Barin Ghosh, C.J. -
(1.) AT around 6:30 a.m. of 6th June, 2003, a First Information Report, written by PW2 on the information supplied by PW3, was lodged with the Police Station, where it was alleged that four persons, named in the First Information Report, have shot dead three people in the house of PW3. Persons, who were named as accused in the First Information Report, are respectively Vipin, hereinafter referred to as A -1, Surendra Singh, hereinafter referred to as A -2, Kartar Singh, hereinafter referred to as A -3, and Neetu, hereinafter referred to as A -4. First Information Report, thus, lodged led to investigation, whereupon a charge sheet was filed against A -1, A -2 and also against Rishipal, hereinafter referred to as A -5 and Sanjay, hereinafter referred to as A -6, for having committed crime punishable under Section 302 read with Section 34 of the Indian Penal Code, and other provisions of law. In the charge sheet, yet another person was named as accused, who has been exonerated, namely, Kunwar Singh, hereinafter referred to as A -7. Charge against A -7 was for the offences punishable under Section 120B read with Section 302 of the Indian Penal Code. A -1, A -2, A -5, A -6 and A -7, having denied the charges, thus, framed, trial commenced. In course of trial, amongst others, Inquest Report was proved and Recovery Memos of four country made pistols and Recovery Memos of five empty shells of.314 bullets were proved. Doctor, who conducted the post mortem of the victims, proved the Post Mortem Reports prepared by him after conducting such post mortem. In that, he stated that the deaths have occasioned because of firearm injuries. Prosecution insinuated that such firearm injuries were caused by using the recovered four country made pistols. In order to establish that those four country made pistols were used for commission of the offences alleged, prosecution relied upon a Ballistic Report given by the Assistant Director, Forensic Science Laboratory, Agra. In that Report, it was alleged that some of those empty shells, recovered from the spot, were used from three of those recovered pistols. In the Report, it was stated that none of those empty shells was used from the pistol recovered at the pointing of A -6. Although in view of Section 293 of the Code of Criminal Procedure, it was not necessary to call the maker of the said Report to depose before the court, but however, prosecution thought it fit that the maker of the said Report, namely, the Assistant Director, Forensic Science Laboratory, Agra, should be examined as a prosecution witness. The said witness stated that examination of the recovered pistols and comparing them with the empty shells were made by some other person and whatever was opined by that other person was reflected by him in his Report. Neither in the Report any attempt was made, nor in course of evidence, Assistant Director, Forensic Science Laboratory, Agra made any effort to convince the court below that there is a known methodology, by which a Ballistic expert can gather, whether an empty shell was used by a particular pistol. The fact remains that the prosecution accepted that those pistols were capable of firing only.315 bullets and nothing else. There appears to be also no dispute that the prosecution accepted the fact that the recovered empty shells were of.315 bullets. At the same time, neither the Post Mortem Report, nor the Doctor, who proved the Post Mortem Report, uttered a single word about embedment of any.315 bullet in any of the three dead bodies. The police did not recover any such.315 bullet from the place of occurrence, nor produced the same before the court below as material evidence. No.315 bullet, said to have been fired from the recovered empty shell, was at the same time sent to the Forensic Science Laboratory, Agra. Where then those bullets go?
