Hans Ram vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Case :- JAIL APPEAL No. - 6363 of 2008
 

 
Appellant :- Hans Ram
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Ambrish Kumar
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. This jail appeal is directed against judgement and order of conviction and sentence dated 23.7.2008, passed by Additional Sessions Judge/Special Judge (SC/ST Act) Farrukhabad in Session Trial No.338 of 2005 (State of U.P. vs. Hans Ram) arising out of Case Crime No.89 of 2005, Under Section 302 IPC, Police Station Shamshabad, District Farrukhabad, and in Sessions Trial No.339 of 2005 (State of U.P. Vs. Hans Ram), arising out of Case Crime No.347 of 2005, Under Section 25 of Arms Act, Police Station Shamshabad, District Farrukhabad, whereby the accused appellant Hans Ram has been convicted and sentenced to rigorous imprisonment for life under section 302 IPC alongwith fine of Rs.10,000/- and in default of payment of fine he is to undergo two years additional rigorous imprisonment; three years rigorous imprisonment alongwith fine of Rs.2,000/- under Section 25 of Arms Act and in default of payment of fine he is to undergo six months additional imprisonment. All sentences are to run concurrently.

2. Informant of the incident in this case is Jagdish (PW-1), who is the elder brother of deceased, according to whom the wife of the deceased was enticed by accused about three years back and on account of pressure exerted by them the wife of deceased returned and started living with him. On 16.2.2005 the informant alongwith deceased together with Ram Ladaite (PW-2), Banshi son of Gokul, Sant Ram son of Kishore alongwith the accused were returning from a feast at Village Prahladpur organized by Jagdish (DW-1) on conclusion of Bhagwat Katha. They were returning by road in the moonlight. When they reached near the field of Dhaniram Kachhi the accused started abusing the deceased to which he objected. The accused then fired from his 12 bore Tamancha (country-made pistol) with an intent to kill the deceased. The gunshot hit the deceased on his neck. He fell and soon died. The informant tried to apprehend the accused but he fled towards Prahladpur while extending threats. The dead body was lying on the spot. The contents of the written report were then incorporated in the GD and a first information report (Ex.Ka-14) was registered as Case Crime No.89 of 2005 under Section 302 IPC. The incident is said to have occurred at 7.00 pm while the FIR was lodged at 9.15 pm. The distance between the place of occurrence and the police station was 14 Kilometres. The inquest was, however, conducted the next morning i.e. 17.2.2005, at 6.30 am, wherein a firearm injury was observed by inquest witnesses. The inquest witnesses also found that there was a solitary firearm injury on the neck of the deceased and there was no other injury on him and that postmortem be conducted in the matter. The dead body was accordingly sealed and sent to mortuary through police personnel. The postmortem was conducted on 17.2.2005. Relevant examination of the body of deceased is extracted hereinafter:-

Age-40 years

Ante-mortem Injuries-

Firearm wound of entry of size 3cm x 4cm present in front of neck 3cm above the supra-sternal notch, bone deep on dissection of neck muscle

Lacerated thyroid cartilage at tracheal ring. C4 vertebral body fractured. One beading and 20 small metallic pellets recovered from neck muscle

Cause of Death-

Cause of death is shock and haemorrhage as a result of ante-mortem firearm

Duration- about 3/4th day.

3. The investigation proceeded with recording of statement of various witnesses. The accused was arrested, and while on a custody remand and on the basis of his disclosure statement a 12 bore Tamancha alongwith two live cartridges was recovered on 29.5.2005, on the basis of which a subsequent first information report (Ex.Ka-12) came to be lodged at 7.15 pm on 29.5.2005 as Case Crime No.347 of 2005, Under Section 25/27 of Arms Act, Police Station Shamshabad, District Farrukhabad. On the basis of material collected during the course of investigation chargesheet (Ex.Ka-11) came to be filed in offence under Section 302 IPC on 3.6.2005. A chargesheet (Ex.Ka-19) was also filed under Section 25 of Arms Act on 25.6.2005. The offences since were triable exclusively by the court of sessions, the magistrate committed the cases to the court of sessions, where they got registered as Sessions Trial No.338 of 2005 and Sessions Trial No.339 of 2005 respectively. The court framed charges against the accused appellant in Sessions Trial Nos.338 of 2005 and 339 of 2005 under Section 302 IPC and Section 25 of the Arms Act vide orders dated 1.2.2006. The accused denied the charges and demanded trial.

