Lalji Mishra vs State Of U.P.
2019 Latest Caselaw 5211 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 6.5.2019
 
Delivered on 30.5.2019.
 
Court No. - 1
 

 
Case :- CRIMINAL APPEAL No. - 1019 of 2018
 
Appellant :- Lalji Mishra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- C.B.Dubey,Dinesh Kumar Pandey,Gopal Swarup Chaturvedi,Lav Srivastava,Manu Sharma
 
Counsel for Respondent :- G.A.
 
Connected with
 
Case :- CRIMINAL APPEAL No. - 1056 of 2018
 
Appellant :- Anil Kumar Gour
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Saurabh Gour,A.B.L. Gour, Sr. Advocate
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)

1. Heard Sri G.S. Chaturvedi, Sri A.B.L. Gaur, Senior Advocates assisted by Sri Manu Sharma and Sri Dinesh Kumar Pandey, learned counsel for the appellants and Mrs. Archana Singh, learned A.G.A for the State.

2. The first Criminal Appeal No.1019 of 2018 has been preferred by accused appellant Lal Jee Mishra against impugned judgment and order dated 7.12.2018, passed by Additional Sessions Judge/Special Judge (Anti Corruption) U.P. SEB, Gorakhpur in Sessions Trial No.332 of 1993 whereby the accused-appellant has been convicted and sentenced under Section 304 read with 34 IPC with life imprisonment and a fine of Rs. 50,000/- and half of the said fine has been directed to be paid to informant of the case Champa Devi who is wife of the deceased Roop Chandra Pal. 

3. The Second Criminal Appeal No.1056 of 2018, has been preferred by accused appellant Anil Kumar Gaud against the same judgment whereby he has been convicted and sentenced under Section 302 read with 34 IPC with the same punishment.

4. Since, both the appeals are arising out of the same Sessions Trial, for the sake of convenience, they are being taken up together.

5. As per the FIR, the prosecution case is that Champa Devi (P.W.1) wife of the deceased, Roop Chandra Pal, resident of Gadri Tola, Basaratpur, P.S. Shahpur, District Gorakhpur was present at the door of her house on 2.11.2012 along with her husband and children. About 15 yards towards east of her house, is located the plot of Anil Kumar Gaud (A-5) which was purchased by him from one Laljee Mishra. On the said date, the accused Anil Kumar Gaud was constructing western wall on his aforesaid plot by which the passage of the informant's house would be obstructed, hence, her husband stopped Anil Kumar Gaud and asked him that he should raise the said wall after leaving the passage. In the meantime, Laljee Mishra (A-3) also reached there and started saying that the wall will be constructed at the same place. At this, husband of the informant stated that the said passage was a public way and how would they be able to pass through that way. At this, Chunnu (A-2) slapped her husband and then informant also proceeded ahead. By then Anil Kumar Gaud (A-5) exhorted "Mar Dalo Sale Ko Bahut Tej Banta Hai". At his exhortation, Munnu (A-1) and Chuunu (A-2), both sons of Laljee Mishra and wife of Laljee Mishra (A-4) started beating her husband by fists and in the meantime, Laljee Mishra made fire upon her husband with an intention to kill, by which getting injured he fell down. Informant's son Rajesh Kumar and Virendra Kumar Pal son of Ram Adhar had taken the husband of the informant upon a rikshaw, to the hospital and soon after her husband reached there, he died  due to fire-arm injuries. This occurrence was seen by her son Rajesh Kumar, her daughter Suman (P.W.2) and Purnwasi, son of Chauki Ram, resident of  Mohalla Om Nagar, Basaratpur etc. This occurrence took place at about 5:15 PM. Laljee Mishra (A-3), is a resident of her Mohalla. The dead-body of her husband is lying in hospital. Therefore, her report be registered and necessary action be taken.

6. Upon the said complaint (Ex. Ka-1), Case Crime No.407 of 1992, under Sections 147, 148, 149 and 302 IPC was registered at P.S.Shahpur, District Gorakhpur on 2.11.1992 at about 18:45 (6:45PM) against Munnu son of Laljee Mishra (A-1), Chunnu son of Laljee Mishra (A-2), Laljee Mishra son of Annu (A-3), wife of Laljee Mishra (A-4) and Anil Kumar Gaud (A-5).

