Kunwar Pal Singh vs State
2018 Latest Caselaw 3529 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 4
 

 
Case :- CRIMINAL APPEAL No. - 1070 of 1991
 

 
Appellant :- Kunwar Pal Singh
 
Respondent :- State
 
Counsel for Appellant :- Yaduvansh Kumar Shukla,Raghuvansh Misra,Rahul Misra
 
Counsel for Respondent :- Dga
 

 
Hon'ble Bala Krishna Narayana, J.

Hon'ble Arvind Kumar Mishra-I,J.

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

Heard Sri Rahul Misra, Advocate assisted by Sri Raghuvansh Mishra for the appellant, Sri Saghir Ahmad and Kumari Meena, learned A.G.A.s for the State and perused the record of this appeal.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order dated 22.04.1991 passed by First Additional Sessions Judge, Jhansi in Sessions Trial No.142 of 1987, State Vs. Sunderbhan and others, arising out of case crime no.92 of 1987, police station- Badagaon, District- Jhansi, whereby appellant- Kunwar Pal Singh- has been convicted and sentenced to undergo life imprisonment for offence under Section 302 IPC.

It is relevant to mention that by the aforesaid impugned judgment, the trial court has acquitted out of four accused, three co- accused, namely, Raghuveer s/o Virje, Bharat Singh s/o Narayan Singh and Sunderbhan s/o Bhure for charge under Section 302 read with Section 34 IPC.

Factual matrix of this case relates to fact that an F.I.R. was lodged by Sri Awadhesh Pratap Singh (P.W.1) at Police Station- Badagaon, District- Jhansi on 16.06.1987 at 8.00 a.m. regarding the incident of murder having been caused by as many as four accused named in the report including the appellant at about 6.15 a.m. the very same day inside the Roadways Bus when it had arrived at Bus Stand- Baratha with the description that the informant boarded Datia- Samthar Bus Number UTP 2171 on 16.06.1987 at 5.30 a.m. for attending the court proceeding along with his elder brother Krishna Pal Singh (deceased) and co- villagers- Malkhan Singh, Chatur Singh, Pooran Singh, Rajendra Singh, Ram Das, Acchay Lal and Pratipal Singh (resident of village- Bakwa). They were coming from Moth to Jhansi.

Enroute, from village- Amra, the accused, namely, Sundarbhan, Raghuveer, Bharat Singh and Kunwar Pal from his village also boarded the bus. Two of the four accused, namely, Sundarbhan and Raghuveer were possessing gun. Old enmity was existing between the parties on account of pending litigation.

It was around 6.15 a.m. when the Bus reached at Bus Stand- Baratha, Bharat Singh and Raghuveer Singh exhorted Kunwar Pal on the spot to accomplish the task, whereupon, Kunwar Pal took the gun from Sundarbhan and moved ahead to the position where informant's brother Krishna Pal was sitting on the front seat of the bus behind the driver and fired on him with the gun, due to which Krishna Pal sustained injuries and toppled on the floor of the bus from the seat. The informant and the others tried to nab the culprits, but could not succeed, as the culprit threatened them on the gun point, thus secured their escape after alighting from the bus- towards village- Baratha. The written report further contains description that as a measure of urgency, the bus was taken to the Medical College, Jhansi for treatment of the victim where the doctor declared informant's brother dead. The dead body was left behind at the Medical College by the informant and he came over to Police Station- Badagaon for lodging the report.

Contents of written report were taken down in the concerned check FIR at Case Crime No.92 of 1987 under Sections 302/34 IPC at Police Station- Badagaon, District- Jhansi at 8.00 a.m. on 16.6.1987. The copy of check FIR is Ex. Ka.18. Consequent upon entries so made in the check FIR, a case was registered against the accused at Police Station- Badagaon on 16.6.1987 at aforesaid crime number, under aforesaid sections of Indian Penal Code vide entry made in the concerned General Diary Rapat No.10. The relevant GD entry is Exhibit Ka.19.

