Hon'ble Mrs. Vijay Lakshmi, J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. Both these Jail appeals arise out of composite judgment and order dated 24.07.2012 passed by Sri D.S.P. Srivastava, Special Judge, Dacoity Affected Area, Etah in Sessions Trial No. 36 of 2005 (State Vs. Pappu @ Ghanshyam and another) under Sections 394, 302 read with 34 I.P.C. and Sessions Trial No. 955 of 2006 (State Vs. Pappu @ Ghanshyam) under Section 25 of Arms Act, whereby accused appellants Pappu alias Ghanshyam and Karua alias Fauzi alias Netrapal have been convicted and sentenced under Section 394 IPC to undergo 10 years Rigorous Imprisonment with a fine of Rs. 10,000/-. In case of default in payment of fine, they are to undergo further imprisonment of six months. They have further been convicted under Section 302 read with Section 34 IPC and sentenced to undergo life imprisonment with a fine of Rs. 10,000/- each and in case of default in payment of fine, they are to undergo further six months imprisonment. Accused appellant Pappu alias Ghanshyam was, however, acquitted of the charge under Section 25 Arms Act in Sessions Trial No. 955 of 2006.
2. Against the aforesaid conviction and sentence Pappu @ Ghanshyam has filed Jail Appeal No. 4069 of 2012 whereas Jail Appeal No. 1365 of 2013 has been filed by Karua @ Fauzi @ Netrapal through Jail Superintendent, Etah.
3. Prosecution case surfacing from FIR as well as evidence available before Trial Court is that Informant, PW-1, Jabar Singh, jointly owned a 'Jugaad' (a covered motor cart driven with use of a generator set in rural area) with Jaiveer Singh, resident of Informant's Village Garhi Sonai, P.S. Eka, District- Firozabad. At this juncture, we find it worthy to mention description of a 'Jugaad'.
4. 'Jugaad' is a means of transportation in north India, made of wooden planks and old jeep parts. It is powered by diesel engines originally intended to power agricultural irrigation pumps. Its known maximum speed is about 40 km/h. These vehicles do not have any vehicle registration plate and not registered under Motor Vehicle Act, 1988 (hereinafter referred to a "Act, 1988") by Regional Transport Officer. 'Jugaad' are not officially recognized as road-worthy, but still quite popular amongst rural Indians in north India.
5. Jaiveer Singh, joint owner of 'Jugaad' had gone to Padham Bazar on 15.01.2005 for earning freight. There he met with two persons who settled and agreed to pay to Rs. 600/- as freight for carrying a Padiya (young She-Buffalo) in 'Jugaad' from Padham Bazar to Village Jhabar situated at a distance of 10 kilometers from Kasganj. After taking She-Buffalo in 'Jugaad', Jaiveer Singh came to PW-1, Informant's Village Sonai and narrated aforesaid facts to PW-1, Informant, Jabar Singh, who also accompanied Jaiveer and boarded the 'Jugaad'. It was about 5.15 PM when they started from Village Sonai. When they reached Bhagwantpur bridge, two accused sitting in 'Jugaad' told Jaiveer for stopping the vehicle, saying that the path was left back. They alighted from the vehicle and opened 5-6 fires from their respective countrymade pistols at Informant and Jaiveer with intention to kill them. As a result of firmarm shots, Informant and Jaiveer, both sustained injuries. Informant, PW-1, ran towards field and saved his life. Both accused appellants pushed Jaiveer towards canal and after snatching 'Jugaad', alongwith She-Buffalo, went away on the route along the canal. During night, Informant got himself hidden in the field of Bajra and at dawn, next day, went to P.S. Kasganj from Village Kisrauli. There he came to know that injured Jaiveer was sent by Dholna Police to District Hospital Etah for treatment. Thereafter, Informant got report ascribed by his brother Shivraj and submitted in police station.
6. On submission of First Information Report, Ex. Ka-1 (hereinafter referred to as "FIR"), by Informant PW-1, Jabar Singh, a criminal case was registered at P.S. Dolna on 16.01.2005 at 10.15 AM, against two unknown accused persons as Case Crime No. 7 of 2005 under Section 394 IPC. Distance of Police Station from place of occurrence is 12 kilometers. Copy of chik report, Ex. Ka-7, and copy of GD, Ex. Ka-8, are on record.
7. During the course of treatment, Jaiveer died on 17.01.2005 in Ravi Hospital, Agra. Before death of Jaiveer Singh, Investigation Officer also recorded his statement. Inquest of dead body, Ex. Ka-14, was prepared by Sub-Inspector, Police Station, Hari Parwat, District Agra. Simultaneously, other necessary documents including challan lash, photo lash Ex. -Ka16-Ka18 were prepared and dead body was sent to Mortuary, District Hospital, Agra for postmortem. Autopsy report is Ex. Ka-6. Before the death of Jaiveer Singh, his treatment was conducted at CHC, Kasganj. Injury report of Medical Officer, CHS, Kasganj is Ex. Ka-4. PW-1, Informant, Jabar Singh, had also undergone treatment at CHC, Kasganj and concerned report is Ex. Ka-5 on record.
