V. K. Mehrotra, J. - (1.) THE State of U. P. has filed this appeal against the judgment dated September 29, 1973 of the 1st Temporary Sessions Judge, Hamirpur acquitting Laxmi, Biranchi, Thakurdin, Raghunath, Sewa Ram, Dina alias Din Dayal, Ashaiyan alias Ashadin, Achey Lai, Ganesh, Bhagona alias Bhaggu, Uttam, Pratap, Kandhilal, Bassu alias Jagmohan, Narain and Hardayal in Sessions Trial No. 58 of 1973 in which they were variously charged for having committed offences punishable under Sections 147, 148, 302/149, 323/149 325/149 or the alternative under Sections 324/149 IPC.
(2.) BEREFT of unnecessary details, the prosecution case was that two days before the date of the incident, namely, March 21, 1972, Smt. Saroj, sister of deceased Hari Das, had gone to a pond far taking bath where she had altercation with the wife of accused-opposite party, Ganesh. Later, sometime before the incident giving rise to the present case on March 21, 1972 Smt. Saroj forbade the wife of Ganesh from passing through, the field of deceased Hari Das, upon which she said that she would pass over the head of Smt. Saroj. Sometimes thereafter, deceased Hari Das and his wife Smt. Lilawati as well as his sisters Smt. Saroj and Smt. Ram Murti together with one Wafatan and Ratib Behna went to cut the wheat crop of their field known as 'Mahwa wala Khet'. In the after-noon at about 4 or 5 P. M., accused-opposite party, Laxmi, who was armed with a lathi, came in a tractor over which were seated accused- opposite parties Biranchi (armed with a gun), Thakurdin and Raghunath (both armed with lathis) and the remaining accused-opposite parties were seated in a trolley which was attached to that tractor. Of them, Narain Das was armed With a gun, Pratap with a country-made pistol, Kandhi and Uttam with axes, Bhaggu alias Bhagauna was armed with a pharsa, Bassu and Ganesh were armed with Bhala and Ballam, Sewa, Dina, Ashaiyan, Achchey Lal and Har Dayal were armed with lathis. Since these persons wanted to take their tractor over the KIRPAS of the cut crop of the deceased which was lying in the field of Hari Das (deceased) and Smt. Saroj asked them not to do so, Biranchi got down from, the tractor and fired the gun at Hari Das who received injuries. The remaining accused-opposite parties also came down and started beating Hari Das. Pratap also fired at Hari Das with a pistol. Smt. Saroj, Smt. Ram Murti and Smt. Lilawati sustained injuries as they were assaulted by the accused persons when they went to rescue Hari Das. Thereafter, the accused opposite parties went back towards the village on the tractor. Hari Das, who had been seriously injured, was taken to the Rath Hospital by his father Baiju as well as his sisters Smt. Saroj and Smt. Ram Murti and his wife Smt. Lilawati. Early in the morning between 10.12 A.M. a4d 2.00 A. M. on March 22, 1972, the injured persons were examined by Dr. R. N. Jaidka Medical Officer of the Rath Hospital and large number of injuries were found on their person. The injury reports prepared by the doctor were proved during the trial as Exhibits Ka 2 to Ka 4. On return from the hospital, Smt. Saroj went to P. S. Majhgavan accompanied by her father, Baiju as well as Shanker Pradhan and Chunnoo Chowkidar and lodged a first information report at about 1.10 P. M. on March 22, 1972. In this report, the names of opposite parties, Narain Das and Har Dayal were not included amongst the accused- appellants nor was that of opposite party Kandhi so included. Finding the condition of Hari Das unsatisfactory, the Medical Officer of Rath Hospital called P. W. 8, Ram Narain Srivastava, Tahsildar Magistrate who recorded a dying declaration (Ext. Ka. 17) of Hari Das the same night. The recording of his dying declaration started at 0.30 A. M. and continued till 1.10 A. M. During this period, the doctor was himself present and appended his certificate (Ext. Ka 7) on the dying declaration certifying that Hari Das had been in a fit condition and in his senses throughout the period that the dying declaration was recorded. In this dying declaration, the names of opposite parties, Har Dayal and Narain Das were also mentioned as accused while those of opposite parties, Thakur Din, Raghunath, Ganesh, Bhaggu, Uttam, Ashaiyan, Kandhi and Bassu who figured in the first information report amongst the list of the accused was not mentioned. Hari Das who was taken to Kanpur for further treatment died there in the morning of March 23, 1972 before he could reach the hospital. The Medical Officer of Rath Hospital (Dr. R. N. Jaidka) conducted the post mortem examination on the dead body of Hari Das at 7.15 A. M. on March 24, 1972 and he found the following ante mortem injuries on his person : On internal examination, it was found by the doctor that there was a lot of clotted blood in the scalp under the external injuries, and the brain and membrances were congested. It is unnecessary to mention further details of the post mortem examination. The investigation of the case was done by P. W. 6, Kanhaiya Pandey who eventually submitted the chargesheet (Ext. Ka-15) against the accused-opposite parties on April 29, 1972. The defence of the opposite parties was one of denial of the charges levelled against them and of their participation altogether in the incident. They attributed their implication to the case on account of enmity. In proof thereof they filed three papers (Ext.Kha-6 to Kha-8).