Soon after lodging of the F.I.R., the investigation ensued and the same was taken over by first Investigating Officer- Yogendra Singh P.W.8. He after coming to know about the report having been lodged at Police Station- Badagaon obtained Check FIR and the concerned General Diary Entry from Constable- Shiv Sanker Agnihotri- and after taking note of the same, he rushed to the place of occurrence along with Constables- Makhmoor Khan and Chandrapal Singh. The Investigating Officer inquired about the incident from the various shopkeepers of the nearby area and rushed to the Medical College where the concerned Bus No. UTP 2171 was parked. He also inquired about the incident from the driver of the bus Anand Kumar, Conductor- Sudama Prasad and Cleaner- Saleem and recorded their statements. Statement of the informant- Awadhesh Pratap Singh was also recorded as he was present over there at that point of time. He also inspected the very spot of the occurrence- viz.- inside the aforesaid bus- and took the seat cover on which vestige of firing was found present. He also took into possession the piece of blood stained tin of the floor of the bus after cutting it out and also collected sample of tin piece of the floor of the bus and prepared a memo of the same. He also recovered one pellet/bullet from the floor of the bus and also made a reference of the same in the memo prepared by him. After preparing all the aforesaid papers, he then came to Bus Stand- Baratha- the place where the occurrence took place inside the bus and prepared the site plan of the occurrence- Exhibit Ka-23, at the pointing out of Awadhesh Pratap Singh.

The testimony of the first Investigating Officer shows that during latter part of the day, the investigation was taken over by the second I.O.- S.I. Surya Prakash Agnihotri (P.W.5)- the Station Officer of Police Station- Badagaon on 16.06.1987 from P.W.8- S.I. Yogendra Singh. He effectuated arrest of the co- accused Raghuveer and recorded the statement of witnesses. Apart from that recovery of SBBL gun was also made during investigation and the same was sent for Forensic Science Laboratory, regarding which, chemical examination report was also obtained, which is Exhibit Ka-25. On 21.06.1987 accused Kunwar Pal Singh along with the other co-accused was arrested by the Investigating Officer and relevant entries regarding the same were made in the concerned case diary. Statements of the various other prosecution witnesses were also recorded.

It gathered from record that S.I. B.S. Bajpayee- P.W.6- has prepared the inquest report (Exhibit Ka-12A) of deceased Krishna Pal Singh after appointing inquest witnesses. Inquest proceeding commenced at 10.30 a.m. and was completed at 11.40 a.m. on 16.6.1987 at mortuary, Jhansi itself at Medical College, Jhansi. In the inquest report, unanimous opinion was expressed that the dead body be sent for postmortem examination so that the real cause of death could be ascertained properly. In the process, certain relevant papers were prepared- photo nash Ex.Ka.16, challan nash Ex.Ka.-15, letter to C.M.O Ex.Ka.14 and specimen seal Exhibit Ka-17. He got the dead body sealed and dispatched it to the District Hospital, Jhansi for conducting postmortem examination.

The autopsy on the dead body of the deceased Krishna Pal Singh was conducted by Dr. P.C. Gupta P.W.4 on 16.06.1987 at about 04.00 P.M., who noted the following injuries on the cadaver of the deceased:-

1. Gunshot wound of entrance on the left side of the chest in the fourth intercostal space, 2.5 cm away from the mid line size 2.5 cm x 2.5 cm x muscle deep on the left side of tract entry the thoracic cavity on the right side of sternum in the fourth intercostal space, edges are inverted and irregular. No tattooing blackening present.

2. Gunshot wound of exit on the lateral aspect of the right side chest in mid axillary line out the seventh rib size 3 cm x 2.5 cm x cavity deep. 7th rib is fractured, edge everted, margin irregular. Both entrance and exit wounds communicated.

In the opinion of the doctor, cause of death was shock and haemorrhage due to gunshot injury. This postmortem report is Ex.Ka.2.

After completion of the investigation, SI Surya Prakash Agnihotri P.W.5 (second Investigating Officer) submitted charge-sheet Ex.Ka.12 against the accused.

Proceedings of the case was committed to the Court of Sessions. As a sequel to that, this case was made over for trial and disposal to the court of IInd Additional Sessions Judge, Jhansi. Appellant was heard on point of charge and the trial court was prima facie satisfied with the case against the accused-appellant, therefore, it framed charge against the accused-appellant under Section 302 IPC. Charge was read over and explained to the accused, who abjured charge and claimed to be tried.

The prosecution in order to prove guilt of the accused examined as many as eight witnesses. Brief reference of the same is sketched herein below:-

P.W.1 Awadhesh Pratap Singh is the brother of the deceased as well as the first informant and claims himself to be an eye- witness of the incident.

P.W.2 Chatur Singh is a relative of the deceased and claims to have witnessed the incident.

