Hon'ble Akhtar Husain Khan,J.
Heard Sri R.N. Rai, learned counsel for the appellants and Sri Mahendra Singh Yadav, learned Additional Government Advocate.
This criminal appeal is directed against the judgement and order passed by the IIIrd Additional District Judge, Mainpuri dated 29th March, 1995, in Sessions Trial No. 301 of 1987 arising out of Crime No. 66 of 1987, Police Station Kotwali Bhogawon, District Mainpuri.
Under the judgement and order of the Additional District Judge impugned in the present appeal, both the appellants, namely, Nand Ram and Balishter have been convicted of an offence under Section 302 read with Section 34 of the Indian Penal Code for having committed murder of deceased Ziley Dar Singh. They have been sentenced to imprisonment for life.
The case of the prosecution, as reflected from the records of the present appeal, is as follows:
A first information report was lodged at the police station Kotwali Bhogawon, District Mainpuri on 21st March, 1987 at 11:30 a.m. by one Sheetal son of Khyali Ram, Village Nagla Girdhari, Mauza Tigawan, Police Station Bhogawon, District Mainpuri. It was stated in the first information report that on 20th March, 1987, the brother of the informant, namely, Ziley Dar Singh, who had gone to Furrukhabad to purchase seeds, was to return by railways. The first informant had accordingly gone to the railway station to receive his brother Ziley Dar Singh. Ziley Dar Singh could not purchase the seeds, therefore, he returned empty hands. First informant and Ziley Dar Singh started walking at the side of railway line for return to their village. After crossing the main signal at Mota, when they reached Puliya at around 08:30 a.m., two persons, namely, Nand Ram son of Teelom Singh and Balishter son of Tej Ram, both resident of village Nagala emerged from beneath the Puliya with guns in their hand. Both of them immediately fired upon Ziley Dar Singh. On being hit by gun shot, Ziley Dar Singh fell on the spot and expired. The first informant shouted and to save his life, jumped into a Nali. Besides the informant, the incident had also been seen by the other brother of Ziley Dar Singh namely, Atar Singh and one Rameshwar Dayal son of Khoob Chand, who at the relevant time were cutting grass in the area. On shouting of the aforesaid persons, Nand Ram and Balishter ran away towards the east. The dead body of the deceased Ziley Dar Singh was lying near the railway line. Large number of residents of the village had collected.
On registration of the first information report, the Station House Officer of Police Station Bhogawon, A.N. Singh took over the investigation. He reached the place of incident where panchnama was prepared. Inquest was done between 1:00 p.m. to 02:45 p.m. on 21st March, 1987. The dead body of the deceased was sent for post mortem along with attending documents. Post mortem of the dead body of the deceased Ziley Dar Singh was conducted on 22nd March, 1987 at 12:10 p.m. by Dr. H.N. Tripathi, District Hospital, Mainpuri. The Investigating Officer after completing the investigation submitted charge-sheet against the accused.
The accused Nand Ram in his statement under Section 313 of the Code of Criminal Procedure denied the charges and stated that he has been falsely implicated because of enmity.
It was stated by Nand Ram that prior to said incident, one Chhote Lal, who was also one of the member of the Gang of Ziley Dar Singh had killed the elder brother of Nand Ram, namely, Mahendra Singh and for their protection, a camp of P.A.C. had been established in the village. He was present in the house under the protection of P.A.C. on the date and time of incident.
Balishter in his statement under Section 313 of the Code of Criminal Procedure stated that in the trial pertaining to murder of Mahendra Singh referred to above, he was one of the prosecution witness. Prior to the date of incident for their protection, a camp of P.A.C. had been established at their residence. It was his case that Ziley Dar Singh had been shot dead by some one else. It is because of enmity that the accused has been falsely implicated.
