ALLAHABAD HIGH COURT
POP SINGH VS STATE OF U. P. ON 13 FEBRUARY, 2019
Summarised Judgement (Scroll for Complete Judgement)
Introduction :
The present Criminal Appeal has been preferred by the accused appellant Pop Singh against the judgement and order dated 15.2.2013/16.2.2013, passed by the Additional sessions Judge/Special Judge. E. C. Act Badaun in S.T. No. 688 of 2009 (State Vs. Pop Singh and 3 others) whereby the accused appellant has been convicted under section 302 IPC and consequently sentenced to life imprisonment along with fine of Rs. 10,000/-. Upon failure to deposit the amount of fine, the accused appellant is to further undergo rigorous imprisonment of 1 year.
Facts of the Case :
The occurrence leading to the conviction of the appellant under the impugned judgement and order is alleged to have occurred in broad day light at 2.00 p.m. on a chilly winter day i.e. on 12.12.2008. Four persons namely Satyaveer, son of Poshaki Lal, Ramesh son of Hakim Singh, Mukesh son of Dharmveer, Hakim son of Poshaki Lal are said to be at their home. All of a sudden on the above mentioned day and time 5 persons namely Khushiram son of Mihilal armed with licensed revolver, Ravindra son of Khargi armed with illegal weapon, Jiraj son of Ramautar armed with illegal weapon, Doctor Rishi son of Khargi Singh armed with licensed rifle and Pop Singh son of Anokhe armed with illegal weapon with a common object are alleged to have aggressed at the house of Hakim Singh. They then are said to have abused the inmates and exclaimed that no one should go free. Immediately thereafter they started firing of which one shot struck Ramesh alias Nanhoo in his stomach. Somehow rest of the persons who are said to be present in the house, sneaked inside the house and thus managed to save themselves. On the loud alarm raised by the above named inmates, large number of villagers came on the spot. Thereafter, the injured is alleged to have been taken to C. H. C. Bisauli/Government Hospital, where he succumbed to the fire arm injury sustained by him.
Obesrvation of Court :
Thus, having considered the submissions made by the learned counsel for the appellant, and after evaluating the evidence on the record in the light of the parameters of evaluation of evidence by a court of appeal, as laid down by the Apex Court as well as this Court, the inescapable conclusion is that the court below has erred in convicting the accused appellants by simply believing the testimony of P.W.1 and P.W.2 as reliable and credible and accepting the prosecution case as probable. The Court below has not adverted to the various circumstances which we have referred to above and discussed, which create a serious dent in the prosecution case by making it highly improbable.
Judgement :
We are, therefore, of the considered opinion that the appeal must succeed. Accordingly, the present criminal appeal succeeds and is allowed. The judgement/order dated 15.2.2013/16.2.2013, passed by the Additional sessions Judge/Special Judge. E. C. Act Badaun in S.T. No. 688 of 2009 (State Vs. Pop Singh and 3 others) under section 302 IPC, is set aside. The appellant is acquitted of the charge framed against him. The appellant is in jail. He shall be released forthwith. His bail bonds are cancelled and the sureties are discharged.
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Complete Judgement
ALLAHABAD HIGH COURT
POP SINGH VS STATE OF U. P. ON 13 FEBRUARY, 2019
Bench: Vikram Nath, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 55
Case :- CRIMINAL APPEAL No. - 1122 of 2013
Appellant :- Pop Singh
Respondent :- State Of U.P.
Counsel for Appellant :- S.K.Sharma,Apul Misra,Istiyaq Ali
Counsel for Respondent :- Govt.Advocate
Hon'ble Vikram Nath,J.
Hon'ble Rajeev Misra,J.
(Dictated by Hon'ble Rajeev Misra, J.)
1. The present Criminal Appeal has been preferred by the accused appellant Pop Singh against the judgement and order dated 15.2.2013/16.2.2013, passed by the Additional sessions Judge/Special Judge. E.C. Act Badaun in S.T. No. 688 of 2009 (State Vs. Pop Singh and 3 others) whereby the accused appellant has been convicted under section 302 IPC and consequently sentenced to life imprisonment along with fine of Rs. 10,000/-. Upon failure to deposit the amount of fine, the accused appellant is to further undergo rigorous imprisonment of 1 year.
2. We have heard Mr. Istiyaq Ali, the learned counsel for the appellant, Sri Arunendra Kumar Singh and Anil Singh Chauhan, learned A.G.A. and Sri Sudarshan Singh, learned brief holder for the State.
3. The occurrence leading to the conviction of the appellant under the impugned judgement and order is alleged to have occurred in broad day light at 2.00 p.m. on a chilly winter day i.e. on 12.12.2008. Four persons namely Satyaveer, son of Poshaki Lal, Ramesh son of Hakim Singh, Mukesh son of Dharmveer, Hakim son of Poshaki Lal are said to be at their home. All of a sudden on the above mentioned day and time 5 persons namely Khushiram son of Mihilal armed with licensed revolver, Ravindra son of Khargi armed with illegal weapon, Jiraj son of Ramautar armed with illegal weapon, Doctor Rishi son of Khargi Singh armed with licensed rifle and Pop Singh son of Anokhe armed with illegal weapon with a common object are alleged to have aggressed at the house of Hakim Singh. They then are said to have abused the inmates and exclaimed that no one should go free. Immediately thereafter they started firing of which one shot struck Ramesh alias Nanhoo in his stomach. Somehow rest of the persons who are said to be present in the house, sneaked inside the house and thus managed to save themselves. On the loud alarm raised by the above named inmates, large number of villagers came on the spot. Thereafter, the injured is alleged to have been taken to C.H.C. Bisauli/Government Hospital, where he succumbed to the fire arm injury sustained by him.
4. Hakim Singh, the father of the deceased, thereafter proceeded to Police Station Bisauli, District Budaun to inform the police of the aforesaid occurrence. He submitted the written report of the same on 12.12.2008 itself (Ext KA 1) giving a very parochial account of the entire occurrence.
5. On the receipt of the written report dated 12.12.2008, the police of Police Station Bisauli, District Budaun registered the F.I.R. dated 12.12.2008 as Case Crime No. 1502 of 2018, under sections 147, 148, 149, 304, 307, 504, 506 I.P.C., P.S. Bisauli, District Budaun. Constable/467 Ujagir Singh is the scribe of F.I.R. dated 12.12.2008 (Ext. KA-3). As per the check F.I.R., the same was lodged by Hakim Singh son of Poshaki Lal. The occurrence was said to have occurred on 12.12.2008 at 2.00 P.M. The F.I.R. was registered on 12.12.2008 at 4.20 P.M. The distance from the place of occurrence and the Police Station was said to be 3 km. However, the said F.I.R. as noted above, did not detail the occurrence with precision and specific details. It would rather not be exaggerating to say that the F.I.R. did not disclose the basic prosecution case.
6. Subsequent to the lodging of the F.I.R. dated 12.12.2008, the police of Police Station, Bisauli, District-Budaun came into motion. P.W.-8 Inspector Hari Prasad himself undertook the investigation on 12.12.2008, after receiving the papers relating to the aforesaid case crime number. He thereafter completed the formalities required to be done before commencing the investigation. Thereafter, this Investigating Officer recorded the statement of the first informant namely, Hakim Singh in terms of Section 161 Cr. P. C. On the pointing of the first informant, he visited the place of occurrence and prepared the site plan dated 17.12.2008 (Ext. KA-14). On the next day, this Investigating Officer recorded the statement of P.W. 4- C/467 Ujagar Singh, the scribe of the F.I.R. dated 12.12.2008. He thereafter proceeded to the Government Hospital/CHC Bisauli, where the dead body of the deceased was lying.
7. P.W.-5, S.I. Vijay Kumar, who was posted as Sub-Inspector P.S. Bisauli, District-Budaun undertook the formality of getting the inquest of the deceased conducted at Government Hospital/C.H.C., Bisauli, District-Budaun. He consequently appointed the Panch witnesses namely (1) Dharmveer, son of Poshakilal, (2) satyaveer son of Poshakilal, (3) Kishan Singh son of Poshakilal (All brothers of the first informant), (4) Balveer son of Bramhchari and (5) Lala Ram son of Dalchand. One fact may be noticed here that except for satyaveer neither the first informant nor any of the other inmates of the house who are alleged to be present in the house at the time of occurrence and referred to in the F.I.R. were nominated as Panch witness. The inquest commenced at 5.00 p.m. on 12.12.2008 and concluded at 6.30 p.m. In the opinion of the Panch witness, the death of the deceased was characterized as Homicidal as it was on account of fire arm injury. This Investigating Officer thereafter prepared the Inquest Report dated 12.12.2008 (Ext. KA-5). However, the inquest report does not give the description of the case number in which the same was prepared. The Investigating Officer then processed the Police papers for getting the post mortem of the body of the deceased conducted i.e. (A) Ext. KA-6 which is police form no. 379 dated 12.12.2008, and is the photograph of the dead body of the deceased.
(B)Ext. KA-7 is the memo dated 12.12.2008 relating to the specimen of the seal.
(C) Ext. KA-8 is the Police form no.13 dated 13.12.2008, which was prepared for getting the post-mortem of the body of the deceased conducted.
(D)Ext. KA-9 is the letter dated 12.12.2008 prepared by the Investigating Officer, P.W.-5 and addressed to the C.M.O. District Hospital Budaun for getting the post-mortem of the deceased conducted.
