Rakesh Tiwari, J.
1. We have 9 heard Sri R.Y. Pandey, learned A.G.A., appearing for the appellant-State, and Sri Rahul Mishra, appearing on behalf of accused-respondents. Perused the record.
This government appeal challenges. the judgment and order dated 4.6.1983 passed by learned Sessions Judge, Pilibhit, in S.T. No. 207 of 1982, acquitting the accused-respondent, Sita Ram charged u/s 302 IPC and accused-respondent, Dharam Pal charged u/s 302/149 IPC.
The appeal has been challenged on the ground; that learned Sessions Judge committed manifest error of law in rejecting the testimony of the eye-witnesses holding that the investigation of the case was not efficient as the first information report in the case was too prompt and does not inspire confidence. It is also challenged on the ground that prosecution case was amply proved from the statements of three eye-witnesses which find material corroboration between the medical evidence and other attending circumstances on record; that acquittal of the accused persons is wholly unwarranted, bad in law and being against the weight of evidence on record, as such, judgment is perverse.
2. Briefly stated the case of the prosecution in the Court below was that accused-respondents, Sita Ram and Dharam Pal both sons of Parmeshwari Dayal, had a field adjoining the field of complainant, Ram Pal (P.W.1). Disputes about boundaries of the two fields came into existence as such demarcation proceedings were carried out, in which some area of the plot of Parmeshwari Dayal was found in possession of Ram Pal. There was a further litigation, in which, according to the prosecution, father of the accused had lost and the plot in question continued in possession of the complainant, Ram Pal (P.W.1). On 19.8.1982, the accused persons alongwith some others appears to have made efforts to over-turn the crop sown by Ram Pal upon which Ram Pal and his cousin Harish Kumar objected which resulted in firing from both sides in air. Pursuant thereto, police arrested Ganga Ram from the side of Ram Pal and one Rajendra from the side of the accused persons and registered a case under Sections 151/109/116 Cr.P.C. (Ex. Ka-13) against both the parties.
3. It is stated that on that very date, Ram Pal alongwith Uma Charan, Dal Chand (P.W. 2 and 3) and Harish Kumar had gone to their fields for watering them and when they were returning from there at about 8.30 p.m. and reached the culvert, they saw two persons coming from the other side. Ram Pal and Uma Charan have torches and lathis with them and torches were flashed from both the sides. In the blush light they saw that the aforesaid two persons were Sita Ram having a single barrel gun and Dharam Pal with a torch coming towards them from the other side; that Sita Ram said to them that he lives out-side of which advantage was taken by taking unauthorised possession of his field with aid of their supporters who will not help them at the time of need. Upon this, Harish Kumar retorted that he alone is match for them. On this Daram Pal exhorted that these persons who are responsible for escalating the dispute should be shot. On this, Sita Ram fired with his gun causing injury to Harish Kumar who fell down; that Sita Ram reloaded his gun threatening others not to proceed towards them otherwise they would also be killed and then both of the accused ran away.
4. In the incident, Harish Kumar died. Ram Pal got the written report (Ex. Ka-1) of the incident scribed at the spot by Uma Charan and took it to P.S. Bisalpur, where it was handed over at 9.35 p.m. Check report (Ex. Ka-2) was prepared by H.M. Munawwar Ali, entries were made in the general diary and FIR was lodged against the accused-respondents, Sita Ram and Dharam Pal sons of Permeshwari at Case Crime No. 169 u/s 302 I.P.C. on 19.8.1982 at 21.35 p.m.
5. The investigation of the case was taken over by S.I. Daya Ram Dwivedi, S.O. Bisalpur, who immediately went to the spot of incident and found the body of deceased Harish Kumar on the road. He prepared Panchayatnama (Ex. Ka-4), Photo lash (Ex. Ka-5) and Chalan lash (Ex. Ka-6). The proceedings were initiated in the light of lantern by the Investigating Officer, who also took blood stained and plain earth from the place of occurrence. From the place of occurrence, three pellets, three tiklis, one round tiklis and lathi laying there, were taken in possession of said I.O. and memo of same (Ex. Ka-8) was prepared. All the articles except lathi were sealed. The Investigating Officer interrogated the complainant - Ram Pal, Uma Charan and Dal Chand. He also inspected the torches of Uma Charan and Ram Pal which were found in working condition and the same were returned to them. The other witnesses were also interrogated by the I.O. at 5.30 a.m. who prepared the site-plans (Ex. Ka-9 & Ex. Ka-10). Thereafter, the sealed body of deceased, Harish Kumar was sent alongwith constables Rajendra Pratap and Mahendra Pal with relevant papers for post mortem to Civil Hospital, Pilibhit.