8. PW-8, S.I., Narendra Pal Singh, Investigating Officer (hereinafter referred to as "I.O.") had also visited place of occurrence and prepared site plan, Ex. Ka-9. He recovered three empty cartridge 315 bore, from place of occurrence and prepared recovery memo Ex. Ka-10. She-Buffalo was recovered from the house of Son Pal, a relative of accused, and in respect thereof recovery memo, Ex. Ka-11 was prepared. Accused appellant Pappu @ Ghanshyam was arrested on 20.02.2005 along with a 315 bore countrymade pistol and two live cartridges, 315 bore and recovery memo Ex. Ka-12 was prepared. Consequently, a case under Section 25 Arms Act was registered at Police Station Dolna at Case Crime No. 23 of 2005.
9. After death of Jaiveer, Case was converted into Section 394/302/34 IPC against the accused-appellants.
10. During course of investigation, Karua @ Fauzi @ Netrapal was also arrested. Identification parade of both accused appellants was got conducted. After recovery of countrymade pistol and cartridges from the possession of accused Pappu @ Ghanshyam, at the time of his arrest, the same were sent to Forensic Laboratory for investigation. Report of Forensic Laboratory is Ex. Ka-23. After getting approval from District Magistrate for launching prosecution against accused Pappu @ Ghanshyam, charge-sheet, Ex. Ka-15, was filed in Court. Separate charge-sheet against both the accused was also submitted in Case Crime No. 7 of 2005 under Section 394/302 IPC in the Court of Special Judge DAA and cognizance was taken by him.
11. Trial Court framed charges against accused appellants under Section 394 and 302 IPC read with section 34 IPC vide order dated 30.1.2006. The charges read as under:
"I, S.K.S. Yadav, Special Judge (DAA) Etah do hereby charge you, (1) Pappu alias Ghanshyam and (2) Karua alias Fauji alias Netrapal, as follows:
That on 15.1.2005 at about 8.00 P.M. ahead bridge of Hazara Canal within the area of village Bhagwanpur, hamlet of Panchgai, police station Dholna, district Etah, you voluntarily caused hurt to Jawar Singh and Jaiveer when committing robbery and thereby committed an offence punishable under Section 394 of the Indian Penal Code and within the cognizance of this Court;
Secondly, that on the said date, time and place you, in furtherance of your common intention, committed murder of Jaiveer by intentionally and knowingly causing his death and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within the cognizance of this court;
And I hereby direct that you be tried on the said charge before this Special Court."
12. Accused Pappu was also charged under Section 25 of Arms Act. Both the accused denied charges, pleaded not guilty and claimed to be tried.
13. Prosecution in support of its case examined PW-1 Jabar Singh, PW-2 Shivraj and PW-3 Mahavir as witnesses of fact. Formal witnesses examined by prosecution are PW-4 Dr. M.P. Singh PW-5 Dr. G.L. Yadav, PW-6 Dr. S.P. Jain, PW-7 HCP Ranvir Singh, PW-8 S.I. Narendra Pal Singh, PW-9 Ram Prakash Sharma retired Executive Magistrate and PW-10 S.I. M.P. Singh Gupta.
14. PW-1 Jabar Singh is Informant and injured eye-witness, PW-2 Shivraj Singh is the witness of recovery and preparation of recovery memo Ex. Ka-2 with respect to blood stained clothes of Jaiveer and Jabar Singh by I.O. PW-3 is the witness of the fact that Jaiveer Singh was his younger brother and engaged in plying 'Jugaad' in partnership of PW-1, Jabar Singh. On the date of occurrence, accused appellants had gone to his (PW-3's) village and taken food with deceased Jaiveer. He also stated, while Jaiveer was admitted in Hospital, Investigating Officer recorded statement of Jaiveer before him.
15. PW-4 Dr. M.P. Singh had examined injuries of Jaiveer on 15.01.2005 at 10.30 PM and prepared injury report Ex. Ka-4. On examination, he found following injuries on the person of Jaiveer;
(1) Gunshot wound of entry 1 cm x 1 cm, cavity deep on front upper part of left upper arm, 7 cm below left shoulder joint. No blackening, no tatooing, no scorching present around wound.
(2) Lacerated wound 2 cm x 2 cm on top of right index injury up to bone, red in colour.
(3) Gunshot wound of entry 1.5 cm x 1 cm x cavity deep on lower medial right upper arm, 5 Cm from right elbow, red color. No blackening, no tattooing no scorching present.
(4) Gunshot wound of exit 3 cm x 2 cm x cavity deep on right upper arm anterior lateral 8 cm from injury No.3.
(5) Gunshot wound of entry 1 cm x 1 cm x cavity deep on lateral anterior right lower chest. Gunshot going to medial side. Red colour. No blackening, no tattooing, no scorching found present.
(6) Gunshot wound of entry .7 cm x .7 cm x cavity deep, 22 cm from lateral iliac crest, red colour.
