibit Ka-4 itself. The three gunshot wounds have exit wounds, whereas, one gunshot wound has been noted without exit wound during postmortem examination wherein cylindrical bullet of 7 mm. was recovered from the body and it is obvious that it can be fired from rifle or revolver, but it cannot be fired from the gun in question. There is no public or independent witness to the fact of recovery and arrest of accused persons. The direction of fire suggests that the firing was not done from one direction but firing caused and the seats of the gunshot injury on the body of the deceased suggest that firing was done from various directions. Surprisingly, the Investigating Officer as per version of PW-1 the informant Ram Nath Singh, recovered two empty cartridges from the roof where deceased Lalita Singh was murdered, whereas, testimony of the Investigating Officer Anand Kumar Singh PW-10 in the case has come forth to the ambit that two cartridges alone were recovered from two different places/points on the ground one near temple and the other near house of informant. PW-1 states that the spot inspection was done by the Investigating Officer after 6-7 days whereas the Investigating Officer says that it was done on the day of occurrence, he inspected the spot and prepared a spot map at the instance of Swami Nath PW-2. Testimony of prosecution witnesses establishes that Swami Nath arrived at the spot only after 5-6 minutes of the occurrence and this testimony has been given by none other than the informant himself. Even the Investigating Officer was not informed about fact that Swami Nath, Nirdosh Singh or the informant himself witnessed the incident. During course of investigation, statement was given to the Investigating Officer regarding fact that murder of Lalita Singh was caused because of his wife's bad character. The very spot map shows that the dead body of deceased was lying 7 feet away from the eastern side of the roof of Ram Nath Singh, whereas, Ram Nath Singh in his statement says that the dead body was lying only 2 feet away from the eastern side of the roof. The very place on the ground from where Ram Nath Singh claims to have seen the occurrence will hardly give any visibility to the site of murder on the roof if the dead body will be placed at 7 feet distance from the eastern wall of the roof. The place 'G' has been marked in the site plan from where Ram Nath Singh allegedly saw the occurrence. False motive for committing offence was raised by propounding false theory of some altercation and hustle between the wives of Kanta Singh and Nirdosh Singh PW-3 (wife of deceased Lalita Singh) which led to entering into of some compromise between the parties which compromise was frowned upon by the accused persons and this is stated to be the motivating factor for committing murder of Lalita Singh. Charge under Arms Act fails only because of recovery of cylindrical bullet in the postmortem examination report which did not tally with the weapons allegedly used in the offence. Therefore, charge under Arms Act fails miserably. Even the cartridge which was allegedly recovered could not have been fired from gun but from rifle. Cylindrical bullet has not been send for forensic examination. Learned counsel adds that in fact licensed gun of the accused side was taken by the police and firing was done by it and story of recovery of cartridges was deliberately created which recovery is false. At the time of inquest, Swami Nath did not name any accused when he was inquest witness. Prime consideration is that the entry wounds on the dead body of Lalita Singh have been found to be of same measurement (7 mm.), therefore, these entry wounds of same measurements cannot be caused by firing from a distance like the distance indicated in this case. Even, during course of investigation, theory of firing 4 shots on the spot has not been made out. In this view of the matter, there is want of independent corroboration in the testimony of PW-1 the informant and PW-3 Nirdosh Singh. The so-called compromise (Exhibit Ka-3) does not bear sign of any police personnel that it was so entered at the police station. More so, it does not indicate any date as to when it was entered between the parties. Below the signature of so-called Laxman Singh and Nirdosh Singh, no date has been mentioned. Motive though not relevant in cases where eye account version is claimed but motive if imputed and suggested would carry relevance and weight as the motivating force behind the occurrence. Testimony of witnesses of fact is that of highly interested and partisan witnesses because both the witnesses of fact PW-1 Ram Nath- the father of the deceased and PW-3 Smt. Nirdosh- the wife of the deceased are naturally close relatives of the deceased. Their testimony needs to be examined carefully and their testimony is in complete contrast to the medical evidence, i.e. postmortem examination report which specifies that four gunshot wounds have been found on the body whereas ocular testimony confirms and restricts firing to three shots only at the time of occurrence. Accusation of murder has been deliberately made not only to save reputation of the family of Ram Nath but also consequential social stigma on his daughter-in-law Smt. Nirdosh Singh. Cumulative and wholesome study and scrutiny of testimony of both the witnesses of fact PW-1 and PW-3 leads one to believe that their testimony doesn't inspire confidence. The trial court misread the evidence and could not properly evaluate its proper evidentiary value and returned erroneous findings of conviction while parting with argument on merit, the learned counsel also engaged attention of the court to fact that one of the accused Sanjay Singh has been declared juvenile and was tried before the concerned Juvenile Justice Board whereupon he was convicted but on criminal appeal being preferred against aforesaid conviction as Criminal Appeal No. 29/2015 as juvenile (criminal) appeal whereupon the appeal was allowed vide order of Sessions Judge, Ghazipur dated 13.4.2016 passed in aforesaid appeal.

