Raghunath & Others vs State Of U.P.
2018 Latest Caselaw 657 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. -5
 

 
Case :- CRIMINAL APPEAL No. - 1176 of 1983
 
Appellant :- Raghunath & another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.N. Msihra,Dr.Arun Kumar Srivastava,Jitendra Singh,Ved Prakash Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

1. The appellants Raghunath Singh @ Jagdish Singh and Shanker Singh, who stand convicted for offence punishable under Section 302/34 I.P.C. and each of them were sentenced to undergo imprisonment for life by order dated 29.4.1983 passed by the learned Additional Sessions Judge, Shahjahanpur, challenged the correctness of conviction and sentence.

2. Brief facts as per prosecution version are that on 16.11.1982 at 00.00.05 hours (12.05 a.m.) in the night, P.W.1 Prakash Singh, who is the first informant, made an oral complaint at Police Station Khudaganj, District Shahjahanpur regarding murder of his younger brother Dhan Pal Singh. He named two persons of the village, namely, Raghu Nath Singh @ Jagdish Singh and Shanker Singh as assailants for commission of the said offence.

3. In complaint, it was stated that Raghunath Singh, Mahendra Singh Thakur and Shanker Singh, who were intimate friends and resident of his village, gambled on 14.11.1982, i.e., one day before the date of incident in which they lost huge money. In the evening of fateful day, when accused Raghunath Singh and Shanker Singh were passing by the side of patios (chaupal) of the first informant, his younger brother Dhan Pal Singh passed a comment on them saying that it was rumoured that they have celebrated their Diwali in a big way. Upon this, the accused appellants reacted angrily and hurled abuses to Dhanpal and while going away they retorted that it was none of his business to mock them. They threatened that they will teach him a lesson very shortly. It is stated that thereafter the first informant and Dhan Pal went to their fields to oversee their paddy crops towards western side of the villge. They were carrying torch and lathi. When they were returning therefrom they met Ram Singh and Narendra singh on the way, who also accompanied them. Dhan Pal was moving some paces ahead from them. At about 10 p.m. in the night when they reached near the pakad tree in the abadi, they saw that Raghunath Singh @ Jagdish Singh armed with single barrel licensed gun and Shanker Singh armed with double barrel licensed gun came to Dhan Pal saying that they will teach him a lesson for cutting joke. On this as soon as, Dhan Pal turned to run away, these accused opened fire from their respective guns as a result of which Dhan Pal fell down before 5-6 paces in south of pakad tree. Seeing this incident, the complainant and other two accompanied persons raised alarm, the accused persons with their guns fled away to the north direction. It is stated that on account of fear, they had not followed the accused persons, they found Dhan Pal Singh critically injured, who after sometime succumbed to his injuries. Thereafter, the complainant accompanied with Jai Ram Singh of the same village went to the police station to lodge F.I.R.

4. On the basis of the oral complaint, an F.I.R. was drawn up and chik report (Ext. Ka-11) was prepared, which was signed by P.W.4 S.O. Jagdish Singh Chauhan.

5. Investigation of the case was entrusted to P.W.4. who reached on the scene of occurrence in the morning at 6.30 a.m. on 16.11.1982. He found the dead body of deceased Dhan Pal on the spot. He appointed five persons as witness of the inquest and prepared inquest report (Ext. Ka-2). He prepared diagram of dead body, police form 13 and report for holding post mortem examination which were marked as Exts. Ka-3, Ka-4 & Ka-5. He also prepared another report (Ext. Ka-6) with a request to the Medical Officer to take into possession the clothes of the deceased and sent them to the police station. The Investigation Officer got the dead body sealed and prepared sample seal (Ext. Ka-7). He made report (Ext. Ka-8) to the Reserve Inspector along with police form 33 (Ext. Ka-9) to send dead body to mortuary. Thereafter, he sent dead body of the deceased through constables Sartaj Ahmad (P.W.5) and Mahavir Singh to the mortuary at Shahjahanpur.

6. On the very same day, the Investigating Officer recorded statements of witnesses Ram Singh and Narendra Singh under Section 161 Cr.P.C. He inspected the site of occurrence and prepared site plan (Ext. Ka-10). He seized bloodstained as well as plain earth, one lathi and one torch from the place of occurrence and prepared memo (Ext. Ka-11). He also inspected torches and lathis of the witnesses and thereafter returned the same to them. Torches of the witnesses were found in working condition. He prepared a memo in this behalf, which was marked as Ext. Ka-12. On the very same day, Investigating Officer raided the houses of the accused but they were not found. He prepared memo in this regard which was marked as Ext. Ka-13.