(7) Contused swelling 10 cm x 10 cm on left side abdomen, just lateral to umbilicus.
16. All the injuries were kept under observation and X-ray advised. In the opinion of doctor, injuries-1 to 6 could have been caused by firearm.
17. Injuries of PW-1 informant Jabar Singh were examined on 16.01.2005 at 10.15 PM by PW-5 Dr. C.L. Yadav at 12.15 PW at C.H.C. Kasganj. Doctor noted following three injuries on his person:
1- Gunshot wound of entry 1.5 cm x cavity deep on back and upper part of right forearm, 6 cm below right elbow. Blackening, tattooing and scorching present.
2- Gunshot wound of entry .7 cm x .7 cm on back and medial right elbow. Blackening present.
3- Superficial burn 5 cm x 7.5 cm on right side abdomen.
Injuries-1 and 2 were kept under observation and X-ray was advised.
18. Autopsy on the dead body of deceased Jaiveer Singh was conducted on 18.01.2005 at 3.30 PM by PW-6 Dr. S.C. Jain. In the opinion of doctor, deceased was of average built. Rigor mortis passed from upper part of the body and present in the lower part. He found following ante-mortem injuries on the person of deceased:
1- Wound of entry 1 cm in diameter, situated 5 cm above the right sub-costal margin, anterior to 5 cm above anterior to auxiliary line margins of wound everted. Injury communicating to abdominal cavity.
2- Wound of entry of size 1 cm in diameter situated 4 cm away (on right side back) from mid of vertebral columns and 8 cm above the iliac crest. Margins inverted and wound communicating to abdominal cavity.
3- Wound of entry of size 1 cm X 1.5 cm, circular to oval in shape, margins inverted, 7 cm above and posterior to tip of right elbow.
4- Wound of exit of size 1.5 cm X 2 cm, oval in shape, margins everted 7 cm above and anterior to tip of right elbow.
5- Wound of entry of size 1 cm diameter on left armpit, 5 cm anterior axillary fold, margins were inverted.
6- Wound of exit of size 1 cm X 1.5 cm, oval in shape, 7 cm from armpit posterior axillary fold. Injuries 5 and 6 communicating each other.
7- Stitched line of surgical operation of size 18 cm on the mid of abdomen with two drain on both sides.
19. On internal examination Doctor found memberance of brain turned yellow. Both lungs in thoraxic region also turned yellow. Both chambers of heart were empty. Walls of stomach and peritonium were perforated. About 100 ml. of liquid, water like substance, was found in stomach. Small intestine was stitched at various places. Large intestine was found filled with faecal matter. In the opinion of doctor, death had occurred due to shock and hemorrhage. PW-6 Doctor S.C. Jain has proved post mortem report Ex. Ka-6.
20. Other formal witnesses, namely, PW-7 HCP Ranvir Singh proved chik report Ex. Ka-4, prepared at the time of registration of FIR. PW-8 S.I. Narendra Pal Singh was I.O. who also submitted charge-sheet in Court and proved relevant documents. PW-9 is Sri Ram Prakash Sharma, Retd. Executive Magistrate, who conducted identification parade of accused appellant Pappu in jail. PW-10 is S.I. S.P. Gupta, who was then posted at P.S. Hari Parwat and had gone to Ravi Hospital, Agra on receiving information of death of Jaiveer Singh and has sent the dead body for post-mortem. He has proved relevant documents.
21. After conclusion of prosecution evidence, Trial Court recorded statements of accused persons under Section 313 Cr.P.C. who claimed prosecution story to be false and stated that they have been implicated on account of enmity. Pappu alias Ghanshyam has specifically stated that he has been implicated at the instance of Pradhan of village Manpur.
22. After hearing both the parties and appraisal of evidence available on record, learned Additional Sessions Judge had convicted and sentenced accused appellants as above, by the impugned judgment and order dated 24.07.2012.
23. Trial Court has founded its conclusion on the ground that appellant Pappu alias Ghanshyam was identified by PW-1 in the Court; statement of Jaiveer Singh recorded by Police under Section 161 Cr.P.C. is admissible under Section 32 of Evidence Act, 1872 (hereinafter referred to as "Act, 1872") which is duly corroborated by injuries found on the person of Informant; PW-1 and deceased Jaiveer Singh. These injuries have been verified by Dr. C.L. Yadav, PW-5 and Dr. M.P. Singh, PW-4.
24. Both these Jail Appeals have been preferred by two appellants against the above judgment dated 24.07.2012 passed by Court below.
25. We have heard Sri Avanish Mani Tripathi, Advocate appearing for accused appellant, Pappu alias Ghanshyam, in Jail Appeal No. 4069 of 2012 and Ms. Seema Pandey, Advocate Amicus Curiae for appellant Karua @ Fauji @ Netrapal in Jail Appeal No. 1365 of 2013. Sri Rishi Chaddha, learned A.G.A. has appeared and argued in both the appeals on behalf of State.
