Sheo Prasad Tiwari and Others vs State of Uttar Pradesh

Onkareshwar Bhatt, J.—Appellants, Sheo Prasad Tiwari alias Ulli, Lalloo Harijan, Chhitani Lodh and Chaubey Lodh have preferred this appeal. They were tried alongwith one Ram Sharan Shukla is Sessions Trial No. 140 of 1980, who has been acquitted. The appellants were convicted under Sections 394 I.P.C, and sentenced to five years rigorous imprisonment, u/s 302/34 l.P.C. sentenced to imprisonment for life and u/s 323/34 l.P.C. sentenced to six months rigorous imprisonment. The sentences were ordered to run concurrently. The judgment and order was passed by the then V Addl. Sessions Judge, Allahabad on 17.6.1981.

During pendency of the appeal Sheo Prasad Tiwari alias Ulli, Chhitani Lodh and Chaubey Lodh have died and the appeal was ordered to abate against them by order dated 23.10.2003. The only surviving appellant is Lalloo Harijan.

Shri V.C. Tiwari, learned Senior Advocate, assisted by Sri A.K. Awasthi, learned counsel for the appellant and Sri R.S. Maurya, learned A.G.A. for the State have been heard and evidence on record of the case has been carefully perused.

Informant Ram Rekh Singh P. W.2 alongwith his brother Munni Singh P. W. 1 and Dhunni Singh alias Ram Rakhan Singh (deceased of the case) lived in village Ten Shah Alambad police station Manjhan Pur district Allahabad. A litigation was going on in between the informant and his brothers with one Gajendra before the Consolidation Officer at Manjhanpur. The acquitted accused Ram Sharan Shukla was guardian of Gajendra. On the date of occurrence i.e. 13.12.1979 the informant and his above two brothers alongwith Dassu P. W.4 were going to attend the above case at Manjhanpur on cycles. In the way at Maruki Brijendra Singh met and joined them. When they reached in between villages Khora and Bhelkha all the five accused appellants met them. Ram Sharan Shukla (since acquitted), Chhitani Lodh, Chaubey Lodh (since dead) and the surviving appellant Lalloo were armed with lathis and Sheo Prasad Tiwari alias Ulli (since dead) was armed with Pharsa. It was 10 A.M. at that time when the accused persons assaulted Dhunni Singh by Pharsa and Lathis. Informant also sustained lathi injuries. In the meantime. Ram Sharan Shukla snatched the gun and belt of cartridges from the informant which he was carrying while proceeding to consolidation court and fired at Dhunni Singh twice on the neck and hip. On alarm raised by them several persons arrived at the place of occurrence. Dhunni Singh alias Ram Rakhan Singh died on the spot and the accused persons ran away alongwith the gun and belt of cartridges.

The informant got a written report scribed by Brijendra Singh and it was lodged at police station Manjhanpur on 13.12.1979 at 11.15 A.M. The case was registered and investigated by Sub Inspector Hanuman Prasad Misra P.W.8. The informant Ram Rekh Singh was sent for medical examination. Dr. SiyaRam Singh P.W.6 examined his injuries on 13.12.1979 at 2 P.M. and found following injuries on his person:

Contusion 3cm x 2cm on the front part of right wrist.

Contusions 4cm x 2cm on back of the left calf muscle.

Contusion 5cm x 2cm on back of the upper part of the chest right side.

In the opinion of the doctor the injuries were simple and could have been caused by lathi at about 10 A.M. on the same day.

The dead body of the deceased Dhunni Singh was sent for postmortem examination and the postmortem examination was conducted by Dr. A.B. Das Gupta P. W.3 on 14.12.1979 at 2.30 P.M. and following anti-mortem injuries were found on his person:

Incised wound 10cm x2-1/2cm x brain deep transversely across the top of the head 17 cm above the bridge of the nose with cutting (fracture) of both the parietal bones + brain underneath.

Incised wound 8cm x 2cm x brain deep on the left side 3cm above the left ear with cutting of the left parietal bone underneath.

Incised wound 7cm x 2cm x muscle deep on the back of the head 2 cm below + behind the left ear.

Gun shot wound of entrance 2- l/2cm x 3cm x mouth cavity + brain deep on the left side of the face just in front of the left ear. Margins of the wound are inverted ecchymosed and scorched with tattooing marks with fracture of the upper jaw skull + lacerated brain in and around it.

Gun shot wound of exit 4cm x 6cm x brain deep on the right side of the head, 7 cm above the right ear with comminuted fracture of the right parietal bone + laceration of the brain. Margin averted + ragged.

Abraded contusion (four countable) on the top + behind the left shoulder back.

Contusion 4cm x 2cm on the back of the left 1st Phalanx. Of the ring + little finger with fracture of the bones underneath. All the above open wounds are smeared with blood clots.

There was internal damage also in membranes and brain, base of skull and in peritoneum. The small intestine, liver and gall bladder were also damaged. In the opinion of the doctor death was caused due to coma owing to compression + laceration of the brain as a result of either injury Nos. 1,2 or 4 & 5. The doctor also found one post-mortem injury which is as under:

Gun shot wound of entrance 3cm x 2-3/4cm x rectal abdominal cavity deep, margin inverted and scorched with tattooing mark.