7. The Investigation of this case was assigned to Sub-Inspector Ashok Kumar Ojha (P.W.3), who assumed investigation of this case on 2.11.1992 and in parcha no.1, he recorded statement of informant Champa Devi, conducted the inspection of place of incident, recorded statement of Suman Pal (P.W.2) and also recorded statement of other wintesses namely, Surendra Chandra and Awadesh Kumar. In parcha no.2, dated 3.11.1992, he arrested accused Anil Kumar Gaud and recorded his statement. In parcha no.2-A, on 3.11.1992, he recorded the statement of witnesses Rajesh Kumar and Purnwasi and also made perusal of post mortem report. In para no.3, on 4.11.1992, he presented an application before Court for obtaining warrant under Sections 82 and 83 Cr.P.C. against accused Laljee Mishra, Chunnu, Munnu and Smt. Shivkali Devi. In parcha no.9 dated 5.11.1992, he recorded surrender of accused Laljee Mishra and Chunnu before Court and they were sent to jail after being remanded. In parcha no.5, dated 7.11.1992, he recorded statement of witnesses of inquest report i.e. Jangbahadur, Swami Nath and Ram Pyare. In parcha no.6, dated 17.11.1992, the accused Shivkali surrendered before Court and was sent to jail on remand and also recorded the statement of  Deshraj Pal and Ram Adhar who were witnesses of inquest. In parcha no.7, dated 5.12.1992, he recorded statements of accused Shivkali, Ravi Prakash @ Chunnu, Buddhi Prakash @ Munnu and after having found sufficient evidence against them, filed charge-sheet against Laljee Mishra, Ravi Prakash @ Chunnu, Buddhi Prakash @ Munnu, Shivkali Devi and Anil Kumar Gaud which is Exhibit Ka-3. He has also proved panchayatnama (inquest report), photo lash, challan lash, chitthi R.I.  and chitthi C.M.O. which are Exhibits Ka-4 to Ka-8 respectively.

8. On the basis of evidence on record charge was framed on 9.9.1997, against all the five accused-appellants named above, under Sections 147/148 and 302 read with 149 IPC and a separate charge has been framed on the same day against accused-appellant Laljee Mishra, under Section 302 IPC, to which all the accused-appellants pleaded not gulity and claimed to be tried.

9. In order to prove its case, from the side of prosecution, informant Champa Devi (wife of deceased) as P.W.1, daughter of deceased Suman Pal as P.W.2, I.O. Ashok Kumar Ojha as (P.W.-3) and Anurag Tripathi, who is an employee of the Sadar Hospital and was working with Dr. K.M. Singh, at the relevant point of time, as P.W.4, have been examined.

10. Thereafter, the prosecution evidence was closed and the statement of accused-appellants were recorded. All the accused have stated that the evidence gathered by the I.O. was false, and have taken the plea of false implication, although no witness has been examined in defence.

11. On the basis of evidence on record, the Trial Court has convicted the accused-appellants while other co-accused have been acquitted after having heard counsel of both the sides.

12. We have to re-appraise evidence on record in the light of the arguments made by the learned counsel for the appellants so as to find out as to whether the finding of the Trial Court is in accordance with law and evidence on record or does it requires any interference.