7. After completion of the Investigation, charge sheet was submitted against the appellants on 25.1.1983 (Ext. Ka-15). The Magistrate committed the matter for trial.

8. In order to bring home the charge, the prosecution examined as many as six witnesses out of whom P.W.1 Prakash Singh (real brother of the deceased), P.W.2 Ram Singh and P.W.3 Narendra Singh (both are cousin of the deceased) were coming out as eye witnesses, and P.W.4 S.I. Jagdish Singh Chauhan, Investigating Officer of the case; P.W5. Constable Sartaj Ahmad and P.W.6 Dr. Satya Pal, who held post mortem of the dead body of the deceased, have offerred formal evidence.

9. Statements of the accused persons were recorded under Section 313 Cr.P.C wherein they denied the allegation of committing murder of the deceased and stated that they have been falsely implicated due to the village politics. The appellant no. 2 has stated that he had contested election of Pradhan of Gaon Sabha and due to the said fact, he has been falsely implicated in the present case. Hence, the accused persons pleaded not guilty and claimed trial.

10. By the impugned order the learned Trial Judge held both the accused persons guilty of offence under Section 302/34 I.P.C and sentenced them to undergo life imprisonment as mentioned in the opening paragraph of this Judgment.

11. There is no independent witness of the incident. Hence, the statements of P.W.1, P.W.2 and P.W.3 need to be examined carefully as they are related to the deceased.

12. P.W.1 is Prakash Singh is an eye witness of both the incidents- one that took place at about 5 p.m on 15.11.1982 and the other which took place at about 8.30 p.m. on the very same day. Regarding the first incident this witness stated that at about 5 p.m. when they were sitting at their patios (chaupal), accused Raghunath and Shanker passed nearby. The deceased Dhan Pal passed a comment on them saying that they had celebrated their Diwali very well, which the accused persons took to be sarcastic and reacted by hurling abuses on the deceased stating that they had lost their money which did not belong to his father and further threatened that for this remark they would teach him a lesson very shortly. It is stated by this witness that he intervened and pacified them.

13. After about one and half hour, he along with deceased Dhanpal having torches and lathis in their hands went to oversee their paddy crop where they remained for about two hours (about 8 - 8.30 p.m.) and then they started returning for their home. On the way, they met Narendra Singh and Ram Singh, who were also having torches and lathis in their hands. Dhan Pal was moving ahead of them. Accused Raghunath armed with single barrel gun and Shanker armed with double barrel gun came to deceased from north direction. When deceased focused his torch towards that direction, Raghunath fired shot which hit him on left side of chest. When deceased turned to south, Shanker fired shot which hit on his back. Deceased tried to move away but after 5-6 paces, he fell down towards south-east direction of pakad tree and succumbed to his injuries. Seeing this incident in torch light, P.W.1 and other persons raised hue and cry and chided the accused person upon which the accused ran towards north direction. P.W. 1 further stated that he went to the Police Station Khudaganj to lodge the F.I.R. in the very same night and his F.I.R. was registered on his oral complaint (Ext. Ka-1). He has proved the same in the court below.

14. In his cross-examination P.W. 1 stated that P.W. 2 Ram Singh and P.W. 3 Narendra Singh are his cousins. He has also admitted that he along with Narendra (P.W.3) and Girish had faced criminal trial in a case of elopement of girl of one Ram Lal in which they were convicted. They filed appeal against their conviction in which they were acquitted by the sessions court. He further stated that deceased Dhan Pal faced a trial under Sections 420, 468, 411 in which he was acquitted. One more case of dacoity was also lodged against deceased Dhan Pal with the Bareilly police and he was sent behind the bars for about one month but on account of his non-identification, he was acquitted.

15. P.W.1 further stated that in a case of murder of one Babu Ram of the same village , Satya Pal, Ajay Pal, Jag Pal and Ram Ratan were accused but he did not know as to whether Dhan Pal and Narendra were prosecution witness in that case or not. This witness further deposed in cross-examination that deceased had licensed gun which at the time of incident was at his home. Elder son of deceased Dhan Pal had committed suicide.

16. P.W. 1 further stated that he did not know whether the accused Raghunath had got widow of the deceased's son remarried. In his cross-examination, P.W. 1 given account of last election of gram pradhan in which one Virpal Singh won. Pradhan Virpal Singh supported the accused persons in the election of membership of gram panchayat but he did not know whether they won or lost the election.