From the post mortem report it is apparent that the deceased Zelay Dar Singh had suffered following ante mortem injuries:
"1- vkXus vL= dk izos'k ?kko 11 ls0eh0 x 5 ls0eh0 x vkj ikj psgjs ds ok;h rjQ ok;h fupyh iyd ls 1 ls0eh0 uhps rFkk ok;s dku ls 4 ls0eh0 vkxs lkeus dh rjQ psgjk fod`r Fkk rFkk pksV ds uhps dh Maxilla bone ,oa Mandible bone VqdMksa esa VwVh gq;h Fkh ukd dh gM~Mh Hkh VwVh gq;h FkhA ?kko ds fdukjs vUnj dh rjQ eqMs gq;s Fks ?kko ds pkjks rjQ 16 ls0eh0 x 7 ls0eh0 ds {ks=Qy esa dkyksap] mnu rFkk >qyl ekStwn FkhA 2- vkXus vL= dk fudkl ?kko 18 ls0eh0 x 9 ls0eh0 x vkjikj pksV ua0 1 ls feyrh gq;h psgjs ds nk;h rjQ rFkk VsEiy fjtu ij nk;s dku ls 3 ls0eh0 nwj ?kko ds fdukjs okgj dh rjQ eqMs gq;s ef"r"d okgj ?kko ls fudyh gqvk FkkA 3- QVk gqvk ?kko 2-5 ls0eh0 x 1 ls0eh0 x gM~Mh rd xgjkA ck;h rjQ ;g fjou ok;h vka[k ds okgjh okys dksaBk ls Bhd okgj dh rjQA 4- QVk gqvk ?kko 1-5 ls0eh0 x 0-5 ls0eh0 x gM~Mh rd xgjkA psgjs ds nk;h rjQ ukd dh tM ds utnhdA 5- cgqr ls vkXus vL= esa izos'k ?kko 11 ls0eh0 x 9 ls0eh0 ds {ks=Qy esa ihNs okys fgLls ds e/; Hkkx esa xnZu dh tM ls 24 lseh0 uhps izR;sd ?kko 0-2 ls0eh0 x 0-2 ls0eh0 x ekal is'kh ls yxk;r Thoracic cavity rd xgjk ?kko ds pkjksa rjQ fdlh izdkj dh dykSp mnu rFkk >qylu ekStwn ugh Fkh ?kko ds fdukjs vUnj dh rjQ eqMs gq;s FksA"
Dr. H.N. Tripathi, who had preformed the post mortem of the deceased had opined that injury nos. 1, 2 and 5 could be caused by gun shot while injury nos. 3 and 4 could be caused because of fall on the ground. It was also opined that injury no.1 could have been caused because of firing from a distance of nearly 6 feet and it could not be ascertained as to whether injury nos. 1 and 5 had been caused by same weapon or not.
The prosecution, in support of its case, examined Sheetal Singh, first informant, brother of the deceased Zelay Dar Singh as P.W.-1. Sheetal Singh in his testimony, repeated the incident, as was disclosed in the first information report. However, during his cross-examination, it was suggested that that on the same day, the Railway Station Master, Mota had sent a wireless message to Police Station Bhogawon informing that an unidentified dead body lay near the railway signal.
Rameshwar Dayal son of Khoob Chand, who is stated to be one of the witness of the incident in the first information report, was examined as P.W.-2. In his testimony, he stated that he had heard the sound of gun shot and he had seen the dead body of Zilay Dar Singh, but he specifically denied having seen the accused with fire-arm. Nor he had seen them fire upon Zilay Dar Singh. At this stage, he was declared hostile. During cross-examination by the prosecution, Rameshwar Dayala stated that there were two gangs, one comprising of members, who supported the informant Sheetal Singh and the others, who supported the gang of the accused. He stated that he has not been won over by the accused.
Atar Singh, son of Khyali Ram, real brother of the deceased, Zelay Dar Singh, was examined as P.W.-3. In his testimony, Atar Singh stated that he after hearing the gun shot stood up from the place, where he along with Rameshwar Dayal (P.W.-2) was cutting grass. He saw two persons with fire arms standing and after two or three shots were fired, he went to the place of incident. The persons, who fired upon Ziley Dar Singh were Nand Ram and Balishter, who are sitting in the Court. Zilay Dar Singh, on being hit by gun shots, fell and expired on the spot. He stated that at the time the gun shot was fired, Sheetal Singh (P.W.1) was at a distance of 1/2 farlang away from Ziley Dar Singh and was not with him. He did not seen the first informant Sheetal Singh hiding in any Nali or Gaddha at the time of incident. He admitted that his brother Ziley Dar Singh was convicted in one or two cases and he was not aware as to whether he was involved in any case of Dacoity or not.
A.N. Singh, Sub-Inspector, the Investigating Officer was examined as P.W.-4. He, in his testimony, admitted that on 21st March, 1987 a telegram was received from the Mota Railway Station but he did not remember the time of receipt of the telegram. The telegram mentioned about an unidentified dead body being lying near the railway track.
Dr. H.N. Tripathi, District Hospital, Mainpuri, who had preformed the post mortem of the dead body of deceased Zelay Dar Singh, was examined as P.W.-5. He proved the medical report.
Constable Shashi Kant Gautam, Pairokar Bhogawon, District Mainpuri, identified the carbon copy of the G.D. Entry on which Mahendra Singh Head Constable had signed, was examined as P.W.-6.
Constable Gamlesh Kumar was examined from the side of the accused as D.W.-1, in support of the plea that he was in the security of the accused on the fateful day. But he turned hostile.
The trial court after considering the evidence brought on record found that the first information report was lodged within reasonable time. The case as narrated in the first information report was well supported by the ocular testimony of P.W.-1 first informant and eye-witness and P.W.-3 Atar Singh, the other eye-witness. The medical evidence also supported the case of prosecution. So far as the receipt of telegram on the fateful day from the Railway Station Mota at the police Station Kotwali Bhogawon is concerned, it has been held that mere receipt of telegram would not dilute the case as mentioned in the first information report nor the prosecution story is to be disbelieved for non-production of the telegram by the prosecution. The trial court has gone to hold that the accused were guilty of an offence under Section 302 read with 34 of the Indian Penal Code and has accordingly sentenced them to file imprisonment.