(E) Ext. KA-10 is the letter dated 12.12.2008 prepared by the Investigating Officer P.W.-5 and addressed to the Reserve Inspector Reserve Police Lines, Badaun, for getting the post-mortem of the body of the deceased conducted.
8. The post mortem of the body of the deceased was conducted on the next day i.e. on 13.12.2008 at District-Hospital, Budaun, by (P.W. 3) Dr. R.K. Singh. The doctor, who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased is shock and haemorrhage as a result of ante-mortem fire arm injury. The ante-mortem fire arm injury found on the body of the deceased have been described by the aforesaid Doctor as follows:-
(1) Fire arm wound of entry 2 cm x 2 cm cavity deep surrounded by blackening in an area of 4 cm x 4 cm in front of abdomen 9 cm above from umbilicus at 12 O' clock position on direction beneath the injury. The liver and stomach are found lacerated. About one litre of blood is present in the abdominal cavity. One wadding piece with 14 pallets are recovered from liver.
9. Thereafter, this Investigating Officer (P.W.-5) placed the Inquest Report (Ext. KA-5) and the P.M. Report (Ext. KA-2) in the General Diary and proceeded to secure the arrest of the accused. On 16.12.2018, P.W.-6 SSI R.S. NIDAR alogwith requisite police force made search for the named accused and raided Mohallah Gadarpura to secure the arrest of the accused. Thereafter, they reached Islam Nagar Adda Bisauli. At this juncture they received information from the police informant regarding the presence of three of the named accused namely, Jiraj Singh, Pop Singh and Ravindra who were said to be waiting for a conveyance on the Aonla road in front of Nakta Bag. Accordingly the raiding party proceeded for the aforesaid place. On seeing Police Jeep, the aforesaid accused persons hurriedly started entering the grove. But on the pointing of the Police informant and with some little difficulty the raiding Police Party nabbed them. As such, three of the named accused:- namely, Pop Singh, Jiraj and Ravindra were arrested on 16.12.2008. Accordingly, this I.O. prepared the arrest memo of the aforesaid accused on 16.12.2008 (Ext. Ka.-15) which is said to be witnessed by Inspector Hari Prasad (P.W.-8) and SSI R.S. Nidar. (P.W.-6).
10. Upon arrest of the above named three accused, search was made and from the person of Pop Singh, the I.O. recovered a country made 12 bore gun along with 2 live cartridges.
11. He also recovered a country made .315 bore gun along with a live cartridge from the body of the accused Jiraj.
12. From the body of the third accused Ravindra a country made .315 bore gun along with one live cartridge was recovered. He, accordingly, prepared the recovery memo dated 16.12.2008 (Ext. KA-11). The aforesaid recovery was said to be witnessed by Vikas Yadav, Rajesh Babu, Prem Pal and SSI, R.S. Nidar.
13. On being questioned about the occurrence, which took place on 12.12.2008 at 2.00PM, all the aforesaid accused confessed about the occurrence as well as the murder of the deceased Ramesh @ Nanhoo by the accused persons with the use of the weapons so recovered.
14. Having secured the arrest of the accused and the recovery of illegal arms and ammunitions from the body of the aforesaid three accused, this Investigating Officer thereafter lodged the F.I.R. dated 16.12.2008 against the above named three arrested accused. The said F.I.R. came to be registered as Case Crime No. 1529 of 2008 (State Vs. Pop Singh) under Section 25 of the Arms Act, Case Crime No. 1530 of 2008 (State Vs. Jiraj Singh) under Sections 25 of the Arms Act, Case Crime No. 1531 of 2008 (State Vs. Ravindra) under Section 25 of the Arms Act, P.S. Bisauli District-Budaun.
15. On 17.12.2008, the Investigating Officer Hari Prasad (P.W.-8), recorded the statement of some of the Panch witnesses. On 25.12.2008, this Investigating Officer namely Hari Prasad (P.W.-8) raided the probable places regarding the presence of the accused Khushi Ram and Dr. Rishi Pal to secure their arrest. On 31.12.2008, this Investigating Officer again raided the house of the accused Khushi Ram and Dr. Rishi Pal to secure their arrest but they could not be arrested as they were not present. Thereafter, this Investigating Officer Hari Prasad (P.W.8) was transferred and consequently, the investigation was taken over by P.W.-7 Mahi Pal Singh on 8.1.2009, who was posted as S. H. O. P.S. Bisauli, District Badaun.
16. P.W.-7, Mahi Pal Singh accordingly proceeded with the investigation by recording the statement of the earlier Investigating Officer namely Inspector Hari Prasad (P.W.-8), who had arrested and recovered the country made guns from the three named accused, namely, Pop Singh, Jiraj Singh and Ravindra and alleged to be used in the commission of the crime. He then recorded the statement of SSI Radhey Shyam Nidar one of the witnesses, who had witnessed the recovery of illegal weapons and ammunitions from the person of the above mentioned accused persons. He thereafter recorded the statement of one of the witnesses of the Panchyatnama/F.I.R, namely, satyaveer son of Poshakilal. On 14.01.2009, this witness searched for the absconding two accused, namely, Khushi Ram and Dr. Rishi. On 19.01.2009, he recorded the statements of the witnesses of recoveries, namley, Constable -Prakesh Pal and Vikas Yadav. On 20.01.2009, he recorded the statement of the witness named in the F.I.R. namely Mukesh. From this witness (Mukesh) and the police informant, it was gathered by this I.O. that Sher Bahadur son Balist, Guddu son of Virendra, Ajay Pal son of Brahmachari, Daya Ram son of Brahmachari and Jitendra son of Shishu Pal whose grove and agricultural field are situate near the place of occurrence are also the witnesses of the occurrence. Consequently, this I.O. made enquires from the aforesaid persons and further recorded their statements. These witnesses however, denied the presence of Khushi Ram and Dr. Rishi at the time and place of occurrence. He thereafter recorded the statements of Ramveer Singh son of Kedhar, Anil son of Nainsukh, Balister son of Natthu Singh, Jogenera son of Suresh Singh, Krishna Murari son of Mahru Singh, Jata Singh son of Ramteerath and Ghanshyam Singh son of Amar Singh. These witnesses also confirmed the false implication of the accused Dr. Rishi and Khushi Ram. On the basis of discrete enquiry, this I.O. concluded that the assertion made by the above mentioned persons regarding the false implication of Dr. Rishi and Khushi Ram is correct. This I.O. further received certain affidavits in respect of two of the named accused Khushi Ram and Dr. Rishi, which he placed in the General Diary. On 26.01.2009, this I.O. examined and recorded the statements of the witnesses, Vachis Sharma resident of Chandpura, Jhanjhan Singh son of Chheda Lala, Grish Pathak son of Ganga Santosh, Harishankar son of Mathura Prasad, Ramnath son of Sankat, Chhatrapal son of Natthu Lal, Siyaram son of Ganesh Pal, Smt. Munni Devi wife of Badan singh, r/o Chandpura and Vijendra Singh son of Omkar Singh R/O Dharpur. These witnesses confirmed the presence of Khushi Ram, who is a tube-well operator in village Chandpura at the time of occurrence. On 28.01.2009, he further learnt from Ashok Kumar, Pradhan Chandpura and Mahaveer a resident of Chandpura regarding the presence of Khushi Ram in Village-Chanpura at the time of occurrence. On 09.02.2009, this I.O. examined a witness of recoveries, namely, Constable Rajesh Babu and recorded his statement. He further made enquiry from the scribe of the written report namely Brij Pal son of Dori Lal and recorded his statement. On 12.02.2009, it was gathered by this I.O. that the two accused, namely, Khushi Ram and Dr. Rishi have been falsely implicated by the first informant on account of enmity with the first informant. Their presence at the time and place of occurrence was not supported by any witness. On 13.02.2009, this I.O. concluded that the two accused Khushi Ram and Dr. Rishi are not involved in the occurrence as such Sections 147, 148, 149 I.P.C. were deleted from Case Crime Number concerned. On the basis of the material on the record, this I.O. submitted the charge-sheet dated 16.02.2009 bearing number 32/09 (Ext. KA13) against three of the named accused, i.e. Pop Singh son of Anokhe, Siraj son of Ram Autar and Ravindra Singh son of Khargi calling upon them to answer the charges under Sections 302, 504 and 506 I.P.C. He made further enquiry on 20.03.2009 and 03.04.2009 in which the facts stated above were also found to be true. The recoveries are said to be sent by this I.O. to the Forensic Science Laboratory on 20.03.2009 and an endorsement to that effect was made in the General Diary. Thereafter, the investigation was closed.
17. Upon submission of the charge-sheet dated 16.02.2009, cognizance was taken upon the same by the C.J.M. Budaun vide cognizance taking order dated 05.03.2009. Thereafter the C.J.M. Budaun committed the case to the Court of sessions vide committal order dated 25.04.2009. Consequently, sessions Trial No. 688 of 2009 (State Vs. Pop Singh and others) under Sections 302,504 and 506 I.P.C., P.S. Bisauli District-Budaun came to be registered in the Court of the sessions Judge, Budaun. On 05.05.2009, the sessions Judge, Budaun received the entire record alonwith the calender and thereafter, vide order of the same date transferred S.T. No. 688 of 2009 to the Court of Additional Sessions Judge/F.T.C. No.1, Budaun for disposal.
18. The Additional sessions Judge, Court No.1, Budaun framed charges against the accused Pop Singh, Jiraj and Ravindra in S.T. No. 688 of 2009 (State Vs. Pop Singh and others) vide order dated 01.07.2009. A perusal of the aforesaid, framing of charges order dated 01.07.2009 will go to show that three specific charges were framed against the charge sheeted accused for offences punishable under Sections 302/34, 504 and 506 I.P.C.
