Akhilesh @ Pappu vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 

 
Court No. - 45
 

 
Case :- CRIMINAL APPEAL No. - 1217 of 1993
 

 
Appellant :- Akhilesh @ Pappu
 
Respondent :- State
 
Counsel for Appellant :- R.S. Sengar, Adarsh Bhushan, Jeetendra Kumar Sharma, Sushant
 
Counsel for Respondent :- A.G.A.
 

 
connected with
 

 
Case :- CRIMINAL APPEAL No. - 1300 of 1993
 

 
Appellant :- Arvind Kumar
 
Respondent :- State
 
Counsel for Appellant :- Adarsh Bhushan, Jeetendra Kumar Sharma, Sushant
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Sameer Jain,J.

(Delivered by Hon'ble Manoj Misra, J.)

1. These two appeals question the judgment and order dated 07.07.1993 passed by the Additional Sessions Judge/Special Judge (E.C. Act), Etawah in Sessions Trial No. 11 of 1992 convicting Arvind Kumar (appellant in Criminal Appeal No. 1300 of 1993), under Section 302 I.P.C., and Akhilesh @ Pappu (appellant in Criminal Appeal No. 1217 of 1993), under Section 302 read with Section 34 I.P.C., and sentencing them to imprisonment for life. As the two appeals arise from a common judgment and order, they are being decided by a common judgment and order.

INTRODUCTORY FACTS

2. On a written report (Exb. Ka-1), scribed by Dev Narayan Mishra (not examined), signed by Smt. Sobha Awasthi (PW-1), first information report (FIR) was registered at P.S. Auraiya, District Etawah on 21.08.1991 at 7.45 am, vide GD No. 15 (Exb. Ka-5) of which Chik FIR (Exb. Ka-4) was made/ prepared by Srinarayan Awasthi (PW-6). It is alleged in the FIR that the accused-Arvind Kumar (appellant in Crl. Appeal No. 1300 of 1993) and Akhilesh @ Pappu (appellant in Crl. Appeal No. 1217 of 1993) are both sons of Kunwar Pal and they live across Kharanja (vertical brick-laid road), right in front of the informant's house. It is alleged that informant's husband Satish Chand (the deceased) had built a latrine on the south eastern corner of her house which falls in front of Kunwar Pal's house. As the toilet was in front of Kunwar Pal's house, Kunwar Pal and his sons were not happy with it and were building pressure on the deceased to remove the toilet, but the informant's husband was not agreeable. Two days before the incident, the accused-appellants had threatened the informant in connection with that issue. It is alleged that in the night of 20/21.08.1991 while informant was sleeping in a room, on the southern side of her house and her husband (the deceased), her son (Saurabh) and daughters Km. Seema (PW-2) and Km. Tapasya were sleeping in the courtyard, where a lighted lantern was hanging as usual, at about 2 am, informant's sleep got disturbed because of noise. When she woke up, she saw that her husband (the deceased) was engaged in a scuffle with Arvind whereas Arvind's brother (Akhilesh) was pressing the mouth of her daughter (Km Seema-PW-2) to restrain her from screaming. It is alleged that as soon as the informant raised an alarm, Akhilesh exhorted Arvind to finish off the deceased. Upon which, a shot was fired by Arvind at the deceased, who fell and died. After firing the shot, Arvind and Akhilesh escaped by scaling the wall of the south-east corner of a bathroom of her house. The informant alleged that there was a third person also, who was sitting on the wall and keeping a watch on the incident and as soon as the incident was over, he ran away. In the report it is alleged that the entire incident was witnessed in the light of the lantern. It was also alleged that Shyam Sundar Mishra (not examined) had also noticed these three accused jumping off the wall and escaping in the light of a torch. Informant alleged that the third person is not known to her but she can recognise him if he is produced in front of her. The FIR also alleges that an empty cartridge was found lying at the spot. Upon registration of the FIR, inquest was conducted by S.I. R.N. Sharma (not examined) under the direction of PW-5. The inquest report (Exb. Ka-6) describes the body as having been laid on a Chadar (bed-sheet) spread on the ground.

3. The autopsy was conducted by Dr. R.N. Sharma (PW- 4) at about 3.30 pm on 22.08.1991. The autopsy report (Exb. Ka-3) recites:-

EXTERNAL EXAMINATION:

Average body built, rigor mortis passed from both the extremities. Decomposition started. Skin peeling off at places. Abdomen, penis, scrotum distended.

ANTE-MORTEM INJURIES:

(i) Firearm wound of entry 1 cm x 1 cm x chest cavity deep on the anterio medial aspect of left shoulder 7 cm below to head of humerus. Margins inverted;

Blackening, tattooing and scorching around the wound;

(ii) Blackening, tattooing in an area 15 cm x 12 cm extending from left side face, sic, left side of neck and some portion of chest.

INTERNAL EXAMINATION:

(i) Left side 3rd rib fractured, left pleura lacerated, left lung lacerated, pericardium lacerated, heart lacerated, one metallic bullet found embedded in the heart; stomach empty, small intestine had digested food matter, large intestine had faecal matter with gases.

CAUSE OF DEATH:

Death due to shock and haemorrhage as a result of ante-mortem injuries.

ESTIMATED TIME OF DEATH:

About 1 and ½ day before.

4. During investigation, the I.O. collected an empty cartridge of .315 bore of which seizure memo (Exb. Ka-10) was prepared. The I.O. collected torches of witnesses, namely, Gyan Prakash and Ramjas (who was not examined), and prepared custody memo (Exb. Ka-12). The I.O. also collected blood-stained earth and plain earth from the spot of which memorandum (Exb. Ka-9) was prepared. The I.O. had collected lantern from Shobha Awasthi (the informant) which was allegedly hung at the spot and in the light of which the incident was witnessed. The I.O. also collected torch from witness Shyam Sundar. A composite collection and custody memo of torch and lantern (Exb. Ka-2) was prepared. The I.O. also prepared site plan (Ex. Ka-13) and, after recording the statement of witnesses and completing the investigation, the I.O. Sri K.R. Mishra (PW-5) submitted charge-sheet (Exb Ka-16) against both the appellants. After taking cognizance on the charge sheet and committal of the case to the Court of Session, vide order dated 02.04.1992, the trial court framed charge against appellants for the offence punishable under Section 302 I.P.C. The appellants denied the charge and claimed trial.

5. During the course of trial, the prosecution examined six witnesses: PW-1 (Shobha Awasthi) and PW-2 (Km. Seema), namely, the wife and daughter, respectively, of the informant, the eye-witnesses of the incident; Pahalwan (PW-3) - the person who took the written report of the informant to be lodged at the police station concerned; Dr. R.N. Sharma (PW-4) - the autopsy surgeon who conducted the autopsy of the body of the deceased; Keshav Ram Mishra (PW-5) - the investigating officer (I.O.) who proved various stages of the investigation; and Sri Narayan Awasthi (PW-6) - the constable who made GD entry of the written report and prepared Chik FIR thereof.

