State of U.P. vs Arun Kumar

Amar Saran, J.—This Government appeal has been preferred by the State against the judgment and order passed by the Sessions Judge, Meerut, dated 13.9.2002, in S.T. No. 1427 of 1996, acquitting the accused-Respondent, Arun Kumar, of the charge u/s 302, I.P.C.

The facts of this case, briefly, were that on 6.6.1996 at about 10 a.m. when Yuddhavir, son of the informant Bakhtawar Singh, was irrigating his field by running his tube-well engine, and his brother the deceased Sudhir who was another son of the informant, was lying under a nearby tree. Bakhtawar Singh, the informant, was harvesting his sugarcane. At that time the accused-Respondent, Arun Kumar, reached the chak of the informant and fired at Sudhir with a country-made pistol, with the objective of murdering him on account of an 8 years old enmity. On hearing the firing, the informant, and his son Yuddhavir, reached near Sudhir. They tried to apprehend Arun, who however made good his escape towards the village after threatening them with his country-made pistol. After that the informant and his son Yuddhavir started taking Sudhir to Mawana but Sudhir succumbed to his injuries on the Bhainsa road. The informant, after leaving the deceased Sudhir in the care of his family members, lodged the F.I.R. at P. S. Mawana at Case Crime No. 138 of 1996 on 6.6.1996 at 11.50 a.m.

Two witnesses, P.W. 1, Bakhtawar Singh, the informant and father of the deceased, and P.W. 2, Yuddhavir Singh, the brother of the deceased, have been examined in this case.

In addition, P.W. 3, S.I. Rajpal Sharma, who conducted the inquest on the body of the deceased ; P.W. 4, Dr. J. P. Bhardwaj, who conducted the postmortem on the deceased on 6.6.1996 at 6 p.m. ; P.W. 5, S.I. J.S. Pundir, who is the second Investigating Officer who submitted the charge-sheet in this case ; P.W. 6, Head Constable Chhotey Singh, who prepared the check F.I.R. and P.W. 7, R. S. Yadav, who was the first Investigating Officer of this case are the formal witnesses who have also been examined in this case.

P.W. 1, the informant Bakhtawar Singh has deposed that he owned plots (chaks), one of which was to the north of Bhainsa-Mawana road and the other was to the South of the road at about 100-150 paces east of the former plot. At the time of incident, Bakhtawar was getting his sugarcane harvested. At about 10 a.m. he was coming to oversee the irrigation from his tube-well when he heard a fire. At that time he was on the main road. He saw the Respondent firing on his son who was lying under a tree near the tube-well of Balwan. His son Yuddhavir, who was watering his own field, also saw this incident. The accused escaped threatening them with a country-made pistol. Then arrangement was made for carrying the deceased, who was then injured, on a bullock-cart which was standing there for treatment to Mawana. However, as Sudhir died on the way near Hans Raj''s field, he was left there on the bullock-cart under the care of many persons who had gathered there, as well as his wife who had just reached there carrying their meals.

P.W. 2, Yuddhavir Singh, has deposed that on the date of the incident he alongwith his brothers, Sudhir and Alok, had reached the tube-well at about 6 or 7 in the morning. Their village was about 500 paces from this plot and it was north of the road which connected Bhainsa village to Mawana. The plot of the accused was east of the plot of this witness. After sometime their father Bakhtawar Singh arrived at their plot. At that time the deceased Sudhir was roaming around there. Their father went to another plot which was at some distance and lay to the south of the Bhainsa-Mawana road. His father was getting the sugarcane crop cut. For some time Sudhir was helping him to run the tube-well engine. Then he went and lay down under the mulberry (shahtoot) tree near the tube-well of the accused on their plot. At about 10 a.m. the Respondent Arun fired on Sudhir where he was lying. This incident was witnessed by this witness Yuddhavir and his father. They rushed towards Sudhir. But the accused ran away carrying his country-made pistol. After that they made a bullock-cart which was standing there functional and proceeded towards Mawana but Sudhir succumbed on the way. Then P.W. 1 Bakhtawar Singh and P.W. 2 Yuddhavir left his body on the bullock-cart in the care of Yuddhavir''s mother who was coming there with their food. After that they left for P. S. Mawana where they handed over the written report.