Learned counsel for the appellants, challenging the judgement of the trial court, contended before us that from the recovery memo and the site plan prepared, it is apparent that a two rupee note and two coins were recovered from the dead body. If the prosecution story is correct, that the deceased Ziley Dar Singh had gone to purchase the seeds to Farrukhabad, which he could not purchase, for the reasons best known, then there should have been requisite money with him which should have been recovered by the police from the dead body. It is further submitted that no bag, which according to the prosecution witness had been taken by the deceased Ziley Dar Singh for purchase of seeds, was found near the dead body.
It is then contended that one of the vital document to establish as to whether the prosecution story was true or false, was the telegram which was admittedly received from the Railway Station Master, Mota at the police Station Kotwali Bhogawon on the same day, inasmuch as the timing of the telegram would have clinchingly established the veracity or otherwise of the first information report and the prosecution story. He submits that non-production of the telegram and non-disclosure of the time when such telegram was received by the Investigating Officer is fatal to the case of the prosecution. He further points out that injury no.1 as per the report of the Doctor has been caused by firing from a range of nearly 6 feet while the other gun shot injury had been caused from a distance of more than 6 feet, while according to the case of the prosecution both the accused were armed with Bandook and had fired from same range. This further belies the prosecution story.
It is submitted that Atar Singh (P.W.3) was real brother of the deceased Ziley Dar Singh. He is a chance witness, while the first informant Sheetal Singh is also the real brother of the deceased Ziley Dar Singh. Their testimony has to be judged with caution, more so because there was a long standing enmity between the accused and the deceased and his family members. Therefore, in the facts of the present case, it cannot be said that the prosecution has been able to establish the charge with certainty.
Learned Additional Government Advocate for the State in reply submitted that the trial court has appreciated the evidence brought on record. The first information report was prompt and the case, as narrated in the first information report, was well supported by the ocular evidence of Sheetal Singh (P.W.-1) and Atar Singh (P.W.-3). Medical evidence was also in support thereof. He therefore submits that the prosecution has been able to bring home the charge against the accused with certainty.
We have considered the submissions made by the learned counsel for the parties and have examined the records of the present appeal in detail.
In our opinion, the ocular testimony of Sheetal Singh (P.W.-1), who is stated to accompany the deceased Ziley Dar Singh, his brother, after he alighted from the train at Mota Railway Station and was proceeding his village when the incident is alleged to have taken place, as well as the testimony of Atar Singh, the other real brother of the deceased, who is stated to be cutting grass on the date and time of incident at the place of incident, have to be viewed carefully in view of admitted animosity between the accused and the deceased. It has to be kept in mind that the evidence of related witnesses has to be considered with due caution.
From the records, it is admitted that the deceased and the accused were involved in serious criminal cases and a camp of P.A.C. had been established in their village for public law and order.
We find that a telegram was received from the Mota Railway Station about an unidentified dead body lying near the railway track at Police Station Kotwali Bhogawon on the date of incident itself. This has been admitted by the Investigating Officer in his testimony as P.W.-4. The time of dispatch and receipt of telegram at the police station was vital to the entire prosecution story, inasmuch as if the said telegram had been received prior to the time of arrival of the train by which the deceased Ziley Dar Singh was stated to have reached the Mota Railway Station from Farrukhabad, the same would have belied the entire prosecution story.
We find absolutely no explanation as to why the Investigating Officer had chosen not to produce the said telegram or to disclose the time of the receipt of the same at the police station, during trial. In our opinion, vital piece of evidence relevant for examining the correctness or otherwise of the prosecution story has been concealed from the trial court.
We further find from the records that there is absolutely no explanation from the side of the prosecution qua injury nos. 3 and 4 suffered by the deceased as per the post mortem report. We also find that if the prosecution story qua the deceased Ziley Dar Singh having gone to Farrukhabad to purchase seeds and to have returned by train on the date of incident without purchasing the seeds, was correct, then normally there should have been recovery of money from his dead body, which has not been so recovered. From the recovery memo prepared, we find that only a two rupee note and two coins had been recovered.
We also find that there has been no recovery of railway ticket from the deceased, Ziley Dar Singh. Atar Singh (P.W.-3) in his testimony also denied having seen Sheetal Singh (P.W.-1) hiding in any Naali or any Gaddha at the time of incident. The prosecution witness, P.W.-2 turned hostile and denied having seen the assailants on the fateful day.
For the reasons recorded above, we find that there are various vital facts, which have gone unanswered. This crates a suspicion in the mind of the Court in respect of the prosecution story.
In the totality of the circumstances, as have been noticed herein above, we are inclined to hold that the both the accused Nand Ram and Balishter are entitled to benefit of doubt and that the prosecution has not been able to bring home the charge with certainty.
In view of the aforesaid, the appeal as filed by the appellants, Nand Ram and Balishter is liable to be allowed. It is ordered accordingly. The judgement and order passed by the IIIrd Additional District Judge, Mainpuri dated 29th March, 1995 is hereby set aside.
Since the accused are already on bail, their bail bonds are discharged.
The present appeal is accordingly allowed.