13. Learned counsel for the appellants has argued that P.W.1 who is wife of the deceased has claimed herself to be an eye witness but it is evident from the contents of the FIR as well as her statement that she was not an eye witness and that she had reached the place of incident only after hearing the sound of fire subsequently, therefore, her testimony should be discarded. It is further argued that it was not possible for her to see the incident from the distance of about 200 paces as she has stated that her house was 200 paces away from the place where the construction work was going on and the said place was not visible. It is further argued that the delay in disposal of this case by the Trial Court happened only because one of the co-accused, Chunnu had challenged the charge-sheet before the High Court, where the proceedings were stayed and despite the fact that the proceedings were decided in the year 2000, no communication could be made to the Trial Court forthwith. It is further argued that the ocular testimony does not support the medical evidence. The other eye witness namely, Suman Pal who is daughter of the deceased, was also not an eye witness of this occurrence. She has turned hostile and her testimony contains many contradictions and also there are contradictions between the statements of P.W.1, P.W.2 and the I.O. with respect to important aspects of the case which makes the testimony of the eye witnesses totally unreliable. It was also argued that there was no motive for the accused Laljee Mishra to have committed this offence, because the passage which was allegedly being blocked, by raising construction, was the same passage by which the said accused would also have passed. One main contradiction which was pointed out by learned counsel for the appellants is that P.W.1 has stated that the fire was made on her husband by accused Lal Jee Mishra, while P.W.2 has stated that fire was made by accused Anil Kumar Gaud, which is material contradiction and which belies presence of both the witnesses on the place of occurrence. Hence, it is prayed that the impugned judgment be set aside and the accused be acquitted of the charges levelled against them.

14. On the other hand, the learned AGA has vehemently argued in support of the impugned judgement stating that the contradictions which are stated to have come in the testimonies of the above mentioned witnesses have occurred only because of long delay in conclusion of trial which took about 18 years in being finally decided and when evidence of a witness would be recorded at such far point of time from the date of incident, the contradictions are bound to be there and simply on the basis of such contradictions, the accused-appellants cannot be acquitted and, therefore, the appeal should be dismissed and the judgment of the Trial Court be upheld.

15. P.W.1, Champa Devi has stated in examination-in-chief that about four years ago at about 5¼ PM, she was present in her house on the door with her husband, son Rajesh Kumar and daughter Suman. Anil Gaud was obstructing the public passage by raising constructions, when it was seen by her husband Roop Chandra, he went there and told that the wall should be raised, leaving the passage. At this, Anil Kumar Gaud told that the said passage would be closed. Right then, Chunnu, Munnu, Laljee Mishra and wife of Laljee Mishra  also came there and they were also told by her husband that the said wall should be constructed leaving the passage, but they did not hear and then, Chunnu slapped her husband twice and Chunnu, Munnu, Laljee Mishra and wife of Laljee Mishra together started assaulting her husband with fists. Anil Kumar Gaud exhorted "Mar Dalo Sale Ko Bahut Tez Banta Hai". Having seen this, P.W.1, her son Rajesh and her daughter proceeded ahead to the place where the passage was being closed and then Laljee Mishra made fire upon her husband, which hit her husband and pursuant to that he fell down. Apart from P.W.1 and her above mentioned family members, Purnwasi had also witnessed this occurrence. Her son Rajesh and Virendra Pal had brought her husband to the hospital. After some time, Rajesh came to her and told her that his father had died. The report of this incident was got scribed by Teerath Raj. Thereafter, she had gone with the said report (Ex. Ka-1) to the police station to lodge the report. She recognizes the accused-appellants Chunnu, Munnu, Laljee Mishra, Anil Gaud and wife of Laljee Mishra who are present in Court.