(2.) THE case of the prosecution before the court below was that the son of PW3 married against the wishes of the father of his wife, and that the marriage was inter -caste. It was contended that in view of the said marriage, father of the daughter -in -law of PW3, namely, A -7 got enraged and, first, tried to persuade his daughter to return and, failing to succeed in obtaining her return, caused the carnage. It was contended that A -7 took the assistance of A -1 and A -2 to persuade the daughter of A -7 to return and, thereafter, when he failed to obtain such return, he caused the carnage with the assistance of A -1, A -2, A -5, A -6. It was the case of the prosecution that while A -1 visited the house of PW3 for the above purpose many a times, A -2 accompanied A -1 at one time on a previous occasion. It was the case of the prosecution that on the fateful date, while A -1, A -2, A -5 and A -6 came to the house of PW3, A -1 called A -5 and A -6 in the names of A -3 and A -4. It was the case of the prosecution that in course of investigation, it transpired that A -1 and A -2 belong to a different gang, whereas A -3 and A -4 belong to another gang. There is enmity in between those two gangs. In course of investigation and later in course of prosecution, the State was convinced that while committing such a gruesome crime in order to involve A -3 and A -4 with the crime, A -1 called A -5 and A -6 in the names of A -3 and A -4. It was the case of the prosecution that after the investigation, thus, progressed, on the disclosure of A -1, A -5 and A -6 were located, whereupon the investigator was convinced about involvement of A -5 and A -6 by carrying out Test Identification Parade of A -5 and A -6. In short, the case of the prosecution at the trial stood as that on the date of incident at around 6 a.m. in the morning, A -1, A -2, A -5 and A -6 came to the house of PW3 and after PW3 went to make tea for them, they opened fire on the husband of PW3, her son and her daughter -in -law, which killed all of them and, thereafter, they fled. Prosecution has brought on record, by tendering evidence, that the house of PW3, where the carnage took place, is situate amongst a cluster of houses surrounded by a wall having a common entrance, which is gated. It has also come on evidence that the Chaukidar, who manned the gate, on hearing the sound of firing, immediately rushed to the nearby Police Chauki, whereupon the police came. Prosecution has also brought on record, by tendering evidence, that the people, living in the nearby cluster of houses, also gathered on hearing the sound of firing. One of them was PW16. No other neighbour deposed on behalf of the prosecution. Chaukidar also did not depose in support of the prosecution. Therefore, if the evidence tendered by PW3 is to be believed, then in furtherance of the conspiracy hatched by A -7 or at his instigation, A - 1, A -2, A -5 and A -6 entered the boundary surrounding the cluster of houses either through the gate or by jumping over the gate or the surrounding wall, they then went to the house of PW3 caused firing resulting in carnage and left, and while leaving, they did not leave the house of PW3 alone, but also left the walled area, where the cluster of houses were situate, again either through the gate or by jumping the gate or the surrounding wall. Prosecution did not make any effort to establish the same by tendering any evidence. Therefore, the only piece of evidence available to the prosecution as regards the presence of A -1, A -2, A -5 and A -6 at the place of carnage and of commission of the carnage is based on the oral evidence of PW3 supported by the oral evidence of her daughter PW2. PW2 stated that she went up to inform one Mr. Joshi, who did not depose, and thereafter she became unconscious and regained consciousness after two seconds, when other people had arrived. PW3 ascribed no independent motive of A -1, A -2, A -4, A -5 and A -6 for the incident complained of. According to her, they were inspired by A -7 to cause the incident, inasmuch as, A -7 was enraged by reason of his daughter marrying outside the caste to the son of PW3. For the reasons recorded in the judgment under appeal, A -7 has been exonerated not only of the charge punishable under Section 302 of the Indian Penal Code but also of conspiracy, an offence punishable under Section 120B of the Indian Penal Code. In respect of that part of the judgment under appeal, PW3, though could, but did not evince any dissatisfaction, with the knowledge of the fact that the State has not preferred any appeal against that portion of the judgment. In the circumstances, the conclusion to a prudent person, informed of the materials brought on record by way of evidence, would be that the prosecution has failed to establish motive of A -1, A -2, A -5 and A -6 to commit the crime alleged; there is failure to corroborate the contentions of PW3 and PW2 that A -1, A -2, A -5 and A -6 were present at the place of occurrence and, in fact, they fired upon; even if they fired upon and even if they fired through those country made pistols, which were recovered at the pointing of A -1, A -2, A -5 and A -6, the same did not leave a mark of such firing, either in the dead bodies or at the place of occurrence as the bullets said to have been fired were not found; and lastly there was no evidence of A -1, A -2, A -5, and A -6 entering the walled cluster of houses, and as such it cannot be concluded that it was A -1, A -2, A -5 and A -6, who committed the crime alleged and no other conclusion in the facts and circumstances of the case is possible.
(3.) IF that is the conclusion, then we have no other option but to interfere with the judgment and order under appeals, except that part whereby A -2 had been sentenced for one year imprisonment under Section 25A of Arms Act. We, accordingly, allow the appeals and set aside the judgment and order under appeals except that part. A -1 and A -2, namely, Vipin and Surendra Singh are in custody. The custody of A -2 is more than one year and accordingly he has completed his term of imprisonment as upheld. They be set free forthwith. A -5 and A -6, namely, Rishipal and Sanjay are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. Let a copy of this judgment be sent to the court below along with the lower court record with a direction upon the court below to ensure setting free of Vipin and Surendra Singh forthwith, as directed above.;