6. After the examination of the prosecution witnesses, the incriminating circumstances appearing in the prosecution evidence were put to the accused while recording their statement under Section 313 Cr.P.C. Both the accused denied their involvement and claimed that they have been falsely implicated because of the enmity arising out of Pradhan Election. It was claimed that in the Pradhan election, the accused party had supported Bhogi Lal Pandit as against Aditya Mishra, who was elected Gram Pradhan. It was stated that Aditya Mishra runs a school in which the informant is a Principal. It was stated that the informant was elected unopposed on the post of Up Pradhan and for the above reason, the informant bore enmity with the accused and has, therefore, falsely implicated the accused. The accused, however, did not lead any evidence in defence.

7. The trial court after considering the ocular account rendered by PW-1 and PW-2 and upon finding that the incident occurred within the house where the presence of PW-1 and PW-2 was natural and that there was no serious conflict between the medical evidence and the ocular account rendered by the witnesses, taking into account that the first information report, in the facts of the case, was not delayed, recorded conviction and sentenced the appellants as above.

8. We have heard Sri V.P. Srivastava, learned senior counsel, assisted by Sri Sushant, for the appellants and Sri J.K. Upadhyay, learned A.G.A., along with Miss. Sanyukta Singh, brief holder, for the State and have perused the record.

SUBMISSIONS ON BEHALF OF THE APPELLANTS

9. Questioning the judgment and order of conviction passed by the court below, the learned counsel for the appellants submitted as follows:-

(i) The prosecution has not been able to prove a serious motive for the crime;

(ii) The ocular account does not inspire confidence for the following reasons:-

(a) If the accused had entered the house with an intent to finish off the deceased and were armed with country made pistol as is the ocular account, there is no logical reason why the accused would not use it at the first opportunity. The allegation that there was a scuffle with the deceased does not inspire confidence therefore, the incident occurred in some other manner than alleged and the prosecution is hiding true facts;

(b) The ocular account would suggest that the appellant (Arvind) fired a shot at the deceased while the deceased was in a standing position with his hands held by appellant (Akhilesh). Holding of hands by appellant (Akhilesh) is neither disclosed in the FIR nor in the statement recorded under Section 161 Cr.P.C. Further, if the shot had been fired in that position, the bullet would not travel in a downward direction as is disclosed by the autopsy surgeon. According to autopsy surgeon (PW-4), the bullet travelled in a downward direction which suggests that the shot was fired while the deceased was lying on the cot or he was at a much lower level than the assailants;

(c) There appear two injury marks on the body of the deceased suggesting that two shots were fired at the deceased whereas the ocular account is in respect of solitary shot which renders the ocular account untrustworthy and unacceptable.

(d) The empty cartridge was recovered from bathroom at quite a distance from the place where the shot is alleged to have been fired. This suggests that no one witnessed the incident and the ocular account is untrustworthy.

(iii) There is an inordinate delay in lodging the FIR. The incident allegedly occurred in the night, at about 2 am, whereas, the report has been lodged at 7.45 am after 5 hours 45 minutes. This delay would suggest that either none was present at the time of the incident and the informant had to be called to the spot or it is a case where the prosecution story was developed after deliberation on the basis of suspicion and guess work;

(iv) That the independent witnesses, namely, Gyan Prakash, Ramjas and Shyam Sundar, amongst others, were not examined as a result whereof an adverse inference be drawn against the prosecution case.

(v) The scene of crime was altered before the I.O. could reach the spot as the body was found lying on a Chadar with a pillow underneath the head therefore, the ocular account cannot draw support from the material collected during the course of investigation.

SUBMISSIONS ON BEHALF OF THE STATE

10. Per contra, the learned AGA submitted that this is a case where the incident took place within the house of the deceased. PW-1 is the wife and PW-2 is the daughter of the deceased. Their presence at the spot, particularly during night hours, is natural. The source of light has been disclosed both in the first information report and in the statement made to the I.O. as also in the deposition before the Court. The source of light was shown during investigation and the I.O. also noticed the lantern of which custody memo was prepared and the same was produced as a material exhibit. Since there was death of the husband of the informant, who had two daughters and a young son, it is not expected that she would rush to lodge the first information report leaving her two daughters and a young son back therefore, the written report, after being scribed and signed by the informant, was dispatched through PW-3, who lodged the same at the police station in the early hours of the morning. PW-3 confirmed that the written report was handed over to him at about 3 am for being lodged at the police station. Under these circumstances, it cannot be said that there is a delay in lodging the report.

11. In respect of the motive for the crime, the learned AGA submitted that the motive is a mental condition which none can speculate upon therefore, whether, in a given set of circumstances, the motive was sufficient for the crime or not is not to be guessed by the Court. Moreover, it is a case based on ocular account therefore, existence or non-existence of motive is not of material significance. Otherwise also, the prosecution has been successful in proving the motive, which is, that the accused party had been objecting to the construction of the latrine which was right in front of the house of the accused, across the Kharanja.

12. In respect of there being conflict between the ocular account and the medical evidence, the learned AGA submitted that there is no apparent conflict. The ocular account is in respect of a single shot fired at the deceased. Notably, there is a solitary gun shot entry wound and the other injuriy noticed is of discharge of gun powder. It has been submitted that merely because the direction of the shot was downwards it would not be sufficient to disbelieve the ocular account because as per the ocular account, the deceased was caught hold by hand by Akhilesh and was shot by Arvind. In that moment, it is possible that the deceased might have bent while Arvind in an erect position would get an opportunity to fire from close, on or about the shoulder region, with barrel pointing downwards so that the bullet could enter the chest cavity near the left shoulder joint, break the rib, proceed downwards, lacerate the lung and the heart and get embedded there as was found during autopsy. In that kind of a posture, if the shot is fired from a country made pistol, there would be discharge of gun powder resulting in blackening of the face, neck and shoulder region as is noticed while recording injury no. 2 therefore, it is not a case where two shots were fired rather it is a case of single shot, which gave rise to two noticeable injury marks, one where the bullet penetrated the body and the other which was on account of discharge of gun powder. It has thus been submitted that there is no conflict between medical evidence and the ocular account.

13. In respect of the submission as to why the accused would enter into a scuffle if they had a desire to finish off the deceased from the beginning, it has been argued by the learned AGA that it is quite possible that the accused might have had a desire to molest the young daughter of the informant (PW-2) and, in that process, the deceased, who was sleeping in the courtyard, might have got up, resulting in a scuffle. It was submitted how the incident started would not be relevant at this point. What is relevant is that both the appellants had entered the house at night. Both participated in the crime. Appellant-Arvind fired the shot whereas the appellant-Akhilesh caught hold the deceased and exhorted the other appellant to fire the shot. As the ocular account is trustworthy and is corroborated by medical evidence on these material particulars, there would be no justification to disbelieve the prosecution account. It was thus prayed by the learned AGA that the prosecution has been able to prove its case beyond reasonable doubt, hence, the appeal be dismissed.

