Sukhdev and Others vs State of U.P.

Palok Basu, J.—Sukhdeo, Lalloo Singh and Badkoo Singh have filed this appeal against their conviction u/s 302/34 IPC and sentence of imprisonment for life awarded to them by the Additional Sessions Judge, Hamirpur, vide his judgment and order dated 23-11-1978 in Sessions Trial No. 214 of 1977.

The charge against the there accused was that on 13-6-1977 all of them in furtherance of their common intention committed the murder of Sukha Singh son of Sundar Singh of village Sayar, Police Station Banwar district Hamirpur.

The case for the prosecution was that Lalloo Singh and Badkoo Singh, who are brothers, and Sukhdeo Singh formed a party and there was an altercation concerning the children�s playing on the preceding day and the accused had threatened the deceased that they would kill him because of his intervention in the said quarrel. On 13th June, 1977, around 8 A.M. the deceased along with his son Dig Vijay Singh, who alleges himself to be the informant also, were going to village Muskara, When they were close to the Verandah of one Vishwa Bhushan where Sukhdeo and Lalloo were sitting and Badkoo accused was sitting in the verandah of Jagram Singh which was too close, as soon as Sukha Singh deceased reached that place Sukhdeo Singh struck him with a lathi on his head. Lalloo Singh fired two shots from his country-made pistol as a result of which Sukha Singh fell down on which Badkoo Singh struck spear injuries. On a hue and cry being raised, Badri Prasad PW 2 and his father-in-law S.N. Gupta PW 4 reached the place of occurrence. Seeing them, the accused ran away.

The case for the prosecution further is that the informant Dig Vijay Singh PW 1 took his father to Maudaha Hospital and got him admitted at about 9-10 A.M. His Medical examination was done at the hospital by Dr. Shyam Mohan Krishna PW 10, the then Medical Officer at Maudaha Hospital, on 13-6-1967 at 10 A.M. He found the following injuries :

Lacerated wound 5-1/2 cm. x 1 cm. x muscle deep, placed vertically, a left side of parietal region of scalp about 11 cm. about the left ear. Margins were crushed and jagged. Profuse bleeding present : swelling and tenderness were present.

Firearm wound 4 cm x 4 cm with multiple holes in the area placed on back, left near the lumber region about 16 cm. away from the anterior superior iliac spine of left side and 1 cm. lateral to mid-line on left side. It was cavity deep. Blackening and tattooing were present. Fresh and profuse bleeding was present.

Wound of entry-Four pellet wounds placed in an area of about 8 cm. x 6 cm. placed in left side of left iliac fossa and upper part in lumber region. No blackening and tattooing. Pellets were cavity deep. Wounds were about 1/2 cm. x 1/2 cm.

4 Two pallet wounds 1/2 cm- x 1/2 cm. placed in supra pelvic region. No blackening : wounds are muscle deep. Retention of urine was present.

Penetrating wound 1-1/2 cm. x bone deep, placed on posterior aspect of left leg upper part. Margins clear cut and well defined.

Penetrating wound 1 cm x 1/2 cm. x bone deep, placed just below the left knee on anterior aspect of left leg, upper part.

Penetrating wound 1 cm. x 1/2 cm. x bone deep, placed on medial side of left patella Margins were clear-cut and well defined.

The doctor had found that the patient was in severe shock and his pulse was not palpable; blood pressure was also not recordable. The patient was perspiring excessively. Looking at the serious condition, the Medical Officer referred the matter to the District Hospital Hamirpur.

The further case of the prosecution is that in the Maudaha Hospital the dying declaration of Sukha deceased was recorded by Mani Ram Singh PW 7 who was the then Tahsildar Magistrate. Translated into English the said dying declaration will read as under :

The Police Station of my village is Benwar. Today around 9 A.M. I was going to Muskara. I had proceeded about 10-20 lathis from my house when saw Sukhdeo Ahir and Lalloo Thakur and Badkoo Thakur, sons of Jagannath, I was hit with a lathi by Sukhdeo, Lalloo fired country-made pistol and Badkoo beat me with Barchhi (a type of spear). Two firings from the country-made pistol were resorted to. On being hit by the firearm-shots 1 fell down.