19. The accused-persons denied the charges so framed and demanded trial.
20. Accordingly, the burden fell upon the prosecution to lead evidence to bring home the charges so framed against the above mentioned named accused, i.e., Pop Singh, Jiraj and Ravindra.
21. It may be mentioned here that in the charge-sheet dated 16.02.2009 (Ext. Ka.-13) submitted by the 3rd Investigating Officer, namely, P.W.-3, Mahi Pal Singh as many as 16 witnesses were nominated. However, only 10 prosecution witnesses were produced before the Court below who are detailed herein below:
22. P.W.-1, Hakim Singh is the first informant of the F.I.R. dated 12.12.2008 (Ext. KA-3). He had submitted the written report dated 12.12.2008 (Ext. KA-1), on the basis of which, the F.I.R. dated 12.12.2008 was registered as Case Crime No. 1502 of 2008 under Sections 147, 148, 302, 307, 504, 506 I.P.C. P.S. Bisauli, District-Budaun by Constable 467, Ujagar Singh, the scribe of the F.I.R. This witness proved the written report dated 12.12.2008 (Ext. KA-1). He is also an eye witness of the occurrence. His testimony is an eye witness account of the entire occurrence.
23. P.W.-2, satyaveer son of Poshakilal, is said to be an eye witness of the occurrence. His name is also mentioned in the F.I.R. as an inmate of the house where the occurrence is alleged to have taken place. He is also an eye witness of the occurrence. His testimony is also an eye witness account of the entire occurrence.
24. P.W.-3, Dr. R. K. Singh is the Doctor, who conducted the post-mortem of the dead body of the deceased Ramesh @ Nannoo son of Hakim Singh, the first informant. He was posted as an Eye Consultant at District Hospital, Budaun at the time when he conducted the autopsy on the body of the deceased. This witness opined that the cause of death of the deceased is shock and haemorrhage as a result of ante-mortem fire arm injuries. He has described the ante-mortem fire arm injuries found on the body of the deceased as follows:-
"(1) Fire arm wound of entry 2 cm x 2 cm cavity deep surrounded by blackening in an area of 4 cm x 4 cm in front of abdomen 9 cm above from umbilicus at 12 O' clock position On dissection beneath the injury, the liver and stomach are found lacerated. About one litre of blood is present in the abdominal cavity. One wadding piece with 14 pallets are recovered from liver."
25. He has proved the post-mortem report dated 13.12.2008 (Ext. KA-2), which was prepared by him in his own hand writing. At the time when the autopsy upon the body of the deceased was conducted this witness found one shirt, one vest, one underwear, thread two hands long, one Angochha from the body of the deceased. He also found one wadding piece and 14 small pellets from the body of the deceased which were sealed separately. The same were marked as Material Ext. Nos. 1 to 21.
26. He also proved the aforesaid Material Ext Nos. 1 to 21. His testimony corroborated with the injuries found on the body of the deceased and also the prosecution case to the extent that the deceased was done to death by the accused persons on account of the fire arm injuries. According to this witness, wadding piece can enter the body if the shot is fired from a distance of six inches. There was lackning around the wound of entry, which means that the shot was fired from a very close range.
27. P.W.-4, Constable 467, Ujagar Singh was posted as Reserve Clerk at P.S. Bisauli, District-Budaun on 12.12.2008 i.e. the date on which the F.I.R. was lodged. He is the scribe of the F.I.R. dated 12.12.2008 which was registered on the basis of the written report dated 12.12.2008 submitted by the first informant Hakim Singh. He has proved the check F.I.R. Dated 12.12.2008 (Ext. Ka.-3).
28. P.W.-5, Sub-Inspector Vijay Kumar, at the time of occurrence was posted as Sub-Inspector at P.S. Bisauli, District-Budaun. This Investigating Officer had gone to C.H.C. Bisauli/Government Hospital and conducted the Panchayatnama /Inquest of the deceased in the verandah of Government Hospital/C.H.C. Bisauli. He also appointed the Panch witnesses namely Dharamveer Singh, Balveer Singh, Kishanveer Singh, satyaveer Singh and Lala Ram and got the panchayatnama/inquest of the deceased conducted on 12.12.2008. He thereafter prepared the inquest report dated 12.12.2008 (Ext. KA-5) and obtained the signatures of the panch witnesses on the same. He has proved the inquest report dated 12.12.2008 (Ext. KA-5).
(A) Ext. KA-6, is the Police Form no. 379 dated 12.12.2008 containing the photograph of the dead body of the deceased prepared by S.I. Vijay Kumar (P.W. 5). The same was proved by P.W. 5, S.I. Vijay Kumar.
(B) Ext. KA-7 is the memo dated 12.12.2008 relating to the specimen of the seal prepared by S.I. Vijay Kumar (P.W.5). The same was proved by P.W. 5, S.I. Vijay Kumar.
(C) Ext. KA-8 is the Police form no.13 dated 13.12.2008, which was prepared for getting done the post-mortem of the body of the deceased by (P.W.5) S.I. Vijay Kumar. The same was proved by P.W. 5, S.I. Vijay Kumar.
(D)Ext. KA-9 is the letter dated 12.12.2008 prepared by the Investigating Officer, P.W.-5 and addressed to the C.M.O. District Hospital Budaun for getting done the post-mortem of the deceased. The same was prepared by P.W 5, S.I. Vijay Kumar and proved by him.
(E) Ext. KA-10 is the letter dated 12.12.2008 prepared by (P.W.5) S.I. Vijay Kumar the Investigating Officer P.W.-5 and addressed to the Reserve Inspector Reserve Police Lines, Pilibhit, for getting the post-mortem of the dead body of the deceased conducted. The same was proved by (P.W. 5), S.I. Vijay Kumar.
29. P.W.-6 is Sub-Inspector, Radhy Shayam Nidar. On 16.12.2008, this witness was posted as SSI at P.S. Bisauli District-Budaun. On 16.12.2008 he accompanied by the Station House Officer, Hari Prasad (P.W.8) and other Police Constables vide Rawangi report no. 20 dated 16.12.2008 (Ext. KA 12) to Mohalla Gadar Pura proceeded to secure the arrest of the accused. At Islam Nagar Adda Bisauli, this witness received information from the police informant about the presence of three of the named accused namely, Jiraj Singh, Pop Singh and Ravindra in front of Natta Bag on the Aonla Road towards Aonla waiting for conveyance. Immediately, he proceeded with the police party towards the aforesaid place and on the pointing out of the informant arrested the above mentioned three accused from the spot. He prepared the arrest memo of the three accused namely Pop Singh, Jiraj Singh and Ravindra (Ext. KA-15). This arrest memo dated 16.12.2008 is witnessed by Inspector Hari Prasad (P.W. 8) and S.S.I. R.S. Nidar (P.W. 6). The same has been proved by (P.W.-8) Inspector Hari Prasad.
30. Upon arrest of the above named three accused, a search was made and from their person recoveries of illegal weapons and ammunitions were made. Accordingly, this I.O. prepared the recovery memo dated 16.12.2008 of the recoveries so affected i.e. (Ext. KA-11). The said recoveries are said to be witnessed by Vikas Yadav, Rajesh Babu, Prem Pal and S.S.I. R.S. Nidar. Inspector Hari Prasad, P.W.-8 proved the Recovery Memo dated 16.12.2008 (Ext. Ka.-11).
31. On the basis of the recoveries above named, this Investigating Officer further enquired from the aforesaid accused persons regarding their involvement in the alleged crime and whether the recoveries so made were used in commission of the crime or not. The accused persons are alleged to have confessed before this I.O. regarding their involvement in the alleged crime and also the murder of deceased Ramesh @ Nanhoo by the use of illegal weapon held by one of the accused-appellant namely, Pop Singh.
32. (PW. 7) is S.H.O. Mahipal Singh. On 8.1.2009, he was posted at P.S. Bisauli, as S.H.O. and upon the transfer of the earlier Investigating Officer namely Inspector Hari Prasad (P.W. 8) the investigation was entrusted to this witness. This Investigating Officer proceeded with the Investigation and examined various witnesses and came to the conclusion that two of the named accused namely Khusi Ram and Dr. Rishi have been falsely implicated on account of enmity. He, accordingly, deleted sections 147, 148 and 149 I.P.C. from the Case Crime Number and ultimately submitted the charge sheet dated 16.2.2009 bearing no. 32/09 against three of the named accused namely Pop Singh, Jiraj and Ravindra under sections 302/34, 504 and 506 I.P.C. This witness has further stated that the recoveries were sent to the Forensic Science Laboratory on 20.3.2009. However, there is no report of the Forensic Science Laboratory on the record to establish the same. He has proved the charge sheet dated 16.2.2009 (Ext. Ka-13).