While restoring to aforesaid contention learned AGA Sri Saghir Ahmad assisted by Sri J.K. Upadhyay (AGA) and the counsel for complainant Sri Surendar Kumar have submitted that it is broad daylight murder and the murder was caused by indiscreet firing on deceased Lalita Singh after abuses were hurled. When the deceased came on his roof, he was closely followed by his wife Nirdosh Singh and his sister and the incident was witnessed by the informant also and there was no reason for falsely implicating the accused persons while sparing the real culprit. The motive behind the crime has been specifically proved and the same is paper no. Exhibit Ka-3 - the compromise deed- which was entered into between the parties which refers to some complaint being made by Nirdosh Singh on 28.5.2006 itself and it also refers in specific terms that the "compromise is being entered today" which today means 28.5.2006 and merely because no specific date has been endorsed on the compromise deed and perhaps below signature of the parties that alone would not raise any question mark on the execution and authenticity of the compromise deed. Ocular testimony of PW-1 and PW-3 Ram Nath and Nirdosh, respectively and that of Neeraj Singh PW-5 is clinching and consistent and proves not only the occurrence but also post-occurrence conduct of the assailants who made their escape in the visibility of Neeraj Singh PW-5 after committing the crime. Whatever minor contradictions appear in their testimony, the same are bound to occur because in all such cases where ghastly murder takes place, every witness cannot be expected to depose mechanically on the same line but some variation and some changes are bound to occur in their testimony. Whatever little contradictions surface in the testimony of witnesses of fact, that being of trivial nature does not hit at the root of the case. Theory of 4 shots has been propounded and may be that the witnesses were mentally confused when the incident took place and they heard sound of only three fires, but it does not mean that only three fires were shot at, but firing may exceed more than 3 in number as the assailants were 3 in number and they were possessing not only single-barrel gun but also double-barrel gun. Witnesses of fact have given natural description of the incident. Merely because they are relatives that alone would not be suffice to brush aside their testimony. The learned trial Judge has taken consistent view of the matter and has justly convicted the accused persons.

We have also considered the rival contentions and also considered the claim of the appellant. The moot point that arises for adjudication of this appeal relates to fact whether the occurrence was witnessed by the prosecution witnesses and they have proved the occurrence to have been committed by the accused persons beyond reasonable doubt?

