Kuwarpal And Others vs State Of U.P.
2021 Latest Caselaw 4583 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Case :- CRIMINAL APPEAL No. - 3750 of 2011                    AFR
 

 
Appellant :- Kuwarpal And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Chandra Shekhar Kushwaha
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.

The instant appeal has been preferred against the judgment and order dated 08.06.2011 passed by the Additional Sessions Judge / Special Judge, J.P. Nagar, in Session Trial No.225 of 2007 State Vs. Kuwarpal and others, arising out of Case Crime No.834 of 2006, under Section 324 I.P.C., Police Station Naugawa Sadat, District J.P. Nagar, sentencing each of the appellant to undergo three years rigorous imprisonment coupled with fine Rs.5000/- with default stipulation for three months additional simple imprisonment.

Relevant facts of this case as reflected from record for understanding the outcome of this appeal appear to be that the first information report was lodged by Devendra Singh son of Ram Sukhiram Singh at Police Station Naugawa Sadat on 30.08.2006 at 9:30 p.m. regarding the occurrence pertaining to the firing that took place on 29.08.2006 at 8:00 a.m. in the village Akkha Nagla within Police Station Naugawa Sadat, District J.P. Nagar with description that on 29.08.2006 at about 8:00 a.m., the informant's son Pushpendra and his nephew Vipin Kumar son of Samarpal, resident of Samandpur, Police Station Rajavpur who had come over to the house of the informant, were proceeding towards tubewell of the informant carrying gadget tools for irrigation on the bullock / buffalo cart ('Buggi'), while the informant who had arrived at the tubewell prior to them was waiting for them over there. After waiting for a while, when they did not arrive at the tubewell the informant out of curiosity came on the chak-road leading towards his village for tracing them and in the meanwhile when he was passing along, he heard sound of fire near sugarcane field of Natram. He rushed in that direction where he saw Kuwarpal, Vijendra and Santram who after firing on his nephew made their escape good towards the southern side of the chak-road. The informant saw his nephew seeped in blood on the cart (buggi). It has further been narrated in the first information report that there was persisting enmity between the accused and the informant on account of pending litigation. The informant was told by his son and nephew that three accused who were possessing 'Tamanchas' (countrymade gun) opened fire but the fire shot by Kuwarpal hit his nephew. A number of persons arrived on the spot. The informant and the people who had arrived on the spot afterwards took the injured to the government hospital Amroha and Moradabad due to which delay was caused in lodging the report. This written report is Ext. Ka-1.

On the basis of the written report, its contents were taken down in the Check F.I.R. (Ext. Ka-3) at Case Crime No.834 of 2006, under Section 324 I.P.C. at Police Station Naugawa Sadat on 30.08.2006 at 9:30 p.m. and the case was registered by entering relevant note in the concerned general diary of aforesaid date at the aforesaid Police Station at 9:30 p.m. at aforesaid case crime number under aforesaid section of I.P.C., carbon copy of the general diary entry is Ext. Ka-4.

Record reveals that the injured was brought to the C.H.C. Amroha prior to the lodging of the report and was medically examined by Dr. Gyan Singh (PW-9) on 29.08.2006 at 10:00 a.m. who found the following injuries on the person of the injured Vipin Kumar:-

I. Circular lacerated wound 2 cm in diameter, depth cannot be probed due to bleeding. There is blackening and scorching of hair around the wound in 6 cm in diameter around a huge traumatic swelling at medial side of knee joint. This 'wound' was present medial side of left knee joint, 6 cm medially from top of left knee.

II. There is wound of exit lacerated wound, 1 cm diameter margin evert, no blackening. There is traumatic mild around. Advised x-ray. It is 9 cm lateral from top of knee. Kept under observation. Advised x-ray.

All above injuries were caused by firearm (gunshot) wound. (I) wound of entry, (II) wound of exit, Kept under observation, Advised x-ray left knee, at District Hospital Moradabad. Injuries are fresh.

In above medico legal injury report, injury no.1 and 2 were kept under observation, patient had been referred to Senior Radiologist at District Hospital Moradabad for x-ray of left knee.