The case of the prosecution proceeds that while the deceased was being taken to the District Hospital Hamirpur, he died on way and his dead body was brought to the District Hospital, Hamirpur, around 12 noon. Dig-Vijay Singh went to Police Station Kotwali, Hamirpur, and dictated a first information report at the said Police Station. Kamal Prasad PW 9 was the constable muharrir at the Kotwali Police Station who received the F.I.R. and registered a case in the General Diary vide Ex. Ka-3. The said F.I.R. has been marked as Ex. Ka-1 by the trial Judge. Since the matter related to Police Station Benwar the F.I.R. and the General Diary entries were sent to Police Station Benwar through a constable and was received at Police Station Benwar by a clerk-constable Sheo Kumar Misra PW 3 at 4.45 P.M. the same day which was marked as Ex. Ka-2. Sewak Ram Yadav PW 6 was the Station Officer, Police Station Benwar and took up the investigation then and there. He recorded the statements of witnesses, namely, Satya Narain, Chandra Kali, Badri Prasad and Ors. : prepared a site plan after inspecting the spot and made recovery of blood stained and sample earth. On 14-6-1977 he recorded the statement of Dig Vijay Singh. The remaining part of the investigation was done by Ram Parshan Singh who took the statements of the accused and submitted the charge sheet (Ex. Ka-8) before the magistrate who after due committal proceedings, sent the case for trial before the court of Sessions who convicted and sentenced the Appellants as mentioned above.

The Appellants pleaded not guilty and denied having participated in the incident or having assaulted the deceased and attributed their false implication due to enmity and suspicion. They had, however, not examined any witness in defence.

Before discussion of evidence begins, it may be relevant to quote the ante-mortem injuries found by Dr. T.D. Singh PW 5 on the dead body of Sukha Singh :

Gun shot wound of entry 2-1/2 cm. x 2-1/2 cm. x abdominal cavity deep on the left back, 2-1/2 cm. to the left of the upper lumber spine. Margins inverted. Direction back to front and slightly downwards.

Gunshot wound of entry 1 cm. x 1 cm. x abdominal cavity deep. Margins inverted. It is located 0.5 cm. above the wound No. 1. Direction same as of injury No. 1.

Gunshot wound of entry 1 cm. x 1 cm. x abdominal cavity deep. It was 1/2 cm. medial to injury No. 2. Margins inverted. Direction same as of injury No. 1 and 2.

Gunshot wound of entry 1 cm. x 1 cm. x abdominal cavity deep, 1 cm. to the right of the spine on the same level as injury No. 3. Margins inverted. Direction same as above.

N.B. : These above 4 wounds appeared to have been caused by one fire. Surrounding of the wounds were sparsely tattooed.

Gun shot wound of entry 1 cm x 1 cm on the medial aspect of the left knee. The shot travelled in the muscle plane and found lodged in the lower 1/3 of the left thigh. Direction below upwards. Margins inverted.

Gun shot wound of entry 1/2 cm. x 1/2 cm. x muscle probing of left leg deep on upper 1/3. It is located in front of the left leg, 4 cm. below the left leg. Margins inverted. Direction from below upwards to back downwards.

Gun shot wound of exit of No. 6 size 1 cm. x 1/2 cm. x No. 6 deep on the back of left leg 1/3. Margins averted and lacerated.

Gunshot wound of entry in the left groin 1 cm. x 1/2 cm. x muscle deep, margins inverted. Direction below upwards shot found on the left leg muscle.

Gunshot wound of entry 1 cm x 1/2 cm. x abdominal cavity deep on the suprapubic region in the mid line. It is 10-1/2 cm. below the umbilicus .Margins inverted. Direction from below upwards and backwards. The shot found lodged in bladder on its posterior wall.

Gunshot wound of exit 1-1/2 cm. x 1- x abdominal cavity deep left side of the abdomen, 4 cm. above the left iliac crest. Margins averted and lacerated. It is corresponding to injury No. 1.

Gunshot wound of exit 1-1/2 cm. x 1 cm. x abdominal cavity deep, left side of the abdomen, lower part. It is 3-1/2 cm. above the left iliac crest. Margins averted and lacerated. It appeared to communicate with injury No. 2.

Gunshot wound of exit 1-1/2 cm. x 1 cm. x abdominal cavity deep left side of the abdomen, 3 cm. above the left iliac crest. Margins averted and lacerated. It appeared to communicate with injury No. 3.

Lacerated wound 5-1/2 cm. x 1 cm. x muscle on the left side of the scalp, 11 cm. above the left ear.

N.B. : Wadding material found in the back of injury No. 1 below the descending colon. Four gunshot wound below the skin on the left wall of abdomen above left iliac crest.

We have heard Sri Vijay Bahadur Singh and Sri D.P. Singh, Learned Counsel for the Appellants and Sri Prem Prakash, learned Additional Public Prosecutor, for the State and examined the materials.

11 Two points have been urged in support of this appeal. Firstly, there is vital contradiction in the injury report and the post mortem examination report. There are reasons to suggest that the doctor who initially examined the injuries at Maudaha Hospital did not make a correct assessment of the actual injuries suffered by the victim under unknown circumstances but all the same, it was his opinion which was, in all probability, passed on to the victim as also to the informant who reached the place much later so as to concoct a first information report in line with the suggestions advanced by the said doctor. The post mortem examination report completely belies the story set up through the F.I.R. and the dying declaration and, therefore, the entire prosecution case should be thrown out. Secondly, there was no occasion for either Dig Vijay Singh PW 1 or Badri Prasad PW 2 and Satya Narain Gupta PW 4 to be present at the site and, therefore, their testimony should be discarded altogether. Apart from the probabilities, their statements as divulged in court are contradictory to the medical evidence and they being highly interested and partisan, the independent testimony coming from the post mortem report should be believed and therefore, the eye-witness account should be discarded.