6. The post mortem of the body of Harish Kumar (since deceased) was conducted by Dr. J.K. Goel, Medical Officer, posted at Civil Hospital, Pilibhit on 20.8.1982 at 4.00 p.m. who found the following ante-mortem injuries:
1. Multiple fire-arm wounds of entry in an area of 31 cms. x 26 cms. each 0.2 c.m. x 0.2 cm. in size on whole of front of abdomen including upper part of pericardium. No blackening, tattooing of scorching present around the wound of entry.
Nothing abnormal was found. On internal examination of the body stomach was reported to be empty, peritoneum gall bladder, pancreas, spleen, and kidney were found lacerated.
In the opinion of the doctor, death caused due to shock and haemorrhage as a result of the ante mortem injuries alone.
The accused-respondents surrendered in the Court below on 30.8.1982 and after interrogating by the I.O., charge-sheet (Ex. Ka-11) was submitted by him on 14.9.1982 against the accused persons.
7. On committal to the Court of Sessions Judge, Pilibhit the case was registered as S.T. No. 207 of 1982: Sita Ram and Dharam Pal sons of Parmeshwari Dayal. The prosecution in support of its' case examined 4 witnesses, namely Ram Pal (P.W. 1), Uma Charan (P.W. 2) and Dal Chand (P.W. 3) as eye-witnesses, and S.I. Daya Ram Dwivedi (P.W. 4) as formal witness, whereas, both the accused persons pleaded not guilty and claimed to have been falsely implicated in the case due to strained relations as aforesaid. They also claimed to be ignorant about the occurrence of that very date in day time and stated that Dal Chand is also inimical to them.
8. The learned Sessions Judge on appreciation of evidence on record came to the conclusion that the prosecution has not been able to prove its' case beyond all reasonable doubts and accordingly acquitted the accused persons.
9. In the aforesaid backdrops, this government appeal has been preferred by the appellant-State of U.P. challenging the impugned judgment and order. The contention of learned A.G.A. appearing for the appellant-State, is that the learned Sessions Judge has erroneously came to the conclusion that the prosecution has not been able to prove the case beyond all reasonable doubts and acquitted the accused persons on the ground that the FIR is too prompt. It is argued by learned A.G.A. that merely because the witnesses in this case were partisan, it would not be a ground for acquittal of accused persons; that the motive of attack on Harish Kumar (since deceased) was not very strong.
10. He has submitted that in the circumstances of the present case, presence of witnesses was most probable and natural and if they are partisan witnesses at least their testimony could have been scrutinized with utmost caution and not rejected solely on the ground that the aforesaid eye-witnesses were related or were not independent. It is stated that in a case where the incident takes place as a result of parry faction or rivalry, it would be almost futile to expect that an independent witnesses would come forward to support the prosecution version, in such a case the Court can reasonably scrutinize the statement deposed by such partisan witnesses with caution and if their deposition is found to be credible then the same should be accepted.
11. Learned A.G.A. further submits that the trial Court having failed to appreciate the evidence on record in respect of the investigation of the case and its observation with regard to it that it was not efficient and acquitted the accused persons on this ground, also is wholly perverse and liable to be set aside.
12. Per contra, Sri Rahul Mishra, learned counsel for the accused-respondents submits that admittedly Harish Kumar (since deceased) was killed in the night of 19/20.8.1982 by gun shot near a pond of the road. The place of occurrence as well as post mortem report are admitted to the accused persons. However, he contends that Harish Kumar was probably shot by some unknown persons and subsequently when body of Harish Kumar (since deceased) was found, a false case due to strained relations has been registered against these accused persons and the persons who were inimical to them. The circumstances show that Harish Kumar was shot in the night at some other place and subsequently an excuse was put forward for the presence of three witnesses with deceased which establishes that it was improbable as if Ram Pal and Uma Charan were available then why they have not been attacked by the accused persons.
13. According to him, it is not asserted in the FIR that there was strained relations between the accused persons and Harish Kumar. However, in two cross-cases under Sections 151, 107/116 Cr.P.C. Dharam Pal and Sita Ram, are said to be of one side and on the other side Harish Kumar, Ram Pal and his other relations are shown. From the evidence it can be said that main dispute regarding demarcation was with Ram Pal and his brother, whereas statement of Ram Pal shows that his father were three brothers and were living separately. They had also said to have disturbed the demarcation line and in this backdrop if these two persons were available then Ram Pal and Uma Charan would have been more probable to be targeted than Harish Kumar.