Medical examination report has been proved by Dr. Gyan Singh PW-9 as Ext. Ka-7.

Supplementary report

On reference by the doctor, x-ray examination of left knee of the injured Vipin Kumar was done on 11.09.2006 by Dr. Harish Chand Dua PW-4.

According to report of Senior Radiologist of District Hospital Moradabad, vide x-ray plate with x-ray report no.4103 / dated 29.08.2006, part x-rayed - left knee - "no bony injury seen". "Loss of soft tissue seen on the back of knee joint as marked on plate".

Injuries were rated simple in nature and caused by gunshot.

Dr. Harish Chand Dua has proved his x-ray report as Ext. Ka-2.

Thereafter, on the basis of the aforesaid radiological report, supplementary medical report was prepared by Dr. Gyan Singh PW-9 as Ext. Ka-8 wherein also x-ray report (Ext. Ka-2) was affirmed that "no bony injury was seen".

After the F.I.R. was lodged on 30.08.2006, the Investigation of the case ensued and was taken over by the first Investigating Officer S.I. Randhir Singh who took the investigation of this case on 30.08.2006 and proceeded to collect material / evidence and in the process he took note of the contents of the relevant documents say - written report, check F.I.R., general diary pertaining to the Case Crime No.834 of 2006 of date of Police Station Naugawa Sadat and recorded statement of Constable Sunil Kumar and Devendra Singh and on the pointing out of the informant, prepared site plan besides he also recorded statement of various persons obtained x-ray report vide Parcha No.2 of C.D. Dated 04.09.2006 and also prepared different memos and obtained supplementary medical examination report and entered contents thereof in the concerned general diary of date 13.09.2006. He again recorded statement of other witnesses and also collected affidavit of various persons and came to the conclusion that the case is fake one and recorded in the charge sheet that it transpired during investigation, he came to know that Pushpendra was possessing illicit weapon at the time of the occurrence and due to his negligence, the weapon went off accidently which injured Vipin Kumar causing firearm injury, therefore, the allegations were found false and instead of Section 324 I.P.C, a case was found under Section 338, 211 I.P.C. against the informant Devendra Singh and witness Pushpendra and injured Vipin Kumar for hatching conspiracy to falsely implicate the the appellants in this case.

Thus, finding the appellants innocent filed charge sheet under Sections 338, 211 I.P.C. This charge sheet is numbered as 148 of 2006 dated 20.09.2006 under Sections 338, 211 against Devendra Singh and witness Pushpendra and the injured Vipin Kumar, which has been proved by him (the first I.O. - DW-1) as Ext. Kha-1. Besides he also proved a number of affidavits given to him by certain persons and which affidavits during period of his part of investigation have been made part of the record as Paper No.5/13 to 5/37.

Relevant to mention here that in this case, the first Investigating Officer Randhir Singh DW-1 has been examined not by the prosecution but by the defence and his aforesaid charge sheet was later on cancelled by the superior police officer but that charge sheet has been proved as Ext. Kha-1.

Subsequently to the the Investigating Officer - Randhir Singh, the investigation was then entrusted to Surendra Pal Singh PW-7. He was directed by the Senior Superintendent of Police, Moradabad to investigate into the offence registered at Case Crime No.834 of 2006 under Section 324 I.P.C. and on that day, Devendra Singh and his nephew Vipin Kumar had met him but on account of illness they did not give any statement. Thereafter, he visited village Akkha Nagla on 14.11.2006 and recorded statement of Rajpal Singh and on the very same day, the complainant Devendra Singh, his son Pushpendra met him at their house but did not give any statement on account of they being ill.

On 26.11.2006, the informant Devendra Singh, injured Vipin Kumar and Pushpendra met him at S.I.S. Office Moradabad, however, they expressed inability to give statement on account of being ill. He also recorded statement of the other prosecution witnesses during course of the investigation and proceeded with the investigation. On 06.12.2006, Pushpendra met him but did not give statement on account of he being in utmost hurry on account of his father Devendra Singh being ill. On 12.12.2006, Devendra Singh and Jitendra Singh gave statement at S.I.S. Office, Moradabad, which was recorded by him.

