Gandharv Singh vs State of U.P.

B.L. Yadav, J.—Criminal Appeal No. 650 of 1979 has been filed by Gandharv Singh, whereas Criminal Appeal No. 674 of 1979 has been filed by Rajendra Singh and Asha Ram. Both these appeals are directed against the judgment and order dated 13-2-79 passed by Sri J. N. Tandon, III Addl. Sessions Judge, Mainpuri convicting the Appellants u/s 302 read with 149 IPC and u/s 148 IPC. The Appellants were awarded sentence of life imprisonment for the offence u/s 302/149 IPC and two years rigorous imprisonment for the offence u/s 148 IPC. Both the sentences were, however, directed to run concurrently. By the same judgment and order the other accused persons namely Jai Dayal, Radhey, Ratan Singh and Smt. Sumitra were given the benefit of doubt for the charge u/s 302 read with 149 IPC and they were consequently acquitted.

The occurrence has taken place on 26-3-1976 at the time of sun set and the first information report was lodged on 27-3-1976 at about 8.30 A. M. at Police Station Kotwali, district Mainpuri. The distance of village Burrah, where the occurrence has taken place, was 12 miles from the Police Station Kotwali Suresh aged about 15 years was the deceased.

The first information report contains the prosecution story. It was lodged by Nawab Singh (PW 2). It was to the effect that on the date of occurrence Suresh was driving bullock-cart keeping the harvested crop of wheat. When it reached near the naali of tubewell of Bachchan, Suresh deceased came down from the bullock earth to drink water. In the meanwhile Rajendra. armed with country made pistol (Tamancha), Gandharv, armed with a gun, Jai Dayal and Asha Ram armed with country made pistols,: whereas Smt. Sumitra and Ratan Singh armed with lathis and Radhey armed with Kanta came there. Smt. Sumitra exhorted the accused to kill the deceased with the fire-arm so that her husband''s murder may be compensated. Immediately thereafter the Appellants fired from their respective weapons upon Suresh, which hit near his eye and he fell down. He was in the bullock cart when he raised alarm Thereafter Kayam Singh, Gulab Singh and Indra Jeet came there and saw the occurrence The other details have been given in the impugned judgment and order. The three eye witnesses namely Kadori (PW 1) (at page 12 of the paper book), Nawab Singh (PW 2) and Kayam Singh (PW 3) have been examined in support of the prosecution version. Whereas Dr. B. K. Mishra (PW 5) has been examined who conducted the post mortem examination and ascertained the ante-mortem injuries. The injuries found on the body of the deceased are mentioned as follows, as are noted in the post-mortem report conducted on 28-3-76.

Fire arm wound of entrance 1.5 cm x 1.8 cm. x whole skull deep through and through, corresponding to wound of exit given below on head left side 3 5 cm behind the left ear at 3 o'' clock position margins inverted, no blackening, tattooing or scorching seen. Margins contused.

Fire arm wound of exit 2.5 cm x 30 cm x whole skull deep, through and through, corresponding to wound of entrance, given above, on face right side, just below the right eye, margins averted and no blackening, tattooing or scorching seen.

The cause of death was shock and haemorrhage due to ante mortem injuries. Ram Dutt Dixit (PW 6) and Vikram Singh (PW 7) were the investigating officers. The learned Sessions Judge has relied upon the statements of prosecution witnesses and has accorded the conviction and sentence as indicated above.

Sri Ravindra Singh the learned Counsel for the Appellant urged that on the same evidence, on which the other four persons namely Jai Dayal, Radhey, Ratan Singh and Smt. Sumitra have been given the benefit of doubt and have been acquitted, the Appellant has been convicted. This may be taken into account. On the same evidence without any distinguishing feature the Appellant has been discriminated against and has been acquitted.

It was next urged that from the nature of injuries, as given in the post mortem report and as also stated by PW 5 Dr. B. K. Mishra. injury No. 1 was fire arm wound of entrance 1.5 cm x 1.8 cm. x whole skull deep, injury No. 2 was fire arm wound of exit 2.5 cm x 3.0 cm. x bone skull deep through and through just below the right eye. It was stated by PW 5 Dr. B. K. Mishra that the injury No. 1 was caused from the back side on the head left side whereas injury No. 2 was the exit wound just below the right eye ; whereas the prosecution case was that the wound of entrance was caused just below the right eye It means, the medical report is contrary to the prosecution version particularly the statements of PWs. 1, 2 and 3 and also the statement of PW 5 Dr. B. K. Mishra. There is one other aspect of the matter. There was no blackening tattooing or scorching seen as reported by PW 5 Dr. B. K. Mishra. This could be possible only when the injury was caused with very close range putting the weapon close to the body and the skin. Whereas PW 2 Nawab Singh has stated (at page 22 of the paper book), that the Appellants were standing at a distance of 10 steps from the deceased Suresh (vide para 33), whereas Under para-37 it has been stated that all the accused have given the short simultaneously and at that time the face of deceased Suresh was in front of the accused. This leads to the inference that the shot was given below the right eye and not on the back side of the head. It was apparent from the medical report and the statement of the doctor. The inference is that the statements of the witnesses do not support the injuries as medically examined by the doctor. The learned Counsel for the State Sri Dwivedi has supported the impugned judgment and order. He urged that there was immediate motive for having caused murder. The injuries as indicated by the doctor could have been caused by the accused. The statements of PWs 1, 2 and 3 were reliable, and there was no infirmity. He urged that there could be no blackening and tattooing even if the shot was given from a distance of ten steps, as stated by PW 2 Nawab Singh (vide para 33 of page 22 from paper book).