After giving our anxious consideration to the entire matter it does appear true that in this case there is vital contradiction between the oral account of the incident and the ante-mortem injuries said to have been sustained by the deceased as recorded in the post mortem report. But before coming to its discussion, a word must be said about the dying declaration said to have been recorded by the Tahsildar Magistrate, PW 7 Sri Mani Ram Singh. He is very emphatic in his statement that before he went into the room to record the statement of the deceased there were a number of outsiders present. On his reaching the said place he asked those outsiders to go away and then proceeded to record the dying declaration. Similarly, the statement of Dr. Shyam Mohan Krishna PW 10 is also very important on this aspect of the matter. It is strange that in the statements before the court he says that he had examined the injuries of the victim prior to getting recorded his dying declaration but the document shows that it was recorded at 9-45 A.M while the medical report prepared at the medical examination of Sukha states that it was prepared at 10 A.M. There is absolutely no explanation for this contradiction Assuming that it may be a so-called technical error, the fact nonetheless remains that there is no other method to judge the correctness of the statement of the doctor that medical examination had really preceded the statement of the victim. Admittedly, soon after the recording of the statement, the victim expired. His condition was noted to be extremely poor at the time of his having been brought to Maudaha Hospital. Consequently, we have to be on guard in order to examine the said dying declaration. In this very connection the doctor himself says that after the medical examination was done he had conveyed his opinion to two or three persons who had been accompanying the deceased. Tne Learned Counsel for the Appellants rightly connected this statement with that of the Tahsildar Magistrate and argued that the so-called opinion as to the nature of the injuries was formed and passed on by Dr. Shyam Mohan Krishan who, in turn, impressed upon the informant or somebody else as to the nature of weapons and, therefore, a false first information report was lodged at the behest of PW 1 Dig Vijay Singh.

Voluntariness of the dying declaration is the only basis on which it can be relied upon against the accused in such serious cases as the instant one. If the least embellishment is possible, the dying declaration cannot and should not be relied upon. In the instant case, however, there is another infirmity in the said dying declaration. The deceased nominates one accused as using a spear to kill him. He is sure about it but the post mortem examination report indicates complete absence of any spear injury. The Learned Counsel for the Appellants is, therefore, again right when he says that the FIR also appears to be in line with the dying declaration which, again, must be discarded for the simple reason that even though Dig Vijay Singh incorporates therein the statement that Badkoo Singh Appellant had pounced upon the deceased with the spear but, in fact, there is no spear injury found by the doctor conducting the post mortem examination. In view of this discussion we are not prepared to place implicate reliance upon the dying declaration .

Coming to the eye-witness testimony the very presence of Dig Vijay Singh PW 1 smacks of foul play. He proceeds to say that suddenly his father, the deceased Sukha Singh, had thought of going to his sister�s place in another village Muskara. The informant had not been told about it earlier. While on the way it so transpired that the deceased Sukha Singh was not carrying any money and he passed on this information to the son that he must arrange some money for him. In cross-examination Die Vijay Singh PW 1 has stated that while leaving his house his mother had told him that some money should be demanded from one of the goldsmith as loan. It has further been admitted in cross-examination that the deceased�s family had 60 or 70 bighas of cultivable land. We fail to under stand how and why under such circumstances the deceased should leave the place empty-handed and tried to go to a Bus Stand with no money in his pocket and then suddenly telling his son on the road to borrow some money so that the son accompanies him to some distance. Our reaction to the said story is that the presence of Dig Vijay Singh PW 1 has to be secured some how at the so-called place of occurrence and that is the only reason why such improbable story has been put into the mouth of Dig Vijay Singh PW 1. Moreover, the infirmity in his statement as regards the weapons of assault and the injuries sustained exists. Though he has tried to improve his case in the statement by denying the fact as to whether specific blows of spear landed on the deceased or not. We are of the opinion that such an attempt on his part is as futile as the attempt on the part of the deceased to make dying declaration nominating a man hitting him with spear but no spear injury is to be found.

Another note able factor about his presence at this very place must be dealt with. The Learned Counsel for the Appellants argues that had the son been so close to the deceased there was every likelihood of his receiving some injuries. If there was any motive for the accused Appellants to cause the death of Sukha Singh the same motive was extendable to Dig Vijay Singh also. His remaining scot-free and not receiving a single injury indicates his absence. Clearly, it should have been in the fitness of the things that he should have been dealt with in the manner as his father was. However, the fact remains that the testimony of Dig Vijay Singh PW 1 is vitally contradicted by the medical evidence and, therefore, it is not safe to place reliance upon his testimony.

