Amar Singh (In Jail) vs State of U.P.

Saroj Bala, J.—This criminal appeal is directed against the judgement and order dated 24.11.1982 passed by the IV Additional Sessions Judge, Badaun in ST. No. 312 of 1981 whereby convicting the appellant for the offence u/s 302 I.P.C. and sentencing him to life imprisonment.

The prosecution case was that on 24.8.1980 at about 8.30 A.M. the first informant Mahipal Singh (P.W.1) on hearing the sound of firing of shots reached the lane and saw the accused- appellant opening fire with his licensed double barrel gun at his brother Ramesh from the western side corner of the house of Ramesh Lala. His brother fell down near the steps of the shop of Shishpal Lala and succumbed to the injuries. The accused-appellant opened 25 to 30 rounds of fire from close range on his brother after he fell down. He got the written report (Ext.ka.l) scribed by Shree Pal Singh and laid it at police outpost Udhranpur P.S. Rajpura at 10 A.M. on 24.8.1980. On the basis of written report chick F.I.R. was prepared by H.C. Yogendra Pal Singh (C.W.6) and crime was registered u/s 302 I.P.C. and entry was made in the G.D. at serial No. 9 (Ext. ka.2).

S.I. Har Prasad Sharma(C.W.3) then posted at Udhranpur Police outpost P.S. Rajpura took the responsibility to investigate the crime. He visited the place of offence and prepared the site plan(Ext.ka.7). He conducted inquest on the dead body. The inquest memo (Ext.ka.5), photolash (Ext.ka.4) challanlash (Ext.ka.10) letters to R.I. and C.M.O. (Exts.ka 11 & 12) were prepared by him and dead body was sent for postmortem through constable Yakoob and Panni Chowkidar. He collected blood smeared and plain earth under the memo (Ext. ka.9).

The autopsy on the dead body was conducted by Dr. S.C. Naugaria (C.W.2) on 25.8.1980 at 2 P.M. As per postmortem report (Ext. ka. 3) the following ante-mortem injuries were found on the dead body:

Gun shot wound of entrance size 1 cm x 0.5 cm of right thigh at middle.

One gun shot wound of exit(lacerated ) 13 cm. x 12 cm. on front of upper part of right thigh corresponding to injury No. 1, (1) multiple fracture of bone underneath, one cork piece found and one tikli.

Four gun shot wounds of entrance of size 1 cm. x 0.5 cm on middle posterior aspect of right thigh, in an area of 12 cm x. 4 cm.

One gun shot wound of exit(lacerated) 3 cm. x 4 cm. on inner upper part of right thigh.

One gun shot wound of entrance of size 2 cm.x 1 cm. In left ingunal region 1 cm outer to anterior illiac spine. Fracture of bone underneath.

One lacerated wound 3 cm. x 2 cm. on back of upper part of left thigh.

Three gun shot wounds of entrance of size 3 cm x 2 cm. on abdomen through these wounds intestines coming out. Six cork pieces found in abdominal cavity.

One gun shot wound of exit 6 cm. x 3 cm. on back of right side abdomen.

One gun shot wound of entrance size 1 cm. x 5 cm. on part of sternum with blackening around the wound in an area of 6 cm x 5 cm.

One gun shot wound of entrance of size 1 cm. x 1 cm. on front of right shoulder.

One gun shot wound of entrance 2 cm x 1 cm on front of neck.

One lacerated wound of size 12 cm. x 6 cm. involving left ear. Multiple fracture of skull bone with brain matter coming out, corresponding to injury No. 11.

One contusion 6 cm. x 2 cm. on top of left shoulder.

One contusion 3 cm. x 2cm. On back of left scapular region.

According to the doctor rigor mortis had passed from upper and lower limbs. Greenish dis-colouration over abdomen and maggots were present on dead body. Foul smell was coming out. On internal examination blood vessels liver and intestines were found ruptured. The death was caused due to shock and hemorrhage as a result of ante-mortem injuries. Duration was about one and half day.

The clothes worn by the deceased at the time of incident and blood smeared and plain earth were sent for chemical examination through constable Om Prakash (P.W.5). The chemical examination report was (Ext.ka 13.). Kalayan Singh Yadav(C.W.1) then posted as S.H.O.P.S. Rajpura took the investigation in his hand after the transfer of S.I. Har Prasad. He submitted the charge sheet (Ext.Ka8) against the accused-appellant.

After committal of the case the accused-appellant was charged for the offence u/s 302 I.P.C. He having pleaded innocence was tried. At the trial the prosecution examined Mahipal Singh (P.W.1) Shree Pal Singh (P.W.2) and Raghuveer(P.W.3) as witnesses of fact. The rest of the formal witnesses were examined as court witnesses (C.W.I to C.W.6) about whom reference has been made above.

The trial court found that there was strong motive for commission of offence. The contradictions pointed out by the learned Counsel for the accused-appellant were held to be minor contradictions. The medical evidence was found in consonance with ocular account. The First Information Report was found to have been made without deliberation and consultation. On these findings the trial court recorded the conviction of accused-appellant.

Heard Shri R.B. Sharma, learned Counsel for the appellant, learned A.G.A. and have gone through the trial court record.