PROSECUTION EVIDENCE

14. Before we proceed to weigh the rival submissions and analyse and evaluate the prosecution case/ evidence, it would be appropriate to notice the testimony of the prosecution witnesses in some detail. The prosecution examined as many as six witnesses, their testimony, in brief, is as follows:

15. PW-1 - Shobha Awasthi - Informant - the wife of the deceased. PW-1 deposed about the location of her house being across the Kharanja, in front of the house of the accused. She stated that at the east corner of her house, her husband got a latrine/toilet constructed which falls right in front of the house of the accused across the Kharanja to which the accused had objection and were pressing her husband to demolish the latrine. In connection with which, on 19.08.1991, in the evening, there was an altercation between the deceased and the accused-Arvind and Akhilesh, who left extending threats to the deceased. PW-1 stated that her husband was a teacher in Nehru Inter College, Auraiya. She stated that in the night of the incident (20/21.08.1991) while she was sleeping near the opening of a doorless kothri (a small room) of her house, on disturbance, at about 2 am, she woke up and saw her neighbour (Arvind) and her husband grappling with each other. She came out, and in the light of lantern lit there, she saw that accused Akhilesh @ Pappu was pressing the mouth of her daughter (Seema-PW-2). Underneath the Chappar, her other daughter (Tapasya) and son (Saurabh), who are aged 14 years and 9-10 years, respectively, were lying on cot. She stated that that day her husband (deceased) was lying in the courtyard (Aangan) on a cot. She also stated that with Arvind and Akhilesh, there was one unknown person who was squatting on the wall of the house. She stated that when she came out and raised an alarm, Akhilesh exhorted Arvind to finish off the deceased, upon which Arvind fired a shot from close distance at the deceased. The shot hit the deceased, he fell and died. Whereafter, the accused escaped by scaling the wall of the bathroom. Soon thereafter, neighbours Shyam Sundar and others arrived. They also told her that they had noticed Arvind and Akhilesh in the light of torch. PW-1 stated that she dictated the report to Dev Narayan Mishra. Thereafter she signed the report and gave it to Pahalwan (PW-3), her neighbour, to lodge the report at the police station. The report was marked Exhibit Ka-1. She identified the two accused Arvind and Akhilesh in court. She stated that the police had collected the lantern and gave its custody to her. She proved the custody memo and also produced the lantern.

In her cross-examination, in respect of construction of the house and the latrine/toilet, she stated that her house was constructed 13/14 years ago whereas the toilet was constructed 6-7 years later. She stated that prior to this toilet/latrine, there was no other toilet/latrine in her house. She stated that the latrine is covered and is about two hands away from the Kharanja, across which, there is house of the accused. She stated that Kharanja is about 15 feet wide with drain on both sides and the water of both sides is discharged into that drain. She was cross-examined, at length, to ascertain whether she is aware of her neighbourhood and surroundings, but nothing much could be elicited therefrom. Consequently, we do not propose to notice the same. Suggestions were put to her that her husband had opened a bank with the Gram Pradhan (Aditya Narayan Mishra) by the name of Neelanchal and people thought that he had lot of money. She denied both the suggestions.

In respect of the source of light to witness the incident, she stated that that day was Ekadashi of Shukl Paksh meaning thereby that it was close to full moon. She stated that she is aware that on that day the moon rises near about evening time and sets by about 1.30 am in the night. She denied the suggestion that because it was month of August, kerosene lamp would have had attracted insects therefore, it was not there. She also denied the suggestion that that night it was raining and as there was a full moon, no lantern was lit.

In respect of reporting the incident regarding extension of threat for removal of the latrine, she stated that no report in that regard is to her knowledge but, if her husband has made a report, she is not aware of that. She stated that the accused raised objection regarding the toilet on 19.08.1991 but not before. In respect of the time when they raised objection and extended threat, she stated that when threat was extended it must be between 5-6 pm. She stated that threat was not extended by entering the house but at the door of her house. Threat was extended to her husband (the deceased) and altercation in that regard must have lasted about an hour. She stated that she did not venture out to listen to what all were being said but her husband had told her that the accused were threatening him. She stated that she is not aware whether any other person was present when threats were extended. She denied the suggestion that the story of extension of threat has been introduced on legal advise.

On further cross-examination, she stated that at the time of the incident when she woke up, moon was there and the time must have been around 1-1.30 am. She stated that after killing her husband, the accused escaped from her house at about 2 am. She stated that she saw the accused when they were inside the house and not when they escaped from the house.

In respect of the period during which the accused stayed in the house of the informant, PW-1 stated that between her waking up, on sensing disturbance, and the accused leaving the house at least half an hour must have elapsed.

In respect of the scuffle between her husband and the accused, she stated that during the scuffle, Arvind held a pistol in his hand but he did not assault her husband with that pistol. She stated that at the time of the scuffle, the deceased must have been 1 and ½ pace north of the cot where he had slept. She added that during the course of the scuffle, she was making attempts to come close to her husband but when she was just few paces away, Arvind fired at the deceased. She stated that, at that time, Akhilesh had caught hold the deceased. Prior to that, Akhilesh had been pressing the mouth of her daughter (Seema). She stated that Akhilesh caught hold the deceased when she came near to the deceased and it was only then, that Akhilesh exhorted Arvind to fire.

In respect of the posture which the deceased held at the time of fire, she stated that when Arvind fired shot at the deceased, deceased was in a standing position and Akhilesh had pulled both his hands from behind. She stated that when the shot was fired, her husband's face was towards north and Arvind's face was towards south.

In respect of the distance from where the shot was fired, she stated that it was a close shot and the pistol was near about touching the body of the deceased. She stated that at that point of time, the distance between the deceased and Arvind must have been less than one hand. She stated that the shot struck the deceased on left side chest. She stated categorically that a single shot was fired and no sooner the shot struck the deceased, the deceased fell and the accused ran away. She also stated that after the shot was fired, the pistol was opened in the courtyard (Aangan). She stated that she had not noticed any weapon in the hand of Akhilesh or with the person who was sitting on the wall.

In respect of arrival of the villagers after the incident, she stated that first to arrive was Shyam Sundar; thereafter, there were others including Ramjas and Gyan Prakash. Shyam Sundar, Ramjas and Gyan Prakash had also noticed and recognised the accused while they were running away.

In respect of the time when the report was scribed, she stated that after the villagers, namely, Shyam Sundar, Ramjas and Gyan Prakash, arrived, at about 3 am, she dictated the report to Devendra Narayan Mishra, who is maternal uncle of the deceased, and it was handed over to Pahalwan to be lodged at the police station.

On further cross-examination, she stated that she is a teacher in a Junior High School since 1967 and since 1973 she is a Principal. She stated that Aditya Narayan Mishra, the current Gram Pradhan, is manager of that institution.

In respect of the empty cartridge recovered from her house, she stated that empty cartridge had not fallen in the Aangan (courtyard) but was noticed in the bathroom and it was recovered by the police from the bathroom and its position was not disturbed by anyone. She stated that she came to know about the cartridge lying there when villagers had come in the night and had noticed the same in the light of torch.

She stated that neither she nor any of her children received any injury. She stated that as soon as the accused left, after killing the deceased, she came near the body of the deceased, lifted it and put its head on her lap. She stated that, at that time, the body was bleeding and her clothes got blood-stained but she had not shown blood-stains to the I.O. If the I.O. had seen those blood-stains then she cannot say. Later, those clothes were washed. She stated that her daughters' clothes were not blood-stained.