17. P.W.1 further deposed in cross-examination that the incident had taken place on the day of Diwali and they had lit earthen lamps one and half hour before the incident. Deceased Dhan Pal lived in a different house which was 50-60 paces away from the house of P.W.1. It was also stated that farming of the deceased was separate but chaupal of both the persons were one which was 50-60 paces away from the house of P.W. 1 towards north. He emphasized that both the accused persons had opened fire from a distance of about 3 paces. Accused Raghunath had opened fire first and then Shanker had shot the fire.

18. P.W.2 Ram Singh stated that at about 10 p.m. on the date of incident, when he was returning from his fields he met deceased Dhan Pal and his brother Prakash and after covering some distance also met with Narendra. All of them were having lathis and torches in their hands. It is stated that when they reached near the pakad tree, Shanker armed with double barrel gun and Raghunath @ Jagdish armed with single barrel gun came from north direction and saying Dhan Pal to take a lesson, Raghunath opened fire which hit on his chest and when Dhan Pal was to run after taking a turn, Shanker opened fire which hit on his back as result of which Dhan Pal rushed only two paces and fell on the ground towards south of pakad tree. He further stated that they saw the incident in the light of their torches and Shanker had fired shots indiscriminately.

19. P.W.2 in his cross-examination, stated that he had gone to his fields at about 8 or 8.15 p.m. where paddy crop was standing. Nilgai (blue antelope) damages the crop, therefore, farmers go to their fields to drive them off therefrom in the night. He stated that on the day of incident, he remained at his fields for 1 ½ to 2 hours and his fields were about 300 paces away from the place of occurrence. On the way, he met with the deceased and complainant Prakash about 200 paces towards west before the place of occurrence and no other person was present near the place of occurrence. He further stated that near the place of occurrence, there are houses of Ram Nath, Prem Pal and Ganga Ram. He stated that after incident took place, he remained thereat till 4 a.m. and when the Investigating Officer accompanied with two constables came on the spot only then he left for his home. He also deposed regarding manner of assault. He stated that Shanker had fired two shots simultaneously from his double barrel gun. When Raghunath fired shot, the deceased was in south of gher of one Subedar and at the time of firing, Raghunath and Shanker both were stated to be standing on the intersection of two lanes that was 8 paces away from the root of pakad tree. This witness further stated that when he reached his fields, deceased Dhanpal and Prakash (P.W.1) were present there and Narendra (P.W.3) was also present on his fields.

20. P.W.3. Narendra Singh deposed that he was present at the time of occurrence of the incident. In his examination-in-chief, he reiterated statements of P.W.1 and P.W.2 almost verbatim. In his cross-examination, he stated that he had faced the trial of a case for eloping the girl of one Ram Lal in which he was acquitted. He further stated that for the last two years, he had become a saint (sadhu). On the day of incident, he had gone to his fields at about 7.45 p.m. Ram Singh, Dhanpal and Prakash had reached their fields after him. He remained at his fields for about quarter to two hours but he did not talk with them on their fields. He stated that he heard sound of two gun shots fired by Shanker. When Shanker had fired, deceased was to the north direction of the pakad tree. He stated that Raghunath had fired from 2-3 paces away from the root of pakad tree and the deceased had fallen down after moving 2-3 paces.

21. P.W.4. SO Jagdish Singh Chauhan is a formal witness. He in his statement has given details of the inquest and other entry in the General Diary. In his cross-examination, he has stated that entries pertaining to date 16.11.1982 run from page 51 to 56 of the General Diary. On page 51 thereof, from serial no. 1 to 5, all entries have been made by pencil. On 16.11.1982, no cognizable offence was registered. On the very same day at 12.30 p.m., a non-cognizable offence was registered. He has deposed that he made an effort to recover the licensed gun of the accused but could not succeed. He stated that on the place of occurrence, no tikali was found. He also did not find any mark of pellets on the pakad tree.

22. P.W. 5. is constable Sartaj Ahmad. He has stated that when first informant came to the police station he was alone. The corpse of the deceased was lying near pakad tree and there was a hut near the pakad tree towards north.

23. P.W.6 is Dr. Satya Pal who conducted the autopsy on the body of deceased on 17.11.1982 and prepared post mortem report (Ext. Ka-16). He found that the rigor mortis was passing off from upper extremities and was present in lower extremities of the body. On the person of the deceased following antemortem injuries were found:-

1. Gunshot wound of entry round 2cms diameter x chest cavity deep over midline of back at T9 spine directed anterior outward horizontally towards.