P.W.3 Rajendra Singh also claims to be an eyewitness of the incident.

P.W.4 Doctor P.C. Gupta has conducted the postmortem examination on the body of the deceased Krishna Pal Singh on 16.06.1987 at 4.00 P.M.

P.W.5 Surya Praksh Agnihotri is the second Investigating Officer of this case.

P.W.6 B.S. Bajpai has conducted the inquest examination.

P.W.7 Ramdas is the Constable Clerk of Police Station Badagaon. He has prepared the Check FIR and noted entry of the same in the concerned General Diary.

P.W.8 S.I. Yogendra Singh is the first Investigating Officer of this case.

Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, he claimed to have been falsely implicated on account of enmity. He has also stated in his statement that in some case involving Section 307 IPC, he was a witness against Awadhesh Pratap Singh (informant of this case), therefore, he has been falsely roped in, in this case by him.

The defence has not led any evidence, whatsoever. However, Paper as Exhibit Kha-1 has been pressed in defence by the accused, the same has been got proved through P.W.5 Surya Praksh Agnihotri, which relates to piece of statement under Section 161 Cr.P.C. of Rajendra Singh s/o Karan Singh recorded by the I.O.

The learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced the accused to life imprisonment under Section 302 IPC which paved way for this appeal.

While extending argument, it has been claimed by the learned counsel for the appellant, inter alia, that the testimony of P.W.1- Awadhesh Pratap Singh and P.W.2- Chatur Singh has been wrongly believed to be inspiring confidence by the trial court. Their testimony on the whole is contradictory, full of improvement and embellishments and based on guess work. They were not present on the spot at the time of occurrence. The first information report is ante-timed as the circumstances prove it beyond doubt for which no other evidence need be considered. If it is believed to be correct, that the report of the incident was lodged at the police station- Badagaon at 8 a.m. on 16.6.1987, then the preparation of the inquest report itself is indicative of fact that the preparation of inquest commenced at 10.30 a.m. on 16.6.1987 at Medical College, Jhansi, but there was no whisper in the inquest report- (Exhibit Ka-12A)- about any case crime number of the offence after the report had been lodged at police station- Badagaon. Fact establishes that the inquest report contained description about the information of the death of deceased Krishna Pal Singh was given at the police outpost Vishwavidaylya of Police Station Navabad, Jhansi by the Ward Boy- Karanju- and the testimony of P.W.8 S.I. Yogendra Singh, the first Investigating Officer, as emerging on the point shows that he noticed contents of the Check FIR and the report around 8.30 a.m. on 16.6.1987, then proceeded to the place of occurrence and after inquiring from the shopkeepers of the area (around Bus Stand- Baratha) rushed to the Medical College, Jhansi and arrived there around 10 a.m. on 16.6.1987, then in case the report had been lodged, the case crime number must have been described on the inquest report and the description of the informant being given by the Ward Boy to the police would not have figured on the inquest report. This independent circumstance tells a different story that till preparation of the inquest report- which was completed around 11.40 a.m. on 16.6.1987- no FIR was existing and it appears that the relevant GD entry was kept empty to be filled-in after deliberation and consultation between the informant and the police.

Similarly, the testimony of P.W.1 Awadhesh Pratap Singh and P.W.2 Chatur Singh when taken to be true and believable on its face value then it does not match with the description of the incident and does not tally with the medical evidence because the gunshot wound allegedly caused on the body of Krishna Pal Singh, does not show sign of blackening, tattooing or charring, which means the gunshot was caused from sufficient distance for more than 3 feet. The opinion of the doctor on this point cannot be brushed aside. The ocular testimony of P.W.1 and P.W.2 when compared with the actual facts described in the FIR and with the circumstances of the case, vis a vis, the medical evidence, would appear contradictory.

Surprisingly, the very spot of the occurrence which is inside the Bus UTP 2171 was not sketched by both the Investigating Officer (P.W.8 and P.W.5) and no site plan of the actual spot of occurrence inside the bus was prepared. However, things have been tried to be ordained in the fashion that a memorandum of description of the spot of occurrence- inside the bus- alone was prepared, but that too is sketchy on specific vital points as to from where the shot was fired and about the exact position of the victim/deceased at that point of time. This non- preparation of side plan of the actual spot of the occurrence, is self speaking about the fact that none of the prosecution witnesses infact saw the incident in question.