16. In cross-examination, this witness has stated that all the above named accused-appellants were living in her mohalla, whom she recognizes. She had no dispute earlier with them, nor was there any litigation between them. She used to live life like a bride-groom in the house because she does not have much knowledge. Anil Gaud had purchased the land from the persons who were of her own clan i.e. Laljee Pal, Balikaran and Viswanath belong to her clan. Accused Laljee Mishra and his family members had nothing to do with the said land. The passage with respect to which dispute had arisen, if the said passage was closed, the passage for going to the house of accused Laljee Mishra, would also be closed. At present the same route is being used for transportation. In the evening of the date of occurrence, she was at home, her husband had gone out after having his meals and when he was returning in the evening, this occurrence had happened. In the afternoon, when the construction work of the wall was going on, she had gone to stop the work but at that time Laljee Mishra and his children Chunnu and Munnu and her wife Shivkali Devi were not there. Her house would be about 200 paces from the place where Anil Gaud was getting the foundation dug for raising the construction but the said place was not visible from her house. The said passage was a common passage for all. She had no knowledge as to where her husband had gone after having meals but when he returned, he did not come home rather went straight to the place where the foundation was being dug. The food is cooked at home by her and some times by her daughter and on the date of incident just prior to this occurrence, she was making preparation for the food and right then, her daughter went to the place of incident running. Her son Rajesh Pal had also gone there running. She had heard a sound of fire and then, she could not understand as to who had made that fire and where the same was made. Thereafter, her daughter returned home and told that her father had been shot dead. Thereafter, P.W.1 also went there running and found there a lot of crowd but did not seen Laljee Mishra, his wife, his children Chunnu and Munnu there. Her husband was lifted in a Rickshaw by her son and was taken to hospital. His son Rajesh Pal had got an application written by Tejraj and got it signed by her which was given at the police station. She can make signature somehow. Further she has stated that she was not read out the said application, nor did she know as to what was written therein. The I.O. had made no interrogation from her. When he had come to her house, she had told him all about the incident and had shown the place of incident. At that time, she did not see Laljee Mishra, his wife and his sons Chunnu and Munnu at the place of incident. Laljee Mishra had not purchased any land from her family members and she had good relation with their family. First the first time, when her statement was recorded in Court, police had come to call her and she was tutored for about two hours and accordingly, she had given her statement before Court on 1.10.1997. She has further stated that prior to this occurrence, she never saw Anil Gaud, nor does she remember as to whether she had given the written report about this incident at the police station or not. The name of Anil Kumar Gaud was mentioned in the said report, on being told by other persons but it is wrong to say that she has falsely implicated Anil Kumar Gaud at other's instance.

17. It appears that after above statement, she would have been got declared hostile by the learned ADGC Criminal because record reveals that she was cross-examined by learned ADGC at this stage and she made following statements. She stated that about 18 years ago she had given statement before Court in which she had told that on account of the passage being closed the dispute had arisen. She was not intimidated in giving the statement by any-one rather she had given the said statement of her own free will. She does not recollect whether in the said statement she had stated anything about marpeet or not and denied that under police pressure she was making false statement.

18. Thereafter, the defence side made small cross-examination in which she has stated that the statement which she has given today in Court, that was correct statement, not given under any kind of pressure.

19. It appears from the perusal of the statement of this witness that she is claiming to be an eye witness of the occurrence. According to the FIR version, the occurrence took place on 2.11.2012, when P.W.1, her husband Roop Chandra Pal (deceased) and her children were at home and the construction of the wall was being done towards east of their house at a distance of about 5 to 50 yards on a plot purchased by accused Anil Kumar Gaud which was purchased by him from Laljee Mishra who belonged, to the family of the P.W.1 and when the said construction was being made which could blocked, the passage for going to the eastern side, her husband had tried to stop Anil Kumar Gaud who told him that the said wall should be made leaving the common passage but in the meantime, the other co-accused Laljee Mishra also reached there, and he also insisted that the wall would be made there only despite opposition from the side of husband of the informant and during this period all the co-accused Chunnu, Munnu, wife of Laljee and Laljee Mishra are also stated to have reached and had assaulted the deceased by fists and in the same occurrence, accused Laljee Mishra made fire upon her husband, getting hit by which, he fell down and ultimately when he was taken to hospital by her son, he died. There is no doubt that the FIR has been lodged with the police station promptly, as the incident is stated to have occurred at 5:15 PM and the report has been lodged at 6:45 PM i.e. barely within one and half hours of the occurrence. P.W.1, has supported the said version in the examination-in-chief but in cross-examination, she has stated that her husband was not at home; he had left the house after having meals in the morning and returned in the evening and in the afternoon, when the construction of the wall was going on, she herself had gone there to stop the said construction but at that time, accused Laljee Mishra and his children Chunnu, Munnu and her wife Shivekali were not there and that the said place was not visible from her house as the same was located about 200 paces away from her house. She has also stated that when her husband returned home, he did not come home rather went straight to the place where the construction work was going on, which is a departure from the version given in the FIR. Moreover, she has further stated that just prior to the occurrence, she was preparing food and that her daughter had gone to the place of incident along with her brother Rajesh Pal and then she heard a sound of fire but she could not make out as to where the said fire was made and thereafter, her daughter came back home running and told her that her father had been fired upon, then only, she went to the place of incident and by that time, Laljee Misra, wife of Laljee Mishra and children of Laljee Mishra were not seen by her there. It shows that she had reached the place of incident only after the fire had already been made upon the deceased, therefore, it cannot be held proved that she had witnessed the deceased being fired upon by the accused Laljee Mishra.

