Prithvi Raj and Anr. vs State of U.P.

D. K. Trivedi, J.—The present criminal appeal is directed against the judgment and order dated 1831980 passed by IIIrd Addl. Sessions. Judge, Unnao convicting accusedappellants Prithvi Raj as well as Ashok Kumar under Section 302, I.P.C. and sentencing each of them to imprisonment for life, in connection with an incident alleged to he taken place on 241078 at about 6 p.m. in front of the house of Badri situate in village Karia Khera, Police Station Kotwali, District Unnao.

It is said that the accusedappellants namely: Prilhvi Raj as well as Ashok Kumar committed the murder of Sheo Prasad alias Baba (12 Years). According to prosecution case the appellants had two other brothers who namely; Ram Raj and Raj Kumar. The murder of Ram Raj had taken place earlier in which Raj Kumar was a witness. In the said case Ram Naresh was one of the accused. The said case was listed on 611 78 for recording evidence of Raj Kumar. On 24l078at about 5 p.m., it is said that Raj Kumar was also murdered by Mani Ram son of Badri (brother of the deceased) and others near the house of Pancham in village Karia Khera. Prithvi Raj lodged a written report at 6.30 p.m. regarding the murder of his brother Raj Kumar at P.S. Kotwali, District Unnao. It is alleged that P. W. 5, S. I. Dwarika Prasad was present at the time of lodging of the report by Prilhvi Raj and therefore he immediately proceeded to village Karia Khera and reached there at about 7.15 p.m. According to the prosecution case the present incident took place on 241078 at about 6 p.m. just in front of the house of Badri. According to the complainant Badri, he was present in his field in the evening at about 5 p.m. and was doing weeding in radish field. According to him, he heard some sound of firearm and on hearing the sound of firearm, he reached his house and found, is wife and others at the door and there after his son Sheo Prasad alias Baba came with calf at the door and tied the calf with the pillar and it was 6 p.m. by that time. At that time both the accusedappellants Prithvi Raj and Ashok Kumar armed with firearms reached there and appellant Prilhvi Raj instigated that Mani Ram with his associates had killed his brother, therefore, Mani Ram''s brother be also killed. Upon this instigation, appellant Ashok Kumar fired his Katta causing injuries to Sheo Prasad alias Baba (deceased) and immediately thereafter, appellant Prithvi Raj also fired his Katia killing the deceased on the spot. It is said that thereafier, both the accused persons ran away. It is said that just after the incident, P.W. 1 Badri got the F.I.R.. Ext. Ka1 written by Ram Sahai of village Chumana Khera situated at disiance of about two furlongs from the place of the occurrence and lodged the same at 7.45 p.m. at P.S. Kotwali, Dislrict Unnao. According to the prosecution case after lodging of the report, as the Investigating Officer had already left the police station to village Kharia Khera, therefore, the complainant was also sent, to village Karia Khera alongwiih constable. The complainant reached the village and met ''Daroga Ji'' who was present near the dead body of Raj Kumar (deceased). It is not disputed that appellant Prilhvi Raj was also present near the dead body of his brother. It is said that thereafter, the case was investigated by same Investigating Officer. He received the papers of this case on 241078 at about 10.15 p.m. in village Karia Khera and recorded the statement of Badri and prepared the inquest report Ext. KaSand other relevant papers Ext. Ka9and Ka10 and sent the deadbody of Sheo Prasad alias Baba (deceased) to mortuary for autopsy. The Investigating Officer recovered the bloodstained and plain earth from the place of the incident and arrested Prithvi Raj who was admittedly present in the village on 251078. He thereafter, recorded the statements of the other witnesses and thereafter, completing the investigation of this case he submitted the chargesheet against the accusedpersons. The post mortem examination of the deadbody of deceased Sheo Prasad alias Baba was conducted by P.W 3 Dr. S.M. Tripathi on 251078 at 3.20 p.m. The doctor found the following antemortem injuries on the deadbody of deceased Sheo Prasad alias Baba:

(1) Circular lacerated wound 11/4" in diameter on left temporal region x brain cavity deep, blackening and charring present. Wound of entry.

(2) Lacerated wound 21/2" x 2" on right orbitright eye is missing. Margin evened. No blackening or charring present. Brain cavity deep wound of exit of injury No. 1.