4. The trial proceeded in which the prosecution has produced documentary evidence in the form of written report as Ex.Ka-1, first information report dated 16.2.2005 as Ex.Ka-14, first information report dated 29.5.2005 as Ex.Ka-12, recovery memo of bloodstained and plain earth as Ex.Ka-2, recovery memo of empty cartridges as Ex.Ka-3, recovery memo of Tamancha, live cartridges as Ex.Ka-9, inquest report as Ex.Ka-4, postmortem report as Ex.Ka-16, chargesheet dated 3.6.2005 as Ex.Ka-11, chargesheet dated 25.6.2005 as Ex.Ka-19, order of District Magistrate as Ex.Ka-18, site plan with index dated 31.5.2005 as Ex.Ka-17, site plan with index dated 17.2.2005 as Ex.Ka-8 and site plan with index dated 29.5.2005 as Ex.Ka-10.

5. It may also be noticed that the recovered firearm as well as the apparel worn by the deceased together with bloodstained and plain soil were sent for forensic examination and its report has been received from the Forensic Laboratory at Lucknow on 16.1.2006 and 23.1.2006 (Ex.28A/1 and Ex.28A/2). Bloodstains were found on the clothes of the deceased as also the plain and bloodstained soil. However, on the shirt, shoes and plain earth, the blood was found disintegrated and could not be matched with origin. So far as the firearm recovered from the appellant is concerned, the forensic report opined that sufficient individual characteristics were found missing to connect it with the recovered cartridges. The forensic report with respect to the firearm, therefore, cannot be used as a corroborative piece of evidence in support of the prosecution case.

6. In addition to above the prosecution has also adduced oral testimony of seven witnesses, namely, PW-1 Jagdish (first informant/eye witness/brother of deceased), PW-2 Ram Ladaite (eye witness), PW-3 S.I. Virendra Kumar Yadav (Investigating Officer of Case Crime No.89 of 2005 U/s 302 IPC), PW-4 S.I. Feru Singh (has proved the chik FIR under Section 25 of Arms Act), PW-5 Shyam Bihari (CP: has proved the chik FIR under Section 302 IPC), PW-6 Dr. Manmohan Arya (conducted the postmortem) and PW-7 S.I. Shitla Prasad (Investigating Officer of Case Crime No.347 of 2005).

7. PW-1 in his testimony has supported the prosecution case and has alleged that there were illicit relations between the accused appellant and the wife of the deceased Shiv Rani. No report, however, was lodged in that regard, even after the accused had enticed Shiv Rani in order to protect the respect of his family. After much persuasion and exerting pressure Shiv Rani had returned to the deceased and was happily living with him. Accused is a miscreant. He has stated that on the date of incident he had gone to Village Prahladpur to attend the feast organized by Jagdish after completion of Bhagwat Katha. Every member of his village was invited. When they were returning and had reached the field of Dhaniram Kachhi the accused started hurling abuses to the deceased to which the deceased objected. The accused then exhorted to kill the deceased and thereafter fired on him with his Tamancha. On account of the gunshot injury sustained, the deceased fell and died. The accused re-loaded the Tamancha, on account of which the empty cartridge fell on the spot. He has also stated that on his way to the police station he stopped at the place of his relative Durvijay, who scribed the written report. This witness has proved the written report (Ex.Ka-1).