(3.) AMONGST the witnesses produced by the prosecution in support of its case, at the trial were P. W. 1, Smt. Saroj, P. W. 2 Smt. Ram Murti, both sisters of the deceased and P. W. 3 Smt. Lilawati, his widow, as eye witnesses of the incident who had also sustained injuries; during it. Smt. Saroj who had lodged the first information report gave out the details of the incident and was corroborated by her sister, Smt. Ram Murti and Smt. Lilawati, the widow of the deceased. Besides, the other witnesses whose testimony may be said to be of importance to the prosecution are P. W. 4, Dr. R. N. Jaidka who had examined the injured persons and had conducted the postmortem examination on the dead body of Hari Das after his death and who was the Medical Officer of Rath Hospital who has recorded a certificate on the dying declaration of deceased, Hari Das. P. W. 8, Ram Narain Srivastava is the Tahsildar Magistrate who has recorded the dying declaration at Rath Hospital. The testimony of the other witnesses is of a formal character. The Trial Judge did not find the testimony of the three eye-witnesses such on which implicit reliance could be placed and noticed in his judgment the infirmity with which the testimony of each of these witnesses suffered. He also came to the conclusion that it was difficult to place reliance on the dying declaration of Hari Das. Consequently, he acquitted the accused-opposite parties by the judgment under appeal. Having heard the learned Deputy Government Advocate at some length, we are of opinion that the present appeal must fail. The evidence about the complicity of the opposite parties in the incident resulting in the death of Hari Das in the main consists in the oral testimony of the three ladies and of the dying declaration (Ext. Ka.-17). P. W. 1 Smt. Saroj is the reporter. In the report (Ext. Ka-1), she had mentioned that the opposite party, Biranchi, had fired a single shot with the gun of opposite party, Narain Das. This version was adhered to by her and the other two eye-witnesses during the course of the investigation. Subsequently, at this stage of the trial and presumably, in view of the testimony of Dr. R. N. Jaidka in the court of the committing Magistrate in which he had stated in the cross-examination that more than one shot would have been fired at the deceased, the eye-witnesses came out with the case that apart from the shot which had been fired by the opposite party Biranchi, another shot was fired at the deceased by opposite-party Pratap. This version of two shots having been fired at the deceased was not only inconsistent with the version given out by the reporter and the other two eyewitnesses at the earlier stages but also with the statement of the deceased, Hari Das, in the dying declaration (Ext. Ka-17) in which as well there was no mention of any shot having been fired with his pistol by opposite party, Pratap. Quite clearly, this was improvement made by the eye-witnesses at the trial stage and shakes their veracity. We are inclined to agree with the trial judge that even the version that a shot was fired by opposite party Biranchi with the gun and the other by opposite party Pratap with his pistol does not appear consistent with the gun shot injuries found on the person of the deceased and the posture in which the deceased is said to be lying at the time when the second shot was fired. It is not necessary for us to repeat the various reasons for coming to this conclusion given by the trial Judge with which we fully agree. We also find that there is difference in the version given out in the first information report and later at the trial in regard do the cause giving rise to the incident in which deceased, Hari Das and the three ladies sustained injuries. From the first information report it appears thai; the reporter, Smt. Saroj and his brother, Hari Das protested when the opposite parties wanted to take the tractor through the field of the deceased but from this version given out in the dying declaration (Ext. Ka-17) of deceased, Hari Das, it appears that the incident was preplanned. There is also diversity in the testimony of the injured witnesses about what actually happened at the pond and about the date on which it happened. The names of opposite parties, Har Dajyal and Narain Das are not to be found in the first information report and, in fact the name of the latter was not disclosed even to the Investigating Officer by any of the eye-witnesses. Subsequently, when the name of opposite party, Har Dayal was mentioned by the deceased in the dying declaration, the eye-witnesses included him also amongst the accused in their deposition in the trial court. It is obvious that the witnesses have been giving inconsistent version about the participants in the incident. The circumstance that members of several families are said to be involved in the assault on the deceased and the three ladies even though the prosecution version discloses enmity of the family of the deceased only with the family of opposite party Ganesh and his father Narain Das is yet another reason to doubt the veracity of the version given by the eye-witnesses. More so, when the prosecution has not brought any thing on the record to show as to why the opposite parties belonging to various families came together and joined the assault on Hari Das and his family members. Inordinate delay in the lodging of the first information report when viewed in the aforesaid background indicates that it does not contain true facts which may add to the veracity of the prosecution version.;