At this stage, she was confronted with her report where she had not disclosed that the deceased was caught hold by Akhilesh @ Pappu. She stated that during investigation, she had disclosed it to the I.O. but if that had not been written, she cannot tell the reason for the same. She also stated that though, that night, her husband was lying on the cot but at the time when he was killed he was not on that cot and, therefore, on that cot, there was no blood. She stated that when the shot was fired at her husband, he fell on the ground of the courtyard and there was no cloth there. Immediately thereafter, she clarified that when villagers arrived, the body was covered with cloth and when the I.O. arrived, the body was in the same position and the head of the body was on her lap. But the I.O. took off the head from her lap and placed it on the floor. She stated that she dictated the written report at 3 am while her husband's head was on her lap. She again reiterated that empty cartridge was not at the spot where the shot was fired but was noticed in the bathroom.

She denied the suggestion that in the darkness of the night she did not witness the incident and that the incident was caused by some unknown person. She also denied the suggestion that at the time of the incident, her husband was alone. She also denied the suggestion that no empty cartridge was recovered. She denied the suggestion that the report was not lodged by her and that the same was lodged later, after deliberation.

On further cross-examination, she stated that it must have taken 15 minutes to dictate the report. She stated that the report was carried by Pahalwan son of Shyam Sundar to lodge at the police station. She stated that she is not aware as to which conveyance was used by him to lodge the report but Pahalwan uses a cycle. She stated that he must have left at about 3 am. She denied that a police personnel had arrived at the spot before the arrival of the I.O. She stated that the I.O. first inspected the spot and thereafter he interrogated her and had also noticed the lantern etc. The I.O., thereafter, carried out inquest and the proceedings relating thereto. She stated that the body was carried in a trolley attached to the police jeep. With the body, her dewar (Mahesh Chand) and her brother (Kamla Kant) and Uma Kant were there along with several others. She stated that along with the I.O. there was another Inspector, who left by 12 noon. She denied the suggestion that she was not at Quotara (the village where the incident took place) but had to be called after the incident had taken place. She denied the suggestion that she arrived after day break on 21.08.1991 and, by the time she arrived, the body had been sealed.

16. PW-2 - Km. Seema - daughter of the deceased, aged about 20 years. After describing the location of various cots where her family members were laid that night, she stated that in the night of 20/21.08.1991, at about 2.00 am, while she was lying in her cot underneath the Chappar, Arvind and Akhilesh after scaling the wall jumped into the courtyard. She woke up and saw that a person was also squatting on the wall next to the bathroom. Arvind was moving towards her father (the deceased) and Akhilesh came towards her. When she shouted, Akhilesh pressed her mouth and, thereafter, Arvind and the deceased entered into a scuffle. Her mother rushed out and in that scuffle, Arvind fired a shot at the deceased after Akhilesh exhorted him. After receiving injury, her father died. The accused thereafter scaled the wall of the bathroom and escaped. After the incident, several persons arrived. Her mother opened the door on recognising the voice of Shyam Sundar, who was the first to arrive after the incident. Shyam Sundar told her that he had seen the accused Arvind and Akhilesh running along with a third person. She stated that her mother dictated the written report to Devendra Narayan Mishra after which it was handed over to Pahalwan to lodge the report. She also stated that the accused were objecting to the toilet and were pressing the deceased to demolish the same. The clothes that were worn by the deceased at the time of his death, were produced in the Court and she recognised the same. As a result whereof, those clothes were made material exhibits.

In her cross-examination, she stated that Aangan/courtyard of her house is open and it has no trees. In the night of the incident, moon had come out in the evening. It was a bright moon and lantern was also lit in the courtyard as usual. She denied the suggestion that at the time of the incident, no lantern was lit. She also stated that the incident occurred at about 1.30 am and the moon had not set by then. She stated that when she woke up, she saw Arvind and her father in a scuffle, they were at a distance of 1 and 1-1/2 paces away from deceased's cot. They were fighting with both hands though Arvind had held a pistol in one hand. She stated that she did not notice whether Arvind was using both hands but did notice that Arvind had a pistol in his hand. She stated that at the time of the scuffle, her father was not making any utterances and was not shouting. She stated that she had shouted only when she woke up sensing disturbance and soon thereafter, her mother also woke up.

On further cross-examination, she stated that she woke up when the wall of the house was scaled by the accused and they had jumped into the courtyard. The moment she woke up, she shouted. At that moment, Akhilesh was just 2-3 paces away from her. When she woke up and sat on the cot, Akhilesh caught her and pressed her mouth. On that noise, her mother woke up and came out and as soon as her mother came out, Arvind fired at the deceased. She clarified that when her mother came out, Akhilesh left her and caught hold the deceased by his hand and was pulling it from back when the shot was fired. After firing the shot, the accused escaped. She stated that the shot struck the deceased on left side of chest. She stated that the spot where he had fallen, blood had splattered. She stated that the police arrived by about 9 am in the morning. She stated that the body was not displaced till the time police arrived. She also stated that a village doctor had arrived about half an hour after the incident to declare the deceased dead. Villagers had also arrived after the incident. She admitted that the narration of Akhilesh holding the hands of the deceased is for the first time in Court. She also stated that except for Shyam Sundar, no one else in the village had said that they had seen the accused escaping. She stated that the blood had also stained the saree and petticoat of her mother. She stated that she is not aware as to what conveyance was used by the person who took the written report to lodge at the police station. She stated that she is a B.A. IIIrd year student. She denied the suggestion that she was not in the house at the time of the incident and that she did not witness the incident. She denied the suggestion that till the time the body of the deceased was sealed, neither she, nor her mother, was present in the house. She also denied the suggestion that the entire story has been tutored.

17. PW-3 - Pahalwan - the messenger who carried the written report to the police station for registration of the first information report.

He stated that the written report was written by Devender Mishra on the dictation of Smt. Shobha Awasthi (the informant). The written report was handed over to him at 3 am. He waited for the night to pass and at sun rise, he went to the police station and the report was lodged at 7.30 am. He stated that he started his journey back from police station at 8.15 am. The written report (Exb. Ka-1) was identified by him.

In his cross-examination, he stated that he was sleeping in his house when he heard the gun shot. He woke up and went straight to the house of the deceased. There were several other persons there, at least, fifteen. He got the door of the house opened and saw Satish's body lying in a supine position in the courtyard with injuries and blood flowing out. He stated that he did not notice where the report was written but he was given the written report at 3 am by the informant with instruction to lodge the same at the police station. He stated that he did not recognise who all were present at the spot and in the crowd could not notice whether Devendra Narayan Mishra was present or not. He stated that his house is about 100-200 paces away from the house of the informant. He stated that after taking the report, he went to his house, fed fodder to his cattle and then left for the police station at about 3.30 am. He stated that he covered the distance on foot. On being questioned as to why he did not take a cycle, he stated that it was cloudy and the Kharanja was uneven and had rain water therefore, he preferred to walk. He stated that he walked on the footpath. He stated that he went straight to Auraiya and the distance covered by him must be around 11 km. He stated that he took Kachha rasta. He denied the suggestion that he did not go to lodge the report and because of his relationship with the informant, he is telling a lie. He stated that he is class 8 pass. In respect of the period he stayed at the police station, he stated that he stayed there for around 20 minutes. He stated that the Station House Officer did not come with him to the spot rather, he came walking. He stated that after returning from the police station, he again went to the spot at 11.30 am and stayed there for half an hour. Thereafter, he did not go again to the house of the deceased. He stated that when he went there again, he saw police there, and also noticed a police jeep parked in the Gali. But he did not notice any other vehicle for carrying the body. He did notice the body lying inside the house but he did not notice whether the body was sealed or not. He denied the suggestion that the body was taken away from the spot between 11.30 am and 12 noon. He also denied the suggestion that neither informant nor her children were present in the house on the date of the incident. He also denied the suggestion that the written report was prepared later.