8. In the cross-examination PW-1 has stated that Shiv Rani has two sons and her marriage with deceased was solemnized about 15 years back. The real sister of Shiv Rani is married to Pramod, who happens to be the son of Ram Ladaite (PW-2). Pramod and Amar Singh are thus co-brothers. Father of Pramod is the other eye-witness of the incident. Shiv Rani after the death of her husband is living at the house of PW-1. PW-1 and deceased were otherwise sharing a common house. Banshi is the cousin (Mausera Bhai), who although is shown as a witness in the chargesheet but has not been produced during trial. Shiv Rani after her marriage with the deceased had disappeared after 2-2½ years. The witness does not remember the period of her disappearance. No report was lodged in respect of disappearance of Shiv Rani by him or by the deceased. No complaint or application was made to any of the police authorities. He has denied the suggestion that Shiv Rani had left on her own and later returned on her own. PW-1 has also denied the suggestion that Shiv Rani had illicit relations with Pramod. The witness has stated that Shiv Rani had illicit relations with accused. However, he was not aware as to since when and for how long were the illicit relations continuing between the accused and Shiv Rani. He only had suspicion/doubt about the illicit relations. On account of this suspicion he disliked the accused. He has denied that on account of this suspicion or enmity alone the accused has been implicated. The father of accused Hans Ram is Sukhlal and his uncle is Ram Chandra. Ram Chandra was killed in which Ram Ladaite (PW-2) was the accused. It is this very Ram Ladaite, who is the other eye-witness in this case (PW-2). No case was lodged against Amar Singh nor any other case has been lodged against Hans Ram. This witness has also stated that the Investigating Officer has not interrogated Shiv Rani nor her statement has been recorded. Shiv Rani was not present at the time of incident. The incident had occurred on the road side. There was a distance of few steps between Hans Ram and the deceased. Deceased was walking ahead. Accused Hans Ram was behind him. It was not that the deceased and accused were walking side by side. PW-1 claims to be 5-6 paces behind the deceased. PW-2 was also with him. Hans Ram had fired from behind and the bullet hit his neck. PW-1 has stated that he made attempts to apprehend the accused and followed him but ultimately could not catch him. He followed the accused for a furlong. He claims to have gone to Prahladpur following the accused but none at Prahladpur was informed of the incident. None of the other witnesses informed of the incident to anyone at Prahladpur. He claims that after the incident he stayed at the spot for five minutes and then left towards Shamshabad. He met Durvijay on the way and reached Shamshabad by 8.00 pm. He had gone to police station on a bicycle. Vedram, Khushiram and Gayadeen had also gone with him. Distance from Prahladpur to Naigavna is 6 kilometres. He met the SHO at police station and informed of the incident.

9. PW-1 has been confronted with his previous statement under Section 161 Cr.P.C., wherein there is no reference to the alleged exhortation by accused appellant to kill the deceased. He has admitted that this fact was not disclosed by him to the Investigating Officer. He has also admitted that there was no narration in his previous statement under Section 161 Cr.P.C. about re-loading the gun or the fact that empty cartridge had fallen at the place of occurrence. He claims to have seen the Tamancha in the moonlight. He denied the suggestion that at the time of occurrence he was actually present at Naigavna and had not accompanied the deceased to the feast at Prahladpur.

10. The cross-examination of PW-1 could not be concluded and the proceedings had to be adjourned to 17.1.2007, when he stated that there was no one except Hans Ram when he exhorted to kill the deceased. After seeing Hans Ram the deceased had not tried to run but he turned back and stood there. On receiving the gunshot he fell on the road side. He has claimed that except the moonlight there was no other source of light at the place of occurrence. Witness has denied the suggestion that Shiv Rani was enticed by some unknown miscreants and on account of fear no report was lodged. Since the miscreants could not take Shiv Rani again, they have killed the deceased. The witness has further denied the suggestion that only on account of doubt and suspicion the accused appellant has been implicated. He has also denied suggestion that crime was committed by some unknown persons during darkness and due to enmity the accused has been implicated.

11. PW-2 has supported the prosecution case, as per which he had gone with the deceased to attend the feast organized by DW-1 and were returning to their village. On reaching the field of Dhaniram Kachhi accused started abusing the deceased and on being objected the accused held the Collar of deceased and with an intent to kill him fired from his firearm. On loading the second cartridge this witness saw the incident. He has denied any enmity with the appellant. He has admitted that Pramod is his son but has denied that he is married to the sister of Shiv Rani. He has denied the fact that Pramod and deceased are co-brothers. Shiv Rani is not on visiting terms with him. Pramod is about 20 years of age and got married about 6 years back. Shiv Rani is around 30-32 years of age and has three children. Her eldest son is 12 year old, while the second son is of 8 years and the youngest is 4-5 years of age. Amar Singh and Jagdish were living separately. He has also stated that about 3 years back Shiv Rani had run away from her house. Distance between Sahraiya and Prahladpur is about one kilometre and that this witness had gone to Prahladpur on foot. He reached Prahladpur by 6.00 pm. There was huge rush and he stayed there only till he had his meal. Accused Hans Ram had also gone with him and was returning together with him. He has working relationship with accused. There was visiting terms between Jagdish and Amar Singh with accused Hans Ram earlier but it discontinued after the enmity due to taking of Shiv Rani. He claims that accused Hans Ram was behind Amar Singh while they were returning. Others were 3-4 paces behind Hans Ram. There was a solitary fire and he tried to catch Hans Ram but due to him having a firearm he could do nothing. Hans Ram had not fired on this witness and had run away towards Prahladpur. He had shown the place of incident to Investigating Officer. Village Chowkidar Siyaram reached the place of incident later. He had arrived again after sunrise. He had not gone to the police station. He does not know, who had lodged the report. By the time police arrived, there was much crowed gathered at the place of incident. At the time when the police arrived, the dead body was lying in a pit. It is admitted that apart from moonlight there was no other source of light. He has further denied that in-laws of his son Pramod are from the same family. He stated that he has no relationship with the informant or that he was giving a false statement on account of relations with the first informant.

