Rakesh Tiwari, J.
1. Heard Ms. Usha Kiran, learned AGA for the appellant-State of U.P., Sri Ram Kher Singh, learned Counsel for the respondents-accused and perused the record. This Government appeal is preferred challenging the validity and correctness of the impugned judgment and order dated 23.1.1984 passed by VI Addl. Sessions Judge, Azamgarh in S.T. No. 158 of 1980 (State v. Gulab Yadav and others) by which respondents-accused Gulab Yadav son of Sriman, Tilakdhari son of Ganesh and Faujdar son of Bairagi, all residents of village Akbelpur Maraiya, P.S. Mehnagar, District Azamgarh were acquitted of the offences under sections 307/34 IPC.
2. Briefly stated the facts of the prosecution case are that prior to this incident in the year 1976 a dacoity was committed at the house of respondent-accused Tilakdhari in which Sriman father of respondent-accused Gulab was shot dead by the dacoits. In that case, Ramchet father of first informant Ashok Kumar Yadav, his uncle Shamsher and Kedar were named. They were convicted by the Trial Court in the year 1978 but in appeal the High Court acquitted them in the year 1979. The acquittal enraged the respondents-accused in the present case, hence with a view to avenge they on 18.2.1980 at about sun set are said to have committed the offence when Ashok Kumar along with his uncle Shamsher and one Awadhesh went across the river 'Taus' for easing in field and when all the three were sitting scatterly at some distance from each other. Accused Gulab Yadav armed with country made pistol, accused Tilakdhari and Faujdar armed with knives surrounded Shamsher. Accused Gulab fired a shot from the country made pistol on him which struck on his lower back side. Shamsher fell down due to the firearm injury. On hearing the gunshot and cry of Shamsher, Ashok Kumar, Awadesh, Ram dhari, Tribhuwan and others reached at the spot and saw accused Tilakdhari and Faujdar caused injuries on him with knives on his neck and head. Seeing them, all the assailants ran away towards western side after firing a shot with the country made p
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istol. First informant Ashok Kumar sent injured Shamsher with Ramdhari on a rickshaw to Sadar hospital, Azamgarh and he went to his house in Quasba Sidhari where he scribed a written report of the occurrence and lodged it at P.S. Kotwali, Azamgarh at 7.00 P.M. On the basis of written report, check report was scribed by Head Constable Surya Narain Singh. After making entry in the G.D. the FIR of the incident was registered at case crime No. 133 of 1980 u/s 307 IPC against aforesaid respondents-accused persons.
3. The investigation of the case was taken over by S.I. Sri M.N. Tiwari (PW-6) who went to the hospital and found the injured not in a position to give his statement. Dr. B. Das (PW-4), Medical Officer on duty, Sadar Hospital, Azamgarh found the condition of injured Shamsher precarious and dangerous, hence sent a message to the Magistrate for recording dying declaration of the patient. He also conducted the medical examination of injured Shamsher on 18.2.1980 at 7.30 P.M. and found following injuries on his person.
1. Incised wound 2 cm. x 0.5 cm. x 0.2 cm. over dorsum of right hand edges are clean cut. Bleeding present.
2. Incised wound 4 cm. x 0.5 cm. x 0.5 cm. over back of neck edges are clean cut. Bleeding present.
3. Firearm wound of entrance 4 cm. x 3 cm. over left gluteal region. No tattoing, no burning. Pellets not palpable. Bleeding present.
4. Incised wound 3 cm. x 0.5 cm. x 0.2 cm. over back in right side scapular region. Wound is not of such type. No surgical campysuwa.
5. Incised wound 1.5 cm. x 0.3 cm. x 0.2 cm. over back of right shoulder.
6. Abrasion 1 cm. x 0.5 cm. over back of right upper scapular region.
7. Abraded contusion 5 cm. x 2 cm. over right clancular region.
8. Abraded contusion 2 cm. 1 cm. over outer side of left shoulder.
In the opinion of the doctor, all the injuries are simple except injuries No. 1, 2 & 3. He advised x-ray for injuries No. 1, 3, 4 and 5. Duration was fresh.
4. The I.O. also went to the place of occurrence and recorded the statements of eye-witnesses on 19.2.80 i.e. the next day of the occurrence, collected blood stained and simple earth from the place of occurrence and prepared its memo (Ex. Ka-7) He also prepared the site plan of the place of occurrence. After conclusion of the investigation, the I.O. submitted charge-sheet in the Court of Chief Judicial Magistrate, Azamagarh u/s 307 IPC against all the respondents-accused persons, who committed the case for trial to the Court of Session where it was registered as S.T. No. 158 of 1980, State Versus Gulab Yadav and others.