In these aforementioned two appeals, the accused persons namely- accused in first set of appeal- Ram Ji Singh and Laxman Singh, both sons of Vishwanath Singh and the second set of appellants- Kanta Singh, s/o Vishwanath Singh and Anjani Singh s/o Ram Ji Singh have been variously charged under Sections 148, 302/149, 506 IPC, whereas, Laxman Singh, Kanta Singh and Anjani Singh have been separately charged under Section 27/30 of the Arms Act. Upon perusal of record, we notice that ten prosecution witnesses in all have been examined by the prosecution whereas three defence witnesses have also been examined on behalf of the defence. Admittedly, the testimony of Swami Nath Singh PW-2 who has been claimed by the prosecution to have been an eye-account witness has turned hostile. He has not supported the prosecution story even in the least. He has deposed that at the time of occurrence he was not present in the village and he did not witness the incident. With the leave of the trial court, the prosecution was permitted to cross-examine this witness wherein he has denied fact of any statement being given by him to the Investigating Officer. Therefore, at the initial stages, we may conveniently conclude that since the testimony of Swami Nath PW-2 does not support the prosecution case, reliance cannot be placed on his testimony. Now we are left with the testimony of the informant and the wife of deceased- Ram Nath Singh and Nirdosh Singh- who have been examined as PW-1 and PW-3, respectively. Apart from that, we have supporting testimony of Neeraj Singh PW-5. Their (PW-1 and PW-3) testimony will be read along with the testimony of PW-5 Neeraj Singh who is witness of particular fact that he saw the accused when they were in the very act of fleeing away from the village after he heard sound of firing. We also notice on careful perusal and scrutiny of testimony PW-5 that he happens to be relative of informant's son. Therefore, testimony of all the witnesses of fact PW-1, PW-3 and PW-5 has been castigated by the appellants as testimony of relative witnesses, therefore, a measure of caution is to be applied by us while scrutinising evidentiary value of their testimony.

Perusal of written report Exhibit Ka-1 reveals that allegations have been made against five persons including the present appellants that they, in prosecution of their common object, came on the roof of Paras Nath Singh, their uncle and extended vituperation on the deceased Lalita Singh and his family whereupon Lalita Singh took to the make-shift bamboo ladder and through it came on the roof whereupon Kanta Singh, Anjani Singh and one more accused bearing licensed guns in their hands, at the exhortation of Ram Ji Singh and Laxman Singh, fired on Lalita Singh due to which he sustained injury on his eye and head and fell down there. It has been stated that the incident was witnessed by Swami Nath Singh and various other persons of the village. The assailants secured their escape good after threatening. The informant along with his family members took his son Lalita Singh to the Mardah hospital where his son succumbed to the injuries. Obviously, the first information report does not indicate any motive, general or particular, for commission of the crime. It mentions name of Swami Nath and refers other villagers as the persons who witnessed the incident. FIR does not contain name of either the informant or reference of Nirdosh Singh being eye-witnesses of the occurrence. However, both the aforementioned persons have claimed themselves to have seen the occurrence, therefore, their testimony need be scrutinised cautiously by us. When we take wholesome view of the testimony of both these eye-witnesses (PW-1 and PW-3), we come across facts regarding the occurrence that previously some altercation took place between the wife of Kanta Singh and wife of deceased Lalita Singh (Nirdosh Singh), whereupon Lalita Singh and accused Kanta Singh, Laxman Singh and Ram Ji Singh went to the police station where Daroga Ji admonished the accused persons and the matter was settled by Daroga Ji on 28.5.2006 by way of compromise and the incident was caused the very next day on 29.5.2006 