BALA KRISHNA NARAYANA,J. - (1.) Heard Sri S.V. Singh, Amicus Curiae for the appellants, Sri J.K. Upadhyay, learned AGA assisted by Smt. Manju Thakur, State Law Officer.
(2.) This criminal appeal has been preferred by appellants Chandrika alias Jokar and Kalloo against the judgment and order dated 25.10.1990 passed by Session Judge, Fatehpur in S.T. No. 210 of 1990 by which both the appellants have been convicted and sentenced to imprisonment for life under Section 302 IPC read with Section 34 IPC and one year rigorous imprisonment under Section 323/34 IPC. (A) In brief the facts of the case, as emerging out from the F.I.R. and the evidence on record are that when the complainant Suresh Kumar, his father Lalu Prasad since deceased and his younger brother Rajesh Kumar aged about 8 years while going back from their hut outside the village after taking their food to their house inside the village reached near the house of Mahabir near the Neem tree in the lane, they met Chandrika Chamar and Kalloo Kurmi, who were armed with shot guns. As Suresh Kumar flashed his torch at them Kalloo and Chandrika fired at Lalu Prasad and killed him. The complainant and his brother raised cries for help and tried to catch the assailants but both Kalloo and Chandrika after hitting the complainant with the buts of their guns on his back fled towards west in the lane. The doors of nearby houses were closed, therefore nobody came out of the houses to catch the accused. The occurrence had taken place at about 8.30 p.m.. It was further alleged that there was a dispute between the parties with regard to a piece of land and proceedings under Section 107 Cr.P.C., 1973 were drawn against both the parties which were compromised on 8th January, 1989. One day before the occurrence Ram Kishore while standing at him door had asked Kalloo and Chandrika to kill Lalu Prasad and had assured them that he would take care of everything. Their conversation was overheard by Nanku, who advised them not to do so and asked Lalloo to vacate the land. Nanku disclosed the aforesaid fact to the complainant and his father on the same day in the afternoon and pursuant to the conspiracy so hatched by Ram Kishore, Kalloo and Chandrika, his father was murdered by them. The written report of the occurrence Ext.Ka-1 was lodged at reporting chowki Bakewar on 01.08.1989 at 6.30 a.m.. The place of occurrence was stated to be at a distance of 8 kms. from the reporting chowki Bakewar, P.S. Jahanabad. In the first information report it was categorically averred that due to fear and darkness the complainant did not lodge the report in the night itself. Check FIR was prepared on the basis of the written report, Ext.Ka-5. A case was registered in the G.D. at Rapat No. 9 at 6.30 a.m. at the chowki. The copy of the G.D. is Ext.Ka-6. The inquest of the dead body of Lalu Prasad was conducted by S.I. Sri Udai Singh, who was posted as Chowki Incharge. I.O., who also prepared the inquest report Ext.Ka-7, diagram of the dead body Ext.Ka-8, challan lash Ext.Ka-9, letter addressed to the R.I. Ext.Ka-10, letter addressed to the C.M.O. for conducting the post mortem Ext.Ka-11. He collected blood stained and simple earth from the spot and prepared the fard Ext.Ka-12. He also asked the complainant Suresh Kumar to produce his torch and after inspecting it prepared the fard Ext.Ka-13 and gave it in his supurdagi. The Investigating Officer also inspected the crime scene and prepared it's site plan Ext.Ka-14. (B) The post mortem on the dead body of Lalloo was conducted on 02.08.1989 at 3.30 p.m. by Dr. Sharad Mehrotra. The post mortem report is Ext.Ka-2. According to the post mortem report following ante mortem injuries were noted on the cadever of Lallu Prasad by Dr. Sharam Mehrotra:- (I) Gunshot wound of entry 3 cm x 3 cm x cavity deep left side of scapular region, 18 cm below shoulder joint, direction from back to front. Blackening and tattooing were present around the wound. (ii) Lacerated wound 1/2 cm x 3 cm x 1/2 cm below the ear on neck left side. (iii) Lacerated wound 1/2 cm x 3 1/2 cm x ? cm on the lateral aspect of neck at the root of head. On internal examination the doctor found membranes congested, fracture of iv, v, vi ribs on left side. The pleura was lacerated. Both the lungs were also lacerated. The stomach contained two ounces of digested food. Both the intestines contained gases and faecal matter. The gall bladder was full while the bladder was empty. In the opinion of the doctor death was caused due to shock and haemorrhage as a result of above ante mortem injuries. (C) Sri Suresh Kumar who had received injuries at the time of occurrence was medically examined by Dr. J.P.Bajpai on 01.08.1989 at 12.20 p.m.. His injury report shows following injuries on his person:- (i) Contusion 6.00 cm x 3.00 cm on the left side in the infra scapular area over back. (ii) Contusion 5.0 cm x 3.00 cm at inter scapular region towards right side on the back. According to the doctor the injuries were simple, caused by blunt and hard object and were about half day old. (D) It is said that while the accused were running away Sri Shyam Lal had witnessed them and he was also given a blow by the accused. He was medically examined by the same Dr. J.P. Bajpai on 01.08.1989 at 12.10 pm.. The doctor found one lacerated wound of 3 cm x 1 cm x muscle deep on lateral region of left eye. The injury was reported to be simple and caused by hard and blunt object. The injury report of Suresh Kumar is Ext. Ka-3 and that of Shyam Lal is Ext.Ka-4. (E) Although S.I. Sri Udai Singh had almost completed the investigation but since he was transferred the investigation of the case was handed over to S.I.