The impugned judgement and order has been assailed by the learned Counsel for the appellant on the grounds : ocular testimony runs counter to the medical evidence; the solitary witness being the real brother of the deceased his testimony has to be examined with great care and caution and is to be accepted after testing it on the touchstone of probabilities and other evidence tendered by the prosecution; the presence of maggots discolouration and foul smell on the dead body and absence of rigor mortis indicate that the incident took place at night; the material discrepancy in the testimony of witness (P.W.1) with regard to the distance of the place from where he viewed the commission of offence strikes at the very root of his testimony; the deceased having been convicted in the case of murder of appellant''s father, there was no grudge against him; the commission of offence having taken place in broad day light in the lane having shops and houses on its both sides, the non-examination of independent witnesses was fatal; the non-recovery of empties and tikilies from the spot though 25-30 rounds of shots fired makes the presence of witness (P.W.1) at the spot doubtful.

The prosecution case rested on ocular testimony of Mahipal Singh (P.W.1) Shree Pal Singh (P.W.2) and Raghuveer(P.W.3).The witnesses Shree Pal Singh and Raghuveer Singh having not supported the case, they were dubbed hostile. They denied having seen the commission of offence. These witnesses having not supported the prosecution case on any count their testimony has no bearing. The prosecution had to bank on the solitary testimony of Mahipal Singh (P.W.1) brother of the deceased who came out of Ms bouse on hearing the sound of firing and saw the accused-appellant opening fire on his brother from his licenced double barrel gun. In the cross examination (para-5) he deposed that the place from where he witnessed the accused-appellant opening fire was at a distance of 50-60 yards. According to him he had seen the accused-appellant from his back side and guessed that it was Amar Singh. In the site plan (Ext ka. 7) the place where the witness (P.W.1) was present has been shown by letter "D" and the place from where accused-appellant was opening fire has been indicated by letter "B". The intervening distance of letter "D" and "B" has not been mentioned in the site plan (Ext ka.7).The house of the first informant and deceased was not shown in the site plan. The investigating officer (C.W.3) gave out that house of deceased was at a distance of about 20-25 paces from the place shown by letter "D" in the site plan. The investigating officer disclosed the distance of the house of deceased from letter "D" on the basis of memory. It was not possible to see the assailant from his back from a distance of about 50-60 yards. On the face of these discrepancies on very important aspects a reasonable doubt arises as to the reliability of the evidence of solitary witness.

Another circumstance which deserves notice is the delay in making the first Information Report. The incident took place at 8.30 A.M. and First Information Report was lodged at 10 A.M. The intervening distance of police station and place of offence is 6 km. C.P. Yogendra Pal Singh(C.W.6) admitted that the First Information Report does not bear the date of receipt in the court. S.I. Har Prasad Sharma (C.W.3) deposed that the date on which the First Information Report was sent to the Magistrate does not find mention. The Apex Court in the case of Thulia Kali Vs. The State of Tamil Nadu, discussing the consequences of delayed filing of First Information Report has held that "delay in lodging the First Information. Report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation."

The delay in making of the First Information Report has to be satisfactorily explained. In the instant case no explanation for lodging the First Information Report after delay of one and half hour was given by its maker (P.W.1).Moreover no explanation was given by the police officer for delayed placing of First Information Report before the Magistrate. The delayed dispatch of the First Information Report to the Magistrate throws serious doubt on the prosecution case. The Apex Court in the case of Arjun Marik and Others Vs. State of Bihar, has held that "the forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word ''forthwith'' occurring in Section 157 Cr.P.c. which means promptly and without any undue delay."

The delay of one and half hour in lodging the First Information Report irrespective of the fact that the police station was situated at a distance of 6 Km. from the place of offence is another factor to doubt the truthfulness of the prosecution case. One more aspect to be considered is that the Investigating officer reached the spot within two and half hours of the commission of offence but no empty cartridges, pellets and tiklies were found at the spot. The witness (P.W.1) explained this during his cross examination by saying that accused-appellant collected the empties etc. from the venue of crime after the commission of offence.

One more point which makes the version of (P.W.1) subject to criticism is that he stated that constables of police outpost Udhranpur had reached the spot prior to the lodging of First Information Report and he went to the police outpost along with the constables. This version is inconsistent with the testimony of S.I. Har Prasad Shukla (C.W.3) who deposed that none of the police officials went to the spot before his reaching there.

Yet another important feature is the medical evidence. The incident took place at 8.30 A.M. The autopsy on the dead body was conducted the next day at 2 P.M. According to the Dr. S.C. Naguaria (C.W.2)rigor mortis had passed from both upper and lower extremities Maggots were present on the dead body. Greenish discolouration was present on the abdomen. According to him there was possibility of death at night at 2 A.M. There is a marginal difference of six hours in the duration of death.

In view of the doubtful features and other infirmities in the prosecution evidence we are of the view that it is not safe to rely on the testimony of Mahipal Singh (P.W.1) the solitary prosecution witness. Accordingly we hold that the prosecution failed to establish its case beyond reasonable doubt and the accused-appellant is entitled to benefit of doubt. Allowing the appeal we set aside the impugned judgement and order. The accused-appellant is acquitted of the charge u/s 302 I.P.C. He is on bail to which he need not surrender. His bail bonds are cancelled and sureties are discharged.

Certify the judgement to the lower court within a week. The record of the case be also transmitted to the court below immediately.