at 11:00 a.m. when the deceased Lalita Singh came back from police station Mardah and at that point of time PW-1 Ram Nath Singh was in his drawing room and PW-3 Smt. Nirdosh Singh as per her version was going to serve food to her husband and in the meanwhile when she was so busy, some noise was heard from the northern side roof of neighbourhood of Ram Nath. At this, Lalita Singh, the deceased cllimbed on the roof through the bamboo ladder and he was followed by his wife Nirdosh Singh and as soon as the deceased reached on the roof, Ram Ji Singh and Laxman Singh exhorted the other co-acccused Kanta Singh, Anjani Singh and one more accused person who were possessing licensed gun whereupon they shot 3 fires on the deceased which fire hit the deceased and the deceased fell on the ground after sustaining gunshot wounds. This is uniform version of both the witnesses of fact PW-1 and PW-3 - Ram Nath Singh and Nirdosh Singh about the occurrence. They have been questioned time and again in their cross-examination about the number of shots fired by the assailants whereupon they gave specific reply that only 3 shots were fired. Admittedly, three shots were fired from licensed gun of different SBBL and DBBL variants. But in the postmortem examination report Exhibit Ka-4, Dr. Vinay Kumar Srivastava who conducted autopsy of deceased Lalita Singh has found 4 specific gunshot wounds on the body of deceased. Wound no. 1 is firearm wound of entry just below right eye 7 mm. in diameter. Colour of abrasion present. On cutting, it has pierced the orbital fosa and anterior fontanalle of the skull and a cylindrical bullet 10 mm. X 8 mm. in diameter recovered and handed over to police constable. The rest three firearm wounds on different seats of injuries have been noted with exit wounds. Dr. Vinay Kumar Srivastava has specifically stated about recovery of one cylindrical bullet measuring 10mm. X 8 mm. in diameter, this by itself is indicative of fact that these injuries cannot be caused by using SBBL and DBBL guns. The doctor has also written all the four entry wounds measuring 7 mm. in diameter meaning thereby, that only one weapon may have been used for causing these four injuries. But the nature of the injury caused would not be attributed to the weapon under consideration (SBBL and DBBL guns). The cylindrical bullet recovered from injury no. 1 on the head just below right eye suggests that other bullets would have been of the same dimension because all the entry wounds are identical entry wounds in measurement. Here, a word of caution prevails upon us while we peruse ocular testimony of both the eye-witnesses PW-1 Ram Nath Singh and PW-3 Nirdosh Singh. Both the witnesses claim themselves to be the eye-witnesses and they have seen the occurrence. They stuck unflinchingly to the claim that only 3 shots were fired by the accused persons. But their testimony when compared with the ante-mortem injuries noted in the postmortem examination report, Exhibit Ka-4, by Dr. Vinay Kumar Srivastava on point of firing is in direct contrast to the medical testimony and fact of 4 gunshot wounds (found on cadaver of deceased). There is no whisper either in the testimonial account of the two witnesses or incling whatsoever from the circumstances of the case which may guide us to infer firing of 4 shots at the time of occurrence. Argument has been raised on behalf of the appellant that if the victim is face to face with the assailants who are firing with SBBL and DBBL gun at a distance of about 16-18 steps, then these injuries cannot normally be caused from that angle and direction alone but these injuries will be caused from different angles and different directions. Therefore, we entertain doubt on the testimony of the two witnesses of fact PW-1 and PW-3, respectively that they saw the occurrence or that they were present on the spot at the time of occurrence for reasons aforesaid. In this way, we would try to have some independent corroboration about testimonial examination as well as credibility of there two prosecution witnesses PW-1 and PW-3 and would have to evaluate testimony as a whole on point of occurrence qua attendant circumstances.