-Sri Madan Mohan Chaubey who after completing the investigation submitted the charge sheet Ext.Ka-15 before C.J.M., Fatehpur against all the accused. (F) The committal proceedings took place in the court of Sri Sheo Ram Dohare, III Additional Chief Judicial Magistrate, Fatehpur, who committed all the accused to the court of Sessions to face the trial, where it was registered as S.T. No. 210 of 1990. Learned Sessions Judge, on the basis of the material on record and after hearing the prosecution and the accused on the point of charge framed charge against the accused appellants under Section 302/34 IPC for the murder of Kalloo Prasad and another charge under Section 323/34 IPC for causing injuries to Suresh Kumar and Shyam Lal while co-accused Ram Kishore was also charged for the offence punishable under Section 120B IPC for having conspired with other co-accused to commit the murder of Kalloo Prasad. The accused-appellants abjured the charge and claimed trial. (G) The prosecution in order to prove its charge framed against the accused-appellants examined as many as six witnesses of whom PW-1 Suresh Kumar and PW-2 Rajesh Kumar were examined as witness of fact while PW-3 Shitla Prasad, PW-4 Dr. Sharad Mehrotra, PW-5 Dr.J.P.Bajpai and PW-6 Udai Singh, Investigating Officer were produced as formal witnesses. Appellant Chandrika alias Jokar in his statement recorded under Section 313 Cr.P.C., 1973 denied any friendship with accused Kalloo. He further stated in reply to question No. 9 that when he heard about the death of Lalu Prasad after taking his food, he had gone to see him at 8 P.M. or 8:30 P.M. He also filed his written statement paper No. 25A1 in which he has written that one year before the occurrence Lalu Prasad had teased the wife of Suresh Kumar on which Suresh Kumar had beaten his father which caused a lacerated wound on his head. He had given his house to Suresh Kumar only for six months. When he asked him to vacate the house one month before of the occurrence, he became angry and implicated him in this case falsely. He further stated that he is in service of Debi Prasad Agnihotri, who has got enmity with Ranjeet Singh and in collusion with Ranjeet Singh Pradhan, he has been implicated by PW-1 in this case. Accused Kalloo has stated that Suresh Kumar is in the service of Pradhan and at his instance, he has been implicated in this case. Accused Ram Kishore has stated that he was been implicated due to election rivalry. (H) Learned Sessions Judge, Fatehpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the entire evidence on record convicted the accused-appellants under Section 302/34 and 323/34 IPC and awarded the aforesaid sentences to them while Ram Kishore was acquitted of all the charges. (I) Hence this appeal.
(3.) Learned counsel for the appellants submitted that the incident had taken place at 8.30 p.m. and there being no proof of availability of any source of light at the place of incident, it was possible for the two so called eye witnesses of the occurrence to have identified the assailants and in view of the admitted previous enmity between the deceased and his family members and the accused-appellants, after some unknown persons had shot Kalloo Prasad father of PW- 1 Suresh Kumar and Shyam Lal dead and caused injuries to PW-1 Suresh Kumar, as a measure of vendetta PW-1 Suresh Kumar falsely implicated the accused-appellants in this case. He further submitted that the evidence of PW-1 and PW-2 for the purpose of convicting the accused-appellants, is wholly unreliable and untrustworthy in view of there being inherent contradictions, inconsistencies and discrepancies in their testimony on all material points relating to the occurrence. The medical evidence does collates the ocular version. The delay in lodging the FIR is in itself suggestive of the fact that the FIR of the incident was prepared after due deliberations and consultations falsely implicating the accused-appellants. The prosecution having miserably failed to prove the charges framed against the accused-appellants by adducing any cogent evidence, neither the recorded conviction of the appellants nor the sentences awarded to them can be sustained and are liable to be set aside.;