The investigation was then taken over by another S.S.I. Maharaj Singh, PW-8 on 25.12.2006 on account of fact that Surendra Pal Singh PW-7 has fallen ill. He also proceeded with the investigation of the case and recorded statement of various persons and recorded statement of Pushpendra and Vipin Kumar on 23.01.2007. The statement of Dr. Gyan Singh was recorded on 27.01.2007. Thereafter statement of Dr. Harish Chand Dua was recorded on 12.02.2007.

During course of the investigation, on the basis of medical examination report and other relevant papers, on 18.02.2007 Section 307 I.P.C. was added to the aforesaid Case Crime No.834 of 2006 and relevant entry was made in the concerned general diary of date. Previously submitted charge sheet filed by the first Investigating Officer (S.I. Randhir Singh) being numbered 148 of 2006 was got cancelled by him after sending it to the Superintendent of Police, J.P. Nagar. He also recorded statement of the accused Vijendra Singh and after that investigation was transferred to another Investigating Officer.

Pursuant thereto, the investigation was then taken over by S.I. Kushal Pal PW-6. After adding Section 307 I.P.C. at Case Crime No.834 of 2006 on 26.04.2007, he also proceeded with the investigation of the case and took note of the contents of the various records. On 17.05.2007, he recorded statement of the injured Vipin Kumar. He also visited the spot and at the pointing out of the informant prepared the site plan Ext. Ka-5 and after completing the investigation filed charge sheet Ext. Ka-6, under Section 307 I.P.C. against the appellants.

Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the aforesaid trial court of Additional Sessions Judge/Special Sessions Judge, J.P. Nagar, who in turn heard both the sides on point of charge and was prima-facie satisfied with case against the appellants, accordingly, framed charge under Section 307/34 of I.P.C. on 11.02.2008. The charge was read over and explained to the appellants who abjured charges and opted for trial.

Consequently, the prosecution was required to adduce its testimony in support of the charge. The prosecution produced in all nine witnesses. A brief sketch of the same is as here under:

Devendra Singh PW-1 is the informant, Pushpendra PW-2 is eyewitness of the occurrence like PW-1. Vipin Kumar PW-3 is the injured witness. Dr. Harish Chand Dua PW-4 got x-ray examination of left knee of the injured Vipin Kumar and also proved x-ray report and x-ray plate and has stated that "no bony injury was found" and has proved it as Ext. Ka-2 and x-ray plate as material Ext. 1. Constable Sunil Kumar PW-5 has proved check FIR and copy of general diary as Ext. Ka-3 and Ext. Ka-4, respectively. S.I. Kushalpal PW-6 is the fourth and the last Investigating Officer who filed the charge sheet under Section 307 I.P.C. against the appellants and has proved the same apart from proving his part of investigation. Surendra Pal Singh PW-7 is also one of the Investigating Officers of this case and he has also proved his part of the investigation. Likewise Mahraj Singh PW-8 also conducted the investigation and has proved his part of the investigation in this case. Dr. Gyan Singh PW-9 examined the injured Vipin Kumar on 29.08.2006 at 10:00 a.m. at C.H.C. Amroha and has proved the injury report Ext. Ka-7 and also proved supplementary medical examination report - Ext. Ka-8.

Thereafter, evidence for the prosecution was closed and statement of the accused-appellants (under Section 313 Cr.P.C.) was recorded wherein charge was denied and in defence, S.I. Randhir Singh DW-1 was produced in support of the charge sheet filed against the informant and his son under Sections 338, 211 I.P.C and also the investigation conducted by him while acting as the first Investigating Officer of this case from 30.08.2006 onwards up to certain period of time.

No other testimony adduced by the defence except as DW-1. Consequently, the evidence for the defence was closed and both the parties were heard on merits of the case. The trial Judge after vetting the evidence on record and considering the prevailing facts and circumstances of the case, acquitted the appellants under Section 307 I.P.C. while convicted them under Section 324 I.P.C. and sentenced each of them to undergo five years rigorous imprisonment coupled with fine Rs.5000/-, and in default of payment of fine, three months' additional imprisonment.