26. Learned counsels for appellants contended that prosecution story from its inception is improbable, self contradictory and entire prosecution version is full of serious omissions, contradictions and gaps; incident is said to have taken place on 15.01.2005 but FIR was lodged after almost 14 hours on 16.01.2005 at about 10.15 A.M.; FIR was against unknown persons; even details of alleged persons so as to help their identification are not mentioned in FIR; no identification, in fact, was done in accordance with the procedure prescribed in the Statute; death of deceased is said to have taken place at Ravi Hospital, Agra but no report of such Hospital is part of evidence; Inquest report does not contain any case crime number; young calf buffalo was allegedly recovered but no identification was made; Appellant Karua was arrested in some other matter but falsely implicated in the case in hand; she buffalo is said to have been recovered from the possession of Son Pal but he was not examined; Informant's version is self contradictory and wholly unreliable; while deceased, after sustaining injuries, could reach Hospital in the night itself; Informant claimed to have remain hidden in the field and in morning came to Police Station though, admittedly, assailants had already gone in the night itself, and, this is wholly unbelievable; alleged dying declaration was not recorded as per guidelines; Doctor has not given any certificate; there is every reason to show that FIR is ante time which is corroborated by the fact that it was sent to Magistrate with a delay of two days; arrest of accused after more than a month from the place where the incident occurred itself is wholly unrealistic and shows that appellants have been falsely implicated in the case in hand; Charge was not properly framed and prosecution story shows reasonable improbability. Therefore, it is urged that charges have not been proved against appellants beyond reasonable doubt.
27. Learned A.G.A., on the contrary, submitted that prosecution has proved the case on the basis of ocular version of Informant; recovery of young she buffalo from close relative of one of the accused; dying declaration and other evidence, which corroborate prosecution story and, therefore, appellants have been rightly convicted and punished.
28. From record, we find that prosecution version commenced its story from Padham Bazar and date of incident is 15.01.2005. Jaiveer Singh had brought 'Jugaad' to Padham Bazar on 15.01.2005 for earning freight. It was a Saturday. PW-1 has stated that every Saturday there used to be a Cattle Market at Padham Bazar. At what time Jaiveer Singh reached Padham Bazar is not stated anywhere but since ultimate journey commenced at 5 or 5.15 PM from Village Sonai, it means that he came to Padham Bazar in day time (forenoon or afternoon). 'Jugaad' was hired to transport a young she buffalo from Padham Bazar to village Jhabar which is about 10 Kilometers from Kasganj. Freight agreed between Jaiveer Singh and Hirer was Rs. 600/-. 'Jugaad' was in joint ownership of deceased Jaiveer Singh and PW-1, Jabar Singh. The two accused appellants were Hirers. Jaiveer Singh loaded young she buffalo in 'Jugaad' and then from Padham Bazar reached Village Sonai whereof PW-1 as well as Jaiveer Singh, both, were residents. At village Sonai, Informant, Jaiveer and two Hirers had dinner. Then PW-1 joined Jaiveer Singh and they both along with two Hirers, i.e. accused appellants and young she buffalo, proceeded to destination, i.e. Village Jhabar (Kasganj) at around 5.15 PM. In the cross examination, PW-1 has explained his route from Village Sonai to Etah (distance from Padham Bazar to Etah is said to be 27 kilometers), then to Kasganj. From Etah to Kasganj, it is said that about 1.15 hours time was taken by 'Jugaad'. It is admitted by PW-1 that in the way, they halted at Kasganj for two minutes for adding water in Generator Set in 'Jugaad'. From Kasganj they proceeded to village Jhabar through Nadrai. From Nadrai they took route of Ganga and proceeded on Canal side road. He also said that from Nadrai to Bridge near Jhabar, it took about 1.45 hours. It is a Pucca road on the side of Canal which flows from west to east. While they reached near Bhagwantpur Bridge at 8.00 PM, both appellants asked him to stop 'Jugaad' and thereafter they got down and opened fire from countrymade pistols causing injuries to both, i.e. Jaiveer Singh and PW-1, Jabar Singh. 'Jugaad' was being driven by PW-1. Jaiveer Singh was sitting on Conductor seat which is left to Driver. Two appellants with cattle were on back side of 'Jugaad'. PW-1 ran towards field (Bajra field) to hide and save his life. Appellants pushed Jaiveer Singh towards Canal. He fell down from 'Jugaad'. Thereafter appellants ran away alongwith 'Jugaad' and she buffalo. PW-1 remained hidden in Bajra Field entire night. Jaiveer Singh, on the contrary, who had also sustained gunshot injuries, somehow managed to reach Village Bhagwantpur and therefrom taken to Hospital i.e. Community Health Center, Kasganj (hereinafter referred to as 'CHC') for medical treatment.