(3) Circular Ulcerated wound 1" in diameter on right side chest 21/2" below the right nipple. Margins inverted. Blackening and charring present.

(4) Lacerated wound 11/2" X 1" on left leg below knee joint. Margins everted through and through. Blackening and charring present.

(5) Lacerated wound 3" x 2" on left leg and food upper third. Margins everted. Fracture of both bones of left leg. Wound of exit, of injury No. 4.

On internal examination, the doctor found fracture of left temporal bone and right orbital bone. Membranes of the brain were lacerated and brain matter was coming out. The abdominal cavity was full of blood. The stomach contained four Ounces of digested food. The small intestine also contained semidigested food. The large intestine contained faecal matter. The liver was found lacerated at several places with pelets. The postmortem report is Ext. Ka2.

In support of its case, the prosecution examined as many as six witnesses, out of them PAY. 1 Badri and P.W. 2 Satti are witnesses of fact. P.W. 3 Dr S.M. Tripathi conducted autopsy on the dead body of deceased Sheo Prasad alias Baba and proved the postmortem examination Ext. Ka2. P.W. 4 Ram Sunder Mishra, Head Moharrir proved the F.I.R. as well as registration of the case and also the entries made in the diary, P.W. 5 S.I. Dwarika Prasad conducted the investigation of this case and submitted chargesheet against the accused persons.

On the other hand the accusedpersons denied the prosecution case and stated that they were arrested by the police due to enmity. Accused Prithvi Raj further stated that he was Panchayat Secretary and at the time of the incident he was posted at Deori Kalan ten kms. away from the incident. He reached his house in the evening and found his brother killed, therefore, he immediately rushed to the police station and lodged a report at the police station Kotwali at 6.30 p.m. and returned back alongwith the Investigating Officer to village Karia Khera, In these circumstances the prosecution story that he was present in ''he village and killed Sheo Prasad alias Baba (deceased) on the face of it, is incorrect.

The learned Sessions Judge after considering the evidence on the record came to the conclusion that the prosecution has successfully proved the guilt of the accusedpersons beyond reasonable doubt and therefore, he convicted and sentenced the accusedappellants as mentioned above.

The appellants aggrieved by the said judgment and order preferred the instant criminal appeal before this Court.

We have heard the learned counsel for the appellants as well as for the State and have also gone through the record carefully.

The main contention of the learned counsel for the appellants is that the prosecution has miserably failed to prove the guilt of the accusedappellants beyond reasonable doubt and in any case the presence of appellant Prithvi Raj on the spot at the time of the incident on the face of it, is not believable and therefore, the whole prosecution story is false one. He also pointed out that if appears that the deceased Sheo Prasad alias is Baba was killed in the night by some unknown persons and due to enmity the appellants were falsely implicated in this case.

In the instant case certain facts are not disputed. It is not disputed that the murder of Raj Kumar took place at about 6 P.M. in village Karia Khcra. It is also not disputed that the F.I.R. was lodged at the Police Station Kotwali by Prithvi Raj at about 6.30 P.M. It is alleged that after registration of the case, P.W. 5 S.I. Dwarika Prasad Tiwari left the police station and reached the place of the incident at about 7.15 P.M. It is alleged by the prosecution that in between at about 6 P.M., the present incident took place by the appellants. It is also not disputed that" Prithvi Raj returned back to village Karia Khera alongwith the Investigating Officer and remained present with the Investigating Officer throughout whole night as well as next day when he was arrested at about 11 or 12 in the noon. It is not disputed that Prithvi Raj was also present near the deadbody of his brother when Badri, the complainant of this case returned back to village Karia Khera alongwiih the constable after lodging of the F.I.R. Here, it may be pointed out that the prosecution tried to say halfheartedly that the present incident took place just after the first incident of murder of Raj Kumar in rataliation hut the prosecution has neither taken this ease nor specially has come with the case that the present incident look place just after the earlier incident and thereafter, Prithvi Raj went to the police station to lodge the F. I.R.