18. PW-4 - Dr. R.N. Mishra - the Autopsy Surgeon. He proved the autopsy report and the injuries noticed therein and accepted possibility of death having occurred at 2 am in the night of 20/21.08.1991. The autopsy report was marked Exhibit Ka-3 on the basis of his statement.

In his cross-examination, he stated that injury no.1 was about 2 to 2 and ¼ inch below the shoulder and its direction was downwards which means that the direction of the barrel of the gun was from up to down, that is the bullet entered around the shoulder region and got embedded in the heart. He stated that because scorching was noticed, the distance of the barrel from the body must have been within 6 to 9 inches. He stated that this injury is not possible if the target and the shooter were face to face at the same level. He stated that if the man was lying and the shot was fired from the head side, such injury could appear. He also accepted the possibility that if the shot is fired from a higher level and the target is close to the barrel, such injury could appear.

In respect of the time of death estimated by him, he stated that in his estimate with regard to death having occurred 1 and ½ day before, there may be a variation of 4 to 6 hours, either side.

In respect of injury no.2, PW-2 stated that no pellets had entered the body. Rather, it was a splash of gun powder blast.

19. PW-5 - Keshav Ram - Investigating Officer. He stated that on 21.08.1991, when he was posted at P.S. Auraiya written report (Exb. Ka-1) was brought by Pahalwan of which Chik report was prepared by Head Moharir Sri Narayan Mishra whose signature, he recognised. The Chik report was marked (Exb. Ka-4). He also proved the GD entry of the report made vide GD report no.15 at 7.45 hours. Carbon copy of the GD entry report was exhibited as Exhibit Ka-5. Upon lodging of the FIR, he recorded statement of Pahalwan; thereafter, he visited the spot and got the inquest proceedings conducted of which report was prepared by S.I. R.N. Mishra whose signatures he recognised and the inquest report was exhibited as Exb. Ka-6. He stated that challan-nash, photonash were prepared by Sri R.N. Mishra and those documents were exhibited as Exb. Ka-7 and 8. He stated that he collected plain earth and blood-stained earth from the spot and prepared its seizure memo, which was exhibited as Exb. Ka-9. Plain earth and blood-stained earth were produced as material exhibits 5 and 6. He stated that he recovered an empty cartridge also, of which a seizure memo exhibit Ka-10 was prepared by him. He produced empty cartridge, which was marked material exhibit. He stated that after he recorded the statement of the informant, Km. Seema, Km. Tapasya, Saurabh and Shyam Sundar Mishra, he also examined lantern of the informant and the torch of Shyam Sundar. They were found in a working condition of which custody memo was prepared as Exb. Ka-2. He, thereafter, recorded statement of Gyan Prakash and Ramjas and the other witnesses and examined their torches, which were found in working condition and of which, custody memo was made. The same was exhibited as Exb. Ka-12. He proved preparation of the site plan on the basis of his inspection. The site plan was exhibited as Exb. Ka-13. He stated that on the same day, after preparing the inquest papers, he wrote a letter to the R.I. as well as CMO for autopsy. Those letters were marked Exhibit Ka-14 and 15. He stated that on 23.08.1991, he recorded the statement of Aditya Kumar Mishra and witness-Mahadev and on 27.08.1991, he recorded statement of Devendra Narayan Mishra and, after completing investigation, on 07.11.1991 he submitted charge-sheet, which was marked Exb. Ka-16.

In his cross-examination, he stated that after registration of the first information report, he left for the spot between 9.15 and 9.30 am. He did not remember whether Pahalwan accompanied him in the jeep. He stated that he reached the spot by 10 am. He stated that the route/road was not in a good condition. He stated that when he reached the house of the deceased, the door of the house was open and villagers were present. The body was lying on the ground over a Chadar and was also covered by Chadar. He stated that below the head of the body there was a pillow. He stated that empty cartridge was found by him on the south eastern portion of the house in the bathroom. He stated that first he conducted the inquest proceeding and thereafter he collected empty cartridge. He stated that on the Chadar laid below the body, as well as on the Chadar laid over the body and the pillow, there were blood spots but as they were laid after the incident, and as such not connected with the case, were not seized. He stated that he collected the blood from below the Chadar and found blood in an area of about 1 and ½ feet. He stated that during interrogation he came to know that murder had not taken place on the Chadar and therefore, the Chadar was not collected. He stated that he had not noticed whether members of the family had blood-stains on their clothes. He stated that the inquest proceedings were over by about noon and the body was given in the custody of the constables. He stated that the place of occurrence is Beehad (uneven land). He stated that he is not aware whether vehicle used for carrying the body was brought up to the doorstep of the informant. He also could not remember as to in which vehicle the body was brought to Etawah. He stated that he did not record the statement of the constable who carried the body. Upon noticing page 44 of the case diary, he stated that the body was dispatched after the vehicle had arrived.

On further cross-examination, he stated that after the body was dispatched, he collected the blood-stained earth and plain earth as well as the empty cartridge. He stated that he also searched the house of the accused and prepared a memo in that regard and recorded the statement of the informant at about 12.30 hours to 13.00 hours and also recorded the statement of other witnesses, as mentioned above.

He was also cross-examined in respect of the location of the house of other witnesses and whose statement he had recorded but nothing much could be elicited from him to suggest that he had not visited the spot. In respect of preparation of the site plan, he stated that he inspected the spot between 3-4 pm and the spot was inspected in the presence of the informant and other witnesses. He denied the suggestion that at the police station, information received was only in respect of death of Satish (the deceased) and, thereafter, the body was sealed and brought to the police station whereafter, papers relating to the FIR, inquest etc. were prepared. He denied the suggestion that custody memos of lantern and torches were prepared much later. He did not remember whether in the night of the incident it had rained or not. He stated that he did not notice any water logging on way to the spot.

In respect of the statement of the informant that Akhilesh held the hand of the deceased when the deceased was shot, he stated that that was not disclosed by the informant to him during investigation. He stated that only one statement of the informant was recorded by him during investigation. He stated that the distance between Quotara and the police station is 9 Km and the distance between Auraiya and Etawah is 65 Km.

20. PW-6 - Sri Narayan Awasthi - Head Constable. He proved the GD entry of the written report as well as the preparation of the Chik FIR at 7.45 am on 21.08.1991. The Chik FIR and the GD entry were marked exhibits.

