JUDGMENT M. Chaudhary, J.
1. This is an appeal from judgment and order dated 21st of January 1981 passed by V Additional Sessions Judge, Etah in Sessions Trial No. 397 of 1979 State v. Udaivir Singh and others convicting the accused under Section 148, IPC and Section 302 read with Section 149, IPC and sentencing each of them to three years' rigorous imprisonment and imprisonment for life respectively thereunder.
2. Brief facts giving rise to this appeal are that in the forenoon of 5th of June 1974. Lekhraj, father of Ajay Pal was grazing his cattle in the lake near the field of one Murari Lal as there was vegetative growth in the lake and no water. At that time Ajay Pal was scraping grass in the field of Lallu abutting the field of Murari Lal and Ram Chandra. Neksu, Chandra Pal and Sukh Ram were also cutting grass in the vicinity. At about 10.00 a.m. that very forenoon Udaivir Singh Puttu and Hamir Singh armed with guns along with Dharam Pal and Udal with countrymade pistols and Bhikam and one another with lathis reached there and vituperated Lekhraj telling that he used to do 'pairvi' in the cases and now they would see him. Then Lekhraj screamed and hearing his squawk Ajay Pal, Chandra Pal, Sukh Ram, Ram Chandra and Neksu rushed to the field of Murari Lal and then the assailants threatened them that if they tried to come forward they would be shot dead. Immediately Hamir Singh, Udal, Puttu and Udaivir fired at Lekhraj and sustaining the fatal injuries Lekhraj died on the spot instantaneously. Then all the assailants fled away and suceeded in making their escape good.
3. Immediately Ajay Pal, son of the deceased got a report of the occurrence scribed mentioning therein that some nine months ago Saheb Singh, brother of Hamir Singh was murdered and a case was registered against his brother Hari Singh and uncle Kehari and that a criminal case against his uncle Anokhey was also launched at the instance of Hamir Singh and in both the cases his father Lekhraj used to do 'pairvi' of his son Hari Singh and brothers Kehari and Anokhey and that on that very account Hamir Singh and his associates became inimical to Lekhraj. Thereafter Ajay Pal went to the police at the police station Soron situate at a distance of about five miles from the place of occurrence and handed over written report to the police there at about 3.00 p.m. that very day (Ext. Ka 2). The police registered a crime against the accused and made entry regarding registration of the crime in the general diary (Exts. ka 3 & ka 4).
4. Station Officer K. N. Shukla who had gone to village Patna in connection with the investigation of crime No. 122 learnt about the said incident in that very village and sent constable Het Ram for security of the dead body. On receiving the papers regarding the said murder from the police station Station Officer K. N. Shukla proceeded to the place of occurrence and found the dead body of Lekhraj kept on a cot near the persian wheel of Hira Lal in the barn. Then he drew inquest proceedings on the dead body of Lekhraj and prepared the inquest report (Ext. Ka 5) and other necessary papers (Exts Ka 6 & Ka 7) and handed over the dead body in a sealed cover with necessary papers to the police officials for being taken for its postmortem. Then he inspected the place of occurrence and prepared its site plan map (Ext. Ka 9). He also collected blood stained and simple earth from the place of occurrence and also picked up an empty cartridge lying there and prepared their memos (Exts. Ka 10 & Ka 11). He also recorded statements of the witnesses and did other necessary things.
5. Autopsy on the dead body of Lekhraj conducted by Dr. C. K. Sharma, Surgeon District Hospital Etah on 6th of June 1974 at about 4.00 p.m. revealed the below noted ante mortem injuries :
1. Gun shot wounds of entry 5 cm x 3 cm x chest cavity deep on upper part of chest in mid line with margins inverted. It is in between the two sternoclavicular joint directing towards right side and downwards. Margins blackened and blackening present in an area 12 cm x 10 cm around it.
2. Gunshot wounds nine in number each 1/2 cm x 1/3 cm x chest cavity in an area of 8 cm x 9 cm on right axilla chest wall lateral side 7 cm below right armpit. Margins everted. Contused blood in an area of 12 cm x 10 cm. (communicating to injury No. 1).
3. Gun shot wound of entry 5 cm x 3 cm x abdomen cavity deep right side lower part of chest on costal margin with blackened margin. Directing backwards and slightly downwards 7 cm below right nipple.
4. Effusion of blood in an area of 15 cm x 12 cm on right lumbar region with palpable shots six which were recovered (communicating to injury No. 3).