5. Charge u/s 307 read with section 34 IPC was framed against respondents-accused Gulab, Tilakdhari and Faujdar. All the respondents-accused persons pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution examined six witnesses, namely, first informant Ashok Kumar (P.W. 1), injured Shamsher Yadav (P.W. 2), Awadhesh Yadav (P.W. 3), Dr. B. Das (P.W. 4), Dr. S.D.P. Gupta (P.W. 5) and S.I. Sri M.N. Tiwari I.O. (P.W. 6), whereas the accused persons did not adduce any oral evidence except some documentary evidence before the Trial Court.
7. The respondents-accused persons in their statements u/s 313 Cr.P.C. denied the charge and stated that they have been falsely implicated in this case due to enmity. However, they admitted the factum of previous litigation between the family of the informant and them. They also admitted the factum of dacoity having been committed at the house of Tilakdhari, the conviction of Shamsher, Ramchet along with another and their acquittal by the High Court but denied the occurrence by them. They further stated that the witnesses have given evidence against them due to enmity saying that Awadesh (PW-3) is a relation of Shamsher Yadav (PW-2). Accused Tilakdhari also stated that he had moved an application for putting him to identification test by the other witnesses, who did not belong to the family of the informant because they did not know them from before but the police did not get their test identification.
8. The learned Trial Court after hearing the parties' Counsel and on appreciation of evidence on record acquitted the respondents-accused persons vide impugned judgment and order dated 23.1.1984 holding that prosecution had not been able to prove its case beyond all reasonable doubts.
9. Subsequently the Chief Judicial Magistrate, Azamgarh pursuant to order of this Court dated 4.4.2012, vide his report dated 22.9.2012 has verified that respondent-accused, namely, Tilakdhari son of Ganesh resident of village Akbelpur, P.S. Jahanaganj, District Azamgarh has died on 18.5.2010 during the pendency of this Government appeal. The appeal against him is therefore, abated.
10. Assailing the judgment of the learned Trial Court impugned in the appeal, learned AGA has submitted that the order of acquittal of the respondents-accused is contrary to the weight of evidence on record which has also not been assessed properly.
11. She submits that identification was not at all essential in this case as all the respondents-accused were known being residents of the same village, have been named in the FIR and the testimony of injured Shamsher was fully corroborated by the medical evidence and other circumstances brought on record by the prosecution and on the testimony of injured alone the respondents-accused ought to have been convicted. It is also submitted that the findings recorded by the learned trial Judge that seven months after the acquittal of the accused persons it does not appear probable that anybody would commit the offence of the present nature for taking revenge of an old enmity, are not correct.
12. Per contra, Sri Ram Kher Singh, learned Counsel appearing for the respondents-accused has submitted that the judgment of the Trial Court is a well reason discussed and sound judgment; that there was no strong motive for the respondent-accused persons to commit the alleged offence; that the FIR of the case is ante-timed; that the presence of first informant Ashok Kumar (PW-1) and Awadesh Yadav (PW-3) at the time of occurrence are doubtful.
13. He submits that according to Dr. B. Das (PW-4) injuries No. 6, 7 and 8 on the person of injured Shamsher were caused by lathi and danda and failure on the part of the prosecution to explain the causing of injuries No. 6, 7 and 8 goes to show that the occurrence took place in some other manner; that no blood was found at the place of occurrence and no independent witness in this case has been examined by the prosecution. Therefore, the learned Trial Court has rightly acquitted the respondents-accused, hence the findings of acquittal recorded by the Court below need no interference by this Court.
14. After hearing learned Counsel for the parties and on perusal of the record it appears that first informant Ashok Kumar (PW-1) is the real nephew of injured Shamsher (PW-2). It has come in evidence that the condition of the injured was critical. Even then the first informant preferred not to go along with him to the hospital and instead of it he first went to his house, wrote a report of the occurrence and then went to the Police station. If the condition of the injured was so serious then the natural conduct of this witness being his real nephew must be to accompany him to the hospital. P.W. 1 deposed in his evidence that he had sent the information to police through the hospital. It may be noted that he had stayed at his quarter for the whole night and went to see his uncle on the morning of the occurrence. This conduct of his is quite unnatural. Instead of taking care of his uncle brought by another person to the hospital he chose to go away from the place of occurrence and sleep in his quarter the whole night particularly when no other family member was present in the hospital with injured Shamsher. These circumstances and conduct of first informant Ashok Kumar creates a serious doubt about his presence at the time of occurrence.