Resultantly, this appeal.

Contention extended on behalf of the appellants, in brief, is that in this case, no offence whatsoever has been committed by the appellants and it is obvious that merely on account of pending litigation between the parties and on account of animosity, a false case has been cooked up in collaboration with the police. Facts and circumstances of the case are suggestive of reality that in this case, no one, in fact, saw the occurrence and nothing of the sort ever happened in the manner as alleged in the first information report.

The statement of the eyewitnesses of the occurrence and the injured are in material contradictions to each other and full of improvement and embellishment. If anyone of the three eyewitnesses including the injured is taken to be true in his account of the occurrence and acted upon as such then statement of the other eyewitness gives different version of the incident and a reasonable doubt is created regarding the actual occurrence, that profusely suggests that the incident did not take place in the manner and style as stated by the prosecution. The place of occurrence is surrounded by a number of agriculture fields and it has emerged in the testimony of the prosecution witnesses of fact that the villagers were working in their field at the time of the occurrence (which is around 8:00 a.m.) - in the morning and it has also been described in the first information report as well as in the testimony that a number of villagers arrived on the spot, however, this fact is contradicted by the prosecution witnesses of fact themselves to the ambit that no independent witness or person in the vicinity of the spot arrived on the spot and no independent witness has been examined by the prosecution which throws lot of doubt on the veracity of the prosecution story itself.

Insofar as the injury report is concerned that apparently is fake. It has been got manufactured by the prosecution. The gun shot wound caused to the injured is said to be simple in nature, its nature is neither fatal nor grievous. The injury allegedly sustained by the injured is artificially created. If the version of the prosecution witnesses and in particular, that of the injured Vipin Kumar is taken to be absolutely correct then this sort of injury cannot be caused to the injured in the manner alleged by the injured. However, in this case, the first Investigating Officer who was entrusted with the investigation had come to know during course of the investigation that Pushpendra was possessing illicit weapon which accidentally went off thus causing injury to the injured Vipin Kumar, the nephew of the informant Devendra Singh. It being so, the matter was tried to be improved and twisted by colouring it as an offence committed by the appellants on account of enmity with the informant. S.I. Randhir Singh, the first Investigating Officer of this case was examined by the defence and not by the prosecution. This also throws doubt on the veracity and authenticity of the prosecution case that any such incident ever took place in the manner alleged.

Dr. Gyan Singh PW-9 has categorically stated that this sort of injury can be caused only by firing from point blank range. It means that it cannot be caused from any other distance say without gap between the nozzle of the gun and the seat of injury but a categorical narration has been made in the statement of the injured Vipin Kumar, to the extent that the firing was done from a distance of 2 to 1 feet. The doctor witness asserts in his cross examination that this sort of injury can be caused only by firing with point blank range, i.e. without leaving any gap between the weapon and the seat of injury. Thus the version of the injured witness regarding manner of firing from a distance of 2 to 1 feet stands falsified.

Further site plan itself is vague and it does not indicate in precise manner or specific terms the very place where the appellants (accused) were in fact standing and opened fire on the injured. This vital aspect not only throws doubt on the entire incident but also proves fact that in fact no accused participated in such incident and no one was present on the spot. Had it been really so, how and why the site plan Ext. Ka-5, would have been silent about their specific position from where firing was done. The statement of the three prosecution witnesses of fact, if believed, to be true then the same are highly contradictory on material points.

Learned A.G.A. has controverted the aforesaid argument by submitting that the incident has been proved by the prosecution witnesses of fact namely PW-1, PW-2 and PW-3 beyond all reasonable doubt and the trial Judge has justifiably taken correct view of the incident and has recorded conviction and passed just sentence. The site plan depicts clearly the very spot marked by word capital "A" where the incident took place. Doctor's testimony on point of distance is opinionative, it is not binding and conclusive.

Also considered the above submissions pros and cons made by both the sides.

In the light of the rival submission and the respective claim of the appellants and the prosecution, the moot point that arises for adjudication of this appeal relates to fact whether the testimony of the prosecution witnesses of fact is innocuous and inspiring confidence and the charges framed against the appellants have been proved beyond all reasonable doubt ?