33. (P.W. 8) Hari Prasad was posted as In-charge Inspector at P.S. Bisalui, District Budaun on 12.12.2008. After the lodging of the F.I.R. dated 12.12.2008 regarding the occurrence giving rise to the present criminal proceedings, he completed the formalities and obtained the papers. Thereafter he undertook the investigation of the case himself. He recorded the statement of the first informant and on the pointing of the first informant, he inspected the place of occurrence and prepared the site plan on 17.12.2008 (Paper No. 6 KA 1). The same was marked as (Ext. KA 14). He, thereafter, proceeded to record the statements of various other witnesses and placed the copy of the panchayatnama/inquest and the post-mortem report in the case diary. He further affected the arrest of the three accused namely Pop Singh, Jiraj Singh and Ravindra Singh on 16.12.2008 and from their persons recovered three country made guns with live cartridges. He, accordingly, prepared the recovery memo of the arms and ammunitions recovered from the person of the above mentioned three accused (Ext. Ka-11) dated 16.12.2008 . The said recoveries are said to be witnessed by Vikas Yadav, Rajesh Babu, Prem Pal and S.S.I., R.S. Nidar as per the recovery memo dated 16.12.2008 (Ext. KA-11) itself. He also prepared the arrest memo of the aforesaid three accused dated 16.12.2008. The arrest memo is said to be witnessed by Inspector Hari Prasad and S.S.I. R.S. Nidar (Ext.KA 15). This witness has further stated that the recoveries were not sent to the Forensic Science Laboratory for the report of the Ballistic Expert. In the site plan prepared by this witness he has shown the arrival of the accused persons on the spot from the southern side, whereas in his statement he has stated that the accused did not arrive at the place of occurrence from the southern direction. He has categorically stated that no bullet/pellet marks were found on the wall/doors of the house of the first informant nor he recovered any pellet from the house of the first informant. No empties or knife were found at the place of occurrence. The first informant did not disclose to this witness regarding the existence of an old enmity. However, this witness has stated that the first informant Hakim Singh had disclosed to him the factum regarding the forceful dragging of the deceased, by the accused.
34. (P.W. 9) H.C. 17 C.P. Virendra Singh. On 16.12.2008 this witness was posted as Head Moharrir (Head Clerk) at P.S. Bisauli, District Budaun. He had registered the F.I.R. dated 16.12.2008 relating to Case Crime Nos. 1529/2008, 1530/2008 and 1531/2008, under section 25 of the Arms Act. He also prepared the check F.I.R. bearing No. 220/01. He proved the F.I.R. dated 16.12.2018 (Ext. KA-17). He also proved the G.D. entry of the aforesaid Case Crime Number i.e. (Ext. KA 18).
35. (P.W. 10) Amar Nath Verma. This witness is a Police Officer of the rank of Sub-Inspector and was also the Investigating Officer of Case Crime Nos. 1529/2008, 1530/2008 and 1531/2008. He visited the place of occurrence from where the recovery of illegal arms and ammunitions was made from the person of three accused namely Pop Singh, Jiraj and Ravindra. He recorded the statements of various witnesses and on the pointing of the first informant. He also submitted the charge sheet bearing Nos. 13/09, 14/09, 15/09 in his hand writing (Ext. KA 22, KA 23 and KA 24) and under his signatures. He also prepared the site plan which are on the record as Exts. KA-19, KA-20 and KA-21 and proved Exts. KA-19, KA-20, KA-21, Ext. KA 22, KA 23 and KA 24.
36. Apart from producing the aforesaid witnesses, the prosecution further relied upon documentary evidence which were specifically proved by the prosecution witnesses and were consequently marked as Exhibits. The same are catalogued herein below:
37. Ext. KA-1 is the written report dated 12.12.2008 submitted by the first informant/father of the deceased namely Hakim Singh. The same was proved by (P.W.-1), Hakim Singh.
38. Ext. KA-2 is the post-mortem report dated 13.12.2008 of the deceased Ramesh @ Nanoo. The same was proved by Dr. R. K. Singh (P.W.-3), the Doctor, who conducted the autopsy on the body of the deceased.
39. Ext. KA-3 is the F.I.R. dated 12.12.2008 lodged by the first informant/father of the deceased, namely, Hakim Singh. Constable 467 Ujagar Singh (P.W.-4) is the scribe of the F.I.R. and he proved the same.
40. Ext. KA-4 is Carbon copy of the General Diary, which was proved by (P.W.-4), Constable 467, Ujagar Singh, who was posted as Reserve Clerk at P.S. Bisauli, District-Budaun on 12.12.2008.
41. Ext. KA-5, is the Panchayatnama/Inquest report of the deceased dated 12.12.2008. The inquest of the deceased was conducted on 12.12.2008 at Government Hospital/C.H.C. Bisauli, District-Budaun. This inquest report is signed by the panch witnesses namely (1) Dharmveer, son of Poshakilal, (2) satyaveer son of Poshakilal, (3) Kishan Singh son of Poshakilal (4) Balveer son of Bramhchari and (5) Lala Ram son of Dalchand. The inquest was got conducted by Sub-Inspector, Vijay Kumar (P.W.-5), who was posted as SHO, P.S. Bisauli, Distruct-Budaun on the said date. He prepared the inquest report dated 12.12.2008 and proved the same.
42. Ext. KA-6 is Police Form no. 379 dated 12.12.2008 containing the photograph of the dead body of the deceased. The same was proved by (P.W.5). S. I. Vijay Kumar.
43. Ext. KA-7 is the memo dated 12.12.2008 relating to the specimen of the seal. The same was prepared and proved by (PW.-5), S.I. Vijay Kumar.
44. Ext. KA-8 is the Police form no.13 dated 13.12.2008, which was prepared for getting the post-mortem of the body of the deceased conducted. The same was prepared and proved by (P.W.-5), S.I. Vijay Kumar.
45. Ext. KA-9 is the letter dated 12.12.2008 prepared by the Investigating Officer, P.W.-5 and addressed to the C.M.O. District Hospital Budaun for getting the post-mortem of the deceased conducted. The same was prepared and proved by (P.W.-5), S.I. Vijay Kumar.
46. Ext. KA-10 is the letter dated 12.12.2008 prepared by the Investigating Officer P.W.-5 and addressed to the Reserve Inspector Reserve Police Lines, Badaun, for getting the post-mortem of the dead body of the deceased conducted. The same was prepared and proved by (PW.-5), S.I. Vijay Kumar.
47. Ext. KA-11 is the recovery memo dated 16.12.2008, relating to the recoveries of the country made guns and live cartridges from the person of the three accused namely, Pop Singh, Jiraj and Ravindra. The recovery memo dated 16.12.2008 was prepared by Inspector Hari Prasad, P.W.-8 and proved by (P.W.-6), R.S. Nidar, who was posted as SSI, P.S. Bisauli, District-Budaun on 16.12.2008 and also a witness of the recoveries.
48. Ext. KA-12 is the copy of the General Diary, report no. 20 dated 16.12.2008 relating to the departure of P.W.-6 alongwith other police personnel to secure the arrest of the accused. The same was proved by (P.W. 6) S.I. Radhey Shyam Nidar.
49. Ext. KA-13 is the charge-sheet dated 16.2.2009 submitted by S.H.O., Mahi Pal Singh (P.W. 7) under Sections 302, 504, 506 against three of the named accused, namely, Pop Singh, Jiraj and Ravindra. The same was proved by (P.W. 7) S.H.O. Mahipal Singh.
50. Ext. KA-14, is the Site plan dated 17.12.2008 of the place of occurrence prepared by (P.W. 8), Hari Prasad, Inspector, P.S. Bisauli, District-Budaun and also the first investigating officer. The same was proved by (P.W. 8) Inspector Hari Prasad.
51. Ext. KA-15 is the Arrest Memo of the accused Pop Singh, Jiraj and Revindra dated 16.12.2018. This Arrest Memo was prepared by (P.W.8) Inspector Hari Prasad and witnessed by Hari Prasad and R. S. Nidar. The same was proved by (P.W.-8), Inspector, Hari Prasad.
52. Ext. KA-16 is the Memo dated 16.12.2008 whereby the information regarding the arrest of the accused was given to the District Legal Services Authority. The aforesaid Memo was witnessed by (P.W. 8) Hari Prasad, S.H.O., P. S. Binauli, District-Budaun. The same was proved by (P.W.8) Inspector, Hari Prasad.
53. Ext. KA-17 is the F.I.R. dated 16.12.2008, lodged by (P.W.8) Inspector-Hari Prasad against three of the named accused, which was registered as Case Crime No. 1529 of 2008, State Vs. Pop Singh under Section 25 Arms Act, Case Crime No. 1530 of 2008 State Vs. Jiraj Singh under Section 25 Arms Act, Case Crime no. 1531 of 2008, State Vs. Ravindra, under Section 25 Arms Act. The same was proved by (P.W.-9) HC/CP Virendra Kumar, who was posted as Head Moharrarir at P.S. Bisauli, District-Budaun on the relevant date.
54. Ext. KA-18 is the Carbon Copy of report no. 41 dated 16.11.2008 of the General Diary. The same was proved by (P.W.9) HC/CP Virendra Kumar, who was posted as Head Moharrarir at P.S. Bisauli, District-Budaun (P.W.-9).
55. Ext. KA-19 is the site plan dated 28.12.2008 of the place of occurrence regarding the recoveries/arrest of the accused prepared by the Investigating Officer/S.H.O. Wazirganj, namely, Amar Nath Verma, who was appointed as I.O. of the Case Crime Numers originating out of the F.I.R. dated 16.12.2008. The same was proved by (P.W.-10) S.I. Amar Nath Verma.
56. Ext. KA-20 is the site plan of the place of occurrence relating to the recoveries and arrest of the accused prepared and proved by (P.W.10) S.I. Amar Nath Verma.
57. Ext. KA-21 is the site plan dated 28.12.2008 of the place of occurrence relating to the recoveries and arrest of the accused prepared and proved by (P.W.10) S.I. Amar Nath Verma.