PW-1 has lodged the FIR but the entire report does not mention fact that the informant also witnessed the incident and similarly, the written report does not contain any description regarding fact that Nirdosh Singh, wife of deceased also witnessed the incident. We are conscious of fact that FIR is not an encyclopaedia and it cannot encompass in its ambit every detail of the incident. In this case we notice that FIR in its ending part specifically mentions name of Swami Nath and other villagers as the witnesses who saw the occurrence. In that backdrop of such specific description contained in the first information report relevancy of not naming these two prosecution witnesses PW-1 and PW-3 assumes even greater relevancy and it is beyond reason as to what prompted the informant to refrain from mentioning his own name and the name of his daughter-in-law Nirdosh as the person who also witnessed the occurrence. In this particular factual aspect and background of this case now we may discuss the ocular description of manner and style of incident that emerges from their testimony. PW-1 says that at the stage, prior to the incident, (prior to act of abusing) he was sitting in his drawing room. He came out of his drawing room when the accused persons started abusing and informant's son climbed upon the roof. In the meanwhile, Ram Ji Singh and Laxman Singh exhorted others to kill the deceased whereupon 3 accused persons opened fire from their SBBL and DBBL guns. The shots hit his son and the incident was witnessed by Swami Nath and other villagers who arrived on the spot. This witness took his son to Mardah Hospital by tempo where doctor declared him dead. It has been testified on page 20 of the paper book that the informant got scribed the written report with the scribe Gopal Sharan Singh in the Mardah hospital itself. It is surprising that in the entire chief, he has not specifically stated that he and his daughter-in-law along with Swami Nath Singh and others witnessed the incident. He merely says in his examination-in-chief that he heard abuses being extended when he came out of the drawing room and then at the exhortation of two accused persons the other three accused persons fired from their weapons. The point is that what compulsion was there or what legal predicament was there that he is unwilling to club himself and his daughter-in-law with Swami Nath and other villagers when specifically stating about fact that the occurrence was seen by such and such persons. This exclusion has adverse implications. The incident is alleged to have occurred at 11:00 a.m. We have already discussed the evidentiary value of testimony of Swami Nath- PW-2 - when he has not supported the prosecution case and has turned hostile. Complainant- PW-1 - has been suggested that there was some illicit relationship between his daughter-in-law Nirdosh Singh and one another person due to which the murder took place and the daughter-in-law even after the murder of her husband is living in Bombay (now Mumbai). At this stage, it would be relevant to consider Exhibit Ka-15 - the site plan which depicts the place of occurrence. It shows presence of informant at the place marked by letter 'G' and the place where the deceased was stated to have fallen after sustaining gunshot injury is marked by letter 'X'. The place 'X' has been stated to be 7 steps away from the eastern wall of the roof of house of Ram Nath Singh. Here, some glaring contradictions and anomaly emerges in the testimony of PW-1, who has testified in his cross-examination on page 27 of the paper book that his son was lying at a distance of 2 steps from the eastern wall ('Munder') of the roof. He was confronted with suggestion that the Investigating Officer has shown the place where his son fell after sustaining injury at a distance of 7 steps from the eastern wall and he was specifically asked to tell which one of the two distances is the correct answer whereupon this witness replied in clear-cut terms that he cannot say anything although he has accepted fact that deceased fell on the same place where shot hit him. Now, the point worth consideration is that if one looks from the place marked by letter 'G' in the site plan, then obviously the place marked by letter 'X' will hardly be visible and if one reduces the distance of place marked 'X' and restricts it to only two steps from eastern wall of roof, then possibility of visibility of the place from place marked by letter 'G' becomes normal i.e.- within sight. The statement of PW-1 regarding the position of his injured son after he sustained injury and he fell on the roof is in sheer contrast to the distance indicated by Investigating Officer in the site plan (Exhibit Ka-15). That is why, this witness appears to be improving and vacillating on material aspect and that way his testimony can be construed to be tainted with embellishment. Not only this, on the same page, he has been confronted by another suggestion that utensils were lying on the roof which were used by his son for taking meal. He has denied the suggestion by stating that his son did not take any meal on the roof if it was so found then that would be incorrect. He has further stated that Daroga Ji visited on the spot after 6-7 days of the incident whereas, PW-10 the Investigating Officer has testified