So far as the formal witnesses are concerned, P.W. 7, Rajendra Singh Yadav, was the S.O. in-charge of P.S. Mawana. The report was lodged in his presence and he began investigation of the case. P.W. 6, H. M. Chhotey Singh registered the case at Case Crime No. 138 of 1996, u/s 302, I.P.C. on the basis of the written report handed over by P.W. 1, Bakhtawar Singh. He prepared the check report (Ext. Ka-9) and nakal report and made the G. D. Entries at 11.50 a.m. on 6.6.1996. P.W. 7, Rajendra Singh Yadav, after recording the statement of H. M. Chhotey Singh in the case-diary proceeded to the place where the dead body of the deceased Sudhir was lying on a bullock-cart. He deputed P.W. 3, S.I. Rajpal Sharma to conduct the inquest of the dead body on his directions. P.W. 3, S.I. Rajpal Sharma also prepared the letter for the R.I. (Ext. Ka-2), report for the C.M.O. (Ext. Ka-4), photo-lash (Ext. Ka-5), challan-lash (Ext. Ka-6). He sealed the dead body. P.W. 7, R. S. Yadav, recorded the statements of the informant, Bakhtawar Singh, u/s 161, Cr. P.C. and Yuddhavir Singh and inspected the place alongwith them and prepared the site-plan (Ext. Ka-11). He dispatched the dead body for postmortem through constables Jai Veer Singh and Virendra Kumar alongwith the necessary papers. Thereafter, P.W. 4, Dr. J. P. Bhardwaj, conducted the postmortem on the deceased on 6.6.1996 at 6 p.m. at P. L. Sharma Hospital, Meerut. The deceased Sudhir was aged about 18 years. He had the following ante-mortem injuries:

Gun shot wound of entry 1.2 cm. x 1.0 cm. x chest cavity deep on back right side chest 7 cm. below inferior angle of right scapula, blackening around the wound 5 cm. x 4 cm.

Gun shot wound of exit 2 cm. x 2.5 cm. on left side chest just near left nipple.

Injuries Nos. 1 and 2 are corresponding to each other. The death of the deceased might have been caused half a day before the postmortem. Rigor mortis was present on whole of the body. The sternum was broken, the 4th and 5th ribs of the chest and 8th and 9th ribs of the back were also broken. The lungs, heart and blood vessels were lacerated.

As the Investigating Officer was transferred, the investigation was concluded by P.W. 5, S.H.O., J.S. Pundir, who started the investigation of this case on 21.6.1996 after obtaining permission from the C.J.M. He recorded the statement of the accused on 9.7.1996 and submitted the charge-sheet (Ext. Ka-6).

In his Section 313, Cr. P.C. statement the accused denied the incident and claimed that he had been falsely implicated for reasons unknown to him because of enmity.

D.W. 2, Naresh Pal, a witness of inquest, has been examined by the defence. He has deposed that he was present at the time of the inquest. The dead body was found on the road between village Bhainsa and Mawana. There was no bullock-cart present at that time. At that time the informant, Bakhtawar and his son Yuddhavir were discussing as to who should be implicated for the crime as the report had not been prepared by then.

We have heard Sri M. C. Joshi and Sri Hemendra Pratap and Manish Tewari for the complainant and Sri Akhilesh Singh for the accused-Respondent.

It was argued by the learned A.G.A. and the complainant''s counsel, that it was a broad daylight murder and the report has been lodged promptly within 1 hour 50 minutes of the incident and the medical evidence corroborates the prosecution allegations of a fire having been made on the deceased when he was in a lying (recumbent) position, and P.W. 4, Dr. J. P. Bhardwaj, has stated that the deceased could have been fired upon when he was lying down. When there was an eye-witness account, simply because the prosecution has not been able to establish the motive, it is no ground for discarding the eye-witness testimony. There is no suggestion to P.W. 2, Yuddhavir, that he could not see the incident from the place where he was standing. If the police has failed to collect the blood from the spot or there were some variations in the distance of the place of occurrence from the police station in the inquest and the check F.I.R., these are mere defects of investigation and the accused should not be acquitted on this ground. Moreover, there is no reason for false implication of the accused.

Learned Counsel for the Respondent has, however, vehemently defended the findings of the trial Judge for acquitting the accused-Respondent.