58. Ext. KA-22 is the charge-sheet dated 21.06.2009 submitted against the accused Pop Singh in case Crime No. 1531 of 2008, under Section 25 Arms Act, P.S. Bisauli, District-Budaun by (P.W. 10) S.I. Amar Nath Verma. The same was proved by (P.W.10), S.I. Amar Nath Verma.
59. Ext. KA-23 is the charge-sheet dated 21.06.2009 submitted against the accused Jiraj Singh in case Crime No. 1530 of 2008, under Section 25 Arms Act, P.S. Bisauli, District-Budaun by (P.W.10) S.I. Amar Nath Verma. The same was proved by (P.W.10), S.I. Amar Nath Verma.
60. Ext. KA-24 is the charge-sheet dated 21.06.2009 submitted against the accused Ravindra in case Crime No. 1531 of 2008, under Section 25 Arms Act, P.S. Bisauli, District-Budaun by (P.W.10). The same was proved by (P.W.10), S.I. Amar Nath Verma.
61. Ext. KA-25 is the sanction order dated 30.01.2009 passed by the District Magistrate, Budaun whereby sanction was accorded in terms of Section 39 of the Arms Act to launch prosecution against the accused Pop Singh under Section 25 of the Act. The same was proved by (P.W.10), S.I. Amar Nath Verma.
62. Ext. KA-26 is the sanction order dated 01.02.2011 passed by the District Magistrate, Budaun whereby sanction was accorded in terms of Section 39 of the Arms Act to launch prosecution against the accused Jiraj Singh under Section 25 of the Act. The same was proved by (P.W.10), S.I. Amar Nath Verma.
63. Ext. KA-27 is the sanction order dated 30.01.2009 passed by the District Magistrate, Budaun whereby sanction was accorded in terms of Section 39 of the Arms Act to launch prosecution against the accused Ravindra under Section 25 of the Act. The same was proved by (P.W.10), S.I. Amar Nath Verma.
64. The prosecution proceeded to adduce its witnesses one by one. After the two prosecution witnesses of fact had been examined, i.e., P.W.-1, Hakim Singh and P.W.-2 satyaveer, an application dated 16.02.2010 under Section 319 Cr.P.C. was filed by the prosecution whereby the accused Rishi Pal and Dr. Rishi Raj were sought to be summoned under Section 319 Cr.P.C. This application dated 16.12.2010 was partly allowed by the court below vide order dated 12.03.2010 and only one of the non-charge-sheeted accused namely Dr. Rishi Pal was summoned by the court below. Thereafter charges were framed against the aforesaid accused i.e. Dr. Rishi vide framing of charges order dated 15.07.2010. Three separate and specific charges were framed against the newly summoned accused Dr. Rishi under Sections 302/34, 504 and 506 I.P.C.
65. After the completion of the prosecution evidence, all the adverse material and circumstances were disclosed to the accused, i.e., Pop Singh, Jiraj, Ravindra and Dr. Rishi. All the accused except in reply to question no.7 denied the questions put to them one by one either by repeatedly saying that it is false, they have been falsely implicated or they have got nothing to say. However, in reply to question no.7 the accused-appellant, Pop Singh stated that the deceased Ramesh @ Nanhoo armed with a country made gun came to the field of Pop Singh and in the scuffle which took place between Pop Singh and Ramesh @ Nanhoo, the country made gun got fired accidentally resulting in a fire arm injury in the stomach of Ramesh @ Nanhoo. Thus there were two versions of the occurrence before the court below which required to be dealt with particularly in the light of the statement of (P.W.3) Dr. R.K. Singh, who conducted the autopsy on the body of the deceased and had stated in his testimony that the injuries sustained by the deceased could have been caused from a gun shot fired from a close distance of 6 inches. The nature of the fire arm injury found on the body of the deceased was having blackening around the wound of entry, which also confirms that the shot was fired from a close range.
66. The case in hand is a case of direct evidence and therefore, the litmus test required to be satisfied by the court below for convicting the accused was that the prosecution witnesses of fact are credible and reliable and therefore, their testimony is worthy of trust. The Court was thus required to evaluate the testimony of the two prosecution witnesses of fact in the light of the surrounding circumstances and then arrive at a conclusion whether the circumstantial evidence supports the ocular version or not. Apart from the above, the Court was further under a compelling obligation to weigh the medical evidence and then conclude as to whether the ocular version stands supported by the medical evidence or not. It is well settled that in a case of direct evidence motive has no role to play but there can be no motiveless malignancy. The case in hand is not a case arising out of grave and sudden provocation so there has to be some reason which has swayed in the minds of the accused to commit the alleged crime. Thus the Court below was also to consider the cause/motive behind the occurrence and its connection with the crime.
67. The court below on the basis of the arguments raised by the parties, the evidence on record and its consequential evaluation came to a very peculiar conclusion under the impugned judgement and order dated 15.02.2013 and 10.02.2013. The court below on the same set of evidence acquitted three of the named accused namely Jiraj, Ravindra and Dr. Rishi of the charges levelled against them under Sections 302/34, 504 and 506 I.P.C. However, one of the accused, namely Pop Singh was convicted for the offence punishable under Section 302 I.P.C only and was acquitted of the charges levelled under Sections 504 and 506 I.P.C. Accordingly, the accused Pop Singh was sentenced to life imprisonment alongwith fine of Rs. 10,000/- Upon failure to deposit the amount of fine, the accused Pop Singh was to further undergo rigorous imprisonment of one year. Thus feeling aggrieved by the judgement and order dated 15.02.2003/ 16.02.2003 passed by the court below the accused Pop Singh has now come to this Court by means of the present Criminal Appeal.
68. Commencing his challenge to the impugned judgement, learned counsel for the appellant submits that a perusal of the impugned judgement will go to show that the court below accepted the prosecution story as probable, the credibility and reliability of the prosecution witnesses of fact and thus held their testimony to be worthy of trust. On the question of motive, the Court below has held that both P.W. 1 and P.W. 2 in their testimony have stated that some one had destroyed the Eucalyptus trees of Anokhe father of Pop Singh. It was believed by the aforesaid two prosecution witnesses that the accused persons mistakenly believed that the act of destruction of Eucalyptus trees of Anokhe was done by the family of the informant. Jiraj, Ravindra and Dr. Rishi are not related to Anokhe. Therefore, the motive alleged is not relatable to the aforesaid accused persons, but can certainly be taken against Pop Singh. The court below further relied heavily upon the confession alleged to have been made by the accused-Pop Singh in reply to question No.7 of the statement under section 313 Cr. P. C. wherein he has stated that the deceased Ramesh @ Nanhoo armed with a country made gun came to the filed of Pop Singh and in the scuffle which took place, the country made gun got fired accidentally as the basis for the conviction so awarded. The Court below further concluded that the absence of any bullet/pellet marks on the walls of the house of the first informant, the absence of any blood at the place of occurrence make the prosecution case doubtful but did not evaluate the impact of the same on the prosecution story regarding the manner of occurrence. The medical evidence was evaluated by the Court below to the limited extent that the injury found on the body of the deceased is to corroborated with the testimony of the Doctor who conducted the autopsy on the body of the deceased but did not consider the veracity of the prosecution case regarding the manner of occurrence in relation to the medical evidence on the record.
69. He further contends that the court below in the impugned judgement has itself pointed out the defect in investigation i.e. the failure to send the recoveries regarding the clothes of the deceased to find out whether the blood stain on them was human blood or not. The recovery of the fire-arms recovered from the persons of the three accused, namely, Pop Singh, Jiraj and Ravindra were not sent to the Forensic Science Laboratory to ascertain their use in the commission of the crime. The recoveries of the fire-arm and ammunition were thus not proved as per Section 27 of the Indian Evidence Act. Similarly, the recoveries of the wadding piece and 14 small pellets recovered by the Doctor at the time of the post-mortem of the body of the deceased were also not sent to the Forensic Science Laboratory for ballistic examination in relation to the weapons recovered. Apart from the aforesaid inherent defects in the investigation which go to show the Police Pantomime in the investigation, the adverse circumstances, which exists to belie the prosecution case, i.e., the absence of any bullet or pellet mark on the walls of the house where the occurrence is alleged to have taken place, no recovery of any empties or pellets from the place of occurrence, the absence of any blood at the place of occurrence, the ambiguity regarding the place of occurrence, the incomplete and ambiguous description of the manner of occurrence in the F.IR., the failure to disclose the nature of weapons held by the three accused namely, Jiraj, Ravindra and Pop Sigh, the silence on the part of the two witnesses in not disclosing the direction from which the accused persons aggressed the house of the first informant, and the place from where they were standing and firing indiscriminately at the house of the first informant when taken together create a strong hypothesis which is different than the prosecution story as unfolded in the F.I.R have not been considered by the Court below. He further contends that one clinching fact be also noticed that one of the named accused namely Khusi Ram who was not even charge-sheeted was sought to be summoned by the prosecution, vide application dated 16.2.2010 under section 319 Cr. P. C. However, the said application was partly allowed and only Dr. Rishi was summoned, vide order dated 12.3.2010. The order dated 12.3.2010 was never challenged by the prosecution. No explanation regarding the same has come forward from the prosecution.
70. In challenge to the correctness of the conviction and sentence awarded by the court below to the accused-appellant Mr. Ishtiyak Ali, the learned counsel for the appellant has placed before the Court the following distinguishing facts of the case in the back drop of the distinct and adverse circumstances as noted herein above which make the prosecution case highly improbable.