2. Six gunshot wounds of exit over right lateral chest wall in area of 7cmx 6cm, .10 cms below axilla, wadding pieces removes from beneath the skin of same area. Each wound measuring 0.8. cm diameter. Blackening in area of 4cms diameter around injury no.1.

3. Gunshot wound entry 2cms diameter round on the left inter scapular region, 2cms medical to superio medial angle left scapula with blackening in area of 4 cms diameter around it, directed anteriorily and connected to,

4. Six gunshot wounds of exit in area of 7cm x 7cm over and above middle third left clavicle, each 0.8cm diameter with wadding pieces recovered from beneath the skin.

5. Gunshot wound of entry oval 2.5cmx 2cmx trunk cavity deep over left ant. Chest wall, 5cms from and at 1 O'clock in relation to left nipple with blackening around the wound in 4cms diameter area, directed posteriorly, inferiorly and medically.

Internal Examination:- 6th and 7th right ribs beneath injury no.2 and 3rd and 4th left ribs under injury no.5 were broken. Left pleural cavity contained 400 ml. Blood. Left and right lungs were lacerated and collapsed. Left lung was lacerated and collapsed. There was found wadding pieces. Right lung was also lacerated and collapsed. Heart and membranes were punctured at many places. Diaphragm to the left was lacerated and punctured. The stomack was lacerated and contained 150ml. Semi digested food material. Left lobe of lever was lacerated. Abdominal cavity contained 300 ml. blood.

In the opinion of the doctor, ante mortem injuries sustained by deceased were sufficient to cause death in ordinary course of nature. The deceased could have died of the injuries about 10p.m. On 15.11.1982. The injuries 1,3 & 5 appeared to have been caused by separate shots.

24. In his cross-examination, P.W.6 stated that there was 7-8 inch gap between injury nos.1 & 3 which would have been caused from behind and left side. Deceased appeared to have taken meal 2-3 hours before the incident. Injury no.3 appeared to have been caused from back to front. The accused who inflicted injury no.5 would have been in front of the deceased and the barrel of the gun would have been a little up from the level of mark of injury. Deceased and accused both would have been in standing position. The death of the deceased was opined to have occurred possibly at about 1200 hours on 15.11.1982. The death of the deceased would have occurred instantaneously. Blood would have oozed out in large quantity from the injuries so caused.

25. We have heard Dr. Arun Kumar Srivastava, learned counsel for the appellants and learned A.G.A. for the State.

26. Learned counsel for the appellants submitted that the Investigating Officer has inserted the statements of the alleged witnesses in the case diary after conducting the panchnama and perusing the injury on the chest of the deceased. It is submitted that in the F.I.R., the first informant has stated that both the appellants had fired shots at the back of deceased Dhan Pal but during the proceedings of inquest, the Investigating Officer found that there was an injury on the left side of the chest. Hence, he had recorded statements of the witnesses under Section 161 on the parcha of case diary bearing different number. He submitted that there is no provision in the U.P. Police Regulations to record statement of witnesses in triplicate case diary. In support of his submission, he has placed reliance on para 104 to 112 of Chapter XI of the U.P. Police Regulation. He has also pointed out contradiction in the ocular evidence regarding injuries of the deceased. He has pointed out that P.W. 1 has stated that they set out to their field at about 6.30 p.m. and remained at their fields for two hours and, thereafter, when they were returning their home i.e., at about 8.30 p.m., the said incident took place on the way while in the F.I.R., P.W.1 has specifically stated that the incident had taken place about about 10 p.m. in the night. The similar contradiction is also found in the statements of P.W. 2 and P.W. 3 regarding time of incident.

27. Learned counsel for the appellants further stated that in the post mortem report semi digestion food has been found which indicates that the statement of the P.W. 1 and P.W. 2 was incorrect that they had not taken their meal.

28. It was further submitted by the learned counsel for the appellants that the deceased had criminal history and he was murdered by unknown persons and the accused-appellants due to rivalry in local election of village panchayat have been falsely implicated in the present case due to mala fide reasons and false motive behind the crime, i.e., teaching a lesson to the deceased for passing sarcastic remark has been attributed to them. Learned counsel for the appellants lastly submitted that the motive mentioned in the F.I.R. and also in the deposition of the witnesses of fact is an afterthought and has been assigned only to give colour to the case.