14. It is also argued that prosecution story is a clear case of doubt for the reason that the FIR is too much prompt as the occurrence is said to have taken place at 8.30 p.m. particularly when the report is said to have been scribed by the complainant after 15/20 minutes of occurrence at the spot and the report was lodged at police station at 9.35 p.m. From perusal of FIR, it is apparent that distance between place of occurrence and police station is 3 miles, therefore, it would have been improbable for the informant to have gone to the police station and lodge the FIR by 9.35 p.m., particularly in the backdrop that the informant has not mentioned by what conveyance or means he had reached the police station. In this regard he placed reliance on para 11 of the statement of P.W. 1:
15. It is then argued that from the statement of the report scribed after keeping the paper on the knee and he took about 5/6 minutes in scribing it. He has put a question to himself as to why P.W. 1, Ram Pal had been carrying a plain paper and pen (which was without any fold) when he claimed to have gone in the afternoon to their field and how report was scribed in the night at a lonely place on the road within 5/6 minutes in the manner by keeping the paper on his knee as stated above. In this regard he has also drawn our attention to the judgment where the Court has doubted this saying that it is difficult to believe that this report could have been scribed in 5/6 minutes in the night at the spot while keeping the paper on the knee and the writing could not have been of this type. There is also a vague factor as to whether the paper was taken after folding it in the pocket, or in what manner complainant has said that he has kept it in his pocket after folding though admits that the paper has no marks of folds. He had stated to the I.O. that it was scribed in torch light though he now claims that it was scribed in the light of lantern. Uma Charan has claimed that it was written in lantern light and that the paper was kept in the Paijama pocket straight which is most improbable statement and I am not aware of normally used Paijama which may have such big pocket in which this paper could be kept without folding and there is no reason why blank paper without being folded would be kept in the Paijama pocket in the manner when the man had gone to the field for irrigation purposes.
16. The other contradiction brought to our notice by learned counsel for the accused-respondent is that though it is claimed that report was lodged in presence of I.O., who claims otherwise that complainant had left soon after lodging of the FIR and the I.O. also straight-way went to the spot for starting his investigation. On this basis he has then referred to the judgment wherein the Court has observed that it is difficult to accept that if the report of a murder case had been lodged, the complainant would neither have left without talking with the I.O. nor he would have allowed him to go without interrogating him, nor would have taken him alongwith him in the jeep by which he had proceeded to the place of occurrence. The whole statements in this respect are not very convincing.
17. It is argued that the eye-witnesses were not shown to have been examined before early morning and the statements of the witnesses are not consistence on the point as to where they were examined. In this regard, learned counsel has drawn our attention to the statement of Dal Chand which shows that he was examined by I.O. in front of house of Ram Pal under a Pakar tree, whereas the S.I. claims that he has interrogated them on the spot after interrogation of the complainant. Apart from above, other consistencies have also been pointed out at the time when the I.O. is said to have reached and as to whether Uma Charan and Dal Chand were present at that time or not?
18. It appears that the Sessions Court has given cogent reasons as to why prosecution story is not to be believed and discarded. The reasons find place in paragraphs 15 to 18 of the judgment by the Sessions Court and for ready reference are quoted below:
15. Ram Pal has deposed that they had gone from their house for irrigation purposes and that he had gone at about 7.30 p.m. and had taken torch because it was becoming dark and that he stopped in the field for about an hour or so. He also claims that Harish Kumar had a share in the same field on the basis of a private partition and Uma Charan had also irrigated his field from the same 'Gool'. He claims that none of them had any spade, or Kassi and Dal Chand had no field in that area. He has not deposed that Dal Chand was taken by him for protection purposes. Uma Charan has stated that he had not gone to the field at about noon time but had gone at about 7.30 p.m. when it was dark and so, he had taken a torch but when he was confronted with the statement u/s 161 Cr.P.C. that he had gone at about noon time, he accepted it and stated that this was correct. He also claims that Ram Pal, Harish Kumar and Dal Chand had not gone with him but were in the field from before. If we accept this part of the statement of Uma Charan, it would mean that the statement of Ram Pal is wrong that he had gone at 7.30 p.m. and that Ram Pal and Uma Charan could have no valid excuse for taking a torch with him if they had gone to the field at about noon time. The excuse of Uma Charan that he had gone to see why water is not flowing and then he found that Ram Pal had diverted water and then he returned without going back to the field is not convincing. He also claims that there were no spades or Kassis. It is not convincing that people will go for irrigation purpose without a spade or Kassi. He is brother of Nathu who admittedly is a Bataidar' of the mother of Harish Kumar. In the F.I.R., the assertion is that Dal Chand had also gone for irrigation purposes and now the claim is that he had gone for protection. He claims that Uma Charan came subsequent to their reaching field and this contradicts Uma Charan and according to him, Uma Charan came near them at 7.00 p.m. and the distance of Uma Charan's field given is also wrong. The time given by him of starting towards the pulia is inconsistent with the statement of Ram Pal as he has given it as 7.30 p.m. while Ram Pal gives it as 8.30 p.m.