The fact that litigation before consolidation court was going on in between the informant and his brothers on one hand and Gajendra Singh on the other whose guardian was Ram Sharan Shukla (since acquitted) is admitted to the appellant Lalloo. This fact has been stated by Munni Singh P.W.1 and Ram Rekh Singh P.W.2 also. The appellant has denied the prosecution case and has alleged his false implication. He stated that on the date of occurrence, he had also a case in the consolidation court and he was arrested by the police from the office of the consolidation court. No evidence in defence has been led by him. P.W.4 Dassu did not support the prosecution case and has been declared hostile.

The date, time and place of occurrence is not in dispute and has not been challenged by the defence. The recovery of blood stained and plain earth, cycle of the deceased, his pair of shoes and Newar sling, Sadari of the deceased amply proves that the deceased met his fatal end in between villages Khora and Bhelkha. The injuries sustained by the deceased prove that. in his assault Pharsa, lathi and firearm were used. Since Dassu P.W.4 has not supported the prosecution case, we are left with the evidence of two brothers of the deceased, namely, Munni Singh and Ram Rekh Singh besides the medical evidence. In the first information report it has been alleged that the accused Ram Sharan Shukla snatched the gun and belt of cartridges of the informant Ram Rekh Singh and fired at the deceased. Ram Sharan Shukla has since been acquitted. During the evidence two brothers of the deceased stated that there was no fifth accused on the spot besides Ulli alias Sheo Prasad, Chhitani, Chaubey and Lalloo. Munni Singh P. W. 1 has stated that the three accused having lathis'' snatched the gun and belt of cartridges from the informant and at that very time accused Ram Sharan Shukla was seen coming from the village and proceeding towards Manjhanpur. He further stated that Ram Sharan Shukla did not stay at the place of occurrence. Similar is the statement of Ram Rekh Singh informant. According to P. W. 1 Munni Singh it was Sheo Prasad Tiwari alias Ulli who fired at the deceased by the gun. The informant Ram Rekh Singh cannot say as to who of the accused snatched the gun. Munni Singh P. W. I assigns the role of firing from the gun of Sheo Prasad Tiwari. According to prosecution case, Sheo Prasad Tiwari was armed with Pharsa and prior to the alleged snatching of the gun by him he had already assaulted the deceased by Pharsa. The statement of Munni Singh is not corroborated by Ram Rekh Singh P. W.2 who only stated that he heard the firing of gun twice and he is unable to tell as to who fired the gun. The above fact shows that the prosecution case as put forward in the first information report underwent complete change when the evidence was adduced during the trial.

Appellant Lalloo alongwith other four accused lived in the same village where the deceased and informant lived. The prosecution does not allege any enmity with the deceased or with two eye witnesses with the appellant Lalloo. P.W. 1 Munni Singh has stated that accused Chaubey is the maternal uncle of accused Chhitani. He stated that the other accused might have formed a party. In the first information report it is mentioned by the informant that the injuries have been sustained by them also. However, it has not been specified as to who sustained injuries on the side of the prosecution by means of lathi. Admittedly Munni Singh had no injury. Admittedly Munni Singh had no injury. The injuries of informant Ram Rekh Singh are simple in nature. According to the informant he only mentioned the names of four accused persons to the scribe and the name of fifth accused Ram Sharan Shukla, according to him, was written in the report by the scribe himself. The informant stated that the fact of litigation in between him and accused Ram Sharan Shukla is wrongly mentioned in the first information report. The informant stated that the name of the accused Ram Sharan Shukla was wrongly included in the report and this fact was told by him to the Investigating Officer. These facts make the written report highly suspicious.

According to the prosecution case, the firing took place twice. The injuries no 4 and 5 of the deceased are firearm wounds of entry and exit. The prosecution case is that after the firing the accused persons went away from the place of occurrence. The postmortem injury which has been found by the doctor is incompatible with the story put forward by the prosecution. It is the prosecution case that firing took place after the deceased fell down and died. Dr. A.B. Das Gupta, P.W.3 could not say after how much duration postmortem injury No. 1 was caused after the anti mortem injury No.4 had been caused. The doctor has not been declared hostile by the prosecution. The medical evidence, therefore, does not corroborate the statements of the two eye witnesses, brothers of the deceased, because the postmortem injury No.1 remained unexplained from the evidence adduced in this case. It has been mentioned above that in the first information report there is no mention as to who on the prosecution side sustained injuries apart from the deceased. It has come in evidence that the appellant alongwith two other accused having lathis started assaulting the informant Ram Reldi Singh. Ram Rekh Singh himself has also stated so and further stated that he sustained four lathis blows. The injuries of Ram Rekh Singh are simple in nature and they are only three in number. On a careful and close analysis of the statements of two eye witnesses Munni Singh and Ram Rekh Singh it does not inspire confidence and these two witnesses cannot be said to be wholly reliable witnesses.

In view of the aforesaid discussion, the prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubt. The appellant, Lalloo Harijan is, therefore, entitled to be acquitted.

The appeal is allowed. The order of conviction and sentence of appellant, Lalloo Harijan is set aside. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.

Judgment be certified.