29. Learned A.G.A. submitted that statements of the witnesses are consistent and they fully corroborate the prosecution case. Their statements cannot be discarded on the basis of some minor contradictions.

30. We have considered the submission of learned counsel for the parties and perused the record.

31. The motive attributed for the murder is a sarcastic remarks made by the deceased. It is alleged that on 14.5.1982, i.e., on day before the incident, the accused-appellants had lost money in gamble and when they were passing by the side of the patios (chaupal) of the complainant, the deceased had made a sarcastic remark, which, according to the prosecution, irritated the accused appellants who reacted and hurled abuses and went away threatening dire consequence. After said incident, deceased Dhan Pal and first informant (P.W.1), who is his brother, left for this field.

32. P.W.1, who is the first informant and the real brother of the deceased, witnessed the wordy altercation which took place in the evening of the fateful day at about 5 p.m. on 15.11.1982. It is stated that he along with deceased Dhan Pal had left the place to their fields of paddy crop after about one and half hour of the said altercation.

33. We propose to deal with the evidence regarding the manner of assault on the deceased and nature of injuries sustained by him. In the F.I.R., P.W.1 has stated that both the shots were fired at the deceased from behind, which hit the deceased on his back and he fell down near pakad tree. In his examination-in-chief, P.W. 1 deposed that the first shot was fired at by Raghunath from a distance 2-3 paces. In paragraph 18 of his statement made in cross-examination, P.W.1 has tried to justify his version in the F.I.R. reiterating the fact that both the assailants had fired at his back but, with the same breath, he has stated that the fire shot by Raghunath hit the deceased on his chest and the shot fired by Shanker hit him on his back. This statement is self- contradictory. During the conduct of inquest on the person of the deceased, it was found that there was injury in the chest. Thus, we find that the submission made by the learned counsel for the appellants has force that prosecution has changed its version.

34. This fact also finds support from the statement of the Investigating Officer that at page no. 51 from serial nos. 1 to 5, entries in the General Diary were made with pencil. In ordinary course, the entries in the G.D. diary are not made by pencil. It is also admitted in the cross-examination that at page 52 entries at serial nos. 3, 4 & 5, had been repeated, which were cancelled later on.

35. Learned counsel for the appellants has also emphasized that statements of the witnesses under Section 161 Cr.P.C. were written on parcha of case diary bearing different numbers. He has drawn our attention to Chapter XI para 104 to 112 of the U.P. Police Regulation, which deals with the entries in the case diary. Para 109 therein provides that the case diary must contain particulars required by Section 172 of the Code of Criminal Procedure, 1973 in sufficient detail and if there are variations in the statement of the complainant from the first information report and the substance of supplementary statement, the same should be recorded. But, no attempt has been made to confront P.W.1, while recording his statement under Section 161 Cr.P.C., regarding variation of the version made in the F.I.R.

36. Post mortem report and the evidence of the doctor, who has conducted the autopsy, also do not corroborate the evidence of the prosecution witnesses. The post mortem report shows that six gun shot wounds of exit were found over right lateral chest wall in area of 7cm x 6cm, .10 cms below axilla, wadding pieces were from beneath the skin of the same area. Blackening in area of 4 cms diameter was found around injury no. 1. Injury No. 3 also shows blackening in the area of 4 cms diameter around it. Injury no. 5 also shows that blackening in the area of 4 cms diamer was found.

37. In Pankaj Vs. State of Rajasthan, (2016) 16 SCC 192, the Supreme Court has referred to Modi's Jurisprudence (24th Edition) regarding range of firing and its effect, it was held thus:-

"In this fact situation, it is imperative to quote the "Phenomena observed in Firearm Injuries or Short Holes on Clothing", from Modi's Jurisprudence (24th Edn.) which is as under:

 
 		Phenomena Range and Remarks							
 
	1.	Flame/burning scorching/singeing Revolver/pistols-within 		about 5-8 cm generally. Rifles-within about 15-20 cm 			generally. Shotguns-may show evidence of scorching up to 		30-10 c.m.
 
	2.	Smoke/powder marks Rifles generally up to about 30 cm 		(blackening) and about 100 cm (powder residues). 			Handguns up to about 60 cm. 
 
	3.	Tattoing Handguns up to about 60 cm. Rifles up to 75 cm 		generally. Shotguns up to 100-300 m (may be found after 		careful search at higher range)."
 