12. PW-3 is S.I. Virendra Kumar Yadav, who was the Investigating Officer of the case. He claims to have arrived at the place of incident in the night but due to lack of light the inquest could not be conducted then. He recorded the statement of Ved Ram and Khushi Ram in light of Petromax. Statement of others was recorded later. The inquest was conducted next morning and he had also collected plain and bloodstained soil alongwith 12 bore empty cartridge in presence of the witnesses. Statement of accused was recorded while he was lodged in jail and on his pointing out the weapon of assault was recovered. In his cross-examination he has stated that the firearm was recovered by the accused from wild grass near the drain from a polythene. The firearm has also been produced before the court. Wife of the deceased Shiv Rani was not present at the place of occurrence. He had recorded the statement of Shiv Rani on 19.2.2005. During investigation he has not come to know that Shiv Rani was enticed by someone nor any case was registered in that regard. However, he did come to know that accused had taken Shiv Rani. While he reached the spot he found the dead body on the road side. The dead body was not in the pit. He had not recorded the statement of Dhani Ram, Satish and Harpal etc.

13. PW-4 S.I. Feru Singh is a formal witness, who has proved the chik FIR lodged under Section 25 of the Arms Act. PW-5 Shyam Bihari has proved the chik FIR under Section 302 IPC. Dr. Manmohan Arya has been produced as PW-6, who is the Autopsy Surgeon. He has stated that the deceased had a firearm entry wound 3 cm x 4 cm about 3 cm above supra-sternal, which was bone deep. Blackening was present around the wound. One beading and 20 pellets were recovered from the body of the deceased. In the cross-examination the doctor has stated that the injury on the deceased could have been caused, if the firearm was placed on the neck and fired. The firearm injury was from the front to back. The injury could not have been caused from behind. The deceased could have remained alive for sometime. The deceased must have had his meals 2-3 hours before the incident. The incident could not have occurred in the night of 16.2.2008. S.I. Shitla Prasad is PW-7, who has investigated the FIR lodged under Section 25 of the Arms Act.

14. Statement of accused Hans Ram under Section 313 Cr.P.C. has been recorded in which he has denied the accusations made against him and has contended that he has been falsely implicated due to enmity.

15. The defence in his support has produced Jagdish Sharma son of Sukhlal Carpenter as DW-1. He has stated that feast at his place was on 15.2.2005 and there was no feast on 16.2.2005. He has also stated that accused Hans Ram alongwith deceased and many others had come to attend the feast on 15.2.2005. He is not aware as to who has killed the deceased on 16.2.2005. In the cross-examination this witness has stated that on account of birth of his son he had organized the feast on 15.2.2005. Two female child were born before the birth of his son, but both of them died. He has denied the suggestion that feast was organized on 16.2.2005. Pratap Singh son of Sri Ramswaroop has been produced as DW-2, who has stated that no firearm was recovered in his presence. He has not given any statement to the police. He has denied the recovery of Tamancha. He has also denied having given any statement under Section 161 Cr.P.C. to the police.

16. On the basis of the evidence aforesaid the trial court has come to the conclusion that the deceased has been done to death by the accused appellant on account of a definite motive i.e. the illicit relations between Shiv Rani (wife of the deceased) and the accused appellant. The trial court has also come to the conclusion that statement of PW-1 and PW-2 are reliable and as they have seen the incident, therefore, the prosecution has established the guilt of the accused appellant beyond reasonable doubt. The police papers have been found to be in order and the argument that FIR was anti-timed has been disbelieved.