20. It also does not seem to be possible for this witness to have been seen the occurrence from a distance of about 200 paces, as it was argued that a person with a perfect vision can at the most see an object not beyond the 92-200 yards. Therefore, by no stretch of imaginaiton it could be taken that she could have been seen the occurrence from her house. We are in agreement with the argument of learned counsel for the appellants in this regard that the P.W.1 could not have seen the occurrence from her house and according to her own statement, she reached the place of incident only after the accused had left and the deceased was being taken to hospital by her son.

21. In cross-examination made by the ADGC about 18 years after the occurrence, she had merely stated that she had not given the statement under any kind of pressure or intimidation.

22. P.W.2, the other eye witness namely, Suman who is daughter of the deceased has stated in examination-in-chief that about 25 years ago when she was with her family in her house at about 5:15 PM in the evening, Anil Kumar Gaud was raising a wall on his plot which was at a little distance from her house and the said construction was being made on a passage which was being used by whole Mohalla for transportation purpose and at that time her father had gone somewhere since morning. When Anil Gaud was raising that construction, she along with her mother and brother Rajesh etc. had gone to him and had requested not to close the said passage. At that time, her father was not there, but they were abused and threatened away. When her father returned home in the evening, he straight away went to the plot of Anil Gaud and also made a request to him not to close the public passage. At this, dispute got escalated and the accused side went ahead to do marpeet with him. Anil Gaud was accompanied with 3-4 persons and all of them started beating her father by fists and kicks. In the said crowd, somebody exhorted "Sale Ko Jan Se Mar Do" then Anil Gaud made a fire upon her father which hit him and he fell down. After hearing the noises, in this fracas, P.W.2 also reached there and saw the incident with her own eyes. Anil Gaud had made fire by gun at this father. When the quarrel was going on with her father and he was shot at, at that time, accused Laljee Mishra, his wife Shivkali, Chhunnu and Munnu were not there, nor had they got involved in any quarrel with her father. Laljee Mishra had not made any fire upon her father. Her father was taken to hospital in injured condition by her brother Rajesh and Purnwasi and by the time, he reached the hospital he had died. She again stated that her father was not shot at by Laljee Mishra rather was fired upon by Anil Gaud.

23. The learned ADGC had got her declared hostile and thereafter, he made examination of this witness in which she stated that I.O. had not recorded her statement. When she was read out her statement under Section 161 Cr.P.C., she denied to have given any such statement and pleaded ignorance as to how, the same was recorded. She although, said that in front of her house there was plot of Anil Kumar Gaud and on the date of incident, he was raising construction of the wall on the western side of the said land which would block the passage, and to restrain him from doing so, her father had gone who had pleaed that he should raise the said wall leaving the passage. She stated it to be wrong that when her father had gone to request not to close down that passage, at that time, Laljee Mishra and his sons Chunnu and Munnu had reached there and also said that the said wall would be constructed and in the meantime, Chunnu and Munnu started getting involved in scuffle with her father. It is also stated to be wrong that Laljee Mishra by his gun had made fire upon her father with an intention to kill, which hit him and by which he fell-down. She also denied that she was making false statement in collusion with the accused.