71. As per the prosecution story as unfolded in the F.I.R. number of shots are said to have been fired by the five accused-persons named in the F.I.R. However, no bullet marks/pellet marks were found on the walls of the house where the occurrence is alleged to have taken place. This according to the learned counsel for the appellant makes the prosecution story doubtful as the circumstantial evidence does not support the prosecution case.
72. In the F.I.R. dated 12.12.2018, the first informant Hakim Singh has mentioned the names of five accused. He has described the nature of the weapons in the hands of two of the named accused namely, Khushi Ram and Dr. Rishi, who are said to be armed with licensed revolver and licensed rifle. However, no description of the weapon alleged to be in the hands of the remaining three named accused, has been given in the F.I.R. The same has not been specified in the F.I.R. deliberately as well as in the testimony of P.W.1 and P.W. 2, who are said to be the eye witness of the occurrence. The deliberate omission in the F.I.R. and the failure to detail the same by the two prosecution witnesses of fact in their oral testimony remains an unexplained circumstance, making the prosecution case doubtful.
73. The prosecution story as unfolded in the F.I.R. is highly improbable as the F.I.R. dated 12.12.2008 does not even remotely suggest the direction from which the accused persons came to be house of the first informant or the direction in which the accused persons were standing, shouting and firing. The prosecution story begins with the abrupt arrival of the five named accused at the place of occurrence and concludes with the firing done by the accused persons. The description of the manner of occurrence in the F.I.R is neither clear and crisp nor the same has been lucidly explained in the testimony of the two eye witnesses i.e. P.W.1 and P.W.2. To the contrary the same is a very parochial and vague description of the entire occurrence, which does not even suggest the basic prosecution case. The manner of occurrence thus remains unexplained in the statement of the eye witnesses who appeared before the Court below as P.W1 and P.W.2 which again is an adverse circumstance making the prosecution case improbable.
74. The first informant namely Hakim Singh, who is also the father of the deceased is himself not clear regrading the place of occurrence. As per the prosecution story as unfolded in the F.I.R. the occurrence took place at the house of the first informant. However, as per the site-plan dated 17.12.2008 (Ext. Ka.-) prepared by the first I.O., Hari Prasad, (P.W.-8), the place of occurrence is shown to be point A which is situate in agricultural field whereas point B is the place where the deceased is alleged to be standing. Thus the place of occurrence is not the same as mentioned in the F.I.R. As such the first informant is himself not clear and definite about the place of occurrence which again makes the prosecution case doubtful.
75. In the Site-Plan prepared by the Investigating Officer which is on the record as (Ext. KA-14), the direction from which the accused persons entered the house of the first informant has not been shown, nor the place from which the accused were standing/shouting and firing at the inmates of the house. This also is an unexplained adverse circumstance which makes the prosecution case doubtful.
76. There is no recovery of blood from the house of the first informant which is said to be the place of occurrence as per the F.I.R.
77. There is no recovery of blood from the place of occurrence as shown in the site-plan dated 17.12.2008 (Ext. KA 14).
78. The Investigating Officer has not collected any sample of earth mixed with blood or plain earth from the place of occurrence as per the F.I.R. dated 12.12.2008 (Ext. KA 3) or as per the Site-Plan dated 17.12.2008 (Ext. KA 14).
79. The prosecution case as set out in the F.I.R. does not stand corroborated with the oral testimony of the two prosecution witnesses of fact, i.e., P.W.-1, Hakim Singh and P.W.-2 satyaveer, who are also said to be eye witnesses of the occurrence which again makes the prosecution case doubtful.
80. The circumstantial evidence of the case do not support the ocular version of the occurrence as stated in the F.I.R.
81. The recovery of the clothes, wadding piece and 14 pellets recovered from the body of the deceased, i.e., Material Exts. 1 to 21 were not sent to the Forensic Science Laboratory for forensic/ballistic examination to find out whether the blood stain on them was human blood or not and secondly the same have been fired from the weapons recovered from the persons of the three of the named accused namely Pop Singh, Jiraj and Ravindra who have been arrested on 16.12.2018 and country made guns recovered from their possession.
82. The recoveries of the fire-arms and live ammunitions from the person of the three accused namely Pop Singh, Jiraj and Ravindra were not sent to Forensic Science Laboratory for the opinion of the ballistic expert to ascertain their use in the commission of the alleged crime even when a wadding piece and as many as 14 pellets were recovered by the Doctor from the body of the deceased to establish the use of the weapons so recovered was used in the commission of the alleged crime.
83. The F.IR. Dated 12.12.2008 was lodged against five named accused with the allegation that the accused Khushiram son of Mihilal was armed with licensed revolver, Ravindra son of Khargi was armed with illegal weapon, Jiram son of Ramautar was armed with illegal weapon, Dr. Rishi son of Khargi Singh was armed with a licensed rifle and Pop Singh son of Anokhe was armed with illegal weapon. There is no explanation in the entire testimony of the two eye witnesses, namely, (P.W. 1) Hakim Singh and (P.W. 2) satyaveer regarding the nature of the weapons held by three of the named accused, i.e., Pop Singh, Jiraj and Ravindra. This again is an unexplained circumstance making the prosecution case doubtful.
84. The Court below has measurably failed to judge the prosecution case regarding the manner of occurrence in the light of the medical evidence i.e. the post mortem report and the testimony of the Doctor who conducted the autopsy on the body of the deceased which clearly suggest that the fatal shot was fired from a very close range.
85. The Police upon completion of the investigation of the concerned case crime number submitted the charge-sheet against three of the named accused namely Pop Singh, Jiraj and Ravindra. Two of the named accused namely Khusiram and Dr. Rishi were excluded in the charge-sheet. No protest petition was filed by the first informant Hakim Singh to summon the two non charge-sheeted accused i.e. Khushiram and Dr. Rishi Pal. Subsequently, the prosecution filed an application dated 16.2.2010 under section 319 Cr. P. C. for summoning of Dr. Rishi and Rishipal. The said application dated 16.2.2010 was partly allowed by the Court below, vide order dated 12.3.2010 and only one of the non charge-sheeted accused namely Dr. Rishipal was summoned by the Court below. The order dated 12.3.2010 became final for want of any further challenge at the behest of the first informant. Thus, no attempt was made on behalf of the prosecution to get one of the non charge sheeted co-accused Rishipal summoned. This again is an adverse circumstance which the prosecution has failed to explain.
86. The court below has convicted one of the co-accused Pop Singh for the charge under Section 302 I.P.C. on the ground of his alleged confession regarding the commission of the crime as is sought to be gathered from reply to Question No. 7 put to the accused-appellant under section 313 Cr. P. C.
87. The F.I.R. dated 12.12.2008 lodged by the first informant PW.-1, Hakim Singh regarding the occurrence which took place at 2.00PM. is not a self contained F.I.R. as the material particulars regarding the place and the manner in which the accused persons assaulted the inmates of the house is very parochial and devoid of material particulars, making the same doubtful.
88. According to the learned counsel for the appellant, the aforesaid distinguishing facts when considered cumulatively not only make the prosecution case improbable but also make the prosecution witnesses of fact unreliable and therefore, unworthy of trust. It is thus urged that in view of the distinguishing facts of the present case as noted herein above the consequential conviction and sentence awarded by the court below to the accused-appellant is liable to be set aside by this Court.
89. Mr. Istiyaq Ali, the learned counsel for the appellant, on the basis of the aforesaid distinguished facts pointed out by him crystallized his submissions under distinct heads in challenge to the judgement under appeal.
90. The F.I.R. dated 12.12.2008 was lodged after due consultation and deliberation to falsely implicate the present appellant as the F.I.R. does not give a clear, precise and honest account of the manner of occurrence. According to the learned counsel for the appellant, the prosecution story as unfolded in the F.I.R. is a planned or orchestrated narration of the occurrence which does not reflect any truth. The clear omissions in the F.I.R. regarding the direction from which the accused persons came to the place of occurrence, followed by the non description of the weapons of assault in the hands of the three accused - Pop Singh, Jiraj and Ravindra clearly suggests the aforesaid. The F.I.R. has been drafted in a manner so as to falsely implicate the present appellant.
91. There is complete absence of motive on the part of the present appellant to commit the alleged crime. There is no recital in the F.I.R. expressing motive on the part of the appellant to commit the crime. Nothing has come out in the testimony of (P.W. 1) Hakim Singh, the first informant/father of the deceased or (P.W. 2) satyaveer an eye witness of the occurrence to establish enmity or some previous occurrence on account of which the accused appellant would have committed the crime. As such there was no axe to grind. No previous overt or covert act of the appellant has been established so as to establish any motive on the part of the appellant to commit the crime on account of pre-existing enmity. In short there can be no motiveless malignancy.
92. The medical evidence does not support the ocular version of the occurrence
93. The circumstantial evidence does not support the prosecution case.
94. The recoveries are not proved as per section 27 of the Evidence Act.
95. (P.W. 1) Hakim Singh and (P.W. 2) satyaveer are not credible and reliable witnesses. Their testimony is not worthy of credit.