38. In the present case, P.W.1 has stated that first shot by Raghunath was from from 2-3 paces (about 6 feet). Thus, applying the aforesaid principle, from this range of gun-shot, blackening will not appear around the injury. In the present case, even wadding have been found from the injuries. P.W. 2, who also claims to be an eye witness, has stated that at the time when Raghunath fired, he was in lane and distance between him and deceased was 8 paces. P.W. 3 has stated that Raghunath had fired shot from distance of 2-3 paces standing near the root of the 'pakad tree'. Thus there are discrepancies in the statements of all the prosecution witnesses regarding manner of assault as well as distance of deceased and the assailants while shots were fired.

39. It is trite law that minor discrepancies or improvements, which do not materially affect the case of the prosecution and are insignificant, cannot be ground for doubting the case of prosecution in triable matters but if the medical evidence makes ocular testimony improbable, the ocular evidence may be disbelieved. In the present case, the blackening was found around some injuries mentioned above. No eye witness has stated that the fire was made from close range. There is variation in the statements of P.W.1 and P.W. 2 regarding distance from which accused-appellant shot the deceased. Even if the statement of P.W. 1 is accepted that fire was made from 4-5 paces, blackening cannot be found as per the Modi's Jurisprudence (24th Edn.) The presence of the wadding in body of the deceased clearly establishes the fact that the fire was made from very close range. Hence, prosecution has failed to explain gun shot injury sustained by the deceased. In the present case, ocular evidence can be disbelieved n the light of the medical evidence. We may usefully refer to a discuss on the issue by the Supreme Court in Mahavir Singh Vs. State of M.P., (2016) 10 SCC 220, has observed as under:-

"22. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."

40. In view of the foregoing reasons, we are of the considered view that presence of the witnesses on the spot where dead body was found is doubtful. No plausible reason has been offered by the prosecution regarding nature of injuries and presence of blackening and wadding found in the injuries. It was the duty of the prosecution to explain the injuries. The injury found on the chest of the deceased has not been properly explained by the prosecution. It is clear from the evidence of P.W. 1 that the witnesses, who are interested witnesses, made an attempt to implicate the appellants in the case.

41. It is need to be emphasized that these eye witnesses are of the same family and collaterals. The P.W. 1 is real brother of the deceased. The P.W.2 Ram Singh is cousin brother. The P.W.3 Narendra is also grandson of brother of deceased's grandfather. This fact is stated by P.W. 1 in paragraph 6 of his deposition (cross-examination).

42. He has further deposed in para 9 of the statement that uncle of P.W.3 Natthu Singh had contested the election of Pradhan of village but lost to Veer Pal Singh. The accused-appellant had also contested the election for membership of Gram Sabha.

43. It is worth noticing that accused-appellant Raghu Nath Singh in his statement under Section 313 has clearly stated that all the eye witnesses are clearly stated that all the eye witnesses are party members of Nathu Singh, who was defeated by Veer Pal Singh, for the office of Gram Pradhan whom they have supported. Similar statement was made by appellant Shankar Singh, who had also contested the election for membership of Gram Sabha.

44. It has also come in the evidence of P.W.1 that both the parties were involved in criminal cases and they were witnesses against each other.

45. P.W. 1 in his cross-examination has admitted that he and P.W.3 Narendra were convicted in 1979 in a case of elopement of a girl of same village. But they were acquitted in appeal.

46. He has further deposed that deceased Dhan Pal had faced a trial under Sections 420, 468, 411. The deceased was also charge-sheeted in a dacoity case and was in jail for some time but on technical ground, he was acquitted. In his cross-examination, he has given an evasive reply in respect of fact that P.W.3 Narendra was a witness in a murder case of a resident of the village.

47. It has also come in his evidence that deceased's young widowed daughter-in-law was remarried with the help of appellant Raghu Nath. This was also one of the reasons that complainant was nursing grudges against the accused appellants.

48. The learned counsel for the appellants have laid immense emphasis that all the eye witnesses are partisan and interested witnesses. In fact none of them were present on the scene of occurrence.

49. We tried that the evidence of P.W. 1, P.W. 2 and P.W. 3 cannot be discredited only on the ground that they belong to same family. When a family member or relative's evidence can be relied depend on fact of each case. Where it is a member of family or friend who rush to the injured/deceased for his rescue or he receives some injury, his presence on the scene cannot be doubted. In some cases family members are natural witnesses if their statement is credible, reliable and trustworthy and corroborated by other witnesses.