that he visited the spot the very same day (the day of occurrence). Investigating Officer has stated in his examination-in-chief on page 56 that he reached on the spot where Swami Nath was present. He recorded his statement and at the instance of Swami Nath Singh, he inspected the spot and prepared the site plan which is Exhibit Ka-15. He has been confronted with the aforesaid testimony of PW-1 regarding fact that he visited the spot 6-7 days after the occurrence but the suggestion has been denied and it has been affirmed that he visited the spot on the day of occurrence. One more startling fact that emerges in testimony of PW-1 on the same page 27 of the paper book pertains to fact when he says that Daroga Ji recovered two cartridges from his roof when he visited the spot 6-7 days after the occurrence. At this stage, it would be relevant to take specific testimony of the Investigating Officer Anand Kumar Singh PW-10 on point of recovery of two cartridges and both the cartridges have been recovered by him from the ground. One such empty cartridge was recovered from in front of house of Ram Nath Singh lying near the northern wall of banana tree and the another empty cartridge was recovered in front of the temple located in front of street and both these places have been mentioned in the site plan by letters 'Y' and 'Z' and a memo of recovery was prepared which was signed by Gopal Sharan Singh and Ram Sharan Singh and which has been proved as Exhibit Ka-6. Now, the point is that either of the aforesaid witnesses is absolutely wrong because presence of cartridges on the roof of informant's house and recovery of the same after 6-7 days of the occurrence from the roof is certainly strange fact. Similary, nothing has come on record which may give credence to the theory or inference that the two empty cartridges were lying in front of house of first informant and in front of the temple from any other witness except the Investigating Officer. It is surprising that the cylindrical bullet which was recovered from the body of the deceased was not sent for forensic examination. This creates lot of doubt about the weapon used in the incident. Certainly, this cylindrical form of bullet cannot be expected to have been fired from the weapon in question. Therefore, allegation of firing from the SBBL and DBBL guns by the accused cannot be sustained by us in the face of the testimony and circumstances of this case. PW-1 himself suggests in his cross-examination on page 26 of the paper book that 5-6 minutes after the occurrence, Swami Nath arrived on the spot. It means even Swami Nath (PW-2) cannot be said to be an eye-witness of the occurrence. He (PW-1) has also stated on the same page 26 of the paper book that he did not dictate (in report) name of Nirdosh Singh and Kumari Mala as the persons who witnessed the incident. Then again we see no reason for not giving names of the aforesaid persons in the FIR when name of Swami Nath had been spelt by as witness of the occurrence. On the same page of paper book, he says that when the assailants made their escape good after 5 minutes, he climbed upon the roof when he saw first his son in fallen position on the roof and was in semiconscious state. Surprisingly, if Nirdosh Singh PW-3 as per her testimony had followed her husband when her husband went on to the roof and she claims to have seen the entire occurrence then where was she when PW-1 Ram Nath Singh arrived on the roof. Non-mention of any other person except the deceased in fallen position on the roof generates lot of doubt regarding physical presence of other persons and particularly presence of Nirdosh Singh PW-3 on the spot. Testimony has come forth from PW-1 that he had no sort of conversation, whatsoever, regarding the incident with Nirdosh Singh after the occurrence and till the time when he lodged the report by dictating it to Gopal Sharan Singh in the Mardah Hospital. Here, circumstance speaks louder than testimony of both PW-1 and PW-3 regarding actual presence and natural conduct of PW-1 Ram Nath Singh PW-3 Nirdosh Singh. Had Nirdosh Singh been present on the spot (on the roof), she must have described the entire incident she witnessed. But nothing of the sort has come forth. One interesting point also appears in the testimony of PW-10 (Investigating Officer Anand Kumar Singh) when he claims to have prior information of the incident which fact he testifies on page 56 (of paper book) of his examination-in-chief that he was telephonically informed that some firing incidence had taken place in village Harhari and thereafter he reached the village where he came to know that the firing took place at the house of Lalita Singh and the injured had been taken to the hospital by tempo. On this particular factual aspect, the Investigating Officer started searching for the accused and when he reached Mahachar temple, he received information about death of the injured and about fact that the agitated villagers have jammed road, therefore, police force was called and police force arrived on the spot. Then he instructed S.I. Chandrika Yadav to proceed for holding inquest of deceased at Mardah Hospital, therefore, it is obvious that prior to the lodging of the first information report intimation of the incident had somehow come to the knowledge of the police.