24. Thereafter, she was again cross-examined by other defence counsel in which, she stated that she has no knowledge whether Shivkali Devi is a Parda Nasin lady, she is sometimes seen at her door. The passage in question, was the same by which the family members of Laljee Mishra also used to come and if the same was blocked, their entry and exit would also be stopped from that passage. There was no dispute of P.W.2 with the family members of Laljee. She has further stated that she has not seen any papers relating to the plot of Anil Kumar Gaud, nor does she know that the said land belonged to him and he was raising the wall thereon. Prior to this occurrence, Anil Gaud had gone to the said land and there were some bricks and sand placed there. Prior to this occurrence, the management of the said land was being done by Anil Gaud. The I.O. had recorded her statement. Today, the statement given by her that I.O. had not recorded her statement, whether the same was correct or incorrect, she does not recollect. She had told the I.O. that prior to the occurrence, she had gone to the said land for stopping the construction by which she meant, she and her mother had gone there but the same was not written, she could not tell its reason. She has further stated that when she had gone with her mother to the place of incident to request not to raise construction, the construction work was going on and the wall had been raised up to the height of 2 to 2.5 feet. She had reached there about 12 to 1 PM and then only she came to know that construction of wall was going on and had no prior knowledge of the same. She has stated to I.O. that Anil Kumar Gaud had made fire but if the same has not been written, she could not tell its reason. It is wrong to say that she had told the I.O. about Anil Kumar Gaud exhorting regarding making fire. If he has written in her statement that at the exhortation of Anil Kumar Gaud, the fire was made by someone-else, the same is wrong statement. She has further stated that she was present there with her father at the time of incident, as she had reached there after hearing the noises. When she had gone to ask that construction wall be not made, at that time, her father was not at home. Further she has stated that if she has given statement in Court that she had reached the place of occurrence after hearing noises, she cannot tell whether the same was a correct statement or wrong statement. What was got written in the FIR by her mother, she does not recollect; whether the FIR was written she does not recollect. She has forgotten some details in respect of lodging the FIR. Her mother would have written in FIR that Anil Kumar Gaud had made fire. She is literate lady. She was given opportunity to read Ex. Ka-1, after having read the same, she confirmed that in the said report it was not mentioned that Anil Kumar Gaud had made fire. She has further stated that if her mother has not got it written, she could not tell its reason but she persisted in asserting that it is wrong to say that she has not seen the occurrence and on account of being tutored by Advocates she was making false statement and it was also wrong to say that she had reached there after hearing the noises and had not seen the occurrence.

25. The statement of this witness, if evaluated in totality, would reveal that it is very inconsistent in respect of her having seen the occurrence and also in respect to the fact as to whether she was interrogated by the I.O. or not because at one place she has stated that her statement was not recorded by the I.O. but at other place she stated that her statement was recorded by him and at another place she has stated that she does not recollect about this fact, therefore, it is quite possible that because her statement has been recorded 25 years after the occurrence which is a long time and it is quite natural that at a gap of such a long distance in time, one would start forgetting the actual facts of the case. But we have to make sure whether the statement of this witness is believable as regards the person who made fire upon her father. She has clearly stated that it was Anil Gaud and not the Laljee Mishra who had made fire upon the deceased which is absolutely a new case as the FIR says that it was Laljee Mishra who had made fire and the same has also been stated by P.W.-1 that it was Laljee Mishra who had made fire, but this witness who is claiming to be an eye witness, has stated that it was Anil Gaud and not Laljee Misra, which is very material contradiction, which would lead us to draw a conclusion that the prosecution is unable to prove as to actually who had made fire upon the deceased.

26. P.W.3, I.O. has stated in cross-examination that during investigation it has come to light that the deceased was fired upon by licenced gun of Laljee Mishra. Therefore, the statement of P.W.2 is not getting support from the statement of I.O. The statement of I.O. is getting corroborated by statement of P.W.1 and the FIR as regards Laljee Mishra having made fire on the deceased but we have come to the conclusion that P.W.1 was not an eye witness as she had reached the place of incident after having heard a sound of fire and by that time, there was none from amongst the accused at the place of incident.