In his cross-examination, he denied receipt of only oral information in respect of death of Satish (the deceased). He denied the suggestion that Chik report and the GD entry of the written report was made in the afternoon. He stated that at one place, by mistake, in respect of the distance, instead of 9 kms, it was written 6 Km, which was corrected. He also stated that the mistake was committed by constable Lakshman Singh.

ANALYSIS

21. Having noticed the submissions and the entire prosecution evidence, the following features stand out:-

(a) There is no dispute that the deceased was the husband of the informant - Smt. Shobha Awasthi (PW-1) and father of Seema (PW-2). Though, there is suggestion to the witnesses that at the time of occurrence, the deceased was alone in the house and upon information, her family arrived at the place of occurrence but there is no suggestion to demonstrate as to at what other place PW-1 and PW-2 could have been at the time of the incident than the place where they resided and the incident occurred. There is also no suggestion to PW-1 that she had sour relations with her husband (the deceased) and had separated or was for some reason residing at any other place.

(b) The informant was principal of an institution and was elected Up Pradhan. Her husband (the deceased) was a teacher. Though, suggestion has been made that due to PW-1's support to the current Gram Pradhan and association of her husband with current Gram Pradhan, there was animosity in the village including with accused's family, as they had supported another candidate for the Pradhan election, but nothing has come out, either through cross-examination of the witnesses or by way of an explanation under Section 313 Cr.P.C., in respect of occurrence of any incident in the past reflecting such animosity.

(c) There is no serious challenge to the time of the occurrence. The time of occurrence, according to PW-1 and PW-2, would have been any time between 1.30 and 2 am.

(d) Although the defence has sought to raise an issue with regard to the body position being altered after the incident as it was found laid on a Chadar but nothing much turns on that as there is no serious challenge to the incident having occurred within the house of the deceased. Further, there is no suggestion to any of the witnesses that the body was dragged or brought from somewhere else.

(e) It is established beyond doubt, both from the site plan as well as the testimony of the witnesses, that the house of the accused is right in front of the house of the deceased across the Kharanja and there existed a toilet, built by the deceased, right in front of the house of the accused.

22. Having noticed the key features of the prosecution evidence what stands established beyond reasonable doubt is that the incident occurred in between 1.30 am and 2 am in the night of 20/21.08.1991 inside the house of the deceased with whom PW-1 (the wife of the deceased-informant) and PW-2 (the daughter of the deceased) resided. Thus, the presence of the eye-witnesses cannot be doubted particularly when there is no suggestion that the witnesses were present elsewhere at any other specified place, when the incident took place.

23. Before we proceed further, to properly evaluate and analyse the evidence in the context of the submissions made, it would be apposite to notice, in brief, the thrust of the submissions of the defence counsel. According to the defence counsel, there are four important features which raise a serious doubt as regards the prosecution story. These are:-

(a) The motive for the crime set out is annoyance on account of construction of toilet by the deceased. This motive is completely unfounded because from the testimony of PW-1, it is clear that the deceased had built his house 13-14 years ago and that the toilet was constructed 6-7 years later. This statement of PW-1, during her cross-examination, was recorded on 16.10.1992 i.e. a year after the incident, which means that the toilet had been in existence since 4 to 5 years before the occurrence.

(b) If the accused had entered the house after scaling the wall in the darkness of the night with a pistol and an intention to finish off the deceased what was the reason for the accused to grapple with the deceased with a gun in one hand for about one-half hour and not to use the gun straight away. This clearly suggests that the incident did not occur in the manner alleged. Either the prosecution witnesses did not at all notice the occurrence or the prosecution is hiding true facts.

(c) The incident, according to ocular account, occurred in the courtyard. The autopsy report notices two injuries, one is an entry wound and the other is a gun powder discharge on or about the face region. Notably, an empty cartridge was found in the bathroom much away from the spot where the deceased was shot at by the accused, after engaging in a scuffle with him. It therefore appears to be a case where two shots were fired, one which was a blank shot and the other which carried the bullet. The empty cartridge appears to be a consequence of that blank shot but the ocular account is in respect of solitary shot therefore, the ocular account is unworthy of acceptance.

(d) According to the ocular account, the assailant Arvind at the time of firing the shot was in front of the deceased. The deceased was in a standing position and was being held by Akhilesh who had pulled his hand from behind. If the deceased had been in a standing position and the shot was fired by Arvind from front then the direction of the gun shot travelling downward was impossible, as is the testimony of the autopsy surgeon. Hence, it appears to be a case where the incident occurred in some other manner than alleged. Eye-witnesses were all sleeping at the time when the incident occurred and it is only after the gun shot was heard, story was weaved on the basis of strong suspicion and enmity. Hence, it is a fit case where both the accused-appellants be acquitted.

24. Having noticed the key features of the prosecution evidence and the thrust of the submissions made on behalf of the parties, we frame following points for the convenience of our analysis:-

(i) Whether the motive for the crime existed or not;

(ii) Whether the prosecution story appears unnatural and contrived keeping in mind the manner in which the incident is stated to have occurred;

(iii) Whether in the facts and circumstances of the case, the first information report is delayed and lends credence to the defence argument that the story of the prosecution is contrived;

(iv) Whether there is a serious conflict between the medical and the ocular evidence rendering ocular account unworthy of acceptance;

(v) Whether the incident occurred in the darkness of the night where there was no source of light and therefore, no one witnessed the incident which is reflected by improvement, during deposition in trial, that the deceased was caught hold by the appellant Akhilesh;

(vi) Whether spreading bed-sheet and laying the body thereupon alters the spot, affecting confirmation of spot by the investigating agency. If so, whether it has material bearing on the merit of the prosecution case; and

(vii) Whether the presence of an empty cartridge in the bathroom, away from the spot, where the incident is stated to have occurred, renders the ocular account untrustworthy and unacceptable.

25. On the issue with regard to existence of the motive, the prosecution story is that a toilet was built by the deceased right in front of the house of the accused party, across the Kharanja, to which the accused party had been objecting and two days prior to the incident, the accused had threatened the deceased. The defence submission is that from the testimony of PW-1, it appears, the toilet had been in existence for the last 4-5 years and as such the motive set out by the prosecution for the crime is unacceptable. There may appear some substance in the defence submissions but motive is a mental state of which the person whose conduct is in question is the sole repository. It is difficult to assess whether the motive is sufficient for the crime in issue because, everyone reacts differently to a given situation. It is possible that existence of the toilet might have been there for sometime but for reasons unknown its existence might have become an eyesore in the recent past. Under these circumstances, we do not propose to dwell further on the issue of motive more so, because the prosecution case is dependent on ocular account and it is well settled that where the prosecution case is based on direct ocular account of the incident, if the court finds the same trustworthy and truthful, existence or non existence of motive for the crime is of no consequence.