96. Police pantomime.
97. Before proceeding to consider the correctness of the submissions raised by the learned counsel for the appellant, as noted herein above, it would be apt to refer to the observations made by this Court in the case of Badri and Others Vs. State of U.P., reported in Law (All) 2018 (9) 121, wherein the following has been observed in paragraph No. 38 regarding the task of a Court of appeal:-
"We have gone through the records and considered the submissions raised. In a case of circumstantial evidence, the court is hardly benefited by two quite similar accounts of one thing. Depositions, at times are riddled with exaggerations and embellishments that create more puzzles than solutions. The trial court has the opportunity to watch the demeanour of witnesses, yet the depositions seem to be at times overrated or even underrated. A thorough discussion after correctly reading the actual testimony is essential to avoid any omission relevant to gather the intention and draw an inference so as to arrive at the truth. Any depreciation in this labour by the court may ultimately lead to a conclusion that may otherwise adversely affect the prosecution with undue advantage to an accused and conversely may harm the innocent. This deficiency results in perversity, miscarriage of justice and wrong precedents. Evidence and testimony in a case of circumstantial evidence that complete the links in a chain are composed of numberless facts that are to be systemized and arranged after making rational deductions in faults of memory, errors in perceptions derived from the senses and outbursts of passionate excitement. The motives at work and the objects to be attained have to be assessed by attaching due weight to the testimony after consideration of errors in investigation by proportionate reductions on an overall picture that enables the court to either uphold the genesis of the story of the prosecution or to extend the benefit of doubt to the accused. The question of guilt therefore is entirely a matter of inference from circumstantial evidence that has to be drawn from incorruptible, disinterested and enduring testimony. Realistic proof forming part of circumstances based on facts of value corroborated by oral testimony from behind consolidates the traces of a crime and such discovery can turn to good account if the investigation inspires confidence. It is always useful to remember and apply the old adage of criminal investigation, "Circumstances cannot lie, witnesses can and do." The task before the court is to compare and arrange the two with unbiased testimony after deleting all elements of artful deception, mistakes and errors. To derive sifted truthful evidence in the ultimate analysis is what enables the court to hold fast for appraisal. "
98. In the light of the contours of the nature and exercise of jurisdiction by a Court of appeal as discussed by this Court in the case of Badri and Others (Supra) and the daunting task faced by the Court hearing criminal appeals, we now proceed to examine the submissions urged by the learned counsel for the appellant, to ascertain whether the conviction and sentence awarded to the accused appellant is sustainable in law and fact or not.
99. Learned counsel for the appellant submits that the circumstantial evidence does not support the ocular version and hence the conviction and sentence awarded by the Court below to the accused appellant is liable to be set aside by this Court. He further submits that according to the prosecution story as unfolded in the F.I.R. the place of occurrence is the house of the first informant Hakim Singh. However, as per the site plan prepared by the Investigating Officer P.W. 8 (Ext. Ka- 14), the place of occurrence is shown in the site plan as point A which is situate in agricultural fields whereas, point B is the place where the deceased is alleged to be standing . Thus the first informant Hakim Singh is not definite and specific regarding the place of occurrence which makes the prosecution story doubtful. Secondly, according to the prosecution the accused who are said to be five in number, came at the house of the first informant and started firing indiscriminately. However, there are no bullet marks/pellet marks on the wall, doors/ window panes of the house of the first informant. Thirdly, there is no recovery of blood from the house of the first informant which according to him is the place of occurrence nor from point A, which is the place shown in the site plan as the place of occurrence. According to the learned counsel for the appellant when the aforesaid three circumstances are taken together, they lead to one conclusion i.e. the ocular version of the occurrence does not stand supported from the circumstantial evidence in the present case. Thus, the aforesaid unexplained circumstances create a serious doubt regarding the prosecution case and in turn create a hypothesis which is different from the prosecution case.
100. Continuing his submissions, in challenge to the sentence and conviction awarded to the appellant by the Court below, learned counsel for the appellant next submits that as per the F.I.R. dated 12.12.2008, the prosecution story begins with the recital that five named accused with a common object aggressed at the house of the first informant and started firing indiscriminately of which one shot stuck Ramesh @ Nanhoo the son of the first informant Hakim Singh. P.W.1 Hakim Singh, the father of the deceased and P.W. 2 satyaveer brother of the first informant/uncle of the deceased are said to be the eye witness of the occurrence. These two witnesses in their testimony before the Court below, do not disclose the place at which the five named accused are said to be standing and firing at the inmates of the house. There is also no disclosure with regard to the distance in between the place from where the accused persons are said to be firing and the place in the house in which the inmates took refuge. There is no disclosure regarding the direction from which the accused came at the house of the first informant. The failure to disclose the nature of weapon in the hands of the three accused Jiraj, Ravendra and Pop Singh, even when the weapon held by the other two accused, has been specifically detailed, creates a serious doubt. The logical hypothesis that can be culled out from the perusal of the F.I.R. and the statement of the two eye witnesses is that there is some distance in between the accused and the deceased. The Doctor who conducted the autopsy on the body of the deceased namely, P.W. 3 Dr. R.K. Singh clearly opined that the deceased has died on account of shock and haemorrhage as a result of ante mortem firearm injury. The Doctor has clearly stated in his testimony, that the firearm injury sustained by the deceased, could have been caused from a shot fired from a distance of six inches. Thus, the nature of the injury on the body of the deceased does not support the ocular version of the occurrence as per the prosecution story as unfolded in the F.I.R. or the testimony of the two prosecution witnesses of fact as detailed above. In the light of the above, the burden fell upon the prosecution itself to explain the aforesaid circumstance which has remained unexplained during the course of the trial. Accordingly, the two prosecution witnesses are neither credible nor reliable and therefore, their testimony is not worthy of trust.
101. This Court is not unmindful of the observation made by a Division Bench of this Court in the judgement rendered in Criminal Appeal No. 2443 of 1987 (Sagheer and Others Vs. State of U.P.) also reported in 2018 (4) ADJ 286; 2018 (103) ACC 216 wherein, the following has been observed in paragraphs 31 to 39:-
"31. To begin with, in the case of Rama and Others Vs. State of Rajasthan, as reported in 2002 (4) SCC 571, the Apex Court has observed as follows in paragraph 4 of the judgement:-
"4. The impugned judgment has been challenged on the sole ground that the High Court has not disposed of the appeal in the manner postulated under law inasmuch as it does not appear from the impugned judgment as to how many witnesses were examined on behalf of the prosecution and on what point. The High Court has not even referred to any evidence much less considered the same. In our view, it is a novel method of disposal of criminal appeal against conviction by simply saying that after re-appreciation of the evidence and re-scrutiny of the records, the Court did not find any error apparent in the finding of the trial court even without reappraising the evidence. In our view, the procedure adopted by the High Court is unknown to law. It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under law. Thus, we are of the view that on this ground alone, the impugned order is fit to be set aside and the matter remitted to the High Court."
32. Similarly, in para 3 of the judgement in the case of Mohd. Shahid Vs. State of Madhya Pradesh, as reported in 2002 (9) SCC 731, the Apex Court has made the following observations:-
"3. This appeal is directed against the judgment of the Division Bench of the Madhya Pradesh High Court disposing of a criminal appeal and affirming the conviction and sentence recorded by the Sessions Judge. The appellant stood charged under Section 302 for having given knife-blow on the abdomen and chest of the deceased. There were as many as 4 eyewitnesses PWs 5, 8, 10 and 11. The learned Sessions Judge relying upon the evidence convicted the accused-appellant under Section 302 and sentenced him to imprisonment for life. On an appeal being carried, the Appellate Authority, instead of examining and reappreciating the evidence of all these eyewitnesses, disposed of the matter by holding that it is not necessary to give detailed reasons as the Court agrees with the conclusion of the trial Judge in convicting and sentencing the accused-appellant. This, in our view, cannot be held to be a consideration of the evidence by an appellate court in a criminal appeal. We, therefore, set aside the impugned judgment and sentence and remit the criminal appeal to the High Court for redisposal in accordance with law. The appeal being an old one, the High Court would do well in disposing of the same at an early date."
33. In Badam Singh Vs. State of M.P., as reported in 2003 (12) SCC 792, the Apex Court in paragraph 16 of the judgement has issued the following caution to a Court of Appeal:-
"16. The learned Sessions Judge after considering the evidence on record and accepting the evidence of the eye witnesses found the appellant guilty of the offence under Section 302 I.P.C. and sentenced him to imprisonment for life. The High Court by its impugned judgment dismissed the appeal preferred by the appellant. We have perused the impugned judgment of the High Court. The High Court which was the first Court of Appeal did not even carefully appreciate the facts of the case. It mentions that the FIR was lodged by PWs-5 and 6 whereas the fact is that the FIR was lodged by PW-4, the Forest Officer. Without subjecting the evidence on record to a critical scrutiny, the High Court was content with saying that the three eye witnesses having deposed against the appellant, the prosecution had proved its case beyond reasonable doubt. In our view, the High Court has not approached the evidence in the manner it should have done being the first Court of Appeal. The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to cross-examination to bring out facts which may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the Court may reject their evidence. That is why it is necessary for the High Court to critically scrutinize the evidence in some detail, it being the final court of fact. We have therefore gone through the entire evidence on record with the assistance of counsel for the parties."
34. The sum total of the aforesaid observations of the Apex Court lead to the inescapable conclusion that the High Court while hearing a criminal appeal is the last court of fact. As such, the High Court cannot decide a criminal appeal in a casual and cryptic manner. The High Court has to itself examine the evidence and scrutinize the testimony of the witnesses relied upon by the prosecution with caution and then come to a definite conclusion.
35. In the case of State of Uttar Pradesh Vs. Krishna Master and Others, as reported in 2010 (12) SCC 324, the Apex Court has cautioned the court of appeal in the matter relating to the reappraisal and reappreciation of evidence of a witness in the following words contained in paragraph 16 of the judgement, which is extracted herein below:-
"16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it."