27. It would also be relevant here to mention about the site-plan and in that light whether the statement of P.W.1 and P.W.2 along with P.W.3 are believable or not in respect of this occurrence. In Ex. Ka-2 by "A" is shown the house of informant and to the east of that, at a distance of about 50 yards, is shown plot by letters "BCED" which is stated to be the plot, to the south of which, on the passage, the construction was being raised, to block that passage and the same is marked by green ink; to the south of the house of informant, is shown the said passage and thereafter, the field of husband of the informant; in the site plan the house of accused Laljee Mishra is also shown in the sought-west of the field of informant and in front of that house, the same passage is shown which leads from west to east, eastern side taking a little curve while passing by the side of complainant-informant's house and further on, it goes to the plot which has been purchased by accused Anil Kumar Gaud. In this site plan though the house of the informant and the said plot, where the construction was being made blocking the passage, there is no obstruction in between, but even then it is difficult to see the place of occurrence from a distance of about 50 yards, therefore, the statement given by P.W.1 who is wife of the deceased to have seen the occurrence from her house, cannot be believed and moreover, her statement that she had reached the place of incident and thereafter, had seen the occurrence is also not believable as by then, the incident had already become over and the deceased was being taken to the hospital by her son.

28. The testimony of P.W.2 is inconsistent with respect to her having seen the occurrence because in the site plan it has not been shown as to from where she has seen this occurrence and she had turned hostile by saying that because of lot of crowed being there she could not see as to who had exhorted whereafter, Anil Gaud made fire upon her father, but this statement is absolutely in contradiction with the statement of P.W.1 and the I.O. because the role of making fire upon the deceased is assigned not to Anil Gaud rather it is assigned to Laljee Mishra. It appears from the testimony of P.W.2 that she along with her mother had gone in the afternoon to the place where construction of wall was being made, to request that the said construction be stopped but she was abused and both of them had come back home and when in the evening her father reached home, before he entered the house he straight-away went to the place, where the construction was being made and then this incident has happened. She has insisted that she had seen with her own eyes that Anil Gaud had made fire but we have already given opinion that prosecution case is that it was not Anil Gaud rather it was actually Laljee Mishra who had made fire by his licenced gun therefore, this contradiction is considered to be very important contradiction with respect to the fact as to who had fired upon the deceased.

29. P.W.4 Anurag Tripathi has stated in examination-in-chief that he was posted with Dr. K.M. Singh in Sadar Hospital, Gorakhpur with whom he had worked. He has proved the post mortem of the deceased Roop Chandra Pal as Ex. Ka-9. In cross-examination, this witness has stated that he could not tell with exactitude whether he remained posted with the said doctor for two years or not.

30. In post-mortem, the doctor had found following ante-mortem injuries;-

" Fire arm injury of entrance on front of chest, neck, lower face, left shoulder, left upper arm in an area of 30 cm x 15 cm long, each measuring from 0.5 cm x 0.5 cm long, blackening and tattooing present. Some injuries are cavity deep, some muscle deep and some are superficial.

Internal Examination:-

(i) Three metallic pallets are found on the neck, Hematoma 0.5 cm x 0.3 cm long area measuring from neck.

(ii) Hematoma under skin of the chest, below left nipple in an area of 6 cm x 4 cm long, left lung punctured. Two metallic pallets present in the base of left lung. Two metallic pallets present in the left arm. Chest cavity contains half litre clotted blood. Two metallic pallets present in chest cavity. Heart NAD."

31. The cause of death is mentioned to be shock and hemorrhage as a result of ante-mortem injury.

32. P.W.3, I.O. Ashok Kumar Ojha in examination-in-chief has stated that he had found the occurrence to have been taken place on account of the wall being raised by accused Anil Kumar Gaud on his plot. In the inquest report, it was mentioned that the deceased had been shot dead but no specific arm was mentioned. The site-plan was prepared by him at the instance of informant. The place from where the informant had seen the occurrence, has not been shown in the site-plan. The way by which the accused came there, has not been shown in the site-plan, nor has it been shown as to from where the fire was made upon the deceased. No place is indicated in the site-plan of person other than who had made fire. It had come to light after investigation that the deceased was shot dead by Laljee Mishra by licenced gun. He did not make any effort to take into possession the said licenced gun, nor did he send the pallets recovered from the body of the deceased, to the Forensic Science Lab for being tested. Why they were not sent, no mention has been in the case diary in this regard. No application was given by him for getting the licence of gun cancelled to the District Magistrate. It is wrong to say that the said injury was caused to the deceased by country made pistol. The said injury was not caused by sten-gun. In site plan, except the presence of informant, presence of none other witness has been shown. The witness Suman had stated to him about exhortation being made by Anil Kumar Gaud and not about the Anil Kumar Gaud making fire upon the deceased. Why the Suman had given such statement, he cannot tell its reason.