16. It is also surprising factor that this Dal Chand was taken for protection purposes but nothing was done by him when the attack was made. He claims that he had a lathi-with him but this was not asserted by Ram Pal who claims that he and Harish had Lathis. If Dal Chand had also a Lathi, then this should have been mentioned by Ram Pal.
17. The testimony of partisan witnesses is not consistent. The most significant thing in this case is that the prosecution has given an excuse of going to that side. The place of the occurrence is such that normally these persons had no occasion to go to that side and if Harish was going to talk with a boy, there was no occasion for these three to accompany him at 8.30 p.m. I have also mentioned about the difference of ages and it appears improbable that they would be very chummy and friendly with him. It appears that the assertion that Harish had to talk to Suraj Pal has only been introduced to create some excuse to show that they were going on that side. Normally, when the occurrence had taken place in that very day in which there were firing, these persons would not have gone in the night to their fields and the light factor also becomes doubtful.
18. In this case, the I.O. has not shown the place where different witnesses were at the time of the occurrence and this is a material factor which should be shown. His assertion that they were at the exact place of shooting is wrong. Reference may be made to State v. Nanhey and 14 others, 1983 L.Cr.R. 87, in which it was observed that the position of the witnesses should be shown in the site-plan. The memo of torches is also not available which are claimed to be with Ram Pal and Uma Charan.
19. In the circumstances, on the basis of above observations made in paragraphs 15 to 18, the trial Court acquitted the accused-respondents, Sita Ram and Dharam Pal of the offences charged with. The trial Court also opined that FIR is too prompt, witnesses are partisan witnesses and the investigation had been conducted efficiently. Moreover, it has also disbelieved the statement of partisan witnesses finding them to be not credible.
20. As stated above in case all three witnesses were partisan witnesses and there were strained relation, their statements should not have been rejected out right as it is settled law that testimony of partisan witnesses is to be scrutinized carefully. Therefore, the Court below appears to have rightly came to the conclusion that motive of attack on Harish Kumar is not very strong. The possibility that they were roped in due to strained relations also cannot be ruled out. Considering the appending facts and circumstances and testing the reasoning of the trial Court in paras 15 to 18 of the impugned judgment, we are of the considered opinion that the statement of Uma Charan completely demolishes his own as well as statement of Ram Pal to the effect that he had not gone to the field at noon but had
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gone at about 7.30 p.m. However, when confronted by his previous statement u/s 161 Cr.P.C. he had gone to the field for irrigation purpose at noon, the same was accepted by him to be correct. Furthermore, they neither had any agricultural implements with them for irrigation nor there is statement about these implants as spade or kassi. Even Dal Chand who is said to have been taken for protection did nothing to prevent the incident. It is also not clear as to whether he had lathi with him or not at the time of incident which contradicts his statement with that of Ram Pal. 21. It is also not credibly explained by the statement of witnesses as to the accused persons would go to the place of occurrence at about 8.30 p.m. in the night when they are said to be returning to their houses and would normally not go to the place of occurrence which does not appear to fall in this way. Even there was no occasion for the witnesses for going with the accused at 8.30 p.m. to accompany Harish Kumar. The Court below has, therefore, rightly came to the conclusion that the age difference between them was much that they could have been over friendly to go out together at that time in night. We also find that the trial Court has rightly discarded the site plan as the I.O. had not shown the exact position where each witnesses were standing at the time Harish Kumar is said to have been shot by gun fire. Since memo of torch was also not available with witnesses said to be having then, all these create a reasonable doubt that incident did not take place in the manner stated by the prosecution. After hearing learned counsel for the parties and on perusal of record, we find that the view taken by the Sessions Court in acquitting the accused-respondents, Sita Ram and Dharam Pal, is reasonable and plausible one, therefore, it is not liable to be interfered with. No illegality or infirmity in the order impugned could be shown by learned A.G.A. There is no ground for holding that the order and judgment impugned in this appeal is perverse. We, therefore, concur the reason and findings recorded by the Court below and uphold the judgment and order impugned in this appeal.