In the light of the submissions of the parties and after close perusal of the judgment and the evidence of this case, we propose to evaluate the significant reasons mentioned by the trial Judge for acquitting the accused.

The first ground for acquitting the accused-Respondent given by the trial Judge was that the F.I.R. appeared to be ante-timed. The reasons for reaching this conclusion were that the report was lodged too promptly at 11.50 a.m. when the incident had allegedly taken place at 10 a.m. As according to the informant, when he reached the spot where the deceased, his son, was lying after he had been shot, he was breathing. Then he arranged for a bullock-cart and on his way to the police station the deceased breathed his last on the bullock-cart. After that he left the dead body on the bullock cart in the care of his wife and proceeded to the police station which was at a distance of 6 km. on a horse-cart which took him 30 minutes to reach there. As, he first arranged for the bullocks and got the bullock-cart ready, and then proceeded with the dead body part of the way and thereafter proceeded to the police station, reached there and then reported the matter to the Investigating Officer who then lodged the report, all of which according to the learned trial Judge, could not have been accomplished within a span of just one hour and fifty minutes.

Although in our view, it is not impossible for the witnesses to have reached the police station within one hour and fifty minutes of the incident, some of the other grounds mentioned by the learned trial Judge for reaching the conclusion that the report was not lodged on the date and time alleged, cannot be said to be unreasonable or perverse.

One such ground was that the inquest report specifically shows the distance of the police station as 3 km. in the relevant column whereas it is mentioned 6 km. in the check F.I.R. As the distance of the police station in the column of the inquest is normally copied out from the check F.I.R., and in this case when P.W. 3, S.I. Rajpal Sharma, who drew out the inquest was specifically questioned as to whether the check F.I.R. was available with him when he made the entries in the inquest, he admitted that he possessed a copy of the check F.I.R. at that time and he offered no explanation for this discrepancy. He also admits that the weapon of assault is not mentioned in the inquest and it is simply written that the cause of death was firing on the deceased even though the weapon was mentioned in the check F.I.R. This was one of the circumstances for reaching the inference that the F.I.R. was not in existence when the inquest was prepared. Furthermore, P.W. 3, Rajpal Sharma, also admits that in the challan-nash (Ext. Ka-6) the distance of the village Bhainsa from the police station, a blank space is left before the word ''km'', which also suggests that the F.I.R. and the check F.I.R. which gave out the distance as 6 km. were not in existence till then.

However, we would not have given much importance to the aforesaid discrepancies and could have imputed them to lapses in the investigation process for which no benefit should accrue to the accused, if we were satisfied with the sterling quality of the evidence on record.

Unfortunately, in the present case we are also of the opinion that the evidence on record, specifically in regard to the place where the witnesses claimed that the deceased was present at the time of the incident and thereafter on the chak road where his body was subsequently seen, the circumstances in which he came to lie at that spot, the place where the witnesses are said to be present, some of the inconsistencies of the eye-witness account regarding the ante-mortem injuries on the body of the deceased as noticed in the postmortem report go to suggest that the incident might not have taken place in the manner alleged and the witnesses may not be actual witnesses of the incident.

The discrepancy in the version as to whether the incident took place, is apparent from the conflicting statements given by P.W. 1, Bhkhtawar Singh and P.W. 2, Yuddhavir Singh, at different parts of their testimony. In his examination-in-chief P.W. 1, Bakhtawar Singh stated that the deceased Sudhir was lying under the mulberry tree when he was fired upon by the accused-Respondent. However, in his cross-examination he states that when he reached the place of incident, his son, the deceased Sudhir was lying on the chak road and blood had spilled there. The bullock cart on which the deceased was carried on for some distance was parked at 2 yards from where the deceased was lying. However, in his cross-examination, he again changes his statement and mentions that the deceased was fired upon when he was lying under the mulberry tree and after he received the shot he ran towards the chak road and fell there.

P.W. 2, Yuddhavir Singh, has, however, deposed that Sudhir, the deceased, was lying under the mulberry tree to the East of the chak road. Then this witness and his father, P.W. 1, Bakhtawar Singh, reached the place where the deceased was lying. In his subsequent cross-examination he does not mention that the deceased had got up and run towards the chak road but the version of this witness is that this witness help him by his arms and brought him to the place where he was lying on the chak road. Significantly, no blood was found under the mulberry tree and some blood is said to have been found on the chak road. But even this blood was not collected by the Investigating Officer.