17. Aggrieved by the judgment of conviction and sentence the appellant has preferred the present jail appeal.

18. We have heard Sri Kumar Kartikeya, learned Amicus Curiae appearing for the accused-appellant and Km. Meena, learned A.G.A. for the State, and perused the records of the present appeal as also the lower court records.

19. Learned Amicus Curiae, appearing for the accused-appellant submits that prosecution story is wholly improbable inasmuch as the incident although is said to have been seen by four persons, namely, Jagdish (PW-1), Ram Ladaite (PW-2), Gayadeen, Bansi and Sant Ram but only Jagdish (PW-1) and Ram Ladaite (PW-2) have been produced and other eye witnesses who could be the independent witnesses have been suppressed. It is also submitted that motive attributed for the offence is alleged illicit relationship between the accused and the wife of the deceased which has not been substantiated and the most important witness in that regard, who is the wife of the deceased, namely, Shiv Rani has not been produced. Learned counsel further submits that conduct of PW-1 in not making attempts to take the deceased to the doctor and rather leaving him at the spot in the pit portrays an unnatural conduct and renders his presence doubtful. It is then contended that conduct of PW-1 in firstly chasing the accused-appellant by going towards Prahladpur; not informing anybody at Prahladpur about the occurrence of the incident; again returning to the place of incident and then going to the village and taking bicycle for lodging the FIR without informing anyone of the incident otherwise makes his presence doubtful. It is further stated that PW-1 has clearly stated that deceased fired from behind which is inconsistent with medical evidence, as the Doctor has opined that the injury has been caused to the deceased from the front. Learned Amicus Curiae further submits that on the very next day, during the course of his cross-examination, a material improvement is made in the testimony of PW-1 by bringing a story of exhortation, although the same was not there in his statement under Section 161 Cr.P.C. by giving an impression that deceased had turned on exhortation by the accused and thereby trying to explain the gun shot injury from the front. Submission is that this improvement renders the testimony of PW-1 highly doubtful. It is also urged that PW-1 is unmarried and on account of death of deceased his agriculture holding would come in his possession, as the sons of deceased were still minor. The further evidence on record is that the wife of the deceased is now living with PW-1. Submission is that this circumstance clearly renders the testimony of PW-1 highly doubtful particularly as PW-1 is elder to the deceased and was otherwise unmarried. Submission is that reliance cannot be placed upon it to convict the accused.

20. So far as the testimony of PW-2 is concerned it is urged by the learned Amicus Curiae that the uncle of the accused-appellant has been done to death in which the PW-2 is an accused and being on inimical terms with the accused, his testimony is not reliable. It is further argued that in the event there existed enmity on account of illicit relations in the past between the accused-appellant and wife of the deceased, there was no reason why the accused-appellant and the deceased would go together to attend the feast in the adjoining village. It is also urged that there was no source of light on the spot and PW-1 has clearly admitted that it was dark. The moonlight was also not sufficient, as per the learned counsel, it being the 7th day of Shukla Paksha and the visibility was limited.

21. Learned AGA, on the other hand, submits that accused appellant has been found guilty of committing the offence on account of a definite motive i.e. the illicit relations with wife of the deceased, which stands proved by oral testimony of PW-1 and PW-2. Learned AGA further submits that the incident was seen in the moonlight by the two eye witnesses, who are credible and reliable. It is further urged that the firearm used in the offence has been recovered on the pointing out of the accused appellant. Submission is that the trial court has correctly appreciated the evidence on record in order to return a finding of guilt against the accused appellant. Learned AGA, therefore, submits that the appeal lacks merit and is liable to be dismissed.

22. We have carefully examined the evidence on record, from a perusal of which it transpires that there was a definite motive alleged by the prosecution for the appellant to have killed the deceased. The allegation that appellant had illicit relations with the wife of deceased assumes significance. We have examined the evidence led in the matter with the assistance of learned counsel for the parties. The original records as also the statements under Section 161 Cr.P.C. of witnesses have also been carefully perused by us. As per the prosecution the wife of deceased Shiv Rani was taken by the accused appellant and it was on account of pressure exerted by the villagers and the family of the deceased that Shiv Rani came back and started living with the deceased. The prosecution case is that relations between the deceased and the accused appellant after this incident got strained/inimical and on account of such enmity the deceased has been done to death by the accused appellant while they were returning from a feast at Prahladpur. The incident allegedly has been seen by PW-1 and PW-2. We have, therefore, required to examine as to whether the prosecution has succeeded in proving its case of murder of deceased by accused appellant?