26. The issue whether the prosecution story appears unnatural and contrived and whether the first information report is delayed are connected to each other therefore, we propose to deal with the two issues together. Before we evaluate the submission in respect of the prosecution story appearing unnatural and contrived, we propose to analyse the prosecution evidence in respect of the explanation for the delay in lodging the report. According to the prosecution story the incident occurred at or about 2 am. The report was dictated by the informant to one Devendra Narayan Mishra who wrote it and after signature of the informant, it was handed over to Pahalwan (PW-3) to be lodged at the police station. The report has been lodged at 7.45 am at a police station that was about 9 km away from the spot. The lodging of the first information report at 7.45 am is proved by the police witness (PW-6) and nothing could be elicited from him to doubt the registration of the case at that time. The inquest proceeding was conducted later, and completed by noon. The inquest report makes a recital about receipt of the report from Pahalwan (PW-3). Pahalwan has been examined as PW-3. He stated that he resides in the same village where the incident took place. The incident occurred in the night and he reached the house of the deceased in the night. The informant had dictated the report to Devendra Narayan Mishra and the report was delivered to him at about 3 am in the night itself and as soon as the day broke, he left for the police station to lodge the report and reached there by 7.30 am. Nothing much has come out from his cross-examination to doubt his deposition. Rather, he also explained as to why he visited the house of the deceased in the night by stating that he woke up on hearing the gun shot and many others also woke up for that reason and he reached the house of the deceased where others had also arrived. He also explains that his house is 100 to 200 paces away from the house of the deceased and he has cattle to feed. He fed the cattle in the morning and, thereafter, he left the village on foot to lodge the report. On being questioned as to why he did not take a motorcycle or a cycle to commute, he stated that the route was very bad and as it had rained in the night therefore, he preferred to go on foot. The explanation offered by PW-3 is acceptable. Nothing has been elicited from him, during cross-examination, which may doubt his presence in the village or his arrival at the scene of crime after hearing the gun shot. In these circumstances, keeping in mind that the village was 9 km away from the police station and the incident occurred in the night and very few would make an attempt to lodge the first information report in the night hours when the police station was at such a distance, the explanation is tenable. Moreover, it is quite natural that the informant being a lady, who having lost her husband and had two daughters and a young son to look after, would request some one else to go to the police station. Thus, we are of the considered view that in the facts of the case, the first information report cannot be said to be delayed so as to raise our suspicion with regard to the truthfulness of the prosecution story.

27. As regards the submission that the prosecution story appears unnatural and contrived, the thrust of the submissions of the learned counsel for the appellants is that if the intention of the accused were to finish off the deceased and one of the accused had a pistol in his hand, where was the occasion to enter into a scuffle with the deceased that lasted about half an hour. The above submission though may appear attractive but is not to be accepted for the reason that the prosecution is not required to prove as to what the intention of the accused had been when he entered the house. What the prosecution is required to prove is that the shot was fired with an intention to kill. What was there in the mind of the accused at the time when they entered the house of the deceased in the night, is a mental state of which the accused were privy to, not the informant or the other prosecution witness. It could be possible that the two accused, who resided across the road right in front of the house of the deceased, might have been infatuated with the daughter of the deceased, who was a University going student. It could very much be possible that the accused might have entered the house in the night with that kind of an intention but on disturbance caused by their movement, the deceased might have got up resulting in a scuffle that was noticed by PW-1 and PW-2. It could equally be possible that initially they did not want to kill the deceased but when the deceased was not letting them off, the accused developed an intention to kill the deceased therefore, the scuffle lasted that long. This possibility cannot be ruled out also for the reason that no alarm was raised by the deceased despite noticing intruders in the night because it is quite natural for a father to protect the honour of the family. It is equally possible that the deceased feared that if he raises an alarm, the entire village may arrive and cast aspersions on the character of his daughter. Thus, in our considered view, whatever the reason for that scuffle might be, the duration of the scuffle, by itself, does not render the prosecution story improbable, unnatural or unacceptable. We, therefore, reject the submission on behalf of the appellants that the prosecution story is completely unnatural and unacceptable.

28. At this stage, we may notice that though the incident occurred post mid-night but the prosecution evidence with regard to existence of light is specific and consistent since the inception of the case. Notably, there was a suggestion to the prosecution witnesses that there was bright moon that night therefore there was no need of putting a lantern. That apart, that night was the first night after full moon i.e. Ekadashi of Shukl Paksha. Moreover, the prosecution evidence is that as usual the lantern was lit in the courtyard. The presence of lantern was confirmed during investigation and it was produced before the investigating officer and from his testimony it is clear that he had also checked whether it was in a working condition and had found it to be in a working condition. The custody memo of the lantern was also prepared. Further, its existence was disclosed in the first information report. Thus, the source of light enabling the witnesses to identify the accused, particularly, when they were neighbours residing just across the Kharanja, cannot be doubted and has been proved beyond reasonable doubt.

29. Now, we shall proceed to examine whether the medical evidence renders the ocular account completely unacceptable or improbable. In this regard, the submission of the learned counsel for the appellants is that the ocular account is not acceptable because the medical evidence has ruled out possibility of the shot being fired from the front, if the victim and the assailant were at the same level. It is also urged that the existence of gun powder mark on or about neck and face region of the deceased would suggest that two shots were fired at the deceased whereas the ocular evidence is in respect of single shot.

30. At this stage, we may notice few decisions of the Supreme Court on the issue as to when a conflict between medical evidence and ocular account would render the ocular account untrustworthy and unreliable. In Thaman Kumar vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380, in paragraph 16, it was observed as follows:

"16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony."

31. In Anil Rai vs. State of Bihar (2001) 7 SCC 318, view taken earlier, in Punjab Singh vs. State of Haryana, 1984 Supp SCC 233, that, (1) if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence, and (2) if medical evidence when properly read shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statements of the eye witness has to be accepted, was affirmed. Similarly, in Abdul Sayeed vs. State of Madhya Pradesh, (2010) 10 SCC 259, the legal position, in this regard, has been crystallised, in paragraph 39 of the judgment, as follows:

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

32. The above view has been affirmed in Central Bureau of Investigation and Another vs. Mohd. Parvez Abdul Kayyum and others, (2019) 12 SCC 1.

33. The gist of the legal principle deducible from the pronouncements of the Supreme Court is that ocular evidence has greater evidentiary value vis-a-vis medical evidence. When the medical evidence makes the ocular testimony improbable it becomes a relevant factor in the process of evaluation of evidence. But, when the medical evidence rules out all possibility of the ocular evidence being true, the ocular evidence may be discarded. Bearing this legal principle in mind, at this stage, we may now notice the submissions of the learned AGA in response to defence's submission that there is an irreconcilable conflict between medical evidence and the ocular account. In this regard, it was submitted that as per the ocular account when the scuffle between Arvind and the deceased was going on, accused Akhilesh was pressing the mouth of PW-2 (the daughter of the deceased) but, when PW-1 came close to the deceased, Akhilesh left PW-2, caught hold the hands of the deceased, pulled them backwards and exhorted Arvind to finish off the deceased. At this stage, the shot was fired. The learned AGA submitted that if someone holds a person's hands and pulls them backward, the person, despite being in a standing position, would bend forward leaving his shoulder/neck region exposed and at a level much lower than the height of the person standing in front of him, if both are of same height and at the same ground level. Otherwise also, it was submitted, when a scuffle is on, it would be difficult to notice and memorise the exact position at which the person was when the shot was fired at him, as the body keeps moving, therefore, if PW-1 stated that the shot was fired from front while the deceased was standing and his hands were pulled back by the other accused (Akhilesh), it cannot be said that because the shot traveled in a downward direction, the ocular account is unacceptable as ruled out by the medical evidence. Similarly, in respect of the presence of injury no.2, learned A.G.A. submitted that when the muzzle of the pistol is close to the face, pointing downwards towards neck, the bullet would enter the body from the upper part of chest, near to neck/ shoulder, and go downwards whereas the discharge of gun powder from the blast, emitted from the muzzle, would splash the face and neck, reflecting the kind of an injury as is injury no.2 noticed by the autopsy surgeon. Thus, it is a case of single gunshot and, therefore, there is absolutely no conflict between medical evidence and the ocular evidence.