P. W. 1 Badri has slated that he was present in his radish field and at about 5 P.M., he heard the sound of gunfiring and he reached his house which lies just at a distance of about 50 paces from his field. He has also stated that thereafter, Sheo Prasad alias Baba came with calf at the door and tied the calf with the pillar. He has clearly slated that the incident took place after about an hour of the first incident then, the presence of Prithvi Raj on the spot at the time of the incident becomes doubtful. Apart from this, P.W. 1 Badri has further stated that when he returned back to his village Karia Khera and met the Investigating Officer near the deadbody of deceased Raj Kumar no talk look place between them and the Investigating Officer also did not say anything that when he reached village Karia Khera and he came to know that the murder of Sheo Prasad alias Baba had already taken place. It is surprising that he did not know anything about this murder and remained present during the investigation of Raj Kumar''s murder case. He has not even said that he came to know about the murder of Sheo Prasad alias Baba on reaching his village or he made any arrangement to guard the deadbody or visited the place of the incident as soon as he reached village Karia Khera. He has not even visited the place of the incident after reaching the village Karia Khera alongwith Prithvi Raj. Apart from this, the contention of the learned counsel for the appellants that in fact Sheo Prasad alias Baba was killed in the night and the report to this effect was also lodged afterwards next day after consultation and due to this reason the investigation in the instant case started only on the next day. He pointed out that the investigation of this case started on the next day and at about 9.30 a.m. when the Investigating Officer prepared the inquest report and other relevant papers for autopsy. The learned counsel for the appellant further pointed out that even in the inquest report alleged to be prepared on 251078 at about 9.30 a.m. there is no crime number at all and while mentioning the facts in the inquest report the crime number has admittedly been fabricated with other ink. The other relevant papers namely: photo lash, police forms etc. also do not contain any crime number. However, the letter of request for postmortem examination contains crime number as 799A under Section 302, I.P.C. It is also surprising that in the report it was shown that it is a cross case of crime Number 799 and therefore, this case is registered as case crime No. 799A. Now it is alleged that this incident took place after about an hour of the first incident and further the Investigating Officer did not say anything about this case when he reached the place of the incident after registration of the earlier case. P.W. 1 Badri also stated that the F.I.R. was dictated and prepared with the help of Ram Sahai in the village itself but the same also falsifies from the allegations of the F.I.R. In the F.I.R. lastly it is mentioned that:

The next contention of the learned counsel for the appellants is that there is serious inconsistency about the place of the incident also. P.W. 1 Badri has clearly stated that the deceased Sheo Prasad alias Baba was standing on the ''Chabulara'' and he was killed and then, he fell down on the ''Chabutara'' but the Investigating Officer did not find any blood on the ''Chabutara''. The Investigating Officer found the blood as well as the dead body in the ''Galiyara'' just near the ''Chabutara'' The Investigating Officer further did not find any ''Chharra'' or Tikli'' on the ''Chabulara'' or from nearby place of the incident.

P.W. 2 Satli, another eye witness totally contradicts P.W 1 Badri and he stated that the deceased Sheo Prasad alias Baba received both the firearms injuries when he was standing on the Sahan which is in between the ''Chabutara'' and ''Galiyara''. According to him there is a ''Sahan'' after ''Chabutara'' and thereafter, ''Galiyara'' starts. P.W. I Badri on the other hand clearly stated that after the ''Chabutara'', the ''Galiyara'' starts and the deceased received injuries on the ''Chabutara''. There is no explanation at all on the record as to why no action has been taken by the Investigating Officer as soon as he reached the village Karia Khera alongwith Prithvi Raj. If, the murder of Sheo Prasad alias Baba had already been committed as alleged by the prosecution before arrival of the Investigating Officer, then it is not possible to believe that the Investigating Officer who reached the village Karia Khera at about 7 or 7.15 p.m. did not receive any information or had done nothing before registration of the case.

In view of the facts stated above and the infirmities and contradictions pointed out in the statements of the aforesaid two eyewitnesses, in our opinion, the prosecution has failed to prove the guilt of the accusedappellants beyond reasonable doubt and at least the accusedappellants are entitled to get benefit of doubt.

Accordingly, the present criminal appeal is hereby allowed. The conviction and sentence awarded by the IIIrd Addl. Sessions Judge, Unnao on 18380 against the accusedappellants namely: Prithvi Raj and Ashok Kumar are hereby set aside. Both the appellants are on bail. They need not surrender. Their bailbonds are cancelled and sureties thereof stand hereby discharged.