In that regard before appraisal and analysis of the facts and circumstances of the case vis-a-vis testimonial account of the occurrence is taken note of and addressed on its merit, contents of the first information report are to be taken note of at this juncture in the beginning. It is gathered that the first information report was lodged by the informant Devendra Singh on 30.08.2006 at Police Station Naugawa Sadat at 9:30 p.m. with the description that on 29.08.2006 at about 8:00 a.m., his son Pushpendra and his nephew Vipin Kumar (Bhanja - who had come over to his house) were proceeding towards tubewell of the informant after taking gadgets meant for irrigating his field on bullock-cart (Buggi). The informant had arrived at his agriculture field / tubewell prior to his son and his nephew and was waiting for them over there. When they did not arrive in time, out of curiosity, the informant went in search of them towards the village. While proceeding so, he heard sound of fire near sugarcane filed of Netram then he rushed towards the spot where he sighted Kuwarpal, Vijendra and Santram firing on his nephew and secured their escape towards the southern side.

On arriving at the spot, he found his nephew lying on the cart seeped in blood. The motive for committing the offence was enmity and animosity on account of pending litigation with the informant. When asked by him on the spot, he was told by his son and the nephew that all the three accused were possessing countrymade gun, all fired from their respective weapons and shot fired by Kuwarpal hit his nephew. After arrival of the informant on the spot and subsequently to him, a number of persons arrived on the spot and they took the injured to the government hospital Amroha - Moradabad due to which the first information report could not be lodged earlier. This basic description of the occurrence appears in the written report Ext. Ka-1.

Now in the wake of the aforesaid factual description of the occurrence, the relevant aspects of the case are to be assessed and analyzed properly. The relevant point for adjudication crop up regarding the presence of Devendra Singh (informant) on the spot, firing by the appellants on the spot - their position and causing of gun shot injury to the injured Vipin Kumar around 8:00 a.m. on 29.08.2006. In that regard, the three witnesses of fact have been examined as PW-1 Devendra Singh, the informant. PW-2 Pushpendra - who was accompanying the victim at the time of the occurrence and was sitting beside him on the bullock-cart (Buggi) and PW-3 Vipin Kumar, the injured of this case.

Insofar as the manner and the description of the incident as has been given in the written report is concerned, the same is more or less similar to as appearing in the testimonial account of the three witnesses of fact with certain variations. The first information report suggests that a number of other persons also arrived on the spot and the injured was taken to the government hospital with their help, whereas, testimonial account of the witnesses of fact does not support this version because Pushpendra PW-2 and Vipin Kumar PW-3 have categorically stated that except Devendra Singh and his uncle, no one else from the nearby place arrived on the spot.

However, in the testimonial account of Vipin Kumar PW-3, obviously it has emerged that a number of persons who were working at the time of occurrence in their fields but no one arrived on the spot. Therefore, the description to the magnitude of the other persons arriving on the spot does not appear to be sound one, for the reason that three shots were fired on the spot and that too as per testimonial account of the prosecution witnesses, were fired at certain gap within a span of one minute intermittently and not in one moment. It means that the three shots were fired intermittently within a minute and there was gap in firing each shot. If it was so, how can it be that persons working in the nearby field were unaware of the incident and did not arrive on the spot and if they arrived on the spot, who were those persons and what were their names, have not been brought on record. Though this variation is of little significance but description contained in the first information report is one aspect based on claim that a number of persons arrived on the spot becomes improbable. It alludes to the inference that the first information report is motivated and improved one on the point of incident. The enmity is admitted in the first information report and in the testimony of the prosecution witnesses of fact, it has been asserted time and again that a number of cases are going on between the parties wherein both the sides are contesting their respective case.

In the testimonial account of PW-1, he claims that at the time when he arrived on the spot, he was told by his nephew that shot of Kuwarpal hit him and the shot was fired by all the three assailants, whereas, PW-2 in his cross examination in paragraph no.17 of page no.12 of his testimony has asserted that he did not tell anything to his father (the informant PW-1 Devendra Singh) as to who were assailants, whereas, testimonial account of PW-1 on this point appears to be an improvement subsequently to the occurrence.