29. It has come on record that Jaiveer Singh reached CHC in the night of 15.01.2005 itself and was examined by Dr. M.P. Singh, Medical Officer at 10.30. P.M. He was accompanied with Ram Nath Singh, Police Constable of P.S. Dholna, District Etah. Jaiveer Singh, thereafter, was referred for treatment to Agra where he died in Ravi Hospital on 17.01.2005. Informant, PW-1, Jabar Singh, remained hidden in Bajra Field till dawn and in morning he reached Village Kisrauli and therefrom reached kasganj where he was informed that Jaiveer Singh was brought to Government Hospital by Dholna Police and he is alive. Thereafter, PW-1, Informant, came to Dholna Police Station and lodged FIR at 10.15 on 16.01.2005. From Police Station Dholna, place of incident, i.e., Hazara Canal bridge near Village Bhagwantpur is about 12 kilometers on north. Informant was brought to CHC, Kasganj for his medical examination, which was conducted by Dr. C.L. Yadav on 16.01.2005 at 12.15 PM (afternoon), who found firearm injuries on the person of informant.
30. On 16.01.2005 after registration of FIR, S.I., Narendra Pal Singh, PW-8, started investigation at 11.00 AM. He was posted as Station Officer, Dholna Police Station. He inspected place of occurrence and recovered three empty cartridges of 315 bore in the presence of Chandra Bhan and Chob Singh, both are residents of Gangavas, PS Dholna. He also went to Ravi Hospital, Agra and stated to have recorded statements of Jaiveer Singh. In the aforesaid statement recorded by I.O., Jaiveer Singh said:
^^;s nksuksa cnek'k tqxkM+ Nhudj ugj ds iVjh&2 vkxs pys x;s FksA eSa ugj ds fdukjs ij FkkaA eSa lkjk Hkhx x;k FkkA eSaus fgEer djds ugj ls fudykA lM+d ij pydj iqy ds ikl xzke Hkxoariqj igqapk rks xkao okyksa us eq>s vkx esa rkik vkSj rqjUr iqfyl cqyk yhA vki Hkh ekSds ij vk;s FksA vkius njksxk th iqfyl ds lkFk eq>s dklxat vLirky fHktok;kA^^ "Both these miscreants, hijacking the Jugad, had moved away along the canal. I was at the canal-side. I was completely drenched. Mustering all my courage, I had come out of the canal. Walking along the road, I reached village Bhagwantpur near the bridge where villagers helped me warm around a fire. They immediately called the police. You also reached the spot. You arranged to send me to Kasganj Hospital along with Police."
(English Translation by Court)
31. Jaiveer Singh succumbed to injuries and died on 17.01.2005. Post-mortem was conducted on 18.01.2005 at 3.30 PM. On 20.01.2005 at 5.50 PM, on the information given by PW-1, Jabar Singh, Report No. 27 under Section 302 was registered and blood sustained clothes of PW-1 and deceased Jaiveer Singh were taken in possession by Police vide Ex. Ka-1. On 23.01.2005 I.O. recovered young she calf from possession of Son Pal, resident of Kasimpur, P.S. Dadon, District Aligarh vide Ex. Ka-3. The aforesaid young she calf was identified by PW-1, Jabar Singh and Mahavir Singh, son of Hakim Singh, who were also accompanying Police Team. How Mahavir Singh was connected to identify she calf is not clear. Son Pal is father of Omveer Singh, to whom Anar Devi, sister of the two appellants was married. Statement of Anar Devi and Natthu was recorded and therefrom it discerned that young she calf was brought by two appellants and after leaving cattle, they went along with 'Jugaad'. On 10.02.2005 Station In-charge, Dadon, Manveer Singh arrested Karua and one Mauzi, wanted in Case Crime No. 124 of 2004 under Section 302 I.P.C. They were arrested with a 12 bore countrymade pistol and two cartridges. I.O. when received information from P.S. Dadon went to said Police Station and recorded statement of Karua under Section 161 Cr.P.C. Thereafter on 20.02.2005 along with force he went near Hazara Canal at 1.45 PM and found thereat Pappu alias Ghanshyam along with a countrymade pistol of 315 bore and two live cartridges 315 bore and he was arrested. At that time Informant, Jabar Singh, and one Hakim Singh were also with him.
32. The above chain of events, as is evident from record, creates more questions than completing chain of events. Incident is that of 15.01.2005. It was a period of peak winter season. In rural areas, more so near Canal, there is every possibility of foggy night. According to Informant when they reached near Bhagwantpur on the side of Hazara Canal at 8.00 P.M., two accused appellants got 'Jugaad' stopped, stepped down from 'Jugaad' and then opened fire. It has not come anywhere that there was any arrangement of light on the canal side. It is also not in evidence whether there was any fog or not or it was a clear night. Informant, admittedly was sitting on Driver seat of Jugaad and deceased Jaiveer Singh was sitting besides him which Informant claimed as Conductor seat. His statement in this regard is as under:
^^t;ohj dUMDVj lkbM esa cSBs FksA ---- eqyftekuksa us tc xksyh pykbZ rc ge nksuksa vkeus lkeus FksA^^ "Jaiveer was sitting at conductor side... When accused persons fired bullet, both of us were opposite to each other."