15. As regards the application made by the accused persons for getting their identification done, the report of the police shows that the prosecution refrained from getting their identification done by the witnesses on the pretext that they were known from earlier. Awadhesh (PW-3) asserts his knowing accused persons due to his going to their village at the time of General election. There was no other reason for him to know them. This evidence is flimsy and unreliable. His admissions in this regard are that he himself is a resident of village Sema, which situates towards eastern side of Sidhari at a distance of 13 miles away and village Akbelpur Maraiya is situated towards southern side of Sidhari at a distance of ten miles. All the accused persons are resident of village Akbelpur Maraiya. This witness deposed that he went to village Akbelpur Maraiya two to four times in the election canvassing and that too 2 or 3 years prior to the occurrence of the present case and thereafter, had not gone to that village. He further deposed that he went in ten or fifteen villages but he could not tell the names of the villages which situate towards eastern, southern and northern side of village Akbelpur Maraiya and that the names of accused persons were told to him because he went at their house. Such type of evidence as given by him being hearsay is not worthy of credence for the simple reason that he could not even tell the name of any person of village Akbelpur Maraiya nor he could tell the name of any of the village which situates near village Akbelpur Maraiya. The shifting of responsibility for getting the identification done of the accused persons by this witness who did not either belong to the family of injured Shamsher shows that he did not know the accused persons from before but gives statement on hearsay, is fatal to the prosecution case.
16. According to deposition of Awadesh (PW-3) he also did not use to go regularly for attending the call of nature along with Shamsher and Ashok Kumar but the evidence of first informant Ashok Kumar (PW-1) shows that Awadhesh also used to go for attending the call of nature along with them on previous occasions. This contradiction in their evidence also reflects that Awadesh did not accompany them for nature call at the time of occurrence.
17. Apart from above, P.W. 3 deposed at one place in his statement that on the day of occurrence, he had gone towards city side in New Colony at 4.00 P.M., stayed there for 2-1/2 hours and thereafter, returned from there. It was then that Shamsher and Ashok Kumar met him on the Sidhdari bridge from where he accompanied them to go for nature call. If these statements are taken to be true, then Shamsher and Ashok Kumar himself had met him at 6.30 P.M. It means that there must be darkness at that time. Admittedly, the sun set according to the 'Jantri' that day at 5.49 P.M. By 6.30 P.M. there must be pitch darkness. Considering this time of their meeting, it can be said that if at all Awadesh (PW-3) met with these two persons, there was darkness and if those persons went for nature call in the wheat crop field near the guava grove then in the absence of any source of light, it was not possible for them to have identified the actual culprits. All these go to show that injured Shamsher (PW-2) was actually struck in darkness and he could not identify the actual culprits. Whereas according to Awadesh (PW-3), the wheat crop in the field in which, occurrence took place, were of a man's height. If it is so, then it was not possible for him and Ashok Kumar to have seen the accused persons firing shot and causing injuries with knife because they were at a distance of more than 30 fts. away from the injured who was on the ground. In our opinion, none of them could have reached near the place and time of occurrence or could have seen the incident being done by the accused persons. They seem to have gone on the actual spot only when the unknown culprits had gone. The Trial Court has, therefore, rightly disbelieved the evidence of this witness.
18. As regards the deposition of Dr. B. Das (PW-4) is concerned, he deposed that injuries No. 6, 7 and 8 of injured Shamsher could be caused by lathi and dandas, which were abrasions and abraded contusions. Injury No. 3 was caused by firearm i.e. Katta and injuries No. 1 to 4 and 5 were all incised wounds which were caused by knives. The failure on the part of the prosecution to explain the causing of injuries No. 6, 7 and 8 goes to show that the occurrence took place in some other manner. None of the prosecution witnesses deposed that any of the culprits had lathi and danda in causing injuries No, 6, 7 and 8. Ashok Kumar (PW-1) deposed that when his uncle Shamsher was shot with 'Katta' by accused Gulab Yadav, he fell down and when the two accused persons, namely, Tilakdhari and Faujdar were causing injuries with knives, his uncle's face was down side. Shamsher (PW-2) also deposed in his evidence that when he was struck with knives he did not fell down but he sat on his knees and knives were struck on hurt when he was in that sitting position which shows that Shamsher (PW-2) did not even fell down on the ground when the two accused persons, namely. Tilakdhari and Faujdar are said to have caused injuries to him with knives. Thus, there is a contradiction in the ocular testimony and the medical evidence.