As per testimony of Vipin Kumar PW-3, relevant query pops up, while considering particular position of both the witness on the bullock-cart when the incident occurred that both Pushpendra and he himself, were sitting side by side on the bullock-cart and the distance between them was about half feet i.e. 6 inches and three shots were fired on them by three persons, prime motive was to kill Pushpendra and not the nephew of the informant with whom assailants had no cause. But not a single pellet touched Pushpendra that is normally not possible in such circumstances because the weapon used was countrymade gun and shots were fired not by one person but by three different persons which should be from three different directions but not a single pellet hit the other person (say Pushpendra) who was sitting beside the injured is highly improbable because dispersal of pellets will be always there. Not only this, but the astonishing aspect of the case is that three shots were fired in the direction of both Pushpendra and Vipin Kumar who were sitting on the bullock-cart but there is no pellet mark found even on the bullock-cart, that also raises reasonable doubt regarding the manner and the style of the firing opened by the assailants on the spot that not a single pellet mark was caused / found on the bullock cart.

It is noticeable that prime object of the appellants was to kill Pushpendra and he was sitting side by side Vipin Kumar - the injured - then how Pushpendra escaped unhurt on the spot and Vipin Kumar sustained injuries in the incident when Pushpendra remained there and did not escape to save himself. It is beyond comprehension. There is no description of the sort in the narration of the incident in the written report (Exhibit Ka-1) that the assailants tried their best to cause injury / harm to Pushpendra on the spot. It was never their (assailants) objective merely to open firing on the two persons available on the spot which is not justified when only one of the two was the target, moreso when the other most wanted objective (Pushpendra) was well within target. It is virtually admitted that there is enmity between the parties. Prime motive of the assailants is claimed to cause harm to Pushpendra then why will assailants spare their main objective and instead will satisfy themselves only by injuring some other person against whom the assailants had no cause or enmity. This motivating aspect has not been explained even then least by the prosecution.

Moreover, Dr. Harish Chand Dua PW-4 has proved the x-ray plate no.4103 (material Ext. 1) and the x-ray report Ext. Ka-2 wherein "no bony injury was seen". He conducted the x-ray examination of left knee of the injured Vipin Kumar, on reference being made by C.H.C. Amroha on 29.08.2006.

Relevant to take note of the medical examination of Vipin Kumar on the same day i.e. 29.08.2006 at 10:00 a.m. at C.H.C. Amroha by the Medical Officer, wherein, injuries as referred hereinabove were said to be gun shot wound. Injury no.1 was gun shot wound of entry and the injury no.2 was gun shot exit wound and it was kept under observation and referred for treatment and the same was found to be fresh. Supplementary report of the same was prepared by the Medical Officer, C.H.C. Amroha, J.P. Nagar on 11.09.2006 wherein "no bony injury was seen". The loss of soft tissue was seen on the back of knee joint as marked on plate. This injury was said to be firearm injury but "simple in nature".

The medical examination report and supplementary report have been proved as Ext. Ka-7 and Ext. Ka-8, respectively. But it is quite surprising that the doctor witness in his cross examination has categorically stated that this sort of injury cannot be caused by firing from distance, but it can be caused only by firing from point blank range. It means that the injured was hit by shot from point blank range and it can not be a shot from a distance of 2 to 1 feet. This testimony is particular and peculiar and has come forth from none other than the doctor who has specifically asserted that this sort of injury can be caused only by firing from point blank range. This witness has neither been declared hostile nor has been re-examined by the prosecution in order to clarify the situation and that testimony stands unrebutted and admitted to the prosecution itself. It is not opinionative but testimony beyond doubt and there is no reason to discard it. If it is so, it is absolutely certain that the investigation done by Randhir Singh DW-1 was correctly done when he filed charge sheet against Devendra Singh, Pushpendra under Sections 338, 211 I.P.C. at Case Crime No.834 of 2006, for misleading the police with a view to falsely implicate the appellants in this case. The superior police officers acted mechanically without caring for the element of truth involved in the claim of the prosecution.