(English Translation by Court)
33. It is also said that accused-appellants opened fire from front side. Whether they fired by coming in front of 'Jugaad' on both the sides of 'Jugaad' or the accused appellants were in front of 'Jugaad' on one side, what was the arrangement of light, nothing has come on record to explain these aspects. In Ex. Ka-4 prepared by Dr. M.P. Singh, PW-4, who examined Jaiveer Singh on 15.01.2005 when he was alive, there is mention of five gunshot wound, i.e. four entry wounds and one exit wound. Injury-1 is entry gunshot wound on front upper part of left upper arm. Injuries-3 and 4 are entry and exit gunshot wounds on lower medial right upper arm and right upper arm anterior lateral. Injury no. 5 is a gunshot would on lateral anterior right lower chest. Injury no. 6 is an entry gunshot wound from lateral iliac crest.
34. Iliac crest, also known as crest of ilium, is the superior border of the wing of ilium and superolateral margin of greater pelvis. Iliac crest is most important part of largest bone of hip. Gunshot injuries, therefore, are on both the arms, i.e., left upper arm and right upper arm; right lower chest and on lateral iliac crest, which is part of bone of hip and virtually on lower side.
35. Then, we find details of gunshot wounds received by Informant, PW-1. Medical report prepared by Dr. C.L.Yadav on 15.01.2005 shows that PW-1 received two gunshot entry wounds, one on the back and upper part of right forearm and second on the back of medial right elbow. In respect to Injury no. 1, blackening, tattooing and scorching was found present and in respect to Injury no. 2 blackening was present. Meaning thereby, Informant was fired by assailants in a very close range of within 60 centimeters i.e. two feet. Thus assailants must be on the right side of Informant, who was sitting on Driver seat else blackening etc. could not have been possible. If the assailants were on the right of Informant, who was sitting on Driver seat of 'Jugaad', how he could jump from 'Jugaad' on that side itself and could hide himself in Bajra field when on the right, where Driver could have jumped from 'Jugaad', assailants were present. On the other side Jaiveer Singh deceased was sitting on the left of PW-1 and in order to get down from 'Jugaad' from left side Informant had to pass Jaiveer Singh. Moreover, if assailants were near Informant and both opened fire, normally he would have sustained more injuries than deceased.
36. Then comes more important discrepancies. The incident, as per Informant, took place around 8.00 PM in a peak winter night i.e. 15.01.2005. It was the side road of a Canal near village Bhagwantpur. While Informant, to save life, remained hiden in Bajra field for entire night, but deceased Jaiveer Singh somehow could manage to cross canal and reached Village Bhagwantput. Villagers attended him as he has stated in his statement recorded by I.O. Then they called Police. Even I.O. reached Village Bhagwantpur. He himself sent Jaiveer Singh for medical treatment to CHC, Kasganj. That is how I.O. has also tried to explain presence of Police Constable at the time when Jaiveer Singh reached CHC, Kasganj at 10.30. P.M. However, application for his medical treatment at CHC, Kasganj was written by one Ravi Prakash, son of Ram Kishor of Village Bhagwantpur, which is also on record. When Jaiveer Singh was already accompanied by a Constable, we enquired from learned A.G.A. as to what was the occasion for giving application by a private individual requesting Medical Officer at CHC, Kasganj to provide treatment to Jaiveer Singh, to which he could not reply at all.
37. Moreover, if I.O. had already reached Village Bhagwantpur, why immediately he did not visit site which was quite nearer and made investigation at that very time and what prevented Police from registering a report at that time; why Police waited for arrival of Informant Jabar Singh till next day and only thereafter recorded FIR at 10.15 AM. All these aspects raise a serious doubt on the truth of prosecution version. Wen Police had already reached Village Bhagwantpur between 8.00 PM to 10.00 PM, why immediate investigation did not proceed and Police did not register the case, when it had come to the knowledge of Police that one person, Jaiveer Singh, has received gunshot injuries. Police could sent him for medical treatment to Government Hospital, i.e., CHC, Kasganj but made no effort to search for Informant.
38. I.O., who has been examined as PW-8, himself has admitted that Jaiveer Singh was admitted in CHC, Kasganj sent by Dholna Police and relevant statement reads as under:
^^;g dguk lgh gS fd et:c t;ohj flag ¼e`rd½ vLirky dklxat ls "It is correct to say that injured Jaiveer Singh (deceased) was directly admitted from Kasganj to the hospital by Dholna Police." (English Translati`on by Court)
39. I.O. has also admitted that S.I. Kabul Singh has informed family members of Jaiveer Singh and thereupon they came to CHC, Kasganj. The relevant statement of PW-8, I.O., reads as under:
^^eSa et:c ds lkFk vLirky ugh x;k FkkA ,l vkbZ dcwy flag x;s FksA ;g dguk lgh gS fd Fkkuk ok;jySl lsV ls lwpuk nsdj rFkk ,l vkbZ dcwy flag }kjk VsyhQksu ls et:c ds ?kj lwpuk nsdj et:c ds ?kj okyksa dks vLirky cqyk fy;k FkkA ;g dguk lgh gS fd rc rd Fkkus esa bl lEcU/k essa ,Q vkbZ vkj ugh gqbZ FkhA^^ "I had not gone to Hospital along with the injured. S.I. Kabool Singh had gone with him. It is correct to say that information was given through wireless set to the police station; and family members of the injured, by way of information given by S.I. Kabool Singh over telephone, were called to the Hospital. It is correct to say that no FIR in this respect had been lodged at the police station by that time."