23. Evidence in the present appeal can broadly be segregated into two parts. The first part is with regard to the inimical relations as well as motive for the offence on account of alleged illicit relations between Shiv Rani and Hans Ram. The evidence in second part relates to the incident which allegedly has been seen by the two eye witnesses. The credibility and reliability of the two witnesses in light of the documentary evidence also requires consideration.

24. On the first part PW-1 has stated that the deceased got married to Shiv Rani about 15 years back. Shiv Rani has two sons. PW-1 has stated that Shiv Rani had left with the accused about 2-2½ years after her marriage and was not traceable for several days. No report was lodged and no complaint was made. Shiv Rani had returned after the community members had exerted pressure for return of Shiv Rani. PW-2, however, has stated that Shiv Rani has three sons with the eldest being 12 years old. PW-2 has, however, stated that the incident of Shiv Rani running away with the accused appellant occurred only about 3 years ago and not after three years of the marriage of Shiv Rani, as is alleged by PW-1.

25. Both the prosecution witnesses alleged that Shiv Rani had run away with the accused appellant after her marriage to deceased. There is, however, material contradictions in the statement of PW-1 and PW-2 with regard to the time of such incident. PW-1 states that Shiv Rani had left about 2-2½ years after her marriage. PW-2, however, states that Shiv Rani had fled about 3 years prior to the incident.

26. Both the prosecution witnesses admitted that no complaint was lodged in respect of alleged disappearance of Shiv Rani. The marriage of Shiv Rani with deceased was performed about 15 years back. If we are to believe PW-1 then the incident of Shiv Rani disappearing for several days with the accused appellant occurred nearly 12 years ago, while it occurred about 3 years ago if we are to believe PW-2. There is thus material variation in the stand of the prosecution witnesses itself with regard to the timing of the incident. We are inclined to give greater weight to the testimony of PW-1, as being the brother of deceased he is expected to be better informed with regard to the affairs related to the deceased. A period of nearly 12 years had expired since the incident of Shiv Rani running away with the accused. Prosecution witnesses of fact have alleged that Shiv Rani had 2 to 3 children (two as per PW-1 and three as per PW-2) during the last 12 years. Shiv Rani herself has not been produced in evidence by the prosecution, who could have thrown light on the issue. She was an important witness and could have provided relevant information with regard to her alleged running away with the accused appellant. No reasons have been disclosed as to why Shiv Rani has not been produced though she is included in the list of witnesses in the chargesheet. Admittedly no documentary evidence in the form of any written complaint etc. is available or produced.

27. Apart from the fact that about 12 years had expired since this incident of alleged running away of Shiv Rani with the accused appellant, the fact that accused appellant had gone with the deceased to attend a feast shows that there was no bad breath apparently left between them and some sort of normalcy had returned in their relations. The two prosecution witnesses also did not object to the company of the accused appellant while going to attend the feast at Prahladpur with the deceased and others. The very fact that the deceased and the accused had gone together to attend a feast indicates that their relations were not strained. The case of prosecution regarding strained relations between the deceased and the accused appellant on account of running away of the wife of deceased with the accused appellant, therefore, does not appear to be very convincing. This is particularly so, as the incident was not reported any where; there are material contradictions in the testimony of PW-1 and PW-2 with regard to time of incident of running away of Shiv Rani; more than 10 years had expired since the aforesaid incident; no untoward incident occurred during the last 10 years between the accused and the deceased; the relations between the deceased and the accused appellant had gained normalcy as they had apparently gone together to attend a feast.

28. We also find some force in the submission of learned Amicus Curiae that the entire immovable property of deceased is now in possession of PW-1 and even the wife of deceased Shiv Rani is living with PW-1. It is also worth noticing that PW-2 is an accused in the murder case of uncle of the accused appellant. PW-2 has, moreover, denied the relationship between his son and the deceased. The enmity between PW-2 and the accused appellant is also a circumstance, which persuades us to view the testimony of PW-2 with suspicion.