Next, contented that the relevant testimony of Driver, Conductor and Cleaner of the concerned bus has not been tried to be recorded by producing them as witnesses which would have unraveled the truth but for reasons best known to the prosecution these witnesses were held back and in the absence of their testimony, the testimony of other prosecution witnesses of facts (P.W.1, P.W.2 and P.W.3) losses significance, being without any supportive corroboration from the independent witnesses. The prosecution story, if believed to be correct, then the motive for committing the offence would have been imputed to the co-accused Sunderbhan who had sufficient cause to commit the crime and he gave his licensed gun to Kunwar Pal inside the bus- to kill the deceased and the appellant (Kunwar Pal) had no motive to commit the offence and to say that he fired on the deceased at the instigation of Raghuveer and Bharat Singh is absolutely false. The motive for falsely implicating the appellant rests on fact that he was a witness against the first informant in a case concerning attempt to murder under Section 307 IPC.

Per contra, learned A.G.A. has submitted that the prosecution witnesses are trustworthy and reliable witnesses. Their testimony establishes fact of occurrence caused by the appellant by firing on the deceased and killed him on the spot inside the Bus No. UTP 2171. The medical testimony is not in-contrast to the ocular testimony- as per the description of the witnesses of occurrence. Mere non- description of the case crime number in the inquest report, would not ipso- facto nullify its authenticity and would not render the FIR ante-timed. The prosecution witnesses have supported the incident and their presence on the spot cannot be doubted.

We have also considered the rival submissions. The moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to establish the charge beyond reasonable doubt against the accused under Section 302 IPC?

While glancing over the contents of the first information report, the nutshell of contents reflects that the incident took place in the morning of 16.6.1987 at around 6.15 a.m. and the spot of occurrence is inside the Bus No. UTP 2171 running from Datia- Samthar and the actual place where the bus had reached at that point of time is Baratha bus stand where murder was committed inside the bus. As per FIR, the informant Awadhesh Pratap Singh P.W.1 was going to attend the court proceeding at Jhansi district court along with the deceased his elder brother Krishna Pal Singh and other co- villagers Malkhan Singh, Chatur Singh, Pooran Singh, Rajendra Singh, Ram Das, Acchay Lal and Pratipal Singh (resident of village- Bakwa).

Enroute, the accused Kunwar Pal along with three others, namely, Sunderbhan, Raghuveer, Bharat Singh boarded the aforesaid bus when the bus reached village- Amra. Two of the four accused, namely, Sunderbhan and Raghuveer were possessing gun. Old enmity was stated to have been existing between the parties on account of pending litigation. As soon as the bus stopped at Baratha Bus Stand at the aforesaid point of time, then it is stated that the two co-accused Bharat Singh and Raghuveer exhorted Kunwar Pal- the present appellant- to accomplish the task, at this Kunwar Pal took the tun from Sunderbhan moved to the front position of the deceased Krishna Pal, who was sitting on the front seat of the bus- just after the seat of the bus driver and fired on his chest with the gun. This caused injury to the informant's brother Krishna Pal Singh, who toppled from the seat to the floor of the bus. The incident is stated to have been witnessed by the informant and his companions. The informant and the companions tried to nab the culprits, but they secured their escape by threatening at gun point and fled away towards village- Baratha. It has also been described in the FIR that the informant took his brother for treatment to Medical College, Jhansi with the same bus where doctor declared him dead. The dead body was left behind in the Medical College and the report was lodged at 8.00 a.m. at Police Station- Badagaon on 16.6.1987 where a case was registered against several persons including the appellant at Case Crime No.92 of 1987, under Section 302/34 IPC.