(English Translation by Court)
40. PW-8 has also admitted that incident was in his knowledge on 15.01.2005 itself and it was also communicated to higher authorities. That being so, why Police did not register case and waited till arrival of Informant, PW-1 on next date and registered case on the next date at 10.15 AM is not understandable.
41. Further, we find that PW-1 claimed to have hidden himself for the entire night in Bajra field though it was a chilling peak winter night of mid of January' 2005. In the morning he did not reach Village Bhagwantpur but according to his statement, he reached Village Kisrauli and therefrom Kasganj. What is the distance of Village Kisrauli and its location has not come on record. What was the conveyance available for this journey is also unexplained.
42. Then comes the factum of alleged recovery of young she calf. It was not a stolen article. It belongs to two appellants. 'Jugaad', owned by Informant and deceased, was hired by appellants for transporting the said cattle from Padham Bazar to Village Jhabar. Informant had seen cattle only when it was sought to be loaded in 'Jugaad'. The only identity mark on this cattle, stated by Informant, is, that it was aged about two years and neither red and black nor extra white. He has described the cattle as under:
^^og ifM+;k 2 o"kZ ds djhc dh FkhA og u yky dkyh u T;knk lQsn FkhA^^ "That Padiya (female calf of buffalo) was about two years old. It was neither red nor black, nor was it extra white."
(English Translation by Court)
43. The above description of cattle, in our view, cannot be treated to be an identification mark of a cattle since there may be a large number of such cattle of two years age and statement that it was neither black nor red is neither here nor there and very vague. On this basis, in our view, claim made by prosecution that she calf was identified by Informant can neither be believed nor accepted.
44. PW-1 claimed that he has seen young she calf in his village but how and in what manner he could have seen her in his village Sonai, when it was purchased by appellants at Padham Bazar, which is at a quite distance from Sonai is not clear. No evidence has come on record that any Villager belong to village Sonai owned that cattle and had gone to Padham Bazar for its sale and thereupon it was purchased by appellants. Neither owner of young she calf was examined by prosecution nor it has been identified either by owner or buyers of young she calf. Neither Son Pal, from whose possession alleged young she calf was recovered, was examined, nor any independent witness present at that time has been examined. There is no creditworthy identification of young she calf available on record. The question remained unanswered, whether aforesaid young she calf was same which was purchased by appellants or not. Moreover, identification is founded and reflected with sole statement of Informant Jabar Singh.
45. Admittedly, alleged 'Jugaad' has never been recovered. What attempt was made for its recovery is not stated.
46. The next improbability which we find in this case is the manner of arrest of accused appellant Pappu. He claimed to have been arrested near the same place where alleged incident took place, after one month and five days of incident. It is really not understandable why a person, who has committed a crime, would visit the same place, and, that too, after one month and more. Incidentally Police party accompanied by Informant was also present there at that very time to welcome him for arrest. More so, alleged criminal also carried with him same firearm which was allegedly used in the incident so as to make the entire investigation by Police, easier, by providing ready in hand firearm used in alleged crime and to complete investigation.
47. Interestingly we find that site plan placed on record which is said to have been prepared when accused-appellant Pappu arrested, was prepared by one O.P. Yadav, S.I. on 23.02.2005 though it is alleged that appellant Pappu Yadav was arrested on 20.02.2005. How it could happen that a site plan is prepared after three days of arrest of Appellant Pappu Yadav. When questioned, learned A.G.A. could not explain at all. Appellant Pappu is not resident of Village Bhagwantpur or near Hazara Canal where he is claimed to have been arrested. He is resident of Nagla Dhak, P.S. Dadon, District Aligarh. Why he should come at the place of incident again is not clear. In fact the story of his arrest on 20.02.2005 is seriously doubtful.
48. Similarly site plan prepared by Police on 16.02.2005 when Investigation was made after registering FIR also nowhere shows any 'Bajra field' wherein Informant claimed to have hidden himself for entire night. On the one side of road, there is Hazara Canal and on the other side, open land shown as ^^[kkyh txg ugj^^ (vacant land near canal).