50. In S. Sudershan Reddy Vs. State of A.P. (2006) 10 SCC 168, Supreme Court rejected the submission regarding interestedness of witness who was family member. But it was held that in case of false implication there must be strong foundation. The Court observed thus:-

"12. We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

13. In Dalip Singh v. State of Punjab it has been laid down as under: (SCR p. 152)

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

51. In K.A. Kotrappa Reddy and another Vs. Rayara manjunatha Reddy alias N.R. Manjunatha and others, (2016) 14 SCC 729 the Supreme Court made following observations:-

"8. The second issue, which is of paramount consideration, is the testimony of the eyewitnesses. PW 1, PW 2, PW 5, PW 10 and PW 11 are the five eyewitnesses, out of which PW1 and PW5 are injured witnesses. All the five witnesses are either related or the party members of the deceased, hence they are partisan or interested witnesses. Merely because they are interested witnesses their evidence cannot be discredited. However, in our view, it appears that the evidences of each of these eyewitnesses are doubtful and require careful scrutiny. It is also pertinent to note that the incident in the present case occurred in broad daylight in the afternoon and there were a number of neighbours in and around the scene of the incident. But the prosecution has failed to examine any independent witness which casts a doubt on its genuineness. The High Court has scrutinised at length the statements of individual eyewitnesses and has rightly discredited their testimonies. PW 1 and PW 2 are closely related with the deceased and are thus interested parties. It has been proved that there has been a series of litigation, both civil and criminal, on each side."

52. In view of the aforesaid enunciation of law, we find that there is enough material on record to indicate that there was animosity between parties as they had contested in local election. There were several criminal cases against complainant and deceased. In some cases, they were convicted and later on acquitted in appeal. The statements of eye witnesses are not corroborated by independent witness. As noted, the incident occurred in abadi where there were large number of houses on both the sides of lane.

53. It is significant to mention that both the appellants were said to be armed with their licensed gun. Both the guns were not recovered, hence, same could not be sent for forensic examination. There is no material on record to indicate that any serious effort was made by the police to recover their guns and further no steps were taken by the police authorities to cancel their licence. The Investigating Officer has stated that he could not find any empty cartridge from the spot. Thus, it could not be established that pellets found in the body of the deceased were fired from the accused appellants' gun.

54. In Sadananda Mondal Vs. State of West Bengal, (2013) 15 SCC 293., the Supreme Court held that non recovery of the weapons used in the incident is a serious flaw in the prosecution case. Relevant part of the order reads as under:-

"15. Admittedly, there was no recovery of the alleged weapon used in the incident. The pellet alleged to have emanated from the gun was also not got recovered and no attempt was even made to recover the same. It is also not known whether the pellet so fired was from the same weapon..."

55. We find that the evidence of the P.W. 1 does not inspire confidence. There are material contradiction in his statement. In the F.I.R. he has mentioned that Raghunath had fired on the back of the deceased which is not corroborated for post mortem report. His statement in the Court is in conflict with the version of the F.I.R. The Supreme Court in the case of Dr. Sunil Kumar Sambhudayal Gupta and others Vs. State of Maharashtra, 2010 (13) SCC 657, has held that the discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence and in such cases it cannot be held that the prosecution proved it case beyond reasonable doubt. The similar view has been taken by the Supreme Court in the case of Mahendra Pratap Singh Vs. State of Uttar Pradesh, 2009 (11) SCC 334.

56. In addition to above, the presence of P.Ws. 1 to 3 on the place of occurrence, as has come in their statements, does not corroborate with the version of the F.I.R. As noticed above, P.W.1 has stated that he had left for his field at about 6.30 p.m. P.W. 2 has stated that he left for his field at about 8 to 8.15 p.m. and when he reached his fields, deceased Dhan Pal, Prakash and Narendra were already present on their fields. P.W.3 has stated that he had reached his fields at about 7.45 p.m. and thereafter Ram Singh, Dhan Pal and Prakash reached there. Whereas according to the statement of P.W.1, he and deceased Dhan Pal had reached their fields at about 6.30 p.m. and had returned therefrom at about 8.30 p.m. within two hours. Thus, statement of the P.W. 1 does not find support either from the time mentioned in the F.I.R. or from the statement of P.W. 3 Ram Singh who claims to be present on the spot at the time of occurrence. P.W. 2 has also stated that after looking after his fields he talked with deceased Dhan Pal and Prakash. All the three witnesses have stated that they went the field in late evening/night to protect their crop from blue antelope (Nil gai) or wild animals. If that was so, why no other farmers were present at their field to protect that crop. Only these three witnesses were present there. This also raises reasonable doubt regarding their presence on the scene of occurrence. The witness P.W. 1 has clearly said that except them no one was present there. Pertinently, the P.W. 1 is first informant and brother of the deceased. His statement does not corroborate the time mentioned in F.I.R. and the statements of the P.W.2 and P.W.3 for the reasons mentioned above.