The investigation was taken over by P.W.8 S.I. Yogendra Singh, who after coming to know about the lodging of the first information report arrived at the Medical College, Jhansi around 10.00 a.m.- the very same day, i.e. on 16.6.1987. P.W.8 S.I. Yogendra Singh, the first Investigating Officer, recorded the statement of the informant P.W.1 Awadhesh Pratap Singh at 10.00 a.m. outside the mortuary at Medical College, Jhansi where inquest was prepared from 10.30 to 11.40 a.m. on 16.6.1987. It means, P.W.8 S.I. Yogendra Singh- the first Investigating Officer of this case was present at the mortuary of Medical College around 10.00 a.m. soon after the lodging of the F.I.R. (at 8.00 a.m.) Here, the concern before us relates to fact that in case, the report had been lodged prior to 10.00 a.m. on 16.6.1987 at 8.00 a.m. at the police station regarding the murder of Krishna Pal Singh and the case was registered at Police Station- Badagaon at Case Crime No.92 of 1987, then the information regarding the death of Krishna Pal Singh being communicated to the police outpost Vishwavidyalay Police Station- Nawabad by the ward boy of Karanju of Medical College hardly fits in, in the situation, if I.O. was at the medical college at 10.00 a.m. on 16.6.1987 then how and why the case crime number was not appeared on the inquest report. Facts proved infact show that the inquest report of deceased Krishna Pal Singh was prepared by P.W.6 B.S. Bajpai on 16.6.1987 at Mortuary at medical College, Jhansi itself and the inquest report has been proved as Exhibit Ka-12A by P.W.6 and the perusal of the this very paper indicates in all clarity, that the information was given by the Ward-Boy of Medical College, Jhansi- Sri Karanju. There is no mention of any case crime number of the incident/offence or regarding fact that any report had already been lodged prior in-time at 8.00 a.m. at the Police Station- Badagaon and the information of death was separately communicated to aforesaid Police Outpost- Vishwavidylay Police Station- Nawabad at about 10.00 a.m.

The point worth consideration is, if the report had been lodged at 8.00 a.m. and the place of preparation of the inquest report was the mortuary of the Medical College, Jhansi, then in the presence of the the Investigating Officer who was having the case diary with him and was seized of the contents of the first information report and the relevant entry made in the concerned General Diary, then how the things went in aberration and there is no whisper about the report of the case having been made at Police Station- Badagaon at 8.00 a.m., though, a description appears at the top of the inquest report- Exhibit Ka-12A- to the ambit that the matter relates to Police Station- Badagaon, Jhansi.

Further, not only this but the perusal of the aforesaid paper also indicates fact that the preparation of the inquest report commenced at 10.30 a.m. on 16.6.1987 and was completed at 11.40 a.m., and there is no whisper in the entire inquest report about any first information report having been lodged in the case at particular case crime number at Police Station- Badagaon when the I.O. Of the case was present in medical College and he also met the first informant there around 10.00 a.m. and recorded his statement. It appears that the things had been kept in vacuum and no report, whatsoever, of the incident in question, was then in-existence till the inquest was prepared and completed. Obviously, the concerned General Diary entry of the relevant time say 8.00 a.m. on 16.6.1987 of Police Station- Badagaon was likely to held back. That way, the contention raised to the ambit that the FIR is ante-timed is very much substantiated, not only by the strong surrounding circumstances, but also by the evasive testimony of both the Investigating officers (P.W.8 and P.W.5) on material and vital aspect of preparation of site plan and also the testimony of P.W.6 B.S. Bajpai, who prepared the inquest report at Mortuary, Medical College, Jhansi. We are convinced that things have been deliberately twisted and the F.I.R. is ante-timed.

Next, the testimony of the eyewitnesses of the occurrence is on the face contradictory on the point of the very manner of causing the assault by gun shot on the deceased- Krishna Pal Singh- inside the bus number UTP 2171, when it stopped at Baratha Bus Stand. As per the first information report, the description regarding the manner of causing assault by firing shot on Krishna Pal Singh is stated to be that after the accused Kunwar Pal Singh took the gun from another co-accused Sunderbhan moved from his place to the position infront of the deceased Krishna Pal Singh- who was sitting on the front seat of the bus behind the bus driver and was shot on the chest, due to which, Krishna Pal Singh toppled from the seat on to the floor of the bus.

When we carefully scrutinize the testimony of prosecution witnesses particularly P.W.1 Awadhesh Pratap Singh and P.W.2 Chatur Singh, on the point of manner of such occurrence we come across specific testimony in the first instance of P.W.1 Awadhesh Pratap Singh when he states that the appellant remained stationary at the same place and did not move and fired on Krishna Pal Singh. On page- 44 of the paper book, he has clarified in his testimony about the position of the accused Kunwar Pal inside the bus that the accused was present at that point of time in front of Krishna Pal Singh and he did not move. This specific testimony when matched and compared with the contents of the first information report regarding movement of the assailant while firing on Krishna Pal Singh appear to be in utter contrast and the testimony of P.W.2 Chatur Singh, the another eye-witness is worth consideration on this aspect. He has stated in his examination-in-chief that Kunwar Pal fired on Krishna Pal Singh after moving from his original position to the position in front of the victim. Either of the two description may be correct and may be wrong, but in the presence of the grossly contradictory statement regarding the movement of the assailant while committing the murder, there is material contradiction in the version of manner of assault. Who is to be believed and who is not to be believed- is the point of consideration.