19. From the record it appears that no independent witness has been examined in this case. Ashok Kumar (PW-1) is the nephew of injured Shamsher (PW-2) and P.W. 2 is an inimical witness as long drawn enmity with the accused persons is admitted to him. Awadesh (PW-3) is also said to be the relative of Shamsher which is apparent from the partial admissions and circumstances of the case. It has come in the evidence of P.W. 1 and P.W. 3 also that the occurrence was seen by several persons standing on the road side but none of them is cited as a witness in the FIR or produced in evidence before the Court below. To our mind, this is done deliberately so as to show that independent persons may not come to depose for the prosecution.
20. The I.O. Sri M.N. Tiwari (PW-6) deposed that he took the blood stained and simple earth in his possession from the place of occurrence but the same was not sent for chemical examination. It was very necessary for the I.O. to have sent the blood stained soil for chemical analysis to obtain an opinion that the blood taken was a human blood. In its absence, the place of occurrence cannot be fixed with certainty. Hence, it is not established that the blood taken by him is a human blood.
21. He is said to have taken the blood stained soil from point 'A' shown in the site plan which was the place of accused shown to him by the witnesses Awadhesh, Ashok and Tribhuwan Shamsher seated himself for nature call in the wheat crop field and he is said to have been fired upon by 'katta' but surprisingly the I.O. did not even find any blood on the wheat crop. Point 'B' shown in the site plan (Ex. Ka-7) is the place whereat Shamsher was seated for nature call. Points 'A' and 'B' are different places. If the shot was fired with the 'katta' at 'B' and Shamsher had fallen down as per the prosecution story then the blood should have been at point 'B' whereas Shamsher deposed that from the place, he was struck with 'katta', he himself went upto the 'pipal' tree near the 'Kuti' which situates on the Azamgarh Sidhari road near the bridge, and up to that place, blood fell down on the ground.
22. In the circumstances, we are safely say that after the occurrence, the night approached and nobody had passed by the place of occurrence on that day. The I.O. visited the place of occurrence on the following day. However, he did not go on the spot during the night when the blood sample might have been available to him on that day. According to him, he saw the trail of fallen blood from point 'A' towards the western side at different places but he did not take into possession sample of blood stained soil for forensic investigation. This fact in itself raises doubts as to where there was any blood of the injured. The version of the injured that the blood fell down on the way to the pipal tree therefore, not appears palpably to be true.
23. We may also refer to the statement of Ashok Kumar (PW-1) wherein he deposed that he did not see as to whether the blood fell down or not on the place where his uncle had fallen down who, however, as stated by him to be heavily blood stained. This witness could also not tell as to whether the crop was smashed at the place of occurrence or as to whether the blood fell on the crop or not? If he was present on the spot, he could have answered these questions but his negative reply shows that his presence at the spot is doubtful and he did not see the occurrence. P.W. 1 at one place deposed that the Dhoti of his uncle was left on the place of occurrence and subsequently, some body gave him 'Angochha' in which he was sent to hospital on rickshaw. His dhoti was taken on the next day by him from the spot at about 11.00 A.M. According to Awadhesh (PW-3), Shamsher (PW-2) was made to stand by him and Ashok. At that time, injured Shamsher was naked and his Dhoti had fallen down. He further deposed that Dhoti was put on the body of Shamsher by Ashok Kumar and then Shamsher was taken by them towards road. Shamsher (PW-2) stated that his underwear and dhoti were left on the spot and he was necked under the pipal tree.
24. These admissions and contradictions are enough to discredit the prosecution story. In our considered opinion, all these go to show that the presence of witnesses P.Ws. 1 to P.W. 3 on the spot is not free from doubt.
25. Furthermore, according to Shamsher (PW-2), the knife blows were struck to him by assailants when they were standing in front of him but there is no injury on his neck on front side. All the injuries are either on the back portion of the body or on his hand. Had he been struck with knife from front side, injury should have been caused on the front portion of the body but it is not so. Hence, the manner of causing injuries is not proved to the hilt.
26. For all the reasons stated above, we uphold the findings recorded by the Trial Court in the impugned judgment. To our mind, it has rightly acquitted the respondents-accused of the charge u/s 307/34 IPC. We do not find any illegality or infirmity in the impugned judgment of the Trial Court. The Government Appeal is accordingly; dismissed.