49. Trial Court besides injuries, has heavily relied on the statement of Jaiveer Singh recorded by Police under Section 161 as admissible evidence under Section 32 of Act, 1872 treating it a "dying declaration". In the aforesaid statement, Jaiveer Singh has not given any name. It cannot be doubted that a statement made by a injured person to Police under Section 161 Cr.P.C., if ultimately injured died, can be treated as 'dying declaration' and admissible under Section 32 of Act, 1872. However, it is not a conclusive evidence. Section 32 Act, 1872 provides that it is admissible in evidence. Admissibility is founded on principle of necessity. It is not to be treated as sufficient evidence by itself to convict a person unless Court finds that it is safely and completely reliable and a conviction can be based on it. In fact, there is no bar in convicting a person on the basis of a 'dying declaration', if it is found fully reliable. It is competence of Court to give a verdict of conviction founded on a reliable 'dying declaration' even if it is not corroborated by any other evidence, but general principle is that a 'dying declaration' under Section 32 of Act, 1872, though admissible in evidence, but should be considered very cautiously. Since it is a piece of evidence like other evidence, if corroborated by other evidence and 'dying declaration' itself is found to be reliable, normally, only then it should be relied.
50. In Paniben v. State of Gujarat (1992) 2 SCC 474, Court culled out certain principles governing 'dying declaration' founded on various authorities and the same are:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) Court has to scrutinise dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.
51. In Bhajju @ Karan Singh Vs. State of M.P (2012) 4 SCC 327, Court has said that 'dying declaration', as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of surrounding circumstances and its weight determined by reference to the principle governing weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by other evidence, adduced in the case or the circumstances coming to its notice, Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of Court, same may be refused to be accepted as forming basis of conviction. In other words, Court has to examine whether dying declaration has been able to bring a confidence in it, is it trust-worthy or is merely an attempt to cover up latches of investigation. It must allure the satisfaction of Court that reliance ought to be placed thereon rather than distrust.
52. In the present case, looking to the manner in which Police has commenced its investigation and the manner in which things have proceeded, we have no hesitation in observing that the factum of recording statement of deceased by I.O. under Section 161 Cr.P.C. is not very creditworthy. Various facts stated in alleged statement of deceased being otherwise contradictory to other evidence, it is not safe to base conviction on it. Rather we are of the view that claim of I.O. that he recorded the statement is doubtful, since there is no evidence that deceased was treated at Ravi Hospital, no medical opinion about condition of deceased that he was in a condition of giving a statement.
53. It has been held that a statement made under Section 161 Cr.P.C. after death of person even if may be treated as dying declaration, but it is not very safe to rely on such a statement without any corroboration though it is not essential.
54. Even otherwise, in the case in hand we do not find it safe to treat the aforesaid dying declaration, conclusive evidence for the reason that firstly there is nothing to show that Jaiveer Singh was in a condition to make such statement when I.O. visited Ravi Hospital in evening of 16.01.2005. Condition of Jaiveer Singh was already serious inasmuch after essential medical check up at CHC Kasganj, he was taken to District Hospital, Etah and thereafter to Ravi Hospital, Agra. He died on 17.01.2018. Neither there is any reference of statement of any Doctor of Ravi Hospital which may prove that Jaiveer Singh was conscious and capable of giving any statement to I.O. nor any such witness has been examined in the Court. Even this fact is doubted that deceased had undergone any treatment at Ravi Hospital and died thereat since no evidence in this regard has been placed on record. As we have already said, the said statement did not mention any name. Statement shows that in Village Bhagwantpur before taking to CHC Kasganj for treatment in the night of 15.01.2005 Police was present but why it did not take any step for search and protection of Informant and whether this fact was stated by deceased to Police at that point of time, nothing has been said. Therefore, here is a case where alleged statement of Jaiveer Singh had to be seen with due caution and care and, in our view, since other facts and evidence are seriously contradictory having wide gaps and unexplained circumstances etc., conviction of appellants on the basis of aforesaid statement of Jaiveer Singh is not correct.
55. Looking into entirety of facts and circumstances of the case, as discussed above, we are of the view that Court below was not correct in convicting appellants, broadly relying on statement of Jaiveer Singh treating it to be a conclusive piece of evidence as dying declaration under Section 32 of Act, 1872 and mere fact that injuries were also suffered by Informant and deceased Jaiveer Singh overlooking other major contradictions in the evidence and prosecution version. In our view, appellants are entitled for benefit of doubt and it cannot be said that prosecution has been successful in proving guilt of appellants beyond reasonable doubt.
56. In the result, both appeals are hereby allowed. Impugned judgment and order dated 24.07.2012 in Sessions Trial No. 36 of 2005 convicting appellants under Sections 394, 302 read with 34 I.P.C. and sentencing them to undergo 10 years Rigorous Imprisonment with a fine of Rs. 10,000/- for the offence under Section 394 IPC and life imprisonment with a fine of Rs. 10,000/- each for the offence under Section 302 read with Section 34 IPC, is hereby set aside. Appellants are acquitted of the charges levelled against them. They are in jail and shall be set at liberty if not wanted in any other case.
57. Keeping in view provisions of Section 437-A Cr.P.C., appellants are directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before Hon'ble Supreme Court.
58. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
59. Before parting, we provide that Ms. Seema Pandey, Advocate, who has appeared as Amicus Curiae for appellant in Jail Appeal No. 1365 of 2013 shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Ms. Seema Pandey, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Dt. 24.08.2018 PS