Here, the testimony of P.W.2 Chatur Singh indicates fact that on the day of occurence he was going to Munna Lal Power House and has stated that he had given statement to daroga ji that he was out for work at Munna Lal Power House, but that statement is missing under Section 161 Cr.P.C. and this witness could not assign any reason for the same. He could not show any ticket of the bus authorizing travel by the bus in question and could not show any ticket to the Investigating Officer either.

Therefore, the very description of P.W.2 Chatur Singh that he was travelling on the day of occurrence in the bus for work at Munna Lal Power House is found to be a devised ground for claiming pseudo presence on the spot- inside the bus- at the time of the occurrence. Further, his testimony as appearing on page- 58 of the paper book in his cross- examination shows that at the time of the firing the Driver, the Conductor and the Cleaner of the bus were inside the bus. However, this fact is very much negatived by the testimony of both the Investigating Officers when it emerges from their testimony that during investigation, this fact came to their knowledge that the Driver, Conductor and Cleaner of the bus were not inside the bus when it had stopped at bus stand, Baratha because the Conductor had gone upon the roof of the bus for unloading luggage and the Cleaner followed him for help while the Driver had left his seat and had gone somewhere. If it is so, then the testimony regarding the prevailing scenario at the crime scene is being concealed and deliberately spelt by P.W.2 Chatur Singh as well P.W.1 Awadhesh Pratap Singh and this exposes falsity of the presence of these two witnesses on the spot at the time of the occurrence.

Again, the point for consideration arises about the natural conduct of the witnesses if present on the spot.

We have carefully gone through the entire testimony of all the eye-witnesses of fact and also considered and analyzed the attendant circumstances of the crime scene of the place of the occurrence, then we discover that there is not least effort done by either of the prosecution witnesses claiming to be present on the spot to inquire about the well being of the victim soon after the assailants had fled away from the scene and no effort was made to know about the actual condition of the deceased as to what happened to the victim after the gunshot hit the victim and he was toppled from the seat on the floor of the bus. The natural conduct at least of the informant- the brother of the victim would have been that P.W.1 Awadhesh Pratap Singh and his companions present on the spot would have been unable to resist their impulse and must have taken care of the victim on the spot and they must, at least, have moved the person of the victim soon after the incident and would have ensured about his actual and present condition, but no such effort was ever made. This unnatural aspect grossly exposes the claim of presence of the informant and the prosecution witnesses on the spot at the time of the occurrence. It is not merely an imagination and our argumentative approach that gives the above conclusion, but the above conclusion gets strengthened by fact that both the Investigating Officers P.W.8 S.I. Yogendra Singh and P.W.5 Surya Prakash Agnihotri, respectively, did not care to prepare the site plan of the spot of occurrence, which is admittedly inside the Bus UTP 2171. It is stated that P.W.8 S.I. Yogendra Singh- the first Investigating Officer- only prepared the memorandum of the description of the place/spot of occurrence inside Bus No. UTP 2171, but that memorandum also sans description regarding the actual place held by the assailant and the deceased and the witnesses. This is not merely an omission on the part of the Investigating Officer, but this is a strong circumstance pointing to the absence of the informant and the prosecution witnesses of fact on the spot and which cannot be dispelled by the contradictory testimony of both P.W.1 Awadhesh Pratp Singh and P.W.2 Chatur Singh regarding the manner of assault. Our conviction is further strengthened by fact that the postmortem examination report- Exhibit Ka-2- discloses fact of ante-mortem wounds, i.e.- one is gunshot wound of entry and the second one relates to gunshot exit wound.

This postmortem report has been substantiated by P.W.4 Doctor P.C. Gupta. He has stated in categorical terms that there was no blackening, tattooing and charring present on the antemortem injuries.

On this point the doctor witness has been extensively cross-examined as to how blackening, tattooing and charring would form part of injury or would not form part of injury, then considering the fact of present case and particularly the postmortem examination report of the deceased, the doctor has opined in the very end of his cross- examination as appearing on page- 86 of the paper book- that absence of blackening, tattooing and charring on the gunshot wound caused on the deceased may be assigned to fact that the fire was shot from a distance of more than 3 feet.