29. Coming to the second aspect regarding the incident, we find that the two prosecution witnesses have categorically stated that they had gone to attend the feast at the place of Jagdish and the incident occurred while they were returning at around 7.00 in the evening. The incident has occurred in the month of February and generally it turns dark at around 7.00 pm and there was no other source of light available at the place of occurrence. This fact has been admitted by both the prosecution witnesses and even the Investigating Officer has admitted that there was no other source of light available at the spot. The testimony of prosecution witnesses with regard to alleged occurrence of crime has been examined by us. PW-1 has stated that when they reached the field of Dhaniram Kacchi the accused appellant started abusing the deceased. The deceased objected to the abuse on which the accused appellant exhorted to kill the deceased and fired on him from behind. Relevant portion in the testimony of PW-1 in cross-examination is extracted hereinafter:-

"घटना के समय हंसराम व अमर सिंह के बीच एक दो कदम का फासला था। अमर सिंह आगे थे। पीछे हंसराम थे। ऐसा नहीं है कि हंसराम व अमर सिंह अगल बगल चल रहे हो। मैं अमर सिंह से 5-6 कदम पीछे था। गवाह रामलडैते सन्तराम, अमर सिंह हंसराम हमारे साथ ही थे। राम लडैते व सन्तराम 4-5 कदम अमर सिंह से पीछे थे।

हंसराम ने पीछे से फायर किया। फायर अमर सिंह की गर्दन (गुदी) में लगा था। फायर करते समय हंसराम और अमर सिंह के बीच लगभग दो कदम का फासला था।"

The above extracted statement of PW-1 regarding firing on the deceased from behind is contrary to the medical evidence on record inasmuch as the autopsy surgeon (PW-6) has clearly stated that the bullet had hit the deceased from the front. The postmortem report also shows that the gunshot injury was on the neck of deceased from the front.

30. It appears that PW-1 realized that he made a wrong statement with regard to accused appellant having fired on the deceased from behind and, therefore, on the very next day PW-1 made a material improvement in his testimony by stating as under:-

"हंसराम ने मेरे भाई अमर सिंह से कहा कि मार डालो साले को। मारने वालो में केवल हंसराम था। उसके साथ मारने वाला अन्य कोई आदमी नहीं था। हंसराम को देखकर अमर सिंह भागे नहीं बल्कि मुड़कर खडे हो गये थे। गोली लगने पर अमर सिंह सड़क के किनारे गिर गये थे।"

31. The story of exhortation by the accused appellant and the deceased turning around to face the accused appellant is a case of material improvement and embellishment on part of PW-1. No such version was disclosed to police under section 161 Cr.P.C. There is otherwise no occasion for exhortation by the accused appellant since he had no companion in the commissioning of offence who could be instigated to commit the offence. The witness was confronted with his previous statement under Section 161 Cr.P.C., wherein he admitted that there was no assertion made earlier by him with regard to exhortation by the accused. This part of the statement is again an improvement over what was disclosed by the witnesses to the police under Section 161 Cr.P.C. We find this improvement to be a material departure from what was stated earlier and creates a doubt upon the testimony of PW-1. We further find from the statement of PW-1 that after the incident he followed the accused appellant right up to Village Prahladpur but none was informed of the incident at Village Prahladpur to be unnatural. The witness again returned to the spot and then rushed towards the village to take a bicycle for going to the police station. However, this witness neither touched the deceased nor made any endeavours to take him to the hospital. The dead body was left lying on the road side. This witness then goes to Village Naigavna en-route the Police Station Shamshabad, where the written report was got scribed by Durvijay. The written report is taken to the police station where the FIR is lodged at 9.15 pm. The distance between the police station and the place of occurrence is about 14 kilometres. The testimony of PW-1 with material improvements, therefore, does not generate much confidence with regard to its credibility and reliability. We have also noticed the fact that PW-1 was the elder brother of the deceased and was unmarried. The wife of the deceased Shiv Rani is now with him and he is also in possession of the agricultural land of the deceased, as her three sons were still minor. We, therefore, do not find the testimony of PW-1 to be worthy of reliance.