At this stage, we may switch over to the testimony of PW-3 Nirdosh Singh and to assess whether she is natural witness of the occurrence or not. Obviously, she too claims that it was around 10:30 a.m. or quarter to 11:00 a.m., her husband returned home and she was in her home, her husband asked her to serve meal and she was preparing for the same when she heard some abuses from northern side of her house. The abuses were being extended against her husband. Her husband discontinued eating meal and climbed upon the roof through a bamboo ladder. The accused persons Kanta Singh, Anjani Singh and one more accused person fired three shots on her husband which caused injury to her husband and in the meanwhile, her 'nanad ' (sister-in-law) Mala Singh also arrived on the roof. She has stated that after the shots hit her husband, she came near to her husband and screamed when she was threatened by the assailants and she says that after hearing her scream, her father-in-law Ram Nath Singh also arrived. The point is that PW-1 as per his testimony deposes that when he arrived on the spot, he first saw his son lying injured on the roof but he never stated that he also saw Nirdosh Singh or Mala Singh near his son Lalita Singh. This circumstance can be reasonably construed to explicit meaning that Nirdosh Singh PW-3 did not see the occurrence and she, too, is improving deliberately, obvious reason being that she also talks about three fires being shot on her husband. This is in complete contrast to the medical testimony (appearing in postmortem report) which refers 4 specific shots being caused to the deceased. Three gunshot wounds with exit wounds have been noted in the postmortem report whereas gunshot wound no. 1 below the eye on face was caused by cylindrical bullet which was recovered from the body. There are other contradictions appearing in the testimony of Nirdosh Singh but the greatest one being contradiction between testimony of 3 shots and disclosure of 4 shots on the dead body of deceased in the postmorten examination report creates lot of doubt regarding presence of Nirdosh Singh on the spot. PW-1 has also stated that the incident was witnessed by a number of nearby people, but no independent ocular testimony has been produced by the prosecution to give corroboration to the testimony of PW-1 and PW-3. She(PW-3) further states that some altercation had taken place whereupon some written complaint was given by her husband at the police station, in addition to making oral complaint, but no worthy copy of any written report has been placed on record. Similarly, her claim that some compromise deed was entered at the police station cannot be expected to be correct one for various reasons. One of the reasons being that it has not been certified by any police officer by putting his endorsement or seal of the police station when the same was said to have been entered between the concerned parties at the police station. It does not bear any date or refer any place as to where this compromise deed in the form of Exhibit Ka-3 was entered. Therefore, theory of some compromise being entered prior to the incident at the police station does not help the prosecution case and does not create proper motive for commission of the offence. One relevant aspect of the case is that Lalita Singh the deceased was always available to the accused persons at different places in the village, at the door of his house, in agricultural field (granary) and market then why the assailants will try to assault and kill the deceased in broad daylight at his home and will not kill him at convenient place. The testimony of availability of victim to the accused at aforesaid places has emerged in the testimony of PW-1 Ram Nath Singh himself on page no. 25 of the paper book. Testimony of PW-5 Neeraj Singh is also not inspiring confidence for the reason that he also heard sound of only three fires and he did not hear the sound of any fourth fire. He claims to have seen the assailants fleeing away from the street outside the village but he did not have any conversation regarding the same either with the informant or with Paras Nath or Ram Dev or Nirdosh Singh. This is most unnatural conduct that a person who saw the assailants flee away from the spot will keep silent and will not tell anything to the family members of the deceased. Record reveals that this witness is also a relative of the informant. Therefore, his testimony cannot be said to be reliable and the witness is not trustworthy and it appears that he has been brought only in to prove on fact of presence of accused persons near the spot at the time of occurrence. He has been suggested in the last line of his testimony emerging on page 46 (of the paper book) of his cross-examination that Nirdosh Singh is his 'mausi '(maternal aunt). We also notice that arrest of accused Kanta Singh and Anjani Singh on 1.6.2006 despite tip-off information being received prior to the arrest in time but no independent public witness was tried to make available and similar is the position with recovery of SBBL gun at the pointing out of Laxman. Here, there is no mention of fact regarding presence of independent witnesses to give authenticity to recovery memo- Exhibit Ka-17. We notice that no independent witness has been availed despite availability of opportunity for the same. Only this much has been written in the recovery memo that the ladies inhabiting in the house from where recovery was effected refused to be witnesses. This is an evasive and perfunctory manner of working by the Investigating Officer (PW-10) who did not adopt the procedure prescribed by law in letter and spirit, when the ladies of the house refused to be public witnesses. It is cardinal principle of criminal jurisprudence that the prosecution has to prove charge at least beyond reasonable doubt and it should be proved by and from clinching and uncontroverted circumstances or from innocuous testimony of the prosecution witnesses who saw the occurrence. Here in this case, both the circumstances and the testimony of witnesses of fact is weak and unreliable so as to give force to the fact that the prosecution has been able to prove charges beyond reasonable doubt against the accused persons.