The other two eye-witnesses namely, Badri Prasad PW 2 and Satya Narain Gupta PW 4 are interrelated, being father-in-law and son-in-law. It has come in the evidence of these two witnesses that but for them no other person had come to the place of occurrence The only reason for this being present at the place of occurrence was suggested to be the sound of the first firing. They too attribute role of using spear to Badkoo Singh Appellant which is contradicted by the medical evidence. In this connection another vital aspect of the matter was raised by the Learned Counsel for the Appellants. It was stated that in view of the statement of Dr. T.D. Singh PW 5 there are obviously more than two gun shot injuries on the person of the deceased Attention of the Court was drawn to the statement of the said doctor which reads as under :

Chot Number 1 Lagyat 4 Ka rukh ek hi jaisa hai Chot number 6 wa 9 ka rukh ek jaisa hai..............Chot number 5 wa 8 ka rukh ek hi hai......... Ek rukh Rakhnewali choten hain, wah ek fire se bhi aa Sakti haih.................Ek hi fire say aanewali choton ka rukh ek sa hi hoga................... Kul Chotey Ek sey Adhik Fair Dwara Aai Huan Lekin Enme Tin Rukch Ki Chotey hain. Main vah Nischit Nahin Bata Sakta ki Yash tin Rukh ki Choten kitney fair Dwara Aai Hain. Choten 1 Lagayat 4 Ek Rukh Ki Hain. Yah Charo Chotey pas pas Hain. Yah Choten 3 semi x 3 semi key area men Hain. Doosrey Rukh ki Chotey 5 wa 8 Hain Jo Ki 40 Semi Narth Saoth ki Doori par Hain Teesrey Rukh ki Choten 6 wa 9 Hain Jinki Ueech Ki Doori Karib 50 Semi Hai.

Mai Uprokt Choton Ka Diagram Banakar Dakhil Kar Raha Hoon. Esper Merey Hasthkhshar Hain.

Prashn : Kiya Choten 5 wa 8, 6 wa 9 Ek Fair Sey Aa Sakti Hain. Uttar : Main Balistic expert Nahin Hoon Es Liya Main Koi Nischit Rai Nai Dei Sakta Hoon. Waisey En Choton Key Rukh Alag Aiag Hain. Uprokt Charon Choton Men Koi Kalima Wa Taitooing Nahin Hai.

Translated into English the above statement would read like this :

Injury No. 1 to 4 are having one direction.................... The Injury No. 6 and 9 are having one direction... The injury No. 5 and 8 are having one direction. Those injuries which are having one direction, they can be caused by one fire ............ The direction of the injuries caused by one fire should be similar. All the injuries are caused by more than one shot. But the injuries have three directions. I can not definitely say how many fires these three directioned injuries were caused. Injuries Nos. 1 to 4 are towards one direction. These injuries are close to each other in an area of 3 cm. x 3 cm................................. The injuries No. 5 and 8 are of different direction, situated at a distance of 4 cm. north-south.

The injuries nos. 6 and 9 indicate a third direction situated at a distance of 50 cm.

I am filing the diagrame of the above injuries. It bears my signature.

Q. Can injuries 5 and 8, 6 and 9 be caused by one fire ?

A. �I am not a Ballisting Expert. Therefore, I can not give any definite opinion. However, the directions of these injuries are different. There is not blackening or tattooing in the aforesaid injuries.

We have given our anxious consideration to this matter also. There is no doubt that injuries nos. 5 and 8 have entirely different direction than injury nos. 6 and 9 and so are injuries nos. 1 to 4. The result, therefore, is that it can not be definitely said that injury nos. 6 and 9, and, 5 and 8 were caused by only one gunshot. There is, however, no dispute that injury Nos. 1, 2, 3 and 4 were caused by one shot. Consequently, there is every likelihood that the deceased had received the gunshot injuries as a result of three or four firings and not two firings only as is the case of the prosecution. Moreover, the participation of any accused using a spear is ruled out.

In view of the discrepancy the statements of Badri Prasad (PW 2) and Satya Narain Gupta (PW 4) lose all importance being contradicted by the medical evidence This criticism may be available to further diminish the value of the informant�s (Dig Vijay Singh) statement.

In view of the aforesaid discussions the prosecution has failed to prove the case beyond reasonable doubt against the Appellants who are entitle to get its benefit.

Consequently, the appeal is allowed. The conviction of the Appellants u/s 302/34 IPC and the sentence of imprisonments or life to each of them are set aside. They are on bail. They need not surrender and their bail bonds are discharged.