Also, the nature of injuries on the deceased was a gunshot wound of entry 1.2 cm. x 1 cm. x chest cavity deep on the back of the right side of the chest whose exit wound was 2 cm. x 2.5 cm. on the left side of the chest just near the left nipple and apart from the fractures on the 4th, 5th, 8th and 9th ribs, the lungs, heart and blood vessels all were lacerated. After receiving such grave through and through injuries, it was not possible for the deceased to have got up after being fired upon whilst he was in a reclining position and to have reached the chak road where he was eventually said to have been lying. This point on the chak road has also not been shown in the site-plan.

There are also contradictions between the eye-witness account and the ante mortem injuries on the deceased as per the post mortem report.

P.W. 1, Bakhtawar Singh and P.W. 2, Yuddhavir, have both stated that the deceased was fired upon when he was lying. Furthermore, P.W. 2, Yuddhavir stated in his statement u/s 161, Cr. P.C. to the Investigating Officer that the deceased was fired upon on the chest, but it appears that as the exit wound was on the chest and the entry wound was on the back, in his cross-examination P.W. 2 has sought to adopt the version that the fire of the accused did not strike his brother on the chest although he admits that he had told the police that the fire had struck his brother on the chest.

Another inconsistency of the medical evidence with the eye-witness account is that both the eye-witnesses P.W. 1 and P.W. 2 had stated that all the three persons had taken their breakfast when they had left for the fields in the morning but the stomach of the deceased was found to be empty at the time of incident, i.e., at 10 a.m. on 6.6.1996. Although the circumstances taken alone might not have been so clinching as it was entirely possible that if the witness and the deceased had both left their house at 7 a.m. after a light breakfast, the stomach of the deceased might have become empty by 10 a.m., but cumulatively in view of the discrepancy about the place where the deceased was fired upon and the circumstances in which he was found lying on the chak road and not under the tree where he was fired upon, the presence of the entry wound on the back of the deceased, rather than on the chest, as per the version of the eye-witnesses, would go to suggest that the incident had taken place in some other manner and the eye-witnesses had not seen the incident. It is significant that no witnesses of the place of incident have come forward to give evidence in this case. P.W. 1, Bakhtawar, the informant, has conveniently taken the position that no one else was present and working at the place and time of incident.

Also, the motive for this crime has not been clarified at all in this case. In the F.I.R. it was simply stated that there was some 8 years old enmity because of which the accused-Respondent had fired on the deceased but what was this 8 years old enmity has not been clarified anywhere, although, it has been admitted by P.W. 1, Bakhtawar Singh, in his cross-examination, that in 1989 one Ravindra, son of Chandra Bhan, belonging to his village was murdered. In that murder case, Bakhtawar Singh, his son Yuddhavir, his brother Vikram and Vikram''s son Sanjiv were named as accused and the hearing of the case took place in the Meerut courts. But what was the relationship of the accused-Respondent with Ravindra son of Chandra Bhan has not been clarified anywhere. If the eye-witness account was of sterling quality, then absence of the motive would not have mattered, but in the present case where we have pointed out the significant discrepancies, absence of motive for this crime is also a factor to be taken into account. Although this query was not specifically put to the witnesses, but it has come in evidence that at the time of incident the sugarcane crop, which was standing in certain portions of nearby fields, was at least 8 to 10 ft. high though some part of the crop had been harvested and in such circumstances a doubt is raised as to whether the point where deceased was allegedly shot at under the mulberry tree was visible to P.W. 1, Bakhtawar Singh, whose field was to the south of the Mawana-Bhainsa road or from the point ''W1'' on the site-plan where P.W. 2, Yuddhavir, is said to have been running his tube-well was at least 6-paces from where the deceased was lying.

For all these reasons, we are of the view that it cannot be said that the grounds for acquitting the accused-Respondent are wholly unreasonable or perverse and that it is not possible to justify the view taken by the trial court for acquitting the accused. It is well-settled that there can be interference with an appeal against acquittal when only one view of the evidence can be taken, i.e., the one whereby a case for recording the conviction of the accused is disclosed, and merely because two views of the evidence may be reasonably taken provides no ground for interfering with an order of acquittal.

In this view of the matter, we find no merit in this Government appeal, which is accordingly dismissed.