The testimonial ramification of the doctor witness Gyan Singh in his cross examination regarding the manner of causing injury to the injured establishes fact beyond doubt that the occurrence never took place in the manner and style as stated by the injured PW-3 himself - PW-3 and the other witnesses of fact namely Devendra Singh PW-1 and Pushpendra PW-2. Certainly, they are not telling the truth but they are under circumstances interested witnesses and their testimony on the whole does not inspire confidence, particularly for the reason that the circumstances of the case when tallied with the style of occurrence does not conform to it in its practical shape.

In the wake of the above, their testimonial account must have been corroborated / supported by some independent testimony or proved and admitted circumstance but that particular aspect is missing in this case. It is surprising that the shot hit on the knee of the injured Vipin Kumar and there being entry wound and exit wound, but it did not cause any fracture and was found to be simple injury, neither grievous nor fatal. S.I. Randhir Singh has been produced by the defence and he has proved the charge sheet filed by him under Sections 338, 211 I.P.C. which is dated 20.09.2006 numbering 148 of 2006, however, it was got cancelled by the subsequent Investigating Officer of this case through their superior officers.

Merely because some application was made to the D.I.G. Moradabad Range, who in turn transferred the investigation of the case from district J.P. Nagar to Moradabad range then the investigation was done by as many as three different Investigating Officers - say in chronological order, Surendra Pal Singh PW-7 who took over investigation on 28.10.2006 pursuant to the order passed by S.S.P. Moradabad in Case Crime No.834 of 2006, under Section 324 I.P.C. Thereafter, the investigation was taken over by Maharaj Singh PW-8 on 25.12.2006. He took over the investigation of the case and added Section 307 I.P.C. on the basis of the medical report and documents brought on record, consequently, converted the case from Section 324 I.P.C. to 307 I.P.C. - would not mean that the subsequent Investigating Officers alone were justified for filing charge sheet. One of the three subsequent Investigating Officers got cancelled the charge sheet submitted by Randhir Singh DW-1 from his superior officer.

It is surprising that the medical documents are absolutely silent about any fatal injury and the nature of the injury was simple and left knee was hit by gun shot. Certainly It cannot be treated to be vital part of the body. Assuming it to be that any shot was fired even then considering the nature of the injury to be simple and no bony injury was seen that alone will not travel beyond the purview of Section 324 I.P.C. It appears that PW-8 was highly motivated and enthusiastic and he has exaggerated the matter in order to please his superior police officers because the investigation was transferred by order of the D.I.G. Moradabad Range from J.P. Nagar to Moradabad. Such attitude should be controlled by the superior officer. Here such supervision is woefully wanting.

S.I. Kushal Pal PW-6 took over the investigation on 26.04.2007 after the case was converted under Section 307 I.P.C. by the Investigating Officer PW-8. He prepared the site plan Ext. Ka-5 and filed the charge sheet Ext. Ka-6. A glance over the site plan is reflective of fact that there is no whisper about the place from where the shots were fired and where the accused were in fact standing on the spot. It merely indicates place marked by word capital 'A' where the incident is alleged to have taken place. It also indicates the place marked by word 'B' from where the informant Devendra Singh saw the occurrence but there is no mention of the actual position of the assailants as to from where they fired on the injured, it is silent about the actual position of the assailants though passage of their arrival on the spot and escape from the spot have been marked by different arrows. This omission in not specifying exact position of assailants in the site plan also throws lot of doubt on the actual place of the occurrence and the presence of the appellants on the spot. It virtually creates serious doubt about actual physical presence of the assailants on the spot. All these descriptions, if taken together regarding the injury being caused to the injured in the manner and style in which it is claimed by the informant to have taken place and by description of the two other witnesses of fact namely Pushpendra PW-2 and the injured Vipin Kumar PW-3, render the whole prosecution story improbable in the face of inherent infirmities appearing in the case and the testimony of Dr. Gyan Singh PW-9.