36. This brings us to the issue relating to the appreciation of evidence by the appellate court as decided by the Apex Court in the Case of State of Uttar Pradesh Vs. Krishna Master and Others, as reported in 2010 (12) SCC 324. Paragraphs 15, 16, 17, 24 of the aforesaid judgement clearly deal with the manner in which the evidence of the eye-witnesses is to be evaluated in a criminal case. Paragraphs 15, 16, 17 and 24 are reproduced herein below:-
15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case.
24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness."
37. In the case in hand, there is the eye witness account of P.W. 1 and P.W. 2 which not only describes the occurrence but also the manner of assault. Apart from the above, there is also on record the post-mortem report given by the doctor (Ext. Ka-10). How the medical evidence and the ocular version have to be weighed in a criminal case, has been carefully dealt with by the Apex Court in the Case of Ram Bali Vs. State of U.P. as reported in 2004 (10) SCC 598. Paragraphs 10 and 11 of the aforesaid judgement deal with the issue referred to above. As such, the same are quoted herein below:-
"10. Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof. This Court in Pattipati Venkaiah v. State of Andhra Pradesh (AIR 1985 SC 1715) observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh and Ors. v. State of Punjab (AIR 1965 SC 26), it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors.
11. Factors were also noted by HWV Cox in his book referred to by learned counsel for the appellant. (See Seventh Edition, at pages 300 to 302). An author's view which is opinion based on certain basic assumptions only cannot be a substitute for evidence let in to prove a fact - which invariably depends upon varied facts, and according to the peculiar nature of a particular case on hand. The only inevitable conclusion is that the plea is without any substance, apart from the fact that the said plea pertaining to mere appreciation of facts was not raised before the High Court."
38. Section 145 of the Indian Evidence Act deals with the contradictions in the statement of the witness. The issue as to whether a witness can be contradicted by referring to the testimony of the other witness or by referring to his own previous statement, has been considered in the case of Mohan Lal Ganga Ram Gehani Vs. State of Maharashtra, reported in 1982 (1) SCC 700 which has been followed in the case of Chaudhri Ramjibhai Narsanghbhai Vs. State of Gujarat and Others, reported in 2004 (1) SCC 184. Paragraph 11 of the aforesaid judgement is relevant for the issue in hand. Accordingly, the same is reproduced herein below:-
"11.Coming to the plea that the contradictions noticed by the trial Court were ocular vis-a-vis the medical evidence, we find on reading of the judgment it is not to be so, Section 145 of the Indian Evidence Act, 1872 (in short the " Evidence Act") applies when same person makes two contradictory statements. It is not permissible in law to draw adverse inference because of alleged contradictions between one prosecution witness vis-a-vis statement of other witnesses. It is not open to Court to completely demolish evidence of one witness by referring to the evidence of other witnesses. Witnesses can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839. As was held in the said case, Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145 of the Evidence Act only. Section 145 has no application where a witness is sought to be contradicted not by his own statement but by the statement of another witness."
39. However, testimony of a witness can be assessed with the testimony of another to find out if there is any disparity in between the same for arriving at the conclusion as to whether the witness is reliable and credible or not."
102. To appreciate the submission urged by the learned counsel for the appellant that P.W.1 and P.W.2 are not credible and reliable, we have examined their testimony threadbare. We find that these two witnesses claim themselves to be the eye witness of the occurrence but their description of the manner of occurrence and the contradiction regarding the place of occurrence, the injury sustained by the deceased from a gun shot fired from a very close range are such circumstances which remain unexplained. Thus, the ocular testimony is wholly inconsistent with the circumstantial evidence as well as the medical evidence.
103. It is then urged that during the course of post-mortem of the body of the deceased, (P.W.3) Dr. R.K. Singh, who conducted the autopsy on the body of the deceased, recovered one wadding piece and fourteen small pellets from the liver of the deceased. These recoveries were marked as Material Exhibits 8 to 21. For reasons best known to the Investigating Officers of the concerned case crime number, no effort was made to get the forensic report of the same to ascertain that they have been fired from the weapons recovered from the three named accused namely, Ravindra, Jiraj and Pop Singh. Apart from the above, the Investigating Officer (P.W.6) R. S. Nidar recovered three country made guns along with live cartridges of different bore from the person of the three named accused i.e. Ravindra, Jiraj and Pop Singh. Again no effort was made to have the ballistic report of the same to ensure the use of the weapons so recovered by the accused in the commission of the crime. There is no report of the forensic science laboratory on record in relation to the aforesaid recoveries. On this factual premise, learned counsel for the appellant vehemently submits that the inaction on the part of the police in not taking the requisite action of sending the recoveries so made for the report of the ballistic/forensic expert clearly expose the Police pantomime in the investigation of the concerned case crime number. Drawing a parallel in between the above with the vague recital in the F.I.R. regarding the weapons held by the three named accused namely, Ravindra, Jiraj and Pop Singh, it is urged that deliberately it was not done so that the recoveries so made could be easily implanted for use in the commission of the crime in question. He therefore contends that the F.I.R. is thus was lodged after due consultation and deliberation to falsely implicate the present appellant as the F.I.R. does not give a clear, precise and honest account of the manner of occurrence. According to the learned counsel for the appellant, the prosecution story as unfolded in the F.I.R. is a planned or orchestrated narration of the occurrence which does not reflect any truth. The clear omissions in the F.I.R. regarding the direction from which the accused persons came to the place of occurrence, followed by the non description of the weapons of assault in the hands of the three accused - Pop Singh, Jiraj and Ravindra clearly suggests the aforesaid. The F.I.R. has thus been drafted in a manner so as to falsely implicate the present appellant.
104. The case in hand is based upon direct evidence. Therefore, in order to award or uphold the conviction of an accused in a case based upon direct evidence, the Court has of necessity to hold that the prosecution story is probable. The prosecution witnesses of fact are credible and reliable and therefore their testimony is worthy of credit. In a case of direct evidence motive cannot be said to be of much value but there can be no motiveless malignancy also. Therefore, the Court will have to go into the subsurface of the facts and circumstances of the case and find out as to what was the cause behind the occurrence/the motive behind the occurrence and whether it has any relation with the crime or not.
105. The Court below has held that both P.W. 1 and P.W. 2 in their testimony have stated that some one had destroyed the Eucalyptus trees of Anokhe father of Pop Singh. It was believed by the aforesaid two prosecution witnesses that the accused persons mistakenly believed that the act of destruction of Eucalyptus trees of Anokhe was done by the family of the informant. Jiraj, Ravindra and Dr. Rishi are not related to Anokhe. Therefore, the motive alleged is not relatable to the aforesaid accused persons, but can certainly be taken against Pop Singh. In doing so the court below relied heavily upon the confession alleged to have been made by the accused-Pop Singh in reply to question No.7 of the statement under section 313 Cr. P. C.
106. On a careful scrutiny of the alleged motive assigned to the accused-appellant for the commission of the crime, the Court finds that the same is too far stretched. A man will commit a murder only because he thinks otherwise, does not stand to reason. Learned counsel for the appellant then contends that on the same set of evidence the other accused persons have been acquitted of the charges framed against them and only on the aforesaid alleged motive, which is nothing else but a pure hypothesis, the Court below has convicted the accused-appellant and consequently sentenced him to life imprisonment. Drawing a parallel between the two, learned counsel for the appellant extraneously urged that the motive alleged against the accused-appellant and the crime alleged to have been done by him do not commensurate with each other. As such, the view taken by the Court below to award conviction to the appellant is purely hypothetical and hence liable to be set aside by this Court.
107. Learned counsel for the appellant, lastly contended that the recoveries of the weapon and ammunition made from the person of the three accused namely, Jiraj, Ravindra and Pop Singh were not proved in according with the mandate of Section 27 of the Indian Evidence Act. The Court finds that after the said recoveries were made, an F.I.R. dated 16.12.2008 was lodged by the Investigating Officer namely, Hari Prasad and was registered as Case Crime Nos. 1529 of 2008 (State Vs. Pop Singh) under Section 25 of the Arms Act, Case Crime No. 1530 of 2008 (State Vs. Jiraj Singh) under Sections 25 of the Arms Act, Case Crime No. 1531 of 2008 (State Vs. Ravindra) under Section 25 of the Arms Act, P.S. Bisauli District-Budaun. What has happened in the aforesaid case crime nos. is not descernable from the record. Accordingly to avoid conflicting judgement, we have refrained from considering this issue.
108. Thus, having considered the submissions made by the learned counsel for the appellant, and after evaluating the evidence on the record in the light of the parameters of evaluation of evidence by a court of appeal, as laid down by the Apex Court as well as this Court, the inescapable conclusion is that the court below has erred in convicting the accused appellants by simply believing the testimony of P.W.1 and P.W.2 as reliable and credible and accepting the prosecution case as probable. The Court below has not adverted to the various circumstances which we have referred to above and discussed, which create a serious dent in the prosecution case by making it highly improbable.
109. We are, therefore, of the considered opinion that the appeal must succeed. Accordingly, the present criminal appeal succeeds and is allowed. The judgement/order dated 15.2.2013/16.2.2013, passed by the Additional sessions Judge/Special Judge. E.C. Act Badaun in S.T. No. 688 of 2009 (State Vs. Pop Singh and 3 others) under section 302 IPC, is set aside. The appellant is acquitted of the charge framed against him. The appellant is in jail. He shall be released forthwith. His bail bonds are cancelled and the sureties are discharged.
Order Date :- 13.2.2019 HSM
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ABHISHEK 02012019
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