57. From the statement of the witnesses of fact, it is evident that the lane, which runs from waste to east, is 3-4 yards wide and the sketch map also indicates that several house are situated by the sides of this lane. The eye witnesses have stated that there is abadi near the place of occurrence. P.W. 4 has stated that there is also a hut near the pakad tree. But, no independent witnesses has been produced by the prosecution side, who had seen the incident or heard noise of gun-shot. Further the incident had taken place on the day of Diwali festival so it cannot be assumed that when the incident took place, there was no possibility of presence of any person outside the houses which were located near the place of occurrence.

58. A careful analysis of statements of all the three eye witnesses shows that the examination-in-chief of all the witnesses of fact is just parrot like repetition of the incident and only on their cross-examination, material contradiction in respect of their presence at the time place of occurrence as well as time of occurrence itself is reflected. It is trite law that if the statements of witness are parrot like, it is duty of court to find out as to whether these statements in entirety has a ring of truth to it, is cogent, creditable and trust worthy, only then it should be relied upon. Reference may be made to the Judgments of Supreme Court (1991) 2 SCC 432, Nain Singh Vs. State of Uttar Pradesh and (2016) 14 SCC 729, K.A. Kotrappa Reddy and another Vs. Rayara Manjunatha Reddy alias N.R. Manjunatha and others.

59. The Trial Court has held that the post mortem report shows that semi digested food was found in the stomach of the deceased. The finding of the trial court that the deceased appears to have taken meal on 7-8 p.m. on that day and they have gone to their field near about 8 p.m. after lightning is a perverse finding based on surmises and conjecture. In fact, P.W. 1 in his entire evidence, has not mentioned the fact that P.W.1 and deceased had taken their meal before leaving for fields. Be that as it may, we do not find it material fact to discuss this issue further as the said issue does not have any relevance in the facts of the present case. In Shivaji Sahebrao Bobade & another Vs. State of Maharashtra, (1973) 2 SCC 793, Supreme Court has elaborately considered the relevance of presence of 'semi digested solid food particles' in the body of deceased and held that 'digestive' testimony is inconclusive and, therefore, insufficient to contradict positive evidence.

60. We find that plea of enmity raised by defence did not inspire confidence because there is only bald statement. The said finding of Trial Court is not based on evidence. The P.W. 1 in his cross-examination has admitted enmity and animosity arising out of last election. Thus the evidence of P.W. 1 has been completely ignored by the Trial Court.

61. The Trial Court has also ignored various criminal cases against prosecution witness and deceased, which we have discussed in preceding para.

62. We also find that finding of Trial Court that medical evidence lends support to ocular evidence is also not correct. As discussed above, the prosecution has failed to explain injuries and blackening which was found around arm injury no.2 and wadding pieces, which were removed from body. These injuries show that deceased was shot from very close range, thus, medical evidence does not support the ocular evidence. The trial court has also not considered the manner of assault and the contradiction in ocular and medical evidence. The conviction by trial court is based on suspicion.

63. Therefore, in view of the inherent infirmities in the statements of eye witnesses, adversely affecting their testimony, it would not be safe to convict the appellant on the scanty evidence. In view of the conspectus of aforesaid facts and circumstances, we are clearly of the view that the trial court has not appreciated the evidence on record in its correct perspective. The Judgment and order dated 29.4.1983 passed by the trial court convicting the accused appellants under Section 302/34 I.P.C. is not sustainable, and accordingly, it is set aside. The appellant Shankar Singh died during pendency of appeal and appeal in his respect was abated on 2.12.2016. The sole surviving appellant Raghunath Singh is found not guilty of the charge under Section 302/34 I.P.C. and is acquitted. The appellant is on bail. He need not to surrender if he is not wanted in any other case. His bail bonds are cancelled and sureties are discharged.

64. Accordingly, appeal is allowed. The impugned Judgment of conviction and sentence under Section 302/34 I.P.C. is set aside and accused is acquitted.

65. Judgement be certified and placed on the record.

66. Let the record of the trial court along with a certified copy of this order be sent to the concerned court below for ensuring compliance of the order.

67. Material exhibits, if any, be disposed of after statutory period in accordance with rules.

Order Date :- 18th May 2018

Ram Murti