It is admitted position, in this case, that there is no blackening, tattooing and charring on the ante-mortem gunshot wound.

The point is what may be the distance between the nozzle of the gun/rifle and the seat of the injury, which is stated to be the chest of the deceased Krishna Pal, then the specific testimony regarding the actual distance has been clarified by P.W.2 Chatur Singh. He says that the distance between the nozzle and the chest of the deceased was around 5-6 inches. If this distance is extended doubly, then it would hardly cross 12 inches distance. Then, in that event blackening, tattooing and charring must have been caused on the gunshot entry wound. But, it is not the case in respect of the entry wound caused on the left side of the chest of the deceased.

It means the specific description of distance given by P.W.2 Chatur Singh is a guess work and he never saw the actual distance at the time of firing between the nozzle of the gun and the seat of the injury- the chest of the deceased.

That way, things have been tried to be improved and his testimony becomes testimony full of embellishments. Therefore, both the witnesses P.W.1 Awadhesh Pratap Singh and P.W.2 Chatur Singh cannot be believed to be present on the spot and these testimony is not creditworthy on the point of occurrence.

The suggestion has been made by the defence that infact the informant had arrived in the evening at Jhansi a day prior to his date in the murder case and while attending court at Jhansi on the day of occurrence, he came to know about the murder of his brother then he being accompanied by certain lawyers managed the things at their consultation and with the help of the Investigating Officer and placed himself in the position of an eye-witness and a false story was raised. The suggestion appears to have some substance in view of the abnormal conduct of P.W.1 Awadhesh Pratap Singh and P.W.2 Chatur Singh on the spot in not touching the person of the victim soon after the incident inside the aforesaid bus and the Investigating Officer failed to come out with specific site plan of the actual spot inside the bus and not giving specific position of the assailant and the deceased, as was stated to him by the prosecution witnesses.

Assuming it to be that the accused had motive to commit the offence even then the primary motive to eliminate Krishna Pal was not existing, in view of fact that the murder case in which P.W.1 Awadhesh Pratap Singh was involved as the only accused related to the murder of son of co-accused Sunderbhan and Sunderbhan was possessing gun and he was present inside the bus, then the primary target was P.W.1 Awadhesh Pratap Singh was easily available and Krishna Pal had nothing to do with the murder of son of Sunderbhan. He was only a pariokar of P.W.1 Awadhesh Pratap Singh in that murder case. Therefore, presence of P.W.1 Awadhesh Pratap Singh on the spot cannot be expected, as alleged. Had he been present then he would have been the target of attack instead of Krishna Pal Singh.

One of the inquest witness- Rajender Singh- is an advocate by profession and he accompanied by several other advocates after the incident had occurred were present with the informant as suggested by the defence, therefore, possibility of deliberation and consultation obtaining legal advice for falsely implicating the accused cannot be ruled out, under circumstances.

In so far as the testimony of P.W.3 Rajendra Singh s/o Surendra Singh is concerned, then it is noticeable that certain vital facts have been disclosed by P.W.5 Surya Prakash Agnihotri (Second Investigating Officer) in his cross-examination which is indicative of fact that he (P.W.5- the I.O.) recorded statement under Section 161 Cr.P.C. of one Rajendra Singh s/o Karan Singh (reference to statement of P.W.5 at page 106 of the paper book), therefore, testimony of P.W.3 Rajendra Singh s/o Surendra Singh becomes a waste piece of paper because the Investigating Officer never interrogated any such Rajendra Singh S/o Sri Surendra Singh, therefore, testimony of P.W.3 Rajendra Singh, as a matter of caution and circumspection cannot be taken into consideration while considering the merit of the case.

Even in the charge-sheet name of Rajendra Singh s/o Karan Singh, resident of village- Rev, Police Station- Moth, District- Jhansi has been shown at Serial No.5 in the array of prosecution witnesses. There is no mention of any Rajendra Singh s/o Surendra Singh. However, testimony of Rajendra Singh too is in contrast to testimony of P.W.1 and P.W.2 on point of occurrence.