We see glaring contradiction on point of 3 shots being fired on the spot. Theory of 3 shots fired during occurrence stands in direct opposition to the medical testimony that at least 4 shots were fired on the deceased. Swami Nath as per testimony of PW-1 arrived on the spot after 5-6 minutes. The exact place where the deceased fell down after sustaining gunshot wound has not been properly described by the informant. Presence of PW-3 on the roof at the time of occurrence for various reasons (discussed above) becomes doubtful. Mala Singh, the another so-called witness and sister of the deceased, though claimed to have seen the occurrence, has not been produced. Neeraj Singh PW-5 is also not trustworthy. He too talks of 3 fires being shot on the spot. Specific suggestion has been made by the defence that the occurrence took place in the night or early morning hours when deceased saw her wife Nirdosh Singh in compromising state with another person. This infuriated him and some altercation took place whereupon he was shot dead on the roof later on. Obviously, this suggestion has been denied by the witnesses but that suggestion carries force in view of specific testimony of the Investigating Officer appearing at the bottom of page no. 64 and in the first line of page 65 of the paper book. Specific suggestion has been given to the Investigating Officer(PW-10) that the son of Paras Nath Rama Shankar and his two adult sons had given him statement to the ambit that the incident of firing took place on the roof of Ram Nath because Nirdosh Singh was lady of easy virtue and in order to suppress this fact alone their statement was not made part of case diary. It is admitted position that statement of Paras Nath Singh from whose roof-top firing was caused has not been recorded and no cartridges recovered from his roof and no family member of Paras Nath was ever examined by the Investigating Officer. It has also emerged in the testimony of PW-3 and it is admitted fact when Nirdosh Singh PW-3 says that she does not carry out any business nor does she earns money in Bombay, still she is living in Bombay. In this way, one can well understand the implications inherent without any further description. She has been constantly confronted with suggestion that she is having illicit relationship and in order to sustain and continue that relationship she lives in Bombay. Even the Investigating Officer has testified that during course of investigation, he came to know that indiscreet firing took place in the village. Theory of 3 shot alone would not give any strength to the testimony of prosecution witnesses of fact. Their creditworthiness is shaken for aforesaid various reasons and they are not worthy of credit and there is no independent corroboration which by way of caution is very much required in the facts and circumstances of this case. No doubt independent corroboration in missing in this case.

The aforesaid aspect, factual and testimonial was not properly weighed and evaluated by the trial court and it misread the evidence and circumstances of the case and recorded erroneously conviction against the accused persons. Therefore, judgment and order of conviction dated 20.10.2010 passed by Additional Sessions Judge, Fast Track Court No. 3, Ghazipur in Sessions Trial No. 356/2006 under Section 302/149 IPC arising out of Case Crime No. 516/2006 under Sections 302/149, 506 IPC, 27/30 Arms Act, P.S. Mardah, District Ghazipur, is set aside. All the appellants in the aforesaid two appeals are exonerated of all charges.

In this case, Anjani Singh is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case.

Appellants Ram Ji Singh and Laxman Singh are on bail in this case. They need not surrender. However, all the appellants shall ensure compliance of Section 437-A Cr.P.C.

Consequently, the appeals succeed and the same are allowed.

Order Date: 14.12.2016

Ishan Batabyal