6. On an internal examination 4th to 10th ribs of right side were found fractured. Trachea lacerated and larynx ruptured. Right lung lacerated completely into tags. Abdominal walls and peritoneum were perforated under injury No. 3. Stomach was empty. Small intestine was ruptured at places and large intestines lacerated in an area of 10 cm x 4 cm. Liver and gall bladder also lacerated into tags. Right kidney was completely lacerated. Doctor opined that death was caused due to shock and haemorrhage on account of ante moterm injuries 1 & 3 about one and a half day ago.
7. After completing the investigation the police submitted charge-sheet against the accused.
8. Case of co-accused Hamir Singh was not committed to the Court of Session as he was reported having died.
9. After framing of charge against the accused the prosecution examined Ajay Pal, son of the deceased and the first informant (P.W. 2), Sukh Ram (P.W. 3) and Neksu (P.W. 4) as eye witnesses of the occurrence. Testimony of the remaining witnesses is more or less of formal nature. P.W. 1 C. K. Sharma, the then Surgeon District Hospital Etah who conducted autopsy on the dead body of Lekhraj proved the post mortem report (Ext. Kal) stating that ante-mortem injuries sustained by him were sufficient to cause his death in the ordinary course. P.W. 5 Netra Pal who scribed the written report at the dictation of Ajay Pal deposed that he and the village chaukidar had accompanied Ajay Pal, the first informant to the police station and Ajay Pal handed over the written report to the HM who returned the same to Ajay Pal telling that it was illegible and he should get the report scribed in legible hand and then Ajay Pal got the report scribed by him and thereafter Ajay Pal put his signatures on the report scribed by him and handed over the same to the police at the police station (Ext. Ka 2). P.W. 6 Inspector K. N. Shukla who investigated the crime has proved the police papers.
10. The accused pleaded not guilty denying the alleged occurrence altogether.
11. Co-accused Dharam Pal was reported having died during the trial.
12. On an appraisal of the evidence on record and after hearing the parties' counsel the learned Additional Sessions Judge found the accused guilty of the charges levelled against them and convicted them accordingly and sentenced as stated above.
13. Feeling aggrieved by the impugned judgment and order the accused preferred this appeal for redress.
14. Since accused appellants Udai Vir Singh and Puttu were reported having died appeal filed on their behalf stood abated vide order dated 11-8-2003.
15. Heard learned counsel for the appellants and the learned AGA for the State.
16. A perusal of the record goes to show that out of the three eye-witnesses examined by the prosecution P.W. 4 Neksu did not support the prosecution case at all and he was declared hostile. Thus relying upon the testimony of P.W. 2 Ajay Pal and P.W. 3 Sukh Ram the learned Sessions Judge recorded conviction of the accused. However we are unable to find ourselves in agreement with the findings recorded by the Court below. The learned counsel for the appellants also advanced the following arguments assailing the judgment of the trial Court.
17. The first argument advanced by the appellants' learned counsel is that FIR of the occurrence is much delayed and it was lodged at the police station with undue delay which is unexplained. According to the prosecution case, the alleged occurrence took place on 5th of June 1974 at about 10.00 a.m. and the FIR was lodged at police station Soron at about 3.00 p.m. whereas the police station is situate only at a distance of five miles from village Patna. P.W. 2 Ajay Pal, the first informant did not offer any explanation at all for not lodging FIR of the alleged occurrence soon thereafter and rather he stated that he got report of the occurrence scribed by his brother Netrapal in the village itself soon thereafter. He further stated that he accompanied with Netrapal and the village chaukidar went to the police station and reached within one and a half hour and handed over written report of the incident to the police there. In that case FIR of the occurrence should have been lodged at the police station by 12.00 noon or so. Thus the unexplained inordinate delay of some 3-4 hours in lodging FIR of the occurrence at the police station is fatal to the prosecution case as the FIR loses all its corroborative value and authenticity.