The point is whether the prosecution witnesses, particularly P.W.1 Awadhesh Pratap Singh and P.W.2 Chatur Singh were present on the spot, then the above scrutiny of the testimony, fact and the attendant circumstances, rule out their presence on the spot. It would have been better if the prosecution would have produced either of the three say- Conductor, Driver and Cleaner of the bus in whose presence the offence was stated to have been committed and their testimony would have been natural and fair on the point of occurrence and brought-forth the truth.

So far as the non- examination of the Conductor, Driver and Cleaner of the Bus UTP 2171 is concerned, obviously their testimony would have evinced truth regarding the actual incident and their evidence could have been easily produced, which has been withheld by the prosecution. In such circumstances, the ingredients of Section 114(g) of the Indian Evidence Act, 1872 come into picture- that the evidence, which could be and is not produced would, if produced, be unfavorable to the person, who withhold it.

The Investigating Officer has himself confirmed to fact that he came to know during investigation that the incident was caused by some person when the bus had stopped at Baratha Bus Stand, and it was not known by that time as to who caused the incident.

P.W.5 Surya Prakash Agnihotri has disclosed in his cross-examination on page 96 of the paper book that at the relevant point of time when the incident took place the bus driver, conductor and the cleaner were not present inside the bus and he has categorically denied fact of their presence inside the bus on account of information collected by him during investigation. It is noticeable that the inquest report does not mention fact of any report having been lodged at any case crime number regarding the incident at Police Station- Badagaon, Jhansi, whereas, it contains description that the information was received through the Ward Boy of Medical College- Karanju, then obviously the things are not happening in its normal course, as stated by the witnesses.

In fact, if the description of the incident was witnessed by the prosecution witnesses of fact, then the Investigating Officer of this case must have prepared the site plan of the very spot of occurrence- inside the Bus No.UTP 2171- but there is absence of site plan of the actual shot inside the bus, which reflects on inability of the prosecution witnesses to come out precisely with the respective places occupied by the assailants and the deceased when shot was infact fired on Krishna Pal Singh. This is the centre point of the entire case and throws doubt on the presence of the eye-witnesses of fact at the time of occurrence inside the bus.

Enmity is admitted between the parties and the informant was going to attend proceeding pertaining to the case of murder of son of one of the co-accused Sunderbhan and the informant was the only accused in that murder case. The prosecution failed to come out with specific testimony about the fact of bringing the deceased to the Medical College and the point as to who brought the deceased to the Medical College, Jhansi after the occurrence has not been properly proved by the prosecution.

These vital aspects certainly were not considered by the trial court regarding the presence of the eye-witnesses on the spot and regarding material contradictions on the point of manner of causing assault. That way the medical evidence is in- sharp contrast to the ocular testimony of the eye-witnesses. Both eye-witnesses could not stand the test of cross-examination and they appear to have been vacillating on vital points regarding the manner of assault. That way, their testimony appears to have been influenced more by imagination and act of deliberation and tutoring rather than the truthful account of the occurrence.

The motive for false implication has been specifically given by the accused that he happened to be a witness against the informant in a case involving Section 307 IPC.

All these facts and circumstances of the case, when scrutinized, and in view of the testimony of the prosecution witnesses of fact as well as testimony of both the Investigating Officers P.W.8 S.I. Yogendra Singh and P.W.5 Surya Prakash Agnihotri, respectively, does not give a concrete, coherent and wholesome picture of the occurrence that in fact took place in the presence of the eye-witnesses in the manner alleged by them inside the bus UTP 2171 on 16.6.1987 at 6.15 a.m. when it had reached and stopped at Bus Stand, Baratha.

The learned trial Judge while appreciating facts, evaluating testimony and the circumstances of the case misread the wholesomeness of the case and recorded findings of conviction on such shaky evidence, which is full of infirmity and hollowness. Consequently, the finding of conviction lacks the legal force and we are unable to uphold the same as such. These are the specific reasons upon which, we set aside the impugned judgment and order of conviction dated 22.04.1991 passed by First Additional Sessions Judge, Jhansi in Sessions Trial No.142 of 1987, State Vs. Sunderbhan and others, arising out of case crime no.92 of 1987, police station- Badagaon, District- Jhansi.

In view of above, this appeal succeeds and the same is allowed.

In this case, appellant is on bail. He need not surrender, his personal bond and surety bond are discharged. However, the appellant shall ensure compliance as mandated under Section 437-A Cr.P.C. by furnishing bonds.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Dt.2.11.2018

Raj