We have heard the learned Counsel for the parties and we are of the opinion that the appeal must succeed. The post mortem report would indicate that the first injury was caused by fire arm from the left side of the head and injury No. 2 was exit wound on the right side of the face just below the right eye. PW 1 Kadori has stated (in para 10 at page 13 of the paper book) that as soon as Suresh deceased stood after drinking water, the accused gave a shot directly near his eye.

Suresh panni peekar khada hua to Suresh ki seedhi aank ke pass gpli lagi va Suresh gir gaye va mar gaye. Gandharv, Rajendra va Asha Ram ne fire kiey the. It means injury No. 2 was not exit, rather it was an entrance wound. Similarly PW 2 Nawab Singh stated (in para-8 at page 19 of the paper book) that shot was given by the Appellants below right eye of Suresh deceased.

Surnitra ke hukm ke anusar Rajendra Asha Ram va Gandharv ne fire kiye usme se go!i Suresh ki daain aankh ke neeche samne se lagi va peechche nikal gai aur Suresh zameen par gir gaye va mar gaye.

PW 3 Kayam Singh has stated (Under para-5 at page 24 of the paper book) that Appellants fired below the eye of Suresh deceased. To precise the words are:

Surash paani peekar khade hua to Gandharv Rajendra va Asha Ram ne fire kiye to Suresh ki seedhi aankh ke neeche saamne se goli lagi. Suresh vanhi par gir kar vanhi mar gaya

The statements of PWs 1, 2 and 3 lead to the inference that injury No. 2 was entrance wound, whereas injury No. 1 was exit wound. We are accordingly of the opinion that the ocular testimony was contradictory to the medical evidence in the nature of injuries received by the deceased.

As regards the medical evidence that there was absence of blackening, tattooing and scorching, it appears that the shots were given from a very close range.

In Taylor''s Principles Practice of Medical Jurisprudence (Thirteenth Edition by A, Keith Mant, Page 245) there is following statement about firearm wounds.

Powder tattooing: The size and intensity of the surrounding powder tattooing will depend upon the constituents of the propellant charge, i. e. black powder or smokeless, and the distance between the skin and the muzzle.

Wounds are usually classified by their external appearance as ?

Close contact.

near contact.

distant.

Close Contact: In these wounds by definition the muzzle is held in close contact with the skin. The projectile or projectiles, gases of the propellant charge under great pressure, unburned powder and any wads will all enter the body If the gun is fired into a body cavity such as the chest or abdomen the cavity will contain the gases, even if there is no exit wound, and the entry wound will be circular.

Near Contact: In these wounds the muzzle is an inch or so away from the skin when fired, The entry wound is circular and the surrounding skin is blackened by smoke and unburned powder.

In Modi''s Text book of Medical Jurisprudence and Toxicology (Twentieth Edition), page-228, Moreover these signs (i. e. blackening, scorching and tattooing etc.) may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gun gun powder will all follow the track of the ballot in the body."

We are, accordingly., of the opinion that in case the fire arm is pressed to the body or in case the muzzle is held in close contact with the skin there shall be no blackening, scorching or tattooing ,as the projectile gases on the propellant ,unburnt powder and flame smoke and particles of gun powder will all enter she track of the bullet in body. In the present case the post mortem report indicates that fire arm wound of entry there was no blackening, tattooing or scorching. It means the injury was caused when the weapon or muzzle was pressed to the body or was in very close contact. The prosecution case is that the muzzle was held or the weapon was pressed from a distance of ten steps (i. e. about fifteen feet) from the deceased vide, the statement of PW 2 Nawab Singh (page-22 para-33 of Paper book). We are of the view that the prosecution case was not reliable and the fire arm injuries were not caused as alleged by the prosecution.

After considering the evidence on record, we are of the opinion that the prosecution has not come with clean hands and the statement of PWs. 1, 2, and 3 are contradictory to the medical evidence. The nature of injuries has also been given otherwise than recorded by the doctor. The prosecution witnesses are not stating the truth correctly. The ocular version was contrary to the medical evidence. Under these circumstances we have no option but to hold that on the basis of statements of PWs. 1, 2 and 3 no conviction can be recorded against the Appellants.

In view of the premises aforesaid, the judgment and order rendered by the learned Additional Sessions Judge can not be sustained.

in the result the appeals succeed and are allowed. The Appellants are acquitted from the charges u/s 302 read with 149 IPC and u/s 148 IPC. The Appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.

Criminal Appeal No 650 of 1979 is the leading case. A copy of this judgment be placed in connected Criminal Appeal No. 674 of 1979, as both these appeals being disposed of by a common judgment.