34. Having noticed the rival submissions in this regard, at the outset, we may observe that when a scuffle is on and persons who are grappling with each other are moving, it would be impossible to expect any witness to give an accurate account of the posture that the deceased was holding at the time when the shot was fired at him. In Sukhdeep Singh V. State of UP, (2010) 2 SCC 177 (vide paragraph 17) it was observed by the Supreme Court "that it would be impossible for any witness to give a categorical statement as to the posture that the deceased or the assailants were holding at the time when the firing incident happened." Bearing this in mind, on a careful perusal of the prosecution evidence, we find that though gun powder /blast mark is there on face and neck of the deceased but noticeably no pellets have entered that area though, a bullet is found ensconced in the heart entering from chest, below the left shoulder region. If someone is bent and a shot is fired at him from a close range by a person who holds the muzzle of the gun near about the face of that person, pointing it downwards, in our view, discharge from the barrel may cause blackening and gun powder marks on or about the face and neck region whereas the bullet may enter the body from about shoulder or upper part of chest region traveling downwards to damage the heart as is the medical evidence of the case at hand. Thus, in our view, the ocular account is not at all ruled out by the medical evidence rather, the medical evidence corroborates the ocular evidence. We therefore reject the appellants' submissions that the ocular account is unacceptable because it is ruled out by the medical evidence.

35. At this stage, we may notice another submission of the learned counsel for the appellants, which is, that since empty cartridge was found in the bathroom, the ocular account that the shot was fired at the deceased in the courtyard is unacceptable. The learned counsel for the appellants submitted that the presence of empty cartridge in the bathroom would indicate that the shot was fired by someone sitting or standing over the wall of the bathroom when, perhaps, the deceased had come to the bathroom. It is submitted that this explains both, that is, the direction of travel of the bullet and the existence of empty cartridge in the bathroom. The learned counsel for the appellants submitted that as the body was lying on a sheet of cloth whereas, admittedly, the incident did not occur whilst he was lying on that sheet of cloth, it appears, the body was removed from the bathroom. It was argued that the spot where the incident occurred, namely, the courtyard, is not confirmed by investigation therefore, this lends credence to the defence argument that the shot was fired from, or over, the wall of the bathroom and the body was removed from that position and laid in the courtyard.

36. The above submission is not acceptable for two reasons:-

(i) Why would PW-1 and PW-2, who are wife and daughter, respectively, of the deceased, tell lies; and

(ii) The ladies of the house, in ordinary course, would be in a state of shock having lost the head of their family. It is unimaginable that they would contrive a story and drag the body from the bathroom and place it in the courtyard. Noticeably, the I.O. had noticed blood splattered in the courtyard and had lifted blood from that spot lying below the sheet. Further, he made no mention of the presence of any drag marks or blood splattered in some other portion of the house. No suggestion has been put to any witness in respect of dragging the body within the house. Spreading of bed-sheet and placing a pillow below the head of the deceased may be a mark of respect for the dead. Importantly, there is no suggestion either to the prosecution eye witnesses or to the I.O. that the deceased was killed at some other spot and was brought and laid at the spot. Further, there is no suggestion whatsoever in respect of the shot being fired at the deceased when he was near the bathroom. Otherwise also, in the ocular account, it has come that after firing the shot at the deceased, the accused had opened the pistol. May be the accused wanted to have another go at the deceased but noticing that the deceased had collapsed on being struck by the shot, the assailant might have thought better to escape and while scaling the wall, close to the bathroom, to escape, the empty cartridge may have fallen there in the bathroom from where it was recovered. Thus, in our considered view, the presence of the empty cartridge in the bathroom and the spreading of cloth below the body of the deceased and placing a pillow underneath his head neither demolishes the prosecution case nor renders the ocular account improbable or untrustworthy as to confer the benefit of doubt on the accused.

37. At this stage, we may notice an alternative submission of the learned counsel for the appellants, which is, that in so far as the appellant-Akhilesh is concerned, he is not the one who fired the shot at the deceased and that the role of catching hold attributed to him was neither there in the first information report nor in the statements recorded under section 161 CrPC. It was urged that his role is introduced, by way of an improvement, during trial, therefore, he is entitled to the benefit of doubt.

38. We do not accept the above submission for the reason that from the very beginning it is the prosecution story that the appellant Akhilesh entered the house in the night hours with his brother Arvind and on exhortation of Akhilesh to finish off the deceased, Arvind fired at the deceased. It is neither the requirement of law, nor expected of the informant, particularly a lady, who is in a state of shock, to make an accurate disclosure of each action which the accused displayed in the incident either in the first information report or in the statement recorded under Section 161 Cr.P.C., unless the I.O. or concerned officer specifically questions the person in that regard. When a statement under section 161 CrPC is recorded, a witness may fail to make a disclosure may be because of his understanding that it is not material or may be because no question in that regard is put by the I.O. Therefore, in our view, as to when an improvement would affect the credibility of a witness, much would depend on the facts of a case apart from the nature of the improvement made. In the instant case, notably, both PW-1 and PW-2 have throughout, right from the stage of lodging the FIR, disclosed active participation of the accused Akhilesh, that is, he entered the house with the co-accused in the night by scaling the wall, pressed the mouth of PW-2 and exhorted co-accused Arvind to finish off the deceased. This stand was maintained during trial with an addition that when PW-1 tried to come close to the deceased, while the deceased was grappling with co-accused Arvind, Akhilesh left PW-2, caught hold the deceased by his hands, pulled the hands of the deceased backwards and exhorted Arvind to finish off the deceased. In our view, this addition does not in any way alter the substratum of the prosecution case against Akhilesh rather it fills up the narrative by way of an answer to the question put to the witnesses during the course of their cross examination in court. Otherwise also, there appears truth in the ocular account and indirectly explains the travel of the bullet in a downward direction. In these circumstances, the participation of appellant-Akhilesh in the occurrence and sharing of common intention with co-accused Arvind to kill the deceased has also been proved beyond reasonable doubt.

39. For all the reasons recorded above, we are of the considered view that the trial court has correctly found the appellants guilty of the charge for which they have been tried and convicted. We, therefore, affirm the judgment and order of conviction and sentence recorded by the trial court. Both the appeals are dismissed. Both the appellants are reported to be on bail. Their bail bonds are canceled. They shall be taken into custody forthwith and shall serve out the sentence awarded by the court below.

40. Let the order be communicated to the trial court for information and compliance.

Order Date :- 06.05.2022

Sunil Kr Tiwari