33. After having assessed the entire evidence, we come to the conclusion that as per the prosecution story narrated in the FIR, the occurrence happened on 2.11.2012 at about 5:15 PM in which the deceased, Roop Chandra Pal is stated to have been fired upon by Laljee Mishra with an intention to kill him when he came to resist construction of wall on a common passage which was being raised by accused Anil Kumar Gaud near the plot which was purchased by him from the other family members of the informant but P.W.1 and P.W.2 have given different version about this occurrence. According to P.W.1 the person who had shot at the deceased was Laljee Mishra while according to P.W.2, it was Anil Kumar Gaud and according to I.O. he had found Laljee Mishra to be the assailant therefore, with respect to this most important aspect of the case there is a serious contradiction in the statement of witnesses examined from the side of prosecution which makes their testimonies to be doubtful and also the same would make their presence at the place of occurrence to be doubtful. The weapon by which the said fire was made is stated to be a licenced gun of Laljee Mishra but no justification has been given by I.O. as to why the same was not taken in possession and why he did not send the said weapon along with the pallets which were recovered from the dead-body of the deceased for being sent to the Forensic Science Lab to ascertain whether the said pallets were the same which got embedded in the dead body of the deceased on being fired by the said weapon. The I.O. has also not shown the place from where P.W.2 had seen the occurrence. Though, these are the lacunae left by the prosecution in investigation of this case, for which benefit would not be allowed to go to the accused but we find that even otherwise the evidence of P.W.1 and P.W.2 is not found to be clinching against the accused-appellants to prove that in-fact they were the persons who were responsible for causing death of the deceased. We have already noted above that the statement of P.W.2 was very inconsistent because she had, at one place, turned completely hostile but when cross-examined, she has supported the prosecution case, to a certain extent but the major contradictions which are found in her testimony and in the testimony of P.W.1 with respect to the fact as to who was the person actually who had made fire upon the deceased is compelling us to take a view that the benefit of doubt should be given to the appellants in this case. The Doctor has not been examined by the prosecution because of the death of the said doctor hence, nothing much could be asked in regard to the injuries sustained by the deceased. We have already given our opinion that P.W.1 was not in a position to have seen the occurrence from her house because of the distance between her house and the place of occurrence and her presence at the time, when incident happened, is doubtful because as per her version she had reached there only after the occurrence has happened. The argument of learned counsel for the appellants to the effect that the accused-appellant Laljee Mishra's passage would also have got obstructed by raising of the said wall hence, he could have no motive to cause death of the deceased because both would have common interest of having that passage open for general public.

34. In view of the above discussion, we are of the view that both the accused-appellants need to be given benefit of doubt that the offences are not found proved beyond reasonable doubt. We find that the Trial Court has not appreciated the evidence in accordance with law, and therefore, the impugned judgment deserves to be set aside and both the accused-appellants deserve to be acquitted and are accordingly acquitted. The appeals stand allowed.

35. Appellant Anil Kumar Gaud is on bail, he need not surrender. The Trial Court shall take bonds from him in-terms of Section 437-A Cr.P.C. So far as accused-appellant Laljee Mishra is concerned he is in jail, he shall be released in this case forthwith, unless wanted in any other case subject to his filling bonds in terms of Section 437-A Cr.P.C.

36. Let a certified copy of this judgment be transmitted to the Trial Court along with the Lower Court record for necessary compliance.

Order Date :-30.5.2019

Neeraj

     (Dinesh Kumar Singh-I, J.)    (Ramesh Sinha, J.)