Besides it is also gathered that in the testimony of Pushpendra PW-2, it has emerged that as soon as firing was done, he did not make any attempt to secure his escape from the place of occurrence. Further in the testimony of the three prosecution witnesses of fact, it is noticed that after the occurrence, the injured was not taken to the hospital though it is claimed that there was severe bleeding caused by causing the injury but the injured was taken by the informant first to the police outpost 'Munda Khera'. It means that prior to the lodging of the first information report, there was interference by the police, therefore, process of deliberation with the police prior to the lodging of the first information report cannot be ruled out under prevailing facts and circumstances of the case.

Insofar as on this material point and in particular the manner and style of causing the incident, and the possibility of causing this sort of injury as asserted by the doctor witness PW-9 is concerned, (to the ambit of firing from point blank range), it stands falsified by none other than the testimony of the injured himself when he says that the shot was fired from a distance of 1 to 2 feet. It means that the injured witness is tutored one and he is not telling the truth and his testimony is fraught with embellishment. Either of the two description may be correct if the shot was fired from a distance 1 to 2 feet then description of the occurrence as given by the prosecution witnesses of fact falsifies the very nature of the injury and in case the testimony of PW-9 is believed to be accurate, moreso it being reasonable on point of nature of injury caused then the case of the prosecution is thrown out. Thus the manner and style of the occurrence as claimed by the prosecution becomes highly improbable and it cannot be accepted with certainity that it in fact occurred as per claim of the prosecution witnesses of fact. Certainly, on account of enmity based on litigation, there are chances of developing a false case and trying to falsely implicate the appellants in this case once something unfortunate happened with the injured either on the spot or somewhere else. The version of the injured that the injury was caused by firing from a distance of 2 to 1 feet cannot be accepted as correct position. Here in this case, in view of the testimony of the doctor as to how injury in this case can be caused to the injured.

The trial Judge could not consider aforesaid aspects of the case in its right perspective and took casual view of the occurrence and the testimonial account which obviously is in contrast to the medical evidence on point of the causing of the occurrence thus bypassing vital testimony of Dr. Gyan Singh PW-9 when he categorically asserted that the nature of the injury is indicative of fact that the fire was shot from point blank range meaning thereby that it cannot admit of firing from any distance, be it 1 or 2 feet. There is improvement also when FIR describes that a number of persons were working in the field at the time of the occurrence (8:00 a.m.) in the morning still no one arrived on the spot, whereas the description of the first information report shows that a number of persons arrived on the spot and with their help, the injured was taken to the hospital, but here too facts have been distorted because the injured was first taken to the police outpost Munda Khera by the informant. It is admitted position that no villager or farmer who was working on his/her field in the vicinity of the place of occurrence has been examined by the prosecution as such and no such name is figured in the investigation by any Investigating Officer.

The trial court somehow overlooked these vital aspects and diluted the same by imaginary reasoning, but the above factual aspects cannot be diluted by any stretch of reasoning and it requires complete and satisfactory explanation which is woefully lacking.

Thus, on the basis of analysis made herein above, this Court is of the view that the trial court's finding on the point of recording conviction against the accused-appellants for the offence under Section 324 I.P.C. is not in accordance with the evidence and law and the prevailing facts and circumstances of the case and the same is not sustainable, in the result, the judgment and order of conviction impugned here in this appeal is liable to be set aside and the appellants are liable to be acquitted and the appeal is liable to be allowed.

For all the reasons stated above, the appellants are entitled to the benefit of doubt and, accordingly, entitled to acquittal.

In the result, the appeal is allowed and the the judgment and order of conviction and sentence dated 08.06.2011 passed by the Additional Sessions Judge / Special Judge, J.P. Nagar, in Session Trial No.225 of 2007 State Vs. Kuwarpal and others, arising out of Case Crime No.834 of 2006, under Section 324 I.P.C., Police Station Naugawa Sadat, District J.P. Nagar, is hereby set aside.

Appellants Kuwarpal, Vijendra and Santram are acquitted of the charge levelled against them in this case. They are on bail. They need not surrender. Their bail bonds cancelled and sureties stand discharged. They are required to furnish bonds within a month in compliance of Section 437A of the Criminal Procedure Code.

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

Order Date :- 25.03.2021

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