18. Secondly, the appellants learned counsel vehemently argued that the prosecution case suffers from such intrinsic infirmities and improbabilities and the statements of the witnesses are so inconsistent and discrepant which rendered the prosecution case unacceptable and incredible. A perusal of the record goes to show that statement of P.W. 2 Ajay Pal was recorded in the Court below on 9th of September 1980 and at that time he was aged about 20 years meaning thereby that at the time of his father's murder he was aged about 14 years only. He also stated that he studied upto class VII as after the death of his father he left studies. Thus at the time of the occurrence he was a child aged about 14 years. This witness Ajay Pal (P.W. 2) stated that accused Bhikam and Udal were not the resident of his village, as they resided at village Gurguri situate at a distance of some 3-4 miles away from his village and that when his father was murdered he saw both of them with accused Hamir Singh and others for the first time. It is incomprehensible and unintelligible as to how a boy only of 14 years of age could mention the names of these two accused with their parentage who resided in another village situate at a distance of 3-4 miles away from his village to whom he saw that day with the other co-accused for the first time. Further P.W. 2 Ajay Pal, son of the deceased and the first informant stated in his examination-in-chief that soon after the incident he got the report of his father's murder scribed by Netrapal in the village itself. He further stated that some 10-15 minutes after the incident he accompanies with Netrapal and the village chaukidar went to the police station and handed over the written report to the police there whereas P.W. 5 Netrapal, cousin of Ajay Pal Stated that Ajay Pal had scribed report of the occurrence himself and then he went to the police station accompanied with him and the village chaukidar at about 2.00 p.m. and reached the police station at about 2.30 or 3.00 p.m. and as they reached the police station Ajay Pal handed over the written report to the Head Moharrir there who asked him that since the report was illegible he should get the report scribed in a legible hand and then Ajay Pal got the report scribed by him and that thereafter after putting his signatures on the report scribed by him Ajay Pal handed over that report to the police at the police station. However P.W. 2 Ajay Pal also stated likewise in the latter part in" his cross-examination. In view of all these inconsistent and discrepant statements of these two witnesses the possibility cannot be ruled out that the FIR was scribed after consultation and confabulations. And if the FIR is shaken then the very basis of the prosecution case stands knocked out and on this score also the authenticity of the prosecution case falls to the ground.
19. Furthermore, P.W. 2 Ajay Pal stated that after the incident his family members and many of the co-villagers reached the scene of occurrence. The alleged murder took place in broad day light and several co-villagers were working in the nearby fields. Then it is incomprehensible as to what was the necessity of taking the dead body from the place of occurrence. It was broad day light and there was no fear of taking away dead body by the miscreants or causing any harm thereto by the animals. Besides it, the investigating officer did not show the place in the site-plan map as to where Lekhraj, the deceased fell after receiving the fatal injuries and as to from which place he collected blood stained earth. The investigating officer did not even get the blood-stained clothes of the deceased and the earth allegedly collected from the place of occurrence sent to the Forensic Science Laboratory for the serologist's expert opinion if these blood-stained clothes and earth contained human blood of the same blood group.
20. Lastly, the appellants' learned counsel argued that there is inconsistency between the ocular evidence and medical evidence. According to P.W. 1 Dr. C, K. Sharma injury No. 1 was caused by a shot fired from a distance of within three feet and injury No. 3 from a distance of 3' to 12'. A perusal of the post-mortem report goes to show that the doctor found margins of ante-mortem gun-shot wounds at serial Nos. 1 and 3 blackened and blackening present around the gun shot wounds at serial No. l in an area of 12 cm x 10 cm. However P.W. 2 Ajay Pal stated that the shots were fired at his father Lekhraj from a distance of some 5-6 paces (one pace is equivalent to two and a half feet) and P.W. 3 Sukh Ram stated that the shots were fired at Lekhraj from a distance of some ten paces. Thus according to P.W. 2 Ajay Pal shots were fired at Lekhraj from a distance of 12' x 15' and according to P.W. 3 Sukh Ram from a distance of some 25 feet whereas according to P.W. 1 Dr. C.K. Sharma the two ante-mortem gun-shot wounds at serial Nos. 1 and 3 were caused by two shots and fired from a close range and one of the two shots was fired from a distance of within three feet causing injury at serial No. 1. Further according to both the eye-witnesses all the four miscreants fired shots at Lekhraj but the doctor conducting autopsy on the dead body stated that ante-mortem gun-shot wounds found on the dead body were caused by two shots only. In view of the above, we are of the view that the possibility cannot be ruled out that these two eye-witnesses might not have witnessed the occurrence at all.
21. For the foregoing discussions, we find that the evidence furnished by the prosecution is too shaky, suspicious and fragile to furnish sound basis for conviction of the accused. We therefore find that the prosecution has failed in establishing the guilt of the accused convincingly and satisfactorily beyond all reasonable doubt. Since the learned trial Court failed to appreciate the evidence in its true perspective the finding of guilt of the accused recorded by the Court below cannot be sustained. The accused appellants are therefore held not guilty of the charge levelled against them and are entitled to acquittal.
22. The appeal is allowed and the impugned judgment and order convicting the accused under Section 148, IPC and Section 302 read with Section 149, IPC and sentencing each of them to three years' rigorous imprisonment and imprisonment for life respectively thereunder are hereby set aside. Both the accused appellants are acquitted of the charge levelled against them. They are on bail. Their bail bonds are hereby discharged.
23. Certified copy of the judgment along with record of the case be transmitted to the Court below immediately to ensure compliance under intimation to this Court within two months from today.