32. So far as PW-2 is concerned, it is to be observed that his son Pramod is the co-brother of deceased. However, PW-2 denies this fact. He also denies the fact that he has any enmity with the accused appellant. However, it has come in evidence that PW-2 is an accused in the murder of uncle of accused appellant. His anxiety to suppress his relationship with the deceased or his inimical relations with the accused appellant generates suspicion with regard to credibility of this witness. He has stated that the deceased fell in a pit where the dead body was lying. He, however, made no efforts to take out the body from the pit. He has also stated that at the time when police arrived, the dead body of the deceased was lying in the pit. However, the Investigating Officer (PW-3) has clearly stated that the dead body of the deceased was on the road side and was not lying in a pit. There is no other material to show that the dead body was lying in the pit. The statement of PW-2, therefore, does not find corroboration from other evidence on record. This witness otherwise is an accused in the murder case of the uncle of accused appellant, which is apparent from his following testimony:-

"हंसराम के बाप का नाम सुखलाल है। सुखलाल चार भाई है। जिनके नाम रामचन्द्र, रामनाथ, रामलडैते और सुखलाल है। रामचन्द्र का कत्ल हुआ था। इस कत्ल के मुकदमें में मुझे मुल्जिम बनाया गया था मेरे अलावा रामचन्द्र के कत्ल के मुकदमा में घुरई लाल, आशाराम, रामलडैते, गयादीन मुल्जिम थे।"

The testimony of PW-2 is thus also not found reliable or trustworthy.

33. The only other circumstance against the accused appellant is with regard to recovery of a firearm allegedly on his pointing out while he was on police remand. This recovery is Ex.Ka-9. The recovery has been made on the alleged pointing out of the accused appellant from a polythene, which was taken out by the accused appellant from near the drain. The recovery is from an open place and has been made almost three and a half months after the incident. The only independent witness to the recovery, Pratap Singh, has not been produced by the prosecution. Pratap Singh has rather been produced as a defence witness and has clearly stated that no such recovery has been made in his presence. The report of the forensic laboratory has also been produced, as per which the recovered empty cartridge from the spot has not matched with the recovered Tamancha due to lack of individual characteristics. The FSL report also does not corroborate the prosecution version that it was from the alleged recovered Tamancha of accused appellant that the empty cartridge recovered from the spot has been fired. Therefore the recovery is also not found reliable.

34. The trial court while returning the finding of guilt against the accused appellant has not subjected the testimony of witnesses to careful scrutiny and has treated their statements to be gospel truth. Inherent contradictions in the testimony of witnesses have been overlooked. The fact that PW-1 had initially stated that the deceased was fired from behind by the accused and only subsequently a case was developed upon improvement that on exhortation the deceased turned back and therefore got hit from the front has been overlooked. The fact that PW-2 was an accused in the murder case of uncle of the accused appellant has also been overlooked. The fact that recovery has not been established as the only independent witness has denied it is also not factored in. The recovery is otherwise from an open place about three and a half months after the incident and had not tallied with the empty cartridge as per the FSL report is also not taken into consideration. We are, therefore, of the view that judgment and order of the court below, in such circumstances, cannot be sustained. We, therefore, hold that prosecution has not been able to establish its case which it had set out to prove at the commencement of trial and the inherent contradictions noticed in the evidence have not been appropriately explained either before the trial court or before this Court.

35. Consequently, the present jail appeal succeeds and is allowed. The judgement and order of conviction and sentence dated 23.7.2008, passed by Additional Sessions Judge/Special Judge (SC/ST Act), Farrukhabad, in Session Trial No.338 of 2005 (State of U.P. vs. Hans Ram) arising out of Case Crime No.89 of 2005, Under Section 302 IPC, Police Station Shamshabad, District Farrukhabad, and in Sessions Trial No.339 of 2005 (State of U.P. Vs. Hans Ram), arising out of Case Crime No.347 of 2005, Under Section 25 of Arms Act, Police Station Shamshabad, District Farrukhabad, and sentenced to life imprisonment, is set aside. The appellant Hans Ram, who appears to be in jail for the last 17 odd years, shall be set free, forthwith, unless he is wanted in any other cases, subject to compliance of Section 437-A Cr.P.C.

36. A copy of this order shall be communicated to the accused appellant in jail through Chief Judicial Magistrate/Jail Superintendent concerned, forthwith.

37. Learned Amicus Curiae, Mr. Kumar Kartikeya, has ably assisted the Court and would be entitled to payment of his fee from the High Court Legal Services Authority, as per the rules.

Order Date :- 3.3.2023

Anil

(Shiv Shanker Prasad,J.) (Ashwani Kumar Mishra,J.)